Opinion
No. 1981689.
Released December 15, 2000.
Appeal from Madison Circuit Court, CC-95-639.60; Court of Criminal Appeals, CR-97-2275.
On Application for Rehearing
APPLICATION OVERRULED.
Hooper, C.J., and See, Johnstone, and England, JJ., concur.
Houston, Lyons, and Brown, JJ., dissent.
"To err is human," and I erred in voting to remand this case. I would grant the application for rehearing.
In Ex parte Deramus, 721 So.2d 242, 244 (Ala. 1998), this Court held that it can be presumed from a silent record that a petit jury was unsworn. This Court had previously held in Washington v. State, 81 Ala. 35, 1 So. 18 (1887), that where the record is silent as to the swearing of the jury venire, it is presumed that the venire was sworn. If we are to extend the Deramus holding to the jury venire, we should overrule Washington. I refuse to do so, because the failure to swear the jury venire is the kind of judicial error the defendant must object to in the trial court to preserve it for appellate review. 81 Ala. at 38, 1 So. at 20.
Nothing before us shows that Hamlett objected to the failure to swear the jury venire, if, in fact, the venire was not sworn. Certainly, this is not the kind of issue that can be raised on an appeal from a denial of a motion made pursuant to Rule 32, Ala.R.Crim.P., in the context of a claim of ineffective assistance of appellate counsel, where the record is silent.
I would not overrule Washington. I would affirm the judgment of the Court of Criminal Appeals affirming the judgment of the trial court in the present case, and I would overrule or distinguish these cases of the Court of Criminal Appeals: Holland v. State, 668 So.2d 107 (Ala.Crim.App. 1995), and Tarver v. State, 500 So.2d 1232, 1241 (Ala.Crim.App. 1986).
Lyons and Brown, JJ., concur.