Sparks v. State

• Decision Date: 10 January 1984
• Docket Number: 8 Div. 937
• Citation: Sparks v. State, 450 So.2d 188 (Ala. Crim. App. 1984)
• Parties: Jerry Anthony SPARKS, alias Jerry Sparks v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 188

450 So.2d 188

Jerry Anthony SPARKS, alias Jerry Sparks v. STATE.

8 Div. 937.

Court of Criminal Appeals of Alabama.

Jan. 10, 1984.

Rehearing Denied March 20, 1984.

Certiorari Denied May 25, 1984

Alabama Supreme Court 83-687.

Dave Beuoy, Russellville, for appellant.

Charles A. Graddick, Atty. Gen. and Helen P. Nelson, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

On September 29, 1982, Jerry Anthony Sparks, the appellant, shot his ex-wife, Donna Berryman Sparks, five times with a .38 caliber pistol. Sentence was life imprisonment. Seven issues are raised on appeal.

I

Sparks contends that he should have been granted a change of venue because thirty-one members of the jury venire stated that they had either heard of, read about, or discussed the case.

The motion for change of venue was properly denied. As a procedural matter, the motion was not verified under oath and did not set forth specifically the reasons why a fair and impartial trial could not be had in Franklin County. Alabama Code Section 15-2-20 (1975).

Additionally, the defendant failed to sustain his burden of proof. Here, as in Murphy v. Florida, 421 U.S. 794, 802-03, 95 S.Ct. 2031, 2037, 44 L.Ed.2d 589 (1975), and Dobbert v. Florida, 432 U.S. 282, 301-03, 97 S.Ct. 2290, 2302-03, 53 L.Ed.2d 344 (1977), there was no showing that "the trial setting was inherently prejudicial or that the jury selection process permitted an inference of actual prejudice." Dobbert, 432 U.S. at 302, 97 S.Ct. at 2303. Sparks has not shown that the pretrial publicity either prejudiced an individual juror who was not struck for cause or caused pervasive hostility within the community. The fact that jurors have knowledge of a case does not automatically establish their prejudice or bias. Anderson v. State, 362 So.2d 1296, 1300 (Ala.Cr.App.1978). See also Magwood v. State, 426 So.2d 918 (Ala.Cr.App.1982), affirmed, Ex parte Magwood, 426 So.2d 929 (Ala.), cert. denied, Magwood v. Alabama, --- U.S. ----, 103 S.Ct. 3097, 74 L.Ed.2d 1355 (1983). The existence of widespread publicity in and of itself does not require a change of venue. Hopkins v. State, 429 So.2d 1146 (Ala.Cr.App.1983).

"But under Murphy, extensive knowledge in the community of either the crimes or the putative criminal is not sufficient by itself to render a trial constitutionally unfair. Petitioner in this case has simply shown that the community was made well aware of the charges against him and asks us on that basis to presume unfairness of constitutional magnitude at his trial. This we will not do in the absence of a 'trial atmosphere ... utterly corrupted by press coverage,' Murphy v. Florida, supra, 421 U.S., at 798, 95 S.Ct. at 2035. One who is reasonably suspected of murdering his children cannot expect to remain anonymous." Dobbert, 432 U.S. at 303, 97 S.Ct. at 2303.

The trial judge had the best opportunity to assess the prejudicial nature, if any, of the publicity given Sparks' murder of his ex-wife. No abuse of the judge's discretion in denying the motion has been demonstrated and his decision must be affirmed. Johnson v. State, 433 So.2d 473, 478 (Ala.Cr.App.1982), affirmed, 433 So.2d 479 (Ala.1983).

II

Fourteen of the veniremen stated that they had formed an opinion about the case. Sparks argues that his challenge for cause to each of these jurors should have been granted. Alabama Code Section 12-16-150(7) (1975). We disagree.

The voir dire of the jury was extensive. The record reveals that the trial judge examined those veniremen who indicated that they had formed an opinion and determined that those opinions were not "fixed" so as to render them biased or prejudiced to the accused. The judge granted a challenge for cause to those veniremen whose fixed opinions would influence their verdict and not allow a decision based solely on the evidence presented at trial.

"It is not the mere fact that a person has a personal or fixed opinion as to any of the issues involved in a criminal prosecution which renders that person incompetent to serve as a juror. However, a person is not qualified to serve as a juror where his opinion is so fixed that it would influence his decision so that he could not lay aside his opinion and try the case fairly and impartially according to the law and the evidence." Gwin v. State, 425 So.2d 500, 503 (Ala.Cr.App.1982), writ quashed, 425 So.2d 510 (Ala.1983).

