# Wilson v. State

> Court of Criminal Appeals of Alabama · November 19, 1999 · 777 So. 2d 856

URL: https://www.frixlaw.com/law-library/cases/1102857

## Case

- **Court:** Court of Criminal Appeals of Alabama
- **Decided:** November 19, 1999
- **Citations:** 777 So. 2d 856; 1999 WL 1046473
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Baschab
- **Cited by:** 87 later opinions in the Frix Law Library

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## Opinion text

777 So.2d 856 (1999)
Joseph Michael WILSON
v.
STATE.
CR-97-2569.
Court of Criminal Appeals of Alabama.
November 19, 1999.
Rehearing Denied January 7, 2000.
*874 Elissa H. Green, Huntsville, for appellant.
Bill Pryor, atty. gen., and Beth Jackson Hughes, asst. atty. gen., for appellee.
BASCHAB, Judge.
The appellant, Joseph Michael Wilson, was convicted of capital murder for the killings of Charles Lamar Hemphill, Michael A. Beaudette, Johnny Couch, and Brian Carter. The murders were made capital because the appellant committed them by one act or pursuant to one scheme or course of conduct. See § 13A-5-40(a)(10), Ala.Code 1975. He was also convicted of attempting to murder Ashley Rutherford and Michelle Hayden. See §§ 13A-6-2 and 13A-4-2, Ala.Code 1975. After a sentencing hearing, the jury recommended, by a vote of 12-0, that the appellant be sentenced to death by electrocution. The trial court accepted the jury's recommendation and sentenced the appellant to death for the capital murder conviction. It also sentenced him to serve 20 years in prison for each of the attempted murder convictions, ordering that he serve those sentences consecutively to his death sentence.
In September 1996, Michelle Hayden and Ashley Rutherford, who were engaged to be married, lived together in a room in the house in which Rutherford's aunt lived. On or about September 18, 1996, the appellant, Nicholas Acklin, and Corey Johnson *875 went to Rutherford's residence and acted like they wanted to buy some marijuana. After looking at the marijuana, the three men left. However, Johnson returned, asked to see the marijuana again, and then grabbed the marijuana and left. Shortly thereafter, Lamar Hemphill, who was visiting Rutherford, realized that his cellular telephone was missing. When he called the telephone's number, the appellant answered. Hemphill then filed a complaint with the sheriff's department, alleging that the appellant stole his cellular telephone. A few days later, the appellant discovered that a complaint had been filed against him.
On September 25, 1996, Hayden, Hemphill, and Brian Carter were watching television in Hayden and Rutherford's room while Rutherford was at work. Michael Skirchak and Johnny Couch, who were on their way to pick up Michael Beaudette, stopped to visit them. Around 10 p.m., the appellant, Acklin, and Johnson arrived, and the appellant started asking who had filed a warrant against him for taking a cellular telephone. Hemphill stated that he did not know anything about a warrant and that only a complaint had been filed. Johnson then started slapping Hemphill, Couch, Carter, and Skirchak around. Using a Jack Daniel's whiskey bottle, he hit Hemphill in the head and Carter in the mouth. He also grabbed Couch by his hair, which was long, and repeatedly slammed his head into a dresser. At one point, Johnson held Couch up by his hair, and the appellant cut Couch's hair. The appellant also repeatedly "stomped" Couch, who was lying on the floor. Sometime later, Beaudette arrived and was told to empty his pockets.
The appellant, Acklin, and Johnson were all armed with pistols. At one point, while Acklin and Johnson remained armed, the appellant laid his gun on a table and dared the others to grab it. He also held his gun to Skirchak's head and asked him about the warrant. During the evening, the appellant made some of the males take off their pants and give him their identification cards. He also made statements like "Y'all don't know who you're f_____ with. Y'all are fake. We're real." (R. 780), and "I ain't even supposed to be here. I'm the leader of this crew. I'm not even supposed to be here. I'm supposed to be at home with my wife or girlfriend." (R. 780-81.) Throughout the evening, the appellant repeatedly said, "This is my crew."
Around 11:20 or 11:30 p.m., Rutherford came home from work. The appellant, Acklin, and Johnson questioned him about the warrant and warned him not to lie to them. They made him take his pants off, and the appellant took two necklaces from him. The appellant yelled at Rutherford, slapped him, and spit in his face. He also made Hayden say "My boyfriend [Rutherford] ain't s____." Additionally, Acklin put a gun in Rutherford's mouth and made him gag.
Throughout the evening, the appellant repeatedly made comments like, "Let's buck them" and "You don't f____ with Joey's crew." Witnesses testified that "buck" meant "shoot" or "kill." One time, Hayden told the appellant to be quiet or he would wake up Rutherford's aunt. In response, the appellant said, "Well, we can take care of her too." (R. 1448.) As the violence escalated, Johnson tried to stop the appellant and Acklin, but they made fun of him. Finally, the appellant told Acklin that if Acklin would shoot the first one, he would shoot the rest of them. Shortly after that comment, Acklin grabbed Rutherford and shot him in the back of the head. The appellant then started shooting. When the shooting started, Skirchak ran out of the house and sought help. After firing 19 times, the appellant, Acklin, and Johnson left, and Rutherford and his aunt telephoned for help.
Medical personnel and law enforcement officers arrived around midnight, and Rutherford immediately identified the appellant as the perpetrator. Around 12:15 a.m., officers apprehended the appellant *876 and Johnson and found a revolver that had been used in the incident in their vehicle. Later, they found a Ruger P89, two Lorcin pistols, another revolver, and Beaudette's driver's license at Acklin's residence.
After they arrested him, the appellant made a statement to Investigator Kevin Turner about his involvement in the offense. In that statement, the appellant admitted that he, Acklin, and Johnson went to Rutherford's residence about a dispute over a cellular telephone. He stated that he had a revolver and that Acklin and Johnson also had weapons. He admitted that they slapped some of the victims and that one thing led to another and the shooting started. When the shooting started, he said he ran to his vehicle, Acklin and Johnson followed him, and they all left. He initially told Turner he did not remember who did the shooting, but then said, "[T]hat's my crew y'all got locked up out there. I'm not going to turn and rat on them." (R. 922.)
At trial, one of the appellant's friends testified that the appellant telephoned him from jail after the offense, talked about the incident, and told him to "finish the job," which he took to mean to kill the surviving witnesses. One of the appellant's cell mates testified that the appellant had bragged about his involvement in the offense. He also testified that the appellant had made statements about having friends "on the outside" who had persuaded Hayden not to testify and who could "take care of" witnesses in the cell mate's case.
Hemphill, Beaudette, Couch, Carter, Hayden, and Rutherford sustained gunshot wounds as a result of the incident. Hemphill, Beaudette, Couch, and Carter died as a result of the gunshot wounds they sustained, and Hayden and Rutherford were injured. Forensic testing revealed that Carter had been shot with a Ruger P89, and Skirchak, Hayden, and Rutherford testified that the appellant had been armed with a Ruger P89. During the penalty phase of the trial, the appellant admitted that he had been armed with a Ruger P89 and that he had shot Carter, but denied that he had shot anyone else.
The appellant raises several issues on appeal that he did not raise at trial. Although the lack of an objection at trial will not bar our review of an issue in a case involving the death penalty, it will weigh against any claim of prejudice the appellant may raise. See Ex parte Kennedy, 472 So.2d 1106 (Ala.), cert. denied, 474 U.S. 975 , 106 S.Ct. 340 , 88 L.Ed.2d 325 (1985). Rule 45A, Ala. R. App.P., provides:
"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review... whenever such error has or probably has adversely affected the substantial right of the appellant."
"[This] plain-error exception to the contemporaneous-objection rule is to be `used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.'" United States v. Young, 470 U.S. 1, 15 , 105 S.Ct. 1038, 1046 , 84 L.Ed.2d 1 (1985) (quoting United States v. Frady, 456 U.S. 152, 163 , 102 S.Ct. 1584, 1592 , 71 L.Ed.2d 816 n. 14 (1982)).
I.
The appellant's first argument is that the trial court erred in not instructing the jury on the lesser included offense of felony murder. Although he requested that the trial court instruct the jury on felony murder, he did not object when the trial court refused to do so. In fact, he agreed that an instruction on felony murder would not be appropriate. (R. 1513.)
"No party may assign as error the court's giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge, unless the party objects thereto before the jury retires to consider its verdict, stating the matter to which he or she objects and the grounds of the objection."
*877 Rule 21.3, Ala. R.Crim. P. Because the appellant did not present this claim to the trial court, we review it for plain error. See Rule 45A, Ala. R.App. P.
A person commits the crime of felony murder if:
"He commits or attempts to commit arson in the first degree, burglary in the first or second degree, escape in the first degree, kidnapping in the first degree, rape in the first degree, robbery in any degree, sodomy in the first degree or any other felony clearly dangerous to human life and, in the course of and in furtherance of the crime that he is committing or attempting to commit, or in immediate flight therefrom, he, or another participant if there be any, causes the death of any person."
§ 13A-6-2(a)(3), Ala.Code 1975. Thus, the offense of felony murder involves an intended felony and an unintended homicide. See Williams v. State, 601 So.2d 1062 (Ala. Cr.App.1991), aff'd, 662 So.2d 929 (Ala.), cert. denied, 506 U.S. 957 , 113 S.Ct. 417 , 121 L.Ed.2d 340 (1992). Finally, with regard to instructions on lesser included offenses, § 13A-1-9(b), Ala.Code 1975, provides: "The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense. " (Emphasis added.)
The appellant argues that, without an instruction on felony murder, "there was no way that the jury could reconcile convicting [him] of one intentional murder, two attempted murders, and still hold him accountable for the remaining three homicides." (Appellant's brief at p. 4.) Under his theory that he shot only one victim, if he were not found to be an accomplice, he would not be responsible for the attempted murders of Rutherford or Hayden. Continuing under that theory, there was no felony upon which to base a felony murder conviction. Therefore, his argument is flawed. Furthermore, although the appellant argues that he intentionally killed only one person, the jury found that he was responsible, as an accomplice, for killing the other three decedents. The evidence in this case was overwhelming and amply supported the jury's conclusion. Accordingly, under the facts of this case, there was no rational basis for a verdict convicting the appellant of felony murder, and the trial court's refusal to give such an instruction did not rise to the level of plain error.
II.
The appellant's second argument is that the prosecution improperly introduced evidence about his prior criminal activities. In Bush v. State, 695 So.2d 70, 85 (Ala.Cr.App.1995), aff'd, 695 So.2d 138 (Ala.), cert. denied, 522 U.S. 969 , 118 S.Ct. 418 , 139 L.Ed.2d 320 (1997), we discussed the admissibility of evidence about other crimes, explaining as follows:
"Evidence of any offense other than that specifically charged is prima facie inadmissible. Nicks v. State, 521 So.2d 1018 (Ala.Cr.App.1987), aff'd, 521 So.2d 1035 (Ala.), cert. denied, 487 U.S. 1241 , 108 S.Ct. 2916 , 101 L.Ed.2d 948 (1988). However, evidence of collateral crimes or bad acts is admissible as part of the prosecutor's case if the defendant's collateral misconduct is relevant to show his guilt other than by suggesting that he is more likely to be guilty of the charged offense because of his past misdeeds. Nicks v. State; Brewer v. State, 440 So.2d 1155 (Ala.Cr.App.1983); C. Gamble, McElroy's Alabama Evidence, § 69.01(1) (4th ed.1991). Before its probative value will be held to outweigh its potential prejudicial effect, the evidence of a collateral crime must not only be relevant, it must also be reasonably necessary to the state's case, and it must be plain and conclusive. Averette v. State, 469 So.2d 1371 (Ala.Cr.App.1985). If evidence of the accused's commission of another crime is admissible, the state may prove in meticulous detail the manner in which the accused committed such other crime. Nelson v. State, 511 So.2d 225, 234 (Ala.Cr.App.1986), aff'd, 511 *878 So.2d 248 (Ala.1987), cert. denied, 486 U.S. 1017 , 108 S.Ct. 1755 , 100 L.Ed.2d 217 (1988); Weatherford v. State, 369 So.2d 863 (Ala.Cr.App.), cert. denied, 369 So.2d 8 [7]3 (Ala.), cert. denied, 444 U.S. 867 , 100 S.Ct. 141 , 62 L.Ed.2d 91 (1979); McElroy's, § 69.02(8). The generally recognized exceptions to the general exclusionary rule, or tests for relevancy, whereby evidence of collateral crimes or acts may be admitted are as follows:
"`(1) Relevancy to prove physical capacity, skill, or means to commit the now-charged crime; (2) part of the res gestae or part of a continuous transaction; (3) relevancy to prove scienter or guilty knowledge; (4) relevancy to prove criminal intent; (5) relevancy to prove plan, design, scheme, or system; (6) relevancy to prove motive; (7) relevancy to prove identity; (8) relevancy to rebut special defenses; and (9) relevancy in various particular crimes.'
