Dossey v. State, 4 Div. 552
| Decision Date | 12 February 1986 |
| Docket Number | 4 Div. 552 |
| Citation | 489 So.2d 662 |
| Parties | Roy Loid DOSSEY v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Michael D. Blalock, Birmingham, for appellant.
Charles A. Graddick, Atty. Gen. and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
On January 1, 1984, Mary Dossey was shot while deer hunting with her husband. She died at the hospital that same day. Her husband, Roy Loid Dossey, was indicted and convicted for her murder. He was sentenced to ninety-nine years' imprisonment and ordered to pay $1,000 to the Criminal Victims' Compensation Fund.
Six photographs of the area in the woods where the defendant found his wounded wife were properly admitted into evidence. Alabama Department of Public Safety Investigator C.W. Gibson testified that he took these photographs at the direction of Deputy Sheriff Rickie Walker. Gibson identified each photograph as "truly and accurately depict[ing] the scene as it existed at the time [he] took it." Defense counsel's objections to Gibson's testimony concerning the photographs were sustained because Gibson, in identifying the photographs, was testifying to hearsay information Deputy Walker had obtained from the defendant: e.g., "I took one [photograph] where the truck was at in this direction toward where he said, where Deputy Walker pointed out Mr. Dossey said Mary's shotgun was at, in this direction."
After the objections were sustained, the State recalled Deputy Walker to testify. Walker had previously testified that the defendant had showed him where Mrs. Dossey had been shot. The defendant led the Deputy to the scene and identified the area. On recall, the Deputy testified that Gibson took the photographs of the scene "for him" and identified each photograph as depicting what the defendant had indicated; i.e., "They are pictures of where Mr. Dossey advised me that he had his truck."
At trial, defense counsel's objections to the photographs were either general with no ground stated or were based on hearsay. On appeal, the defendant argues that the State did not establish that the photographs correctly depicted the scene at the time they were taken. Based upon this Court's review of the record as set forth above, we find this contention without merit. The photographs were properly admitted into evidence after a proper and sufficient predicate, even if objection sufficient to preserve this alleged error for appeal had been made.
It is argued that the prosecutor's comment on the defendant's failure to call his insurance agent as a witness constitutes reversible error.
At trial, in his opening statement, the prosecutor stated that the primary motive for the murder of Mrs. Dossey was over $300,000 in insurance, which the defendant had taken out within four months of her death. In reply, in his opening statement, defense counsel remarked: "And we will explain to you as best we can with the people available the purpose and the intent of the insurance and how that it came to be."
At trial, in his own defense, the defendant testified to the insurance he had covering his wife. At one point, he stated, And again, at another point, in answer to the prosecutor's question, the defendant stated: "I'm sure if you ask Mr. Mellish he will tell you what date it was taken out." The defendant also testified that he "didn't intend on her getting any insurance until Mr. Mellish asked about it."
In addition, the defendant testified to what Roy Conner, another insurance agent, had "always told us." At trial, no insurance agent was called as a witness by either the State or the defense.
In his closing argument to the jury, defense counsel stated:
Following this, in his closing argument to the jury, the prosecutor commented on the absence of the insurance agent as a witness:
The following then occurred:
A part of the defendant's motion for new trial was the affidavit of Jim Mellish, an insurance agent. In the affidavit, Mellish states that he "was subpoenaed by both the State of Alabama and the defense attorney, Gareth Lindsey, but did not testify even though my testimony would have clarified all the issues regarding Roy and Mary Dossey's life insurance benefits."
"It is the settled law in this State that no unfavorable inference can be drawn, and no unfavorable argument to a jury made, by counsel against a party to a cause because of the failure to call a witness to testify, when that witness is accessible to both parties, and can be introduced by and examined by either party." Kissic v. State, 266 Ala. 71, 76, 94 So.2d 202, 207 (1957). Although the prosecutor's remark apparently violates this "settled law," the comment was justified as a reply in kind. "[A]rgument of counsel that, in fact, is a reply in kind to an earlier argument of opposing counsel would not be subject to objection, even though such argument otherwise would be impermissible." Ex parte Rutledge, 482 So.2d 1262 (Ala.1984) (emphasis in original).
The opening statement of defense counsel promising to explain "the purpose and intent of the insurance and how that it came to be," and the defendant's own statements from the witness stand that the insurance agent "can testify to that," coupled with his several remarks about what his insurance agents had told him, were "an invitation to the prosecution to comment on the defense theory." United States v. Broadhead, 413 F.2d 1351, 1363 (7th Cir.1969), cert. denied, 396 U.S. 1017, 90 S.Ct. 581, 24 L.Ed.2d 508 (1970). The prosecutor's remarks were not improper because they were occasioned by and in reply to the statements of both defense counsel and the defendant. See generally 23A C.J.S. Criminal Law § 1108 (1961).
"Counsel may comment on the failure of his adversary to produce evidence ... when the comment is pertinent to answer an argument made by opposing counsel." Jarrell v. State, 251 Ala. 50, 56, 36 So.2d 336, 341 (1948). The prosecutor has a right to comment on and answer statements made by defense counsel in argument to the jury. Dollar v. State, 26 Ala.App. 361, 159 So. 704 (1935); Moragne v. State, 16 Ala.App. 26, 28, 74 So. 862, 864, reversed on other grounds, 200 Ala. 689, 77 So. 322 (1917). Counsel should be afforded wide latitude in responding to assertions made by opposing counsel in previous argument. York v. State, 34 Ala.App. 188, 190, 39 So.2d 694, 696 (1948), cert. denied, 252 Ala. 158, 39 So.2d 697 (1949). "Wide latitude is given the solicitor in making reply to argument previously made by appellant's counsel." Moody v. State, 40 Ala.App. 373, 374, 113 So.2d 787, 788 (1959). "[W]ide latitude is given a district attorney in making reply in kind, ... and the propriety of argument of counsel is largely within the trial court's discretion." Jetton v. State, 435 So.2d 167, 171 (Ala.Cr.App.1983).
Considering the prosecutor's comments within the context of the entire trial and especially with regard to their responsiveness to the prior argument of defense counsel and the previous comments of the defendant, we find no error in the action of the trial court in overruling the defendant's objections.
The defendant argues that he was denied the effective assistance of counsel at trial because retained trial counsel, Gareth A. Lindsey, (1) took no photographs at the scene of the homicide and never went to the scene with the defendant; (2) did not talk to his witnesses until the day of trial and had the defendant subpoena his own witnesses; (3) did not move for a change of venue; (4) did not question the jury venire on voir dire about their knowledge of the exhumation of his child who had died in an unrelated drowning incident; and (5) did not make any attempt to talk to the defendant's insurance agent, Jim Mellish, did not subpoena the insurance policies and did not question prospective witnesses Lynn Stricklin, Julia Stricklin, and Darrell Williams about the case.
The motion for new trial did not raise the issue of the ineffective assistance of counsel as one of its grounds even though appellate counsel, who is different from trial counsel,...
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