Whitt v. State, 8 Div. 43

• Decision Date: 25 July 1978
• Docket Number: 8 Div. 43
• Citation: 370 So.2d 730
• Parties: James Robert WHITT v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 730

370 So.2d 730

James Robert WHITT v. STATE.

8 Div. 43.

Court of Criminal Appeals of Alabama.

July 25, 1978.

Rehearing Denied Aug. 29, 1978.

James T. Baxter, III, of Berry, Ables, Tatum, Little & Baxter, Huntsville, for appellant.

William J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., for the State, appellee.

BOOKOUT, Judge.

Murder in the second degree; sentence: 25 years imprisonment.

On October 9, 1976, at approximately 1:00 A.M., Randolph Scott, while driving north out of Huntsville, Madison County, Alabama, observed appellant in a white Chevrolet in front of him. Appellant's vehicle was also traveling north on a four lane divided highway with a grass median. Scott observed appellant's vehicle run off the right hand side of the highway, and then a few feet later observed it run off into the grass median dividing the highway. After traveling further, Scott saw appellant traveling north in the south bound side of the highway at a speed of approximately 65 m. p. h. Further down the highway Scott again saw the appellant's Chevrolet after it had collided with another vehicle. Scott, however, did not see the actual collision. He walked to the Chevrolet, and seeing no one, approached the other vehicle. He observed a girl, identified later as Vickie Lynn Schmidt, caught by the window on the driver's side of her automobile. She appeared to be deceased. He returned to the Chevrolet and saw appellant lying in the seat of the Chevrolet.

Trooper Jimmy Smith testified he came upon the accident shortly after it happened. The victim's automobile was in the south bound lane, and appellant's automobile was partly in the south bound lane and partly in the median. He also stated Ms. Schmidt appeared to be deceased, with multiple lacerations, abrasions, and possibly a broken neck. Trooper Smith diagramed his analysis of the accident and indicated the victim's automobile was traveling south at the time of the collision while appellant's vehicle was traveling north.

A carbon copy of a blood alcohol test consent form signed by appellant was introduced as well as the test results. The results indicated appellant's blood contained 0.26 percent ethyl alcohol at the time of the test (two hours and forty-five minutes after the collision) and 0.32 percent alcohol at the time of the collision. The toxicologist indicated these levels would seriously impair any skill necessary for driving an automobile.

Dr. Forrest Butler testified he examined the victim at the Huntsville Hospital emergency room. He stated Ms. Schmidt's death was caused by the collision, the victim having suffered multiple abrasions and contusions, a fractured mandible, and possible skull fractures.

Detective Yearick of the Huntsville Police Department stated he went to the scene of the collision around 1:30 A.M. There he found a Seagrams 7 whiskey bottle in a paper bag in appellant's automobile which he turned over to Trooper Smith at the Huntsville hospital.

I

Appellant asserts the court below erred in failing to grant a mistrial pursuant to Title 15, § 305, Code of Alabama 1940, as recompiled 1958, because of certain remarks in the prosecutor's closing argument alleged to be prejudicial comments on appellant's failure to testify. The pertinent argument of the attorneys and ruling of the court appear in the record as follows:

"MR. MILLER: What I say, of course, is not evidence. I would not assume that I can tell you something that is not a fact, and I don't try to assume the Judge's duty in this case. He will tell you what the law is and what the presumptions are and it is for your determination as to the truth and validity of the facts that the State has presented from the stand. I submit to you that there is not one fiber of evidence to rebut murder in the first degree from Tommy Baxter.

"MR. BAXTER: Judge, now, we object and move for a mistrial on the grounds that's a comment on the Defendant's failure to take the stand.

"THE COURT: Ladies and gentlemen, disregard the Prosecuting Attorney's last remark in regard to no evidence from Tommy Baxter in this case. Tommy Baxter is an attorney and he is not giving evidence in this case whatsoever. That is for you to disregard and not consider that remark whatsoever in your deliberations in arriving at a verdict in this case.

"I deny your motion.

"MR. SIMPSON: Defense counsel says that not one State witness told you how it happened out there. Well, that's right. We don't have a State's witness that was standing in front of Edward's Warehouse and watched the accident and took photographs. We didn't have a TV camera out there trained on the road. I couldn't tell you exactly what happened, that's true. The only person alive today that knows what happened out there that night is sitting right there.

"MR. BAXTER: Judge, we object and move for a mistrial on the grounds that that's a comment upon the Defendant's failure to take the stand.

