Tidmore v. City of Birmingham

• Decision Date: 20 December 1977
• Docket Number: 6 Div. 484
• Citation: 356 So.2d 231
• Parties: Thomas TIDMORE v. The CITY OF BIRMINGHAM.
• Court: Alabama Court of Criminal Appeals

Page 231

356 So.2d 231

Thomas TIDMORE v. The CITY OF BIRMINGHAM.

6 Div. 484.

Court of Criminal Appeals of Alabama.

Dec. 20, 1977.

Rehearing Denied Jan. 24, 1978.

James W. May, Birmingham, for appellant.

W. Otis MacMahon, III, Birmingham, for appellee.

BOWEN, Judge.

The appellant was convicted by a jury in the Circuit Court of Jefferson County for a violation of Section 16-18 of the General Code of the City of Birmingham 1964, as amended, making it unlawful for any person to knowingly publish, print, exhibit, distribute or have in his possession with the requisite intent any obscene matter. In this instance the obscene matter was a movie entitled Illusions of Love. The appellant was the manager of the Centennial Cinema in Birmingham, Alabama, where the movie was being shown.

On appeal the sufficiency of the evidence is not challenged. Nor does the appellant take issue with the jury's finding that the film was indeed obscene and pornographic. In light of such we will forego any discussion of the nauseating contents of the film and the facts resulting in the conviction of the appellant.

I

Initially the appellant contends that Section 16-18 of the General Code of the City of Birmingham 1964, as amended, is unconstitutional. Birmingham City Ordinance Number 67-2 was codified without change and became Section 16-18 on January 9, 1976. We have previously held that this particular section is constitutional. McKinney v. City of Birmingham, 52 Ala.App. 605, 296 So.2d 197, cert. denied, 292 Ala. 726, 296 So.2d 202 (1973); Robinson v. State, 353 So.2d 528 (Ala.Cr.App., 1977). The constitutionality of a similar ordinance of the City of Montgomery was confirmed in Gilbert v. City of Montgomery, Ala.Cr.App., 337 So.2d 140 (1976). Under these authorities this contention advanced by the appellant is without merit.

II

The appellant asserts that he was not afforded a speedy trial contrary to the Sixth Amendment of the Constitution of the United States.

The appellant was arrested on January 27, 1976, and was adjudged guilty in the Recorder's Court of the City of Birmingham. On February 11th, he posted an appeal bond and demanded a jury trial. The appeal was docketed by the circuit clerk on April 22, 1976, and trial was first scheduled for June 21, 1976. The case was rescheduled on three different dates and came to be heard on February 22, 1977. From the record it appears that the trial was reset because other "movie cases" were tried during this time and ultimately due to the congestion of obscenity cases on the trial court's docket. The presiding judge for the Circuit Court of Jefferson County explained:

"The City appeals docket is set one week a month. It is the policy of this Court on pornograph as a matter of fact, anything else we will only try one pornograph per month because then we have got the jury, in our judgment, we got the jury tainted, having seen one pornographic movie, we don't want to try another one because then we've got trouble getting jurors."

The record reveals no request for or objection to any continuance by either the city or the defense. The appellant never requested a speedy trial. A motion to dismiss filed by the appellant on February 22, 1977, the date of trial, attempted to raise the question of the failure to afford the appellant a speedy trial.

A defendant is not entitled to raise an issue as to a denial of a speedy trial absent an attempt, prior to the trial date, to bring to the attention of the court the alleged denial of a speedy trial. Hodges v. State, 48 Ala.App. 217, 263 So.2d 518 (1972). The appellant did not make a prima facie case for release on grounds of the denial of a speedy trial and has not even alleged that any actual prejudice resulted from the fact that trial was delayed. Sellers v. State, 48 Ala.App. 178, 263 So.2d 156 (1972). A defendant who makes no outcry when there was a delay in his trial is deemed to have waived his right to a speedy trial. Autrey v. State, 44 Ala.App. 53, 202 So.2d 88, cert. denied, 390 U.S. 1030, 88 S.Ct. 1422, 20 L.Ed.2d 287 (1967); Broadnax v. State, 54 Ala.App. 546, 310 So.2d 265 (1975). It is fundamental that an accused must affirmatively exercise his right to a speedy trial. Mayberry v. State, 51 Ala.App. 343, 285 So.2d 507, cert. denied, 291 Ala. 792, 285 So.2d 512, cert. denied, 415 U.S. 929, 94 S.Ct. 1438, 39 L.Ed.2d 486 (1972). Since there was no effort on the part of the appellant to secure his right to a speedy trial prior to the day of trial, he may not complain of any delay on appeal. Harmon v. State, 48 Ala.App. 521, 266 So.2d 325, cert. denied, 289 Ala. 744, 266 So.2d 328 (1972); Moulden v. State, 47 Ala.App. 573, 258 So.2d 915 (1972).

III

The appellant contends that he was denied the effective use of his peremptory challenges because the trial court did not excuse four jurors for cause.

On voir dire examination of the jury panel, defense counsel asked the following question.

"If during the course of the trial of this case the evidence shows that Tom Tidmore showed or caused to be shown in the City of Birmingham a movie which depicted acts of sexual intercourse including cunnilingus, fellatio, homosexuality and bisexuality, would you merely because of that be prejudiced against him?"

Five jurors responded: Mr. Crabtree, Mr. Parker, Mrs. McLaughlin, Mrs. Keith and Mrs. Grace. The trial judge then instructed the jury on its duties, responsibilities and that the jury must decide whether or not the film was obscene based on certain criteria under the law and upon which the jury would be instructed.

Juror Grace then responded that she could be guided by the law, as did Jurors Keith and Crabtree. Juror McLaughlin was excused by the court. Subsequently defense counsel requested that Jurors Crabtree, Grace, Keith, and Parker be excused for cause. The court then overruled this request with the following comment.

"My recollection of when I explained to them, namely the charge and the fact that not their personal evaluation is involved, and as we all know, it is contemporary community standards. I think each of them individually answered they would base it on the law in the case and the evidence in the case so I am going to overrule it."

The City then asked a few questions of the jurors whereupon the trial court, in an abundance of caution, again inquired of the jurors

"I think I am going to ask a question to make sure I understand correctly. I think I do but to make sure, Mrs. Grace, Mrs. Keith, Mr. Parker, Mr. Crabtree, this may be a duplication but I want to make sure that I am correct.

"In answer to the question that you would be prejudiced would anyone be prejudiced against...