Hereford v. State

• Decision Date: 18 September 1992
• Court: Alabama Court of Criminal Appeals
• Parties: Tracey Maurice HEREFORD v. STATE. CR 91-922.

Page 439

608 So.2d 439

Tracey Maurice HEREFORD v. STATE.

CR 91-922.

Court of Criminal Appeals of Alabama.

Sept. 18, 1992.

Rehearing Denied Nov. 13, 1992.

John Mark McDaniel, Huntsville, for appellant.

James H. Evans, Atty. Gen., and Robin Blevins, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

The appellant, Tracey Maurice Hereford, was convicted of arson in the second degree and was sentenced to 15 years' imprisonment.

I.

The prosecutor's comment in closing argument that he was "convinced of the degree of proof" does not constitute reversible error. Immediately after defense counsel's objection, the prosecutor stated that he "withdrew" the comment, and the trial court instructed the jury to the effect that it was the duty of the jury and not the attorneys to determine the sufficiency of the evidence. Carpenter v. State, 404 So.2d 89, 98 (Ala.Cr.App.1980), cert. quashed, 404 So.2d 100 (Ala.1981).

II.

The appellant's argument that the evidence is insufficient to support his conviction is without merit.

There was an apparent motive and the appellant was placed in close proximity to both the location and time of the arson. This constitutes sufficient circumstantial evidence of guilt under the principles collected in White v. State, 546 So.2d 1014, 1016-18 (Ala.Cr.App.1989). See Ex parte Davis, 548 So.2d 1041 (Ala.1989). Compare McCoy v. State, 397 So.2d 577 (Ala.Cr.App.), cert. denied, 397 So.2d 589 (Ala.1981).

III.

The appellant's conviction must be reversed because the prosecutor improperly commented on his right against self-incrimination.

The appellant was accused of burning a utility room attached to the residence of his neighbor, Kenneth Gaines. The State's evidence tended to indicate that the fire was started shortly after Gaines left his residence on July 15, 1991, after Gaines and the appellant had argued about a debt the appellant claimed Gaines owed him. Harold Hutchison, an investigator for the Huntsville Police Department, testified on direct examination that the appellant gave him an oral statement in which the appellant denied any knowledge of the fire and claimed that after Gaines left his residence the appellant "went to the beer store to buy some beer and then came back." R. 125. Investigator Hutchison testified that the appellant said that he went "by himself" to the beer store, R. 127, and that he never said where he went to buy the beer. R. 134. The appellant did not present any evidence on his behalf.

During the prosecutor's closing argument the following occurred:

"(The attorneys approached the bench and the following occurred out of the hearing of the jury:)

"MR. GARDNER [defense counsel]: Your Honor, the prosecutor's argument is a comment on his failure to testify in this case. The prosecutor has just argued to the jury that my client did not state where, when, and still has not stated where, when, or how, he went to buy beer or to get the items that he claimed in the statement, and the prosecutor has injected in here a comment, by doing so, on my client's failure to testify.

"MR. LAWLEY [prosecutor]: Your Honor, I just wanted to say that I commented on the evidence that this man--It's in the evidence of what he was saying. I'm eliciting [sic] argument from the fact that he said he went to go get beer with somebody or alone and doesn't know anything--

"THE COURT: The statement that he gave to the investigator?

"MR. LAWLEY: Yes, sir.

"THE COURT: I understand what you're saying, but be careful of that.

"MR. GARDNER: Your Honor, in his behalf, I move for a mistrial at this time based on that.

"THE COURT: I overrule.

"(The following occurred in the hearing of the jury:)

"THE COURT: Now, ladies and gentlemen, let me remind you of something I've already told you and that I'll tell you again. The defendant has not testified in this case, as is his perfect right under the constitution of Alabama and the United States. The defendant is not required in any criminal trial to prove his innocence.

"Consequently, if, in his opinion, the State has not carried its burden of proving his guilt by the evidence beyond a reasonable doubt, then it is his decision to make as to whether he testifies or not, and you are instructed that this is a fact from which you can draw no inference, but certainly it cannot be used against the defendant because it is his right." R. 150-51 (emphasis added).

Defense counsel's objection sufficiently identified "the language deemed objectionable." Kimble v. State, 545 So.2d 228, 229 (Ala.Cr.App.1989). Furthermore, although the prosecutor claimed that he was referring to the statement made by the appellant, he did not dispute defense counsel's rendition of the comment, specifically, the comment that the appellant "still has not stated" which "beer store" he went to.