"MR. SIMPSON: It's a comment in kind, Judge, on what he argued in his closing argument.

"THE COURT: I am going to instruct the jury though to disregard the last remark in regard to that. The statement made by the District Attorney in his argument is only his inferences from the evidence, but I want you to disregard the last remark, just what he said.

"I will deny your motion."

As to the first remark, we see little, if any, merit to appellant's contention that this refers to appellant's failure to testify. The remark is specifically directed toward Tommy Baxter, appellant's trial counsel, and not toward appellant. Clearly the trial judge, who was in the best position to interpret the prosecutor's remark, attached that meaning to the statement and instructed the jury accordingly and correctly to disregard the remark. Any possible indirect alternate meaning the remark may have carried was also eradicated by the court's prompt instruction to the jury. Smith v. State, Ala.Cr.App., 342 So.2d 466 (1977); Tillis v. State, 292 Ala. 521, 296 So.2d 892 (1974). Where the trial judge immediately instructs the jury to disregard such remarks, there is a prima facie presumption against error. Robinson v. State, Ala.Cr.App., 352 So.2d 11 (1977), cert. denied, Ala., 352 So.2d 15 (1977); Williams v. State, 43 Ala.App. 343, 190 So.2d 556 (1966).

Additionally, we conclude that the only other rational significance the jury could have attached to the remark would have been that the statement pointed to the lack of contradiction of the State's evidence. The defense called no witnesses during the trial and put forth no evidence. "Where the State's evidence does stand uncontradicted, the prosecutor does have the right to point this out to the jury." Beecher v. State, 294 Ala. 674, 320 So.2d 727 (1975); McCulloch v. State, Ala.Cr.App., 338 So.2d 187 (1976). The general rule is that such statements by the prosecutor to the effect that the State's evidence stands uncontradicted are permissible and are not direct references to appellant's failure to testify where the defendant is not the only person capable of contradicting the State's proof. Smith, supra; Gissendaner v. State, Ala.Cr.App., 338 So.2d 1025 (1976), cert. denied, Ala., 338 So.2d 1028 (1976); Sellers v. State, 48 Ala.App. 178, 263 So.2d 156 (1972). Here appellant had available potential witnesses who arrived at the scene after the collision as well as medical personnel at the hospital, none of whom were called to testify for the defense. Considering the very indirect thrust of the remark, the uncontradicted evidence of the State's case, the availability of other potential witnesses, and the trial court's immediate instructions to the jury to disregard the remark, we find no reversible error.

The second remark appears to be an "argument in kind" to rebut remarks made by the appellant's counsel as in Tillis, supra. As such, the remark cannot be considered to be a direct attempt by the prosecutor to point out appellant's failure to testify. It is at most merely an incidental and indirect reference to that point by way of rebutting the defense attorney's argument. Adair v. State, 51 Ala.App. 651, 288 So.2d 187 (1974). Such statements, not having direct reference to the appellant's failure to testify, must be interpreted in light of what has preceded them in the case, the evidence against the appellant, and other circumstances in the trial tending to indicate whether the solicitor was aiming his remarks at appellant's failure to testify. Williams, supra.

The appellant cites Lamberth v. State, 54 Ala.App. 233, 307 So.2d 43 (1975) as controlling. However, that case is distinguishable upon its facts. In Lamberth the prosecutor made a direct reference by name to appellant and his failure to "tell" the jury about the accident. Further, the prosecutor's reference appears to have been intended as a direct reference to the accused's failure to testify rather than having been made incidentally as "argument in kind" as in this case. Additionally, there was a delay in the court's instructions to the jury to disregard the remark in Lamberth, whereas here the court's instructions were immediate and addressed directly to the remark in question. Smith, supra.

We find no harmful error in the court's refusal to grant a mistrial. There was no stressing by the trial judge of this remark. The argument was quite evidently made on the basis of what the prosecutor intended to be "argument in kind" and not as a direct reference to appellant's failure to testify. And finally, the evidence of guilt is exceedingly strong with no evidence whatsoever presented to support acquittal. Beecher, supra; Adair, supra. See also: Williams, supra; Tillis, supra; Smith, supra.

II

Appellant next contends that under the instant indictment (drawn under the universal malice theory of first degree murder), second degree murder is not a lesser included offense. In the same vein, he asserts that neither the malice nor the intent requisite to convict for murder in the...