Boyd v. State

484 So. 2d 550, 1985 Ala. Crim. App. LEXIS 5770
CourtCourt of Criminal Appeals of Alabama
DecidedNovember 26, 1985
Docket6 Div. 358
StatusPublished

This text of 484 So. 2d 550 (Boyd 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
Boyd v. State, 484 So. 2d 550, 1985 Ala. Crim. App. LEXIS 5770 (Ala. Ct. App. 1985).

Opinion

TYSON, Judge.

Samuel Boyd was indicted for the violation of the Alabama Uniform Controlled Substances Act under § 20-2-70, Code of Alabama 1975. The jury found the appellant “guilty as charged in the indictment” and he was sentenced to 15 years’ imprisonment as a habitual felony offender.

On the evening of October 29, 1982, Leonard Williams and Ralph Watkins were working as undercover narcotics officers for the Birmingham Police Department. At some point Williams went into a pool hall and asked two black males, whom he did not know previously, where he could buy some drugs. The two men then left the pool hall with Williams and got into an unmarked car with Williams and Watkins.

As Williams was driving the car on Snavely Avenue, one of the men pointed out another black male, identified as the appellant, sitting on the curb of the street. Williams then stopped the car at the 2400 block of Snavely Avenue and got out. He, approached the appellant and asked him if he was “straight”. (R. 45). The appellant stated he didn’t know Williams so then Williams named some names. The appellant then asked Williams what he wanted. Williams replied that he wanted “a one and one”, which is street talk for a Talwin and a blue. (R. 45-46). The appellant took one peach pill and one blue pill from a prescription bottle and gave them to Williams. Williams paid the appellant $8.00 and left.

When Williams returned to the car he placed the pills in the glove compartment and took the two males back to the pool hall.

The pills were then turned in to Officer Benjamin Clanton. Clanton kept the pills in his evidence locker until they were turned over to Mary Holt of the Department of Forensic Sciences.

Holt, an analytical chemist, performed an analysis on half of the peach pill. She determined that the peach pill contained Pentazocine which is a controlled substance in the State of Alabama. Holt stated that State’s Exhibits 2 and 2-A were in substan[552]*552tially the same condition as when she received them except for the half of the peach pill which was used for analysis.

I

During the rebuttal argument of the prosecutor, the following occurred:

“MR. WHISONANT: If he wants to know who the unknown black male is, why doesn’t he ask his client.
“MR. DAWSON: Judge, for the record, I move for a mistrial. That’s completely inappropriate. He knows better than that. He’s treading on ground that he knows better than to tread on.
“THE COURT: Overruled.
“MR. WHISONANT: Mr. Dawson thought that that other person, that smoke screen that he’s trying to pull over you, he thought he could help. And if that be true, I believe he would have him up here, he would have him up here testifying. And I submit to you that that person could say anything that would be inconsistent with what the police officer said.
“MR. DAWSON: Judge, for the record, we would renew that motion. There is absolutely no obligation for us to call anybody. You know, the obligation goes the other way.
“THE COURT: All right. I think he’s entitled to respond in kind to much of what you said. So, overruled.
“MR. JOLLY: We except.
“MR. DAWSON: They are treading on constitutional grounds, Judge.
“THE COURT: I have my ear to the ground here, Bill.” (R. 107-108).

The appellant contends that the prosecutor’s remarks were an improper comment on his failure to testify. We must agree.

The above-emphasized remark of the prosecutor can only be regarded as a direct reference to the appellant’s failure to testify. The prosecutor made the blatant remark “... why doesn’t [the defense attorney] ask his client.” (R. 107). This remark is an obvious reference to the appellant’s failure to take the stand. Furthermore, since the officers testified that they didn’t know the names of the two males who accompanied them in the car, one of whom pointed out the appellant to Williams, the appellant was the only one who could have possibly provided the identity of these two men. Thus, in that context, the prosecutor’s remark also could have been construed as an improper comment on the appellant's failure to testify. See Griffin v. State, 393 So.2d 523 (Ala.Crim.App.1981).

