Seawright v. State, 3 Div. 122

• Decision Date: 20 August 1985
• Docket Number: 3 Div. 122
• Citation: 479 So.2d 1362
• Parties: Dewitt SEAWRIGHT v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1362

479 So.2d 1362

Dewitt SEAWRIGHT v. STATE.

3 Div. 122.

Court of Criminal Appeals of Alabama.

Aug. 20, 1985.

Rehearing Denied Oct. 8, 1985.

Certiorari Denied Nov. 27, 1985

Alabama Supreme Court 85-38.

Charles M. Law, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and William D. Little and Rivard Melson, Asst. Attys. Gen., for appellee.

PATTERSON, Judge.

Appellant, Dewitt Seawright, was indicted by the July 1984 term of the Butler County Grand Jury for the capital murder of Douglas McNaughton. A jury found appellant guilty as charged in the indictment on September 12, 1984. At the sentencing phase the jury recommended that appellant be sentenced to life imprisonment without parole. The trial court subsequently imposed a sentence of life imprisonment without parole. Appellant filed a pro se notice of appeal and trial counsel was appointed to represent appellant on appeal. Three issues are raised on appeal, none of which require a detailed recitation of the facts.

I

Appellant first contends that the trial court committed prejudicial error in overruling his motion to change venue. At the hearing on this motion appellant offered no evidence as to the extent or content of any media coverage. Appellant called nine witnesses, and only one witness, Ms. Jamie Gulley, unequivocally stated that she did not believe appellant could get a fair trial. A second witness, Ms. Clara Martin, stated she did not think he could get a fair trial, although she had not talked with anyone about the matter. Ms. Martin stated on cross-examination that she felt a jury in Butler County could decide the case based on the evidence. A third witness, Ms. Daisy Hines, stated she did not know if appellant could get a fair trial in Butler County because she did not know what a fair trial was. Eventually Ms. Hines stated that she personally felt appellant was guilty, based on what she had read in the newspaper, although she could not remember what she had read. Finally, Ms. Lucy Davidson stated that she did not know whether appellant could get a fair trial. The remaining witnesses called by appellant stated that they believed he could get a fair trial in Butler County based on the evidence presented. The State then produced five witnesses who testified that, in their opinion, appellant could get a fair trial in Butler County.

The trial court reserved ruling on the change of venue motion until after the jury venire had been questioned. The seventy-eight members of the venire were questioned in panels of twelve. Those who expressed a fixed opinion were stricken from the venire. We note that numerous members of the venire knew, or knew of, the victim, but a larger number did not know the victim. Each panel was asked by defense counsel the following question:

"Does anybody believe, this is the question I want you to answer the way you really feel and not the way you hope things are, that a black man like Dewitt Seawright would have difficulty in getting a fair trial in Butler County because he's charged with killing a prominent white man? Does anybody have any doubt in their mind about that?"

No member of the panels responded affirmatively to this question. We note that the trial court allowed extensive voir dire examination of the venire and liberally excluded members for cause.

The appellant had the burden of proving to the reasonable satisfaction of the trial court that a fair and impartial trial could not be had in Butler County and an unbiased verdict could not be reasonably expected. See Anderson v. State, 362 So.2d 1296 (Ala.Crim.App.1978), and cases cited therein. See also Magwood v. State, 426 So.2d 929 (Ala.), cert. denied, 462 U.S. 1124, 103 S.Ct. 3097, 77 L.Ed.2d 1355 (1983). "An accused is entitled to a change of venue if he can affirmatively demonstrate to the trial court that the pre-trial publicity has so saturated the community as to have a probable impact on the prospective jurors or that there is a connection between the publicity generated and the existence of actual jury prejudice." Jackson v. State, [Ms. 6 Div. 767, April 9, 1985] (Ala.Crim.App.1985).

