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01/13/95 NATHAN D. SLATON v. STATE

January 13, 1995

NATHAN D. SLATON
v.
STATE



Appeal from Marshall County Circuit Court. (CC-87-200210).

Montiel, Judge. All the Judges concur.

The opinion of the court was delivered by: Montiel

ON RETURN TO REMAND

MONTIEL, Judge

On September 30, 1993, this Court remanded this cause to the trial court to determine whether the trial court's secretary was properly designated by the presiding circuit Judge to excuse potential jurors, in compliance with this court's holding in Windsor v. State, [Ms. CR-91-1487, August 13, 1993] ___ So. 2d ___ (Ala. Crim. App. 1993) (Montiel and McMillan, JJ., Dissenting). The trial court submitted its written findings of fact and Conclusions of law to this court on December 15, 1993.

Slaton argues that he was deprived of his right to a fair and impartial jury because the trial Judge's secretary had excused prospective jurors from the venire. Slaton maintains that the trial court was not empowered to delegate the duty and responsibility of excusing potential jurors. In February, 1994, the Alabama Supreme Court reversed this court's judgment in Windsor, which held that, without having been designated by the circuit's presiding Judge, a circuit clerk's practice of granting the legitimate excuses of potential jurors was reversible error. In overruling this court, the Supreme Court held that, even in the absence of a "formal delegation of power and a proper designation by the presiding Judge," the circuit clerk and the circuit clerk's staff properly granted the legitimate excuses of prospective jurors, and what "[was] not a usurpation of legislative authority, but instead, [was] the natural result of an attempt to conform to the spirit, if not the letter, of the statutes." Windsor v. State, [Ms. 1930048, February 18, 1994] ___ So. 2d ___, ___ (Ala. 1994). See § 12-16-145, Code of Alabama 1975.

Furthermore, in this case, the Judge's secretary had been designated to excuse potential jurors. In the trial court's written findings on remand, the court stated that as the presiding Judge of the circuit, he had designated each of the Judges' secretaries, who are confidential employees, "to excuse jurors at the time their Judge is assigned the control of the jury."

Based on the Supreme Court's holding in Windsor, as well as because the trial court's secretary had been designated to excuse jurors for specific reasons, we hold that potential jurors were properly excused by the trial court's secretary. Slaton's rights to a fair and impartial jury and to a fair trial were not violated.

This court also remanded this case to the circuit court on an unrelated issue. We determined that the trial court erred when it considered Slaton's juvenile record in deciding that the mitigating circumstance of no prior criminal activity did not exist. Therefore, we remanded this case to the trial court for a determination of whether the trial court would have imposed the death sentence had it not considered Slaton's juvenile record.

We will address the issue of whether the trial court would have sentenced Slaton to death without consideration of his juvenile record later in this opinion. A rendition of the facts in this case is necessary before we can address the other issues Slaton raises on appeal.

Slaton was indicted for murder made capital because it was committed during the rape and intentional killing of Modenia Carrie Phillips. § 13A-5-40(a)(3), Code of Alabama 1975. The jury found the defendant guilty of capital murder and unanimously recommended that he be sentenced to death. The trial court accepted the jury's recommendation and sentenced the defendant to die in the electric chair.

The evidence in this case tended to show the following: between 8:30 a.m. and 9:00 a.m. on May 28, 1987, in Albertville, a neighbor saw 17-year-old Slaton in Mrs. Phillips's yard with a BB gun, shooting at birds. Mrs. Phillips was Slaton's next-door neighbor. A short while later, the neighbor saw Slaton standing by Mrs. Phillips's front door, then saw him go into the house. He came out about 30 minutes later, the neighbor testified.

