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Smith v. State12/22/2000
the house and shot a man and a girl in a back room, and tried to shoot another man, but his gun jammed and the man got away; that he laughed and bragged that he would "get off on some mental plea," and that they would not believe that he would do such a thing in his right mind.
After reviewing the record in reference to the questions asked by the prosecutor and the answers given by Jay, we find that they in no way prejudiced the appellant or rendered the trial fundamentally unfair. This line of questioning was obviously an effort by the prosecutor to explain the circumstances surrounding the misplaced letter and the necessity of taking a statement from Bridges before trial. The prosecution was justified in responding in this manner because the appellant had suggested that the prosecution had deliberately withheld the letter in violation of the discovery orders. The appellant was not surprised by Bridges's testimony because he had a copy of Bridges's statement prior to trial. There was no evidence of bad faith on the part of the prosecution, and it obviously made every effort to comply with open-file discovery. There is no merit in this contention.
Third, the appellant contends that the prosecutor argued to the jury in closing argument a fact not in evidence by telling the jury that Derrick Gross, who did not testify, summoned the police to the scene on the night the crime was committed. He argues that the purpose of the comment was to inform the jurors that it was Gross who called for police assistance, in case the jury thought that the appellant had done so. There is no merit in this contention. Officer Scott Heath of the Dothan Police Department testified that Derrick Gross made the initial call to the police. (R. 765.) Thus, the prosecutor's argument in this regard was a fair comment on and within the scope of the evidence.
Fourth, the appellant contends that the prosecutor improperly commented in open court and before the jury that the appellant had "muttered" something or made a remark directed toward him just as he concluded his cross-examination of the appellant. It does appear that the appellant made a comment, but the court reporter apparently did not hear it or understand it because it is not in the record. We do not know what he said, and he did not respond when the prosecutor asked him to repeat the comment. The prosecutor briefly referred to this in his argument to the jury in the sentencing phase. It appears from the record that this was a comment by the prosecutor on the appellant's conduct in open court. No objections were made at the time of these occurrences; thus, we review this issue under the plain-error rule. We find no error in the prosecutor's actions in bringing the appellant's conduct to the attention of the court and making the incident a part of the record. Nor do we find error in his argument in this regard to the jury. The appellant's manner of testifying and his appearance on the stand were proper subjects of comment in argument. In this case, the comments were fair and within the fair scope of the evidence. The prosecutor's conduct in this instance clearly did not rise to the level of plain error.
Fifth, the appellant contends that the prosecutor improperly injected into evidence the fact that one of the members of the victim's family was not present in court because of illness; that one was not present because she was elderly; that one of the State's witnesses, Lavoris Smith, had had a death in her family; and that he personally knew certain members of the venire. No objections were made to any of these comments. We conclude, after reviewing the record, that these comments did not prejudice the appellant or render his trial fundamentally u
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