Stringfellow v. State, 5 Div. 16
| Decision Date | 25 February 1986 |
| Docket Number | 5 Div. 16 |
| Citation | 485 So.2d 1238 |
| Parties | Donald Earl STRINGFELLOW v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Bob Faulk of Faulk & Landreau, Phenix City, for appellant.
Charles A. Graddick, Atty. Gen. and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.
Donald Earl Stringfellow was convicted of sodomizing his eleven-year-old stepdaughter in violation of § 13A-6-63, Code of Alabama 1975. He was sentenced to life imprisonment.
Stringfellow argues on appeal that the trial court committed reversible error in refusing to allow his attorney to question prospective jurors about whether they had ever been a victim of a sexual assault. The record indicates that the following discussion occurred outside the presence of the venire:
[THE COURT] "Let me tell you one other thing before you get started. I'm not going to let anyone ask the jurors: have any of you been the victim of sexual assault. Now, you know, when that particular time comes, if you ask that, and you make an objection, Ron, [district attorney] I'm going to sustain the objection. But if ya'll want to, you can word it this way, you can ask them, if any member of your family has ever been the victim of any type of an assault; and if it would be embarrassing for you to let us know at this time, please come up and talk to the Judge after we get through. Now, I'll let you do that. But I'm not going to make anyone stand up out there and say that they have been the victim of a sexual assault.
After the above discussion, the appellant's trial attorney began his voir dire examination of the jury. There is nothing in the record to indicate that an objection was made concerning the procedure suggested by the trial court. It is well settled law that appellate review is limited to those matters on which rulings have been invoked in the trial court. The record does not contain any refused requested voir dire questions. Absent an adverse ruling in the lower court, or an objection to the court's failure to rule, there is nothing to review. Whorton v. State, 422 So.2d 812, 813 (Ala.Cr.App.1982). From the record, it appears that counsel agreed with the court, that the question under discussion would be counterproductive and the subject should be approached one step at a time. Furthermore, even had an objection been interposed and an adverse ruling made, we believe that no error would have been committed. It is true that, "in the process of selecting the jury from the venire afforded, each party has the right to have questions formulated by it propounded to the jury, either by the court or by the party as the court may determine, if such questions reasonably relate under the circumstances to the question of the qualification or interest or bias on the part of prospective jurors." Griffin v. State, 383 So.2d 873, 876 (Ala.Cr.App.1980); see also, Alabama Power Co. v. Bonner, 459 So.2d 827 (Ala.1984). It is equally clear, however, that the trial court has broad discretion in determining how the voir dire examination of a jury will be conducted. Robinson v. State, 430 So.2d 883 (Ala.Cr.App.1983); Witherspoon v. State, 356 So.2d 743 (Ala.Cr.App.1978). Where the procedure employed by the trial judge is sufficient to uncover possible prejudice or bias of a juror, the right of a party to have its questions propounded to the jury is not infringed upon. United States v. Brooks, 670 F.2d 148 (11th Cir.1982), cert. denied, 457 U.S. 1124, 102 S.Ct. 2943, 73 L.Ed.2d 1339 (1982). In the present case, the procedure suggested by the trial judge permitted defense counsel to ask the jury whether they had previously been victims of an assault, and, if so, permitted either the defense attorney or the trial court to privately question the juror concerning the exact nature of the assault. We find no error in this procedure. Indeed, because of the natural reluctance to admit publicly that one has been a victim of sexual assault, this procedure would almost certainly prove more effective in discovering possible bias or prejudice of a juror.
The appellant next maintains that the trial court erred in denying his motion to strike one of the jurors for cause. He insists that Mrs. Wanda Barker should have been disqualified because she had a "mind set" against child abuse cases.
A party may have a prospective juror removed for cause if he establishes that the juror has a "fixed opinion as to the guilt or innocence of the defendant which would bias his verdict." § 12-16-150(7), Code of Alabama 1975. Proof that the juror has a biased or fixed opinion is not, of itself, sufficient. The party seeking to have the juror disqualified must further demonstrate that the juror's opinion is so fixed that it would bias his verdict. Clark v. State, 443 So.2d 1287 (Ala.Cr.App.1983); Nobis v. State, 401 So.2d 191 (Ala.Cr.App.1981), cert. denied, 401 So.2d 204 (Ala.1981).
During the voir dire of Mrs. Barker; the following occurred:
The testimony of Mrs. Barker indicates that she would base her verdict upon the evidence presented by the parties at trial. Indeed, her response indicates how seriously she considered her duty to be impartial and fair-minded. As this court noted in Clark v. State, 443 So.2d 1287, 1289 (Ala.Cr.App.1983):
We find no abuse of discretion by the trial court in denying the appellant's request to disqualify Mrs. Barker.
The appellant also contends that another juror should have been disqualified due to the fact that her daughter had previously been treated for sexual abuse. The touchstone is the statutory standard of § 12-16-150(7), Code of Alabama 1975. The record indicates that she informed the court that her daughter had been sexually molested. She also stated that she would be able to render a fair and impartial verdict, based solely upon the evidence presented at trial. "Where jurors testify that they have opinions but that they would try the case fairly and impartially according to the law and the evidence, and their opinions would not influence their verdict, they are competent to serve and it is not error for a trial judge to deny a challenge for cause." Jarrell v. State, 355 So.2d 747, 749 (Ala.Cr.App.1978).
Appellant insists, however, that the trial court should have permitted him to further...
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Jones v. State
...does not lend itself to a search of the record to pick the instances in which an objection could have been made. Stringfellow v. State, 485 So. 2d 1238 (Ala. Cr. App. 1986). An attorney looking at a trial transcript can always find places where objections could have been made. Hindsight is ......
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