Terry v. State, 8 Div. 957
Decision Date | 28 June 1988 |
Docket Number | 8 Div. 957 |
Parties | Richard Lyle TERRY v. STATE. |
Court | Alabama Court of Criminal Appeals |
Donald E. Holt and Lindsey Mussleman Davis, Florence, for appellant.
Don Siegelman, Atty. Gen., and Stacey S. Houston, Asst. Atty. Gen., for appellee.
Richard Lyle Terry, the appellant, was convicted for the manslaughter of Orville E. Hampel, Jr., and was sentenced to ten years' imprisonment. Three issues are presented on this appeal from that conviction.
At trial, and in the presence of the jury, the prosecutor called Candice Terry as a witness. Mrs. Terry was the defendant's wife. Immediately, and outside of the presence of the jury, defense counsel requested a mistrial on the ground that the prosecutor called Mrs. Terry as a witness when he "knew full well that she intended to claim her special privilege." Outside of the presence of the jury, Mrs. Terry took the witness stand and invoked her marital privilege and refused to testify against her husband. See Alabama Code 1975, § 12-21-227.
It is improper for the prosecution to call as a witness one it knows will certainly invoke the privilege against testifying as a witness, with the sole purpose of having the jury observe that invocation. See Annot., 19 A.L.R.4th 368, 373 (1983); Allison v. State, 331 So.2d 748, 750-51 (Ala.Cr.App.), cert. denied, 331 So.2d 751 (Ala.1976); Shockley v. State, 335 So.2d 659, 661-62 (Ala.Cr.App.1975), affirmed, 335 So.2d 663 (Ala.1976), all involving a claim of the privilege against self-incrimination. Thomas v. State, 473 So.2d 627, 630 (Ala.Cr.App.1985) (emphasis added). We believe this to be the better rule and practice.
However, in Wyatt v. State, 35 Ala.App. 147, 154, 46 So.2d 837, 843, cert. denied, 254 Ala. 74, 46 So.2d 847 (1950), the wife was called as a prosecution witness, without objection, and claimed her privilege in the presence of the jury. There, it was held:
Wyatt, 35 Ala.App. at 154, 46 So.2d at 843 (emphasis in original).
See also Williams v. State, 420 So.2d 819, 821 (Ala.Cr.App.1982); Hopkins v. State, 429 So.2d 1146, 1153 (Ala.Cr.App.1983). Under Hopkins, Williams, and Wyatt, the prosecutor's conduct in calling Mrs. Terry to testify was not improper.
Notwithstanding the fact that the prosecutor violated the preferred rule by calling Mrs. Terry as a witness in the presence of the jury, we find no reversible error present. In Labbe v. Berman, 621 F.2d 26 (1st Cir.1980), the wife was required to invoke her privilege not to testify against her husband in the presence of the jury. That court's comments are appropriate here:
Labbe, 621 F.2d at 27-28 (footnote omitted).
In this case, the prosecutor did not attempt to gain any advantage from Mrs. Terry's refusal to testify. When he called her as his witness, the prosecutor did not identify Mrs. Terry as the defendant's wife. Defense counsel had been informed that "the State's chief witness" was Mrs. Terry and she had indicated to the district attorney that she would not testify. However, defense counsel had filed no motion seeking to prevent Mrs. Terry from being called as a witness, even though before trial counsel had indicated that he "might do so." Defense counsel did file two pretrial motions in limine, but neither motion sought to prevent Mrs. Terry from being called as a witness. One motion states, "unless the wife decides to testify, any kind of reference to or innuendo about an alleged kidnapping would be prejudicial to the Defendant."
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