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Smith v. State12/22/2000
beyond a reasonable doubt, and then you find the defendant ... is not guilty of capital murder, you have the option of deciding some lesser-included offenses." (R. 1854-55.) Clearly, the trial court was merely reminding the jury that the prosecution's burden was to establish the appellant's guilt beyond a reasonable doubt. The trial court repeatedly told the jury that it was the prosecution's burden to prove the appellant guilty beyond a reasonable doubt. Viewing this comment in the context of the entire charge, the appellant's construction is strained and unreasonable. This contention presents no error, much less plain error.
Second, the appellant contends that the trial court, by instructing the jury that if it acquitted the appellant of capital murder it could consider the lesser offenses if it "wanted" to, gave the jury the impression that the lesser offenses were not serious, viable options. Before instructing the jury on the elements of capital murder, the trial court instructed,
"[My instruction informing you] what the elements are of the indictment ... s going to get somewhat complicated, because not only do you have to decide the guilt or innocence of the defendant on the capital murder case, you have other lesser-included offenses you can consider, if you want to. So we are going to try to logically go down those step-by-step." (R. 1846.)
Before instructing on the elements of the lesser offenses, the trial court instructed:
" f you find from the evidence in this case the State has failed to meet their burden of proof beyond a reasonable doubt, and then you find the defendant ... is not guilty of capital murder, you have the option of deciding some lesser-included offenses.
"Now, lesser-included offenses ... are going to be ... murder and manslaughter. ... ou need to understand this is a logical progression. You first have to consider capital murder. And, then, if you feel like the defendant is not guilty of that, then you drop down, and you can consider the offense of murder. And, then, if you feel like the defendant is not guilty of that particular crime, then you can drop down and find the defendant guilty or not guilty of manslaughter." (R. 1854-56.)
While some of this language may not be the most artful, it certainly does not constitute any error, much less plain error. Taking these excerpts in the context of the overall charge, the less than desirable phraseology is innocuous. Again, the appellant's interpretation of isolated portions of the trial court's charge is strained and unreasonable.
Third, the appellant argues that, by the emphasized instruction below, the court commented on "the state of the evidence":
"With respect to the offense of capital murder, if you find the State has proved beyond a reasonable doubt all the elements I have just given to you, then your verdict must be guilty, as I said. ...
"However, if you find from the evidence then that the State has failed to prove one or more of the elements of capital murder as I just gave to you, then you must find the defendant not guilty." (R. 1851-52; emphasis added.)
The trial court gave this instruction immediately after stating that, if the jury found that the prosecution had proven beyond a reasonable doubt each of the elements of capital murder, it should find the appellant guilty. By the emphasized comment, the court was merely repeating an instruction it had just given, i.e., "as [it had] said"; it was not commenting that it had said that the jury's verdict must be guilty. Again, we are presented with a frivolous, strained, and unreasonable interpretation. The trial court properly overruled the appel
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