March 29, 2013
Suzanne Carol Bennison
State of Alabama
Released for Publication January 20, 2015.
As Corrected April 25, 2014.
[Copyrighted Material Omitted]
Appeal from Limestone Circuit Court. (CC-10-462). James W. Woodroof, Trial Judge.
For appellant: Michael Clem Lambert, Athens.
For appellee: Luther Strange, Attorney General, Tracy M. Daniel, Assistant Attorney General.
BURKE, Judge. Windom, P.J., and Welch, Kellum, and Joiner, JJ., concur.
Suzanne Carol Bennison was convicted of the sexual abuse of a child less than 12 years old, her daughter, in violation of § 13A-6-69.1, Ala. Code 1975, and the sexual torture of her daughter, in violation of § 13A-6-65.1, Ala. Code 1975. She was sentenced to life imprisonment as an habitual offender for each conviction, these sentences to run concurrently.
The sufficiency of the evidence is not challenged, so a rendition of the facts is unnecessary to this decision.
Bennison argues tat the trial court erred in denying her motion for new trial based on juror misconduct. Bennison refers to a false statement by a juror concerning pending criminal prosecution against him. Bennison's argument relies solely on Ex parte Dixon, 55 So.3d 1257 (Ala. 2010).
" In Ex parte Dobyne, 805 So.2d [763,] at 772 [(Ala. 2001)], this Court stated:
" '[T]he proper standard to apply in determining whether a party is entitled to a new trial in this circumstance [where a juror fails to respond correctly to a question on voir dire] is " whether the defendant might have been prejudiced by a veniremember's failure to make a proper response." Ex parte Stewart, 659 So.2d  at 124 [(Ala. 1993)]. Further, the determination of whether a party might have been prejudiced, i.e., whether there was probable prejudice, is a matter within the trial court's discretion.'
Id. See also Reynolds v. City of Birmingham, 723 So.2d 822, 824 (Ala.Crim.App. 1998) ('" [T]he ruling of the trial judge denying a motion for new trial will not be disturbed in the absence of a showing of abuse of discretion, and this Court will indulge every presumption in favor of the correctness of his ruling." '(quoting
Hall v. State, 348 So.2d 870, 875 (Ala.Crim.App. 1977)))."
Ex parte Dixon, 55 So.3d at 1259.
In Dixon, a prospective juror did not respond to the following question posed to the venire during voir dire: " 'Have you or a member of your immediate family ever been a criminal defendant in a criminal case in either the district court or the circuit court in this county where [the district attorney or any of his assistants] prosecuted the case?'" Id. at 1259. However, criminal charges were pending against the potential juror at the time; the charges had been filed less than two weeks before Dixon's trial. The potential juror was negotiating with the prosecutor for a plea agreement and would likely have been affected by her relationship with the State. The question posed to the venire was not confusing and clearly required an affirmative answer from the potential juror. When questioned during the hearing on Dixon's motion for a new trial, the potential juror gave excuses that were " 'hairsplitting' explanations," 55 So.3d at 1262, and admitted that she herself had been negotiating with the prosecutor (the same
prosecutor who was involved in Dixon's trial) at the time. Dixon's counsel testified at the hearing that had he known of the pending charges, he would have challenged the potential juror for cause or struck her from the jury. Finally, the Court found that the prosecutor's failure to disclose the pending charges, the outcome of which he was personally negotiating and of which he did not deny knowledge, allowed the prejudice when the potential juror failed to properly respond. " Although various Alabama courts have held that the State does not have a general obligation to disclose information on veniremembers, fairness dictates that the State cannot stand mute when a juror fails to respond (or responds incorrectly) to a question on voir dire and the prosecutor is aware of the true facts." 55 So.3d at 1262 (footnote omitted.)
The proper standard to apply in determining whether a defendant is entitled to relief by way of a motion for new trial when the grounds concern a juror's giving false information is whether the defendant might have been prejudiced by the potential juror's failure to make a proper response.
