# Bush v. State

> Court of Criminal Appeals of Alabama · March 8, 1996 · 695 So. 2d 70

URL: https://www.frixlaw.com/law-library/cases/1128720

## Case

- **Court:** Court of Criminal Appeals of Alabama
- **Decided:** March 8, 1996
- **Citations:** 695 So. 2d 70; 1995 WL 706857
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Patterson
- **Cited by:** 184 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1128720

## How later opinions describe it (automated extraction)

- holding that, because Bush confessed and led police to the murder weapon, ‘the ballistics evidence was neither critical nor subject to varying expert opinion’

## Opinion text

695 So.2d 70 (1995)
William BUSH
v.
STATE.
CR-90-1652.
Court of Criminal Appeals of Alabama.
December 1, 1995.
Order Overruling Application for Rehearing March 8, 1996.
*80 Stephen R. Glassroth, Montgomery, and James R. Seale, Montgomery, for Appellant.
Jeff Sessions, Atty. Gen., and Randall McNeill, Asst. Atty. Gen., for Appellee.
PATTERSON, Judge.
The appellant, William Bush, was indicted on September 11, 1981, in a four-count indictment for the capital offense of murder of Larry Dominguez during a robbery in the first degree or an attempted robbery in the first degree, see Ala.Code 1975, § 13A-5-40(a)(2). Each count of the indictment alleges the same offense based on the same facts, but each is worded slightly differently, and two counts include alternative allegations of attempted robbery. The appellant was convicted on November 18, 1981, after a jury trial, of the capital offense charged and, following a unanimous recommendation by the jury that the sentence be death, the trial court sentenced the appellant to death. On appeal, this court and the Supreme Court of Alabama affirmed the conviction and sentence. Bush v. State, 431 So.2d 555 (Ala.Cr. App.1982) (Bush I) , aff'd, 431 So.2d 563 (Ala.), cert. denied, 464 U.S. 865 , 104 S.Ct. 200 , 78 L.Ed.2d 175 (1983).
Subsequently, the appellant filed a petition for writ of habeas corpus in the United States District Court for the Middle District of Alabama and, on March 19, 1984, pursuant to a stipulation between the state and the appellant, the federal court ordered that the writ be granted unless the state granted the appellant a new trial within 180 days. Bush v. Smith, Civil Action No. 83V-1438-N, U.S.Dist.Ct., Middle Dist. of Ala., Northern Division. [1]
*81 A new trial was held on the same four count indictment. It began on May 14, 1984, and culminated with a jury verdict on May 16, 1984, finding the appellant guilty of the capital offense as charged in the indictment. After the jury returned an advisory verdict of death, by a vote of 11 to 1, the trial court sentenced the appellant to death. On appeal, we reversed the judgment and remanded the case for a new trial on the ground that the trial court's jury instruction in the guilt phase indicating that the trial court had made a preliminary finding that the appellant's confession was voluntary and that the jury could not disregard that finding constituted plain error. Bush v. State, 523 So.2d 538 (Ala.Cr.App.1988) (Bush II) , cert. denied, 523 So.2d 538 (Ala.1988).
A third trial was ordered on the same fourcount indictment; it began on January 28, 1991, and culminated in a jury verdict of guilty of the capital offense charged in the indictment on February 1, 1991. On the same date, the jury, after a separate sentencing hearing, unanimously recommended that the appellant be sentenced to life imprisonment without the possibility of parole. The trial court then held a second sentencing hearing and sentenced the appellant to death. The appellant appeals from this third conviction and his sentence of death, raising 24 issues. We will address the issues in the order that they appear in the appellant's brief. A rendition of the facts is necessary to an understanding of these issues.
The state presented evidence showing that around 3:00 a.m., on July 26, 1981, the appellant and a companion, Edward Lewis Pringle, [2] entered the Majik Market convenience store on Carter Hill Road in Montgomery, Alabama, with the intent to rob the cashier of money to buy drugs. When they entered, two people were in the store: Larry Dominguez, the store clerk, and his friend Tony Holmes. Dominguez was in the restroom. The appellant pointed a pistol at Holmes and forced him toward the restroom at the rear of the store. When Dominguez opened the restroom door, the appellant shot both Dominguez and Holmes. The appellant then returned to the front of the store and attempted unsuccessfully to open the cash register. Dominguez stumbled out of the restroom, and the appellant shot him again. Before departing, the appellant took two bags of "zodiac sign tags" from a rack behind the counter near the cash register. The first shot striking Dominguez passed through his chin, lodging in his neck and severing a large artery. The second shot striking Dominguez entered his right shoulder and passed through his lungs and heart. He died quickly at the scene from the injuries caused by the second shot; however, the injuries sustained as a result of the first shot were potentially fatal. Holmes was shot in the throat and, although seriously injured, he survived. He was able to describe his assailant, the pistol, and the automobile the assailants were driving. He described the automobile as a 1973 white-over-green Chevrolet Monte Carlo and the pistol as a nickel-plated.38 caliber short-barreled special.
After leaving the Majik Market, the appellant and Pringle drove to a nearby Seven-Eleven convenience store on Narrow Lane Road in Montgomery, arriving there sometime before 4:00 a.m. The appellant entered the store and purchased a package of Kool cigarettes from the clerk, Thomas Adams. After Adams opened the cash register, the appellant forced him into an office area behind the counter and shot him in the neck with the same pistol he had used to shoot Dominguez and Holmes. [3] The shot to *82 Adams's neck shattered his spinal cord and killed him instantly. When the shot was fired, the barrel of the pistol was either touching Adams's neck or within a fraction of an inch of it. The appellant took between $20 to $30 from the cash register, along with a bank bag and checks.
The appellant made a statement to the police in which he confessed to the crimes. Although in his first statement he claimed that Pringle was the triggerman in both shootings at the Majik Market and that he was the triggerman in the collateral capital offense at the Seven-Eleven store, in his second statement, he admitted that he fired the shots that killed Dominguez and Adams and that wounded Holmes. In assisting the officers in recovering the weapon, the appellant said to Officer R.T. Ward, when the pistol was recovered, "[T]hat's the weapon that was used to shoot all three people." Ballistic tests of the pistol—a nickel-plated.38 caliber short-barreled special—proved that it was the pistol that fired the shots in the commission of the three crimes.
For a more detailed recitation of the facts and circumstances surrounding the commission of the crimes and the appellant's involvement, see Bush II, 523 So.2d at 542 .
The appellant did not testify at the guilt phase or at the sentencing phase of his trial. He offered no evidence in his defense at the guilt phase. He presented four witnesses at the sentencing phase before the jury, who testified to matters in mitigation of sentence, and he introduced letters that he had written and drawings that he had done while in prison.
It is apparent from the arguments of the appellant's trial counsel, the cross-examination of the state's witnesses, and the assertions made in the appellant's brief that his defense theory was mistaken identity. In furtherance of this theory, he sought to bolster Holmes's identification of Edward Pringle's brother, Cornelius Pringle, as the robber-assailant. He also points out that a number of fingerprints were lifted from the scene of the charged crime and that none matched his. He attempted to discredit the testimony of Patricia Pringle, the wife of Edward Pringle—that her husband had told her that he and the appellant had committed the three crimes and that the appellant had told her that he had shot Dominguez, Holmes, and Adams—by showing that she had received reward money for furnishing that information to the authorities. Finally, he attempted to discredit his incriminating statements by attempting to make it appear that the statements were obtained by coercion and in violation of his rights under Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966).
In regard to the appellant's focus on Holmes's identification of Cornelius Pringle from a photographic lineup and from a live lineup, the record shows that the severe injuries suffered by Holmes may have affected his recollection of the events and his reasoning. The officers were skeptical of Holmes's identification of Cornelius Pringle from the beginning because he had difficulty communicating with them for days after he was shot and because they suspected that, in addition to the problems caused by his being shot in the face, he was mentally retarded, which proved to be the case. We are compelled to note, however, that we find that any disabilities resulting from his injuries and his stay in the hospital's intensive care unit and from his mental retardation do not cast doubt on his accurate descriptions of the getaway car and the pistol. Based on Holmes's description of the getaway vehicle, a BOLO was broadcast, and an automobile matching that description was found parked at Edward Pringle's residence at approximately 5:30 a.m. on the morning that the three crimes were committed. The motor was still warm. This automobile ultimately proved to be the getaway vehicle driven by the appellant and Edward Pringle in committing the three crimes. Holmes's description of the pistol also proved to be accurate. These descriptions were given *83 shortly after the police arrived at the scene and thus were not subjected to the influences arising from the passage of time as was his identification of Cornelius Pringle as the assailant.
In regard to the appellant's attempt to discredit his two incriminating statements, the appellant states in the recitation of the facts in his brief that his interrogation was conducted at night, in a small room, over a period of approximately six hours, while he was handcuffed to a chair. He further states that he was refused a request for an attorney and that he was physically abused and threatened during the interrogation. The statements were tape-recorded, the recordings were played to the jury at the trial, and the recordings are a part of the record.
This issue of the voluntariness of the two statements arose in the second trial of this case and, after suppression hearings, the trial court found against the appellant's contentions and admitted the statements into evidence. In the trial of the case now before us, a suppression hearing was also held on the question of admissibility of the two statements. The issue was submitted to the trial court by the appellant on the record of the suppression hearings held during the second trial. The evidence presented by the state at the suppression hearings during the second trial consisted of the testimony of two officers who conducted the interrogations, the transcripts of the tape recordings of the two statements, the tape recording of the second statement, and the post-interrogation photographs of the appellant, which show that he had not been abused or mistreated and that he was alert. The evidence presented by the state disclosed that before each interrogation, the appellant was advised of the charges against him, was given proper Miranda warnings, acknowledged that he understood his rights, expressly waived those rights, agreed to make statements about his participation in the three crimes, acknowledged that no promises had been made to him and that he had not been threatened or pressured in any way, and acknowledged that he was not under the influence of alcohol during the interrogation. The reasons given by the appellant for making the statements were plausible. The tape-recorded statements themselves reflect spontaneity, cooperation by the appellant, and voluntariness.
We addressed the admissibility of the statements in Bush II and found that the appellant did not assert his right to remain silent, that the statements were not obtained by physical force or threats thereof or by psychological coercion, and that his statements were knowingly and voluntarily made with proper Miranda warnings and, thus, that they were admissible into evidence. Bush II, 523 So.2d at 549-57 . We have reviewed the record of the suppression hearings, have again viewed the post-interrogation photographs of the appellant, and have listened to the two tape-recorded statements, and we reaffirm and adopt our previous holding that the statements were knowingly and voluntarily made after proper Miranda warnings. The allegations in the appellant's brief that his statements were obtained by threats and abuse are not supported by the record. Bush II, 523 So.2d at 549-557 . The trial court properly denied the motion to suppress the appellant's statements.
I.
The appellant contends that the trial court relied on an incorrect legal standard in finding the existence of the aggravating circumstance that the charged capital offense was especially heinous, atrocious, or cruel when compared to other capital offenses, § 13A-5-49(8), and that the court based its finding on insufficient evidence. He argues that the trial court improperly considered this circumstance in overriding the jury's recommendation of life imprisonment without the possibility of parole. The appellant argues this aggravating circumstance applies only to those murders where the assailant purposely causes an unusual and unnecessary amount of pain or torture to the victim before death. He cites in support of his argument Ex parte Kyzer, 399 So.2d 330, 334 (Ala.1981), in which the Alabama Supreme Court held that for the crime to fit within the especially heinous, atrocious, or cruel circumstance, it must be one of "those conscienceless or pitiless homicides which are unnecessarily torturous to the victim." He argues *84 that because Dominguez died almost instantly in an execution-type killing and allegedly did not suffer unnecessary pain and torture, it was improper for the trial court to find the existence of this aggravating circumstance.
