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01/13/95 JAMES DAVID BEARD v. STATE

January 13, 1995

JAMES DAVID BEARD
v.
STATE



Appeal from Marshall Circuit Court. (CC-90-341A). William Gullahorn, TRIAL JUDGE.

Rehearing Denied March 3, 1995. Certiorari Denied May 5, 1995.

Montiel, Judge. All the Judges concur.

The opinion of the court was delivered by: Montiel

MONTIEL, JUDGE

This appeal is from the second conviction and sentence of the appellant, James David Beard, whose original conviction was reversed and case remanded by this court. Beard v. State, 612 So. 2d 1335 (Ala. Crim. App. 1992). Following his second trial, the appellant was convicted of the capital offense of murder during a burglary in the first degree; § 13A-5-40(a)(4), Code of Alabama 1975. At the penalty phase of the second trial, the state, at the request of the victim's family, agreed not to pursue the death penalty. The trial Judge sentenced the appellant to life imprisonment without the possibility of parole.

The facts of this case are well documented in the original Beard opinion. 612 So. 2d at 1337-39. A synopsis of these facts follows. The victim, Jesse H. Pitts, was found on February 26, 1990, in his residence, dead as a result of three gunshot wounds. The evidence gathered from the scene included, among other things, .38 caliber bullets found in the walls of the house, a towel containing semen stains and two pubic hairs, and a written description and serial number of a .38 caliber pistol owned by the victim and missing from the scene of the crime. This description was "Charter Arms .38 Special, Serial number 666482."

Approximately one and one-half weeks after the body was found, the appellant was arrested on a probation violation while driving a rented truck on Interstate 59 in Etowah County. The police took the truck to the Etowah County Sheriff's Department and conducted an inventory search. During this search, the investigators found a guitar case containing a guitar and the .38 caliber pistol missing from the victim's residence.

The evidence at trial showed that the bullets recovered from the victim's residence and from his skull were similar to test bullets fired from the gun found in the appellant's guitar case. The pubic hairs found on the towel in the victim's residence were consistent with pubic hairs taken from the appellant's codefendant, Tammy Blackburn. Undigested food from the victim's stomach indicated the time of death as late on the night of February 24, 1990.

Terri Cranford, a friend of Tammy Blackburn, testified that she saw the appellant in possession of a gun similar to that belonging to the victim a few days after the murder and that the appellant obtained a file with the intention of filing off the pistol's serial number. Jason Childers, who was in the truck when the appellant was arrested, testified that on the night of the murder the appellant and Blackburn had left Terri Cranford's house, where they were all staying at the time, and had returned at approximately 11:00 P.M. with a roll of money. Childers also testified that a few days later, the appellant and Blackburn redeemed a guitar and a case from a local pawn shop and the appellant showed him the gun. Childers remembered the serial number because of the significance of the number 666 and because 482 was the prefix to his grandmother's telephone number. Later, the appellant told Childers that he had killed Jesse Pitts and described how the shooting occurred.

In this trial, the appellant had alibi witnesses testify that he was with them at the time of the shooting. The appellant then testified that he was somewhere else at the time of the murder. Through his testimony, he attempted to implicate Jason Childers as the person who shot Pitts.

I.

The appellant claims that the trial court erred in denying his motion for a change of venue. During a pretrial hearing on this motion, the appellant introduced 32 articles about his case that appeared in the local paper, The Sand Mountain Reporter, between February 27, 1990, and December 22, 1992. Additional articles had also appeared in the Huntsville and Gadsden newspapers, and there had been television news reports as well.

"'The determination of whether or not to grant a motion for change of venue is generally left to the sound discretion of the trial Judge because he has the best opportunity to assess any prejudicial publicity against the defendant and any prejudicial feeling against the defendant in the community which would make it difficult for the defendant to receive a fair and impartial trial.

" Nelson v. State, 440 So. 2d 1130, 1132 (Ala. Cr. App. 1983). See also Trahan v. State, 450 So. 2d 1102 (Ala. Crim. App. 1984). An appellant must prove a 'gross abuse of discretion' before the trial court's ruling on a motion for change of venue will be reversed on appeal. Anderson v. State, 443 So. 2d 1364 (Ala. Cr. App. 1983). "

Hunt v. State, 642 So. 2d 999, 1042 (Ala. Crim. App. 1993), aff'd 642 So.2d 1080 (1994).

The appellant, in his brief on appeal, argues that the news

media coverage of the original trial and the subsequent reversal of his conviction was so prejudicial and so saturated the community that no impartial jury could be found. This is the presumed prejudice standard. Hunt v. State, 642 So. 2d at 1042-43.

"'At the outset, we emphasize the fact that the presumptive prejudice standard recognized in Rideau [v. Louisiana, 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed. 2d 663 (1963)] is only "rarely" applicable. Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 554, 96 S. Ct. 2791, 2800, 49 L. Ed. 2d 683 (1986), and is reserved for an "extreme situation." Mayola v. State of Alabama, 623 F. 2d 992 (5th Cir. 1980). In short, the burden placed upon the petitioner to show that pretrial publicity deprived him of the right to a fair trial before an impartial jury is an extremely heavy one.'

" Coleman v. Kemp, 778 F. 2d 1487, 1537 (11th Cir. 1985)."

Slagle v. State, 606 So. 2d 193, 195 (Ala. Crim. App. 1992).

The appellant has not produced any evidence to show that coverage was so prejudicial and so saturated the community that jury prejudice should be presumed. The only newspaper stories in the record are from The Huntsville Times. (C. 443-58.) These stories are about the trial of the appellant's codefendant and mention the appellant only peripherally. Additionally, these stories are factual in nature and are not inflammatory or prejudicial in tone. We are unable to review the stories from The Sand Mountain Reporter because they were not included in the record. It is the appellant's duty to check the record to assure that it is complete before submitting the appeal; we will not assume error from a silent record. Allison v. State, [Ms. CR-93-0289, June 17, 1994] So. 2d , (Ala. Crim. App. 1994).

"Newspaper articles or widespread publicity, without more, are insufficient to grant a motion for change of venue. Anderson v. State, 362 So. 2d 1296, 1298 (Ala. Crim. App. 1978). As the Supreme Court explained in Irvin v. Dowd, 366 U.S. 717, 723, 81 S. Ct. 1639, 1642-43, 6 L. Ed. 2d 751 (1961):

"'To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court....'

"'The standard of fairness does not require jurors to be totally ignorant of the facts and issues involved. Murphy v. Florida, 421 U.S. 794, 799-800, 95 S. Ct. 2031, 2035-36, 44 L. Ed. 2d 589 (1975). Thus, "the proper manner for ascertaining whether adverse publicity may have biased the prospective jurors is through the voir dire examination." Anderson v. State, 362 So. 2d 1296, 1299 (Ala. Crim. App. 1978)."

" Ex parte Grayson, 479 So. 2d 76, 80 (Ala. 1985)."

Slagle v. State, 606 So. 2d 193, 194-95 (Ala. ...


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