Sprinkle v. State

• Decision Date: 21 March 1978
• Docket Number: 1 Div. 879
• Citation: 368 So.2d 554
• Parties: Grady SPRINKLE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 554

368 So.2d 554

Grady SPRINKLE v. STATE.

1 Div. 879.

Court of Criminal Appeals of Alabama.

March 21, 1978.

Rehearing Denied April 18, 1978.

T. M. Brantley and Robert F. Vargo of Brantley & Vargo, Bay Minette, for appellant.

William J. Baxley, Atty. Gen. and Engenia D. B. Hofammann, Asst. Atty. Gen., for the State, appellee.

BOWEN, Judge.

On the night of December 3, 1976, Billy White, an eighteen year old Baldwin County High School student, and Cheri Prine, a fifteen year old student, were killed in an automobile collision in Baldwin County. The twenty year old appellant was indicted for their murders by perpetrating an act greatly dangerous to the lives of others and evidencing a depraved mind without regard for human life. A jury convicted him of murder in the second degree and fixed his punishment at twenty-one years' imprisonment. The appellant's request for Youthful Offender Treatment was denied because the appellant had "a running record of traffic violations" including reckless driving, driving while intoxicated and driving without a license. His motion that he be committed to a state mental institution for treatment and evaluation was granted. At trial the appellant was represented by retained counsel who was appointed on this appeal.

The sufficiency of the evidence to support the conviction has not been challenged. As there was no motion to exclude the state's evidence, no request for the affirmative charge, no exceptions reserved to the oral charge of the trial court, and no motion for a new trial, the question of the sufficiency of the evidence to support the conviction is not presented on appeal. Robinson v. State, 44 Ala.App. 206, 205 So.2d 524 (1967); Alexander v. State, 281 Ala. 457, 204 So.2d 488 (1967); Anderson v. State, Ala.Cr.App., 339 So.2d 166 (1976). Yet, having reviewed the evidence we find that it was ample to support the verdict.

The evidence presented by the state, in its barest essentials, reveals that around 4:45 on the afternoon of December 3, 1976, the appellant began drinking beer and soon switched to whiskey. By 10:00 o'clock that night the appellant was intoxicated. A waitress at the Little Dutchman Lounge testified that the appellant was incapable of driving safely and refused to serve him any beer. The appellant left before she could call his parents to come take him home.

The collision occurred on Alabama Highway 112, the Old Pensacola Road, in Baldwin County. The point of impact was determined to be in the lane rightfully occupied by Billy White and Cheri Prine. The appellant was driving in the wrong lane at a speed of approximately one hundred miles an hour in an intoxicated condition when the collision occurred. The Chevrolet Vega driven by White was traveling approximately forty-five miles an hour and was repelled backwards a distance of ninety-three feet from the point of impact. The Ford driven by the appellant traveled in its original direction for a distance of one hundred seventy-six feet from the point of impact before finally stopping. No skid marks were found at the scene.

The defense called several witnesses including the appellant who testified that the appellant was not drunk on the night of the collision. Several other witnesses attested to the appellant's good reputation in the community.

I

Initially the appellant argues that the trial court improperly denied his motion for a change of venue. In support of this argument the appellant argues that

"the defendant was from across the tracks; that the parties who were killed were a local football hero and a cheerleader. They were close enough to the Solicitor that he cried when trying to read the indictment and apparently close enough to the judge that he refused a bond without any logical reason except prejudice."

Additionally it is argued that the motion for change of venue should have been granted because eleven of the thirty-nine veniremen were excused because "they expressed a fixed opinion or prejudice." The record does not disclose the nature of this fixed opinion or bias.

The only evidence offered in support of the motion for a change of venue was an affidavit of defense counsel that he had made "limited inquiries of several people in Bay Minette and in this general area" and the "consensus of opinion was that it was very doubtful" that the appellant could receive a fair trial in Baldwin County.

The mere belief of the defendant or of the witnesses he is able to produce that he cannot receive an impartial trial is not enough to entitle him to a change of venue. Patton v. State, 246 Ala. 639, 21 So.2d 844 (1945); Campbell v. State, 257 Ala. 322, 58 So.2d 623 (1952); Mathis v. State, 280 Ala. 16, 189 So.2d 564, cert. denied, 386 U.S. 935, 87 S.Ct. 963, 17 L.Ed.2d 807 (1966).

