Reynolds v. State

535 So. 2d 213, 1988 Ala. Crim. App. LEXIS 42, 1988 WL 11655
CourtCourt of Criminal Appeals of Alabama
DecidedJanuary 26, 1988
Docket4 Div. 947
StatusPublished

This text of 535 So. 2d 213 (Reynolds 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
Reynolds v. State, 535 So. 2d 213, 1988 Ala. Crim. App. LEXIS 42, 1988 WL 11655 (Ala. Ct. App. 1988).

Opinion

McMILLAN, Judge.

The appellant was found guilty of sexual abuse in the first degree, in violation of § 13A-6-66, Code of Alabama (1975), and burglary in the second degree, in violation of § 13A-7-6(b), Code of Alabama (1975). He was sentenced to seven years’ imprison[214]*214ment for each of the charges, the sentences to run concurrently.

I

The appellant argues that the prosecutor’s question regarding the details of the appellant’s prior conviction constituted reversible error. The record indicates that the following transpired during the prosecutor’s cross-examination of the appellant:

“[Prosecutor]: ... [The defense counsel] asked you on direct examination if you had been convicted of a crime before; is that correct?
“[Appellant]: Yes, ma’am.
“Q: And he asked you what crime that was, and your response was ‘pretty much the same thing.’
“A: Yes, ma’am.
“Q: Indeed, the charge was sexual abuse in the first degree; is that correct?
“A: Right.
“Q: In which the victim was a twelve-year old girl?
“[Defense Counsel]: Judge, I object to that.
“THE COURT: Sustained.
“[Prosecutor]: May we approach the bench?
“THE COURT: Objection is sustained.
[[Image here]]
“[Defense Counsel]: For the record, we would make a motion for mistrial based on the conduct of the prosecutor in asking that last question, which was objected to and sustained.
“THE COURT: Motion is denied.”

Immediately thereafter, the trial court instructed the jury as follows:

“Ladies and gentlemen, you will be instructed to disregard the last question made by the assistant district attorney. Is there anyone who feels that they cannot do that?
“(No response)
“THE COURT: All right; thank you. Denied. Ask your next question.”

The prosecutor's question concerning the specifics of the appellant’s prior conviction was not so harmful as to be ineradicable. The trial court’s action in sustaining the objection, excluding the remark, and promptly admonishing to the jury to disregard it served to cure the possible prejudice to the appellant. Brooks v. State, 462 So.2d 758, 760 (Ala.Cr.App.1984).

“A motion for a mistrial should not be granted where the prejudicial qualities of the comment can be eradicated by the trial court’s instructions to the jury. Nix v. State, 370 So.2d 1115, 1117 (Ala.Crim.App.), cert. denied, 370 So.2d 1119 (Ala.1979); see also Carroll v. State, 440 So.2d 343 (Ala.Crim.App.1983), cert. denied, [465] U.S. [1032], 104 S.Ct. 1299, 79 L.Ed.2d 698 (1984). It is clear that when improper comments are made by counsel concerning the commission of other offenses by an accused, such comments are capable of being eradicated from the jury’s consideration by prompt action of the trial court. Nathan v. State, 436 So.2d 19 (Ala.Crim.App.1983); Floyd v. State, 412 So.2d 826 (Ala.Crim.App.1981); Diamond v. State, 363 So.2d 109 (Ala.Crim.App.1978).”

Reeves v. City of Montgomery, 466 So.2d 1041, 1045 (Ala.Cr.App.1985).

“It is the basic premise that when prejudicial remarks have been made the trial judge is in a better position than is an appellate court to determine whether the remarks were so prejudicial as to be ineradicable. Favor v. State, 389 So.2d 556 (Ala.Cr.App.1980), Chambers v. State, 382 So.2d 632 (Ala.Cr.App.), cert. denied, 382 So.2d 636 (Ala.1980); McAllister v. State, 44 Ala.App. 511, 214 So.2d 862 (1968). There is, moreover, a ‘prima fa-cie presumption against error where the trial court immediately charges the jury to disregard the prosecutor’s remarks.’ Favor v. State, at 561, quoting from Chambers v. State, supra.”

Kendrick v. State, 444 So.2d 905, 909 (Ala.Cr.App.1984).