Appellant introduced no evidence of the extent or content of any pre-trial publicity which may have been generated by the case. It is evident from the testimony of the witnesses on the motion to change venue and from the jury venire that accounts of the incident appeared through local media, but no one could remember any specific articles or reports which may have influenced them. As was stated in Jackson:

"We do not believe that the pre-trial publicity in the case at bar even remotely approaches the magnitude of prejudicial publicity condemned by the Supreme Court in Estes [v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965) ], Sheppard [v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966) ], and Irvin [v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961) ]. Outside influences had not so infiltrated the community at large as to render the existence of community prejudice against the appellant probable. Here, there was no trial atmosphere 'utterly corrupted by press coverage.' Dobbert v. Florida, 432 U.S. at 302 [97 S.Ct. 2290 at 2302-03, 53 L.Ed.2d 344] (quoting Murphy v. Florida, 421 U.S. at 798 [95 S.Ct. 2031, 2035, 44 L.Ed.2d 589] )."

We do not here engage in an extensive review of law concerning prejudicial pre-trial publicity because appellant's brief seems to concentrate on the premise that an unknown black man of low economic status cannot get a fair trial in rural Butler County when he is charged with murdering a fairly well known white man who sells insurance and operates a convenience store. Appellant states in his brief:

"In a small county such as Butler, the jurors generally know each other and do not want to buck the community sentiment and normally favor conviction regardless of the evidence and especially regarding assaultive crimes by blacks against whites there has been a long tradition, particularly in small rural counties, to convict on almost any evidence to serve as a deterrent to blacks."

Such a broad and sweeping contention is totally unsupported by any evidence contained in the record of these proceedings. There was no evidence before the trial court or this court that would support such a theory. Furthermore, we do not consider persuasive appellant's argument that the victim was so beloved in the community that a fair trial would be impossible. Although it is true that thirty-six members of the venire knew, or knew of, the victim or his family, it is also true that forty-two members of the venire did not know the victim or his family. The sole evidence in support of the appellant's contention that he could not receive a fair trial came from the witnesses he called at the hearing on the motion for change of venue. "The mere belief of the defendant or of the witnesses he is able to produce that he cannot receive an impartial trial is not enough to entitle him to a change of venue." Sprinkle v. State, 368 So.2d 554, 558 (Ala.Crim.App.1978), writ quashed, 368 So.2d 565 (Ala.1979); see also Ellison v State, 373 So.2d 1247, 1248 (Ala.Crim.App.1979).

We have carefully reviewed the testimony of the witnesses produced at the change of venue hearing and the voir dire of the jury venire and conclude that appellant's contentions are wholly without merit. The trial judge properly exercised his discretion in denying appellant's motion for a change of venue. See Fike v. State, 447 So.2d 850 (Ala.Crim.App.1983).

II

Appellant next contends that certain statements made by him, while in custody at the Montgomery Police Department, should have been suppressed as being illegally obtained. The State filed a pre-trial motion to determine the admissibility of these statements. A hearing was held on the motion and the trial court found the statements to be admissible at trial.

On May 2, 1984, at approximately 5:40 p.m., Officer L.O. Perdue interrogated appellant at the Montgomery Police Department. Perdue advised appellant of his Miranda rights. A "standard rights form the police department uses" was signed by both appellant and Perdue. Perdue testified that he asked appellant if he understood the rights stated on the form and appellant responded that he did. Perdue testified that he read the form to appellant and then "went over it again and asked him if he understood he could have a lawyer present if he wanted to have one," and Perdue said, "he stated that he would talk to me concerning this case." Another officer was also present during these proceedings. Perdue stated that no threats or promises were made and that appellant made the statement freely and voluntarily. Appellant then told Perdue that Mr. McNaughton had allowed him to use the car to go to the liquor store and told him to take what cash he needed from the cash bag in the car, and that appellant could use the car as long as he needed. Appellant stated he purchased some wine, then went to Montgomery. This statement was not written or recorded.

The parties then stipulated to the following events. At 8:30 p.m. on the same date, Sheriff Worthington of the Butler County Sheriff's Department interviewed appellant. Appellant refused to make a statement and requested an attorney. The Sheriff left as soon as appellant made this request. At 9:15 p.m. Investigator Richard Teague interviewed appellant, advised him of his Miranda rights and took a second oral statement. This second statement was not used at trial and its contents were not part of the stipulation. Teague suggested that appellant make a recorded statement, and he set up video equipment. Appellant then refused to talk and requested an attorney for the second time. No objection was made to these stipulated facts, nor has any argument been raised on appeal concerning the import of Teague's interview with appellant. The stipulation does not inform this court of the circumstances leading up to...