text:
    Donald Ray PITTS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01703-COA.
    Court of Appeals of Mississippi.
    Dec. 17, 2002.

      Anthony J. Buckley, Laurel, Attorney for Appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, Attorney for Appellee.
    Before McMILLIN, C.J., THOMAS, and CHANDLER, JJ.
   THOMAS, J.,

for the court.

¶ 1. Donald Ray Pitts was convicted of manslaughter in the Circuit Court of Wayne County and was sentenced to twenty years and ordered to pay restitution in the amount of $6,340 to Mr. and Mrs. Frankie Richardson, $3,500 to the Victim Compensation Fund, an appearance bond fee of $1,600, and court costs of $248.50. Aggrieved, he asserts the following issues:

I. THE TRIAL COURT ERRED IN NOT GRANTING THE DEFENDANT’S REQUEST FOR A CONTINUANCE.
II. THE TRIAL COURT ERRED IN GIVING THE STATE’S MANSLAUGHTER INSTRUCTION S-3, WHICH HAD MATERIAL ELEMENTS MISSING AND MADE REFERENCE TO SELF-DEFENSE, A DEFENSE NOT ARGUED BY THE DEFENDANT.
III. THE TRIAL COURT ERRED BY ALLOWING THE PROSECUTOR TO REPEATEDLY EMPHASIZE THE FLIGHT AND VIOLENT HISTORY OF THE DEFENDANT DURING CLOSING ARGUMENT.
IV. THE TRIAL COURT ERRED IN FAILING TO REVERSE THE MANSLAUGHTER CONVICTION ON THE GROUNDS THAT THE JURY VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

Finding no error, we affirm.

FACTS

¶ 2. Donald Ray Pitts had a fight with his girlfriend Sheba Cochran while out shooting pool. Pitts left in Cochran’s truck, and Cochran informed her brother, Cecil Richardson, that Pitts had beaten her. Richardson and a friend, Roger Shauger, went after Pitts, ostensibly in order to retrieve Cochran’s truck. Cochran’s daughter testified that Pitts stopped by Cochran’s house in order to get some things. She did not notice what he took from the house, although the State attempted to show that Pitts retrieved Cochran’s single shot .410 shotgun.

¶ 3. Pitts ended up at a remote spot in Wayne County, known as Fisherman’s Nook. Cecil Richardson and Roger Shau-ger found him there. Shauger testified that Richardson was not armed as far as he knew, but Pitts was pointing a gun at them. Shauger admitted that he was carrying a wooden tire thumper which he used to check air in tires at his job. According to Shauger’s testimony, Richardson told him to get into Cochran’s truck because they were there to retrieve it. Richardson approached Pitts. Shauger entered the truck and heard a gunshot. Richardson then opened the passenger door of the truck and climbed in, telling Shauger that he had been shot in the chest. As Shauger began to drive away, another gunshot rang out, breaking the window of the truck and wounding Shau-ger in the head. Richardson gave Shauger directions to a nearby home, where an ambulance was summoned. Richardson died shortly thereafter due to the gunshot wound to his chest.

¶ 4. The investigation by the Sheriffs Department of Wayne County discovered two hulls from a .410 shotgun. Shauger’s tire thumper was found at the scene along with a piece of shovel handle, belonging to Richardson’s father, Frankie. A single shot .410 shotgun was retrieved from Pitts when he was arrested the following day. Sheba Cochran testified that the shotgun belonged to her. Dr. Steven Hayne testified that Richardson died from a single shotgun wound, fired from approximately five to six feet away. An expert from the Mississippi Crime Lab testified that samples taken from Richardson were negative for any signs of gunshot residue. Pitts’ roommate testified that Pitts drove up acting hysterically, saying that he had shot Richardson after being beaten with sticks, asserting that he was defending himself. Pitts gave a statement to police claiming that it was Richardson who brought the shotgun and fired first. Pitts claimed that he was able to struggle with Richardson for control of the gun, and that the gun discharged accidentally hitting Richardson.

¶ 5. In his defense, Pitts called a neighbor who claimed to have heard three shots fired on the night of the shooting. Pitts also called the woman whose house Richardson and Shauger had stopped at after the shooting. She testified that Shauger later told her that he and Richardson had ill intent on the night of the shooting. After his defense, the jury deliberated and returned a verdict of not guilty of aggravated assault and guilty of manslaughter. Pitts was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections.

ANALYSIS

I. DID THE TRIAL COURT ERR IN NOT GRANTING THE DEFENDANT’S REQUEST FOR A CONTINUANCE?

¶ 6. Pitts asserts that the trial court erred in not granting his request for a continuance on June 14, 2001. Pitts was arrested and charged on May 6, 2000. He was indicted in January 2001, and trial was initially set for March 7, 2001. Trial was reset for March 15, 2001. Pitts requested a continuance which the trial court granted, resetting trial for June 18, 2001. On June 14, Pitts requested another continuance in order to talk to witnesses dispersed over several states, in order to have additional time to study a crime lab report on gunshot residue, and in order to track down ambulance drivers who responded on the night of the shooting.

¶ 7. The trial judge is vested with broad discretionary powers in granting or refusing to grant a continuance. Lambert v. State, 518 So.2d 621, 623 (Miss.1987). To prevail, the defendant must show not only an abuse of this discretion, but also that the abuse actually worked an injustice in his case. Arteigapiloto v. State, 496 So.2d 681, 685 (Miss.1986). “This Court shall not reverse for the denial of a continuance unless it appears that manifest injustice resulted from the denial.” Buckley v. State, 772 So.2d 1059(¶ 2) (Miss.2000) (citing Stidham v. State, 750 So.2d 1238, 1242(¶ 14) (Miss.1999)).

¶ 8. In support of his position, Pitts directs this Court to the cases of Martin v. State, 312 So.2d 5 (Miss.1975) and Cochran v. State, 244 So.2d 22 (Miss.1971).' In Martin, it was held that the trial court abused its discretion in failing to grant a continuance when an attorney was appointed on Thursday and the case was scheduled for trial the following Monday. Martin, 312 So.2d at 5-6. Similarly, the trial court in Cochran was held to have abused its discretion in failing to grant a continuance in a murder trial where the defendant was forced to go to trial only seven days after he was indicted and fifteen days after the altercation had occurred. Cochran, 244 So.2d at 24-25.

¶ 9. Pitts’ case is quite different. As was noted by both the prosecutor and the trial court, the shooting took place more than a year before the trial date. Pitts had ample time to interview witnesses and had been granted a continuance in March of 2001 when one was initially requested. Pitts fails to demonstrate that the trial court’s denial of a continuance was an abuse of discretion or make any showing that an injustice occurred. Part of the testimony Pitts requested time for was from two people who lived near the scene of the shooting who claimed to have heard three shots fired. Both Louvena Hinton and Linda Tyner testified at trial that they heard three shots. The crime lab findings were adverse to Pitts’ case, since no gunshot residue was found on Richardson. Pitts does not explain what he expected to gain from further time examining this evidence. The trial court properly examined the issues involved and made a ruling within its discretion.

¶ 10. Lacking a showing of an abuse of discretion and any injustice arising from an abuse, this issue is without merit.

II. DID THE TRIAL COURT ERR IN GIVING THE STATE’S MANSLAUGHTER INSTRUCTION S-3, WHICH HAD MATERIAL ELEMENTS MISSING AND MADE REFERENCE TO SELF-DEFENSE, A DEFENSE NOT ARGUED BY THE DEFENDANT?

¶ 11. Pitts argues that the trial court erred in giving the State’s manslaughter instruction S-3, which he asserts had material elements missing and made reference to self-defense, a defense which he chose not to argue. Pitts admits, however, that no objection was made at trial to the jury instruction. “The general rule is that if the offended party fails to object to a jury instruction at the trial, the issue is barred on appeal.” Howell v. State, 800 So.2d 556, 559(¶ 5) (Miss.Ct.App.2001) (citing Walker v. State, 729 So.2d 197, 202(¶ 19) (Miss.1998)).

¶ 12. Even if the issue was not procedurally barred, it is without merit. Pitts claims that the instruction was in error because it failed to include statutory language of “but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law.” Miss. Code Ann. Section 97-3-35 (Rev.2000). The use of the shotgun was ■ specifically addressed in another instruction, D-9a. When reviewing allegedly erroneous instructions, this Court reviews the instructions as a whole to determine whether the jury was properly instructed. Morgan v. State, 741 So.2d 246, 253(¶ 16) (Miss.1999) (citing Willie v. State, 585 So.2d 660, 680 (Miss.1991)(overruled on other grounds)). “This Court does not review jury instructions in isolation.” Nicholson on Behalf of Gollott v. State, 672 So.2d 744, 752 (Miss.1996) (citing Malone v. State, 486 So.2d 360, 365 (Miss.1986)). It is therefore not error for one instruction to lack an element if that element'is found in another instruction given by the court.

