Pilot v. State

607 So. 2d 306, 1992 WL 71024
CourtCourt of Criminal Appeals of Alabama
DecidedMarch 27, 1992
DocketCR 90-370
StatusPublished
Cited by6 cases

This text of 607 So. 2d 306 (Pilot 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
Pilot v. State, 607 So. 2d 306, 1992 WL 71024 (Ala. Ct. App. 1992).

Opinion

607 So.2d 306 (1992)

Daniel Amos PILOT
v.
STATE.

CR 90-370.

Court of Criminal Appeals of Alabama.

February 28, 1992.
As Modified on Denial of Rehearing March 27, 1992.

*307 Jim Zeigler, Mobile, for appellant.

James H. Evans, Atty. Gen., and Ed Carnes, Robert Lusk and Chris N. Galanos, Asst. Attys. Gen., for appellee.

MONTIEL, Judge.[1]

On March 31, 1990, Daniel Amos Pilot, the appellant, shot Darren Jessie and Joseph O'Cain while they were sitting in a car parked in the parking lot of a Winn-Dixie grocery store in Theodore, Alabama. Jessie died and O'Cain was paralyzed as a result of the shootings. The appellant was indicted for the murder of Jessie and for the attempted murder of O'Cain. The jury found the appellant guilty of both offenses, and the trial judge sentenced the appellant to life imprisonment without parole for both offenses under the Habitual Felony Offender Act, with the sentences to run concurrently.

I

The victims in this case are black and the appellant is white. Prior to trial, the prosecution requested the court "to enter an order prohibiting [defense] counsel from exercising his peremptory strikes to remove black members from the jury solely because of their race, or, in the alternative, to enter an order mandating the defense's use of peremptory challenges be governed by the principles and guidelines applied to prosecutors in 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.1977 [1987])." (R. 34.) The trial court then ordered that it would "prohibit racially motivated strikes by each side." (R. 38.)

After defense counsel used five of his seven peremptory strikes to remove blacks from the jury panel,[2] the trial court required defense counsel to give his reasons for removing those jurors. The trial court found that the reasons given by defense counsel for striking three of those five jurors were not race neutral. The trial court placed those three jurors back on the jury panel and then it randomly struck three other jurors who were in the group of twelve jurors originally selected to sit on the jury panel.[3] The appellant argues on appeal that his defense counsel should not have been required to give his reasons for striking the five black jurors. In Lemley v. State, 599 So.2d 64 (Ala.Crim.App.1992), this court, in an opinion authored by Judge Bowen, held that "the jury selection standards announced in Batson [v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) ], Powers [v. Ohio, ___ U.S. ___, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991),] and Edmonson [v. Leesville Concrete Co., Inc., ___ U.S. ___, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991),] also apply to the defense in a criminal case." Therefore, the court correctly required defense counsel to justify his strikes of the five black veniremembers after the prosecution had made a prima facie showing that defense counsel's removal of these jurors was discriminatory.

*308 II

The appellant contends that the trial judge erred by failing to grant his motion for a change of venue. He argues that he could not get a fair trial in Mobile County because of the extensive pre-trial publicity.

"There are two situations in which a change of venue is mandated. The first is when the defendant can show that prejudicial pre-trial publicity `has so saturated the community as to have a probable impact on the prospective jurors' and thus renders the trial setting `inherently suspect.' McWilliams v. United States, 394 F.2d 41 (U.S.C.A. 8th Cir.1968); Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). In this situation, a `pattern of deep and bitter prejudice' must exist in the community. Irvin v. Dowd [366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751], supra.
"The second situation occurs when the defendant shows `a connection between the publicity generated by the news articles, radio and television broadcasts and the existence of actual jury prejudice.' McWilliams v. United States, supra."

Nelson v. State, 440 So.2d 1130, 1131-32 (Ala.Crim.App.1983).

In support of his motion for change of venue, the appellant introduced six newspaper articles in which the appellant and his case were the main story[4]. Although some of the articles mentioned that this crime may have been racially motivated and that the appellant had been recently paroled at the time of this offense, the articles were basically factual and objective. Although coverage in six newspaper articles is more than most criminal cases receive, we cannot conclude that the number of articles alone constitutes extensive pretrial publicity. Furthermore, four of the six articles were published soon after this offense occurred and the other two articles were published several months before the trial began. The passage of time between the publicity concerning the crime and the trial of the defendant "`cannot be ignored as a factor in bringing objectivity to the trial.'" Robinson v. State, 430 So.2d 883, 886 (Ala.Crim.App.1983), (quoting Dannelly v. State, 47 Ala.App. 363, 254 So.2d 434, cert. denied, 287 Ala. 729, 254 So.2d 443 (1971)); Langham v. State, 494 So.2d 910 (Ala.Crim.App.1986). The appellant has not shown that the community was so saturated with inherently prejudicial pretrial publicity that he could not receive a fair trial in Mobile County.

We also find that the appellant did not show actual jury prejudice resulting from the pretrial publicity. The most effective way to demonstrate actual jury prejudice is through an extensive and thorough voir dire examination. Anderson v. State, 362 So.2d 1296 (Ala.Crim.App.1978). Here, the trial court conducted such an examination. The trial court asked general questions as to whether any of the jurors had heard anything about the case. Although 21 of the 30 prospective jurors indicated that they had some knowledge of the case, this fact alone does not mean that the appellant could not receive a fair trial. The trial court also asked the jurors if their knowledge of the case would cause them to have a fixed opinion about any aspect of the case. If any of the jurors gave a positive response to that question, the court then questioned them individually on this matter. The court questioned 15 or 16 jurors individually. Defense counsel was also given the opportunity to individually question the jurors about their knowledge of the case and whether their knowledge about the case would affect their verdict. The trial court granted all of defense counsel's challenges for cause.

The appellant has not shown a nexus between the pretrial publicity and the existence of actual jury prejudice. The trial court correctly denied the appellant's motion for change of venue.

The judgment of the trial court is affirmed.

AFFIRMED.

*309 BOWEN and McMILLAN, JJ., concur.

PATTERSON, P.J., and TAYLOR, J., dissent with opinions.

PATTERSON, Presiding Judge, dissenting.

I dissent from the majority's opinion, which again extends the ruling in Batson v. Kentucky,

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Bluebook (online)
607 So. 2d 306, 1992 WL 71024, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pilot-v-state-alacrimapp-1992.