STUART, Justice.
Wakilii Brown was convicted of three counts of capital murder: the murders of Dotty Jemison and Cherea Jemison by one act or pursuant to one scheme or course of conduct, see § 13A-5-40(a)(10), Ala.Code 1975; the murder of Dotty Jemison during the commission of a first-degree robbery, see § 13A-5-40(a)(2), Ala.Code 1975; and the murder of Cherea Jemison during the commission of a first-degree robbery, see § 13A-5-40(a)(2), Ala.Code 1975. The jury, by vote of 10-2, recommended that Brown be sentenced to death. The trial court agreed with the jury's recommendation and sentenced Brown to death. On appeal, the Court of Criminal Appeals affirmed Brown's convictions and sentence. Brown v. State, [Ms. CR-07-1332, June 25, 2010] 74 So.3d 984 (Ala.Crim.App.2010). Brown petitioned this Court for certiorari review of the decision of the Court of Criminal Appeals. We granted the writ to address the procedures for determining the admissibility of the testimony of a child witness and to review Brown's allegations of the improper admission of the testimony of a child witness, of prosecutorial misconduct, and of error in the trial court's jury instructions. We affirm.
Our resolution of the issues presented by Brown's certiorari petition does not require an examination of the sufficiency of the evidence to sustain Brown's convictions and sentence. The Court of Criminal Appeals provides a thorough recitation of the facts surrounding the offenses in Brown v. State, supra.
Brown did not object at trial to the incidents of which he now complains; therefore, our review is for plain error.
Ex parte Billups, [Ms. 1090554, December 30, 2010] ___ So.3d ___, ___ (Ala.2010). Additionally, Rule 45A, Ala. R.App. P., provides:
Brown contends that Alabama courts have not squarely discussed the procedures necessary to address the substantial risk of prejudice presented by the admission of testimony from a child witness. First, Brown contends that this Court should adopt a per se rule that, when a trial court examines a child witness to determine the child's understanding of the duty to testify truthfully, the examination must be conducted outside the presence of the jury. Second, Brown maintains that a trial court, in addition to determining whether a child witness understands the duty to testify truthfully, must also determine whether the child's testimony is reliable. Additionally, Brown argues that the trial court erred in his case in conducting the voir dire of the child witness in the presence of the jury and then in admitting her testimony.
Brown urges this Court to adopt a per se rule requiring that a trial court's examination of a child witness to determine whether the child understands the duty to testify truthfully must occur outside the presence of the jury. Rule 603, Ala. R. Evid., provides:
According to Brown, the trial court's examination of the child witness should occur outside the presence of the jury to prevent the trial court from invading the jury's exclusive role of determining the credibility of the witness. The Nebraska Supreme Court, when confronted with this issue, stated:
Nebraska v. Fleming, 280 Neb. 967, 975, 792 N.W.2d 147, 155-56 (2010) (footnotes omitted).
Like the Nebraska Supreme Court, we decline to establish a per se rule requiring a trial court's examination of a child witness to determine the child's understanding of the duty to testify truthfully to be conducted outside the presence of the jury. Although it may be the better practice to conduct such an examination outside the presence of the jury to avoid a risk of invading the province of the jury with regard to determining the credibility of a child witness, the fact that the examination occurs in the presence of the jury
In this case, Brown contends that he was prejudiced when the trial court examined T.S., the child witness, to determine her understanding of her duty to testify truthfully in the presence of the jury because, he says, "the trial court improperly invaded the province of the jury and bolstered T.S.'s credibility." The record establishes that, at the close of the examination, the trial court asked T.S., "If I permit you to testify, will you tell the truth?" After T.S. responded "yes, sir," and neither the State nor Brown objected, the trial court administered the oath to T.S. and admitted her testimony. According to Brown, "[t]his exchange conveyed to the jury in unequivocal fashion that the trial court believed that [T.S.] would tell the truth." (Brown's brief, at p. 43.) Because there was no objection on this basis at trial, we review Brown's argument for plain error.
