# Brown v. State

> Court of Criminal Appeals of Alabama · June 29, 2007 · 11 So. 3d 866

URL: https://www.frixlaw.com/law-library/cases/1610895

## Case

- **Full name:** Michael BROWN v. STATE of Alabama
- **Court:** Court of Criminal Appeals of Alabama
- **Decided:** June 29, 2007
- **Citations:** 11 So. 3d 866; 2007 Ala. Crim. App. LEXIS 111; 2007 WL 1865383
- **Precedential status:** Published
- **Opinion:** Opinion by Wise
- **Judges:** Wise, Baschab, McMillan, Shaw, Welch
- **Cited by:** 57 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/1610895

## How later opinions describe it (automated extraction)

- finding that the trial court properly considered nonstatutory mitigating circumstances where trial court stated that “ ‘in considering the testimony of both family members, even in the light most favorable to the defendant, finds that this is a nonstatutory mitigating circumst…
- finding no plain error in the prosecutor’s comment “ ‘Remember I told you, you would know it in your gut what’s reasonable doubt? You will know it in your gut. And I think you know it in your gut’ ” following instruction not to consider the attorneys’ arguments as to points of…
- holding that the circuit court did not abuse its broad discretion in removing a juror because of her medical condition
- holding that a seizure of blood drawn pursuant to a search warrant was presumed valid
- holding that there is no requirement that the jury be sequestered

## Opinion text

WISE, Judge.
The appellant, Michael Brown, was convicted of murdering Betty Kirkpatrick during the course of committing a robbery and a burglary, offenses defined as capital by §§ 13A-5^0(a)(2) and 13A-5-40(a)(4), Ala.Code 1975. The jury, by a vote of 11 to 1, recommended that Brown be sentenced to death. The circuit court followed the jury’s recommendation and sentenced Brown to death. This appeal followed.
The State’s evidence tended to show the following. On October 12, 2001, Ricky Kirkpatrick and his wife discovered the body of his 65-year-old mother, Betty Kirkpatrick, in her mobile home in Huey-town. Her head was covered with a plastic bag and her throat had been cut. A knife and a paper towel were lying on her chest. Betty Kirkpatrick’s purse and her gold 1986 Ford Thunderbird automobile were missing. The forensic pathologist testified that Betty Kirkpatrick died of “asphyxia by strangulation and smothering.” (R. 431.) She also had bruises on her face and hands that, he said, were caused by blunt-force trauma.
Several witnesses testified that they saw Brown driving a gold Thunderbird around the time of the murder. Alisha Spindlow testified that she saw Brown driving a gold Thunderbird and that he told her that he had killed Betty Kirkpatrick. Another individual, Kevin Clayton, testified that he saw Brown two days after the murder, that he was driving a gold Thunderbird, and that he told him that he got the car from a lady and the car would not be “hot” until the lady’s body was discovered. Kelly Watkins said that Brown was driving a gold Thunderbird around the time of the murder and that he told her that he had killed the lady who owned it. Watkins said that Brown told her that he had tried to choke the victim but she would not die so he cut her throat with a knife he got from the kitchen of her house.
Forensic tests were also conducted on the bloodstains found on the paper towel discovered on Betty Kirkpatrick’s chest. Carl Mauterer, a forensic scientist with the Alabama Department of Forensic Sciences, testified that one stain was tested and found to be consistent with Brown’s blood — Brown could not be excluded as the donor.
Detective Charles Hagler also testified that Brown told him that he went to Betty Kirkpatrick’s mobile home with three other individuals, Robert Smith, Kevin Clayton (who testified at Brown’s trial), and Moses Smiley, to rob Betty Kirkpatrick but that Robert Smith killed Kirkpatrick.
The jury found Brown guilty of the two capital offenses charged in the indictment. A separate sentencing hearing was held. See § 13A-5-46, Ala.Code 1975. The jury recommended, by a vote of 11 to 1, that Brown be sentenced to death. A presen-tence report was then prepared as required by § 13A-5-47, Ala.Code 1975, and the circuit court held a separate sentencing hearing. After hearing testimony the circuit court sentenced Brown to death. This appeal, which is automatic in a case involving the death penalty, followed. See § 13A-5-53, Ala.Code 1975.
Standard of Review
Brown has been sentenced to death. According to Rule 45A, Ala.R.App.P., this Court must review the record of the trial proceedings for “plain error.” Rule 45A, Ala.RApp.P., states:
“In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under re
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view, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant.”
In describing this standard of review, this Court has stated:
“ ‘The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal. As the United States Supreme Court stated in
United States v. Young,
470 U.S. 1 , 105 S.Ct. 1038 , 84 L.Ed.2d 1 (1985), the plain-error doctrine applies only if the error is “particularly egregious” and if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” See
Ex parte Price,
725 So.2d 1063 (Ala.1998), cert. denied, 526 U.S. 1133 , 119 S.Ct. 1809 , 143 L.Ed.2d 1012 (1999);
Burgess v. State,
723 So.2d 742 (Ala.Cr.App.1997), aff'd, 723 So.2d 770 (Ala.1998), cert. denied, 526 U.S. 1052 , 119 S.Ct. 1360 , 143 L.Ed.2d 521 (1999);
Johnson v. State,
620 So.2d 679, 701 (Ala.Cr.App.1992), rev’d on other grounds, 620 So.2d 709 (Ala.1993), on remand, 620 So.2d 714 (Ala.Cr.App.), cert. denied, 510 U.S. 905 , 114 S.Ct. 285 , 126 L.Ed.2d 235 (1993).’ ”
Smith v. State,
795 So.2d 788, 797-98 (Ala.Crim.App.2000), quoting
Hall v. State,
820 So.2d 113, 121-22 (Ala.Crim.App.1999).
The majority of the issues raised on appeal were never brought to the circuit court’s attention. The “failure to object at trial does not bar our review of these issues; however, it does weigh against any claim of prejudice he now makes on appeal.”
Brooks v. State,
973 So.2d 380, 387 (Ala.Crim.App.2006) (opinion on application for rehearing).
Guilt-Phase Issues
I.
Brown argues that his trial counsel, Franklin Neumann, had a conflict of interest because Neumann had previously prosecuted a case against Brown and that previous conviction was used as an aggravating circumstance to support the death sentence in this case. He asserts that as a result of the conflict, Neumann’s performance was deficient.
When this matter was brought to the circuit court’s attention, Brown stated on the record that he waived any conflict. Thus, Brown invited any error. “ ‘Invited error has been applied to death penalty cases. “An invited error is waived, unless it rises to the level of plain error.”
Ex parte Bankhead,
585 So.2d 112, 126 (Ala.1991).’”
Scott v. State,
937 So.2d 1065, 1075 (Ala.Crim.App.2005), quoting
Adams v. State,
955 So.2d 1037, 1050-1051 (Ala.Crim.App.2003). Accordingly, we review this claim for plain error. See Rule 45A, Ala.R.App.P.
The following occurred when this matter was discussed at a pretrial hearing:
“The Court: All right. This is CC-02-348, the
State v. Michael Lee Brown.
“[Defense counsel]: Judge, in fine tuning some things yesterday and last night, I ran across the aggravating circumstances that the State had provided us. And I happened to check the case numbers themselves, and I found one of the cases that was disposed of in Judge Pearson’s court in 1994. And I happened to look at it and I noticed that the prosecutor’s name on it was me. And so, I don’t — I didn’t remember Michael, and Michael had never brought it up to me, and I don’t know — I couldn’t remember whether I had ever discovered it earlier and talked about it with Michael, but at any rate, I informed [the
*877
prosecutors] this morning about it. And then I talked to Michael about it. And Michael has an independent recollection, which I don’t, that he recalls that I was not the prosecutor in the case; is that right, Michael?
“The Defendant: Yes, sir.
“[Defense counsel]: There was somebody he said was much younger than me. So anyway, I find that to be understandable since during that time while I was in Judge Pearson’s court, cases were assigned to a specific DA, and it would not be uncommon for someone else to handle someone else’s cases if it were a plea of guilty, which it was. He was represented by Ron Harris, and there was a plea of guilty on the case; isn’t that right, Michael?
“The Defendant: Yes, sir; yes, sir.
“[Defense counsel]: As I said, I did inform you of that and we discussed it this morning, and you told me that I wasn’t the prosecutor. And I said I don’t remember ever seeing you before until being appointed on this case. And so with that in mind, I am sure you don’t have any objection to continuing on the ease. We never dealt—
“The Defendant: No, sir.
“[Defense counsel]: And I just want to let the Court know that.
“The Court: It appears from [defense counsel’s] lack of recollection and your independent recollection that there is no conflict, but if any conflicts exist, you, at this time, wish to waive that; is that correct?
“The Defendant: Yes, ma’am.”
(R. 6-7.)
The record shows that in 1995 Brown pleaded guilty to attempted rape in the first degree. The case-action-summary sheet for that case lists another assistant district attorney as the prosecutor who was present at the guilty-plea hearing. (Supp. R. 72.) The court suspended Brown’s sentence and placed him on probation. In 1997, Brown was charged with violating the terms of his probation. The first page of the case-action-summary sheet for the probation-revocation proceeding lists Franklin Neumann as the assistant district attorney who prosecuted that violation. The remainder of the case-action-summary sheet for the probation revocation is not in the record; therefore, we do not know if Neumann was the assistant district attorney present during the hearing on Brown’s probation revocation. However, the record does show that Neu-mann did not prosecute Brown on the attempted-rape charge.
In
Brownlee v. State,
666 So.2d 91 (Ala.Crim.App.1995), we addressed a similar issue and stated:
“The appellant argues that one of his defense attorneys had a conflict of interest because that attorney was shown as the prosecutor on the case action summaries used to prove the appellant’s felony convictions in 1979 and 1980. He argues that that conflict rendered the appellant’s counsel ineffective.
“During the appellant’s trial, defense counsel Burton Dunn noticed that he was named as the prosecutor in the cases resulting in the appellant’s prior felony convictions. This fact was brought to the attention of the trial court, and a conference was held between the judge, the state, and the defense. As a result of this conference, the appellant’s counsel stipulated to the prior convictions rather than have them presented to the jury. The thrust of the appellant’s claim is that because Burton Dunn was named as the prosecutor on the ease action summaries, he did not challenge the validity of these convictions. On the other hand, if Dunn was
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not the prosecutor and his name was on the case action summaries as an error, he should have challenged the proof of these convictions because this error made these documents defective.
“ Tor counsel to be so ineffective in a conflict of interest context that an accused has been denied his Sixth Amendment right to counsel, counsel must be hampered by an “actual conflict of interest.”
