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Smith v. State12/22/2000
we find the following applicable:
"While the prosecutor's infraction of the rule is obvious, [it does not warrant] a reversal of the conviction. Considering the weight of the evidence against this appellant, it is unlikely that the possible prejudice was instrumental in the jury's finding." Clark v. State, 462 So. 2d at 747 (Bowen, P.J., concurring).
In regard to whether the defense had the opportunity to counter this isolated remark in the prosecutor's initial closing argument at the guilt phase, we note that defense counsel began his closing remarks by stating:
"You've heard Mr. Valeska's -- and I stress this -- you've heard Mr. Valeska's testimony about what happened here. I would just ask you simply when you go back into the deliberation room to remember what you heard on the stand, and not what Mr. Valeska testified to. Okay. Try to make that distinction, okay?" (R. 1705).
Then, he subsequently stated:
"[Valeska] doesn't want to win this case or lose this case based on the facts. He doesn't. He just wants to win. ...
"[Valeska] said, if you don't believe your district attorney, if you don't believe your assistant district attorney, you don't believe the investigator, let him go. Mr. Valeska didn't testify, so I don't know what he was referring to or what you believe. He didn't get on the stand and testify, so I don't even know what he was talking about.
"What are you supposed to believe? The Judge told you comments by the lawyers and all are not evidence. You can't consider that. Witnesses are what we are looking at. And I said it would be improper for Valeska to have testified. He didn't know. Mr. Maxwell testified. Mr. Jenkins testified." (R. 1714, 1717-18.)
In regard to whether defense counsel invited the prosecutor's remark, we find that he did not.
In reviewing the nature and seriousness of the remark, we note that the remark, although highly improper, was brief. However, we find that the prosecutor made a similar highly improper comment during his rebuttal closing argument in the guilt phase, as follows:
"You look me straight in the face, and I challenge you, each one of you .... If you think I made [Bridges] a deal to testify, put Jerry Jerome Smith back on the street, because I've got a reputation, too. And if I lied or did something, I'd get disbarred and go to jail. He got nothing from us." (R. 1810-11.)
This argument was made in rebuttal to defense counsel's closing argument in which he suggested that Bridges's sentence was shortened in exchange for his testimony regarding the appellant's inculpatory statement. (R. 1720-27.) During this argument, defense counsel implied that the prosecution had disposed of evidence of a deal with Bridges by arguing:
"Why didn't [Valeska's] great investigative team ... find this letter that supposedly was put in the hands of an Alabama Bureau of Investigation officer. Things just don't disappear like that .... And things don't sit on somebody's desk for six months that involves a capital murder case. ... What is on that first page of that letter? Somebody didn't want us to see it. Was it `Dear sir, I have some information, and if you'll come talk to me and make a deal, I'll tell you about it.'" (R. 1721-22.)
After reviewing the five factors as to both improper remarks by the prosecutor, we conclude that the comments did not constitute plain error in the context of the trial as a whole. They were not so prejudicial as to undermine the appellant's substantial rights: they created no reasonable probability that, but for these comments, the outcome would have been different.
XVII.
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