Crews v. State, CR–14–0590.

• Decision Date: 18 December 2015
• Docket Number: CR–14–0590.
• Citation: 202 So.3d 759
• Parties: James CREWS. v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

202 So.3d 759

James CREWS.

v.STATE of Alabama.

CR–14–0590.

Court of Criminal Appeals of Alabama.

Dec. 18, 2015.

Joseph M. Willoughby, Gadsden (withdrew 8/20/2015); and Adam Eugene Parker, Dothan, for appellant.

Luther Strange, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.

BURKE

, Judge.

James Crews was convicted of the unlawful distribution of a controlled substance, a violation of § 13A–12–211, Ala.Code 1975

, and sentenced to 28 years in the state penitentiary. He was ordered to pay an Alabama Crime Victims' assessment of $100, a Drug Demand assessment of $2,000, a Drug Demand Forensics assessment of $100, and attorney's fees.

Nathan Lipscomb agreed to work with the police after a traffic stop during which a crack pipe was found. Lipscomb identified “James” with the possible last name “Crews” as the man at a given address who had sold him drugs daily for a period of months. (R. 231, 273, 275.) Cole Lumpkin, an agent of the Etowah County Drug Enforcement Agency, testified that, on August 14, 2012, he searched Lipscomb, who was the confidential informant in this case, before dropping him off close to Crews's residence¹ with $40² of “ ‘photocopied buy money.’ ” (R. 224.) Lipscomb was wired with a digital camera that produced both audio and video recordings. Lipscomb walked to Crews's house and returned to where Lumpkin had dropped him off approximately 10 to 15 minutes later. Although the police officers' vision was obscured by a bush as Lipscomb entered the house, they saw him walk up to the yard of the house and later leave the yard of the house. Lipscomb testified at trial and identified Crews as the seller in the recording, in photographs made from the recording, as well as in other photographs; he further identified Crews at trial as the man who sold him crack cocaine.

Upon Lipscomb's return, officers took from Lipscomb the drugs that had been purchased and removed the camera. The drugs were transported to the office for the Etowah County Drug Enforcement Agency and logged into evidence. It was later determined that the drugs were crack cocaine. The recording was downloaded and viewed by officers. A driver's license printout of James Crews's license was shown to Lipscomb, and he identified Crews as the man who had sold him crack cocaine. A photocopy of Crews's 2011 driver's license was admitted into evidence at trial.

Lumpkin and another officer went back to the house where the drug buy took place and were told by a man in the garage that “James” was in the house. The officers knocked, called out Crews by his first name, and were told to come in. Lumpkin identified Crews at trial as the man they spoke to in the house.³ The officers told Crews that they had a recording of him selling cocaine and offered him a chance to cooperate by identifying his drug source.

The State presented testimony from Scott Cardwell, who worked for the Alabama Board of Pardons and Paroles and was Crews's parole officer, in order to prove an aggravating factor for the purpose of justifying an upward departure from the sentence recommended in the presumptive sentencing guidelines.⁴ Cardwell testified that Crews was serving a 25–year sentence and was to be supervised on parole until 2029. His parole was revoked following a hearing on January 25, 2013, because, among other charges, he had committed the new offense of distribution of a controlled substance. The drug sale on August 14, 2012, the subject of this appeal, had taken place while Crews was on supervised parole. The jury returned a finding that the aggravating circumstance that Crews was on probation or parole at the time of the offense was proven beyond a reasonable doubt. As noted earlier, the Etowah Circuit Court convicted Crews of unlawful distribution of a controlled substance and sentenced him to 28 years' imprisonment. Crews appeals.

I.

Crews argues that the circuit court erred in failing to grant a mistrial after the State introduced collateral-crimes evidence during its questioning of Lumpkin; specifically, he takes issue with Lumpkin's testimony that he had known Crews since Crews came back from prison.

Before trial, a hearing was held concerning Crews's motion in limine regarding the admission of evidence of his having been in prison. Thereafter, at trial, the following transpired on direct examination from the State:

“A. [Lumpkin]. Well, me and the agent that I work with, we kind of was talking about him. And we figured due to Mr. Crews' age and, the best of my memory, he's not been out of prison long.

“[Defense Counsel]: Objection, Your Honor.

“THE COURT: Sustained.

“[Defense Counsel]: I object to that statement.

“[Prosecutor]: Come here, [defense counsel].

“(The following bench conference was held out of the hearing of the jury:)“[Prosecutor]: Do you want to do an instruction? Cautionary instruction? Do you think that would make it much worse? Precautionary instruction?

“THE COURT: Let's just say the jury is to disregard any statement regarding anything about Mr. Crews' past.

