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Smith v. State12/22/2000
e case and that the jury would be the sole and exclusive judge of the truth of the evidence that was admitted."); Woods v. State, __ So. 2d at __ (in finding no plain error in the trial court's failure to so instruct where the trial court did not instruct the jury that it had made a preliminary finding that the confession was voluntary, the court noted that, "on several occasions, the trial court instructed the jury that it was the sole judge of the credibility of the evidence presented"); Minor v. State, __ So. 2d at __ (where the trial court did not instruct and did not tell the jury of its preliminary determination of voluntariness, the court found, "Because the trial court's oral charge adequately explained the jury's duty to evaluate the evidence, no plain error occurred ...."). Thus, on the basis of Ex parte Trawick, we find no plain error in the trial court's failure to give the jury a specific instruction that the ultimate decision on the voluntariness of the appellant's statement was for the jury to make.
In arguing the necessity of such an instruction, the appellant asserts that the prosecutor, in effect, told the jury that it did not need to be concerned about the circumstances surrounding the appellant's confession because the trial court had held a legal suppression hearing and, if the appellant's rights had been violated, his confession would not have been allowed into evidence. In construing the meaning of this alleged statement in context, we start with defense counsel's cross- examination of Sgt. Jay. During this cross-examination, defense counsel mentioned "the suppression hearing tape" and referred to testimony by Jay " n the suppression hearing." (R. 1056, 1063.) In the latter portion of defense counsel's examination of Jay the following occurred:
"Q. Do you think Mr. Smith should be convicted of capital murder?
"A. Yes, I do."
"Q. One of the elements the State must prove beyond a reasonable doubt is that the defendant ... intended to cause those deaths.
"A. Yes, sir.
"....
"Q. Do you know that there are some things that negate intent?
"A. You are going to have to explain.
"....
"Q. If the person is so intoxicated to the point that he can't form that intent, that would negate that intent. Do you understand that concept?
"A. Yes, I do.
"Q. So, if you thought ... Smith had some alcohol on him or smelled of alcohol slightly, if any, why didn't you ascertain the degree of intoxication that ... Smith was on?
"A. 'Cause in my opinion, he was not intoxicated. He was able to give a complete statement, a description of everything. He was able to work a straight disposal of the weapon. He was able to give an accurate account of everything I could prove. I've dealt with intoxicated people in the past, and you can't do that.
"....
"Q. Have you ever made a [driving-under-the-influence] arrest?
"A. Yes, sir, many.
"Q. When you stop the car, and there is alcohol on their breath, what do you do?
"A. You test them and make sure they are, if they are driving, if they're impaired." (R. 1081, 1087-89.)
Immediately thereafter, the prosecutor asked only two questions on redirect:
"Q. Sgt. Jay, ... do you have any personal knowledge in any way, Mr. Meredith said Jerry Jerome Smith can't read, that that's true?
"A. I don't have any knowledge of that, no, sir.
"Q. I want to ask you -- He was asking you about intoxication. He didn't tell you that voluntary intoxication that you can be drinking, under the influenc
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