¶ 13. Pitts also argues that the inclusion of “not in necessary self-defense” was error because he was not defending himself based on that theory. Looking to the trial record, it appears that in fact Pitts did use self-defense as the basis for the struggle which he claimed led to the accidental shooting of Richardson, according to his counsel. Since the trial court also allowed an instruction dealing with Pitts’ theory of accident, the jury was adequately instructed as to the crime. and Pitts’ defenses. Accordingly, this issue is without merit..

III. DID THE TRIAL COURT ERR BY ALLOWING THE PROSECUTOR TO REPEATEDLY EMPHASIZE THE FLIGHT AND VIOLENT HISTORY OF THE DEFENDANT DURING CLOSING ARGUMENT?

¶ 14. Pitts asserts that the trial court erred by allowing the prosecutor to emphasize Pitts’ flight from the scene of the shooting and Pitts’ violent history during closing arguments. However, Pitts failed to -object to these statements at trial. Consequently, Pitts waived this issue and it is proeedurally barred from review. Chase v. State, 645 So.2d 829, 854 (Miss.1994) (citing Johnson v. State, 477 So.2d 196, 210 (Miss.1985)).

[I]t is the duty of a trial counsel, if he deems opposing counsel overstepping the wide range of authorized argument, to promptly make objections and insist upon a ruling by the trial court. The trial judge first determines if the objection should be sustained or overruled. If the argument is improper, and the objection is sustained, it is the further duty of trial counsel to move for a mistrial. The circuit judge is in the best position to weigh the consequences of the objectionable argument, and unless serious and irreparable damage has béen done, admonish the jury then and there to disregard the improper comment.

Johnson, 477 So.2d at 209-10 (citations omitted),

¶ 15. Without disregarding the procedural bar, this issue is without merit. Looking at the record, the prosecutor first mentioned Pitts’ flight in his closing argument in a general summation of the facts. Pitts’ counsel then addressed the issue of flight in his closing and suggested that due to the shock of the moment it should not be considered as evidence of guilt. In response, the prosecutor in his final closing made the quotation of which Pitts now complains. The prosecutor stated, “The wicked flee when no man pursueth, but the righteous are as bold as lions.” In responding to the defense counsel’s remarks, the prosecutor was within the “considerable latitude” given to counselors in making their closing arguments. Craft v. State, 271 So.2d 735, 737 (Miss.1973).

¶ 16. In the same quotation from the prosecution’s closing argument, Pitts asserts that the use of the word “wicked” was improper. Although defendant vilification has been condemned by the Mississippi Supreme Court in cases such as Bridgeforth v. State, 498 So.2d 796, 801 (Miss.1986), where the defendant was called “scum,” the Court has used the word “wicked” in defining malice which must be proved in murder, with which Pitts was charged. “[The] word malice is not only confined to a particular ill-will to the deceased, but is intended to denote ... an action flowing from a wicked and corrupt motive.” Johnson v. State, 475 So.2d 1136, 1139 (Miss.1985). The jury was properly instructed that the arguments of counsel were not evidence, and if not supported by the evidence they were to be disregarded.

¶ 17. This issue is procedurally barred and lacks substantive merit.

IV. DID THE TRIAL COURT ERR IN FAILING TO REVERSE THE MANSLAUGHTER CONVICTION ON THE GROUNDS THAT THE JURY VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 18. Pitts argues that the jury verdict was against the overwhelming weight of the evidence. In Ford v. State, 753 So.2d 489, 490(¶ 8) (Miss.Ct.App.1999), we held that:

[I]n determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence presented as supportive of the verdict, and we will disturb a jury verdict only when convinced that the circuit court has abused its discretion in failing to grant a new trial or if the final result will result in an unconscionable injustice.

(citing Danner v. State, 748 So.2d 844, 846 (¶ 7) (Miss.Ct.App.1999)). See also Turner v. State, 726 So.2d 117, 125(¶ 29) (Miss.1998); Herring v. State, 691 So.2d 948, 957 (Miss.1997); Groseclose v. State, 440 So.2d 297, 300 (Miss.1983). “Any less stringent rule would denigrate the constitutional power and responsibility of the jury in our criminal justice system.” Hughes v. State, 724 So.2d 893, 896(¶ 14) (Miss.1998). “In determining whether a jury verdict is against the overwhelming weight of the evidence, the court accepts as true the evidence favorable to the State.” Wetz v. State, 503 So.2d 803, 812 (Miss.1987). See also McClain, 625 So.2d at 781; Van Buren v. State, 498 So.2d 1224, 1229 (Miss.1986). It has also been established that “the jury is the judge of the weight and credibility of testimony and is free to accept or reject all or some of the testimony given by each witness.” Meshell v. State, 506 So.2d 989, 991 (Miss.1987). See also Hilliard v. State, 749 So.2d 1015, 1017(¶ 9) (Miss.1999); Lewis v. State, 580 So.2d 1279, 1288 (Miss.1991); Gandy v. State, 373 So.2d 1042, 1045 (Miss.1979).

¶ 19. Based on the record before us, the evidence was more than sufficient to allow the case to go to the jury, and the jury’s verdict was not against the overwhelming weight of the evidence. Testimony was given that Pitts went to the home of the owner of the gun, retrieved something and left. Shortly thereafter, the owner’s gun was used to shoot Cecil Richardson. Roger Shauger testified to his recollection of the events that led to the shooting, including Pitts having the gun in his hands. Pitts’ statement was examined by the jury, both on tape and its transcript. Pitts admitted firing the shot that killed Richardson. The jury determined it was manslaughter, and this finding is supported by the evidence. This issue is without merit.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF WAYNE COUNTY OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TO PAY RESTITUTION IN THE AMOUNT OF $6,340 AND $3,500 TO THE VICTIM COMPENSATION FUND IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, LEE, IRVING, MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR.


source: Caselaw Access Project

author: SOUTHWICK, P.J.,

license: Public Domain

text:
    Sylvester BRADFORD, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CP-01730-COA.
    Court of Appeals of Mississippi.
    Dec. 17, 2002.

      Sylvester Bradford, pro se.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before SOUTHWICK, P.J., BRIDGES and MYERS, JJ.
   SOUTHWICK, P.J.,

for the Court. ■

¶ 1. Sylvester Bradford petitioned the Circuit Court of Hancock County for post-conviction relief. The petition was denied and Bradford appeals. There was no error, and we affirm.

FACTS

¶ 2. Bradford entered a plea of guilty to a charge of felony driving under the influence on July 17, 1996. He was sentenced to five years imprisonment, with four years suspended conditioned upon successful completion of three years probation, and fines, costs and restitution in the amount of approximately $1400. After serving the year, Bradford was released on probation. In October, 1999, the State filed a petition to revoke probation for failure to satisfy the financial obligations of the sentence. After a hearing on November 15, 1999, the court revoked Bradford’s probation and sentenced him to a five-year prison term with credit for time previously served.

¶ 3. In his subsequent petition for post-conviction relief to correct the sentence, Bradford argued that he had been subjected to double jeopardy in violation of the Fifth Amendment to the U.S. Constitution by the imposition of the five-year term of incarceration. He argued he should only have been sentenced to serve the time remaining on his probation. Following denial of his petition, Bradford on appeal added a claim of violation of his Fourteenth Amendment equal protection rights by having his probation revoked for failure to pay the fines and imposition of a sentence which exceeded that originally imposed.

DISCUSSION

1. Double Jeopardy

¶ 4. The Double Jeopardy clause of the Fifth Amendment protects defendants from multiple punishments for a single offense as well as multiple prosecutions for the same offense following conviction or acquittal. White v. State, 702 So.2d 107, 109 (Miss.1997). Bradford argues he has been subjected both to repetitive prosecution and multiple punishments for the single offense. That is not the case. Probation revocation proceedings do not result in new criminal convictions. Johnson v. State, 768 So.2d 934, 936-37 (Miss.Ct.App.2000). Lacking a prosecutorial element, such revocation hearings do not implicate the Double Jeopardy clause.

¶ 5. The argument of multiple sentences also does not withstand scrutiny. Bradford was charged with one offense and received one punishment. His sentence required only one year of imprisonment, with the remainder to be served in relative freedom but subject to compliance with the rules of his probation. If the conditions of probation have been violated, a court may revoke any or all of the suspended sentence. Artis v. State, 643 So.2d 533, 537 (Miss.1994)

¶ 6. In this case, the circuit court elected to revoke the four years initially suspended on Bradford’s five year sentence. He is now required to serve those four years in custody. He is not entitled to any credit for the time spent on probation. Miss.Code Ann. § 47-7-37 (Rev. 2000). The cases cited by Bradford suggesting that he can only be sentenced to serve the remaining time of his probationary period are federal cases which neither support his argument nor are applicable to a conviction under Mississippi law.

