Windsor v. State

Decision Date30 September 1993
Docket NumberCR-91-1487.
Citation683 So.2d 1013
PartiesHarvey Lee WINDSOR v. STATE.
CourtAlabama Court of Criminal Appeals

Ray Lowery and Hugh Holladay, Pell City, and Hilary Hochman, Montgomery, for appellant.

James H. Evans, Atty. Gen., and Gilda Williams and Sandra Stewart, Asst. Attys. Gen., for appellee.

TAYLOR, Judge.

The appellant, Harvey Lee Windsor,1 was convicted of murder made capital because the murder was committed during the course of a robbery. § 13A-5-40(a)(2), Code of Alabama 1975. The jury unanimously recommended the death penalty. The trial court accepted the jury's recommendation and sentenced the appellant to death by electrocution.

I

The appellant initially argues that he was denied a fair and impartial trial because, he says, members of the circuit court clerk's office excused potential jurors from service without the supervision of a judge. He maintains that the clerk's or assistant clerk's excusing potential jurors from jury duty was arbitrary and unlawful and that it resulted in a tainted venire. The appellant argues, among other things, that the practice of allowing the clerk's office personnel to excuse jurors resulted in certain classes of jurors being under-represented.

The appellant's counsel timely moved to quash the jury venire based on the fact that prospective jurors were being excused by employees of the clerk's office without supervision by a judge. A hearing was held on this motion at which time Jean Browning, clerk of the Circuit Court for St. Clair County, testified. She stated that it was the practice of her office to excuse jurors based on telephone conversations. Mrs. Browning testified that of the jury pool that had been summoned for service during the week of the appellant's trial, she personally had excused only 2 or 3 people out the approximately 30 people who were excused by telephone, with the remainder having been being excused by various personnel in the clerk's office. She testified as follows concerning the reasons her office used for determining who to excuse:

"A—We did not excuse anyone for work-related excuses. We excused students that were taking exams and people who were on vacations and elderly people and physically impaired people.
"Q—Could it have been for purely arbitrary reasons that some of these people were deleted from this list?
"A—What do you mean?
"Q—If someone called that was a friend and they called someone in this courthouse to be let off. That could have happened on this list, could it not?
"A—I suppose.
"Q—What I'm saying, the process is sometimes subject to abuse, is that not correct?
"A—I don't think we abuse it."

The court heard the testimony and denied the motion to quash the venire stating, "Your motion is overruled. I think we have done it the only way we can do it." The trial court erred to reversal in making this ruling. Amendment V of the Bill of Rights of the United States Constitution provides that "No person shall ... be deprived of life, liberty, or property, without due process of law...."

Alabama's statutory scheme for summoning jurors is set forth in §§ 12-16-70 through XX-XX-XXX, Code of Alabama 1975. The relevant statutes dealing with the issue before us are § 12-16-74 and § 12-16-145. Section 12-16-74 states, in pertinent part:

"The court shall require the names to be called from the venire list of all persons who have been served with a summons to appear in court that day for service as jurors and whose service has not been previously excused or postponed. The court may hear any excuses not previously heard and shall pass upon the qualifications of those in attendance. The court may in any case, including capital cases, excuse or postpone the service of any prospective juror outside the presence of the parties and their counsel in accordance with the provisions for excusal contained in section 12-16-63."

(Emphasis added.)

Section 12-16-145, entitled "Alternate juror selection and qualification plan; master list, random selection; disqualification," states, in pertinent part:

"Notwithstanding any provision of Title 12, Chapter 16, the presiding circuit judge, with the consent of the circuit judges of the court, may elect to utilize the following alternate juror selection and qualification plan after notice to the administrative director of courts....
". . . .
"Prior to the date on which a prospective juror has been summoned to appear, the presiding circuit judge, or a court official designated by him, shall have the authority to disqualify the prospective juror or to excuse or postpone his service to any future date, notwithstanding the provisions of any other law."

(Emphasis added.)

Once a system such as the foregoing is adopted, assuming that it is constitutionally sound, then the due process rights of American citizens attach to that system. The above statutes vest the sole authority for excusing potential jurors in the judge or in a court official designated by the presiding circuit judge of that circuit. See §§ 12-16-74 and -145. In this case, the clerk of the Circuit Court for St. Clair County and her employees were not designated by the presiding judge of St. Clair Circuit Court to select and qualify jurors. The circuit court clerk is an elected official. The procedure for selecting clerical personnel in the circuit courts varies from county to county. This procedure is not entirely within the control of the appointing authority; for example, many counties have personnel boards that impose qualifications and rules. Neither the circuit court clerk nor any clerical personnel in the clerk's office has the statutory power, beyond that granted the clerk by a presiding circuit judge, to excuse perspective jurors from service. Section 12-16-145. The circuit judge has no power to hire or to fire employees of the circuit court clerk's office. We note that at the hearing on the motion to quash the venire, the circuit court clerk testified that she could not state the reasons, if there were any, why the 30 prospective jurors had been excused from service.

