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Baird v. State6/28/2002
"the court's charge must be taken as a whole, and the portions challenged are not to be isolated therefrom or taken out of context, but rather considered together."' Self v. State, 620 So. 2d 110, 113 (Ala.Cr.App. 1992)(quoting Porter v. State, 520 So. 2d 235, 237 (Ala.Cr.App. 1987)); see also Beard v. State, 612 So. 2d 1335 (Ala.Cr.App. 1992); Alexander v. State, 601 So. 2d 1130 (Ala.Cr.App. 1992)." 758 So. 2d at 65.
At the conclusion of closing arguments, the trial judge made the remark Baird complains of on appeal.
"Ladies and gentlemen, it has been a long day. The next phase that I will give you is the Court's oral charge, and then I will let you go back to the jury room, select your foreperson, and then begin your deliberations. As I stated to you previously, this next phase will be divided into two parts. When you go back the first time, you are not to consider the punishment phase of this trial. The first time you go back there, after I give you the Court's oral charge, you decide what, if any, charges the defendant is guilty of. Once you have done that, you will come and announce that charge in the courtroom, then we can go to the second phase after that, depending upon what your verdict is in this case. Now, the Court's oral charges that I will give you are going to take longer than an hour. So I will not do it this afternoon. .... We'll start at 8:00. I will give you the charge, let you go back to the jury room and work only on the guilt phase; decide whether or not this defendant is guilty beyond a reasonable doubt of the charges that will be explained to you tomorrow." (R. 796-97.)
Baird moved for a mistrial on the grounds that the instruction was prejudicial and that it was couched in terms of guilt, with no mention of innocence. Trial counsel for Baird also argued that the remark implied that the trial judge believed Baird to be guilty, and that the jury should return a guilty verdict. The trial judge denied Baird's motion for a mistrial.
The trial judge's comment, viewed in context, was not improper. The trial judge did not instruct the jury to find Baird guilty of any offense, and did not imply that the jury should return a guilty verdict. Additionally, the trial judge, in her jury charge the following day, thoroughly instructed the jury that she had no opinion about Baird's guilt or innocence, and that the jury should not infer anything from comments that she had made or from any ruling that she made during the course of the trial. We find no reversible error in the trial judge's remarks or in the jury instruction. See Allen v. State, 683 So. 2d 38, 43 (Ala. Crim. App. 1996)(trial judge's use of certain language, including the word "victim", describing burden of proof as "simply" reasonable doubt, and use of phrase "prima facie case" without further explanation, not prejudicial when jury charge viewed as a whole). Therefore, Baird is not entitled to relief on this claim.
X.
Baird also argues that the indictment was multiplicitous and resulted in double jeopardy.
The indictment against Baird contained two counts and read as follows:
"The grand jury of said county charge that, before the finding of this indictment,
"MICHAEL RAY BAIRD, whose name is to the grand jury otherwise unknown, did intentionally cause the death of JOYCE C. LAMASTUS by shooting her with a pistol and did intentionally cause the death of RICKY GLENN LAMASTUS, by shooting him with a pistol, in violation of Section 13A-5-40(a)(10) of the Alabama Criminal Code, against the peace and dignity of the State of Alabama.
"2nd: The grand jury of said county further charge that before the finding of this indi
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