A friend of Mrs. Phillips's drove up about five minutes after the neighbor saw Slaton leave. The friend testified that he tried the front door, found the door unlocked, and went inside. He said he saw Mrs. Phillips lying on the bathroom floor, and when he tried to use the telephone to call for help, saw that it had been unplugged. The friend then left the house to get Mrs. Phillips's daughter, who worked nearby. When the pair returned to the house and Mrs. Phillips's daughter saw her mother's body, she called police and paramedics. Mrs. Phillips was dead when police arrived.

The evidence showed that Mrs. Phillips had been raped, beaten about the head, strangled, and shot in the chest. Semen taken from the victim's vagina matched Slaton's blood type. Slaton was arrested the day after the murder. While being interrogated by police, he gave a statement in which he confessed to shooting Mrs. Phillips during a scuffle over a gun.

I

Slaton argues that in charging the jury during the guilt phase of his trial, the trial court improperly informed the jury that it was getting only a portion of Slaton's statement because there were some inadmissible matters contained in the statement. Therefore, he says, his conviction is due to be reversed. We disagree.

Slaton's trial counsel did not object to the charge. In death penalty cases, failure to object does not preclude appellate courts from reviewing the issue under the plain error doctrine.

"In considering what constitutes 'plain error' in a capital case, the Alabama Supreme Court has looked to the federal court's interpretation of what is 'plain error.' See Ex parte Harrell, 470 So. 2d 1309 (Ala. 1985); Ex parte Womack, 435 So.2d 766 (Ala. 1983), cert. denied, 464 U.S. 986, 104 S.Ct. 436, 78 L.Ed. 2d 367 (1983).

"In United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed. 2d 1 (1985), the Supreme Court stated that the plain error doctrine should be used to correct only 'particularly egregious errors' . . . which are those errors that 'seriously affect the fairness, integrity or public reputation of judicial proceedings' . . . . The plain error rule should be applied 'solely in those circumstances in which a miscarriage of Justice would otherwise result.' Young, (supra) , 105 S.Ct. at 1047.

"Furthermore, the court noted that the plain error doctrine requires that the 'claimed error not only seriously affects "substantial rights" [of the defendant], but that it had an unfair prejudicial impact on the jury's deliberations. Only then would [a] court be able to conclude that the error undermined the fairness of the trial and contributed to a miscarriage of Justice.' Young, (supra) , 105 S.Ct. at 1047, n. 14."

Dill v. State, 600 So. 2d 343, 351 (Ala. Crim. App. 1991), aff'd, 600 So. 2d 372 (Ala. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1293, 122 L.Ed. 2d 684 (1993); see also, Hooks v. State, 534 So. 2d 329 (Ala. Crim. App. 1987), aff'd, 534 So. 2d 371 (Ala. 1988), cert. denied, 488 U.S. 1050, 109 S.Ct. 883, 102 L.Ed. 2d 1005 (1989). See also, Kuenzel v. State, 577 So.2d 474 (Ala. Crim. App. 1990), aff'd 577 So. 2d 531 (Ala. 1991), cert. denied ___ U.S. ___, 112 S.Ct. 242, 116, L.Ed. 2d 197 (1991); Ex parte Hinton, 548 So. 2d 562, 568 (Ala.) cert. denied, 493 U.S. 969, 110 S.Ct. 419, 107 L.Ed. 2d 383 (1989).

During the trial of this case, portions of a transcript of Slaton's taped confession were read by one of the policemen who took the statement. Those portions were referred to by page number. The statement itself was never admitted into evidence. During its charge to the jury, the trial court gave the following instruction:

"The defendant's statement herein was not admitted nor offered in bulk because there were some inadmissible matters contained in the statement that could not come before you for your consideration. The reason that it was not offered or admitted in bulk was for that reason."

