Ex parte Clark

• Decision Date: 15 May 1998
• Citation: 728 So.2d 1126
• Parties: Ex parte Andrew Bert CLARK. (Re Andrew Bert Clark v. State).
• Court: Alabama Supreme Court

728 So.2d 1126

Ex parte Andrew Bert CLARK.

(Re Andrew Bert Clark v. State).

1951368.

Supreme Court of Alabama.

May 15, 1998.

Charles D. Decker, Dothan, for petitioner.

Bill Pryor, atty. gen., and Michael B. Billingsley, asst. atty. gen., for respondent.

COOK, Justice.

We granted Andrew Bert Clark's petition for the writ of certiorari to review his capital murder conviction and his sentence of death by electrocution.

Facts

Clark was convicted of murder made capital pursuant to § 13A-5-40(2), Ala.Code 1975, because the murder occurred during the commission of a first degree robbery. Following a sentencing hearing, the jury, by a 9 to 3 vote, recommended that Clark be sentenced to life imprisonment without parole. The trial judge, pursuant to the authority given him by § 13A-5-47(e), overrode the jury's recommendation of life without parole and sentenced Clark to death by electrocution. The Court of Criminal Appeals affirmed Clark's conviction and sentence, and, in its opinion, set forth the following facts:

"The state's evidence tended to show that on April 20, 1994, Clark led officers to a field, where they found a shallow grave containing the body of Tom Posey. Dr. Alfredo Paredes, forensic pathologist, testified that he was present when the body was exhumed and that he performed the autopsy. He testified that the body was in fairly good condition because it had been buried in a shaded wet area. The victim had been shot six times with a .22 caliber gun: three shots to the head and three shots to the back. It was Dr. Paredes' opinion that Posey died as a result of the three gunshots to the head, one to the right side of the head, one to the back of the head, and one above the left eye. Clark also took police to a culvert along County Road 87 behind the Dothan Airport, where they found a Ruger .22 caliber semi-automatic rifle.

"The victim's father testified that he last saw Tom Posey on March 17 or March 18, 1994. The victim's father also testified that at the time of Posey's disappearance Clark was living with the victim.

"Clark was apprehended in Bozeman, Montana, in April 1994, for violating a Henry County, Alabama, district judge's release order on an earlier unrelated offense. Officer Lynnwood Stokes of the Headland Police Department went to Montana to escort Clark back to Henry County. When Officer Stokes arrived at the police station in Montana he saw a 1992 Honda Civic automobile with a Henry County license tag parked outside the police station. The car was registered to Tom Posey. A search warrant was obtained to search the car. As a result of the search, numerous credit cards belonging to the victim were recovered as well as the victim's automatic teller machine (ATM) card. Police also discovered military discharge papers belonging to Clark. An investigation by Stokes revealed that the credit cards had been used in New York to purchase a videocassette recorder (VCR) camera and had been used at numerous hotels around the country. Clark had made a videotape of his travels from March to April, which showed him in New York City, Niagara Falls, Ontario, Salt Lake City, and Yellowstone National Park. Stokes also testified that Clark had purchased a Ruger .22 caliber semi-automatic rifle in Dothan, Alabama, on March 18, 1994.

"Officer Stokes testified that when he was escorting Clark to Alabama, Clark inquired as to what he would be charged with when he returned. Stokes told him that he was charged with violating a release order. (The victim had signed the papers authorizing Clark's release on bond.) Clark then inquired about Posey's disappearance and asked if he thought something bad had happened to him. Clark then asked Stokes about the possible punishment for murder and whether he knew of anyone in the Bible who had been forgiven for committing murder.

"When Stokes and Clark arrived at the Headland Police Department, Clark requested to speak with Stokes. Clark then told Stokes that `things' had been bothering him and that he would give the officers `what they wanted.' Clark then got up from his chair and said that he could not sleep until he had led them to Posey's body. He then led them to where Posey was buried. Clark also showed officers where he had shot Posey. Shell casings were found at the spot where Clark had said he had shot Posey.

