Windsor v. State
Decision Date | 30 September 1993 |
Docket Number | CR-91-1487. |
Citation | 683 So.2d 1013 |
Parties | Harvey Lee WINDSOR v. STATE. |
Court | Alabama 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.
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.
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:
The court heard the testimony and denied the motion to quash the venire stating, 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:
(Emphasis added.)
Section 12-16-145, entitled "Alternate juror selection and qualification plan; master list, random selection; disqualification," states, in pertinent part:
(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:
(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:
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:
""
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:
...
To continue reading
Request your trial-
Windsor v. State
...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
...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
...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
...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......