Initially, we note that the trial court's examination of T.S. adequately established that she understood her role as a witness at a trial and understood that the court expected her to tell the truth when she testified. See Rule 603, Ala. R. Evid. At the conclusion of the examination, the trial court did not make an affirmative, explicit finding that T.S. would testify truthfully; instead, after administering the oath, it simply allowed the State to begin its direct examination. Additionally, when instructing the jury, the trial court stated:
(Emphasis added.)
The record does not establish that the trial court committed plain error when it conducted its examination of T.S. in the presence of the jury to determine whether she understood her duty to testify truthfully. The trial court did not make an affirmative, explicit finding that T.S. would testify truthfully; it simply allowed counsel to begin direct examination after its examination of T.S. Nor did the trial court state before the jury that it believed that T.S. would tell the truth. Cf. People v. Rush, 250 Ill.App.3d 530, 535-36, 190 Ill.Dec. 1, 620 N.E.2d 1262, 1266 (1993) (holding that a new trial was necessary because the trial court invaded the province of the jury when in the presence of the jury the trial court stated, "I know you were telling the truth"). In this case, neither the trial court's words nor its actions created the impression that it found T.S.'s testimony credible. Therefore, we cannot conclude that the trial court bolstered T.S.'s credibility.
Moreover, the jury was instructed that it was the sole judge of the credibility of the witnesses, as well as the weight and effect to give the witnesses' testimony. None of the trial court's statements during its examination of T.S. can be considered "`calculated to control the jury in its consideration of the weight to be given to testimony.'" Dixon v. State, 448 So.2d 457, 459 (Ala.Crim.App.1984) (quoting Richardson v. State, 403 So.2d 293, 295 (Ala.Crim.App.1981)). Hence, we cannot conclude that, when the trial court conducted its examination of T.S. in the presence of the jury, the trial court invaded the province of the jury and that Brown was prejudiced. For these reasons, we conclude that plain error did not occur when the trial court examined T.S. in the presence of the jury to determine that she understood her duty to testify truthfully.
As a part of this issue, Brown contends that, by calling T.S. "sweetheart" and allowing her to testify after she indicated that she would tell the truth, the trial court signaled to the jury that it favored T.S. and conveyed to the jury that it believed T.S. was a credible witness. After reviewing the exchange between T.S. and the trial court, we conclude that Brown is overreading the trial court's words and actions. We agree with the Court of Criminal Appeals that a fairer assessment of the trial court's words and actions is that the trial court was trying to ease T.S.'s nerves. Indeed, Brown's counsel complimented T.S.'s attire and referred to her as "hon." The record clearly shows that the trial court and counsel for both sides were trying to ease T.S.'s nerves when she was testifying; common sense dictates that a jury would recognize that fact.
Brown also urges this Court to require that a trial court, when determining a child witness's understanding of the duty to testify truthfully, also determine the reliability of the child witness's testimony.
(Emphasis added.)
The effect of the adoption of Rule 601, Ala. R. Evid., has been explained as follows:
Joseph A. Colquitt & Charles W. Gamble, From Incompetency to Weight and Credibility: The Next Step in an Historic Trend, 47 Ala. L.Rev. 145, 172-73 (Fall 1995) (footnotes omitted).
Thus, the adoption of Rule 601, Ala. R. Evid., created in essence a presumption of competency for every witness, and it is the burden of the opponent to challenge the admissibility of the witness's testimony on grounds other than Rule 601, Ala. R. Evid. See, e.g., Rule 602, Ala. R. Evid., and Rule 403, Ala. R. Evid.
Brown recognizes that under Rule 601, Ala. R. Evid., all witnesses, including children, are competent to testify. He further recognizes the trial court's duty to determine a child witness's ability to tell the truth. See Rule 603, Ala. R. Evid. Brown maintains, however, that, in addition to determining whether a child witness understands his or her responsibility to tell the truth when testifying, the trial court should also determine the reliability of the child witness's testimony. Brown reasons that, because of a child's age, the child witness may be unable to "truly register" the occurrence he or she observed or the child's memory may have eroded over time, may be distorted or a false creation, or may have been influenced by the suggestion of adults. According to Brown, because the child witness believes his or her testimony to be true, despite its being the result of imagination, distortion, or suggestion, the admission of the child witness's testimony without an examination to determine its reliability presents a substantial risk that the testimony will unfairly prejudice the defendant and will mislead the jury.
