Smith v. State

• Decision Date: 25 March 1994
• Citation: 646 So.2d 704
• Parties: David Russell SMITH, Sr. v. STATE. CR 92-1726.
• Court: Alabama Court of Criminal Appeals

Page 704

646 So.2d 704

David Russell SMITH, Sr. v. STATE.

CR 92-1726.

Court of Criminal Appeals of Alabama.

March 25, 1994.

Rehearing Denied May 27, 1994.

Certiorari Denied Aug. 12, 1994

Alabama Supreme Court 1931275.

G. Jean Darby, Florence, for appellant.

James H. Evans, Atty. Gen., and Shirley Brown, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

David Russell Smith, Sr., the appellant, was convicted of the murder of Milton T. Russell, and of attempting to murder Michael David Russell and Jimmy Waddell. He was sentenced to three concurrent terms of life imprisonment. He raises five issues on this direct appeal from those convictions.

I.

The appellant contends that his motion for a change of venue should have been granted due to what he alleges was extensive pretrial publicity that saturated the county.

The crimes occurred at the Russell Sporting Center in Florence, Alabama, on November 7, 1992. The appellant was arrested on November 23, 1992. Trial was held in April 1993. The appellant filed a motion for change of venue on January 10, 1993, stating that "[t]he alleged [murder] victim, Milton R. Russell, was a well-known citizen and business owner in this county for many years. He had high public visibility and his alleged murder evokes great passion and prejudice in this community." C.R. 34.

A pretrial hearing was held on the appellant's motion for a change of venue on February 22, 1993. In support of his motion, the appellant introduced 18 newspaper articles and a videotape containing "several news broadcasts from television stations." R. 135. The trial judge denied the motion on February 25, 1993. C.R. 56. After the conclusion of the voir dire of the jury and the exercise of the challenges for cause, defense counsel renewed his motion for a change of venue. R. 1000. The appellant's motion for change of venue was properly denied.

The voir dire of the jury venire began on April 19, 1993. R. 218. The record shows that there were 52 members on the venire. When asked "How many of you have heard about this case from any source whatsoever?" every veniremember stood. R. 290. Thereafter, each veniremember was individually voir dired in chambers. That voir dire was extensive and thorough.

Our review shows that the appellant challenged for cause 25 of the 52 venirepersons ¹. Nineteen of those challenges were granted. R. 939-50. Each of the remaining venirepersons expressed a beliefs or opinion that he or she could be fair and impartial and render a verdict based upon the evidence.

Although the appellant established the existence of substantial pretrial publicity, there was no showing that the publicity prejudiced the venire against the appellant. "It is well established in Alabama ... that the existence of pretrial publicity, even if extensive, does not in and of itself constitute a ground for changing venue and thereby divesting the trial court of jurisdiction of an offense." Ex parte Fowler, 574 So.2d 745, 747 (Ala.1990).

"The defendant has failed to satisfy the test set out in Ex parte Grayson, 479 So.2d 76, 80 (Ala.), cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d 157 (1985), because he has not proved that 'there existed actual prejudice against the defendant or that the community was saturated with prejudicial publicity.' 'Newspaper articles or widespread publicity, without more, are insufficient to grant a motion for change of venue.' Id. 'The standard of fairness does not require jurors to be totally ignorant of the facts and issues involved.' Id. 'The relevant question is not whether the community remembered the case, but whether the jurors at [the defendant's] trial had such fixed opinions that they could not judge impartially the guilt of the defendant.' Patton v. Yount, 467 U.S. 1025, 1035, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847 (1984).

" 'To ensure that the defendant has a fair and impartial jury, it is not necessary that the veniremembers be totally ignorant of the facts surrounding the case. Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2035, 44 L.Ed.2d 589 (1975). "It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." Irvin v. Dowd, 366 U.S. 717, 724, 81 S.Ct. 1639, 1643, 6 L.Ed.2d 751 (1961).'

"Ex parte Whisenhant, 555 So.2d 235, 238 (Ala.1989)."

Kuenzel v. State, 577 So.2d 474, 483-84 (Ala.Cr.App.1990), affirmed, 577 So.2d 531 (Ala.), cert. denied, 502 U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991).

"It is not required ... that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court."

Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961).

