T. D. M. v. Alabama
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Defendant T.D.M. was convicted on one count of first degree sexual abuse and one count of first degree sodomy. At the end of Defendant's trial, the jury first returned verdicts of guilty and not guilty, respectively. The jury was then discharged. The clerk of the court informed the trial judge that due to a clerical error, the 'not-guilty' verdict was entered incorrectly. The jury was recalled, and each juror polled stated that he/she had voted Defendant guilty on the sodomy charge. Ultimately the trial court entered a corrected judgment finding Defendant guilty on the sodomy charge, and passed sentence accordingly. Defendant unsuccessfully appealed the convictions. The issue before the Supreme Court was whether Defendant's constitutional rights against double jeopardy had been violated by the poll of the jury and change in Defendant's sentence. Upon review, the Supreme Court found that under the circumstances of this case, Defendant's constitutional rights were violated. The Court reversed the sodomy conviction and remanded the case for further proceedings.
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REL 10/28/2011 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . SUPREME COURT OF ALABAMA OCTOBER TERM, 2011-2012 1091645 Ex p a r t e T.D.M. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In r e : T.D.M. v. S t a t e o f Alabama) ( W i l c o x C i r c u i t C o u r t , CC-06-12; C o u r t o f C r i m i n a l A p p e a l s , CR-08-0355) PER CURIAM. T.D.M. was c o n v i c t e d first o f one c o u n t d e g r e e a n d one c o u n t o f sodomy of sexual i n the f i r s t abuse i n t h e degree. The 1091645 record shows t h a t 2007, the jury sexual-abuse jury first charge was t h e n After a t t h e e n d o f T.D.M.'s t r i a l returned and n o t g u i l t y a short t i m e , d u r i n g which not-guilty clerical error. on t h e sodomy c h a r g e . left proceedings The the courtroom. continued i n the had been The t r i a l entered as a court then r e c a l l e d result that of a and p o l l e d t h e s t a t e d t h a t h i s o r h e r v o t e on t h e s o d o m y was g u i l t y . After court the issue heard September the on t h e c l e r k entered t o inform t h ejudge verdict j u r y , and each j u r o r count of guilty d i s c h a r g e d , and t h e j u r o r s courtroom, the c i r c u i t the verdicts on A u g u s t 1 6 , court testimony 15, 2008, jury's was b r i e f e d at the sentencing as t o t h e e v e n t s that d i s c h a r g e and i t s r e c a l l . e n t e r e d a judgment charge by both and passed finding sentence sides, the t r i a l hearing transpired affirmed T.D.M. T.D.M. g u i l t y on s e v e r a l T.D.M.'s c o n v i c t i o n s . filed a petition between on t h e s o d o m y accordingly. of h i s convictions 0355, June 25, 2010] on Ultimately, the t r i a l T.D.M. a p p e a l e d t o t h e C o u r t o f C r i m i n a l A p p e a l s , a reversal held grounds. T.D.M. v . S t a t e , So. 3d f o rthe writ 2 seeking That court [Ms. CR-08- ( A l a . Crim. App. 2010). of certiorari i n this 1091645 Court, seeking decision. review This of Court the Court granted of certiorari Criminal Appeals' review solely d e t e r m i n e w h e t h e r T.D.M.'s c o n s t i t u t i o n a l r i g h t s a g a i n s t placed twice i n jeopardy, United States Constitution not-guilty the verdict that, rights and a r t . and then under against I, § returned being to the 9, o f t h e A l a b a m a returned was d i s c h a r g e d , and changed i t s v e r d i c t . the circumstances double jeopardy Amendment when t h e j u r y on t h e s o d o m y c o u n t , of this were v i o l a t e d , case, a n d we a left We T.D.M.'s reverse remand. Facts The jury the F i f t h o f 1901, were v i o l a t e d courtroom, hold