Nathan v. State, 3 Div. 680
| Decision Date | 02 August 1983 |
| Docket Number | 3 Div. 680 |
| Citation | 436 So.2d 19 |
| Parties | Annie Lois NATHAN v. STATE of Alabama. |
| Court | Alabama Court of Criminal Appeals |
D. Wayne Perdue, Montgomery, for appellant.
Charles A. Graddick, Atty. Gen., and Gregory J. Robinson, Asst. Atty. Gen., for appellee.
The appellant was convicted of child abuse and sentenced to five years' imprisonment. The court granted the appellant's application for probation, conditioned on a period of confinement at Bryce Hospital.
The only question presented for review is whether, during the cross examination of the appellant, a statement by the prosecuting attorney was of such a prejudicial nature so as to be incapable of eradication by rulings and instructions from the trial court.
The pertinent part of the questions by the prosecution and the answers by the appellant is as follows:
On motion by the appellant, the trial court promptly admonished the jury to disregard the statement by the prosecution, but overruled the motion for a mistrial. The appellant contends that the interjection by the state of the death of another child, in a prosecution for child abuse, was prejudicial and the court's failure to grant a mistrial was an abuse of discretion and reversible error.
The statement, although objectionable and otherwise improper, came after the appellant had herself interjected the issue concerning the death of her other child. Furthermore, on re-direct examination, the appellant testified in detail concerning the circumstances of the death of the other child, and the court properly sustained objections to further cross examination by the state on this point.
The general rule concerning prejudicial statements made by counsel during the course of trial and closing arguments is set forth in Allred v. State, 291 Ala. 34, 277 So.2d 339 (1973).
"It is a general rule that where prejudicial statements are made in the heat of argument, even though improper, in accommodation of our adversary system, such statements are considered capable of being eradicated by the trial judge in sustaining objections thereto or by appropriate instructions to the jury or both." See also, Miller v. State, 431 So.2d 586 (Ala.Cr.App.1983), and cases cited therein.
The record reflects sufficient legal evidence from which the jury could find that the appellant was guilty of child abuse, as charged in the indictment. Although the testimony was conflicting, Brenda Smith, a witness called by the state, testified in substance that the appellant, during an argument with the father of the child, picked up the two-month-old baby and threw it...
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Arthur v. State
...the jurors to disregard the question and in polling the jurors to ascertain that they could disregard the question); Nathan v. State, 436 So.2d 19, 20 (Ala.Cr.App.1983) (in child abuse case, any prejudice arising from comment by prosecutor that another of defendant's children had died was e......
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Register v. State
...the jurors to disregard the question and in polling the jurors to ascertain that they could disregard the question); Nathan v. State, 436 So.2d 19, 20 (Ala.Cr.App.1983) (in child abuse case, any prejudice arising from comment by prosecutor that another of defendant's children had died was e......
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Garnett v. State
...have held in a number of cases that questions or comments similar to the question in this case are eradicable. See e.g., Nathan v. State, 436 So.2d 19 (Ala.Cr.App.1983) (in child abuse case, any prejudice arising from comment by prosecutor that another of defendant's children had died was e......
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Eaton v. State
...have held in a number of cases that questions or comments similar to the question in this case are eradicable. See e.g., Nathan v. State, 436 So.2d 19 (Ala.Cr.App.1983) (in child abuse case, any prejudice arising from comment by prosecutor that another defendant's children had died was erad......