Speaks v. State, 5 Div. 954

• Citation: 494 So.2d 112
• Decision Date: 09 April 1985
• Docket Number: 5 Div. 954
• Parties: Anthony Dale SPEAKS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 112

494 So.2d 112

Anthony Dale SPEAKS v. STATE.

5 Div. 954.

Court of Criminal Appeals of Alabama.

April 9, 1985.

Rehearing Denied May 14, 1985.

John Percy Oliver II and Lee Sims, Dadeville, for appellant.

Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.

BOWEN, Presiding Judge.

Anthony Dale Speaks was indicted and convicted for the sale of marijuana in violation of Alabama Code 1975, § 20-2-70. Sentence was thirteen years' imprisonment. Restitution was ordered in the amount of $400. Six issues are raised on appeal.

I

The first issue presented for review is whether a judge may order a severance immediately before trial because of an insufficient number of jurors which are required for a joint trial of two defendants in the absence of a showing of any particular prejudice to a defendant.

The one-count indictment charged the defendant and Joseph S. Jones with the sale of marijuana to Randy Mobley on October 28, 1983.

On the day the defendant and Jones were scheduled for trial, the State did not specifically request a severance, but called only the defendant's case for trial because there were fewer than the minimum number of jurors required for a joint trial of two defendants under Rule 15.4, A.R.Cr.P.Temp.

The trial judge stated that "[i]f counsel for both defendants would consent to striking a jury with less than thirty-six the Court would entertain a motion to try the case jointly." The defendant's attorney refused this offer and requested a continuance "because the preparation of the case was done with the understanding that it was going to be a jointly tried case" and the severance "dramatically changes the manner in which it would be necessary that the case be tried."

Defense counsel for co-defendant Jones stated that he "would personally prefer separate trials," but had to "try Joey Jones this term to look after his best interests."

When the defendant refused to waive the minimum jury requirement, the trial judge ordered a severance.

Rule 15.4(c), A.R.Cr.P.Temp. provides that "[d]efendants joined in the same indictment, ... shall be jointly tried unless severed as provided in sections (d) through (g)." A severance in this case was ordered because the minimum required number of venirepersons from which to strike a jury was not present. The trial court made no finding that the joinder of the defendant and Jones would prejudice either the state or either defendant.

A trial court may order a severance, without a finding of prejudice, with the agreement of all the parties. Rule 15.4(d). Here, there was no agreement by the parties.

Persons charged in the same indictment generally should be tried together. United States v. Parodi, 703 F.2d 768, 779 (4th Cir.1983); United States v. Russell, 703 F.2d 1243, 1247 (11th Cir.1983). However, it is a matter of discretion for the court, and not a right of the parties, to grant separate trials to defendants jointly indicted. Burkett v. State, 154 Ala. 19, 45 So. 682 (1908); Hawkins v. State, 9 Ala. 137 (1846). Severance is a matter committed to the sound discretion of the trial judge. United States v. Smith, 550 F.2d 277 (5th Cir.), cert. denied, Wallace v. United States, 434 U.S. 841, 98 S.Ct. 138, 54 L.Ed.2d 105 (1977).

At the hearing on the motion for new trial, defense counsel argued:

"[W]e objected to the severance because up to that point on the day of trial we had prepared our case based solely on the fact that these two cases would be tried together and that Mr. Jones would take the witness stand and deny any involvement in it and we presented evidence from Mr. Jones' family--we did not call Mr. Jones to the stand but we presented evidence from Mr. Jones' family that he wasn't there."

We find the trial judge did not abuse his discretion in ordering the severance. "A trial court has the authority to tightly control its docket." United States v. Wirsing, 719 F.2d 859, 866 (6th Cir.1983).

"Trial judges necessarily require a great deal of latitude in scheduling trials. Not the least of their problems is that of assembling the witnesses, lawyers, and jurors at the same place at the same time, and this burden counsels against continuances except for compelling reasons. Consequently, broad discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary 'insistence upon expeditiousness in the face of a justifiable request for delay' violates the right to the assistance of counsel." Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983).

We further find no merit to the defendant's claim that the ordering of the severance and the denial of a continuance prevented him from being fully prepared for trial. Defense counsel made no representation that co-defendant Jones would have testified in his own behalf if he were tried jointly with the defendant--only that he "might have taken the stand as defendant and would not as a witness in another case."

