Ex parte Purser

• Decision Date: 17 July 1992
• Parties: Ex parte James Allen PURSER. (Re James Allen Purser v. State). 1910275.
• Court: Alabama Supreme Court

Page 301

607 So.2d 301

Ex parte James Allen PURSER (Re James Allen Purser v. State).

1910275.

Supreme Court of Alabama.

July 17, 1992.

Rehearing Denied Aug. 21, 1992.

James M. Kendrick, Birmingham, for petitioner.

James H. Evans, Atty. Gen., and Robin Blevins, Asst. Atty. Gen., for respondent.

PER CURIAM.

We granted James Allen Purser's petition for a writ of certiorari to determine whether the Court of Criminal Appeals erred in affirming Purser's conviction, 607 So.2d 298, despite the trial court's failure to grant Purser a mistrial after Purser objected to a comment made by the prosecutor during opening statements. Purser argues that the prosecutor's comment was a comment on whether Purser would testify and thus that it violated Ala.Code 1975, § 12-21-220.

Purser was convicted for the murder of Mark Pollard and the attempted murder of Karen Denise Purser, his estranged wife. During the prosecutor's opening statement, the following occurred:

"[PROSECUTOR]: It all hinges on Karen Purser. She's the only one out there at the Pine Bowl when it all happens, and she can tell you what happened. Well, excuse me. She's not the only one, other than Mark Pollard, who is no longer with us, and Allen Purser, who is on trial for killing Mark Pollard and trying to kill Karen.

"[DEFENSE COUNSEL]: I object, Your Honor.

"THE COURT: Overruled.

"[DEFENSE COUNSEL]: May we approach the bench?

"(Bench conference off the record.)

"THE COURT: All right. Go ahead."

The Court of Criminal Appeals held that because defense counsel made only a general objection to the comment, there was no reversible error presented. That court further stated that the trial court also offered curative instructions, which it said defense counsel "refused as a matter of strategy." The Court of Criminal Appeals also noted, however, that, at times, a general objection will suffice to preserve for review the issue of improper comment on a defendant's failure to testify.

Quoting from Lawrence v. State, 409 So.2d 987 (Ala.Crim.App.1982), the Court of Criminal Appeals stated:

" 'Specific objections or motions are generally necessary before the ruling of the trial judge is subject to review, unless the ground is so obvious that the trial court's failure to act constitutes prejudicial error. Ward v. State, 376 So.2d 1112 (Ala.Crim.App.1979), cert. denied, Ex parte Ward, 376 So.2d 1117 (Ala.1979); Slinker v. State, 344 So.2d 1264 (Ala.Crim.App.1977).' 409 So.2d at 989. (Emphasis added.)"

409 So.2d at 989. According to the Court of Criminal Appeals, the comments in this case "rise dangerously close to that level," and, it said, "[U]nder proper circumstances we would not hesitate to reverse for improper comments of this type by the prosecutor." The court proceeded to hold, however, that, "because the objection was general and not specific, and because the curative instruction was refused, we affirm the judgment of the trial court." Id. (emphasis in original).

We note initially that the fact that the comment occurred during opening statements, rather than during closing arguments, does not prevent the remark from being a comment on the defendant's failure to testify. The Court of Criminal Appeals properly quoted the following from an opinion by Judge Harris for that court:

"It does not matter that during the opening statement the accused has or has not taken the stand, his constitutional right to remain silent may still be violated. The argument that no harm can be ascertained from remarks indifferent to that right until closing arguments, after the accused has elected not to testify is ill conceived and ill thought out. Certainly, we would be remiss in our duty if we failed to recognize the danger of the district attorney, early in the proceedings, directly or indirectly focusing the jury's attention on what the accused will or will not testify to, or on what he previously has or has not admitted. In many instances, if this tactic were allowed, the prejudice to the accused would be even greater than if the comment were made after all the testimony had been taken. If permitted, the jury would be on their constant guard, anticipating the accused's 'chance to tell his story.' This form of prejudice to an accused's right to receive a fair trial will not be sanctioned or tolerated by this court. An accused's right to remain silent is inviolable at every stage in the proceedings and must be afforded due protection."

