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ALABAMA COURT OF CRIMINAL APPEALS
OCTOBER TERM, 2007-2008
Larry Richard Chavers
State of Alabama
Appeal from Escambia Circuit Court
The appellant, Larry Richard Chavers, was convicted of
one count of sodomy in the first degree, a violation of § 13A6-63, Ala. Code 1975, and one count of sexual abuse in the
first degree, a violation of § 13A-6-66, Ala. Code 1975.
trial court sentenced Chavers to 21 years' imprisonment on the
sodomy conviction and to 10 years' imprisonment on the sexualabuse conviction.
Pursuant to the Split Sentence Act, § 15-
18-8, Ala. Code 1975, the court suspended Chavers's 10-year
sentence for sexual abuse and ordered him to serve 3 years in
prison and the balanced on supervised probation.
ordered that these sentences be served consecutively.
court also ordered that Chavers pay $5,000 into the crime
victims compensation fund, as well as court costs.
The evidence at trial tended to establish that in late
May and early June 2004, I.G. and her husband took her minor
One night during their stay, I.G. looked in the
bedroom where T.G. and W.G. were sleeping and found them lying
on top of each other in an inappropriate manner, wearing only
their pajama tops.
In response to questioning, T.G. told I.G.
that Chavers had touched her in the same manner when he was
telephoned the Escambia County Sheriff, who came to her house
T.G. is a female; W.G. is a male. Initials are used
throughout the opinion to protect the anonymity of the victim,
T.G. See Rule 52, Ala.R.App.P.
and took her statement.
Thereafter, the Alabama Department of
Human Resources ("DHR") became involved, and an investigation
Advocacy Center where Stephanie Jackson interviewed T.G.
At trial, T.G. recounted in detail multiple instances of
abuse and/or sodomy by Chavers.
T.G., who was 10 years old at
the time of Chavers's trial, stated that the acts took place
T.G. stated that Chavers had attempted to touch her
or to make her do something inappropriate 15 to 20 times and
that while she was being abused or sodomized Chavers would
tell her she would be grounded if she told anyone.
occasions, T.G. attempted to tell her mother about Chavers's
T.G. did manage to tell her mother about one such
instance; according to T.G., her mother told T.G. that she
would take care of it.
Another time, T.G. stated that she
tried to persuade her mother to pretend that she had left the
described the incident in North Carolina when her grandmother
walked into the bedroom while she and W.G. were touching each
other in places that they should not have been touching each
T.G. testified that she told her grandmother Chavers
had taught her that kind of touching.
The jury convicted
Chavers of first-degree sodomy and first-degree sexual abuse,
as charged in the indictment.
timely motion for a new trial on December 8, 2006.
was set for December 28, 2006, to consider Chavers's motion.
At the December 28 hearing, the court and counsel agreed to
continue the hearing until January 4, 2007.
At the conclusion
of the December 28 hearing, the court noted that defense
counsel had subpoenaed several witnesses to testify at the
hearing on the motion for a new trial and inquired if counsel
planned to raise questions of residency as to any of the
Defense counsel replied that he did not.
then disclosed to the prosecutor and defense counsel it had
learned that juror no. 216 -- who had served on the jury that
convicted Chavers -- was not a resident of Escambia County,
Alabama, at the time of Chavers's trial.
The court stated
regarding the proper course of action regarding what it had
learned, it was disclosing the matter of juror
testify at the January 4 hearing.
During an evidentiary
evidence was presented concerning juror no. 216's residence.
The trial court made no written findings of fact regarding
Instead, the trial court allowed Chavers's
motion for a new trial to be denied by operation of law.
A critical issue presented for review is whether the
trial court erred when it denied Chavers's motion for a new
trial, which asserted as a ground that one of the jurors in
his case was not a resident of Escambia County, Alabama, at
the time of his trial.
Because Chavers's motion for a new
trial was denied by operation of law, the presumptions that
normally apply to a trial judge's denial of a motion for new
trial do not apply.
See Edgar v. State, 646 So. 2d 683 (Ala.
Chavers argues that juror no. 216 was not a resident of
Escambia County at the time of the trial and that he was
therefore not qualified to sit on a jury in Escambia County.
Chavers further argues that although the Alabama judicial
system jury roles indicated that juror no. 216 had an Escambia
County, Alabama, post office box and an address of South
Eighth Avenue in Atmore, which is located in Escambia County,
Alabama, he did not actually reside at that address.
Chavers argues, juror no. 216 actually resided at 7500 Hodges
Road, just across the state line in Escambia County, Florida. 2
Thus, Chavers argues, a new trial is required in this case.
motions, juror no. 216 was subpoenaed to testify.
