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Smith v. State5/26/2000
ght. Lesley [court reporter], give me any number between 1 and 48."
"The Court Reporter: Thirty-five.
"The Court: Ma'am?
"The Court Reporter: Thirty-five.
"The Court: All right. Thirty-five. Gentlemen, strike 35. All right. All right. That leaves 38." (R. 111.)
Initially, we observe that no objection was made to the court's using the court reporter to strike one juror so that the State and the defense would have an even number of strikes. Our review, therefore, is limited to determining whether plain error occurred. Rule 45A, Ala.R.App.P.
Section 12-16-100(a), Ala. Code 1975, addresses the drawing, selection, and empaneling of juries in criminal cases and states in part:
"In every criminal case the jury shall be drawn, selected and empaneled as follows: Upon the trial by jury in the circuit courts of any person charged with a felony, including a capital felony, a misdemeanor, or violation, the court shall require a strike list or lists to be compiled from the names appearing on the master strike list as established in Section 12-16-74. In compiling the list or lists, names of qualified jurors may be omitted on a nonselective basis. ..." (Emphasis added.)
This same provision is also contained in Rule 18.4(a), Ala.R.Crim.P.
Clearly, the trial court was authorized by law to remove this prospective juror. There is no argument that this prospective juror was not removed on a "nonselective basis," indeed, Smith's argument states that this prospective juror was "randomly struck." No error, much less plain error, occurred here.
II.
Smith argues that he was denied an impartial and unbiased jury because the trial court denied his request for individual sequestered voir dire examination.
The following occurred at a pretrial hearing regarding Smith's motion for individual voir dire:
"Mr. Hughes [defense counsel]: Judge, I don't have anything other than what was stated in the motion, as far as that goes.
"The Court: It's my understanding, based on my review of the Alabama law, that there's no requirement to individual voir dire in a capital case.
"Mr. Hughes: I think you're correct, Judge.
"The Court: And so the lawyers will know exactly what I intend to do, we will qualify our panel generally, meaning the panel in its entirety. Those who express particular reservations about the death penalty or those who indicate that they would automatically impose it will then be reduced to smaller groups, in the past, usually done in groups of three or five.
"I don't know that pretrial publicity is an issue in this case, but if you all think that, too, is something that needs to be gone into with those who express some knowledge, we'll sure do that.
"But my plan is to qualify them generally and then separate those folks whose responses create a death- penalty issue or pretrial publicity issues.
"I would also ask that I get from each lawyer a list of proposed voir dire questions by 5:00 p.m. on Friday, September 11, the Friday before we go to trial on Monday...." (R. 7-8) (emphasis added).
Defense counsel's own words indicate that he was aware that there is no right to individual voir dire in a capital case.
The Court gave the venire the following instruction prior to voir dire examination:
"The Court: ... If the answer to a question is something that you find to be of a particularly sensitive or personal nature that you don't want to share with 48 strangers, I understand that. And if you find yourself in that situation where the an
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