¶ 7. Bradford also questions the wording of his new sentence after probation was revoked. Instead of being ordered to serve the four years that had been suspended from his original five year sentence, he was re-sentenced to five years but with credit for the year that he had already served. The effect is the same and we see no reason that different phrasing must be used.

2. Equal Protection

¶ 8. Bradford also argues that imprisonment for failure to pay his fines violates the Fourteenth Amendment right to equal protection under the law. The State objects to this argument on the ground that Bradford failed to raise the issue in the court below.

¶ 9. Ordinarily issues not raised at the trial court level may not be raised for the first time on appeal. Gardner v. State, 531 So.2d 805, 808-09 (Miss.1988). This is subject to the exception that errors affecting fundamental rights will not be barred from appellate review on this ground. Read v. State, 430 So.2d 832, 837 (Miss.1983). We review the merits of the' equal protection claim.

¶ 10. The United States Supreme Court has held that converting a fine into imprisonment for failure to pay the fine violates the Fourteenth Amendment equal protection clause under certain circumstances. Bearden v. Georgia, 461 U.S. 660, 668-69, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). If the only reason that fines are unpaid is the indigency of the defendant despite bona fide best efforts to meet the obligation, unequal treatment occurs. Id. Bradford relies upon Bearden to argue that his probation revocation for failure to pay the fines, fees and restitution was constitutionally impermissible. However, Bearden did not establish a per se rule that probation can not be revoked for failure to pay fines. Protection is given to a person who has “made sufficient bona fide efforts to pay his fine and restitution .. Id. at 670, 103 S.Ct. 2064. If the court finds the probationer failed to pay either through neglect or willful disobedience, revocation of probation does not violate the Fourteenth Amendment. Id. at 672, 103 S.Ct. 2064.

¶ 11. Bradford states in two separate sections of his brief that he had the ability to pay the fines and costs but did not do so due to faulty advice by his probation officer. Bradford was afforded the opportunity to explain his failure at the revocation hearing. Having admitted to the financial ability to pay, Bradford cannot now claim the protections afforded by Bearden. The claim of an equal protection violation is without merit.

¶ 12. THE JUDGMENT OF THE HANCOCK COUNTY CIRCUIT COURT DISMISSING THE PETITION FOR POST CONVICTION RELIEF IS AFFIRMED. THE COSTS OF THIS APPEAL ARE ASSESSED TO HANCOCK COUNTY.

McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER and BRANTLEY, JJ„ CONCUR.


author: McMILLIN, C.J.,

text:
    Eric SHINALL, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CP-01655-COA.
    Court of Appeals of Mississippi.
    Dec. 17, 2002.

      Eric Shinall (Pro Se), attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before McMILLIN, C.J.,' BRIDGES and THOMAS, JJ.
   McMILLIN, C.J.,

for the court.

¶ 1. Eric Shinall pled guilty in Claiborne County Circuit Court to one count of armed robbery and was sentenced to serve a term of seven years. He filed a motion for post-conviction relief in the circuit court raising three issues: (a) ineffective assistance of counsel, (b) improper indictment and (c) a claim that his' plea was involuntary. The circuit court summarily denied the motion without an evidentiary hearing. Shinall has appealed the denial of his motion to this Court and presents the same issues for consideration. Finding no basis to grant relief, we affirm the decision of the trial court.

I.

Scope of Review

¶ 2. When reviewing a circuit court’s decision to deny a petition for post-conviction relief, this Court will not disturb the court’s factual findings unless we conclude them to be clearly erroneous. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

II.

Ineffective Assistance of Counsel

¶ 3. “To successfully claim ineffective assistance of counsel the Defendant must meet the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” Moody v. State, 644 So.2d 451, 456 (Miss.1994). The defendant must demonstrate first the deficiency of counsel’s performance, and second that the deficiency prejudiced his defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. There is a strong yet rebuttable presumption that counsel performed competently and a party contending otherwise must demonstrate a reasonable probability that, but for counsel’s errors, he would have received a different result. Moody, 644 So.2d at 456. This Court looks at the totality of the circumstances, with deference towards counsel’s actions, to find a factual basis for the claim. Id.

¶ 4. Shinall claims that his trial counsel failed to inform him of all the evidence against him. In particular, he asserts that he was not informed of the contents of a statement by a witness to the robbery that allegedly contained inconsistencies when compared with the victim’s statement. Shinall contends that had he known of this statement, he could have evaluated the inconsistencies in the two statements and more effectively evaluated the strength of the case against him.

¶ 5. Shinall offers only his own allegations to support this aspect of his claim for relief. The contents of this contradictory statement are proven only by Shinall’s assertions as to what he was allegedly told by an unidentified police officer. In order to be entitled to an evidentiary hearing on a post-conviction relief motion, the movant cannot rely upon mere allegations in the pleading; rather, he must demonstrate, through affidavits or otherwise, that factual evidence exists to prove the allegations. Miss.Code Ann. § 99-39-9(e) (Rev.2000). If such affidavits cannot be obtained, the movant must show, in detail, good cause for the failure. Id. When the only basis for relief is the uncorroborated assertion of the petitioner, the motion may be dismissed without a hearing in reliance on the provisions of Mississippi Code Annotated section 99-39-11. State v. Santiago, 773 So.2d 921, 923-24 (¶ 11) (Miss.2000).

¶ 6. In this case, Shinall has failed to produce the alleged statement or to satisfactorily explain his inability to do so. Without the statement, the circuit court could not engage in any meaningful analysis as to the impact of such evidence on the strength of the State’s case and, thus, the advisability of Shinall’s decision to accept a sentence recommendation that, by his own admission, was favorable in light of the maximum sentence available under the statute.

¶ 7. The circuit court did not err in denying relief on this basis.

III.

Improper Indictment

¶ 8. Shinall urges that his indictment was defective because it stated that the crime was committed on or about the 8th day. of August, 1998 — a time that Shi-nall claims he was already incarcerated and, therefore, he could not have been guilty of committing the offense. In actuality, this claim cannot be viewed as a defect in the indictment. Rather, the assertion that Shinall was in custody of law enforcement officers on August 8, 1998, would, at best, provide him with a viable defense to the charge in the indictment. Nevertheless, there is ample authority for the proposition that erroneous assertions of the date where time is not of the essence of the offense are matters of form and not of substance and may be cured by amendment. Baine v. State, 604 So.2d 258, 261 (Miss.1992). Such alleged defects in the indictment are waived by a valid plea of guilty. Brooks v. State, 573 So.2d 1350, 1352 (Miss.1990). Shinall admitted as a part of the process of entering a guilty plea to committing the essential elements of the crime. Any discrepancy as to the exact date of the offense was waived in that process.

IV.

The Voluntary Nature of Shinall’s Plea

¶ 9. Shinall claims that he wanted to go to trial, but that he was afraid to do so because of his lack of knowledge concerning the extent of the State’s available evidence against him. This, according to Shinall’s argument, renders his guilty plea an involuntary one. It is the view of this Court that this is merely another version of Shinall’s argument concerning the ineffectiveness of defense counsel. Shinall asserted before the trial court that his plea was voluntary at the time it was offered. He has subsequently shown no concrete facts by which either the trial court or this Court could make a meaningful determination that his lack of knowledge • of the contents of an alleged witness’s statement — a statement that is not in the record nor is its absence justified — somehow renders his plea so uninformed as to be involuntary. His failure to plead specific facts that would justify the granting of an evidentiary hearing on the merits of his claims and to demonstrate his ability to provide competent evidence of the existence of those facts leads us to conclude that the trial judge was correct in dismissing Shinall’s motion without a hearing.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF CLAIBORNE COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO CLAIBORNE COUNTY.

KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR.


author: PER CURIAM. JOHNSTONE, Justice HARWOOD, Justice WOODALL, J.

text:
    Tristan BETHEA et al. v. SPRINGHILL MEMORIAL HOSPITAL. Springhill Memorial Hospital v. Tristan Bethea et al.
    1001715 and 1001814.
    Supreme Court of Alabama.
    April 19, 2002.

      Peter F. Burns, of Burns, Cunningham, Mackey & Fillingim, P.C., Mobile; and G. Daniel Evans, Birmingham, for appellants/cross-appellees Tristan Bethea et al.
    Philip H. Partridge, D. Scott Wright, and Thomas H. Nolan, Jr., of Brown, Hud-gens, P.C., Mobile, for appellee/cross-ap-pellant Springhill Memorial Hospital.
   PER CURIAM.

