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BUSH v. STATE12/1/1995
ements of evidence is uncontroverted?
"MR. GLASSROTH: I'm going by my gut more, Your Honor.
"THE COURT: I'm more interested in what the Appeals Court says than your gut. If you want me to — I notice in the jury charge before the Court the Court explained in some detail that if the defendant didn't take the stand, he doesn't have to take the stand, no inference is to be raised. I can do that now if you want me to or wait and do it then.
"MR. GLASSROTH: Your Honor, I don't think any curative instruction can help. "THE COURT: I'm not seeking to argue with you. The defendant is not to be prejudiced because he doesn't take the
stand. I plan to include that in my charge. If you would like I'll do that now, if you're asking for curative instruction.
"MR. GLASSROTH: I'm asking, Number One, —
"THE COURT: I'm not going to grant a mistrial unless you show me some law that a comment such as that is prejudicial to the extent that a mistrial is required. I'm not sure that it's a comment.
"MR. GRADDICK: Judge, I was about to finish the statement about certain facts being uncontradicted, the State's evidence being uncontradicted concerning guns and everything else when he objected. I never even got close to talking about whether the defendant did or did not testify. I never even got — I mean that wasn't anywhere close to what I was getting ready to say. Plus the case law says the State of Alabama can comment on uncontroverted evidence in any criminal case.
"THE COURT: I'm going to charge them in my charge that the defendant did not take the stand, he doesn't have to, and no inferences are to be drawn from that. I'll go into that at some length, which I think — But if he shows me some law — I don't know. Y'all are telling me a lot about what y'all think about all of this. I'm more interested in what you can show me; but out of an abundance of caution, Mr. Graddick, don't go into uncontroverted — I don't know; but I've tried this case as many times as I want to.
"MR. GRADDICK: I understand.
"THE COURT: So I'll sustain his objection and I'm going to charge them at the conclusion about the defendant not taking the stand. I'll do this, I'll say this, Mr. Glassroth.
"MR. GLASSROTH: Yes, sir.
"THE COURT: If that's taken by them as any inference, any comment, that he did not take the stand, he doesn't have to take the stand, and they are not to consider that whatsoever the fact that he didn't take the stand. I'll say I'll tell you this now and I'll tell you again later on. Do you want me to do that?
"MR. GLASSROTH: Yes, sir, in absence of the Court granting a mistrial.
"THE COURT: All right, bring the jury back.
". . . .
"THE COURT: Ladies and Gentlemen, when the District Attorney had said — I don't think he had finished the sentence — something about something being uncontroverted. Now, if from that comment would lead you to think that the defendant himself has any kind of responsibility to prove anything to you, that's not right. The defendant in this case does not have the responsibility to disprove anything. The burden is on the State to prove to you beyond a reasonable doubt that he is guilty. The law says a defendant does not have to prove anything, never has to prove anything. The burden never shifts from the State to the defendant to prove anything to you. I don't know what the District Attorney was getting to, or what the entire sentence would have been; but if any inference from that was an inference to you or anything that you might conclude that the defendant had a responsibility to prove anything to you or not
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