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BUSH v. STATE12/1/1995
stion, even though it went unanswered, conveyed to the jury that Lieutenant Ward "knew and would have told them that Edward Pringle identified Mr. Bush as the triggerperson, had defense counsel not 'hidden' this information from them." He argues that the question itself corroborated the appellant's inculpatory statements and strengthened the state's case. We do not agree. There was no adverse ruling by the trial court. Thus, we must review this issue under the plain error rule. The appellant must not have felt unduly prejudiced at the time because he did not ask for a mistrial or for curative instructions. The appellant's conclusions as to the possible effect of the question are based on pure speculation; there is nothing to suggest that the question might have influenced the jury in arriving at its verdict. We find no plain error in this contention.
The appellant contends that the prosecutor erred in urging the jury in his closing argument to find the appellant guilty out of sympathy for Holmes's suffering. We have reviewed the prosecutor's argument in this regard, and find no reversible error. His comments in reference to Holmes were based on the evidence and were legitimate inferences to be drawn therefrom.
The appellant contends that the prosecutor erred in arguing to the jury in the guilt phase that he had personal knowledge that the appellant was guilty. The record shows the following:
"There's no way for the Code of Alabama to say deep down in this stomach right here if you believe the man did it find him guilty. That's what the law says — reasonable doubt. If you have a reason down in here (indicating) to turn him loose, walk him out the door, because I'll tell you David Belser or Paul Copeland, or anybody in our D.A.'s Office, don't want to put anybody that we feel is innocent in jail; and I know you don't."
A prosecutor may not express his personal opinion of an accused's guilt or state that he has personal knowledge of guilt. Arthur
v. State, 575 So.2d 1165 (Ala. Cr. App. 1990), cert. denied, 575 So.2d 1191 (1991); Davis v. State, 494 So.2d 851 (Ala. Cr. App. 1986). No objection was raised in the trial court to the comment set out above. After reviewing the comment, we conclude that it was not an expression of the prosecutor's personal opinion of the appellant's guilt or a statement that he had personal knowledge of such guilt. We find no plain error in this portion of the prosecutor's argument.
The appellant also contends that the following was error:
"And then once you collectively have decided that right down here (indicating) you know he did it, and I know he did it.
"MR. GLASSROTH: Object, Your Honor; improper comment by the prosecutor —
"THE COURT: About what he knows. "MR. GLASSROTH: That's right. I move for a mistrial.
"THE COURT: Overrule on the mistrial and sustain your objection."
The appellant did not request curative instructions nor were any given. We consider this comment, "I know he did it," in the context of the entire trial. Literally, it can be taken as the prosecutor's personal opinion of the guilt of the appellant, which was improper, or it also can be taken in the context of mere rhetoric. We believe that the comment was an improper expression of the prosecutor's personal opinion of the guilt of the appellant. However, we do not believe that it tended to convey to the jury that the prosecutor based his opinion on evidence outside that presented at trial. Having determined that the comment was improper, we must decide whether, in the light of the entire record, it might have influenced the jury in arriving at its verdict and, thus, might hav
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