Allred v. State
Decision Date | 03 May 1973 |
Parties | Barbara Ann ALLRED v. STATE of Alabama. SC 304. |
Court | Alabama Supreme Court |
Smith & Smith, Dothan, for appellant.
William J. Baxley, Atty. Gen., Robert S. Lamar, Jr., Sp. Asst. Atty. Gen., Montgomery, for the State.
This case was transferred to the Supreme Court from the Court of Criminal Appeals on March 26, 1973. Appellant was convicted of the murder of her husband. She plead not guilty by reason of insanity. Our search of the record discloses that the sole question presented is whether the remarks of the prosecuting attorney in closing argument, in their cumulative effect, were of such a prejudicial nature so as not to be capable of being eradicated by the rulings and instructions of the trial court.
The pertinent portion of the argument and the entire colloquy here involved are set out as follows:
'MR. WHITE: . . .
'I don't believe that any of you are going to buy this bit about her being insane, their being able to tell that she was insane anymore than I am.
(Hereinafter referred to as Statement No. 1.)
The State contends that not only was the district attorney's Statement No. 1 not prejudicial, but that it was proper argument under the circumstances. In its brief the State says:
'. . . the cases cited by Appellant all deal with a remark by the district attorney to the effect that the defendant would be let out of the mental hospital very shortly if found not guilty by reason of insanity.
The factual setting for the State's contention upholding the propriety of Statement No. 1 is as follows: Defendant was admitted to the Bryce Hospital on December 8, 1970, for mental observation and report (§ 425, Title 15, Code of Alabama 1940, Recompiled 1958). The Superintendent of the Bryce Hospital filed his report with the Circuit Court of Houston County, Alabama, on the 5th day of February, 1971, certifying that Barbara Ann Allred was insane and incompetent at the time of her admission to Bryce Hospital and that she was insane and incompetent at the time of the report of the authorities to the Court on said date. At an inquisition held on the 23rd day of February, 1971, the defendant was found to be insane by the jury duly impaneled and was so adjudged by the Court and returned to the Bryce Hospital, where she remained until she was certified as being mentally competent to stand trial. She was released on August 16, 1971, and her case was set for trial on the 29th day of May, 1972.
The difficulty with the State's contention relating to Statement No. 1 lies in the fact that defense counsel's objection specifically pointed out that the language claimed as improper was '. . . put her back down here on us'. This goes beyond impeachment of the expert witnesses and falls squarely within that line of cases wherein this Court has repeatedly held that such argument is improper. Ballew v. State, 49 Ala.App. 611, 274 So.2d 636; Cert. den. 290 Ala. 361, 274 So.2d 637; Dunn v. State, 277 Ala. 39, 166 So.2d 878; Wise v. State, 251 Ala. 660, 38 So.2d 553; Boyle v. State, 229 Ala. 212, 154 So. 575; Anderson v. State, 209 Ala. 36, 95 So. 171. See also 44 A.L.R.2d 973.
The State admits that Statements 2 and 3 are improper but contends that any prejudice resulting therefrom was fully eradicated by the action of the trial court in sustaining defense counsel's objection and by admonishing the jury to disregard such statements. We think it is clear that all three statements were made in the same vein with the same import intended by each. The learned trial judge recognized the impropriety of each statement and correctly ruled on each objection thereto. In accordance with the principles laid down in the above cited cases, he further undertook to avert the prejudicial effect of these statements and unquestionably his actions would have accomplished that result as to any one of such statements standing alone.
In answering the question before us, we cannot analyze each statement separately to see whether, if standing alone, it would create an ineradicable bias or prejudice; but rather they must be considered together to determine whether or...
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