and Constitution under to and P r o c e d u r a l r e c o r d r e f l e c t s t h a t a t t h e e n d o f T.D.M.'s t r i a l t h e entered the courtroom deliberations. a t 5:19 p.m. a f t e r The f o l l o w i n g "THE COURT: Y o u may reached a v e r d i c t ? "FOREPERSON: "THE History COURT: then be We h a v e , Y o u r Please read completing occurred: seated. Has the jury Honor. the verdict. "FOREPERSON: 'We, t h e j u r y , f i n d the defendant, [T.D.M.], g u i l t y o f t h e o f f e n s e o f s e x u a l abuse i n t h e f i r s t d e g r e e as c h a r g e d i n c o u n t one o f t h e indictment. We, t h e j u r y , find the defendant, 3 its 1091645 [T.D.M.], n o t g u i l t y o f t h e o f f e n s e o f sodomy c h a r g e d i n c o u n t two o f t h e i n d i c t m e n t . ' "THE COURT: What s a y s "[Prosecutor]: "THE COURT: the State? The S t a t e ' s What s a y s as satisfied, Your Honor. the defendant? "[Defense counsel]: We d o n ' t w a n t y o u t o p o l l , J u d g e , i f t h a t ' s w h a t y o u ' r e a s k i n g . A n d we w a n t t o make a p o s t - t r i a l m o t i o n . "THE COURT: L a d i e s a n d g e n t l e m e n , on b e h a l f o f t h e lawyers involved i n t h i s c a s e ; our C i r c u i t Clerk, ... ; t h e S h e r i f f ; a n d t h e o t h e r j u d g e s i n t h i s c i r c u i t , we t h a n k y o u f o r y o u r t i m e . We h o p e y o u have e n j o y e d your e x p e r i e n c e . This concludes your j u r y s e r v i c e f o r t h e week. [The c l e r k ' s ] o f f i c e h a s p r e p a r e d y o u r c h e c k s a n d y o u r e x c u s e s . Y o u w i l l now be f r e e t o g o . "However, i f you d e s i r e t o s t a y around and t a l k t o t h e f a m i l y members o r a n y o f [ t h e ] l a w y e r s , y o u may. T h a t i s u p t o y o u . A g a i n , i t was a p l e a s u r e m e e t i n g y o u . [The c l e r k ] w i l l t a k e y o u r b a d g e s . He w i l l a l s o hand you t h e i n f o r m a t i o n you need t o go. L a d i e s and gentlemen, you w i l l remain s e a t e d u n t i l a f t e r t h e j u r o r s have been e x c u s e d . " The following jury was excused at 5:21 p.m., after which transpired: "THE COURT: [ T . D . M . ] , b a s e d on t h e j u r y f i n d i n g y o u g u i l t y o f t h e o f f e n s e o f s e x u a l abuse i n t h e f i r s t d e g r e e , I'm g o i n g t o f i n d y o u g u i l t y o f t h e o f f e n s e of s e x u a l abuse i n t h e f i r s t d e g r e e . B a s e d on t h e j u r y ' s v e r d i c t o f f i n d i n g you n o t g u i l t y o f t h e o f f e n s e o f s o d o m y i n t h e f i r s t d e g r e e , I'm g o i n g t o f i n d y o u n o t g u i l t y o f t h e o f f e n s e o f sodomy i n t h e f i r s t degree. Do y ' a l l w a n t a p r e s e n t e n c e r e p o r t ? 4 the 1091645 "[Defense counsel]: "THE COURT: same b o n d ? "WHEREUPON, "THE COURT: Honor. I s t h e d e f e n d a n t g o i n g t o r e m a i n on t h e "[Prosecutor]: "THE C L E R K : Yes, Your Yes, s i r . Your E x c u s e me. Judge. an o f f - t h e - r e c o r d The f o r e p e r s o n "[Defense counsel]: Honor. What discussion signed was held. t h e wrong one. happened? "THE COURT: They r e a d t h e wrong v e r d i c t form. She s i g n e d t h e wrong v e r d i c t form. B r i n g t h e f o r e p e r s o n in. ... "THE COURT: [Foreperson], you handed t h e Court t h e j u r y v e r d i c t s and you r e p r e s e n t e d to the Court that you g a v e t h e C o u r t i n c o r r e c t i n f o r m a t i o n . "FOREPERSON: Yes, sir. "THE COURT: Explain that to the Court. "FOREPERSON: Well, when I s t o o d up t o read, I r e a l i z e d t h a t I h a d s i g n e d t h e w r o n g o n e . We a g r e e d on b o t h c o u n t s o f g u i l t y . "THE COURT: And t h e i n d i c a t i n g not g u i l t y ? form you "FOREPERSON: And you a r e s a y i n g me i s Right. "THE handed COURT: jury's that i s not the verdict? "FOREPERSON: "THE COURT: No. That wasn't What s a y s our v e r d i c t . the State? 