Alexander v. State

• Decision Date: 13 March 1992
• Docket Number: CR-90-1460
• Court: Alabama Court of Criminal Appeals
• Parties: Edward Duane ALEXANDER v. STATE

Page 1130

601 So.2d 1130

Edward Duane ALEXANDER v. STATE

CR-90-1460.

Court of Criminal Appeals of Alabama.

March 13, 1992.

Rehearing Denied May 1, 1992.

Certiorari Denied July 31, 1992

Alabama Supreme Court 1911320.

John Bertolotti, Jr., Mobile, for appellant.

James H. Evans, Atty. Gen., and Robin Blevins, Asst. Atty. Gen., for appellee.

JAMES H. FAULKNER, Retired Justice.

In a two-count indictment, Edward Duane Alexander was charged with the capital offenses of 1) the intentional killing of Eleanor Watts in the course of the first degree robbery in which a 1988 Oldsmobile Delta 88 automobile was taken from the Springdale Mall parking lot, in violation of § 13A-5-40(a)(2), Code of Alabama 1975; and 2) the intentional killing of Eleanor Watts in the course of the first degree kidnapping of her from the Springdale Mall parking lot, in violation of § 13A-5-40(a)(1), Code of Alabama 1975. The State filed a motion to consolidate this case with another case against Alexander, which also involved a robbery that allegedly occurred in the Springdale Mall parking lot on the same day as the alleged abduction and robbery of Eleanor Watts. This motion to consolidate was denied.

The jury found Alexander guilty of the lesser included offenses of murder, in violation of § 13A-6-2, Code of Alabama 1975; robbery in the first degree, in violation of § 13A-8-41(a)(2), Code of Alabama 1975; and kidnapping in the first degree, in violation of § 13A-6-43, Code of Alabama 1975. Alexander was sentenced to life imprisonment for each conviction. We affirm. Alexander raises three issues on appeal.

I

Alexander contends that the trial court erred in allowing the prosecutor to comment in closing argument upon Alexander's exercise of his right to remain silent.

Sergeant James E. Mayo of the Mobile Police Department testified on direct examination that he and Sergeant Billy Luther conducted several lineups at city jail on August 10, 1990, and that Alexander was in several of these lineups. According to Mayo, approximately 15 to 20 minutes after the last lineup, Alexander grabbed him in the docket room and asked, "How many of them picked me out?" Mayo responded that he could not tell Alexander at that time. On cross-examination, Mayo testified that as soon as a lineup was completed and anyone identified Alexander, Mayo went in the room and told Alexander that he was picked. According to Mayo, because he had already informed Alexander that he had been picked, he was not going to discuss Alexander's case further in the presence of other people in the docket room. On redirect examination, Mayo testified that when he informed Alexander immediately following a lineup that Alexander had been identified in the lineup, Mayo did not inform Alexander of the particular case wherein the lineup was conducted.

Alexander did not testify at trial. During closing arguments, the prosecutor made the following argument:

"Inscribed over the doors of this very building on the Government Street side are these words: 'The laws of our land are based on reason and on experience.' And your reason and your experience, I would respectfully submit, should tell you that six eyewitnesses, two fiber experts, and the statement, 'How many of them made me'--not, 'You got the wrong man,' not, 'They made a mistake'--

"MR. BERTOLOTTI: Judge, I object. The testimony was, 'How many of them picked me out?'

"MR. GALANOS: All right. 'How many of them picked me out,' takes this case out of the circumstantial category into the direct category and takes it one notch higher in terms of the level of proof. The fact that that statement was made is an admission of guilt.

"MR. YELVERTON: Judge, we would object, of course, based on everything that's obviously known by the Court and Mr. Galanos.

"THE COURT: He has a right to make his closing argument--

"MR. YELVERTON: All right.

"THE COURT--but the ultimate decision is made by the jury, not you, not me, not anybody else. Now, let's go.

"MR. GALANOS: Because--not just that it was made--because, again, he told him he'd been made--but because there was no rejoinder to the effect, They made a mistake. You've got the wrong man.

"MR. BERTOLOTTI: I object to that. He's gone a little too far, the case of Ex parte Marek, and, furthermore, he's commenting on the Defendant's exercise of his rights.