Ex parte Parker,
704 S.W.2d 40, 41 (Tex.Ct.App.1986);
Baty v. Balkcom,
661 F.2d 391 (5th Cir.1981), cert. denied, 456 U.S. 1011 , 102 S.Ct. 2307 , 73 L.Ed.2d 1308 (1982).’
“Browning v. State,
607 So.2d 339, 342 (Ala.Crim.App.1992).
“ ‘An actual conflict is a real conflict.
McConico v. Alabama,
919 F.2d 1543, 1546 (11th Cir.1990). “A possible, speculative or merely hypothetical conflict does not suffice.”
Lightbourne v. Dugger,
829 F.2d 1012, 1023 (11th Cir.1987), cert. denied, 488 U.S. 934 , 109 S.Ct. 329 , 102 L.Ed.2d 346 (1988). “An actual conflict of interest occurs when a defense attorney places himself in a situation ‘inherently conducive to divided loyalties.’
Castillo [v. Estelle,
504 F.2d 1243 (5th Cir.1974) ] at 1245.”
Zuck v. Alabama,
588 F.2d 436, 439 (5th Cir.), cert. denied, 444 U.S. 833 , 100 S.Ct. 63 , 62 L.Ed.2d 42 (1979);
United States v. Carpenter,
769 F.2d 258, 263 (5th Cir.1985). See also
Smith v. White,
815 F.2d 1401 (11th Cir.1987), cert. denied, 484 U.S. 863 , 108 S.Ct. 181 , 98 L.Ed.2d 133 (1987).’
“607 So.2d at 342.
“ ‘To prove that an actual conflict adversely affected his counsel’s performance, a defendant must make a factual showing “that his counsel actively represented conflicting interests,”
Cuyler v. Sullivan,
446 U.S. [335] at 350, 100 S.Ct. [1708] at 1719 [ 64 L.Ed.2d 333 (1980) ], “ ‘ “and must demonstrate that the attorney ‘made a choice between possible alternative courses of action, such as eliciting (or failing to elicit) evidence helpful to one client but harmful to the other.’ ” ’ ”
Barham v. United States,
724 F.2d 1529, 1532 (11th Cir.) [quoting
United States v. Mers,
701 F.2d 1321, 1328 (11th Cir.1983) ], cert. denied, 467 U.S. 1230 [ 104 S.Ct. 2687 , 81 L.Ed.2d 882 ] (1984).’
“Molton v. State,
651 So.2d 663 (Ala.Crim.App.1994).”
666 So.2d at 95-96 .
In this case, there is no indication that counsel suffered from any conflict, much less an actual conflict of interest. Brown told the court that Neumann had not prosecuted him. There is no evidence indicating that counsel actively represented conflicting interests.
1
Accordingly, we find no error, much less plain error.
II.
Brown argues that the circuit court erred in denying his motion for $2,500 so that he could hire a mitigation expert to help gather mitigating evidence to present at the penalty phase of his trial. He asserts that he was denied a fair trial and a
*879
reliable sentencing hearing because that motion was denied.
The record shows that, in January 2003, Brown filed his first motion for funds to hire a mitigation expert. In the motion Brown stated that the expert was essential to discover mitigating evidence. That motion was denied; however, the court did grant Brown’s motions for funds to secure an investigator, a serologist, and an expert to test Brown’s IQ. In October 2003, Brown filed a motion to reconsider the denial of the motion for funds to hire a mitigation expert. In this motion Brown states that the expert could undercover problems from Brown’s childhood. That motion was denied. In June 2004, Brown again moved that the court reconsider the denial of his motion. In this motion Brown references the fact that Brown was abused as a child. At a pretrial hearing where this motion was discussed the following occurred:
“[Defense counsel]: Judge, the motion pretty much speaks for itself, but I wanted to be clear for the record, especially with this being a capital case, that Dr. [Kimberly] Ackerson is qualified to be a mitigation expert. She is willing to look into Michael Lee’s past, specifically allegations that she came across when she was doing an intelligence test on Michael of child abuse that occurred in his past. Just for the Court’s record, I specifically mentioned some of those incidents for your consideration. Judge, her fee would not exceed $2,500, and if this was granted, it would require a continuance of the case of about five months’ time.
“One incident that I have knowledge of that is not in this motion, is I have spoken with other family members, and there was — not only was there child abuse — and I should say that also specifically, his mother being beaten by his father in his presence as a child, but also his older brother beating on his mother.
“Again, these are all matters that could be looked into by Dr. Ackerson as a mitigation expert, and she could give testimony as to what this behavior could do to Michael Lee Brown in her professional opinion.
“The Court: Okay. Anything from the State?
“[Prosecutor]: No, Your Honor.
“The Court: Well, I am still not satisfied that this is — needs a threshold showing for this. And it’s — so I am going to deny the motion and get ready to proceed to trial.”
(R. 7-8.)
In
Beckworth v. State,
946 So.2d 490 (Ala.Crim.App.2005), we considered a similar issue and stated:
“Beckworth filed an ex parte motion seeking funds to hire a mitigation specialist, stating he was entitled to present, and to have the sentencing jury consider, aspects of his background and character that might be mitigating. He argued that ‘a comprehensive investigation must be undertaken of Mr. Beck-worth’s entire life,’ including his educational, medical, and social history, and he requested $6,500 to secure the services of the Alabama Prison Project to complete this investigation. (C. 385-89.) At a hearing on pending motions, the trial court asked defense counsel to provide any specific legal authority that supported his request for funds for the mitigation expert. (3/18/02 hearing, R. 22.)
“Defense counsel filed a memorandum of law supporting presentation of mitigation evidence. (C. 488-91.) In that motion, counsel cited
Hodges v. State,
856 So.2d 875 (Ala.Crim.App.2001),
aff'd,
856 So.2d 936 (Ala.2003), and other cases for the proposition that a difficult family
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history has been considered a mitigating circumstance in capital-murder cases. Counsel also included a list of possible mitigation evidence received in interviews of Beckworth and of Beckworth’s mother and ex-wife. Thereafter, the trial court denied the motion for funds, stating that the proposed mitigation could be adequately presented through the testimony of family members. (C. 492.) Defense counsel filed a motion seeking reconsideration of the trial court’s denial of the request for funds to hire a mitigation expert. (C. 505-33.) The record does not reflect that the trial court ruled on the motion for reconsideration.
“Defendants may be eligible to receive funds to hire certain experts to facilitate the formulation and presentation of a defense.
Ake v. Oklahoma,
470 U.S. 68 , 105 S.Ct. 1087 , 84 L.Ed.2d 53 (1985). The funds, however, are not to be granted automatically upon request. Rather, the grant or denial of such funds is a matter for the trial court’s discretion and is based on the allegations in the request for funds to hire the expert.
“ ‘Based on the foregoing, we conclude that for an indigent defendant to be entitled to expert assistance at public expense, he must show a reasonable probability that the expert would be of assistance in the defense and that the denial of expert assistance would result in a fundamentally unfair trial. To meet this standard, the indigent defendant must show, with reasonable specificity, that the expert is absolutely necessary to answer a substantial issue or question raised by the state or to support a critical element of the defense. If the indigent defendant meets this standard, then the trial court can authorize the hiring of an expert at public expense.’
“Ex parte Moody,
684 So.2d 114, 119 (Ala.1996).
“In
Hodges v. State,
856 So.2d 875, 915 (Ala.Crim.App.2001), we examined several cases in which funds had been requested to hire experts.
‘“As the Alabama Supreme Court stated in
Dobyne v. State,
672 So.2d 1354 (Ala.1995):
“ ‘ “[A] defendant, in order to be entitled to funds to pay for an expert, must show more than a mere possibility that he or she will receive useful assistance from the expert. Rather, the defendant must show a reasonable probability that the expert would aid in the defense and that the denial of an expert to assist at trial would result in a fundamentally unfair trial. In the past, Alabama decisions have been based upon whether the defendant made an adequate showing of a need for the requested expert.
Dubose [v. State
], 662 So.2d [1189,] 1191 [ (Ala.1995) ]; see also,
Smith v. State,
623 So.2d 369 (Ala.Cr.App.1992), cert. denied, 510 U.S. 1030 , 114 S.Ct. 650 , 126 L.Ed.2d 607 (1993);
McLeod v. State,
581 So.2d 1144 (Ala.Cr.App.1990);
Siebert v. State,
562 So.2d 586 (Ala.Cr.App.1989), aff'd, 562 So.2d 600 (Ala.), cert. denied, 498 U.S. 963 , 111 S.Ct. 398 , 112 L.Ed.2d 408 (1990);
Stewart v. State,
562 So.2d 1365 (Ala.Cr.App.1989);
McGahee v. State,
554 So.2d 454 (Ala.Cr.App.), aff'd, 554 So.2d 473 (Ala.1989).
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“ ‘ “As we stated in
Dubose,
a defendant seeking expert assistance must show a reasonable probability that the expert would aid in the defense and that the denial of an
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expert to assist at trial would result in a fundamentally unfair trial. Do-byne failed to make such a showing.
Dubose
involved ‘critical’ DNA evidence that directly linked Dubose to the crime. This Court held that Dubose had made an adequate showing of the need for the requested sei'vices of a DNA expert. Here, Dobyne requested funds to hire a neurologist to present evidence of mitigating circumstances at the penalty phase of the trial. While we agree that there can be a need for expert assistance at the penalty phase of a capital trial, Do-byne has not shown that the denial of funds to hire a neurologist resulted in unfairness to him.”
‘“672 So.2d at 1357-59. Hodges failed to show that his trial was fundamentally unfair because of the failure of the trial court to approve funds for experts. Therefore, the trial court correctly held that Hodges failed to meet his burden of showing that he was entitled to state funds.’
“As was found in
Hodges
and in the cases cited therein, we find that Beck-worth did not establish that the mitigation specialist would have assisted his defense or that the denial of the funds would render his trial fundamentally unfair.
See also Lee v. State,
898 So.2d 790, 853 (Ala.Crim.App.2001)(‘Similarly, in this case, the appellant did not make a threshold showing that either of the requested experts would probably assist his defense and that the denial of funds to hire the experts would result in a fundamentally unfair trial. Rather, he simply speculated that the experts would assist his defense. Therefore, because the appellant did not make the required showing of need, the trial court did not abuse its discretion in denying his requests for expert assistance.’). Beckworth had argued to the trial court that a mitigation expert would have investigated his life history, including his father’s abuse of his mother and his siblings, his mother’s abandonment of the family, and the level of dysfunction in the family. The trial court correctly determined that all of this evidence was available from Beckworth and his family. Unlike
Ake ,
which involved a request for a psychiatrist to prove an insanity defense, or
D'iibose v. State,
662 So.2d 1189 (Ala.1995), which involved a request for a DNA expert to challenge the foundation of the State’s case and to establish a critical element of the defense, Beck-worth sought expert assistance with evidence already known and available to him through his own knowledge and experience and through the testimony of his family members. He failed to establish that the requested expert was ‘absolutely necessary to answer a substantial issue or question raised by the state or to support a critical element of the defense.’
