Prince v. State

• Decision Date: 18 September 1992
• Docket Number: CR-91-431
• Citation: 623 So.2d 355
• Parties: Leon Albert PRINCE v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

Page 355

623 So.2d 355

Leon Albert PRINCE v. STATE of Alabama.

CR-91-431.

Court of Criminal Appeals of Alabama.

Sept. 18, 1992.

Rehearing Denied Oct. 23, 1992.

Certiorari Quashed July 30, 1993

Alabama Supreme Court 1920190.

L. Dan Turberville, Birmingham, for appellant.

James H. Evans, Atty. Gen., and Margaret Childers, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

The appellant, Leon Albert Prince, was convicted of carnal knowledge of a girl less than twelve years old, in violation of Title 14, § 398, Ala.Code 1940 (Recomp.1958). He was sentenced to 30 years' imprisonment. He raises five issues on this appeal from that conviction.

I.

The appellant alleges that his right to a fair trial was violated by numerous instances of prosecutorial misconduct. Allegations of prosecutorial misconduct begin with almost the first page of the court reporter's transcript of the proceedings and continue repeatedly throughout the entire record.

A.

During the voir dire of the jury venire, the following occurred:

"MS. PULLIAM [assistant district attorney]: Does everyone understand that upon conviction that probation is always an option?

"MR. BREWER [defense counsel]: Objection, Your Honor. I want to be heard, and I want to be heard outside the presence of the jury on that.

"THE COURT: You can hear from me right now. That is an improper question. As a matter of fact, if it's over ten years, there is no probation available.

"MR. BREWER: Yes, sir.

"MS. PULLIAM: Judge, that's the--

"MR. BREWER: Your Honor--

"THE COURT: There's no question about it in my mind.

"MS. PULLIAM: The terms of the sentence in the case are optional with the Court. The jury recommends the sentence, and it's up to the Court.

"THE COURT: No, you mentioned probation.

"MS. PULLIAM: Yes, sir.

"THE COURT: There's no probation over ten years.

"MR. BREWER: And, Your Honor, not only that, what she's attempting to get these good people to do is to say it's okay if you convict him because he can always get probation, and I move for a mistrial for prejudice.

"THE COURT: Well, he can't get probation, and I want that understood, if it's over ten years.

"MS. PULLIAM: Judge, under what case law are you traveling?

"THE COURT: I'm not supposed to answer your questions. You go on with your questions of the jury.

"MS. PULLIAM: Yes, sir. May I be heard outside the presence of the jury?

"THE COURT: Sure.

"MS. PULLIAM: Is there anybody because of what they've just heard Judge Cole say in this case would even be more hesitant to listen to the evidence in a fair way and to do what is right when it comes to deciding accountability in this case?

"(No response.)

"MS. PULLIAM: Can you put aside any possibility of a sentence outside your concentration? Normally, that is never an issue for the jury. In this case, it is, which makes this case different. Is there anybody who cannot do that, who cannot keep the two separate?

"(No response.)" R. 132-35.

After the jury had been selected and excused for the day, the prosecutor initiated further discussion with the trial court about the matter of probation. She explained that she considered her comment on probation "only fair" (R. 267) because in its opening comments the trial court informed the jury that a conviction carried a sentence that the jury must set at ten years' to life imprisonment and that defense counsel had "reemphasized that." R. 267. The trial court responded: "It's not fair in my league. It is absolutely abominable. I was amazed when you said it." R. 267. See also R. 271. It is undisputed that the prosecutor was the only person to mention probation before the jury.

After the trial court overruled defense counsel's motion for a mistrial, defense counsel requested that the trial court not attempt any curative instruction on the prosecutor's comment. R. 301-05.

Later, outside the presence of the jury and during the course of the trial, the trial court expressed its opinion that the prosecutor's remark was "error." R. 1070. On whether his comments cured the error, the trial court stated: "That may be cured. I'm not too sure it will. But, anyway, I think it's an error in the case, and I'll let the--if necessary, I guess a higher authority than Cole will--." R. 1070

During the deliberation of the jury, the jury indicated that it had a question. That question was, "Is there a possibility of parole or probation?" R. 1378. Based on that request, defense counsel asked the trial court that the jury be given further instructions.

"MR. BREWER: On behalf of the defendant, Your Honor, we would state that first of all that that is evidence in and of itself that the remarks earlier made by the prosecutor have had an effect and a bearing upon the minds and the members of this jury. And based on that and that evidence of that, that we would renew our earlier motions for a mistrial and for a judgment of acquittal on these charges.