5 1091645 "[Prosecutor]: Your Honor, i t appears t h a t t h e r e has been a c l e r i c a l m i s t a k e . And I t h i n k t h a t they s h o u l d be a l l o w e d t o a d j u s t t h a t . "[Defense counsel]: Judge, under double-jeopardy laws, the jury she signed the verdict, she p u b l i s h e d t h e j u r y v e r d i c t and t h e S t a t e d i d n o t r e q u e s t t h a t t h e j u r y be p o l l e d . The C o u r t a c t u a l l y e n t e r e d judgment a f t e r t h a t . Under d o u b l e - j e o p a r d y l a w s , y o u c a n ' t go b a c k a n d c h a n g e i t . I t i s w h a t i t i s . I t w o u l d n ' t be a n y d i f f e r e n t i f t h e y r e a d a guilty verdict. O n c e t h e y make t h e v e r d i c t a n d t h e y p u b l i s h i t and t h e Court a c c e p t s i t and n e i t h e r p a r t y asks f o r a p o l l i n g of the j u r y , n e i t h e r p a r t y o b j e c t e d t o a n y t h i n g about t h e v e r d i c t s and t h e Court has actually entered judgment and that prevents him from being put back i n jeopardy f o r that crime. "[Prosecutor]: Your Honor, t h i s case i s n o t b e i n g t r i e d again. This i s part of the process. I mean, s h e t h e f o r e m a n made a m i s t a k e . We d o n ' t s u s p e c t t h a t t h e r e ' s b e e n a n y b a d f a i t h on h e r p a r t , j u s t human e r r o r . ... T h e y j u s t w a n t t o go i n a n d c o r r e c t what t h e v e r d i c t s h o u l d a c c u r a t e l y r e f l e c t , and t h a t ' s a g u i l t y v e r d i c t on b o t h c o u n t s . "THE COURT: We've p u t a l l t h e i n f o r m a t i o n o n t h e record. I'm g o i n g t o b r i n g t h e j u r o r s b a c k i n , a n d l e t t h e m make t h e i r r e p r e s e n t a t i o n t o t h e C o u r t . A n d I ' l l g i v e y ' a l l a c h a n c e t o make a n i s s u e . Since I've a l r e a d y e n t e r e d t h e judgment and a c c e p t e d these v e r d i c t s , I'm g o i n g t o l e t t h a t s t a n d . As soon as I receive y'all's briefs, I ' l l re-address this issue. ... W e ' l l l e t t h e j u r o r s c o r r e c t i t and e x p l a i n a s t o t h e r e a s o n why t h e y d i d t h i s . " The following jury returned exchange then to the courtroom took place: 6 a t 5:30 p.m. The 1091645 "THE COURT: [ F o r e p e r s o n ] , i t ' s my u n d e r s t a n d i n g y o u would like t o make a c o r r e c t i o n f o r the Court concerning the v e r d i c t . What i s t h e j u r y ' s v e r d i c t a s t o c o u n t two i n t h e i n d i c t m e n t ? "FOREPERSON: 'We, [T.D.M.], g u i l t y d e g r e e as c h a r g e d The the court then affirmative court then polled the entered the j u r y , find the defendant, o f t h e o f f e n s e o f sodomy first i n c o u n t two o f t h e i n d i c t m e n t . ' " the jury. question: as "Is exhibits Each that the juror your three verdict?" written r e p r e s e n t i n g a f i n d i n g o f g u i l t y on t h e c h a r g e and findings of both guilty and not answered guilty in The verdicts, of s e x u a l abuse on the charge of sodomy. At trial the the s e n t e n c i n g h e a r i n g 13 m o n t h s a f t e r c o u r t i n f o r m e d the p a r t i e s t h a t i t had matter" to t h a t t h a t was it had going guilty this find verdict and not p o s s i b l e . reviewed to Court the file 1 and that The this trial the on both from on the the jury t r i e d to Court had counts sodomy the "certify indicated court then s t a t e d testimony T.D.M. g u i l t y the t r i a l , and that and that i t receive 7 the charge. T h e r e i s no p r o v i s i o n i n A l a b a m a l a w o r i n t h e R u l e s A p p e l l a t e P r o c e d u r e p r o v i d i n g f o r an A l a b a m a c i r c u i t c o u r t s u b m i t a c e r t i f i e d q u e s t i o n t o t h e A l a b a m a Supreme C o u r t . r e c o r d does not c o n t a i n i n f o r m a t i o n r e g a r d i n g the circ court's r e p o r t e d query to t h i s Court. 