Tarver v. State

• Decision Date: 10 June 1986
• Docket Number: 1 Div. 501
• Citation: 492 So.2d 328
• Parties: Bobby TARVER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 328

492 So.2d 328

Bobby TARVER v. STATE.

1 Div. 501.

Court of Criminal Appeals of Alabama.

June 10, 1986.

Al Pennington of Pennington, McCleave & Patterson, Mobile, for appellant.

Charles A. Graddick, Atty. Gen. and William D. Little, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

This appeal follows a conviction for the offense of capital murder and a sentence of death. For the reasons outlined below, the conviction is reversed and this case is remanded for a new trial. Because of our decision to reverse and remand this case for a new trial, only a brief outline of the facts will be presented.

On December 8, 1981, the appellant took a loaded shotgun to a "Seven Eleven" convenience store near the corner of Michigan and Government Streets in Mobile. The appellant originally planned to rob the convenience store, but changed his mind when he realized that the store was crowded. A taxicab was parked near the store and its operator, Percy Gibson, was inside the cab. The appellant walked over to the taxicab, put the shotgun to Gibson's neck and demanded that Gibson give him all of his money. After Gibson gave the appellant 40 cents, the appellant forced Gibson out of the cab and made him walk around the corner. The appellant followed Gibson with the loaded shotgun.

According to the appellant's statement, he dropped the shotgun and as he did it accidentally discharged. The appellant ran down the street to a nearby car and later tried to implicate an acquaintance by the name of "Arthur Patterson" as the person who had robbed and killed the cab driver.

According to the autopsy report, Gibson suffered a massive "contact wound" on the side of his abdomen from the shotgun blast. Testimony elicited at trial indicated that the muzzle of the shotgun was pressed against Gibson's skin or clothing when the shotgun discharged.

On the night of the shooting, the appellant called Sergeant Rivers Johnson, with the Mobile Police Department, and, after giving a false name, requested that Sergeant Johnson meet with him. According to Sergeant Johnson's testimony, the appellant volunteered to go to the police station to discuss the shooting incident, even though he was not a suspect at the time. The day after the shooting, Sergeant Joseph Connick, with the Mobile Police Department, went to the appellant's residence, advised the appellant of his constitutional rights, and placed him under arrest. Sergeant Connick testified that he went to arrest the appellant after he was implicated by another black man who was with the appellant on the night of the shooting. According to Sergeant Connick, the appellant was again advised of his constitutional rights after they arrived at the police station, but the appellant refused to give a statement at that time.

Around 9:00 a.m. on the morning of December 9, 1981, Mobile County District Attorney Chris Galanos arrived at the police station after receiving a call informing him of the appellant's arrest. Galanos testified at trial that he talked with the appellant, advised him of his constitutional rights and reviewed a "waiver of rights" form with the appellant. According to Galanos, the appellant refused to give a statement and refused to sign the waiver form. After Galanos left the police station, the appellant changed his mind and decided to talk. Galanos was then summoned and he returned approximately an hour and a half later and participated in the questioning of the appellant.

Lieutenant Vincent Richardson, Mobile Police Department, testified that soon after Galanos left the police station the first time, the appellant summoned him and indicated that he wanted to give a statement. The appellant was advised of his constitutional rights and waived his right to have an attorney present. Both Richardson and Galanos testified that no threats or promises were made to the appellant in order to induce him to make the statement. The statement was tape recorded and later transcribed.

Although several issues are raised on appeal, we will consider only one of the issues at this time. The argument advanced on appeal which has merit concerns the testimony given at trial by the district attorney, Chris Galanos. Galanos was the sole prosecutor of the case. Galanos gave the opening and closing arguments; called all of the State's witnesses; and even called himself as a witness to testify on behalf of the State. Galanos's testimony helped to establish the voluntary nature of the appellant's incriminating statement. According to the appellant, Galanos's dual role as prosecutor and witness constitutes reversible error because Galanos "added the prestige and integrity of his office and position in stating as a fact for the jury's consideration that no wrongdoing brought about [the appellant's] confession." In support of his position, the appellant cites Waldrop v. State, 424 So.2d 1345 (Ala.Cr.App.1982), appeal after remand, 462 So.2d 1021 (Ala.Cr.App.1984), cert. denied, 472 U.S. 1019, 105 S.Ct. 3483, 87 L.Ed.2d 618 (1985).

In Waldrop, supra, District Attorney Chris Galanos not only prosecuted the State's capital murder case against Waldrop, but he also took the stand and gave testimony which helped to establish the validity of Waldrop's confession. After an excellent discussion of the relevant case law, this court in Waldrop, per Judge Bowen, concluded as follows:

"Under the circumstances, allowing the district attorney to continue to prosecute this case and argue to the jury had the effect of allowing him to violate the rule that it is not permissible for the solicitor to make an emphatic statement that the defendant is guilty of the crime charged. White v. State, 294 Ala. 265, 270, 314 So.2d 857 (1975). '[I]t has never been contemplated or allowed that an emphatic statement by a solicitor, of his own knowledge, could be made to the effect that the defendant is actually guilty of the crime charged in the indictment.' Rowland v. State, 31 Ala.App. 605, 607, 20 So.2d 881, (1945).

"...

"So sacred and fundamental is the principle that the jury not be improperly influenced that our Supreme Court has held that it constituted reversible error to allow the Sheriff, who had acted as the bailiff to the jury, to testify as a witness for the State even though there was no testimony of any conversation between the sheriff and the members of the jury. There the mere 'possibility of influence exerted on the jury's verdict by the sheriff-bailiff was sufficient to deprive the defendant of his right to trial by an impartial jury.' Chancellor v. State, 291 Ala. 413, 282 So.2d 242 (1973).

"We fully recognize that the matter of allowing a prosecutor to become a witness is largely within the...