Smith v. State12/22/2000
cern; it did not unduly emphasize the appellant's interest.
The court in Miller reviewed a mandatory instruction that the jurors "are to consider" the testimony of the defendant "in the light of the fact he is the defendant and interested in the result of your verdict." 20 Ala. App. at 563-64, 103 So. at 917. Such mandatory instruction is an incorrect statement of the law and infringes on the jury's role as the ultimate factfinder in the case. Phillips v. State, 606 So. 2d 170, 170 (Ala. Crim. App. 1991). However, the instruction in the present case instructs that the jury may take the fact of the defendant's interest in the outcome of the trial into consideration. "` he rule is that the jury may consider defendant's testimony in the light of his interest, etc., not that they must.'" Phillips, 606 So. 2d at 170, quoting Miller v. State, 21 Ala. App. 283, 107 So. 721, 722 (1926). Alabama courts have approved similar instructions. See, e.g., Smith v. State, 756 So. 2d 892, 925 (Ala. Crim. App. 1997); Hart v. State, 612 So. 2d 520, 529-30 (Ala. Crim. App.), aff'd, 612 So. 2d 536 (Ala. 1992). In fact, the court in Banks v. State, 448 So. 2d 973, 977 (Ala. Crim. App. 1984), stated that such a charge correctly states the law and the duty of the jury and should be given in every case in which the defendant testifies. (The court in Banks accordingly rejected the appellant's claims that "this jury charge singles out the appellant; that it gives his testimony prominence or special attention; and that it tends to disparage his testimony." Id.)
D.
The appellant contends that the following are examples of instructions given by the trial court that "were skewed in such a way as to distort or even invert their intended meaning" (appellant's brief, p. 75) and, thus, lessened the prosecution's burden of proof and deprived him of a fair and reliable verdict. In reviewing these isolated instructions, we are mindful of the following principles:
"`When reviewing a judge's oral charge, "each statement made by a judge to the jury should be examined in light of the entire charge and ... isolated statements which appear prejudicial when taken out of context may be innocuous when viewed in light of the entire trial." United States v. McCoy, 539 F.2d 1050, 1063 (5th Cir. 1976), cert. denied, 431 U.S. ... (1977). "`The language of a charge must be given a reasonable construction, and not a strained and unreasonable one.'" Harris v. State, 394 So. 2d 96, 100 (Ala.Cr.App. 1981). "(F)anciful theories based on vagaries of the imagination" should not be indulged in construing the court's charge. Addington v. State, 16 Ala. App. 10, 19, 74 So. 846 (1916).'
"Kennedy v. State, 472 So. 2d 1092, 1103 (Ala.Cr.App. 1984), affirmed, 472 So. 2d 1106 (Ala.), cert. denied, 474 U.S. 975 ... (1985).
"`Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with common-sense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting.' "Boyde v. California, 494 U.S. [370,] 380-81 ... [(1990)]." Kuenzel v. State, 577 So. 2d 474, 517 (Ala. Crim. App. 1990), aff'd, 577 So. 2d 531 (Ala. 1991).
First, the appellant asserts that, by the following, the trial court instructed the jury that, before it could acquit the appellant of the capital offense, it had to find beyond a reasonable doubt that the prosecution had not met its burden: " f you find from the evidence in this case the State has failed to meet their burden of proof
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