Ex parte Waldrop

• Decision Date: 28 September 1984
• Citation: 459 So.2d 959
• Parties: Ex parte: Billy Wayne WALDROP. (Re Billy Wayne Waldrop v. State of Alabama). 83-701.
• Court: Alabama Supreme Court

Page 959

459 So.2d 959

Ex parte: Billy Wayne WALDROP (Re Billy Wayne Waldrop v. State of Alabama).

83-701.

Supreme Court of Alabama.

Sept. 28, 1984.

Rehearing Denied Nov. 9, 1984.

Dennis N. Balske, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appellee.

FAULKNER, Justice.

Petitioner Billy Wayne Waldrop was convicted and sentenced to death for robbery-murder in violation of § 13A-5-40, Code of Alabama (1975). The facts are set out in Appendix "A" to the opinion of the Court of Criminal Appeals, Waldrop v. State, 459 So.2d 953 (Ala.Crim.App.1983). Stated briefly, Waldrop, along with two other men, Eugene Singleton and Henry Mayes, conspired to rob and murder, if necessary, the victim, Thurman Macon Donahoo. On the night of June 2, 1982, the three men broke into Donahoo's home and robbed him of a five-carat diamond ring, along with other items of value. Before leaving the scene of the crime, Waldrop and his accomplices killed the victim and set fire to the victim's house. The house was completely destroyed by the fire, and Donahoo was burned almost beyond recognition.

Waldrop was convicted of capital murder and sentenced to death. The Court of Criminal Appeals reviewed the conviction, and, after independently determining that the death sentence was appropriate, affirmed Waldrop's conviction and sentence. We granted the petition for writ of certiorari pursuant to Rule 39(c), A.R.A.P. After careful review of that opinion, the record, and the briefs of the respective parties, we affirm the decision of the Court of Criminal Appeals.

In this Court, Waldrop raises additional issues not addressed by the Court of Criminal Appeals. Waldrop claims, inter alia, that he was denied a fundamentally fair trial because the prosecutor injected improper and prejudicial comments into the closing argument during both the guilt and the sentencing phases of trial.

In all death penalty cases, this Court pursuant to Rule 39(k), A.R.A.P., "may notice any plain error or defect in the proceeding under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial rights of the petitioner." In this case, Waldrop's failure to raise a claim of error regarding the prosecutor's arguments at trial, "while weighing against Defendant as to any possible claim of prejudice, serves as no impediment to our scope of review pursuant to the 'plain error' mandate in death penalty cases." Bush v. State, 431 So.2d 563 (Ala.), cert. denied, 464 U.S. 865, 104 S.Ct. 200, 78 L.Ed.2d 175 (1983).

Accordingly, having carefully scrutinized the entire proceeding, both at the guilt and sentencing phases, we conclude that the prosecution did not exceed the permissible bounds of argument, and that none of Waldrop's substantive rights were violated.

-A-

Waldrop initially claims that the prosecutor improperly vouched for the credibility of his law enforcement witnesses by arguing:

"... Two, is the police officers. And I want to tell you this. I am proud. And this community ought to be proud, to be associated with officers like Dennis Surrett, Pee Wee Hurst and Jerry Studdard, because they have done one heck of a job. And Mr. Fannin talked to you about it, for just a second, about that the State has got all these people. They have got experts here and experts there. And here they are seated at the table. You know why we have to have them. We have got to run this guy over four states, picking up witnesses here and there. I am going to tell you, they have done as good a job on this as has ever been done. They have done an outstanding job and this community ought to be proud of them."

This portion of the argument objected to was made during the guilt phase of trial, in reference to the prosecutor's explanation of the four links in the chain of justice: the witnesses; the police officers; the D.A.'s office; and the jury.

Waldrop claims that again in the sentencing phase the prosecutor improperly encouraged the jury to rely on him, as well as on his trusted police investigators. The prosecutor argued: "Well, I'll just tell you this. I have done my job, Mr. King [the Assistant District Attorney] has done his job and the police officers have done their jobs...."

Waldrop asserts that these arguments were highly improper in that they bolstered the credibility of the prosecution's witnesses, and also injected the personal opinion of the District Attorney into the fray.

Contrary to Waldrop's contentions, however, we do not agree that the State deliberately attempted to bolster the witnesses by vouching for their credibility. In Brown v. State, 393 So.2d 513 (Ala.Crim.App.1981), the Court of Criminal Appeals observed:

"Attorneys should be careful in their arguments to the jury to refrain from an injection of their own personal experience or knowledge in support of their argument, as distinguished from what they deem to be reasonable inferences to be drawn from the evidence."

In Brown, the prosecutor, commenting on the defendant's claim that his confession was not voluntary, argued: "[H]e gets up here now when he is on trial for this crime and testifies that he didn't know what he was doing. That is not anything unusual. I see it all the time." In comparison, in the instant case the prosecutor was merely commenting on the investigation conducted by the police officers. That they did a good job in their investigation is a reasonable inference which was properly drawn from the evidence presented at trial. Moreover, the prosecutor was not injecting his own knowledge or experience into the argument, nor was he indicating a personal belief in the veracity of the witnesses' statements. "During closing argument, the prosecutor as well as defense counsel has a right to present his impressions from the evidence, if reasonable, and may argue every legitimate inference." Milton v. State, 417 So.2d 620 (Ala.Crim.App.1982).

-B-

Waldrop next claims error in that the prosecutor argued a patriotic pitch directed at motivating the jurors to impose the death penalty in order to protect society. The first statement complained of occurred during the guilt phase of the trial, as follows:

"[B]ut when we talk about the United States, we talk about something we came over here for. And we fought a war for. To be safe in our homes. And that is what we are getting down to now, ladies and gentlemen. A man [the victim] is 72 years old. And we are getting to where we have got to lock our doors to live in our houses, from the Billy Wayne Waldrops of the world."

In the same vein, Waldrop asserts that during the sentencing hearing, the prosecution improperly encouraged the jury to join the war against crime, Hance v. Zant, 696 F.2d 940 (11th Cir.1983), when he argued as follows:

"Well, I'll just tell you this. I have done my job, Mr. King has done his job and the police officers have done their jobs, and the witnesses have done their job. They and you. It is up to you as to what kind of county we are going to have. It is up to you whether you are going to let a man like that come down here and rob and burglarize and kill the citizens of this county.

"And they talked about capital punishment this, and a...