Gillespie v. State

• Decision Date: 25 August 1989
• Docket Number: 3 Div. 24
• Parties: William W. GILLESPIE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 640

549 So.2d 640

William W. GILLESPIE v. STATE.

3 Div. 24.

Court of Criminal Appeals of Alabama.

Aug. 25, 1989.

Charles M. Law, Montgomery, for appellant.

Don Siegelman, Atty. Gen., and Gilda B. Williams, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

William W. Gillespie was charged by separate indictments with four instances of first degree sexual abuse and one instance of first degree sodomy. The five cases, which involved three victims, were consolidated for trial and a jury found Gillespie guilty on three of the charges of first degree sexual abuse. The jury was deadlocked with regard to the remaining two charges (first degree sexual abuse and first degree sodomy) and the trial judge ultimately granted Gillespie's motion for judgment of acquittal on those two charges. Gillespie received a sentence of five years' imprisonment on each of the three charges on which he was convicted, those three sentences to run concurrently. His sentences were "split," with one year to be served in the penitentiary and four years to be served on probation. He was ordered to pay court costs and $250 to the Victim's Compensation Fund in each case.

The state's case-in-chief consisted primarily of the testimony of S.A. and B.P.--the two victims involved in the three charges of which Gillespie was convicted. Each testified that Gillespie reached inside her bathing suit and touched her private parts with his finger while she was swimming in his backyard pool. ¹ Parents of the victims also testified. This testimony, except as discussed in Part I below, was mainly concerned with either general events surrounding the swimming pool incidents or the fact that the children had complained to them of Gillespie's actions. The only evidence of the crimes was the testimony of the victims themselves. There was no other eyewitness testimony or corroborating medical testimony.

Gillespie testified in his own defense. He stated that in tossing children, both girls and boys, in his pool, he would pick them up by placing one hand on their shoulder and one hand between their legs. However, he unequivocally denied touching any of the victims in an inappropriate manner. Essentially, each case turned on whether the jury believed the victims or the defendant.

Gillespie raises only one issue on this appeal. He contends that he was denied a fair trial due to the misconduct of the prosecutor ² throughout the course of the trial. He asserts that the cumulative effect of this misconduct unfairly prejudiced the jury against him. We agree.

Although Gillespie alleges error due to a number of specific acts of the prosecutor, we need address only two: (1) the repeated questions and innuendo implying that Gillespie had committed other acts of sexual misconduct, and (2) the prejudicial questions propounded to Gillespie during cross-examination concerning the Klu Klux Klan.

In Sprinkle v. State, 368 So.2d 554 (Ala.Cr.App.1978), cert. quashed, 368 So.2d 565 (Ala.1979), this court set forth in detail the duties and responsibilities of the prosecuting attorney:

"The primary duties of the office of the District Attorney are to see that justice is done, Adams v. State, 280 Ala. 678, 198 So.2d 255 (1967), and to see that the state's case [is] properly presented to the court and jury as made by the evidence. Wilbanks v. State, 28 Ala.App. 456, 458, 185 So. 770 (1939); Williams v. State, 34 Ala.App. 253, 39 So.2d 29 (1949).

" 'The office of solicitor is of the highest importance; he is the representative of the state, and as a result of the important functions devolving upon him as such officer necessarily holds and wields great power and influence, and as a consequence erroneous insistences and prejudicial conduct upon his part tend to unduly prejudice and bias the jury against the defendant; this, without reference to the instructions of the court. The test in matters of this kind is not necessarily that the conduct of the solicitor complained of did have such effect upon the jury, but might it have done so?' Taylor v. State, 22 Ala.App. 428, 429, 116 So. 415, 416 (1928); Jones v. State, 23 Ala.App. 493, 495, 127 So. 681 (1930); Bynum v. State, 35 Ala.App. 297, 298, 47 So.2d 245, cert. denied, 254 Ala. 22, 47 So.2d 247 (1950).

"In the performance of his duties the District Attorney should treat the defendant fairly and the witnesses courteously, both in examination and in argument. Campbell v. State, 19 Ala.App. 349, 352, 97 So. 783 (1923). The prosecuting attorney has a duty to be fair and impartial in presenting the evidence and in examining or cross examining witnesses. Melton v. State, 21 Ala.App. 419, 109 So. 114 (1926). While he may not take unfair advantage of a defendant, he is under a duty to prosecute with earnestness and vigor. Arant v. State, 232 Ala. 275, 167 So. 540 (1936)."