III

Sparks' requested jury charge on criminally negligent homicide was properly refused. The shooting in this case involved no inadvertent risk creation. The killing was not accidental. Phelps v. State, 435 So.2d 158, 164-66 (Ala.Cr.App.1983).

Sparks' own testimony reveals that he deliberately shot his ex-wife five times at close range and that he "really don't know why" he shot her. All the evidence showed that Sparks and his ex-wife had been arguing over an amount of delinquent child support payments which Sparks owed her pursuant to a divorce decree. Here, there was simply no rational basis for a verdict of criminally negligent homicide. Alabama Code Section 13A-1-9(b) (1975).

IV

Immediately before the State called the last witness on its case in chief, defense counsel requested a mistrial based upon the alleged conduct of a circuit court judge, who had been the District Attorney, in qualifying and excusing jurors. That request was:

"MR. BEUOY (Defense Counsel): Judge, it has come to my attention since the time that we struck the jury and began the trial of this case that Judge John Jolly did some of the qualifying of jurors, and excused certain jurors from service for this week. Judge Jolly was the prosecuting attorney in this case at the preliminary hearing and was actively involved in the case up until the time he took the bench as Judge. We think his involvement to that extent is improper. We think it has resulted in potential bias or prejudice of jurors remaining against this Defendant, and at this time based upon this, we move for a mistrial."

Other than these allegations of defense counsel, the record only shows that Jolly, as District Attorney, endorsed the indictment. The record also shows that the judge who actually presided over Sparks' trial was a "special judge" who was appointed as a result of Judge Jolly's "having some connection with this case that prevented him from being able to sit on this case as a judge."

The general rule is that "a judge who, before his elevation to the bench, was a prosecuting officer, and who actively participated in the prosecution of the accused, was disqualified from sitting at the trial of the case." Annot., 72 A.L.R.2d 443, 503-04 (1960). "In most of the cases it has been held that a judge who, as prosecuting officer, signed an information or indictment, was disqualified from sitting in the case." 72 A.L.R.2d at 508. See also Annot., 16 A.L.R. 4th 550 (1982). Without question, Judge Jolly was disqualified from trying this case because of his prior activities as prosecuting attorney in the same case.

In Salm v. State, 89 Ala. 56, 8 So. 66 (1890), it was held that the incompetency of a judge to try a particular case extends to all preliminary proceedings, such as drawing the jurors and setting the day of trial. However, in that case the actions of the disqualified judge, who did not try the case, on the preliminary matters were taken over the objection and exception of defense counsel on the grounds of incompetency.

Here, we find that defense counsel's motion for a mistrial raising this issue was filed too late. This is an issue which should have been raised at the "earliest opportunity." Baker v. State, 52 Ala.App. 699, 700, 296 So.2d 794 (1974). If the facts causing disqualification are known, objection must be made before issue is joined and the trial is commenced, otherwise the accused will be deemed to have waived the objection. De Moville v. Merchants & Farmers Bank, 237 Ala. 347, 352, 186 So. 704 (1939); Collins v. Hammock, 59 Ala. 448, 452 (1877). This information could have been discovered before trial with the exercise of due diligence.

This Court takes judicial notice that Franklin County has only one circuit judge. Defense counsel was appointed to represent Sparks in December of 1982 after his indictment in November. However, Judge Jolly took office in January of 1983. See Alabama Reporter, 418-420 So.2d at XIV. The record does not reveal when or if Judge Jolly qualified the jury venire or when or if he excused some jurors. There is also no showing when the special trial judge was appointed. Likewise, the record is devoid as to whether Judge Jolly recused himself on his own motion or on that of defense counsel.

Here, the objection to Judge Jolly's alleged actions was made after the State had almost completed its case in chief. Although this issue was also raised in a motion for new trial, there was no attempt to establish either that Judge Jolly actually qualified the venire or excused some veniremen or that his alleged actions caused or resulted in prejudice. In fact, no argument or evidence was presented in support of any ground of the motion for new trial which was denied by operation of law as authorized by A.R.Crim.P.Temp. 13(d). Where no evidence is taken in support of a motion for new trial, a reviewing court can consider only the record of the trial in chief. Hayes v. State, 33 Ala.App. 364, 370, 33 So.2d 744 (1948).

In arguing his request for mistrial, defense counsel stated:

"I meant there was a possibility some jurors that might have been more receptive to the Defense may have been excused. I don't know who was excused. I've got a master jury list, some of them probably weren't served, some were excused for medical reasons, some deceased, but I'm sure some of them called and talked with Judge Jolly and his staff and were excused from service for various reasons. The reasons may have nothing to do with the case, but it's simply the fact Judge Jolly, who had been prosecutor in this case, did talk with jurors,...