Uptain v. State, 8 Div. 816
Decision Date | 10 May 1988 |
Docket Number | 8 Div. 816 |
Citation | 534 So.2d 686 |
Parties | Johnny Mack UPTAIN and Lyndon Bud Johnson v. STATE. |
Court | Alabama Court of Criminal Appeals |
Tameria S. Driskill, Guntersville, for appellant Johnson.
Cecil M. Matthews, Guntersville, for appellant Uptain.
Don Siegelman, Atty. Gen., and Helen P. Nelson and Kenneth S. Nunnelley, Asst. Attys. Gen., for the state.
Johnny Mack Uptain and Lyndon Bud Johnson were convicted of kidnapping in the second degree. Uptain was sentenced to imprisonment for ten years and one day. Johnson was sentenced as an habitual offender to life imprisonment. Their convictions must be reversed for two reasons.
Both convictions must be reversed because of the trial court's failure to grant defense counsel's challenges for cause.
During voir dire of the jury venire, defense counsel asked:
Three jurors responded affirmatively. The court overruled all three defense challenges for cause and stated "That's the reason we have voir dire...." None of the jurors were questioned further regarding their possible bias toward a police officer and there was no attempt to rehabilitate those jurors on that issue.
"A juror ... who will unquestioningly credit the testimony of law enforcement officers over that of defense witnesses is not competent to serve." State v. Davenport, 445 So.2d 1190, 1193-94 (La.1984). See also State v. Nolan, 341 So.2d 885 (La.1977); State v. Thompson, 331 So.2d 848 (La.1976); State v. Johnson, 324 So.2d 349 (La.1975); State v. Jones, 282 So.2d 422 (La.1973); State v. Williams, 643 S.W.2d 832, 834 (Mo.App.1982). "A juror who will not be governed by the established rules as to the weight and effect of the evidence is incompetent." Watwood v. State, 389 So.2d 549, 550 (Ala.Cr.App.), cert. denied, Ex parte Watwood, 389 So.2d 552 (Ala.1980).
Tisdale v. State, 30 Md.App. 334, 353 A.2d 653, 656-57 (1976).
"The denial or impairment of the right [of peremptory challenges] is reversible error without a showing of prejudice." Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1965), overruled on other grounds by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Since the defendants were required to use peremptory challenges in order to eliminate the three venirepersons who had properly been challenged for cause, their total number of peremptories was effectively reduced by three. Tisdale, 353 A.2d at 657. "No right of a felon is more basic than the right to 'strike' a petit jury from a panel of fair-minded, impartial prospective jurors." Ex parte Beam, 512 So.2d 723, 724 (Ala.1987) followed in Ex parte Rutledge, 523 So.2d 1118 (Ala.1988).
Each defendant was represented at trial by his own defense counsel. The actual challenges for cause were made by Uptain's attorney. However, it is apparent that the trial court considered the objection of one attorney to apply to the other, unless otherwise indicated.
The error was preserved on behalf of each defendant and each is entitled to a new trial.
The trial court charged the jury as follows:
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