CHAVERS v. STATE (2008)

The appellant, Larry Richard Chavers, was convicted of one count of sodomy in the first degree, a violation of § 13A-6-63, Ala.Code 1975, and one count of sexual abuse in the first degree, a violation of § 13A-6-66, Ala.Code 1975. The trial court sentenced Chavers to 21 years' imprisonment on the sodomy conviction and to 10 years' imprisonment on the sexual-abuse conviction. Pursuant to the Split Sentence Act, § 15-18-8, Ala.Code 1975, the court suspended Chavers's 10-year sentence for sexual abuse and ordered him to serve 3 years in prison and the balanced on supervised probation. The court ordered that these sentences be served consecutively. The court also ordered that Chavers pay $5,000 into the crime victims compensation fund, as well as court costs.

The evidence at trial tended to establish that in late May and early June 2004, I.G. and her husband took her minor grandchildren, T.G. and W.G., to their cabin in North Carolina.¹ One night during their stay, I.G. looked in the bedroom where T.G. and W.G. were sleeping and found them lying on top of each other in an inappropriate manner, wearing only their pajama tops. In response to questioning, T.G. told I.G. that Chavers had touched her in the same manner when he was dating T.G.'s mother. I.G. returned to Alabama and telephoned the Escambia County Sheriff, who came to her house and took her statement. Thereafter, the Alabama Department of Human Resources (“DHR”) became involved, and an investigation ensued. I.G. was instructed to take T.G. to the Child Advocacy Center where Stephanie Jackson interviewed T.G.

At trial, T.G. recounted in detail multiple instances of abuse and/or sodomy by Chavers. T.G., who was 10 years old at the time of Chavers's trial, stated that the acts took place when she was seven years old and Chavers was dating her mother. T.G. stated that Chavers had attempted to touch her or to make her do something inappropriate 15 to 20 times and that while she was being abused or sodomized Chavers would tell her she would be grounded if she told anyone. On several occasions, T.G. attempted to tell her mother about Chavers's actions. T.G. did manage to tell her mother about one such instance; according to T.G., her mother told T.G. that she would take care of it. Another time, T.G. stated that she tried to persuade her mother to pretend that she had left the house in order to catch Chavers “in the act.” T.G. also described the incident in North Carolina when her grandmother walked into the bedroom while she and W.G. were touching each other in places that they should not have been touching each other. T.G. testified that she told her grandmother Chavers had taught her that kind of touching. The jury convicted Chavers of first-degree sodomy and first-degree sexual abuse, as charged in the indictment.

Following conviction and sentencing, Chavers filed a timely motion for a new trial on December 8, 2006. A hearing was set for December 28, 2006, to consider Chavers's motion. At the December 28 hearing, the court and counsel agreed to continue the hearing until January 4, 2007. At the conclusion of the December 28 hearing, the court noted that defense counsel had subpoenaed several witnesses to testify at the hearing on the motion for a new trial and inquired if counsel planned to raise questions of residency as to any of the jurors. Defense counsel replied that he did not. The court then disclosed to the prosecutor and defense counsel it had learned that juror no. 216-who had served on the jury that convicted Chavers-was not a resident of Escambia County, Alabama, at the time of Chavers's trial. The court stated that, after contacting the Judicial Inquiry Commission regarding the proper course of action regarding what it had learned, it was disclosing the matter of juror no. 216's residency to counsel. Juror no. 216 was subpoenaed to testify at the January 4 hearing. During an evidentiary hearing on Chavers's motion for a new trial, conflicting evidence was presented concerning juror no. 216's residence. The trial court made no written findings of fact regarding Chavers's claim. Instead, the trial court allowed Chavers's motion for a new trial to be denied by operation of law. This appeal followed.

A critical issue presented for review is whether the trial court erred when it denied Chavers's motion for a new trial, which asserted as a ground that one of the jurors in his case was not a resident of Escambia County, Alabama, at the time of his trial. Because Chavers's motion for a new trial was denied by operation of law, the presumptions that normally apply to a trial judge's denial of a motion for new trial do not apply. See Edgar v. State, 646 So.2d 683 (Ala.1994).

Chavers argues that juror no. 216 was not a resident of Escambia County at the time of the trial and that he was therefore not qualified to sit on a jury in Escambia County. Chavers further argues that although the Alabama judicial system jury roles indicated that juror no. 216 had an Escambia County, Alabama, post office box and an address of South Eighth Avenue in Atmore, which is located in Escambia County, Alabama, he did not actually reside at that address. Instead, Chavers argues, juror no. 216 actually resided at 7500 Hodges Road, just across the state line in Escambia County, Florida.² Thus, Chavers argues, a new trial is required in this case.

