Whitt v. State
Decision Date | 09 March 1979 |
Citation | 370 So.2d 736 |
Parties | In re James Robert WHITT v. STATE of Alabama. Ex parte James Robert Whitt. 77-769. |
Court | Alabama Supreme Court |
James T. Baxter, III, of Berry, Ables, Tatum, Little & Baxter, Huntsville, for petitioner.
William J. Baxley, Atty. Gen., and Linda C. Breland, Asst. Atty. Gen., for the State, respondent.
Whitt was indicted for first degree murder arising out of a fatality in an automobile collision, was convicted of second degree murder, and was given a sentence of twenty-five years' imprisonment in the penitentiary. The Court of Criminal Appeals affirmed. We granted a petition for writ of certiorari to consider whether the district attorney's argument to the jury was an impermissible comment on defendant's failure to testify. We hold it was and reverse and remand.
The following statement of the case is taken from the Court of Criminal Appeals' opinion:
The defendant called no witnesses in his behalf nor did he take the stand and testify. None of the closing arguments to the jury appears in the record, although during the state's summation, the following statements by the district attorney were objected to by the defendant's counsel:
These remarks were promptly objected to on the grounds that they were comments upon the defendant's failure to take the stand and testify. Motions for mistrial were made in each instance on the same grounds.
With respect to the first comment, the court instructed the jury, viz:
With respect to the second comment, the court stated, viz:
With reference to the first comment, the Court of Criminal Appeals held that the remark was "indirect," being directed to the defendant's attorney, Tommy Baxter, that the remark was the same as where the evidence is said to stand "uncontradicted" (in which case the prosecutor has the right to comment), and that the remark was properly "eradicated" by the court's instructions. We agree with the Court of Criminal Appeals that this comment did not constitute reversible error.
With respect to the second comment, the Court of Criminal Appeals held that this remark was "argument in kind" to rebut remarks by petitioner's counsel, that it was only an "indirect" reference to petitioner's failure to testify, and, finally, that any possible reference to petitioner was "eradicated" by the court's instructions. We must disagree and hold that the remark was Not an "argument in kind," was Not an "indirect" reference to the petitioner's failure to testify, and was Not "eradicated" by the court's instructions.
The comment "The only person alive today that knows what happened out there that night is sitting right there" is almost identical to the comment " 'No one took the stand to deny it' " held to be a Direct comment on the defendant's failure to testify and held to be Reversible error in Beecher III, 294 Ala. 674, 320 So.2d 727 (1975) (per Justice Embry). The comment is very close to the comment made in Warren v. State, 292 Ala. 71, 288 So.2d 826 (1973). There, this Court held (per Justice McCall) that the argument " 'The only one that said he didn't sell it (marijuana) was the little brother" was also a Direct comment on the failure of the defendant to testify and constituted Reversible error. It is thus that we must conclude, based on the holding and rationale of those two cases, that the comment by the district attorney in this case was a Direct comment on the failure of the defendant to testify and constituted Error to reverse.
We cannot agree with the Court of Criminal Appeals that this comment was "argument in kind" to rebut remarks made by petitioner's counsel. It seems self-evident that it cannot be "argument in kind" when we do not have the defense counsel's argument to which this comment is...
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Peoples v. State
... ... The statute to which the trial judge referred is § 12-21-220, Code of Alabama 1975, which is based on Ala. Const. Art. I, § 8. Whitt v. State, 370 So.2d 736 (Ala.1979) ... The appellant neither requested nor objected to the above instruction, and he now claims that the court erred by giving the instruction. Even if he had objected, the giving of the charge would not have been reversible error, Tucker v ... ...
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... ... "Comments by a prosecutor on a defendant's failure to testify are highly prejudicial and harmful, and courts must carefully guard against a violation of a defendant's constitutional right not to testify. Whitt [v. State], [370 So.2d 736] at 739 [ (Ala.1979) ]; Ex parte Williams, 461 So.2d 852, 853 (Ala.1984); see Ex parte Purser, 607 So.2d 301 (Ala.1992). This Court has held that comments by a prosecutor that a jury may possibly take as a reference to the defendant's failure to testify violate Art ... ...
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Loggins v. State
... ... 1996), cert. denied, 520 U.S. 1146, 117 S.Ct. 1319, 137 L.Ed.2d 481 (1997) ... "`Comments by a prosecutor on a defendant's failure to testify are highly prejudicial and harmful, and courts must carefully guard against a violation of a defendant's constitutional right not to testify. Whitt [v. State, 370 So.2d 736 ], 739 [ (Ala.1979) ]; Ex parte Williams, 461 So.2d 852, 853 (Ala.1984) ; see Ex parte Purser, 607 So.2d 301 (Ala.Crim. App.[Ala.]1992) ... This Court has held that comments by a prosecutor that a jury may possibly take as a reference to the defendant's failure to ... ...
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...failure to testify in his own behalf shall not create any presumption against him. As we previously stated in Whitt [v. State, 370 So.2d 736, 739 (Ala.1979) ]: "`We suggest that, at a minimum, the trial judge must sustain the objection, and should then promptly and vigorously give appropria......