King v. State

Decision Date08 September 1987
Docket Number1 Div. 18
Citation518 So.2d 191
PartiesJames Mitchell KING v. STATE.
CourtAlabama Court of Criminal Appeals

James W. May, Gulf Shores, for appellant.

Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

Petitioner was convicted in May 1982 of the murder of Horace Junior Goodwin and was sentenced to life imprisonment without parole. The record reveals that one of appellant's two trial attorneys also represented him on his original appeal.

On October 26, 1983, petitioner filed a pro se petition for writ of error coram nobis, the basis of the instant case. Petitioner alleged, among other things, that he was subjected to ineffective assistance of counsel and that he was denied a fair trial because of the conduct of the prosecutor during summation and the prosecutor's repeated vouching for his witnesses' veracity. A different attorney was appointed to represent petitioner at the coram nobis proceeding.

Petitioner's appointed coram nobis counsel, at the outset of the hearing, conceded the ineffective assistance issue. At the conclusion of the hearing the petition was denied.

Notice of appeal was given in April of 1985. Because the court reporter misplaced the transcript of the coram nobis proceeding, this court ordered that a new coram nobis proceeding be conducted. Before this could occur, the transcript was discovered and an out-of-time appeal was granted. In the interim, the original coram nobis counsel withdrew and petitioner's present attorney was appointed to represent him on appeal.

Petitioner now contends that the argument of the prosecutor, in summation, was so prejudicial as to deny petitioner a fair trial as provided by the Fifth and Sixth Amendments to the United States Constitution and Article I, § 6, of the Alabama Constitution of 1901. He further contends that the failure of his trial attorneys to make any objection or any request for curative instructions amounted to ineffective assistance of counsel.

We must first examine the challenged statements made by the prosecutor. The statements, which were all made in closing remarks, were as follows:

"On the other hand, and the Defense attorneys are probably going to tell you this, anyway; but the State vouches for what its witnesses say when they put them on the stand. And I do vouch for what my witnesses have said to you. I believe they have been completely honest with what they have told you yesterday and today. They have told you the truth in this case....

"They didn't lie about anything. They did what they told you they did. And they talked to me, some of them did, one of them talked to me one time before we came to Court and I told everyone of them, 'you better tell the truth when you get on that witness stand' because I cannot bring you what I believe to be falsehoods from the witness stand.

"And I do believe they told you the complete truth."

This court has previously addressed this issue and, following precedent, held that it is highly improper for attorneys, particularly prosecutors, to state their personal opinions during closing arguments. Moseley v. State, 448 So.2d 450 (Ala.Cr.App.1984). Attorneys must be careful to refrain from injecting their own personal experience or knowledge in support of their argument, as distinguished from what they deem to be reasonable inferences to be drawn from the evidence. Moseley, supra; Brown v. State, 393 So.2d 513 (Ala.Cr.App.1981).

In a particularly relevant portion of Moseley, this court noted:

"In Adams v. State, 280 Ala. 678, 198 So.2d 255 (1967), our Supreme Court said:

" 'It is, of course, never proper for the prosecuting attorney or the defendant's attorney to state in argument to the jury their personal belief in the guilt or innocence of the accused. To do so is to place before the jury for consideration the lawyer's own character and credibility, which is no part of any judicial proceeding. The office of district attorney and counsel for the accused does not demand that the former's duty is to secure a conviction, and the latter's duty to obtain an acquittal; but rather, the primary duty is to see that justice is done. See Canons 5 and 15 of American Bar Association Canons of Professional Ethics. And where, as here, the trial judge attributes beliefs to and sanctions such personal beliefs by opposing attorneys, even though the record was not protested by an exception, we call attention to the error so that it may not be repeated on another trial.'

"The rule was also set forth in Woods v. State, 19 Ala.App. 299, 97 So. 179 (1923), rev'd on other grounds, 20 Ala.App. 200, 101 So. 314 (1924), aff'd, 21 Ala.App. 436, 109 So. 171 (1926), as follows:

" 'The personal opinion of the solicitor as to the guilt of the accused or as to any material fact involved in the case is not evidence. It should never be uttered by a prosecuting attorney, and, if the court gives sanction to such an utterance, it thereby commits error necessitating a reversal of conviction appealed from. Inferences and deductions from the evidence may be drawn by counsel almost without limit, but the minds of the jury should not be prejudiced, nor should they be swayed in their deliberations by unauthorized statements in the argument of the solicitor, such as, "In my honest opinion, and before God it is my honest opinion," that such a state of facts exists. It is for the jury to say what state of facts exists, and this must be done by a consideration of all the evidence in the case, and such conclusion must not be reached by the honest or other character of opinion upon the part of the solicitor. In the annotation of the case of People v. Fielding, (N.Y.) 46 L.R.A. 641, 667 [158 N.Y. 542, 53 N.E. 497] note, it is said:

" ' "The personal opinion of the prosecuting attorney as to the guilt of the accused is not evidence, and the sanction of such an opinion by the court is serious error."

