Powell v. State

• Citation: 631 So.2d 289
• Parties: Timothy POWELL v. STATE. CR 91-1522.
• Decision Date: 30 September 1993
• Court: Alabama Court of Criminal Appeals

Page 289

631 So.2d 289

Timothy POWELL v. STATE.

CR 91-1522.

Court of Criminal Appeals of Alabama.

Sept. 30, 1993.

Rehearing Denied Dec. 3, 1993.

Certiorari Denied Jan. 28, 1994

Alabama Supreme Court 1930336.

William Blanchard and Rick Williams, Montgomery, for appellant.

James H. Evans, Atty. Gen., and Thomas Leverette, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

In 1987, the appellant, Timothy Powell, was convicted on both counts of an indictment charging him with the capital offenses of murder during the commission of a robbery, Ala.Code 1975, § 13A-5-40(a)(2), and murder during the commission of a burglary, § 13A-5-40(a)(4), in connection with the murder of Esther Herchenroeder. He was sentenced to death.

On direct appeal, this Court reversed his convictions and remanded the cause for a new trial based on the prosecution's discriminatory use of its peremptory challenges in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Ex parte Branch, 526 So.2d 609 (Ala.1987). Powell v. State, 548 So.2d 590 (Ala.Cr.App.1988), affirmed, 548 So.2d 605 (Ala.1989).

In 1991, the appellant was retried, was found guilty on both counts of the indictment, and was once again sentenced to death. On this direct appeal from the appellant's second conviction, we have found plain error in the record. Therefore, we must reverse the appellant's convictions and sentence of death and again remand the cause for a new trial.

I

During closing argument at the guilt phase, the assistant district attorney stated:

"Another couple of questions that y'all were asked about [during voir dire examination] has to do with direct and circumstantial evidence. Y'all probably have gathered through listening to several days of testimony in this case that there were two people involved in the commission of this crime. The victim Esther Herchenroeder is dead. She cannot come in and testify.

"The second person involved is the defendant Timothy Powell. There are no eyewitnesses to this crime. There were two people involved. So what do you have to look at if you don't have eyewitness testimony? You have got to go on circumstantial evidence." R. 1977.

There was no objection by the defense to this argument. ¹ The lack of an objection, however, does not foreclose our review in this case. "[I]n a death penalty case, of course, a defendant's failure to raise a claim of error at trial does not preclude this Court from reviewing the record for 'plain error' and taking appropriate action whenever plain error appears. A.R.App.P., Rule 39(k); see Ex parte Waldrop, 459 So.2d 959 (Ala.1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2050, 85 L.Ed.2d 323 (1985).

" 'Error' is 'plain error' only when it 'has or probably has adversely affected the substantial rights of the [defendant],' Rule [45A], A.R.App.P., and plain error is to be acted upon 'in the same manner as if the defendant's counsel had preserved and raised [the] error for appellate review.' Johnson v. State, 507 So.2d 1351, 1356 (Ala.1986)."

Ex parte White, 587 So.2d 1236, 1237 (Ala.1991), cert. denied, 502 U.S. 1076, 112 S.Ct. 979, 117 L.Ed.2d 142 (1992).

In this case, the prosecutor's comment adversely affected the appellant's substantial right not to be compelled to give evidence against himself. Ala. Const. Art. I, § 6. See Ala.Code 1975, § 12-21-220:

"On the trial of all indictments or other criminal proceedings, the person on trial shall, at his own request, but not otherwise, be a competent witness, and his failure to make such a request shall not create any presumption against him nor be the subject of comment by counsel. If the district attorney makes any comment concerning the defendant's failure to testify, a new trial must be granted on motion filed within 30 days from entry of the judgment."

"In a case where there has been a direct reference to a defendant's failure to testify and the trial court has not acted promptly to cure that comment, the conviction must be reversed." Ex parte Wilson, 571 So.2d 1251, 1261 (Ala.1990). See also Ex parte Williams, 461 So.2d 852, 854 (Ala.1984); Whitt v. State, 370 So.2d 736, 738-39 (Ala.1979); Ex parte Yarber, 375 So.2d 1231, 1234 (Ala.1979). "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) (citing Ex parte Wilson, 571 So.2d at 1261). In Purser, the accused was convicted of the murder of Mark Pollard and of the attempted murder of his estranged wife Karen Purser. The Alabama Supreme Court held that the following argument by the prosecutor constituted a comment on the accused's failure to testify:

"It all hinges on Karen Purser. She's the only one out there at the Pine Bowl when it all happens, and she can tell you what happened. Well, excuse me. She's not the only one, other than Mark Pollard, who is no longer with us, and Allen Purser who is on trial for killing Mark Pollard and trying to kill Karen."