"MR. GALANOS: No, I'm not. I'm commenting on a statement that the Defendant made and the reasonable inferences that can be drawn therefrom.

"THE COURT: I overrule your objection.

"MR. YELVERTON: Judge, for the record--

"THE COURT: Proceed.

"MR. YELVERTON: --you ruled after Mayo said he had told him about three or four times somebody had picked him out, that that was not an admission, he couldn't refer to it as an admission because it's not an admission, and now he's calling it an admission. That was your ruling.

"THE COURT: That is correct.

"MR. YELVERTON: Well, he just violated the ruling, Judge, and I'd like you to charge the jury on the evidence.

"THE COURT: Any such statement that he refers to is not an admission, and now proceed."

To constitute an improper comment on a defendant's failure to testify at trial, the prosecutor must make a direct reference to the accused's failure to testify at trial, the prosecutor must make a direct reference to the accused's failure to take the witness stand. Hardy v. State, 462 So.2d 1016 (Ala.Cr.App.1984), cert. denied, 462 So.2d 1016 (Ala.1985).

In the instant case, there is absolutely nothing contained within the foregoing closing argument by the prosecutor that could be interpreted as a comment on Alexander's failure to take the stand. The prosecutor's comment was merely a reference to evidence that had already been presented at trial when Sergeant Mayo testified that following the lineups at the police station, Alexander asked him how many of the witnesses picked him out. The prosecutor in his closing argument did nothing more than comment on what Alexander said or did not say to Sergeant Mayo in the docket room following the lineups, not on what Alexander did not testify to at trial.

Because the prosecutor, in closing argument, may properly make references to, or draw reasonable inferences from, evidence presented at trial, the trial court did not err in overruling Alexander's objection to the prosecutor's closing argument on this ground. Smith v. State, 482 So.2d 1312 (Ala.Cr.App.1985), cert. denied, 482 So.2d 1312 (Ala.1986).

Alexander's corollary contention is that the prosecutor's comment during closing argument constituted reversible error because it violated the prohibition against the use of tacit admissions in criminal cases. The record reveals that Alexander, and not the police, initiated the conversation with Sergeant Mayo concerning how many people had identified him in lineups. There is absolutely no evidence that a statement was made to Alexander or that a question was asked of him which required a reply or denial by him. See Ex parte Marek, 556 So.2d 375 (Ala.1989). Hence, because no tacit admission was made in this case, the prosecutor's comment did not violate the prohibition against the use of tacit admissions in criminal trials.

II

Alexander contends that the trial court erred in its jury instruction because its inclusion of the term "abiding conviction" in the definition of reasonable doubt allowed the jury to convict based on a lower standard than the constitutionally mandated "beyond a reasonable doubt" standard.

The trial court instructed the jury as follows:

"Now, ladies and gentlemen of the jury, as you know, we have now completed the criminal trial of the State of Alabama v. Edward Duane Alexander. I charge you at the very outset that the Defendant in this case, Edward Duane Alexander, entered into the trial of this case clothed with a presumption of innocence and that presumption of innocence is a fact to be considered by you as evidence and should not be disregarded. This presumption of innocence remains with the Defendant throughout the trial until the State has proved his guilt beyond a reasonable doubt. There is no presumption of guilt against this Defendant merely because the Grand Jury of this County has returned this particular indictment. The indictment is neither evidence for nor against the Defendant. It is simply a vehicle by which it gets to you for your ultimate consideration. The burden, of course, again of convincing you beyond a reasonable doubt of the guilt of the Defendant rests upon the State throughout the trial of this case.

"A reasonable doubt is not a mere guess or surmise. It is not a forced or capricious doubt. If after considering all the evidence in this case you have an abiding conviction of the truth of the charge, then I would tell you that you are convinced beyond a reasonable doubt and it would be your duty to convict the Defendant. The reasonable doubt which entitles an accused to an acquittal also is not a mere vague or speculative doubt, but a reasonable doubt arising from the evidence and remaining after careful consideration of the testimony that you heard in this case. But if after comparing and considering all the evidence, if your minds are left in such a condition that you cannot say that you have an abiding conviction of the guilt of the Defendant, then I would tell you that you are not convinced beyond a reasonable doubt and the Defendant would be entitled to an acquittal at your hands.

"Some judges simply state that a reasonable...