At trial, the mother and father of co-defendant Jones testified as defense witnesses that their son was home on the night when the marijuana sale occurred. The defendant did not call Jones to testify.

Proof that Jones was innocent did not tend to establish the defendant's innocence. The defendant's guilt was not inconsistent with Jones' innocence. Here, as in United States v. Hyde, 448 F.2d 815, 832 (5th Cir.1971), cert. denied, 404 U.S. 1058, 92 S.Ct. 736, 30 L.Ed.2d 745 (1972), there were no mutually exclusive theories of guilt.

"In his pre-trial motion for severance, Flowers asserted that his co-defendants could give exculpatory evidence and that they would be unwilling to do so as co-defendants. He does not on appeal assert this contention as a basis for a right to severance. Even if he had, it would be of little avail. The trial judge has discretion in determining whether to grant a severance. Smith v. United States, 5 Cir.1967, 385 F.2d 34. Because of this discretion and the advantage of a joint trial in certain cases, United States v. Kahn, 7 Cir.1967, 381 F.2d 824, 840, a defendant must clearly show prejudice to require reversal on the basis of a failure to sever. A number of courts have held that the mere unsupported allegation that a co-defendant would be more likely to give exculpatory testimony at a separate trial is not grounds for a finding of such prejudice. E.g. Smith v. United States, 5 Cir.1967, 385 F.2d 34; United States v. Kahn, 7 Cir.1967, 381 F.2d 824 at 841." Hyde, 448 F.2d at 832, n. 26.

Compare United States v. Echeles, 352 F.2d 892 (7th Cir.1965).

II

On the 23rd of March, 1984, the defendant filed motions to produce "the substance of any oral communications between the Defendant and any law enforcement official" and any physical evidence the prosecution would use at trial. Trial began on April 5, 1984.

At a condemnation hearing held on March 21, 1984, counsel for both the defendant and Jones stipulated to the laboratory results "for the purpose of this hearing only."

The record contains no ruling on the production motions. In denying the defendant's motion for new trial, the judge made the following finding.

"Although it is probably not clear from the transcript of the instant hearing counsel also argued that they were denied an opportunity to examine the marijuana in this case prior to trial. Defense counsel argued that the State never contacted them concerning the availability of the evidence for examination. The District Attorney's Office argued that the State was never contacted by the defense to arrange for examination.... Counsel did not waive any other grounds cited in their motion."

At trial, when the expert testified to the results of his examination of the plant material, defense counsel objected on the ground of improper predicate. When the State moved to introduce the marijuana, defense counsel approached the bench and his remarks were "inaudible to reporter." Defense counsel did not cross examine the State's expert.

The defendant also argues that the "[f]ailure of the trial court to order the District Attorney to disclose the substance of any oral statements made by the defendant before the arrest violated A.R.Cr.P. 18.1(a) and deprived this defendant of due process ..." Appellant's Brief, p. 15. There was no evidence that the defendant made any statement after his arrest.

The motions to produce were filed thirteen days before trial. The record does not show that these matters were brought to the attention of the trial judge. There was no showing that the judge denied the motions or refused to rule on them.

At the condemnation hearing held fifteen days before trial, defense counsel continually objected to the State's repeated attempts to elicit the defendant's conversation with the undercover officer. The trial judge sustained those objections, finding that it was not necessary "to go into that."

At trial, when one of the undercover agents was asked to relate his conversation with the defendant when the marijuana was purchased, defense counsel objected because "this was not produced for us." This objection was overruled.

Rule 18.1, A.R.Cr.P.Temp., became effective April 1, 1984--four days before the defendant's trial on April 5th. This rule requires the trial judge, on motion of the defendant, to order the district attorney "[t]o disclose the substance of any oral statements made by the defendant before or after arrest to any law enforcement officer, ... which the state intends to offer in evidence at the trial."

Considering the fragmented state of the record and the fact that there was no ruling on the motions by the trial judge, this Court has no option but to affirm the action of the trial judge. There is simply nothing in the record to show any error.

III

At the condemnation hearing held before trial, the trial judge ruled that the testimony and evidence in that proceeding could not in any way be used at trial. The defendant argues...