Alabama law precludes a prosecutor from intimating to the jury that there is other evidence he would have introduced were it not for evidentiary rules. Ex parte Washington, 507 So. 2d 1360 (Ala. 1986). However, case law is silent as to whether the trial court, in its instructions to the jury, can mention that there is evidence the jury has not heard. In a noncapital case, this court has held, "Each case of allegedly improper remarks by a trial Judge must be Judged on its own peculiar facts." Dooley v. State, 575 So. 2d 1191, 1194 (Ala. Crim. App. 1990); McNeely v. State, 524 So. 2d 375 (Ala. Crim. App. 1986), (quoting Oglen v. State, 440 So. 2d 1172, 1175-76 (Ala. Crim. App.), cert. denied, 440 So. 2d 1177 (Ala. 1983)). "While a particular remark by the trial Judge may be open to question, in order for it to amount to grossly improper error requiring reversal, it must have influenced the result of the case." Thompson v. State, 503 So. 2d 871, 879 (Ala. Crim. App. 1986), aff'd, 503 So. 2d 887 (Ala. 1987), cert. denied, 108 S.Ct. 204, 484 U.S. 872, 98 L.Ed. 2d 155, reh'g denied, 108 S.Ct. 471, 484 U.S. 971, 98 L.Ed. 2d 410.

In this case, Slaton's statements regarding the rape, beating, strangling, and shooting were brought out in testimony. We find it hard to imagine that the jury would believe something even more prejudicial was being held from them. Also, because page numbers were referred to when the officer testified about the appellant's confession, the jury already was aware that it had not heard the entire statement. The trial court's jury charge was simply an explanation to the jury as to why it was not going to see the statement, and further served to clarify why the jury had not heard the whole statement. The trial court's jury instruction does not rise to the level of plain error requiring reversal.

II

Slaton next contends police continued to question him after he invoked his right to remain silent, violating his rights under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). Testimony from the statement allegedly made in violation of his rights was used at trial, and, therefore, Slaton argues, his conviction and death sentence should be reversed. We disagree.

Slaton was arrested the day after Mrs. Phillips's murder. He was taken to the Albertville Police Department, where one of two detectives interrogating him read him his Miranda warnings from an Alabama juvenile warning form. Slaton then signed the form, waiving both his right to remain silent and his right to have counsel present. When the detectives began their questioning, Slaton started crying. At trial, but out of the presence of the jury, Slaton said that when he was at the police station he was scared because, "they were police officers and they had come and arrested me. I didn't know what to think or what to do." During his interrogation, Slaton described to the police how he was in the yard shooting at birds when Mrs. Phillips pointed a gun at him and made him come into her home, where they talked a short while. One of the detectives asked, "Then what happened?" Slaton, who had begun crying again, responded, "Oh God, I don't feel like going through all this." The other detective then asked, "Did she have a gun on you at that time?" Slaton said, "Yes," and questioning continued.

Slaton contends that when he said he did not "feel like going through all this," he was invoking his right to remain silent. The police should have stopped questioning him then, he says, or at least asked for clarification on whether he was invoking his right to remain silent. The United States Supreme Court has held that police officers must inform people of their constitutional rights before beginning custodial interrogations. Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). Included in the right to remain silent is a right to cut off questioning. Miranda, 384 U.S. at 474. When a defendant invokes his right to remain silent, that request must be "scrupulously honored." Michigan v. Mosley, 423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321 (1975).

This court recently stated that whether someone has invoked his right to remain silent is determined on a case-by-case basis.

"Whether there was a waiver of the right to remain silent and the right to counsel and whether the confession was knowingly, voluntarily, and intelligently made must be decided from the particular facts and circumstances of each case, including the background, experience, and conduct of the accused --the totality of the circumstances."

Holmes v. State, 598 So. 2d 24, 26 (Ala. Crim. App. 1992); see also Thomas v. State, 373 So. 2d 1167 (Ala. 1979), vacated on other grounds, 448 U.S. 903, 100 S.Ct. 3043, 65 L.Ed. 2d 1133 (1980); Magwood v. State, 494 So. 2d 124 (Ala. Crim. App. 1985), aff'd, 494 So. 2d 154 (Ala.), cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed. 2d 599 (1986).

