State of Alabama
Appeal from Walker Circuit Court (CC-07-356)
The appellant, S.A.J.,  was indicted by a Walker County grand jury for rape in the first degree, a violation of § 13A-6-61, Ala. Code 1975, and three counts of sexual abuse in the first degree, a violation of § 13A-6-66, Ala. Code 1975. S.A.J. was convicted of three counts of first-degree sexual abuse, as charged in the indictment and one count of first-degree sexual abuse as a lesser-included offense to the offense of first-degree rape. The circuit court sentenced S.A.J. to 20 years' imprisonment for each conviction; it ordered that the sentences were to run concurrently. The circuit court further ordered S.A.J. to pay $200 to the crime victims compensation fund and court costs.
The record established the following pertinent facts. A.B. testified that, when she was four years old, she spent some time with her cousin, J.W., at J.W.'s house in Walker County. A.B. indicated that J.W. and her mother lived in the house with A.L., A.L.'s girlfriend, A.L.'s two children, and J.W.'s two brothers. A.B. recalled meeting S.A.J. at the house and indicated that he had a "little beard looking thing, " had brownish-blackish color hair, and always wore a red jacket. (R. 166.) A.B. testified that she knew S.A.J. as "Boggan" because it was his nickname used by everyone else in the house. (R. 167.)
A.B. testified that she and J.W. were playing outside one day when S.A.J. approached them and said that he had something to show them. S.A.J. then took the girls into a tent behind the house and had them lie down beside each other. S.A.J. then removed the girls' clothing, held a small knife to A.B.'s throat, and threatened to kill her grandmother if she told anyone. A.B. testified that S.A.J. then touched the girls with "his fingers and his hogie." (R. 171.) A.B. testified that S.A.J.'s fingers and his hogie were both outside and inside of her vagina. As he was touching her, S.A.J. called A.B. "Sexy Lexi, " and it made her feel "weird." (R. 172-73.) A.B. testified that S.A.J. used his fingers to touch J.W.'s butt and that he also "stuck [his hogie] inside of [the girls]." (R. 174.) A.B. testified that S.A.J.'s hogie was inside of her vagina for a few minutes. A.B. testified that after S.A.J. was finished, he took a blue marker and marked a blue dot on each girl.
A.B. testified that she did not tell anyone about the incident because S.A.J. threatened to kill her grandmother. A few days after the incident, A.B. and J.W. were discussing the event when they were overheard by J.W.'s mother, D.W., who made the girls tell her what had happened.
J.W. testified that when she was five or six years old, A.B. would occasionally come over to her house to play. J.W. indicated that she and A.B. would spend most of their time playing outside. J.W. remembered that S.A.J. had brown hair and a beard, but could not remember anything else about his appearance. J.W. indicated that her memory of the events was hazy. J.W. testified that she recalled an incident where her mother confronted S.A.J. with a gun and asked J.W. if "he was the one that molested [the girls]." (R. 206.) When J.W. shook her head, her relatives took S.A.J. outside and beat him up. J.W. testified that the incident occurred behind the house and that was all she could remember.
J.W. testified that she remembered standing next to D.W.'s bed with A.B. a few days after the incident and discussing what had happened. J.W. also spoke to a therapist about the incident but indicated that she had coped with the incident by trying not to talk about it.
Joanna Milkay, a certified counselor and the clinical director at the Clay House Children's Center, interviewed A.B. and J.W., separately. According to Milkay, J.W. was "avoidant" during the interview and answered questions with "a lot of I don't knows or I don't remember." (R. 241.) J.W. also repeatedly asked Milkay to talk to A.B. for details of the incident. Milkay testified that A.B.'s interview was typical for a four-year old; A.B. would move around the room, and she had difficulty concentrating. Although A.B. was able to tell Milkay some of the things that happened, she was unable to give any details or narrative of the incident. Both interviews were recorded, admitted into evidence, and played for the jury.
