Baxter v. State

• Decision Date: 19 June 1998
• Citation: 723 So.2d 810
• Parties: Jody Bee BAXTER, alias Joseph Baxter v. STATE.
• Court: Alabama Court of Criminal Appeals

723 So.2d 810

Jody Bee BAXTER, alias Joseph Baxter v. STATE.

CR-95-1556.

Court of Criminal Appeals of Alabama.

June 19, 1998.

Barry Teague, Montgomery, for appellant.

Jeff Sessions and Bill Pryor, attys. gen., and Cedric Colvin, asst. atty. gen., for appellee.

On Application for Rehearing

McMILLAN, Judge.

This Court's opinion of December 20, 1996, is withdrawn, and the following opinion is substituted therefor:

The appellant was charged in two indictments with the distribution of a controlled substance, violations of § 13A-12-211, Ala. Code 1975; these two cases were consolidated for trial by agreement of the parties.

The appellant was found guilty of one of the distribution charges, but was acquitted of the other. He was subsequently sentenced to life imprisonment under the Habitual Felony Offender Act, and his sentence was enhanced by an additional five years' imprisonment because the sale took place within three miles of a school and another five years' imprisonment because the sale also occurred within three miles of a housing project.

I.

On appeal, the appellant argues that the trial court committed reversible error in denying the appellant's motion for a mistrial. The motion was made after the prosecutor commented in his opening statement that he expected the appellant to testify at trial.¹

The record indicates that during his opening statement, the prosecutor told the jury that he expected "Mr. Baxter" to testify in this case. Immediately after making this statement, the prosecutor advised the jury that he did not mean to say "Baxter," but instead meant to say "Boswell," the name of the State's confidential informant. The appellant made a timely motion for a mistrial. The trial court denied the appellant's motion and did not give any curative instruction. The prosecutor stated outside the presence of the jury that the comment was unintentional, and defense counsel appeared to agree. The appellant did not testify at trial.

The appellant argues that the prosecutor's remark constituted a direct comment on his failure to testify, and argues further that the trial court's failure to give a curative instruction necessitates a reversal and a remand for a new trial. The State argues that the judgment in this case should not be reversed because the prosecutor did not intend to comment on the defendant's failure to testify and because he immediately corrected himself. In support of this argument, the State cites Ex parte McWilliams, 640 So.2d 1015 (Ala.1993). In Ex parte McWilliams, the Alabama Supreme Court stated that "`the facts and circumstances of each case must be analyzed to determine whether the language used was manifestly intended and was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.'" 640 So.2d at 1020.

The record indicates that the prosecutor's direct reference to the appellant as someone expected to testify was unintentional. This is evidenced by the fact that the prosecutor immediately corrected himself before defense counsel could object and move for a mistrial. This Court has addressed other situations in which prosecutors or witnesses made "inadvertent slips." In these situations, this Court has consistently held that the "inadvertent slips" were not reversible error and could not serve as the basis for a mistrial where the trial court took immediate action in sustaining an objection to the comments and in giving curative instructions to the jury. Thus, the jury was clearly informed that these unintentional statements were not to be considered.

"When, as here, a trial court immediately charges the jury to disregard improper remarks, there is a prima facie presumption against error. Elmore v. State, 424[414] So.2d 175 (Ala.Crim.App.1982); Kelley v. State, 405 So.2d 728 (Ala.Crim. App.), cert. denied, 405 So.2d 731 (Ala. 1981); Chambers v. State, 382 So.2d 632 (Ala.Crim.App.), cert. denied, 382 So.2d 636 (Ala.1980); Nix v. State, 370 So.2d 1115 (Ala.Crim.App.), cert. denied, 370 So.2d 1119 (Ala.1979)

"Where a trial court acts promptly to impress upon the jury that improper questions are to be disregarded by them in their deliberations, the prejudicial effects of such remarks are removed. Minor v. State, 402 So.2d 1121 (Ala.Crim.App.1981); Grey v. State, 369 So.2d 889 (Ala.Crim. App.1979); Brown v. State, 366 So.2d 334 (Ala.Crim.App.1978); Woods v. State, 344 So.2d 1225 (Ala.Crim.App.), cert. denied, 344 So.2d 1230 (Ala.1977). Even `inadvertent slips' which are prejudicial to a defendant need not be cause for a mistrial where the judge acts promptly to impress upon the jury that improper statements are not be to be considered by them. Richardson v. State, 374 So.2d 433 (Ala. Crim.App.1979); Elmore, supra."