Ex parte Moody,
684 So.2d at 119 . The denial of the requested funds did not render Beckworth’s trial fundamentally unfair. Therefore, we find no merit to this portion of Beckworth’s claim; he is entitled to no relief.”
946 So.2d at 502-04 (footnote omitted).
As in
Beckworth ,
the information in this case as to which counsel sought the assistance of a mitigation expert was information that could easily have been obtained from Brown and his family members. In fact Brown’s mother and stepsister testified at the penalty phase about Brown’s upbringing. Brown failed to show that the denial of the motion for funds for a mitigation expert rendered his trial fundamentally unfair. Accordingly, the circuit court did not err in denying Brown’s motions.
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III.
Brown argues that the circuit court erred in denying his motion for access to possible impeachment evidence to which he states he was entitled. Brown makes several arguments in support of this contention. Most of the arguments consist of one sentence in Brown’s brief to this Court.
A.
Brown first argues that the circuit court erred in denying his motion to obtain his institutional records. Brown’s entire argument is the following: “[T]he trial court failed to grant defense counsel’s motion to obtain institutional records for purposes of obtaining mitigation evidence.” (Brown’s brief at page 93.)
At a pretrial hearing where this motion was discussed, the following occurred:
“[Defense counsel]: The next motion is for motion for discovery of institutional records and files necessary to a fair trial.
“The Court: What institution?
“[Defense counsel]: For instance, when he’s at Jefferson County jail, Bessemer Division, I want to be able to comment on whether or not he’s been a model prisoner, whether or not he’s had problems while he’s been in there. I think it leads more to the sentencing part of this trial. I think jurors need to know that he has not been a problem, that his character, his demeanor, he’s had no violations, things of that nature, while he’s been incarcerated, that he doesn’t present a problem to the other inmates. “[Prosecutor]: My only response to that would be is that, I mean, I understand I’m the State of Alabama, but I have no authority over the sheriffs department or the Department of Corrections to make them produce any institutional records. I think the appropriate way to do that is with a subpoena to the appropriate agency asking for them documents because they would more than likely tell me that I would have to subpoena them.
“[Defense counsel]: If I were to issue a subpoena there would not be an objection?
“[Prosecutor]: Not from me.”
(R. 17-18.) The record shows that this matter was resolved to defense counsel’s satisfaction. Thus, if any error occurred it was invited by defense counsel’s conduct. Accordingly, because the error was invited by counsel, in order to constitute reversible error the error must amount to plain error. See
Scott v. State,
supra.
“As a general rule, the government need not disclose evidence available to the defense from other sources or evidence that the prosecution could not reasonably be imputed to have knowledge of or control over.
Mills v. Singletary,
63 F.3d 999 (11th Cir.1995), cert. denied, 517 U.S. 1214 , 116 S.Ct. 1837 , 134 L.Ed.2d 940 (1996);
United States v. Moore, 25
F.3d 563 (7th Cir.), cert. denied, 513 U.S. 939 , 115 S.Ct. 341 , 130 L.Ed.2d 297 (1994).”
Hardy v. State,
804 So.2d 247, 286 (Ala.Crim.App.1999). Defense counsel could have obtained these records by having a subpoena issued to the custodian of records at the Jefferson County jail and the Alabama Department of Corrections; he apparently did not do so. Accordingly, we find no plain error here.
B.
Brown next argues that the circuit court erred in denying his motion for the State to disclose any “known mitigating evidence.” (Brown’s brief at page 93.) At
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a hearing at which this motion was discussed, the following occurred:
“The Court: If you want records from probation, if you want records from [the Department of Corrections], make an attempt to get them. If you have trouble getting them, let me know, and I will intervene. If you go forth in getting the information that you intend to use in the penalty phase as a mitigating circumstance, then I would order that, you know, you make them aware of it.
“[Prosecutor]: Yes, ma’am. I have already provided them notice that at the— provided a copy of the notice of aggravating circumstances or what are the aggravating circumstances, the prior history, and made them aware that I intend to use his convictions for the purpose of aggravation.
“As far as mitigation. I don’t have any mitigation in my file. If I did have some, I would turn it over as soon as I had it.
“The Court: All right.”
(R. 29-30.) There is no indication that the State was in possession of mitigating evidence and failed to disclose that evidence to Brown. Thus, we find no plain error.
C.
Brown further argues that the circuit court erred in denying his motion to disclose the criminal histories of several State witnesses.
“We have held in Alabama in a number of cases that a defendant is not entitled to the general disclosure of the criminal records of the state’s witnesses. See, e.g.,
Davis v. State,
554 So.2d 1094 (Ala.Crim.App.1984), aff'd, 554 So.2d 1111 (Ala.1989), cert. denied, 498 U.S. 1127 , 111 S.Ct. 1091 , 112 L.Ed.2d 1196 (1991);
Wright v. State,
424 So.2d 684 (Ala.Crim.App.1982) (no absolute right of disclosure of criminal records of state’s witnesses);
Mardis v. State,
423 So.2d 331 (Ala.Crim.App.1982);
Mack v. State,
375 So.2d 476 (Ala.Crim.App.1978), aff'd, 375 So.2d 504 (Ala.1979), vacated on other grounds, 448 U.S. 903 , 100 S.Ct. 3044 , 65 L.Ed.2d 1134 [ (1980) ]. We have also held that the trial court’s refusal to order the prosecution, pursuant to a defendant’s discovery motion, to provide the criminal record of each expected witness for the state was not a violation of
Brady
and its progeny.
Davis v. State,
554 So.2d at 1100.”
Hardy v. State,
804 So.2d at 286 . In Alabama, a criminal defendant is not entitled to discover the criminal histories of the State’s witnesses. Thus, there was no error.
D.
Brown further argues that he was entitled to disclosure of the juvenile records of the State witnesses. The following occurred at a pretrial hearing concerning this motion:
“[Defense counsel]: Judge, it is in my motion, but in response to that ... the
Davis [v. Alaska,
415 U.S. 308 (1974) ] case, the Supreme Court of the United States, defendant’s right to probe into the influence of possible bias of a prosecution witness outweighs the State’s interest protecting the confidentiality of the witness’s juvenile court record.
“[Prosecutor]: I think in the
Davis
case if I’m not mistaken, the juvenile who testified, at the time he testified, he was on probation. And I think that the counsel in that case will allow — the ruling was that he should have been allowed to question him about the terms of his probation to see whether or not he was under any undue influence by the State.
“I would have no objection to, as these witnesses testified, to take them outside
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the presence of the jury and ask them: Are you on juvenile probation, and go from there. As far as I know, none of the other witnesses we will call — none of the witnesses we expect to call are on juvenile probation. I don’t think any of them are juveniles. But we can ask them that as they testify. But I think that was the whole thing of
Davis .
“The Court: Okay. Well, I am going to reserve ruling on that. If at the time anybody shows they have any juvenile record, I will look at it, something in camera, and see if there is any — I suppose — any sort of, I guess — or maybe I’m reading something into this that isn’t there. Any kind of deal cut before—
“[Defense counsel]: That would be a part of it, but also just ... just a general attack on the credibility of the witness.
“[Prosecutor]: I don’t think
Davis
went that far, but [the judge] may need to look at it.
“The Court: I will look at the
Davis
case, and I will reserve ruling on that before any juvenile act will be released. It will be subject to an in camera inspection by the Court.”
(R. 15-16.)
“The United States Supreme Court in
Davis v. Alaska,
415 U.S. 308 (1974), held that a witness’s juvenile record is not admissible for purposes of general impeachment, but may be relevant to show bias. In
Davis,
the appellant was on probation for a juvenile offense at the time of his testimony. The United States Supreme Court held that his juvenile probationary status, at the time of trial, was relevant to show bias and was admissible. See
Smith v. State,
795 So.2d 788 (Ala.Crim.App.2000).”
Belisle v. State,
11 So.3d 256, 276 (Ala.Crim.App.2007).
Here, the above quote from the record shows that the circuit court did not deny Brown’s motion. The circuit court complied with the United States Supreme Court’s holding in
Davis v. Alaska,
415 U.S. 308 , 94 S.Ct. 1105 , 39 L.Ed.2d 347 (1974), and allowed the defense access to any juvenile records that would show bias on the part of any of the state witnesses. Therefore, we find no error.
IV.
Brown next argues that the circuit court made “numerous erroneous rulings” that denied him his constitutional right to a fair trial.
A.
First, Brown argues that the court erred in not excluding Betty Kirkpatrick’s family from the courtroom.
2
He makes a one sentence argument in support of this contention: “[T]he trial court should have excluded the victim’s family members — who were also state witnesses against Mr. Brown — from the courtroom during the trial.” (Brown’s brief at page 92.)
Section 15-14-56(a), Ala.Code 1975, provides:
“Whenever a victim is unable to attend such trial or hearing or any portion thereof by reason of death ..., the victim’s family may select a representative who shall be entitled to exercise any right granted to the victim, pursuant to the provisions of this article.”
Rule 615, Ala.R.Evid., further states:
“At the request of a party the court may order witnesses excluded so that
*885
they cannot hear the testimony of other witnesses and it may make the order of its own motion. This rule does not authorize exclusion of ... the representative of a victim who is unable to attend....”
According to Rule 615, Ala.R.Evid., and statutory law, the circuit court did not err in allowing two of Betty Kirkpatrick’s family members to be present in the courtroom during trial.
B.
Second, Brown argues that the circuit court erred in denying his motion to have the prospective jurors complete juror questionnaires related to their qualifications for jury service. He asserts that voir dire is inadequate to uncover prejudices; therefore, he argues, it was essential that the jurors complete questionnaires. Brown points to no specific instance where the voir dire was not adequate to show any prejudices.
The record shows that Brown moved to require the prospective jurors to complete juror questionnaires. Attached to the motion was a proposed questionnaire that was 10 pages in length and contained 40 questions. The circuit court initially reserved ruling on the motion but later denied it.
In
Hodges v. State,
856 So.2d 875, 913 (Ala.Crim.App.2001), aff'd, 856 So.2d 936 (Ala.2003), we stated:
“In
Ex parte Land,
678 So.2d 224, 242 (Ala.), cert. denied, 519 U.S. 933 , 117 S.Ct. 308 , 136 L.Ed.2d 224 (1996), the Alabama Supreme Court held that the method of voir dire examination is within the discretion of the trial court and a trial court’s refusal to allow the use of [a] juror questionnaire is not an abuse of that discretion.”
There is no indication that the circuit court abused its broad discretion in denying Brown’s request for juror questionnaires.
C.
Third, Brown argues that the circuit court erred in denying his motion to sequester the jury during the trial. Brown asserts that the error in not sequestering the jury was further compounded because, he says, the jurors were not properly instructed as to their obligations at each break and at the conclusion of each day of trial as required by Rule 19.3, Ala. R.Crim.P.
3
“Even in a capital case there is no requirement that a court sequester the jurors during the trial. The decision to grant or deny a motion to sequester the jury during trial is within the sound discretion of the trial court. See
Centobie v. State,
861 So.2d 1111 (Ala.Crim.App.2001).”
Belisle v. State,
11 So.3d at 279 .
Here, the circuit court on numerous occasions admonished the jurors to not dis
*886
cuss the case and to not read or listen to any news accounts concerning the case. Compared to other capital-murder trials this trial was not lengthy. The jury selection started on June 14, 2004, and the jury recommended a sentence of death on June 17, 2004. The record clearly shows that the jury was well aware of its obligations.
As we stated in
Smith v. State,
795 So.2d 788, 805 (Ala.Crim.App.2000), cert. denied, 795 So.2d 842 (Ala.), 534 U.S. 872 , 122 S.Ct. 166 , 151 L.Ed.2d 113 (2001):
“The trial court did not give similar detailed instructions at each break in the court proceedings. To require a court to do so would be unduly burdensome, disruptive, and contrary to the clear wording of Rule 19.3(d). Indeed, Rule 19.3(d) does not require that a trial court give the admonitions at each court break. Indeed, Rule 19.3(d) does not state that these instructions must be given more than once in the trial. The record clearly reflects that the jurors were aware of their duties and obligations. There was no violation of Rule 19.3(d).”
There was no violation of Rule 19.3, Ala. R.Crim.P., in this case.
V.
Brown argues that his conviction and death sentence must be set aside because there is no evidence in the record indicating that the venire was sworn, and absent affirmative evidence, he argues, the presumption is that the jury venire was not sworn. He argues that because there was no oath administered to the venire his conviction violates Rule 12.1(c)(2), Ala. R.Crim.P., and must be reversed.
4
This claim, however, is refuted by the record. Before voir dire began, the following occurred:
“The Court: All right. Ladies and gentlemen, I have got just a few questions that I would like to ask, and then I am going to allow the attorneys to ask some questions of you. And I will say that some of these questions — well, all of these questions, there is no right or wrong answer. It is how you feel, and it is important.
This morning when you were sivom in as jurors by Judge Parsons, you said that you would make true answers to all questions propounded of you by the Court.”
(R. 37) (emphasis added).
Also, the case-action-summary sheet shows that Brown’s jury was sworn. It states: “Defendant being in open court with counsel and the State of Alabama by its assistant district attorney. Jury duly selected and sworn.” (C.R. 209.) Accordingly, Brown is due no relief on this claim.
VI.
Brown next argues that the circuit court committed several errors during jury selection which denied him a fair and impartial trial.
A.
First, Brown argues that the circuit court failed to remove several jurors for cause. We note that it appears that the majority of the challenged jurors did not sit on Brown’s jury; therefore, any
*887
error as to the failure to remove these jurors was at most harmless. As we stated in
Calhoun v. State,
932 So.2d 923 (Ala.Crim.App.2005), cert. denied, 548 U.S. 926 , 126 S.Ct. 2984 , 165 L.Ed.2d 990 (2006):
“The Alabama Supreme Court in
Bethea v. Springhill Memorial Hospital,
833 So.2d 1 (Ala.2002), returned to the harmless-error analysis when reviewing a circuit court’s refusal to remove a prospective juror for cause. The Supreme Court stated:
“ ‘The application of a “harmless-error” analysis to a trial court’s refusal to strike a juror for cause is not new to this Court; in fact, such an analysis was adopted as early as 1909:
“ ‘ “The appellant was convicted of the crime of murder in the second degree. While it was error to refuse to allow the defendant to challenge the juror C.S. Rhodes for cause, because of his having been on the jury which had tried another person jointly indicted with the defendant, yet it was error without injury, as the record shows that the defendant challenged said juror peremptorily, and that, when the jury was formed the defendant had not exhausted his right to peremptory challenges.”
“
‘Turner v. State,
160 Ala. 55, 57 , 49 So. 304, 305 (1909). However, in
Swain v. Alabama,
380 U.S. 202, 219 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965), overruled on other grounds,
Batson v. Kentucky,
476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), the United States Supreme Court stated, in dicta, that “[t]he denial or impairment of the right is reversible error
without a shoiving of prejudice.”
(Emphasis added [in
Bethea\.)
Some decisions of this Court as well as of the Alabama Court of Criminal Appeals reflect an adoption of this reasoning. See
Dixon v. Hardey,
591 So.2d 3 (Ala.1991);
Knop v. McCain,
561 So.2d 229 (Ala.1989);
Ex parte Rutledge,
523 So.2d 1118 (Ala.1988);
Ex parte Beam,
512 So.2d 723 (Ala.1987);
Uptain v. State,
534 So.2d 686, 688 (Ala.Crim.App.1988) (quoting
Swain
and citing
Beam
and Rutledge);
Mason v. State,
536 So.2d 127, 129 (Ala.Crim.App.1988) (quoting
Uptain).
“
‘...
[Tjhis Court has returned to the “harmless-error” analysis articulated in the
Ross v. Oklahoma,
487 U.S. 81 , 108 S.Ct. 2273 , 101 L.Ed.2d 80 (1988), and
[United States
v.]
Martinez-Salazar,
528 U.S. 304 , 120 S.Ct. 774 , 145 L.Ed.2d 792 (2000), decisions. Because a defendant has no right to a perfect jury or a jury of his or her choice, but rather only to an “impartial” jury, see Ala. Const.1901 § 6, we find the harmless-error analysis to be the proper method of assuring the recognition of that right.
“ ‘In this instance, even if the Be-theas could demonstrate that the trial court erred in not granting their request that L.A.C. be removed from the venire for cause (an issue we do not reach), they would need to show that its ruling somehow injured them by leaving them with a less-than-impartial jury. The Betheas do not proffer any evidence indicating that the jury that was eventually impaneled to hear this action was biased or partial. Therefore, the Betheas are not entitled to a new trial on this basis.’
“833 So.2d at 6-7 (footnotes omitted). See also
Dailey v. State,
828 So.2d 340 (Ala.2001). As was the case in
Bethea ,
Calhoun offers no evidence that the jury
*888
ultimately impaneled was biased; therefore, if error occurred it was harmless.”
932 So.2d at 944-45 (footnote omitted). See also
Belisle v. State,
supra. Cf.
General Motors Corp. v. Jernigan,
883 So.2d 646 (Ala.2003) (harmless-error analysis does not apply when the circuit court erroneously denied five challenges for cause).
Brown argues that the circuit court erred in failing to grant his challenge for cause of prospective juror E.V. because, he argues, E.V.’s relationship to an employee in the Jefferson County district attorney’s office made it impossible for him to be impartial.
5
During voir dire examination, prospective juror E.V. stated that his brother-in-law was a prosecutor in the Jefferson County district attorney’s office.
Initially, we note that the record does not disclose that Brown moved that this juror be excused for cause. Therefore, we review this issue for plain error. See Rule 45A, Ala.R.App.P.
The record fails to show that E.V.’s brother-in-law had any connection to Brown’s case. In
McGahee v. State,
885 So.2d 191, 213 (Ala.Crim.App.2003), cert. denied, 885 So.2d 230 (Ala.2004), we stated the following concerning a similar issue: “Veniremember H.O. stated that he was the father-in-law of a prosecutor in the district attorney’s office. That attorney was not involved in McGahee’s prosecution, and Alabama law did not require that H.O. be excused on that ground. § 12-16-150(4), Ala.Code 1975.” Accordingly, we find no plain error in the circuit court’s failure to sua sponte remove prospective juror E.V. for cause.
Brown also argues that the circuit court erred in not removing prospective jurors W.C. and C.D. because, he asserts, they expressed their preference for the death penalty, and they were biased in favor of the death penalty. Brown did not move that these jurors be removed for cause; therefore, we are limited to determining whether there is plain error. See Rule 45A, Ala.R.App.P.
“ ‘ “[Wjhether a prospective juror in a capital murder case is properly excluded based on the juror’s views concerning the death penalty involves a question of fact. Therefore, a proper review of this determination requires that we give great deference to the trial judge’s discretion, because the judge was present and capable of observing the potential jurors and their responses.”
Price v. State,
725 So.2d 1003, 1025 (Ala.Cr.App.1997), aff'd, 725 So.2d 1063 (Ala.1998), citing
Wainwright v. Witt,
[ 469 U.S. 412 (1985) ].
“ ‘In
Clemons v. State,
720 So.2d 961 (Ala.Cr.App.1996), aff'd, 720 So.2d 985 (Ala.1998), this court stated:
“ ‘ “
Witherspoon v. Illinois,
391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968), set the early standard for a court’s exclusion for cause of venire-persons who oppose the death penalty. The Court in dicta in
Wither-spoon
limited exclusion for cause to those venirepersons who made it “unmistakably clear (1) that they would automatically vote against imposition of capital punishment ... or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt.”
Id.
[at] 522-23 n. 21, 88 S.Ct. at 1777 n. 21. Subsequently, in
Wainwright v. Witt,
469 U.S. 412 , 105 S.Ct. 844 , 83 L.Ed.2d 841 (1985), the Court clarified or modified its decision in
Witherspoon
by holding that the state may exclude venirepersons in capital cases whose views would
*889
“ ‘prevent or substantially impair the performance of [their] duties as a juror in accordance with his instruction and [their] oath.’”
Id.,
469 U.S. at 424 , 105 S.Ct. at 852 (quoting
Adams v. Texas,
448 U.S. 38, 45 , 100 S.Ct. 2521, 2526 , 65 L.Ed.2d 581 (1980)). The new
Witt
standard dispensed with the
Witherspoon
reference to “automatic” decision-making, and eliminated the requirement that a venireperson’s bias be proved with “unmistakable clarity.” 469 U.S. at 424 , 105 S.Ct. at 852.’ ” ’ ”
Turner v. State,
924 So.2d 737, 753-54 (Ala.Crim.App.2002), cert. denied, 547 U.S. 1056 , 126 S.Ct. 1653 , 164 L.Ed.2d 399 (2006), quoting
Burgess v. State,
811 So.2d 557, 570 (Ala.Crim.App.1998).
The voir dire examination reflects that prospective jurors W.C. and C.D. stated that they believed in the death penalty. Neither said, as Brown asserts, that they would automatically vote for death in this case. They said that they would consider it as a sentencing option. There was no error in the circuit court’s failure to sua sponte remove these jurors for cause.
B.
Brown next argues that the circuit court erred in allowing one juror, T.S., to be removed and another juror substituted in his place. Specifically, he argues that the court’s actions forced Brown to give up one peremptory strike and thereby prejudiced him.
The record shows that immediately after the jury was struck juror T.S. approached the court and informed the court that on Thursday and Friday of that week he had a prearranged meeting in Hartford, Connecticut, with individuals from Ireland. T.S. asked the court to dismiss him from jury service. The following discussion then took place:
“The Court: If you want to make him stay, if you want to put your last strike back on, it doesn’t matter to me. I mean, he’s — if y’all can come to some agreement on how to do it, I am all about it. If you can’t then—
“[Prosecutor]: Do you want to go with 13 and have one alternate?
“The Court: I don’t think I can.
“[Defense counsel]: I don’t think you can either, Judge.
“The Court: The statute requires 14—
“[Prosecutor]: Okay.
“The Court: — in a capital case.
“[Defense counsel]: Do you mean putting our next to last strike back on, Judge?
“The Court: Well, you tell me what’s—
“[Prosecutor]: Well, your next to last would be — would become the alternate, I guess.
“The Court: Do you want [P.H.] to go back on and — Number 237 to be your alternate? Is that what you want to do?
“[Defense counsel]: No.
“[Prosecutor]: Let’s go back through the whole thing and pick.
“[Defense counsel]: Well, Judge, we would propose that we put our — I am sorry. What did you say?
“The Court: Work with these last two. Either make Mr. — well, I don’t know their names. 250 was your last strike?
“[Defense counsel]: Yes.
“The Court: And 237 was your next to last strike?
“[Defense counsel]: Uh-huh.
“The Court: If you want to put — well, put 250 in as your last strike, and make 237 your alternate?
“[Defense counsel]: That will be fíne, Judge.
*890
“The Court: Do you see what I’m saying?
“[Defense counsel]: Yes, I do.
That will be fine.
We will do that.”
(R. 205-07) (emphasis added). Defense counsel agreed to give up one of his peremptory strikes. Because Brown invited any possible error to constitute reversible error the error, must be plain. See
Scott v. State,
supra.
In Alabama, a defendant is not entitled to any specific number of peremptory strikes so long as he is allowed at least 12 strikes in a capital case. Rule 18.4(f)(1), Ala.R.Crim.P., provides that there must be at least 36 prospective jurors when striking a jury in a capital case. Here, both the State and the defendant had 16 strikes. Accordingly, there was no violation of Alabama law. See
Snyder v. State,
893 So.2d 488, 520 (Ala.Crim.App.2003), cert. denied, 893 So.2d 563 (2004), cert. denied, 544 U.S. 1062 , 125 S.Ct. 2512 , 161 L.Ed.2d 1113 (2005). We find no error, much less, plain error.
C.
Fourth, Brown argues that the circuit court erred by removing prospective juror D.A. for cause without having a statutory basis for removing this juror.
There was no objection made when the court excused D.A.; therefore, we review this claim for plain error. Rule 45A, Ala. R.App.P.
During voir dire examination, the following occurred:
“The Court: Good. Okay. You were telling me that you had a little bit of health problems maybe?
“[D.A.]: Yes.
“The Court: And you weren’t sure you wanted to serve?
“[D.A.]: Yes, because I was sleeping and my eyes just close up on me. And I couldn’t help it, and I apologize.
“The Court: Are you on some medication or something?
“[D.A.]: Yes, I am.
“The Court: Well, do you feel like that your medication would keep you from being able to be fully attentive and pay attention to everything that is going on?
“[D.A.]: If I’m — today, I couldn’t, because I was asleep. My eyes just close up on me at times.
“The Court: All right. I tell you what, you are free to go.... ”
(R. 138-39.)
At the time of Brown’s trial, § 12-16-63, Ala.Code 1975, provided:
6
“(a) The court, upon request of a prospective juror or on its own initiative, shall determine on the basis of information provided on the juror qualification form or interview with the prospective juror or other competent evidence whether the prospective juror should be excused from jury service. The jury commission shall enter this determination on the juror qualification form and the master list.
“(b) A person who is not disqualified for jury service may be excused from jury service by the court only upon a showing of undue hardship, extreme inconvenience or public necessity, for a period the court deems necessary, at the conclusion of which the person may be directed to reappear for jury service in accordance with the court’s direction.”
A circuit court had broad discretion in excusing jurors pursuant to the authority
*891
granted to it by former § 12-16-63, Ala. Code 1975. In
McNair v. State,
653 So.2d 320, 325 (Ala.Crim.App.1992), we stated:
“A trial judge has ‘broad discretion’ in excusing venire members based on sickness or personal reasons,
Nolen v. State,
35 Ala.App. 249, 253 , 45 So.2d 786, 790 , cert. denied, 253 Ala. 565 , 45 So.2d 792 (1950), but that decision must not be ‘capricious or arbitrary.’
Blackmon v. State,
246 Ala. 675, 679 , 22 So.2d 29, 31 (1945). ‘It is generally held, however, that the court, in the exercise of sound discretion, may excuse a juror before he is sworn for any reason personal to such person which would make his service as a juror oppressive, or in fact for any reason which to the judge seems sufficient.’ 47 Am.Jur.2d
Jury
§ 121 (1969) (footnotes omitted). ‘There is nothing in the insistence that it is not within the legal power of the court to excuse a juror for a cause regarded as sufficient by the court.’
Evans v. State,
209 Ala. 563, 565 , 96 So. 923, 924 (1923). ‘[O]f necessity, great discretionary power in the selection of jurors to try cases must rest with the trial judge, and appellate courts will not interfere with this discretion, so long as no abuse of power is shown.’
Baxley v. State,
18 Ala.App. 277, 279 , 90 So. 434, 435 , cert. denied, 206 Ala. 698 , 90 So. 925 (1921).”
There is no indication that the circuit court abused its broad discretion in removing juror D.A. because of her medical condition. Accordingly, we find no error, much less plain error, in this case.
D.
Fifth, Brown argues that the circuit court erred in allowing the prospective jurors to be “death qualified.” He asserts that death-qualified jurors are more prone to convict and that the process of death qualifying disproportionately excludes minorities and women from the jury.
In
Davis v. State,
718 So.2d 1148 (Ala.Crim.App.1995) (opinion on return to remand), aff'd, 718 So.2d 1166 (Ala.1998), cert. denied, 525 U.S. 1179 , 119 S.Ct. 1117 , 143 L.Ed.2d 112 (1999), we stated:
“A jury composed exclusively of jurors who have been death-qualified in accordance with the test established in
Wain-might v. Witt,
469 U.S. 412 , 105 S.Ct. 844 , 83 L.Ed.2d 841 (1985), is considered to be impartial even though it may be more conviction prone than a non-death-qualified jury.
Williams v. State,
710 So.2d 1276 (Ala.Cr.App.1996). See
Lockhart v. McCree,
476 U.S. 162 , 106 S.Ct. 1758 , 90 L.Ed.2d 137 (1986). Neither the federal nor the state constitution prohibits the state from ... death-qualifying jurors in capital cases.
Id.; Williams; Haney v. State,
603 So.2d 368, 391-92 (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).”
718 So.2d at 1157. There was no error in allowing the State to death qualify the prospective jurors.
VII.
Brown argues that the State used its peremptory strikes in a discriminatory manner to remove prospective jurors based on their race and gender in violation of
Batson v. Kentucky,
476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986) (racial discrimination), and
J.E.B. v. Alabama,
511 U.S. 127 , 114 S.Ct. 1419 , 128 L.Ed.2d 89 (1994) (gender discrimination).
After the jury was struck, the State and defense counsel stated that they were satisfied with the jury selected. No
Batson
objection of any kind was made. Accordingly, we review this claim for plain error. Rule 45A, Ala.R.App.P.
*892
“To find plain error in the context of a
Batson
or
J.E.B.
violation, the record must supply an inference that the prosecutor was ‘engaged in the practice of purposeful discrimination.’
Ex parte Watkins,
509 So.2d 1074, 1076 (Ala.1987). Here, the record shows that the State struck nine males and nine females. The jury was composed of eight women and four men. There is no inference of purposeful discrimination in violation of
J.E.B.
Accordingly, we find no plain error.”
Blackmon v. State,
7 So.3d 397,
425-26
(Ala.Crim.App.2005) (opinion on application for rehearing).
In this case, the supplemental record contains the venire list, which gives the demographic information on the prospective jurors. The strike list is also contained in the record. However, the juror numbers on the strike list do not correspond to the juror numbers on the venire list. When the jurors were struck the numbers were used and not the names. Thus, it is impossible to determine what specific jurors were struck and the race and gender of those who were struck. It is impossible to even determine the race or gender of the jurors who sat on Brown’s jury. Accordingly, we can find no plain error in this ease. Cf.
Flowers v. State,
799 So.2d 966 (Ala.Crim.App.1999), cert. denied, 534 U.S. 901 , 122 S.Ct. 230 , 151 L.Ed.2d 165 (2001) (no plain error because jury strike list did not contain the race and gender of jurors).
VIII.
Brown next argues that the circuit court erred in failing to ensure that a full and complete record was prepared. He asserts that significant portions of the record are missing; therefore, he argues, he is being denied his right to have his case fully reviewed by this Court. Brown’s entire argument consists of listing 33 pages in the record that reference off-the-record discussions. Brown is represented by different counsel on appeal than at trial.
We have stated:
“ ‘ “When, as here, a criminal defendant is represented on appeal by counsel other than the attorney at trial, the absence of a substantial and significant portion of the record, even absent any showing of specific prejudice or error, is sufficient to mandate reversal. The wisdom of this rule is apparent. When a defendant is represented on appeal by the same attorney who defended him at trial, the court may properly require counsel to articulate the prejudice that may have resulted from the failure to record a portion of the proceedings. Indeed, counsel’s obligation to the court alone would seem to compel him to initiate such disclosure. The attorney, having been present at trial, should be expected to be aware of any errors or improprieties which may have occurred during the portion of the proceedings not recorded. But when a defendant is represented on appeal by counsel not involved at trial, counsel cannot reasonably be expected to show specific prejudice. To be sure, there may be some instances where it can readily be determined from the balance of the record whether an error has been made during the untran-scribed portion of the proceedings. Often, however, even the most careful consideration of the available transcript will not permit us to discern whether reversible error occurred while the proceedings were not being recorded. In such a case, to require new counsel to establish the irregularities that may have taken place would render illusory an appellant’s right to
*893
notice plain errors or defects, and render merely technical his right to an appeal.
