Anderson v. State
Decision Date | 12 February 1985 |
Docket Number | 1 Div. 818 |
Citation | 469 So.2d 1362 |
Parties | Cemal Dean ANDERSON v. STATE. |
Court | Alabama Court of Criminal Appeals |
Karen A. Zokoff, Gudac & Zokoff, Mobile, for appellant.
Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for appellee.
Cemal Dean Anderson was indicted for rape pursuant to § 13A-6-61, Code of Ala bama 1975. The appellant entered a plea of not guilty and not guilty by reason of insanity and the cause proceeded to trial. The jury found Anderson "guilty as charged" and following a sentencing hearing the trial court fixed punishment at 20 years in the penitentiary.
The appellant does not contest the weight and sufficiency of the evidence. Suffice it to say that, while sufficient evidence was presented to go to the jury on the issue of the appellant's sanity, the evidence presented was also sufficient to uphold the jury's verdict of guilt in this cause.
I
Anderson contends that the trial court committed reversible error in allowing the prosecution to comment on the consequences of a jury verdict of "not guilty by reason of insanity."
During cross-examination of a defense witness the trial court discussed the issue of arguing the result of such a finding with both the defense attorney and the prosecutor. Both were advised by the court not to make any arguments concerning possible confinement as a result of a finding of not guilty by reason of insanity. Defense counsel then requested the court to instruct the jury on § 15-16-41, Code of Alabama 1975 ( ).
The trial judge agreed to so instruct the jury, but only if defense counsel argued the statute during closing arguments. (R. 221-223).
A further review of the record indicates that the prosecutor also argued that the jury should put the appellant someplace that he can't get out. (R. 227). However, this comment was induced by the defense counsel while arguing for a judgment of acquittal to the trial judge. The comment apparently was not objected to during the prosecutor's argument to the jury as it does not appear anywhere else in the record.
It is a well-settled rule of law in Alabama that closing remarks by the prosecution which "alert a jury to the possibility that a defendant may soon be set free or escape from a state institution if he is found not guilty by reason of insanity" are to be condemned. Jetton v. State, 435 So.2d 167 (Ala.Crim.App.1983); Whisenhant v. State, 370 So.2d 1080 (Ala.Crim.App.), cert. denied, 370 So.2d 1106 (Ala.1979); Meredith v. State, 370 So.2d 1075 (Ala.Crim.App.), cert. denied, 370 So.2d 1079 (Ala.1979); Christian v. State, 351 So.2d 623 (Ala.1977); Allred v. State, 291 Ala. 34, 277 So.2d 339 (1973); Dunn v. State, 277 Ala. 39, 166 So.2d 878 (1964).
This court has also held on many occasions that "remarks or comments of the prosecuting attorney, including those which might otherwise be improper, are not grounds for reversal when they are invited, provoked, or occasioned by accused's counsel and are in reply to or retaliation for his acts and statements." Shewbart v. State, 33 Ala.App. 195, 32 So.2d 241, cert. denied, 249 Ala. 572, 32 So.2d 244 (1947); Camper v. State, 384 So.2d 637 (Ala.Crim.App.1980); Wilder v. State, 401 So.2d 151 (Ala.Crim.App.), cert denied, 401 So.2d 167 (Ala.1981), cert. denied, 454 U.S. 1057, 102 S.Ct. 606, 70 L.Ed.2d 595 (1981); Miller v. State, 431 So.2d 586 (Ala.Crim.App.1983).
Further, control of closing arguments rests in the broad discretion of the trial judge and where no abuse of discretion is found, there is no error. Elston v. State, 56 Ala.App. 299, 321 So.2d 264 (1975); Robinson v. State, 439 So.2d 1328 (Ala.Crim.App.1983); Thomas v. State, 440 So.2d 1216 (Ala.Crim.App.1983). The trial judge can best determine when discussion by counsel is legitimate and when it degenerates into abuse. Garrett v. State, 268 Ala. 299, 105 So.2d 541 (1958); Hurst v. State, 397 So.2d 203 (Ala.Cr...
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