Spears v. State

• Decision Date: 15 April 1994
• Citation: 647 So.2d 15
• Parties: Thomas Wayne SPEARS v. STATE. CR 93-27.
• Court: Alabama Court of Criminal Appeals

Page 15

647 So.2d 15

Thomas Wayne SPEARS v. STATE.

CR 93-27.

Court of Criminal Appeals of Alabama.

April 15, 1994.

Rehearing Denied June 17, 1994.

Certiorari Denied Aug. 12, 1994

Alabama Supreme Court 1931338 and 1931362.

Stuart C. Dubose, Jackson, and James E. Kimbrough, Jr., Mobile, for appellant.

James H. Evans, Atty. Gen., and Jack Willis, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Thomas Wayne Spears, the appellant, pleaded guilty and was convicted of manslaughter in connection with the 1987 death of his wife, Leslie Marie Spears. His sentence of ten years' imprisonment was "split" with one year to serve and five years' probation.

This case has a lengthy procedural history. The State appealed the circuit court's pretrial order granting a portion of the appellant's motion to suppress evidence found at the scene of the crime. State v. Spears, 560 So.2d 1145 (Ala.Cr.App.1989), on return to remand, 570 So.2d 888 (Ala.Cr.App.1990).

The appellant's first trial resulted in a mistrial when the prosecutor violated a "gag" order of the trial court. The appellant's case was called for trial on October 16, 1991. On that day the jury was struck, and the trial judge instructed the attorneys not to discuss the case with the media.

"All right. Let the record reflect that the State's attorneys will not make any direct or indirect reference to the existence of a purported diary of anyone during ... [in original] during opening statements, and the remainder of the motion in limine [to prevent any mention of the diary] will be taken up at a later time. ¹

"One other thing is I'm going to instruct you gentlemen, just as I am these jurors, not to discuss--because I don't know how long this case will last--not to discuss this case during the trial with any member of the media, any newspaper reporter, or any reporter with any radio station." Mandamus/trial 85. ²

On October 18, 1991, after ten witnesses had testified for the State, defense counsel requested a mistrial based on a newspaper article that appeared in The Mobile Press Register on October 17, 1991. Mandamus/trial R. 399. That article stated, in pertinent part:

"[Clarke County district attorney Robert] Keahey said Thursday morning that Mrs. Spears had kept a diary found by police during their investigation. The diary, according to Keahey, makes several references to Mrs. Spears' thoughts and emotions about her husband right up to the time of the shooting." C.R. 491. ³

The district attorney responded to the motion for mistrial by stating: "If this was [the trial judge's] instructions [for the attorneys not to discuss the case with any member of the media], I did not recall it. I remember [the trial judge] telling the jury." Mandamus/trial R. 399. At that time, the trial judge polled the jury and determined that no juror had heard or read any media account of the trial.

Mandamus/trial R. 401. In denying the motion for mistrial, the trial judge stated:

"I have pending before me a motion for a mistrial by the attorneys for the defendant, for an allegation that the district attorney of the First Judicial Circuit violated specific orders of this Court, specifically, a gag order.

"I find that the district attorney did violate that, and I want to say on the record that this is one of the most serious matters going to the integrity of this judicial circuit that this Court has ever been confronted with in almost--over 23 years of the practice of law.

"However, I think that in ruling on the defendant's motion, the question becomes one of whether or not there is any potential prejudice to these proceedings. I do not find that in the questions I have asked the jury. I will state on the record: I do not know at this time what the proper sanctions are, but I'm going to proceed to see whether they are a contempt citation. If that's so, the district attorney will be cited for contempt. If it's a disciplinary by the Alabama State Bar, this Judge is going to forward a copy of these proceedings to the Alabama State Bar, and I guess I need to put in there: if there is any further violation, it will be a direct contempt of this Court's order, and I will immediately declare a mistrial on my own motion. Do you understand that, Mr. Robert Keahey? "MR. ROBERT D. KEAHEY: Yes, sir. I need to note that this morning, Ms. Clarke, the reporter from The Mobile Press [Register], I spoke briefly with her this morning. She asked me what the jury venire was composed of and I told her that I didn't have it before me and that I wasn't sure, that I didn't have it before me, and that it would be Monday or Tuesday before we got through."

"THE COURT: That's the Court's ruling." Mandamus/trial R. 402-03.

After that, the State "join[ed] in with the defendant at this time and move[d] for a mistrial." Mandamus/trial R. 406.