In this case, the police were questioning an admittedly scared 17-year-old who had just been arrested for murder and rape. He was visibly upset but had given no indication that he did not want to cooperate with the detectives and appeared to be readily responding to their questions. We are not persuaded that Slaton's response, "Oh God, I don't feel like going through all this," was an unequivocal invocation of his right to remain silent. It does not strike us as any kind of conscious request that he be allowed to remain silent. Instead, Slaton's comment seems a natural outburst borne of the fear and anxiety created by the circumstances in which he found himself. Therefore, we hold that Slaton's statement was not an invocation of his right to remain silent, that his Miranda rights were not violated, and that his statement was properly used at trial.

III

Slaton also argues that the trial court committed reversible error when it failed to instruct the jury that it could reject Slaton's confession if it found it was not made voluntarily. Therefore, Slaton contends, his conviction is due to be reversed. Again, we disagree.

The record shows the trial Judge gave the following instruction to the jury:

"With regard to the alleged statement of the defendant, you may consider all of the facts and circumstances surrounding the taking of the alleged statement in determining the weight and credibility, if any, which you give to the alleged statement.

"In exercising your exclusive prerogative of determining the credibility of evidence or the weight to which the evidence is properly entitled, the jury shall consider the circumstances under which the alleged statement was obtained and the appliances by which it was supposedly elicited, including the situation and mutual relations of the parties."

Slaton did not object to the jury instruction. In capital cases, failure to object does not preclude review of the issue by the appellate courts. However, such failure weighs against any claim of prejudice. Dill v. State, 600 So. 2d 343 (Ala. Crim. App. 1991), aff'd, 600 So. 2d 372 (Ala. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1293, 122 L.Ed. 2d 684 (1993); Kuenzel v. State, 577 So. 2d 474 (Ala. Crim. App. 1990), aff'd, 577 So. 2d 531 (Ala. 1991), cert. denied ___ U.S. ___, 112 S.Ct. 242, 116, L.Ed. 2d 197 (1991). "Plain error is error which, when examined in the context of the entire case, is so obvious that failure to notice it would seriously affect the fairness, integrity, and public reputation of the judicial proceedings." United States v. Butler, 792 F.2d 1528, 1535 (11th Cir.), cert. denied, Waites v. United States, 479 U.S. 933, 107 S.Ct. 407, 93 L.Ed. 2d 359 (1986).

Slaton argues that the trial court's jury instruction did not make clear that before the jury could consider his statement as evidence, it had to determine whether it was given voluntarily. That argument, however, is contrary to the law. "Separate triers of fact must determine the voluntariness of a confession for purposes of admissibility on the one hand and the credibility of a confession on the other hand, with voluntariness being a factor permissibly considered as bearing on credibility." Ex parte Shula, 465 So. 2d 452, 454 (Ala. 1985), citing Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed. 2d 908 (1964). Whether a confession is voluntary is initially to be determined by the trial court. Ex parte Bankhead, 585 So. 2d 112 (Ala. 1991); Ex parte Singleton, 465 So. 2d 443 (Ala. 1985). "Thereafter, the voluntariness, as affecting the credibility and weight to be given any statement that an accused has made, is a determination for the jury." Id.

In the case before us, the trial court instructed the jury to consider all the circumstances surrounding the taking of Slaton's statement in determining how much weight and credibility, if any, to give the statement. The trial court went on to tell the jury that in exercising its "exclusive prerogative" of determining the weight and credibility of the statement, it was to take into account the circumstances surrounding the statement and the parties' relationship to one another.

It is not the jury's duty to determine the voluntariness of the statement before considering it as evidence, as Slaton argues in his brief. We hold the instruction given the jury regarding Slaton's statement is a correct statement of the law, and therefore not plain error requiring reversal.

