Tillman v. State
Decision Date | 31 October 1978 |
Docket Number | 1 Div. 950 |
Parties | Norman Jerald TILLMAN, alias v. STATE. |
Court | Alabama Court of Criminal Appeals |
Donald E. Brutkiewicz, Mobile, for appellant.
William J. Baxley, Atty. Gen., and James F. Hampton, Asst. Atty. Gen., for the State, appellee.
Grand larceny; sentence: one year and one day imprisonment.
Appellant asserts as grounds for reversal the failure of the trial court to grant his motion for new trial based in part upon the court's failure to obtain his and his counsel's permission to allow the jury to separate during the course of the trial. The jury, by the State's own admission in brief, was in fact allowed to separate during the course of the trial. As the State's brief further concedes, there is nothing in the record to indicate that the matter of jury separation was ever discussed during the trial.
The rule in this state is that the separation of the jury pending and during a trial for a felony offense raises a prima facie ground for reversible error. Demmon v. State, 46 Ala.App. 652, 248 So.2d 147 (1971); Christison v. State, 39 Ala.App. 175, 96 So.2d 701 (1957). When the fact of separation is established and properly presented to the trial court, the burden then rests on the State to affirmatively show that the defendant was not prejudiced or injured by the jury separation. Christison, supra. The motion for new trial was accompanied by an affidavit sworn to by the appellant setting forth the fact that the jury was allowed to separate without his consent. No evidence was presented by the State to rebut the presumption of prejudice to the appellant. The error was properly raised by motion for new trial. Pitts v. State, 53 Ala.App. 373, 300 So.2d 416 (1974).
In Burnett v. State, Ala.Cr.App., 355 So.2d 1139 (1977), this court stated:
Based upon the authority set out in "Burnett, supra, we remand the instant cause with directions for the trial court to hold an evidentiary hearing on the issue of whether or not any juror was subjected in any manner to outside influence prejudicial to the appellant. A transcript of the testimony of such hearing along with the ruling of the trial court thereon shall be filed with this court as expeditiously as possible in answer to the remandment for our further consideration.
REMANDED WITH DIRECTIONS.
All the Judges concur.
After Remandment
On original consideration of the instant appeal, this court found that an unauthorized jury separation had taken place, and we remanded with directions to the trial court to hold an evidentiary hearing on whether or not any juror was subjected in any manner to outside influences prejudicial to the appellant during such separation.
In answer to the remand, a transcript of the testimony of such hearing has been filed with this court, and we find that there is no evidence that any juror, during separation, was influenced in any way which would be prejudicial to the appellant. Upon making such a finding, this case would have been affirmed except for a recent decision by the Alabama Supreme Court which necessitates our review of an issue which we had not considered earlier as a ground for reversal.
During the closing arguments, the prosecutor made reference to a "two-page F.B.I. rap sheet" on the appellant. From the record:
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