Appeal from Mobile Circuit Court. (CC-89-441). Ferrill McRae, TRIAL JUDGE. This Opinion Substituted by the Court for Withdrawn Opinion of June 17, 1994, Previously .
As Amended. Rule 39(k) Motion Denied October 21, 1994. Rehearing Denied October 21, 1994. Certiorari Denied December 16, 1994. Released for Publication March 25, 1995.
The opinion of the court was delivered by: Taylor
ON APPLICATION FOR REHEARING
This court's opinion of June 17, 1994, is hereby withdrawn and the following opinion substituted therefor.
The appellant, Carl Milton Harrison, Jr., was convicted of murder, a violation of § 13A-6-2, Code of Alabama 1975. He was sentenced as a habitual felony offender to life imprisonment without the possibility of parole.
The appellant initially contends that when a prospective juror was questioned at the bench and out of his hearing, he was denied his right to be present during a critical stage of the proceedings against him.
The record indicates that during voir dire of the prospective jurors, the trial court asked if any of the potential jurors or anyone in their families had ever been prosecuted by the district attorney's office. The Judge required any juror who responded affirmatively to approach the bench to discuss the particulars out of the hearing of the other members of the venire, but also out of the hearing of the appellant and his counsel. The Judge did not follow the normal procedure of taking the juror to chambers, where the accused, the accused's counsel, the prosecutor, and the court reporter would be present. The record reflects that potential juror number 113 indicated that a member of her family had been prosecuted by the district attorney's office and that that juror approached the bench as directed by the trial Judge. Thereupon an off-the-record Discussion took place between the Judge and the potential juror out of the hearing of the appellant and his counsel. The court reporter did not record these proceedings. Therefore, it is not known what was said in the course of this dialogue. The following occurred after that Discussion:
"The Court: All right, for the record, there is no question that I asked had anyone ever been convicted, any member of their family been convicted, that you may come up here, and there is no question that Mr. Arthur Madden [defense counsel] wanted to come up here and there is no question I would not let him. I have followed that procedure and will continue to follow that procedure because I would not do anything to embarrass one of these jurors. This person came up to me and we all know anyhow -- right, Mr. Madden?
"Mr. Madden: Well, we don't know. We have our suspicions, that's correct.
"The Court: Oh, you know. Her name is V.D. She came up and told me her son John had been indicted, and there's not five people in this county that [don't] know about it, but you knew that I was going to tell you this as soon as the jury left because you've ...