IV

Slaton also contends that the trial court erred in admitting testimony from a transcript of an unauthenticated tape recording of his alleged confession. At trial, one of the detectives who questioned Slaton the night of his arrest testified as to Slaton's statement. The record shows that he testified both from his memory and after referring to a transcript made from an audio tape of the statement. At times, the State would ask specific questions from the transcript, and the detective would read Slaton's response. Neither the tape recording nor the transcript, in whole or in part, were offered into evidence. Slaton argues that because the tape recording was not authenticated, the testimony from the transcript was not properly admitted into evidence.

At trial, Slaton did not object to the State's use of the statement in this manner. As noted above, in capital cases, failure to object does not preclude review of the issue by an appellate court. However, such failure weighs against any claim of prejudice. Dill v. State, 600 So. 2d 343 (Ala. Crim. App. 1991), aff'd, 600 So. 2d 372 (Ala. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1293, 122 L.Ed. 2d 684 (1993); Kuenzel v. State, 577 So. 2d 474 (Ala. Crim. App. 1990), aff'd, 577 So. 2d 531 (Ala. 1991), cert. denied ___ U.S. ___, 112 S.Ct. 242, 116, L.Ed. 2d 197 (1991). "Plain error is error which, when examined in the context of the entire case, is so obvious that failure to notice it would seriously affect the fairness, integrity, and public reputation of the judicial proceedings." United States v. Butler, 792 F.2d 1528, 1535 (11th Cir.), cert. denied, Waites v. United States, 479 U.S. 933, 107 S.Ct. 407, 93 L.Ed. 2d 359 (1986).

We fail to find plain error as to this issue. Because neither the tape recording nor the transcript were admitted into evidence, no foundation was required. The witness who read portions of the transcript at trial was one of the detectives who questioned the appellant and was present during the entire interrogation; therefore, he had firsthand knowledge as to all that he testified. The witness was able to testify to what Slaton said in response to questions by both detectives because admissions of the defendant are admissible. McLaney v. City of Montgomery, 570 So. 2d 881 (Ala. Crim. App. 1990).

The detective also testified regarding the taping of the session during which Slaton was questioned, as well as regarding having a transcript of the tape. The detective first testified about the statement from his own recollection, then read portions of the transcript. The trial court's admission of testimony from the transcript does not rise to the level of plain error requiring reversal.

V

Slaton next contends his constitutional rights were violated because the prosecutor improperly commented on his failure to testify. According to the record, in his final closing argument, the prosecutor told the jury:

"The defense has paraded five or six or seven people into the witness stand and they have testified and they have testified about a conition called intermittent explosive disorder.

It's a condition that is listed in this book that they call the bible of diagnostic care for mental patients, diagnosing mental disorders. . . .

"Yesterday, Dr. Nagi testified, and he said that it was so controversial and so unaccepted that it will not even appear in DSM-IV. That's this condition that they want you to accept, buy, come back with a verdict of this defendant not only has, but had, and that it was manifesting itself at the exact moment of this crime. Because, you see, a mental condition, a mental defect in and of itself is not enough, ladies and gentlemen. But there must be proof to you, to you as a jury, that the mental defect was being applied or was in effect or was manifesting itself at the time of the crime.

"The court will charge you on the law regarding mental defect or disease. And one of the things that the law says is that if a person has lucid periods then it must be proven that he is not in one of those lucid periods when the crime happens.

And I ask you to just for a moment--disregard for a moment all the psychiatric, the psychologist and social worker testimony that you've heard, and tell me one shred of evidence that you've heard that Nathan Slaton, at the time Mrs. Phillips was raped and murdered, was suffering from any type of mental disease or defect, and that that caused him to do this without the appreciation of the criminality of it.

"Oh, I know--I know that some of their witnesses have gotten on the witness stand and said, well, hypothetically, if a person had intermittent explosive disorder, and hypothetically if while having that condition they had one of these explosions, would they be able to appreciate the criminality of the act during that explosion? And two or three of the doctors have said they would not, they would not be able to control themselves.