Once a proper objection has been made to a direct comment by the prosecutor regarding the accused’s failure to testify, the trial judge must immediately sustain the objection and give curative instructions to the jury. Yarber v. State, 375 So.2d 1231 (Ala.1979). Meade v. State, 381 So.2d 656 (Ala.Crim.App.), cert. denied, 381 So.2d 659 (Ala.1980). The failure to do so is reversible error. Meade, supra; Yarber, supra.

The State argues that the appellant failed to preserve this issue for our review because his objection did not specifically inform the trial judge that he was objecting to the prosecutor’s remark for the reason that it was an improper comment on his failure to testify. We cannot accept this argument.

As can be seen from the record, herein quoted, the defense attorney’s objections were specific enough to apprise the trial judge of the basis for his objection. Bland v. State, 395 So.2d 164 (Ala.Crim.App.1981). Thus, the issue is properly before this court.

The record reveals that the trial judge did not sustain the appellant’s objection to the prosecutor’s improper comment and did not give curative instructions. Therefore, we must reverse and remand this cause to the trial court for a new trial.

II

The appellant alleges the State should have been required to disclose the identity of the two males who accompanied the officers to the 2400 block of Snavely [553]*553Avenue, and who pointed out the appellant to Williams. Since this matter will most likely be an issue on retrial, we shall address it in this opinion.

“The United States Supreme Court, in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), set the minimum standards of protection to be afforded an accused where the informer is an active participant in the illegal activity which results in the subsequent arrest and conviction of the accused. The Supreme Court held that if a confidential informer is a material witness, i.e., an active participant in the illegal transaction which leads to the charges brought against the accused, then the accused is entitled to learn from the State the identity of the confidential informant and his address. We believe that Roviaro establishes the minimum obligation of the State when, as here, an informer becomes an active participant in the illegal transaction. This rule has consistently been followed by our appellate courts. See, Rivers v. State, [MS. February 24, 1981] 414 So.2d 466 (Ala.Crim.App.1981), after remand [MS. June 23, 1981] — So.2d — (Ala.Crim.App.), writ quashed, [MS. June 4, 1982] (Ala.1982); McElroy v. State, 360 So.2d 1060 (Ala.Cr.App.), cert. denied 360 So.2d 1067 (Ala.1978); Hatton v. State, 359 So.2d 822 (Ala.Cr.App.1977), writ quashed, 359 So.2d 832 (Ala.1978); Kilgore v. State, 50 Ala.App. 501, 280 So.2d 206 (1973).
“The Court of Appeals in

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Related

Roviaro v. United States
353 U.S. 53 (Supreme Court, 1957)
Kilgore v. State
280 So. 2d 206 (Court of Criminal Appeals of Alabama, 1973)
Johnson v. State
455 So. 2d 997 (Court of Criminal Appeals of Alabama, 1984)
Bland v. State
395 So. 2d 164 (Court of Criminal Appeals of Alabama, 1981)
Self v. State
420 So. 2d 798 (Supreme Court of Alabama, 1982)
Griffin v. State
393 So. 2d 523 (Court of Criminal Appeals of Alabama, 1981)
Hatton v. State
359 So. 2d 822 (Court of Criminal Appeals of Alabama, 1977)
McElroy v. State
360 So. 2d 1060 (Court of Criminal Appeals of Alabama, 1978)
Meade v. State
381 So. 2d 656 (Court of Criminal Appeals of Alabama, 1980)
Hatton v. State
359 So. 2d 832 (Supreme Court of Alabama, 1978)
Ex parte State ex rel. Attorney General
360 So. 2d 1067 (Supreme Court of Alabama, 1978)
Yarber v. State
375 So. 2d 1231 (Court of Criminal Appeals of Alabama, 1978)
Rivers v. State
414 So. 2d 466 (Court of Criminal Appeals of Alabama, 1981)
Yarbrough v. State
451 So. 2d 426 (Court of Criminal Appeals of Alabama, 1984)

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Bluebook (online)
484 So. 2d 550, 1985 Ala. Crim. App. LEXIS 5770, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boyd-v-state-alacrimapp-1985.