Covington v. State
| Decision Date | 22 January 1993 |
| Citation | 620 So.2d 122 |
| Parties | Bruce Wade COVINGTON v. STATE. CR 91-1580. |
| Court | Alabama Court of Criminal Appeals |
Robert Clark and W. Lloyd Copeland, Mobile, for appellant.
James H. Evans, Atty. Gen., and Gilda Williams, Asst. Atty. Gen., for appellee.
The appellant, Bruce Wade Covington, was convicted of burglary in the second degree and rape in the first degree. He was given concurrent sentences of 10 years' and 20 years' imprisonment, respectively. On this appeal from those convictions the appellant argues that he was entitled to a mistrial because "[t]he prosecutor's questions, and statements made in the presence of the jury, constituted blatant assertions that there was evidence not before the jury of an extremely damning fact: that threats made by Covington and his brother had induced [defense witness David] Smith to give false exculpatory testimony." Appellant's brief at 30.
The victim in this case was a 20-year-old Korean female. She knew the appellant, having met him on two prior occasions, and positively identified him as her assailant.
The appellant's defense was alibi. He claimed that he was at home at the time of the burglary and rape. It is undisputed Quinley was a witness for the prosecution and testified that shortly before the rape, the appellant made statements to him and Smith indicating his desire to have sexual intercourse with an oriental female.
that shortly before the rape, the appellant was in the company of David Quinley and David Smith. The appellant also claimed that he had shaved his pubic hair at that time "in order to get rid of the crabs." R. 236. The victim testified that she saw the appellant's pubic hair at the time of the rape
At trial, Smith testified as a defense witness that he, Quinley, and the appellant were at his sister's house prior to the rape. He testified that "sex" was not a subject of their conversation. However, Smith admitted on direct examination that he had previously told a Mobile County sheriff's detective that the appellant had made some remarks that night "about getting some oriental stuff that night." R. 289. At trial, Smith claimed that he had lied to the detective and that the appellant R. 290. Later, on cross-examination, Smith stated, R. 297. Smith also testified that Quinley was "known to lie." R. 303. However, when asked, "And you are saying that David Quinley is just making this up?" Smith responded, "I ain't saying that one bit." R. 303.
During her cross-examination of the appellant, the assistant district attorney sought to establish that Smith's trial testimony was false and that either the appellant or the appellant's brother had coerced or threatened Smith into giving false testimony. On cross-examination of the appellant, the following occurred in the presence and hearing of the jury:
The prosecutor then questioned the appellant about another matter and established that the appellant did intend to call Smith as a defense witness. R. 255
On cross-examination of defense witness Smith, the following occurred:
R. 297-300 (footnote added).
There is no record of what occurred in the judge's office.
When the trial resumed, the following occurred:
"MR. POWERS: I renew at this time my motion for a mistrial.
Shortly after this exchange, the defense rested its case. The prosecution presented no rebuttal.
THE IMPROPRIETY OF THE PROSECUTOR'S COMMENTS
We find the prosecutor's conduct highly improper. Statements made by the prosecution that imply or suggest that there exists additional evidence, which has not been introduced and which could prove the defendant's guilt are "intolerable" and highly prejudicial. Ex parte Washington, 507 So.2d 1360, 1362 (Ala.1986).
"It has long been the rule in Alabama that, although counsel should be given considerable latitude in drawing reasonable inferences from the evidence, they may not argue as a fact that which is not " "
supported by the evidence.... This has been the rule since it was first stated in McAdory v. State, 62 Ala. 154[, 163] (1878):
Washington, 507 So.2d at 1361-62. See also King v. State, 518 So.2d 191, 194 ((Ala.Cr.App.1987). "[F]or the state's attorney to ask a question which implies the existence of a factual predicate which the examiner knows he [or she] cannot support by the evidence is unprofessional conduct." Daniel v. State, 534 So.2d 1122, 1126 (Ala.Cr.App.1988).
Daniel v. State, 534 So.2d 1122, 1126 (Ala.Cr.App.1988). See also Hooper v. State, ...
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