Ex parte Brooks

• Decision Date: 25 April 1997
• Citation: 695 So.2d 184
• Parties: Ex parte Christopher Eugene BROOKS. (Re Christopher Eugene Brooks v. State). 1951964.
• Court: Alabama Supreme Court

Page 184

695 So.2d 184

Ex parte Christopher Eugene BROOKS (Re Christopher Eugene Brooks v. State).

1951964.

Supreme Court of Alabama.

April 25, 1997.

Virginia A. Vinson of Wilkinson & Vinson, Birmingham, for Petitioner.

Bill Pryor, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for Respondent.

SHORES, Justice.

Christopher Eugene Brooks was convicted of a murder made capital because the murder occurred during a rape, a robbery, and a burglary. Ala.Code 1975, § 13A-5-40(a). The trial judge accepted the jury's recommendation and sentenced the defendant to death. The Court of Criminal Appeals affirmed his conviction and sentence. Brooks v. State, 695 So.2d 176 (Ala.Crim.App.1996). This Court granted certiorari review. On this review, Brooks raises five issues. We affirm.

The facts of the case were stated in the opinion of the Court of Criminal Appeals:

"[Brooks] and the victim met while working as counselors at a camp in New York state. On December 31, 1992, the victim's body was found under the bed in the bedroom of her apartment in Birmingham, Alabama. She had been bludgeoned to death, and she was naked from the waist down.

"On the night before the victim's body was found, a co-worker of the victim's saw [Brooks] enter the restaurant where [the victim] worked and saw the victim talking to [Brooks]. Later that night, the victim spoke with another friend by telephone; that friend heard a male voice in the background and the victim told her friend that a friend was sleeping on her living room floor.

"A DNA analysis was performed on semen found in the victim's vagina. The results were compared with [Brooks's] blood. There was testimony that the odds of finding another person with the same DNA as [Brooks] and as found in the semen taken from the victim's body would be 1 in 69,349,000 among white persons and 1 in 310,100,000 among black persons. [Brooks is white.] A latent print of [Brooks's] palm was found on the victim's left ankle. A bloody fingerprint matching [Brooks's fingerprint] was found on a doorknob in the victim's bedroom, as were two other matching latent fingerprints....

"The evidence further showed that [Brooks] was seen driving the victim's car on the night of December 31 and that he told a witness that he 'had to fuck that girl to get that car.' The car was found in Columbus, Georgia, where [Brooks] resided. Inside the car was a package of photographs with the name 'Brooks, C.' on the package. When [Brooks] was arrested, he had in his possession the victim's car keys and her Shell Oil Company credit card, which he had used on several occasions. He had also cashed the victim's paycheck and one of her personal checks. Several items were missing from the victim's apartment and the evidence showed that [Brooks] had pawned these items at various pawnshops in Columbus."

Brooks v. State, 695 So.2d at 178-79. The record also reflects that after searching Brooks's apartment, the police recovered the keys to the victim's automobile; pawn tickets; the victim's AT & T answering machine; and receipts from purchases that had been made with the victim's Shell Oil Company credit card.

The first issue is whether the prosecutor, in violation of the defendant's constitutional right to remain silent, improperly remarked upon the defendant's failure to testify. The following exchange occurred during the rebuttal portion of the prosecutor's closing argument:

"MR. BROWN: In that connection I ask Mr. Boudreaux [defendant's counsel], the last thing I said before I sat down was to get up here and tell these people what's the reasonable hypothesis that's consistent with his innocence? That says anything other than he intentionally killed her while he raped and robbed her in her apartment. Have you heard it yet? Of course not.

"MR. BOUDREAUX: Your Honor, I am going to object. I don't like to object during Mr. Brown's closing, but as the Court has already instructed the jury, there's absolutely no burden on myself in the case whatsoever. And I ask that he be admonished and the jury curatively charged.

"THE COURT: Well, of course, there's no burden of proof on Mr. Brooks, as you well know. Sometimes there are spirited remarks by the lawyers and there's nothing wrong with zeal and enthusiasm. As you well know, statements of counsel is [sic] not evidence. Shall we proceed?

"MR. BROWN: Well, have you heard one word in this courtroom since Tuesday morning, one word in this courtroom since Tuesday morning, that causes you to believe there's a reasonable hypothesis of innocence, that is anything except compelling of his guilt from this evidence proposed to you by Mr. Boudreaux in argument or otherwise?"