We first note that the trial court rendered the sentence of death with its consideration of this aggravating circumstance and, in the alternative, without consideration of this circumstance. The trial court, as reflected by its sentencing order, found the existence of two additional aggravating circumstances: the appellant was previously convicted of the offense of robbery in March 1970 (§ 13A-5-49(2)); and the charged capital offense was committed while the appellant was engaged in or was an accomplice in the commission of a robbery (§ 13A-5-49(4)). The trial court stated in its sentencing order that "even without the inclusion of the aggravating circumstance that the crime was especially heinous, atrocious, or cruel compared to other capital offenses, the remaining aggravating circumstances outweighed the mitigating circumstances."
While the appellant correctly points out that we have upheld findings of the existence of the aggravating circumstance that the crime was especially heinous, atrocious, or cruel in cases where the victim suffered unnecessary torture, he ignores the line of cases holding that execution-type slayings evincing a cold, calculated design to kill fall into the category of especially heinous, atrocious, or cruel. See, e.g., Ex parte Rieber, 663 So.2d 999 (Ala.1995); Wright v. State, 494 So.2d 726, 743-44 (Ala.Cr.App.1985), aff'd, 494 So.2d 745 (Ala.1986), cert. denied, 479 U.S. 1101 , 107 S.Ct. 1331 , 94 L.Ed.2d 183 (1987).
In fact, the precise issue raised by the appellant here was raised in the first trial, and in Bush I, where in affirming that sentence, we specifically held:
"[F]or the reasons set out by the trial court, this capital offense was especially heinous, atrocious or cruel when compared to other capital offenses. Execution-type slayings evincing a cold, calculated design to kill, fall into the category of heinous, atrocious or cruel. Vaught v. State, 410 So.2d 147 (Fla.1982); Combs v. State, 403 So.2d 418 (Fla.1981); Armstrong v. State, 399 So.2d 953 (Fla.1981); Alvord v. State, 322 So.2d 533 (Fla.1975), cert. denied, 428 U.S. 923 , 96 S.Ct. 3234 , 49 L.Ed.2d 1226 (1976). We recognize that an instantaneous death caused by gunfire is not ordinarily a heinous killing. Odom v. State, 403 So.2d 936 (Fla.1981). However, when a defendant deliberately shoots a victim in the head in a calculated fashion to avoid later identification, after the victim has already been rendered helpless by gunshots to the chest, such `extremely wicked or shockingly evil' actions may be characterized as especially heinous, atrocious or cruel. Hargrave v. State, 366 So.2d 1, 5 (Fla.1978)."
431 So.2d at 560-61. In reviewing our opinion in Bush I, a portion of which is quoted above, the Alabama Supreme Court stated, "We concur with the appellate court's conclusion that Bush's death sentence was properly arrived at and is appropriate." Ex parte Bush, 431 So.2d at 565. See also Ex parte Rieber (quoting Bush I with approval in upholding the trial court's finding that the execution-type killing of the victim was especially heinous, atrocious, or cruel).
In this case, the trial court in its sentencing order made the following findings in reference to this aggravating circumstance:
"The Court does find from the evidence presented during the 1991 trial, which this Court has carefully considered, that the capital offense was especially heinous, atrocious or cruel compared to other capital offenses. This finding is based upon the evidence at trial that Larry Dominguez had already been shot and was stumbling or staggering out of the restroom when the Defendant shot him again. The evidence at trial was that the murder was committed so that the Defendant could eliminate an eyewitness to the robbery.
"The Court finds from the evidence presented that William Bush deliberately shot Larry Dominguez in the head in a calculated fashion to avoid later identification after the victim had already been critically wounded. As previously noted, the killing of Larry Dominguez was an execution-type killing and was followed within approximately *85 one hour by another murder of the same nature.
"The Court is constrained to find from the evidence that this act was extremely wicked and shockingly evil."
The evidence surrounding the charged capital offense supports the trial court's findings that the killing of Dominguez was an execution-type killing where the appellant "deliberately shot Larry Dominguez in the head in a calculated fashion to avoid later identification after the victim had already been critically wounded." Moreover, the appellant admitted to Patricia Pringle, the wife of the accomplice Edward Pringle, that the killing was an execution-type killing. She testified that when she asked the appellant why he had shot the three victims, he said, "[B]ecause [I] couldn't have anybody looking." We concur in the finding of the trial court that the capital offense for which the appellant was convicted was especially heinous, atrocious, or cruel when compared to other capital offenses. The record fully supports this finding. We adopt and reaffirm our prior holding in Bush I on this issue.
In further contesting the trial court's finding that the charged capital offense was especially heinous, atrocious, or cruel, the appellant contends that the trial court improperly considered his involvement in the subsequent, collateral murder of Thomas Adams during the robbery at the Seven-Eleven store. He argues that the subsequent collateral crime was unrelated to the killing of Dominguez and that the admission of evidence pertaining to that collateral crime violated the general exclusionary rule, which prohibits the introduction of evidence of crimes not charged in the indictment.
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 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 863 (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).
*86 The state argues that the evidence of the collateral capital crime was admissible under three exceptions to the general exclusionary rule: part of the res gestae or continuing transaction, relevant to motive, and relevant to identity. The trial court admitted the evidence of the collateral crime over the appellant's objection without giving a reason for its ruling.
We hold that the evidence of the collateral capital offense was admissible as part of the res gestae of the charged capital offense. The two crimes are intertwined and connected to such an extent that they form one continuous transaction. McElroy's, § 70.01(24)(b), in regard to the res gestae exception, states "Prior and subsequent criminal acts of the defendant are admissible in a robbery prosecution if such crimes fall within the res gestae of the now charged crime. This is sometimes referred to as the `one continuous transaction' exception to the general exclusionary rule." (Citations omitted.) The record discloses that the appellant and Edward Pringle entered the Majik Market store with the intent to rob its cashier in order to get money to buy drugs and that the appellant, after shooting Dominguez and Holmes, was unable to get into the cash register. Failing in their effort to get money at the Majik Market convenience store, they immediately drove to a nearby Seven-Eleven convenience store and, within an hour, entered that store with the same purpose in mind, i.e., to obtain money to buy drugs. After killing the cashier, they took approximately $30 from the cash register, along with a bank bag and checks. The second crime was obviously committed because the appellant and Pringle had failed in their efforts to get money in the commission of the first capital murder crime.
Upon this evidence, we also hold that the evidence of the collateral capital crime was admissible under the intent and motive exceptions to the general exclusionary rule. The appellant's motive and intent in committing the charged capital offense at the Majik Market were brought into question by the appellant's claim that the state's evidence was insufficient to prove that the murder was committed during the course of a robbery. He argues that because his theft of the zodiac sign tags was allegedly an afterthought and occurred after the shootings and while the appellant was fleeing the scene, the murder was not committed in the course of the commission of a robbery. Because the appellant's motive and intent when he entered the store and shot Dominguez and Holmes were called into question, his subsequent actions in the Seven-Eleven store were relevant in proving his intent and motive in committing the charged offense.
Because the evidence of the collateral capital crime was admissible against the appellant as part of the whole criminal scheme, and as relevant to prove identity and motive, the trial court did not err in considering the evidence of the collateral crime in finding that the charged crime was especially heinous, atrocious, or cruel when compared to other capital offenses.
II.
The appellant contends that because he allegedly was not given notice of the state's intention to rely on the aggravating circumstances that the crime was especially heinous, atrocious, or cruel, § 13A-5-49(8), and that the defendant had previously been convicted of another capital offense or a felony involving the use or threat of violence to the person, § 13A-5-49(2), the trial court erred in instructing the jury to consider them and also in considering those aggravating circumstances. He contends that this failure of the state to give him notice denied him due process.
Before trial, the appellant moved to prohibit the state from relying on the aggravating circumstance that the crime was especially heinous, atrocious, or cruel, and the prosecutor responded that he did not intend to rely on that aggravating circumstance. The trial court did not rule on the appellant's motion.
The following exchange occurred at the beginning of the sentencing hearing before the jury:
"THE COURT: I think there are just really three possible aggravating circumstances.
*87 "MR. BELSER [prosecutor]: As one of the aggravating circumstances we intend to offer certified copies of a prior 1970 robbery conviction.
"THE COURT: You've got that one; and you've got the commission of murder during a robbery, and you've got another, heinous and atrocious—
"MR. GLASSROTH [defense counsel]: Of course, the defense is going to object and wants to make a record on heinous, atrocious, and cruel.
"THE COURT: Well, you asked for instruction on it.
"MR. GLASSROTH: That's if the Court is going to charge on heinous, atrocious and cruel. We object but without waiving the objection we will submit a charge, if the Court is of mind.
"THE COURT: You've already submitted a charge.
"MR. GLASSROTH: Yes, sir. I will withdraw it if the Court is not going to—if my withdrawal would result in the Court not charging on it."
At no time did the appellant object to the consideration and finding of these aggravating circumstances on the ground that he had not received notice of the state's intention to rely upon them. In fact, no objection of any kind was raised in the trial court as to the aggravating circumstances in § 13A-5-49(2).
Because no objection was lodged on the ground of lack of notice, we must review this issue under the plain error rule. In considering what constitutes plain error in a capital case, we have adhered to the interpretation of the term "plain error" adopted by the Alabama Supreme Court, which follows the interpretation given that term by the federal courts. See Ex parte Harrell, 470 So.2d 1309 (Ala.), cert. denied, 474 U.S. 935 , 106 S.Ct. 269 , 88 L.Ed.2d 276 (1985); Ex parte Womack, 435 So.2d 766 (Ala.), cert. denied, 464 U.S. 986 , 104 S.Ct. 436 , 78 L.Ed.2d 367 (1983). See also Hooks v. State, 534 So.2d 329 (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). Plain error is error that has or probably has adversely affected a substantial right of the appellant, Ala.R.App.P. 45A, or is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings. Ex parte Womack. The failure to object at trial weighs against any claim of prejudice an appellant may make. Kuenzel v. State, 577 So.2d 474 (Ala.Cr.App.1990), aff'd, 577 So.2d 531 (Ala.1991).
The aggravating circumstances enumerated in § 13A-5-49 that may lead to the imposition of the death penalty in a capital case are not elements of the offense and are not required to be set forth in the indictment. Dobard v. State, 435 So.2d 1338, 1347 (Ala.Cr.App.1982), aff'd, 435 So.2d 1351 (Ala. 1983), cert. denied, 464 U.S. 1063 , 104 S.Ct. 745 , 79 L.Ed.2d 203 (1984). A defendant has no right to advance notice of the state's intention to rely on any of the aggravating circumstances. Clark v. Dugger, 834 F.2d 1561, 1566 (11th Cir.1987), cert. denied, 485 U.S. 982 , 108 S.Ct. 1282 , 99 L.Ed.2d 493 (1988); Knotts v. State, 686 So.2d 431 (Ala. Cr.App.1985); Ruffin v. State, 397 So.2d 277, 282 (Fla.), cert. denied, 454 U.S. 882 , 102 S.Ct. 368 , 70 L.Ed.2d 194 (1981). The list of aggravating circumstances in § 13A-5-49 is exclusive and puts the defendant charged with a capital felony on notice of those circumstances against which the defendant may be required to defend. This statutory notice satisfies constitutional requirements.
In this case, because the aggravating circumstances that the crime was especially heinous, atrocious, or cruel, and that the appellant had previously been convicted of a felony involving the use or threat of violence to the person were relied upon and found to exist in the appellant's two previous trials, it certainly came as no surprise to the appellant that the trial court would instruct the jury to consider them and also that it would consider and find them in this third trial. The fact that the appellant had submitted a requested written instruction to the trial court on the aggravating circumstance that the crime was especially heinous, atrocious, or cruel shows that he anticipated and expected the consideration and possible finding of such aggravating circumstance.
