Grady v. State

• Decision Date: 25 November 1980
• Docket Number: 6 Div. 306
• Citation: 391 So.2d 1095
• Parties: Anthony Joseph GRADY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1095

391 So.2d 1095

Anthony Joseph GRADY v. STATE.

6 Div. 306.

Court of Criminal Appeals of Alabama.

Nov. 25, 1980.

Roger C. Appell of Bryan & Appell, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.

TYSON, Judge.

Anthony Joseph Grady was indicted for first degree murder in the shooting death of William Bennett Alpert, Jr., and at trial was found guilty by the jury of murder in the second degree, with punishment being fixed at twenty years in the state penitentiary. From the trial court's judgment and sentence, Grady brings this appeal, contending that certain statements made by the prosecutor during closing argument were so prejudicial as to deny Grady a fair trial.

The evidence adduced by the State tended to show that, on the night of August 28, 1979, appellant and Alpert, the deceased, had been engaged in an argument, while both were standing on the corner of 11th Avenue and 16th Street in the City of Birmingham. Although there were apparently a number of persons present during the time of the events in question, only one witness, a Larry Mims, was produced to testify as to what he had seen. Mims stated that he knew both men, and that, although he was not really paying attention, he had noticed that appellant and Alpert were arguing about something and that at one point Alpert had walked down the street, only to return to resume the argument. Mims did not hear any of what was said with the exception of a reference by Alpert to " 'Because I know what you was in the jail house' " (R. 30). At that point, appellant and Alpert appeared ready to exchange blows, but did not commence fighting, instead only continuing to circle each other and argue. Witness Mims stated that he then heard a gunshot and saw Alpert fall to the sidewalk behind a car, after which appellant walked over and kicked Alpert, and left the scene. Mims testified further that he never saw either man produce a gun, although both had their hands in their pockets immediately prior to the shooting, and did not see the actual shooting, nor did he see appellant with a gun after the incident.

Other witnesses for the State included the investigating police officer, who testified that, upon his arrival, he had seen a number of people standing around Alpert's body, and had subsequently conducted a search of Alpert's person. The officer stated that he did not find a weapon, nor did he recover any money or drugs from the deceased's person. An employee of the Medical Examiner's Office testified that he had performed an autopsy on the deceased, and that the cause of death was a single gunshot wound. He further stated that he was not certain of whether a blood sample taken from the deceased had revealed the presence of alcohol or drugs.

Albert Wallace, a sergeant in the homicide division of the Birmingham Police Department, testified that, on September 14, 1979, he had conversed with appellant at the Birmingham City Jail, and had recorded certain statements made by appellant. Sergeant Wallace stated that he had not offered appellant any inducement or hope or promise of any type of reward, and had further read appellant his rights from a "Miranda card"; ¹ appellant had acknowledged his understanding of his rights, and had agreed to make the statement. At that point, Sergeant Wallace read the statement into evidence. In his statement, appellant acknowledged that he had known Alpert from a prior stint in the Jefferson County Jail, but that the first time he had seen him after that was on August 28, 1979. During their meeting on the street that night, Alpert and appellant had commenced talking in a somewhat jovial manner, but Alpert had suddenly become angry and had " 'run his hands in his pockets' " (R. 67), at which point appellant pulled a pistol out with which to hit deceased. The pistol "went off" and Alpert was struck and fell, but appellant admitted that he then kicked Alpert as he lay on the ground, and left the scene.

The statement reveals that, under further questioning, appellant elaborated on the events of the night of the shooting. According to appellant, Alpert had first approached him holding a beer, had shaken hands with appellant, and had then started talking "about the jail." Appellant stated that Alpert was taking pills in addition to the beer he was consuming, and that he continued to bait appellant about an incident in the County Jail in which, apparently, Alpert had raped, or had participated in the rape of appellant. Sergeant Wallace stated that appellant was very embarrassed about relating the details of this incident, and that appellant had expressed a fear of Alpert. The officer further testified that he believed a fair synopsis of the events of the night of August 28, 1979, to be that Alpert had continually teased appellant about the rape, had then become angry and put his hands in his pocket, and at that point appellant had shot him.

