Granville v. State

624 So. 2d 671, 1992 Ala. Crim. App. LEXIS 2582, 1992 WL 345592
CourtCourt of Criminal Appeals of Alabama
DecidedNovember 25, 1992
DocketCR-91-422
StatusPublished
Cited by1 cases

This text of 624 So. 2d 671 (Granville v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Granville v. State, 624 So. 2d 671, 1992 Ala. Crim. App. LEXIS 2582, 1992 WL 345592 (Ala. Ct. App. 1992).

Opinion

McMILLAN, Judge.

The appellant was convicted of murder and of robbery in the first degree. Pursuant to the Alabama Habitual Felony Offender Act, the appellant was sentenced to life imprisonment without parole on both convictions.

I

The appellant argues that the trial court abused its discretion in denying his motion for a continuance to secure the presence of a necessary witness. The appellant also argues that the trial court erred in denying his motion for a continuance in order to have the attorney who had been appointed to advise him as he proceeded pro se appointed as his counsel for the trial, arguing that counsel had insufficient time to prepare.

The record indicates that the trial court did not err in denying the appellant’s request for a continuance made on the basis of the unavailability of the alleged witness. Ex parte Saranthus, 501 So.2d 1256 (Ala.1986), lists the factors that must be considered before a continuance on this basis will be granted. These factors include: the materiality and competency of the absent witness’s testimony, the probability that the testimony will be forthcoming if a continuance is granted, the likelihood that the witness is available and willing to testify, and the indication that defendant exercised due diligence in attempting to obtain the testimony.

In the present case, on the day of trial, the appellant argued that he had read newspaper articles concerning a named witness to the offense. He alleged that the witness would be able to testify that the officers could not have seen what they stated that they had seen. The trial court asked if he had the witness’s name and address, and the appellant responded that he had attempted to secure the man’s address only by using the telephone book. The trial court told the appellant that a subpoena would be issued for the individual, if the appellant could locate him. The trial court further ordered the State to attempt to locate the individual before trial on the following week. Thereafter, on that date, the prosecutor stated that there was only one individual with that name in the telephone book and that he had been contacted. The prosecutor further stated that the individual had not been a witness to the offense. The appellant also stated that he had telephoned the individual and that he had denied any knowledge of the offense. The prosecutor further stated that the police had no information concerning such a witness. When asked by the trial court if he had contacted the newspapers who had named this individual, the appellant responded that he had not. The appellant’s counsel then requested that a subpoena be issued to the named individual at a particular business; however, the trial court responded that the appellant had not shown that this individual was anyone who knew anything about the case, but stated that if the alleged witness could be located a subpoena would be issued and time allowed to interview and to investigate the witness. No further mention was made of the alleged witness.

Based on these facts, the likelihood of locating the witness, or of the witness’s testifying, is dubious, as is the proof that due diligence was exercised by the appellant in attempting to locate the witness before trial. Because whether to grant a continuance is a matter largely vested to the discretion of the [673]*673trial court, and because we find no clear showing of abuse of that discretion, the appellant is not entitled to relief on this ground. See Johnson v. State, 542 So.2d 341 (Ala.Cr.App.1989).

Moreover, the appellant’s claim that the trial court improperly denied his motion for continuance to allow additional time for counsel to prepare for trial is meritless, because the record indicates that the motion was merely a delaying tactic. The record indicates that, even in district court, the judge had difficulty appointing any counsel for the appellant, according to the case action summary sheet, because of the appellant’s “demeanor.”

Upon transfer to circuit court, counsel was appointed for the appellant, but he vigorously invoked his right to represent himself. Following a full colloquy, the appellant was allowed to represent himself, but the trial court appointed counsel to advise the appellant. The appellant filed a number of pretrial motions and, on the date of trial, informed the court that he was not able to represent himself effectively. He then asked for a continuance to obtain counsel. The court responded that the counsel he had appointed to advise the appellant was available and the appellant ultimately agreed to allow that attorney to act as his co-counsel. Counsel then requested a continuance in order to prepare for trial. The trial court pointed out that counsel had been acting as legal advisor, upon order of the court, and indicated that, although the request for a continuance was being denied, counsel could have additional time to become more familiar with the ease after a jury was selected. The record indicates that the trial court did recess early on the first several days of trial.

The denial of the continuance did not result in insufficient time to prepare for the case. Swann v. City of Huntsville, 471 So.2d 1268 (Ala.Cr.App.1985). Further, the trial court did not clearly abuse its discretion in denying the motion for a continuance to allow counsel additional time to prepare. Ex parte Saranthus, supra.

Moreover, although the appellant argues that the trial court’s action denied him the effective assistance of counsel, the record indicates that the appellant intelligently and voluntarily elected to proceed without counsel, which was his constitutional right. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). There was no indication in the record that defense counsel’s representation failed to meet the standards established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Further, the appellant makes no specific claims, nor cites any specific instances, of alleged ineffectiveness. Thus, the appellant has failed to make any meritorious claim of ineffectiveness of counsel.

II

The appellant argues that the prosecutor exercised her peremptory jury strikes in a discriminatory manner, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Ex parte Branch, 526 So.2d 609 (Ala.1987). The record indicates that nine members of the original venire were black, and that the prosecutor used three of her seven peremptory strikes to remove black members. The appellant also struck three blacks from the venire. The appellant argued that the three black potential jurors struck by the prosecutor were removed for racial reasons. The trial court stated that it did not believe that race was a factor in the strikes, but it required both the prosecutor and the appellant to give reasons for their strikes of black potential jurors.

The prosecutor responded that the first black potential juror was struck because he was a self-employed “female illusionist,” a type of entertainer.

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Related

Arthur v. State
711 So. 2d 1031 (Court of Criminal Appeals of Alabama, 1996)

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Bluebook (online)
624 So. 2d 671, 1992 Ala. Crim. App. LEXIS 2582, 1992 WL 345592, Counsel Stack Legal Research, https://law.counselstack.com/opinion/granville-v-state-alacrimapp-1992.