"Now, if the Court overrules those, then we would say to the Court that it would only be fair to this defendant to notify the jury that parole is certainly not something the Court can speak to them about, period. It's a correctional matter, but we think that it would only be fair to this jury to identify that and to let them know that Leon Prince can only receive probation if he gets a sentence of ten years and not a day more.

"THE COURT: I am not telling them a single, solitary thing. Of course, this is caused by our enthusiastic prosecutrix." R. 1376-77.

The trial court then gave the jury the following instruction:

"You sent out this question: 'Is there a possibility of parole or probation?'

"Ladies and gentlemen, the law compels me to say that that is not a subject that I can discuss with you in this trial. In other words, that is not to enter into your--I can't answer it. The law says I can't, so that's not of your concern." R. 1378.

Defense counsel then objected to the trial court's refusal to instruct the jury "as to what level of probation was available in this case." R. 1380. Defense counsel did not request the trial court to instruct the jury that the matter of parole or probation was not for its consideration.

"[I]t has long been the law of this State that comments upon the probability or possibility of what might happen under a particular sentence, falling outside the evidence and the law of the case, constitute improper argument." Ex parte Rutledge, 482 So.2d 1262, 1265 (Ala.1984). A prosecutor should not comment on the possibility of probation or parole before the jury.

"There is no question but that the argument of the solicitor to the effect that a man sentenced to the penitentiary will at some time become eligible for pardon or parole was improper....

"The remarks of the solicitor were of the class of improper argument which may be remedied or their evil effect eradicated by instructions of the court."

Lee v. State, 265 Ala. 623, 629, 93 So.2d 757, 763 (1957). See also Eaton v. State, 278 Ala. 224, 227, 177 So.2d 444, 448 (1965). "In Alabama the attorneys are forbidden to talk to the jury about probation and parole." Davis v. State, 494 So.2d 851, 854 (Ala.Cr.App.1986) (if defense counsel opens door during closing argument regarding range of possible sentences, prosecutor may say during his final argument that there is possibility of probation, if, in fact, that is true). A prosecutor's comment on the possibility of probation or parole is "clearly improper." Doyle v. State, 487 So.2d 996, 998 (Ala.Cr.App.1986); Henderson v. State, 460 So.2d 331, 333 (Ala.Cr.App.1984) (permissible as a reply in kind).

"A jury should perform its duty both as to the question of guilt and as to the extent of punishment, if within the province of the jury, irrespective of what someone else, including the trial court, appellate courts and all probation, parole and pardoning authorities might do in the future. That is not a matter for the jury to consider. A rule permitting any agency in the administration and execution of justice to knowingly attempt to ease its conscience or evade its responsibility in the assumption that another agency will rectify its failure to perform its separate responsibility would lead inevitably to subversion, irrespective of the good intentions that might at times prompt such action."

Murray v. State, 359 So.2d 1178, 1180 (Ala.Cr.App.1978). Although each of the above cases involved a prosecutor's comment in argument to the jury, we consider the above principles equally applicable where the comment is made during the voir dire of the jury venire.

Although erroneous, "[a]rgument in the nature of that under consideration is not so inflammatory and prejudicial that its harmful quality cannot be eradicated." Murray, 359 So.2d at 1181. See Doyle, 487 So.2d at 998-99 (judge's action in sustaining objection and stating, "Let's stick to the evidence" sufficient to cure error). "Any prejudice suffered by the appellant as a result of the prosecutor's argument was eradicated by the trial judge's prompt action [in immediately sustaining defense counsel's objection]." Hooks v. State, 534 So.2d 329, 361 (Ala.Cr.App.1987), affirmed, 534 So.2d 371 (Ala.1988), cert. denied, 488 U.S. 1050, 109 S.Ct. 883, 102 L.Ed.2d 1005 (1989). See Thomas v. State, 373 So.2d 1149, 1159-60 (Ala.Cr.App.), affirmed, 373 So.2d 1167 (Ala.1979), vacated on other grounds, 448 U.S. 903, 100 S.Ct. 3043, 65 L.Ed.2d 1133 (1980).

The appellant's trial began on November 4, 1991, and a conviction was returned on November 8. Considering the length of the appellant's trial, the curative action taken by the trial court (even though minimal), and the particular objections made and the curative actions that defense counsel did and did not request, we find that the prosecutor's comment does not constitute a ground for a reversal of the appellant's conviction.

B.

The prosecutor was not guilty of misconduct and did not violate the principles of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by...