BUSH v. STATE12/1/1995
prove anything to you, he does not. The law says he's presumed to be innocent. I'm going to tell you all of this again later on; but I'll give a little mini charge right now. The defendant is presumed to be innocent, and that innocence goes with him throughout the trial of the case and continues unless or until the State proves guilt beyond a reasonable doubt. The defendant doesn't have to prove anything. He does not have to get on the stand there himself and testify. And the law says if he does not testify you should not make any conclusion or draw any inference of guilt or prejudice him in any way at all because he doesn't testify. Now I sustain your objection and overrule your motion."
A defendant has the right not to take the witness stand and testify in his own behalf and, if he exercises that right, not to be the subject of comment by the prosecuting attorney. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Ex parte Purser, 607 So.2d 301 (Ala. 1992); Whitt v. State, 370 So.2d 736 (Ala. 1979); U.S.
Const. Amend. V, XIV; Ala. Const. 1901, Art. I, § 6; Ala. Code 1975, § 12-21-220. Section 12-21-220, in defining that right provides: "On the trial of all . . . criminal proceedings, the person on trial shall, at his own request, but not otherwise, be a competent witness, and his failure to make such a request shall not create any presumption against him nor be the subject of comment by counsel."
" 'Every time a prosecutor stresses a failure to present testimony, the facts and circumstances must be closely examined to see whether the defendant's right to remain silent has been violated.' Padgett v. State, 45 Ala. App. 56, 223 So.2d 597, 602 (1969), cert. denied, 284 Ala. 732, 223 So.2d 603 (1969). Thus, it becomes important as to whether the appellant alone could have provided the missing evidence. Id. at 603 ('in view of the testimony showing that only [defendant] and his co-defendant could deny the testimony . . . [the prosecutor's remark that certain testimony was uncontradicted] did raise a danger that the jury would draw an improper inference from [defendant's] failure to take the stand').
" 'In a case where there has been only an indirect reference to a defendant's failure to testify, in order for the comment to constitute reversible error there must be a close identification of the defendant as the person who did not become a witness. [Ex parte] Williams, [461 So.2d 852 (Ala. 1984)]; United States v. Norton, 867 F.2d 1354, 1364 (11th Cir.), cert. denied, 493 U.S. 871, 110 S.Ct. 200, 107 L.Ed.2d 154 (1989).
" '. . . .
" 'Alabama law clearly holds that "where there is the possibility that a prosecutor's comment could be understood by the jury as reference to failure of the defendant to testify, Art. I, § 6 [Const. of Ala. of 1901] is violated." Ex parte Tucker, 454 So.2d 552, 553 (Ala. 1984); Ex parte Dobard, 435 So.2d 1351, 1359 (Ala. 1983), cert. denied, 464 U.S. 1063, 104 S.Ct. 745, 79 L.Ed.2d 203 (1984) (quoting Beecher v. State, 294 Ala. 674, 682, 320 So.2d 727, 734 (1975)).
However, as asserted by the State here, the prosecutor does have the right to point out to the jury that the State's evidence does stand uncontradicted and an appropriate comment to that effect, but the comment must not cross over the line drawn by the right of a defendant not to testify at trial. [Citations omitted.]' "
Windsor v. State, 593 So.2d 87, 91 (Ala. Cr. App. 1991) (quoting Ex parte Wilson, 571 So.2d 1251, 1261-63 (Ala. 1990)). " t is generally held that a comment referring to the State's evidence as uncontradicted refers to the defendant's failure to testify, where the defendant himself is the on
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