Ex parte Stewart, 659 So.2d 122, 124 (Ala. 1993). Moreover, the impact of a false response by a potential juror on a party is shown when the party " '" 'is deprived of his right of challenge for cause, and is deceived into foregoing his right of peremptory challenge.'" Ex parte Ledbetter, 404 So.2d 731, 733 (Ala. 1981) (quoting
Leach v. State, 31 Ala.App. 390, 18 So.2d 285, cert. denied, 245 Ala. 539, 18 So.2d 289 (1944)).'"
Ex parte Dixon, 55 So.3d at 1261. However, every failure to respond truthfully to a question during voir dire does not require a mistrial. Freeman v. Hall, 286 Ala. 161, 166, 238 So.2d 330, 335 (1970).
In the present case, Bennison attached purported excerpts from the transcript of the voir dire to her motion for a new trial contained in the record on appeal. However, the transcript does not contain the voir dire examination. It is the appellant's duty to ensure that a record is complete for purposes of appeal. Welch v. State, 63 So.3d 1275, 1279 (Ala.Crim.App. 2010). However, the State did not refute the exerpts attached to Bennison's motion for a new trial, and, assuming that these statements made in pleading are accurate, the following transpired at voir dire:
" [Prosecutor]: I'd like to know generally if you -- and again, we won't know if -- or any members of your immediate family, spouse, children, parents or siblings have ever been charged with a crime before. ... And also, the following misdemeanor offenses, and that would be drug offenses, assaults, indecent exposure or alcohol offenses."
(C. 110.) The potential juror in question responded affirmatively. Thereafter, during individual questioning of this potential juror, the following transpired:
" [Prosecutor]: And, of course, the only question I had, I think the one you stood up on had to do with the possible other charges for you or members of your family.
" Potential Juror: Yeah, I had an IPPLE, illegal possession of alcohol four years ago. My boss was driving and had a DUI and I - it was an open container in the car. And all it was, was that, so. It was just a fine more than a charge, I think.
" [Prosecutor]: Not something that would affect you in this case?
" Potential Juror: No, Sir."
Although Bennison did not have a hearing on her motion for a new trial, defense counsel argued in the motion that, " [h]ad undersigned counsel known of the pending charges against [potential juror] as listed herein above, a challenge for cause would have been made and failing that, a peremptory challenge to strike would have been used, thereby changing the make-up of the jury." (C. 105.) Moreover, Bennison attached a document from the Alacourt web site, indicating that the potential juror had pending charges for speeding, failure to display insurance, open-container violation of the law, DUI, and promoting prison contraband. Another Alacourt document indicated that the potential juror's preliminary hearing was originally set for June 5, 2012, was continued to June 19, 2012, and was continued again. Bennison's trial was held from June 11-15, 2012. Although a special prosecutor was brought in from Franklin County to try the case, the Limestone County District Attorney, who had recused himself because of a conflict of interest, was present during the voir dire. As noted in the motion for a new trial, defense counsel objected to the Limestone County District Attorney's presence. (R.6). In the motion, Bennison argued:
" The trial court made it clear in no uncertain terms that the Limestone County District Attorney was not to assist in any way. See attached Exhibit '9' voire dire transcript page 3, line 21 through page 4, line 10. Prosecutor [the Limestone County District Attorney], Defendant Suzanne Bennison's former defense attorney, continued his presence in the court room taking notes on jury selection and sitting in the jury box looking over the potential jurors in the audience. At the time of [the Limestone County District Attorney]'s activity in paragraphs 14-15 herein above, unbeknownst to undersigned counsel and the Trial Court, he was an active prosecutor on the case. The attached Exhibit '10' from www.alacourt.com clearly shows that he entered himself as an attorney of record on June 11, 2012. In fact, [the Limestone County District Attorney]'s code was the operator listed as entering himself in the case as shown in said Exhibit '10.' During the entire jury selection process, the prosecuting attorney for [potential juror] for charges pending in no less than five cases was in the court room as an attorney of record for the State of Alabama in a case where he was clearly conflicted out of and ruled upon by this Honorable Court. Defendant Suzanne Bennison was prejudiced by [potential juror]'s deceit during voire dire and the blatant disregard for a conflict of interest by the Limestone County District Attorney."
