test defense in Alabama

2008So your motion for a mistrial will be denied.” (R. 791.) “ ‘[0]nce a defendant chooses not to testify at his trial the exercise of that choice is not subject to comment by the prosecution.’ Wherry v. State, 402 So.2d 1130, 1133 (Ala.Cr.App.1981). ‘In determining if a prosecutorial remark impairs the integrity of the defendant’s right not to testify the test is whether the defense can show that the remark[, given the context in which it was made,] was intended to comment on the defendant’s silence or was of such character that a jury would naturally and necessarily construe it as a comment on t

2008So your motion for a mistrial will be denied.” (R. 791.) “ ‘[0]nce a defendant chooses not to testify at his trial the exercise of that choice is not subject to comment by the prosecution.’ Wherry v. State, 402 So.2d 1130, 1133 (Ala.Cr.App.1981). ‘In determining if a prosecutorial remark impairs the integrity of the defendant’s right not to testify the test is whether the defense can show that the remark[, given the context in which it was made,] was intended to comment on the defendant’s silence or was of such character that a jury would naturally and necessarily construe it as a comment on t

2008So your motion for a mistrial will be denied.” (R. 791.) “ ‘[0]nce a defendant chooses not to testify at his trial the exercise of that choice is not subject to comment by the prosecution.’ Wherry v. State, 402 So.2d 1130, 1133 (Ala.Cr.App.1981). ‘In determining if a prosecutorial remark impairs the integrity of the defendant’s right not to testify the test is whether the defense can show that the remark[, given the context in which it was made,] was intended to comment on the defendant’s silence or was of such character that a jury would naturally and necessarily construe it as a comment on t

2005P. "`[O]nce a defendant chooses not to testify at his trial the exercise of that choice is not subject to comment by the prosecution.' Wherry v. State, 402 So.2d 1130, 1133 (Ala.Cr.App.1981). `In determining if a prosecutorial remark impairs the integrity of the defendant's right not to testify the test is whether the defense can show that the remark[, given the context in which it was made,] was intended to comment on the defendant's silence or was of such character that a jury would naturally and necessarily construe it as a comment on the defendant's silence.' United States v. LeQuire, 943

2000“In determining if a prosecuto-rial remark impairs the integrity of the defendant’s right not to testify the test is whether the defense can show that the remark[, given the context in which it was made,] was intended to comment on the defendant’s silence or was of such character that a jury would naturally and necessarily construe it as a comment on the defendant’s silence.” United States v. LeQuire, 943 F.2d 1554, 1565 (11th Cir.1991), cert. denied, 505 U.S. 1223 , 112 S.Ct. 3037 , 120 L.Ed.2d 906 (1992).’ “Ex parte Davis, 718 So.2d 1166, 1173 (Ala.1998).” Maples v. State, 758 So.2d 1, at 21

2000"In determining if a prosecutorial remark impairs the integrity of the defendant's right not to testify the test is whether the defense can show that the remark[, given the context in which it was made ,] was intended to comment on the defendant's silence or was of such character that a jury would naturally and necessarily construe it as a comment on the defendant's silence." United States v. LeQuire , 943 F.2d 1554 , 1565 (11th Cir. 1991), cert. denied, 505 U.S. 1223 , 112 S.Ct. 3037 , 120 L.Ed.2d 906 (1992).' " Ex parte Davis , 718 So.2d 1166 , 1173 (Ala. 1998)." Maples v. State , 758 So.2d

1979Biggers , 93 S.Ct. 382 ; Robinson v. State , 45 Ala. App. 236 , 228 So.2d 850 (1969).

1979Biggers , 93 S.Ct. 382 ; Robinson v. State , 45 Ala. App. 236 , 228 So.2d 850 (1969).

1979Biggers , 93 S.Ct. 382 ; Robinson v. State , 45 Ala. App. 236 , 228 So.2d 850 (1969).

1979Biggers , 93 S.Ct. 382 ; Robinson v. State , 45 Ala. App. 236 , 228 So.2d 850 (1969).

