Ex parte Collier Kirksey. ( 2014 )


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  • Rel: 09/12/2014
    Notice: This opinion is subject to formal revision before publication in the advance
    sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
    Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
    0649), of any typographical or other errors, in order that corrections may be made before
    the opinion is printed in Southern Reporter.
    SUPREME COURT OF ALABAMA
    SPECIAL TERM, 2014
    ____________________
    1130913
    ____________________
    Ex parte Collier Kirksey
    PETITION FOR WRIT OF CERTIORARI
    TO THE COURT OF CRIMINAL APPEALS
    (In re: Collier Kirksey
    v.
    State of Alabama)
    (Mobile Circuit Court, CC-12-2808;
    Court of Criminal Appeals, CR-12-1383)
    PARKER, Justice.
    1130913
    WRIT DENIED.   NO OPINION.
    Stuart, Bolin, Murdock, Shaw, Main, Wise, and Bryan, JJ.,
    concur.
    Moore, C.J., dissents.
    2
    1130913
    MOORE, Chief Justice (dissenting).
    Collier Kirksey was convicted of first-degree robbery,
    see § 13A-8-41, Ala. Code 1975, and was sentenced to life in
    prison for his role as an accomplice to a robbery at a Winn-
    Dixie grocery store. The Court of Criminal Appeals affirmed
    his conviction and sentence in an unpublished memorandum.
    Kirksey v. State (No. CR-12-1383, April 18, 2014), ___ So. 3d
    ___   (Ala.     Crim.   App.   2014)    (table).   Kirksey   makes   two
    arguments in his petition for certiorari review: That the
    evidence was insufficient to convict him of first-degree
    robbery   and    that   the    prosecutor   improperly   commented    on
    Kirksey's decision not to testify. I believe the second issue
    has merit.
    "[I]n all criminal prosecutions, the accused ... shall
    not be compelled to give evidence against himself ...." Art.
    I, § 6, Ala. Const. 1901. Section 12-21-220, Ala. Code 1975,
    codifies and elaborates on this principle:
    "On the trial of all indictments, complaints or
    other criminal proceedings, the person on trial
    shall, at his own request, but not otherwise, be a
    competent witness, and his failure to make such a
    request shall not create any presumption against him
    nor be the subject of comment by counsel. If the
    district attorney makes any comment concerning the
    defendant's failure to testify, a new trial must be
    3
    1130913
    granted on motion filed within 30 days from entry of
    the judgment."
    (Emphasis added.)
    During closing argument in Kirksey's trial the prosecutor
    stated that "every single employee in that store got up here
    and took the stand and took an oath except for [Kirksey]."
    Defense counsel immediately moved for a mistrial because the
    prosecutor had commented on Kirksey's decision not to testify.
    The trial court then immediately stated:
    "Ladies and gentlemen of the jury, I'm going to
    instruct you in a few minutes when counsel are
    through with their arguments that every defendant in
    a criminal proceeding has an absolute right to --
    every citizen has an absolute right not to testify
    in a criminal proceeding brought against them, and
    the jury will be instructed specifically [that] no
    inference whatsoever can be drawn from the exercise
    of those constitutional rights."
    (Emphasis   added.)   Kirksey   argues   that   the   trial   court's
    admonition was insufficient to cure the prosecutor's error.
    "[C]omment on the defendant's failure to testify is to be
    scrupulously avoided." Arthur v. State, 
    575 So. 2d 1165
    , 1186
    (Ala. Crim. App. 1990). Such comments "are highly prejudicial
    and harmful." J.E. v. State, 
    997 So. 2d 335
    , 340 (Ala. Crim.
    App. 1997). "[W]here a prosecuting officer improperly comments
    on a defendant's failure to testify, and the trial court
    4
    1130913
    sustains the objection thereto and promptly and appropriately
    instructs the jury of the impropriety of such remarks, then
    such remarks should not cause a reversal of the case." Troup
    v. State, 
    32 Ala. App. 309
    , 319, 
    26 So. 2d 611
    , 620 (1946)
    (emphasis added). In Whitt v. State, 
    370 So. 2d 736
    , 739 (Ala.
    1979), this Court delineated the content of an appropriate
    curative instruction when a prosecutor has commented on a
    defendant's failure to testify.
    "We suggest that, at a minimum, the trial judge
    should sustain the objection, and should promptly
    and vigorously give appropriate instructions to the
    jury. Such instructions should include that such
    remarks are improper, and to disregard them; that
    statements of counsel are not evidence; that under
    the law the defendant has the privilege to testify
    in his own behalf or not; that he cannot be
    compelled to testify against himself; and, that no
    presumption of guilt or inference of any kind should
    be drawn from his failure to testify."
