Beecher v. State

• Decision Date: 10 July 1975
• Citation: 294 Ala. 674,320 So.2d 727
• Parties: In re Johnny Daniel BEECHER v. STATE of Alabama. Ex parte Johnny Daniel Beecher. SC 1054.
• Court: Alabama Supreme Court

Page 727

320 So.2d 727

294 Ala. 674

In re Johnny Daniel BEECHER v. STATE of Alabama Ex parte Johnny Daniel Beecher.

SC 1054.

Supreme Court of Alabama.

July 10, 1975.

Rehearing Denied Sept. 4, 1975.

U. W. Clemon, Birmingham, Elaine R. Jones, NAACP Legal Defense & Educational Fund, Inc., Jack Greenberg, New York City, for petitioner.

William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.

EMBRY, Justice.

Petition for writ of certiorari was granted and we here review the Court of Criminal Appeals' decision in Beecher v. State, 56 Ala.App. 212, 320 So.2d 716, 8 Div. 426 (1974), which upheld the third conviction of petitioner for murder in the first degree.

The former trials resulted in reversals on appeal. Beecher v. State, 280 Ala. 283, 193 So.2d 505 (1967), rev'd 389 U.S. 35, 88 S.Ct. 189, 19 L.Ed.2d 35 (1967); Beecher v. State, 288 Ala. 1, 256 So.2d 154 (1971), rev'd 408 U.S. 234, 92 S.Ct. 2282, 33 L.Ed.2d 317 (1972). These cases fully report the overall facts. We will discuss only those pertinent to review of the alleged errors occurring during the third trial. Those errors are said to consist in: (1) A remark made by the prosecutor in final argument was impermissible comment on defendant's failure to testify, (2) Blacks were systematically excluded from the jury venire. We find that Const. of Ala., 1901, § 6, mandates reversal, therefore we remand for new trial.

I

Petitioner's first contention is that a remark made in final argument by the District Attorney was impermissible comment on defendant's failure to testify. To decide if the remark was impermissible we must look to the testimony of Deputy Sheriff Kenneth Ray Phillips who related to the jury an extrajudicial self inculpatory admission of defendant Beecher.

'DIRECT EXAMINATION

'BY MR. BLACK: ¹

'Q. Mr. Phillips, what is your full name, please, sir?

'A. Kenneth Ray Phillips.

'Q. And where are you at the present time?

'A. In Quantico, Virginia.

'Q. And what are you doing up there?

'A. I am going through the National F.B.I. Academy School.

'Q. And where do you live?

'A. Centre, Alabama.

'Q. And what is your occupation?

'A. I am a Deputy Sheriff.

'Q. And in what county, please?

'A. Cherokee County.

'Q. And how long have you been a Deputy Sheriff of Cherokee County, Mr. Phillips?

'A. Six and a half years.

'Q. Do you know the Defendant over there, Johnny Daniel Beecher, sitting by his Attorney, Miss Jones?

'A. Yes, sir.

'Q. I will ask you if you were present in Cherokee County during his last trial in February of 1969?

'A. Yes, sir.

'Q. Do you recall seeing the Defendant, Johnny Daniel Beecher, while the jury was deliberating during his last trial?

'A. Yes, sir.

'Q. And what was your official capacity at that time?

'A. I was working as an officer of the court as Bailiff.

'Q. And did you have him in your custody at that time?

'A. Yes, sir.

'Q. Where did you have him in custody?

'A. In a witness room.

'Q. All right. Now, at this time, Mr. Phillips, did you talk with him about his case?

'A. No sir.

'Q. Did you make any statements at all about the trial that had just started and the jury now had?

'A. No, sir.

'Q. Did you ask him any questions at all about the trial?

'A. No, sir.

'Q. About any of the witnesses?

'A. No, sir.

'Q. Did any law enforcement officer ask you to question the Defendant, Johnny Daniel Beecher?

'A. No, sir.

'Q. Did the Sheriff of Jackson County ask you to?

'A. No, sir.

'Q. Did any of the State Investigators?

'A. No, sir.

'Q. Did the District Attorney, did I or Mr. Latham ask you to question the Defendant, Johnny Daniel Beecher?

'A. No, sir.

'Q. Did Sheriff Garrett or anybody else?

'A. No, sir.

'Q. Now, during the time that you had him in your custody, where were you, Mr. Phillips?

'A. In the courthouse in the witness room.

'Q. Did he make a statement to you?

'A. Yes, sir.

'Q. Now, was this--did you ask him for a statement?

'A. No sir.

'Q. Did you make a question prior to he statement that he made to you?

'A. No, sir.

'Q. And who, if anybody else, was present at this time?

'A. No one, just Johnny and myself.

'Q. Had you all been talking about other matters prior to that time?

'A. We had been talking, yes.

'Q. But not about his case?

'A. Not about the case, no, sir.

'Q. Now, what did he state to you at this time?

'A. He said, 'Man, I am scared of that electric chair. I don't deserve to walk the streets, because I am a guilty man.'

'Q. Now, did you make any response to that statement?

'A. No, sir.

'Q. Did you reply to him in any way?

