Connolly v. State

• Decision Date: 10 November 1988
• Docket Number: 1 Div. 623
• Citation: 539 So.2d 436
• Parties: Rodney James CONNOLLY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 436

539 So.2d 436

Rodney James CONNOLLY v. STATE.

1 Div. 623.

Court of Criminal Appeals of Alabama.

Nov. 10, 1988.

Rehearing Denied Dec. 30, 1988.

Certiorari Denied Feb. 24, 1989

Alabama Supreme Court 88-463.

T. Jefferson Deen III of Clark, Deen & Copeland, Mobile, for appellant.

Rodney James Connolly, pro se.

Don Siegelman, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Rodney Connolly was convicted of the capital offense of murder during the course of a robbery. This court reversed that conviction because of the trial court's failure to charge on the lesser included offense of murder. Connolly v. State, 500 So.2d 57 (Ala.Cr.App.1985), affirmed, 500 So.2d 68 (Ala.1986). On retrial, Connolly was convicted of murder and sentenced to life imprisonment. He raises four issues on this appeal from that conviction.

I

The appellant argues that the trial court erred in refusing to give the following written requested charge:

"I charge you, members of the jury, that if the evidence convinces you that Stacey Bruner Trauathan is a woman of bad character, and unworthy of belief, then you may disregard her evidence altogether."

The refusal of a virtually identical charge was found to constitute reversible error in Ashlock v. State, 367 So.2d 560 (Ala.Cr.App.1978), cert. denied, 367 So.2d 562 (Ala.1979). However, here the court's failure to give the charge was not properly preserved for our review.

"No party may assign as error the court's ... failing to give a written instruction ... unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection." Rule 14, Temp.A.R.Cr.P. (emphasis added). Here, defense counsel made the following objection, "We'd except, of course, to you not giving all of our written charges as being correct statements of the law, the ones you did not give." Counsel "failed to set forth the specific grounds for his objection." Ex parte Johnson, 433 So.2d 479, 480 (Ala.1983). See Matkins v. State, 497 So.2d 201, 202 (Ala.1986). The reference to "all of" his written charges as "correct statements of the law" is simply not a specific ground of objection, especially in view of the fact that defense counsel submitted 33 charges, 18 of which were refused. While defense counsel is not required "to deliver a discourse before the trial judge on the applicable law of the case," Gardner v. Dorsey, 331 So.2d 634, 637 (Ala.1976) (construing Rule 51, A.R.Civ.P.), he is required to direct the court's attention to the reason why a particular requested charge, which is at a minimum a "correct statement of the law," applies in the particular case. "[E]rrors by the trial court such as ... refusals of written charges ... should be brought to the attention of the trial court so that it might cure such errors at that level." Allen v. State, 414 So.2d 989, 992 (Ala.Cr.App.1981), affirmed, Ex parte Allen, 414 So.2d 993 (Ala.1982).

II

The defendant claims that the District Attorney assumed the dual roles of witness and prosecutor in violation of the principles set out in Waldrop v. State, 424 So.2d 1345 (Ala.Cr.App.1982). See also Ex parte Gilchrist, 466 So.2d 991 (Ala.1985); Maund v. State, 254 Ala. 452, 48 So.2d 553 (1950); Tarver v. State, 492 So.2d 328 (Ala.Cr.App.1986); Stringer v. State, 372 So.2d 378 (Ala.Cr.App.), cert. denied, Ex parte Stringer, 372 So.2d 384 (Ala.1979).

During the investigation of the homicide, District Attorney Chris Galanos and Lieutenant Wilbur Williams went to Texas to take a statement from the defendant. At trial, the statement was introduced through the testimony of Lieutenant Williams, who stated that the District Attorney had read the defendant his Miranda rights. A tape recording of the interview, with the voices identified as those of Galanos, Williams, and the defendant was then played for the jury. The defendant argues that the tape recording constituted the "testimony" of Galanos, who, after becoming a "witness," should have been required to withdraw from the prosecution of the case.

The tape recording illustrated the testimony of Lieutenant Williams, see Molina v. State, 533 So.2d 701 (Ala.Cr.App.1988), and did not constitute the "testimony" of Galanos. "All testimony, except as otherwise directed, must be given in open court on the oath or affirmation of the witness." Ala.Code 1975, § 12-21-135 (emphasis added). See also Black's Law Dictionary 1778 (rev. 4th ed. 1968) (A witness is "[a] person whose declaration under oath (or affirmation) is received as evidence for any purpose, whether such declaration be made on oral examination or by deposition or affidavit.").