We decline Brown's invitation to require a trial court to conduct an examination to determine the reliability of a child witness's testimony. The concerns raised by Brown regarding a child witness's testimony are adequately addressed by our Rules of Evidence. Rule 602, Ala. R. Evid., provides that a witness's testimony may be excluded if the witness lacks personal knowledge of the matter. Rule 403, Ala. R. Evid., provides that testimony may be held inadmissible if the probative value of the testimony is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury. If a party has concerns about the reliability
In this case, Brown contends that plain error occurred in the admission of T.S.'s testimony because, he says, she lacked personal knowledge of Cherea's death, see Rule 602, Ala. R. Evid., and because the probative value of her testimony was substantially outweighed by the danger of unfair prejudice and of misleading the jury. See Rule 403, Ala. R. Evid.
The record establishes that, at the time of Brown's trial, T.S., who was Cherea and Brown's daughter, was 11 years old. She testified that she was 4 years old the last time she saw Cherea. She explained that she and her brothers were sleeping in their bedroom when she was awakened by Brown and Cherea, who were "fussing". According to T.S., she looked out her bedroom door and saw Cherea "laying on her back" "in the hallway" and there was blood "on her chest." Brown was standing beside Cherea's body.
Rule 602, Ala. R. Evid., provides:
A review of T.S.'s testimony establishes that T.S. had personal knowledge of the matter as to which she testified. T.S. testified about her recollection of the house she and Cherea were living in and the last time she saw Cherea. Therefore, Brown's contention that plain error occurred in the admission of T.S.'s testimony based on her lack of personal knowledge is not supported by the record.
Brown also contends that the trial court erred in admitting T.S.'s testimony because, he says, the probative value of her testimony was substantially outweighed by the danger of unfair prejudice and of misleading the jury. Brown argues that T.S.'s memory of the event was distorted by time because the event about which she testified occurred seven years
Rule 403, Ala. R. Evid., provides that, "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. . . ."
The record does not support a conclusion that T.S.'s testimony should have been excluded pursuant to Rule 403, Ala. R. Evid. T.S.'s testimony consisted of her recollection of the last time she saw Cherea; she testified about her recollection of simple facts, providing circumstantial evidence of Brown's guilt. T.S. testified that her last memory of Cherea was Cherea lying on the hall floor with blood on her chest and Brown standing over her body; she did not testify that she saw Brown stabbing Cherea. T.S.'s testimony did not involve an exercise of contemporaneous judgment beyond the comprehension of a child, did not indicate that she was precocious, and did not provide details beyond the simple observations of a child. Indeed, nothing in the record indicates that T.S.'s memory of the event was tainted or was the product of suggestive or biased interviews. Therefore, we conclude that the probative value of T.S.'s testimony was not substantially outweighed by the danger of unfair prejudice or of misleading the jury. Consequently, the trial court did not commit plain error in admitting T.S.'s testimony. T.S.'s testimony was properly presented to the jury for the jury to determine its weight and credibility. As the Court of Criminal Appeals held, "[T.S.'s] age at the time of the murders, the length of time between the murders and the trial, and the reliability of T.S.'s memory were considerations that went to the weight of her testimony rather than its admissibility." Brown, 74 So.3d at 1006.
Brown contends that a comment made during the prosecutor's rebuttal closing argument in the guilt phase of his trial constitutes plain error. Specifically, Brown argues that the prosecutor improperly injected his personal opinion of Brown's guilt when he argued: "My vote was cast a long time ago when I charged him with what he did." According to Brown, the prosecutor's statement amounted to reversible error because, he says, the prosecutor improperly expressed his personal opinion of Brown's guilt, conveyed to the jury that his personal opinion of guilt was based on information other than the evidence presented at trial, and improperly implied that his decision to charge Brown initially was indicative of Brown's guilt.
