William Wesley Gillespie

Sources

1. Gillespie v. State - Court of Criminal Appeals of Alabama, CourtListener, August 25, 1989.
2. Gillespie v. State - Court of Criminal Appeals of Alabama, Justia, March 4, 1994.
3. WILLIAM WESLEY GILLESPIE, Alabama Sex Offender Registry (iCrimeWatch), June 9, 2025.

• 1. Gillespie v. State - Court of Criminal Appeals of Alabama

  • 25 Aug 1989
  • Court record
  • CourtListener

  • original
  • archived
  • back to list

  549 So. 2d 640 (1989)
  William W. GILLESPIE
  v.
  STATE.
  3 Div. 24.

  Court of Criminal Appeals of Alabama.
  August 25, 1989.

  Charles M. Law, Montgomery, for appellant.

  Don Siegelman, Atty. Gen., and Gilda B. Williams, Asst. Atty. Gen., for appellee.

  BOWEN, Judge.

  William W. Gillespie was charged by separate indictments with four instances of first degree sexual abuse and one instance of first degree sodomy. The five cases, which involved three victims, were consolidated for trial and a jury found Gillespie guilty on three of the charges of first degree sexual abuse. The jury was deadlocked with regard to the remaining two charges (first degree sexual abuse and first degree sodomy) and the trial judge ultimately granted Gillespie's motion for judgment of acquittal on those two charges. Gillespie received a sentence of five years' imprisonment on each of the three charges *641 on which he was convicted, those three sentences to run concurrently. His sentences were "split," with one year to be served in the penitentiary and four years to be served on probation. He was ordered to pay court costs and $250 to the Victim's Compensation Fund in each case.

  The state's case-in-chief consisted primarily of the testimony of S.A. and B.P.— the two victims involved in the three charges of which Gillespie was convicted. Each testified that Gillespie reached inside her bathing suit and touched her private parts with his finger while she was swimming in his backyard pool.[1] Parents of the victims also testified. This testimony, except as discussed in Part I below, was mainly concerned with either general events surrounding the swimming pool incidents or the fact that the children had complained to them of Gillespie's actions. The only evidence of the crimes was the testimony of the victims themselves. There was no other eyewitness testimony or corroborating medical testimony.

  Gillespie testified in his own defense. He stated that in tossing children, both girls and boys, in his pool, he would pick them up by placing one hand on their shoulder and one hand between their legs. However, he unequivocally denied touching any of the victims in an inappropriate manner. Essentially, each case turned on whether the jury believed the victims or the defendant.

  Gillespie raises only one issue on this appeal. He contends that he was denied a fair trial due to the misconduct of the prosecutor [2] throughout the course of the trial. He asserts that the cumulative effect of this misconduct unfairly prejudiced the jury against him. We agree.

  Although Gillespie alleges error due to a number of specific acts of the prosecutor, we need address only two: (1) the repeated questions and innuendo implying that Gillespie had committed other acts of sexual misconduct, and (2) the prejudicial questions propounded to Gillespie during cross-examination concerning the Klu Klux Klan.

  In Sprinkle v. State, 368 So. 2d 554 (Ala. Cr.App.1978), cert. quashed, 368 So. 2d 565 (Ala.1979), this court set forth in detail the duties and responsibilities of the prosecuting attorney:

  "The primary duties of the office of the District Attorney are to see that justice is done, Adams v. State, 280 Ala. 678, 198 So. 2d 255 (1967), and to see that the state's case [is] properly presented to the court and jury as made by the evidence. Wilbanks v. State, 28 Ala.App. 456, 458, 185 So. 770 (1939); Williams v. State, 34 Ala.App. 253, 39 So. 2d 29 (1949).

  "`The office of solicitor is of the highest importance; he is the representative of the state, and as a result of the important functions devolving upon him as such officer necessarily holds and wields great power and influence, and as a consequence erroneous insistences and prejudicial conduct upon his part tend to unduly prejudice and bias the jury against the defendant; this, without reference to the instructions of the court. The test in matters of this kind is not necessarily that the conduct of the solicitor complained of did have such effect upon the jury, but might it have done so?' Taylor v. State, 22 Ala.App. 428, 429, 116 So. 415, 416 (1928); Jones v. State, 23 Ala. App. 493, 495, 127 So. 681 (1930); Bynum v. State, 35 Ala.App. 297, 298, 47 So. 2d 245, cert. denied, 254 Ala. 22, 47 So. 2d 247 (1950).

  "In the performance of his duties the District Attorney should treat the defendant fairly and the witnesses courteously, both in examination and in argument. Campbell v. State, 19 Ala.App. 349, 352, 97 So. 783 (1923). The prosecuting attorney has a duty to be fair and impartial in presenting the evidence and in examining *642 or cross examining witnesses. Melton v. State, 21 Ala.App. 419, 109 So. 114 (1926). While he may not take unfair advantage of a defendant, he is under a duty to prosecute with earnestness and vigor. Arant v. State, 232 Ala. 275, 167 So. 540 (1936)."

  Sprinkle, 368 So.2d at 560. In Wysinger v. State, 448 So. 2d 435, 438 (Ala.Cr.App. 1983), we noted:

  "In reviewing allegedly improper prosecutorial comments, conduct, and questioning of witnesses `[o]ur task is to consider their impact in the context of this particular trial,' and `not view the group of allegedly improper questions and comments in the abstract.' United States v. Davis, 546 F.2d 583, 593 (5th Cir.1977). `[W]e must assess the impact of the questions in the context of the entire trial.' United States v. Bosby, 675 F.2d 1174, 1185 (11th Cir.1982)."