The question does arise as to whether the prosecutor's representation before the *88 trial that the state would not rely on the aggravating circumstance that the crime was especially heinous, atrocious, or cruel misled the appellant to his prejudice. Under the facts and circumstances here, we do not think so. Reliance by the appellant on the prosecutor's statement in the absence of a ruling or an understanding of the trial court would have been unreasonable. The appellant was aware at the beginning of the sentencing proceedings that the trial court would consider and instruct the jury on the aggravating circumstance in question. When the trial court indicated that it would consider the aggravating circumstance, the appellant did not seek a recess or a continuance or make any showing of what he would have expected to present had he been given any better notice. The appellant does allege in brief that he could have possibly presented expert testimony that the victim was dispatched quickly without pain to show that the crime was not especially heinous, atrocious, or cruel. However, such testimony would have been of little benefit to him in view of our holding in Part I that an execution-type killing is itself especially heinous, atrocious, or cruel as compared to other capital offenses.
We find no error, certainly no plain error.
III.
The appellant contends that the trial court erred in refusing and/or failing to consider "significant" mitigating evidence, both statutory and nonstatutory, in overriding the jury's unanimous recommendation that he be sentenced to life imprisonment without the possibility of parole and in sentencing him to death. He lists this alleged evidence as follows: The fact that he was "significantly impaired and disturbed" at the time he shot and killed Dominguez due to his use of "narcotic drugs"; his "minimal" education and "unusually low intelligence"; his confession to the police and his expressed remorse for the killing; his difficult childhood; his study of technical subjects that enabled him to be gainfully employed for several years; his "model" behavior during his years on death row; his spiritual conversion while on death row; his artwork; his family relationships; his worth as a human being; and the fact that his codefendant received a sentence of life imprisonment without parole sentence while the appellant received a death sentence. He contends that because of the trial court's failure or refusal to consider these mitigating circumstances, he is entitled to a new sentencing hearing before the trial court where the allegedly mitigating circumstances will be properly considered and weighed.
The appellant failed to raise any objection in the trial court to that court's sentencing order concerning its consideration and findings in reference to mitigating circumstances. Thus, we must review this issue under the plain error rule.
The trial court's sentencing order in reference to matters of mitigation is as follows:
"1. The Court finds from the evidence that William Bush does have a significant history of prior criminal activity in that he has been previously convicted of Robbery.
"2. The Defendant contends in a written statement that he was under the influence of narcotics at the time of the capital offense. The Court does not find from the evidence that the Defendant was under the influence of extreme mental or emotional disturbance.
"3. The Court finds that the victim, Larry Dominguez, was not a participant in Mr. Bush's conduct and did not consent to the act.
"4. The evidence establishes that the Defendant was a major participant in the capital offense and that the shootings were done by him. The evidence establishes that the Defendant shot with his own pistol the victims, Dominguez, Adams and Holmes.
"5. The Court finds from the evidence that Mr. Bush did not act under extreme duress or under the substantial domination of another person.
"6. The Court finds that the capacity of Mr. Bush to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was not substantially impaired. The Court finds from the evidence that the Defendant, William Bush, knew full well what he was doing *89 and that what he was doing was wrong. He stated to a witness that he shot the victims so that there would be no eyewitness to him criminality.
"7. The evidence establishes that the Defendant was thirty-one years of age at the time of the capital offense.
"8. In addition to the above enumerated mitigating circumstances the Defendant, at the sentence hearing conducted by the Court, was given an opportunity to present any other evidence of mitigating circumstances and to make any statement of mitigating circumstances. The Court heard testimony from family members that William Bush was a productive member of society and that while in prison he has shown remorse for his crime and that the life of William Bush is of value, which the Court finds to be a mitigating circumstance.
"9. The Court considers as a mitigating circumstance the evidence that William Bush has made a spiritual conversion during the last two years that has made a difference in his life. Defendant while in prison has done artwork which reflects his worth as a human being.
"10. The Court considers the advisory vote of the jury of twelve for life without parole and zero for death to be a mitigating circumstance."
After reviewing the record, we conclude that the trial court considered all matters offered in mitigation by the appellant and did not restrict the appellant in any manner in his presentation of evidence in mitigation. Although the trial court failed to find the existence of any enumerated statutory mitigating circumstance, it found the existence of several nonstatutory mitigating circumstances: that the appellant was a productive member of society, that he showed remorse for his crime while in prison, that his life is of value, that he had made a spiritual conversion during the last two years that has made a difference in his life, that he has done artwork while in prison that reflects his worth as a human being, and that the jury recommended a sentence of life imprisonment without the possibility of parole by a unanimous vote.
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 , 57 L.Ed.2d 973 (1978)). The capital defendant 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 of 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). Thus the trial court's failure to list and to make findings in its sentencing order as to all of the alleged nonstatutory mitigating circumstances offered by the appellant indicates only that it found the evidence not mentioned to be not mitigating, not that the evidence was not considered.
In more specific regard to the appellant's argument that the trial court refused and/or failed to consider as a mitigation that he was "significantly impaired and disturbed" at the time of the commission of the charged offense because of his use of "mind-altering" *90 drugs, we do not agree that the trial court refused or failed to consider the possibility that the appellant was using drugs at the time he committed the offense. The sentencing order shows that the trial court considered the appellant's contention that he was under the influence of narcotics at the time of the offense. From the trial court's findings that the appellant was not under the influence of extreme mental or emotional disturbance at the time of the commission of the offense, that his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was not substantially impaired, and that he knew "full well what he was doing and [that] what he was doing was wrong," it is obvious that the trial court considered the appellant's alleged use of drugs at the time of the offense and found that the evidence did not support a finding that it constituted a mitigating circumstance. We agree with this finding. The confessions of the appellant clearly show that he knew what he was doing and that he knew that it was wrong. Even assuming as true his allegations of his "shooting up" a "couple" of times that night on "speed" or "bam," the evidence was insufficient to show that he was so intoxicated or affected by the drugs that he was incapable of appreciating and controlling his conduct. He indicated that he was not a regular drug user. His rendition of the events of that evening is clear and concise. Moreover, he did not give drugs as the reason for the shootings. His reasons were to eliminate the possibility of witnesses and to "try to keep them from getting to a phone so [the appellant] could get away."
In more specific regard to the appellant's contention that the trial court refused and/or failed to consider as mitigation his alleged "unusually low intelligence," we have found nothing to factually support his allegation. Although he dropped out of school in the seventh grade, this is no indication of a low intelligence. We further note that he received "technical" education while serving time in a federal prison in Texas.
We find it noteworthy that, while the trial court found as a mitigating factor that while in prison the appellant had shown remorse for his crime, during the trials of this case, as we have previously stated, he contended that his confessions were obtained by coercion and he attempted to cast suspicion for commission of the charged crime on Cornelius Pringle, a person who has not been connected in any manner with the offense. We also note the following statement by the appellant during his sentencing hearing, when the court asked him if he had anything to say before his sentence was imposed:
"Yeah, I have a number of things to request of you, Judge, the Court. For the last 10 or 11 years I've been accused of this crime, robbery and murder. For the last 7 or 8 years I've been telling y'all I'm not guilty, I haven't did this crime. So, in other words, the only eyewitness in this case have came forward on several occasions and say I wasn't the one, he say he know who shot and robbed; but it also turned around he said that the District Attorney and the police said if he said Bush did this here, they'd get the reward money. The way I look at it, if this happened they know I'm not guilty, why do they keep on bringing the only eyewitness forward telling him to say I'm the one who did that, they will get the reward money. I'm not guilty. I'm innocent of this case."
The appellant's contention that the trial court should have found the fact that his accomplice was sentenced to life without the possibility of parole sentence to be a mitigating circumstance has no merit. The appellant was the confessed triggerman.
In summary, the appellant's contentions concerning the court's consideration and findings in reference to the mitigating circumstances do not rise to the level of plain error.
IV.
The appellant contends that the trial court erred in relying on his 1970 robbery conviction to prove the aggravating circumstance that "[t]he defendant was previously convicted of another capital offense or a felony involving the use or threat of violence to the person, § 13A-5-49(2)." He argues that the state failed to prove that the guilty plea underlying the conviction was knowingly and *91 voluntarily entered and that he was represented by counsel at the guilty plea proceedings.
We note that, in the prior two trials, the state relied on this prior conviction as an aggravating circumstance, that the state proved it in the same manner as it was proved in the third trial, and that the trial court found it to be an aggravating circumstance. No objection was ever made to the state's manner of proving this conviction in any of those prior proceedings, nor has the issue been raised in the prior appeals. When the court record was offered into evidence to prove the conviction in this case, the appellant did not object to its admission. Moreover, the appellant did not object to the trial court's instruction to the jury in the sentencing phase that it could consider in its deliberations the aggravating circumstance that "[t]he defendant has been previously convicted of a felony involving the use or threat of violence to the person." Finally, he did not object to the inclusion of the prior robbery conviction in the presentence report. Because this issue of the court's reliance on the appellant's prior robbery conviction was never raised in the trial court, it must be reviewed under the plain error rule. It is reasonable to conclude from the record that the appellant consented to the admission of the evidence of his prior conviction. We further note that the appellant's counsel even referred to the prior conviction when, in arguing to the jury in the sentencing phase, he stated, "A conviction in 1970, a debt that has been paid."
Section 13A-5-10.1, which pertains to the proof of prior felony convictions for enhancement under the Habitual Felony Offender Act, provides, "Certified copies of the case action summary sheets, docket sheets, or other records of the court are admissible for the purpose of proving prior convictions of a crime, if the prior conviction is otherwise admissible under the laws of this state." This has also been recognized as a proper method for proving a prior conviction to establish the existence of an aggravating circumstance in a capital case. See Jones v. State, 520 So.2d 543 (Ala.Cr.App.1984), aff'd, 520 So.2d 553 (Ala.), cert. denied, 488 U.S. 871 , 109 S.Ct. 182 , 102 L.Ed.2d 151 (1988); Cosby v. State, 627 So.2d 1059 (Ala.Cr.App.1993).
The appellant's contention that the court record of the 1970 robbery conviction fails to show that he was represented by counsel is without merit. The docket sheet shows that the appellant was represented by H. Perdue. Docket sheet entries recite that the appellant was represented by counsel at arraignment and at the guilty plea and sentencing proceedings. If the court document indicates that a defendant was represented by counsel, it is presumed that counsel was present at all critical stages of the proceedings. Section 13A-5-10.1(c).
The appellant's contention that the trial court should not have relied on his prior conviction because the state failed to prove that his guilty plea was knowingly and voluntarily entered is, likewise, without merit. Such an assertion amounts to a collateral attack on his 1970 robbery conviction. The proper forum for attacking the validity of the prior conviction would be by Ala.R.Cr.P. 32 post-conviction petition in the court of conviction. Ex parte Madden, 602 So.2d 1192 (Ala.1991); Johnson v. State, 541 So.2d 1112 (Ala. Cr.App.1989). Here, the trial court could not have looked beyond the facial validity of the conviction. In this case, the judgment of the Montgomery Circuit Court appears valid upon its face. It reflects that the circuit court had jurisdiction of the offense charged and the defendant, William Edward Bush. Proof of the conviction and proof that the appellant was represented by counsel at the time of the conviction were all that was required. In our opinion, the state met this burden and proved the conviction beyond a reasonable doubt. [4] We find no plain error in these contentions.
V.
The appellant contends that in overriding the jury's sentence recommendation, *92 the trial court considered "improper information" contained in the presentence report. He states that this "improper information" included "nonstatutory aggravating evidence" about his juvenile record. He does not identify any other portions of the presentence report that he considers improper.
The presentence report was prepared and filed in accordance with § 13A-5-5; § 13A-5-47(b); and Rule 26.3, Ala.R.Cr.P., and was considered by the trial court in determining the appellant's sentence. It shows two juvenile adjudications involving the appellant in 1965 and in 1968. The appellant cites Freeman v. State, 555 So.2d 196, 212 (Ala.Cr.App. 1988), aff'd, 555 So.2d 215 (Ala.1989), cert. denied, 496 U.S. 912 , 110 S.Ct. 2604 , 110 L.Ed.2d 284 (1990) to support his contention. However, his reliance on Freeman is misplaced. While the Freeman court correctly held that juvenile adjudications are not convictions or criminal in nature and cannot be considered to negate the statutory mitigating circumstance that a defendant has no significant history of prior criminal activity, § 13A-5-51(1), it did not address aggravating circumstances. In finding that this mitigating circumstance did not exist, the trial court did not rely on the juvenile adjudications, but rather correctly found that the appellant had a significant history of prior criminal activity in that he had been previously convicted of robbery. (The presentence report shows that the appellant also had prior convictions for larceny and for a violation of the federal firearms act.)
