SPANGLER v. STATE9/26/1997
The appellant, Charlecy Dean Spangler, was convicted of promoting prostitution in the second degree, a violation of § 13A12-112, Code of Alabama 1975. She was sentenced to three years' imprisonment and was ordered to pay a fine of $2,500, a crime victims assessment of $500, and court costs. The trial court suspended the appellant's sentence and ordered her to spend two years on probation.
I.
The appellant argues that the trial court erred to reversal by denying her motion for a mistrial and motion for judgment of acquittal.
A.
The appellant's first motion for a mistrial was made after the prosecutor, in the jury's presence, requested that the appellant speak aloud so that a witness for the State could identify her voice. The appellant argues that the prosecutor's request amounted to a direct comment on the appellant's failure to testify, and that the trial court, which did not give a curative instruction after the comment
was made, erred to reversal by denying her motion for a mistrial.
The trial court denied the State's request, and the appellant was not required to speak before the jury. Thus, the appellant's motion for a mistrial is not predicated upon her actually having been required to speak. Rather, the appellant appears to contend that by singling her out in this manner, the prosecutor called to the jury's attention her subsequent failure to testify.
A comment on failure to testify may violate Art. I, § 6, Alabama Constitution of 1901, or the Fifth or the Fourteenth Amendment of the United States Constitution. Ex parte Brooks, 695 So.2d 184 (Ala. 1997). A defendant's right to be free from self-incrimination as set out in the Fifth Amendment are also stated in Art. 1, § 6, Alabama Constitution of 1901, which states:
"That in all criminal prosecutions, the accused . . . shall not be compelled to give testimony against himself. . . ."
In order to be protected under the Fifth Amendment, a compelled communication must be testimonial. Schmerber v. California, 384 U.S. 757, 765, 86 S.Ct. 1826, 1832-33, 16 L.Ed.2d 908 (1966). In Doe v. United States, 487 U.S. 201, 108 S.Ct. 2341, 101 L.Ed.2d 184 (1988), the United States Supreme Court held that in order to be considered testimonial, a "communication must itself, explicitly or implicitly, relate a factual assertion or disclose information" that expresses "the contents of an individual's mind." Id. at 210 n. 9, 108 S.Ct. at 2347 n. 9. See Twenty-fifth Annual Review of Criminal Procedure, 84 Geo. L.J. 1115, 1212 (1996).
"The distinction between a testimonial and nontestimonial communication gives the government a great deal of freedom in conducting an investigation. The government may, for example, compel a person to reenact crime; shave his beard or mustache; try on clothing; dye her hair; demonstrate speech or other physical characteristics; furnish handwriting samples; hair samples, or fingerprints, have her teeth and gums examined; or take a blood-alcohol, breathalyzer, or urine test.
"See Pennsylvania v. Muniz, 496 U.S. 582, 592 [110 S.Ct. 2638, 2645, 110 L.Ed.2d 528] (1990) (compelling drunk driving defendant to demonstrate slurred speech and lack of coordination on videotape not Fifth Amendment violation because not testimonial); U.S. v. Wade, 388 U.S. 218, 222-23 [87 S.Ct. 1926, 1929-30, 18 L.Ed.2d 1149] (1967) (compelling defendant to speak within hearing distance of witness and to exhibit physical characteristics not Fifth Amendment violation because not testimonial); U.S. v. Dionisio, 410 U.S. 1, 7 [93 S.Ct. 764, 768, 35 L.Ed.2d 67] (1973) (compelling production of voice exemplars not Fifth Amendment violati
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