"A criminal defendant is not constitutionally entitled to trial by jurors ignorant about relevant issues and events.... 'The relevant question is not whether the community remembered the case, but whether the jurors ... had such fixed opinions that they could not judge impartially the guilt of the defendant.' ... In determining the existence of presumptive prejudice, a court must consider the totality of the circumstances, including the type of pretrial publicity, the time lapse between peak publicity and the trial, and the credibility of prospective jurors who indicate during voir dire that they could be impartial despite having been exposed to pretrial publicity about the case.... We note that 'the presumptive prejudice standard ... is only "rarely" applicable ... and is reserved for an "extreme situation." ' ... 'In short, the burden placed upon the petitioner to show that pretrial publicity deprived him of his right to a fair trial before an impartial jury is an extremely heavy one.' "

United States v. Lehder-Rivas, 955 F.2d 1510, 1524 (11th Cir.), cert. denied, 506 U.S. 924, 113 S.Ct. 347, 121 L.Ed.2d 262 (1992).

Our review convinces this Court that the trial judge did not abuse his discretion in denying the motion for a change of venue.

" 'The trial court's findings of impartiality should be overturned only for "manifest error." Irvin v. Dowd, 366 U.S. 717, 724, 81 S.Ct. 1639, 1643, 6 L.Ed.2d 751 (1961).' Fortenberry v. State, [545 So.2d 129 (Ala.Cr.App.1988), affirmed, 545 So.2d 145 (Ala.1989), cert. denied, 495 U.S. 911, 110 S.Ct. 1937, 109 L.Ed.2d 300 (1990) ]. 'Absent a showing of abuse of discretion, a trial court's ruling on a motion for change of venue will not be overturned. Ex parte Magwood, 426 So.2d 929, 931 (Ala.), cert. denied, 462 U.S. 1124, 103 S.Ct. 3097, 77 L.Ed.2d 1355 (1983).' Ex parte Grayson, 479 So.2d [76, 80 (Ala.1985), cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d 157 (1985)]. We find no abuse of discretion by the trial court or manifest error in his finding of impartiality."

Oryang v. State, 642 So.2d 979 (Ala.Cr.App.1993) (every member of venire indicated that they had been exposed to pretrial publicity). See also Thomas v. State, 539 So.2d 375, 394 (Ala.Cr.App.) ("[a]t the beginning of voir dire, every member of the venire stated he or she had read or heard about this case"), affirmed, 539 So.2d 399 (Ala.1988), cert. denied, 491 U.S. 910, 109 S.Ct. 3201, 105 L.Ed.2d 709 (1989). Here, as in Thomas, 539 So.2d at 395, the appellant has "failed to show a connection between the pre-trial publicity and the existence of actual jury prejudice."

II

The appellant contends that his motion to suppress the statements he made to Florence Police Officer Keith Joiner should have been granted.

Officer Joiner was one of the first law enforcement officers to arrive at the scene of the homicide. The officers were responding to a report of a shooting. At that time no one knew what actually had occurred and everyone at the scene was a suspect. Officer Joiner testified that "I was really unclear at that time who was the shooter and who was the shootee and how many people had been shot." R. 150.

As officers with weapons drawn approached the Russell Sporting Center, the appellant walked toward them from the building. Florence Police Officer Kimberly Hastie ordered the appellant to stop and to lie down on the pavement. Hastie testified: "My main concern was to get him to stop and put him on the ground in case he was the suspect, or if he was harmed to get him out of the line of fire." R. 192. Officer Joiner, who was with Officer Hastie, testified at trial that the appellant "was covered in blood, and I asked him had he been shot." R. 147. Joiner stated that the appellant replied: "I shot and killed Milton. He's inside. You may want to check on him." R. 148-49. The trial judge ruled that this statement was admissible in the State's case-in-chief. C.R. 87.

Officer Joiner testified further that shortly thereafter, Florence Police Chief Richard Thompson arrived and "as he was coming up he asked me, 'Who's the shooter?' And before I could respond the suspect said, 'I am--' something." R. 149. Thompson testified that he looked at Officer Joiner because he thought the appellant was a victim and asked Joiner, "Do we know where the shooter is?" R. 203. He stated that before Officer Joiner could answer, the appellant rolled over and stated: "I'm the shooter. I killed Milton Russell. That damn boy of his shot me with a deer rifle. Now, get me an ambulance." R. 203-04. Thompson then obtained...