A trial court may consider only those aggravating circumstances listed in § 13A-5-49 in fixing the death penalty. Clisby v. State, 456 So.2d 99 (Ala.Cr.App.1983); Berard v. State, 402 So.2d 1044 (Ala. Cr.App.1981). In this case, the trial court found the existence of three statutory aggravating circumstances: (1) that the defendant had previously been convicted of the offense of robbery in March 1970; (2) that the capital offense was committed while the defendant was engaged in or was an accomplice in the commission of a robbery; and (3) that the capital offense was especially heinous, atrocious, or cruel when compared to other capital offenses. There is nothing in the record or in the sentencing order from which one could even infer that the trial court considered the appellant's juvenile record, as shown in the presentence report, as nonstatutory aggravating evidence. We, thus, find no merit to the appellant's contention. In the absence of some evidence to the contrary, we must presume that the trial court knew the law and that it correctly applied it in making its decision. Walton v. Arizona, 497 U.S. 639 , 110 S.Ct. 3047 , 111 L.Ed.2d 511 (1990); Hutcherson v. State, 677 So.2d 1174 (Ala.Cr.App.1994).
We are convinced after reviewing the record that the trial court's use of the presentence report in determining the appellant's sentence was consistent with § 13A-5-45(d), which states:
"Any 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. This subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or the State of Alabama."
The appellant also contends that the presentence report includes "damaging" statements made by him during an "unwarned, uncounseled presentence interview" with the probation officer who prepared the report. He does not identify which statements he considers damaging. The cases of Powell v. Texas, 492 U.S. 680 , 109 S.Ct. 3146 , 106 L.Ed.2d 551 (1989), and Estelle v. Smith, 451 U.S. 454 , 101 S.Ct. 1866 , 68 L.Ed.2d 359 (1981), relied upon by the appellant, are not applicable to this presentence report. In those cases, the Court held that a capital defendant's Fifth Amendment right against compelled self-incrimination precluded the state from subjecting him to a psychiatric examination concerning future dangerousness without first informing him (1) that he has a right to remain silent and (2) that anything he says can be used against him at a sentencing proceeding, and further that once a capital defendant is formerly charged, the Sixth Amendment right to counsel precludes *93 such a psychiatric examination without first notifying counsel that the examination will encompass an assessment of future dangerousness. It is apparent from the presentence report that the appellant was interviewed by the preparer of the report and that the information given was of a general background nature typically found of presentence reports. The presentence report shows that no psychological reports were considered, and it is readily apparent that no questions were asked by the interviewer and no responses made by the appellant that would bear in any way upon the question of the appellant's future dangerousness. The report is silent in this regard. It can only be concluded that future dangerousness was not a subject of the interview. We note that in the interview the appellant denied his guilt.
In conclusion, we have searched the presentence report and we find no improper information in it and certainly no damaging statements of the type referred to by the appellant and discussed in the cases cited. It meets the requirements of the applicable statutes and rule.
The appellant did not object to the presentence report when he was afforded an opportunity to do so at trial; he raises these objections for the first time on appeal. We have, therefore, reviewed his contentions under the plain error rule. We find no merit in these contentions, and certainly no plain error.
VI.
The appellant contends that § 13A-5-47(e), which provides as follows, is unconstitutional on its face.
"In deciding upon the sentence, the trial court shall determine whether the aggravating circumstances it finds to exist outweigh the mitigating circumstances it finds to exist, and in doing so the trial court shall consider the recommendation of the jury contained in its advisory verdict, unless such a verdict has been waived pursuant to section 13A-5-46(a) or 13A-5-46(g). While the jury's recommendation concerning sentence shall be given consideration, it is not binding upon the court."
He argues that the statute does not contain adequate standards or safeguards to guide the trial court in exercising its authority to override the recommendation of the jury and that because of this deficiency, it was unconstitutionally applied in this case.
The appellant's contention that the override provision of § 13A-5-47(e) is facially unconstitutional is without merit. The United States Supreme Court, as well as the courts of this state, have consistently upheld the validity of the judicial override of advisory jury verdicts. See, e.g., Harris v. Alabama, 513 U.S. 504 , 115 S.Ct. 1031 , 130 L.Ed.2d 1004 (1995); Clemons v. Mississippi, 494 U.S. 738 , 110 S.Ct. 1441 , 108 L.Ed.2d 725 (1990); Spaziano v. Florida, 468 U.S. 447 , 104 S.Ct. 3154 , 82 L.Ed.2d 340 (1984); Ex parte Jones, 456 So.2d 380 (Ala.1984), cert. denied, 470 U.S. 1062 , 105 S.Ct. 1779 , 84 L.Ed.2d 838 (1985); Freeman v. State, 555 So.2d 196 (Ala.Cr.App.1988), aff'd, 555 So.2d 215 (Ala.1989), cert. denied, 496 U.S. 912 , 110 S.Ct. 2604 , 110 L.Ed.2d 284 (1990). In this state, the recommendation of the jury is advisory only and is not binding upon the trial court. Ex parte Jones. The trial court, not the jury, is the sentencing authority. Freeman v. State.
Section 13A-5-47(e) prescribes the following standard of review for jury override, which standard meets constitutional requirements: "The whole catalog of aggravating circumstances must outweigh mitigating circumstances before a trial court may opt to impose the death penalty by overriding the jury's recommendation." Ex parte Jones, 456 So.2d at 382. The appellant's argument that the Alabama Death Penalty Act permits a trial court to impose a death sentence without any standards to guide its discretion is simply not true and ignores the requirements of the override provision.
The appellant argues that we should follow the Florida standard for jury override prescribed in Tedder v. State, 322 So.2d 908 (Fla.1975). Tedder provides that, in order for a trial court to reject a jury's recommendation of a sentence of life imprisonment without parole, "the facts suggesting a sentence of death [must be] so clear and convincing that virtually no reasonable person *94 could differ." Id. at 910 . The Tedder standard is not constitutionally mandated, Harris v. Alabama ; Ex parte Jones, and we have chosen not to read the Tedder standard into our death penalty statute.
What we do require is that, before sentencing a defendant to death, the trial court consider all the available evidence; hear arguments on aggravating and mitigating circumstances; enter written findings of fact summarizing the crime and the defendant's participation in it; make specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in § 13A-5-49, each mitigating circumstance enumerated in § 13A-5-51, and any additional mitigating circumstance offered pursuant to § 13A-5-52; consider and weigh the advisory verdict of the jury; consider and weigh the presentence investigation report; consider and weigh the mitigating and aggravating circumstances; and determine that the aggravating circumstances outweigh the mitigating circumstances. We believe that this scheme adequately channels the trial court's discretion so as to prevent arbitrary results. The Eighth Amendment does not require the state to define the weight the sentencing judge must accord an advisory verdict. Harris v. Alabama .
"[T]he sentencing authority in Alabama, the trial judge, has unlimited discretion to consider any perceived mitigating circumstances, and he can assign appropriate weight to particular mitigating circumstances. The United States Constitution does not require that specific weights be assigned to different aggravating and mitigating circumstances. Murry v. State, 455 So.2d 53 (Ala.Cr.App.1983), rev'd on other grounds, 455 So.2d 72 (Ala.1984). Therefore, the trial judge is free to consider each case individually and determine whether a particular aggravating circumstance outweighs the mitigating circumstances or vice versa. Moore v. Balkcom, 716 F.2d 1511 (11th Cir.1983). The determination of whether the aggravating circumstances outweigh the mitigating circumstances is not a numerical one, but instead involves the gravity of the aggravation as compared to the mitigation."
Clisby v. State, 456 So.2d 99, 102 (Ala.Cr. App.1983). We are convinced, after reviewing the record in this case, that the trial court complied with the sentencing scheme of Alabama's death penalty statute and that the sentence that it imposed, overriding the jury's verdict, met constitutional requirements and was not arbitrary, discriminatory, or fundamentally unfair.
VII.
The appellant contends that the trial judge erroneously denied the appellant's motion to recuse himself because the judge had presided over the appellant's previous two trials in which he ultimately sentenced the appellant to death. He asserts that because the trial judge had already sentenced the appellant to death twice, it was a foregone conclusion that the judge would again sentence the appellant to death despite the jury's unanimous advisory verdict recommending life imprisonment without the possibility of parole. This contention is not supported by the record.
"`A judge should not act "if he has any interest, the probable and natural tendency of which is to create a bias in the mind of the judge for or against a party to the suit." Morgan County Commission v. Powell, 292 Ala. 300, 311 , 293 So.2d 830, 839 (1974).... A mere accusation of bias unsupported by substantial fact does not require disqualification of a judge. Taylor v. Taylor, 387 So.2d 849, 852 (Ala.Civ.App. 1980).' Ross v. Luton, 456 So.2d 249, 254 (Ala.1984). In this State, the general rule is that a judge is presumed to be qualified and unbiased, McMurphy v. State, 455 So.2d 924, 929 (Ala.Cr.App.1984), and the movant has a substantial burden in proving otherwise. Irby v. State, 429 So.2d 1179 (Ala.Cr.App.1983). `Evidence must be presented to prove the judge possesses a personal bias as opposed to one that is judicial in nature. Personal as opposed to judicial bias is characterized by an attitude of extrajudicial origin derived non coram judice.' Moreland v. State, 469 So.2d 1305, 1307 (Ala.Cr.App.1985). `Bias and prejudice must be shown by the conduct of the *95 trial judge and may not be presumed or inferred by his subjective views.' Hartman v. Board of Trustees of the University of Alabama, 436 So.2d 837, 841 (Ala.1983). `The appellant must present evidence to prove the personal bias of a judge, or else his motion cannot prevail.' Slinker v. State, 344 So.2d 1264, 1268 (Ala. Cr.App.1977). On appeal, the trial judge's refusal to recuse himself will not be reversed in the absence of clear evidence of bias or prejudice. Moreland, 469 So.2d at 1307 .
"In McMurphy, 455 So.2d at 929 , this court observed,
"`As stated by the Alabama Supreme Court in the case of In re Raines, 294 Ala. 360 , 317 So.2d 559 (1975), "pretrial involvement or knowledge on the part of a trial judge does not necessarily create an unconstitutional risk [of] bias." Id., at 366 , 317 So.2d 559 ....
"`....
"`... Nor is bias proved simply because the trial judge who presided at the second trial of defendant had also presided at his first trial and heard evidence later found to be inadmissible by an appellate court. Walker v. State, 38 Ala.App. 204 , 84 So.2d 383 (1955).'
"This court has found no error in a trial judge's refusal to recuse himself in cases involving the retrial of a capital offense. Giles v. State, [ 554 So.2d 1073 ] (Ala.Cr. App.1984); Whisenhant v. State, 482 So.2d 1225, 1227 (Ala.Cr.App.1982), aff'd. in pertinent part, 482 So.2d 1241, 1245 (Ala.1983), rev'd on other grounds, 482 So.2d 1247 (Ala.), remanded for new sentencing hearing, 482 So.2d 1249 (Ala.Cr.App.1984). The result of Giles and Whisenhant is founded on the defendant's failure to prove bias on the part of the trial judge."
Rutledge v. State, 523 So.2d 1087, 1109 (Ala. Cr.App.1987), rev'd on other ground, 523 So.2d 1118 (Ala.1988).
Contrary to the appellant's assertion, we find no evidence that the trial judge in this case was personally biased toward the appellant. The appellant has failed to rebut the presumption that the trial judge was qualified and unbiased and, thus, we find no error in the court's denial of the appellant's motion.
VIII.
The appellant contends that he was denied his constitutional rights by the state's exercise of its peremptory jury strikes in a racially discriminatory manner, in violation of Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). He raised the Batson issue by motion to quash the venire after the jury was selected and before the jury was sworn.
