739 So. 2d 550 | Ala. Crim. App. | 1999
Chester Toombs was convicted of burglary in the third degree, a violation of §
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.
". . . .
"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,
Moreover, even if the issue had been adequately preserved, the trial judge's communication with the jury did not amount to reversible error. See Ex parte Bankhead,
For the above-mentioned reasons, the judgment of the Circuit Court of Russell County is due to be, and is hereby, affirmed.
AFFIRMED.
Long, P.J., and McMillan, Cobb, Baschab, and Fry, JJ., concur. *1063