Smith v. State
Smith v. State
Opinion
The appellant, Kennedy Gerald Smith, was convicted of murder, in violation of §
The appellant raises four issues on appeal.
When the evidence, which was the subject of the motion in limine, was proffered at trial, the appellant failed to object. An objection was necessary to preserve error because the trial court in no way foreclosed later discussion of the issue after denying the motion.
"In Phillips v. State,
527 So.2d 154 (Ala. 1988), our Supreme Court held the following:" 'It is the law "that an appellant who suffers an adverse ruling on a motion to exclude evidence (or other matters, e.g., argument of counsel) made in limine, preserves this adverse ruling for postjudgment and appellate review only if he objects to the introduction of the proffered evidence or other matters and assigns specific grounds therefor at the time of trial, *Page 224 unless he has obtained express acquiescence of the trial judge that such subsequent objection to evidence proffered at trial and assignment of grounds therefor are not necessary. See C. Gamble, The Motion in Limine: A Pretrial Procedure That Has Come of Age, 33 Ala.L.Rev. 1 (1981)." Liberty National Life Ins. Co. v. Beasley,
466 So.2d 935 ,936 (Ala. 1985).'
"Id. at 156.
Lee v. State,"In the instant case, counsel failed not only to object at trial to the references of which he now complains, but also failed to obtain the express acquiescence of the court that would make an objection at trial unnecessary. This issue is therefore not preserved for appellate review."
Judge McRae's charge to the jury regarding reasonable doubt provided the following:
"In order to justify an acquittal you must have an actual and substantial doubt, not a mere possible doubt. A reasonable doubt is not a mere guess or surmise. It is not a forced or capricious doubt. If after considering all the evidence in this case if you have an abiding conviction of the truth of the charge, then I would tell you that you are convinced beyond a reasonable doubt and it would be your duty to convict the Defendant. The reasonable doubt which entitles an accused to an acquittal again is not a mere vague or speculative doubt, but a reasonable doubt arising from the evidence and remaining after careful consideration of the testimony. Such a reasonable doubt as fair-minded conscientious men and women would entertain under all the facts and circumstances again which you heard in this case.
"I will tell you that the State is not required to convince you of the Defendant's guilt beyond all doubt, but simply beyond all reasonable doubt. But if after comparing and considering all the evidence in this case, if your minds are left in such a condition that you cannot say that you have an abiding conviction and to a moral certainty of the guilt of the Defendant, then you are not convinced beyond a reasonable doubt and the Defendant would be entitled to an acquittal at your hands. Some judges simply state that a reasonable doubt is the doubt that would be entertained by a reasonable person or the doubt for which a reasonable person could give you a good reason for having.
"Several times I have used the terms beyond a reasonable doubt and to a moral *Page 225 certainty. And I feel reasonably sure that I will use those terms again. Therefore, I would tell you that if you prove a person guilty beyond a reasonable doubt, you have proven that person guilty to a moral certainty because the terms are synonymous. They mean the same thing."
This court has consistently held that a trial court's oral charge to the jury must be viewed in its entirety and not in "bits and pieces." Parks v. State,
AFFIRMED.
All the Judges concur.
Reference
- Full Case Name
- Kennedy Gerald Smith v. State.
- Cited By
- 11 cases
- Status
- Published