Bankston v. State

620 So. 2d 115, 1992 Ala. Crim. App. LEXIS 2599, 1992 WL 387182
CourtCourt of Criminal Appeals of Alabama
DecidedDecember 30, 1992
DocketCR 91-917
StatusPublished
Cited by2 cases

This text of 620 So. 2d 115 (Bankston v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bankston v. State, 620 So. 2d 115, 1992 Ala. Crim. App. LEXIS 2599, 1992 WL 387182 (Ala. Ct. App. 1992).

Opinion

BOWEN, Presiding Judge.

Michelle Marie Bankston, the appellant, was convicted for the murder of her husband, Joe Bankston, and was sentenced to 25 years’ imprisonment. She raises four issues on this appeal from that conviction.

I.

The appellant argues that her trial counsel was ineffective because counsel failed to make a motion pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), failed to object to the admission of certain photographs, failed to seek a change of venue, and failed to call a witness who could allegedly tend to incriminate a person other than the appellant.

This issue of counsel’s alleged ineffectiveness was never presented to the trial court and is therefore not reviewable in this appeal. In Ex parte Jackson, 598 So.2d 895, 897 (Ala.1992), the Alabama Supreme Court “reaffirm[ed] the principle that ‘ “claims of ineffective assistance of counsel may not be considered for the first time on direct appeal.” ’ ”

“[W]e will not make exception to the rule that a claim of ineffective assistance of counsel may not be considered on appeal if it was not first presented to the trial court. We encourage counsel, whenever possible, to ascertain any possible defect in the trial process and to make an issue of that defect in an appropriate motion for a new trial. Failure to include a reasonably ascertainable issue in a motion for new trial will result in a bar to further argument of the issue on appeal and in post-conviction proceedings.”

Jackson, 598 So.2d at 897.

Appellate counsel was appointed after the motion for new trial had been filed by trial counsel but 21 days before the hearing was held on that motion. We note that at the time appellate counsel was appointed, there existed a procedure whereby the time for the filing of a motion for new trial could have been extended and a copy of the reporter’s transcript obtained in order to allow newly appointed counsel to raise the issue of ineffective assistance of trial counsel. Ex parte Jackson, [Ms. 1901438, 1992 WL 35399, February 28, 1992], withdrawn and replaced by Ex parte Jackson, 598 So.2d 895 (Ala.1992).1

II.

The appellant contends that a search of her residence was illegal.

Around 11:00 on the night of December 31, 1990, the appellant requested another person to telephone the police in order to get help for her husband at their residence. The police arrived shortly thereafter and discovered the victim dead in the bathtub. The crime scene was “processed” and a search of the residence did, in fact, occur. On January 2, 1991, the appellant, with the [117]*117advice of her attorney, gave her consent for the police to search her residence. At the hearing on the motion to suppress, the prosecutor established that after the consent to search had been obtained, the police would have discovered the same evidence seized before that consent had been obtained. R. 185-91, 212.

Under these facts, the police were justified in entering the house in an effort to protect the person of the appellant’s husband and in seizing “any evidence that [was] in plain view during the course of their legitimate emergency activities.” Mincey v. Arizona, 437 U.S. 385, 392-93, 98 S.Ct. 2408, 2413, 57 L.Ed.2d 290 (1978). Accord State v. Spears, 560 So.2d 1145, 1148-51 (Ala.Cr.App.1989); Terry v. State, 469 So.2d 1359, 1360-61 (Ala.Cr.App.), cert. denied, 474 U.S. 826, 106 S.Ct. 84, 88 L.Ed.2d 69 (1985). However, in searching certain areas inside that residence, such as a closed briefcase and a kitchen cabinet, the police exceeded the scope of what was reasonably necessary in order to carry out their legitimate emergency activities. Spears, supra. See Florida v. Jimeno, — U.S. -, -, 111 S.Ct. 1801, 1803-04, 114 L.Ed.2d 297 (1991) (“The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect?”).

Nevertheless, the fruits of the search are admissible under the inevitable discovery exception to the requirement of a search warrant. Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). See also Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988) (independent source doctrine).

There is absolutely no indication that the appellant’s consent was obtained through the exploitation of any evidence or information illegally seized. Compare Ex parte Yarber, 375 So.2d 1231, 1234-35 (Ala.1979) At the hearing on the motion to suppress, defense counsel stipulated that the consent to search was “valid” and that the appellant “voluntarily and knowingly” signed the consent to search form. R. 182.

The motion to suppress was properly denied.

III.

This Court rejects the appellant’s contention that she was entitled to a mistrial because the prosecutor commented on the statements made by the victim to his attorney after the trial court had granted the appellant’s motion in limine regarding these statements.

From the trial court’s instructions to the jury to “disregard any statements as to what Mr. Bankston told the attorney,” this Court can only infer that the prosecutor did make some comment in that regard. R. 248-49. However, the record does not reveal the content of the prosecutor’s remark. “It is well established that objectionable remarks should be fully quoted, or substantially so, in an objection to improper argument.” Jones v. State, 460 So.2d 1382, 1383 (Ala.1984).

“ ‘A mistrial will not be granted on motion of defendant where the court has sustained his objection to alleged improper argument and excluded it from the jury’s consideration, unless it clearly appears that the defendant’s rights have been so prejudiced as to render a fair trial a matter of grave doubt.’ Watson v. State, 266 Ala. 41, 44, 93 So.2d 750 (1957). Here, the actions of the trial judge [in sustaining the defendant’s objection and in instructing the jury to disregard] created a prima facie presumption against error and cured the effect of the prosecutor’s comments. Burkett v. State, 215 Ala. 453, 454, 111 So. 34 (1927).”

Leonard v. State, 551 So.2d 1143, 1148 (Ala.Cr.App.1989). “In determining whether the accused was prejudiced by prosecu-torial misconduct, ‘we must ordinarily give great deference to the ... judge’s handling of the alleged misconduct during the trial. The ... judge is ordinarily in a much better position to understand the circumstances surrounding the alleged misconduct and to [118]*118evaluate its impact.’ ” Wysinger v. State, 448 So.2d 435, 439 (Ala.Cr.App.1983).

The motion for mistrial was properly denied.

IV.

Applying the principles collected in Cox v. State, 585 So.2d 182, 203-05 (Ala.Cr.App.1991), cert. denied, — U.S. -, 112 S.Ct.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Mitchell v. State
706 So. 2d 787 (Court of Criminal Appeals of Alabama, 1997)
Tillman v. State
647 So. 2d 7 (Court of Criminal Appeals of Alabama, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
620 So. 2d 115, 1992 Ala. Crim. App. LEXIS 2599, 1992 WL 387182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bankston-v-state-alacrimapp-1992.