Ex parte Whisenhant

Citation482 So.2d 1247
PartiesEx parte Thomas W. WHISENHANT. (In re Thomas Warren WHISENHANT v. STATE of Alabama). 83-33.
Decision Date11 May 1984
CourtSupreme Court of Alabama

John L. Carroll and Morris S. Dees, Montgomery, for petitioner.

Charles A. Graddick, Atty. Gen., and Ed Carnes, Asst. Atty. Gen., for respondent.

PER CURIAM.

Whisenhant was indicted and subsequently convicted in the Circuit Court of Mobile County of the capital offense of rape-intentional killing. He was sentenced to death on September 7, 1977, a pre-Beck sentence. Beck v. State, 365 So.2d 1006 (Ala.1978).

Petitioner's first conviction and death sentence were reversed by the Court of Criminal Appeals in 1979. Whisenhant v State, 370 So.2d 1080 (Ala.Cr.App.), cert. denied, 370 So.2d 1106 (Ala.1979). This appeal involves the retrial after Beck, the re-conviction, and the new death sentence.

Following this new death sentence, the Court of Criminal Appeals affirmed the second conviction, but set aside the death sentence and ordered another sentence hearing before a new jury. Whisenhant v. State, 482 So.2d 1225 (Ala.Cr.App.1982). This Court granted the petitions for certiorari of both the State and Whisenhant on February 9, 1983. We issued an opinion on July 8, 1983, which affirmed the decision of the Court of Criminal Appeals affirming the conviction, but reversed that court's decision which remanded the cause for a new sentence hearing. Whisenhant v. State, 482 So.2d 1241 (Ala.1983). In that case, this Court adopted for the first time a rule of law which would authorize the application of the harmless error rule in sentence hearings in capital cases. We then remanded the case to the Court of Criminal Appeals for a determination of whether the harmless error rule, when applied to the sentence phase of the trial, required a new sentence hearing.

On remand, the Court of Criminal Appeals affirmed petitioner's sentence, holding that the error (improper argument of the Attorney General, which was also the basis of the reversal of the first conviction) was harmless. Whisenhant v. State, 482 So.2d 1246 (Ala.Cr.App.1983). Once again, this case is before us on petition for writ of certiorari. The granting of the petition was of right, pursuant to Rule 39(c), Alabama Rules of Appellate Procedure.

The State, the Court of Criminal Appeals, and this Court are in agreement that remarks made by the Attorney General during his opening statement at the penalty phase of the trial constitute error. During his opening statement, the Attorney General made reference to other crimes of petitioner and failed to offer any proof of those crimes. We must now decide whether such is error warranting reversal of the sentence and thus necessitating a new sentence hearing.

During his opening statement, the Attorney General made the following remarks:

"They [appellant's counsel] have used some year of 1965 when all of his troubles began. I wrote down--I quoted them, wrote it down on a legal pad. 'This is when all of his troubles began.' All of his troubles did not begin in 1965. He robbed a blind black lady in Prichard, Alabama and was able to beat that charge on a technicality. He purse snatched and I think a police lieutenant will tell you about a situation with regards to another homicide in Prichard, Alabama."

As Justice Maddox noted in Whisenhant v. State, 482 So.2d 1241 (Ala.1983), no evidence was offered during the guilt phase of the trial, and the State failed to offer any evidence of the prior crimes referred to by the Attorney General in his opening statement in the sentencing phase. When the defense rested without offering any evidence in the sentencing phase, the State's attorney, recognizing that he was required to prove the criminal acts, moved the court to allow him to reopen the evidence to prove the crimes referred to by the Attorney General, but the court denied the motion.

The Court of Criminal Appeals based its decision that the error was harmless on the procedural strategy employed by counsel for the defendant, i.e., resting without offering any evidence. That is not the appropriate test for the application of the harmless error rule. To convert the error in this case to harmless error, the State must show beyond a reasonable doubt that the outcome would have been the same notwithstanding the failure to prove the crimes referred to by the Attorney General. Whisenhant v. State, 482 So.2d 1241 (Ala.1983); Washington v. Strickland, 693 F.2d 1243 (5th Cir.1982). This it has not done.

The Attorney General apparently believed that the knowledge of additional crimes would have some impact on the jury, or he would not have referred to them. We cannot say that...

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37 cases
  • Arthur v. State
    • United States
    • Alabama Court of Criminal Appeals
    • March 8, 1996
    ... ... Page 1043 ... identity exception to the general exclusionary rule. Ex parte Arthur, 472 So.2d 665 (Ala.1985). The appellant was again convicted of capital murder and was sentenced to death by electrocution. However, this ... See Whisenhant v. State, 482 So.2d 1225, 1229 (Ala.Cr.App.1982), aff'd in part and remanded in part, Ex parte Whisenhant, 482 So.2d 1241 (Ala.1983), on remand, ... ...
  • Stephens v. State
    • United States
    • Alabama Court of Criminal Appeals
    • August 3, 1990
    ... ... Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Ex parte Branch, 526 So.2d 609 (Ala.1987). Finding that the defense had established a prima facie case of racial discrimination, the trial court required the ...         Moreover, since the harmless error rule applies to capital sentencing hearings, Ex parte Whisenhant, 482 So.2d 1241, 1244 (Ala.1983), no reversal should be had when no undue prejudice resulted to appellant by this inquiry. While we recognize that ... ...
  • People v. Roberts
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    • March 23, 1992
    ... ... (People v. Brown, supra, 46 Cal.3d 432, 448, 250 Cal.Rptr. 604, 758 P.2d 1135.) By comparison, in Ex parte Whisenhant (Ala.1984) 482 So.2d 1247, on which defendant relies, the prosecutor opened his penalty case by stating that the defendant had robbed and ... ...
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