1 was of to The uit 1091645 After T.D.M. the t r i a l guilty prosecution jury's court on b o t h counts, to t e s t i f y initial stated that i t was t h e c l e r k was and i t s r e c a l l . He the j u r o r s had been l e a v i n g t h e c o u r t r o o m w h i l e leave, there seats. called find by t h e The f o r e p e r s o n testified that the spectators was t h e l a s t juror to and as she e x i t e d t h e c o u r t r o o m she t o l d t h e c l e r k t h a t was a p r o b l e m -- t h a t form. The c l e r k t e s t i f i e d around him outside closed the door, she had s i g n e d that spoke w i t h door. did the jurors themselves whether between that "there same time The clerk could the i n i t i a l have t h e j u r y was left then stated briefly huddled that the discharge been" bystanders there, but that jurors outside t h e m s e l v e s , w h i l e he r e e n t e r e d The c l e r k c o u l d The c l e r k t e s t i f i e d discussed he to c l a r i f y then t o l d t h e j u r o r s t o remain where the judge. know He the foreperson w e r e w h i l e he i n f o r m e d not t h e wrong v e r d i c t a l l the j u r o r s the courtroom w h a t s h e was s a y i n g , judge. to as t o what h a d t r a n s p i r e d b e t w e e n t h e discharge remained i n t h e i r going the case they t h a t he among and t h e r e c a l l i n the h a l l and at the he d i d n o t r e m e m b e r . the courtroom, by the courtroom t o speak w i t h the not t e s t i f y 8 as t o w h e t h e r any o f t h e 1091645 jurors discussed bystanders the clerk recommendations restitution. sentenced with testified, for a or witnesses term, with f o r fines, A t t h e end of t h e h e a r i n g , the sentences any operative facts a question of law. of law i n c r i m i n a l gave and f o r the t r i a l court i nthestate penitentiary f o r o f Review arenot disputed; this case The s t a n d a r d f o r r e v i e w f o r p u r e cases their to run concurrently. Standard 1056, other other prison T.D.M. t o t h r e e y e a r s counts, The each d u r i n g h i s absence. After both t h e case i s de n o v o . presents questions E x p a r t e K e y , 890 S o . 2 d 1059 ( A l a . 2003). Discussion Obvious that has been verdict. The noting discharged implications i s recalled of Criminal the general rule court when a jury amends i t s purposes i s what "discharge." Court discharge arise and then The q u e s t i o n f o r d o u b l e - j e o p a r d y constitutes That double-jeopardy that Appeals a jury t o amend i t s v e r d i c t . then reviewed federal 9 began cannot T.D.M., cases i t s analysis be r e c a l l e d So. 3d a t and cases from by after . other 1091645 states, jury some h o l d i n g t h a t i s discharged immediately amending the approaches verdict, to identifying discharge. variously and a trial and forecloses others t h e moment I d . The " f u n c t i o n a l " i n terms court's declaration of whether a the p o s s i b i l i t y of adopting "functional" of e f f e c t i v e , approaches the jury that or legal, define discharge has l e f t the presence c o n t r o l o f t h e c o u r t or has had t h e o p p o r t u n i t y t o d i s c u s s the case w i t h " o u t s i d e r s , " thereby c r e a t i n g t h ep o s s i b i l i t y o f tampering. The Id. Court of Criminal Appeals, implicitly functional approach to determining discharge, held that T.D.M.'s d o u b l e - j e o p a r d y been violated. I t based t h e moment adopting of a effective rights had not i t s d e t e r m i n a