 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
BUSH v. STATE12/1/1995
ly person who could or would have contradicted the evidence. . . ." Pittman v. State, 462 So.2d 791, 793 (Ala. Cr. App. 1984). Where there has been a direct comment on the defendant's failure to testify or an indirect comment with a close identification of the defendant as the person who did not become a witness and the trial court does not act promptly to cure the comment, the defendant's conviction must be reversed. Ex parte Purser. A reversal may be prevented if the trial court sustains an objection to the improper remark and promptly and appropriately instructs the jury as to the impropriety of the remark. Ex parte Wilson, 571 So.2d 1251 (Ala. 1990). In determining whether the curative instructions eradicated the prejudice caused by the improper remark, we must consider each case on its own facts. Whitt v. State. The "type of remark . . . whether promptly objected to, and the appropriateness of the trial judge's instructions" shall be considered. Id., 370 So.2d at 739.
In this case, the state alternatively contends that the remark was not a comment on the appellant's failure to testify, but if it was, that it did not constitute reversible error because the trial court sustained an objection to it and gave prompt and appropriate curative instructions which eradicated any possible prejudice. The remark was preceded by the comment on the appellant's position that the statements were coerced and that the officers told him what to say and forced him to adopt the statement as his own. This was a fair comment on the evidence. The important question here is whether the portion of
the comment, "This man told you in his own voice on that tape, and the State's evidence is uncontradicted," raises a danger that the jury might have drawn an improper inference from the appellant's failure to take the stand. We find that, at most, the remark was an indirect comment on the failure of the appellant to testify. Thus, the question became whether the appellant alone could have provided the missing evidence. When there are other possible witnesses to refute the state's evidence, an argument that the state's case is uncontradicted does not focus the jury's attention on the defendant's failure to testify. Here, the only witnesses in the room with the appellant when he made his confessions were the two police officers who conducted the interrogation. Thus, the only person the jury could have expected to refute the state's evidence pertaining to the voluntariness or truthfulness of the confessions was the appellant. See Ex parte Williams, 461 So.2d 852 (Ala. 1984).
Assuming arguendo that the remark was an improper comment on the failure of the appellant to testify, we find that the trial court's curative instruction was prompt and appropriate and sufficient to vitiate any impropriety in the prosecutor's comment. It substantially complied with the requirements of Whitt v. State. We are of the opinion that, in view of the curative instruction, the comment could have in no way contributed to the appellant's conviction. The trial court's denial of the motion for a mistrial was proper.
The appellant contends that the prosecutor, in questioning Lieutenant Ward, improperly suggested to the jury that the codefendant, Edward Pringle, had identified the appellant as the triggerman. The record shows the following:
"Q. [MR. BELSER, prosecutor:] Did Edward Pringle ever finger the defendant over here, William Bush?
"MR. GLASSROTH: Object, Your Honor; out of court statement offered for proving the truth of the matter asserted. It's hearsay.
"THE COURT: I sustain.
"MR. BELSER: Nothing further, Your Honor."
The appellant argues that the que
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 Alabama DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|