'A. No, sir.

'Q. Now, who, if anyone, did you tell that the Defendant, Johnny Daniel Beecher, had made that statement to?

'A. Sheriff Garrett.

'Q. And when did you tell him?

'A. It was two or three days after the trial.

'Q. Do you recall how many it was?

'A. No, sir, two or three or four or something like that.

'Q. Something like that?

'A. I don't recall just how many.'

At the end of the State's case, petitioner rested without offering any evidence. Pursuant to directions by the trial court, the final arguments were not reported, except for objections and rulings made during the arguments. ² At the close of arguments petitioner moved for a mistrial. The grounds for the mistrial were established by petitioner's attorney in the following manner:

'MR. CLEMON: Your Honor, at this time we move to have this Court to declare this trial a mistrial because of the District Attorney's comment on the Defendant's presence to take the stand--on the Defendant's failure to take the stand. We objected to it heretofore and the objection was overruled and we took exception, but we did want to make it clear for the record that formally we are requesting this Court to declare a mistrial because of the prejudicial comment on the failure of the Defendant to take the witness stand, a right guaranteed to him by the United States Constitution.

'THE COURT: I don't construe the statement as a comment on the failure to take the stand. As I understood it, it was that the--the statement was undenied, and that has been held to be not a comment on the statement.

'MR. CLEMON: Your Honor, may we just have the Court Reporter to read back the statement?

'THE COURT: Yes.

'MR. CLEMON: As I recall it, the statement was that no one took the stand.

'THE COURT: All right. Let's--

'MR. PETTUS: If the Court please, I would like to say this--

'THE COURT: Well,--

'MR. PETTUS: When they made the objection, they did not state any words or language used.

'MR. CLEMON: At this point the Judge said 'Overruled', and we said 'Except.' We didn't have an opportunity to state any words or language used.

'THE COURT: Well, I don't believe that you were denied an opportunity. I didn't intent to, but you might have thought so and I am not going to--

'MR. BLACK: It's been upheld by the Supreme Court to not comment on that.

'THE COURT: Let's just stop arguments and hear at this time what--go back and see what--

'THE COURT REPORTER: Judge, he objected--

'THE COURT: Yes, sir.

'THE COURT REPORTER:--and you overruled the objection and they excepted. It was not stated, or I did not hear it stated, what the objection was.

'THE COURT: All right.

'MR. DIVENS: Did you get the motion for a mistrial?

'THE COURT: All right. As you remember, Mr. District Attorney, Mr. Black, what was it that you said?

'MR. BLACK: I said the testimony--I got it down here sonewhere (sic)--was undisputed. The testimony of the State was undisputed.

'MR. DIVENS: Did you get the motion for a mistrial?

'MR. CLEMON: Did you get the motion Mr. Black made before we objected? I mean the statement that Mr. Black made before we objected? Do you have that?

'ELAINE JONES: Are you taking the arguments?

'THE COURT REPORTER: No, ma'am.

'MR. CLEMON: Oh. Okay. Well I want to take the stand.

'THE COURT REPORTER: I am not taking the arguments down, just the objections and exceptions.

'ELAINE JONES: I see. You are not taking it down. Oh, yes, we misunderstood.

'THE COURT: Well, the Court heard the thing, and I will let you state what you said, as you remember it. I think I understand it, but I am going to give each one of you an opportunity.

'MR. BLACK: Well, Judge, if you can, if you want to just dictate in there, I am sure we will both agree on it.

'MR. DIVENS: Mr. Black, you were not reading from that paper?

'MR. BLACK: No. Oh, no.

'THE COURT: All right, let's just make a statement. As an officer of the Court, I will let you make a statement as to what you think it was.

'MR. CLEMON: Well, I want to be sworn as a witness.

'THE COURT: Well, if you would like to be sworn, I will be glad to do it.

'(WHEREUPON MR. CLEMON WAS SWORN BY THE COURT IN THE FOLLOWING MANNER)

'THE COURT: Do you solemnly swear that the evidence that you give will be the truth, so help you God. And you can stand where you are if you like.

'MR. CLEMON: Yes, sir. For the record, my name is U. W. Clemon. I am an attorney at law licensed to practice in the State of Alabama. During the oral arguments of Mr. Black to the jury, I heard him state, quote, 'No one took the stand to deny it,' unquote.

'MR. BLACK: That's right.

'THE COURT: All right, I will--that wasn't necessarily referring to your--We hear these arguments all the time, and this is not a novel argument, but this has been before our courts many times, and the law of this state, and I perceive the law of the Federal Courts is not different. But you cannot say that evidence is uncontradicted, and if it is uncontradicted, then you cannot say that no witness took the stand to deny this. You are not prohibited from--on either side from making that statement. And so I will overrule your motion now.

'MR. CLEMON: Yes, sir. We except.

'THE COURT: I will just overrule it, because the Court finds that this was not a reference to the failure of the Defendant to take the stand.

MR. DIVENS: Your Honor, for the record, we would like to state that Mr. Black, when making that statement, was referring to the testimony of Ken Phillips.

'THE COURT: Well, call the jury back. ...