" ' "The right to a fair and impartial trial is violated by the misconduct of counsel in stating to the jury facts not in evidence because by so doing he fraudulently testifies without having been sworn as a witness." People v McGuire, 89 Mich. 66 , 50 N.W. 786.' "

Moseley, at 456, 457.

In United States v. Lamerson, 457 F.2d 371 (5th Cir.1972), the court was confronted with a statement by the prosecutor vouching for the credibility of his witnesses. The prosecutor said, "I firmly believe what they said is the truth. I know it is the truth, and I expect you do, too." The court held that when the prosecutor makes a statement which could be construed by the jury as implying that he has additional reasons for knowing that what the witness has said is true, which reasons are not known to the jury, such comment is no longer mere indiscretion but constitutes reversible error. The court noted that because the prosecutor said, "I know it is the truth," the inference was made that he had outside knowledge and, thus, that the prosecutor had overstepped the bounds of propriety. Lamerson, at 372. The prosecutor in Lamerson was giving the jury the impression that he knew something the jurors did not know and which proved the defendant's guilt.

The prosecutor in the instant case went far beyond the simple statement in Lamerson. As noted above, the prosecutor here said, "And I do vouch for what my witnesses have said to you. I believe they have been completely honest...." "They didn't lie about anything. They did what they told you they did."

Gradsky v. United States, 373 F.2d 706 (5th Cir.1967), held that it is "dangerous business" for the government to vouch for the honesty or veracity of its witnesses. In the instant case the prosecutor said, "... the State vouches for what its witnesses say when they put them on the stand." In both Gradsky and Lamerson, reversal was required because "the prosecutor's expression might reasonably [have led] the jury to believe that there [was] other evidence, unknown or unavailable to the jury, on which the prosecutor was convinced of the accused's guilt." Gradsky, at 710. See also, Dunn v. United States, 307 F.2d 883 (5th Cir.1962).

The Alabama Supreme Court has recently firmly condemned statements by the prosecution which suggest and might lead the jury to believe, that there was other evidence, not presented to them, which would prove the defendant's guilt. Ex parte Washington, 507 So.2d 1360 (Ala.1986). There the Supreme Court noted:

"It has long been the rule in Alabama that, although counsel should be given considerable latitude in drawing reasonable inferences from the evidence, they may not argue as a fact that which is not supported by the evidence. Brown v. State, 374 So.2d 395 (Ala.1979); Espey v. State, 270 Ala. 669, 120 So.2d 904 (1960); Cosby v. State, 269 Ala. 501, 114 So.2d 250 (1959); Garrett v. State, 268 Ala. 199, 105 So.2d 541 (1958); Ray v. State, 248 Ala. 425, 27 So.2d 872 (1946). This has been the rule since it was first stated in McAdory v. State, 62 Ala. 154 (1878)...."

Ex parte Washington, supra, at 1361.

The Supreme Court went on to reverse this court's decision, which had affirmed the conviction of Washington in Washington v. State, 507 So.2d 1358 (Ala.Cr.App.1986), reversing on the grounds that the following statement by the prosecutor was so improper, as to constitute reversible error:

"And there are certain things, because of our rules that we cannot present to you, but you heard Sergeant Williams--"

507 So.2d at 1361. The Supreme Court held that such a statement made in the prosecutor's closing summation was "intolerable." Noting that the statement implied that there was other evidence, not introduced, by which the defendant's guilt could be proven, the Court held that reversal was required.

This court is required to follow the rulings of the Alabama Supreme Court. With respect to improper statements by prosecutors, the position of our Supreme Court in Ex parte Washington,...

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  • Allen v. State
    • United States
    • Alabama Court of Criminal Appeals
    • May 27, 1994
    ...1051 (Ala.1981). The legal principles applicable to the issues raised by the appellant were thoroughly discussed in King v. State, 518 So.2d 191, 193-95 (Ala.Cr.App.1987). In summary, we quote only a portion of that "This court has previously addressed this issue and, following precedent, h......
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