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Snith v. State8/25/2000
d 627, 632 (11th Cir.), cert. denied, 515 U.S. 1162 ... (1995).] The comment must be examined in context, in order to evaluate the prosecutor's motive and to discern the impact of the statement. [Id.]' "66 F.3d at 1163." Thomas v. State, [Ms. CR-96-0876, December 30, 1999] ___ So. 2d ___, ___ (Ala.Crim.App. 1999).
A review of the comment and the record of the discussion between the trial court, the prosecutor, and defense counsel indicates that the comment was not a comment on Smith's failure to testify and that no reversible error occurred here.
D.
Smith also argues that the prosecutor committed misconduct when he asked Brooks's mother during the penalty phase where she had met Smith.
Brooks's mother responded that she had met Smith when her son was killed. Before trial began, Smith had made a motion in limine to exclude reference to the fact that the victim had had a brother who was killed in an unrelated incident several years before Kimberly's murder. That motion was granted.
When this occurred the trial court sustained defense counsel's objection and gave the following curative instruction to the jury:
"Ladies and gentlemen, the only matter with which you will be concerned in this hearing is weighing aggravating and mitigating circumstances. That is, the things about the defendant that indicate that he should receive a death sentence or life without parole sentence.
"At this point in time, I'm going to exclude from your consideration all the testimony that you heard from the victim's mother for the simple reason that at this point in time, that testimony does not appear to be relevant to any aggravating or mitigating circumstance. And under no circumstances should you allow yourself to be swayed by sympathy or anger or any other emotion in the course of these proceedings.
"Now, specifically, I want to address the matter of her statement about the death of a son. It's my understanding that in a totally unrelated incident, Ms. Brooks lost another child a few years ago. And she mentioned that. That could evoke sympathy. You're not to let that happen. That hasn't got anything to do with this case.
"Let the record show that I'm seeing every juror out there nod their head in the affirmative that they understand that they can't let the personal circumstances, unfortunate as they may be, by Ms. Brooks' loss of a son as well as a daughter affect their deliberations in this matter. This has to do with aggravating and mitigating circumstances about Corey Schriod Smith."
The trial court cured any possible error by the thorough curative instruction. Thomas v. State, [CR-93-0823, Feb. 11, 1999] ___ So. 2d ___ (Ala.Crim.App. 1999). No reversible error occurred here.
XII.
Smith argues that the trial court committed error in excluding evidence in the penalty phase that related to mitigating circumstances surrounding Smith's childhood.
A.
Smith argues that the trial court erred in not allowing Reginald Smith, his brother, to answer the following question, "Could you tell the jury what Emma Forte [Smith's mother] told you about how that scar got on one of her wrist?"
The State objected; the trial court sustained the objection and stated that the answer to this question would call for hearsay and was also irrelevant. Defense counsel argued that the answer to this question was not hearsay but "it's offered as an independent verbal event," to show that Smith's mother had been assaulted by Smith's father.
Smith also argues that the trial court erred in not allowing Jelma Smith, Smith's stepmother, to testify tha
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