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Maples v. State3/31/1999
So.2d 474, 489 (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)].
"'Section 13A-5-50, Code of Alabama 1975, states, in part, as follows:
"'"The fact that a particular capital offense as defined in section 13A-5-40(a) necessarily includes one or more aggravating circumstances as specified in section 13A-5-49 shall not be construed to preclude the finding and consideration of that relevant circumstance or circumstances in determining sentence."
"'Clearly, §13A-5-50 provides that a jury may consider an element of capital murder as an aggravating circumstance if that element is listed in §13A-5-49. Further, this court has repeatedly held that the use of an element of capital murder in such a way does not, as the appellant argues, punish a defendant twice for the same offense. Kuenzel, supra; see also Ex parte Kennedy, 472 So.2d 1106 (Ala.), cert. denied, 474 U.S. 975, 106 S.Ct. 340, 88 L.Ed.2d 325 (1985).
"'"A capital punishment scheme, under which the same felony may form the basis of an essential element of the crime and an aggravating circumstance for consideration by the jury in recommending a sentence, does not constitute a denial of the guarantee against double jeopardy."
"'Kuenzel, 577 So.2d at 488, quoting Fortenberry v. State, 545 So.2d 129, 142 (Ala. Cr. App. 1988), aff'd, 545 So.2d 145 (Ala. 1989), cert. denied, 495 U.S. 911, 110 S.Ct. 1937, 109 L.Ed.2d 300 (1990).'
"Burton, 651 So.2d at 657-58." Hutcherson, 677 So.2d at 1201.
Thus, the appellant's argument is without merit.
XXVI.
The appellant's twenty-sixth argument is that the trial court and prosecutor improperly read the indictment to the jury and thereby relieved the State of its burden of proof. Specifically, he contends that reading the indictment to the jury and informing it that the indictment had been signed by the district attorney informed the jury that another group of individuals had already concluded that he had committed the offense, implied that the prosecutor believed he was guilty, and bolstered the jury's perception of the prosecutor. Because the appellant did not present these claims to the trial court, we review them for plain error. Rule 45A, Ala. R. App. P.
During its initial comments to the jury, the trial court explained that the indictment itself was not evidence; rather, it stated that the evidence came from the witness stand and from the items admitted into evidence during the trial. (R. 1445-46.) It also explained that the State carried the burden of proving the truthfulness of the matters alleged in the indictment before the jury could find the appellant guilty. (R. 1445.)
In his guilt-phase opening statement, the prosecutor explained that the indictment set forth the elements of the offense that the State would be required to prove in each case. After reading the indictment, he encouraged the jurors to use the indictment as a "road map" to determine whether the State had proved each element of each offense. (R. 1460.) In that opening statement, there was no mention that the district attorney had signed the indictment. Furthermore, the prosecutor did not express any personal opinion regarding the appellant's guilt or innocence. (R. 1461-62.)
During his guilt-phase closing argument, the prosecutor again stated that the indictment was not evidence in the case. (R. 2891.) Instead, he likened the indictment to a question that asked whether the State had proved what it must to convict the appellant. (R. 2891.) When he read the indictment, he did not mention that the district attorney had signed the indic
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