Ross v. State
| Decision Date | 19 April 1991 |
| Citation | 581 So.2d 495 |
| Parties | Ex parte State of Alabama. (Re Judge ROSS, Jr. v. STATE). 89-1800. |
| Court | Alabama Supreme Court |
Don Siegelman, Atty. Gen., and Margaret S. Childers, Asst. Atty. Gen., for petitioner.
John Bertolotti, Jr., Mobile, for respondent.
The issue presented by this petition is whether an appellant may raise a Batson 1 claim under the posture of an allegation of ineffective assistance of counsel. More than three months after he was sentenced, the defendant, Judge Ross, Jr., alleged in his untimely pro se motion for new trial that his trial counsel had failed to adequately prepare for trial and had failed to challenge, under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the prosecutor's use of peremptory strikes to strike "several" blacks from the jury venire. In his motion, Ross also challenged the trial court's charge to the jury.
On November 28, 1988, Ross was convicted in the Mobile Circuit Court of murder and on December 16, 1988, the trial court sentenced him under the Habitual Felony Offender Act to life imprisonment without the possibility of parole and appointed Barbara A. Brown as his counsel on appeal. Ms. Brown filed a written notice of appeal and on March 29, 1989, more than three months after he was sentenced, Ross filed a pro se motion for new trial, making the aforementioned allegation of ineffective assistance of counsel. The trial court denied his motion, and Ross appealed. The Court of Criminal Appeals, 581 So.2d 494, reversed the judgment and remanded the case for the trial court to hold a full evidentiary hearing with reference to Ross's allegation that a Batson violation occurred and also with regard to Ross's claim of ineffective assistance of counsel. We granted the State's petition for the writ of certiorari.
This Court has expressly held that "in order to preserve the issue for appellate review, a Batson objection, in a case in which the death penalty has not been imposed, must be made prior to the jury's being sworn." (Emphasis added.) Bell v. State, 535 So.2d 210, 212 (Ala.1988); see Robinson v. Birmingham-Jefferson County Transit Authority, 555 So.2d 173 (Ala.1989); McGruder v. State, 560 So.2d 1137, 1142 (Ala.Cr.App.1989); Saffold v. State, 536 So.2d 970, 971 (Ala.Cr.App.1988); and Williams v. State, 530 So.2d 881, 884 (Ala.Cr.App.1988). In this case, Ross made no Batson objection until three months after he was sentenced, in an untimely motion for new trial. Thus, in light of our decision in Bell and in those cases expressly adopting its holding, we must conclude that Ross did not properly preserve for appellate review the issue of the composition of the jury under Batson.
The issue then becomes whether Ross's untimely motion for new trial is sufficient to raise his claim of ineffective assistance of counsel. An appellate court's review on appeal is limited to matters seasonably raised in the trial court. "Even questions involving constitutional rights must be seasonably raised at the trial court level." Johnson v. State, 480 So.2d 14, 17-18 (Ala.Crim.App.1985); see Spradley v. State, 414 So.2d 170, 172-73 (Ala.Cr.App.1982); and Smoke v. State, 347 So.2d 564 (Ala.Cr.App.1977). Rule 24.1(b), Ala.R.Crim.P., states the following:
Ross delayed more than 90 days from his date of sentencing before filing his motion for new trial. The trial court has no jurisdiction to consider an issue raised in an untimely motion for new trial. Ex parte Hayden, 531 So.2d 940, 941 (Ala.Crim.App.1988). A claim first presented in an untimely motion for new trial is not preserved for appellate review and may not be considered on appeal from the judgment of conviction. Ex parte O'Leary, 417 So.2d 232, 240 (Ala.1982).
Thus, for purposes of Ross's appeal, both his claim under Batson and his claim of ineffective assistance of counsel are procedurally barred. In all but capital cases, alleged error in a criminal proceeding must be properly preserved before an appellate court will examine it; therefore, it is incumbent upon defense counsel to adequately preserve alleged errors in a proceeding by making an appropriate and timely objection.
Perhaps judicial time and energy could be conserved by remanding this case and requiring the trial court to hold a hearing, rather than leaving the defendant to file a Rule 32, Ala.R.Crim.P. (Temp. Rule 20), petition at a later date. ...
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