King v. State
Citation | 518 So.2d 191 |
Decision Date | 08 September 1987 |
Docket Number | 1 Div. 18 |
Parties | James Mitchell KING v. STATE. |
Court | Alabama 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.
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:
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 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, 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,
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:
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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