Qualls v. State
| Decision Date | 27 March 1979 |
| Docket Number | 4 Div. 690 |
| Citation | 371 So.2d 949 |
| Parties | Linda QUALLS v. STATE. |
| Court | Alabama Court of Criminal Appeals |
R. A. Prestwood, Andalusia, for appellant.
Charles A. Graddick, Atty. Gen., and Karen Neal Daniel, Asst. Atty. Gen., for the State, appellee.
The appellant was convicted of second degree murder and sentenced to ten years' imprisonment. Because of the District Attorney's highly improper comment in closing argument on the appellant's failure to testify and the failure of the trial judge to cure this violation by prompt and vigorous instructions to the jury this cause must be reversed.
The evidence revealed that on the morning of June 14, 1977, the appellant fired three shots from a .22 caliber pistol into Kenneth White after he had allegedly raped her and threatened her and her children. During the State's closing argument the Assistant District Attorney made the following comment in the presence of the jury:
Defense counsel objected to this remark and the trial court sustained, but gave no curative instructions for the jury to disregard the comment. This constituted reversible error.
Alabama Code Section 12-21-220 (1975) states:
"On the trial of all . . . 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 . . . ."
The remark made by the prosecutor constituted a direct comment on the appellant's failure to testify. Such remarks are prejudicial, in disregard of a defendant's constitutional and statutory rights, and have been condemned time and time again by this court and the Alabama Supreme Court. Beecher v. State, 294 Ala. 674, 320 So.2d 727 (1975); Robinson v. State, 352 So.2d 11 (Ala.Cr.App.), cert. denied, 352 So.2d 15 (Ala.1977); Everage v. State, 33 Ala.App. 291, 293, 33 So.2d 23 (1947).
Where there has been direct comment on defendant's failure to testify, and the trial court has not promptly acted to cure such a statement, the conviction must be reversed." Beecher, supra, 294 Ala. at 681, 320 So.2d at 733. After defense counsel either objects to the improper comment or moves to have the remark excluded, it becomes "the duty of the judge not only to sustain said motion or objection, but also to exercise a reasonable degree of effort to eradicate its effect from the mind of the jury." Broadway v. State, 257 Ala. 414, 416, 60 So.2d 701, 702 (1952). This court has held that the admonition to the jury that they disregard such improper remarks must be strong and not merely perfunctory, and that the trial court may err to reversal by saying too little to eradicate the damage....
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Williams v. State
...the testimony of the deputy sheriff who was the sole witness to an extrajudicial self-inculpatory admission by the defendant. State, 371 So.2d 949 (Ala.Cr.App.), cert. denied, 371 So.2d 951 Here, the prosecutor was not asking who could deny what was said in the conversation. The thrust of t......
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Grady v. State
...Ala.App. 233, 307 So.2d 43 (1975); Robinson v. State, Ala.Cr.App., 352 So.2d 11, cert. denied, Ala., 352 So.2d 15 (1977); Qualls v. State, Ala.Cr.App., 371 So.2d 949, cert. denied, Ala., 371 So.2d 951 (1979); Burson v. State, Ala.Cr.App., 373 So.2d 1239 (1979); Fleenor v. State, Ala.Cr.App.......
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Williams v. Alabama
...is violated." Beecher v. State, 320 So. 2d 727, 734 (Ala. 1975); see also Griffin v. California, 380 U.S. 609 (1965); Qualls v. State, 371 So. 2d 949 (Ala. Crim. App. 1979) ("Where there has been direct comment on the defendant's failure to testify, and the trial court has not promptly acte......
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Collins v. State, 6 Div. 40
...failure to testify have been condemned time and time again by this court and by the Alabama Supreme Court. Beecher, supra; Qualls v. State, Ala.Cr.App., 371 So.2d 949, cert. denied, Ala., 371 So.2d 951; Robinson v. State, Ala.Cr.App., 352 So.2d 11, cert. denied, Ala., 352 So.2d 15. Moreover......