Vaughn v. State

• Decision Date: 07 October 1980
• Docket Number: 4 Div. 706
• Citation: 395 So.2d 97
• Parties: Listle L. VAUGHN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 97

395 So.2d 97

Listle L. VAUGHN v. STATE.

4 Div. 706.

Court of Criminal Appeals of Alabama.

Oct. 7, 1980.

Rehearing Denied Jan. 20, 1981.

William M. Hammond of Hammond & Hammond, Troy, for appellant.

Charles A. Graddick, Atty. Gen., Paul E. Johnson, Asst. Atty. Gen., for appellee.

After Return to the Remand

LEIGH M. CLARK, Retired Circuit Judge.

A judgment convicting this appellant of murder in the first degree and sentencing him to imprisonment for life was affirmed in Vaughn v. State, Ala.Cr.App., 347 So.2d 582 (1977). Thereafter, he filed in the trial court a petition for writ of error coram nobis. After a hearing on said petition, in which evidence was presented, the petition was denied. On appeal to this court, as heretofore shown in the report of this case, there was an affirmance without an opinion, as to which the Supreme Court of Alabama granted certiorari and "reverse(d) and remand(ed) to the Court of Criminal Appeals for remand with instructions to the trial Court to grant a hearing on the merits of Petitioner's claim."

The Supreme Court made it clear in its opinion that the trial court should not have dismissed portions of the petition for writ of error coram nobis to the effect that one of the jurors returning the verdict in the case was related to the murder victim by consanguinity within the proscribed ninth degree (Code of Alabama 1975, § 12-16-150(4)), and that petitioner was entitled to a hearing, and should be given a hearing, on that issue. In compliance with the order of this court pursuant to the judgment of the Supreme Court, remanding the cause to the trial court for further hearing, the trial court has conducted another hearing, at which petitioner and his attorney were present, as shown by the trial court's recent return to remand, which includes the order of the trial court of March 7, 1980, in part, as follows:

"Without extensive comment on the evidence it was clear from the evidence that the juror, namely, Carrie Copeland, was totally unaware of any kinship, relationship or otherwise to the deceased, Will Starks at the time of the petitioner's trial. Further the evidence was clear from the testimony of the said Carrie Copeland that her relationship with the deceased, Will Starks was some fourth or fifth cousin at best. Further, it was clear from the evidence that the juror, Carrie Copeland was unaware of any kinship or relationship to the deceased, Will Starks until the attorney for petitioner, namely, Bill Hammond telephoned her at home and advising her of some possible kinship. It was further clear from the evidence that the attorney representing petitioner at his original murder trial, namely, attorney Carey Dozier knew of no relationship or kinship of any of the jurors, including Carrie Copeland to the deceased, Will Starks. It was further clear from the evidence that the petitioner, namely, Listle L. Vaughn did not know of any kinship or relationship of any juror including Carrie Copeland to the deceased at the time of the petitioner's original murder trial.

"It is THEREFORE ORDERED, ADJUDGED AND DECREED by the court as follows:

"1. That the petitioner's Writ of Error Coram Nobis is due to be DENIED both separately and severally as to any and all paragraphs of the original petition as well as any amendment thereto."

We have reviewed the transcript of the evidence and other proceedings upon the last hearing of the petition for writ of error coram nobis and conclude therefrom that the trial court was correct in its determination as to the relationship between the named juror and the named deceased, Will Starks, and that she was totally unaware of any kinship or relationship to said deceased until she was informed thereof by an attorney for appellant long after the trial.

Although it appears that the named juror was probably related by consanguinity to the named murder victim within the ninth degree, which subjected her to a challenge for cause, the evidence is clear and convincing that such fact could not have had any influence whatever upon the juror in the trial of the case, as she could not have been influenced by any fact of which she was totally unaware. No prejudice to the defendant is to be found in that fact or in the unwitting failure of the juror to reveal it. Freeman v. Hall, 286 Ala. 161, 238 So.2d 330 (1970). We repeat and apply what was stated by Judge Tyson in Smithson v. State, Ala.Cr.App., 278 So.2d 766, 769 (1973):