    Kirksey, quoting this language from Whitt, as quoted in
    Harrison v. State, 
    706 So. 2d 1323
    , 1325 (Ala. Crim. App.
    1997), claims that the curative instruction here was weak and
    incomplete and that it failed to instruct the jury that the
    offending comment was improper and must be disregarded. The
    Court of Criminal Appeals, to the contrary, found that the
    trial court appropriately cured the error when it instructed
    5
    1130913
    the jury "to disregard the improper reference to Kirksey's
    failure to testify and told them not [to] draw any inferences
    from the statement."
    Although Kirksey is arguing in accord with this Court's
    precedent, that precedent is ill founded. In my view the final
    sentence of § 12-21-220 should govern: "If the district
    attorney makes any comment concerning the defendant's failure
    to testify, a new trial must be granted on motion filed within
    30 days from entry of the judgment." (Emphasis added.) Once
    the prosecutor directly commented on Kirksey's failure to
    testify,    Kirksey   had   a   statutory     right   to   a   new   trial,
    regardless of the adequacy of the trial court's attempt at a
    curative instruction.
    In Broadway v. State, 
    257 Ala. 414
    , 
    60 So. 2d 701
    (1952),
    this Court held that the last sentence of § 12-21-220 was
    unconstitutional as a legislative invasion of the judicial
    sphere, contrary to the separation-of-powers doctrine. See
    also Smith v. State, 
    370 So. 2d 312
    , 317 n.3 (Ala. Crim. App.
    1979) (noting that to give the last sentence of § 12-21-220
    "the mandatory effect which its language imports" "would
    violate    the   Separation     of   Powers   Section (§       43)   of   the
    6
    1130913
    Constitution of Alabama" (citing Broadway)). I find Broadway
    unpersuasive. The legislature in 19491 determined that a
    prosecutor's comment on the defendant's failure to testify was
    ineradicable and incurable, justifying an automatic mistrial
    at the defendant's request, and amended what is now § 12-21-
    220    by     adding     the   substance     of   the   final     sentence.     By
    judicially striking this sentence, the Court invaded the
    legislative prerogative of prescribing rules of procedure for
    the courts. The judicial article of the Alabama Constitution,
    adopted in 1973, authorizes the Supreme Court to create rules
    of procedure that supersede statutes, with two caveats: the
    rules may not change substantive rights and the legislature
    still retains the power to change any court rule by "a general
    act of statewide application." Art. VI, § 150, Ala. Const.
    1901. No rule of court has superseded the last sentence of §
    12-21-220.        Therefore,     if   this    Court     had    not   found   that
    sentence to be unconstitutional as a legislative invasion of
    the judicial sphere, it would still be valid. See § 12-1-1,
    Ala.       Code   1975    (stating    that    statutes        regulating     court
    1
    Act No. 124, Ala. Acts 1949.
    7
    1130913
    procedure are valid in the absence of contravening court
    rules).
    In Beecher v. State, 
    294 Ala. 674
    , 
    320 So. 2d 727
    (1975),
    Justice Jones, concurring specially, joined by Chief Justice
    Heflin, stated: "I believe that the constitutional guarantee
    of the right against self incrimination is of such quality
    that its violation is incurable by any attempt on the part of
    the trial court to disabuse the minds of the jury with respect
    thereto. This is a bell once rung which cannot be 
    unrung." 294 Ala. at 684
    , 320 So. 2d at 736. This statement is consistent
    with the legislature's determination that such an error is
    incurable. In Ex parte Tucker, 
    454 So. 2d 552
    (Ala. 1984),
    this Court stated: "Where there is a direct reference to
    defendant's failure to testify, it constitutes ineradicable
    prejudicial error requiring reversal. Section 6, Const. of
    Ala. of 1901, is 
    violated." 454 So. 2d at 553
    (emphasis
    added). The Court further stated: "In our view, these comments
    most probably made an indelible impression upon the jury,
    alerting the jury to the defendant's opportunity to refute the
    State's case. After such a comment, a defendant must either
    testify, or admit guilt by silence." 
    Id. Noting the
    argument
    8
    1130913
    that any prejudicial impact had been eradicated by the trial
    court's instructions to disregard the comments, the Court
    repeated: "[W]e consider the comments to be so prejudicial as
    to be ineradicable." 
    Id. Having judicially
    excised in 1952 the last sentence of §
    12-21-220, this Court generally holds that a prosecutor's
    direct comment on the failure of a defendant to testify is
    curable error. Ex parte Wilson, 
    571 So. 2d 1251
    , 1261 (Ala.
    1990). Nonetheless, the observations by Justice Jones, joined
