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Smith v. State12/22/2000
lant's motion for a mistrial on this ground.
XXV.
The appellant contends that the following "flaws" in the trial court's sentencing instructions violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments as well Alabama law (although he cites none):
A.
The appellant contends that the trial court's repeated reference to the jurors' sentencing verdict as a "recommendation" reduced the jurors' sense of responsibility. It is well established that an instruction of the trial court accurately informing the jury that its sentence verdict is advisory and a recommendation and that the trial court would make the final decision as to the sentence do not violate Caldwell v. Mississippi, 472 U.S. 320 (1985). Ex parte Taylor, 666 So. 2d 73, 88 (Ala. 1995). Moreover, instructions regarding the jury's role in sentencing as that of offering only a recommended or advisory verdict do not conflict with Alabama law. Id. at 87.
By the following instruction, the appellant also argues, the trial court informed the jurors that it might not follow their recommendation and that life imprisonment without the possibility of parole means life imprisonment without parole only if the court follows their verdict:
"The law provides that the punishment for the capital offense for which you have convicted the defendant is either death by electrocution or life imprisonment without the eligibility of parole. Life imprisonment without parole means life imprisonment without parole. If you recommend life without parole, and I follow your recommendation, Alabama law will never allow the defendant to be paroled." (R. 2098.)
The appellant argues that this instruction was prejudicial because "it gave the impression that if the panel voted against death Mr. Smith could actually be paroled." (Appellant's brief, p. 76.) The court's instruction is straightforward in conveying that only two sentences are permissible; it does not imply that a third sentence -- one with eligibility for parole -- is possible. We find no error, much less plain error, in this instruction.
B.
The appellant again raises the alleged impropriety of the reasonable doubt instruction that "a reasonable doubt is one which you have a reason for." (R. 2105.) As we rejected the appellant's argument attacking the guilt-phase instruction on this ground, we likewise reject this argument. See Part XXIV.B., supra.
C.
The appellant contends that the trial court erred in instructing the jury on the "great risk of death" aggravating circumstance. This issue is without merit. See Part XI, supra. D.
The appellant argues that the trial court, by differentiating between its oral charge and the charges submitted by the attorneys, signaled the jury that there was some distinction between the charges.
The court instructed:
" s in the guilt phase of the trial, the attorneys have requested certain written requested charges. I will read these at this time. Again, they are correct propositions of law, and you are to consider them as correctly stating the law of Alabama, and you are to take these along with the Court's oral charge." (R. 2122.)
Ala.R.Crim.Proc. 21.1 requires only that the trial court read the charges "without reference as to which party filed the request." See also Smith v. State, 727 So. 2d 147, 169 (Ala. Crim. App. 1998) (approving an instruction like the one in this case in all important aspects). We find no error.
XXVI.
The appellant contends that throughout the trial, the trial court "made offhand remarks which may have left the jury with a d
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