  Wysinger, 448 So.2d at 438 (emphasis added). With these principles in mind, we turn now to a discussion of the alleged instances of prosecutorial misconduct.

  I

  R.G., Gillespie's daughter and the mother of the victim involved in the cases on which Gillespie was ultimately acquitted, was called as a witness by the state. During direct examination, she responded affirmatively to the prosecutor's question: "Did you also make certain reports about your father?" (Emphasis added.)

  During the cross-examination of Gillespie's wife, who testified as a defense witness, the following exchange occurred:

  "Q. [By the prosecutor] And didn't you testify that the custom had evolved that sometimes the [victims S.A. and B.P.] came and swam without their parents?

  "A. No, I said the children often were at the house without their parents. [The mother of S.A. and stepmother of B.P.], in fact, had left them in [Gillespie's] custody a number of times to babysit them.

  "Q. That was before she knew about him, wasn't it?

  "A. I don't know what you mean by that, sir. I object to that question.

  "By Mr. Law [Defense Counsel]: Your Honor, I object to that question and ask the court to instruct the jury to disregard it.

  "By the Court: All right, he has asked the question, go ahead, next question.

  "By [the prosecutor]:

  "Q. Now, Mrs. Gillespie, you seemed righteously indignant when I asked you that question; you have heard allegations about your husband of a similar nature before, haven't you?

  "By Mr. Law: Judge, I object.

  "By the Court: Sustained.

  "By Mr. Law: I would like to make a motion outside the presence of the jury." (Emphasis added.)

  There followed an in-chambers discussion during which the prosecutor asserted that "We believe we can show that the defendant was charged with incest with his own daughter in a church court, and she [his wife] was aware of those charges. The result of that is, he was excommunicated from the Church of Jesus Christ of Latter Day Saints." The trial judge responded and stated in effect that at "a previous hearing on this excommunication business" the evidence showed that the defendant was excommunicated not for incest but "because of an abortion that his daughter had" and that the church records of that excommunication had been destroyed. The judge indicated that he had previously ruled that "if the records were not available, that [the prosecutor] would not be allowed to get into that." The trial judge instructed the prosecutor not to ask any witness "about any prior acts or religious questions, until we get the witnesses * * * in from the church, a church official."

  The trial court sustained Gillespie's objection to the questions which occasioned the in-chambers discussion, stating "and I'll explain it to the jury." Gillespie then made a motion for mistrial on the basis that the prejudicial effect of the prosecutor's questions implying that he had committed other acts of sexual misconduct could not be eradicated. The trial judge denied this motion, saying "I can take care of it."

  *643 Notwithstanding these instructions, shortly after resuming cross-examination of Mrs. Gillespie, the prosecutor asked:

  "Q. Okay, and are you aware that your daughter [R.G.] testified she herself had filed allegations against your husband?

  "A. No, I was not aware of that.

  "Q. Are you aware that she later changed those allegations—?

  "By Mr. Law [Defense Counsel]: Judge—.

  "By [the prosecutor]: Judge, this was testified to.

  "By the Court: That's the little girl's mother? When did she make allegations?

  "By [the prosecutor]: Judge, if we could go back to her testimony, the last couple of questions I asked her, related specifically to this.

  "By Mr. Law: They related to [the child].

  "By [the prosecutor]: [R.G.].

  "By the Court: Talk about the little girl,—the allegations made by the little [girl] if I recall—first of all, I'll sustain that, I don't remember that evidence being in. It's for the jury to remember.

  "By [the prosecutor]: May we look in the record?

  "By the Court: I don't think it's necessary. It's for the jury to remember what the evidence was in the case. I have already instructed you on that, and I'll instruct you again. I'll caution you, that if you go into anything, if you are going to make statements as opposed to asking questions, make sure it's the evidence in this case ...." (Emphasis added.)

  The prosecutor took issue with the trial judge's ruling and stated, "I think it's critical to our case." This entire exchange took place in the hearing of the jury.

  On direct examination, Mrs. Gillespie had stated that she had never "notice[d] anything inappropriate about [Gillespie's] behavior around these children," obviously referring to B.P. and S.A. Upon resuming cross-examination, the prosecutor had Mrs. Gillespie confirm this testimony. He then stated:

  "Your Honor, I would like to ask her the question I previously asked her, based on that.

  "By Mr. Law: Judge—.

  "By the Court: Wait a minute, wait a minute. I have made my ruling. Y'all know what the ruling is. Let's continue to try the case."

  While the prosecutor was cross-examining Gillespie, the following occurred:

  "Q. And [R.G.] also testified, did she not, that she made allegations against you?

  "By Mr. Law: Judge—.

  "A. No, sir, she did not.

  "By Mr. Law: Object.

  "By the Court: Overruled, it's for the jury to remember what the testimony was.

  "....

  "Q. How often have you talked to your daughter, [R.G.], and your granddaughter, since they made these allegations about you?

  "A. How often have I talked to them?

  "Q. Yes, sir?

  "A. Whenever the occasion—I mean, whenever they were there.

  "Q. They've been coming over to your house?

  "A. Yes, sir.

  "Q. You like little girls, don't you?

  "By Mr. Law: Judge, Judge, Judge. I object to the form of that question.

  "By the Court: Sustained.

  "By [the prosecutor]:

  "Q. When you had those little girls, holding them in the pool, and when you had them laying down on your bed, and you were rubbing that lotion on them, you couldn't resist touching them, could you? And you did it, didn't you?

