Spangler v. State, CR-96-0187

• Decision Date: 26 September 1997
• Docket Number: CR-96-0187
• Parties: Charlecy Dean SPANGLER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1125

711 So.2d 1125

Charlecy Dean SPANGLER v. STATE.

CR-96-0187.

Court of Criminal Appeals of Alabama.

Sept. 26, 1997.

Rehearing Denied Nov. 14, 1997.

Certiorari Denied March 13, 1998

Alabama Supreme Court 1970458.

Frederick A. Erben and Harlan Mitchell, Birmingham, for appellant.

Bill Pryor, atty. gen., and Hense R. Ellis II, asst. atty gen., for appellee.

McMILLAN, Judge.

The appellant, Charlecy Dean Spangler, was convicted of promoting prostitution in the second degree, a violation of § 13A12-112, Code of Alabama 1975. She was sentenced to three years' imprisonment and was ordered to pay a fine of $2,500, a crime victims assessment of $500, and court costs. The trial court suspended the appellant's sentence and ordered her to spend two years on probation.

I.

The appellant argues that the trial court erred to reversal by denying her motion for a mistrial and motion for judgment of acquittal.

A.

The appellant's first motion for a mistrial was made after the prosecutor, in the jury's presence, requested that the appellant speak aloud so that a witness for the State could identify her voice. The appellant argues that the prosecutor's request amounted to a direct comment on the appellant's failure to testify, and that the trial court, which did not give a curative instruction after the comment was made, erred to reversal by denying her motion for a mistrial.

The trial court denied the State's request, and the appellant was not required to speak before the jury. Thus, the appellant's motion for a mistrial is not predicated upon her actually having been required to speak. Rather, the appellant appears to contend that by singling her out in this manner, the prosecutor called to the jury's attention her subsequent failure to testify.

A comment on failure to testify may violate Art. I, § 6, Alabama Constitution of 1901, or the Fifth or the Fourteenth Amendment of the United States Constitution. Ex parte Brooks, 695 So.2d 184 (Ala.1997). A defendant's right to be free from self-incrimination as set out in the Fifth Amendment are also stated in Art. 1, § 6, Alabama Constitution of 1901, which states:

"That in all criminal prosecutions, the accused ... shall not be compelled to give testimony against himself... ."

In order to be protected under the Fifth Amendment, a compelled communication must be testimonial. Schmerber v. California, 384 U.S. 757, 765, 86 S.Ct. 1826, 1832-33, 16 L.Ed.2d 908 (1966). In Doe v. United States, 487 U.S. 201, 108 S.Ct. 2341, 101 L.Ed.2d 184 (1988), the United States Supreme Court held that in order to be considered testimonial, a "communication must itself, explicitly or implicitly, relate a factual assertion or disclose information" that expresses "the contents of an individual's mind." Id. at 210 n. 9, 108 S.Ct. at 2347 n. 9. See Twenty-fifth Annual Review of Criminal Procedure, 84 Geo. L.J. 1115, 1212 (1996).

"The distinction between a testimonial and nontestimonial communication gives the government a great deal of freedom in conducting an investigation. The government may, for example, compel a person to reenact crime; shave his beard or mustache; try on clothing; dye her hair; demonstrate speech or other physical characteristics;¹⁹³⁰ furnish handwriting samples; hair samples, or fingerprints, have her teeth and gums examined; or take a blood-alcohol, breathalyzer, or urine test.

Id. at 1212-13.

In Burnett v. Collins, 982 F.2d 922 (5th Cir.1993), the appellant was charged with two counts of armed robbery committed against the same business on separate occasions. At trial, the appellant was required, in the jury's presence, to repeat words that were vulgar and threatening, and he was subsequently convicted of both counts of armed robbery. On appeal, he asserted that his Fifth Amendment privilege against self-incrimination as well as his right to due process of law had been violated because he was required to speak exactly the same words spoken by the armed robber, even though he elected not to testify during trial. In affirming the appellant's convictions, the Burnett Court held, in pertinent part:

"The Fifth Amendment privilege against self-incrimination protects a defendant from being compelled to provide information against himself, or otherwise provide the state with evidence of a testimonial or communicative nature. Pennsylvania v. Muniz, 496 U.S. 582, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990). It does not protect him from being compelled to produce real or physical evidence. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). A voice exemplar does not violate one's Fifth Amendment privilege against self-incrimination because the exemplar is merely a source of physical evidence. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973). A voice exemplar may even consist of the exact words spoken at the crime. Wade, supra."

