Smith v. State12/22/2000
which exceeds the limits of fair argument or inference is improper.
"`In a proper case, the prosecuting attorney may characterize accused or his conduct in language which, although it consists of invective or opprobrious terms, accords with the evidence in the case, and, where the evidence warrants the belief that accused is guilty, the prosecutor may employ terms appropriate to the nature or degree of turpitude involved in the crime charged; but characterizations not justified by the evidence or the charge which the evidence tends to prove, and hence merely abusive, or which are couched in intemperate and inflammatory language are, ... improper.' "See also 6 Am.Jur. Trials, Prosecution Summations 873, 917 (1967).
"`The prosecutor is at liberty to strike hard blows, but he must not strike foul ones; that is, while comment may be made about the defendant or his witnesses, it must be based on the testimony that the defendant or his witnesses gave from the stand or on rational conclusions concerning the defendant or witness that flow from the evidence in the case.'
"... `The prosecutor, as does defense counsel, has a right to present his impressions from the evidence.' McQueen v. State, 355 So. 2d 407, 411 (Ala.Cr.App. 1978)." Barbee v. State, 395 So. 2d 1128, 1134-35 (Ala. Crim. App. 1981). In regard to the prosecutor's reference to the appellant as an animal, see Melson v. State, [Ms. CR-95-1681, March 26, 1999] __ So. 2d __, __ (Ala. Crim. App. 1999) ("the prosecutor's reference to Melson as an `animal' accorded with the evidence presented at trial concerning the brutal and cold-blooded nature of the murders"), aff'd, [Ms. 1981463, August 4, 2000] __ So. 2d __ (Ala. 2000). In regard to the prosecutor's reference to the appellant as a capital murderer, see Maples v. State, 758 So. 2d 1, 58 (Ala. Crim. App.) (the prosecutor's reference to the defendant as a capital murderer was not an improper expression of his personal opinion of the appellant's guilt because it was an expression of his opinion based on the evidence), aff'd, 758 So. 2d 81 (Ala. 1999); Hunt v. State, 659 So. 2d 933, 940-42 (Ala. Crim. App. 1994) (quoting Galloway v. State, 484 So. 2d 1199, 1201 (Ala. Crim. App. 1986), recognizing the general rule that the prosecutor's expression of his opinion that the accused is guilty is not improper where he states, or it is apparent, that such opinion is based solely on the evidence), aff'd, 659 So. 2d 960 (Ala. 1995). In regard to the prosecutor's comment on the appellant's credibility, see Smith v. State, [Ms. CR-98- 0206, May 26, 2000] __ So. 2d __, __ (Ala. Crim. App. 2000) (characterization of the appellant as a liar was supported by the evidence); Watson v. State, 398 So. 2d 320, 328 (Ala. Crim. App. 1980) (reference in closing argument to the defendant as a "bald face liar" was "a hard blow but it was not foul"). In reference to the prosecutor's description of the appellant as evil, see also Pierce v. State, 576 So. 2d 236, 249-250 (Ala. Crim. App. 1990) (the repeated characterization of the appellant as an "evil person" was proper, because it was supported by the evidence). The prosecutor's characterizations of the appellant raised in his brief were justified under the evidence before the jury.
C.
The appellant contends that the prosecutor repeatedly misstated the law to the jury. No objections were made to the alleged misstatements; thus we review them under the plain-error rule.
First, he contends that, during jury selection, the prosecution certain made references to the standard of proof for a conviction that he says lessened the State's burden. He does not point to a specific instance of this in his brief, and only refers us t
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