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Fitch v. State8/31/2001
e of absence from his $8.00-per-hour job with the County to work on the landfill closure for significantly higher wages as a private-contract employee. Edwards could not have received a leave of absence without Fitch's approval. Edwards then paid Fitch's son, Bubba, approximately $30,000 to work at the landfill. From this payment Bubba and Fitch obtained cash and Bubba paid debts for which he and Fitch were liable. When the landfill closure was completed, Edwards returned to his job with the county commission.
These facts create an inference of collusion between Fitch and Edwards that supports the jury's finding that as a public employee , Edwards violated the ethics law. There was sufficient circumstantial evidence from which the jury could find Fitch guilty of aiding and abetting Harry Edwards in the use of his position or office for direct financial gain.
X.
Fitch contends that the trial court erred by denying his challenge for cause to a veniremember who stated that she was the assistant prosecutor's third cousin.
"THE COURT: Mrs. [M.] -- let's bring this up. Mrs. [M.]
had said that she was kin to [C.M.], the assistant district
attorney. I don't know if we were on the record a minute ago
or not but the Defendant has moved to strike on that basis.
"MR. BAXLEY [Defense counsel]: Yes, sir. We would say that she is a cousin to the Assistant D.A., ..., who is prosecuting the case and we think that would be a strike for cause.
"THE COURT: Denied. Who else was it?" R. 303.
The decision of the trial court on challenges for cause will not be disturbed on appeal unless "clearly erroneous, equivalent to an abuse of discretion." Baker v. State, [Ms. CR-95-0292, January 12, 2001] So. 2d , (Ala.Crim.App. 2001)
"That a juror is related to the district attorney or to the prosecuting attorney is no ground for challenge for cause." Howard v. State, 420 So. 2d 828, 831 (Ala.Crim.App. 1982). "The party seeking to challenge a juror for cause must show that the questioned juror due to be struck under § 12-16-150, Code of Alabama 1975, or on common law grounds." Smith v. State, 581 So. 2d 497, 503 (Ala.Crim.App. 1990), rev'd on other grounds, 581 So. 2d 531 (Ala. 1991). No response from this juror suggested that this juror could not "disregard her relationship with Assistant District Attorney and to render a fair and impartial verdict." Whitehead v. State, 777 So. 2d 781, 811 (Ala.Crim.App. 1999), aff'd, 777 So. 2d 854 (Ala. 2000). "Where statutory grounds for juror qualifications are not involved, the trial judge is given much discretion in attempting to insure an unbiased jury." Nettles v. State, 435 So. 2d 146, 150 (Ala.Crim.App. 1983)("That this same juror was the third cousin of Sergeant Mayo, the arresting officer and main witness for the prosecution, did not constitute a statutory ground of challenge for cause.").
There is no indication in the record that the trial court abused its discretion.
XI.
Fitch contends that the cumulative effect of the errors at trial entitle him to a new trial. We disagree.
"`"Because we find no error in the specific instances alleged by the appellant, we find no cumulative error. `Where no single instance of alleged improper conduct constituted reversible error, we do not consider their cumulative effect to be any greater.' (citations omitted)."'" Evans v. State, [Ms. CR-98-0678, September 29, 2000] So. 2d , (Ala.Crim.App. 2000)(quoting Chandler v. State, 615 So. 2d 100, 110 (Ala.Crim.App. 1992)).
Conclusion
This is a difficult case. There was ample evidence that
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