Smith v. State

• Citation: 756 So.2d 892
• Decision Date: 19 December 1997
• Docket Number: No. CR-95-0093.,CR-95-0093.
• Parties: Ronald Bert SMITH, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

756 So.2d 892

Ronald Bert SMITH, Jr. v. STATE.

No. CR-95-0093.

Court of Criminal Appeals of Alabama.

December 19, 1997.

Opinion on Return to Remand April 3, 1998.

Rehearing Denied May 29, 1998.

Michael Lawrence Fees, Huntsville; Jackie D. Ferguson, Huntsville; Richard A. Kempaner, Huntsville; and Charles H. Pullen, Huntsville, for appellant.

Bill Pryor, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.

BASCHAB, Judge.

The appellant, Ronald Bert Smith, Jr., was convicted of the murder of Casey Wilson. The murder was made capital because it occurred during a robbery in the first degree or an attempted robbery, see ž 13A-5-40(a)(2), Code of Alabama 1975. He was sentenced to death.

Smith appeals from this conviction and sentence, raising 22 issues. However, because we are remanding this cause to the trial court for a hearing on two issues, we forgo discussion of the remaining issues at this time.

I.

The appellant argues that the indictment returned against him was irreparably tainted because Ed Starnes, the foreperson of the grand jury that returned the indictment against him, is the father of Bill Starnes, a Madison County assistant district attorney. He contends that Ed Starnes's presence on the grand jury was presumptively prejudicial to his right to due process.

Initially, the record reflects that the appellant raised this issue for the first time in his motion for a new trial. Rule 12.9, Ala.R.Crim.P., states:

"(a) Procedure. The grand jury proceedings may be challenged only by written motion to dismiss the indictment, filed in the circuit court and alleging grounds therefor.

"(b) Timeliness. A motion under section (a) of this rule may be filed after an indictment is returned and before arraignment or by such later date as may be set by the court; provided, however, that if counsel is appointed for the first time at arraignment, the court shall give counsel a reasonable time within which to file the motion."

There is no question that the appellant's motion was untimely. See, Pace v. State, 714 So.2d 316, 319-20 (Ala.Cr.App.1995), reversed in part and remanded, 714 So.2d 332 (Ala.1997). However, because this case involves the death penalty, we are required to search the record for plain error. Rule 45A, Ala.R.App.P.; Pace, supra.

The record indicates that, during the hearing on the appellant's motion for a new trial, the parties stipulated that Ed Starnes was the father of Bill Starnes, who is an assistant district attorney. It does not appear from the record that Bill Starnes was involved in any way with the investigation or prosecution of this case. The parties also stipulated that in Madison County the grand jury foreperson is picked randomly by drawing names from a hat. Neither party called witnesses to testify concerning this issue. The trial court denied the appellant's motion for a new trial.

In Cardwell v. State, 544 So.2d 987 (Ala. Cr.App.1988), we addressed a similar situation. In that case, the wife of an assistant district attorney served on the grand jury that indicted the defendant. On appeal, the defendant argued that her presence biased the grand jury and deprived him of his right to a fair trial. We remanded for the trial court to determine whether the wife discussed the details of that case with her husband at any time before the return of the indictment and whether she should be disqualified from serving as a grand juror, and to determine what role, if any, the wife had played in the grand jury's decision. We remanded the case¹ with the following instructions to the trial court:

"We remand this cause to the Circuit Court of Geneva County, Alabama with directions that the appellant and his counsel be present and that a hearing be conducted on the issue as originally raised. We further direct that a transcript of the hearing be prepared with appropriate findings set forth in writing by the trial judge determining whether or not there had been confidential information with reference to this cause exchanged between the Assistant District Attorney and his wife, or any discussions concerning this matter at any time between them, prior to the return of this indictment.

"Should the trial judge find that Mrs. Eldridge possessed no disqualifying knowledge when the grand jury was convened nor, in fact, were there any discussions prior to the return of the indictment, then Mrs. Eldridge was competent to serve as a member of the grand jury in question. Eddings v. State, 443 So.2d 1308 (Ala.Cr.App.1983). See also Noah v. State, 494 So.2d 870 (Ala.Cr.App.1986).