In United States v. Young, 470 U.S. 1, 18, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the United States Supreme Court recognized the following two dangers that may occur when a prosecutor expresses his or her personal opinion concerning the guilt of the accused:
In this case, throughout the prosecutor's closing argument, he recited the evidence, argued his interpretation of the evidence, and stated his belief that the State's evidence proved beyond a reasonable doubt that Brown was guilty. Although we agree with Brown that the prosecutor's statement that his vote was cast when he charged Brown with the offenses constituted an improper expression of the prosecutor's personal opinion, we conclude that when that comment is read in the context of his entire argument it does not rise to the level of plain error. First, the comment was made during the prosecutor's recitation of the evidence that had been presented to the jury; therefore, the comment does not suggest that the prosecutor's opinion of Brown's guilt was based on evidence not presented to the jury. Thus, we cannot conclude that Brown's "right to be tried solely on the evidence presented to the jury" was jeopardized in this regard.
Moreover, the prosecutor's statement, when viewed in the context of his entire closing argument, does not lend itself to the conclusion that the jury should trust the State's assessment of the evidence rather than its own. In Quinlivan v. State, 579 So.2d 1386, 1387 (Ala.Crim.App. 1991), the Court of Criminal Appeals held that the prosecutor's argument, which included the following statements, rendered Quinlivan's trial unfair:
In concluding that reversible error had occurred, the Court of Criminal Appeals stated:
579 So.2d at 1389.
The alleged error in this case, however, does not rise to the level of reversible error in Quinlivan. Unlike the prosecutor's comments in Quinlivan, which emphasized the prosecutor's duty to prosecute the guilty, the prosecutor's statement in this case did not suggest that he, as a prosecutor, prosecuted only the guilty. Therefore, we cannot conclude that the prosecutor's comment improperly infected the jury in this regard.
The United States Supreme Court has stated that, when considering a prosecutor's closing argument, the standard is whether the argument "`so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). The argument is to be viewed in its entirety, and, to justify reversal, the argument must have resulted in substantial prejudice to the defendant. Coral v. State, 628 So.2d 954, 985 (Ala.Crim.App. 1992).
Although we do not condone the prosecutor's statement that "[his] vote was cast a long time ago when [he] charged [Brown] with what he did" because it is an
First, Brown contends that the trial court's jury instruction defining "reasonable doubt" confused and misled the jury, violating the Due Process Clause. Specifically, he argues that the Court of Criminal Appeals erred in holding that the instruction did not violate the principles in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990), and in Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994). Because Brown did not object at trial to the trial court's reasonable-doubt instruction, our review is for plain error.