Ex parte Purser, 607 So.2d at 302. At oral argument, the State admitted that it could not distinguish the comment in this case from the one made in Purser.

The comment in this case is also similar to the argument made in Ephraim v. State, 627 So.2d 1102 (Ala.Cr.App.1993), wherein the prosecutor stated:

"Judge is going to tell you about circumstantial evidence and some of the evidence in this case is circumstantial evidence. It is circumstantial because the only people that know what happened out there that night are this man and two other men. So we don't have the direct evidence that we would have in some cases."

Ephraim v. State, 627 So.2d at 1106. Although this Court reversed Ephraim's conviction on other grounds, we noted that the argument "may well have been construed by the jury to be a reference to the appellant's failure to testify." Ephraim v. State, 627 So.2d at 1106.

In this case, the assistant district attorney named the two people who were present during the commission of the crime: the victim, who was dead and could not testify, and the appellant. By asking the jury, "So what do you have to look at if you don't have eyewitness testimony? You have got to go on circumstantial evidence," R. 1977, the prosecutor called the jury's attention to the fact that the appellant, the only eyewitness who could have taken the stand, did not testify.

We cannot escape the conclusion that the prosecutor's statement "was manifestly intended to be, or was of such a character that the jury would naturally and necessarily take it to be, a comment on the failure of the accused to testify." Ex parte Wilson, 571 So.2d at 1261 (quoting Marsden v. Moore, 847 F.2d 1536, 1547 (11th Cir.), cert. denied, 488 U.S. 983, 109 S.Ct. 534, 102 L.Ed.2d 566 (1988)). For this error, the appellant is entitled to a new trial.

II

The appellant's convictions on both counts of the capital murder indictment did not violate the double jeopardy prohibition against multiple punishments for the same offense.

Murder during a robbery, which was alleged in count one of the indictment, is not a lesser included offense of murder during a burglary, which was alleged in count two of the indictment, because under the test established in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and recently reaffirmed by a plurality of the United States Supreme Court as the sole criterion for judging double jeopardy claims in United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), each offense required proof of a statutory element that the other did not. The "appellant was properly indicted and convicted for two separate and distinct capital offenses 'notwithstanding a substantial overlap in the proof offered to establish the crimes,' Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1293 n. 17, 43 L.Ed.2d 616 (1975)." Jackson v. State, 516 So.2d 726, 763 (Ala.Cr.App.1985), remanded on other grounds, 516 So.2d 768 (Ala.1986).

"[The defendant] was charged with and convicted of two counts of capital murder.... Both of the counts were based on the same act, the intentional killing of [the victim]. However, because each crime contains an element not contained in the other, there was no violation of the prohibition against double jeopardy. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Jackson v. State, 516 So.2d 726 (Ala.Crim.App.1985). See also Ex parte Henderson, 583 So.2d 305 (Ala.1991) (murder during a robbery and murder done for pecuniary gain)."

Ex parte Haney, 603 So.2d 412, 419 (Ala.1992) (murder for hire and murder during a robbery), cert. denied, 507 U.S. 925, 113 S.Ct. 1297, 122 L.Ed.2d 687 (1993). See also Merriweather v. State, 629 So.2d 77 (Ala.Cr.App.1993) (murder during a burglary and murder during a robbery); Stewart v. State, [Ms. CR-90-415, October 23, 1992], 1992 WL 298129 (Ala.Cr.App.1992) (on return to remand) (murder during a burglary and murder during a kidnapping), affirmed as to conviction, reversed as to sentence, [Ms. 1920509, September 3, 1993], 1993 WL 332698 (Ala.1993).

The appellant was charged with murder during a burglary and murder during a robbery. The murder of Mrs. Herchenroeder was an element of both offenses, but each offense also required proof of an element that the other did not. Proof of the murder during a robbery count did not require proof that the appellant entered or remained unlawfully in Mrs. Herchenroeder's dwelling. Likewise, proof of the murder during a burglary count did not require proof that the appellant used force or the threat of force to take property from Mrs. Herchenroeder. The two counts of the indictment charged two separate offenses and the State's evidence at trial established that the appellant committed two separate offenses. Consequently, the fact that...