Trahan v. State, 1 Div. 672

• Decision Date: 24 April 1984
• Docket Number: 1 Div. 672
• Citation: 450 So.2d 1102
• Parties: Charles O. TRAHAN v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

Page 1102

450 So.2d 1102

Charles O. TRAHAN v. STATE of Alabama.

1 Div. 672.

Court of Criminal Appeals of Alabama.

April 24, 1984.

S.J. Laurie, Chatom, for appellant.

Charles A. Graddick, Atty. Gen., and Susan McKinney, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Charles O. Trahan was charged in two indictments with the first degree murder of Jimmy Ray Foster by shooting him with a rifle in violation of § 13A-6-2, Code of Alabama 1975 and in the second indictment with theft of property in the first degree. Upon motion of the District Attorney, the two cases were consolidated for trial. The jury found the appellant not guilty of the offense of theft of property. However, the jury found the appellant guilty of murder as charged in the indictment. Following a sentencing hearing, the trial court set sentence at life imprisonment in the penitentiary.

On the morning of October 1, 1982, Jimmy Ray Foster, the victim in the case, had gone with his business partner, one Leon Collins, to pick up payment from Scott Paper Company for a load of logs which he had delivered to them. The two men received a check for $313.20 and then went and cashed this check, took $24.00 from the proceeds and paid a laborer, one Mike Parnell, then agreed to divide the monies three ways between Foster, Collins and the appellant, Charles O. Trahan. In route home, Foster and Collins stopped and purchased some beer and then Foster dropped Collins at his home and Foster returned to his own home. Shortly after Foster had left that morning, his wife, Donnie Foster, left home to go to a flea market which was about 100 yards away from the Foster home. After she left, the appellant, who had been living with the Fosters and Mrs. Foster's mother, one Mrs. Creola Roberts, also departed. The appellant left and went into Grove Hill to purchase some tags for his vehicle and then returned. When the appellant returned to the Fosters' home only two persons were present, the victim, Jimmy Ray Foster, and his mother-in-law, Mrs. Roberts.

Upon his return, Trahan asked Foster for his part of the proceeds for the sale of the logs which they had cut during the prior week. Foster was in a bad humor and cursing and had drunk two beers. Foster told Trahan to leave the house, to get his belongings, rifles and whatever other properties he had and leave. Trahan then went into the room where he had been staying to gather up his belongings and Foster threw Trahan's part of the money on a table, cursing.

Mrs. Roberts stated that she tried to calm the men down, but started out of the house as she was elderly, calling for her daughter. She heard a loud "boom" sound which knocked her into a chair, she stated. When she looked around she saw Foster lying on the floor and the appellant with a gun.

According to the appellant, he had returned into the room where Foster was, with his suitcase and two rifles. He stated that he dropped the .30-.30 rifle, breaking the sight. He then leaned a .22 rifle he was carrying against the wall near a refrigerator and sat down at the table to see if he could repair the sight on the .30-.30 rifle. He stated that the argument then developed between him and Foster over the money.

Trahan testified that he saw Foster stand up and move as though he were reaching for the .22 rifle which was against the wall. Trahan stated that he then lifted up the .30-.30 rifle, cocked it and told him, "No, no," but Foster moved toward the other gun and that, as he was holding the rifle, Mrs. Roberts bumped him and the rifle went off. Mrs. Roberts testified she was leaving the room going out of the door when the rifle went off.

The toxicologist's testimony indicated that the victim, Jimmy Ray Foster, was shot once with a .30-.30 rifle bullet which passed between his eyes and caused instant death.

Trahan, realizing that Foster was dead, testified that he became frightened, took the monies that had been given to him by Foster, grabbed the two guns and the suitcase and put them in a truck and left the premises. He later abandoned the vehicle and contacted his relatives within a two month period and subsequently turned himself in to the FBI. Trahan was returned to Washington County for trial.

I

The appellant contends the trial court erred in consolidating the two indictments for trial in this cause. Rule 15.3 Temporary Rules of Criminal Procedure of Alabama, reads as follows:

"(a) Joinder. Two or more offenses may be joined in an indictment, information, or complaint, if they:

"(i) are of the same or similar character; or

"(ii) are based on the same conduct or otherwise connected in their commission; or

"(iii) are alleged to have been part of a common scheme or plan."