" Nelson v. State, 511 So.2d 225, 233 (Ala.Cr.App.1986); Twilley v. State, 472 So.2d 1130 (Ala.Cr.App.1985). All of the exceptions relate to the relevancy of the evidence, which means that evidence of separate and distinct crimes is admissible only when the evidence is relevant to the crime charged. Mason v. State, 259 Ala. 438 , 66 So.2d 557 (1953); Nicks v. State. If the evidence is not so remote as to lose its relevancy, the decision to allow or to not allow evidence of collateral crimes or acts as part of the state's case rests in the sound discretion of the trial court. McGhee v. State, 333 So.2d 865 (Ala.Cr.App.1976)."
These concepts have been incorporated into the Alabama Rules of Evidence. Specifically, Rule 404(b), Ala. R. Evid., provides:
"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial."
Furthermore, we note that the appellant did not object at trial to the admission of the testimony about which he now complains. Accordingly, we review this claim under the plain error rule. See Rule 45A, Ala. R.App. P.
First, the appellant contends that Officer Michael Young improperly "testified that he and his partner kept a photograph and other information on Wilson with him in his patrol car. " (Appellant's brief at p. 10-11) (emphasis original). During the prosecutor's direct examination of Officer Young, the following occurred:
"[Young]: Officer Norris has a picture box that he keeps on hand of people that he runs across. When the BOLO [be on the lookout] came out for Mr. Wilson—
"[Prosecutor]: It was for Mr. Wilson?
"[Young]: Yes, sir. The name came out Joey Wilson over the radio. When that BOLO came out Officer Norris pulled his file out because he had dealt with Joey previously. He pulled the file out. He keeps the name and address on each individual that he runs across. He gave us the address he last had on Del Norte Drive."
(R. 868-69.) The appellant contends that Young's testimony was improper because it allegedly informed the jury that "the patrol officers had had so many encounters with Mr. Wilson that they kept a photograph of him in their mini-dossier of local criminals maintained in the patrol car" and that it allegedly "informed the jury that Mr. Wilson had been in extensive previous trouble with law enforcement." (Appellant's *879 brief at p. 11.) Contrary to the appellant's assertions, Young did not refer to him as a criminal and did not state or imply that he had had extensive previous trouble with law enforcement. He did not testify that the appellant had previously been investigated for, arrested for, or charged with any criminal offense or activity. Further, he did not testify that the box contained information about local criminals. Rather, Young testified that Norris kept information about "each individual that he runs across," and stated that Norris had "dealt with Joey previously." Norris could have used the box to store information about witnesses or informants with whom he had come in contact, and he could have "dealt with" the appellant in that context. Therefore, Young's comments that Norris had run across and dealt with the appellant did not improperly refer to any prior criminal activity on the part of the appellant. Furthermore, Young testified that he and Norris located and arrested the appellant within approximately 15 minutes after receiving the BOLO. Thus, his testimony about the box established how they were able to identify and locate the appellant so quickly after the murders. Accordingly, we do not find any plain error in Young's testimony.
Second, the appellant contends that the State repeatedly and improperly introduced irrelevant evidence about his alleged drug-dealing activities. Specifically, he complains that the prosecutor improperly asked one of its witnesses, Khristian Ashby, who he had obtained drugs from and that the witness improperly testified that he had obtained drugs from, and sold drugs for, the appellant. During his cross-examination of Ashby, defense counsel elicited testimony that Ashby had been arrested for several drug-related offenses, that Ashby had made a deal with one of the narcotics investigators to help him "set up" the appellant in exchange for favorable treatment on one of his pending cases, and that Ashby had previously sold drugs. On redirect examination, the prosecutor then elicited testimony that Ashby had sold drugs for the appellant.
Later, during direct examination, Ashley Rutherford testified that the appellant, Acklin, and Johnson had come to his residence approximately one week before the offenses and had acted like they wanted to buy some marijuana. He further testified that Johnson grabbed the marijuana and left. During his cross-examination of Rutherford, defense counsel elicited testimony that the appellant had previously sold marijuana to Rutherford.
Finally, one of the appellant's cell mates testified as to statements the appellant made about the murders. He testified that the appellant bragged about the quantity of drugs he was selling, even from his jail cell. In that regard, he also testified that the appellant had said that, on the night of the murders, when he had tried to collect some money that was owed to him, the people did not have the money. The appellant told the cell mate that he decided he was going to get paid or going to start killing the people who owed him. Finally, the appellant told about shooting and killing the decedents.
When read in context of the entire trial, much of the testimony about the appellant's drug-related activities was relevant to show one possible motive the appellant had for committing the murders. Furthermore, defense counsel also elicited some of the testimony about the appellant's drug-related activities and used it in presenting a defense. Accordingly, testimony about such activities that may have been improperly admitted was harmless because it was merely cumulative to evidence about such activities that was properly admitted. See Rule 45, Ala. R.App. P.; White v. State, 650 So.2d 538 (Ala.Cr. App.1994), overruled on other grounds, Ex parte Rivers, 669 So.2d 239 (Ala.Cr.App. 1995).
Finally, the appellant contends that the State improperly elicited testimony that one of the first officers to respond *880 to the crime scene was a narcotics investigator and that that investigator knew him. Again, he contends that this was evidence of bad character that told the jury he was a well-known drug dealer who had had prior contacts with law enforcement officers. (Appellant's brief at p. 13.) During direct examination, Investigator Michael Salomonsky testified that he was a narcotics investigator and that he was one of the first officers to arrive at the crime scene. On cross-examination by defense counsel, Salomonsky testified that he and another officer, who was in another vehicle, were working together on another case in the area on the night of the offense. When he heard the call on the radio for the other officer to respond, he also responded because the department was shorthanded at the time. Later, Ashley Rutherford testified that, when he identified the appellant as the perpetrator to Salomonsky, Salomonsky knew the appellant. Again, however, there was not any indication that Salomonsky knew the appellant because of any involvement in criminal activity. Salomonsky did not make any statement about the appellant being a drug dealer or a person with whom law enforcement officers had had previous contacts. Although he indicated that he knew who the appellant was, that knowledge could have come from experiences completely unrelated to his employment as a law enforcement officer. Consequently, we do not find that there was any plain error in this regard.
For the above-stated reasons, we conclude that the prosecution did not improperly introduce evidence about the appellant's prior criminal activity.
III.
The appellant's third argument is that the reliability of the jury's death recommendation was destroyed when improper evidence was admitted in support of the aggravating circumstance that the offense was especially heinous, atrocious, or cruel when compared to other capital offenses. See § 13A-5-49(8), Ala.Code 1975. Initially, he contends that the State improperly elicited ultimate-issue testimony from law enforcement officers that, in their opinion and based on their observations, the offense was heinous, atrocious, or cruel. In particular, he argues that the officers incorrectly concluded that the offense was heinous, atrocious, or cruel because the killings appeared to have been carried out in an execution-style fashion. Because the Alabama Supreme Court has held that execution-style killings are not, by definition, especially heinous, atrocious, or cruel, he also contends that an improper analysis was used in determining that the aggravating circumstance existed.
We agree with the appellant's argument that an execution-style killing is not necessarily especially heinous, atrocious, or cruel when compared to other capital offenses. See Ex parte Clark, 728 So.2d 1126 (Ala.1998). In Clark , the Alabama Supreme Court stressed that the especially heinous, atrocious, or cruel aggravating circumstance must be narrowly interpreted and applied only to those cases in which the killing is unnecessarily torturous to the victim.
"In Lindsey v. Thigpen, 875 F.2d 1509 (11th Cir.1989), the United States Court of Appeals for the Eleventh Circuit upheld this Court's application of the `especially heinous, atrocious or cruel' aggravating circumstance because this Court's application of it provided a `principled way to distinguish' cases in which the death penalty is appropriately imposed from cases in which it is not. Id. at 1513, 1515 (upholding our application of Ala.Code 1975, § 13A-5-49(8) and quoting Godfrey, 446 U.S. at 431, 100 S.Ct. 1759 , 64 L.Ed.2d 398 ). The Eleventh Circuit emphasized that the Alabama appellate courts' interpretation of § 13A-5-49(8) passed muster under the Eighth Amendment because this Court and the Court of Criminal Appeals had consistently defined `especially heinous, atrocious or cruel' to include only `those conscienceless or pitiless homicides *881 which are unnecessarily torturous to the victim.' Lindsey v. Thigpen , at 1514 (quoting Ex parte Kyzer, 399 So.2d 330, 334 (Ala.1981)) (emphasis added).
". . . .
"... [A]n expansion of the aggravating circumstance set out in § 13A-5-49(8) to encompass a murder not involving torture, merely because the State labels the murder an `execution-style' slaying would abandon the very interpretation that the Eleventh Circuit held critical to the constitutional application of that aggravating circumstance."
Clark, 728 So.2d at 1139-40 (footnote omitted). In accordance with these principles, the especially heinous, atrocious, or cruel aggravating circumstance has been narrowly defined.
"In Ex parte Kyzer, 399 So.2d 330, 334 (Ala.1981), this Court held that the standard applicable to the `especially heinous, atrocious, or cruel' aggravating circumstance under § 13A-5-49(8) is that for a crime to fit within that section it must be one of `those conscienceless or pitiless homicides which are unnecessarily torturous to the victim.'
". . . .
"This Court has decided upon an approach for the purposes of § 13A-5-49(8). In comparing capital offenses for the purposes of determining whether a capital offense was `especially heinous, atrocious or cruel,' the court uses the Kyzer standard. Capital offenses falling under § 13A-5-49(8) are, pursuant to the Kyzer standard, those `conscienceless or pitiless homicides which are unnecessarily torturous to the victim.' Kyzer, 399 So.2d at 334 ."
Ex parte Bankhead, 585 So.2d 112, 124-25 (Ala.1991). The torture element of the circumstance may involve both physical and psychological torture. See Price v. State, 725 So.2d 1003, 1035 (Ala.Cr.App. 1997), aff'd, 725 So.2d 1063 (Ala.1998), cert. denied, 526 U.S. 1133 , 119 S.Ct. 1809 , 143 L.Ed.2d 1012 (1999). Also, psychological torture can involve the victim's being forced to watch family members die prior to his own death, see Ex parte Ford, 515 So.2d 48, 52 (Ala.1987), cert. denied, 484 U.S. 1079 , 108 S.Ct. 1061 , 98 L.Ed.2d 1023 (1988); Godbolt v. State, 546 So.2d 982 (Ala.Cr.App.1986), remanded on other ground, 546 So.2d 991 (Ala.1987); Woodall v. State, 730 So.2d 627 (Ala.Cr.App.1997), aff'd in relevant part, rev'd on other grounds, 730 So.2d 652 (Ala.1998); and Price, supra, or the victim's being in intense fear of, and powerless to prevent, his own impending death, see Norris v. State, [Ms. CR-94-0871, March 26, 1999] ___ So.2d ___ (Ala.Cr.App. 1999).
However, we do not agree with the appellant's argument that the testimony of the law enforcement officers constituted improper testimony about the ultimate issue before the jury. As we stated in Smith v. State, 756 So.2d 892 (Ala.Cr. App.1997), aff'd, 756 So.2d 957 (Ala. 1999):
"In determining whether a capital offense is especially heinous, atrocious, or cruel, the factfinder can compare the murder at issue with other capital crimes. The testimony of an experienced police officer who had investigated many capital crimes could be invaluable in making such a determination."
Furthermore,
"[a]ny evidence which has probative value and is relevant to sentence shall be received at the sentence hearing regardless of its admissibility under the exclusionary rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements."
§ 13A-5-45(d), Ala.Code 1975. Therefore, the ultimate issue rule did not apply during the sentencing proceedings, and the testimony was not improper on that basis. See Rule 1101(b)(3), Ala. R. Evid. Furthermore, although the officers incorrectly concluded that the execution-style nature of the killings established that they were heinous, atrocious, or cruel, their testimony was still relevant and probative. During direct examination, the prosecutor defined *882 the terms "heinous," "atrocious," and "cruel" separately. He then asked the officers whether, in their opinion based on their law enforcement experience and their observations, these killings were heinous, atrocious, or cruel. Later, he asked additional questions about the execution-style nature of the killings. Therefore, the execution-style nature of the killings, combined with the testimony of the survivors about the torture the decedents suffered before their deaths, was relevant in determining whether the especially heinous, atrocious, or cruel aggravating circumstance applied. Therefore, the testimony of the officers was not improper.
Finally, error, if any, in the admission of the testimony of the officers was harmless. See Rule 45, Ala. R.App. P. In its oral charge, the trial court instructed the jury on the correct standard to apply in determining whether the aggravating circumstance existed, stating as follows:
"The second aggravating circumstance, as I understand it, that the State alleges in this case is that this capital offense was especially heinous, atrocious or cruel. We can understand that murder is in and of itself sometimes heinous and sometimes atrocious and sometimes cruel. It's sometimes all of those things. But in order to be an aggravating circumstance for the purpose of invoking the death penalty our law says that it must be especially so when compared to other capital offenses. The term `heinous' has been defined to mean extremely wicked or shockingly evil. The term `atrocious' has been defined to mean outrageously wicked and violent. The term `cruel' has been defined to mean designed to inflict a high degree of pain with utter indifference to or even enjoyment of the suffering of others. It has at times been defined as unnecessary torture."