Tristan Bethea and her mother, Angie Bethea (hereinafter collectively referred to as “the Betheas”), seek review of a judgment entered on a jury verdict in favor of Springhill Memorial Hospital (hereinafter “Springhill”). The Betheas argue that they are entitled to a new trial because, they say, (1) the trial court improperly denied their challenge for cause during jury selection, and (2) the jurors relied on extraneous information in reaching their decision. Springhill filed a cross-appeal, arguing that a judgment as a matter of law should have been entered in Springhill’s favor on Angela Bethea’s individual claim for mental-anguish damages. We affirm the trial court’s judgment for Springhill and dismiss Springhill’s cross-appeal.

The Betheas sued Springhill, among others, for damages based on injuries allegedly sustained by Tristan during Tristan’s birth at Springhill. Specifically, the Be-theas alleged that Tristan suffered brain damage during the delivery process as a result of the improper use of the drug Oxytocin (which was also referred to as Pitocin at trial).

During jury selection, the following colloquy took place between the court and a prospective juror, L.A.C.:

“THE COURT: .... Anybody kin to any of the lawyers whose names were mentioned? Have you ever done any business with them or have they done some legal services for you or do you know them in any way? All right. Ma’am. What’s your name? Stand up, please.
“A JUROR: My name is [LAC.]
“THE COURT: All right. [L.A.C.] And who do you know?
“[POTENTIAL JUROR LAC.]: Mr. Hudgens.
“THE COURT: Mr. Hudgens, and how is that?
“PJ [L.A.C.]: He’s a personal friend of my husband’s family.
“THE COURT: All right. Is he your personal friend?
“PJ [LAC.]: Yes, sir.
“THE COURT: Well, you know what’s coming next; don’t you? The fact that Mr. Hudgens is your personal friend, would you still be able to render a fair and impartial verdict to this case?
“PJ [LAC.]: Yes, sir.
“THE COURT: All right. Now, you understand that Mr. Hudgens is on the defense side, you understand that?
“PJ [L.A.C.]: Right, yes, sir.
“THE COURT: That doesn’t make you particularly biased in favor of the Defendant?
“PJ [LAC.]: Well, I know Mr. St. Clair too.
“THE COURT: Ah. How do you know Mr. St. Clair?
“PJ [L.A.C.]: Through church and socially. Our children go to school together.
“THE COURT: Okay. Would that, would you still be able to render a fair and impartial verdict in this case?
“PJ [L.A.C.]: I would like to think so.
“THE COURT: Okay. Well, that’s fine. That’s the way you are supposed to be, but you know, here you know Mr. Hudgens and you know Mr. St. Clair, sometimes that does make a difference. All right. Well, thank you.”

Subsequently, counsel for the Betheas questioned each prospective juror extensively in an attempt to identify any possible partiality. Counsel for the Betheas did question L.A.C., but not regarding what effect, if any, her acquaintances with Mr. Hudgens and Mr. St. Clair might have on her ability to render a fair decision. Counsel for the Betheas concluded their examination with the following question:

“Is there anybody out here who because of your background you just think you should not sit on this case? That maybe I hadn’t asked the question right, hadn’t brought it out, that for whatever reason you think that you couldn’t be fair to both sides?”

No prospective juror answered this question affirmatively.

Counsel for the Betheas requested that L.A.C. be struck from the jury for cause; the trial judge denied this request:

“THE COURT: All right. Any challenges for cause? Everybody seems to have been rehabilitated to me. I don’t know if you leave them or not. The only problem I’ve got is with folks that can’t stay a week, but anyway, I’ll hear from you on any challenges for cause.
“MR. BURNS: Your Honor, I think number 24, [LAC.]—
“THE COURT: Let me see, number 24. I just got the last names.
“MR. BURNS: [LAC].
“THE COURT: [L.A.C.], knows Mr. Hudgens, personal friend, knows Mr. St. Clair, but she went on and said that she could still render a fair and impartial verdict.
“MR. BURNS: Your Honor, what I wrote down is T would like to think so.’ That’s what I wrote down in response to a question about being fair.
“THE COURT: I don’t think so. I think you’re going to have plenty of strikes. I’m not going to strike her.
“MR. BURNS: Okay.”

Counsel for the Betheas eventually used a peremptory strike to remove L.A.C. from the venire.

After a trial, the jury returned a verdict in favor of Springhill. Subsequently, the Betheas filed a motion for a new trial based upon, among other things, their assertion that the jury had improperly considered extraneous-material during deliberations. In support of this new assertion, the Betheas filed an affidavit of Vera Mil-house, who served as one of the jurors. Ms. Milhouse’s affidavit stated:

“I served as a member of the jury in the case of Bethea v. Springhill Memorial Hospital which was tried before Judge James Wood at the Mobile Circuit Court. After the jury retired to consider our verdict, I voted in favor of the [Betheas]. The majority of the jurors voted for [Springhill], but myself and three (3) male jurors voted for the [Be-theas].
“During the deliberations, some of the other women jurors discussed their own personal knowledge about Pitocin from their own pregnancy and that of their daughter or relatives stating that they did not believe Pitocin could cause the child’s problems because it had not happened in their own situations. They were using their own encounters rather than the evidence presented to us in the courtroom as the basis for these conclusions. This discussion clearly affected the jurors and the verdict. It became clear after this discussion that the men who had voted with me for the [Betheas] were swayed to vote for the defense. One of them discussed with me the fact that as a man he could not tell about Pitocin from any personal experience but since these other women jurors had such strong feelings from their own experience, he was persuaded to vote with them. Three men who had voted for the [Betheas] were swayed after this discussion and though I had consistently voted for the [Betheas] before that discussion, I agreed to go with the majority and told them to do what they wanted to do. I had no personal experience with Pito-cin and I had initially voted for the [Betheas] in our deliberations. After the discussion in the jury room by some of the other women about their own experiences with Pitocin, I began to doubt my own conclusion and was persuaded to go along with their position. There was even speculation among the other jurors that perhaps Angie Bethea had used drugs even though there had been no evidence of that. When [the foreperson] read the verdict and stated ‘We, the jury, find in favor of the defendant,’ I wanted to tell the Court about my position on the matter. Since we were not questioned at that point and were quickly dismissed by the Court, I did not have that opportunity, so I called to tell the judge that afternoon and spoke with the bailiff. During that conversation, I told the bailiff some of my concerns over how the verdict had been reached.”

Springhill filed a motion to strike Mil-house’s affidavit. The trial court granted Springhill’s motion to strike and denied the Betheas’ motion for a new trial. This appeal followed.

I.

The Betheas assert that they are entitled to a new trial based upon the trial court’s refusal to strike L.A.C. for cause. Specifically, the Betheas argue that L.A.C.’s response to the question whether she could be fair and impartial — “I would like to think so” — was equivocal and therefore that the Betheas are entitled to a new trial because the trial court failed to assure L.A.C.’s impartiality. We disagree.

We recently discussed our standards governing the situations involving a trial court’s ruling on challenges for cause in Dailey v. State, 828 So.2d 340 (Ala.2001):

“We first consider whether the trial court erred in granting the State’s challenge of K.K. for cause.
“... We agree with [the] reasoning of the Court of Criminal Appeals; the trial court erred in granting the State’s challenge of K.K. for cause. However, the Court of Criminal Appeals erred in failing to perform a harmless-error analysis before reversing the trial court’s judgment.
“Rule 45, Ala. R.App. P., reads:
“ ‘No judgment may be reversed or set aside, nor new trial granted in any civil or criminal case on the ground of misdirection of the jury, the giving or refusal of special charges or the improper admission or rejection of evidence, nor for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.’
“In Evans v. State, [794 So.2d 411 (Ala.2000) ], the trial court had granted the State’s challenge of a veniremember for cause based upon the fact that she was married to defense counsel’s uncle. The Court of Criminal Appeals held that the trial court had erred in granting the challenge and that Evans’s constitutional right to a fair trial had been violated. Therefore, the Court of Criminal Appeals reversed Evans’s convictions. This Court held that the trial court had erred in granting the State’s challenge for cause, but held that the error was ‘harmless error’ under Rule 45, Ala. R.App.P. We reasoned in Evans that the defendant’s constitutional rights had not been violated:
“ ‘Evans argues that the trial court’s error in excusing [venire-member] E.F.W. violated his right to a trial by an impartial jury, a right guaranteed by Amendments 6 and 14 of the United States Constitution and § 6 of the Alabama Constitution. However, the United States Supreme Court has held that a defendant’s federal right to an impartial jury was not automatically violated merely by an erroneous ruling on a challenge for cause. Ross v. Oklahoma, 487 U.S. 81, 87-88, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988); see also United States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000). As long as the jury that heard the case was impartial, the right guaranteed by the United States Constitution was not violated. See Ross, 487 U.S. at 87-88, 108 S.Ct. 2273. This rule would also apply to § 6 of the Alabama Constitution, which gives the defendant the right to a trial “by an impartial jury of the county or district in which the offense was committed.” The plain meaning of this language is that the defendant is entitled only to an impartial jury and that unless the defendant can show that a trial court’s erroneous ruling during jury selection prevented the jury from being impartial, there is no violation of § 6.’
794 So.2d at 414.
“Here, Dailey has made no showing that her right to an impartial jury was probably injuriously affected by the trial court’s error in removing K.K. Therefore, we conclude that the trial court’s error in removing K.K. was not reversible, because, even with the error, Dailey had a fair trial with an impartial jury. The judgment of the Court of Criminal Appeals is reversed and the case is remanded.”

