Ex parte Williams
| Decision Date | 14 September 1984 |
| Citation | 461 So.2d 852 |
| Parties | Ex Parte Danny Ray WILLIAMS. In re Danny Ray WILLIAMS v. STATE of Alabama. 82-1026. |
| Court | Alabama Supreme Court |
Orson L. Johnson, Birmingham, for petitioner.
Charles A. Graddick, Atty. Gen., and Edward Carnes and William D. Little, Asst. Attys. Gen., for respondent.
Danny Ray Williams was convicted in the Jefferson County Circuit Court of the capital charge of "[m]urder in the first degree when the killing was done for a pecuniary or other valuable consideration or pursuant to a contract for hire." Code 1975, § 13A-5-31(a)(7) (Repealed). 1 After the jury found defendant guilty, the trial court held a sentence determination hearing at which time the jury recommended the punishment be death. The trial judge held his own sentence determination hearing, agreed with the jury's recommendation, and set defendant's punishment at death. The Court of Criminal Appeals reviewed the issues raised by defendant and found no error. It also undertook a comparison of similar crimes throughout the state and the sentences imposed upon defendant's accomplices, as required by this Court's opinion in Beck v. State, 396 So.2d 645, 664 (Ala.1981), and upheld defendant's conviction and sentence of death.
We find, because the prosecutor made an impermissible comment on the defendant's failure to testify, that the defendant is entitled to a new trial.
During his closing argument, the deputy district attorney made the following statement to the jury:
(Emphasis added). Defendant contends that this statement was a comment by the prosecutor on his failure to testify and thus requires this Court to reverse his conviction.
The Court of Criminal Appeals decided that this statement was not an improper comment. That court stated the following for its reasons:
Williams v. State, 461 So.2d 834 (Ala.Crim.App.1983) (citations omitted).
We do not disagree with the rule stated by the Court of Criminal Appeals. A prosecutor has the latitude to comment on the fact that the State's evidence is uncontradicted or has not been denied. Beecher v. State, 294 Ala. 674, 682, 320 So.2d 727, 734 (1975). However, a prosecutor may not make comments that step over the line drawn by the right of a defendant not to testify at trial. Beecher, 294 Ala. at 682, 320 So.2d at 734. Comments made by a prosecutor on a defendant's failure to testify are of a highly prejudicial and harmful nature, and this Court must carefully guard against a violation of a defendant's constitutional right not to testify. Whitt v State, 370 So.2d 736, 739 (Ala.1979). In a case in which there has been a direct reference to a defendant's failure to testify and the trial court has not acted promptly to cure that comment, the conviction must be reversed. Whitt, 370 So.2d at 739. 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 be a virtual identification of the defendant as the person who did not become a witness. Ex parte Yarber, 375 So.2d 1231, 1234 (Ala.1979).
In this case, the Court of Criminal Appeals reasoned that because a third person had witnessed the confession given by the defendant, the prosecutor's comments were aimed solely at the fact that defendant had not produced any witnesses to rebut the State's testimony that no coercion had taken place. In the case of Street v. State, 266 Ala. 289, 96 So.2d 686 (1957), the prosecutor asked the question, "[H]as anyone taken the stand and denied that the defendant signed the statement?" The State had produced two witnesses who testified that the defendant's statement had been properly executed...
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