Ex parte Tucker
| Decision Date | 09 March 1984 |
| Citation | 454 So.2d 552 |
| Parties | Ex parte LaDonna Lynn Huddleston TUCKER. (Re LaDonna Lynn Huddleston Tucker v. State of Alabama). 82-758. |
| Court | Alabama Supreme Court |
Maury Smith, Sterling G. Culpepper, and Edward B. Parker, II of Balch, Bingham, Baker, Ward, Smith, Bowman & Thagard, Montgomery, for petitioner.
Charles A. Graddick, Atty. Gen. and William D. Little, Asst. Atty. Gen., for respondent.
On petition of LaDonna Lynn Huddleston Tucker, we granted the writ of certiorari in order to review the decision of the Court of Criminal Appeals affirming petitioner's conviction for murder and sentence to life in the penitentiary. We reverse.
The first issue which we address is whether the trial court erred in denying Tucker's motion for a mistrial based on the alleged impropriety of certain comments made by the prosecutor. Tucker contends the disputed comments amount to an impermissible reference to her failure to testify.
During the direct examination of a defense witness, the record shows, the following transpired:
Where there is a direct reference to defendant's failure to testify, it constitutes ineradicable prejudicial error requiring reversal. Section 6, Const. of Ala. of 1901, is violated. Ex parte Beecher, 294 Ala. 674 at 682, 320 So.2d 727 at 735 (1975). See Ex parte Dobard, 435 So.2d 1351 (Ala.1983).
Clearly, the prosecutor's comments in the case at bar raise the possibility that the jury could have understood them to be a reference to the defendant's failure to testify. In our view, these comments most probably made an indelible impression upon the jury, alerting the jury to the defendant's opportunity to refute the State's case. After such a comment, a defendant must either testify, or admit guilt by silence.
The State argues further that any prejudicial impact was eradicated by the trial court's instructions to disregard the comments. On this point, we consider the comments to be so prejudicial as to be ineradicable. Ex parte Beecher, 294 Ala. 674, 320 So.2d 727 (1975).
On a second point, we note that during the qualification of the venire, it was discovered that a potential venireman, Jerry Bradshaw, was the brother of a witness for the State. Counsel for petitioner challenged the venireman...
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