Rice v. State
Decision Date | 25 March 1986 |
Docket Number | 3 Div. 240 |
Parties | Y.C. RICE v. STATE. |
Court | Alabama Court of Criminal Appeals |
William E. Skinner, of Skinner & Gobrecht, Montgomery, for appellant.
Charles A. Graddick, Atty. Gen., and David B. Karn, Asst. Atty. Gen., for appellee.
Y.C. Rice was indicted for robbery in the first degree, in violation of § 13A-8-41, Code of Alabama, 1975. The jury found the appellant "guilty as charged in the indictment." He was sentenced to life imprisonment without parole as a habitual felony offender and ordered to make restitution in the amount of $14,090.60.
The appellant has not raised the sufficiency of the evidence on appeal, and, therefore, the facts of this case will be briefly stated.
At approximately 11:30 on the morning of January 4, 1985, Julia Whitsett was walking behind the Cloverdale A & P store in Montgomery when she was struck from behind and knocked to the ground. When Whitsett looked up, she saw the appellant standing over her. She began to scream and the appellant hit her in the face.
Gayle Ray was jogging in the area and heard Whitsett scream. When he saw the appellant standing over Whitsett, he told him to leave her alone. The appellant grabbed Whitsett's purse and ran. Ray pursued the appellant for several blocks until the appellant went into the basement of a church. The police arrived at the church and the appellant was apprehended.
Whitsett was transported to the hospital where she remained for several weeks. She sustained a contusion on the brain, fractures to her cheek bone, jaw and nose, and a laceration to her left little finger. Facial surgery was performed on Whitsett to prevent disfigurement.
The appellant contends the trial court erred by denying his motion for change of venue based on prejudicial pretrial publicity.
Nelson v. State, 440 So.2d 1130, 1131 (Ala.Cr.App.), cert. denied, 440 So.2d 1130 (Ala.1983).
"The defendant bears the burden of demonstrating that an impartial and fair trial, which will result in an unbiased verdict, can not be had at the present locale."
Crowe v. State, 435 So.2d 1371, 1376 (Ala.Cr.App.1983).
The appellant does not assert the existence of actual juror prejudice against him and the record does not support such an assertion. The record indicates that all of the jurors felt they could render a fair and impartial verdict in this case in spite of what they knew about this case. Therefore, we find there was no evidence that the jurors were biased against this appellant due to their knowledge of this case. See Anderson v. State, 362 So.2d 1296 (Ala.Cr.App.1978), (rev'd on other grounds); Nelson, supra; Robinson v. State, 430 So.2d 883 (Ala.Cr.App.1983), cert. denied, 430 So.2d 883 (Ala.1983).
The appellant introduced two articles from the Montgomery Advertiser and one article from the Alabama Journal in support of his motion for change of venue. These articles reported that the appellant committed the offense charged while he was on work release. However, the substance of these articles dealt with the criticisms of the Department of Corrections work release program by various public officials. The appellant was used as an illustration to support their criticism of the program.
" "
Certainly it could be argued that those articles were inherently prejudicial to the State's work release program. However, we do not find that these three articles biased the community against this appellant merely because it was reported that this appellant committed the robbery while on work release.
The existence of widespread publicity alone does not prove that a defendant cannot receive a fair trial due to that publicity. The effect of that publicity on the community must be shown. Anderson, supra. The appellant has failed to show that a "pattern of deep and bitter prejudice" existed in the community as a result of these articles. Robinson, supra.
The articles did report the prior criminal history of this appellant.
The articles in question were "factual in nature and non-inflammatory in character" with regard to the appellant. Crowe, supra at 1378. Thus, the appellant has failed to demonstrate to this court that he could not receive a fair and impartial trial as a result of the pre-trial publicity in this case.
The trial judge did not abuse his discretion by denying the appellant's motion for change of venue. (Authorities herein cited.)
The appellant contends the trial judge incorrectly ordered restitution in this case because Alabama's Restitution Law is unconstitutional. Specifically, the appellant alleges that both the Alabama and the United States Constitution require a trial by jury to determine the amount of restitution.
The Alabama Restitution to Victims of Crime Act is set out in §§ 15-18-65 through 15-18-78, Code of Alabama, 1975. Section 15-18-78(a) states "a restitution order in a criminal case shall be a final judgment and have all the force and effect of a final judgment in a civil action under the laws of the State of Alabama."
The appellant maintains that the language quoted above essentially makes restitution a civil judgment and, therefore, he is entitled to a trial by jury on the restitution amount under the Seventh Amendment of the United States Constitution and Article I, Section 11 of the Alabama Constitution.
Although this issue has not been addressed in our State courts, the Federal courts have decided this issue in regard to the Federal Restitution Law (the Victim and Witness Protection Act). The VWPA contains a similar provision to that found in § 15-18-78, Code of Alabama, 1975. Under 18 U.S.C. § 3579(h), an order of restitution may be enforced in the same manner as a judgment in a civil action.
The Federal courts have held that the inclusion of the enforcement method found in § 3579(h) does not transform restitution into a civil action. See United States v. Watchman, 749 F.2d 616 (10th Cir.1984); United States v. Brown, 744 F.2d 905 (2d Cir.1984); United States v. Satterfield, 743 F.2d 827 (11th Cir.1984); United States v. Keith, 754 F.2d 1388 (9th Cir.1985); United States v. Florence, 741 F.2d 1066 (8th Cir.1984); United States v. Palma, 760 F.2d 475 (3rd Cir.1985).
The Eleventh Circuit Court in Satterfield stated that whether a penalty is "civil or criminal is a question of legislative intent," Satterfield, supra at 836, and concluded that "... Congress intended to make restitution an element of the criminal sentencing process and not an independent action civil in nature." Satterfield, supra at 837.
In support of this conclusion, the Court pointed out several provisions of the VWPA.
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