  "A. I, —I, —I, —I understand the sleazy way you're saying that, but—.

  "Q. Thank you, sir—.

  "A. That doesn't intimidate me. No. I did not ever touch those girls sexually, not those little girls or any other little girls, never.

  *644 "By [the prosecutor]: In view of that last response, I would ask the court to allow me to go into the matters we discussed earlier.

  "By Mr. Law: I object.

  "By the Court: Sustained.

  "By [the prosecutor]: Does that mean you won't let me, judge?

  "By the Court: Sustained, sustained.

  "By [the prosecutor]: All right.

  "By [the prosecutor]:

  "Q. So, you have never done anything like that to any little girls at any time; is that what you just said?

  "A. Yes, sir.

  "By [the prosecutor]: Judge, could I ask one more time?

  "By the Court: No." (Emphasis added.)

  "`It is unprofessional conduct to ask a question which implies the existence of a factual predicate which the examiner knows he cannot support by the evidence.' "Bezotte v. State, 358 So. 2d 521, 525 (Ala.Cr.App.1978). Accord Daniel v. State, 534 So. 2d 1122 (Ala.Cr.App. 1988); Young v. State, 363 So. 2d 1007 (Ala.Cr. App. 1978). Additionally, reversible error occurs where the trial judge fails to adequately restrain a prosecutor from persistently asking improper questions or making improper statements "`in defiance of the ruling of the court, ... intentionally for the purpose of getting before the jury facts or statements not admissible, and calculated to prejudice the judgment of the jury....'" Allen v. State, 478 So. 2d 326, 330 (Ala.Cr. App.1985) (quoting Alabama Power Co. v. Berry, 222 Ala. 20, 23, 130 So. 541, 543 (1930)).

  In the present case, it is clear that the prosecutor had no evidence with which to prove any other acts of sexual misconduct on the part of Gillespie. The above-quoted question posed to R.G. was very ambiguous. It was obviously interpreted by both defense counsel and the trial judge as relating to a complaint made on behalf of R.G.'s minor daughter, not a complaint made by R.G. herself. The prosecutor, however, stated before the jury that it related to a complaint made by R.G. herself and repeatedly propounded questions which implied that R.G. had made such a complaint. Aside from this ambiguous question, the record is absolutely devoid of any evidence which supports a contention that R.G. ever made an allegation that her father had engaged in any type of sexual misconduct with her. In fact, as noted above, the record indicated that the prosecution did not have any evidence that Gillespie had committed other acts of sexual misconduct. In spite of this, the prosecutor continually asked questions and made comments suggesting and implying that Gillespie had committed such acts.

  We are of the opinion that the cumulative effect of the repeated questions and insinuations by the prosecutor created in the minds of the jurors the impression that Gillespie had engaged in other acts of sexual misconduct. As stated by our supreme court in Blue v. State, 246 Ala. 73, 79-80, 19 So. 2d 11, 16-17 (1944):

  "[W]e do not think that each of the above statements [by the prosecutor] must be analyzed separately to see whether or not, standing alone, it would create an ineradicable bias or prejudice. We think, on the contrary, that these various statements should be considered together to determine whether or not, in their cumulative effect, they created a prejudicial atmosphere.... [I]t is our duty to see to it that trials are free from prejudice and passion and that the courtroom means that where a conviction is obtained, it is obtained in an impartial atmosphere. The foregoing remarks were made in the presence of the jury. Considering them in their cumulative effect, we think they were calculated to inject the poison of bias and prejudice into the minds of the jury. They created an atmosphere of bias and prejudice which no remarks by the court could eradicate."

  See also Jetton v. State, 435 So. 2d 167, 172 (Ala.Cr.App.1983); White v. State, 376 So. 2d 1129, 1130-31 (Ala.Cr.App.), cert. denied, 376 So. 2d 1132 (Ala.1979); Bezotte v. State, supra.

  *645 Furthermore, the trial judge did very little to curb the prosecutor in this regard and even exacerbated the situation by stating, at least twice in the presence of the jury, that it was for the jury to remember the evidence in the case. Despite his assertions during the in-chambers hearing that he would "explain it to the jury" and that he could "take care of it," the trial judge did not at any time specifically instruct the jury to disregard the insinuations of the district attorney. Although he did, in both the instructions given to the jury before the presentation of any evidence and at the close of all evidence, instruct the jury that the questions posed by lawyers were not evidence, we do not find this to be sufficient to eradicate the impression created in the minds of the jurors by the questions and insinuations injected by the prosecutor. Cf. Ex parte Stubbs, 522 So. 2d 322 (Ala. 1987) (adopting the dissenting opinion of Patterson, J., in Stubbs v. State, 522 So. 2d 317, 322 (Ala.Cr.App.1987), that prosecutor's statement in closing argument was improper where not supported by the evidence and trial court's apparently contemporaneous instructions that statements by attorneys were not evidence was insufficient to eradicate the impression caused by the improper statement). See also Allen v. State, supra.