During the January 4 hearing on Chavers's posttrial motions, juror no. 216 was subpoenaed to testify. Juror no. 216 testified that he lived at 105-1/2 Tatum Avenue in Atmore, Alabama, that he maintained a post office box in Atmore, and that he had lived there all of his life.³ However, juror no. 216 testified, he did not own property in Alabama. Rather, he testified, he and his wife owned property in Florida, just across the state line in Escambia County, Florida. Juror no. 216 testified that his wife and children lived on the Florida property and that the address of that property was 7500 Hodges Road. Juror no. 216 denied that he resided with his wife and children at the Florida address; he also denied that he and his wife were separated. Instead, he maintained that “I stay there a little bit,” but admitted that he spent three to four nights a week there and that he had spent all the previous week at the residence in Florida. (R. 735.) Juror no. 216 testified that he had been employed by Reid State Technical College in Evergreen for the past 15 years and that his job required him to have an Alabama driver's license. When asked when he stopped residing in the State of Florida, juror no. 216 responded, “I guess I still do.” (R. 736.) Ultimately, juror no. 216 maintained that he resided both in Alabama at the Tatum Avenue address and in Florida at the Hodges Road address. When defense counsel attempted to determine how often juror no. 216 stayed with his wife and children in Florida and for how long, juror no. 216 responded that that was “between me and my wife how many times I stay there.” (R. 739.) Juror no. 216's wife was equally unwilling to disclose her husband's residence, maintaining that it was not anyone's business “how many nights my husband stays at my house or if he stays at his sister's house.” (R. 754.) However, she did admit that her husband's job required him to be an Alabama resident. Juror no. 216's sister was also subpoenaed to testify. She testified that she lived at 105 Tatum Avenue in Atmore, Alabama-approximately two to three miles from the Florida state line. She testified that she owned two houses in Atmore. She further testified that the addresses of the houses were 105 Tatum Avenue and 105-1/2 Tatum Avenue, and that the houses were approximately 50-60 feet apart. Juror no. 216's sister testified that on occasion her brother stayed at the house located at 105-1/2 Tatum Avenue, but she was unable to say how often he stayed there. Further questioning determined that the utility bills for 105-1/2 Tatum Avenue were in her name and that her brother did not compensate her financially for staying at that address.

“Alabama Code 1975, § 12-16-60(a)(1), requires that for more than 12 months before the start of the trial a prospective juror be a resident of the county in which the juror is being asked to serve. In order to serve as a juror in a trial pending in [Escambia County], a prospective juror must have resided in [Escambia County] for more than 12 months before the start of the trial. See General Motors Corp. v. Hopper, 681 So.2d 1373 (Ala.1996). The requirements of § 12-16-60 are mandatory; the juror qualifications are not within the trial court's discretion. McBride v. Sheppard, 624 So.2d 1069, 1071 (Ala.1993).

“In McBride, the appellants argued that the trial court had erred in denying their motion for a new trial in which they argued that a juror was not qualified to sit on the jury under § 12-16-60(a)(2), Ala.Code 1975 (requiring a juror to be able to read instructions given by the judge). This Court noted that it had held in Chrysler Credit Corp. v. McKinney, 456 So.2d 1069 (Ala.1984), ‘that a new trial was required where the prospective jury venire was specifically asked whether each member could read and write the English language and each member indicated by silence that he or she could.’ 624 So.2d at 1072. However, in McBride this Court noted that the record did not indicate that the prospective juror was specifically asked whether he could read or write the English language; instead, the juror had indicated by his silence that he could. Because the record did not indicate that counsel for the McBrides had specifically questioned the prospective juror about his ability to read the English language and the record also did not indicate that counsel was concerned about the educational background of the prospective jurors, this Court affirmed the trial court's order denying the motion for a new trial. 624 So.2d at 1072. See also Holland v. Brandenberg, 627 So.2d 867, 870 (Ala.1993)(‘Failure to use due diligence in testing jurors as to qualifications or grounds of challenge is an effective waiver of grounds of challenge; a defendant cannot sit back and invite error based on juror disqualification.’).

“In Noble Trucking [Co. v. Payne, 664 So.2d 202 (Ala.1995) ], cited by Keibler-Thompson as support for its argument that a new trial is warranted here, the appellant, Payne, learned that a juror's voting rights had not been restored and that the juror was therefore disqualified under § 12-16-60, Ala.Code 1975. 664 So.2d at 202. Noble Trucking argued that Payne's attorney did not ask the prospective jurors whether any of them had committed a felony and, if so, whether their voting rights had been restored; thus, it argued, Payne had waived any right to complain on the basis of a juror's disqualification. This Court upheld the trial court's order granting a new trial and, in doing so, distinguished Holland and McBride. 664 So.2d at 203-04. In Noble Trucking, we stated that ‘[i]n Holland and McBride the trial court did not conduct open voir dire in the presence of the defendant's attorney, and the attorneys failed to conduct their own voir dire to ask the jurors about their qualifications.’ 664 So.2d at 204. However, we noted, in Noble Trucking, ‘the trial court specifically asked the prospective jurors, in the presence of Payne's counsel, whether any of them were convicted felons whose voting rights had not been restored, and Holland remained silent.’ 664 So.2d at 204. We concluded that Payne and her attorney had a right to rely on the juror's response to the trial court's question regarding his qualifications as a juror. Id. Moreover, we noted that due diligence regarding a juror's qualifications does not require counsel to conduct voir dire examination that would be repetitious of the voir dire examination already conducted by the court. Id. See also Lollar v. State, 422 So.2d 809 (Ala.Crim.App.1982); Slay v. State, 338 So.2d 3 (Ala.Crim.App.1976).3

“Steading, citing Parish v. State, 480 So.2d 29, 31 (Ala.Crim.App.1985), and Huckabaa v. State, 475 So.2d 891 (Ala.Crim.App.1985), argues that in order to establish the need for a new trial based on a prospective juror's failure to respond properly to a question regarding his or her qualifications, Keibler-Thompson must establish that its rights were probably prejudiced by the juror's failure to respond to the question. However, Steading's argument is misplaced, because Parish and Huckabaa do not address juror qualifications enumerated in § 12-16-60, Ala.Code 1975. Parish dealt with a juror's failure to disclose her possible acquaintance with defense counsel, and Huckabaa dealt with challenges of jurors for cause under § 12-16-150, Ala.Code 1975. See Chrysler Credit Corp. v. McKinney, 456 So.2d 1069, 1071 (Ala.1984). Juror no. 138 was disqualified because she did not meet the mandatory requirements of § 12-16-60(a)(1), and Keibler-Thompson was misled by juror no. 138's failure to respond to the question regarding residency.

Keibler-Thompson Corp. v. Steading, 907 So.2d 435, 441-43 (Ala.2005).

The evidence presented at the hearing on the motion for a new trial was, at best, inconsistent and conflicting, and the motion was denied by operation of law, without an affirmative statement by the trial court. Addressing a similar situation, the Alabama Supreme Court held:

“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.”

Edgar v. State, 646 So.2d 683, 687 (Ala.1994); see also Benjamin v. State, 889 So.2d 610, 612 (Ala.Crim.App.2003); McDade v. State, 864 So.2d 377, 378 (Ala.Crim.App.2002).

Given these circumstances, we conclude that the best course of action is to remand this case for the trial court to issue specific written findings of fact regarding Chavers's claim, because the trial court is in the best position to reconcile the inconsistent and conflicting testimony and to make credibility choices. See, e.g., Thomas v. State, [Ms. CR-05-1553, September 28, 2007] --- So.2d ---- (Ala.Crim.App.2007); Vinnie v. State, 866 So.2d 1175 (Ala.Crim.App.2002).

Based on Edgar, we remand this case for the trial court to make specific, written findings of fact as to each claim Chavers raised in his motion for a new trial, as well as any additional claims that were raised and upon which evidence was presented during the hearing on Chavers's motion for a new trial. If the trial court determines that Chavers is entitled to relief on his claims, then the court may grant such relief as it deems appropriate.

The trial 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 trial court's specific written findings of fact and any other materials generated in response to this Court's directions.⁴ Because it is necessary to remand this case, we pretermit discussion of Chavers's remaining claims.

REMANDED WITH DIRECTIONS.

FOOTNOTES

FOOTNOTE.  FN“3In Beasley v. State, the Court of Appeals recognized that the appellant's counsel and the court were misled by the juror's failure to respond. 39 Ala.App. 182, 96 So.2d 693 (1957). The court stated, ‘As to due diligence, we consider that a defendant is not required to search the records of all the courts of this State and of its municipalities running back to the time when the oldest venireman became 14 years of age.’ 39 Ala.App. at 189, 96 So.2d at 700.”

WISE, Judge.

BASCHAB, P.J., and McMILLAN, SHAW, and WELCH, JJ., concur.