"Because of the necessity to clarify this issue, i.e., whether or not there were discussions between the Assistant District Attorney and his wife concerning this case prior to the convening of the grand jury, or during its deliberations, we hereby remand this cause for the hearing as stated. We further direct that a full hearing be conducted on the issues, as herein set forth, that both Mr. and Mrs. Eldridge be examined and that a transcript of such proceedings be promptly prepared and returned to this court, together with the trial court's written findings. Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956)."

544 So.2d at 988-89.

We are unable to determine from the record before us whether the assistant district attorney and his father discussed this case before the appellant was indicted. We therefore remand this cause and direct the trial court to conduct a hearing on this issue, with the appellant and his attorney present. The parties shall be permitted to subpoena such witnesses as they deem appropriate to testify at this hearing. The trial court shall make written findings of fact as to whether the assistant district attorney discussed this matter with his father at any time before the indictment was returned. If the trial court finds that Ed Starnes did not discuss this case with his son before the return of the indictment, then Mr. Starnes was competent to serve as a member of the grand jury in question. Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956); Cardwell, supra.

Alternatively, if the court finds that the assistant district attorney did discuss this case with his father before the indictment was returned, it shall make written findings of fact as to: (1) whether Assistant District Attorney Bill Starnes had any involvement in the investigation or prosecution of the appellant's case; (2) the number of times that Assistant District Attorney Starnes and his father, Ed Starnes, discussed this case before the appellant was indicted; and (3) the nature and content of each such discussion. The trial court shall then determine: (1) whether the fact that that the grand jury foreperson was the father of the assistant district attorney had any effect on the grand jury proceedings; and (2) whether, as a result of the discussions between Ed Starnes and his son, Ed Starnes should have been disqualified from sitting on the grand jury that indicted the appellant.

II.

The appellant next argues that his conviction and sentence should be reversed because of his contention that the State misrepresented to the jury the terms of the plea bargain Chad Roundtree, a codefendant, made with the State in return for his testimony against the appellant. The appellant further argues that Roundtree's testimony was vital to the State's case and that, because Roundtree significantly misstated the sentence that he would receive, he was denied the opportunity to prove Roundtree had a strong incentive to give false testimony against him.

The record indicates that Chad Roundtree testified he would be sentenced to life imprisonment with the possibility of parole in exchange for his testimony. On May 31, 1996, however, Roundtree was sentenced to 20 years in prison. The appellant did not present this issue to the trial court. Rather, he raised it for the first time in his second motion to supplement the record on appeal. The documents that were included with this motion were the case action summary and the sentencing order in Roundtree v. State (Second Supplemental Record at C. 94-95).

In its brief filed with this court, the State argues that the documents mentioned in the appellant's second motion to supplement the record were not offered to, or received by, the trial court. The State argues, therefore, that the record was improperly supplemented, and that the documents pertaining to Roundtree's case should be struck from this record.² We agree.

In Dobyne v. State, 672 So.2d 1319, 1327 (Ala.Cr.App.), 672 So.2d 1353 (Ala.Cr.App. 1994) (appeal after remand), affirmed, 672 So.2d 1354 (Ala.1995), cert. denied, 517 U.S. 1169, 116 S.Ct. 1571, 134 L.Ed.2d 670 (1996), we held that Rule 10(g), Ala.R.App. P., does not apply when the evidence sought to be included in the record on appeal was never offered to or received by the trial court. "Rule 10(g) applies to `admitted or offered evidence that is material to any issue.'" Id.,672 So.2d at 1327 (citing Rule 10(g), Ala.R.App.P.).

"The appellant ... contends that the trial court erred in denying his motion to supplement the record. This argument has no merit. The appellant sought to supplement the record on appeal by including matter that was not introduced at the appellant's trial. Rule 10(f), A.R.App.P., governs the omission of material that was actually a part of the record below. Richburg v. Cromwell, 428 So.2d 621 (Ala.1983); Williams v. City of Northport, 557 So.2d 1272 (Ala.Civ.App.1989), cert. denied, 498 U.S. 822, 111 S.Ct. 71, 112 L.Ed.2d 45 (U.S.Ala.1990); Thomas v. State, 550 So.2d 1057 (Ala.Crim.App.1989), aff'd, State v. Thomas, 550 So.2d 1067 (Ala. 1989). In its denial of the motion, the trial court clearly stated that the matter the appellant sought to have included had never been before the trial court. Thus, the evidence could not have been properly added to the record on appeal."

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