  More importantly, "[o]n the trial of a person for the alleged commission of a particular crime, evidence of his doing another act, which itself is a crime, is not admissible if the only probative value is to show his bad character, inclination, or propensity to commit the type of crime for which he is being tried." C. Gamble, McElroy's Alabama Evidence, § 69.01(1) (3d ed. 1977). We, of course, recognize that "certain `other purpose' exceptions to this rule of exclusion exist, such as the accused's motive, intent, identity, or common plan, design, or scheme, or system, in regard to all of which evidence [of collateral offenses] may be introduced provided there is a real and open issue as to one or more of those `other purposes.'" Bowden v. State, 538 So. 2d 1226, 1227 (Ala.1988); Staten v. State, 547 So. 2d 607 (Ala.1989). See generally McElroy's, § 69.01. Because Gillespie contended that the charged acts of misconduct never occured, "there was no `real and open issue' concerning identity." Anonymous v. State, 507 So. 2d 972, 975 (Ala. 1987). Similarly, there was no "real and open issue about his intent," as the intent necessary for a conviction of first degree sexual abuse "may be inferred by the jury from the act itself." Ex parte Cofer, 440 So. 2d 1121, 1124 (Ala.1983). It is also clear that none of the other exceptions applies in the present case. The only conceivable purpose for the questions and insinuations on the part of the prosecutor was to "prejudice the accused by suggesting that he was more likely to be guilty of the crime[s] in question." Allen v. State, 478 So. 2d 326, 330 (Ala.Cr.App.1985).

  The state argues on appeal that "since the prosecutor's attempt to get the evidence admitted was futile, there was no testimony of collateral misconduct or `other crimes' before the jury." (Appellee's brief at 12.) Although the prosecutor did not openly present evidence of "other crimes" (apparently because he had none), the cumulative effect of his repeated questions and insinuations was such that the jury could have readily inferred that Gillespie had engaged in other unspecified acts of sexual misconduct. In a similar case, United States v. Shelton, 628 F.2d 54, 57 (D.C.Cir.1980), the prosecutor, through innuendo, implied that the defendant and a defense witness were "members of the drug underworld involved in all sorts of skulduggery." In reversing the conviction, the court stated:

  "The evidence produced by the prosecutor's line of cross-examination is not rendered more acceptable by the fact that it is less focused and more subtly adduced than traditional `other crimes' evidence. Quite the contrary. Where the `other crime' alleged is not specified, it is more difficult for the defendant to refute the charge or to demonstrate its insignificance. Where the evidence is presented by innuendo, it is less likely that the jury will guard against manipulation. Therefore, the likelihood that a jury will draw an improper inference is even *646 greater in a case like the one before us than it is in the traditional `other crimes' case." 628 F.2d at 57 (emphasis added).

  The issue in this case was very simple: either Gillespie committed the charged acts of sexual abuse or he did not. The evidence on this issue was in sharp conflict, with the victims asserting that the acts occurred and Gillespie maintaining that they did not. Instead of concentrating on that issue, the prosecutor sought to bolster his case by prejudicial attacks upon Gillespie which were not only completely unsupported by any evidence, but also concerned matters which were totally inadmissible. Our review of the entire record convinces this Court that the prosecutor's questions implying collateral and other acts of sexual misconduct were calculated and deliberate despite the trial judge's rulings. "He tried to convey to the jury, by insinuation, suggestion, and speculation, that [Gillespie] may have committed ... offenses similar to the one for which he was being tried. These prejudicial attacks upon [Gillespie]... deprived [him] of a fair trial." People v. Chin, 525 N.Y.S.2d 673, 675, 138 A.D.2d 389 (1988). Cf. People v. Hudson, 179 Cal. Rptr. 95, 96, 126 Cal. App. 3d 733, 735 (1981) (conviction of sexual offenses reversed where the evidence was in sharp dispute and the deputy district attorney "resorted to inflammatory rhetoric, violated the trial court's rulings, brought out inadmissible matters in the guise of questions and statements, used extremely vulgar forms of argumentative questions and injected prejudicial innuendo by his editorial comments in front of the jury"); Hosford v. State, 525 So. 2d 789 (Miss.1988) (in child molestation case where the evidence was in conflict, it was reversible error for the prosecutor to question the defendant regarding unrelated perverted acts with the defendant's stepchildren for which there was no evidentiary basis). See also Jenkins v. State, 472 So. 2d 1128, 1129-30 (Ala.Cr.App.1985), wherein this Court noted the prejudice associated with the joinder of sex crimes for trial.

  II

  During the prosecutor's cross-examination of Gillespie, defense counsel requested a hearing outside the presence of the jury when the prosecutor began questioning Gillespie about his brother. In this hearing, the prosecutor indicated that he intended to ask Gillespie whether Gillespie and his brother were members of the Ku Klux Klan. Defense counsel objected, stating that the brother had "been convicted of sexual abuse several times," and, as there were nine black jurors, the question would serve only to prejudice Gillespie. The trial court overruled the objection on the basis that defense counsel went into Gillespie's background, such as his marital status, military service, and work experience, during direct examination. However, he also observed: "Well, that [the Ku Klux Klan] doesn't have much to do with sexually molesting the kids...." During this same hearing, the trial court instructed the prosecutor to refrain from asking Gillespie any questions concerning his past or present religious affiliation. When cross-examination was resumed, the following occurred:

  "Q. [By the prosecutor]: Buddy Gillespie is your brother isn't he?

  "A. Yes, sir.

  "Q. You and he are both members of the Ku Klux Klan aren't you?

  "A. No, sir, absolutely not, not one day. I have never been to a—never—the only thing I know is what I hear my brother say. I don't know that for a fact.

  "Q. And that's a secret organization isn't it?

  "A. Sir, I don't even know that my brother belongs to it. If you can show me that my brother belongs to it, —I don't even know that he belongs to it.

  "Q. Members don't admit they are members, do they?