The State rested at this point, and appellant's motion to dismiss the indictment for the failure of the State to prove a prima facie case was overruled. The appellant then called several witnesses, the major one being Richard Lake. Lake admitted that he had been convicted on previous occasions of robbery and assaulting a police officer with a deadly weapon. He stated that he had been present at the scene of the shooting on August 28, 1979, and that he had observed the argument between appellant and Alpert, although he had not paid much attention to it. Lake testified that, at one point, he saw Alpert wander down the street and converse with another person, and that he thought something was exchanged between the two. Alpert then returned and resumed his argument with appellant, and they started struggling, at which point a gunshot was heard by Lake. Lake further testified that he did not see Alpert with any sort of weapon, and that he was not sure whether appellant had had a gun. Lake was also permitted to testify that he was informed that Alpert had been given some marijuana cigarettes by the individual with whom he had talked before resuming his argument with appellant.

Appellant rested his case without taking the stand.

I

The only grounds advanced by appellant as justifying a reversal of his conviction concern statements made by the prosecutor during his final argument, and which appellant argues were so prejudicial as to deny him a fair trial. Appellant thus first contends that the trial court should have granted his motion for a mistrial based upon the following comment by the prosecutor "Mr. NAIL: Now, he says we are going to lock him up and throw him away for life. If you read the papers you know how long people stay locked up

"MR. APPELL: Judge, I move for a mistrial on the basis of that statement.

"THE COURT: Ladies and gentlemen, disregard that. Disregard that, ladies and gentlemen. Can all of you disregard that?

"MR. APPELL: I don't think anyone possibly can. I ask for a mistrial.

"THE COURT: That is improper, disregard it. Proceed, Mr. Nail." (R. 121-122)

The essence of appellant's argument in this regard is that the statement of the prosecutor must be interpreted as a prejudicial reference to the possibility of appellant's parole, probation or some such other consideration, and the trial court's curative instructions were insufficient to eradicate the prejudicial effect of the comment. The State, on the other hand, asserts that the disputed statement was not an impermissible reference to parole, but merely a response to a previous argument by counsel for appellant, and that, in any event, any error was adequately cured by the court's instructions.

Initially, it seems quite clear that the statement, "If you read the papers you know how long people stay locked up ," though somewhat fragmentary (see McClary v. State, 291 Ala. 481, 282 So.2d 384 (1973)) and not directly referring to the possibility of parole or the like, does intimate strongly that any prison term meted out to appellant might be mitigated by some future event such as a parole or escape. Cf., Eaton v. State, 278 Ala. 224, 177 So.2d 444 (1965) (only inference of argument that " 'A man like this, if he was to get off with life imprisonment, he would be out and around' " is that accused would "either escape ... or be paroled"). The courts of this State have often held that possibilities of future paroles, probation, escape and the like are not proper considerations for a jury in determining the issues of an accused's guilt or innocence and his sentence, and thus arguments to this end are improper. In Murray v. State, Ala.Cr.App., 359 So.2d 1178 (1978), the rule and its rationale were stated thusly:

"A jury should perform its duty both as to the question of guilt and as to the extent of punishment, if within the province of the jury, irrespective of what someone else, including the trial court, appellate courts and all probation, parole and pardoning authorities might do in the future. That is not a matter for the jury to consider. A rule permitting any agency in the administration and execution of justice to knowingly attempt to ease its conscience or evade its responsibility in the assumption that another agency will rectify its failure to perform its separate responsibility would lead inevitably to subversion, irrespective of the good intentions that might at times prompt such action."

See, Eaton v. State, supra; Lee v. State, 265 Ala. 623, 93 So.2d 757 (1957); Cobb v. State, 248 Ala. 548, 28 So.2d 713 (1947); Matthews v. State, 54 Ala.App. 359, 308 So.2d 718 (1975). This proposition has been applied in several contexts, especially in those involving, in the past, the imposition of a prison term as opposed to the death penalty, or those instances where an accused seeks to establish his innocence by reason of insanity, and a prosecutor thus seeks to sway the jury's decision in that regard by raising the spectre of an...