Waldrop v. State

• Decision Date: 12 October 1982
• Docket Number: 1 Div. 286
• Citation: 424 So.2d 1345
• Parties: David Lee WALDROP v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1345

424 So.2d 1345

David Lee WALDROP v. STATE.

1 Div. 286.

Court of Criminal Appeals of Alabama.

Oct. 12, 1982.

As Corrected on Denial of Rehearing Nov. 23, 1982.

Certiorari Denied Jan. 28, 1983

Alabama Supreme Court 82-226 and 82-227.

Thomas M. Haas and James M. Byrd, Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and Edward E. Carnes and William D. Little, Asst. Attys. Gen., for the State.

BOWEN, Judge.

On the afternoon of July 11, 1977, Richard Hacker, Assistant Manager of Delchamps Store No. 10, and Terry Stainback, a part-time cashier, left the store with the afternoon bank deposit. Thirteen days later their bodies were discovered in a wooded area in west Mobile County. Each victim died from a shotgun wound to the head. In May of 1980, the defendant was indicted for the capital offenses involved in this double murder and robbery. Alabama Code 1975, Sections 13-11-2(a)(2) and (10). A jury found the defendant "guilty of the capital felony as set out in the indictment." After a sentencing hearing the jury fixed the punishment at life imprisonment without parole. The trial and all proceedings were conducted in accordance with Beck v. State, 396 So.2d 645 (Ala.1981). This case must be reversed because the district attorney was not only the prosecutor but the State's main witness against the defendant.

I

The district attorney testified as a witness at the defendant's trial to a confession and written statement made by the defendant following his arrest. Under the State's evidence, the district attorney was the State's principal witness. However, there was at least one other witness who could have testified to the statement the defendant made to the district attorney.

The propriety of allowing the prosecutor to testify is not questioned in this case. Rather, the defendant attacks the ruling of the trial judge allowing the district attorney to continue prosecuting the case once he had testified.

The district attorney was the last witness called by the State to testify in the State's case in chief. After the State rested, defense counsel moved "to dismiss this charge on the grounds that the District Attorney has occupied a dual role here. He has become a witness in the case he's prosecuting." Defense counsel requested the trial judge to dismiss the case or in the alternative "to dismiss Mr. Galanos from it, because he is now a highly material witness before the jury and for obvious reasons that deprives the Defendant of a fair trial. * * * Now when he argues to the jury he's not arguing as a prosecutor, he's arguing as the prosecutor and the main witness."

The rule was clearly stated in Maund v. State, 254 Ala. 452, 461, 48 So.2d 553 (1950).

"The rule governing such procedure is well stated in 70 Corpus Juris page 183, as follows: 'Although a prosecuting attorney Here, the district attorney went to trial knowing full well that he would be a necessary witness. He even testified at the hearing on the defendant's motion to suppress held immediately before trial.

                is competent to testify, his testifying is not approved by the courts except where it is made necessary by the circumstances of the case, and, if he knows before the trial that he will be a necessary witness, he should withdraw and have other counsel prosecute the case.   The propriety of allowing the prosecutor to testify is a matter largely within the trial court's discretion.  The testimony of a prosecuting attorney has been admitted where, unknown to the attorney before the trial, his testimony became valuable for the purpose of corroborating other witnesses in impeaching a defendant witness;  to explain the surprise occasioned by the testimony of a witness called by the prosecuting attorney when such witness contradicts statements made to him previously;  to show what happened while he accompanied an officer serving a search warrant;  to establish a confession made to him in a case where there is no provisions of law for anyone else to conduct the trial;  to show admissions made by defendant to him, and to establish facts occurring before a grand jury.  So the prosecuting attorney may testify where the case is tried entirely by an assistant prosecuting attorney.' "  (emphasis added)
                

In Stringer v. State, 372 So.2d 378, 381 (Ala.Cr.App.), cert. denied, 372 So.2d 384 (Ala.1979), we held that the trial court did not commit reversible error by allowing the prosecutor to testify to admissions made by the defendant to him. However, there we specifically found that "(t)here is no evidence in the record that the district attorney formed the intention to testify in advance of trial." Such a finding is directly contrary to the evidence in this case.