  "A. If my brother was a member, he would be more than glad to tell you so.

  "Q. All right.

  "A. Would you like to call him, sir?

  "Q. We have."

  This court fails to see any distinction between questions regarding Gillespie's religious affiliation, or lack thereof, which *647 the trial court correctly prohibited, and questions regarding alleged membership in the Ku Klux Klan, which the trial court permitted. The same rule applies to both:

  "`We have never understood, unless the affairs of a fraternal, religious, or political society, or of an organization, are involved in issue, that it is competent to show a witness has a membership in such organization.'"

  Russell v. State, 27 Ala.App. 10, 13, 165 So. 256, 258 (1935) (emphasis added). See also McElroy's § 141.01(5).

  We have recognized that the Ku Klux Klan is an organization "which espouses white supremacy and racial hatred," Chambliss v. State, 373 So. 2d 1185, 1207 (Ala.Cr.App.), cert. denied, 373 So. 2d 1211 (Ala.1979). We have held that evidence of the defendant's membership in this organization is admissible for the purpose of showing his motive for "bombing a church whose members were predominantly black," id. However, the present case involved sexual offenses against children and the prosecutor's questions regarding this organization clearly served no purpose other than to prejudice Gillespie. Cf. State v. Koch, 321 Mo. 352, 10 S.W.2d 928, 931 (1928) (in arson case, conclusory opinion of prosecution witness that the defendant was a member of the Ku Klux Klan, "without further proof that defendant, by reason of membership in the Klan, bore enmity to the injured, so as to show motive," was prejudicial error requiring reversal).

  Whether or not Gillespie was a member of the Ku Klux Klan had absolutely no probative value in this case. Although the trial judge, who happens to be black stated, "it doesn't offend me one bit that he is a member of the Klan," there were nine blacks on the jury and the potential for prejudice was overwhelming. The Klan is synonymous with racial bigotry and hatred and with violence, harassment, and intimidation. However, even if we accept the trial court's reasoning and the state's argument that Gillespie "opened the door" to these questions by his testimony on direct examination as to his background, the prosecutor was still bound by the precept discussed in Part I above: It is improper for the prosecutor to ask questions which intimate facts which he cannot support by evidence. Daniel v. State; Young v. State; Bezotte v. State, supra. Where the prosecutor insinuates the existence of a fact which the witness denies, the prosecution "may have a duty to complete its impeachment of the witness or show that the prosecutor had `evidence of or reasonable ground to believe the truth of its implication.' "Wysinger v. State, 448 So. 2d 435, 438 (Ala.Cr.App.1983). We find this to be a case in which the prosecutor had such a duty even had KKK membership been admissible.

  The evidence was in sharp dispute and the question of Gillespie's guilt turned entirely on whether the jury believed him or the victims. After Gillespie denied that he was a member of the Ku Klux Klan, the prosecutor posed several questions designed to imply that Gillespie was lying about the matter. However, the prosecutor did not call Gillespie's brother (who, he had insinuated, had informed him that Gillespie was a member) or offer any other evidence to show that Gillespie was, in fact, a member of the Ku Klux Klan. By insinuating that Gillespie was a member of the KKK, and that Gillespie was lying when he denied membership in this organization, without offering any proof to support these insinuations, the prosecutor improperly undermined Gillespie's credibility. Cf. Lee Won Sing v. United States, 94 U.S.App. D.C. 310, 215 F.2d 680 (1954) (where the chief defense witness stated that he committed the crime and was pleading guilty to the offense, his credibility was of great importance and the prosecutor's question asserting that the witness was pleading guilty because the defendant was paying him $20,000 was prejudicial error requiring reversal inasmuch as the prosecutor offered no evidence to refute the witness's negative response); People v. Hudson, 179 Cal.Rtpr. at 99, 126 Cal.App.3d at 741 ("The question of appellant's guilt depended greatly on the jury's determination of the relative credibility of the witnesses. The evidence is in sharp conflict.... The highly prejudicial implications arising from *648 the improper questions asked of appellant on cross-examination impaired his credibility and presented him as a person of criminal tendencies"). See also Daniel v. State, supra (conviction of sexual abuse reversed where defendant denied prosecutor's assertion that defendant had a third party offer the mother of the victim money in exchange for dropping the charges and the prosecutor had no "lawful evidence" to prove the assertion).

  The crimes for which Gillespie was indicted and tried are reprehensible. However, a charge of even the most heinous crime imaginable does not grant the prosecution the right to engage in unprofessional and improper trial, tactics calculated to prejudice the jury against the defendant. "[I]n seeking to prove a defendant's guilt, a prosecutor has an obligation to insure that the defendant receives a fair trial and ... he must restrain misguided impulses and excessive zeal during cross examination and summation." People v. Higgins, 450 N.Y.S.2d 558, 88 A.D.2d 921 (1982). Additionally, "[t]he prosecutor must refrain from injecting unfounded or prejudicial innuendo into the proceedings, People v. George, 130 Mich.App. 174, 342 N.W.2d 908 (1983)...." State v. Blaine, 427 N.W.2d 113, 115 (S.D.1988). While we recognize that a "`trial is a legal battle, a combat in a sense, and not a parlor social affair,'" Blue v. State, 246 Ala. at 80, 19 So.2d at 16, conduct such as that exhibited by the prosecutor in the present case far exceeds the bounds of fair play and aggressive but legitimate prosecution. Such conduct will not be tolerated by this Court.