Sprinkle, 368 So.2d at 560. In Wysinger v. State, 448 So.2d 435, 438 (Ala.Cr.App.1983), we noted:

"In reviewing allegedly improper prosecutorial comments, conduct, and questioning of witnesses '[o]ur task is to consider their impact in the context of this particular trial,' and 'not view the group of allegedly improper questions and comments in the abstract.' United States v. Davis, 546 F.2d 583, 593 (5th Cir.1977). '[W]e must assess the impact of the questions in the context of the entire trial.' United States v. Bosby, 675 F.2d 1174, 1185 (11th Cir.1982)."

Wysinger, 448 So.2d at 438 (emphasis added). With these principles in mind, we turn now to a discussion of the alleged instances of prosecutorial misconduct.

I

R.G., Gillespie's daughter and the mother of the victim involved in the cases on which Gillespie was ultimately acquitted, was called as a witness by the state. During direct examination, she responded affirmatively to the prosecutor's question: "Did you also make certain reports about your father?" (Emphasis added.)

During the cross-examination of Gillespie's wife, who testified as a defense witness, the following exchange occurred:

"Q. [By the prosecutor] And didn't you testify that the custom had evolved that sometimes the [victims S.A. and B.P.] came and swam without their parents?

"A. No, I said the children often were at the house without their parents. [The mother of S.A. and stepmother of B.P.], in fact, had left them in [Gillespie's] custody a number of times to babysit them.

"Q. That was before she knew about him, wasn't it?

"A. I don't know what you mean by that, sir. I object to that question.

"By Mr. Law [Defense Counsel]: Your Honor, I object to that question and ask the court to instruct the jury to disregard it.

"By the Court: All right, he has asked the question, go ahead, next question.

"By [the prosecutor]:

"Q. Now, Mrs. Gillespie, you seemed righteously indignant when I asked you that question; you have heard allegations about your husband of a similar nature before, haven't you?

"By Mr. Law: Judge, I object.

"By the Court: Sustained.

"By Mr. Law: I would like to make a motion outside the presence of the jury." (Emphasis added.)

There followed an in-chambers discussion during which the prosecutor asserted that "We believe we can show that the defendant was charged with incest with his own daughter in a church court, and she [his wife] was aware of those charges. The result of that is, he was excommunicated from the Church of Jesus Christ of Latter Day Saints." The trial judge responded and stated in effect that at "a previous hearing on this excommunication business" the evidence showed that the defendant was excommunicated not for incest but "because of an abortion that his daughter had" and that the church records of that excommunication had been destroyed. The judge indicated that he had previously ruled that "if the records were not available, that [the prosecutor] would not be allowed to get into that." The trial judge instructed the prosecutor not to ask any witness "about any prior acts or religious questions, until we get the witnesses * * * in from the church, a church official."

The trial court sustained Gillespie's objection to the questions which occasioned the in-chambers discussion, stating "and I'll explain it to the jury." Gillespie then made a motion for mistrial on the basis that the prejudicial effect of the prosecutor's questions implying that he had committed other acts of sexual misconduct could not be eradicated. The trial judge denied this motion, saying "I can take care of it."

Notwithstanding these instructions, shortly after resuming cross-examination of Mrs. Gillespie, the prosecutor asked:

"Q. Okay, and are you aware that your daughter [R.G.] testified she herself had filed allegations against your husband?

"A. No, I was not aware of that.

"Q. Are you aware that she later changed those allegations--?

"By Mr. Law [Defense Counsel]: Judge--.

"By [the prosecutor]: Judge, this was testified to.

"By the Court: That's the little girl's mother? When did she make allegations?

"By [the prosecutor]: Judge, if we could go back to her testimony, the last couple of questions I asked her, related specifically to this.

"By Mr. Law: They related to [the child].

"By [the prosecutor]: [R.G.].

"By the Court: Talk about the little girl,--the allegations made by the little [girl] if I recall--first of all, I'll sustain that, I don't remember that evidence being in. It's for the jury to remember.

"By [the prosecutor]: May we look in the record?

"By the Court: I don't think it's necessary. It's for the jury to remember what the evidence was in the case. I have already instructed you on that, and I'll instruct you again. I'll caution you, that if you go into anything, if you are going to make statements as opposed to asking questions, make sure it's the evidence in this case ...." (Emphasis added.)

The prosecutor took issue with the trial judge's ruling and stated, "I think it's critical to our case." This entire exchange took place in the hearing of the jury.

On direct examination, Mrs. Gillespie had stated that she...