"MR. [RONNIE E.] KEAHEY [Assistant district attorney]: Judge, of course, the State of Alabama, and certainly as far as I'm concerned, and I feel like as far as Bobby [Robert D. Keahey] is concerned, I don't want any impropriety to go on, to prejudice anybody. I'm here for justice, honesty and fairness, and I'm going to do my job the best I can, as long as I do it, and in view of these circumstances that have been brought, it bothers me a great deal as far as the trial of this case is concerned, and the State is going to join in with the defendant at this time and move for a mistrial." Mandamus/trial R. 405-06.

In response the trial judge stated:

"THE COURT: I'll say this on the record: I have known Mr. Ronnie Keahey for over twenty years as a practicing attorney, and I have said it in his presence and out of his presence: I have never had any question about his integrity or his professionalism as an attorney. I respect him highly. I have never known him to do anything as an attorney that I would consider to be improper. This trial has consumed a considerable amount of judicial time, also. I've got to determine whether there's any probable prejudice. That's my understanding at this point in the proceedings, and it may change from today, but I don't discern right now that there's any probable prejudice in this case, and we have been trying this case since Wednesday morning at 9:00, and I'm going to deny your motion for a mistrial, Mr. Keahey." Mandamus/trial R. 406.

Finding no prejudice to the jury, the trial judge denied both motions. Mandamus/trial R. 407.

Later, but also on October 18, 1991, defense counsel renewed his motion for a mistrial after a second article appeared in the newspaper. Mandamus/trial R. 525. A portion of the article appearing on the afternoon of October 18 states:

"Keahey said that a diary found during the police investigation will be at the center of testimony. He said the diary makes several references to Mrs. Spears' thoughts and emotions about her husband right up to the time of the shooting. Defense attorneys have filed numerous motions to keep the diary's contents out of testimony, he said." C.R. 497.

In response to the renewed motion for a mistrial, the district attorney stated:

"MR. ROBERT D. KEAHEY: Ronnie, you can tell them what we had Leita do. It was too late. As soon as it came up this morning, as soon as it was brought to my attention this morning, I had Ms. Pritchett call, in my presence, in front of Mr. Ronnie Keahey, and ask her [the newspaper reporter] to please remove anything that we had talked about, about this case. She said that it had already gone to press. She said she wasn't mentioning anything but whose testimony was taken, and that she was re-running something that was run yesterday and something she had dug up from an old news article. She said it couldn't be stopped, and I had already apprised the Court that she had called me this morning, and I talked to her about the venire and who had testified, and she asked me how was it going, or something like that, and I said we was just fumbling along, or something like that. I had previously brought this to the Court's attention earlier today." Mandamus/trial R. 526.

In response the trial judge made the following statement:

"As I read this article, it quotes extensively from one of the participants in this case. I am just disgusted. I am absolutely disgusted. I've got more faith in that jury than I've got in some of the people in this room, Mr. DuBose [defense counsel], and I've got faith that they are going to do what I say, and if I didn't, I'd declare a mistrial, Mr. Kimbrough, but I'm not going to declare a mistrial, and I want an exception shown to the Court's ruling by the attorneys for the defendant." Mandamus/trial R. 527.

Following this, there was a brief discussion of other matters and the jury was excused for the weekend.

At the beginning of court on Monday, October 21, 1991, the trial judge, Hardie B. Kimbrough, declared a mistrial with the following statement addressed to the jury and to the parties:

"Prior to opening statements being made in this case on the afternoon of October 16th, 1991, a conference on-the-record was conducted in the law library outside of your presence. Those present were the defendant, Thomas Wayne Spears, his attorneys, Stuart C. DuBose and James E. Kimbrough, Jr., the District Attorney, Robert D. Keahey, and the Assistant District Attorney, Ronnie E. Keahey, the official court reporter, and me. As is reflected from the record, the Court stated at that time: 'One other thing is I'm going to instruct you gentlemen, just as I am these jurors, not to discuss--because I don't know how long this case will last--not to discuss this case during the trial with any member of the media, any newspaper reporter, or any reporter with any radio station.' This is sometimes referred to as a 'gag rule' or a 'gag order.'

"Sometime later, on Friday morning, the attorneys for the defendant brought to the Court's attention that an article appeared in the Thursday, October 17th, 1991 Mobile Press, wherein proceedings of this case were...