Dailey v. State, 828 So.2d at 342-44. Simply put, “[i]t is clear that in a civil case the party appealing from an adverse ruling on jury selection must prove not only that the trial court erred, but also that the error ‘has probably injuriously affected [that party’s] substantial rights’ ” by forcing that party to try his case before a less-than-impartial jury. Evans v. State, 794 So.2d 411, 413 (Ala.2000) (quoting Rule 45, Ala. R.App. P.).

The application of a “harmless-error” analysis to a trial court’s refusal to strike a juror for cause is not new to this Court; in fact, such an analysis was adopted as early as 1909:

“The appellant was convicted of the crime of murder in the second degree. While it was error to refuse to allow the defendant to challenge the juror C.S. Rhodes for cause, because of his having been on the jury which had tried another person jointly indicted with the defendant, yet it was error without injury, as the record shows that the defendant challenged said juror peremptorily, and that, when the jury was formed the defendant had not exhausted his right to peremptory challenges.”

Turner v. State, 160 Ala. 55, 57, 49 So. 304, 305 (1909). However, in Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), overruled on other grounds, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court stated, in dicta, that “[t]he denial or impairment of the right is reversible error without a showing of prejudice.” (Emphasis added.) Some decisions of this Court as well as of the Alabama Court of Criminal Appeals reflect an adoption of this reasoning. See Dixon v. Hardey, 591 So.2d 3 (Ala.1991); Knop v. McCain, 561 So.2d 229 (Ala.1989); Ex parte Rutledge, 523 So.2d 1118 (Ala.1988); Ex parte Beam, 512 So.2d 723 (Ala.1987); Uptain v. State, 534 So.2d 686, 688 (Ala.Crim.App.1988) (quoting Swain and citing Beam and Rutledge); Mason v. State, 536 So.2d 127, 129 (Ala.Crim.App.1988) (quoting Uptain).

As noted in the language quoted above from Dailey, this Court has returned to the “harmless-error” analysis articulated in the Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), and Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000), decisions. Because a defendant has no right to a perfect jury or a jury of his or her choice, but rather only to an “impartial” jury, see Ala. Const. 1901 § 6, we find the harmless-error analysis to be the proper method of assuring the recognition of that right.

In this instance, even if the Betheas could demonstrate that the trial court erred in not granting their request that L.A.C. be removed from the venire for cause (an issue we do not reach), they would need to show that its ruling somehow injured them by leaving them with a less-than-impartial jury. The Betheas do not proffer any evidence indicating that the jury that was eventually impaneled to hear this action was biased or partial. Therefore, the Betheas are not entitled to a new trial on this basis.

II.

The Betheas also assert that they are entitled to a new trial based on the information in Ms. Milhouse’s affidavit regarding the alleged use of extraneous information by the jury. We disagree, and we hold that her affidavit was properly stricken by the trial court.

Rule 606(b), Ala. R. Evid., provides, in pertinent part:

“[A] juror may not testify in impeachment of the verdict ... as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or ivhether any outside influence was improperly brought to bear upon any juror.”

(Emphasis added.) With regard to the “extraneous prejudicial information” exception in Rule 606(b), we have recently noted that “ ‘[t]he courts of this state have generally limited the scope of this exception to the visitation of a crime scene by a juror, the introduction of the definition of legal terms in the jury room, and [the reading of] concepts from general reference books.’ ” Lance, Inc. v. Ramanauskas, 731 So.2d 1204, 1214 (Ala.1999) (quoting with approval the trial court’s order, which cited Jordan v. Brantley, 589 So.2d 680 (Ala.1991); Nichols v. Seaboard Coastline Ry., 341 So.2d 671 (Ala.1976); and Dawson v. State, 710 So.2d 467 (Ala.Crim.App.1996)).

Even more recently, in Sharrief v. Gerlach, 798 So.2d 646 (Ala.2001), we held that affidavits containing “accounts of some jurors’ discussions during deliberations” did not fall under the extraneous-information exception, because the alleged information did not come to the jury from some external authority or through some “process outside the scope of the trial”:

“The plaintiffs misconceive the distinction, under Alabama law, between ‘extraneous facts,’ the consideration of which by a jury or jurors may be sufficient to impeach a verdict, and the ‘debates and discussions of the jury,’ which are protected from inquiry. This Court’s cases provide examples of extraneous facts. This Court has determined that it is impermissible for jurors to define terms, particularly legal terms, by using a dictionary or encyclopedia. See Fulton v. Callahan, 621 So.2d 1235 (Ala.1993); Pearson v. Fomby, 688 So.2d 239 (Ala.1997). Another example of juror misconduct leading to the introduction of extraneous facts sufficient to impeach a jury verdict is an unauthorized visit by jurors to the scene of an automobile accident, Whitten v. Allstate Ins. Co., 447 So.2d 655 (Ala.1984), or to the scene of a crime, Dawson v. State, 710 So.2d 472 (Ala.1997).
“The problem characteristic in each of these cases is the extraneous nature of the fact introduced to or considered by the jury. The improper matter someone argues the jury considered must have been obtained by the jury or introduced to it by some process outside the scope of the trial. Otherwise, matters that the jurors bring up in their deliberations are simply not improper under Aabama law, because the law protects debates and discussions of jurors and statements they make while deliberating their decision. CSX Transp. v. Dansby, 659 So.2d 35 (Ala.1995). This Court has also noted that the debates and discussions of the jury, without regard to their propriety or lack thereof, are not extraneous facts that would provide an exception to the general rule of exclusion of juror affidavits to impeach the verdict. Weekley v. Horn, 263 Ala. 364, 82 So.2d 341 (1955).
“Nothing contained in the affidavits indicates the jury considered any extraneous facts. All the statements in the affidavits relate to evidence that was presented at trial or to information that was otherwise brought to the attention of the jury during the trial. The affidavits provide no evidence that the jury consulted any outside sources of information regarding the definition of ‘standard of care,’ or regarding any other matter. Nothing in either of the affidavits indicates that the jury, or any particular juror, was influenced by any outside source. The trial court did not abuse its discretion in denying the plaintiffs’ posttrial motions seeking discovery regarding the jury’s deliberations. HealthTrust, Inc. v. Cantrell, 689 So.2d 822 (Ala.1997).”

Sharrief, 798 So.2d at 652-53 (emphasis added).

In accordance with these decisions, we hold that in order for information to come within the extraneous-information exception to Rule 606(b), the information must come to the jurors from some external authority or through some process outside the scope of the trial, either (1) during the trial or the jury’s deliberations or (2) before the trial but for the purpose of influencing the particular trial. In this case, we hold that the alleged prejudicial information — personal experiences with the use of Pitocin in induced labor — is not extraneous information under the exception to Rule 606(b). The information did not come to the jury from some external authority or through some process outside the scope of the trial, as defined above; rather, it arose solely from within the “debates and discussions” of the jurors during the process of deliberating. Therefore, the trial court did not err in striking the affidavit and in denying the Betheas’ motion for a new trial.

Based on the above, the judgment of the trial court is due to be affirmed. Given our affirmance of the trial court’s judgment, we need not address, and therefore dismiss, Springhill’s cross-appeal.

1001715 — AFFIRMED.

1001814 — CROSS-APPEAL DISMISSED.

MOORE, C.J., and HOUSTON, SEE, LYONS, BROWN, and STUART, JJ., concur.

JOHNSTONE, HARWOOD, and WOODALL, JJ., concur in the rationale in part and concur in the judgment.

JOHNSTONE, Justice

(concurring in the rationale in part and concurring in the judgment).

I concur in Part II (addressing the Be-theas’ claim that the jurors considered extraneous information) and in the judgment. I respectfully disagree, however, with the rationale on the challenge-for-eause issue in Part I.

In Part I, we are denying the plaintiffs relief on their claim that the trial court erred to reversal in denying their challenge for cause against prospective juror L.A.C. I concur in this result only because I conclude that the limited voir dire does not establish such a compelling ground for this challenge for cause that we could conclude that-the trial judge abused his discretion in denying the challenge.

