Opinion
No. CR-01-1249.
Decided April 25, 2003. On Remand to Remand April 30, 2004. Rehearing Denied June 18, 2004. Certiorari Denied January 14, 2005.
Appeal from Morgan Circuit Court (CC-92-609.80), Glenn E. Thompson, J.
Wilson Myers, Sr., Gulf Shores; and Christopher Wayne Adams, Atlanta, Georgia, for Appellant.
William H. Pryor, Jr., atty. gen., and John M. Porter, asst. atty. gen., for Appellee.
The appellant, Levi Pace, was indicted for murder made capital because it was committed during a robbery in the first degree. See § 13A-5-40(a)(2), Ala. Code 1975. He was convicted of the lesser-included offense of murder, a violation of § 13A-6-2, Ala. Code 1975, and was sentenced to life imprisonment. The circuit court ordered that Pace's sentence was to run consecutively with sentences he was serving as a result of other convictions.
This was Pace's second trial on capital-murder charges. See Pace v. State, 714 So.2d 316 (Ala.Crim.App. 1995), on return to remand, 714 So.2d 320 (Ala.Crim.App. 1996), rev'd in part, 714 So.2d 332 (Ala. 1997).
On March 12, 2002, Pace filed a motion for a new trial. That same day, Pace also filed a notice of appeal to this Court. The circuit court did not rule on Pace's new-trial motion; instead, the court allowed the motion to be denied by operation of law.
"[I]n a criminal case, a motion for new trial filed within 30 days after conviction or sentence is not waived by a notice of appeal, `regardless of the sequence in which the notice of appeal and the motion are filed.'" Ex parte Walker, 652 So.2d 198, 199 (Ala. 1994) (quotingMelvin v. State, 583 So.2d 1365, 1367 (Ala.Crim.App.), on return to remand, 588 So.2d 939 (Ala.Crim.App. 1991)).
In his motion for a new trial, Pace raises numerous allegations of error. Of particular concern are Pace's following contentions regarding potential juror misconduct:
"10. Furthermore, during the sequestration, Mr. Pace was prejudiced by the juror's access to improper information and misconduct. For instance, while sequestered [juror J.B.] was allowed to call a friend, and the friend told her about a newspaper article on the case. The friend told [juror J.B.] that the article said Mr. Pace had been previously convicted for the crime for which he was on trial, and the conviction was reversed due to an issue involving race and the grand jury. See affidavit of Investigator Kate Weisburd. Further, after learning this from her friend, [juror J.B.] sought to confirm the information and asked the bailiff whether Mr. Pace had previously been tried and convicted for this offense. The bailiff told her that the bailiff could not answer but instructed her to ask the other jurors if this was Mr. Pace's second trial and if the first had been reversed. [Juror J.B.] heeded this instruction, and her other jurors confirmed that Mr. Pace had been previously convicted. This answer by the bailiff is prejudicial as it encourages [juror J.B.] to seek improper information from other jurors.
"11. Mr. Pace was denied a fair trial due to the juror misconduct of [juror O.F.]. [Juror O.F.], and all the jurors, was voir dired about whether his racial attitudes would influence him in reaching a verdict in the case, and he denied having any racial views that would impact his ability to be a fair and impartial juror. After defense witnesses Oliver and Clyde Cook, African-American men, testified, [juror O.F.] told other jurors that he does not believe a `word those niggers said.' See attached statement of alternate juror [J.M.], page 4. The implication is that he would have believed the witnesses if they were white. This is improper and premature deliberation. Additionally, it is clear that [juror O.F.] harbors racist views and was not honest in voir dire about his racial views. Had [juror O.F.] been honest in voir dire, he would have been stricken for cause or stricken by the defense. This dishonesty prejudiced Mr. Pace's case as Mr. Pace is entitled to a jury free of concealed racial bias and a verdict free [from] racism."
(C. 1346-47.)
In support of his motion for a new trial, and as an addendum to that motion, Pace submitted the March 10, 2002, statement of alternate juror J.M., and an affidavit from Kate Weisburd, the investigator who interviewed juror J.B. concerning her telephone conversation with her friend and her subsequent conversation with the bailiff assigned to supervise the sequestered jury.
The State did not refute any of the allegations in Pace's motion for a new trial and supporting documents. The motion was denied by operation of law, without any ruling by the circuit court.
In Edgar v. State, 646 So.2d 683, 687 (Ala. 1994), the Alabama Supreme Court addressed a similar situation:
"We hold that where, as here, a criminal defendant's motion for a new trial is denied under the provisions of Rule 24.4, Ala.R.Crim.P., without an affirmative statement by the trial judge giving the ruling a presumption of correctness and the defendant supports his new trial motion by evidence that was not presented at trial, and that evidence, if not controverted by the State, will entitle him to a new trial, the denial by operation of law should be reversed and the case remanded for the trial court to conduct a hearing on his motion for new trial and then enter an order either granting or denying the motion."
See also Benjamin v. State, [Ms. CR-01-1168, February 28, 2003] ___ So.2d ___, ___ (Ala.Crim.App. 2003); McDade v. State, [Ms. CR-01-0572, April 26, 2002] ___ So.2d ___, ___ (Ala.Crim.App. 2002).
While we express no opinion as to the merits of Pace's other grounds in his motion for a new trial, we note that the two allegations set out above cause this Court grave concern. Indeed, this Court has previously determined that a juror's failure to respond truthfully to questions during voir dire warranted a new trial. See, e.g., Tomlin v. State, 695 So.2d 157, 175-76 (Ala.Crim.App. 1996); State v. Freeman, 605 So.2d 1258, 1259-60 (Ala.Crim.App. 1992). Moreover, "[j]uror misconduct will justify a new trial when it indicates bias or corruption, or when the misconduct affected the verdict, or when from the extraneous facts prejudice may be presumed as a matter of law." Whitten v. Allstate Ins. Co., 447 So.2d 655, 658 (Ala. 1984). Although in a different context, the Supreme Court recently noted: "'"[W]e are hard pressed to think of anything more damning to an accused than information that a jury had previously convicted him for the crime charged."'" Ex parte Pettibone, [Ms. 1011802, January 10, 2003] ___ So.2d ___, ___ (Ala. 2003) (quoting Frazier v. State, 632 So.2d 1002, 1007 (Ala.Crim.App. 1993) (quoting in turn United States v. Attell, 655 F.2d 703, 705 (5th Cir. 1981))).
Based on Edgar, we remand this case for the circuit court to make specific, written findings of fact as to each claim Pace raised in his motion for a new trial. On remand, the circuit court should require the State to respond to the motion and should conduct a hearing on the motion. If the circuit court determines that Pace is entitled to relief on his claims, then the court may grant such relief as it deems appropriate.
The circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 56 days of the release of this opinion. The return to remand shall include the State's response, a transcript of the proceedings on remand, and the circuit court's specific written findings of fact.
REMANDED WITH DIRECTIONS.
McMillan, P.J., and Cobb, Baschab, and Shaw, JJ., concur.