Woods v. State, 460 So.2d 291, 295 (Ala.Cr. App.1984) (the prosecutor's improper question to the defendant, i.e., whether he had ever shot anyone before the offense for which he was being tried, was not reversible error, where the trial judge issued immediate curative instructions to the jury to disregard comment). See also Ray v. State, 527 So.2d 166, 169 (Ala.Cr.App.1987) (referring to the appellant as "pervert" did not result in a mistrial where the trial court immediately impressed upon the jury that the improper statement should be disregarded).

In Richardson v. State, 374 So.2d 433 (Ala. Cr.App.1979), a witness, who had previously been cautioned not to make a specific statement, made the improper statement. The statement was followed by an objection by defense counsel which the trial court sustained. The trial court then gave curative instructions to the jury to disregard the remark. Thereafter, defense counsel moved to suppress the State's evidence and moved for a mistrial based "`on the inadvertent slip by the young prosecution witness.... I realize it is nobody's fault. He just doesn't know what to do. He just said something.'" Id., at 435. The trial court denied the motion for a mistrial and admonished the jury to disregard the statement. In Richardson, supra, this Court held:

"While Thompson's `inadvertent' slip was prejudicial to the defendant, we cannot state that it deprived the defendant of a fair trial in view of the trial judge's instructions to the jury. If the trial judge acts promptly to impress on the jury that improper statements are not to be considered by them in their deliberation, the prejudicial effect of the remarks is removed. Woods v. State, 344 So.2d 1225, 1229 (Ala.Cr.App.1976), cert. quashed, Ex parte Woods, 344 So.2d 1230 (Ala.1977)."

374 So.2d at 435.

Similarly, in Cole v. State, 548 So.2d 1093 (Ala.Cr.App.1989), a comment made by the prosecutor during closing argument was objected to and was the basis for a motion for a mistrial. On appeal, Cole argued that it was reversible error, because, among other reasons, it was an improper comment on the defendant's failure to testify. However, because the trial court sustained the objection, instructed the jury to disregard the comments, and polled the jury to ensure that it could and would follow these instructions, there was a "prima facie presumption against error." Id., at 1096-97.

In Taylor v. State, 408 So.2d 551, 553 (Ala.Cr.App.1981), the prosecutor made a comment during his closing argument that the prosecutrix's mother had gonorrhea. The State claimed that this comment was an "inadvertent slip." This Court held that the comment was "arguably not even prejudicial" and, due to the trial court's actions in immediately sustaining the objection and then instructing the jury to disregard the comment, as well as instructing the prosecutor to refrain from further such comments, any potential harm was "without question" eliminated by these prompt actions. Id.

"Alabama law clearly holds that `[w]here there is the possibility that a prosecutor's comment could be understood by the jury as a reference to failure of the defendant to testify, Art. I, § 6 [Const. of Ala. of 1901] is violated." Ex parte Wilson, 571 So.2d 1251, 1262 (Ala.1990). Moreover, "the fact that the comment occurred during opening statements, rather than during closing arguments, does not prevent the remark from being a comment on the defendant's failure to testify." Purser v. State, 607 So.2d 301, 303 (Ala.1992).

"`It does not matter that during the opening statement the accused has or has not taken the stand, his constitutional right to remain silent may still be violated. The argument that no harm can be ascertained from remarks indifferent to that right until closing arguments, after the accused has elected not to testify is ill conceived and ill thought out. Certainly, we would be remiss in our duty if we failed to recognize the danger of the district attorney, early in the proceedings, directly or indirectly focusing the jury's attention on what the accused will or will not testify to, or on what he previously has or has not admitted. In many instances, if this tactic were allowed, the prejudice to the accused would be even greater than if the comment were made after all the testimony had been taken. If permitted, the jury would be on their constant guard, anticipating the accused's "chance to tell his story." This form of prejudice to an accused's right to receive a fair trial will not be sanctioned or tolerated by this court. An accused's right to remain silent is inviolable at every stage in the proceedings and must be afforded due protection.'

"Collins v. State, 385 So.2d 993, 1001 (Ala. Cr.App.1979),

reversed on other grounds, 385 So.2d 1005 (Ala.1980)."

607 So.2d at 303.

Although a prosecutor's improper reference to a defendant's failure to testify may be eradicated, a trial court should act immediately in sustaining an objection and in giving curative instructions to the jury to eradicate the error, even if the reference is inadvertent.

"At a minimum, under such circumstances, the trial judges should sustain the objection and

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