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JONES v. STATE12/20/1996
Paul Jones was convicted on November 3, 1995, of three counts of sodomy in the first degree, three counts of sexual abuse in the first degree, and three counts of sexual abuse, second degree. The offenses underlying the convictions occurred over a period of several years and involved the appellant's sexual abuse of his minor niece by marriage, M.C. The appellant was sentenced to 10 years in the penitentiary on each count of sodomy in the first degree, one year and one day in the penitentiary on each count of sexual abuse in the first degree, and one year in the county jail on each count of sexual abuse in the second degree. All the sentences were to be served concurrently.
The appellant raises three issues on appeal.
I.
The appellant argues that the trial court erred in postponing the service of prospective grand jury members to a date after which they were originally summoned to appear.
The venire from which the grand jury that indicted him was selected consisted of 25 veniremembers who were originally scheduled to serve the previous week, were excused that week, and were told to report for duty the following week.
William E. Sayers, Circuit Clerk of Elmore County during this two week period, testified at a motion hearing on September 19, 1995, that all the cases originally scheduled for the civil docket during the week of January 3, 1995 had settled before trial. Judge Bush informed the jury at that time that it was excused for the week. Some jurors informed Judge Bush that they would like to serve on a jury at another time. (R. 61-64.) Mr. Sayers further testified, that at Judge Bush's direction, he recorded the names of those jurors who had indicated that they would like to serve and added them to the list of jurors summoned for the week of January. (R. 78-86.)
Other testimony revealed that the clerk did nothing to solicit the jurors' participation in the later venire. (R. 99). Sayers also revealed that he had no knowledge of any case that was scheduled to be presented to the January 9, 1995, grand jury and that he knew of no way that the jurors added to the January 9 venire could have obtained that information. (R. 98-99.) Additionally, Sayers testified that the veniremembers whose service was carried over had no way of knowing whether their service would be on a criminal petit jury, a civil petit jury, or a grand jury. (R. 101.)
The appellant maintains that this procedure was illegal and resulted in the arbitrary selection of the grand jury that indicted him. He also alleges that the judge involved himself in the selection process. We find his argument without merit.
Absent proof to the contrary, or an offer of proof, there is a presumption that no legal fraud exists in the jury selection procedure. Nixon v. State, 291 Ala. 657, 659, 286 So.2d 315, 317 (1973).
The appellant's contention that the inclusion of these jurors on the grand jury was illegal is not supported by Alabama law. Section 12-16-74, Ala. Code 1975 provides, in part that " he court may in any case, including capital cases, excuse or postpone the service of any prospective juror outside the presence of the parties and their counsel in accordance with the provisions contained in section 12-16-63." In Brewer v. State, 440 So.2d 1155 (Ala. Cr. App. 1983), this Court held that there was no error when a potential grand juror who was summoned to serve during one jury term had his service postponed until the selection of a later grand jury.
We find that there was no error in the postponement of the veniremembers' service; even if the postponement was error, it was harmless. See Ala. R. App. P., Rule 45. The appella
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