Allen v. State

Decision Date27 May 1994
Docket NumberCR-92-1463
Citation659 So.2d 135
PartiesPhillip ALLEN v. STATE.
CourtAlabama Court of Criminal Appeals

W. Lloyd Copeland, Mobile, for appellant.

James H. Evans, Atty. Gen., and Shirley Brown, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

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:

"This court has previously addressed this issue and, following precedent, held that it is highly improper for attorneys, particularly prosecutors, to state their personal opinions during closing arguments. Moseley v. State, 448 So.2d 450 (Ala.Cr.App.1984). Attorneys must be careful to refrain from injecting their own personal experience or knowledge in support of their argument, as distinguished from what they deem to be reasonable inferences to be drawn from the evidence. Moseley, supra; Brown v. State, 393 So.2d 513 (Ala.Cr.App.1981).


"... [W]hen the prosecutor makes a statement which could be construed by the jury as implying that he has additional reasons for knowing that what the witness has said is true, which reasons are not known to the jury, such comment is not longer mere indiscretion but constitutes reversible error....


"Gradsky v. United States, 373 F.2d 706 (5th Cir.1967), held that it is 'dangerous business' for the government to vouch for the honesty or veracity of its witnesses....

"The Alabama Supreme Court has recently firmly condemned statements by the prosecution which suggest and might lead the jury to believe, that there was other evidence, not presented to them, which would prove the defendant's guilt. Ex parte Washington, 507 So.2d 1360 (Ala.1986)."

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:

"Even though it's an emotional case, I ask each and every one of you to listen to the facts, listen to the evidence that comes in to this court and find the facts based on that, don't find the facts of this case based on what I say or what Mr. Huddleston [defense counsel] says, because those are not the facts.

"The facts and evidence are what come from this witness stand when these people swear to tell you the truth and you judge those witnesses to determine whether they have been truthful with you. I ask each and every one of you to pay close attention to those witnesses as they testify and the other witnesses that we put up that follow concerning their investigation in this case.

"This case, as I've already said, is emotional, but I ask you to be fair, listen to the evidence and I'm confident at the close of this evidence you will find this man guilty of committing sodomy, having oral sex with a child under twelve.

"And I'm confident that you'll find this man guilty of sexually abusing a child. And I'm confident that you'll find that these charges didn't arise from the fact that this man gave one of these children a bath or that this man maybe put his arm around a child. I'm confident you'll find these charges arose because they happened.

"And at the close of this case, as you've already heard the judge say, there's going to be a time when I get to give closing argument, Mr. Huddleston gets to talk and then I get to get up again because I have the burden of proof. And it's a burden of proof that I welcome in this case. I have to prove to you through the evidence in this trial that these charges took place beyond a reasonable doubt. And it's a burden I ought to have and it's a burden that I gladly accept.

"At the close of this case I'm going to come to each and every one of you and I'm going to ask each and every one of you pursuant to the oath you took as jurors in this county to find this man guilty because he's guilty. Thank you." 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:

"And I took that to mean during the closing argument that is what he anticipates he's going to--he is sort of telling them as part of the overview of what's going to happen that this is what's going to happen during his closing argument. 'That pursuant to the oath that you took in this county, I'm going to ask you to find this man guilty because he is guilty.'

"I do not think that is an expression of a personal opinion on the part of the prosecutor as to the guilt of the accused. So I'm going to deny your motion, Mr. Huddleston, for a mistrial at this point."


"That was my impression of what [the prosecutor] intended at that time was not to bully the jury in any way as has [been] done in some of these cases but simply to say that I want you to find him [guilty] because he's guilty; not because of any other reason but because he is guilty. Not because of anything else except that.


"... I think given the context in which it was [said] that it was not an expression and would not have prejudice[d] the jury in any way or invade[d] the province of the jury. I don't think that he was expressing his personal belief in the defendant's guilt. I don't think that that was conveyed to the jury and basing that on the context, and I have reviewed all those cases, so I'm going to deny your motion for a mistrial." 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).

"Each case must be decided in view of the unique circumstances involved and the atmosphere created in the trial. Obviously, the trial court is in a better position than this Court to observe these circumstances. See General Finance Corp. v. Smith, 505 So.2d 1045 (Ala.1987). For that reason, the trial court's ruling on these matters carries a presumption of correctness. Beautilite Co. v. Anthony, 554 So.2d 946 (Ala.1989)."

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...

To continue reading

Request your trial
73 cases
  • Woolf v. State
    • United States
    • Alabama Court of Criminal Appeals
    • May 2, 2014
    ...lies "peculiarly within [a] trial judge's province." ' Hernandez, 500 U.S. at 365, 111 S.Ct. at 1869." " ' Allen v. State, 659 So.2d 135, 147 (Ala.Crim.App.1994) (emphasis added). See also Rogers, 819 So.2d at 649. " 'The trial court is in a better position than the appellate court to disti......
  • Ex parte Windsor
    • United States
    • Alabama Supreme Court
    • October 18, 1996
    ...the jury venire. See Hemphill v. State, 669 So.2d 1020 (Ala.Cr.App.1995); Roy v. State, 680 So.2d 935 (Ala.Cr.App.1995); Allen v. State, 659 So.2d 135 (Ala.Cr.App. 1994); Morris v. City of Dothan, 659 So.2d 979 (Ala.Cr.App.1994); Talley v. State, 669 So.2d 1006 The trial court anticipated t......
  • Maples v. State
    • United States
    • Alabama Court of Criminal Appeals
    • March 26, 1999
    ...constitutes mere expression of opinion concerning inferences, deductions and conclusions drawn from the evidence.'" Allen v. State, 659 So.2d 135, 139 (Ala.Cr. App.1994) (quoting Sams v. State, 506 So.2d 1027, 1029 (Ala.1986)). "`A prosecutor as well as defense counsel has a right to presen......
  • Wimbley v. State
    • United States
    • Alabama Court of Criminal Appeals
    • December 19, 2014
    ...lies ‘peculiarly within the trial judges's province.’ ” Hernandez, 500 U.S. at 365, 111 S.Ct. at 1869.'“ ‘ “Allen v. State, 659 So.2d 135, 147 (Ala.Crim.App.1994).”“ ‘Martin v. State, 62 So.3d 1050, 1058–59 (Ala.Crim.App.2010). “ ‘ “ ‘When reviewing a trial court's ruling on a Batson motion......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT