Foster v. State , 587 So. 2d 1106 ( 1991 )

587 So. 2d 1106 (1991)

Billy FOSTER
v.
STATE.

CR-90-1067.

Court of Criminal Appeals of Alabama.

September 20, 1991.

W. Gary Hooks, Jr., Mobile, for appellant.

James H. Evans, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

The appellant, Billy Foster, was indicted by the Baldwin County grand jury for murder, a violation of § 13A-6-2, Code of Alabama 1975. After a jury trial, he was found guilty of the lesser included offense of criminally negligent homicide. He was sentenced to one year in the Baldwin County jail and was fined $5,000. The appellant presents two issues on appeal to this court.

I

The appellant first contends that the circuit court abused its discretion when it denied his motion for a mistrial based upon alleged prejudicial events which occurred in the presence of the jury. The appellant specifically argues that while passing through a metal detector located outside the courtroom, he was singled out for a search of his person. He contends that this search was witnessed by the jury venire, thereby prejudicing his chances of receiving a fair trial. There is no evidence contained in the record that suggests that the appellant was so singled out and searched. We will not predicate error on a silent record. See Cardwell v. State, 544 So. 2d 987 (Ala.Cr.App.1989).

Further, he contends that an unresponsive answer given by a member of the venire in the presence of the entire venire further prejudiced his chance of receiving a fair trial.

The alleged unresponsive answer given by the potential juror was as follows:

"A JUROR: S.B. is my sister's son's son, and that's my sister. But I also live across the street from [the appellant].

"THE COURT: All right. The fact that you know [the appellant], would that prevent you from giving the state or the defense a fair trial?

"A JUROR: I'm afraid so. I have heard too much rumors."

After this short exchange, a bench conference was held and the juror was excused by the trial court.

We cannot say that, as a matter of law, the juror's remark "I have heard too much rumors" was a ground for a mistrial. The court did not abuse its discretion in denying the motion for a mistrial.

II

The appellant contends that the trial court erred to reversal when it fined him $5,000 after his conviction for criminally negligent homicide.

Section 13A-6-4, Code of Alabama 1975, defines this offense and lists it as a Class A misdemeanor. Section 13A-5-12, Code of Alabama 1975, provides in pertinent part:

"(a) A sentence to pay a fine for a misdemeanor shall be for a definite amount, fixed by the court, within the following limitations:

"(1) For a Class A misdemeanor, not more than $2,000.00;

"(2) For a Class B misdemeanor, not more than $1,000.00;

"(3) For a Class C misdemeanor, not more than $500.00"

We must, and do hereby, remand this case to the circuit court and instruct that court to conform to this statute, and to impose a fine within the limits set forth therein.

REMANDED WITH INSTRUCTIONS.

All the Judges concur.