"I know that evidence is out there. That is a supposition that if they had it, number one, and that if it was manifesting itself in the form of one of these explosions, number two, that they would not at the time of that manifestation be able to control themselves. But what evidence is out there, ladies and gentlemen, that on May the 28th of 1987, between 9:00 and 9:30 in the morning that Nathan Slaton had one of those explosions?"

Slaton argues that because the evidence was uncontroverted that he and the victim were the only two people present at the time of the murder, only he could testify as to what happened in that half hour, providing the necessary evidence of "one of those explosions." Therefore, Slaton says, the prosecutor improperly commented on his failure to testify. We disagree.

"Every time a prosecutor stresses a failure to present testimony, the facts and circumstances must be closely examined to see whether the defendant's right to remain silent has been violated." Windsor v. State, 593 So.2d 87, 91 (Ala. Crim. App. 1991), quoting Padgett v. State, 45 Ala. App. 56, 223 So. 2d 597, 602 (1969), cert. denied, 284 Ala. 732, 223 So. 2d 603 (1969).

"In a case where there has been only an indirect reference to a defendant's failure to testify, in order for the comment to constitute reversible error there must be a close identification of the defendant as the person who did not become a witness." Witherspoon v. State, 596 So. 2d 617, 619 (Ala. Crim. App. 1991), and Windsor, (supra) , both quoting Ex parte Williams, 461 So. 2d 852 (Ala. 1984); and United States v. Norton, 867 F.2d 1354, 1364 (11th Cir.), cert. denied, 493 U.S. 871, 110 S.Ct. 200, 107 L.Ed. 2d 154 (1989). As this court said in Windsor, a key determination is whether only the defendant could have provided the missing evidence.

In this case, the prosecutor's argument, taken in context, does not seem to us to be an indirect reference to Slaton's failure to testify, nor is Slaton closely identified as the witness who failed to testify. At trial, experts testified as to how, after explosive behavior, there is a long period of sleep, or sleepiness. However, the record shows that when police were at the crime scene the morning of the murder, Slaton was in his yard watching what was going on. He also told police he did laundry that morning. Slaton's statement to police is a coherent, chronological version of what he says happened, and there is no indication of blackouts or any other sign that he was suffering from the symptoms of intermittent explosive disorder as suggested by defense experts. In short, the prosecutor's statement asking the jury to think of what evidence there was to show Slaton had experienced an explosive situation was simply a way of pointing out that all of the evidence tended to show that Slaton was not suffering from a mental disease or defect at the time of the murder, despite the testimony of the defense's expert witnesses.

It is a stretch to say the prosecutor's argument is a comment on Slaton's failure to testify or on anyone else's failure to testify. Rather, the prosecutor's argument is better understood as a comment that the evidence before the jury failed to back up the experts' claims of possible mental disease or defect. Therefore, we hold that the trial court did not commit reversible error when it allowed the prosecutor's statement to stand.

VI

Slaton next contends the trial court committed reversible error by allowing the State's expert witnesses to testify as to their opinions of Slaton's mental condition based on hospital records not admitted into evidence.

The traditional rule in Alabama regarding expert testimony used to be that expert testimony based on the Conclusions or opinions of others was not admissible. See Chinevere v. Cullman County, 503 So. 2d 841 (Ala. 1987). However, the Alabama Supreme Court modified that rule, allowing a medical expert to give his opinion based in part on the opinions of others. Nash v. Cosby, 574 So. 2d. 700 (Ala. 1990). In Ex parte Wesley, 575 So. 2d 127, 129 (Ala. 1990), the Supreme Court clarified its holding in Nash and held that the information upon which an expert relies still must be in evidence. Most recently, in T.G.S. v. D.L.S., 608 So. 2d 743 (Ala. Civ. App. 1992), the Court of Civil Appeals quoted a special concurrence by Justice Houston regarding the Supreme Court's current position as to the admissibility of opinion testimony from expert witnesses:

"'It is my understanding that an expert witness may give opinion testimony based upon facts of which he has personal knowledge; based upon opinions of others, if these are opinions of a type customarily relied upon by the expert in the practice of his profession; or based upon facts that are assumed in a hypothetical question. In any event, the facts known to the expert, the opinions of others of a type customarily relied upon by the expert in the practice of his profession, and the hypothesized facts must all be facts in evidence.' W.S. v. T.W., 585 So. 2d 26 (Ala. 1991) (Houston, J., Concurring)."

T.G.S. v. D.L.S., 608 So. 2d 743 (Ala. Civ. App. 1992).

In his brief to this court, Slaton argues that two experts who testified as rebuttal witnesses for the state should not have been able to testify as to their opinions of Slaton's mental condition at the time of the crime because, he says, they relied on facts not admitted into evidence when giving their opinions. We disagree.

The first expert used by the state to rebut evidence that Slaton had a mental disease or defect, Dr. Wilburn Rivenbark, testified that he had administered a psychological test to Slaton. The record shows that the witness explained how the test was administered. He then said that scored the test, and he explained how scoring was done. The expert then testified generally about Slaton's test results. Finally, he gave his opinion as to what those results meant. Because the expert did not give his opinion on whether Slaton had a mental disease or defect until after he had testified about how the test was administered and scored and about the test results, we believe the opinion was based on facts already in evidence, as required. Therefore, the trial court did not err in allowing Dr. Rivenbark to give opinion testimony.

The second expert called by the state to rebut testimony of mental disease or defect, Dr. Kamal Nagi, relied on several factors in reaching his diagnosis, including a personal history and personal interview with Slaton; Slaton's behavior during hospitalization as recorded by a team of people working with Dr. Nagi, including a social worker, therapist, psychologist, nurse and psychiatrist; and psychological testing. This testimony was not objected to by Slaton's trial counsel. While failure to object does not preclude review of the issue by the appellate courts, such failure weighs against any claim of prejudice. Dill, 600 So. 2d at 351. In reviewing the issue, we apply the plain error doctrine, which should be used to correct only "particularly egregious errors." Id. The plain error rule should be applied "solely in those circumstances in which a miscarriage of Justice would otherwise result." Id.

As to the psychological test relied on by Dr. Nagi in forming his opinion, because Dr. Rivenbark testified regarding the psychological test before Dr. Nagi testified, facts surrounding the test were already in evidence and could serve as a proper basis for allowing Dr. Nagi's opinion testimony. Dr. Nagi said he also relied upon a personal interview with Slaton in reaching his diagnosis. According to Dr. Nagi's testimony, the interview lasted between four to five hours. In the record, Dr. Nagi's testimony appears disjointed and often unresponsive, but eventually he explains enough about the facts he gathered from the interview--not only from what Slaton told him, including a social history, but also his observations of Slaton--so that the facts surrounding the personal interview and the social history are in evidence and can properly serve as a basis for Dr. Nagi's opinion testimony.

Less clear, however, is whether Dr. Nagi's testimony was proper insofar as his reliance upon notes and records kept by the team of people who worked with Slaton, as well as his reliance on other psychological tests administered to Slaton. Since Nash, expert witnesses may rely on the opinions of others, if those opinions are customarily relied upon by professionals in the field and if they are in evidence. However, the record shows that in this case, the substance of those records and tests were never testified to, nor were they admitted into evidence. As stated above, however, Slaton's trial counsel never objected to Dr. Nagi's opinion testimony.