To sustain a criminal conviction, the government must establish beyond a reasonable doubt every element of the offense charged. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). In Cage, the United States Supreme Court held that a trial court's instruction to the jury that "equated a reasonable doubt with a `grave uncertainty' and an `actual substantial doubt,' and stated that what was required was a `moral certainty' that the defendant was guilty" could have been interpreted by a reasonable juror "to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause." 498 U.S. at 41, 111 S.Ct. 328. In Estelle v. McGuire, 502 U.S. 62, 72 and n. 4, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), the United States Supreme Court made clear that the proper inquiry was whether there is a reasonable likelihood that the jury did apply the instruction in an unconstitutional manner, not whether it could have applied it in an unconstitutional manner. In Victor, the United States Supreme Court emphasized that "[t]he constitutional question ... is whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard." 511 U.S. at 6, 114 S.Ct. 1239. In discussing one of the jury instructions challenged in Victor, the United States Supreme Court recognized that it had stated that "`[p]roof to a "moral certainty" is an equivalent phrase with "beyond a reasonable doubt."' Fidelity Mut. Life Ass'n v. Mettler, 185 U.S. 308, 317, 22 S.Ct. 662, 46 L.Ed. 922 (1902)(approving reasonable doubt instruction cast in terms of moral certainty)." 511 U.S. at 12, 114 S.Ct. 1239. The United States Supreme Court acknowledged that historically the phrase "moral certainty" in a jury instruction meant "the highest degree of certitude based on [the] evidence" but that the term may have lost its historical meaning over time. 511 U.S. at 11, 114 S.Ct. 1239. The United States Supreme Court, however, concluded that when an instruction equated moral certainty with proof beyond a reasonable doubt the instruction satisfied the requirements of the Due Process Clause and was constitutionally sufficient. The United States Supreme Court emphasized that, although it did not condone the use of the phrase "moral certainty," if the jury was instructed that its decision was to be based on the evidence in the case, then the jury understood that moral certainty was associated with the evidence of the case and no constitutional error occurred. Additionally, the United States Supreme Court addressed the use of the phrase "substantial doubt" and emphasized
In this case, the trial court, throughout its instruction to the jury, reminded the jury consistently that its exclusive function was to decide the facts of the case. For example, the trial court instructed the jury:
With regard to the definition of "reasonable doubt," the trial court instructed the jury:
We conclude that the trial court's reasonable-doubt instruction did not lead the jury here to convict on a lesser showing than due process requires. The trial court emphasized that the jury's decision was to be based upon the evidence. The trial court defined the phrase "moral certainty" as being a synonym for "reasonable doubt" and explained that a reasonable doubt arose from the evidence in the case or the lack of evidence. Therefore, because the trial court informed the jury that its decision had to be based upon the evidence, no reasonable likelihood exists for a conclusion that the jury would have disassociated the phrase "moral certainty" from the evidence.
Additionally, there is no reasonable likelihood that the jury would have equated a reasonable doubt with a substantial doubt. The trial court made clear that the term "substantial" was used in the sense of existence, i.e., a doubt arising from the evidence or the lack of evidence. Nothing in the instruction lends itself to the conclusion that "substantial doubt" refers to the magnitude of doubt. Instead, the trial court stated, "[i]t is a doubt for which a reason can be assigned." Therefore, no reasonable likelihood exists that the jury would have interpreted the trial court's instruction as "allow[ing] a finding of guilt based on a degree of proof below that required by the Due Process Clause." 498 U.S. at 41, 111 S.Ct. 328.
Viewing the trial court's jury instruction in its entirety, we hold that the trial court did not commit plain error when instructing the jury on the concept of reasonable doubt. See Ex parte Beavers, 598 So.2d 1320, 1325 (Ala. 1992) (holding a similar reasonable-doubt instruction did not violate Cage).
A review of the trial court's instructions, however, fails to establish that plain error occurred. The trial court specifically instructed the jury that "the intent to rob and the intent to kill would have to coexist in the defendant's mind in order for the capital offense to occur." Although the trial court did not state specifically that for the jury to find Brown guilty of capital murder-robbery the taking of the property could not be a mere afterthought of the murder, the trial court's instruction adequately communicated the law by instructing the jury that the robbery had to occur "during" the course of the murder and that the intent to murder and the intent to rob had to coexist. Plain error did not occur in this regard. See Ex parte Windsor, 683 So.2d 1042, 1058-60 (Ala.1996); Reeves v. State, 807 So.2d 18, 42-44 (Ala.Crim.App. 2000); and Woods v. State, 789 So.2d 896, 932-33 (Ala.Crim.App.1999) (recognizing that although the taking of property as a mere afterthought will not support a capital-murder conviction based on an underlying robbery, the trial court does not have to use the term "mere afterthought" in its jury instructions on the robbery element of the capital murder).
Based on the foregoing, the judgment of the Court of Criminal Appeals is affirmed.
AFFIRMED.
COBB, C.J., and WOODALL, BOLIN, PARKER, and SHAW, JJ., concur.
MURDOCK, J., concurs in the result.
MAIN and WISE, JJ., recuse themselves.