Collins v. State, 385 So.2d 993, 1001 (Ala.Cr.App.1979), reversed on other grounds, 385 So.2d 1005 (Ala.1980).

After defense counsel objected to the prosecutor's comment during opening statements, the court overruled the objection, and then defense counsel asked to approach the bench. The bench conference was off the record; however, the record shows that, during a recess after the testimony of the state's first two witnesses, the following occurred:

"THE COURT: All right. Gentlemen, anything else?

"[DEFENSE COUNSEL]: As the Court will remember, His Honor gave me an opportunity to place something on the record timely pursuant to my objection in [the prosecutor's] opening remarks.

"Your Honor, in his opening remarks [the prosecutor] stated that there were only--you know, he started talking about Mark Pollard and Karen Purser being the only persons that knew what really happened out there. But he went on to mention 'and Allen Purser,' and he mentioned the defendant by name, Your Honor, and I objected at that time. The Court allowed [the prosecutor] to continue.

"Your Honor, there [is] a wealth of cases that say to mention or to reflect in any way, either directly or indirectly, on the defendant's right to testify or not to testify as he sees fit [is] reversible error.

"I believe that that was an indirect, if not direct--I believe it was a direct but certainly an indirect comment on this defendant's testimony, giving the clear impression to this jury from the very get-go of this case, Your Honor, that one of the only people out there that could tell us what happened was Allen Purser. And if he does not take the stand, that is going to irreparably prejudice Mr. Purser. That damage cannot be overcome by any curative instructions, and I respectfully ask for a mistrial and renew my objection.

"THE COURT: [Prosecutor], do you wish to respond?"

"[PROSECUTOR]: No, sir."

"THE COURT: It's my understanding that assuming that that was an indirect, for the purpose of your argument, that that was an indirect, and which the Court considers a rather obscure unintentional reference to the defendant testifying, that you do not wish me to give any curative instructions at all?"

"[DEFENSE COUNSEL]: Well, Your Honor, if the Court gives curative instructions, which is certainly the Court's option, in my opinion, Your Honor, that is going to worsen it. But I would certainly ask the Court to give curative instructions but I would let the Court know that when you do so, Your Honor, I'm going to feel compelled--because I can't think of anything, Judge McCormick, that you could say that would undo that. And if you would like to try to give opportunity for curative instructions if you can think of something that I can't that will work, then I invite that. I ask for it, in fact, on behalf of the defendant, but, Your Honor, I don't see how you can do anything under those circumstances.

"And case law is very clear. Recently I had a case with Mr. Rumsey up in Talladega County, who did virtually the same thing, and the Court ruled in that case--"

"THE COURT: Well, I don't think you can compare this to Mr. Rumsey's statements by any means.

"The Court, for the record, based on what I heard in the opening statements, the State did not comment on the defendant's potential testimony in any respect, that at the time the motion was made I would have been glad to give any curative instructions. However, I don't think that it reached that point where it was necessary, and I think [the prosecutor] stated an obvious thing, that there was only--he expected the evidence to show there were only three people there at the scene at the time, including the defendant.

"I deny your motion for a mistrial. Anything else?

"[THE PROSECUTOR]: No, sir.

"[DEFENSE COUNSEL]: No, Your Honor. An exception for the record."

The above portion of the record shows that defense counsel did specifically object during the bench conference held immediately after the prosecutor's comment. The court accepted the defense attorney's reiteration of the grounds for the objection, and the prosecutor did not object. The objection, as reconstructed above, was very specific and directly to the point now being argued.

During the conference quoted above, the defense attorney invited the trial court to give curative instructions, but stressed that he could not see how any curative instruction would overcome the prejudice already caused to Purser. The trial court responded by saying that the State had not commented on Purser's right not to testify, but instead had commented only about what the evidence would show--that there were only three people present at the scene of the alleged crime. The trial court went on to say that it would have been willing to give curative instructions at the time the objection was made, but that it never "reached [the] point where it was necessary" to do so.

The Alabama Constitution of 1901, article I, section 6, declares that, "in all criminal prosecutions, the accused has a right ... to testify in all cases, in his own behalf, if he elects so to do, ... and he shall not be...