Offenses which are based on the same conduct or otherwise connected in their commission may be joined as hereinabove noted. Likewise, acts or declarations, which are a part of the res gestae or were substantially contemporaneous and so closely connected that they illustrate one and the other, are properly admissible as part of the res gestae or to, in effect, show one continuous transaction or to give the entire picture. Since the two offenses were so closely related and arising from the same continuous course of conduct, we see no error in the trial court's joining the two offenses. See Willingham v. State, 261 Ala. 454, 74 So.2d 241 (1954).

Moreover, the same jury found the appellant not guilty of the theft of property charge. We see no error.

II

Prior to trial, the appellant filed a motion for a change of venue alleging widespread publicity concerning the offense at issue in the various media.

As noted by this court in Robinson v. State, 430 So.2d 883 (Ala.Cr.App.1983), the trial judge heard all the evidence and the arguments with reference to this change of venue motion, and determined that the climate was not one of inherent prejudice against this appellant and that a fair and impartial trial could be provided in Washington County. This determination of whether or not to grant a change of venue is a matter generally left to the sound discretion of the trial court. Mathis v. State, 52 Ala.App. 668, 296 So.2d 755 (1973), cert. denied, 292 Ala. 732, 296 So.2d 764 (1974); Flurry v. State, 52 Ala.App. 64, 289 So.2d 632 (1973), cert. denied, 292 Ala. 720, 289 So.2d 644 (1974); Acoff v. State, 50 Ala.App. 206, 278 So.2d 210 (1973); Turner v. State, 410 So.2d 458 (Ala.Cr.App.1981). This is generally the law because the trial court is in the best position to weigh the evidence and "evaluate the prejudicial atmosphere" surrounding the accused's case. Botsford v. State, 54 Ala.App. 482, 309 So.2d 835, cert. denied, 293 Ala. 745, 309 So.2d 844 (1975); Burnett v. State, 350 So.2d 718 (Ala.Cr.App.1977). As was the case in Burnett, 350 So.2d at 722:

"It is to be noted that the trial judge was presiding in his own circuit and was not a visiting judge. He, in a sense, was at home and no doubt was familiar with existing sentiment in the county and the extent of any hostile atmosphere toward defendant, to the end that it might preclude him from obtaining a fair trial and an unbiased verdict. [Citations omitted.] The trial judge was in a position to evaluate any existing sentiment adverse to defendant's right to a fair and unbiased jury panel to try his case."

Consequently, we have reviewed the change of venue evidence in search of any clear or gross abuse of discretion on the part of the trial court and have found none. Botsford v. State, supra; McLaren v. State, 353 So.2d 24 (Ala.Cr.App.), cert. denied, 353 So.2d 35 (Ala.1977). From our review, we have concluded that, although the appellant zealously and earnestly tried to establish, through witnesses, news media accounts, and arguments, that the "general citizenry" of Washington County was prejudiced against the appellant, himself, the evidence presented does not demonstrate any popular passion or prejudice against this appellant that might have prevented him from receiving "a fair and impartial trial." Mathis v. State, supra; Botsford v. State, supra; McCray v. State, 395 So.2d 1057 (Ala.Cr.App.1980), cert. denied, 395 So.2d 1062 (Ala.1981).

See also, Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977) and Carroll v. State, 440 So.2d 343 (Ala.Cr.App.1983) and authorities therein cited.

III

The appellant's contention that the jury was improperly allowed to separate during trial is without merit.

Section 12-16-9(d) states: (Code of Alabama 1975 as amended 1982).

"In the prosecution of any noncapital felony the trial court in its discretion may permit the jury trying the case to separate during the pendency of the trial, provided that the court may at any time on its own initiative or on motion of any party, require that the jury be sequestered under the charge of a proper officer whenever they leave the jury box or the court may allow them to separate. A motion to separate or sequester shall not be made within the hearing of the jury and the jury shall not be informed which party, if any requested separation or sequestration. (Acts 1943, No. 384, p. 358; Acts 1982, No. 82-566.)"

There is no presumption that an accused is prejudiced by allowing the jury to separate. See, Reeves v. State, 432 So.2d 543 (Ala.Cr.App.1983).

In the case at bar, the appellant was being tried for first degree murder which is not a capital offense. The trial judge was careful at each recess and on conclusion of each day's proceedings to carefully charge the jury not to discuss the case with anyone or to have any contact with any news media or any of their friends or acquaintances during the trial. There is no contention or showing nor was there any effort made during the trial to demonstrate that anyone contacted any of the jurors or that they were, in fact, influenced by anything written or spoken through any media. We have carefully examined this record and find that the appellant has failed to demonstrate to this court that he was prejudiced by...