I disagree, however, with the rationale that an erroneous denial of a challenge for cause is not reversible in the absence of proof that the error has probably injuriously affected the challenging party’s substantial rights “by forcing that party to try his case before a less-than-impartial jury.” 833 So.2d at 6. The authorities cited by the main opinion in support of this holding are fundamentally distinguishable, and this holding is contrary to our precedents, which are unequivocally controlling. In each of Dailey v. State, 828 So.2d 340 (Ala.2001), and Evans v. State, 794 So.2d 411 (Ala.2000), cited as authority by the main opinion, the error consisted of granting the challenge for cause and eliminating the prospective juror from the venire. Erroneously removing an ^biased prospective juror, as in the two cited cases, is fundamentally different from erroneously keeping a biased prospective juror, who may then exert his bias on the case unless the victim of the bias spends a peremptory challenge to remove the biased prospective juror. The erroneous grant of the challenge for cause in each of these two cited cases did not relegate the aggrieved party to spending a peremptory challenge to remove a biased juror whom the trial court should have removed in response to a challenge for cause.

Our precedents are unequivocal that the erroneous denial of a challenge for cause is reversible because it infringes the challenging party’s right to use his peremptory challenges on other jurors who are not subject to challenge for cause. See Dixon v. Hardey, 591 So.2d 3, 7 (Ala.1991); Knop v. McCain, 561 So.2d 229 (Ala.1989); Ex parte Rutledge, 523 So.2d 1118 (Ala.1988); Ex parte Beam, 512 So.2d 723, 724 (Ala.1987); Mason v. State, 536 So.2d 127, 129 (Ala.Crim.App.1988); and Uptain v. State, 534 So.2d 686, 688 (Ala.Crim.App.1988).

“[T]he right [to peremptory challenges] is given in aid of the party’s interest to secure a fair and impartial jury.” Frazier v. United States, 335 U.S. 497, 505, 69 S.Ct. 201, 93 L.Ed. 187 (1948). Peremptory challenges are “one state-created means to the constitutional end of an impartial jury and a fair trial.” Georgia v. McCollum, 505 U.S. 42, 56, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992). The Alabama Constitution of 1901, Art. I, § 6, guarantees a defendant the right to a trial “by an impartial jury of the county or district in which the offense was committed.” Although neither the United States Constitution nor the Alabama Constitution requires peremptory challenges, the traditional right to peremptory challenges is “ ‘one of the most important rights secured to the accused.’ ” Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) (quoting Pointer v. United States, 151 U.S. 396, 408, 14 S.Ct. 410, 38 L.Ed. 208 (1894)). It is “ ‘an arbitrary and capricious right, and it must be exercised with full freedom, or it fails of its full purpose.’ Swain v. Alabama, 380 U.S. at 219, 85 S.Ct. 824 (quoting Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892))(emphasis added).

“The function of the challenge is not only to eliminate extremes of partiality on both sides, but to assure the parties that the jurors before whom they try the case will decide on the basis of the evidence placed before them, and not otherwise. In this way the peremptory satisfies the rule that ‘to perform its high function in the best way “justice must satisfy the appearance of justice.” ’ Indeed the very availability of peremp-tories allows counsel to ascertain the possibility of bias through probing questions on the voir dire and facilitates the exercise of challenges for cause by removing the fear of incurring a juror’s hostility through examination and challenge for cause....
“The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court’s control. While challenges for cause permit rejection of jurors on a narrowly specified, provable and legally cognizable basis of partiality, the peremptory permits rejection for a real or imagined partiality that is less easily designated or demonstrable.”

380 U.S. at 219-20, 85 S.Ct. 824 (citations omitted). Alabama law redresses the denial of a valid challenge for cause and the consequent relegation of the challenging party to the use of one of his peremptory challenges:

“ ‘ “The denial or impairment of the right [to peremptory challenges] is reversible error without a showing of prejudice.” Swain v. Alabama, 380 U.S. 202, 219 [85 S.Ct. 824, 13 L.Ed.2d 759] (1965). Since the defendants were required to use peremptory challenges in order to eliminate the three venireper-sons who had properly been challenged for cause, their total number of peremp-tories was effectively reduced by three. Tisdale [v. State, 30 Md.App. 334, 353 A.2d 653, 657 (1976) ].”

Mason v. State, 536 So.2d at 129, and Uptain v. State, 534 So.2d at 688. This rule is now state law, not dependent on the United States Constitution or on federal precedents.

“[A] ■ State may confer procedural protections of liberty interests that extend beyond those minimally required by the Constitution of the United States. If a State does so, the minimal requirements of the Federal Constitution would not be controlling, and would not need to be identified in order to determine the legal rights and duties of persons within that State.”

Mills v. Rogers, 457 U.S. 291, 300, 102 S.Ct. 2442, 73 L.Ed.2d 16 (1982). “State courts, in determining the scope of rights guaranteed by their own constitutions, ... may, in fact, provide more protection for private rights than the United States Constitution requires.” Moore v. Mobile Infirmary Ass’n, 592 So.2d 156, 170 (1991). In interpreting state laws, Alabama courts may “provide greater safeguards” to persons than are. provided by federal constitutional law. Gilbreath v. Wallace, 292 Ala. 267, 271, 292 So.2d 651, 654-55 (1974). Even though federal constitutional law may not require reversal for the erroneous denial of a valid challenge for cause, Alabama law does require reversal. Swain v. Alabama, Knop v. McCain, Ex parte Beam, Ex parte Rutledge, Uptain v. State, and Mason v. State, supra.

The erroneous denial of a challenge for cause relegates the challenging party to spending a peremptory challenge to remove the biased prospective juror and thereby deprives the challenging party of the opportunity to use that peremptory challenge for its purpose intended by law: the removal of a prospective juror not subject to a challenge for cause. The effect of the holding in the main opinion is that the erroneous denial of a challenge for cause is not reversible unless it causes a biased juror to remain on the jury after the challenging party has exhausted all of his peremptory challenges, including the one necessarily spent on removing the prospective juror who should have been removed by the trial court in response to the challenge for cause. If, however, the challenging party could prove that a remaining juror is biased, the challenging party would not need the spent peremptory challenge inasmuch as proof of such bias would constitute ground for another challenge for cause. Thus the burden imposed by the main opinion on the challenging party defies the very purpose of a peremptory challenge and essentially eliminates the peremptory challenge as an enforceable right.

HARWOOD, Justice

(concurring in the rationale in part and concurring in the judgment).

I would hold that no error occurred in the denial of the Betheas’ challenge for cause of prospective juror L.A.C.; therefore, I would not reach the harmless-error issue. Accordingly, I concur in the result as to Part I of the main opinion. I concur fully in Part II of the opinion.

WOODALL, J.

(concurring in the rationale in part and concurring in the judgment).

I concur fully in Part II of the lead opinion. I concur in the result with respect to Part I of the lead opinion.

      .The plaintiffs in their notice of appeal styled this case "Tristan Bethea, a minor who sues by and through his father and next friend Herbert Bethea, and Herbert Bethea and Angela Bethea, individually v. Springhill Memorial Hospital.” Herbert Bethea was voluntarily dismissed as a plaintiff and is not a party to this appeal.

      . Oxytocin is used to induce labor or to speed up delivery.

      3. Mr. Hudgens is one of the attorneys representing Springhill.

      4. Mr. St. Clair is Springhill's administrator and served as Springhill's representative at trial.

      . In support of its motion, Springhill filed affidavits of several other jurors, who all strongly disagreed with the assertions in Ms. Milhouses affidavit. The affidavits filed by Springhill indicated (1) that a predeliberation vote was taken and that there were no votes for the Betheas (eight votes were for Spring-hill, and four jurors were undecided); (2) that while one of the jurors might have mentioned that she had had an induced labor, such personal experiences were not used in any way in making a final determination; (3) that there were several factors other than the use of Oxytocin that were determinative in the decision; and (4) that Ms. Milhouse never said anything about being persuaded or influenced by anything other than the evidence presented at trial.

      . In United States v. Martinez-Salazar, 528 U.S. 304, 317 n. 4, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000), the Court explicitly recognized that this statement from Swain not only was dicta, but also was founded upon legal premises that had since fallen out of favor:
      “Relying on language in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), as did the Court of Appeals in the decision below, Martinez-Salazar urges the Court to adopt a remedy of automatic reversal whenever a defendant’s right to a certain number of peremptory challenges is substantially impaired.
      Brief for Respondent 29 (a ' "denial or impairment of the right [to exercise peremptory challenges] is reversible error without a showing of prejudice” ’) (quoting Swain, 380 U.S., at 219, 85 S.Ct. 824). Because we find no impairment, we do not decide in this case what the appropriate remedy for a substantial impairment would be. We note, however, that the oft-quoted language in Swain was not only unnecessary to the decision in that case — because Swain did not address any claim that a defendant had been denied a peremptory challenge — but was founded on a series of our early cases decided long before the adoption of harmless-error review.”