216 testified that he lived at 105-1/2 Tatum Avenue in Atmore,
Alabama, that he maintained a post office box in Atmore, and
that he had lived there all of his life. 3
However, juror no.
216 testified, he did not own property in Alabama.
testified, he and his wife owned property in Florida, just
across the state line in Escambia County, Florida.
216 testified that his wife and children lived on the Florida
property and that the address of that property was 7500 Hodges
The record does not indicate the name of the town in
Juror no. 216 was not asked about, and he offered no
explanation for, the discrepancy between the South Eighth
Avenue address listed on the master jury roll and the Tatum
Avenue address he testified to during the hearing on the
motion for a new trial.
Juror no. 216 denied that he resided with his wife and
children at the Florida address; he also denied that he and
his wife were separated. Instead, he maintained that "I stay
there a little bit," but admitted that he spent three to four
nights a week there and that he had spent all the previous
week at the residence in Florida.
Juror no. 216
testified that he had been employed by Reid State Technical
College in Evergreen for the past 15 years and that his job
required him to have an Alabama driver's license.
when he stopped residing in the State of Florida, juror no.
216 responded, "I guess I still do."
juror no. 216 maintained that he resided both in Alabama at
the Tatum Avenue address and in Florida at the Hodges Road
When defense counsel attempted to determine how
often juror no. 216 stayed with his wife and children in
Florida and for how long, juror no. 216 responded that that
was "between me and my wife how many times I stay there."
Juror no. 216's wife was equally unwilling to disclose
her husband's residence, maintaining that it was not anyone's
business "how many nights my husband stays at my house or if
he stays at his sister's house."
However, she did
admit that her husband's job required him to be an Alabama
Juror no. 216's sister was also subpoenaed to
She testified that she lived at 105 Tatum Avenue in
Atmore, Alabama -- approximately two to three miles from the
Florida state line.
She testified that she owned two houses
She further testified that the addresses of the
houses were 105 Tatum Avenue and 105-1/2 Tatum Avenue, and
that the houses were approximately 50-60 feet apart.
no. 216's sister testified that on occasion her brother stayed
at the house located at 105-1/2 Tatum Avenue, but she was
unable to say how often he stayed there.
determined that the utility bills for 105-1/2 Tatum Avenue
were in her name and that her brother did not compensate her
financially for staying at that address.
"Alabama Code 1975, § 12-16-60(a)(1), requires
that for more than 12 months before the start of the
trial a prospective juror be a resident of the
county in which the juror is being asked to serve.
In order to serve as a juror in a trial pending in
[Escambia County], a prospective juror must have
resided in [Escambia County] for more than 12 months
before the start of the trial. See General Motors
Corp. v. Hopper, 681 So. 2d 1373 (Ala. 1996). The
requirements of § 12-16-60 are mandatory; the juror
qualifications are not within the trial court's
discretion. McBride v. Sheppard, 624 So. 2d 1069,
1071 (Ala. 1993).
"In McBride, the appellants argued that the
trial court had erred in denying their motion for a
new trial in which they argued that a juror was not
qualified to sit on the jury under § 12-16-60(a)(2),
Ala. Code 1975 (requiring a juror to be able to read
instructions given by the judge). This Court noted
that it had held in Chrysler Credit Corp. v.
McKinney, 456 So. 2d 1069 (Ala. 1984), 'that a new
trial was required where the prospective jury venire
was specifically asked whether each member could
read and write the English language and each member
indicated by silence that he or she could.' 624 So.
2d at 1072.
However, in McBride this Court noted
prospective juror was specifically asked whether he
could read or write the English language; instead,
the juror had indicated by his silence that he
Because the record did not indicate that
counsel for the McBrides had specifically questioned
the prospective juror about his ability to read the
English language and the record also did not
indicate that counsel was concerned about the
educational background of the prospective jurors,
this Court affirmed the trial court's order denying
the motion for a new trial.
624 So. 2d at 1072.
See also Holland v. Brandenberg, 627 So. 2d 867, 870
(Ala. 1993)('Failure to use due diligence in testing
jurors as to qualifications or grounds of challenge
is an effective waiver of grounds of challenge; a
defendant cannot sit back and invite error based on
"In Noble Trucking[Co. v. Payne, 664 So. 2d 202
(Ala. 1995)], cited by Keibler-Thompson as support
for its argument that a new trial is warranted here,
the appellant, Payne, learned that a juror's voting
rights had not been restored and that the juror was
therefore disqualified under § 12-16-60, Ala. Code
664 So. 2d at 202.
Noble Trucking argued
that Payne's attorney did not ask the prospective
jurors whether any of them had committed a felony
and, if so, whether their voting rights had been
restored; thus, it argued, Payne had waived any
right to complain on the basis of a juror's
This Court upheld the trial
court's order granting a new trial and, in doing so,
distinguished Holland and McBride.