While failure to object does not preclude review of the issue by the appellate courts, such failure weighs against any claim of prejudice. Dill, 600 So. 2d at 351. We do not believe Dr. Nagi's opinion testimony was a "particularly egregious error" requiring reversal under the plain error doctrine. The plain error rule requires reversal only when not to do so would be a miscarriage of Justice. Dr. Nagi testified as to what he considered in making his diagnosis as well as how he arrived at his diagnosis. Defense attorneys were allowed to cross- examine him thoroughly. Two other expert witnesses were called by the State to rebut defense experts, so the jury did not have to rely solely on Dr. Nagi's testimony. We hold that allowing Dr. Nagi to give opinion testimony in this case does not rise to the level of plain error requiring reversal.

VII

Slaton also maintains that during closing arguments, the district attorney misstated the evidence in this case, resulting in reversible error. This argument is without merit. Slaton alleges that in the rebuttal portion of the prosecutor's closing argument, the prosecutor misstated the evidence on a number of issues concerning the testimony of defense experts. The prosecutor failed to distinguish between the admitting diagnosis and the discharge diagnosis made by the psychiatric center relied upon by the defense, Slaton says. Also, he contends that the prosecutor misrepresented the evidence relating to how the diagnosis was reached and impeached the experts by asserting that "Slaton had not received any medication while in jail, yet had manifested no mental health difficulties during that time." (Appellant's brief at 41.) At trial, Slaton's attorney objected to this assertion after the prosecutor finished his closing argument, saying it was based on facts not in evidence. He refused a curative instruction on the issue, however. Slaton also maintains that the district attorney incorrectly asserted that the disorder Slaton was diagnosed as having was no longer accepted among mental health care professionals.

The law is clear that in closing arguments, attorneys may comment on evidence and draw any reasonable inferences from the evidence. "Whatever is in evidence is considered subject to legitimate comment by counsel." Bamberg v. State, 611 So. 2d 450, 453 (Ala. Crim. App. 1992) (quoting Williams v. State, 601 So. 2d 1062 (Ala. Crim. App. 1991). Prosecutors may argue any legitimate inferences that may be drawn from the evidence. Bamberg v. State 611 So. 2d at 453. Prosecutors may also argue any legitimate replies to arguments put forward by the defense. See Haney v. State, 603 So. 2d 368 (Ala. Crim. App. 1991), aff'd 603 So. 2d 412 (Ala. 1992), cert. denied, ___ U.S. ___, 113 S. Ct. 1297, 122 L.Ed. 2d 687 (1993). "Liberal rules must be allowed counsel in drawing inferences from the evidence in his argument to the jury." Adams v. State, 587 So. 2d 1265 (Ala. Crim. App. 1991).

After a careful review of the record, we find that most of the statements complained of by Slaton were merely the prosecutor's replies to the closing arguments of Slaton's defense attorneys. The district attorney certainly was entitled to compare the diagnosis made by the defense experts with the diagnosis made by the State's experts. He also was permitted to characterize the evidence so as to defend the way the State's experts reached their diagnosis and to criticize the way the defense experts reached their diagnosis. The district attorney merely drew inferences from the evidence and characterized the evidence in a manner with which Slaton's attorneys disagree.

On the other hand, the district attorney's statement that Slaton had not been on medication in the jail does appear to be based on facts not in evidence, as Slaton's attorney argued at trial. However, after objecting to the statement, defense attorneys as a strategy decision refused a curative instruction, saying a curative instruction would only serve to reinforce the comment. Furthermore, the trial court instructed the jury that the arguments of the attorneys were not evidence in the case.

When a defense attorney chooses to "refuse any corrective instructions, appellant may be said to have waived his original objection. ' defendant cannot by his own voluntary conduct invite error and then seek to profit thereby.'" Collins v. State, 385 So. 2d 993, 1002 (Ala. Crim. App. 1979), rev'd on other grounds, 385 So. 2d 1005 (Ala. 1980); see, also, Ex parte Thomas, 625 So. 2d 1156, 1158 (Ala. 1993) (and cases cited therein). Because defense counsel refused a curative instruction, and because the trial court instructed the jury that what the attorneys ...


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