Allen v. State
Citation | 659 So.2d 135 |
Decision Date | 27 May 1994 |
Docket Number | CR-92-1463 |
Parties | Phillip ALLEN v. STATE. |
Court | Alabama Court of Criminal Appeals |
W. Lloyd Copeland, Mobile, for appellant.
James H. Evans, Atty. Gen., and Shirley Brown, Asst. Atty. Gen., for appellee.
Phillip Allen, the appellant, was convicted of sexual abuse in the first degree and was sentenced to 20 years' imprisonment. This is a direct appeal from that conviction.
The appellant complains of a number of remarks by the prosecutor. At the outset, we note that "trial courts should not hesitate, in proper instances," to impose disciplinary sanctions upon "attorneys who fail to conduct themselves according to high standards of courteous and correct behavior in the trial of cases." Ex parte Farley, 406 So.2d 1050, 1051 (Ala.1981).
The legal principles applicable to the issues raised by the appellant were thoroughly discussed in King v. State, 518 So.2d 191, 193-95 (Ala.Cr.App.1987). In summary, we quote only a portion of that opinion:
King v. State, 518 So.2d 191, 193-94 (Ala.Cr.App.1987) (emphasis in original).
We reject the contention that the prosecutor impermissibly stated his personal opinion of the appellant's guilt. In concluding his opening remarks to the jury at the beginning of trial, the prosecutor stated:
R. 91-93 (emphasis added).
Outside the presence of the jury, defense counsel requested a mistrial on the "basis of prosecutorial misconduct in the prosecutor commenting upon the defendant's guilt, saying the defendant is guilty." R. 95. The trial court denied the request for a mistrial, but stated that defense counsel would be given an opportunity "to present case authority on that point." R. 97. Later during the trial, after defense counsel had provided the trial court with legal authority to support his earlier request for a mistrial, the trial judge stated:
"... R. 250-54.
We find no error in the action of the trial court.
"While it is never proper for the prosecutor to express his personal opinion as to the guilt of the accused during closing argument, reversible error does not occur when the argument complained of constitutes mere expression of opinion concerning inferences, deductions and conclusions drawn from the evidence."
Sams v. State, 506 So.2d 1027, 1029 (Ala.Cr.App.1986).
" '[T]he rule on which the weight of authority is in agreement is that it is improper for the prosecuting attorney so to express his personal opinion or belief in guilt of accused as to permit an inference by the jury that such opinion or belief is based on reasons or information outside the evidence, but that it is not improper for him to argue or to express his opinion that accused is guilty, where he states, or it is apparent, that such opinion is based solely on the evidence.' "
Bradley v. State, 577 So.2d 541, 555-56 (Ala.Cr.App.1990) (quoting 23A C.J.S. Criminal Law § 1104, p. 194-95 (1961)).
Based on a review of the prosecutor's entire opening statement, we conclude that the statement of the prosecutor did not constitute an expression of opinion as to the appellant's guilt. "When an accused contends that a prosecutor has made improper comments ..., the statements at issue must be viewed in the context of the evidence presented in the case and the entire ... argument made to the jury." Ex parte Musgrove, 638 So.2d 1360 (Ala.1993).
Walker v. Asbestos Abatement Services, Inc., 639 So.2d 513, 515 (Ala.1994).
The cases relied upon by the appellant are distinguishable. In Quinlivan v. State, 579 So.2d 1386, 1387 (Ala.Cr.App.), cert. quashed, 596 So.2d 658 (Ala.1991), the prosecutor, in rebuttal closing argument stated, "I'm not obliged to try any case that I don't want to try" and "I'm commanded by the law ... to prosecute the guilty and protect the innocent." (Emphasis omitted.) In Crosslin v. State, 446 So.2d 675, 680 (Ala.Cr.App.1983), on cross-examination of the defendant, the prosecutor, in response to the objection of defense counsel, stated that there was nothing improper about his question in which he stated that the defendant "did the killing" because "he did kill them."
It is clear from a review of the record that the prosecutor's comment in this case was an expression of opinion based upon facts that were in evidence and, as such, was a reasonable inference from the evidence the prosecutor expected to present. There was no error here.
The appellant also complains of the prosecutor's comments involving the appellant's daughter made during the direct examination of Baldwin County Sheriff's Deputy John Stewart. The appellant was prosecuted for crimes against two children, S.P. and A.C., neither of whom was a child of the appellant.
On direct examination of Deputy Stewart, the prosecutor questioned the witness about statements the appellant had made to Stewart about S.P., who was the niece of the appellant's wife, and A.C., whose stepfather was the appellant's brother. Then...
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