“ ‘ “We do not advocate a mechanistic approach to situations involving the absence of a complete transcript of the trial proceedings. We must, however, be able to conclude affirmatively that no substantial rights of the appellant have been adversely affected by the omissions of the transcript. When ... a substantial and significant portion of the record is missing, and the appellant is represented on appeal by counsel not involved at trial, such a conclusion is foreclosed
Green v. State,
796 So.2d 438, 439-40 (Ala.Crim.App.2001), quoting
Ex parte Godbolt,
546 So.2d 991, 997 (Ala.1987), quoting in turn
United States v. Selva,
559 F.2d 1303, 1305-06 (5th Cir.1977).
We have reviewed each page cited by Brown in his brief. In each instance the record refers to a discussion or conference held outside the presence of the jury. However, it is clear that no major portions of the record are missing. In the overwhelming majority of the pages cited, the conversation after the discussion that was not transcribed continues on as if nothing occurred off the record. Indeed, in some instances it is clear that the court was involved in scheduling matters or that the off-the-record discussion was between defense counsel and the prosecution.
As we stated in
Wynn v. State,
804 So.2d 1122, 1143-45 (Ala.Crim.App.2000), cert. denied, 804 So.2d 1152 (Ala.2001), cert. denied, 535 U.S. 972 , 122 S.Ct. 1440 , 152 L.Ed.2d 383 (2002):
“[W]e note that it should have been apparent to the defense during the trial that the court reporter was not recording certain sidebars. In fact, during the hearing on the appellant’s motion for a new trial, trial counsel admitted, T do recall sidebars without a court reporter taking down the transcript. At least not — without my knowledge.’ (R. 1944.) Defense counsel could have easily reminded the trial court that it had granted his motion for full recordation of the proceedings and remedied the omissions at that time. Therefore, this error was invited by the appellant.
[[Image here]]
“... A review of the portions of the record before and after the unrecorded sidebars clearly indicates that the unrecorded sidebars pertained to general, administrative matters, such as notifying the trial court that an objection needed to be made outside of the hearing of the jury and discussing the timing of breaks, that did not affect the outcome of the trial. In fact, on several occasions after an unrecorded sidebar occurred, the trial court stated for the record the substance of what occurred during the sidebar. In addition, the actual objections and discussions about the objections are included in the record on appeal. Therefore, under the facts of this case, we conclude that the error that resulted from the failure to record certain sidebars was harmless.”
As we did in
Wynn ,
we conclude that if any error did occur it was at most harmless.
IX.
Brown argues that the circuit court erred in allowing Det. Charles Ha-gler to testify about a statement Brown made to police. Specifically, he argues that Det. Hagler should not have been allowed to testify because the audiotape recording of the statement was lost and because, he says, the State failed to prove that the statement was knowingly and voluntarily made.
*894
“It has long been the law that a confession is prima facie involuntary and inadmissible and that, before a confession may be admitted into evidence, the burden is upon the State to establish voluntariness and a
Miranda
predicate.
Jackson v. State,
562 So.2d 1373, 1380 (Ala.Crim.App.1990). A two-pronged test is used to determine whether an accused’s statement is admissible. First, the trial court must determine whether the accused was informed of his
Miranda
rights before he made the statement. Second, the trial court must determine whether the accused voluntarily and knowingly waived his
Miranda
rights before making his statement.
Holder v. State,
584 So.2d 872, 878 (Ala.Crim.App.1991);
Carpenter v. State,
581 So.2d 1277, 1278 (Ala.Crim.App.1991).”
Jones v. State,
987 So.2d 1156, 1163-64 (Ala.Crim.App.2006).
At the suppression hearing Det. Hagler testified that he spoke with Brown on October 18, 2001. He said that after police recovered the vehicle taken from Betty Kirkpatrick’s home he and Brown went to the location where the vehicle had been found. Brown was in the vehicle. Hagler said that while he was in the vehicle with Brown he read Brown his
Miranda
7
rights, that Brown waived his rights, and that Brown signed a waiver-of-rights form. He said that he made an audiotape of the statement but that he lost the audiotape. Det. Hagler further stated that he did not coerce, threaten, or offer Brown any inducement in order to secure his statement. Brown told him, Det. Hagler said, that he went to Betty Kirkpatrick’s house with three other individuals to rob the victim but that he did not participate in her murder. The court then held a discussion concerning the missing audiotape and denied the motion to suppress the statement.
The State could properly introduce the contents of Brown’s statement without producing the audiotape. As we stated in
Hawkins v. State,
443 So.2d 1312, 1314 (Ala.Crim.App.1983):
“Here, the State could have proved the contents of Hawkins’ statement without the tape recording or the typewritten transcript. Any person who was present and heard the statement could have testified to its content.
Gordon v. State,
34 Ala.App. 278, 280 , 41 So.2d 608 , affirmed, 252 Ala. 492 , 41 So.2d 610 (1949). The unavailability of a tape recording of a confession does not preclude the admission of the oral testimony of a witness to the inculpato-ry statement.
Fleming v. State,
57 Ala.App. 556 , 329 So.2d 616 (1976). ‘If the accused makes an oral confession, and minutes later signs a written confession of somewhat similar content to the oral confession, there are two distinct confessions and neither the best evidence rule nor the parol evidence rule debars the State from proving either or both confessions.’ C. Gamble,
McElroy’s Alabama Evidence,
Section 200.19 (3rd ed.1977).”
Moreover, there is no evidence indicating that Det. Hagler acted in bad faith in losing the audiotape. This Court in
May v. State,
710 So.2d 1362 (Ala.Crim.App. 1997), stated:
“The Alabama Supreme Court, in
Ex parte Gingo,
605 So.2d 1237 (Ala.1992), adopted the United States Supreme Court’s position in
Arizona v. Youngblood,,
488 U.S. 51 , 109 S.Ct. 333 , 102 L.Ed.2d 281 (1988), regarding the allegations that the state failed to preserve
*895
evidence potentially useful to the defense:
“ ‘ “Unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.”
Youngblood,
488 U.S. at 58 , 109 S.Ct. at 337 . “The presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.”
Youngblood,
488 U.S. at 57 (footnote), 109 S.Ct. at 337 (footnote), citing
Napue v. Illinois,
360 U.S. 264, 269 , 79 S.Ct. 1173, 1177 , 3 L.Ed.2d 1217 (1959).’
“605 So.2d at 1240-41.
Gingo
additionally recognized that a defendant’s right to due process can be violated when the loss or destruction is of evidence so critical to the defense that its loss or destruction makes the trial fundamentally unfair.
Id.
(citing
Youngblood,
488 U.S. at 67 , 109 S.Ct. at 342 ).
“May has failed to establish that the loss or destruction of the bullet fragment and shell casing violated his right to due process under either theory recognized by Alabama law. May’s allegation that the evidence was lost or destroyed in bad faith is completely without support in the record. Additionally, May has failed to demonstrate that the evidence was critical to the defense’s case. The murder weapon was never recovered by the police. Even had the bullet fragment and the spent shell casing been subjected to ballistics tests, there was no weapon to which a ballistics test could conceivably match them. May’s theory that more than one weapon was used at the scene based on evidence of only one shell casing and more than one bullet could still be illustrated by the photographs of the crime scene.”
710 So.2d at 1369-70.
There was no showing that the loss of the audiotape of Brown’s statement violated his right to due process or rendered his trial fundamentally unfair. Det. Hagler testified concerning the contents of the statement, and the contents of the statement were consistent with Brown’s defense at trial. Defense counsel admitted in his opening statement that Brown told police that he went to Betty Kirkpatrick’s home to rob her but he did not participate in her murder. The loss of the audiotape did not render Brown’s trial fundamentally unfair. See
May .
Thus, the circuit court properly allowed Det. Hagler to testify about the contents of Brown’s statement after the State proved by a preponderance of the evidence that the statement was knowingly and voluntarily given. See
McLeod v. State,
718 So.2d 727 (Ala.1998).
X.
Brown next argues that the circuit court erred in allowing the introduction of highly prejudicial evidence, which, he argues, inflamed the passions and prejudices of the jury.
A.
First, Brown argues that the admission of the numerous photographs of the victim made during the autopsy and at the crime scene was unduly prejudicial and constitutes reversible error.
“ ‘This court has held that autopsy photographs, although gruesome, are admissible to show the extent of a victim’s injuries.’
Ferguson v. State,
814 So.2d 925, 944 (Ala.Crim.App.2000), aff'd, 814 So.2d 970 (Ala.2001). ‘ “[A]u-topsy photographs depicting the charac
*896
ter and location of wounds on a victim’s body are admissible even if they are gruesome, cumulative, or relate to an undisputed matter.” ’
Jackson v. State,
791 So.2d 979, 1016 (Ala.Crim.App.2000), quoting
Perkins v. State,
808 So.2d 1041 (Ala.Crim.App.1999), aff'd, 808 So.2d 1143 (Ala.2001), judgment vacated on other grounds, 536 U.S. 953 , 122 S.Ct. 2653 , 153 L.Ed.2d 830 (2002), on remand to, 851 So.2d 453 (Ala.2002). ‘[Ajutopsy photographs depicting the internal views of wounds are likewise admissible.’
Broadnax v. State,
825 So.2d 134, 159 (Ala.Crim.App.2000), aff'd, 825 So.2d 233 (Ala.2001). See also
Dabbs v. State,
518 So.2d 825 (Ala.Crim.App.1987);
Hamilton v. State,
492 So.2d 331 (Ala.Crim.App.1986); Fi
ke v. State,
447 So.2d 850 (Ala.Crim.App.1983); and
McKee v. State,
33 Ala.App. 171 , 31 So.2d 656 (1947) (all holding that photographs of internal injuries were properly admitted although they were gruesome).”
Eggers v. State,
914 So.2d 883, 915 (Ala.Crim.App.2004), cert. denied, 546 U.S. 1140 , 126 S.Ct. 1143 , 163 L.Ed.2d 1004 (2006). The photographs of the crime scene were also admissible. See
White v. State,
900 So.2d 1249 (Ala.Crim.App.2004). Thus, the circuit court committed no error in allowing the various photographs to be received into evidence.
B.
Second, Brown argues that the circuit court erred in allowing state witness Kevin Clayton to testify that Brown had admitted to killing Betty Kirkpatrick and that he believed Brown when he told him he had killed Kirkpatrick because Brown said “on the boss.” Brown argues that this statement implied that he had a gang affiliation and prejudiced him.
There was no objection to this testimony; therefore, we review this issue for plain error. See Rule 45A, Ala.R.App.P.
The record shows that during Clayton’s testimony, he said that Brown told him that he had killed someone. Clayton said that at first he did not believe Brown but that Brown then said “on the boss,” and he believed him. The following then occurred:
“[Prosecutor]: What did [Brown] say?
“[Clayton]: On the boss.
“[Prosecutor]: On the boss?
“[Clayton]: Yes, sir.
“[Prosecutor]: Judge, may be approach?
“The Court: Yes.
“[Prosecutor]: We may need to be heard outside the presence of the jury.”
(R. 333.) The prosecution then questioned Clayton on voir dire as to the meaning of the phrase, “on the boss.” Clayton testified on voir dire that it was a gang expression that meant swearing that something was true. Back in the presence of the jury Clayton testified that “on the boss” meant to swear or take an oath. There was never any mention of any gang affiliation in the presence of the jury.
