Wilkerson v. State

Page 1266

686 So.2d 1266

Nicholas Ramon WILKERSON v. STATE.

CR-93-1581.

Court of Criminal Appeals of Alabama.

April 19, 1996.

Rehearing Denied June 21, 1996.

Certiorari Denied Nov. 22, 1996

Alabama Supreme Court 1951675.

Richard S. Jaffe and Dennis W. Jacobs, Birmingham, for appellant.

Jeff Sessions, Atty. Gen., and Frances Smith, Asst. Atty. Gen., for appellee.

LONG, Judge.

The appellant, Nicholas Ramon Wilkerson, was convicted of murder made capital because it was committed during a robbery in the first degree, § 13A-5-40(a)(2), Code of Alabama 1975. Both parties, with the consent of the trial court, waived the right to a sentencing hearing before a jury, and the trial court sentenced the appellant to life imprisonment without parole, pursuant to § 13A-5-44(c), Code of Alabama 1975.

I.

The appellant contends that the trial court improperly limited the scope of his voir dire questioning of veniremembers C.S. and M.T.

The appellant argues that the trial court erred in not allowing him to conduct individual voir dire examination of C.S. concerning C.S.'s views on certain factors that might constitute mitigating evidence in evaluating the appropriateness of the death penalty. However, because the appellant was sentenced to life imprisonment without parole, any error in this regard is harmless. Giles v. State, 632 So.2d 568, 575 (Ala.Cr.App.1992) aff'd, 632 So.2d 577 (Ala.1993), cert. denied, 512 U.S. 1213, 114 S.Ct. 2694, 129 L.Ed.2d 825 (1994).

The appellant argues that the trial court erred in not allowing him to conduct further individual voir dire examination of M.T. concerning M.T.'s possible fixed opinion of the appellant's guilt. The record reflects that the appellant's counsel had already engaged in individual voir dire of M.T. when he requested that he be allowed to question M.T. further. The trial judge then stated, "All right." However, the prosecutor stated, "I will deny further inquiry." R. 300. Instead of seeking a final ruling from the trial judge, the appellant's counsel, apparently in response to the prosecutor's statement, made only a general objection and asked M.T. no further questions. The appellant's claim that he was disallowed from conducting further voir dire of M.T. is procedurally barred from appellate review, because the appellant failed to obtain an adverse ruling from the trial court on this issue. Hemphill v. State, 669 So.2d 1020, 1023 (Ala.Cr.App.1995) (" 'In the absence of a ruling, a request for a ruling or objection to the court's failure to rule, there is nothing preserved for appellate review.' Porter v. State, 654 So.2d 63 (Ala.Cr.App.1994)").

Even had the appellant preserved this issue for our review, we would find it to be without merit. The appellant's contention in his brief to this Court that "[t]he trial judge limited the individual voir dire of [M.T.] to her opinions regarding the death penalty" (appellant's reply brief at 6) is unsupported by the record. The record reflects that in addition to questioning M.T. about her opinions on the imposition of the death penalty, the appellant's counsel specifically questioned M.T. regarding whether she had a fixed opinion as to the appellant's guilt as a result of her prior knowledge of the case. The extent of individual voir dire examination is within the discretion of the trial court. See Haney v. State, 603 So.2d 368, 402 (Ala.Cr.App.1991), aff'd, 603 So.2d 412 (Ala.1992), cert. denied, 507 U.S. 925, 113 S.Ct. 1297, 122 L.Ed.2d 687 (1993). Here, as in Johnson v. State, 620 So.2d 679, 707 (Ala.Cr.App.1992), rev'd on other grounds, 620 So.2d 709 (Ala.1993), "[t]he record reveals that no evidence of any prejudicial publicity was presented to the trial court," and "[t]here is no indication in the record that there was any pretrial publicity in the case that gave rise to a significant possibility of prejudice." See Parker v. State, 587 So.2d 1072 (Ala.Cr.App.1991). Accordingly, the trial court did not abuse its discretion in not allowing the appellant to conduct further individual voir dire examination of M.T.

II.

The appellant contends that the trial court erred in not granting his challenges for cause as to veniremembers R.C., L.W., M.T., and B.A., and that the trial court erred by granting the State's challenge for cause as to veniremember C.S.

With regard to R.C., the appellant argues that this veniremember evidenced a fixed opinion as to his guilt because she indicated that she had read about the murder in the newspaper and she made the following statement with respect to what she read: "I just basically thought they had found somebody that did it is all I remember. I don't recall having any great thoughts about it." R. 49.