(R. 1838-39.) The trial court also instructed the jury that it would ultimately decide whether the aggravating circumstance existed. As set forth throughout this opinion, there was overwhelming evidence from which the jury could conclude that the offense was especially heinous, atrocious, or cruel compared to other capital offenses. Finally, in its sentencing order, the trial court made the following findings about the applicability of this aggravating circumstance:
"The capital offense was especially heinous, atrocious or cruel compared to other capital offenses. As noted above, some 19 rounds were fired. Prior to the discharge of the weapons, the victims were subjected to threats and intimidation. Some were struck. At least two were struck with a bottle and one was stomped by the defendant. The victims were restrained at gunpoint and required to remove portions of their clothing. They were taunted and abused for a lengthy period of time. By any standard acceptable to civilized society, this crime was extremely wicked and shockingly evil. The defendant was unnecessarily torturous in his commission of the crimes. While the Court recognizes that all capital offenses are heinous, atrocious and cruel to some extent, the degree of heinousness, atrociousness and cruelty which characterizes this offense exceeds that which is common to all capital offenses."
(C.R.263-64.) There is no indication that the jury or the trial court applied an incorrect standard in finding that this aggravating circumstance existed. The evidence more than adequately supports a finding that the offense was especially heinous, atrocious, or cruel when compared to other capital offenses. Therefore, viewed in the context of the entire trial, error, if any, in the admission of the testimony of the officers was harmless. See Rule 45, Ala. R.App. P.
IV.
The appellant's fourth argument is that the prosecution and the trial court improperly minimized the jury's role in sentencing, thereby violating Caldwell v. *883 Mississippi, 472 U.S. 320 , 105 S.Ct. 2633 , 86 L.Ed.2d 231 (1985). First, he contends that the prosecutor improperly told the jurors that, if they returned a death sentence, they would not be taking the appellant's life and that the imposition of the death penalty would be the result of the State applying the laws of the state. He further alleges that the trial court compounded the prejudicial effect of the prosecutor's statement when it repeatedly instructed the jury that its verdict was a recommendation and that the court would ultimately determine the appropriate sentence. Finally, he contends that the verdict form underscored the fact that the jury's verdict was not important because it informed the jury in two places that its verdict was a recommendation. However, he did not object to these alleged violations at trial. Therefore, we review this claim for plain error. See Rule 45A, Ala. R.App. P.
During his penalty-phase closing arguments, defense counsel stated, "Punishment is going to be had by virtue of your verdict.... I am asking you not to hate someone or have such feelings toward someone that you will go past that which has to be the ultimate punishment, never seeing the outside of the free world again." (R. 1818-19.) Shortly thereafter, he also argued as follows:
"If Joey Wilson were in the water drowning, holding his hand up to you, would you push his hand down? If you can do that, then you know what your vote is. If you could push the hand of any human being back down in the water, reaching up to you for help, then go ahead. Recommend what you have got to recommend to this court. If your answer is differently on that question, then please make the recommendation that would be appropriate in this case, that of life without parole."
(R. 1820-21.) In his rebuttal argument, the prosecutor argued as follows:
"Don't let anyone say to you you are taking his life, as he took the life of someone else. Ladies and gentlemen, you are not going to take his life, whatever you may say, whatever all 12 of you might say.... The Judge is not going to take his life. If it is taken, it will be taken by the State applying the laws of this State."
(R. 1832-33.) The Alabama Supreme Court addressed a similar comment in Ex parte Taylor, 666 So.2d 73, 88 (Ala.1995), cert. denied, 516 U.S. 1120 , 116 S.Ct. 928 , 133 L.Ed.2d 856 (1996), and held as follows:
"Finally, we must review the final comments the prosecutor made to the jury during the penalty phase of the trial, in which he told the jurors they were `not going to kill anybody.' Taylor claims that the prosecutor's comment misled the jurors regarding the importance of their responsibility in rendering an advisory verdict. This statement by the prosecutor was the only one to which Taylor's objection by motion in limine, made before closing arguments, would apply. We conclude, however, that the prosecutor's comment was a fair response to defense counsel's statement made immediately before, by which defense counsel argued to the jury that a recommendation of death would kill both Michael Taylor and his mother. `[A] prosecutor has the right to "reply in kind" to statements made by defense counsel in the defense's closing argument.' Ex parte Musgrove, 638 So.2d 1360, 1369 (Ala.1993), cert. denied, Rogers v. Alabama, [513] U.S. [845], 115 S.Ct. 136 , 130 L.Ed.2d 78 (1994). The prosecutor's remark was not reversible error."
Similarly, we conclude that the prosecutor's comment in this case was a reply in kind to comments defense counsel made during his closing argument, rather than an attempt to diminish the importance of the jury's role in sentencing. Therefore, we do not find any plain error with regard to this comment.
*884 As to the appellant's remaining claims, we have carefully reviewed the entire record for Caldwell violations, and we have not found any.
"Under Caldwell v. Mississippi, 472 U.S. 320 , 105 S.Ct. 2633, 2639 , 86 L.Ed.2d 231 (1985), `it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere.' However, the comments of the prosecutor and the instructions of the trial court accurately informing a jury of the extent of its sentencing authority and that its sentence verdict was `advisory' and a `recommendation' and that the trial court would make the final decision as to sentence does not violate Caldwell . `[C]omments which accurately explain the respective functions of the Judge and jury are permissible under Caldwell "as long as the significance of [the jury's] recommendation is adequately stressed."` Harich v. Wainwright, 813 F.2d 1082, 1101 (11th Cir. 1987). Here, neither the prosecutor nor the trial court misrepresented the effect of the jury's sentencing recommendation. The cases of Caldwell, supra; Mann v. Dugger, 817 F.2d 1471 (11th Cir.), vacated, 828 F.2d 1498 (1987); Adams v. Wainwright, 804 F.2d 1526 (11th Cir.1986), modified, Adams v. Dugger, 816 F.2d 1493 (11th Cir.1987); and Harich, supra, each involved a situation where the prosecutor and the trial court misled the jury as to its critical role in sentencing under state law. In Hooks v. State, 534 So.2d 329 (Ala.Cr. App.1987), this Court reviewed the decisions of other jurisdictions which have confronted this issue and concluded: `The trial judge's and the prosecutor's remarks clearly defined the jury's role in the sentencing scheme. Thus, the jury could not have been confused as to its responsibility in the sentencing process. The remarks made here were a correct statement of the law and did not tend to mislead or misinform the jury. Therefore, we conclude the remarks were not improper under Caldwell, supra.'"
Martin v. State, 548 So.2d 488, 494 (Ala. Cr.App.1988), aff'd, 548 So.2d 496 (Ala.), cert. denied, 493 U.S. 970 , 110 S.Ct. 419 , 107 L.Ed.2d 383 (1989). In this case, neither the prosecution nor the trial court referred to the jury's sentencing verdict as "merely a recommendation." Although both stated that the jury's verdict would be a "recommendation," that is a correct statement of Alabama law. See § 13A-5-47, Ala.Code 1975. Furthermore, neither attempted in any way to minimize the jury's role and responsibility in sentencing. Rather, throughout the trial, both the prosecution and the trial court emphasized the importance of the jury's role and responsibility in sentencing, and both accurately informed the jury about the extent of its sentencing authority. Accordingly, we do not find any plain error in this regard.
V.
The appellant's fifth argument is that several errors in the trial court's jury instructions deprived him of a fair trial and an accurate sentence determination.
"A trial court has broad discretion in formulating its jury instructions, provided those instructions accurately reflect the law and the facts of the case. Raper v. State, 584 So.2d 544 (Ala.Cr.App. 1991). A trial court's oral charge to the jury must be construed as a whole, and must be given a reasonable—not a strained—construction. King v. State, 595 So.2d 539 (Ala.Cr.App.1991); Kennedy v. State, 472 So.2d 1092 (Ala.Cr. App.1984)."
Williams v. State, 710 So.2d 1276, 1305 (Ala.Cr.App.1996), aff'd, 710 So.2d 1350 (Ala.1997), cert. denied, 524 U.S. 929 , 118 S.Ct. 2325 , 141 L.Ed.2d 699 (1998).
*885 "`A trial court has broad discretion in formulating its jury instructions, providing they are an accurate reflection of the law and facts of the case. Coon v. State, 494 So.2d 184 (Ala.Cr. App.1986). When requested charges are either fairly and substantially covered by the trial judge's oral charge or are confusing, misleading, ungrammatical, not predicated on a consideration of the evidence, argumentative, abstract, or a misstatement of the law, the trial judge may properly refuse to give such charges. Ex parte Wilhite, 485 So.2d 787 (Ala.1986).'
" Ward v. State, 610 So.2d 1190, 1194 (Ala.Cr.App.1992)."
Hemphill v. State, 669 So.2d 1020, 1021 (Ala.Cr.App.1995) (emphasis omitted). See also Dill v. State, 600 So.2d 343, 353-54 (Ala.Cr.App.1991), aff'd, 600 So.2d 372 (Ala.1992), cert. denied, 507 U.S. 924 , 113 S.Ct. 1293 , 122 L.Ed.2d 684 (1993).
A.
First, the appellant contends that the trial court did not instruct the jury that it had to unanimously find that he committed the capital offense. He argues that, to find him guilty of the capital offense charged, the jury had to find that he intentionally killed two of the decedents. He further argues that, because Acklin and Johnson were also present and charged with committing the murders, the question of whether he was responsible for the deaths of two or more of the decedents was critical. Therefore, he contends that the trial court should have instructed the jurors that they had to unanimously find that he intentionally killed the same two decedents to support a capital conviction. Because the appellant did not present this argument to the trial court, we review it for plain error. See Rule 45A, Ala. R.App. P.
The trial court's instruction on the capital offense was almost identical to the pattern jury instruction on the capital murder of two or more people pursuant to a single scheme or course of conduct. "A trial court's following of an accepted pattern jury instruction weighs heavily against any finding of plain error." Price v. State, 725 So.2d 1003, 1058 (Ala.Cr.App. 1997), aff'd, 725 So.2d 1063 (Ala.1998), cert. denied, 526 U.S. 1133 , 119 S.Ct. 1809 , 143 L.Ed.2d 1012 (1999). Also, the trial court thoroughly instructed the jury on principles of complicity or accomplice liability. Finally, from the verdict forms, it is clear that the jurors unanimously agreed that the appellant was responsible for the murders of all four of the decedents. Accordingly, we do not find any plain error in this instance.
B.
Second, the appellant contends that the trial court did not properly instruct the jury that he had to have the specific intent to kill at least two of the decedents to be found guilty of the capital offense. He also contends that the trial court did not instruct the jury on the particularized intent necessary to support a capital murder conviction. The record refutes these arguments. During its oral charge, the trial court specifically instructed the jury on intent with regard to each decedent and explained that that intent must be a particularized intent to kill. When read in conjunction with the trial court's instructions on complicity or accomplice liability, the trial court sufficiently instructed the jury on intent. Therefore, the appellant's argument is without merit.
C.
Third, the appellant contends that the trial court incorrectly instructed the jury on intentional murder because it stated that intentional murder "is the death of one individual." (R. 1637.) He contends that the statement prevented the jury from finding that he intentionally killed more than one of the decedents but that the killings did not occur as part of one scheme or course of conduct. He also *886 argues that the trial court erred because it did not define the phrase "single scheme or course of conduct" for the jury. Because the appellant did not present these claims to the trial court, we review them for plain error. See Rule 45A, Ala. R.App. P.
In instructing the jury on intentional murder, the trial court substantially followed the pattern jury instruction on intentional murder. As stated above, the trial court also substantially followed the pattern jury instruction for the capital murder of two or more people pursuant to a single scheme or course of conduct. These facts weigh heavily against a finding of plain error. See Price, supra. Moreover, the phrase "single scheme or course of conduct" was not so technical that the jurors could not use their common sense to interpret and understand it. As we stated in Roberts v. State, 735 So.2d 1244, 1252 (Ala.Cr.App.1997):
"The word `intent' is not a term of art or legal jargon. It is a commonly used and understood word with a clear meaning. Moreover, as the United States Supreme Court has recognized:
"`Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with common sense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting.'
" Boyde v. California, 494 U.S. 370, 380-81 , 110 S.Ct. 1190, 1198 , 108 L.Ed.2d 316 (1990).
"In this case, the jurors' common sense understanding was sufficient; the court was not required to define the term. No plain error occurred. See Williams v. State, 710 So.2d 1276 (Ala. Cr.App.1996)."
Finally, as stated in Part I of this opinion, under the facts of this case, there was simply no rational basis for a finding that the appellant intentionally murdered more than one of the decedents, but that he was not guilty of the capital offense. Therefore, the appellant's arguments are without merit.