      . Given our holding, we need not, and do not, reach Springhill’s argument that the Betheas' failure to question L.A.C. regarding her acquaintances with Mr. Hudgens and Mr. St. Clair waived their argument concerning the challenge for cause of potential juror L.A.C.


author: WOODALL, Justice.

text:
    John DILLARD et al. v. BALDWIN COUNTY COMMISSION.
    1001971.
    Supreme Court of Alabama.
    April 19, 2002.

      James U. Blacksher, Birmingham, for plaintiffs John Dillard et al. and plaintiffs-intervenors Billy Smith et al.

      Albert L. Jordan and Algert S. Agricola, Jr., of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham, for plaintiffs-interve-nors Dale Eugene Brown, George R. Johnson, James Austin, Jr., and Alvin Lee Pitts.
    Patrick H. Sims of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Mobile, for defendants Baldwin County Commission and its members.
    Bill Pryor, atty. gen., and John J. Park, Jr., asst. atty. gen., for defendant Adrian Johns.
   WOODALL, Justice.

This case is before this Court on two certified questions from the United States District Court for the Middle District of Alabama, where it is on remand from the United States Court of Appeals for the Eleventh Circuit. See Dillard v. Baldwin County Comm’rs, 225 F.3d 1271, 1283 (2000). The “long and protracted history” of this litigation is fully set forth in Dillard, 225 F.3d at 1274. See also Dillard v. Baldwin County Bd. of Educ., 686 F.Supp. 1459 (M.D.Ala.1988); Dillard v. Baldwin County Comm’n, 694 F.Supp. 836 (M.D.Ala.), amended by, 701 F.Supp. 808 (M.D.Ala.), aff'd, 862 F.2d 878 (11th Cir.1988).

This litigation began in 1986, when “John Dillard and other African American voters [‘the Dillard plaintiffs’] brought suit against the Baldwin County Commission alleging that the at-large system used to elect its members violated section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973.” Dillard, 225 F.3d at 1274. “The case was one among many Dillard suits in the district courts which challenged the at-large election systems used by dozens of cities, counties, and school boards across Alabama.” Id.

In 1986, the Baldwin County Commission (“the Commission”) “was composed of four persons elected at-large, one from each of four numbered districts.” 225 F.3d at 1274. The authority for that system of government for Baldwin County was Act No. 239, 1931 Ala. Local Acts 100, which “created ... a Commission form of government for [Baldwin] County to consist of a Commission of four members.” Id. Act No. 239 not only defined the number of commissioners, but set the boundaries of the districts in which the commissioners were to reside. Id. The Legislature amended Act No. 239 in 1973, and again in 1975, to redefine the four districts. See Act No. 151, 1973 Ala. Acts 188, and Act No. 841, 1975 Ala. Acts 1681.

The Commission “conceded liability and the district court ordered relief.” 225 F.3d at 1274. Specifically, the district court ordered the Commission “to increase its membership from four to seven persons elected from single-member districts in order to ensure a majority-black voting district.” Id.

In 1996, Dale Eugene Brown, George R. Johnson, James Austin, Jr., and Alvin Lee Pitts filed a complaint in intervention as plaintiffs (hereinafter collectively referred to as “the Brown intervenors”), challenging the district court’s remedy order. Id. Specifically, the Brown intervenors “alleged that by increasing the size of the Commission from four to seven members in order to create a majority-black district, the district court ‘exceedefd] its authority granted by Congress in the Voting Rights Act, and violatefd] the Tenth and Eleventh Amendments.’ ” 225 F.3d at 1274. They did not challenge the remedy order insofar as it abolished the system of “at-large election[s].” Id.

The district court dismissed the Brown intervenors’ complaint, on the ground that it “failed to state a claim upon which relief can be granted.” 225 F.3d at 1274-75. More specifically, it held that “[the Brown intervenors] failed to state a claim under the Tenth and Eleventh Amendments because the rights deprivation they alleged was the result of state rather than federal authority.” Id. at 1275. The district court apparently reasoned “that because a federal court injunction [was] being implemented and imposed by a state body — here the Baldwin County Commission — the activity being challenged necessarily [became] state activity and state activity alone.” Id. at 1281. It further concluded that the Brown intervenors had not alleged “that the 1988 injunction resulted in vote discrimination on account of race,” and, on that basis, held that their Voting Rights Act claim was defective. 225 F.3d at 1275. The Brown intervenors appealed.

The United States Court of Appeals for the Eleventh Circuit reversed the district court’s judgment. That court held that the Brown intervenors had stated a claim, both under section 2 of the Voting Rights Act and under the Tenth and Eleventh Amendments. Regarding the Voting Rights Act claim, the court stated:

“[U]nder the Supreme Court’s holding in Holder [v. Hall, 512 U.S. 874, 114 S.Ct. 2581, 129 L.Ed.2d 687 (1994)], ‘federal courts may not mandate as a [section 2] remedy that a state or political subdivision alter the size of its elected bodies.’ [Nipper v. Smith, 39 F.3d 1494, 1532 (11th Cir.1994).]. ... By alleging that they are being subjected to, and their voting power is being affected by, an illegal election scheme that was plainly created because of or on account of race, the Intervenors have adequately stated a claim for a section 2 violation of the Voting Rights Act.”

225 F.3d at 1281.

Regarding the Brown intervenors’ claims under the Tenth and Eleventh Amendments, the court stated: “We cannot shield federal court orders from constitutional challenge simply because the federal court’s orders are being implemented by local officials.” 225 F.3d at 1282. It explained: “Activity performed pursuant to a federal court order is not transformed into the exclusive exercise of state power simply because it is performed by state actors who are obeying a federal court injunction.” Id. at 1281.

However, the court declined to modify the 1988 injunction “to provide for four single-member districts rather than seven,” as the Brown intervenors requested. 225 F.3d at 1282. Instead, it remanded the cause to consider whether changing the size of the Commission “might have been appropriate to remedy a violation of the Fourteenth Amendment.” 225 F.3d at 1282.

After the Brown intervenors joined the litigation, Billy R. Smith, Joe M. Horace, and Willie E. Edwards (hereinafter collectively referred to as “the Smith interve-nors”) intervened to oppose the modification urged by the Brown intervenors. On April 11, 2001, following the remand of the cause, the Dillard plaintiffs and the Smith intervenors filed in the district court a “Motion for Determination of Partially Dispositive State Law Issue.” The motion alleged that legislation enacted while the litigation was pending, coupled with a resolution passed by the Commission on August 17, 1999, had “caused the seven-member Baldwin County Commission to become fully constituted under Alabama law.”

They alluded specifically to Act No. 92-1, § 1, 1992 Ala. Acts 3, codified at Ala.Code 1975, § 11-8-1.1(a), which provides: “Following the release of any federal decennial census, any county commission of this state which is at that time electing its members from single-member districts, pursuant to either state or local law or a court order, may, by resolution, alter the boundaries of the districts.” They also referred to Resolution No. 99-76, passed by the Baldwin County Commission, which provides, in pertinent part:

“WHEREAS, Title 11, Chapter 3, Article 1.1 of the Code of Alabama 1975 (‘Code’), authorizes the County Commission to alter, revise and change the sin-v gle-member County Commission district arrangement only after such alterations, revisions and changes have been provided by a display of a map delineating the proposed alterations ... and
“WHEREAS, in compliance with the judgment and orders of the United States District Court for the Middle District of Alabama, Northern Division, Civil Action No. 87-T-1159-N, the County Commission hereby continues the implementation of the seven-member County Commission district arrangement; now therefore
“BE IT RESOLVED BY THE COUNTY COMMISSION, IN REGULAR SESSION ASSEMBLED, ... that we hereby alter, revise and change the seven single-member district arrangement for the County Commission of Baldwin County, Alabama....”

The motion filed by the Dillard plaintiffs and the Smith intervenors stated: “The remand issue, regarding the remedial authority of [the district] court to set the number of seats on the Baldwin County Commission at seven, would be moot if the current seven-member structure is now authorized by state law.” The Dillard plaintiffs and the Smith intervenors sought an order certifying to this Court questions regarding the effect of § 11-3-1.1, and Resolution No. 99-76. The Brown interve-nors filed a response opposing the certification.

In an order entered May 8, 2001, the district court denied the motion, stating that “it would be far too much of a stretch to reach [the conclusion urged by the Dillard plaintiffs and the Smith intervenors].” However, on July 25, 2001, the Dillard plaintiffs and the Smith intervenors moved for reconsideration of the order denying their motion for certification, stating: “Events occurring since the May 8 order ... warrant its reconsideration and make more compelling the need for clarification by the Supreme Court of Alabama of legislative intent expressed in Ala.Code § 11-3-1.1.” In particular, they presented the affidavit of the “sole sponsor of Act 92-1,” State Senator Henry (“Hank”) Sanders, who expressed his view of the legislative “intent” of § 11-3-1.1. In conjunction with the Sanders affidavit, they cited Siegelman v. Alabama Association of School Boards, 819 So.2d 568 (Ala.2001), for the proposition that this Court has “credited the representations of a committee of the Legislature regarding the legislative intent of Ala.Code [1975,] § 16-6B-9.”

