Sparks v. City of Weaver

730 So. 2d 113, 1998 Ala. LEXIS 302
CourtSupreme Court of Alabama
DecidedNovember 20, 1998
Docket1970812
StatusPublished

This text of 730 So. 2d 113 (Sparks v. City of Weaver) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sparks v. City of Weaver, 730 So. 2d 113, 1998 Ala. LEXIS 302 (Ala. 1998).

Opinions

ALMON, Justice.

Steven Ray Sparks' was arrested in the City of Weaver, and the City charged him with driving under the influence and running a stop sign. The district court found him guilty of both charges, and he appealed to the circuit court for a trial de novo. See Ala.Code 1975, §§ 12-12-70(b) and 12-12-71.

At trial in the circuit court, the police officer who arrested Sparks testified that he had detected the odor of alcohol on Sparks and that he administered field sobriety tests to determine if he was intoxicated. The officer further testified that Sparks failed the field sobriety tests and that Sparks refused to submit to an alcohol breath test.

Sparks testified in his own defense and admitted that he had run a stop sign. However, he denied that he was driving under the influence, stating that he weighed 225 pounds and that he had drunk only three six-ounce draft beers during the two hours before his arrest. He attributed his failing the field sobriety tests to physical problems with his knees and to being unable to see because, he said, he was forced to look into bright lights on the arresting officer’s patrol car while he was performing the tests. Sparks also stated that, even though he may have smelled of alcohol, he speaks with a lisp and was sunburned at the time of his arrest, and that both of these factors may have contributed to his appearing to be intoxicated. Sparks further testified that, although he had refused to submit to a breath test because he thought the machine used for that test was unclean, he specifically asked for a blood test. Sparks said that police responded to his request by telling him that a blood test could not be administered until after he had submitted to a breath test.

On cross-examination, the City’s prosecutor asked Sparks if he recalled having been convicted of DUI on a previous occasion.1 This question elicited an immediate objection from defense counsel, and the circuit court sustained the objection. Defense counsel then moved for a mistrial. After the circuit court gave the jury a corrective instruction, and after no jurors indicated that they could not disregard the prosecutor’s improper question, the court denied Sparks’s motion for a mistrial.

The jury convicted Sparks of both of the charges brought against him. The circuit court sentenced Sparks on the DUI conviction to 24 days in jail — with four days to be served and 20 days suspended — and ordered him to pay a $1,500 fine, plus $141 court costs. On the conviction for running a stop sign, the court fined Sparks $100 and ordered him to pay $149 court costs. The Court of Criminal Appeals affirmed Sparks’s convictions with an unpublished memorandum, holding that the circuit court did not abuse its discretion by denying Sparks’s motion for a mistrial. Sparks v. City of Weaver, 727 So.2d 182 (Ala.Cr.App.1997) (table). Sparks petitioned for certiorari review, and we issued the writ of certiorari to determine whether Sparks was denied his right to a fair trial when the City’s prosecutor asked him about a prior DUI conviction and the circuit [115]*115court subsequently denied his motion for a mistrial.

It is undisputed that the City’s prosecutor deliberately asked Sparks, in the presence of the jury, about a prior DUI conviction. Furthermore, it is uncontroverted that Sparks interposed a timely objection to the prosecutor’s question and also made a timely motion for a mistrial. Thus, the only question to be resolved is whether the prosecutor’s improper question2 was so prejudicial to Sparks’s case that it rendered the circuit court’s corrective jury instruction insufficient to ensure a fair trial. If the prosecutor’s question did evoke prejudice to that degree, then the circuit court abused its discretion by not granting Sparks’s motion for a mistrial and his convictions are due to be reversed.

In its brief, the City relies on numerous decisions in which the Court of Criminal Appeals has held that granting a mistrial is unnecessary under circumstances similar to those of Sparks’s trial. In those cases, the Court of Criminal Appeals has reasoned that, when a prosecutor asks a defendant about a prior arrest or conviction, and the question is objected to and the circuit court sustains the objection, a corrective instruction admonishing the jury to disregard the prosecutor’s improper question is sufficient to eradicate any prejudice to the defendant’s case and a mistrial is unwarranted. See, e.g., Breedlove v. State, 482 So.2d 1277 (Ala.Crim.App.1985); Walker v. State, 428 So.2d 139 (Ala.Crim. App.1982); Carter v. State, 405 So.2d 957 (Ala.Crim.App.), cert. denied, 405 So.2d 962 (Ala.1981); Favor v. State, 389 So.2d 556 (Ala.Crim.App.1980).

