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BUSH v. STATE12/1/1995
e deprived the appellant of a fair trial.
We first note that the trial court did sustain the objection to the comment. It of course would have been better if the trial court had given a cautionary instruction to the jury immediately after the comment was made. However, we still find that the improper comment had no effect on the jury nor did it result in prejudice when considered along with the appellant's other assertions of prosecutorial misconduct. We further find that the overwhelming evidence against the appellant mitigates against a conclusion that the comment might have influenced the jury in arriving at its verdict or that it contributed to the verdict. We find that due to the lack of any prejudice caused by the comment, the overwhelming evidence of guilt of the appellant, and the manner and context in which the comment was made, the comment was harmless beyond a reasonable doubt and did not injuriously affect a substantial right of the appellant.
"Even though a trial court's ruling on a motion for a mistrial is reviewable on appeal, Stennett v. State, 340 So.2d 65 (Ala. 1976), rulings on mistrial motions are within the discretion of the trial court; they will not be reversed in the absence of a clear abuse of discretion. Ex parte Jefferson, 473 So.2d 1110, 1114 (Ala. 1985), cert. denied, 479 U.S. 922, 107 S.Ct. 328, 93 L.Ed.2d 300 (1986). 'The entry of a mistrial is not lightly to be undertaken. . . .The entry should be only a last resort, as in cases of otherwise ineradicable prejudice.' Leverett v. State, 462 So.2d 972, 978 (Ala. Cr. App. 1984)."
Cole v. State, 548 So.2d 629, 630 (Ala. Cr. App. 1989). Under the circumstances here we do not believe that the granting of a mistrial would have been proper, and we find that the trial court did not abuse its discretion in overruling the motion.
The appellant contends that error occurred when the prosecutor asked the jury in closing argument in the guilt phase to imagine themselves as the victims. His comments in this regard are as follows:
"What kind of chance did Larry Dominguez have? What kind of chance does Tony Holmes have now in life? I wrote down, he says it wasn't pleasant, 'This wasn't pleasant.' I ask you what is one of the worst nightmares you can imagine? If you're standing in a Majik Mart, or Zippy Mart, or one of these convenience stores that we hear about all the time, you're standing there buying half a gallon of milk and some dope-crazed criminal comes in with a gun and he doesn't care what your
name is, he doesn't care what you do for a living, he doesn't care at all. He takes you back to some dirty restroom in the back of the building and blows you in the face with a gun. Is that pleasant? No, it's not pleasant. It's not pleasant for poor Tony Holmes to leave this courtroom here today."
Again, no objection was raised to these comments in the trial court; hence, we must review them under the plain error rule. The failure to object weighs against any claim of prejudice. Kuenzel v. State, 577 So.2d 474 (Ala. Cr. App. 1990), aff'd, 577 So.2d 531 (Ala.), cert. denied, 502 U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991). After reviewing the comments, we cannot conclude that they did or probably did adversely affect a substantial right of the appellant or that the comments seriously affected the fairness or integrity of the proceedings. We find that these comments by the prosecutor did not constitute plain error.
XXV.
In accordance with Ala.R.App.P. 45A, we have examined the record in this case for any plain error, whether or not brought to our attention or to the attention of the trial court. We have found no "plain error or defect in
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