Sanders v. State, 6 Div. 130

• Decision Date: 30 September 1965
• Docket Number: 6 Div. 130
• Citation: 278 Ala. 453,179 So.2d 35
• Parties: Riley SANDERS v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 35

179 So.2d 35

278 Ala. 453

Riley SANDERS v. STATE of Alabama.

6 Div. 130.

Supreme Court of Alabama.

Sept. 30, 1965.

J. Howard McEniry and A. Vincent Brown, Bessemer, for appellant.

Richmond M. Flowers, Atty. Gen., and John C. Tyson, III, Asst. Atty. Gen., for the State.

LAWSON, Justice.

Appellant, Riley Sanders, was tried on an indictment containing two counts. The first count charged him with the murder in the first degree of Thomas B. Marks, and the second count charged him with robbery of the same person.

Sanders was unable to employ counsel, so prior to arraignment the trial court, under the provisions of § 318, Title 15, Code 1940, appointed able members of the Jefferson County Bar to represent him.

Before arraignment, Sanders filed a motion 'to require the solicitor to furnish to his attorneys any information held by him in the form of purported confessions, statements by witnesses, charts, diagrams, hospital records, court records, notes from the Grand Jury proceedings or other information held by him * * *.' This motion was granted by the trial court 'only as to all statements, reports, notes, and charts of all witnesses who testified at the preliminary hearing or the Grand Jury against defendant, and of Dorothy Jo Patton whether she testified or not, and alleged confessions of defendant.'

Prior to arraignment Sanders filed a motion for a change of venue, which was overruled and denied.

Also, prior to arraignment, Sanders by demurrer challenged the indictment and each count thereof on various grands. The demurrer was overruled.

Upon arraignment, Sanders pleaded not guilty and not guilty by reason of insanity and not guilty by reason of self-defense. The latter plea was unnecessary, self-defense being covered by the plea of not guilty. See Roberson v. State, 183 Ala. 43, 62 So. 837. The court-appointed attorneys were present at arraignment. Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114.

At the trial, after the State had rested, one of the lawyers for Sanders advised the court that with the consent of the defendant he would like to withdraw the plea of not guilty by reason of insanity. That request was granted by the trial court. Thereupon counsel for Sanders advised the court that 'we would like to withdraw the not guilty plea to Count 2 of the indictment and plead guilty thereto.' In response to that motion or request, counsel for the State moved 'the Court to nol pros Count 2 of the indictment which charges the defendant, Riley Sanders, with robbery.' Counsel for Sanders advised the court that 'we have no objection to it.' The court stated: 'All right. I will grant the State's motion and enter a judgment to nol pros Count 2 of the indictment.' Such a judgment was entered.

The defendant, Sanders, rested without offering any testimony.

The jury found Sanders guilty of murder in the first degree and imposed the death penalty. Judgment and sentence were in accord with the verdict.

The appeal here is under the automatic appeal law applicable to cases where the death sentence is imposed. Act 249, approved June 24, 1943, General Acts 1943, p. 217, carried in the 1955 Cum. Pocket Part to Vol. Four, 1940 Official Code, and in the 1958 Recompiled Code as Title 15, §§ 382(1) et seq.

The attorneys who represented Sanders in the trial court were appointed to represent him on this appeal. They have filed a brief in his behalf.

Motion to Produce

In brief filed here on behalf of Sanders it is not contended that the trial court erred in its ruling on the motion to produce. But we will consider the court's action on that motion in view of the fact that § 389, Title 15, Code 1940, makes it the duty of this court to 'consider all questions apparent on the record' and to 'render such judgment as the law demands.' Sanders v. State, 259 Ala. 520, 67 So.2d 2. If the question reserved is of substance and might have affected the result, it is of no importance that the appellant or his counsel have not argued the question. Wesson v. State, 238 Ala. 399, 191 So. 249.

In arguing the motion to produce to the trial court, counsel referred to 'Parsons versus Alabama,' to the 'Jencks decision,' to '18 U.S.C.A. § 3500, The Jencks Act,' and to 'Brody versus Maryland.' No citation was given to any of the court decisions to which reference was made

We assume that 'Parsons versus Alabama' is the case of Parsons v. State, 251 Ala. 467, 38 So.2d 209. In that case we were concerned with the right of a defendant in a state court to obtain certain articles and reports in the possession of a United States attorney or agents of the Federal Bureau of Investigation. We were not there concerned with the right of a defendant in a state court to require the State prosecutor to deliver statements, articles or information in his possession to the defendant for use in the preparation of his defense. See Mabry v. State, 40 Ala.App. 129, 110 So.2d 250, petition for cert. dismissed, 268 Ala. 660, 110 So.2d 260; McCullough v. State, 40 Ala.App. 309, 113 So.2d 905, cert. denied, 269 Ala. 698, 113 So.2d 912.