t i o n on t h e f o l l o w i n g rationale: "[T]he jury remained on t h e t h i r d floor of the courthouse between t h e time t h e judge announced t h a t t h e members w e r e d i s c h a r g e d u n t i l the time the foreman i n f o r m e d t h e c l e r k t h a t she had s i g n e d t h e w r o n g f o r m . The j u r y m e m b e r s h a d n o t d i s p e r s e d o r c o n v e r s e d w i t h o u t s i d e r s . The j u r o r s h a d r e m a i n e d i n the hallway just outside t h e doorway of the courtroom, and t h e foreman immediately brought t h e mistake to the clerk's attention. There was no e v i d e n c e o f a n y t a m p e r i n g w i t h t h e members o f t h e jury. Once t h e members were polled, they a l l c o n f i r m e d t h e v e r d i c t a s i t h a d b e e n i n t e n d e d . ... Therefore, there was no v i o l a t i o n o f T.D.M.'s double-jeopardy rights." 10 1091645 So. 3d a t In not no determining that been cases (emphasis violated, from added). T.D.M.'s d o u b l e - j e o p a r d y the Court of Criminal other j u r i s d i c t i o n s evidence of We j u r i s p r u d e n c e has s u f f i c i e n t l y a j u r y has e f f e c t i v e l y that focuses rather have than on on the presence extrajudicial the and even Alabama Thus, that analysis of the court Alabama or cases improper presented e v i d e n c e i n d i c a t i n g t h a t no j u r y t a m p e r i n g o r i m p r o p e r had on t h e q u e s t i o n o f when f o r tampering i n cases had t h e r e was that supervision of tampering. opportunity contact that conclude addressed relied b e e n d i s c h a r g e d t o s u p p o r t an on e v i d e n c e turned Appeals a n d on t h e f a c t tampering. rights strong contact occurred. In before Alabama, a jury may amend i t sverdict i t i s discharged, but " i t i s equally authorities that a t any clear their Ins. Co. v . S t u a r t , consideration of the case." Preferred 3 9 5 S o . 2 d 9 8 0 , 986 72 A l a . 527 R i s k and o t h e r cases C o u r t have p r o v i d e d from a s t o when a j u r y this (1882)). court R i s k Mut. ( A l a . 1981) St. C l a i r v. C a l d w e l l & R i d d l e , guidance under our t h e d i s c h a r g e o f t h e j u r y by t h e t r i a l ends time (citing Preferred consistent i s "discharged" f o r a l l purposes. 11 1091645 In its Brister verdict realized were v. S t a t e , aloud 26 A l a . 107 some defendants, in the courtroom who when the verdict t h a t t h e p r i s o n e r s had a r i g h t the verdict was r e a d , had been " d i s c h a r g e d , " discharged discharge "was instantaneous continuing the court." In time" Court t o be p r e s e n t the jury. contemplation" by the court because the and w h i l s t The for a as (emphasis left the courtroom, Ala. a t 40. been absent Brister. discharged, a "all the and was "was body, almost were still and power o f added). I n Cook, after were that time, revocation the jury, 26 A l a . a t 132 and were jury they and t o be i n t h e b a r , a n d i n t h e p r e s e n c e to extend when h e l d t h a t the j u r y had C o o k v . S t a t e , 60 A l a . 39 ( 1 8 7 7 ) , declined verdict This " i n legal revocable i n due read. and t h e j u r o r s had s t a r t e d t o l e a v e t h e 26 A l a . a t 1 1 7 . been revoked recalled in jail, was b u t " h a d n o t g o t o u t o f t h e b a r " when recalled. not the judge read the judge had been p l a c e d Recognizing courtroom the jury i n c o u r t a n d was d i s m i s s e d b e f o r e that not (1855), this Court the jurors which expressly read two o f t h e of the others remaining the jurors therein." 