“[Defense Counsel]: That's fine. That's fine.

“(End of bench conference.)

“THE COURT: All right. The jury is to disregard any statement concerning references to Mr. Crews' past.

“[Prosecutor]: All right.

“[Defense Counsel]: Judge, just a minute. May we approach?

“THE COURT: Yes.

“(The following bench conference was held out of the hearing of the jury:)

“[Defense Counsel]: Judge, based on that statement, I move for a mistrial, based on the statement—I move for a mistrial based on the statement he'd been in prison.

“THE COURT: Based on what?

“[Defense Counsel]: Based on his information he'd been in prison. That was the whole point of us blacking out the background on those pictures.

“[Prosecutor]: Judge gave them a precautionary—

“THE COURT: All right. Well, we can argue a little bit more during a break, but I'm going to deny your motion at this time.

“[Defense Counsel]: Okay.

“(End of bench conference.)”

(R. 239–41.)

Subsequently, defense counsel renewed his motion for a mistrial based on Lumpkin's testimony, as follows:

“[Defense Counsel]: Judge, again, based on Cole Lumpkin's statement of being in prison, we move for a mistrial. You can't unring the bell. He made that statement in front of the jury. It's highly prejudicial. We worked really hard this morning talking about blacking the background of these pictures out because of what—it indicated they were mugshots. And [the prosecutor] said he could do it. Obviously, they didn't do it. The State—

“[Prosecutor]: Well, that's why I didn't offer it.

“[Defense Counsel]: Well, I know. But I'm just saying. But, I mean, I just think that's highly prejudicial. He came out with that statement ‘he's in prison’ and now it's in the jury's mind. They know that he's in prison. And I think that's grounds for mistrial.

“THE COURT: State?

“[Prosecutor]: Judge, we didn't elicit the testimony.

“[Defense Counsel]: It's their witness.

“[Prosecutor]: Well, let me finish.

“[Defense Counsel]: Okay.

“[Prosecutor]: As far as the motion for mistrial, I think it's something that can be cured by a curative instruction. If the jury in the case cannot follow the Court's instructions, then we have a problem. But otherwise, I think a curative instruction should settle it if they're told to disregard it, not to give it any weight. I think it's something we should attempt to do. I think the Court has already done that.

“[Defense Counsel]: Judge, this isn't a minor infraction. I mean, this is a Constitutional Right. They don't get to bring up his prior bad acts unless he testifies. And now they went and said he is in prison prior to this arrest. So I just don't think that's something that you can take back or curatively instruct the jury on.

“THE COURT: Well, you know, I did sustain the objection and I did instruct the jury to disregard any remarks on that line. I'm not going to grant a mistrial. I'm going to trust the jury to disregard and not consider that evidence. And given the great weight of the testimony otherwise, if this is the only reference, it may not be a matter that the jury will regard with any significance, and if they follow my instructions, will disregard entirely.

“So I think given the evidence in total that this is the only incident we're dealing with, I think that a mistrial would not be in order at this point in time. I'll deny the motion.

“Is there an additional curative instruction that the parties wish for me to give, other than what I've already done?

“[Prosecutor]: I think you've covered it as far as I know.

“[Defense Counsel]: I just don't think you can unring the bell once it's rung.”

(R. 265–68.) Crews again renewed his motion for a mistrial during a discussion as to whether the defense would be permitted to question the confidential informant as to his prison time.

The trial court has the discretion to grant or deny a motion for a mistrial, and such a ruling will be disturbed only upon a showing of manifest abuse. Evans v. State, 794 So.2d 415 (Ala.Crim.App.2000)

. “ ‘The trial judge is in the best position to determine whether the prejudicial effects of an improper remark can be eradicated by instructions to the jury, and his determination should be accorded great deference.’ ” Simmons v. State, 797 So.2d 1134, 1164 (Ala.Crim.App.1999) (quoting Hannah v. State, 518 So.2d 182, 185 (Ala.Crim.App.1987) ). “[A] mistrial is a drastic remedy, to be used only sparingly and only to prevent manifest injustice.” Ex parte Thomas, 625 So.2d 1156, 1157 (Ala.1993). “A mistrial is an extreme measure that should be taken only when the prejudice cannot be eradicated by instructions or other curative actions of the trial court.” Ex parte Lawrence, 776 So.2d 50, 55 (Ala.2000). A mistrial is properly denied if an error can be cured by an instruction. Id. Here, we cannot say that the circuit court abused its discretion when it denied Crews's motion for a mistrial. The trial judge gave immediate instructions to the jury to disregard the matter and thereby cured any prejudice Crews may have...