Toombs v. State
Toombs v. State
Opinion of the Court
Chester Toombs was convicted of burglary in the third degree, a violation of § 13A-8-43, Ala.Code 1975. He was sentenced pursuant to the Habitual Felony Offender Act, § 13A-5-9(a)(l), Ala.Code 1975, to 15 years in prison. That sentence was split, and he was ordered to serve 3 years in prison and 12 years on probation. On appeal, Toombs contends that the trial judge committed reversible error when he had an ex parte communication with the jury after deliberations had begun.
The record indicates that shortly after the jury retired to deliberate, a sister of one of the jurors approached the trial judge and informed him that a child of one of the jurors had become seriously ill. The trial judge went into the jury room to get the juror and allowed her to telephone her mother. The juror was subsequently released from jury duty. The trial court then notified the alternate juror, who had been released just before deliberations had begun. (R. 90-91.) Toombs moved for a mistrial, arguing that the substitution of a juror during deliberations denied his right to a fair trial. The trial judge responded:
“Let the record show that the deliberations had been taking place about 10 minutes when this event occurred, and the jury was instructed to cease deliberations until it could be ascertained if the alternate could be retrieved.
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“And I think that it is entirely proper [to substitute a juror] as long as the deliberations begin anew.”
(R. 93.) The trial judge denied Toombs’s motion and instructed the jury as follows:
“[The alternate juror] graciously came back, and we will begin the deliberations anew. Begin your deliberations from scratch, just like we had just finished our charge. So, start all over.”
(R. 94.) The trial judge ensured that the alternate had not discussed the case with anyone after he was released, and the jury began deliberations. (R. 95-96.) Toombs subsequently filed a motion for a new trial, raising the same ground that he now raises on appeal. The trial court denied the motion. (C. 52.)
Toombs has failed to preserve this issue for appellate review. At trial, he based his motion for a mistrial on the ground that substituting a juror during deliberations infringed on his right to a fair trial. This ground is different from the one he raised in his motion for a new trial and in his brief to this court, i.e., that the trial judge committed reversible error by having an ex parte communication with the jury after deliberations had begun. A specific ground of objection waives all other grounds not specified. See Glass v. State, 671 So.2d 114, 120 (Ala.Cr.App. 1995). Moreover, even though Toombs raised this ground in his motion for a new trial, the issue was untimely raised. See Greene v. City of Montgomery, 677 So.2d 794, 796 (Ala.Cr.App. 1995); Ray v. State, 527 So.2d 166, 168 n. 2 (Ala.Cr.App. 1987) (a ground concerning an ex parte communication with a member of the jury raised in a motion for a new trial is untimely).
For the above-mentioned reasons, the judgment of the Circuit Court of Russell County is due to be, and is hereby, affirmed.
AFFIRMED.
Reference
- Full Case Name
- Chester Toombs v. State.
- Cited By
- 4 cases
- Status
- Published