PARKER, Justice.
WRIT DENIED. NO OPINION.
STUART, BOLIN, MURDOCK, SHAW, MAIN, WISE, and BRYAN, JJ., concur.
MOORE, C.J., dissents.
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 The Court of Criminal Appeals affirmed his conviction and sentence in an unpublished memorandum.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:
(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:
(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. 2007). "[W]here a prosecuting officer improperly comments on a defendant's failure to testify, and the trial court 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.
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 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
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 Constitution of Alabama" (citing Broadway)). I find Broadway unpersuasive. The legislature in 1949
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 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
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 defendant's failure to testify.
An Oklahoma statute
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.
I would grant Kirksey's petition for a writ of certiorari to consider whether we
La.Code Crim. Proc. art. 770.
Okla. Stat. tit. 22, § 701 (emphasis added).