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BUSH v. STATE12/1/1995
considering the evidence presented in court.
". . . .
"THE COURT: . . . . The law says that the State must prove to you beyond a reasonable doubt that he did it. . . . Now could you apply that legal standard to the facts?
"W.B.: I think so; pretty sure.
"THE COURT: And the fact, as Mr. Glassroth says, and what you know about a prior proceeding, would that interfere with your being able to (1) objectively determine what happened in your own mind; and once you determine sure enough what happened, and applying the facts to that, can you do that in a fair, just and even-handed way?
"W.B.: Yes.
". . . .
"MR. GLASSROTH: Well, let's say if the evidence was close, it was a close call for you, and you knew from the back of your mind that there was a prior conviction on the same case, don't you think that would tilt you toward convicting?
"W.B.: I don't think so. . . ."
The record obviously shows that despite W.B.'s knowledge of some of the facts surrounding the charged crime and of the fact the appellant had previously been convicted of it, he could set that aside and decide the case based solely on the evidence presented in court. It is clear that he had no fixed opinion and was capable of giving the appellant a fair trial. We find that the trial court did not abuse its discretion in refusing to grant the appellant's challenge for cause of W.B.
Second, the appellant appears to contend in footnote 74 to his brief to this case that venireperson V.J. should have been removed for cause sua sponte by the trial court. He contends that because she "handled the record of the victim in this case" through her work with the Montgomery Fire Department, she should have been removed from the venire. As the state points out in its brief, venireperson V.J. was not challenged by the appellant; therefore, we must review the appellant's contention under the plain error rule. There was no individual voir dire of V.J. In our opinion, the fact that she "handled" or was involved in the administrative processing of some kind of record concerning the victim as part of her duties at the fire department was not a sufficient reason to require the trial court to remove her sua sponte. Moreover, the appellant was not prejudiced by the court's failure to remove V.J. from the venire because she was peremptorily struck by the state. We find no plain error here.
The appellant also contends in the same footnote that venireperson J.S. should have been removed because of his exposure to pretrial publicity. J.S., who lived near
and frequented the Majik Market, stated that he remembered the charged crime and some of the details; that he read about it in the newspapers and listened to news broadcasts regarding it; and that, at the time, he had formed "some opinion" about it. However, when questioned regarding his ability to listen to the trial court's instructions and to apply those instructions to the facts in a fair and impartial manner, he stated that he would do so to the best of his ability. He stated that he had since forgotten what he had read and heard and that he did not know the appellant. In addition, in response to the trial court's question regarding whether the publicity would influence him, he answered, "No." After considering J.S.'s answers to the questions propounded to him on voir dire in their entirety, we find that the trial court did not abuse its discretion in refusing to grant the appellant's challenge of him for cause. We believe that the record supports our conclusion that J.S. did not have a fixed opinion of the appellant's guilt and could have laid aside any preconceived opinio
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