60 When t h e c o u r t d i s c o v e r e d t h a t t h e d e f e n d a n t h a d during the reading of the v e r d i c t , 12 t h e two jurors 1091645 were had recalled been they and a s e c o n d v e r d i c t r e t u r n e d . gone had only five and stated under oath that with anyone while they were after verdict did verdict the not change Court jurisprudence 499, 501-02, of on place and (Emphasis issue court thereafter and courtroom, was (1968), In Hayes, discovered one. The bailiff The court sent returned "15 of 60 A l a . a t v. the they 41-42. this Court's "When a j u r y t h e c o u r t r o o m so immediate, continuous w i t h the case ceases to i s beyond jury their read the control." i t s verdict in jurors left the j u r o r s had r e t u r n e d the two had been i n s t r u c t e d t o r e t u r n the b a i l i f f to r e t r i e v e the o r 20 m i n u t e s " 13 first as f o l l o w s : After that the the 44 A l a . A p p . the case though a State, connection discharged. i t was reading and has l e f t beyond that written v e r d i c t s , although only i n Hayes to return even summarized by t h e c o u r t themselves added.) dispersed, the held that i t recalled of the second. c o n t r o l of the c o u r t , t h e i r exist been between S o . 2 d 708 has been d i s c h a r g e d to had Appeals this 214 This Court s t i l l t o have jurors and t h e r e a d i n g The as Id. f o r the j u r o r s verdict jurors the case not d i s c u s s e d error two minutes absent from the courtroom. was The later with jurors. "some" o f 1091645 the jurors, that. of and t h e o t h e r j u r o r s 44 A l a . Appeals left the 710 that court's "once the jury control, i n order insufficient at A p p . a t 5 0 0 - 0 1 , 214 S o . 2 d a t 7 1 0 . held resummoned r e t u r n e d a few m i n u t e s they to correct i n substance." (emphasis has been could 44 A l a . The Court discharged and thereafter not o r amend after be a verdict which i s A p p . a t 5 0 2 , 214 S o . 2 d added). This Court again examined the q u e s t i o n i n P r e f e r r e d supra, where a jury was recalled to reconsider after i t had been discharged. After Risk had r e t u r n e d i t sv e r d i c t and had been jurors moved f r o m while the judge juror then parte the jury box b u t remained and d e f e n s e approached conversation the jury counsel plaintiff's with him left counsel B a s e d on t h a t plaintiff's defense chambers. counsel summoned As a r e s u l t reassembled the jury, further, a n d a new The i n Preferred jury in verdict Risk, jury was resulted. unlike 14 Preferred the i n the courtroom the courtroom. and s t a r t e d the A an e x jury's conversation, the counsel to the judge's of the ensuing conversation, the verdict discharged, concerning understanding of i t s v e r d i c t . its Risk, asked to the judge deliberate 395 S o . 2 d a t the j u r i e s 981-85. i n B r i s t e r and 1091645 Hayes, did discharge not and determined jury the recall. that i s "free the an the So. noted discharge, later constant tampered with d u r i n g the by any and courtroom was one s u p e r v i s i o n and i n which error. and Id. at concern determined 988. raised by a jury's or "'communicated w i t h "'any outside Preferred Risk, S t a t e , 344 So. 2d 616, 395 619 or influence'" few m i n u t e s t h a t t r a n s p i r e d b e t w e e n t h e ( q u o t i n g M a s t e r s v. of subsequent r e t u r n i n g of a v e r d i c t person'" recall.'" the authority ( e m p h a s i s a d d e d ) , and critical between Preferred Risk ultimately t h a t j u r o r s c o u l d be "'very of d i s c h a r g e a recall, i s the p o s s i b i l i t y in the discharge 2 d a t 987 above, leave Court s e c o n d v e r d i c t was As App. The effective from c o u r t , " 395 that physically So. 2d time at 988 (Fla. Dist. Ct. 1977)). At outside T.D.M.'s t r i a l , the presence court f o r a few clerk testified bystanders and he the hallway and j u r y was outside supervision of the any minutes between i t s d i s c h a r g e t h a t he i n the could the not