This court, in Jackson v. State, 640 So.2d 1025 (Ala.Cr.App.1992), remanded on other grounds, 640 So.2d 1050 (Ala.1993), addressed the issue of whether the excusal of prospective jurors by the clerk's office violated § 12-16-74. In Jackson, we did not discuss the alternate juror selection procedures provided for in § 12-16-145. We determined that the provisions of § 12-16-74 had been violated, but we held that the error was harmless. Judge McMillan, writing for the majority, stated:

"The trial court's statement during the hearing, that it had not actually excused any of these potential jurors at that time, and his ruling in excusing them, pursuant to § 12-16-63, Code of Alabama 1975, served only to mask the error. However, in light of the reasons given by the jurors who were excused and the number of jurors remaining on the panel prior to voir dire, no reversible error occurred."

(Emphasis added.)

We now specifically overrule Jackson in which we held that the violation of these jury selection and qualification statutes was harmless error. We consider that such a violation always constitutes reversible error because a violation of those statutes impinges the integrity of the jury selection process.

As early at 1871, the appellate courts in this state had occasion to uphold Alabama's statutory scheme concerning the summoning and selecting of petit juries. The court characterized the relevant statutes as follows:

"The constitution of the State gives the right of trial by jury, and the legislature has prescribed how this jury shall be summoned and selected. Const. Ala. 1867, Art. 1, §§ 8, 12; Rev.Code, § 4173. The manner of drawing each member of the jury until the jury is made up, and the number and causes of the challenges, are all carefully designated by law.—Rev. Code, §§ 4177, 4178, 4179, 4180, 4182, 4183. The rules thus laid down are peremptory, and it is the right of the accused to have each strictly complied with. They are a portion of the formalities which constitute a proceeding `by due process of law.' If it were permitted to disregard one of these formalities ... all might be set at naught."

Boggs v. State, 45 Ala. 30, 31-32 (1871). (Emphasis added.) Concerning adherence to a statutory system of drawing and summoning a jury, the Missouri Court of Appeals has stated:

"`We do not mean to say that there was any fraud practiced in this case. That is beside the point. The legislature has seen fit to prescribe the manner of selecting juries. The officers charged with this duty must at least substantially comply with the procedure prescribed. Courts are not authorized to ignore, emasculate, or set aside the statutory provisions.'"

State v. McCaw, 668 S.W.2d 603, 604 (Mo. App.1984). (Emphasis added.)

The practice of the clerk's office excusing jurors has specifically been criticized by other courts. Biegajski v. State, 653 S.W.2d 624 (Tex.App.1983); Stephenson v. State, 494 S.W.2d 900 (Tex.Cr.App.1973); State v. Clift, 202 Kan. 512, 449 P.2d 1006 (1969), cert. denied, 396 U.S. 910, 90 S.Ct. 225, 24 L.Ed.2d 186 (1969). In Biegajski, the Texas court explained that the procedure of allowing the clerk's office to excuse jurors is "tantamount to a practice which at least ostensibly allows county officials and employees to arbitrarily grant exemptions, without the trial court's knowledge." 653 S.W.2d at 629. A Maryland court of appeals has expressed "serious doubt of the propriety of selecting a jury in the Clerk's office...." Green v. State, 23 Md.App. 680, 329 A.2d 731, 734 (1975). The Kansas Supreme Court, although affirming the conviction in Clift, supra, because it held the error to be harmless, observed:

"As a practical matter we venture to say that there have been instances in perhaps every judicial district in this state in which prospective jurors have been excused from reporting by the bailiff or court reporter— all
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9 cases
  • Windsor v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 19 Agosto 1994
    ...trial court accepted the jury's recommendation and sentenced the appellant to death by electrocution. This court, in Windsor v. State, 683 So.2d 1013 (Ala.Cr.App.1993), reversed the appellant's conviction, holding that employees of the circuit clerk's office had impermissibly excused prospe......
  • McWhorter v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 27 Agosto 1999
    ...from the proceedings at this stage; therefore, we must review this claim for plain error. Rule 45A, Ala. R.App.P. In Windsor v. State, 683 So.2d 1013, 1017 (Ala.Cr.App.1993), reversed on other grounds, 683 So.2d 1021 (Ala.1994), the appellant, who had been convicted of capital murder, argue......
  • Ex parte Windsor
    • United States
    • Alabama Supreme Court
    • 18 Octubre 1996
    ...recommendation. Initially, the Court of Criminal Appeals reversed the conviction and remanded the case for a new trial Windsor v. State, 683 So.2d 1013 (Ala.Cr. App.1993); however, this Court granted the State's petition for the writ of certiorari and reversed the judgment of the Court of C......
  • Windsor v. Dunn
    • United States
    • U.S. District Court — Northern District of Alabama
    • 23 Octubre 2020
    ...due to be denied.I.A. On June 8, 1992, a St. Clair County jury convicted Windsor of capital murder. See Windsor v. State (Windsor I (ACCA)), 683 So. 2d 1013, 1014 (Ala. Crim. App. 1993), rev'd, 683 So. 2d 1021 (Ala. 1994). The jury found that on February 25, 1988, Windsor intentionally kill......
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