" ' "A 'fixed opinion' which will bias a verdict is one that is a conviction or prejudgment, a strong or deep impression which closes the mind of a juror and combats the testimony and resists its force." ' " Oryang v. State, 642 So.2d 979, 987 (Ala.Cr.App.1993), quoting Siebert v. State, 562 So.2d 586, 595 (Ala.Cr.App.1989), in turn quoting other cases. We find that R.C. did not, as the appellant asserts, evidence a fixed opinion that the appellant "was guilty because he was arrested for the crime." Appellant's brief at 25. When the appellant challenged R.C. for cause based on her statement, the trial judge correctly concluded that this issue was "a question of semantics." R. 50. R.C. indicated that she had only limited information about the crime. "The mere knowledge of the facts and issues in this case, as in any case, does not disqualify a potential juror from serving on the case. Kinder v. State, 515 So.2d 55, 59-61 (Ala.Cr.App.1987)." Harris v. State, 632 So.2d 503, 519 (Ala.Cr.App.1992), aff'd, 632 So.2d 543 (Ala.1993), aff'd, 513 U.S. 504, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995).

With regard to L.W., there is no indication in the record that the appellant ever made a challenge for cause as to this veniremember. As the State points out, while the appellant asserts in his brief that L.W. was juror no. 230, appellant's brief at 22, and the record does reflect that the trial judge denied a challenge as to juror no. 230, R. 84, the record does not reflect the juror number assigned to L.W. In fact, the record does not contain the jury list, and we are unable to discern from the transcript the numbers assigned to most veniremembers who were challenged for cause. Consequently, the appellant's claim as to L.W. is procedurally barred from appellate review. Minter v. State, 543 So.2d 202, 203 (Ala.Cr.App.1989) ("[t]his court is bound by the record and we cannot consider arguments not supported by the record").

With regard to M.T., the appellant argues that this veniremember had a fixed opinion as to his guilt because of her relationship with a sheriff's deputy and because she had visited the murder scene on the night of the crime. During individual questioning by the trial judge, M.T. stated that her boyfriend was a Jefferson County sheriff's deputy, that she knew "a few" Hueytown police officers, and that she had driven by the scene of the murder, Bill's Farmhouse, a restaurant in Hueytown, on the night of the murder, and had asked persons present what had happened. R. 70-71. She then stated as follows: "I think I remember that someone had gone out to take the trash out the back door and someone came out behind and forced his way in and someone was shot. [I remember] [m]y boyfriend saying there was a BOLO out for five or six black males in a small car." R. 71. M.T. further stated that she thought she had made up her mind about what had happened in the crime, but that she had never heard anyone mention the names of those persons allegedly involved. R. 71. The trial judge then asked M.T. the following question: "Do you feel you could give [the appellant] a fair trial in spite of what you heard or would it affect your ability? What if you heard the evidence and didn't think the [S]tate proved it. Would you have a hard time returning a guilty verdict?" R. 71-72. M.T. responded, "I think I could be fair." R. 72. (Emphasis added.)

When cross-examined by the appellant's counsel shortly after she had stated that she could be fair, M.T. stated that she would believe what her boyfriend, a sheriff's deputy, told her about the crime. R. 72. The appellant's counsel then asked the following leading questions:

"[APPELLANT'S COUNSEL]: ... [W]ouldn't that make it a little difficult to really sit on the jury in this case, even the fact that you drove by there that very night and saw, knowing someone was killed and seeing police cars and you knew the people. Wouldn't that make it difficult looking and searching yourself?

"[M.T.]: Well, I see your point.

"[APPELLANT'S COUNSEL]: It would, wouldn't it?

"[M.T.]: I think it would, yeah."

R. 72-73.

The questions from the appellant's counsel did not define the level of difficulty that M.T. might have were she to sit on the jury, and M.T.'s response to those questions could be construed to mean either that she would find it so difficult to sit on the jury that she could not give a fair trial, or (given her previous statement that she could be fair) that she would find it difficult to sit on the jury but that she could still be fair.

Judge Bowen, writing for the Court in Morrison v. State, 601 So.2d 165 (Ala.Cr.App.1992), stated:

"Decisions regarding '[t]he clarity of the questions propounded' are also within the discretion of the trial court. [Citation omitted.] As the United States Supreme Court has observed:

" 'It is well to remember that the lay persons on the panel may never have been subjected to the type of leading questions and cross-examination techniques that frequently are employed ... [during voir dire].... Also, unlike witnesses prospective jurors have had no briefing by lawyers prior to taking the stand. Jurors thus cannot be expected invariably to express themselves carefully or even consistently.... The trial judge may properly choose to...