Id. at 925 (emphasis in original). See also Lusk v. State, 367 So.2d 1088 (Fla.Dist.Ct.App.1979) (The defendant's "fifth amendment rights were simply not involved at all, because the privilege of 'silence' does not extend to nor include the furnishing of physical, nontestimonial evidence such as the revelation of the sound of one's voice.") Id., citing United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Parkin v. State, 238 So.2d 817 (Fla.1970), cert. denied, 401 U.S. 974, 91 S.Ct. 1189, 28 L.Ed.2d 322 (1971); Joseph v. State, 316 So.2d 585 (Fla.Dist.Ct.App.1975); Boyer v. State, 182 So.2d 19 (Fla. 4th DCA 1966), cert. denied, 388 U.S. 913, 87 S.Ct. 2118, 18 L.Ed.2d 1353 (1967); Higgins v. Wainwright, 424 F.2d 177 (5th Cir.1970), cert. denied, 400 U.S. 905, 91 S.Ct. 145, 27 L.Ed.2d 142 (1970); Springer v. State, 175 Ind.App. 400, 372 N.E.2d 466, 472 (1978); Doye v. State, 16 Md.App. 511, 299 A.2d 117 (1973).

"Voice identification testimony is the product of an observable physical characteristic made by an independent witness. It is the very type of objective factual evidence, independent of information communicated by the accused, that the privilege encourages police to seek. Moreover, independent identification testimony, unlike testimonial evidence derived from the accused, raises no question of reliance on the veracity of the accused. Any attempt by a suspect to disguise his voice is apt to be detected readily by those persons present who can compare the sample with his normal voice. Furthermore, there is no risk that one could be coerced into falsely accusing himself. It is difficult to imagine how a suspect could be induced to impersonate an unknown voice to incriminate himself.

"A suspect asked to speak for voice identification is not subjected to the same psychological pressure said to be generated by a demand for testimony,. It is no more unfair to ask a suspect to speak for voice identification than to ask him to appear in a lineup for visual identification. The psychological pressures are reduced to the same degree, through a limitation of alternatives. Deceit is improbable; the simple choice for a guilty person is between conduct likely to expose incriminating evidence and inferences as to guilt likely to flow from a successful refusal to participate."

People v. Ellis, 65 Cal.2d 529, 55 Cal.Rptr. 385, 387, 421 P.2d 393, 397 (1966).

As to any violation of the Fourteenth Amendment caused by the prosecutor's comment:

"The prosecutor's duty in a criminal prosecution is to seek justice. Although the prosecutor should prosecute with earnestness and vigor, she may not use 'improper methods calculated to produce a wrongful conviction.' Generally, the use of such methods is a ground for mistrial or reversal of a conviction if it results in an unfair trial in violation of the Due Process Clause."

84 Geo. L.J. at 1194.

"Even though evidence obtained from a voice identification is not within the privilege against self-incrimination, the question remains whether evidence and comment on a refusal to take such a test is admissible. It is clear that 'it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation.' (Miranda v. State of Arizona (1966), 384 U.S. 436, 468, fn. 37, 86 S.Ct. 1602, 1625, [fn. 37] 16 L.Ed.2d 694.) This doctrine is a logical extension (People v. Cockrell (1965) 63 Cal.2d 659, 47 Cal.Rptr. 788, 408 P.2d 116) of the rule of Griffin v. State of California (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, prohibiting comment on the failure of an accused to testify at trial. comment on refusal to testify was held to be 'a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly.' (Griffin v. State of California, supra, 380 U.S. at p. 614, 85 S.Ct. at p. 1232.) Such a rule is not applicable when, as in this case, the defendant has no constitutional right to refuse to speak solely for purposes of voice identification."

People v. Ellis, supra, 55 Cal.Rptr. at 387, 421 P.2d at 397

In a case in which the defendant was forced to submit to a voice exemplar, and on appeal argued that doing so violated his Fourteenth Amendment due process rights, the Court held that as long as the defendant's rights to be heard and to counsel were protected, there was no "denial of due process of law, but rather a proper implementation of the role of the court." State v. Olderman, 44 Ohio App.2d 130, 137, 336 N.E.2d 442, 447 (1975).

Moreover, a prosecutor's comment during his closing argument concerning the testimony of certain witnesses who had identified defendants' voices on tapes, referred to the fact that the jury did not have knowledge of the voices. The Court determined that this was not a comment on failure to testify, despite the fact that the defendants did not take the...