Under Batson , the appellant was initially required to make a prima facie showing that the state had exercised a peremptory challenge or challenges on the basis of race. To prove a prima facie case of purposeful discrimination under Batson and its progeny, a defendant must show (1) that members of a cognizable racial group or gender were excluded from the defendant's jury; (2) that he or she is entitled to rely on the fact that peremptory challenges constitute a jury selection practice that permits "those to discriminate who are of a mind to discriminate," and (3) that these facts and other relevant circumstances raise an inference that the prosecutor used such a practice to exclude venirepersons from the jury on account of race or gender. See Project, Twenty-Fourth Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1993-1994, 83 Geo.L.J. 665, 1125-26 (1995). If the defendant makes out a prima facie case of purposeful discrimination, the burden shifts to the state to go forward and articulate race- or gender-neutral explanations for the basis of the peremptory challenges.
In this case, the trial court found that the jury venire consisted of 76 potential jurors, of which 26 were black, and 50 were white. Thus, the black venirepersons constituted 34% of the venire. The court found that the state struck 18 blacks [5] and 14 whites and *96 that the appellant struck 29 whites and 3 blacks. At least one black was excused for cause on motion of the appellant. Four blacks remained on the trial jury. Thus, blacks comprised 33% of the trial jury. The state used 43.75% of its peremptory strikes to strike white venirepersons and 56.25% to strike black venirepersons. We find that the record supports the findings of the trial court.
The trial court was uncertain as to whether the appellant had made a prima facie case that the state had exercised its peremptory challenges on the basis of race, stating, "I think that 18-14 is possibly not a prima facie showing of improper jury selection." In fact, the trial court never made a finding that a prima facie showing had been made. However, it nevertheless "out of an abundance of caution" required the prosecutor to give his reasons for his peremptory strikes. Until the defendant has met his burden of establishing a prima facie case of purposeful discrimination in accordance with the requirements of Batson , the prosecution should not be required to state the reasons for its strikes. While we are not called upon to decide in this case whether the appellant established a prima facie case, we do not believe under the circumstances here that a prima facie case was established. However, when the trial court calls upon the prosecution for an explanation of its strikes without expressly finding a prima facie case, we proceed directly to evaluate the sufficiency of the ensuing explanations. Taylor v. State, 666 So.2d 36 (Ala.Cr.App.1994); Williams v. State, 548 So.2d 501 (Ala.Cr.App.1988), cert. denied, 489 U.S. 1028 , 109 S.Ct. 1159 , 103 L.Ed.2d 218 (1989).
The trial court evaluates an objection to the use of peremptory challenges under the three-step analysis set forth in Batson . First, as we have said, a defendant must make a prima facie showing that the state has exercised a peremptory challenge or challenges on the basis of race or gender. Second, once a prima facie showing has been made, the burden shifts to the state to articulate a race- or gender-neutral explanation for striking the prospective jurors in question that is related to the case to be tried. Batson, 476 U.S. at 98 , 106 S.Ct. at 1724 . The United States Supreme Court recently stated in Purkett v. Elem, 514 U.S. 765 , 115 S.Ct. 1769 , 131 L.Ed.2d 834 (1995), that the second step does not demand an explanation that is persuasive or even plausible. It stated that a legitimate explanation is not necessarily one that must make sense, but one that does not deny equal protection. At this step of the inquiry, the issue is facial validity of the prosecutor's explanation, and unless a discriminatory intent is inherent in the explanation, the reason offered will be deemed neutral. Id., at 767-68 , 115 S.Ct. at 1771. When the defendant challenges as pretextual the prosecutor's explanations as to a particular venireperson, the inquiry becomes factual in nature and moves to step three. At this step the trial court must resolve the factual dispute, and whether the prosecutor intended to discriminate is a question of fact. Hernandez v. New York, 500 U.S. 352, 364-65 , 111 S.Ct. 1859, 1868-69 , 114 L.Ed.2d 395 (1991). In the third step, the trial court must determine whether the defendant has met his burden of proving purposeful discrimination. At this stage, the trial court must consider the persuasiveness of the explanations, and it is also at this stage that "implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination." Purkett, 514 U.S. at 768 , 115 S.Ct. at 1771 .
Upon the conclusion of the state's explanation for its peremptory strikes, the trial court overruled the appellant's motion, stating, "I'm convinced that this jury was selected in a non-discriminatory manner." At that time, the appellant offered nothing to rebut the state's reasons given for the strikes or to *97 show that the strikes were pretextual, but stated that he was at a disadvantage in evaluating the state's explanations because he did not have access to the state's files on the prospective jurors. The trial court accepted the explanations given by the state at that time, but ordered the prosecution to deliver its files on the prospective jurors to the appellant, which included information from the Alabama crime information computer and pretrial questionnaires that had been filled out by the prospective jurors. It stated that it would afford the appellant an opportunity at a later time to present evidence to rebut the state's explanations and that that action would relate back as if done before the jury was sworn.
Following the trial, the trial court conducted a hearing, at which the appellant was afforded an opportunity to present evidence to rebut the state's explanations. At this hearing, the appellant attempted to rebut the prosecutor's explanation of only one venireperson, E.H., number 84. The appellant introduced into evidence the questionnaires of all the venirepersons and argued that some white venirepersons whose answers were as equivocal or more equivocal on the death penalty issue than E.H.'s had not been struck, thus, he argued, constituting disparate treatment. After the hearing, the trial court entered a formal order, making findings of fact concerning the state's peremptory strikes and again overruling the appellant's motion to quash.
We will not reverse a trial court's Batson ruling unless it is clearly erroneous. Ex parte Lynn, 543 So.2d 709 (Ala.1988), cert. denied, 493 U.S. 945 , 110 S.Ct. 351 , 107 L.Ed.2d 338 (1989); Ex parte Branch, 526 So.2d 609 (Ala.1987); Mitchell v. State, 579 So.2d 45 (Ala.Cr.App.1991), cert. denied, 596 So.2d 954 (Ala.1992). The trial court is in a better position to rule on the prosecutor's reasons than this court, and great deference should be given to its findings. Hernandez v. New York, 500 U.S. at 364-66 , 111 S.Ct. at 1869 .
The trial court, in its order denying the Batson motion, made findings as to the reasons given by the state for its peremptory strikes. Its findings are as follows:
"Venireman Number 4—White Female— Struck due to answer on voir dire—'iffy' as to whether capital punishment should be imposed—probably would vote for life without parole.
"Venireman Number 11—White Male— Questionable as to whether venireman would vote for the death penalty.
"Venireman Number 17—Black Female— Stated that she knew the Defendant and had an interest in the case and did not believe in capital punishment.
"Venireman Number 35—Black Female— She expressed reservation about the death penalty—stated that she would rather opt for life without parole—stated that capital punishment is never effective deterrent.
"Venireman Number 49—White Female— Stated that she would probably automatically go with life without parole.
"Venireman Number 52—White Male— Stated in his questionnaire that he was against capital punishment—that capital punishment should be used only in extreme cases—did not think it was a deterrent.
"Venireman Number 57—White Male— Had extensive DUI convictions and a criminal mischief charge—license had been revoked for DUI.
"Venireman Number 75A—Black Female—Did not answer question on questionnaire with regard to capital punishment—she said if necessary, and that was all—did not write any comment[s] on the next two questions—could not vote for the death penalty and equivocated with regard to capital punishment.
"Venireman Number 79—Black Male—Did not believe in death penalty and could not vote for it.
"Venireman Number 87—Black Male—Opposed to capital punishment, did not answer question on death—said he would choose life without parole every time if other option is death.
"Venire[person] Number 116—Black Female—Prefers life without parole over the death penalty—did not think she could vote for death. (There is some question as to the race of this Venireman based on the *98 attached strike list and accompanying data sheets.)
"Venireman Number 117—White Female—Had convictions for bad checks and fraud.
"Venireman Number 130—Black Female— Didn't answer questions concerning the death penalty—stated, `I do not believe in capital punishment; but I'm sure it isn't necessary—I'm not sure it isn't necessary. Capital punishment may be wrong; but it is the best prevention of crime.' She also stated, `Capital punishment is the most heinous practice of our time.' She was very equivocal on whether she was for or against the death penalty.
"Venireman Number 132—White Male— Preferred life without parole to the death penalty. Did not believe capital punishment was right.
"Venireman Number 136—Black Male— He answered the question about his opinion on capital punishment, `It may be a form of punishment that needs to be reviewed.' He also stated he did not think it would deter crime. `I don't believe in capital punishment; but I'm not sure it isn't necessary.' He stated capital punishment has never been effective in preventing crime. He was equivocal on whether he could vote for the death penalty.
"Venireman Number 140—White Female—Had a shoplifting conviction and a contributing to the delinquency of a minor conviction.
"Venireman Number 143—Black Male—72 years old, he couldn't fill out the questionnaire very well. He didn't fill out anything with respect to capital punishment at all. In fact, when the question began he didn't answer anything; and didn't sign the form. Could not understand his position on the death penalty.
"Venireman Number 144—Black Male— He had sat on a murder case and found the defendant innocent, and didn't answer his questions on the questionnaire. Did not answer questions after the questions beginning with the questions on capital punishment.
"Venireman Number 155—Black Female— She answered the question No. 42, `Capital punishment has not stopped crime so it only takes another person's life.' `Do you think it deters crime?' `No.' She checked `Capital punishment has never been effective in preventing crime.'
"Venireman Number 201A—Black Female—She referred to capital punishment as being a `Scapegoat.' Could not understand why she labeled it as a scapegoat. Her position on capital punishment was, therefore, questionable.
"Venireman Number 202— ... Black Female—Did not return written questionnaire.
"Venireman Number 205—Black Male—In response to question #42 he stated that he did not believe in the death penalty, he did not believe it prevented crime, and could not vote for it.
"Venireman Number 209—Black Male— He had a criminal mischief third degree in 1980, a DUI, another DUI, another DUI, and refused to take a chemical test in 1990.
"Venireman Number 212—Black Female— She said that she could not vote for the death penalty, and she did not answer any of the questions with respect to capital punishment.
"Venireman Number 272—White Male— Attorney with Rushton, Stakely. Reluctant because of connection to law firm.
"Venireman Number 220—White Female—Opposed to the death penalty—did not believe in taking a life, possibly could do it—was equivocal on the death penalty—religious beliefs would hinder.
"Venireman Number 222—Black Female— Stated that she was not for the death penalty—did not answer questions on the questionnaire with regard to the death penalty.
"Venireman Number 118—White Female—Had some question as to the death penalty—stated in response to question as to her opinion about the death penalty, `I do not support'—answered that the death penalty did not deter crime.
"Venireman Number 84—Black Female— Equivocal with regard to the death penalty—stated in one place on the questionnaire that she was for capital punishment *99 but did not feel capital punishment to be a deterrent—then later in responding on the questionnaire she stated that capital punishment was a definite deterrent—would state one thing then turn around and state something else—District Attorney stated that he could not determine how she really felt about capital punishment—that she was struck due to questions on the questionnaire and demeanor.
"Venireman Number 108—White Male— Had reservations about capital punishment—could weigh death as opposed to life without parole, and tended toward life without parole—mentioned about the rehabilitating nature of defendants.
"Venireman Number 82—White Female— Stated during colloquy with the Court that she was prone to vote for life without parole—that maybe under premeditated circumstances she could go for capital punishment, but very reluctant—capital punishment to be used only as a last resort— equivocal as to whether she could vote for capital punishment—did not check other questions."
The appellant contends that the prosecutor used each of his peremptory strikes against black venirepersons in violation of Batson . On appeal, he specifically contests the explanations offered by the prosecutor, and accepted by the trial court, for striking venirepersons L.M. (130), T.M. (136), L.M. (143), E.H. (84), W.T. (209), M.W. (75A), E.V. (212), P.C. (35), G.R. (188A), [6] and K.T. (201A). He also points out the prosecutor's failure to give any reason for his striking D.T. (202). The only specific objection raised in the trial court to the prosecutor's explanation for striking a venireperson was to the explanation given concerning E.H. Had the appellant perceived anything suggesting a discriminatory motive in the prosecutor's strikes concerning the other venirepersons, he should have articulated his concerns to the trial court during its factual inquiry at the third step of the Batson hearing.