"Stokes testified that Clark described to him the circumstances surrounding Posey's murder. Clark told Stokes that on March 19, at around 11:00 a.m., he and the victim were parked off Burdeshaw road.... Posey was standing and facing away from the car, and Clark went to the trunk and retrieved a Ruger .22 caliber rifle and shot Posey in the back of the head. Posey then fell to the ground. Clark kept firing until Posey's body was motionless. Clark then approached the body and pointed the gun to the back of Posey's head and fired one more bullet into Posey's head near his ear.

"Dwight Gamble, vice-president and security officer for the Headland National Bank, testified that the victim, Tom Posey, had a checking account and ATM card with Headland National Bank. He testified that transactions made at the ATM are videotaped. He said that from March 19, 1994, through March 23, 1994, several transactions on Posey's account were made at the ATM and that they were not made by Posey as evidenced by the videotape of the transactions. The first transaction, on March 19, was an inquiry as to the checking account balance. On this date, three attempts were made to withdraw money from Posey's account. The first unsuccessful attempt requested a withdrawal of $580, which was over the $500 daily withdrawal limit; the second request was for $400, which was over the $300 per transaction withdrawal limit; and the third attempt resulted in a withdrawal of $300. Another transaction at the ATM was made on March 23. At this time a balance inquiry was made and $300 was withdrawn from Posey's account. The videotape of the transactions was played to the jury.

"Clark put on witnesses who testified that he had access to the victim's Honda car and that he customarily drove it to deliver pizzas. Clark's sister and mother also testified that he had been abused by his father and that his strict Mormon upbringing had had a drastic psychological effect on him."

Clark v. State, 728 So.2d 1117 (Ala.Cr.App. 1996).

In affirming Clark's conviction and sentence, the Court of Criminal Appeals addressed the following issues: whether the trial judge erred in denying Clark's motion for recusal; whether the trial court erred in refusing to strike a prospective juror for cause; whether the trial court erred in allowing photographs of Posey's body into evidence; whether the trial judge erred in failing to instruct the jury on the lesser included offense of manslaughter; and whether there was sufficient evidence to convict Clark of capital murder. The Court of Criminal Appeals adequately addressed these issues in its opinion and we, therefore, adopt the reasoning and holding of the Court of Criminal Appeals on those issues as part of the opinion of this Court. We will address the following additional issues raised by Clark in this Court.

I.

Clark contends that the prosecutor impermissibly directly and indirectly referred to the fact that Clark did not testify at the trial. Clark argues that during closing arguments the prosecutor made a direct reference to his failure to testify, when the prosecutor told the jury:

"He [defense counsel] says the State wants you to believe some of Posey's—of Clark's statement about Posey, but not all of it. No, no, I do not. He didn't tell the entire truth in his statement. There was no testimony, it was a statement we offered. Okay?"

R.T. at 917. Clark argues that this comment directly referred to his failure to testify at trial and, consequently, was reversible error. The record indicates that the comment made by the prosecutor during closing arguments was made after the following comment made by the defense:

"Ladies and gentlemen, in summation, you have a situation and you have a tape recording of the only surviving witness who was there giving you direct testimony of exactly what happened out there, Andy Clark's statements."

R.T. at 912-13. The defendant did not object at trial to the prosecutor's statement during closing argument. This Court has written:

"We note that defense counsel's failure to object to these comments does not prevent our review. However, the failure to object should be weighed as part of our evaluation of the comments, because the failure to object may suggest that the defense did not consider the comments to be particularly harmful. Ex parte Kennedy, 472 So.2d 1106 (Ala.), cert. denied, 474 U.S. 975, 106 S.Ct. 340, 88 L.Ed.2d 325 (1985)."

Ex parte Payne, 683 So.2d 458, 465 (Ala. 1996). In Ex parte Brooks, 695 So.2d 184 (Ala. 1997), this Court wrote:

"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.1

...