"It is clear from the findings of the trial court that the witness Royer and the juror Royer were distantly related, and that neither was certain of their relationship. Further, they had not seen each other for several years and had never discussed the case at bar. It is also clear that the juror Royer did not recognize the witness Royer until he was actually seated in the witness stand, and this was why he did not respond at the time the question was asked, 'Did he know.' We are of the opinion that the finding by the trial judge in the case at bar properly applies the standard of Freeman v. Hall, supra, and that such finding is supported by the evidence in this cause. We therefore hold that there was no abuse of discretion by the trial court in denying appellant's motion for new trial on the basis of the failure to answer on the part of the juror, Raymond T. Royer. Cooper v. Magic City Trucking Service, Inc., 288 Ala. 585, 264 So.2d 146; Bruno's Food Stores, Inc. v. Burnett, 288 Ala. 222, 259 So.2d 250; Harris v. Whitehead, 46 Ala.App. 516, 244 So.2d 603; Edwards v. State, 28 Ala.App. 409, 186 So. 582."

The trial court was correct in denying the petition for writ of error coram nobis. Its judgment should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court. The judgment of the trial court is hereby

AFFIRMED.

All the Judges concur.

ON REHEARING

LEIGH M. CLARK, Retired Circuit Judge.

Pursuant to Rule 39(k) of the Alabama Rules of Appellate Procedure, appellant in applying for a rehearing has filed a request for the following statement:

"1. The prospective jurors were questioned by the court, prior to the striking of the jury at the trial from which this proceeding seeks relief, as to relationship to the victim, Will Starks.

"2. Carrie Copeland was a member of the jury panel and ultimately sat on the jury that convicted Listle Vaughn at said trial.

"3. Carrie Copeland was related to the victim Will Starks within the ninth degree consanguinity.

"4. Carrie Copeland's grandfather and Will Starks' (the victim) father were first cousins.

"5. Carrie Copeland remained silent when the jury panel was questioned at said trial about kinship to the victim Will Starks."

We accede to the request, with the explanation that any uncertainty that may have been indicated in the opinion on original submission as to the relationship by consanguinity between the particular juror and the victim of the homicide was not based on any question as to the degree of such relationship as a matter of law when established by evidence as to which there could be no uncertainty. We note, as the trial judge evidently did in stating in the order of the court that "the evidence was clear from the testimony of the said Carrie Copeland that her relationship with the deceased, Will Starks, was some fourth or fifth cousin at best (emphasis supplied)," that the evidence on the question of the relationship between the juror and the victim was not a paragon of conclusiveness. This statement, however, is not made in criticism but to emphasize the difficulty of people in general, with the exception perhaps of experts in the field of genealogy, in resolving questions of kinship unless it is much closer than the ninth degree. Nevertheless, we are convinced that evidence on the hearing was sufficient to convince the trial court to conclude, and that it did conclude, that the juror was related to the victim within the ninth degree of consanguinity.

Appellant argues that Freeman v. Hall, 286 Ala. 161, 238 So.2d 330 (1970) and Smithson v. State, 50 Ala.App. 318, 278 So.2d 766 (1973) are distinguishable from the instant case and should not have been relied upon in our opinion on original submission after the return to the remandment. He correctly states that neither case involved a juror's failure to make a response to a question that would have given an expressed statutory challenge for cause. He is also correct in stating that it was noted in the conclusion of the opinion in Freeman, supra, that it did not apply to a case where the failure to answer would have disclosed a challenge for cause.

We do not doubt that it has been made clearer by authorities in this jurisdiction and elsewhere that the failure of a prospective juror in a case to disclose upon proper interrogation the fact that would entitle the losing party to a challenge of the juror for cause is generally more likely to require a new trial when properly and timely requested by the losing party than does the failure of such a juror to disclose some fact as to which he is properly interrogated which would not subject the juror to a challenge for cause. We reexamine the question we have previously considered in the instant case, in the light of and with due regard for appellant's earnest and continued insistence.

Appellant says that Little v. State, Ala.Cr.App., 339 So.2d 1071, cert. denied, 339 So.2d 1073 (1976) "explains the distinction and should control the case at bar." Appellant correctly quotes from Little as follows:

"In Smithson v. State, 50 Ala.App. 318, 278 So.2d 766, the question did not concern a juror related to the injured party. ... Certain qualifications bear more weightily on the required impartiality of jurors. Thus, blood or marriage kinship to a party within certain degrees works an...