  Because of the prosecutor's improper conduct, the judgment of the Montgomery Circuit Court is reversed and this cause remanded for further proceedings.

  REVERSED AND REMANDED.

  All Judges concur.

  NOTES

  [1] Because Gillespie's motion for judgment of acquittal was granted with regard to the charges involving the third alleged victim, we deem it unnecessary to discuss the specific facts of the two cases involving that person.

  [2] The state was represented by two assistant district attorneys. The conduct complained of was engaged in exclusively by only one prosecutor.

• 2. Gillespie v. State - Court of Criminal Appeals of Alabama

  • 4 Mar 1994
  • News article
  • Justia

  • original
  • archived
  • back to list

  Gillespie v. State
  Annotate this Case

  644 So. 2d 1284 (1994)

  William W. GILLESPIE v. STATE.

  CR-92-1246.

  Court of Criminal Appeals of Alabama.

  March 4, 1994.

  Rehearing Denied May 6, 1994.

  Certiorari Denied July 15, 1994.

  *1285 Thomas M. Goggans, Montgomery, for appellant.

  James H. Evans, Atty. Gen., and Steve Willoughby, Asst. Atty. Gen., for appellee.

  Alabama Supreme Court 1931155.

  MONTIEL, Judge.

  The appellant, William W. Gillespie, was convicted of one count of sodomy in the first degree and two counts of sexual abuse in the first degree. §§ 13A-6-63 and 13A-6-66, Code of Alabama 1975. After a jury found him guilty, the trial court sentenced the appellant to 10 years' imprisonment for the count of sodomy in the first degree and to 5 years' imprisonment for each count of sexual abuse in the first degree. The trial court ordered that the sentences for sexual abuse in the first degree were to be served concurrently with one another and were to be served consecutively with the sentence for sodomy in the first degree. The trial court also ordered that the appellant pay court costs, $250 to the victims' compensation fund, and $2,142.40 in restitution.

  The appellant represented himself during the trial of this case. On February 24, 1993, the trial court held a pretrial status conference, during which the following colloquy took place:
  "THE COURT: Mr. Gillespie has informed the court by letter and his first appearance in court that he desired to represent himself and that he waived his right to a trial by jury. "THE [APPELLANT]: Yes, sir. "THE COURT: He sent a letter to the court on that. ". . . . "THE COURT: Wait a minute. [After] taking into consideration all of his income, the court finds Mr. Gillespie is not indigent. "THE [APPELLANT]: No, sir, I am not. "THE COURT: You are not indigent? "THE [APPELLANT]: No, sir. "THE COURT: All right. "THE [APPELLANT]: No, sir. Absolutely not. "THE COURT: Which means that the court is not obligated under the rules to appoint a lawyer to Mr. Gillespie. So Mr. Gillespie is going to represent himself pro se. However, out of an abundance of cautionthe court has two lawyers assigned to this court on contract to do criminal defense work. They are experienced lawyers and have done excellent jobs and are former district attorneys. The court has called Brenda Watson, who is one of those lawyers, and the court is going to appoint Miss Watson for the limited purpose, out of an abundance of caution, to sit at counsel table and assist Mr. Gillespie whenever he desires her assistance, but he will try his case. Okay. Do you understand that? "MS. WATSON: Yes, sir.... "THE COURT: ... Miss Watson, what I would like for you to really do, whether Mr. Gillespie wants you to do it or not, and I guess he will handle all of the examination and cross-examination, but I would like for you to specifically educate Mr. Gillespie for the morning of trial. Take him to the library and show him where the *1286 jury questionnaires are so he can go through those. And then, because these three cases are consolidated, make sure he understands how the strikes will go and show him how the jury will be impaneled. After that, if he doesn't want your assistance in any other fashion, I will ask you to sit at the table. If I make the decision later that you can leave, I will let you know. ". . . . "THE COURT: ... I will see you all next Wednesday at 8:30. Be prepared and ready for trial at that time. Miss Watson, show him all of that stuff."

