October 30, 1998.
Appeal from Circuit Court, Jefferson County, No. CC-95-4747, Michael W. McCormick, J.
Bill Pryor, atty. gen., and A. Vernon Barnett IV, asst. atty. gen., for petitioner.
Bryan Stevenson and Drew Colfax of Equal Justice Initiative of Alabama, for Respondent.
The petition for the writ of certiorari is denied.
In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving the Court of Criminal Appeals' holding that it was not reversible error for the trial court to instruct the jury before the parties made their closing arguments. Rule 21.1, Ala. R. Crim. P., provides that "the court shall instruct the jury after the arguments are completed." Additionally, § 13A-5-46 (d), Ala. Code 1975, regarding the sentencing phase of death penalty cases:
"After hearing the evidence and the arguments of both parties at the sentence hearing, the jury shall be instructed on its function and on the relevant law by the trial judge. The jury shall then retire to deliberate concerning the advisory verdict it is to return."
Giving jury charges after the parties have given their closing arguments allows the trial court the opportunity to be heard last. In this present case, the last thing the jurors heard before beginning their deliberations was the prosecutor stating:
"Ladies and gentlemen, everything in this case calls out for death. I submit to you that your verdict will be based on the law. You didn't do this to this man. He put himself in that chair over there.
"You should make your determination based on [your] collective reasoning of the law, not out of some feelings of guilt or sympathy but out of your feelings of the law. And everything cries out for the death penalty in this case. I submit to you, ladies and gentlemen, all the evidence calls for it. I ask you to return a verdict of death. Thank you."
By mandating that the trial court instruct the jury after the closing arguments have been completed, the rule and the statute focus the jurors on the law and the jurors' responsibilities and allows the jurors a time to recover from the purely emotional aspects of the lawyers' arguments before beginning deliberations.
HOOPER, C.J., and ALMON, SHORES, HOUSTON, COOK, and LYONS, JJ., concur.
SEE, J., concurs in the result.