Following this statement, defense counsel again objected and asked to be heard in chambers at the conclusion of the trial court's charge to the jury. In chambers, defense counsel moved for a mistrial, arguing that the prosecutor had improperly commented upon the defendant's failure to testify. The trial court denied the motion, finding that the comment had been directed toward defense counsel's argument that there existed a reasonable hypothesis of the defendant's innocence; the court stated:

"I did not regard it as [a comment on the defendant's silence] in any way, shape or form. We knew the circumstantial evidence charge was coming, you made much of it, as you should have, and I think he just responded, that's how I saw it.... You asked me to admonish him. I did not admonish him because I didn't think it was required."

The Court of Criminal Appeals, affirming the conviction, held that the comment had not been directed toward the defendant's silence, but that the comment was a "reply in kind" to defense counsel's argument that the circumstantial nature of the State's evidence created a reasonable hypothesis suggesting the defendant's innocence, and that the State had not disproved that hypothesis. We agree.

In all criminal prosecutions, the accused shall not be compelled to give evidence against himself. Alabama Constitution, Art. I, § 6.

"On the trial of all indictments, complaints or other criminal proceedings, the person on trial shall, at his own request, but not otherwise, be a competent witness, and his failure to make such a request shall not create any presumption against him nor be the subject of comment by counsel. If the district attorney makes any comment concerning the defendant's failure to testify, a new trial must be granted on motion filed within 30 days from entry of the judgment."

Ala.Code 1975, § 12-21-220; see also Ex parte Wilson, 571 So.2d 1251, 1261 (Ala.1990); Ex parte Yarber, 375 So.2d 1231, 1233 (Ala.1979); Whitt v. State, 370 So.2d 736, 738-39 (Ala.1979).

Comments by a prosecutor on a defendant's failure to testify are highly prejudicial and harmful, and courts must carefully guard against a violation of a defendant's constitutional right not to testify. Whitt, supra, at 739; Ex parte Williams, 461 So.2d 852, 853 (Ala.1984); see Ex parte Purser, 607 So.2d 301 (Ala.1992). This Court has held that comments by a prosecutor that a jury may possibly take as a reference to the defendant's failure to testify violate Art. I, § 6, of the Alabama Constitution of 1901. Ex parte Land, 678 So.2d 224 (Ala.), cert. denied, --- U.S. ----, 117 S.Ct. 308, 136 L.Ed.2d 224 (1996); Ex parte McWilliams, 640 So.2d 1015 (Ala.1993); Ex parte Wilson, supra; Ex parte Tucker, 454 So.2d 552 (Ala.1984); Beecher v. State, 294 Ala. 674, 320 So.2d 727 (1975). Additionally, the Fifth and Fourteenth Amendments of the United States Constitution may be violated if the prosecutor comments upon the accused's silence. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Ex parte Land, supra; Ex parte Wilson, supra. Under federal law, a comment is improper if it was " ' "manifestly intended or was of such a character that a jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." ' " United States v. Herring, 955 F.2d 703, 709 (11th Cir.), cert. denied, 506 U.S. 927, 113 S.Ct. 353, 121 L.Ed.2d 267 (1992) (citations omitted); Marsden v. Moore, 847 F.2d 1536, 1547 (11th Cir.), cert. denied, 488 U.S. 983, 109 S.Ct. 534, 102 L.Ed.2d 566 (1988); United States v. Betancourt, 734 F.2d 750, 758 (11th Cir.), cert. denied, 469 U.S. 1021, 105 S.Ct. 440, 83 L.Ed.2d 365 (1984). The federal courts characterize comments as either direct or indirect, and, in either case, hold that an improper comment may not always mandate reversal. ¹

Consistent with this reasoning, Alabama law distinguishes direct comments from indirect comments and establishes that a direct comment on the defendant's failure to testify mandates the reversal of the defendant's conviction, if the trial court failed to promptly cure that comment. Whitt v. State, supra; Ex parte Yarber, supra; Ex parte Williams, supra; Ex parte Wilson, supra. On the other hand, "covert," or indirect, comments are construed against the defendant, based upon the literal construction of Ala.Code 1975, § 12-21-220, which created the "virtual identification doctrine." Ex parte Yarber, 375 So.2d at 1234. Thus, in a case in which there has been only an indirect reference to a defendant's failure to testify, in order for the comment to constitute reversible error, there must have been a virtual identification of the defendant as the person who did not become a witness. Ex parte Yarber, 375 So.2d at 1234; Ex parte Williams, supra; Ex parte Wilson, supra; Ex parte Purser, supra. A virtual identification will not exist where the prosecutor's comments were directed toward the fact that the State's evidence was uncontradicted, or had not been denied. See Beecher v. State, 294 Ala. 674, 682, 320 So.2d 727, 734 (1975); Ex parte Williams, supra; Ex parte Purser, supra. Yet, in such circumstances, it becomes important to know whether the defendant alone could have provided the missing evidence. ²

A challenged comment of a...