Williams v. State , 580 So. 2d 71 ( 1991 )

ON REHEARING EX MERO MOTU

BOWEN, Judge.

On September 28, 1990, this appeal was submitted for decision. The judgment was affirmed, without opinion, on November 30, 1990, 575 So.2d 1261, with the following order:

“Affirmed. No Opinion. The judgment of the circuit court is affirmed for the following reasons: 1) The contention that reversible error exists because one of the two indictments was not read to the jury is without merit. 2) The contention that the grand jury which returned the indictments was improperly selected is a bare allegation without factual support in the record. All Judges concur.”

On December 3, 1990, the appellant filed a supplemental record containing a stipulation between defense counsel and the district attorney dated “the ._day of October, 1990,” and apparently filed in the office of the circuit clerk during the first week in October. That stipulation is to the effect that, in the Wilcox County case of State v. Gates, CC-89-82, the circuit court by order entered March 26, 1990, found that the jury commission had failed to comply with the provisions of Ala.Code 1975, § 12-16-60(b)(2), by failing to notify the rejected veniremembers of their disqualification, “failpng] to keep appropriate records as required by law,” and “ex-clud[ing] prospective jurors for reasons other than those allowed by law.” In that order, the circuit court concluded:

“In view of the foregoing, it is clear that the statutory requirements have not been complied with by the jury commission. Without question, any further proceeding herein by the jury venire as presently impaneled would be in clear violation of statutory requirements. The facts and the law in this matter are so clearly obvious and without contradiction that it would be totally irresponsible to allow this cause to go to trial knowing the certainty of the reversal of any decision and the hardships that would be placed upon the parties as a result thereof. Therefore, the proper administration of justice leaves this Court with no alternative other than to grant the Motion [to quash the indictment and the jury venire] filed by the Defendant herein.... ”

It appears that the appellant has been negligent in presenting this court with an accurate record of his trial and conviction. The stipulation of defense counsel and the prosecutor, and the order of the trial court directing that that stipulation be included in the record on appeal were all entered after the briefs in this case had been filed and after the case had been submitted for decision. Furthermore, this Court still cannot determine whether the evidence presented in the Gates case was presented to the circuit court in this case.

However, to allow the affirmance of this case to stand would be to invite post-conviction proceedings and delay in the final adjudication of this cause. Therefore, the order of this Court dated November 30, 1990, is hereby set aside. The submission of this cause is also set aside. This cause is remanded to the circuit court, vesting that court with the jurisdiction to take whatever action, if any, is deemed necessary in this case. If the circuit court determines that no further action is necessary, it shall enter an order so stating and containing specific findings as to 1) whether the issue of the jury commission was properly presented in this case, and 2) why the order entered in the case of State v. Gates, Wilcox County CC-89-82, March 2, 1990, should not or does not apply in the appellant’s case. Within 30 days from the date of this opinion, the circuit court shall file with this Court a copy of the order entered in this cause.

ORDER OF THIS COURT DATED NOVEMBER 30, 1990, SET ASIDE; SUBMISSION OF THIS CAUSE SET ASIDE; REMANDED WITH INSTRUCTIONS.

All Judges concur.

ON RETURN TO REMAND

BOWEN, Judge.

The original submission of this appeal was set aside and the cause remanded for the trial court to determine whether any further action was necessary. Williams v. State, 580 So.2d 71 (Ala.Cr.App.1991). On remand, the trial court entered the following order:

“Having reviewed and considered the Order of Remand from the Court of Criminal Appeals, it is determined and ordered as follows:

“1. This cause was tried by the Honorable Charles A. Thigpen who is presently serving on the Court of Civil Appeals.

“2. Review of the court file indicates that no further action is necessary or warranted in this cause in that the issue relating to the jury commission was not properly presented to the trial judge.

“3. The Order entered in the case of the State v. Gates, Wilcox County Circuit Court Case No. CC-89-92, was entered on April 4, 1990.

“4. The matters addressed in the State v. Gates Order were known to the attorney for the defendant prior to the trial of this cause [July 9, 1989].”

In his brief on appeal, the appellant states:

“Defendant was sentenced June 13, 1990. Subsequent to defendant’s sentencing and in an unrelated matter, it was judicially determined that the jury venires in Wilcox county were selected in an unconstitutional manner. On June 22, 1990, defendant filed a motion for a new trial. One of the grounds alleged in the motion for new trial (CR-207) was:

“ ‘That the jury box, out of which defendant’s venire was selected for the trial of his case on December 7, 1989, has subsequently been declared to be invalid and indictments resulting from said jury box have since been quashed.’

“The trial court overruled the motion on June 29, 1990 without an evidentiary hearing.”

Appellant’s brief at p. 1.

“[Objections going to the venire of the petit jury or any member thereof, must be made before entering upon the trial of the case on its merits under the defendant’s plea of not guilty, and a failure to make such objections constitutes a waiver. Peterson v. State, 227 Ala. 361, 150 So. 156 [1933]. This rule has its exceptions as when the defendant is misled by the false oath and fraud of a venireman, and thereby induced to accept such venireman on the jury. 20 R.C.L. 242, § 27.

“It is not permissible for the defendant, who has not been so misled, to participate in the selection of the jury without objections, speculate on winning a favorable verdict, and failing to do so, allow him to raise such questions on a motion for new trial. Simpson v. Golden, 114 Ala. 336, 21 So. 990 [1897]; Hoskins v. Hight, 95 Ala. 284, 11 So. 253 [1892]; Barron v. Robinson, et al., 98 Ala. 351, 13 So. 476 [1893]; Fulwider v. Jacob, 221 Ala. 124, 127 So. 818 [1930].”

Vernon v. State, 239 Ala. 593, 598, 196 So. 96, 99 (1940), reversed on other grounds, 313 U.S. 547, 61 S.Ct. 1092, 85 L.Ed. 1513 (1941), quoted in Bell v. State, 252 Ala. 686, 692, 42 So.2d 626, 631-32 (1949), cert. denied, 339 U.S. 929, 70 S.Ct. 625, 94 L.Ed. 1350 (1950).

The appellant’s convictions for first degree sodomy and first degree sexual abuse are affirmed.

OPINION EXTENDED; AFFIRMED.

All Judges concur.