D.
Fourth, the appellant contends that the trial court improperly lowered the State's burden of proof by instructing the jury that the State "simply" had to prove him guilty beyond a reasonable doubt. He also contends that the trial court's reasonable doubt instruction violated Cage v. Louisiana, 498 U.S. 39 , 111 S.Ct. 328 , 112 L.Ed.2d 339 (1990). Because the appellant did not present these claims to the trial court, we review them under the plain error rule. See Rule 45A, Ala. R.App. P.
We have reviewed the trial court's instruction on reasonable doubt, and we conclude that it did not violate Cage . The instruction did not suggest that the jury could find the appellant guilty based on a burden of proof lower than that required by constitutional due process protections, and it did not mislead or confuse the jury. Also, the trial court did not improperly lower the State's burden of proof by its use of the word "simply." In its instruction, it explained: "Now, the State is not required to convince you of the defendant's guilt beyond all doubt or to a mathematical certainty, nor beyond a shadow of a doubt, but simply beyond all reasonable doubt." (R. 1624-25.) Finally, throughout the proceedings, the trial court repeatedly stressed that the State carried the heavy burden of proving the appellant guilty beyond a reasonable doubt. Therefore, we do not find that there was any plain error in the trial court's reasonable doubt instruction. See Ex parte Taylor, 666 So.2d 73 (Ala.1995), cert. denied, 516 U.S. 1120 , 116 S.Ct. 928 , 133 L.Ed.2d 856 (1996); Coral v. State, 628 So.2d 954 (Ala.Cr.App. 1992), aff'd, 628 So.2d 1004 (Ala.1993), cert. *887 denied, 511 U.S. 1012 , 114 S.Ct. 1387 , 128 L.Ed.2d 61 (1994).
E.
Fifth, the appellant contends that the trial court erred in its penalty phase instructions by presuming that a death sentence would be imposed and by restricting the mitigating circumstances the jury could consider. He did not present these arguments to the trial court. Accordingly, we review them for plain error. See Rule 45A, Ala. R.App. P.
Initially, the appellant contends that, by stating that procedures must be followed to avoid arbitrary imposition of the death penalty, the trial court effectively told the jury that a sentence of death was a foregone conclusion and that the court and the jury simply needed to follow those procedures to arrive at a verdict of death. However, reading the trial court's penalty-phase instructions as a whole, we conclude that this argument is without merit. Immediately after the challenged statement, the trial court instructed on the concepts of aggravation and mitigation, defined the applicable statutory aggravating and mitigating circumstances, defined nonstatutory mitigating circumstances, and explained the process of weighing aggravating and mitigating circumstances. There is absolutely nothing in the trial court's instructions that stated or implied that a death sentence was presumed or a foregone conclusion. The trial court made it clear throughout the proceedings that, during the penalty phase, the jury could recommend a sentence of imprisonment for life without the possibility of parole or a sentence of death. Furthermore, the trial court made it clear that the jury could recommend a death sentence only under limited circumstances. Accordingly, we do not find any plain error in this regard.
The appellant also contends that the trial court restricted which mitigating circumstances the jury could consider. First, he argues that the trial court improperly stated that § 13A-5-52, Ala.Code 1975, sets forth "some additional mitigating circumstances" the jury could consider. Second, he contends that the trial court denigrated the concept of mitigation by stating that "[p]ractically anything ... could be a mitigating circumstance." (R. 1843.) Because the appellant did not present these arguments to the trial court, we review them for plain error. See Rule 45A, Ala. R.App. P.
The record refutes the appellant's claims. In its charge, the trial court thoroughly instructed the jury on the concept of mitigation and its importance in a capital trial. When read in context, the above-referenced comments did not limit which mitigating circumstances the jury could consider and did not denigrate the concept of mitigation. Therefore, we do not find any plain error in this regard.
For the above-stated reasons, the appellant's contention that the trial court's jury instructions deprived him of a fair trial and an accurate sentence determination is without merit.
VI.
The appellant's sixth argument is that there was a critical and material variance between the indictment and the State's proof at trial that denied him a fair trial and an accurate penalty determination. Specifically, he contends that, by stating that he caused the deaths of "Charles L. Hemphill, Michael A. Beaudette, Johnny Couch, and Brian Carter," the State was required to prove that he killed all four of the decedents. Based on that contention, he further argues that the trial court erred in instructing the jury that, to convict him of the capital offense, it had to find only that he killed two or more of the decedents.
Initially, we note that the indictment substantially tracks the language of the capital murder statute. See § 13A-5-40(a)(10), Ala.Code 1975. Also, the trial court substantially followed the pattern *888 jury instruction when charging the jury on the capital offense of murder of two or more people pursuant to one scheme or course of conduct. Further, "the State is not required to notify the defendant in the indictment or otherwise that it is proceeding under a complicity theory." Johnson v. State, 612 So.2d 1288, 1297 (Ala.Cr.App. 1992) (citations omitted). Finally, as set forth in Part XXIV of this opinion, the jury concluded that the appellant was responsible, under accomplice liability principles, for the murders of all four victims, and the evidence supported that conclusion. Therefore, we conclude that the appellant had sufficient notice of the charges against him and that there was not a material variance between the indictment and the proof at trial.
VII.
The appellant's seventh argument is that this court must remand this case for the trial court to determine whether the prosecution unconstitutionally used its peremptory challenges to remove women from the venire. On appeal, he specifically contends that the prosecution's use of 12 of its 16 peremptory challenges to remove women from the venire establishes a prima facie showing of gender-based discrimination. Because he did not raise an objection on this ground at trial, we review this contention under the plain error rule. See Rule 45A, Ala. R.App. P.
"`For plain error to exist in the Batson context, the record must raise an inference that the state [or the defendant] engaged in "purposeful discrimination" in the exercise of its peremptory challenges. See Ex parte Watkins, 509 So.2d 1074 (Ala.), cert. denied, 484 U.S. 918 , 108 S.Ct. 269 , 98 L.Ed.2d 226 (1987).'
" Guthrie v. State, 616 So.2d 913, 913 (Ala.Crim.App.1992) ...."
Rieber v. State, 663 So.2d 985, 991 (Ala.Cr. App.1994), aff'd, 663 So.2d 999 (Ala.), cert. denied, 516 U.S. 995 , 116 S.Ct. 531 , 133 L.Ed.2d 437 (1995).
"This court is bound by the certified record on appeal. The certified record provides no foundation for considering this issue....
"In many cases the appellate courts in this state have refused to find plain error grounded on Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), when no prima facie showing of discrimination appears on the face of the record. Ex parte Watkins, 509 So.2d 1074 (Ala.1987), cert. denied, 484 U.S. 918 , 108 S.Ct. 269 , 98 L.Ed.2d 226 (1987); Jenkins v. State, 627 So.2d 1034 (Ala.Cr.App.1992), aff'd, 627 So.2d 1054 (Ala.1993); Kuenzel v. State, 577 So.2d 474, 489 (Ala.Cr.App.1990), aff'd, 577 So.2d 531 (Ala.), cert. denied, 502 U.S. 886 , 112 S.Ct. 242 , 116 L.Ed.2d 197 (1991)."
Dobyne v. State, 672 So.2d 1319, 1327 (Ala. Cr.App.1994), aff'd, 672 So.2d 1354 (Ala. 1995), cert. denied, 517 U.S. 1169 , 116 S.Ct. 1571 , 134 L.Ed.2d 670 (1996). Finally,
"Alabama courts have recently held that even a showing that [a] party had struck a high percentage of strikes used against a minority was not alone enough. In Ex parte Trawick, 698 So.2d 162, 168 (Ala.1997), the Alabama Supreme Court held, `Without more, we do not find that the number of strikes this prosecutor used to remove women from the venire is sufficient to establish a prima facie case of gender discrimination.'
". . . .
"According to the record, the appellant in this case relied solely upon the fact that seven of the eight veniremembers struck by the prosecutor were black. According to the Alabama Supreme Court in Ex parte Trawick as well as the United States Supreme Court's interpretation of the burden in equal protection cases, these bare statistics were not sufficient to make a prima facie showing of discrimination."
*889 Armstrong v. State, 710 So.2d 531, 533-35 (Ala.Cr.App.1997).
After thoroughly reviewing the record on appeal, we conclude that it does not raise any inference that the prosecution engaged in purposeful discrimination against women in its use of its peremptory challenges. Furthermore, the appellant's arguments in his brief do not raise such an inference. Accordingly, we do not find any plain error in this regard.
VIII.
The appellant's eighth argument is that the prosecutor repeatedly commented on his post- Miranda silence, in violation of Doyle v. Ohio, 426 U.S. 610 , 96 S.Ct. 2240 , 49 L.Ed.2d 91 (1976). Because he did not present this contention to the trial court, we review it for plain error. See Rule 45A, Ala. R.App. P.
The appellant complains that the State commented on his silence during opening arguments when the prosecutor stated:
"When the defendant was apprehended, they took him to the police station and read him his rights. Finally he was interviewed. He was interviewed, but he didn't say anything. He talked to Investigator Kevin Turner, who used to be with the Sheriff's Department and now he is with our office, the District Attorney's Office. So when he talked to Kevin Turner, he told Kevin, `No, I had a .357 that night.' And when Kevin said to him, `Who did the shooting,' he said, `Oh, K.T., I can't rat on my crew. My crew got locked up. I can't rat on them.' So that was pretty much the extent of his statement."
(R. 631.) He also complains that the State violated Doyle during the following exchanges:
"[Prosecutor]: Lt. Franklin, I have a couple more questions. You remember that you read the rights warning to Joey Wilson?
"[Lt. Franklin]: That is correct.
"[Prosecutor]: Did he respond to anything after you read him his rights? Did he agree to talk to you?
"[Lt. Franklin]: Yes, he agreed to talk with me.
"[Prosecutor]: So after you gave him his rights did he talk with you?
"[Lt. Franklin]: No, sir, he didn't talk with me. When I asked him the question wanting to know the whereabouts of the person by the name of Nick he would not respond to that question. Instead, he made some complaints about his asthma and about his arm hurting. That's the only other question I asked him. I left and went back to Arcadia Circle to the Criminal Investigation Division.
"[Prosecutor]: So all he ever talked to you about was his ailments; is that right?
"[Lt. Franklin]: That's all he would talk to me about."
(R. 912.)
"[Prosecutor]: Did he indicate to you that he understood [his Miranda] rights?
"[Officer Edger]: Yes, sir, he did.
"[Prosecutor]: Did you question him any further?
"[Officer Edger]: I basically asked him to tell me what had went on that night, to which he replied he didn't know what I was talking about.
"[Prosecutor]: Is that all?
"[Officer Edger]: Yes, sir, that's about the extent of it."
(R. 916.) The appellant later made a statement to Investigator Kevin Turner in which he admitted his involvement in the crime.
In Doyle , the United States Supreme Court held that "the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment." 426 U.S. at 619 , 96 S.Ct. at 2245 . From our review of the record, we conclude *890 that the prosecutor did not violate Doyle . There is no indication in the record that the appellant ever invoked his right to remain silent during questioning by law enforcement officers. See Hardy v. State, [Ms. CR-95-0589, March 26, 1999] ___ So.2d ___ (Ala.Cr.App.1999). Rather, the testimony indicates that he waived his right to remain silent and agreed to talk to the officers. The comments and testimony about which the appellant complains are not improper references to his post- Miranda silence. Rather, they are references to his waiver of his right to remain silent and the statements he made after that waiver. Even though he was reluctant to answer the questions some of the officers asked, he did not at any time clearly invoke his right to remain silent. Furthermore, error, if any, was harmless because the evidence against the appellant was overwhelming and because he actually made a statement to one officer in which he admitted his presence at the crime scene and his involvement in the offense. See Rule 45, Ala. R.App. P.
The appellant also claims that the prosecutor improperly drew the jury's attention to the fact that he would not testify at trial. Specifically, he argues that the prosecutor improperly characterized comments he made to a cell mate as "what he testified to about a year ago in jail." (Appellant's brief at p. 49) (emphasis added). However, this was clearly simply a misstatement by the prosecutor. There is no indication that a reasonable juror would have interpreted the statement to be a comment on the appellant's decision not to testify at trial. Therefore, the appellant's argument is without merit.
IX.
The appellant's ninth argument is that the trial court did not consistently find and consider mitigating circumstances. However, he did not first present this claim to the trial court. Therefore, we review it for plain error. See Rule 45A, Ala. R.App. P.
The following portion of the trial court's sentencing order is pertinent to a consideration of the appellant's claims:
"The defense asserted the presence of mitigating circumstances. Although the defense did not rely on all the statutory mitigating circumstances, the court reviews all of the statutory mitigating circumstances in this sentencing order.
"(1) The defendant has no significant history of prior criminal activity. See Alabama Code, Sec. 13A-5-51(1) (1994 Repl.Vol.). The court finds that this mitigating circumstance is applicable.