However, notwithstanding the cases cited by the City, this Court cannot condone a prosecutor’s attempt to elicit testimony about a defendant’s prior convictions in violation of the general exclusionary rule against such evidence. See Ex parte Tucker, 474 So.2d 134 (Ala.1985); Ex parte Arthur, 472 So.2d 665 (Ala.1985); Ex parte Cofer, 440 So.2d 1121 (Ala.1983); Hinton v. State, 280 Ala. 48, 189 So.2d 849 (1966); Ala. R. Evid. 404(b); C. Gamble, McElroy’s Alabama Evidence, § 27.02 (5th ed.1996). Moreover, reported cases involving such improper questioning— and a subsequent denial of the defendant’s motion for a mistrial — are all too common, as demonstrated by the number of such cases cited in the City’s brief and in the Court of Criminal Appeals’ memorandum affirming Sparks’s convictions. Consequently, it appears to this Court that the current approach to these situations is inadequate insofar as it allows prosecutors a “free shot” at asking an improper question about a defendant’s prior criminal record while providing little means to protect the defendant’s right to a fair trial other than a mere corrective instruction to jurors, which is administered only after the defendant has been exposed to the prejudice caused by the prosecutor’s questioning.

Given the highly prejudicial nature of evidence of a defendant’s prior arrests and convictions, especially when the defendant is questioned about having previously been convicted of the same offense for which he is then being tried, it is difficult to expect that a jury could, even in all earnestness, completely disregard the prosecutor’s improper questioning in reaching its verdict. There are some errors that simply cannot be corrected with a mere corrective instruction to the jury:

“‘[Djespite a corrective instruction, once such statements are made, the damage is hard to undo: “Otherwise stated, one ‘cannot unring a bell’; ‘after the thrust of the saber it is difficult to say forget the [116]*116wound’; and finally, ‘if you throw a skunk into the jury box, you can’t instruct the jury not to smell it.’” Dunn v. United States, 307 F.2d 883, 886 (5th Cir.1962).’ ”

Quinlivan v. State, 579 So.2d 1386, 1389 (Ala.Crim.App.), writ quashed, 596 So.2d 658 (Ala.1991) (quoting United States v. Garza, 608 F.2d 659, 666 (5th Cir.1979)). The prosecutor’s improper questioning in Sparks’s case squarely falls into this category of errors that cannot be rectified by simply instructing the jurors to disregard the prejudice that has already been inflicted.

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Related

J. Monroe Dunn v. United States
307 F.2d 883 (Fifth Circuit, 1962)
United States v. David Garza
608 F.2d 659 (Fifth Circuit, 1979)
Favor v. State
389 So. 2d 556 (Court of Criminal Appeals of Alabama, 1980)
Durden v. State
394 So. 2d 967 (Court of Criminal Appeals of Alabama, 1980)
Ex Parte Durden
394 So. 2d 977 (Supreme Court of Alabama, 1981)
Hinton v. State
189 So. 2d 849 (Supreme Court of Alabama, 1966)
Carter v. State
405 So. 2d 957 (Court of Criminal Appeals of Alabama, 1981)
Ex Parte Carter
405 So. 2d 962 (Supreme Court of Alabama, 1981)
Walker v. State
428 So. 2d 139 (Court of Criminal Appeals of Alabama, 1982)
Nix v. State
370 So. 2d 1115 (Court of Criminal Appeals of Alabama, 1979)
Ex Parte Cofer
440 So. 2d 1121 (Supreme Court of Alabama, 1983)
Quinlivan v. State
579 So. 2d 1386 (Court of Criminal Appeals of Alabama, 1991)
Thompson v. State
503 So. 2d 871 (Court of Criminal Appeals of Alabama, 1986)
Ex Parte Tucker
474 So. 2d 134 (Supreme Court of Alabama, 1985)
Breedlove v. State
482 So. 2d 1277 (Court of Criminal Appeals of Alabama, 1985)
Ex Parte Arthur
472 So. 2d 665 (Supreme Court of Alabama, 1985)

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Bluebook (online)
730 So. 2d 113, 1998 Ala. LEXIS 302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sparks-v-city-of-weaver-ala-1998.