Huff v. State

• Decision Date: 28 July 1995
• Docket Number: CR-94-509
• Citation: 678 So.2d 293
• Parties: Darren HUFF v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 293

678 So.2d 293

Darren HUFF v. STATE.

CR-94-509.

Court of Criminal Appeals of Alabama.

July 28, 1995.

Rehearing Denied Nov. 9, 1995.

James B. McNeill, Jr., Selma, for Appellant.

Jeff Sessions, Atty. Gen., and Joseph Marston, Asst. Atty. Gen., for Appellee.

TAYLOR, Presiding Judge.

The appellant, Darren Huff, was convicted of murder, a violation of § 13A-6-2, Code of Alabama 1975, in 1989. His conviction was reversed, Huff v. State, 596 So.2d 16 (Ala.Cr.App.1991), because of erroneous jury instructions that violated certain fundamental rights guaranteed to the appellant by the Constitution of the United States. On re-trial, the appellant was again convicted of murder. That conviction was reversed because the state had called the appellant's convicted codefendant to the stand and had inquired into a statement implicating the appellant that the codefendant had given to the police. The codefendant answered some questions on direct examination before refusing to answer further, but refused to answer any questions on cross-examination. This court concluded that the appellant's constitutional right to confront witnesses against him was violated. Huff v. State, 639 So.2d 539 (Ala.Cr.App.1993). The Sixth Amendment to the United States Constitution provides as follows:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."

This right is also guaranteed by the Alabama Constitution of 1901, which states:

"That in all criminal prosecutions the accused has a right to be heard by himself and counsel, or either; to demand the nature and cause of the accusation; to have a copy thereof; to be confronted by the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and, in all prosecutions by indictment, a speedy public trial by an impartial jury of the county or district in which the offense was committed; and that he shall not be compelled to give evidence against himself, nor be deprived of his life, liberty, or property, but by due process of law."

Article 1, § 6, Constitution of Alabama 1901.

In 1994, the appellant was again convicted of murder and was sentenced to life imprisonment. It is from this third conviction that this appeal is taken and upon essentially the same grounds as he asserted in his second appeal.

The appellant's sole contention on appeal is that he was denied his Sixth Amendment right to confront witnesses against him and his Fourteenth Amendment right to a fair trial. This contention is once again based upon the fact that the state called a convicted codefendant to testify against him at trial and also based upon the prosecution's reference in closing arguments to the codefendant's testimony. Specifically, the appellant argues that he was unjustly prejudiced by being allegedly improperly linked to a man who had already been convicted of this murder, and that, because the accomplice refused to testify, he was denied his right of confrontation and his right to a fair trial. He argues that the jury was left to infer that because the accomplice had been convicted, this defendant must also be guilty. The state contends on appeal that this issue is not preserved for appellate review.

The record reveals that before trial defense counsel presented a motion in limine seeking an order preventing the state from calling the codefendant, Jessie McDole, as a witness. Defense counsel argued that the codefendant had refused to testify in the first two trials and that there was no new evidence that showed that he would now testify. Defense counsel stated:

"His mere presence, then, coming into the courtroom is prejudicial to my client. Not only does it deny him Sixth Amendment rights, but it's also prejudicial from the standpoint of the jury seeing someone come in there that they're wondering what is this man here for. They may have heard through the course of other testimony of other witnesses that Mr. McDole has been convicted of the murder of Mrs. Mini Hatcher, and then he's up there on the stand and he has nothing to say. That's highly prejudicial as far as my client is concerned because as far as those jurors are concerned, they've heard, 'Here's a man who has been convicted of Mrs. Hatcher's murder, the State called him, [it] obviously called him for a reason' and I think any kind of instruction that the Court would give for the jury to try to disregard all that would just be [for] naught. They would have seen him up there, they would have heard what involvement he has in this case and it's our position that, and for the purpose of this motion in limine is to totally restrict the State from mentioning anything about this man, whether he's going to testify or what, unless [it] can give testimony rather than sitting there and doing as he did in the second trial and responding, 'I've got nothing to say.' Or as he did in the first trial where he wouldn't even open his mouth to say anything. He just sat [mute] the whole time. Based on all that, we feel that we're entitled to a motion in limine that would prohibit the State from making any comments or remarks regarding Mr. McDole or calling him to the stand unless [it] can give assurances to the Court that he would in fact testify."

The court denied the appellant's motion in limine and stated:

"He's a material witness to this case. He has a privilege not to testify. The State can call anybody [it] want[s] to that's a material witness to testify. The threat of contempt obviously is not going to make the man testify if he doesn't want to."

The appellant again objected to his codefendant's testifying when the codefendant was called to the stand. The record shows that McDole was handcuffed and shackled when he was brought into the courtroom. Defense counsel voiced the following objection and requested a mistrial:

"I have an objection to this witness coming in the courtroom in this manner, being brought in chained and manacled. It's highly prejudicial to my client because there's already been testimony that he's been convicted of this crime and he's bringing him in this manner, it's highly prejudicial to my client. Again we restate our objections previously had on the two previous occasions. This man has refused to testify and to bring him in here again particularly dressed in the manner he is, chains on his hands and legs, it's extremely prejudicial to my client."

The trial court again overruled the objection and allowed McDole to be questioned. McDole invoked his Fifth Amendment right to remain silent, and he refused to testify. The trial court placed him in contempt. Defense counsel then made the following objection:

"Your Honor, I would again enter the objections that I have previously entered in this case concerning the State calling Mr. McDole as a witness. As the Court saw, Mr. McDole certainly stated to the Court that he did not intend to testify and being held in contempt of court was of no use or benefit to compel him to testify. That he [was] brought into this courtroom, as far as this jury is concerned, is highly prejudicial from the standpoint of my client. The State knew from two previous trials in this matter that exactly what happened here this morning was a very likely probability, yet [it] went forward and brought Mr. McDole in here for the sole purpose to prejudice this jury, and because of this, we find this conduct was highly improper and we would, one, ask for a mistrial in this matter based on the present prejudicial nature of the State's calling Mr. McDole in here. Or, two, in the alternative, we would ask the Court to give an instruction to the jury telling them to totally disregard anything with respect to Mr. McDole. That that's not to be considered in their making a decision in this case and that they're not to let that enter into their process of deliberating on the guilt or innocence of my client, Darren Huff."

(Emphasis added.)

At the close of the state's case, the appellant again moved for a mistrial based upon the allegedly prejudicial nature of the presence in court of the codefendant. During the discussion on the motion, the trial court stated "I think we're going to have a reversal again based on what [the Court of Criminal Appeals] said in the last decision." The state's attorney then apparently asked the appellant directly whether he would like a mistrial. The attorney then stated to the court for the record that the state was not opposed to the court's declaring a mistrial. Defense counsel evidently concluded that reversible error had already occurred and at this time withdrew his motion for a mistrial. However, this was not the first or only motion for a mistrial made. Defense counsel, during the course of the trial, voiced numerous objections to the codefendant's presence and moved for a mistrial when McDole was brought to the courtroom in handcuffs and shackles, stating that the appearance of the codefendant in this condition prejudiced the appellant. The court, denying the motion, stated: "I don't believe they could have seen the chains from where he's standing." This issue was not waived for purposes of appellate review.

There are repeated references in the transcript to the appellant's codefendant and the outcome of the state's case against him. Detective Robert Jacobs testified to the following:

"Q [prosecutor]: You also collected hair samples from one Jessie McDole; is that correct?

"A: Yes, sir.

"Q: Now, had he been arrested and charged with an offense at that time?

"A: Yes.

"Q: And do you know about what happened to his case?

"A: Yes, sir.

"Q:...