1917In line with this test is the rule that he is deemed the master who has the supreme choice, control, and direction of the servant, and whose will the servant represents, “not merely in the ultimate result of his work, but in all its details” (Lookout Mountain Iron Co. v. Lea, 144 Ala. 169 , 39 South. 1017 ; Shearman & Redfield, Law of Neg., § 160), and likewise the rule that he is an independent contractor when the service rendered represents “the will of the master only as to the result of his work, and not as to the means by which it is accomplished.” Caldwell v. A., B. & A. Ry.

1917In line with this test is the rule that he is deemed the master who has the supreme choice, control, and direction of the servant, and whose will the servant represents, “not merely in the ultimate result of his work, but in all its details” (Lookout Mountain Iron Co. v. Lea, 144 Ala. 169 , 39 South. 1017 ; Shearman & Redfield, Law of Neg., § 160), and likewise the rule that he is an independent contractor when the service rendered represents “the will of the master only as to the result of his work, and not as to the means by which it is accomplished.” Caldwell v. A., B. & A. Ry.

1937Co. v. Lea, 144 Ala. 169 , 39 So. 1017 ).’ For the person to be a servant, the other party must retain ‘the right to direct the manner in which the business shall be done, as well as the result to be accomplished, or, in other words, not only what shall be done, but how it shall be done’ (39 C.J. 35), as he has ‘a reserved control or direction of the world (Alabama Power Co. v. Bodine, 213 Ala. 627 , 105 So. 869 ). ‘Giving orders is the role of the master.’ Alabama Power Co. v. Bodine, supra.” This distinction between the relation of an independent contractor and that of a servant was recogniz

1936And as was said in the case of General Exchange Insurance Corporation v. Findlay, 219 Ala. 193 , 121 So. 710, 711 , “a clear and concise statement of such distinction is made in our case of Republic I. & S. Co. v. McLaughlin, 200 Ala. 204 , 75 So. 962 .” Basing its conclusions on the decision in the case of Republic I. & S. Co, v. McLaughlin, supra, and other cases cited in the,opinion holding to similar views, the Supreme Court said: “In line with this test is the rule that he is deemed the master who has the supreme choice, control, and direction of the servant, and whose will the. servant r

2005In judging 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, 2471 , 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 , 94 S.Ct. 1868, 1871 , 40 L.Ed.2d 431 (1974)).

2005In judging 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, 2471 , 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 , 94 S.Ct. 1868, 1871 , 40 L.Ed.2d 431 (1974)).

2005In judging 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, 2471 , 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 , 94 S.Ct. 1868, 1871 , 40 L.Ed.2d 431 (1974)).

2005In judging 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, 2471 , 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 , 94 S.Ct. 1868, 1871 , 40 L.Ed.2d 431 (1974)).

1998Additionally, we note that at trial Davis did not object to the comments he complains of here, and, therefore, that his argument must be reviewed for plain error; that is, for "those errors that *Page 1174 `seriously affect the fairness, integrity or public reputation of judicial proceedings.'" Kuenzel v. State , 577 So.2d 474 (Ala.Cr.App. 1990), affirmed, Ex parte Kuenzel , 577 So.2d 531 , cert. denied, Kuenzel v. Alabama , 502 U.S. 886 , 112 S.Ct. 242 , 116 L.Ed.2d 197 (1991) (quoting United States v. Young , 470 U.S. 1 , 105 S.Ct. 1038 , 84 L.Ed.2d 1 (1985)).

1998Additionally, we note that at trial Davis did not object to the comments he complains of here, and, therefore, that his argument must be reviewed for plain error; that is, for "those errors that *Page 1174 `seriously affect the fairness, integrity or public reputation of judicial proceedings.'" Kuenzel v. State , 577 So.2d 474 (Ala.Cr.App. 1990), affirmed, Ex parte Kuenzel , 577 So.2d 531 , cert. denied, Kuenzel v. Alabama , 502 U.S. 886 , 112 S.Ct. 242 , 116 L.Ed.2d 197 (1991) (quoting United States v. Young , 470 U.S. 1 , 105 S.Ct. 1038 , 84 L.Ed.2d 1 (1985)).

