Williams v. State

• Decision Date: 02 March 1982
• Docket Number: 8 Div. 573
• Citation: 410 So.2d 911
• Parties: Dennis Edward WILLIAMS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 911

410 So.2d 911

Dennis Edward WILLIAMS v. STATE.

8 Div. 573.

Court of Criminal Appeals of Alabama.

March 2, 1982.

James E. Smith, III and J. Michael Tanner, Sheffield, for appellant.

Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for appellee.

HARRIS, Presiding Judge.

Appellant was indicted and convicted for the February 2, 1980, murder of Robert Washington. The trial court fixed his punishment at thirty years' imprisonment. At arraignment and throughout the trial proceedings, appellant was represented by counsel of his choice. After sentence was imposed he gave notice of appeal and was found to be indigent. He was appointed counsel to represent him on appeal and furnished a free transcript.

Appellant does not challenge the sufficiency of the state's evidence. We have completely and thoroughly reviewed the state's evidence and find it to have presented a prima facie case of murder. § 13A-6-2, Code of Alabama (Amended 1977). Further, the state's evidence fully supports the verdict of guilty. Thus, only a brief narration of the facts is necessary.

On February 1, appellant and his wife attended a social gathering at the Sheffield home of Elizabeth Smith. Several couples were in attendance. During the course of the evening, appellant and two others drove to Florence. While gone, the victim and his date arrived. Shortly thereafter a heated and lengthy argument began between the victim and appellant's wife.

When appellant returned, he was greeted in the front yard by his wife and the victim. Several others looked on as Mrs. Williams told appellant of the victim's advances toward her. From a distance between two and six feet away, appellant shot the victim with the bullet piercing several organs before exiting from his back. The victim ran away and was found dead early the next morning. The state's evidence established without a doubt that appellant shot and killed the victim.

Appellant presented evidence to support his defense of self-defense. He attempted to establish that the victim was the aggressor and had initially drawn and fired a pistol at him.

Appellant contends that he was not present in court when the jury venire was qualified and his jury selected. Thus, he argues that such constituted reversible error.

The judgment entry reflects that appellant was present during this stage of the trial proceedings. Further, a question directed to the venire by the district attorney indicated the presence of appellant. No statement was made by the trial court indicating appellant's presence or absence.

No hearing of any type was held below to determine the legitimacy of appellant's contention, nor was any objection or motion made to invoke a ruling from the trial court. No motion for a new trial was filed raising the above contention. Thus, there is nothing preserved for our review. Boykin v. State, Ala.Cr.App., 398 So.2d 766, cert. denied, Ala., 398 So.2d 771 (1981); Brown v. State, Ala.Cr.App., 392 So.2d 1248 (1980), cert. denied, Ala., 392 So.2d 1266 (1981).

Nevertheless, a review of the record leads us to the opposite conclusion than that reached by appellant. Merely because no statement by the trial court indicating appellant's presence at this time appears in the record, such, when viewed in conjunction with the remainder of the record, is insufficient to mandate reversal of this cause. See Durden v. State, Ala.Cr.App., 394 So.2d 967 (1980), cert. denied, Ala., 394 So.2d 977 (1981).

Appellant argues that the trial court erred in allowing the jury to separate without initially personally inquiring of him as to whether he desired such.

The record reflects that the trial court questioned appellant's retained counsel as to whether the jury could separate, to which his counsel affirmatively replied. At that point the trial court instructed appellant's counsel, "Okay, I need it in writing from the defendant." Appellant's counsel acknowledged the court's request and furnished it a handwritten statement, apparently signed by appellant, to that effect. No objection or motion was made below to such procedure nor was there any hearing of any type raising the alleged error.

In three of the cases cited by appellant in support of reversal, we note that the alleged error was preserved by the securing of an adverse ruling. The other authority cited by him does not support his contention.

We find that appellant failed to properly preserve the alleged error for review. Caldwell v. State, Ala.Cr.App., 393 So.2d 499 (1981); Pope v. State, Ala.Cr.App., 387 So.2d 300 (1980); Ragland v. State, Ala.Cr.App., 383 So.2d 897 (1980); Hare v. State, Ala.Cr.App., 377 So.2d 1143, cert. denied, Ala., 377 So.2d 1148 (1979); Barton v. State, Ala.Cr.App., 376 So.2d 756, cert. denied, Ala., 376 So.2d 761 (1979); Woods v. State, Ala.Cr.App., 346 So. 9, cert. denied, Ala., 346 So.2d 10 (1977); Arnold v. State, Ala.Cr.App., 340 So.2d 873, cert. denied, Ala., 340 So.2d 877 (1976); Cooper v. State, Ala.Cr.App., 340 So.2d 871, cert. denied, Ala., 340 So.2d 872 (1976); Hill v. State, Ala.Cr.App., 339 So.2d 601, cert. denied, Ala., 339 So.2d 610 (1976); Armstead v. State, 57 Ala.App. 459, 329 So.2d 150, 151 (1976); Turner v. State, 54 Ala.App. 467, 309 So.2d 503 (1975).

Appellant contends that the trial court erred in denying his motion for a mistrial based on juror misconduct.

After an overnight recess, appellant made his motion arguing that a local newspaper article which appeared in the previous evening's edition, if read by the jury, would prejudice it against him. The trial court noted that the article contained several inaccuracies. It found that six members of the jury had seen the article. The trial court questioned the jurors as to whether they could "continue to listen to the evidence ... and be impartial and fair and base (their) verdict ... on the testimony ... and completely eliminate and disregard what (they had) read in the paper." The jurors responded in the affirmative. The trial court instructed the jurors:

"I want to instruct to you that anything that you read in the paper is not evidence and I do know for a fact that they had mistaken information because they said (Judge) N. Pride Tompkins was trying the case and I am trying the case. So, I don't know where they get their information from, but I know it was wrong and I ask that you disregard this-it's not evidence in this case and it should not be considered by you as such in this case and you are to completely disregard it from your deliberations when you go in to deliberate this case. ...