In the recorded interviews, J.W. indicated that S.A.J. undressed her and touched her vagina with his hand. A.B. told Milkay that S.A.J. hugged her with his pants off and touched her and J.W. with his finger. A.B. indicated that S.A.J. also tried to get J.W. to touch his "hogie." A.B. stated that S.A.J. used his "hogie" to touch her vagina.
D.W. testified that she married K.W. in February 2007. D.W. testified that she knew S.A.J. as K.W.'s cousin and considered him family. D.W. testified that S.A.J. was close with her family and would visit their house frequently. D.W. also indicated that A.B. was her niece and that A.B. would often spend the night at D.W.'s house.
D.W. testified that she became concerned that something had happened to A.B. and J.W. when she noticed an incident where J.W. acted shy around S.A.J. and tried to get away from him. Until that time, J.W. had been close to S.A.J. and normally wanted to play with him. On a later night, A.B. was staying over at D.W.'s house when she woke up crying and said that "the man in the red coat had ... done things" to both her and J.W. (R. 261.) D.W. spoke with A.B. and J.W. in her bedroom about the incident but could not remember the specific details. Afterwards, D.W. informed A.B.'s mother and grandmother, B.B., of the incident. D.W. did not initially report the incident to law enforcement because she had previously had a bad experience when she filed a report about someone hurting her sons.
Around two weeks after A.B. and J.W. informed D.W. about "the man in the red coat, " S.A.J. returned to the house. When J.W. confirmed that S.A.J. "was the one that truly did it, " D.W. and her brother attacked and beat S.A.J. Afterwards, D.W. and B.B. went to the police and filed a report against S.A.J.
B.B. testified that she was A.B.'s grandmother and legal guardian. B.B. testified that A.B. had stayed overnight at J.W.'s house on a number of occasions. On one such occasion, B.B. was driving and received a telephone call. After learning what had happened, B.B. drove to pick A.B. up from D.W.'s house. When B.B. asked A.B. what had happened, A.B. replied that she could not tell B.B. because S.A.J. threatened to kill B.B.
Whenever B.B. would bathe A.B., A.B. would ask if her "tee-tee hole [was] really big ... [and if] it [was] all stretched out down there?" (R. 396.) When A.B. contracted a yeast infection, B.B. became worried that she had possibly contracted a disease from the incident and took her to the doctor. A medical examination revealed that A.B. had a little bit of irritation in her genital area and a rash on her bottom. The health-service provider prescribed an ointment to treat these symptoms.
B.B. testified that A.B.'s behavior changed after the incident. According to B.B., A.B. was an active child who liked cheerleading and enjoyed playing with her father. After the incident, A.B. would not let her father or any other man touch or hug her.
When A.B. learned that S.A.J. had been beaten up by J.W.'s relative, she asked B.B. if "they cut off all his fingers." (R. 453.) A.B. indicated that she wanted all of S.A.J.'s fingers cut off because "he hurt [A.B.] with those fingers." (R. 454.) B.B. also indicated that she had seen thumbprints and handprints on the inner part of A.B.'s thighs, as though they had been pried open and held.
S.A.J. testified in his own defense. S.A.J. indicated that K.W. was his cousin and had "been like an uncle" to S.A.J. before he died. (R. 580.) S.A.J. indicated that he was previously addicted to painkillers and would often go to K.W.'s house and buy Oxycontin pills from the adults at the house, including K.W. and D.W. According to S.A.J., there "was a lot of traffic" at K.W.'s house because all the adults living there sold Oxycontin pills to "anybody who came up at the time." (R. 584.) S.A.J. did not have a job to pay for Oxycontin pills so he would perform handiwork around their property in exchange for the pills.
S.A.J. testified that he knew both A.B. and J.W. and that he remembered a time in which they were outside playing in the yard. According to S.A.J., it was around the first weekend of February and there were other adults present. S.A.J. indicated that the only time he remembered interacting with the girls was when he tried to teach them how to do a flip on the trampoline. S.A.J. could not recall seeing a tent on the property. S.A.J. denied ever seeing the girls without clothes, removing their clothes, touching them in any sexual way, or exposing himself to them.