"(2) The capital offense was committed while the defendant was under the influence of extreme mental or emotional disturbance. See Alabama Code, Sec. 13A-5-51(2) (1994 Repl.Vol.). The court finds that this mitigating circumstance is inapplicable. No evidence has been presented to this court that the defendant was under any extreme mental or emotional disturbance at the time of the capital offense.
"(3) The victim (or victims) was (were) a participant (participants) in the defendant's conduct or consented to it. See Alabama Code, Sec. 13A-5-51(3) (1994 Repl.Vol.). The court finds that this mitigating circumstance is inapplicable. The statutory mitigating circumstance that the victim was a participant in the criminal act or consented to that act was neither asserted nor proved. It simply is not an issue in this case. The court rejects this mitigating circumstance. It is completely inapplicable.
"(4) The defendant was an accomplice in a capital offense committed by another person and his participation was relatively minor. See Alabama Code, Sec. 13A-5-51(4) (1994 Repl.Vol.). The court finds that this mitigating circumstance is inapplicable. No evidence exists to lead this court to believe the defendant was a minor actor in this capital murder. Quite the contrary, the evidence establishes *891 that this defendant was a principal actor in this capital murder and admitted to shooting one of the victims during the sentencing phase of trial. The absence of credible evidence to the contrary requires the court to reject this mitigating circumstance.
"(5) The defendant acted under extreme duress or under the substantial domination of another person. See Alabama Code, Sec. 13A-5-51(5) (1994 Repl.Vol.). The court finds that this mitigating circumstance is inapplicable. Three persons were accused of committing these murders. The evidence leads this court to the well-guarded conclusion that the defendant was the principal actor. Significant evidence points to the defendant's role as a willing and active participant, if not the leader, in this capital murder. Clearly there is no evidence that the defendant was under extreme duress or the substantial domination of another person. The evidence requires the court to reject the statutory mitigating circumstance.
"(6) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired. See Alabama Code, Sec. 13A-5-51(6) (1994 Repl.Vol.). The court finds that this mitigating circumstance is inapplicable. There is no evidence that Wilson suffers from a great subnormality of the mind. Anti-social behavior does not establish this statutory mitigating circumstance. The court has persuasive evidence before it that the defendant was able to clearly explain his version of the entire events surrounding the alleged crime. The evidence taken as a whole requires the court to reject the statutory mitigating circumstance. The evidence falls woefully short of the statutory mitigating circumstance that the defendant's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.
"(7) The age of the defendant at the time of the crime. See Alabama Code, Sec. 13A-5-51(7) (1994 Repl.Vol.). The court finds that this mitigating circumstance is applicable. The defendant was 19 years of age at the time of the capital murder.
"In summary, two of the statutory mitigating circumstances are applicable in this case.
"The court must also consider any aspect of the defendant's character or record, any circumstances of the offense, or any other relevant mitigating circumstance which the defendant might proffer as a basis for a sentence of life imprisonment without parole rather than death. See Alabama Code, Section 13A-5-52 (1994 Repl.Vol.); Clisby v. State, 456 So.2d 99 (Ala.Cr.App. 19[8]3), cert. denied, 470 U.S. 100 [9, 105 S.Ct. 1372 ] (1985).
"The defendant does not have a significant prior history of assaultive or violent conduct. Although that fact does not establish the statutory mitigating circumstance previously discussed, the court has considered that fact in reaching its decision. The court has also considered that two witnesses from the defendant's church testified that he was a person of good character and participated in church activities.
"In fact, the court carefully has search[ed] all of the evidence in the case, whether presented by the State or the defense, for evidence of mitigation, whether or not raised by the defense, in view of the fact that this is a capital case.
" WEIGHING THE CIRCUMSTANCES
"The evidence proves beyond a reasonable doubt the existence of two statutory aggravating circumstances. Two statutory mitigating circumstances are present. No other statutory mitigating circumstances were proved by at least a *892 preponderance of the evidence. The Court did weigh several nonstatutory mitigating circumstances, but found them to be weak and unpersuasive."
(C.R.264-67.)
The appellant first contends that the sentencing order is "irrational and inconsistent." Specifically, he claims that the trial court's statement that the fact that he did not have a significant prior history of assaultive or violent conduct "does not establish the statutory mitigating circumstance previously discussed" disavowed its previous finding that he did not have a significant history of prior criminal activity. (C.R.267.) When read in context, it appears that, in addition to finding the statutory mitigating circumstance, the trial court also found as a nonstatutory mitigating circumstance that the appellant did not have a significant prior history of assaultive or violent conduct. In fact, the court indicated that it considered both of these circumstances in reaching its decision. Therefore, the appellant's argument is without merit.
The appellant also contends that the trial court erred by not considering the fact that his accomplices had not been convicted of capital murder and sentenced to death. However, at the time the trial court sentenced the appellant, his accomplices had not been convicted or sentenced. Therefore, the trial court could not compare the appellant's sentence to the sentences imposed in cases involving his accomplices. Furthermore, as discussed in Part XXVI of this opinion, the appellant's sentence is not disproportionate or excessive when compared to the sentences imposed in similar cases. Accordingly, his argument is without merit.
The appellant's final complaint is that the trial court did not specifically find and consider nonstatutory mitigating circumstances because it did not enumerate them in its sentencing order.
"A sentencer in a capital case may not refuse to consider or be `precluded from considering' mitigating factors. Eddings v. Oklahoma, 455 U.S. 104, 110 , 102 S.Ct. 869, 874 , 71 L.Ed.2d 1 (1982) (quoting Lockett v. Ohio, 438 U.S. 586, 604 , 98 S.Ct. 2954, 2964-65 , 57 L.Ed.2d 973 (1978)). The defendant in a capital case generally must be allowed to introduce any relevant mitigating evidence regarding the defendant's character or record and any of the circumstances of the offense, and consideration of that evidence is a constitutionally indispensable part of the process of inflicting the penalty of death. California v. Brown, 479 U.S. 538 , 107 S.Ct. 837 , 93 L.Ed.2d 934 (1987); Ex parte Henderson, 616 So.2d 348 (Ala.1992); Haney v. State, 603 So.2d 368 (Ala.Cr.App.1991), aff'd, 603 So.2d 412 (Ala.1992), cert. denied, 507 U.S. 925 , 113 S.Ct. 1297 , 122 L.Ed.2d 687 (1993). Although the trial court is required to consider all mitigating circumstances, the decision of whether a particular mitigating circumstance is proven and the weight to be given it rests with the sentencer. Carroll v. State, 599 So.2d 1253 (Ala.Cr.App.1992), aff'd, 627 So.2d 874 (Ala.1993), cert. denied, 510 U.S. 1171 , 114 S.Ct. 1207 , 127 L.Ed.2d 554 (1994). See also Ex parte Harrell, 470 So.2d 1309 (Ala.), cert. denied, 474 U.S. 935 , 106 S.Ct. 269 , 88 L.Ed.2d 276 (1985). Moreover, the trial court is not required to specify in its sentencing order each item of proposed nonstatutory mitigating evidence offered that it considered and found not to be mitigating. Morrison v. State, 500 So.2d 36 (Ala.Cr.App.1985), aff'd, 500 So.2d 57 (Ala.1986), cert. denied, 481 U.S. 1007 , 107 S.Ct. 1634 , 95 L.Ed.2d 207 (1987)."
Williams v. State, 710 So.2d 1276, 1347 (Ala.Cr.App.1996), aff'd, 710 So.2d 1350 (Ala.1997), cert. denied, 524 U.S. 929 , 118 S.Ct. 2325 , 141 L.Ed.2d 699 (1998) (emphasis added).
The sentencing order clearly refutes the appellant's claim. In its order, the trial court specifically stated that it considered *893 all of the nonstatutory mitigating evidence the appellant presented. In fact, it found that two nonstatutory mitigating circumstances existed: 1) that the appellant did not have a significant prior history of assaultive or violent conduct and 2) that two witnesses from the appellant's church testified that he was a person of good character and he participated in church activities. "`While Lockett and its progeny require consideration of all evidence submitted as mitigation, whether the evidence is actually found to be mitigating is in the discretion of the sentencing authority.' Bankhead v. State, 585 So.2d 97, 108 (Ala.Cr. App.1989)." Ex parte Slaton, 680 So.2d 909, 924 (Ala.1996), cert. denied, 519 U.S. 1079 , 117 S.Ct. 742 , 136 L.Ed.2d 680 (1997). Although the trial court must consider all mitigating circumstances, it has discretion in determining whether a particular mitigating circumstance is proven and the weight it will give that circumstance. See Williams, supra. The trial court complied with Lockett v. Ohio, 438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978), and its progeny in evaluating the statutory and nonstatutory mitigating evidence offered by the appellant.
For the above-stated reasons, the appellant's argument that the trial court did not consider mitigating circumstances is without merit.
X.
The appellant's tenth argument is that numerous instances of alleged prosecutorial misconduct deprived him of a fair trial and an accurate sentence. Throughout the trial, the trial court repeatedly instructed the jury that statements made by the attorneys were not evidence, that the jury was required to base its decision upon the evidence presented during the proceedings, and that the jury was not to base its decision on passion, prejudice, or any other arbitrary factor. We presume that the jury followed the trial court's instructions. See Taylor v. State, 666 So.2d 36 (Ala.Cr.App.1994), aff'd, 666 So.2d 73 (Ala.1995), cert. denied, 516 U.S. 1120 , 116 S.Ct. 928 , 133 L.Ed.2d 856 (1996). Also, we evaluate the comments made by the prosecutor in the context of the entire proceeding, not in isolation. See Duren v. State, 590 So.2d 360 (Ala.Cr.App.1990), aff'd, 590 So.2d 369 (Ala.1991), cert. denied, 503 U.S. 974 , 112 S.Ct. 1594 , 118 L.Ed.2d 310 (1992). In 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 , 94 S.Ct. 1868 , 40 L.Ed.2d 431 (1974)).
"In reviewing allegedly improper prosecutorial comments, conduct, and questioning of witnesses, the task of this Court is to consider their impact in the context of the particular trial, and not to view the allegedly improper acts in the abstract. Whitlow v. State, 509 So.2d 252, 256 (Ala.Cr.App.1987); Wysinger v. State, 448 So.2d 435, 438 (Ala.Cr.App. 1983); Carpenter v. State, 404 So.2d 89, 97 (Ala.Cr.App.1980), cert. denied, 404 So.2d 100 (Ala.1981). Moreover, this Court has also held that statements of counsel in argument to the jury must be viewed as delivered in the heat of debate; such statements are usually valued by the jury at their true worth and are not expected to become factors in the formation of the verdict. Orr v. State, 462 So.2d 1013, 1016 (Ala.Cr.App. 1984); Sanders v. State, 426 So.2d 497, 509 (Ala.Cr.App.1982)."
Bankhead v. State, 585 So.2d 97, 106-07 (Ala.Cr.App.1989), aff'd in relevant part, 585 So.2d 112, 127 (Ala.1991), rev'd on other grounds, 625 So.2d 1146 (Ala.1993). Finally,
"`[d]uring closing argument, the prosecutor, as well as defense counsel, has a right to present his impressions from the evidence, if reasonable, and may argue every legitimate inference.' Rutledge *894 v. State, 523 So.2d 1087, 1100 (Ala. Cr.App.1987), rev'd on other grounds, 523 So.2d 1118 (Ala.1988) (citation omitted). Wide discretion is allowed the trial court in regulating the arguments of counsel. Racine v. State, 290 Ala. 225 , 275 So.2d 655 (1973). `In evaluating allegedly prejudicial remarks by the prosecutor in closing argument, ... each case must be judged on its own merits,' Hooks v. State, 534 So.2d 329, 354 (Ala. Cr.App.1987), aff'd, 534 So.2d 371 (Ala. 1988), cert. denied, 488 U.S. 1050 , 109 S.Ct. 883 , 102 L.Ed.2d 1005 (1989) (citations omitted) (quoting Barnett v. State, 52 Ala.App. 260, 264 , 291 So.2d 353, 357 (1974)), and the remarks must be evaluated in the context of the whole trial, Duren v. State, 590 So.2d 360 (Ala.Cr. App.1990), aff'd, 590 So.2d 369 (Ala. 1991). `In order to constitute reversible error, improper argument must be pertinent to the issues at trial or its natural tendency must be to influence the finding of the jury.' Mitchell v. State, 480 So.2d 1254, 1257-58 (Ala.Cr.App.1985) (citations omitted). `To justify reversal because of an attorney's argument to the jury, this court must conclude that substantial prejudice has resulted.' Twilley v. State, 472 So.2d 1130, 1139 (Ala.Cr. App.1985) (citations omitted)."
Coral v. State, 628 So.2d 954, 985 (Ala.Cr. App.1992), aff'd, 628 So.2d 1004 (Ala.1993), cert. denied, 511 U.S. 1012 , 114 S.Ct. 1387 , 128 L.Ed.2d 61 (1994).
A.