664 So. 2d at
In Noble Trucking, we stated that '[i]n
Holland and McBride the trial court did not conduct
open voir dire in the presence of the defendant's
attorney, and the attorneys failed to conduct their
own voir dire to ask the jurors about their
664 So. 2d at 204.
specifically asked the prospective jurors, in the
presence of Payne's counsel, whether any of them
were convicted felons whose voting rights had not
been restored, and Holland remained silent.'
So. 2d at 204.
We concluded that Payne and her
attorney had a right to rely on the juror's response
qualifications as a juror. Id. Moreover, we noted
qualifications does not require counsel to conduct
voir dire examination that would be repetitious of
the voir dire examination already conducted by the
See also Lollar v. State, 422 So. 2d
809 (Ala.Crim.App. 1982); Slay v. State, 338 So. 2d
3 (Ala.Crim.App. 1976). 3
"Steading, citing Parish v. State, 480 So. 2d
29, 31 (Ala.Crim.App. 1985), and Huckabaa v. State,
475 So. 2d 891 (Ala.Crim.App. 1985), argues that in
order to establish the need for a new trial based on
a prospective juror's failure to respond properly to
a question regarding his or her qualifications,
Keibler-Thompson must establish that its rights were
probably prejudiced by the juror's failure to
respond to the question.
argument is misplaced, because Parish and Huckabaa
do not address juror qualifications enumerated in §
12-16-60, Ala. Code 1975.
Parish dealt with a
acquaintance with defense counsel, and Huckabaa
dealt with challenges of jurors for cause under §
12-16-150, Ala. Code 1975.
See Chrysler Credit
Corp. v. McKinney, 456 So. 2d 1069, 1071 (Ala.
1984). Juror no. 138 was disqualified because she
did not meet the mandatory requirements of §
12-16-60(a)(1), and Keibler-Thompson was misled by
juror no. 138's failure to respond to the question
" 3 In Beasley v. State, the Court of Appeals
recognized that the appellant's counsel and the
court were misled by the juror's failure to respond.
39 Ala. App. 182, 96 So. 2d 693 (1957). The court
stated, 'As to due diligence, we consider that a
defendant is not required to search the records of
municipalities running back to the time when the
oldest venireman became 14 years of age.' 39 Ala.
App. at 189, 96 So. 2d at 700."
Keibler-Thompson Corp. v. Steading, 907 So. 2d 435, 441-43
The evidence presented at the hearing on the motion for
a new trial was, at best, inconsistent and conflicting, and
similar situation, the Alabama Supreme Court held:
"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."
Edgar v. State, 646 So. 2d 683, 687 (Ala. 1994); see also
Benjamin v. State, 889 So. 2d 610, 612 (Ala.Crim.App. 2003);
McDade v. State, 864 So. 2d 377, 378 (Ala.Crim.App. 2002).
course of action is to remand this case for the trial court to
issue specific written findings of fact regarding Chavers's
claim, because the trial court is in the best position to
reconcile the inconsistent and conflicting testimony and to
make credibility choices.
See, e.g., Thomas v. State, [Ms.
CR-05-1553, September 28, 2007] ___ So. 2d ___ (Ala.Crim.App.
2007); Vinnie v. State, 866 So. 2d 1175 (Ala.Crim.App. 2002).
Based on Edgar, we remand this case for the trial court
to make specific, written findings of fact as to each claim
Chavers raised in his motion for a new trial, as well as any
additional claims that were raised and upon which evidence was
presented during the hearing on Chavers's motion for a new
trial. If the trial court determines that Chavers is entitled
to relief on his claims, then the court may grant such relief
as it deems appropriate.
The trial court shall take all necessary action to see
that the circuit clerk makes due return to this Court at the
earliest possible time and within 56 days of the release of
The return to remand shall include the trial
court's specific written findings of fact and any other
materials generated in response to this Court's directions.4
Because it is necessary to remand this case, we pretermit
discussion of Chavers's remaining claims.
REMANDED WITH DIRECTIONS.
We note that our examination of the record indicates that
the judge who presided over Chavers's trial and who heard the
evidence offered in support of Chavers's motion for a new
trial retired shortly after the hearing on the motion for a
new trial. In the interest of judicial economy, the presiding
circuit judge may wish to have that judge recalled for the
limited purpose of entering the specific written findings of
fact required, rather than have another trial judge conduct a
new evidentiary hearing on Chavers's motion for a new trial
and issue written findings following that hearing.