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BUSH v. STATE12/1/1995
racy and truthfulness of the findings of the pathologist. For the appellant to now claim after three trials and two appeals over a 14-year period that the bodies were not those of Dominguez and Adams is incredulous. There is no plain error here.
XXIV.
The appellant contends that he was denied due process of law by allegedly improper prosecutorial argument and by a question asked a state witness on direct examination by the prosecutor. He avers several instances of allegedly improper comments in the closing argument to the jury.
In reviewing allegedly improper prosecutorial argument, it first must be determined if the argument was, in fact, improper. If the argument is determined to be improper, the test for review is not whether the comments influenced the jury, but whether they might have influenced the jury in arriving at its verdict. Ex parte Ward, 497 So.2d 575 (Ala. 1986); Beecher v. State, 294 Ala. 674, 320 So.2d 727 (1975); Rutledge v. State, 523 So.2d 1087 (Ala. Cr. App. 1987), rev'd and rem'd on other grounds, 523 So.2d 1118 (Ala. 1988). When a prosecutor engages in conduct that deprives the defendant of a fair trial, due process is violated. Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). Improper prosecutorial argument is reviewed in the context of the entire trial. United States v. Boyce, 797 F.2d 691 (8th Cir. 1986). Prosecutorial misconduct is subject to a harmless error analysis. United States v. Martin, 815 F.2d 818 (1st Cir.), cert. denied, 484 U.S. 825, 108 S.Ct. 89, 98 L.Ed.2d 51 (1987); United States v. Boyce; Oliver v. Wainwright, 795 F.2d 1524 (11th Cir. 1986), cert. denied, Oliver v. Dugger, 480 U.S. 921, 107 S.Ct. 1380, 94 L.Ed.2d 694 (1987).
The appellant contends that during the prosecutor's closing argument in the guilt phase of the trial, the prosecutor made the following allegedly improper comment on the appellant's failure to testify, thereby violating his constitutional rights: "This man told you in his own voice on that tape, and the State's evidence is uncontradicted."
In order to better understand this issue, we quote at length from the record to show what actually transpired when the comment was made and the objections were raised. The record shows the following:
"[MR. GRADDICK, prosecutor:] The defendant came down and gave a confession.
The Police Department recorded that confession so that you could hear ten years ago that man right there (indicating) tell you what happened. The defense lawyer wants to suggest to you that the police were ugly to him when they did that. Maybe he raised his voice. I want to suggest to you that they didn't record four, five or six hours; they only recorded when he gave his confession. They wanted to suggest to you that they tried to educate this man so he then could regurgitate it back in some way of setting himself up to tell all of the facts. You heard it. This man told you in his own voice on that tape, and the State's evidence is uncontradicted. "MR. GLASSROTH [defense counsel]: Object, Your Honor. I move for a mistrial. The prosecutor knows full well — May I have this taken up outside the presence of the jury?
". . . .
"MR. GLASSROTH: Your Honor, at this time the defense moves for the court to declare a mistrial. The argument of the prosecutor was such that it was commenting upon the accused's failure to testify. When he says the evidence was uncontroverted, talking about what the evidence was, it was an unfair comment and unconstitutional comment on the right of the accused not to testify in the case. The prosecutor knows that and he did it.
"THE COURT: Have you got any law that says stat
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