alone. could hallway know w h a t not while an 15 officer the The remember w h e t h e r t h e r e were he was there opportunity and of and recall. transpired while T h e r e was courtroom with the the jury, j u r y was f o r an in "outside 1091645 influence" to have been b r o u g h t the d i s c h a r g e and jury's Another cases, as concern this of i m p r o p r i e t y . set this Court by the discussed appearance out by on t h e j u r o r s between i t s recall. raised Court to bear 395 facts in So. in Preferred of t h i s Preferred 2d Risk at is 987. and similar Risk, The is standard stringent: " I n E d w a r d s v . S e a b o a r d C o a s t L i n e R. Co., A l a . , 38 4 So. 2 d 96 ( 1 9 8 0 ) , t h i s C o u r t r e f u s e d t o c o u n t e n a n c e d i s c u s s i o n s between t h e t r i a l j u d g e and i n d i v i d u a l j u r o r s i n chambers, even though the w e l l - m e a n i n g trial judge had i n h i s own view substantially r e c i t e d f o r t h e r e c o r d t h e e n t i r e c o n v e r s a t i o n s . Our c o n c e r n was n o t o n l y f o r t h e i m p a r t i a l i t y o f t h e t r i b u n a l b u t f o r t h e a p p e a r a n c e o f i m p a r t i a l i t y as well: "'Whether or not i n j u r y or i n j u s t i c e has r e s u l t e d t o t h e l i t i g a n t s by r e a s o n o f the conduct, i s not our p r i m a r y c o n c e r n . R a t h e r , our concern i s w i t h the i m p l i c a t i o n that a t t a c h e s to the a d m i n i s t r a t i o n of justice under these circumstances. Confidence in our judicial system is i m p e r i l e d i f such conduct i s countenanced in jury t r i a l s . Conduct which i f proved w o u l d g i v e r i s e t o doubt and d i s r e s p e c t , o r t h e m e r e a p p e a r a n c e o f s u c h c o n d u c t as w i l l not meet with the a p p r o v a l of public o p i n i o n , m u s t be s e v e r e l y c o n d e m n e d . I t i s o n l y t h r o u g h t h e g r a n t i n g o f a new t r i a l i n s i t u a t i o n s l i k e t h i s , as w e l l as v i g i l a n t e f f o r t s by t h e o f f i c e r s of t h e c o u r t t o prevent such occurrences, that public confidence i n the jury system may be preserved. R a s m u s s e n v . M i l l e r , 268 W i s . 4 3 6 , 68 N.W.2d 16, 18 [ ( 1 9 5 5 ) ] . [Quoting 16 the 1091645 from Daniels v. Bloomquist, 258 I o w a 3 0 1 , 138 N.W.2d 8 6 8 , 872 ( 1 9 6 5 ) . ] ' "In our view, those statements apply with equal force to the s i t u a t i o n before us. I t i s doubtful that the purest motives f o rexacting d u p l i c a t i o n can c o m p l e t e l y a n d p e r f e c t l y r e p e a t w h a t may h a v e b e e n e x c h a n g e d b e t w e e n l a w y e r a n d j u r o r when b o t h h a v e been released from the direct control of the supervising judge, or that the appearance of impropriety c a n be removed. The e l i m i n a t i o n o f s u s p i c i o n i n s u c h i n s t a n c e s i s t o o much o f a b u r d e n on j u d g e s a n d l a w y e r s a l i k e , whatever the motives for the communication, when the latent dissatisfactions with ad hoc d e c i s i o n s on s u c h i s s u e s a r e a v a i l a b l e t o t h o s e who a l r e a d y f i n d i t easy to criticize the j u d i c i a l system and i t s participants. The i n t e g r i t y of the specific d e c i s i o n and t h a t o f t h e e n t i r e system a r e a f f e c t e d . R e c o g n i t i o n o f t h e need t o prevent such occurrences i s n o t t h e a p p l i c a t i o n o f some mean t e c h n i c a l i t y . What we d e a l w i t h h e r e i s a t t h e v e r y root and branch of the j u r y system i t s e l f . The i n t e g r i t y o f t h a t system does n o t p e r m i t s u c h i n s t a n c e s t o be decided by 'thel e n g t h of t h e c h a n c e l l o r ' s f o o t . ' " 395 So. 2d a t 