Davis v. State
Decision Date | 13 May 1986 |
Docket Number | 7 Div. 428 |
Citation | 494 So.2d 851 |
Parties | Darryl Lewis DAVIS v. STATE. |
Court | Alabama Court of Criminal Appeals |
Thomas W. Harmon, Anniston, for appellant.
Charles A. Graddick, Atty. Gen. and Jane LeCroy Brannan, Asst. Atty. Gen., for appellee.
Darryl Lewis Davis was convicted by a jury of robbery in the first degree in violation of § 13A-8-41, Code of Alabama 1975, and was sentenced to 25 years' imprisonment. The evidence showed that the appellant and a woman entered a convenience mart/gas station shortly before midnight. They made a purchase and left. According to the cashier, the appellant returned alone, around 4:30 a.m., and robbed her. The defense was alibi.
The appellant contends that the court erred to reversal in overruling objections to several statements made during the state's closing argument, which he urges were illegal and prejudicial.
It is, of course, the duty of every prosecutor to represent the interests of the state zealously, vigorously, and earnestly. His "responsibility [as] a public prosecutor differs from that of the usual advocate; [his] duty is not merely to convict, but also to protect the innocent." EC7-13, Alabama Code of Professional Responsibility. "The prosecuting attorney owes a duty to exercise his full powers in furtherance of society's valid and strong interest in enforcement of criminal laws, not only in seeing that the guilty are punished but that criminal acts by others are discouraged by example of such punishment." Sprinkle v. State, 368 So.2d 554, 561 (Ala.Cr.App.1978), writ quashed, 368 So.2d 565 (Ala.1979).
The prosecutor's responsibility is eloquently explained in the following passage:
Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935).
Dunlop v. United States, 165 U.S. 486, 498, 17 S.Ct. 375, 879, 41 L.Ed. 799 (1897).
On the other hand, "[w]e must not lose sight of the fact that a trial is a legal battle, a combat in a sense, and not a parlor social affair." Arant v. State, 232 Ala. 275, 280, 167 So. 540, 544 (1936).
When do a prosecutor's words and conduct compel a reversal? The United States Supreme Court's answer is that a reversal is necessary if the remark "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974). The constitutional principle involved in questions of prosecutorial misconduct is due process of law.
Alschuler, Courtroom Misconduct by Prosecutors and Trial Judges, 50 Tex.L.Rev. 629, 633-34 (1972).
The kinds of misconduct listed in the foregoing quoted paragraph are all prohibited in Alabama. See, e.g., Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Sullivan v. State, 66 Ala. 48 (1880); White v. State, 294 Ala. 265, 314 So.2d 857, cert. denied, 423 U.S. 951, 96 S.Ct. 373, 46 L.Ed.2d 288 (1975); Eaton v. State, 278 Ala. 224, 177 So.2d 444 (1965); Murray v. State, 359 So.2d 1178 (Ala.Cr.App.1978), respectively. Within this framework, we here measure the claims of prosecutorial abuse in closing argument against the principles set out above.
The following occurred:
Counsel may state the law to the jury subject to the guidance and control of the trial court. Cross v. State, 68 Ala. 476 (1881). Van Antwerp v. State, 358 So.2d 782, 788, (Ala.Cr.App.), cert. denied, 358 So.2d 791 (Ala.1978). The common practice is that the attorneys tell the jury what they expect the court will charge them as to the law. It is the duty of the court to instruct the jury on the law, and, of course, "it is the duty of the jury to follow instructions as to the law." Cabaniss v. City of Tuscaloosa, 20 Ala.App. 543, 104 So. 46, 47 (1925).
In Alabama the attorneys are forbidden to talk to the jury about probation and parole. "There is no question but that the argument of the solicitor to the effect that a man sentenced to the penitentiary will at some time become eligible for pardon or parole [is] improper." Lee v. State, 265 Ala. 623, 93 So.2d 757, 763 (1957). See also, Eaton v. State, supra; Grady v. State, 391 So.2d 1095 (Ala.Cr.App.1980). "A jury should perform its duty ... as to the question of guilt ... irrespective of what someone else, including the trial court, appellate courts and all probation, parole and pardoning authorities might do in the future." Murray v. State, supra, at 1180. The rule is different if the subject has been injected into the case by the other party.
Replies in kind are generally permissible. Pittman v. State, 153 Ala. 1, 45 So. 245 (1907); Bates v. State, 468 So.2d 207 (Ala.Cr.App.1985). Allowing replies in kind rests within the discretion of the trial court, McCullough v. State, 357 So.2d 397 (Ala.Cr.App.1978), and wide latitude is usually given regarding replies in kind. Richardson v. State, 354 So.2d 1193 (Ala.Cr.App.1978); Evans v. State, 338 So.2d 1033 (Ala.Cr.App.1976); Lane v. State, 46 Ala.App. 637, 247 So.2d 679 (1971); Moody v. State, 40 Ala.App. 373, 113 So.2d 787 (1959); Windham v. State, 35 Ala.App. 547, 50 So.2d 288 (1950); Gills v. State, 35 Ala.App. 119, 45 So.2d 44, cert. denied, 253 Ala. 283, 45 So.2d 51 (1950); York v. State, 34 Ala.App. 188, 39 So.2d 694 (1948), cert. denied, 252 Ala. 158, 34 So.2d 697 (1949); Walker v. State, 33 Ala.App. 614, 36 So.2d 117 (1948). DeFoor, Prosecutorial Misconduct in Closing Argument, 7 Nova L.J. 443, 469-70 (1982-83).
Sentencing is one of the areas barred from comment during closing arguments to the jury, for the jury is supposed to be concerned solely with the determination of guilt.
Matthews v. State, 54 Ala.App. 359, 308 So.2d 718, 721-22 (1975). If the defense counse...
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