1998Additionally, we note that at trial Davis did not object to the comments he complains of here, and, therefore, that his argument must be reviewed for plain error; that is, for "those errors that *Page 1174 `seriously affect the fairness, integrity or public reputation of judicial proceedings.'" Kuenzel v. State , 577 So.2d 474 (Ala.Cr.App. 1990), affirmed, Ex parte Kuenzel , 577 So.2d 531 , cert. denied, Kuenzel v. Alabama , 502 U.S. 886 , 112 S.Ct. 242 , 116 L.Ed.2d 197 (1991) (quoting United States v. Young , 470 U.S. 1 , 105 S.Ct. 1038 , 84 L.Ed.2d 1 (1985)).

1998Additionally, we note that at trial Davis did not object to the comments he complains of here, and, therefore, that his argument must be reviewed for plain error; that is, for "those errors that *Page 1174 `seriously affect the fairness, integrity or public reputation of judicial proceedings.'" Kuenzel v. State , 577 So.2d 474 (Ala.Cr.App. 1990), affirmed, Ex parte Kuenzel , 577 So.2d 531 , cert. denied, Kuenzel v. Alabama , 502 U.S. 886 , 112 S.Ct. 242 , 116 L.Ed.2d 197 (1991) (quoting United States v. Young , 470 U.S. 1 , 105 S.Ct. 1038 , 84 L.Ed.2d 1 (1985)).

1998Additionally, we note that at trial Davis did not object to the comments he complains of here, and, therefore, that his argument must be reviewed for plain error; that is, for "those errors that *Page 1174 `seriously affect the fairness, integrity or public reputation of judicial proceedings.'" Kuenzel v. State , 577 So.2d 474 (Ala.Cr.App. 1990), affirmed, Ex parte Kuenzel , 577 So.2d 531 , cert. denied, Kuenzel v. Alabama , 502 U.S. 886 , 112 S.Ct. 242 , 116 L.Ed.2d 197 (1991) (quoting United States v. Young , 470 U.S. 1 , 105 S.Ct. 1038 , 84 L.Ed.2d 1 (1985)).

1998Additionally, we note that at trial Davis did not object to the comments he complains of here, and, therefore, that his argument must be reviewed for plain error; that is, for "those errors that *Page 1174 `seriously affect the fairness, integrity or public reputation of judicial proceedings.'" Kuenzel v. State , 577 So.2d 474 (Ala.Cr.App. 1990), affirmed, Ex parte Kuenzel , 577 So.2d 531 , cert. denied, Kuenzel v. Alabama , 502 U.S. 886 , 112 S.Ct. 242 , 116 L.Ed.2d 197 (1991) (quoting United States v. Young , 470 U.S. 1 , 105 S.Ct. 1038 , 84 L.Ed.2d 1 (1985)).

1997Dairyland , supra. The test for applying the doctrine of res judicata under Iowa law is consistent with the test applied under Alabama law.

1993Jenkins v. State , 627 So.2d 1034 (Ala.Crim.App. 1992), affirmed , 627 So.2d 1054 (Ala. 1993); Nettles *Page 124 v. State , 435 So.2d 146 (Ala.Cr.App.), affirmed , 435 So.2d 151 (Ala. 1983).

1993Jenkins v. State , 627 So.2d 1034 (Ala.Crim.App. 1992), affirmed , 627 So.2d 1054 (Ala. 1993); Nettles *Page 124 v. State , 435 So.2d 146 (Ala.Cr.App.), affirmed , 435 So.2d 151 (Ala. 1983).

1993Jenkins v. State , 627 So.2d 1034 (Ala.Crim.App. 1992), affirmed , 627 So.2d 1054 (Ala. 1993); Nettles *Page 124 v. State , 435 So.2d 146 (Ala.Cr.App.), affirmed , 435 So.2d 151 (Ala. 1983).

1993Jenkins v. State , 627 So.2d 1034 (Ala.Crim.App. 1992), affirmed , 627 So.2d 1054 (Ala. 1993); Nettles *Page 124 v. State , 435 So.2d 146 (Ala.Cr.App.), affirmed , 435 So.2d 151 (Ala. 1983).

1989For example, in Mueller v. District Court , 199 Colo. 430 , 610 P.2d 104 , 105-06 (1980), the Supreme Court of Colorado held that "the failure to make a timely objection to interrogatories or requests to produce documents did not constitute a waiver of the constitutional privilege against self-incrimination. . . .