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Smith v. State12/22/2000
o a page in the record. We not only have reviewed the page of the record referred to, but we have reviewed the entire record, and we do not find any instance where the prosecutor misstated the State's burden of proof. We find no merit in this contention, and no plain error.
Second, the appellant contends that the prosecutor erred during voir dire examination of the jury panel by telling the venire "that cases did not get the death penalty because the law did not allow it -- and not that the sentencer declined to impose it" and by giving the members of the venire "the impression that cases in which two or more people are killed always involve the death penalty." (Appellant's brief, p. 60.) He further contends that the prosecutor erred in his argument to the jury in the sentencing phase by invoking the Alabama Supreme Court and the United States Supreme Court "in contending that the death penalty was warranted here." (Appellant's brief, p. 62.) No objections were made at trial to these contentions. We have examined the record and find that these contentions are without merit. The comments and argument of the prosecutor complained of were not improper. We find no error, and certainly no plain error.
Third, the appellant contends that the prosecutor's and the trial court's references to the jury's sentence verdict as a recommendation undermined the jury's sense of responsibility in sentencing him to death and thereby violated Caldwell v. Mississippi, 472 U.S. 320 (1985).
It is constitutionally impermissible to rest a death sentence on a determination by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the accused's death rests elsewhere. Caldwell. However, comments that accurately explain the respective functions of the judge and jury are permissible under Caldwell as long as the significance of the jury's recommendation is adequately stressed. Harich v. Wainwright, 813 F.2d 1082, 1101 (11th Cir. 1987); Martin v. State, 548 So. 2d 488 (Ala. Crim. App. 1988), aff'd, 548 So. 2d 496 (Ala. 1989). In the instant case, neither the prosecutor nor the trial court misrepresented the effect of the jury's sentencing recommendation. Their remarks clearly defined the jury's role, were not misleading or confusing, and were correct statements of the law.
After reviewing the entire record, we conclude that the comments of the prosecutor and the remarks and instructions of the trial court to the jury did not undermine or tend to diminish the jury's sense of responsibility in the sentencing process.
Fourth, the appellant contends that the prosecutor improperly argued to the jury that it could infer intent from the use of a deadly weapon. No objection was made at trial to this argument. The prosecutor's argument in this regard, under the facts of this case, was a correct statement of the law. See Terry v. State, 540 So. 2d 782 (Ala. Crim. App. 1988), overruled on other ground, J.D.S. v. State, 587 So. 2d 1249 (Ala. Crim. App. 1991). Thus, we find no plain error.
Fifth, the appellant contends that the prosecutor's closing argument before the jury in the sentencing phase "distorted the meaning and relevance of mitigating circumstances." (Appellant's brief, p. 61.) He specifically takes issue with the prosecutor's argument to the jury that the evidence did not support a finding of the existence of the statutory mitigating circumstance that the appellant lacked the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Again, no objection was raised at trial. The prosecutor's argument was a fair comment on the evidence offered in mitigation. Thus, we find no p
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