BRELAND v. FORD5/3/1996
te Hunt, 642 So.2d 1060 (Ala. 1994). Governor Hunt's conviction and removal from office involved no racial issues. Instead, as is apparent
from the face of § 36-25-5(a), the essence of the offense is abuse of power. Thus, the essence of the argument contained in Segment Eight is not an appeal to racial prejudice, but to abuse of power.
Segment Three refers to the recently publicized practices of one-time FBI Director J. Edgar Hoover, who allegedly used his position to harass a broad cross-section of the population. Thus, Ford's reference to Hoover can reasonably be construed not as an appeal based on race, but as an allusion to abuse of law enforcement power.
Of a similar import was the argument contained in Segment Four, which refers to the trial and conviction of a male state trooper for the murder of a female state trooper to whom he was engaged to be married. See Duncan v. State, 575 So.2d 1198 (Ala.Crim.App. 1990), cert. denied, 575 So.2d 1208 (Ala. 1991), on return to remand, 612 So.2d 1304 (Ala.Crim.App. 1992) (conviction reversed and cause remanded). The case was devoid of racial overtones; therefore, Ford's reference to it was, again, to remind the jury of its responsibility to recognize and rectify abuses of law enforcement power. To this end, of course, was Segment Nine offered, which exhorted the jury to say: "This day in our community, law enforcement [will] not run roughshod over our citizens."
Segments Five, Six and Seven all refer to the Rodney King incident. Though King is black, as is Mr. Ford, the fact that both are members of the same ethnic group, standing alone, does not implicate a race-based appeal in the argument. Additionally, the trial court sustained the objection to Ford's counsel's reference to the King case. Indeed, taking these segments as an integrated whole impresses the listener not with the fact of King's ethnicity, but the fact that a video recording was made of the beating King received. More specifically, in Segment Five counsel said: "Since the 50's you have seen state troopers beat folks. . . ." (Emphasis added.) If any doubt existed as to the point of the argument in Segments Five and Six, it was dispelled in Segment Seven, in which he stated: "[Ford] just didn't have no videotape. If [Ford] had a videotape, you would have seen it for yourself." (Emphasis added.)
For these reasons, we conclude that the argument was not an appeal to racial prejudice or passion and was not improper, as the dissenting Justices propose. There being no reason to disturb the original holding in this case, the application for rehearing is overruled. This extension shall not be construed as a substantial modification of the original opinion for purposes of filing a second application for rehearing. See Ala.R.App.P. 40.
OPINION EXTENDED; APPLICATION OVERRULED.
ALMON, SHORES, KENNEDY, and BUTTS, JJ., concur.
HOOPER, C.J., and MADDOX, J., dissent, each with opinion.
The appellant, James Breland, an Alabama state trooper, appeals from a judgment entered on a jury verdict awarding $2,000,000 in compensatory damages. He claims that he was entitled to a new trial on the grounds (1) that he enjoyed substantive immunity under state law and therefore was entitled to a judgment as a matter of law; (2) that the verdict was against the weight of the evidence; (3) that the damages awarded were excessive; and (4) that " ertain argument of counsel for the plaintiff was so grossly improper and . . . prejudicial as to require a new trial."
I believe that grounds (1) and (4) of Breland's motion have merit; therefore, I must respectfully dissent.
Although I realize, as the ma
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