II

The appellant argues that statements made by him to his wife and the prosecu-trix’s mother were inadmissible. The record indicates that prior to trial, the defense counsel made a motion in limine spe[215]*215cifically to exclude a prejudicial statement “allegedly made by the wife of the defendant during a confrontation between the prosecuting witness’ mother, [name omitted], and the defendant.” (Quoting from the defense counsel’s motion in limine.) The following occurred during the oral motion in limine made by the defense counsel:

“THE COURT: Before we get started with the trial, the defendant has filed a motion in limine that let’s take up at this time. What statements would you be specifically referring to?
“[Defense counsel]: Judge, as I understand it, there was a statement by the defendant’s wife, and I do not recall the exact wording. According to the prosecution witness, the wording was something to the effect: ‘I told you to stop messing with young girls.’ That is a statement that was made by the defendant’s wife, not by the defendant, and we don’t think it’s admissible, we think it’s hearsay, we think it’s irrelevant.
“THE COURT: Well, in your motion here you say that there’s a confrontation between the prosecuting witness’ mother [name omitted], and the defendant. So were all three people present?
“[DEFENSE COUNSEL]: As I understand it, yes, sir.
“THE COURT: All right.
“[DEFENSE COUNSEL]: Judge, specifically, the only way I think there would be any question of admissibility would be under a tacit admission type of doctrine, which has been struck down by the U.S. Supreme Court as being unconstitutional, and with that removed it’s just pure hearsay.”

The motion was subsequently denied and, during the direct examination of the prosecutrix’s mother, the following transpired:

“A: I just kept walking on to him. And she went with me. I went up to him. I was really upset; I was hysterical. I said, T hear that you went into my house. You put your hands on my daughter.’
“Q: And what if anything did the defendant say?
“A: He said, ‘I’m sorry.’
“Q: Did he say anything else?
“A: He said — well, I said something else.
“Q: What did you say then?
“A: I said, ‘If you ever come in my house again and put your hands on my daughter I’ll kill you.’
“Q: What if anything did he say?
“A: He said, ‘I’m sorry.’ He said it twice. He said, T won’t even holler at her or whistle any more when she goes to the mailbox.' He said, ‘I’m sorry.’
“Q: What if anything happened next? Well, let me ask you this. How far were you from Mr. Reynolds at the time this conversation took place?

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

Related

Brooks v. State
462 So. 2d 758 (Court of Criminal Appeals of Alabama, 1984)
Kendrick v. State
444 So. 2d 905 (Court of Criminal Appeals of Alabama, 1984)
Diamond v. State
363 So. 2d 109 (Court of Criminal Appeals of Alabama, 1978)
Ex Parte Pruitt
457 So. 2d 456 (Supreme Court of Alabama, 1984)
Pruitt v. State
457 So. 2d 454 (Court of Criminal Appeals of Alabama, 1984)
Reeves v. City of Montgomery
466 So. 2d 1041 (Court of Criminal Appeals of Alabama, 1985)
Floyd v. State
412 So. 2d 826 (Court of Criminal Appeals of Alabama, 1981)
Jackson v. State
502 So. 2d 858 (Court of Criminal Appeals of Alabama, 1987)
Hammond v. State
502 So. 2d 843 (Court of Criminal Appeals of Alabama, 1986)
Chambers v. State
382 So. 2d 632 (Court of Criminal Appeals of Alabama, 1980)
Favor v. State
389 So. 2d 556 (Court of Criminal Appeals of Alabama, 1980)
Beavers v. State
497 So. 2d 612 (Court of Criminal Appeals of Alabama, 1986)
McAllister v. State
214 So. 2d 862 (Alabama Court of Appeals, 1968)
Nathan v. State
436 So. 2d 19 (Court of Criminal Appeals of Alabama, 1983)
Nix v. State
370 So. 2d 1115 (Court of Criminal Appeals of Alabama, 1979)
Carroll v. State
440 So. 2d 343 (Court of Criminal Appeals of Alabama, 1983)
Barton v. State
376 So. 2d 756 (Court of Criminal Appeals of Alabama, 1979)
Brown v. State
481 So. 2d 1191 (Court of Criminal Appeals of Alabama, 1985)
Hammond v. Alabama
482 U.S. 917 (Supreme Court, 1987)
Gates v. Heckler
465 U.S. 1031 (Supreme Court, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
535 So. 2d 213, 1988 Ala. Crim. App. LEXIS 42, 1988 WL 11655, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reynolds-v-state-alacrimapp-1988.