    by     Chief    Justice    Heflin,   in   Beecher   and   this    Court's
    statements in Tucker indicate that § 12-21-220, far from being
    an invasion of the judicial prerogative, is a reasonable and
    necessary remedy for a direct reference to the defendant's
    decision not to testify.
    The existence of similar statutory provisions in other
    states has not prompted their appellate courts to strike those
    provisions as "plainly an infringement by legislative power
    upon judicial power." 
    Broadway, 257 Ala. at 418
    , 60 So. 2d at
    704.      A    Louisiana   statute mandates    a    mistrial     upon   the
    defendant's motion if the district attorney comments on a
    9
    1130913
    defendant's failure to testify.2 An admonition or curative
    instruction is insufficient to repair the error. See State v.
    Hall, 
    297 So. 2d 413
    , 415 (La. 1974) (noting that "[a]
    mistrial is mandatory" upon motion by the defendant when a
    "prohibited comment" is made).
    2
    "Upon motion of a defendant, a mistrial shall be
    ordered when a remark or comment, made within the
    hearing of the jury by the ... district attorney ...
    during the trial or in argument, refers directly or
    indirectly to:
    "....
    "(3) The failure of the defendant to
    testify in his own defense; ...
    "....
    "An admonition to the jury to disregard the
    remark or comment shall not be sufficient to prevent
    a mistrial. ..."
    La. Code Crim. Proc. art. 770.
    10
    1130913
    An Oklahoma statute3 makes it "mandatory on the trial
    court to grant a new trial when a prosecutor comments on the
    fact that defendant did not testify." Clark v. State, 91 Okla.
    Crim. 210, 215, 
    218 P.2d 410
    , 413 (1950). "[B]y reason of the
    statute no instruction by the court could correct or remedy
    such error." Patman v. State, 
    95 Okla. Crim. 415
    , 418, 
    247 P.2d 308
    ,    311    (1952).   Far   from   considering    that   law   as
    intruding on the judicial power or "depriv[ing] the circuit
    court of its constitutional power to function in a judicial
    way," 
    Broadway, 257 Ala. at 418
    , 60 So. 2d at 704, the
    Oklahoma          Court   of   Criminal   Appeals   quoted     the   following
    statement: "'It matters not what we may think of the policy of
    this statute. It is mandatory, and therefore we have no
    discretion in the matter, but it is our plain duty to enforce
    3
    "In the trial of all indictments, informations,
    complaints and other proceedings against persons
    charged with the commission of a crime, offense or
    misdemeanor   before   any   court   or   committing
    magistrate in this state, the person charged shall
    at his own request, but not otherwise, be a
    competent witness, and his failure to make such
    request shall not create any presumption against him
    nor be mentioned on the trial; if commented upon by
    counsel it shall be ground for a new trial."
    Okla. Stat. tit. 22, § 701 (emphasis added).
    11
    1130913
    it.'" 
    Patman, 95 Okla. Crim. at 416
    , 247 P.2d at 310 (quoting
    Nowlin v. State, 
    7 Okla. Crim. 27
    , 32, 
    121 P. 791
    , 792
    (1912)).
    Likewise, in my view, the Broadway Court had the "plain
    duty" to enforce § 12-21-220 as written, and thus improperly
    declared that the last sentence was unconstitutional.4 When
    the constitutionality of a legislative act is challenged, "it
    is the recognized duty of the court to sustain the act unless
    it is clear beyond reasonable doubt that it is violative of
    the fundamental law." Alabama Fed'n of Labor v. McAdory, 
    246 Ala. 1
    , 9, 
    18 So. 2d 810
    , 815 (1944). The statements in
    Tucker,    the   special   concurrence   in   Beecher,   and   the
    implementation of similar provisions by courts in other states
    indicate to me that the final sentence of § 12-21-220 is not
    clearly unconstitutional.
    4
    The Broadway Court also stated that § 12-21-220 reduced
    the judicial function to a "ministerial act." 257 Ala. at 
    418, 60 So. 2d at 704
    . However, in Ex parte Foshee, 
    246 Ala. 604
    ,
    
    21 So. 2d 827
    (1945), the Court held that a legislatively
    enacted ministerial rule mandating that a trial court take
    oral testimony when so requested by a party did not "hamper
    the proper functioning of the trial 
    court." 246 Ala. at 607
    ,
    21 So. 2d at 829.
    12
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    I would grant Kirksey's petition for a writ of certiorari
    to consider whether we should overrule Broadway, reinstate the
    last sentence of   § 12-21-220, and grant Kirksey a new trial.
    Therefore, I respectfully dissent.
    13
    

Document Info

Docket Number: 1130913

Judges: Parker, Stuart, Bolin, Murdock, Shaw, Main, Wise, Bryan, Moore

Filed Date: 9/12/2014

Precedential Status: Precedential

Modified Date: 10/19/2024