In response, the district court vacated its May 8, 2001, order, and certified to this Court the following questions:

“A. Does Act 92-1, 1975 Ala.Code, § 11-3-1.1, provide state-law authority for county commissions by resolution to redraw the boundaries of their court-ordered single-member districts and, as a consequence, provide a state-law basis for the number of districts thus redrawn?
“B.' Did the Baldwin County Commission, by adopting Resolution # 99-76, in fact adopt a seven-member commission pursuant to state law?”

Our consideration of these questions is guided by a number of well-established principles. Foremost among these is the principle that Alabama counties are creatures of statute, and thus “can exercise only that authority conferred on [them] by [the Legislature].” Jefferson County v. Johnson, 333 So.2d 143, 145 (Ala.1976); see also Laney v. Jefferson County, 249 Ala. 612, 32 So.2d 542 (1947); Askew v. Hale County, 54 Ala. 639 (1875). Corollarily, county commissions are “creatures of the Legislature,” Arledge v. Chilton County, 237 Ala. 96, 99, 185 So. 419, 421 (1938), having “no inherent powers.” 4 Chester James Antieau, Antieau’s Local Government Law: County Law § 32.03 (1989). Thus they “can exercise only such powers as are expressly given them by statute, or such as arise by necessary implication from the powers granted, or are indispensable to carry into effect the object and purpose of their creation.” Id. (internal quotations omitted). See also Corning v. Patton, 236 Ala. 354, 356, 182 So. 39, 40 (1938).

Moreover, “enactments conferring power upon county governing boards will be strictly and narrowly construed. In case of reasonable doubt as to the existence of board power, courts will customarily resolve the doubt against the county board.” 4 Antieau, supra, at § 32.03 (footnotes omitted; emphasis added). If county commissions “exceed the limits of their powers, their acts are void.” Arledge, 237 Ala. at 99, 185 So. at 421.

These principles allow us to condense the two certified questions into one dispositive question, namely, whether there is statutory authority for the Commission to adopt a seven-member commission. If there is a substantive statutory source, the certified questions must be answered in the affirmative. If, on the other hand, the only substantive source for a seven-member commission in Baldwin County is the district court’s order, then the questions must be answered in the negative. This must be so, because a statute that does no more than authorize the Commission to facilitate a federal court’s order does not, itself, constitute substantive state law for the result.

To state the issue in this case is to resolve it, because the Dillard plaintiffs, the Smith intervenors, and the Commission concede that there is no local act providing for a seven-member commission in Baldwin County. Indeed, they argue that Act No. 239,1931 Ala. Local Acts 100, which provided for a four-member commission, is “repugnant” to § 11-3-1.1(a), and is, therefore, repealed by ' implication. They also concede the absence of any general act containing express authority for a seven-member commission. Specifically, they concede that § 11-3-1.1(a) contains no express authority for establishing a seven-member commission. They argue, however, -that authority for a seven-member commission is necessarily implied in § 11-3-1.1(a). They contend that the provision authorizing counties to “ ‘alter the boundaries of the districts’ from which they have been elected ‘pursuant to either state or local law or a court order’ necessarily implies the authority to adopt the number of districts specified by the court order.” Joint Brief of the Dillard plaintiffs and the Smith intervenors, at 9-10. “The law cannot be effective,” they insist, “unless the authority to redraw the district boundaries includes the authority to adopt the number of districts being drawn.” Id.

We disagree with this argument. While § 11-3-1.1(a) authorizes the alteration of district boundaries, it says nothing of any change in the number of districts. Section 11-3-1.1(a) is merely 'procedural, in that it authorizes the Commission to do what the Legislature did in enacting Act No. 239 and in the amendments of 1973 and 1975, that is, to set the metes and bounds of the commission districts. Consequently, the substantive authority for the seven districts established in Resolution No. 99-76 does not derive from § 11-3-1.1(a).

This conclusion is reinforced by reference to the preceding Code section, namely, Ala.Code 1975, § 11-3-1, which the Legislature amended in 1997, five years after it enacted § 11-3-1.1. See Act No. 97-640, 1997 Ala. Acts 1170. Subsection (a) of § 11-3-1 provides:

“Unless otherwise provided by local law and as otherwise provided in subsection (b), there shall be in every county a county commission, composed of the judge of probate, who shall serve as chairman, and four commissioners, who shall be elected at the time prescribed by law and hold office for four years until their successors are elected and qualified.”

(Emphasis added.) Section 11-3-1(a) as it read before the .1997 amendment also provided for four commissioners (in addition to the probate judge) in each county; and the Legislature did not change that provision. Considering § 11-3-1 (a) in pari materia with § 11-3-1.1(a) clearly buttresses the conclusion that the Legislature did not intend to provide in § 11-3-1.1(a) general, substantive authority for county commissions in excess of four members (excluding the probate judge).

This conclusion is also consistent with the Legislature’s response to another “Dillard-type” action. That response arose out of a permanent injunction entered in 1986 by the United States District Court for the Middle District of Alabama, increasing the number of county commissioners in Russell County from five to seven, and prohibiting the County “from conducting at-large elections” to fill the commission positions. Sumbry v. Russell County, 993 F.Supp. 1439, 1441 (M.D.Ala.), aff'd, 162 F.3d 99 (11th Cir.1998). That commission structure was challenged in February 1997 by a plaintiff-intervenor, on grounds similar to those argued by the Brown intervenors in this case. Id. On March 12, 1997, the Russell County Commission petitioned the Legislature “to enact legislation that would statutorily fix the number of Russell County commissioners at seven,” id., the number set by the federal court.

In response, the Legislature passed Act No. 97-680, 1997 Ala. Acts 1329. 993 F.Supp. at 1442. Act No. 97-680 became effective May 29, 1997-five years after the passage of § 11-3-1.1. That simple act contained only two substantive sections, which provided in toto:

“Section 1. There is hereby created a county commission for Russell County, consisting of seven members, one to be elected from each of the seven districts apportioned by law. Each member shall be a resident of the district he or she is representing and shall hold office for a period of four years and until his or her successor is elected and qualified.
“Section 2. The county commission and county commissioners shall have all the jurisdiction, duties, and powers which are now or may hereafter by law be vested in the county commission or county commissioners by the state.”

(Emphasis added.)

It must be conceded by all parties that if § 11-3-1.1(a) has the effect advocated by the Dillard plaintiffs, the Smith interve-nors, and the Commission, the enactment of Act No. 97-680 represented at most an injudicious use of legislative resources. In other words, it seems unlikely that the Legislature would deem it necessary to pass a local act to do what had been accomplished by a general act five years earlier.

In short, the argument of the Dillard plaintiffs, the Smith intervenors, and the Commission — reduced to its essence — is merely a rehash of the rationale upon which the district court rejected the Brown intervenors’ claims based on the Tenth and Eleventh Amendments, namely, that “[ajctivity performed pursuant to a federal court order is ... transformed into the exclusive exercise of state power simply because it is performed by state actors who are obeying a federal court injunction.” Dillard, 225 F.3d at 1281. The United States Court of Appeals for the Eleventh Circuit soundly rejected that rationale, as do we.

Finally, Siegelman v. Alabama Association of School Boards, 819 So.2d 568 (Ala.2001), does not, as Dillard and Smith argue, require us to consider the affidavit of Senator Sanders. To be sure, in that case, this Court considered the contentions of the Joint Fiscal Committee of the Alabama Legislature (“the Joint Committee”), as to the proper construction and effect of Ala.Code 1975, § 16-6B-9, and Ala.Code 1975, § 6-13-144(a). 819 So.2d at 576-77. However, the trial court had allowed the Joint Committee to intervene in that action, and the propriety of its intervention was not an issue on appeal. Once it became a party in the case, the Joint Committee’s views of legislative intent were entitled to as much consideration as those of any other party — no more and no less. Obviously, that is not this case.

In summary, the Legislature has not provided for a seven-member, Baldwin County Commission, either by local act or by general law. Consequently, the sole authority for the number of districts set forth in Resolution No. 99-76 was the district court’s order. For these reasons, we answer both certified questions in the negative.

QUESTIONS ANSWERED.

MOORE, C.J., and HOUSTON, SEE, LYONS, JOHNSTONE, and HARWOOD, JJ., concur.

BROWN, J., concurs in the result.

      . The defendants in this case are the Baldwin County Commission, the seven commissioners in their official capacities, and Adrian Johns, in his official capacity as Baldwin County probate judge.

      . The parties urging this Court to answer the questions in the affirmative are the Dillard plaintiffs, the Smith intervenors, and the Commission. The parties arguing for negative answers are the Brown intervenors and Johns, in his official capacity as Baldwin County probate judge.