First, the appellant contends that the prosecutor impugned the defense for not presenting evidence. During the State's closing argument, the following occurred:
"[Prosecutor]: If Nick Acklin was responsible for all this, if Nick Acklin was the leader, do you think he would keep all the murder weapons? Do you think he would take those back with him to Mt. Lebanon Road and put them in his closet? No. Do you think the .357, if Joey Wilson really had the .357, for example, why was it under Corey's seat in the car? How would that come about? It wouldn't come about. And just generally you remember that you never once heard from anyone's testimony anything about Nick's crew, Corey's crew—
"[Defense counsel]: Your Honor, I am going to object. May I approach the bench?
"The Court: Yes.
"(The following occurred at the bench:)
"[Defense counsel]: Your Honor, at this point counsel is coming very close to inferring to the jury that we failed to put on evidence. I object at this time and move for a mistrial.
"The Court: Your motion for a mistrial is overruled. Go ahead.
"[Prosecutor]: You recall the evidence of—I think it was Mikey Skirchak. I said, `Did you ever hear anyone in there say anything about Nick's crew or Corey's crew?' He said, `No.' That's another factor of common sense. Take all those factors into consideration."
(R. 1555-56.)
"`This court, in recognizing the government's burden and obligation of proving guilt beyond a reasonable doubt, has recognized that a prosecutor's comment may be so prejudicial as to shift the burden of proof. See Duncan v. Stynch[c]ombe, 704 F.2d 1213, 1216 (11th cir.1983). Such prosecutorial misconduct, if "so pronounced and persistent that it permeates the entire atmosphere of the trial," requires reversal. United States v. Alanis, 611 F.2d 123, 126 (5th Cir.), cert. denied, 445 U.S. 955 , 100 S.Ct. 1607 , 63 L.Ed.2d 791 (1980) (quoting United States v. Blevins, 555 F.2d 1236 (5th Cir. 1977), cert. denied, 434 U.S. 1016 , 98 S.Ct. 733 , 54 L.Ed.2d 761 (1978)). Prosecutors must observe the distinction between the permissible practice of arguing evidence *895 and suggesting inferences which the jury might draw from it and the impermissible practice of arguing suggestions beyond the evidence. See Houston v. Estelle, 569 F.2d 372, 380 (5th Cir.1978). Additionally, prosecutors must refrain from making burden-shifting arguments which suggest that the defendant has an obligation to produce any evidence or to prove innocence. See [In re] Winship, 397 U.S. [358,] at 364, 90 S.Ct. [1068,] at 1072[, 25 L.Ed.2d 368 (1970)]. We reaffirm the former Fifth Circuit's position that "the limits of proper argument find their source in notions of fairness, the same source from which follows the right to due process of law." Houston, 569 F.2d at 380 .'
" United States v. Simon, 964 F.2d 1082, 1086 (11th Cir.1992)."
DeBruce v. State, 651 So.2d 599, 604 (Ala. Cr.App.1993), aff'd, 651 So.2d 624 (Ala. 1994).
During the trial, Skirchak, Rutherford, and Hayden all testified that the appellant referred to Johnson and Acklin as his "crew." Additionally, Skirchak testified that he never heard Acklin or Johnson say that the group was their "crew." Finally, both Rutherford and Hayden testified that the appellant was in control on the night of the offense. When viewed in context of the entire trial, the prosecutor's statements did not impermissibly shift the burden of proof to the defense or impugn the defense for not presenting evidence. Rather, the prosecutor's statements were direct comments upon the evidence presented by the witnesses at trial and the inferences therefrom. See Coral, supra. Finally, the trial court instructed the veniremembers to disregard the prosecutor's comments, and we presume that the jury followed the trial court's instructions. See Taylor, supra. Accordingly, we do not find any reversible error in this regard.
B.
Second, the appellant contends that the prosecutor improperly injected his own views on his guilt and on other critical issues. The initial comment the appellant complains about occurred during voir dire examination when the following occurred:
"[Prosecutor]: Now, in a criminal case under our system a person has a right to a jury trial, a jury of his peers. That doesn't happen in all countries. Some countries don't have the time to participate in the justice system. It is a duty and it is a privilege to be a part of this justice system. A lot of people criticize it on one side or the other, but it's your system. You are the one who determines the facts. You are the one who makes up your mind. He has a right to a trial by a jury, and when he has a trial by a jury, every defendant in this country comes in with what we call a presumption of innocence. You at this point must presume that Joey Wilson is guilty—is not guilty. I misspoke, Your Honor. I may assume that he is guilty, but you must presume that he is not guilty. I will ask you this—
"[Defense counsel]: Your Honor, I would object to counsel's statement that he may assume he is guilty. I don't think that is a proper thing to be saying, especially in the voir dire portion of this case.
"The Court: Limit your questioning to the voir dire.
"[Prosecutor]: You must presume that he is innocent. If I did we wouldn't be here, would we? But I will leave that.
"[Defense counsel]: Your Honor, I object to counsel's continued statements in the manner he is doing it, especially in this part of this case.
"The Court: Counsel, contain your questions to voir dire questions and not comments about personal observations. That's totally immaterial. Disregard those comments, ladies and gentlemen, completely.
*896 "[Prosecutor]: Is there any person here who will not follow the instructions that the Judge will give you on the presumption of innocence?
"(No response.)"
(R. 288-89) (emphasis added). The appellant argues that the comment amounted to a statement that the prosecutor knew he was guilty of the crimes charged. Initially, we note that the prosecutor did not say that he knew the appellant was guilty or that he presumed him to be guilty. Rather, the prosecutor said that he " may assume " that the appellant was guilty and explained that this was why charges were brought against him. When read in context, it appears that the prosecutor was merely explaining the difference between his role as a prosecutor and the veniremembers' potential roles as jurors. Furthermore, the prosecutor explained the presumption of innocence to the veniremembers and attempted to determine whether they would be able to apply that presumption at trial. The prosecutor emphasized that the appellant must be presumed innocent and asked the venire, "[I]f you were to vote right now, is there any person who would not vote not guilty?" (R. 290.) Accordingly, there was no error in this regard.
The second instance the appellant complains about occurred when the prosecutor was asking the veniremembers if they were against the death penalty. During voir dire examination, the prosecutor stated:
"This case will be in three phases, hopefully. There will be a trial phase where a determination of guilt or not guilty is made. If he is found guilty, then we will move to the second phase where there will be a sentencing phase to the jury, and if he is convicted of capital murder, we will have another mini trial to present it to the jury as to whether or not he should be given life without parole or put to death. I will tell you, ladies and gentlemen, that the State expects to seek the death penalty in this case. Is there anyone who would automatically, if he were convicted, before any evidence is heard in the sentencing phase—is there anyone who would automatically vote for life without parole without considering the alternative?"
(R. 480) (emphasis added). According to the appellant, these statements assumed that a guilty verdict would be returned. Because he did not raise this argument at trial, we will review it for plain error. See Rule 45A, Ala. R.App. P. The prosecutor's comments merely amount to an explanation of the trial process in a capital case. When explaining that process to the venire, the prosecutor explained that if the appellant was convicted of capital murder, then another hearing would be held and the jurors would be asked to vote either for death or for life imprisonment without the possibility of parole. In addition, the prosecutor informed the venire of the State's intent to seek the death penalty in an effort to determine whether any of the veniremembers would be unable to vote for the death penalty. Accordingly, we do not find any plain error in this regard.
The final instance the appellant complains about occurred when the prosecutor asked if any of the veniremembers did not wish to serve on the jury. According to the appellant, "[t]he prosecutor... inject[ed] his own views of the case to assess whether veniremember's responses were `right' or `wrong,' and ... inform[ed] a potential juror that he was answering the voir dire questions in the correct or incorrect fashion." (Appellant's brief at p. 62.) The appellant did not raise this issue at trial. Therefore, we will review the issue for plain error. See Rule 45A, Ala. R.App. P.
When the prosecutor asked the veniremembers who did not wish to serve on the jury to identify themselves, the following occurred:
"[Veniremember D.H.]: [D.H.]
"[Prosecutor]: Ma'am?
*897 "[Veniremember R.T.]: [R.T.]
"[Veniremember]: I don't want to be on it.
"[Prosecutor]: Well, I think all three of you have told us you can't give a fair trial. Yes, sir.
"[Veniremember F.C.]: [F.C.]
"[Prosecutor]: But you have answered all the questions right."
(R. 483.) It appears that the prosecutor was merely informing the responding veniremembers that they were correct to answer the questions truthfully, even if they had said they could not give the appellant a fair trial or they did not want to serve on the jury. Thus, the appellant's argument that the prosecutor's comment amounted to injecting his personal beliefs into the trial is without merit, and there is no plain error in this regard.
For the foregoing reasons, we reject the appellant's argument that the prosecutor improperly injected his own personal beliefs and opinions at trial.
C.
Third, the appellant contends that the prosecutor improperly argued that it was the jury's duty to convict him.
During the State's guilt-phase rebuttal arguments, the prosecutor stated,
"The State in this case, as in every case, proudly shoulders the burden of proof beyond a reasonable doubt. Every time we walk through that door we take up that burden. We expect to. We support that principle. It should be beyond a reasonable doubt. Every time someone is found guilty it is beyond a reasonable doubt. It is not an impossible burden. It may sometimes be difficult to say the words, to follow your duty, your sworn duty, but duty sometimes, ladies and gentlemen, is a cruel master. You have got to follow your conscience. You have got to make this decision. Remember this: Whatever defense counsel says to you, we must prove to you that he killed, caused, procured, or aided or abetted in the death of two or more people, not that he pulled the trigger on every one of them."
(R. 1595-96) (emphasis added). Because the appellant did not object to the prosecutor's statement, we will review this issue for plain error. See Rule 45A, Ala. R.App. P. Contrary to the appellant's assertion, the prosecutor did not state that the jury had a duty to convict the appellant. Rather, he properly stated that it was the jury's duty to make a decision in the case. Therefore, the prosecutor's statement did not rise to the level of plain error.
The second instance occurred during the State's penalty-phase rebuttal arguments, when the prosecutor stated,
"Does Joey Wilson rate your forgiveness? That's not what you are here for. Your are here to render justice. I submit to you that the verdict brought back from your deliberations should be that Joey Wilson should pay the ultimate price and die in the electric chair.
"Now, there has been a lot of talk here about death. We all know something about death, or we all think we know something about death, but to those who have stared eyeball to eyeball with it, they have a different understanding of death. I ask that you do your duty and that you will return to this honorable court a recommendation that Joey Wilson be put to death. "
(R. 1833) (emphasis added). Contrary to the appellant's argument, the prosecutor did not equate the jury doing its duty with the jury returning a verdict of death. Rather, the prosecutor asked the jury to do its duty and also asked the jury to return a recommendation for death. Furthermore, as we discussed in Part IV of this opinion, the prosecutor's statements were a reply in kind to defense counsel's plea for mercy in his closing arguments. When viewed in the context of all of the penalty-phase closing arguments, we do not believe that the prosecutor's comment "`so infected the trial with unfairness as to *898 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 , 94 S.Ct. 1868 , 40 L.Ed.2d 431 (1974)). Therefore, the appellant's argument is without merit.
D.
Fourth, the appellant contends that the prosecutor improperly denigrated the lesser included offenses. He did not object at trial to the prosecutor's comments regarding the lesser included offenses. Accordingly, we will review this claim for plain error. See Rule 45A, Ala. R.App. P. During the State's closing arguments, the prosecutor stated,
"Counsel tells you that Joey Wilson didn't do anything, but now there is that concession. Well, maybe he did. Ladies and gentlemen, he has talked to you about a lesser included offense of just plain old murder of one person. I submit to you that if you are not going to find him guilty of capital murder, let him go. He killed more than two people. Hold him accountable for that. And if you just think he shot Michelle a little bit, if you think that a pistol put to the back of your head and jammed up against your pony tail and shot into your skull is a minor injury and not attempted murder, don't find him guilty of assault, let him go. Hold him accountable for what he did, ladies and gentlemen, and that's murdering people and an attempt to murder people. Counsel said it was pretty clear. I agree with him."
(R. 1610-11). The prosecutor went on to state,
"It is for you who have the duty of arriving at a decision. I know that you take seriously your sworn duty. And I am not putting on a show when I say to you, if you can't find him guilty of what he did, turn, him loose. He killed these people as sure as he put the gun to everybody's head and pulled the trigger. You have heard the evidence. The case is yours."
(R. 1614) (emphasis added). The appellant argues that these statements "presented the jury with the dilemma of either convicting [him] of capital murder or completely acquitting him." (Appellant's brief at p. 65.) When viewed in context, the prosecutor did nothing more than present his reasonable impressions from the evidence and argue legitimate inferences therefrom. See Boyd v. State, 715 So.2d 825 (Ala.Cr.App.1997), aff'd, 715 So.2d 852 (Ala.), cert. denied, 525 U.S. 968 , 119 S.Ct. 416 , 142 L.Ed.2d 338 (1998). Furthermore, the trial court instructed the jurors as follows: "In this case you are the sole judges of the facts. The weight and the sufficiency of the evidence is for you and you alone. All questions of fact are to be determined by you." (R. 1616-17.) The trial court also instructed the jury on the offense of capital murder and the lesser included offenses of intentional murder and reckless murder as to Hemphill, Beaudette, Couch, and Carter; attempted murder and the lesser included offenses of first-and second-degree assault as to Rutherford; and attempted murder and the lesser included offense of first-degree assault as to Hayden. Therefore, the appellant's argument that the prosecutor's comments left the jury with the dilemma of finding him guilty of capital murder or acquitting him is without merit.
