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Smith v. State12/22/2000
So. 2d 1063 (Ala. 1998), cert. denied, 526 U.S. 1133 ...(1999).[ ] Finally, from the verdict forms, it is clear that the jurors unanimously agreed that the appellant was responsible for the murders of all four of the decedents. Accordingly, we do not find any plain error in this instance."
Based on this rationale and the considerations noted above, especially the fact that each juror acknowledged that he or she had concluded that the appellant intended to kill each of his three victims, clearly, the jury unanimously found the appellant guilty of intentionally killing the three victims.
XXI.
The appellant also contends that the trial court's failure to instruct the jury on how to consider his extra-judicial statement or on the weight or credibility, if any, it should accord the statement violated his rights guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments and Alabama law. We review this contention under the standard of plain error: the appellant neither requested an instruction on voluntariness, nor did he object to the trial court's failure to instruct the jury on the issue.
The appellant, in making this argument, relies solely on Ex parte Singleton, 465 So. 2d 443, 446 (Ala. 1985), and Bush v. State, 523 So. 2d 538, 560 (Ala. Crim. App. 1988). In Ex parte Singleton, the Alabama Supreme Court recognized that the trial court cannot lawfully prevent the jury from making the determination of voluntariness as affecting the weight and credibility to be given a defendant's statement. See Ex parte Trawick, 698 So. 2d 162, 174 (Ala. 1997). In Bush v. State, this court held that the trial court committed plain error by taking the issue of voluntariness of a confession away from the jury; it did so when it specifically instructed the jury that it was "not entitled to disregard the Court's admitting [the confession]." 523 So. 2d at 558. These cases, however, include a critical circumstance that the facts before us do not: the trial court in those cases specifically informed the jury that the court had already made a preliminary determination that the defendant's statement was voluntary.
Because the trial court in this case gave no such instruction, we are guided by the following rule: where the trial court does not instruct the jury that the court has made a preliminary determination that the defendant's confession was voluntary, no inference concerning the weight or credibility of the statement has been created; thus, the trial court's failure to specifically charge the jury that the jury is to make the ultimate decision regarding the voluntariness of the statement is not plain error. Ex parte Trawick, 698 So. 2d 162 (Ala. 1997); Woods v. State, [Ms. CR-97-0027, December 10, 1999] __ So. 2d __ (Ala. Crim. App. 1999); Minor v. State, [Ms. CR-95-1968, October 29, 1999] __ So. 2d __ (Ala. Crim. App. 1999). Here, the trial court did not create any inference as to the weight or credibility the jury should give the appellant's statement. See Minor v. State. Moreover, the trial court's instructions throughout the trial stressed the jury's responsibility as the sole judge of the truth of the evidence. "Such instruction implicitly included [the appellant's] statement." Minor v. State, __ So. 2d at __. See also Ex parte Trawick, 698 So. 2d at 174 (no plain error in the trial court's failure to instruct the jury that the jury, and not the trial court, has the ultimate decision on the voluntariness of a confession where the trial court had not disclosed that it had already determined the confession to be voluntary and thus admissible; " he trial court properly instructed the jury that the court would rule only as to whether evidence could be admitted into th
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