The 'Jencks decision' to which reference was made by counsel is, no doubt, the case of Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1013, 1 L.Ed.2d 1103, decided by the Supreme Court of the United States on June 3, 1957, wherein it was held that the defense in a criminal prosecution was entitled, under certain circumstances, to obtain, for impeachment purposes, statements which had been made to government agents by government witnesses. See Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287. The decision in Jencks v. United States, supra, brought about the so-called 'Jencks Act' (71 Stat. 595, 18 U.S.C. § 3500), apparently designed to clarify and delimit the reach of Jencks.

We do not think the case of Jencks v. United States, supra, or the 'Jencks Act' can be said to authorize the relief which Sanders sought in his motion to produce. No constitutional provision was invoked in the Jencks case. The holding there was based on the 'standards for the administration of criminal justice in the federal courts.' Mabry v. State, supra. It has been said to apply only to federal criminal prosecutions. McKenzie v. State, 236 Md. 597, 204 A.2d 678. The 'Jencks Act' by its terms applies to criminal prosecutions brought by the United States.

We assume that counsel intended to cite to the trial court the case of Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, rather than 'Brody versus Maryland.' The Brady case, supra, dealt with the suppression by the State prosecutor of an extrajudicial statement made by Brady's companion, which Brady's counsel prior to trial had requested the prosecution to allow him to examine. The suppression of the confession or statement was held to be a violation of the due process clause of the Fourteenth Amendment to the Constitution of the United States.

We can see no violation of the rule of the Brady case, supra, in the action of the trial court in refusing to require the State to produce all that was requested by Sanders in his motion to produce. He was not entitled to a mere fishing expedition and the court, in effect, ordered the State to permit counsel for Sanders to see and examine the confessions made by Sanders and documents which would be useful to impeach State witnesses or attack their credibility. We are not called upon to say that Sanders was entitled to all of the relief given him by the trial court. We simply hold that the trial court did not err to a reversal in refusing to award him all of the relief prayed for in his motion to produce.

For an excellent treatment of the discovery rights of defendants in criminal prosecutions see the article by Hon. L. Drew Redden of the Birmingham Bar published in 22 Alabama Lawyer at page 115.

Motion for Change of Venue

The motion for change of venue was in the form of an affidavit signed by Sanders' attorneys wherein they state, in substance, that Sanders could not get a fair and impartial trial in the 'Bessemer Division of Jefferson County, Alabama,' because 'several newspaper articles have appeared in the Birmingham News and Birmingham Post-Herald and the Bessemer News pertaining to the alleged killing and alleged murder of Thomas B. Marks,' and because the alleged killing of Marks created intense excitement and resentment among the citizens of 'Bessemer Division, Jefferson County' and that many expressions of malice and hatred had been made by many citizens of Jefferson County, as well as expressions of opinion that Sanders was guilty of the murder. No other affidavit was introduced in support of the motion and no witness was called to give evidence in support thereof.

On the other hand, the State introduced a number of affidavits from prominent citizens who were so circumstanced as to be familiar with the attitude of the citizenry of the political subdivision wherein the case was set for trial toward Sanders and those affidavits refute the averments of the sworn motion for change of venue and contain expressions of opinion of affiants that Sanders could get a fair and impartial trial in the Circuit Court of Jefferson County, Bessemer Division.

On motion for change of venue in a criminal case, defendant has the burden of showing to the reasonable satisfaction of the court that a fair and impartial trial cannot be had and an unbiased verdict cannot reasonably be expected. Tiner v. State, 271 Ala. 254, 122 So.2d 738, and cases cited. We do not think the defendant, Sanders met that burden. We hold, therefore, that the motion for a change of venue was properly overruled and denied.

Demurrer

We have said that an indictment for murder in compliance with Form 79, § 259, Title 15, Code 1940, is sufficient. Noles v. State, 24 Ala. 672; Aiken v. State, 35 Ala. 399; Duncan v. State, 278 Ala. 145, 176 So.2d 840.

The first count of the indictment is in substantial compliance with that form...