E.
Fifth, the appellant contends that the prosecutor improperly impugned him for protecting his right to a fair trial. Specifically, he argues that the prosecutor's comment that he had received two continuances impugned trial counsel and implied that he was "trying to obfuscate the truth or otherwise delay justice in this case." (Appellant's brief at p. 65-66.) The following occurred during the State's guilt-phase rebuttal arguments:
"[Prosecutor]: Now, they tell you that we wanted to try [the appellant] first. I *899 will admit to that. We wanted to try him first. He tells you there were two continuances granted in this case. Did he tell you what the reason was? You will notice that he didn't say that the State gained two continuances in this case.
"[Defense counsel]: Your Honor, if he wants to tell what the reasons are I don't mind.
"[Prosecutor]: I don't need to tell them, Your Honor.
"[Defense counsel]: Then don't bring it up.
"[Prosecutor]: Who got the continuances? You don't know that. I didn't. Yes, we wanted to try him first because he is the one that caused it. He is the one who led it, and it's his show."
(R. 1598.) Because the appellant did not object to the prosecutor's statements at trial, we review them for plain error. See Rule 45A, Ala. R.App. P.
During defense counsel's opening arguments, the following occurred:
"Now, this case has been, as you have already learned, and as you probably knew from news accounts, anything else, has been in the process for almost two years. Now, this case has been continued several times, a couple of times.
"For some reason, the State wants to try this man first. There are three people in this case, three people charged. They have always wanted to try this man first.
"You heard Mr. Broussard get up here and tell you about how things happened out there on University Drive, and that this man did it. That was the way he presented it to you. Now, I'll bet you he comes back in November when they try Nick Acklin, when he is on trial, and he will be up here stating to you this is what happened out there, and this man did it. Nick Acklin will be sitting over there at that time."
(R. 639-40.) During his closing arguments, defense counsel went on to state:
"Now, they have bent over backwards to try Joey Wilson first in this series right here, and I think you can probably deduce why they have done that. But let me assure you that come October or November, or whenever Nick Acklin's trial is set, what are they going to be doing? They will not be pointing at Joey Wilson and saying he is the one, they are going to be pointing at Nick Acklin and saying he's the one. They can have their cake and eat it too. Have you ever wondered what that meant? I think that fits in this scenario right here of how these cases are being tried."
(R. 1580-81.) After reviewing the statements in the context of the entire trial, it is apparent that the prosecutor was not implying that either defense counsel or the appellant had improper motives for requesting the continuances. Rather, he was responding to defense counsel's statements that the State had "bent over backwards" to try the appellant first, that the prosecutors can "have their cake and eat it too," and the insinuation that the State was attempting to manipulate the justice system. Because the State's comments merely rebutted defense counsel's statements in opening and closing arguments, we do not find any plain error in this regard.
F.
Sixth, the appellant contends that the prosecutor repeatedly argued facts that were not in evidence.
Initially, the appellant argues that the prosecutor's statement that he would "take care" of Acklin "amounted to nothing more than a promise from the district attorney that he would prosecute Acklin [and that] such a promise is based on nothing more than the personal assurance of the prosecutor." (Appellant's brief at p. 68.) Because the appellant did not object to the prosecutor's statement at trial, we will review it for plain error. See Rule 45A, Ala. R.App. P. During his guilt-phase rebuttal arguments, the prosecutor stated: "We *900 will take care of Joey Wilson. Then we will take care of Nick Acklin when the time comes. But today let's concern ourselves with Joey Wilson. They will tell you that Nick Acklin was the leader. I am going to let you decide from the testimony who the leader was." (R. 1599-1600.) Defense counsel had previously alluded to the fact that the State would subsequently try Acklin for the murders. (R. 639-40; 1580-81.) Furthermore, defense counsel had repeatedly emphasized Acklin's responsibility for the crimes and attempted to diminish the appellant's responsibility. The prosecutor's statement was merely a reply in kind to defense counsel's arguments and an attempt to return the focus of the trial to the appellant's responsibility for the crimes. Thus, we do not find any plain error in this regard.
Next, the appellant contends that the prosecutor relied on "phantasmagorical" evidence, nonexistent evidence, or evidence that was not introduced at trial when he argued that a "jailhouse snitch's" testimony was corroborated. (Appellant's brief at p. 68.) During the prosecutor's closing arguments, the following occurred:
"[Prosecutor]: Then you get down to what [the appellant] told Brian O'Neill Harris. `I shot one and then me and Nick blasted on one.' Take State's exhibit whatever it is with the little stick `ems on it, go look at that and tell me if that doesn't jibe exactly with that statement. He killed Brian Carter, and probably as he was scurrying out of there let go a few shots towards the bed. We don't know whether he hit another person.
"[Defense counsel]: Your Honor, I would object to that line of questioning. There has been absolutely no evidence to bolster any portion of the argument being made presently by counsel.
"The Court: Ladies and gentlemen, you are the sole triers of the facts. You heard the evidence. Use your recall on what the evidence was.
"[Prosecutor]: When you look at the State's exhibit that shows particular slugs you will see, first off, that a slug from the Ruger killed Brian Carter. They removed it down there at the autopsy. You will also see on the west wall, back there in the area of the bed, behind the bed, they removed a slug. I think it's number 44. I may not be right. I think it is, though. And that slug too came from the Ruger. Now, the statement he gives to Harris, that matches perfectly. One could conclude that after he shot Brian Carter on his way out he fires one, at least one. I don't know."
(R. 1549-50.) Furthermore, Skirchak, Hayden, and Rutherford all testified that the appellant had a Ruger during the offenses. As we noted previously, "`[d]uring closing argument, the prosecutor, as well as defense counsel, has a right to present his impressions from the evidence, if reasonable, and may argue every legitimate inference.' Rutledge v. State, 523 So.2d 1087, 1100 (Ala.Cr.App.1987), rev'd on other grounds, 523 So.2d 1118 (Ala.1988) (citation omitted)." Coral, 628 So.2d at 985. After reviewing the prosecutor's comments in the context of the entire trial, we conclude that he was merely arguing his impressions from the evidence and the legitimate inferences therefrom. Therefore, the appellant's argument is without merit. Furthermore, the trial court instructed the jury that it was the sole trier of fact and that the jurors should rely on their own recollections of what the evidence showed. We presume that the jury followed the trial court's instructions. See Taylor, supra. Accordingly, we do not find any reversible error in this regard.
Finally, the appellant argues that the following statements by the prosecutor were arguments not based on the evidence:
"[Brian Newby] thought we had him on tape talking to Joey Wilson when Joey told him to finish the job. What did he mean? Did he mean finish whipping *901 those people? You know, in another generation, ladies and gentlemen, if this had happened in another generation way back, a guy like Joey Wilson would have went over and called these guys out one on one and whipped them. In another generation he would have gone over with a bunch of thugs and whipped them. They don't do that anymore, ladies and gentlemen. They go over with guns and they kill them. Why? I don't know. Finish the job. What job? I think you know what job he was talking about."
(R. 1610) (emphasis added). The prosecutor then went on to say:
"Ladies and gentlemen, I submit to you that there are veterans of wars who have spent a full year in combat theater and not seen the carnage, slaughter, the cold-blooded killing, that these young people have seen to traumatize them for the rest of their lives. They can tell you what happened. They may not be able to give you all the fine details, but they will tell you exactly what happened. Were they terrified? Yes. Could you maybe push Mike Skirchak around a little bit on cross-examination? Yes. Maybe Brian Newby, Khristian Ashley, you can push them around a little bit, but wait a minute. Try to push Ashley Rutherford around a little bit on cross-examination. Try to push Michelle around a little bit on cross-examination, and see what it gets you. What changed about their testimony under that laborious cross-examination and suggestions as to what they might have said? They never changed their story. They told you what happened."
(R. 1612.) Because the appellant did not object to these statements at trial, we review them for plain error. See Rule 45A, Ala. R.App. P. "`In order to constitute reversible error, improper argument must be pertinent to the issues at trial or its natural tendency must be to influence the finding of the jury.' Mitchell v. State, 480 So.2d 1254, 1257-58 (Ala.Cr.App.1985) (citations omitted). `To justify reversal because of an attorney's argument to the jury, this court must conclude that substantial prejudice has resulted.' Twilley v. State, 472 So.2d 1130, 1139 (Ala.Cr.App. 1985) (citations omitted)." Coral, 628 So.2d at 985. Both of these comments were analogies drawn by the prosecutor. The prosecutor used the analogy about previous generations while arguing his impression about what the phrase "finish the job" meant. In his combat analogy, the prosecutor appears to have been arguing that the jurors should consider the extent of the trauma the surviving victims endured when weighing their testimony. Because we do not conclude that these comments resulted in substantial prejudice to the appellant, we find that these comments did not constitute plain error.
G.
Seventh, the appellant contends that the prosecutor improperly instructed the jury on critical areas of law. Specifically, he contends that the prosecutor's definition of accomplice liability "grossly expanded the scope of [his] liability under a complicity theory by instructing the jury that he is also guilty of capital murder, even if he merely `encouraged' the commission of the offense." (Appellant's brief at p. 70.) While explaining complicity to the jury, the prosecutor stated:
"What it means basically is you are held legally accountable for the actions of another, if you either aided and abetted the other in that criminal act. If you encouraged him, if you procured him, or assisted in any way in the commission of that act. In opening statement you never heard me say that we expect the evidence to be that this particular defendant killed each and every one of these people in that room by his own hand. I never said that. I knew it wasn't true. But with complicity, he is responsible. He is responsible, even though by his own hand he did not actually kill each one. He is responsible if you find that he aided and abetted or that he procured *902 it, he encouraged it, he assisted in it, he's held responsible."
(R. 1531) (emphasis added). The terms "aid and abet" encompass "all assistance rendered by acts, or words of encouragement, or support or presence, actual or constructive, to render assistance should it become necessary, and no particular acts are necessary." Prantl v. State, 462 So.2d 781, 783 (Ala.Cr.App.1984) (citing Watkins v. State, 357 So.2d 156 (Ala.Cr.App.1977), cert. denied, 357 So.2d 161 (Ala.1978)). Thus, the prosecutor's use of the term "encouragement" did not grossly expand the realm of conduct that would make him responsible for Acklin's actions. Additionally, after the appellant objected, the trial court immediately instructed the jury as follows:
"Ladies and gentlemen, I am going to charge you on what the law is. Take the law as I charge you, not the way counsel describes the law to you, unless it conforms with what I tell you."
(R. 1531-32.) As we have previously stated, we presume that the jury followed the trial court's instructions. See Taylor, supra. Finally, the prosecutor further stated to the jury:
"And I by no means am pretending to give you the word-for-word definition. I am trying to talk to you in everyday language of what the law is. Certainly, listen to what the Judge says. Listen to the exact legal definition of these concepts."
(R. 1532.) Accordingly, the appellant's argument is without merit.
H.
Eighth, the appellant contends that the prosecutor improperly vouched for the credibility of his witnesses. In Price v. State, 725 So.2d 1003 (Ala.Cr.App. 1997), aff'd, 725 So.2d 1063 (Ala.1998), cert. denied, 526 U.S. 1133 , 119 S.Ct. 1809 , 143 L.Ed.2d 1012 (1999), we held as follows:
"There was no impropriety by the prosecutor in making these comments because they were grounded in the evidence and were proper inferences from the evidence; moreover, the credibility of witnesses is proper subject matter for arguments to the jury. In Cross v. State, 536 So.2d 155 (Ala.Cr.App.1988), the district attorney, in closing argument to the jury, stated that the defendant's son had lied and that a deputy sheriff had told the truth, further commenting that the deputy sheriff had no reason to lie. This Court noted that the testimonies of defense witnesses and the deputy sheriff, who was a State's witness, were in conflict and were properly opened to comment during closing argument. This Court stated:
"`[T]he testimony was in evidence and the prosecutor could comment on this, since her comments were supported by the evidence. Moreover, the credibility of a witness is a legitimate subject of comment during closing arguments In Milton v. State, 417 So.2d 620 (Ala.Cr.App.1982), the prosecution called the appellant's witness a "blatant liar"; we held that the prosecutor's argument or comment was within the scope and limit of argument, because the argument went to the credibility of the witness. 417 So.2d at 623 . In Clark v. State, 462 So.2d 743, 747 (Ala.Cr.App.1984), we held that when a party places a witness on the stand, he vouches for his credibility, but does not personally vouch for the witness. In the case at bar, the prosecutor was arguing to the jury as to the effect of the witness's testimony, but was not personally vouching for [the witness's] credibility.
