Simmons v. State4/28/2000
dingly, we find no error, plain or otherwise, in this particular comment by the prosecutor.
2.
Simmons challenges the prosecutor's statement that the defense experts admitted their limited qualifications with regard to forensic science. During closing argument, the prosecutor argued that the state's expert witnesses appeared to be more prepared and had better qualifications than the defense expert witnesses. Then, the prosecutor stated:
"On the defense side you had folks -- I'm going -- not going to say they were bad people, but this was not their area and they both admitted that. Dr. Conboy and Dr. Riser both said, "We are out of our field; we are not forensic specialists; this not what we do.' So look at the backgrounds of the experts when you compare them." (R. 1155.)
The comment that an expert for the state is more deserving of belief than an expert for the defense is not an improper comment. Coral v. State, 628 So.2d 954, 986 (Ala.Cr.App. 1992), aff'd, 628 So.2d 1004 (Ala. 1993), cert. denied, 511 U.S. 1012, 114 S.Ct. 1387, 128 L.Ed.2d 61 (1994). Moreover, the prosecutor was clearly commenting on evidence presented at trial. Dr. Thomas J. Conboy and Dr. Emily Riser both testified that they were not forensic psychologists. (R. 862, 892, 932.) Thus, we conclude that the prosecutor's comments do not constitute plain error.
3.
Simmons argues that, during closing arguments, the prosecutor improperly commented on his role as a prosecutor, and his observations concerning society's responsibilities. (R. 1098, 1153, 1170, 1235, 1238.) Simmons claims that the following comment by the prosecutor is improper:
"You know, I think that I could do this for 50 more years and I will continue to be surprised and find myself at this place in a trial and realize how the person who sits over there in that chair has managed to turn all of this around, to make it about him, as if he were caught up, swept up in some chain of events over which he had no control." (R. 1098-99.)
"' prosecutor has the right to fairly "`reply in kind'" to statements made by defense counsel in the defense's closing argument.'" Brown v. State, 686 So.2d 385, 396 (Ala.Cr.App. 1995), aff'd, 686 So.2d 409 (Ala. 1996), cert. denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997), quoting Davis v. State, 494 So.2d 851 (Ala.Cr.App. 1986); Ex parte Musgrove, 638 So.2d 1360 (Ala. 1993), cert. denied, 513 U.S. 845, 115 S.Ct. 136, 130 L.Ed.2d 78 (Ala. 1994). " ide latitude is usually given regarding replies in kind." Blackmon v. State, 574 So.2d 1037 (Ala.Cr.App. 1990) (citations omitted.)
The defense argued throughout the trial that Simmons suffered from a severe mental illness resulting from a brain injury and that he was intoxicated during the incident. Thus, when viewing the prosecutor's comment in the context of the whole trial, we conclude that the statement was permissible.
4.
Simmons also claims that he was prejudiced by the prosecutor's comment that the state "didn't bring anyone in here who wasn't a true expert." (R. 1153.)
Before the prosecutor made this comment, defense counsel stated the following in his closing argument:
"Sexual abuse means something sexual; some or physical contact. Now, there was no evidence of that in this case; none. Just because Jack or Tom -- the name, Jack Neely and Tom Neer -- is coming down here -- hired to come down here from Virginia and testify of some book or some theory that the FBI has, and the FBI -- we see a lot of this in the paper, it's kind of scary, some of the things they do and some of their tactics, and I hate to see this jury i
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