Wiggins v. State, 6 Div. 765

• Decision Date: 01 March 1983
• Docket Number: 6 Div. 765
• Parties: Finley WIGGINS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 666

429 So.2d 666

Finley WIGGINS v. STATE.

6 Div. 765.

Court of Criminal Appeals of Alabama.

March 1, 1983.

Rehearing Denied March 29, 1983.

Robert R. Kracke, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for appellee.

HARRIS, Judge.

The appellant, Finley Wiggins, was indicted by the Jefferson County Grand Jury for the murder of Chester Williams. Trial was had with the jury finding him guilty of murder in the second degree. The trial court sentenced him to a term of fifty years' imprisonment in the state penitentiary. From that conviction he now appeals in forma pauperis.

On August 31, 1979, appellant was employed by Mrs. Emma Williams, widow of the victim, to provide entertainment at her daughter's wedding reception. That evening, when leaving the reception, the appellant and his wife found that one of the tires on their van was flat. The two of them then returned to Mrs. Williams' apartment. Mrs. Williams escorted appellant's wife to the home of a neighbor, Mrs. Catherine Reed, wherein she used a telephone. At the time, the victim was visiting Mrs. Reed. Shortly thereafter, appellant entered Mrs. Reed's apartment, exchanged angry words with the victim and followed him outside. Appellant drew his .38 caliber pistol and shot the victim six times after the victim had gotten in his car. Evidence was presented by the appellant that, during the argument, the victim threatened to kill him. The appellant phrased the threat as follows:

"I'm going to kill all you smart sons of b______, especially you. Let me get my gun."

Furthermore, testimony from appellant's wife indicated that, during the argument, the victim had threatened appellant's life.

A more complete rendition of the facts and a determination of its sufficiency are unnecessary for a determination of the issues concerning the refusal of the trial court to grant a mistrial on the grounds of newspaper publicity and the refusal of the trial court to charge the jury of the state's burden of proof after giving the "Allen," or "dynamite," charge.

Appellant contends that his constitutional right to due process of law was violated when the trial court overruled his Motions for Mistrial on the grounds of newspaper publicity during the trial of the case with a non-sequestered jury. Appellant's trial commenced on October 7, 1981, and ended on October 9, 1981. At the end of each day's testimony, when the trial recessed for the evening, the jury was allowed to separate and go home for the night. On the morning of October 8, 1981, defense counsel moved for a mistrial due to an article concerning appellant's prior conviction that had appeared in the morning newspaper. The newspaper article stated:

"Wiggins was tried and convicted of the murder in June 1980 and sentenced to life in prison, but the conviction was overturned and the case was sent back to be tried again because of a technicality in the judge's charge to the jury."

The trial judge questioned each of the jurors individually to see if any of them had read this particular article. Two of the jurors admitted that they had seen a newspaper, but didn't see the article in question. Defense counsel was then permitted to question the jurors, and, after his questioning was completed, appellant's Motion for Mistrial was denied. When the court recessed that evening, the trial judge instructed the jurors not to discuss the case with anyone. The trial judge further instructed the jury not to read any newspapers or to listen to opinions of other people while in recess.

The next day on October 9, 1981, a second article concerning the trial appeared in the morning newspaper. After both sides in the case rested, defense counsel again renewed its Motion for Mistrial, which was overruled. The trial judge then gave the oral charge to the jury in which he carefully instructed the jurors that they were the triers of fact and that their verdict must be based on the evidence that they heard from the witness stand. The trial judge further insisted that the jurors not be influenced by anything they might have heard or by their prior experiences.

Later that afternoon, when the jury returned a verdict finding appellant guilty of second degree murder, the trial judge polled the jury asking each juror whether he read the newspaper or discussed the case with anyone. Each juror responded that he had not.

Jurors should not be permitted, while in the discharge of their duty, to read newspapers containing editorials or statements of fact pertaining to the trial calculated to affect their verdict. Leith v. State, 206 Ala. 439, 444, 90 So. 687 (1921); Flowers v. State, 402 So.2d 1118 (Ala.Cr.App.1981). However, the fact that a juror has read a newspaper in which the case is discussed does not entitle the defendant to an automatic mistrial. Flowers v. State, supra.

"Even where the jurors receive newspaper accounts of, or comments on, the case, the verdict will not be disturbed if the papers contain nothing calculated to mislead or improperly affect their minds or to prejudice their verdict, or if the court is satisfied that none of the jurors was influenced thereby. The court is not required to discharge the jury or to reverse the verdict because of a newspaper article which, it is satisfied, the jurors have neither seen nor heard ..."

23 A C.J.S. Criminal Law § 1364 (1961).

Here there was no showing that any juror had seen any prejudicial newspaper article. The only indication is that two jurors had seen a newspaper on October 8, 1981, in which an article concerning the trial was contained. On further examination these jurors denied seeing this particular article. Furthermore, when the trial judge polled the jury when it returned its verdict, on October 9, 1981, all jurors responded that they had not read any articles that had appeared in the newspaper on either October 8 or October 9, 1981, and that they had not discussed the case with anyone.

Appellant further contends that the trial court erred for its failure to charge the jury on the...