Smith v. State12/22/2000
k was a legitimate comment in response to the appellant's attacks on the credibility of the State's witness, Bridges.
Sixth, the appellant contends that it was error for the prosecutor, in closing argument in the guilt phase to refer to an adverse ruling by the trial court on an objection by the appellant as being "wholeheartedly" overruled. No objection was made to this characterization of the trial court's ruling, and nothing appears in the record to support such a characterization. We view this comment as one made in the heat of debate, and one of such minor consequence that it could not have had any bearing on the outcome of the case. We find no plain error in this comment.
Seventh, the appellant contends that the prosecutor improperly made comments about the victim's families. No objections were raised to these comments. The appellant does not specifically point out in his brief the comments he refers to, but only cites us to pages in the record. One of the comments was made in the prosecutor's opening statement (he stated that he represented the victims as well as the State), and another involved questioning a witness to establish the fact of the death of one of the victims. We have examined the portions of the record referred to, and find no error in the comments, and certainly no plain error.
Eighth, the appellant further contends that the prosecutor erred in the emphasized portion of the following comment, "I submit to you, listen real carefully, take the sword of justice in this case and run it right through his guilty little heart because he deserves the death penalty based on the law and the evidence." (R. 2094; emphasis added.) Defense counsel did not object to this statement, which the prosecutor made in his opening statement in the sentencing phase.
"It is not enough that a prosecutor's comment in closing arguments was undesirable or even universally condemned; the question instead is whether the comment `so infected the trial with unfairness as to make the resulting conviction a denial of due process.' Burton[ v. State], 651 So. 2d [641,] 651 [(Ala.Cr.App. 1993), aff'd, 651 So. 2d 659 (Ala. 1994)], quoting Darden v. Wainwright, 477 U.S. 168, 181 ... (1986).
"... s we have previously stated, a prosecutor's comment must be viewed as delivered in the heat of debate, and, as such, is usually valued by the jury at its true worth. `" e must not lose sight of the fact that a trial is a legal battle, a combat in a sense, and not a parlor social affair. The solicitor is yet under duty to prosecute with earnestness and vigor -- to strike hard blows, but not foul ones." Berger v. United States, [295 U.S. 78 (1935)].' Taylor[ v. State], 666 So. 2d [36,] 64 [(Ala.Cr.App. 1994)], quoting Arant v. State, 232 Ala. 275, 280, 167 So. 540, 544 (1936)." Melson v. State, [Ms. CR-95-1681, March 26, 1999] __ So. 2d __, __ (Ala. Crim. App. 1999), aff'd, [Ms. 1981463, August 4, 2000] __ So. 2d __ (Ala. 2000).
The prosecutor's comment was not plain error. Retribution is a proper subject of prosecutorial argument. Perkins v. State, [Ms. CR-93- 1931, November 19, 1999] __ So. 2d __ (Ala. Crim. App. 1999); McWilliams v. State, 640 So. 2d 982, 1001 (Ala. Crim. App. 1991), aff'd in pertinent part, rem'd., 640 So. 2d 1015 (Ala. 1993). See also Price v. State, 725 So. 2d 1003, 1033 (Ala. Crim. App. 1997) (there is no impropriety in a prosecutor's appeal to the jury for justice); Kuenzel v. State, 577 So. 2d 474, 498 (Ala. Crim. App. 1990) (retribution is a valid consideration in sentencing) (quoting Johnson v. Wainwright, 778 F.2d 623, 630 (11th Cir. 1985)), aff'd, 577 So. 2d 531 (Ala. 1991). Viewing this comment as delivered in the heat of debate, we conclu
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