Rel: 09/12/2014




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          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.




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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his conviction and sentence in an unpublished memorandum.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

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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

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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


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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


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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


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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.




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