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his conviction and sentence in an unpublished memorandum.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
1130913
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