S.A.J. testified that on February 20, 2007, his sister dropped him off at K.W.'s house. When he arrived, D.W. threatened S.A.J. with a gun and made accusations against him; D.W.'s brother punched him in the face, breaking his jaw in two places. Afterwards, S.A.J. telephoned the authorities and indicated that he had been assaulted and told the authorities everything that he had been accused of doing to A.B. and J.W.
After both sides rested and the circuit court instructed the jury on the applicable principles of law, the jury found S.A.J. guilty of three counts of sexual abuse in the first degree, as charged in the indictment. The jury also found S.A.J. guilty of an additional count of sexual abuse in the first degree as a lesser-included offense to the offense of rape in the first degree.
S.A.J. contends that the circuit court erred when it allowed the prosecutor to comment directly on S.A.J.'s right not to testify. Specifically, S.A.J. argues that one of the prosecutor's questions during voir dire infringed on S.A.J.'s right not to testify and effectively forced him to testify in his own defense.
The record indicates that during voir dire the prosecutor asked "would any of you be surprised if a child victim of sexual abuse didn't speak just openly and candidly about it?" (R. 48.) Afterwards, the prosecutor asked "would any of you be surprised if a perpetrator wasn't really interested in talking openly and candidly about what happened, would any of you find that surprising?" (R. 49.) Defense counsel objected and the circuit court overruled the objection. Afterwards, the prosecutor continued voir dire and asked:
"How many of you believe that every act of sexual abuse against a child gets reported? If it happens, we always know about it? Okay. How many of you would expect for there to be eyewitnesses to acts like that? Would any of you need something more than eyewitness testimony about what happened?"
(R. 49.) Afterwards defense counsel objected again and explained that he objected earlier because the prosecutor commented on S.A.J.'s right to remain silent. The circuit court stated that defense counsel could make that argument at the appropriate time and "make clear that [S.A.J.] doesn't have to [testify in this case]." (R. 50.)
In Alabama, the right to be free from compulsory self-incrimination is protected by both the Alabama Constitution and statute. "In all criminal prosecutions ... the accused shall not be compelled to give evidence against himself." Alabama Const. 1901, Art. I, § 6. Elaborating on this, the Alabama Supreme Court has held that § 6 is also violated when a prosecutor makes a comment that could be interpreted by the jury as a reference to a defendant's failure to testify. Ex parte Land, 678 So.2d 224 (Ala. 1996).
Section 12–21–220, Ala. Code 1975, provides:
"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 granted on motion filed within 30 days from entry of the judgment."
Id. See also Rigsby v. State, 136 So.3d 1097, 1100 (Ala.Crim.App.2013)("[A] prosecutor may not comment on a defendant's right against self-incrimination." (citations omitted.) "Comments by a prosecutor on a defendant's failure to testify are highly prejudicial and harmful, and courts must carefully guard against a violation of a defendant's constitutional right not to testify." Ex parte Brooks, 695 So.2d 184, 188 (Ala. 1997).
"Under federal law, a comment is improper if it was '"'manifestly intended or was of such a character that a jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.'"' United States v. Herring, 955 F.2d 703, 709 (11th Cir.), cert. denied, 506 U.S. 927, 113 S.Ct. 353, 121 L.Ed.2d 267 (1992)(citations omitted); Marsden v. Moore, 847 F.2d 1536, 1547 (11th Cir.), cert. denied, 488 U.S. 983, 109 S.Ct. 534, 102 L.Ed.2d 566 (1988); United States v. Betancourt, 734 F.2d 750, 758 (11th Cir.), cert. denied, 469 U.S. 1021, 105 S.Ct. 440, 83 L.Ed.2d 365 (1984). The federal courts characterize comments as either direct or indirect, and, in either case, hold that an improper comment may not always mandate reversal."
695 So.2d at 188 (footnotes omitted).
Likewise, Alabama law distinguishes direct comments from indirect comments. "Where there has been a direct comment on, or direct reference to, a defendant's failure to testify and the trial court does not act promptly to cure the comment, the defendant's conviction must be reversed." Rigsby v. State, 136 So.3d 1097, 1100-01 (Ala.Crim.App.2013)(quoting Ex parte Purser, 607 So.2d 301, 304 (Ala. 1992)).
In cases where the comment is an indirect, rather than a direct, comment on the defendant's failure to testify, the conviction must be reversed if there is a close identification of the defendant as the person who did not become a witness. Ex parte Wilson, 571 So.2d 1251, 1261 (Ala. 1990). This court has explained:
"'[C]overt, ' or indirect, comments are construed against the defendant, based upon the literal construction of Ala. Code 1975, § 12-21-220, which created the 'virtual identification doctrine.' Thus, in a case in which there has been only an indirect reference to a defendant's failure to testify, in order for the comment to constitute reversible error, there must have been a virtual identification of the defendant as the person who did not become a witness."
Ex parte Brooks, 695 So.2d 184, 188-89 (Ala.Crim.App.1997)(citations and footnotes omitted).
Although comments on a defendant's right not to incriminate himself or herself by testifying are improper, "[a] reversal may be prevented if the trial court sustains an objection to the improper remark and promptly and appropriately instructs the jury as to the impropriety of the remark." Pettibone v. State, 891 So.2d 280, 283 (Ala.Crim.App.2003).
We also note that the fact that S.A.J. testified in the instant case has no bearing on our analysis because the alleged prejudicial comment occurred during voir dire. See, e.g., Ex parte Purser, 607 So.2d 301, 303 (Ala. 1992)("[T]he fact that the comment occurred during opening statements, rather than during closing arguments, does not prevent the remark from being a comment on the defendant's failure to testify."). See also Collins v. State, 385 So.2d 993 (Ala.Crim.App.1979).
With these principles in mind, we must also consider the purpose of voir dire -- namely, striking a fair and impartial jury. Rule 18.4, Ala. R. Crim. P., provides, in pertinent part:
"(c) Voir Dire Examination. The court shall permit the parties or their attorneys to conduct a reasonable examination of prospective jurors. The court also may conduct an examination of prospective jurors, and the court, in its discretion, may direct that the examination of one or more prospective jurors be separate and apart from the other prospective jurors.
"(d) Scope of Examination. Voir dire examination of prospective jurors shall be limited to inquiries directed to basis for challenge for cause or for obtaining information enabling the parties to knowledgeably exercise their strikes."
The related commentary to subsection (d) states:
"Section (d) defines the scope of the voir dire examination. This section is in keeping with Alabama case law, which leaves the limit of voir dire examination much to the discretion of the trial court. Smith v. State, 292 Ala. 234, 292 So.2d 109 (1974); Redus v. State, 243 Ala. 320, 9 So.2d 914 (1942) ...."
In Woods v. State, 789 So.2d 896 (Ala.Crim.App.1999), aff'd, 789 So.2d 941 (Ala. 2001), this Court stated:
"'It is well settled that the trial court has discretion regarding how the voir dire examination of the jury venire will be conducted, and that reversal can be predicated only upon an abuse of that discretion. Ervin v. State, 399 So.2d 894 (Ala. Crim. App.), cert. denied, 399 So.2d 899 (Ala. 1981); Peoples v. State, 375 So.2d 561 (Ala.Crim.App.1979).'
"Bui v. State, 551 So.2d 1094 (Ala.Crim.App.1988), aff'd, 551 So.2d 1125 (Ala. 1989), vacated on other grounds, 499 U.S. 971, 111 S.Ct. 1613, 113 L.Ed.2d 712 (D. Ala. 1991), on remand, 627 So.2d 848 (Ala.), on remand, 627 So.2d 849 (Ala.Crim.App.1991), after remand, 627 So.2d 849 (Ala.Crim.App.1992), rev'd on other grounds, 627 So.2d 855 (Ala. 1992). See also Travis v. State, 776 So.2d 819 (Ala.Crim.App.1997); McLeod v. State, 581 So.2d 1144 (Ala.Crim.App.1990); and Rule 18.4, Ala. R. Crim. P."