Moreover, although the potential juror in this case indicated that his prior offenses would not affect his decision, the Alabama Supreme Court, in Ex parte Dixon, rejected this Court's determination " that there was no prejudice to Dixon by [potential juror]'s failure to respond because she later testified that the fact that charges were pending against her did not affect her verdict." 55 So.3d at 1260. The State on appeal further raised this argument, but the Alabama Supreme Court stated:
" The State's contention is based upon [potential juror]'s negative response when asked whether her verdict was prejudiced by circumstances relating to the pendency of the criminal charges against her. The State cites no authority and makes no legal argument to support the assertion that the presumption of prejudice can be rebutted merely by a juror's conclusory statement that his or her verdict was not affected by the potential
source of bias. In any event, the juror's own testimony as to his or her impartiality in rendering a verdict does nothing to rebut evidence that trial counsel would have challenged the juror for cause or would have used a peremptory challenge to strike that juror had the juror responded truthfully to the question. The point of peremptory challenges is to reduce the effect of hidden or unconscious biases. See Bruner v. Cawthon, 681 So.2d 173 (Ala. 1996) (Maddox, J., concurring in the result) (discussing possible use of written questionnaires to 'disclose hidden prejudices that the juror might not even suspect he or she has'); Ex parte Branch, 526 So.2d 609, 628 (Ala. 1987) (discussing role of peremptory challenges in identifying and excluding jurors likely to be biased against a party)."
55 So.3d at 1264 (footnotes omitted). Thus, according to the finding in Ex parte Dixon, this statement by the potential juror in the present case does not negate the prejudice to Bennison.
The State argues that there is no proof that negotiations were going on between the potential juror and the district attorney at the time of Bennison's trial; however, the potential juror's charges were clearly pending following continuances at the time, and the prosecutor in the case against the potential juror was present during the voir dire in this case.
On appeal, the State contends that this case should, at most, be remanded for a hearing on the motion for a new trial based on the logic in Edgar v. State, 646 So.2d 683 (Ala. 1994). In Edgar, the case was remanded for the trial court to conduct a hearing and to enter an order either granting or denying the motion following the denial of Edgar's motion for a new trial by operation of law. The Court in Edgar framed the issue presented as: " If a criminal defendant moves for a new trial under the provisions of Rule 24, Ala.R.Crim.P., and supports the new trial motion by evidence that was not presented at trial, and the State files nothing to controvert the evidence presented, and the judge allows the motion to be denied by operation of law, then on appeal is the defendant entitled to a reversal for a new trial?" 646 So.2d at 684. The Court concluded:
" We hold that where, as here, a criminal defendant's motion for a new trial is denied under the provisions of Rule 24.4, Ala.R.Crim.P., without an affirmative statement by the trial judge giving the ruling a presumption of correctness and the defendant supports his new trial motion by evidence that was not presented at trial, and that evidence, if not controverted by the State, will entitle him to a new trial, the denial by operation of law should be reversed and the case remanded for the trial court to conduct a hearing on his motion for new trial and then enter an order either granting or denying the motion. This holding is consistent with the above stated purposes. It does not permit a post-trial motion to remain pending in the trial courts for an inordinate period of time. This procedure does not undermine the finality of the judgment, because the only other alternative under the circumstances of this case would be to reverse the judgment of conviction and remand for a new trial, throwing out not only the judgment denying the motion, but also the judgment on the merits of the case. This resolution also fulfills the purposes of Rule 1.2, Ala.R.Crim.P., of ensuring 'fairness in administration, and the elimination of unnecessary delay and expense' that would be caused by granting a new trial before the trial judge had ruled on the motion."
646 So.2d at 687-88.
Here, although the court ruled on the motion for a new trial and denied it, no
hearing was held to allow Benison to prove her claim or for the State to refute the claim. The Court in Ex parte Dixon reversed the court's decision and remanded the case for a new trial based on the juror's false statements after having held a hearing on the claim. Therefore, this cause is due to be remanded for a hearing on Bennison's claim of juror misconduct. Following the hearing, the court shall file a return with this Court including any testimony, affidavits, or other evidence presented, as well as the court's findings. Return shall be filed within 35 days of the date of this opinion.
REMANDED WITH INSTRUCTIONS.
Windom, P.J., and Welch, Kellum, and Joiner, JJ., concur.