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Smith v. State12/22/2000
de that it was valued by the jury at its true worth and that it was not an improper factor in the formation of its sentencing recommendation verdict.
E.
The appellant contends that the trial court allowed the prosecutor to ask so many leading questions that he received an unfair trial. He calls our attention to only one such leading question, and cites us to several pages in the record where he contends leading questions were asked. We have examined the entire record, paying particular attention to the pages of the record cited. Objections were made to some of the questions as being leading, but in most instances no objections were made, and in some instances, if objections were made, no adverse rulings were obtained.
"Whether to allow or disallow leading questions is discretionary with the trial court and except for a flagrant violation will there be reversible error." Ruffin v. State, 582 So. 2d 1159, 1162 (Ala. Crim. App. 1991), quoting Jones v. State, 292 Ala. 126, 128, 290 So. 2d 165, 166 (1974). See also, C. Gamble, McElroy's Alabama Evidence § 121.05 (4th ed. 1991).
After reviewing the record in reference to the leading questions asked by the prosecutor, we find no flagrant violations, and thus no reversible error. We find no reversible error in the trial court's rulings, and in all instances where no objections were made or no adverse rulings obtained, we find no plain error.
F.
The appellant contends that the cumulative effect of all the errors or instances of prosecutorial misconduct allegedly committed in the trial of his case violated his right to due process and his right to a fundamentally fair trial. We do not agree. We have reviewed each and every allegation of error or misconduct, as well as the cumulative effect of these alleged errors or misconduct, and find that the cumulative effect of these alleged errors does not call for a reversal.
XVI.
The appellant contends that it was reversible error for Gary Maxwell, the chief assistant district attorney who offered limited assistance in the prosecution of the appellant, to testify on behalf of the prosecution. His testimony corroborated the testimony of Robert Jenkins, an investigator for the district attorney's office, to the effect that Lavoris Smith (the mother of the appellant's girlfriend), contrary to her testimony as the prosecution's witness, had stated in his and District Attorney Valeska's presence that the appellant had told her in a telephone conversation that he had killed "the other people to do away with the witnesses, and it was over a drug deal." (R. 998.) Defense counsel tried to impeach Jenkins by suggesting through questioning that he was biased toward the prosecutor and that he therefore recollected the interview as the prosecutor wanted him to recollect it. Maxwell testified to another interview with Lavoris Smith wherein, in his and Valeska's presence, she gave the same rendition of her conversation with the appellant as she had given to Jenkins and Valeska.
Defense counsel explicitly stated that he had no objection to Maxwell's testifying only to the issue of the impeachment of Lavoris Smith. (R. 1013.) Thus, we review this issue for plain error.
Clearly, the prosecution was surprised when Lavoris Smith changed her testimony to the prosecution's detriment, as we discuss in Part XIV.A., supra. It called Maxwell only after the defense tried to impeach Jenkins's testimony. Under the principles stated in Waldrop v. State, 424 So. 2d 1345, 1346-47 (Ala. Crim. App. 1982), Maxwell's testimony was proper.
"The rule was clearly stated in Maund v. State, 254 Ala. 452, 48 So. 2d 553[, 561] (1
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