"`Therefore, the trial court did not err in allowing the prosecution to attack the credibility of the appellant's witness, nor did the prosecutor personally vouch for the credibility of the State's witness.'
" 536 So.2d at 159-60 . See also Ex parte Rieber, 663 So.2d 999 (Ala.1995), cert. denied, 516 U.S. 995 , 116 S.Ct. 531 , 133 L.Ed.2d 437 (1995).
*903 "Similarly in DeBruce v. State, 651 So.2d 599 (Ala.Cr.App.1993), aff'd, 651 So.2d 624 (Ala.1994), the prosecutor argued to the jury that a State's witness was telling the truth and that the robbery/murder occurred just as the witness had testified. The prosecutor further argued that a defense witness was not telling the truth, but had presented `a baldfaced lie.' Id. at 610. This Court found no impropriety by the prosecutor's comments, stating:
"`A distinction must be made between an argument by the prosecutor personally vouching for a witness, thereby bolstering the credibility of the witness, and an argument concerning the credibility of a witness based upon the testimony presented at trial. "[P]rosecutors must avoid making personal guarantees as to the credibility of the state's witnesses." Ex parte Parker, 610 So.2d 1181 (Ala. 1992). See Ex parte Waldrop, 459 So.2d 959, 961 (Ala.1984), cert. denied, 471 U.S. 1030 , 105 S.Ct. 2050 , 85 L.Ed.2d 323 (1985).
"`"`Attempts to bolster a witness by vouching for his credibility are normally improper and error.'... The test for improper vouching is whether the jury could reasonably believe that the prosecutor was indicating a personal belief in the witness credibility.... This test may be satisfied in two ways. First, the prosecution may place the prestige of the government behind the witness, by making explicit personal assurances of the witness' veracity.... Secondly, a prosecutor may implicitly vouch for the witness' veracity by indicating that information not presented to the jury supports the testimony."
"` United States v. Sims, 719 F.2d 375, 377 (11th Cir.1983), cert. denied, 465 U.S. 1034 , 104 S.Ct. 1304 , 79 L.Ed.2d 703 (1984).
"`Here, the district attorney did not give any personal assurance of McCant's veracity and did not imply that he had information that had not been presented to the jury that supported McCant's testimony. "The credibility of a witness is a legitimate subject of criticism and discussion." Flint v. State, 370 So.2d 332, 335 (Ala. Cr.App.1979). Here, as in Smith v. State, 344 So.2d 1239, 1242 (Ala.Cr. App.), cert. denied, 344 So.2d 1243 (Ala.1977), "[t]he prosecutor's remarks were grounded on some testimony given by the witness himself." See also Watson v. State, 398 So.2d 320, 328 (Ala.Cr.App.1980), cert. denied, 398 So.2d 332 (Ala.), cert. denied, 452 U.S. 941 , 101 S.Ct. 3085 , 69 L.Ed.2d 955 (1981) (reference in closing argument to defendant as a "bald face liar" was "a hard blow but it was not foul").'
" DeBruce v. State, 651 So.2d at 610-611. See also Hunt v. State, [ 659 So.2d 933, 942-43 (Ala.Crim.App.1994)]."
725 So.2d at 1029-31. We have thoroughly reviewed the comments about which the appellant complains and conclude that no reversible error occurred. The comments dealing with the witnesses' credibility and the weight to assign witness testimony were based on the evidence presented at trial. Furthermore, the prosecutor did not personally vouch for the witnesses' credibility or suggest that his knowledge of the witnesses' credibility came from facts not in evidence.
Finally, the appellant argues that, in making the following statement, the prosecutor vouched for the State's witness and placed his own credibility into issue:
"Yes, we wanted to try [the appellant] first because he is the one that caused it. He is the one who led it, and it's his show. And he tells you well, when they try Nick Acklin they will try to lay it on him. Ladies and gentlemen, I resent the insinuation that the State contrives evidence to make it fit to a particular *904 case, that we get witnesses to say what we want them to say. I should take that as a personal offense, but I am accustomed to it because I hear it all the time. If you think that people that work for the State of Alabama, the District Attorney's office, the Madison County Sheriffs Department, are changing their stories, or contriving testimony, making up stories, telling people what to say, then, ladies and gentlemen, the wrong person is on trial. We need to be charged. Those deputies need to be charged The investigators need to be charged. "
(R. 1598-99) (emphasis added). During closing arguments, defense counsel repeatedly suggested that the surviving victims' perception of the shootings may have been influenced by their discussions with police officers, investigators, and the district attorney's office. At one point, defense counsel said, "What have they perceived, what has been stuck in their head from talking to the District Attorney's office, talking to law enforcement? " (R. 1571-72) (emphasis added). Additionally, defense counsel also suggested that the prosecution would change its position on the level of Acklin's responsibility for the crimes during Acklin's subsequent trial. After reviewing the statement in light of the entire closing arguments, it is clear that the prosecutor's comment was merely a reply in kind to defense counsel's closing arguments. Therefore, the appellant's argument is without merit.
For the foregoing reasons, we conclude that the prosecutor did not improperly vouch for the credibility of the State's witnesses.
I.
Ninth, the appellant contends that the prosecutor improperly injected penalty-phase issues during the guilt phase of the trial. During his guilt-phase rebuttal, the prosecutor stated,
"This has been described as murder over a cell phone, and when you listen to the evidence probably the saddest thing was it was less than that. It wasn't even a murder over a cell phone. I think it was a mindless murder over some kind of distorted image of tough guy stuff. You can't understand it. You don't have to understand it, but you can't. It's impossible. You look at it and you think—you know, after they tortured and humiliated and beat these people, these defenseless people, they didn't bust them. They didn't buck them, they didn't bust them, they didn't kill them, they executed them. Look at the crime scene photos. You tell me whoever, other than Mikey Skirchak, whoever even moved from where they sat almost all night. They executed them. Gunpowder stippling, close-range shots, to the head. Everyone was shot in the head, except Brian Carter. Joey missed three inches low, shot him through the neck. You wouldn't treat a dog the way they treated them. "
(R. 1562-63) (emphasis added). Because the appellant did not object to the statements at trial, we will review them for plain error. See Rule 45A, Ala. R.App. P. In Taylor v. State, 666 So.2d 36 (Ala.Cr. App.1994), aff'd, 666 So.2d 73 (Ala.1995), cert. denied, 516 U.S. 1120 , 116 S.Ct. 928 , 133 L.Ed.2d 856 (1996), we held:
"The district attorney's characterizations of the crime as a `massacre,' the crime scene as a `slaughterhouse,' and the appellant as a `graverobber' constituted proper inferences from the evidence. R. 798, 7999, 1115. The law is clear that `"[i]n a proper case, the prosecuting attorney may characterize the accused or his conduct in language which, although it consists of invective or opprobrious terms, accords with the evidence of the case.' Nicks v. State, 521 So.2d 1018, 1023 (Ala.Cr.App.1987), affirmed, 521 So.2d 1035 (Ala.), cert. denied, 487 U.S. 1241 , 108 S.Ct. 2916 , 101 L.Ed.2d 948 (1988)."
666 So.2d at 65. The prosecutor's characterization of the murders as "executions" *905 was based on the evidence presented at trial and constituted a proper inference from the evidence. See Coral, supra. Therefore, the appellant's argument is without merit.
J.
Tenth, the appellant contends that the prosecutor improperly mischaracterized the arguments of defense counsel. During closing arguments, the following occurred:
"[Prosecutor]: And if you believe [the witnesses] beyond a reasonable doubt, not as has been referred to you beyond any and all possible doubt. The Judge will not say that to you.
"[Defense counsel]: Your Honor, I respectfully state to the Court that I never made that statement. He full well knows that I said beyond any and all reasonable doubt.
"The Court: Ladies and gentlemen, you have heard the evidence. Use your recollection as to what was or what was not said.
"[Prosecutor]: Yes, use your recollection and remember whether or not you heard possible doubt."
(R. 1594-95.) During his closing arguments, defense counsel told the jury that the State had the burden of proving the appellant was guilty "beyond any and all possible reasonable doubt." (R. 1565.) "[S]tatements of counsel in argument to the jury must be viewed as delivered in the heat of debate; such statements are usually valued by the jury at their true worth and are not expected to become factors in the formation of the verdict. Orr v. State, 462 So.2d 1013, 1016 (Ala.Cr. App.1984); Sanders v. State, 426 So.2d 497, 509 (Ala.Cr.App.1982)." Bankhead v. State, 585 So.2d 97, 106-07 (Ala.Cr.App. 1989), aff'd in relevant part, 585 So.2d 112, 127 (Ala.1991), rev'd on other grounds, 625 So.2d 1146 (Ala.1993). Furthermore, the trial court immediately instructed the jurors that they should rely upon their own recollections of what defense counsel said. Accordingly, the appellant's argument is without merit.
The appellant also argues that the prosecutor mischaracterized defense counsel's closing argument as suggesting that he was the victim in this case. Specifically, he argues that this argument was improper because he "admitted some level of [his] culpability for the offense." (Appellant's brief at p. 75.) Because the appellant did not object at trial to the statements in question, we will review them for plain error. See Rule 45A, Ala. R.App. P. During the State's rebuttal argument, the prosecutor stated:
"Counsel tells you that Ashley hated Joey Wilson's guts. That may be or it may not be. I don't know. He didn't say that. I cannot see where he would have a lot of love for him. Everybody said—I think the insinuation was, after they were prodded and encouraged by the Madison County Sheriff's Department, everybody when asked who did it said Joey Wilson. That's still a good answer, ladies and gentlemen. Nobody prompted that from them, I don't think. They say that all three went after poor ole Joey Wilson. He is the real victim, they would have you think. "
(R. 1604-05) (emphasis added). During the defense's closing arguments, counsel stated:
"I think it's pretty obvious that Ashley Rutherford hated Joey Wilson's guts from a long time back, but they still spoke, they still interacted. Why would Ashley Rutherford, knowing full well that Nick Acklin just put a gun to his head and pulled the trigger, and seeing nothing else that went on, upon his first contact with law enforcement he said, `Joey Wilson did it.' Now does that not say that somebody has started out to make sure that no matter what the facts are, Joey Wilson is going to suffer the consequences for it all. I think that's as clear a statement of that as you can find, or that you will ever be able to find. He sat right up here and told you that's *906 exactly what he did, knowing full well that otherwise Nick Acklin shot him."
(R. 1574-75.) Furthermore, defense counsel had previously suggested that the witnesses' perception of events had been influenced by the district attorney and law enforcement. After reviewing the prosecutor's statement in the context of the entire trial, we do not find any plain error in this regard.
K.
Eleventh, the appellant contends that the prosecutor improperly vouched for the strength of the State's case during the penalty phase. He did not object to the complained of statements at trial. Therefore, we review this claim for plain error. See Rule 45A, Ala. R.App. P. During his opening arguments, the prosecutor stated:
"The first [aggravating circumstance] is that the defendant, Joey Wilson, knowingly created a great risk of death to many people by his actions. As the Judge has said, the State does not have to put on evidence, if you have already heard the evidence in the main trial, which you did. I expect we probably won't put on that much evidence. We certainly won't put on any evidence that has to do with what happened in that room. I don't expect that we are going to call any of the eyewitnesses back to the stand. But that aggravating circumstance is pretty much what it says it is, and you will recall there were seven innocent people in that room, seven people other than Joey Wilson, Corey Johnson, and Nick Acklin. You recall, of course, that four of the seven are not with us today. We have the burden to prove that circumstances to you beyond a reasonable doubt. I believe just from the facts as they are it's going to be pretty clear to you that that's met. "
(R. 1685-86) (emphasis added). The prosecutor's statement was a proper comment on the character and the strength of the evidence presented by the State. See Price, supra. Additionally, we view these comments as an expression of the prosecutor's reasonable impressions from the evidence. See Ex parte Rieber, 663 So.2d 999 (Ala.), cert. denied, 516 U.S. 995 , 116 S.Ct. 531 , 133 L.Ed.2d 437 (1995). Therefore, the prosecutor's statement does not rise to the level of plain error.
L.
Twelfth, the appellant contends that the prosecutor improperly argued that the death sentence was a proper means of self-defense. Specifically, he argues that the prosecutor's argument comparing the death penalty to self-defense played "on the jury's fears that Madison county is awash in potential murderers, and that the jury must send verdicts to discourage potential scofflaws who may contemplate committing crimes in the county." (Appellant's brief at p. 77.) Because the appellant did not object to these comments at trial, we review them for plain error. See Rule 45A, Ala. R.App. P. In Kuenzel v. State, 577 So.2d 474 (Ala.Cr. App.1990), aff'd, 577 So.2d 531 (Ala.), cert. denied, 502 U.S. 886 , 112 S.Ct. 242 , 116 L.Ed.2d 197 (1991), we h

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1102857. Public record. Not legal advice.