Recently, the Alabama Supreme Court reiterated the rule that a prosecutor may not comment on a defendant's right against self-incrimination:

"A comment on the defendant's failure to testify is to be 'scrupulously avoided.' ... Where there has been a direct comment on, or direct reference to, a defendant's failure to testify and the trial court does not act promptly to cure the comment, the defendant's conviction must be reversed. ... Where the comment is an indirect, rather than a direct, comment on the defendant's failure to testify, the conviction must be reversed if there is a close identification of the defendant as the person who did not become a witness."

Ex parte Purser, 607 So.2d 301, 304 (Ala.1992). Even though a prosecutor may legitimately base his argument on the evidence of the appellant's statement, see Kimble, 545 So.2d at 230, or on the defense presented, see Brinks v. State, 500 So.2d 1311, 1314-15 (Ala.Cr.App.1986), any reference that the defendant "still had not" provided certain information is highly improper as a comment on a defendant's constitutional right against self-incrimination.

Although the trial court's instructions in this case were prompt, those instructions were insufficient to "cure" the error in the prosecutor's remark. Not only did the trial court overrule defense counsel's objection to the prosecutor's improper comment, but its instruction to the jury was insufficient to cure any error.

"In connection with Ala.Code 1975, § 12-21-220, the case law in Alabama contains a subsidiary doctrine that prevents a reversal of the case if the trial court sustains an objection to improper remarks and promptly and appropriately [emphasis in original] instructs the jury of the impropriety of those remarks. The trial court here overruled the objection, and we do not find the instruction given by the trial court here to be prompt, or to have been appropriately given. Here, the instruction fails to clearly address or identify for the jury the exact statement made by the district attorney that was to be remedied. Absent such identification, the instruction can not be taken as 'appropriately given' to address the state's impermissible argument.

"At a minimum, under such circumstances, the trial judge should sustain the objection and immediately instruct the jury as to the impropriety of the remark made by the district attorney. In giving a curative instruction on the defendant's right not to testify, the trial judge should read the statute and explain thoroughly and immediately to the jury that the defendant's failure to testify in his own behalf shall not create any presumption against him. As we previously stated in Whitt [v. State, 370 So.2d 736 (Ala.1979) ]:

" 'We suggest that, at a minimum, the trial judge must sustain the objection, and should then promptly and vigorously give appropriate instructions to the jury. Such instructions should include that such remarks are improper and to disregard them; that statements of counsel are not evidence; that under the law the defendant has the privilege to testify in his own behalf or not; that he cannot be compelled to testify against himself; and, that no presumption of guilt or inference of any kind should be drawn from his failure to testify. With appropriate instructions, we hold that the error of the prosecutor's remarks will be sufficiently vitiated so that such error is harmless beyond a reasonable doubt. [Citations omitted.]'

"A curative instruction in a situation of this type, to be of any value, must be given immediately after the harmful statement is made. Further, where there can be any reasonable doubt as to the particular statement in question, the statement should be explicitly identified to the jury so that it can know what must not be considered. Anything less can in no way cure the error. [Emphasis added.]"

Ex parte Wilson, 571 So.2d 1251, 1265 (Ala.1990). See also Purser, 607 So.2d at 304 ("With the trial court having overruled the objection, which asserted that the remark was a comment on whether the defendant would testify, it would have been futile for the defendant to request a curative instruction during the original off-the-record bench conference, so it is immaterial whether he actually requested an instruction at that time").

IV.

Reversible error was also committed in the admission, over objection, of the appellant's statement to a law enforcement investigator that "I'll pay for the damage ... [rather] than go through the hassle." R. 126-27.

As we have stated, the appellant was charged with burning the utility room of his neighbor. Investigator Harold Hutchison of the Huntsville Police Department interviewed the appellant, who "seemed to be the likely suspect" R. 110, the day of the fire. Hutchison testified that after the appellant had voluntarily waived his constitutional rights, the appellant claimed that he had gone to the "beer store" at the time of the fire. Hutchison continued:

"So I asked the defendant who was with him at that time [he went to the beer store], and he said, 'No one.' I said, 'Who was around the house besides yourself, and he said, 'No one.' And I told him that I had talked...