987. The appearance of i m p r o p r i e t y i s l i k e w i s e a concern the facts before of the courtroom, courtroom door us. The c l e r k who e s c o r t e d who was closed, problem with the i n i t i a l to testify prospective later juror spoke with who verdict, regarding informed alone while the of the a n d who was t h e o n l y witness case. 17 T.D.M.'s j u r y o u t the court those i n T.D.M.'s them under events, had He was s t r u c k been a from t h e 1091645 jury f o r c a u s e b e c a u s e he certain, without was guilty accused of the of influence and it two "something" throughout the on court a can juror, has Coast been Line for a t r i a l 384 judge jurors during p r e s e n c e of c o u n s e l and judge's innocent So. the to the 96 or i n the in her That an "outside" officer's e.g., intent Edwards ( A l a . 1980) have had breaks having persistence See, 2d child's improper was defendant proceedings. established. R.R., the child's c o n s t i t u t e an however d i r e t h a t he t h a t the of criminal individual trial virtue the the improper by voir evidence, and behavior, Seaboard h e a r d any defendant accusations officer having stated during (holding conversations with outside the j u r y , however pure r e s t of the trial, v. the intentions). Conclusion The jury unattended, court. in was outside It i s also communicate T.D.M.'s with, and, influence" discharge and this case recall. would in the and j u r y had in the an communicate the few minutes an 18 the of the with, between amended v e r d i c t t o "appearance of opportunity did Allowing hallway supervision fact, during create while presence clear that "outside in the trial, to an its stand impropriety," 1091645 t h o u g h we h a v e no r e a s o n t o d o u b t t h a t were h o n o r a b l e The jury delivered became then legal left that, when the jury properly first facts a verdict that found t h e power T.D.M. " n o t as charged, Any subsequent and that thereby States The f o ra crime violate 2 The of the court. to alter jury After i t s verdict. The v e r d i c t that was g u i l t y " o f sodomy i n t h e i s the verdict a l t e r a t i o n of that o f t h i s case would subject truthful. by t h e c o u r t . and s u p e r v i s i o n n o t have intentions was s u f f i c i e n t a n d t h a t 395 So. 2 d a t 9 8 7 . delivered jeopardy testimony i t was a c c e p t e d did Risk, degree, stand. subsequent the presence Preferred in and h i s theclerk's verdict that under t h e T.D.M. t o b e i n g p l a c e d he h a d b e e n acquitted must twice o f and would his double-jeopardy rights Constitution and t h e Alabama Constitution. Court conviction of Criminal for first-degree Appeals' under affirmance sodomy t h e r e f o r e of the United T.D.M.'s must be r e v e r s e d T h i s C o u r t i s r e l e a s i n g a n o t h e r c a s e on t h i s d a t e , Ex p a r t e Lamb, [ M s . 1 0 9 1 6 6 8 , O c t o b e r 2 8 , 2 0 1 1 ] So. 3d ( A l a . 2011), w i t h analogous f a c t s and a s i m i l a r outcome. We note that t h e p r o b l e m a t i c r e c a l l i n g o f a discharged j u r y can be a v o i d e d i n a l l c a s e s i f , b e f o r e t h e j u r y i s d i s c h a r g e d , t h e court p o l l s t h e j u r y and t h e court and a l l counsel review t h e w r i t t e n v e r d i c t form or forms. 2 19 1091645 and t h e cause consistent remanded t o t h a t with this R E V E R S E D AND Malone, Murdock, Main of court f o r further proceedings opinion. REMANDED. C.J., and Woodall, Stuart, Bolin, Parker, a n d Shaw, J J . , c o n c u r . and Wise, J J . , recuse themselves.* * J u s t i c e M a i n a n d J u s t i c e W i s e w e r e members o f t h e C o u r t C r i m i n a l A p p e a l s when t h a t c o u r t c o n s i d e r e d t h i s c a s e . 20
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