Clayton testified concerning the circumstances surrounding Brown’s admission of guilt in Kirkpatrick’s murder. This testimony was properly allowed, and its admission did not constitute plain error.
XI.
Brown argues that the circuit court erroneously allowed DNA evidence to be admitted. Specifically, he argues that it was error to allow the DNA expert to testify that he could not exclude Brown as the source of the blood found on the paper towel recovered from Betty Kirkpatrick’s body.
At the hearing on the admission of the DNA evidence there were no objections
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made to the admission of the evidence; therefore, we review this issue for plain error. See Rule 45A, Ala.R.App.P.
A.
First, Brown argues that the DNA expert did not testify that population-frequency statistics for a mixed sample were reliable and accepted in the scientific community.
Carl Mauterer, a forensic scientist with the Alabama Department of Forensic Sciences, testified that he conducted DNA tests on a paper towel, which contained two bloodstains. Mauterer testified about the statistical significance of the DNA samples. The following occurred:
“[Prosecutor]: How are population-frequency statistics used to estimate the significance of a DNA test result?
“[Mauterer]: Well, you can’t say with a hundred percent certainty that a particular profile that you see in an evidence stain came from a known individual. So, the first thing you do is once you check those profiles to see if they do match, you have to put some significance to that. So, what we do is we have reference data sets from African-Americans and Caucasians in Alabama. And we use those standard reference sets along with the standard statistical methods to calculate some significance of you reaching out into general population, what are the odds of you pulling someone out of that population that has that particular profile.
“[Prosecutor]: What database did you use to make the statistical estimates in this case?
“[Mauterer]: We used the Alabama database of African-Americans and Caucasians.
“[Prosecutor]: Have your database results been compared to databases used in other states?
“[Mauterer]: Yes. It has by population geneticists. In fact, it’s also been published in the Journal of Forensic Sciences.
“[Prosecutor]: What are those results?
“[Mauterer]: The results were that they are within the limits of the other — within limitations of other databases that are out there across the United States.
“[Prosecutor]: Have you — had your database statistics been checked by other experts in the field of human population genetics?
“[Mauterer]: Yes, sir.
“[Prosecutor]: What are those results?
“[Mauterer]: They come up with the same conclusions.
“[Prosecutor]: Are the statistical methods used in your laboratory to calculate an estimate — excuse. Are the statistical methods used in your laboratory to calculate an estimate of the significance of the DNA match generally accepted in the relevant scientific community?
“[Mauterer]: Yes. In fact, the procedures that we use are recommended through the [National Research Council] report from 1996.”
(R. 498-99.) After cross-examination Mauterer once again testified that the databases he used for statistical comparisons in this case were generally accepted in the scientific community as reliable and had been published in the “Journal of Forensic Science within the past couple of years.” (R. 539-40.)
In
Roberts v. United States,
916 A.2d 922 (D.C.2007), the court noted the following about the reliability of population statistics on mixed samples:
“The argument has narrowed as this appeal has progressed. It began as a claim that there are no generally accepted methods for interpreting mixed-DNA
*898
samples, because there are no reliable methods for identifying the number of contributors, determining the individual genotypes (or profiles) of each contributor, or distinguishing between indications of a true DNA allele and indications of other by-products or ‘artifacts’ of the PCR/STR testing process, such as ‘stutter.’ Appellant cites no cases in which DNA evidence was found inadmissible under
Frye [v. United States,
293 F. 1013 (D.C.Cir.1923) ] (or a similar admissibility standard) for these reasons, and the government cites numerous decisions holding that application of the PCR/STR process to mixed samples either raises no issue of admissibility or has been shown to be generally accepted and reliable. We agree with that conclusion; the various articles from science journals cited by appellant do not persuade us that any existing disagreement about the general reliability of interpreting mixed samples presents an issue of admissibility, rather than one on which he was free to cross-examine [the expert] or present contrary expert testimony to the jury.”
916 A.2d at 931-32 (footnotes omitted).
Here, the fact that the sample was mixed, i.e., that it contained at least the blood of two individuals, would not affect the admissibility of population-frequency statistics related to the sample; rather, it would affect its credibility. See
Commonwealth v. Patterson,
445 Mass. 626 , 840 N.E.2d 12 (2005). Therefore, we find no plain error.
B.
Second, Brown argues that the DNA evidence should have been excluded because the DNA expert did not identify the DNA method he used to conduct the specific DNA tests in this case.
Brown’s argument is not supported by the record. At the hearing on the admission of the DNA evidence, Mauterer testified:
“Yes, once a stain is identified, the first step is to actually remove the DNA from that substrate, whether it be a swabbing or a piece of paper or whatever it may have been on, and actually remove that from substrate and wash it clean. Once you have it washed, you have nothing but that DNA presence in the tube. You would make multiple copies using
PCR
to actually look at the locations that you looked at for DNA typing.”
(R. 494) (emphasis added).
8
Mauterer testified that the polymerase chain reaction or the “PCR” method was used to conduct the DNA tests in this case.
Mauterer’s detailed testimony more than met the requirements of the
Turner v. State,
746 So.2d 355 (Ala.1998), test.
C.
Third, Brown argues that the circuit court erroneously allowed the DNA test comparisons based on blood that was seized from Brown while he was incarcerated. He raises three different arguments in support of this contention.
1.
Brown first contends that the State failed to establish probable cause for seizing his blood. The record shows that no objection was raised on this ground at trial; therefore, we are limited to applying a plain-error analysis. See Rule 45A, Ala. RApp.P.
*899
The record shows that Brown’s blood was seized pursuant to a search warrant. The warrant states, in part:
“Affidavit in support of application for a search warrant having been made before me, and the Court’s finding that grounds for the issuance exists or that there is probable cause to believe that they exist, pursuant to Rule 3.8, Alabama Rules of Criminal Procedure, you are hereby ordered apd authorized to forthwith search:
“Michael Lee Brown, W/M, DOB: 04-23-77, approximately 6'00” tall and approximately 260 lbs., currently in custody at the Jefferson County Jail, Bessemer Division,
“for head, body and pubic hair samples along with blood samples and saliva samples as evidence of a crime, to-wit: murder.
“You are further commanded to seize only such samples as are deemed reasonably necessary for purposes of comparison, in a medically accepted manner, and with regard to the provisions of the Code of Alabama, 1975, concerning the taking of blood.”
(State’s exhibit number 67.) Because Brown’s blood was seized pursuant to a search warrant the seizure was presumed valid. As we stated in
Smith v. State,
588 So.2d 561 (Ala.Crim.App.1991):
“‘With regard to search warrants, the general rule is that the defendant has the burden of proof in challenging the validity of the execution or service of the search warrant.
United States v. Marx,
635 F.2d 436, 441 (5th Cir.1981). “The warrant stands cloaked with the presumption of validity both in the court below and on this appeal. The appellant had the burden of proof in challenging the validity of its execution or service.”
United States v. Vigo,
413 F.2d 691, 693 (5th Cir.1969).’ ”
588 So.2d at 577 , quoting
Brownlee v. State,
535 So.2d 217 (Ala.Crim.App.), rev’d on other grounds, 535 So.2d 218 (Ala.1988).
The record shows that Brown never contested the validity of the search warrant to seize his blood; therefore, we presume that the warrant was valid. See
Smith.
2.
Brown next argues that he was entitled to have counsel present when his blood was seized. He cites Rule 16.2(b)(6), in support of this contention. Again, Brown did not raise this objection at trial; therefore, we may only determine if there is plain error. See Rule 45A, Ala.RApp.P.
Rule 16.2(b), Ala.R.Crim.P., states, in pertinent part:
“Upon motion of the state/municipality and solely in connection with the particular offense with which the defendant is charged, the court shall order the defendant to:
[[Image here]]
“(6) Permit the taking of samples of defendant’s hair, blood, saliva, urine, or other specified materials which involve no unreasonable intrusions into the body;
[[Image here]]
“The defendant shall be entitled to the presence of counsel at the taking of such evidence.”
Rule 16 governs discovery in a criminal case, not matters related to the investigation of a criminal case. Alabama has never specifically addressed whether a defendant is entitled to have counsel present when a blood sample is taken from a suspect.
In this case, the murder occurred on October 12, 2001, Brown was arrested and brought in for questioning on October 21,
*900
2001, and the search warrant to secure a blood sample from him was issued on October 23, 2001. Brown was formally indicted on March 7, 2002.
In
Ex parte Stewart,
853 So.2d 901 (Ala.2002), the Alabama Supreme Court discussed when the right to counsel attaches in Alabama. The Court stated:
“In
Kirby v. Illinois,
406 U.S. 682, 689 , 92 S.Ct. 1877 , 32 L.Ed.2d 411 (1972), the United States Supreme Court held that the right to counsel does not attach before the ‘initiation of adversary judicial criminal proceedings— whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’ The Court explained why the Sixth Amendment right to counsel did not attach until the initiation of adversarial proceedings, stating:
“ ‘The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the “criminal prosecutions” to which alone the explicit guarantees of the Sixth Amendment are applicable.’
“Kirby,
406 U.S. at 689-90 , 92 S.Ct. 1877 (footnote omitted). The right to counsel attaches after adversarial proceedings are initiated because the ‘ “core purpose” of the counsel guarantee is to assure and aid at trial, “when the accused [is] confronted with both the intricacies of the law and the advocacy of the public prosecutor.” ’
United States v. Gouveia,
467 U.S. 180, 188-89 , 104 S.Ct. 2292 , 81 L.Ed.2d 146 (1984)(quoting
United States v. Ash,
413 U.S. 300, 309 , 93 S.Ct. 2568 , 37 L.Ed.2d 619 (1973)). The Court has further held that even when the Sixth Amendment right to counsel may have attached, it does not exist to protect the defendant at all post-attachment proceedings, unless the proceeding is considered a ‘critical stage.’ In
United States v. Wade,
388 U.S. 218, 224 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 (1967), the Court described a critical stage as a ‘pretrial proceeding[ ] where the results might well settle the accused’s fate and reduce the trial to a mere formality.’ For example, the interrogation of a defendant, occurring after the attachment of the right to counsel, is a critical stage of the proceedings and the defendant is entitled to the assistance of counsel during the interrogation.
Michigan v. Jackson,
475 U.S. 625, 629-30 , 106 S.Ct. 1404 , 89 L.Ed.2d 631 (1986) (‘The arraignment [under Michigan law] signals “the initiation of adversary judicial proceedings” and thus the attachment of the Sixth Amendment ...; thereafter, government efforts to elicit information from the accused, including interrogation, represent “critical stages” at which the Sixth Amendment applies.’).
“Thus, the Sixth Amendment right to counsel is at issue only where adversary judicial criminal proceedings have been initiated against the defendant and where the defendant lacks assistance of counsel at a critical stage in the proceedings.
