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03/03/95 ERIC LESTER STORY v. STATE

March 3, 1995

ERIC LESTER STORY, ALIAS
v.
STATE



Appeal from Jefferson Circuit Court. (CC-92-5101). Michael McCormick, TRIAL JUDGE.

As Amended. Rehearing Denied May 5, 1995. Certiorari Denied June 30, 1995. Released For Publication December 14, 1995.

Cobb, Judge. Patterson and McMillan, JJ., concur; Long, J., recuses; Taylor, P.j. Dissents with opinion. Taylor, Presiding Judge (dissenting).

The opinion of the court was delivered by: Cobb

ON RETURN TO REMAND

COBB, JUDGE

This case was originally assigned to another Judge on the Alabama Court of Criminal Appeals. It was reassigned to Judge Cobb on January 17, 1995.

AFFIRMED. NO OPINION.

Patterson and McMillan, JJ., concur; Long, J., recuses; Taylor, P.J., Dissents with opinion.

TAYLOR, PRESIDING JUDGE (dissenting)

I respectfully Dissent from the unpublished memorandum in this case.

The majority concludes that the prosecutor's statement in closing argument, "And I would certainly submit to you that everything that they told you on that stand was absolutely the truth about what happened there that day," was not a comment that vouched for the credibility of the witnesses and did not imply that there was information not before the jury that supported the witness's testimony.

Attempts by the prosecution to bolster the credibility of witnesses have been condemned by the United States Supreme Court in Berger v. United States, 295 U.S. 78, 55 S. Ct. 629, 79 L. Ed. 1314 (1935), and United States v. Young, 470 U.S. 1, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985). The United States Supreme Court in Berger stated the reasons behind this rule:

"The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that Justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

"It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations, and especially, assertions of personal knowledge are apt to ...


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