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03/03/95 BILL BUTLER AND LINWOOD BUTLER v. STATE

March 3, 1995

BILL BUTLER AND LINWOOD BUTLER
v.
STATE



Appeal from St.Clair Circuit Court. (CC-92-95 and CC-92-99). Robert Austin, TRIAL JUDGE.

As Amended. Released for Publication August 12, 1995.

McMILLAN, Judge. All Judges concur.

The opinion of the court was delivered by: Mcmillan

McMILLAN, JUDGE

The appellants, Bill Butler and Linwood Butler, were charged in separate indictments with rape in the second degree. The cases were consolidated, because both crimes were committed as part of the same transaction.

The record indicates that, on the day of the offense, both appellants and the victim's father, were working on an automobile at Linwood Butler's house. The three men were drinking beer throughout the day. The victim's testimony indicates that Linwood Butler's two sons were also present. The victim, who was 15 years old, and her 13-year-old brother, came to Linwood Butler's house to watch television. After some time, Linwood Butler came inside the house and sat next to the victim on the couch. He began touching her breasts. The victim's father entered the room and told the victim's brother to go outside. He then took the victim into a bedroom. The victim testified that at that time the appellants, her father, and Linwood Butler's two sons were also in the bedroom. The victim's father removed her clothes and her father, the appellants, and Linwood Butler's sons all engaged in sexual relations with the victim. She testified that her father and Linwood Butler held her down as they did.

I.

The appellants argue that the trial court erred in denying their motion for a mistrial citing as grounds the prosecutor's remarks concerning the standard for the State's burden of proof. The specific statement of which the appellants complained was: "Beyond a reasonable doubt does not mean beyond all doubt. It does not mean beyond a doubt; and it certainly does not mean to give the defendant the benefit of a doubt." The State argues that the appellant is procedurally barred from raising this argument, because no objection was made to this remark when it was made; the appellants did not object to this comment until the prosecutor finished his closing argument.

In Allen v. State, 659 So. 2d 135 (Ala. Cr. App. 1994), this court held that a defendant's objection to allegedly improper comments made by a prosecutor during closing argument was untimely, where the comments were made at the close of the prosecutor's argument, and the motion for a mistrial was not made until after the trial court had given its instructions to the jury. This court stated:

"'To be timely, a motion for mistrial must be made

"immediately after the question or questions are asked that are the grounds made the basis of the motion for the mistrial." Ex parte Marek, 556 So. 2d 375, 379 (Ala. 1989). The motion is untimely if it is not made until the Conclusion of the witness's testimony. Menefee v. State, 592 So. 2d 642 (Ala. Cr. App. 1991); Robinson v. State, 584 So. 2d 533 (Ala. Cr. App.), cert.quashed, 584 So. 2d 542 (Ala. 1991).'

"' Powell v. State, 631 So. 2d 289, 292-93, n.2 (Ala. Cr. App. 1993). See also Pettway v. State, 607 So. 2d 325, 331 (Ala. Cr. App. 1992).

"'"[ Ex parte Marek, 556 So. 2d 375 (Ala. 1989),] indicates that a motion for mistrial compensates for the lack of an objection or motion to strike as long as the motion for mistrial follows immediately after the offending question." Robinson v. State, 584 So. 2d 533, 538 (Ala. Cr. App.) (emphasis in original), cert. quashed, 584 So. 2d 542 (Ala. 1991).' Covington v. State, 620 So. 2d 122, 126-27 (Ala. Cr. App. 1993).

"'Questions of the propriety of argument of counsel are largely within the trial court's discretion, McCullough v. State, 357 So. 2d 397, 399 (Ala. Cr. App. 1978), and that court has given broad discretion in determining what is permissible argument. Hurst v. State, 397 So. 2d 203, 208 (Ala. Cr. App), cert. denied, 397 So. 2d 208 (Ala. 1981). Moreover, this Court has stated that it will not reverse ...


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