With the exception of D.T., the prosecutor articulated facially race-neutral reasons, which were reasonably specific and trial-related, for striking the other named venirepersons. The explanations were neither "implausible or fantastic." As noted, the appellant challenged only the reason given for E.H.; he did not challenge the reasons given for the other named venirepersons. Thus, he failed to meet his burden of proving purposeful discrimination in regard to those venirepersons.
Specifically as to E.H., the appellant contends that the reasons given by the prosecutor for striking her were inadequate and pretextual. As we have previously stated, the trial court found that the reasons given for striking her were (1) that her responses on her questionnaire pertaining to the imposition of the death penalty were equivocal and (2) her demeanor. The record showing the reasons given by the prosecutor for striking this venireperson is as follows:
"MR. GRADDICK [prosecutor]: This is the Mental Health lady, worked for Mental Health. Her husband is deceased. She equivocated in front of your Honor, as I recall, when she was answering questions. She states down here that she is for capital punishment but doesn't feel that it is a deterrent. But then again she turns around and says that she thinks it's a definite deterrent when she starts to checking things. I had a difficult time, quite honestly, her being a Mental Health worker. Over my 17 years I have found that Mental Health folks want to rehabilitate.
"THE COURT: Well, the Supreme Court says you can't have just general things like that.
"MR. GRADDICK: I know. I didn't feel comfortable with her position with regard to capital punishment.
*100 "THE COURT: She filled out the questionnaire?
"MR. GRADDICK: Yes, sir. She would state one thing and then turn around and state something else. I just couldn't figure out how she really felt about capital punishment. She was one of the latter persons to be struck.
"THE COURT: Is she black or white?
"MR. BELSER [prosecutor]: Black female.
"THE COURT: The reason you struck her was the questions on the questionnaire and her demeanor?
"MR. GRADDICK: Yes, sir. If you read it, it's just not consistent with how she feels about the death penalty. And her demeanor didn't give us any clue either.
"THE COURT: Do you think capital punishment deters or prevents crime? No. She's for it in the answer. She says for it; but it doesn't deter crime. She would be able to recommend. Then down here she says capital punishment is a very definite deterrent.
"MR. GRADDICK: Right. I couldn't tell whether she was for it or against it. With regard to her total outlook about it, I was just not comfortable with her.
"THE COURT: All right...."
Her answers on her questionnaire show that she was not opposed to capital punishment. She further indicated that she thought that capital punishment is a deterrent. Yet to another question she stated that she did not think that capital punishment was a deterrent to crime. The appellant argues that some white venirepersons were not struck even though their answers to their questionnaires were as equivocal or contradictory as the answers of E.H. He contends that this constituted disparate treatment, which, he argues, supports his contention that the reason given for the striking of E.H. was pretextual. We find no evidence here of disparate treatment between white venirepersons and black venirepersons. We find it reasonable for the prosecutor to have cautiously concluded that E.H.'s equivocation on whether capital punishment truly deters crime was a real indication that she would not staunchly assert the death penalty. The prosecutor also struck white venirepersons who were opposed to or appeared reluctant to impose the death penalty. "Where whites and blacks are struck for the same reason, there is no evidence of disparate treatment." Carrington v. State, 608 So.2d 447, 449 (Ala.Cr.App.1992). Based on the reasons given by the prosecutor for his strikes, our review of the questionnaires of all the venirepersons, the voir dire, and the deference to be paid to the trial court's findings of fact on this matter, we conclude that the prosecutor's peremptory challenge of E.H. was not discriminatory.
The appellant further contends that the trial court erred in denying his Batson motion because of the prosecutor's failure to give any explanation for his strike of venireperson D.T., number 202. He argues that the failure to provide a reason for striking D.T. resulted in the state's failing to meet "its burden to rebut the presumption" that the challenge of D.T. was based on race. He relies on Ex parte Williams, 571 So.2d 987 (Ala.1990). The record shows that the prosecutor did, indeed, fail to explain his strike of D.T. It appears that his failure to do so was inadvertent and not intentional as suggested by the appellant. While giving his reasons for his strikes, the prosecutor was unable to locate D.T.'s questionnaire when he came to her name, and he stated to the court that he "would come back to her." After giving the remainder of his reasons, he failed to go back and explain his strike of D.T. In its order denying the Batson motion, the trial court incorrectly found that D.T. had been struck by the state for failing to return her questionnaire. D.T. had, in fact, completed and returned her questionnaire, and it is included in the record on appeal. We find that the trial court was simply mistaken in its finding as to D.T. However, the incorrect finding of the trial court has no bearing on our decision on this issue. Here, we are not concerned with the sufficiency of a reason for the strike; we are concerned with a situation where no reason at all was given.
The appellant never specifically objected in the trial court to the prosecutor's failure to explain his strike of D.T. When he was *101 given the opportunity to rebut the prosecutor's reasons for his strikes, he never mentioned that the prosecutor had failed to explain the strike of D.T. This issue is now raised for the first time on appeal.
In Bui v. State, 627 So.2d 855 (Ala.1992), the Alabama Supreme Court held that a reviewing court must look at all of the existing circumstances to determine whether a trial court's conclusion that the prosecutor's reasons for its jury strikes are race-neutral is clearly erroneous. The court further held in Bui that under all of the circumstances of that case, the failure of the prosecutor to offer an explanation for one of its peremptory strikes did not mandate a finding that a Batson violation had occurred. The court stated:
"Recently, in Huntley v. State, 627 So.2d 1013 (Ala.1992), this Court held that in reviewing allegations that the prosecutor exercised the state's peremptory strikes in a racially discriminatory manner, `the reviewing court's inquiry ... shall not be restricted by the mutable and often overlapping boundaries inherent within a Batson -analysis framework, but, rather, shall focus solely upon the "propriety of the ultimate finding of discrimination vel non."` 627 So.2d at 1015, quoting United States v. Forbes, 816 F.2d 1006, 1010 (5th Cir.1987), in turn quoting Merrill v. Southern Methodist University, 806 F.2d 600 , 605 n. 6 (5th Cir.1986). In United States v. Forbes , the Fifth Circuit Court of Appeals, upholding the defendants' convictions, noted:
"`The Eleventh Circuit has observed, correctly we think, "Failure by a prosecutor to explain every peremptory strike of black jurors is not necessarily fatal to the prosecutor's ability to rebut a prima facie case; likewise, explanation of most of the strikes on nonracial grounds does not necessarily" satisfy his burden. United States v. David, 803 F.2d 1567, 1571 (11th Cir.1986).
"`In this case, the prosecutor's third strike, though unexplained, seems unlikely to have been the result of intentional discrimination. The confluence of the following facts leads to this conclusion: (1) the black/white ratio on the jury mirrored that of the venire; (2) the prosecutor adequately explained two strikes; (3) the prosecutor did not use all his strikes; (4) there were two blacks left on the jury. Although the existence of fewer than all or most of these circumstances might be insufficient to prevent or rebut an inference of intentional discrimination, see Fleming v. Kemp, 794 F.2d 1478, 1483 (11th Cir.1986) ("Nothing in Batson compels the district court's conclusion that constitutional guarantees are never abridged if all black jurors but one or two are struck because of their race."), the Court is mindful of Justice Holmes's comment in a different context that "we cannot let the fagot be destroyed by taking up each item ... separately and breaking the stick." Edwards v. Chile Copper Co., 270 U.S. 452, 454-56 , 46 S.Ct. 345, 346 , 70 L.Ed. 678 (1926). There is significance, perhaps determinative significance, in the coexistence of these facts.'
" 816 F.2d at 1011 n. 7.
"In Ex parte Demunn, 627 So.2d 1010 (Ala.1992) (released the same day as Huntley v. State), we applied the rationale of United States v. Forbes and United States v. David in affirming Demunn's conviction. In Demunn , the prosecutor gave race-neutral reasons for striking two black persons from the venire, but he could not recall why he had stricken the third. Even so, after carefully considering all of the circumstances surrounding the selection of the jury, we concluded that the record supported the inference that the prosecutor had not exercised any of the state's peremptory strikes in a racially discriminatory manner, and we affirmed the judgment of the Court of Appeals, on the authority of Huntley . "
Ex parte Bui, 627 So.2d at 859-60.
Applying the rationale of Bui to the instant case, we conclude that the prosecutor's strike of D.T., although unexplained, was not the result of intentional racial discrimination. We considered the following facts in reaching this conclusion: The black-white ratio on the jury mirrored that of the venire ("In a proper *102 case, the fact that the percentage of blacks on the jury is higher than the percentage of blacks on the venire may be a factor to be considered in deciding whether a prima facie case of discrimination has been made or rebutted.") Ex parte Thomas, 659 So.2d 3, 8 (Ala.1994); race-neutral reasons were given by the prosecutor for striking 17 of the 18 black persons removed from the venire; the prosecutor had the opportunity to strike all of the blacks on the venire but did not do so; the appellant was instrumental in removing one black venireperson for cause; there were 4 blacks left on the trial jury; extensive voir dire of the venire was conducted; the state was required to turn over to the appellant its files concerning the venire, which included questionnaires submitted by the venirepersons; and the trial court gave the appellant an opportunity, after he had reviewed the state's files, to rebut the reasons given for the strikes by the prosecutor. After reviewing all the circumstances of this case, we cannot hold that the trial court's finding of an absence of racial discrimination with respect to the prosecutor's strike of D.T. was clearly erroneous. Based on the reasons given by the prosecutor for his strikes, the sparse information offered by the appellant in rebuttal to those strikes, the other existing circumstances noted above, and the deference to be accorded the trial court's findings, we conclude that the appellant failed to carry his burden of proving purposeful discrimination as to all of the prosecutor's peremptory strikes. We cannot say that the ruling of the trial court that the prosecutor's peremptory strikes were race-neutral was clearly erroneous. Thus, we find that its denial of the Batson motion was proper.
IX.
The appellant contends that two counts of the capital murder indictment are defective because they do not specify the property he is alleged to have stolen or was attempting to steal, and that this deprived him of adequate notice of what he would be called upon to defend against. He does not identify the counts to which he is referring. Counts I and II describe the alleged property that was the subject of the theft or attempted theft as "two bags of Zodiac sign tags, a better description of which is unknown... [and] the value of which is unknown...." Counts III and IV do not specifically identify the property; they state that the theft was of "property, to-wit: the kind, amount or value otherwise unknown... a better description of the property is otherwise unknown."
The appellant did not challenge the sufficiency of the indictment at trial; he raises this issue for the first time on appeal. Thus, we must examine this issue under the plain error rule. We note that this issue was never raised at the previous two trials and appeals.
"The indictment ... shall be a plain, concise statement of the charge in ordinary language sufficiently definite to inform a defendant of common understanding of the offense charged and with that degree of certainty which will enable the court, upon conviction, to pronounce the proper judgment." Rule 13.2(a), Ala.R.Cr.P. Counts I and II aver the specific property alleged to have been stolen and meet the requirements of the rule. However, Counts III and IV would have been subject to motions to dismiss because they did not inform the appellant of the specific property alleged to have been stolen. Counts III and IV charged the appellant expressly in the terms of the appropriate statutes: §§ 13A-5-40; 13A-6-2; 13A-8-41, and 13A-8-43. If an indictment charges a crime substantially in the terms of the statute creating the offense and sets out all the material elements thereof, it will generally support a conviction even though it might be subject to a proper motion to dismiss. In such a case, the indictment is not void but merely voidable. Ex parte Horton, 456 So.2d 1120 (Ala.1984). A defect in an indictment that renders it merely voidable is waived by the failure to raise the issue in a timely manner. Ex parte Horton; Odom v. State, 625 So.2d 1171 (Ala.Cr.App.1993). In the instant case, the failure of Counts III and IV to specify the property taken rendered the counts merely voidable, and the appellant waived this irregularity by failing to raise it in a timely fashion. This is not an instance where the indictment was so defective that it failed to inform the appellant of the nature *103 and cause of the charge against him. See Ex parte Tomlin, 443 So.2d 59 (Ala.1983), cert. denied, 466 U.S. 954 , 104 S.Ct. 2160 , 80 L.Ed.2d 545 (1984) (by entering a plea at arraignment, a defendant waives any irregularities in the indictment unless the indictment is so defective that it leaves the accused unaware of the nature and cause of the charge against him).