789 So.2d at 909.
Although Alabama courts have addressed the propriety of a prosecutor's comments on a defendant's failure to testify at various stages of trial -– primarily during closing argument, but also during opening argument or while examining or cross-examining witnesses -– we have been unable to locate any Alabama cases addressing the propriety of such comments that were made during voir dire. However, a number of other jurisdictions have addressed this issue, with mixed results. For example, Texas courts have held that it is not necessarily reversible error for a prosecutor to comment during voir dire on the defendant's possible failure to testify. See, e.g., Campos v. State, 589 S.W.2d 424, 426 (Tex. Crim. App. 1979). Rejecting a habeas corpus petitioner's claim of ineffective assistance of counsel based on counsel's failure to object to the prosecutor's comments on his right not to testify, the United States Court of Appeals for the Fifth Circuit explained:
"A prosecutor's statements regarding a defendant's failure to testify made after the introduction of evidence may violate the Fifth Amendment. See United States v. Johnston, 127 F.3d 380, 396 (5th Cir. 1997). During voir dire, however, before the introduction of any evidence, the prosecution may attempt to determine if a prospective juror will be prejudiced against the state by the absence of live testimony from the defendant. See Campos v. State, 589 S.W.2d 424, 426 (Tex. Crim. App. 1979) (stating that because the state's counsel had no way of knowing whether the defendant would testify, it was not necessarily error to comment on the defendant's potential failure to testify during voir dire); see also Sanders v. State, 963 S.W.2d 184, 190 (Tex.App.Corpus Christi 1998, n.w.h.). This is a valid area of voir dire inquiry under Texas law as a prospective juror should be told what the law is before being excused for bias or prejudice against that law. See Cuevas v. State, 742 S.W.2d 331, 343 n. 12 (Tex. Crim. App. 1987). Under Strickland[v. Washington, 466 U.S. 668 (1984)], therefore, the failure of Green's counsel to object was not deficient because the prosecution's line of questioning was proper. Green alleges no facts suggesting that he was prejudiced."
Green v. Johnson, 160 F.3d 1029, 1038 (5th Cir. 1998).
The United States Court of Appeals for the Tenth Circuit likewise rejected a habeas corpus petitioner's claim that during voir dire and closing argument the prosecutor violated the petitioner's right under the Fifth Amendment by improperly commenting on his post-arrest silence and his right not to testify. The Court noted:
"The Oklahoma Court of Criminal Appeals, applying primarily state law, determined that '[w]hile the comment ... comes dangerously close to causing a reversal of these convictions and a new trial, when compared to the exceptional amount of evidence against [petitioner], we find it did not contribute to the conviction and is therefore harmless error' under Chapman[v. California], 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 [(1967)]. Pickens[v. State], 850 P.2d [328, ] at 341-42 [(Okla. Crim. App. 1983)].
"The 'mere mention' of petitioner's rights 'is not per se prohibited; rather, it is the prosecutor's exploitation of a defendant's exercise of his right to silence which is prohibited.' Jones, 59 F.3d at 146. Further, the prosecutor's statements here accurately reflect the law. Cf. Green v. Johnson, 160 F.3d 1029, 1038 (5th Cir. 1998) (rejecting argument that prosecutor's statements during voir dire recognizing defendant's right to remain silent and explaining government cannot make defendant testify were improper comment on defendant's rights; noting that, while comments regarding defendant's failure to testify made after introduction of evidence at trial might violate Fifth Amendment, under Texas state law, prosecutor can inquire during voir dire whether prospective jurors will be prejudiced against State by absence of defendant's live testimony), cert. denied, 525 ...