  On March 3, 1993, the appellant's cases were called for trial and the following discussion occurred:
  "THE COURT: State v. Gillespie. State ready? "MR. TURNER [prosecutor]: Yes, your honor. "THE COURT: Defense ready? "THE [APPELLANT]: Yes, sir. "THE COURT: Let's get some things straight. All right. The previous record from this court shows Mr. Gillespie has elected to represent himself. He has stated to the court that he is not indigent. The court has accepted that. He's elected to represent himself. Okay. The court has advised Mr. Gillespie to get familiar with the rules of evidence and the procedure of the court in presenting his case. Out of an abundance of cautionMiss Brenda Watson is on contract with this court to handle criminal defense matters. Since Mr. Gillespie is not indigent, the court is not going to take money from the indigent defense fund to appoint [Ms.] Watson as an attorney or any other attorney to represent Mr. Gillespie in that the state would be billed. The court has instructed [Ms.] Watson to assist or give Mr. Gillespie guidance in striking the jury, although he will make the decision who is to be struck. She will give him guidance on the procedures of the court. At some particular time, the court will decide whether [Ms.] Watson will remain throughout his trial or be relieved to go back and do other duties since Mr. Gillespie is not indigent and has elected to represent himself.... Okay. Are there any matters we have to take up before we get this venire up here? "MR. LUSK [prosecutor]: Yes, sir. "THE COURT: What? "MR. LUSK: With regard to what the court was just discussing about Mr. Gillespie's election to waive his right to counsel, if you will notice in that caseI don't recall the name of the case, but it's in headnote 2. The law requires that the court, on the record, explain to Mr. Gillespie, the perils of self-representation and the possible punishment that he can receive. "THE COURT: I have done that but I will do it again, based on [Hill v. State]. "MR. LUSK: Yes, sir. "THE COURT: Mr. Gillespie, how old are you, please, sir? "THE [APPELLANT]: 57. "THE COURT: How far did you go in school? "THE [APPELLANT]: Sixth grade. "THE COURT: You retired from the military? "THE [APPELLANT]: Yes, sir. "THE COURT: What rank were you? "THE [APPELLANT]: Staff sergeant. "THE COURT: What kind of work did you do in the Air Force? "THE [APPELLANT]: I was a [missile] inspector and rescue. "THE COURT: Are you able to read and write? "THE [APPELLANT]: Yes. "THE COURT: Have you done any additional work other than the Air Force? "THE [APPELLANT]: Yes, sir. I work forI was in the wholesale automobile business, and I am a carpenter and cabinet maker. "THE COURT: And you are retired from active duty, as I understand? "THE [APPELLANT]: Yes. "THE COURT: And although you had a sixth grade education, you performed well *1287 enough to stay in the Air Force on active duty for 20 years? "THE [APPELLANT]: That was my formal education when I went in the Air Force. I have since gotten an equivalent of two years of college. "THE COURT: ... I have asked you whether or not you were indigent. What was your answer? "THE [APPELLANT]: No, sir. "THE COURT: You are not indigent? "THE [APPELLANT]: No, sir. "THE COURT: Do you understand that in representing yourself that you are responsible for knowing the rules of evidence and presenting your case? "THE [APPELLANT]: Yes, sir. "THE COURT: And do you understand that if you are convicted in these cases, thatthis is a sexual abuse case in the first.... ". . . "THE COURT: It's a class C felony, and I would be authorized to sentence you from one year and a day up to ten years in the penitentiary. Do you understand that? "THE [APPELLANT]: I do, sir. "THE COURT: And that was in case number [CC-] 92-2031. In case number [CC-92-2032], you're charged with sexual abuse in the first degree, and I would be authorized to sentence you to not less than one year and a day up to ten years in the penitentiary; plus up to $50I must order you to pay to the Alabama Crime Victims' Compensation Fund between $50 up to $10,000; plus I can impose a fine not exceeding $5,000. Do you understand that? "THE [APPELLANT]: I do, sir. "THE COURT: In case number [CC-]92-2030, sodomy in the first degree, is a Class A felony. If you were convicted, I would be authorized to sentence you to not less than ten years up to ninety-nine years or life; plus a fine not exceeding $20,000. Do you understand that? "THE [APPELLANT]: I do, sir. "THE COURT: I must order you to pay an amount between $50 up to $10,000 to the Alabama Victims' Crime Compensation Fund, if you are convicted. Do you understand that? "THE [APPELLANT]: I do, sir. ". . . . "THE COURT: Do you waivewell, since you are not indigent, do you still elect and waive your right to have a lawyer appointed and you want to represent yourself? "THE [APPELLANT]: I elect to represent myself; yes, sir."

  Later during this proceeding, the trial court discussed evidentiary matters with the parties. The appellant requested to hear audiotapes of grand jury testimony given by the victims in this case. The court ordered the State to provide the appellant with the audiotapes and stated that the court would reconvene after the appellant had had the opportunity to hear the audiotapes. When the court reconvened, the appellant requested a three-day continuance so that he could seek "professional counsel." The trial court granted the appellant a continuance of two and one-half weeks and informed the appellant that his retained attorney should contact the district attorney's office so that the State could provide the appellant's attorney with its entire file on the case.

  On March 22, 1993, the appellant appeared for docket call without an attorney and again informed the trial court that he wanted to represent himself. The appellant was told that his case would not be tried until March 24. The appellant stated that he was ready for trial and indicated that he was disturbed that the trial would not be held until two days later.

  On March 24, 1993, the appellant's case was tried. Ms. Watson assisted the appellant in striking the jury, but was then excused by the trial court and the appellant represented himself. The appellant is represented by an attorney in this appeal.
  I

  The appellant argues that the record does not reflect that he knowingly and intelligently waived his right to counsel at trial, and that, therefore, his convictions violate the Sixth and Fourteenth Amendments to the *1288 United States Constitution and Art. I, § 6, of the Alabama Constitution.
  "An accused has a constitutional right to represent himself where his decision to proceed without counsel is voluntarily and intelligently made. Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). In determining whether an accused's waiver of counsel was in fact voluntarily and intelligently made, some courts `require that a trial court expressly admonish a defendant of the dangers and pitfalls of self-representation.' Teske v. State, 507 So. 2d 569, 571 (Ala.Crim.App.1987). "Alabama, however, does not subscribe to this view. Instead, our courts follow the modern trend which `require[s] only that it appear from the record as a whole that a defendant's waiver of counsel and decision to represent himself were knowing and intelligent.' Teske, 507 So. 2d at 571. Under this approach, `the focus of the inquiry is not on the information revealed by the court but on the knowledge of the accused, as shown by the circumstances surrounding the waiver.' Id. (Emphasis added [in McLeod]). Although recognizing that `express, on-the-record advice of the dangers and risks of self-representation is ... highly desirable,' id. at n. 1, Teske makes it clear that as long as a knowing and intelligent waiver is apparent from the record, it need not emerge from a colloquy in which the defendant is advised by the trial judge of the dangers and disadvantages of self-representation. See also 2 W. LaFave and J. Israel, Criminal Procedure § 11.3(b) at pp. 30-33, § 11.5(c) at pp. 44-47 (1984)."