A defendant has a right to a change of venue only if it is clearly shown that a fair and impartial trial may not be had in the county in which the indictment was found. In Jackson v. State, 104 Ala. 1, 4, 16 So. 523 (1894), the Supreme Court of this state noted:

"Facts and circumstances rendering such a trial improbable must appear. The mere belief of the party applying, or of the witnesses he is enabled to produce, that such trial can not be had, will not suffice. 1 Bish.Cr.Proc. § 71; Salm v. State, 89 Ala. 56, 8 South. 66. The affidavits consist largely in the mere expression of the opinion of the parties making them, and no distinct, tangible facts are stated, which, in our opinion, would have justified the circuit court in granting the application."

An affidavit containing a mere expression of opinion, that one accused of crime can, or cannot, have a fair and impartial trial, is worthless as evidence, pro or con, unless it is supported by sufficient reasons, testified to as facts. Salm v. State, 89 Ala. 56, 59, 8 So. 66 (1889). In ruling on a motion for a change of venue the trial court must "be governed more by the Facts of the case, as proved or admitted, and legitimate inferences from them, than by the mere Opinions of witnesses, which are unsupported by facts". Seams v. State, 84 Ala. 410, 413, 4 So. 521, 522 (1887).

When the defendant applies for a change of venue, it is his burden to show to the reasonable satisfaction of the court that an impartial trial and an unbiased verdict cannot be reasonably expected in that county. Gilliland v. State, 291 Ala. 89, 277 So.2d 901 (1973); Peoples v. State, Ala.Cr.App., 338 So.2d 515 (1976). In McLaren v. State, Ala.Cr.App., 353 So.2d 24, 32, cert. denied, Ala., 353 So.2d 35 (1977), this court held that an affidavit by defense counsel that he had talked to at least fifty or sixty people about the homicide and that ". . . all expressed the opinion that . . . the defendant, . . ., was guilty" was insufficient to support a motion for a change of venue.

The record in this case fails to establish that the defendant could not receive a fair and impartial trial in Baldwin County. Denton v. State, 263 Ala. 311, 82 So.2d 406 (1955). Without indulging any presumption in favor of the ruling of the trial court on the motion. Malloy v. State, 209 Ala. 219, 96 So. 57 (1923); Maund v. State, 254 Ala. 452, 48 So.2d 553 (1950), we find that the evidence supporting the motion is simply insufficient to justify a change of venue or for this court to conclude that the trial judge abused his discretion in denying the motion. The jury's verdict and punishment would justify this conclusion.

Though the District Attorney for Baldwin County apparently lost his composure while reading the indictment at the arraignment of the appellant, this occurred some ten days before the appellant was brought to trial. The trial was prosecuted by the Chief Assistant District Attorney for Mobile County and it does not appear that the Baldwin County District Attorney was even present.

The trial judge initially refused to fix bail following the arrest of the appellant because of the appellant's past driving record. The trial judge also specifically found that releasing the appellant would not have been to the best interest of the general public and "feared" that "he might get out and cause great bodily harm as a result of drinking and driving a motor vehicle". It appears and counsel alleges in brief that bond was set at some date before trial. Despite the reasoning behind the denial of bail by the trial judge, such denial was improper. In Alabama, an accused upon arrest and before conviction, is entitled to bail as an absolute right provided he has sufficient sureties. Bail may only be denied in capital offenses, when the proof is evident or the presumption great. Section 16, Constitution of Alabama 1901. Ex parte Bynum, 294 Ala. 78, 312 So.2d 52 (1975); Ex parte Carlisle, 57 Ala.App. 216, 326 So.2d 775, cert. denied, 295 Ala. 396, 326 So.2d 776 (1975). Here however, the trial judge set bail some time before trial at the request of defense counsel. No mandamus or habeas corpus proceedings were invoked. On appeal this is not asserted or argued as a cause for reversal. The appellant is not alleged to have been prejudiced by this delay in setting bail. Though the record does reveal that bail was requested on two occasions, no objection was taken when bail was not set. On appeal it is argued only that this served as an indication of the bias and prejudice of the trial judge. Though the appellant maintains that both the District Attorney and the trial judge were biased and prejudiced no motion to recuse was ever filed. In view of these circumstances we will not reverse the judgment of the trial court for denying the motion for a change of venue.

II

The second argument advanced by the appellant for reversing his conviction is that the conduct of the prosecuting attorney was improper and created an atmosphere in which the appellant could not receive a fair trial.

Specifically the appellant alleges as error the following actions or comments of the District Attorney: (1) Showing that the two victims were...