"The term 'witness,' in its strict legal sense, means one who gives evidence in a cause before a court; and in its general sense includes all persons from whose lips testimony is extracted to be used in any judicial proceeding, and so includes deponents and affiants as well as persons delivering oral testimony before a court or jury." 97 C.J.S. Witnesses § 1 at 350 (1957).

Because the District Attorney neither took the stand and testified under oath or affirmation nor provided sworn testimony through a deposition or affidavit, he was not a "witness," and he was not required to withdraw from the prosecution of the case.

III

The defendant insists that the trial court should have granted his motion for mistrial following testimony that he invoked his right to remain silent after Miranda warnings. On cross-examination of Lieutenant Williams by defense counsel, the following occurred:

"Q [By Defense Counsel]: Well, sir, ... that was the sum and substance of your investigation of the murder of Kathy Sands, basically, was it not, the statements, Herriman's statement from Connolly and several statements from Stacy Bruner?

"A [By Lieutenant Williams]: Oh, no, sir. We had interviewed 45 or 50 people prior to the time that I went to Texas.

We worked from two o'clock Friday evening until 11:30 Saturday night without stopping. And I had interviewed almost 50 people. But at that time when I returned from Texas, that culminated all contact with Mr. Connolly and Mr. Herriman because the lawyers wouldn't let them talk to us any more."

Defense counsel objected and moved for a mistrial. The trial court sustained the objection, denied the motion for mistrial, and gave the jury the following instruction:

"Ladies and gentlemen, you will disregard the witness' last answer. A defendant in any criminal proceeding or a person from whom a statement is sought or being taken has a right to terminate that statement giving at any time and remain silent. And that is his right.

"...

"Let me go further on that instruction. Further, ladies and gentlemen, no improper motive can be given that invocation of the right by you."

In Houston v. State, 354 So.2d 825 (Ala.Cr.App.1977), cert. denied, 354 So.2d 829 (Ala.1978), the following observation was made:

"The principle forbidding the prosecution to use evidence of defendant's post-arrest, post-Miranda warning silence for substantive purposes or as evidence of defendant's guilt is soundly established and based on fundamental principles of our jurisprudence. In Miranda v. Arizona, 384 U.S. 436, 468, n. 37, 86 S.Ct. 1602, 1625, 16 L.Ed.2d 694 (1966) the Supreme Court of the United States announced in dictum that

" 'it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.' " 354 So.2d at 827.

"[A] comment on or evidence of the post arrest silence of the defendant or his refusal to give a statement may ... be cured by prompt corrective action by the trial judge. This is not 'a bell once rung which cannot be unrung'...." Hurt v. State, 361 So.2d 1163, 1165 (Ala.Cr.App.1978). See also Williams v. State, 445 So.2d 798, 806 (Miss.1984), cert. denied, Williams v. Mississippi, 469 U.S. 1117, 105 S.Ct. 803, 83 L.Ed.2d 795 (1985).

In order to determine whether the comment warrants a mistrial or is capable of being cured, a court should " 'look to the context in which the statement was made in order to determine the manifest intention which prompted it and its natural and necessary impact upon the jury.' " United States v. Vera, 701 F.2d 1349, 1362 (11th Cir.1983).

Here, it is significant that the comment (1) was not elicited on questioning by the State, cf. United States v. Vera, supra (defense counsel inquired whether, during officer's investigation, defendant had ever "discussed anything criminal" regarding methaqualone negotiations), (2) was unresponsive and "volunteered" by the witness, cf. Matire v. Wainwright, 811 F.2d 1430, 1435 (11th Cir.1987) (comment "volunteered" by officer could not have been "manifestly intended" by prosecutor's question), and (3) was made in the context of an otherwise legitimate narration of the scope of the officer's investigation. Cf. Dudley v. State, 480 N.E.2d 881, 900 (Ind.1985) (In answer to the question, "Did you have occasion to interview any other suspects in this case?" officer stated that accused "refused to be interviewed."). Furthermore, there was no misconduct by the prosecutor through repeated references to the defendant's silence, e.g. Matire v. Wainwright, supra, or use of that silence in argument, e.g., Houston v. State, supra. See generally, Commonwealth v. Gbur, 327 Pa.Super. 18, 474 A.2d 1151 (1984).

When a trial court immediately instructs the jury to disregard improper remarks, it is presumed that the prejudicial effect of the impropriety is removed, Leverett v. State, 462 So.2d 972, 978 (Ala.Cr.App.1984). The cautionary instruction given here was very similar to that given in United States v. Beard, 775 F.2d 1577 (11th Cir.), cert. denied, 475 U.S. 1030, 106 S.Ct. 1235, 89 L.Ed.2d 343 (1986) wherein the...