  McLeod v. State, 581 So. 2d 1144, 1148 (Ala. Crim.App.1990).

  In cases in which the accused's waiver of the right to be represented by counsel is clear and unequivocal, such as the waiver in this case, the burden is upon the appellant to establish by a preponderance of the evidence that the waiver was not knowing and intelligent. Tomlin v. State, 601 So. 2d 124, 128 (Ala.1991); Westmoreland v. City of Hartselle, 500 So. 2d 1327, 1328 (Ala.Crim.App. 1986), citing, Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562.

  The record clearly reflects that the appellant's waiver of his right to counsel was knowing and intelligent. The record establishes that the trial court informed the appellant of the seriousness of the offenses with which he was charged and of the range of sentences that the trial court could impose if the appellant was found guilty of the offenses. The appellant stated that he understood he would have to follow the rules of evidence and courtroom procedures in representing himself.

  The trial court proceeded cautiously by providing the appellant with the guidance of an attorney to assist the appellant with the rules of evidence and with procedural matters. The trial court even provided the appellant with a continuance of two and one-half weeks, although he requested only three days, so that the appellant could retain counsel and counsel could review the appellant's file. Nevertheless, on the date set for trial after the continuance, the appellant stated that he still wanted to represent himself and that he wanted to try his case that day. The appellant was familiar with the criminal justice system and knew the benefits of having an attorney represent him; he had been tried and convicted of an offense on a previous occasion, and this Court reversed that conviction on appeal. See Gillespie v. State, 549 So. 2d 640 (Ala.Crim.App.1989).

  The appellant has failed to establish by a preponderance of the evidence that his waiver of his right to counsel was not knowingly and intelligently made. This Court holds that, under the circumstances of this case, the trial court did all that was necessary to determine that the appellant's waiver was knowingly and intelligently made. See McLeod, 581 So. 2d at 1149.
  II

  The appellant argues that the trial court erred in not ruling on his motion for a new trial and thereby allowing it to be denied by operation of law because, he says, newly discovered evidence presented with that motion would entitle him to a new trial. In an affidavit supporting the appellant's motion for a new trial, Barbara Thompson, the appellant's neighbor, stated that C.W., the appellant's *1289 granddaughter and a child victim in this case, told her that she was upset that the appellant had not taken her to Florida as he had C.W.'s brothers. Thompson further stated in the affidavit that C.W. told her that if the appellant did not take her to Florida that she would do "grown up things" with boys" and blame the appellant for the acts.

  The State correctly asserts that in order to establish the necessity for a new trial based on newly discovered evidence, the appellant must prove: (1) that the evidence was discovered after the trial; (2) that the evidence could not have been discovered prior to trial by due diligence on the part of the movant; (3) that the evidence is material to the issue of the appellant's guilt; (4) that the evidence is not merely cumulative or impeaching; and (5) that the evidence would probably change the outcome if a new trial was granted. Ex parte Heaton, 542 So. 2d 931 (Ala.1989); Landreth v. State, 600 So. 2d 440 (Ala.Crim.App.1992). The trial court is entitled to great deference in determining whether newly discovered evidence warrants a new trial and that decision will not be reversed absent a clear abuse of discretion. Moran v. State, [Ms. CR-91-1925, September 30, 1993], 1993 WL 381489 (Ala.Crim. App.1993).

  In this case, it is clear that this newly discovered evidence, even if true, would serve only to impeach the credibility of C.W. Moreover, it is extremely unlikely that this evidence would affect the outcome of the appellant's case. Testimony from other witnesses, including C.W.'s brother, a social worker, and a physician, corroborated the testimony of C.W. and, thus, strengthened her credibility. It is unlikely that this newly discovered evidence would discredit C.W. to such an extent that the outcome of the case would be altered. Additionally, the appellant was also tried for and convicted of sexual abuse involving another child victim, R.W. This newly discovered evidence undoubtedly would not warrant a new trial as to R.W. because Thomas's affidavit did not relate to R.W.

  We cannot hold that the trial judge abused his discretion in denying the appellant a new trial based on alleged newly discovered evidence because the appellant has failed to establish that the new evidence is anything more than impeachment evidence and that the outcome of his trial would be different if the jury had been exposed to this evidence.

  The judgment of the trial court is due to be affirmed.

  AFFIRMED.

  All the Judges concur.

• 3. WILLIAM WESLEY GILLESPIE

  • 9 Jun 2025
  • Registered sex offender record
  • Alabama Sex Offender Registry (iCrimeWatch)

  • original
  • archived
  • back to list

  Name: WILLIAM WESLEY GILLESPIE Registration #: 1796856
  Aliases: X BILL

  Physical Description
  • Age: 88 • Height: 5'11''
  • Sex: M • Weight: 217lbs
  • Race: White • Eyes: Brown
  • Hair: Gray
  • Scars/Tattoos:

  Address
  [redacted] RUTLEDGE, AL 36071, Crenshaw County
  View Map
  Offenses
  • Description: 13A-6-63 - First Degree Sodomy
  • Date Convicted: 03/25/1993
  • Conviction State: Alabama
  • Release Date: 10/21/2006
  • Details:
  • Description: 13A-6-66(a) - First Degree Sexual Abuse
  • Date Convicted: 03/25/1993
  • Conviction State: Alabama
  • Release Date: 10/21/2006
  • Details: