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Smith v. State12/22/2000
nfair. It would be unreasonable to conclude that these comments affected the outcome of the trial. We find no error here, much less plain error.
Sixth, the appellant contends that in closing argument before the jury the prosecutor improperly stated that people were afraid of the appellant, and misrepresented those who were allegedly involved in the commission of the crime. Again, no objection having been made to these arguments, we review these contentions under the plain-error rule. We conclude, after reviewing the record, that the comments were reasonable inferences to be drawn from the evidence, and that they did not constitute error, and certainly not plain error.
Seventh, the appellant contends that in his arguments to the jury the prosecutor improperly minimized the appellant's attempted suicide by injecting facts not in evidence. Again, no objection was made at trial to this argument; thus, we review the contention under the plain-error rule. Contrary to the appellant's assertion, there was evidence introduced through the medical experts relating to the appellant's attempted suicides, including testimony by Dr. D'Enrico that the appellant told him that he had eaten rat poison and had his stomach pumped on one occasion and that he had attempted to hang himself on another. These comments were obviously intended to disparage the appellant's defense that because of his mental condition he could not entertain the requisite intent to commit the crime and were a fair comment on the evidence. We find no plain error here.
B.
The appellant further contends that the prosecutor "engaged in name-calling" throughout the proceedings. (Appellant's brief, p. 56.) He cites, as examples, the prosecutor's references to him as "this animal over here" (R. 673); "a capital murderer and ... a liar" (R. 1684); "wicked" (R. 2095); and "evil" (R. 2096). Defense counsel's objection made in response to the reference to the appellant as an animal was overruled. (R. 673, 692-93.)
Pursuant to the following discussion, we find that the specific instances of the prosecutor's "name-calling" cited by the appellant do not present reversible error:
"The digest abounds with instances where the prosecutor has commented on the defendant's character or appearance. ... Wright v. State, 279 Ala. 543, 188 So. 2d 272 (1966) (`Judas'); ... Weaver v. State, 142 Ala. 33, 39 So. 341 (1905) (`beast'); Liner v. State, 350 So. 2d 760 (Ala.Cr.App.1977) (`a rattlesnake' and `a viper'); ... Cassady v. State, 51 Ala. App. 544, 545, 287 So. 2d 254 (1973) (`a demon'); Reed v. State, 32 Ala. App. 338, 27 So. 2d 22, cert. denied, 248 Ala. 196, 27 So. 2d 25 (1946) (`lied like a dog running on hot sand'); ... Thomas v. State, 19 Ala. App. 187, 96 So. 182, cert. denied, ... 209 Ala. 289, 96 So. 184 (1923) (`a moral pervert') ....
"The controlling principles are found in 23A C.J.S. Criminal Law, Section 1102 (1961).
"`Comments by the prosecuting attorney which refer to, and make unfavorable inferences from, the conduct of accused in the course of the transaction for which he is on trial, or his conduct at any other time or place, or which refer to his character as shown by such conduct, or to his background, breeding, or associations, or to other details of his personal history or characteristics are proper, where the purported facts referred to by counsel are supported by competent evidence in the case, and where the inferences and deductions sought to be made from such facts are within the bounds of proper argument. On the other hand, remarks or argument of the prosecuting attorney concerning the character or conduct of accused, which is not supported by the record or
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