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Smith v. State12/22/2000
e of drugs, and there's a legal suppression hearing held by a trial judge; and if his rights were violated, a jury will never hear that, is that not true?
"A. That is true." (R. 1090.)
This last question, the appellant argues, informed the jury, in effect, that the trial court had held a legal suppression hearing and had determined that the appellant's statement was admissible. (Appellant's brief, pp. 54, 67-68.) Defense counsel did not object to this question.
We find that this statement is too ambiguous to conclude that it informed the jury that the trial court had held a suppression hearing on the appellant's confession and had determined that the confession was voluntary and thus admissible. For the jury to have assumed, from the prosecutor's statement, that the trial court had determined the voluntariness of the appellant's confession is too far a leap to constitute plain error. Because any error here is not obvious, we are not presented with plain error. "Plain error is error which, when examined in the context of the entire case, is so obvious that failure to notice it would seriously affect the fairness, integrity, and public reputation of the judicial proceedings." Slaton v. State, 680 So. 2d 879, 887 (Ala. Crim. App. 1995) (quoting United States v. Butler, 792 F. 2d 1528, 1535 (11th Cir. 1986)), aff'd, 680 So. 2d 909 (Ala. 1996). Moreover, we note that it was defense counsel who first referred to a suppression hearing in questioning of Jay.
The trial court's failure to specifically instruct that the jury determines the voluntariness of the defendant's confession did not rise to the level of plain error in this case, even when one considers the prosecutor's reference in his redirect of Sgt. Jay to a suppression hearing.
XXII.
The appellant contends that the order in which the trial court gave its instructions prevented the jury from considering his defenses of intoxication (§ 13A-3-2) and duress (§ 13A-3-30) until after it had resolved the question of guilt of the capital offense. He argues that, by the order of the trial court's instruction and by the court's instruction that the jury consider the lesser included offenses of murder and manslaughter only after it rejected the capital murder charge, the jurors could have thought that they were precluded from considering his entire defense (intoxication and duress) until after they had ruled on the capital charge. He argues that " he court never told them that intoxication and duress were defenses to the capital charge and thus therefore had to be considered when that charge was considered." (Appellant's brief, p. 69; emphasis in original.) He asserts that, by so instructing, the trial court relieved the prosecution of its burden of proof and denied him the right to have the jury consider and give effect to his defense. The appellant failed to object at trial on any basis pertinent to the issue he now raises.
The trial court followed the order recognized as the order that many judges prefer: introduction, crimes charged, possible defenses, and conclusion. See "Introduction to the Instructions," Alabama Pattern Jury Instructions: Criminal (3d ed. 1994) (hereinafter "APJI"). After instructing the jury on the elements of the capital offense, the trial court instructed on the elements of the lesser offenses of murder and reckless manslaughter. This was proper. See APJI 5-122 (following the pattern jury instruction for the capital offense of murder of two or more persons is the notation: "(If lesser-included offenses are included, the Court should instruct on those offenses at this point.)"); 6-1 (same notation after pattern instruction for intentional murder). The court the
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