 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Tomlin v. State5/31/2002
e was no evidence to support the statement. The trial court then stated, "The jury heard the evidence and the jury understands that this case will be decided on the evidence from the witness stand and the law that I will instruct you on." It appears that the trial court sustained Tomlin's objection to this argument. Moreover, this is a legitimate inference that could be drawn from the testimony. There was testimony that David Tomlin and Brune were friends and that Brune was even one of the pallbearers at David Tomlin's funeral. Certainly, this evidence would tend to imply that Brune was known to the Tomlin family.
Tomlin also states that the prosecutor erred in arguing that David Tomlin's death was an accident when there was "no admissible evidence" to support this statement. Tomlin himself testified that David Tomlin's death was an accident. Also, Officer Henton testified that the police had ruled David Tomlin's death an accident. This was a proper argument based on the evidence presented at trial.
Tomlin last states that the prosecutor improperly argued flight evidence. We note that there was no objection to any flight argument made until after all of the arguments had been made. Moreover, Tomlin failed to identify what he considered to be an argument on flight. We have reviewed the opening statement, and we find no reference to any flight evidence. The only reference made was that Tomlin flew from Houston to New Orleans. There was no plain error here.
XX.
Tomlin challenges several of the trial court's jury instructions and the trial court's failure to instruct the jury on certain lesser-included offenses.
"When reviewing a trial court's jury instructions, we must view them as a whole, not in bits and pieces, and as a reasonable juror would have interpreted them. Ingram v. State, 779 So. 2d 1225 (Ala.Cr.App. 1999). 'The absence of an objection in a case involving the death penalty does not preclude review of the issue; however, the defendant's failure to object does weigh against his claim of prejudice.' Ex parte Boyd, 715 So. 2d 852 (Ala.), cert. denied, 525 U.S. 968, 119 S.Ct. 416, 142 L.Ed.2d 338 (1998)." Johnson v. State, [Ms. CR-98-1688, April 28, 2000] ___ So. 2d ___, ___ (Ala.Crim.App. 2000).
A.
Tomlin argues that the trial court erroneously instructed the jury on premeditation, deliberation, and malice. He asserts that there was no need to instruct on these elements and doing so only confused the jury and lowered the State's burden of proof.
Tomlin was indicted and convicted of violating § 13-11-2(a)(10), Ala.Code 1975 (superseded). That section read:
"Murder in the first degree wherein two or more human beings are intentionally killed by the defendant by one or a series of acts."
Murder in the first degree was defined in § 13-1-70 (superseded). This section stated:
"Every homicide perpetrated by poison, lying in wait or any other kind of wilful, deliberate, malicious and premeditated killing; or committed in the perpetration of, or the attempt to perpetrate, any arson, rape, robbery or burglary, or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed; or perpetrated by any act greatly dangerous to the lives of others and evidencing a depraved mind regardless of human life, although without any preconceived purpose to deprive any particular person of life, is murder in the first degree; and every other homicide committed under such circumstances as would have constituted murder at common law is murder in the second degree." (Emphasis added.)
The indictment returned
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 Alabama DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|