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Smith v. State12/22/2000
lain error.
D.
The appellant contends that the prosecutor made several improper comments during his trial.
First, he argues that the prosecutor improperly informed the jury that it did not need to worry about the circumstances surrounding the appellant's confession because the trial court had held a suppression hearing and, if the appellant's rights had been violated, the jury would never have heard the statement. We address this assertion in Part XXI, infra.
Second, the appellant contends that the prosecutor wrongfully "bolstered his own standing" and "continually placed his own expertise on the record." (Appellant's brief, P. 54 n.13.) He specifically asserts that the prosecutor improperly argued to the jury, in the guilt phase, his position on paroles. No objection was made at trial to this argument. The record shows that the prosecutor's argument, expressing his general opposition to releasing criminals on parole, was in rebuttal to defense counsel's argument; that argument implied that the state's witness, Bridges, had received a deal in exchange for his testimony. We find no plain error here. The argument complained of was proper; it was a legitimate comment on the argument of opposing counsel.
The appellant also contends that the prosecutor improperly commented on his expertise. The conduct referred to occurred during the voir dire examination when the prosecutor told the venire that he had prosecuted many criminal cases. No objection was made at trial. When the comment is considered in the context of the entire voir dire, it is clear that it was preliminary to asking the members of the venire if he had ever prosecuted any members of the venire, members of their families, or friends. This comment was not improper, it did not prejudice the appellant in any way, and it did not constitute plain error.
Third, the appellant contends that the prosecutor improperly "spoke throughout voir dire as if there were no question but that this case would reach a penalty phase, even telling them what he planned to do at sentencing." (Appellant's brief, p. 60.) We do not agree with the appellant's characterization of the voir dire questions by the prosecutor in this regard. Reading the voir dire in its entirety, we conclude that the prosecutor's questions did not assume that the trial would reach the penalty phase, but only that it might. The jury was certainly not misled by the questions, as the appellant suggests. We find no merit in this contention.
Fourth, the appellant contends that the prosecutor engaged in improper argument by referring to the appellant's prior convictions in his argument to the jury during the guilt phase. We do not agree. The prosecutor's argument was in rebuttal to Lavoris Smith's testimony that the appellant had a reputation for nonviolence. This was legitimate argument in response to character evidence brought out by the appellant. We note that the trial court properly instructed the jury that it could consider the evidence of prior felony convictions only for impeachment purposes, and not as substantive evidence that the appellant committed the crime charged.
Fifth, the appellant contends that the prosecutor erred in cross- examining him about a post-conviction petition he had apparently filed pro se, seeking review of his prior convictions. We find no error. Examined in proper context, the questions were directed toward the appellant's claim that he could not read or write, and they were proper cross-examination.
The appellant's claim that the prosecutor improperly referred to parole during closing argument is without merit. When considered in context, it is clear that the remar
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