There has never been any claim that the district attorney was the only witness who could testify to certain particular facts and, as noted, it cannot be said that the district attorney learned only after the trial started that he would become a witness. Argument has not been made that the district attorney testified as a matter of necessity or that he was the only one who could prosecute the defendant.

We find no justification for the district attorney's actions. We find no exception of his duty to withdraw from the prosecution of the defendant once he had testified as a material witness. Anno. 54 A.L.R.3d 100, Section 5(b) (1973).

"A prosecuting attorney is not incompetent to be a witness, State v. Stiltner, 61 Wash.2d 102, 377 P.2d 252, and the trial court may exercise discretion in determining to what extent and as to what matters he may be permitted to testify. State v. Lee, 203 S.Ct. [S.C.] 536, 28 S.E.2d 402, 149 ALR 1300. However, the general and uniform rule is that the right of a prosecuting attorney to testify in a criminal case 'is strictly limited to those instances where his testimony is made necessary by the peculiar and unusual circumstances of the case. Even then, his functions as a prosecuting attorney and as a witness should be disassociated. If he is aware, prior to trial, that he will be a necessary witness, or, if he discovers this fact in the course of the trial, he should withdraw and have other counsel prosecute the case.' Tomlin v. State, 81 Nev. 620, 407 P.2d 1020. See also, Jenkins v. State, 242 Miss. 646, 136 So.2d 580; Adams v. State, 202 Miss. 68, 30 So.2d 593; State v. Nicholson, Mo.App., 7 S.W.2d 375; Robertson v. Commonwealth, 269 Ky. 317, 107 S.W.2d 292; Robinson v. United States, 8 Cir., 32 F.2d 505, 66 ALR 468; State v. Blake, 157 Conn. 99, 249 A.2d 232; Clark v. State, Okl.Cr. 370 P.2d 46.

"The above general rule announced in the case law is expressed in the rules of this Court. Supreme Court Rule 4.19 (now repealed but in effect at the time this "In this case the prosecuting attorney occupied conflicting positions as a witness for the State and as a prosecutor, Adams v. State, supra and as a public official 'in whom the public has reposed confidence, his evidence is ordinarily given greater weight than that of an ordinary witness, and the natural tendency in such case is for defendant to question the fairness of a trial when (the prosecutor) becomes a witness for the state. Therefore, he should, when that becomes necessary, so conduct himself as to foster and demonstrate the fact that he is not actively participating as a prosecutor, but only as a witness, truthfully and impartially giving competent testimony.' Frank v. State, 150 Neb. 745, 35 N.W.2d 816." State v. Hayes, 473 S.W.2d 688, 64 A.L.R.3d 93 (Mo.1971).

                case was tried) provided that 'when a lawyer is witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel.  Except, when essential to the ends of justice, a lawyer should avoid testifying in court in behalf of his client.'   For the present rule, see DR5-101 and DR5-102, V.A.M.R.  See State v. White, 339 Mo. 1019, 99 S.W.2d 72, where the application of the rule to testimony by a prosecuting attorney is discussed, but where no objection was made to the testimony of the prosecutor
                

This rule has also found expression in the Code of Professional Responsibility of the Alabama State Bar, DR5-102(A) which provides that where a lawyer is a witness for his client, except as to merely formal matters, he should leave the trial of the case to other counsel. See also Canon 19 of the American Bar Association's Canons of Ethics.

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).

In closing argument, the prosecutor also argued his own credibility to the jury--a practice condemned in State v. McCuistion, 88 N.M. 94, 537 P.2d 702 (1975).

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 discretion of the trial judge. However,...