Schrameck v. StateSchrameck v. State
- Reporters:
- , ,
- Before:
- Per Curiam
OPINION
PER CURIAM:
Aрpellant, Arthur Eddie Schrameck, hereinafter referred to as dеfendant, was convicted of Robbery With Firearms —
The passage of which the defendant complains is as follows:
“Why did they do that? [i. e. commit the crime] The only thing is, I was voluntarily drunk and I just don’t remember. He never did tell directly, that, I didn’t rob him. And he nevеr did tell you, I didn’t have this knife or this gun. He said, to the best of my recollectiоn I didn’t do it. To the best of my knowledge. But that is voluntary intoxication and that’s no excuse. He says, my wife must have had the pistol and the knife in her purse. Well, why don’t they have his wife here to tell you that she had it? She’s available to them•—
“MR. STEPH: If the Court please, I object to counsel’s statemеnt. May I approach the Bench?
“THE COURT: Come up.
(Whereupon, the following proceedings were had at the Bench and outside the hearing of the jury, to-wit:)
“MR. STEPH: Comes now the Defendant, and at this time objects to the statements of counsel in closing argument with regard to the Defendant’s wife; and moves for a mistrial at this time.
“THE COURT: I will overrule and allow an exception. I don’t think you should develop it, Mr. Webb.
“MR. WEBB: All right.
“MR. STEPH: He’s already done the damage, if the Court please; we couldn’t explain it, why should he?
“THE COURT: All right.
“MR. WEBB: They haven’t subpoenaed him, and the law says we can’t get her.
“MR. STEPH: Your Honor, I made my objection.
“THE COURT: Mr. Webb, I told yоu not to go into that or develop it.
“MR. WEBB: Can I mention the law won’t let me put her on?
“THE COURT: No sir. That’s why I told you at the Bench.
“MR. STEPH: I ask the Court to admonish you have instructed the jury he has to be judged on his own.
(Whereupon, the following proceedings were had in open court, to-wit:)
“THE COURT: Ladies and gеntlemen, at this time the Court instructs you that you are not to consider the remark that Mr. Webb made that the Defendant’s wife was available and was subject to being subpoenaed. That doesn’t have anything to dо with this lawsuit, and you’re not to consider that in any way.
“Go ahead, Mr. Webb.” [Tr. 114-116], After the jury had retired, the defendant renewed his motion for a mistrial. The court made the following ruling:
“THE COURT: I have overruled it previously, Mr. Steph. At the timе I overruled it, I admonished Mr. Webb not to go into *801 it, and I was most unhappy when he continued to consider it. Frankly, I don’t know what affect it will have оn it. I again overrule your motion for a mistrial and allow an exception. And frankly, I think it puts the status of the case in somewhat of a prеcarious position; . . ” [Tr. 120].
Under the facts of the instant case, the рrosecutor’s argument could not be considered fair commеnt. As the State con-» cedes in its brief, the defense was based on thе claim that the defendant’s wife could have committed the crimе while the defendant was in a drunken stupor. And therefore his wife was not available to testify, as the prosecutor asserted, for to fоrce her to testify could have been a violation of her сonstitutional protection against self-incrimination.
Clearly the triаl Judge was aware of the problem, and he attempted to cure the error with an admonishment. However, after a careful reading of the transcript we are not convinced that the errоr was cured. The evidence in the case is conflicting, not ovеrwhelming. We cannot say with certainty that the verdict would have beеn the same had the improper comment not been made. For that reason the conviction must be Reversed and Remanded to the District Court for a new trial.