Smith v. State5/26/2000
and the facts of the case. Raper v. State, 584 So. 2d 544 (Ala.Cr.App. 1991). We do not review a jury instruction in isolation, but must consider the instruction as a whole, Stewart v. State, 601 So. 2d 491 (Ala.Cr.App. 1992), aff'd in relevant part, 659 So. 2d 122 (Ala. 1993), and we must evaluate instructions like a reasonable juror may have interpreted them. Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985); Stewart v. State.'" Griffin v. State, [Ms. CR-97-1026, December 10, 1999] ___ So. 2d ___, ___ (Ala. Cr. App. 1999), quoting Ingram v. State, [Ms. CR-94-1733, August 27, 1999] ___ So.2d ___ (Ala. Cr. App. 1999).
A.
Smith first argues that the trial court erred in giving an instruction on flight because, he argues, there was no evidence of flight. He also argues that even if an instruction was warranted the one given was erroneous.
Smith argues in his brief to this Court that there was no evidence of flight because, "Indeed, the State offered no evidence that Mr. Smith ever left the small corner of Mobile County where he lived and all the events in this case occurred." (Smith's brief to this Court at page 20.)
McElroy's Alabama Evidence states the following concerning evidence of flight:
"The prosecution is generally given wide latitude in proving things that occurred during the accused's flight. Indeed, the term `flight' includes any conduct of the accused that is relevant to show a consciousness of guilt. Such conduct may include the use of aliases, concealment of identity, attempting to avoid arrest and the use of false exculpatory statements." McElroy's § 190.01(1) (5th ed. 1996) (emphasis added).
In Ex parte Jones, 541 So.2d 1052, 1053-57 (Ala. 1989), Justice Maddox, writing for the Court, detailed what constitutes evidence of flight in Alabama. Justice Maddox stated:
"Evidence of flight has long been allowed in the courts of Alabama, and the State is generally given wide latitude in proving things that occurred during the accused's flight. C. Gamble, McElroy's Alabama Evidence, § 190.01(1) at 381 (3d ed. 1977). However, as Dean Gamble has noted:
"`Logic would dictate that at some point the flight of the accused will be so far removed from the time of the charged crime that such flight will be too remote to be relevant as having probative value upon the accused's consciousness of guilt. However, such a case has not yet made its way before the appellate courts of Alabama." "Id., § 190.01(4) at 383.
"One of this Court's first detailed examinations of evidence of flight came in Levison v. State, 54 Ala. 520 (1875); there, this Court stated:
"`Flight, the demeanor when arrested, stolidity or trepidation, under accusation, prevarication in answer to inquiries relating to the offense, or to his conduct, the fabrication or suppression of evidence, or previous threats, or antecedent grudges, are all evidentiary facts against the person to whom they are imputable, dependent for their value on a connection with other criminating circumstances. They are evidence against the party to whom they are imputable, and not constituting the guilty act, only pointing to him as the guilty agent, are not evidence for or against another with whom he has no connection. The most inconclusive of the criminating circumstances, that which, not combined with other factors, is of the least probative force is flight. [citation omitted.] It may be attributable to fear, or to impatience and restlessness, under the duress of imprisonment, or to a consciousness of guilt. Much depends on the character of the mind, temperament and education. One will, with fortitude, endure imprisonment w
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