For the above reasons, we find no merit in this contention.
X.
The appellant contends that the denial of his request for the state to provide him reasonable funds to employ certain experts deprived him of his constitutional rights to effective assistance of counsel, due process of law, and "reliability in the capital guilt determination and sentencing process." U.S.C.A. Const. Amends. 5, 6, 8, and 14.
The appellant is indigent and was represented at trial by appointed counsel. Before this trial, he filed a motion seeking approval of funds to employ a criminal investigator, a psychologist/social worker, a ballistics expert, a forensic psychologist, and a jury selection expert. He alleged that he wanted a criminal investigator "to investigate the facts and witnesses surrounding the alleged crime"; a psychologist/social worker to develop a social history of the appellant to be used at the sentencing phase of the trial for mitigation purposes, should he be found guilty; a ballistics expert to "help his attorneys attack the findings of the state's expert"; and a jury selection expert to aid counsel in "intelligently" exercising jury challenges. He moved the trial court to hear his motion ex parte, i.e., before the trial court only and without the presence of the prosecution. He subsequently filed a sealed supplement to his motion for funds to secure experts, giving the names of the experts he expected to employ and the estimates of their fees and expenses. He stated in this supplementary motion that he had not located a ballistics expert. A hearing was held on the motion, as supplemented, on August 18, 1988, and the trial court entered an order on September 10, 1988, denying the request for funds to employ a criminal investigator, a psychologist/social worker, and a jury selection expert. The trial court approved funds of $4,000 for employing a forensic psychologist and, although denying funds for a ballistics expert, stated that it would reconsider the request if and when a ballistics expert could be found. The appellant was given an opportunity to file with the court additional information ex parte in written form in support of his motion, but failed to do so.
Section 15-12-21(d) provides that the state will reimburse reasonable expenses incurred in defending an indigent defendant on approval in advance by the trial court. In Dubose v. State, 662 So.2d 1189 (Ala.1995), the Alabama Supreme Court stated the rule as follows:
" Ake [v. Oklahoma, 470 U.S. 68 , 105 S.Ct. 1087 , 84 L.Ed.2d 53 (1985)] and Caldwell [v. Mississippi, 472 U.S. 320 , 105 S.Ct. 2633 , 86 L.Ed.2d 231 (1985) ], taken together, hold that a defendant to be entitled to funds to pay for an expert, must show more than a mere possibility of assistance from an expert. Rather, the defendant must show a reasonable probability that an expert would aid in his defense and that the denial of an expert to assist at trial would result in a fundamentally unfair trial.
"....
"... [W]e conclude that the principles enunciated in Ake, and grounded in the due process guarantee of fundamental fairness, apply in a case of nonpsychiatric expert assistance when an indigent defendant makes a proper showing that the requested assistance is needed for him to have `a fair opportunity to present his defense.'
Dubose, supra, at 1192-94 (quoting Ake, 470 U.S. at 76 , 105 S.Ct. at 1092 ).
Although the trial court stated that it would reconsider its order denying the funds for a ballistics expert if the appellant found such an expert, the appellant failed to pursue his request with specific information requested by the court. Moreover, we point out the following qualifications:
"The only time a defendant, whether indigent or not, has the right to have an *104 independent expert examine physical evidence is when such evidence is (1) `critical' and (2) subject to varying expert opinions. Barnard v. Henderson, 514 F.2d 744 (5th Cir.1975). To be `critical,' the evidence must be the only evidence linking the accused with the crime or proving an element of the corpus delicti. Hoback v. Alabama, 607 F.2d 680 (5th Cir.1979). Even if the evidence is indeed `critical,' it is not subject to independent examination unless it is also subject to varying expert opinion. White v. Maggio, 556 F.2d 1352, 1358 (5th Cir.1977). This is the law of this state. Gwin v. State, 425 So.2d 500, 508 (Ala. Crim.App.1982), cert. quashed, 425 So.2d 510 (Ala.1983)."
Grayson v. State, 479 So.2d 69, 75 (Ala.Cr. App.1984), affirmed, 479 So.2d 76 (Ala.), cert. denied, 474 U.S. 865 , 106 S.Ct. 189 , 88 L.Ed.2d 157 (1985). Here, the appellant confessed that he shot all three victims and led the officers to a pistol which, he told them, was the pistol that he used to shoot the three. The ballistics test showed that the bullets that killed Dominguez and Adams and wounded Holmes were fired from that pistol. Under these circumstances, the ballistics evidence was neither critical nor subject to varying expert opinion.
In regard to the trial court's denial of funds for an investigator to investigate the "facts and witnesses surrounding the alleged crime," there was certainly no reason to approve them. The case had been tried and appealed twice; the witnesses were well known to the defense; and the facts were not only known, but virtually undisputed.
After reviewing the record, we also conclude that the appellant failed to make a sufficient showing that there was a reasonable probability that a psychologist/social worker and a jury selection expert would aid in his defense and that the denial of such experts to assist him would result in a fundamentally unfair trial. His showing in regard to these experts, as with his showing in regard to a criminal investigator and a ballistic expert, was no more than "undeveloped assertions that the requested assistance would be beneficial." Caldwell v. Mississippi, 472 U.S. at 324 n. 1, 105 S.Ct. at 2637 n. 1.
We find that the trial court did not commit error in denying the appellant's motion in part for funds to employ experts.
The appellant further contends that the trial court erred in refusing his request for an ex parte hearing on his motion for funds to employ experts. He argues that had he proceeded in the prosecutor's presence to make a showing of necessity to employ experts, he would have been forced to reveal his theory of defense to the state, which would have deprived him of his privilege against self-incrimination, his right to counsel, and his right to present a defense, in violation of his Due Process and Equal Protection rights. He contends that because of the trial court's refusal to hold an ex parte hearing, he was "prevented from providing the trial court with additional evidence and information, available to him, in support of his requests." He relies principally on Ake v. Oklahoma, 470 U.S. 68, 82-83 , 105 S.Ct. 1087, 1097 , 84 L.Ed.2d 53 (1985), particularly the Court's reference that "when the defendant is able to make an ex parte threshold showing to the trial court that his sanity is likely to be a significant factor in his defense, the need for the assistance of a psychiatrist is readily apparent." He argues that this language mandates an ex parte hearing.
We do not agree with the appellant that the trial court refused to permit an ex parte hearing. The record shows that the trial court permitted the appellant to file with the court a supplementary motion under seal and afforded him the opportunity to file any additional information he desired in writing ex parte in support of his motion. The record shows, in pertinent part, the following:
"MR. BALSKE [defense counsel]: Has the Court denied the defendant's right to make an ex parte showing, to make this showing?
"THE COURT: No. I said that I will read this [supplementary motion]; and I'll read anything else you want me to look at.
"MR. BALSKE: I think what the defendant is requesting is to put on testimony to the Court.
"THE COURT: I had heard what you said; and I said I would look at anything *105 you give me. If it's ex parte I might as well read it rather than listen to you saying it. I've read it [supplementary motion] rather than listen to you saying it. Do you understand what I'm saying.
"MR. BALSKE: I understand, Judge.
"THE COURT: I've read your [supplementary motion]; and if you want to give me something else I'll read it. If you are going to have ex parte there won't be anybody to cross-examine. If you haven't got any more to say than what you have on Number 3 [supplementary motion re: a ballistics expert], I overrule you; and I will look at whatever else you have got and reconsider if and when you file something."
We find that this procedure in effect constituted an ex parte hearing. When the trial court afforded him the opportunity to file additional information in writing, he raised no objection to this procedure. Moreover, he had ample opportunity, in fact two years, to file additional information before trial, but did not do so.
Because we find that the trial court did, in essence, afford the appellant an ex parte hearing, we find it unnecessary to address the question whether an indigent criminal defendant's application for funds for expert assistance should be heard outside the presence of counsel for the state. Our appellate courts have not previously addressed this question by published opinion. However, we have granted a writ of mandamus ordering a trial court to provide an ex parte hearing under circumstances similar to those in this case. Ex parte Grimsley, 602 So.2d 1226 (Ala.Cr.App.1992) (table). We note that other jurisdictions that have addressed this question have required ex parte hearings. See, e.g., Brooks v. State, 259 Ga. 562 , 385 S.E.2d 81 (1989), cert. denied, 494 U.S. 1018 , 110 S.Ct. 1323 , 108 L.Ed.2d 498 (1990); People v. Loyer, 169 Mich.App. 105 , 425 N.W.2d 714 (1988); Banks v. State, 810 P.2d 1286 (Okla.Cr.App.1991), cert. denied, 502 U.S. 1036 , 112 S.Ct. 883 , 116 L.Ed.2d 787 (1992).
The appellant further contends that Alabama's system for compensating attorneys appointed to represent indigent defendants set out in § 15-12-21 is unconstitutional in that it violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the Sixth Amendment right to counsel, the Fifth Amendment prohibition against unlawful taking of property, the Eighth Amendment prohibition against cruel and unusual punishment, and the parallel provisions of the Alabama Constitution. [7] We find no merit in this contention. The Alabama Supreme Court in Ex parte Grayson, 479 So.2d 76 (Ala.), cert. denied, 474 U.S. 865 , 106 S.Ct. 189 , 88 L.Ed.2d 157 (1985), held that our system for compensating appointed attorneys does not violate principles of due process or equal protection. It also held in Sparks v. Parker, 368 So.2d 528 (Ala.1979), appeal dismissed, 444 U.S. 803 , 100 S.Ct. 22 , 62 L.Ed.2d 16 (1979), that § 15-12-21 does not constitute an unlawful taking of property in violation of the Fifth Amendment. We also find no violation of the right to counsel and of the protection against cruel and unusual punishment. We find no violation here of either the federal or state constitution. The record reflects that the appellant has been ably represented at trial and on appeal by experienced counsel. It does not indicate in any way that counsel's efforts were deterred or diminished by the fees and expenses allowed by the statute. In fact, the appellant's counsel illustrates the thoroughness with which he prepared for and represented the appellant by the following statement in his brief:
"Because [the appellant] was being tried for the third time for a 1981 offense, defense counsel was obligated to review 10 years' worth of proceedings including the transcripts of two previous trials, and to locate many documents that had long since been lost or misplaced, and interview numerous witnesses who had moved or disappeared."
XI.
The appellant contends that the trial court erred in denying his motion for *106 leave to participate as co-counsel at his trial. Relying on Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975), he argues that the trial court's refusal to allow him to act as co-counsel abridged his constitutional right to serve as his own counsel. Faretta v. California recognizes that an accused has a Sixth Amendment right to conduct his own defense in a criminal trial. Although a defendant has a Sixth Amendment right to be represented by counsel or to represent himself, he does not have the constitutional right to hybrid representation. Holland v. State, 615 So.2d 1313 (Ala.Cr.App.1993); Christianson v. State, 601 So.2d 512 (Ala.Cr.App.1992), overruled on other grounds, Ex parte Thomas, 659 So.2d 3 (Ala.1994). The decision to permit a defendant to serve as co-counsel rests in the sound discretion of the trial court. United States v. Mills, 704 F.2d 1553 (11th Cir.1983); Hunt v. State, 659 So.2d 933 (Ala.Cr.App.1994), aff'd, 659 So.2d 960 (Ala.), cert. denied, ___ U.S. ___, 116 S.Ct. 215 , 133 L.Ed.2d 146 (1995).
Contrary to the appellant's contention, the record reveals that the trial court did not refuse to allow the appellant to act as co-counsel, but granted his motion. The record shows the following:
"THE COURT: One other thing. I notice on Motion to Allow Accused to Participate as Trial Counsel, I didn't write on that. We discussed that he would not be permitted to make any statement during the guilt phase. I think I granted it otherwise.
"MR. GLASSROTH [defense counsel]: I believe that's what you did.
"THE COURT: Granted except as to statement of defendant not under oath.
"MR. GLASSROTH: Naturally, Your Honor, we object.
"THE COURT: Wait a minute. I'm not through ruling yet. Or subject to cross examination. Any statement you want him to make to the jury, I'll consider it. He's entitled to participate as counsel any way he wants to other than making a statement that wouldn't be under oath, and making a statement that wouldn't be subject to cross-examination. However, if you want to give me in writing a statement that he proposes to make, I'll review that and get the State's response to it and make additional rulings at that time.
"MR. GLASSROTH: Okay, Your Honor, I understand. And for purposes of the record, the defendant objects to anything which would inhibit the accused's ability to participate in any way as counsel for himself in this cause.
"THE COURT: He can participate in any way, except I want it shown to me first any statement he wants to make. I'll not rule on that; but I'll rule on it when you show me what it may or may not be.
"....
"THE COURT: I'll do this too, on any statement he wants to make, if he wants to tell me anything either orally or in writing prior to making it to the jury, I'll rule on that at that time. Do y'all understand what I'm saying?
"MR. GLASSROTH: Yes, sir.
"THE COURT: He can't just get up and make a closing or make any kind of statement to the jury if he's not under oath, unless he either tells me or y'all tell me on his behalf, or he gives it to me in writing, what his statement will be, and then we will go into that then.
"....
"THE COURT: Now, the State puts on testimony, the defense will put on testimony. I will revisit what I said about the defendant participating as counsel at this time. I said he could participate as counsel except that I want anything he is going to say to be written out. I will hear what you all have to say about that at this time. "MR. GLASSROTH: Could we have about two minutes to talk about it? ... The defendant does not want to make a statement."
In granting the appellant leave to act as cocounsel, with the restriction that he would not be permitted to make a statement before the jury that was not under oath or subject to cross-examination without the court's prior approval, the trial court was obviously forbidding a testimonial statement not under oath or subject to cross-examination. In so ruling, the court was not refusing to allow the appellant to act as co-counsel, and furthermore, *107 the record shows no instance in which he was not permitted to act as co-counsel.
The right of self-representation does not excuse a defendant from complying with the relevant rules of procedure and substantive law. Faretta v. California ; Justus v. Commonwealth, 222 Va. 667 , 283 S.E.2d. 905 (1981), cert. denied, 455 U.S. 983 , 102 S.Ct. 1491 , 71 L.Ed.2d 693 (1982). The "rules of evidence, procedure, and substantive law will be applied the same to all parties in a criminal trial whether that party is represented by counsel or acting pro se." Williams v. State, 549 S.W.2d 183, 187 (Tex. Cr.App.1977). The appellant's motion for self-representation could well have been a ploy for the appellant to "testify" before the jury without the safeguard of an oath or the risk of cross-examination or impeachment. An accused need not be permitted to make a statement that which is really testimonial in nature without taking the witness stand. Justus v. Commonwealth ; 22 C.J.S. Criminal Law § 296. In the instant case, we find no merit in the appellant's contention, and no error in the procedure followed by the trial court.
XII.
The appellant contends that the trial court erred in failing to grant challenges for cause as to several members of the jury venire. In reviewing these challenges, we are guided by the following principles:
"The grounds on which a juror may be challenged for cause are set out in Code 1975, § 12-16-150. Additional grounds for challenge for cause under the common law still exist where they are not inconsistent with the statute. Kinder v. State, 515 So.2d 55, 60 (Ala.Crim.App.1986).
"In challenging a juror for cause, the test to be applied is that of probable prejudice. Alabama Power Co. v. Henderson, 342 So.2d 323, 327 (Ala.1976). While probable prejudice for any reason will serve to disqualify a prospective juror, qualification of a juror is a matter within the discretion of the trial court. Id.; Black Belt Wood Co. v. Sessions, 514 So.2d 1249, 1255-56 (Ala.1986); Village Toyota Co. v. Stewart, 433 So.2d 1150, 1156 (Ala.1983). This Court must look to the questions propounded to, and the answers given by, the prospective juror to see if this discretion was properly exercised. Id. A reversal is not appropriate absent abuse of this discretion. Alabama Power Co. v. Henderson, 342 So.2d at 327 ; Grandquest v. Williams, 273 Ala. 140 , 135 So.2d 391 (1961); Mutual Building & Loan Ass'n v. Watson, 226 Ala. 526 , 147 So. 817 (1933); Brown v. Woolverton, 219 Ala. 112, 115 , 121 So. 404 (1928); see Clark v. State, 443 So.2d 1287 (Ala.Crim.App.1983)."
Knop v. McCain, 561 So.2d 229, 232 (Ala.1989).
First, the appellant contends that venireperson W.B. should have been disqualified because he knew several facts regarding the charged offense and knew that the appellant had been previously tried and convicted of the capital murder of Dominguez.
"`Prospective jurors who have heard of a defendant's previous conviction on the same charges need not be automatically excluded from the venire.' Whisenhant v. State, 482 So.2d 1225 (Ala.Crim.App.1982), affirmed in part, remanded with directions on other grounds, 482 So.2d 1241 (Ala. 1983); affirmed on remand, 482 So.2d 1246 (Ala.Crim.App.1983); Giles v. State, [Ms. 6 Div. 86 , January 10, 1984], [554] So.2d [1073] (Ala.Crim.App.1984). A prospective juror with knowledge of a previous conviction need not be dismissed for cause, if the trial court determines that the juror does not have a fixed opinion of appellant's guilt, but rather can lay aside any preconceived notions or opinions and render a verdict based solely upon the evidence presented in court. Murphy v. Florida, 421 U.S. 794 ... [ 95 S.Ct. 2031 , 44 L.Ed.2d 589 ] (1975); Whisenhant v. State, supra; Giles v. State, supra. This determination is a matter left to the sound discretion of the trial court. See, Robinson v. State, 430 So.2d 883 (Ala.Crim.App.1983), and cases therein cited."
Beck v. State, 485 So.2d 1203, 1205 (Ala.Cr. App.1984), aff'd, 485 So.2d 1207 (Ala.1985). (Emphasis original.)
*108 The record, in pertinent part, shows the following:
"THE COURT: Did anything that you heard, or anything that you know about this case, does any of that cause you to have an opinion as to whether or not this man here, Mr. Bush, is guilty or whether he's innocent of this offense?
"W.B.: Not really.
"THE COURT: If you were selected on the jury, how would you go about determining whether or not he's guilty?
"W.B.: By the evidence presented in court.
"....
"MR. GLASSROTH [defense counsel]: You remember an awful lot back 10 years. Knowing that one jury of 12 has sat there and gone through the painstaking process, and knowing they returned a verdict of guilty, would have some influence on you, wouldn't it?
"W.B.: I don't think so.
"MR. GLASSROTH: You think you could look at this completely detached from what may have happened before?
"W.B.: As much as humanly possibly.
"....
"MR. GLASSROTH: .... Knowing about the prior proceeding and knowing all the stuff that you obviously have held onto for the period of time you have, can you say for sure that you can look at this and not put all of that out of your mind; or do you feel that it might affect you?
"W.B.: I can say I am capable of considering the evidence presented in court.
"....
"THE COURT: .... The law says that the State must prove to you beyond a reasonable doubt that he did it.... Now could you apply that legal standard to the facts?
"W.B.: I think so; pretty sure.
"THE COURT: And the fact, as Mr. Glassroth says, and what you know about a prior proceeding, would that interfere with your being able to (1) objectively determine what happened in your own mind; and once you determine sure enough what happened, and applying the facts to that, can you do that in a fair, just and evenhanded way?
"W.B.: Yes.
"....
"MR. GLASSROTH: Well, let's say if the evidence was close, it was a close call for you, and you knew from the back of your mind that there was a prior conviction on the same case, don't you think that would tilt you toward convicting?
"W.B.: I don't think so...."
The record obviously shows that despite W.B.'s knowledge of some of the facts surrounding the charged crime and of the fact the appellant had previously been convicted of it, he could set that aside and decide the case based solely on the evidence presented in court. It is clear that he had no fixed opinion and was capable of giving the appellant a fair trial. We find that the trial court did not abuse its discretion in refusing to grant the appellant's challenge for cause of W.B.
Second, the appellant appears to contend in footnote 74 to his brief to this case that venireperson V.J. should have been removed for cause sua sponte by the trial court. He contends that because she "handled the record of the victim in this case" through her work with the Montgomery Fire Department, she should have been removed from the venire. As the state points out in its brief, venireperson V.J. was not challenged by the appellant; therefore, we must review the appellant's contention under the plain error rule. There was no individual voir dire of V.J. In our opinion, the fact that she "handled" or was involved in the administrative processing of some kind of record concerning the victim as part of her duties at the fire department was not a sufficient reason to require the trial court to remove her sua sponte. Moreover, the appellant was not prejudiced by the court's failure to remove V.J. from the venire because she was peremptorily struck by the state. We find no plain error here.
The appellant also contends in the same footnote that venireperson J.S. should have been removed because of his exposure to pretrial publicity. J.S., who lived near *109 and frequented the Majik Market, stated that he remembered the charged crime and some of the details; that he read about it in the newspapers and listened to news broadcasts regarding it; and that, at the time, he had formed "some opinion" about it. However, when questioned regarding his ability to listen to the trial court's instructions and to apply those instructions to the facts in a fair and impartial manner, he stated that he would do so to the best of his ability. He stated that he had since forgotten what he had read and heard and that he did not know the appellant. In addition, in response to the trial court's question regarding whether the publicity would influence him, he answered, "No." After considering J.S.'s answers to the questions propounded to him on voir dire in their entirety, we find that the trial court did not abuse its discretion in refusing to grant the appellant's challenge of him for cause. We believe that the record supports our conclusion that J.S. did not have a fixed opinion of the appellant's guilt and could have laid aside any preconceived opinion and have rendered a verdict based solely on the evidence presented in court.
The appellant contends that the following venirepersons should have been removed for cause because, he says, they indicated that they would automatically vote for a death sentence: M.E., M.A., W.C., M.D., B.H., B.R., L.S., C.T., R.H., S.S., and G.S. We note that of these venirepersons, the appellant challenged only W.C., B.R., L.S., C.T., R.H., and S.S.
"The proper standard for determining whether a prospective juror may be excluded for cause because of his or her views on capital punishment is `whether the juror's views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath."` Wainwright v. Witt, 469 U.S. 412 [424], 105 S.Ct. 844, 852 , 83 L.Ed.2d 841 (1985); Gray v. Mississippi, 481 U.S. 648 [657-58], 107 S.Ct. 2045, 2051 , 95 L.Ed.2d 622 (1987). `The crucial inquiry is whether the venireman could follow the court's instructions and obey his oath, notwithstanding his views on capital punishment.' Dutton v. Brown, 812 F.2d 593, 595 (10th Cir.), cert. denied, Dutton v. Maynard, 484 U.S. 836 , 108 S.Ct. 116 , 98 L.Ed.2d 74 (1987). A juror's bias need not be proved with `unmistakable clarity' because `juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism.' Id."
Martin v. State, 548 So.2d 488, 490 (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).
We have reviewed the testimony on voir dire of all the venirepersons named above and find that each of them stated that he or she would follow the court's instructions in determining whether to recommend a sentence of death or of life imprisonment without parole, in the event the appellant was found guilty. We find no error in the trial court's denial of the appellant's challenges for cause and no plain error in the unchallenged venirepersons remaining on the venire. Finally, because the jury that tried the case recommended a sentence of life without parole, we find that the appellant suffered no prejudice in the named venirepersons remaining on the venire.
"`The holding in Witherspoon [v. Illinois], 391 U.S. 510 , [ 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968)], is not applicable where the jury recommends a sentence less than the dea

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1128720. Public record. Not legal advice.