“As previously noted, the initiation of formal proceedings may occur at the preliminary hearing, upon the filing of the indictment or information, or at arraignment.
Kirby,
406 U.S. at 689 , 92
*901
S.Ct. 1877. In Alabama, the initiation of adversary judicial proceedings for a felony prosecution begins with the issuance of an indictment. Ala. Const.1901, Art. I, § 8.”
853 So.2d at 903 .
According to the Alabama Supreme Court’s holding in
Stewart,
Brown had no right to counsel when his blood sample was taken in this case because no formal adversarial proceedings had been initiated against him at the time that the search warrant for his blood was secured and served.
Moreover, even if the right to counsel had attached, an accused is entitled to counsel only at a “critical stage” of the proceedings against him. The vast majority of courts that have considered this issue hold that the drawing of blood is not a critical stage; therefore, there is no right to have counsel present before the sample is drawn. See
State v. Blye,
130 S.W.3d 776 (Tenn.), cert. denied, 543 U.S. 845 , 125 S.Ct. 289 , 160 L.Ed.2d 74 (2004);
State v. Delisle,
137 N.H. 549 , 630 A.2d 767 (1993);
Mogard v. City of Laramie,
32 P.3d 313 (Wyo.2001);
Ormond, v. State,
599 So.2d 951 (Miss.1992);
McClain v. State,
274 Ind. 250 , 410 N.E.2d 1297 (1980). As the Supreme Court of New Hampshire wrote:
“A defendant’s right to assistance of counsel attaches ‘by virtue of the commencement of formal criminal proceedings.’
State v. Bruneau,
131 N.H. 104, 108 , 552 A.2d 585, 587-88 (1988). After the right to counsel has attached, a defendant is entitled to assistance of counsel at ‘critical stages’ of criminal proceedings.
State v. Greene,
128 N.H. 317, 320 , 512 A.2d 429, 431 (1986). The defendant contends that the execution of a warrant to seize blood is a critical stage of a criminal proceeding, thus entitling him to assistance of counsel before the blood sample is taken. We disagree.
“The assistance of counsel is provided at critical stages of criminal proceedings in order to preserve a defendant’s right to a fair trial.
See State v. Petkus,
110 N.H. 394, 397 , 269 A.2d 123, 125 (1970),
cert. denied,
402 U.S. 932 , 91 S.Ct. 1522 , 28 L.Ed.2d 867 (1971). In
Petkus,
we held that the taking of a defendant’s blood under the implied consent law, currently found at RSA 265:84 (Supp. 1992), was not a critical stage of criminal proceedings requiring the assistance of counsel.
Id,.
‘[Decisions to be made by an accused under our implied consent law are not essentially “a lawyer’s decision” but, on the contrary, can be made by a defendant in the absence of the assistance of counsel without any substantial prejudice to [the accused’s] rights under the sixth amendment.’
Id.
(citation omitted).
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“The fact that the defendant faced a felony conviction does not transform the taking of a sample of his blood into a critical stage of the proceedings. The defendant, unlike Petkus and Greene, had no choice as to whether he would provide the State with a blood sample. That decision was made by the magistrate who found probable cause for the seizure of the defendant’s blood; the defendant has not appealed that finding here. We fail to see the utility of requiring the assistance of counsel before a court-ordered blood sample is taken. Even if the police had allowed Delisle to confer with his attorney before taking him to the hospital, there is little that the attorney could have said or done in furtherance of Delisle’s right to a fair trial. Counsel was certainly not in a position to advise Delisle not to submit to blood sampling.”
*902
State v. Delisle,
137 N.H. at 550-51 , 630 A.2d at 767-68 .
3.
Brown further argues that the DNA testimony should have been excluded because, he says, there was no proper chain of custody for the blood sample taken from him while he was incarcerated at the Jefferson County jail.
There was no objection made to the chain of custody; therefore, we review this issue for plain error. See Rule 45A, Ala. R.App.P.
The record shows that Det. Ha-gler testified that he was with nurse William Spencer when the blood was drawn from Brown. He said that Spencer put the sample in an envelope, sealed the envelope, and initialed it. Det. Hagler then took possession of the envelope, put it in a locked safe in his office, and the next day he delivered the sample to the Alabama Department of Forensic Science.
“The chain of custody is composed of ‘links.’ A ‘link’ is anyone who handled the item. The State must identify each link from the time the item was seized. In order to show a proper chain of custody, the record must show each link and also the following with regard to each link’s possession of the item: ‘(1) [the] receipt of the item; (2) [the] ultimate disposition of the item,
i.e.,
transfer, destruction, or retention; and (3) [the] safeguarding and handling of the item between receipt and disposition.’ Imwinklereid,
The Identification of Original, Real Evidence,
61 Mil.L.Rev. 145, 159 (1973).”
Ex parte Holton,
590 So.2d 918, 920 (Ala.1991). A proper chain of custody was established for the blood sample in this case.
XII.
Brown next argues that his right to cross-examine his accusers was violated when the State was allowed to elicit a statement Robert Smith had made to police. Specifically, he argues: “During the testimony of Det. Hagler, the lead investigating officer in this case, the prosecuting attorney elicited evidence that Robert Smith had made out-of-court statements to the Detective denying involvement in this crime and implicating Mr. Brown.” (Brown’s brief at page 6.)
Initially, we note that Brown did not object when this testimony was elicited; therefore we review this claim for the plain error. See Rule 45A, Ala.R.App.P.
It was the State’s theory of the case that Brown was the sole person who robbed and murdered Betty Kirkpatrick. Brown’s defense was that he and three other individuals went to Kirkpatrick’s home to commit a robbery but that Robert Smith actually committed the murder.
The record shows that during direct examination Det. Hagler testified that Brown told him that he and three other individuals were involved in the robbery but that Smith committed the murder. No mention was made of any statements that Smith had made to police or the fact that Smith had even been questioned by police.
On cross-examination, the defense elicited testimony that Smith had been questioned by police, that the statement had been audiotaped, that Smith was read his
Miranda
rights, that Smith signed a waiver form, that Hagler had not submitted fingerprints from Smith for comparison with the fingerprints discovered in the victim’s car, and that when Hagler obtained a warrant for a sample of Brown’s blood he stated the following in the affidavit in support of the warrant: “Michael Brown states that he and three others entered the residence of Betty Kirkpatrick with the
*903
intent of robbing her. The suspect states that one of the other suspects choked the victim and cut her throat killing her. They then took her purse and jewelry and her car.” (R. 481.)
On redirect, the State elicited the following:
“[Prosecutor]: Did you tell Robert Smith why you were talking to him?
“Pet Hagler]: Yes, I did.
“[Prosecutor]: Did Robert Smith say anything to you about being involved in the death of Betty Kirkpatrick?
“[Det. Hagler]: He was adamant that he was not involved. He gave the names of people that he was with ... who verified where he was during the night of the evening in question. And he also said that Mr. Brown had made statements about the murder.”
(R. 484-85.) Brown argues that his right to cross-examine Smith was violated by the introduction of the above testimony.
9
“When the calling party has [a] witness on redirect examination, the object is to answer any matters brought out on the cross-examination of the witness by the adversary.” 2 Charles W. Gamble,
McElroy’s Alabama Evidence
§ 439.01(1) (5th ed.1996). In
Morgan v. State,
589 So.2d 1315, 1320-21 (Ala.Crim.App.1991), we stated:
“The appellant cannot complain about exploration of an issue which the appellant injected into trial.
Morgan v. State,
440 So.2d 1240 (Ala.Cr.App.1983). ‘Where a matter has been gone into by one party to a cause, the other party has the right to explain away anything, if he can, that may have been brought out to his detriment.’
Wyrick v. State,
409 So.2d 969, 975 (Ala.Cr.App.1981), cert. denied, 409 So.2d 969 (Ala.1982). A defendant is not permitted to present evidence to the jury on a specific issue and object when the state attempts to introduce evidence on the same point.
Billingsley v. State,
402 So.2d 1052 (Ala.Cr.App.1980), rev’d on other grounds, 402 So.2d 1060 (Ala.1981), cert. denied, 465 U.S. 1023 , 104 S.Ct. 1276 , 79 L.Ed.2d 681 (1984).”
In
Walker v. State,
631 So.2d 294 (Ala.Crim.App.1993), we noted how wide the door is opened when a matter is first brought out during cross-examination. We stated:
“The appellant cannot be heard to complain ... ‘ “about exploration of the issue ... which he himself improperly injected into the trial.”
[Morgan v. State,
440 So.2d 1240, 1241 (Ala.Cr.App.1983) ]. “Rebuttal evidence, even evidence of prior crimes, is generally admissible within the sound discretion of the trial court.
Vincent v. State,
231 Ala. 657 , 165 So. 844 (1936);
Jones v. State,
[ 362 So.2d 1303 (Ala.Cr.App.1978) ];
Norris v. State,
429 So.2d 649 (Ala.Cr.App.1982).”
Peterson v. State,
452 So.2d 1372 (Ala.Cr.App.1984).’
Campbell v. State,
508 So.2d 1186, 1189 (Ala.Cr.App.1986). ‘The state may examine a witness on redirect as to matters injected into a case on cross-examination by the defense.’
Hollingsworth v. State,
549 So.2d 110, 111 (Ala.Cr.App.1988), and cases cited therein.”
631 So.2d at 301 .
The Alabama Supreme Court in
Ex parte D.L.H.,
806 So.2d 1190 (Ala.2001),
*904
referred to this rule of evidence as the doctrine of curative admissibility. The court stated:
“When one party opens the door to otherwise inadmissible evidence, the doctrine of ‘curative admissibility’ provides the opposing party with ‘the right to rebut such evidence with other illegal evidence.’
McElroy’s Alabama Evidence,
§ 14.01, p. 49 (5th ed.1996). ‘[T]he law [is] that even though a party introduces evidence that may be immaterial or illegal, his opponent has the right to rebut such evidence and this right is unconditional.’
Clark v. State,
54 Ala.App. 183, 186 , 306 So.2d 51, 54 (1974). ‘ “A party who has brought out evidence on a certain subject has no valid complaint as to the trial court’s action in allowing his opponent or adversary to introduce evidence on the same subject.” ’
Hubbard v. State,
471 So.2d 497, 499 (Ala.Crim.App.1984) (quoting
Brown v. State,
392 So.2d 1248, 1260 (Ala.Crim.App.1980),
cert. denied,,
392 So.2d 1266 (Ala.1981)).”
806 So.2d at 1193 . See
Tinker v. State,
932 So.2d 168 (Ala.Crim.App.2005) (this court noted that we did not have to reach the issue of alleged
Crawford, v. Washington,
541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004), violation because evidence was admissible under the doctrine of curative admissibility).
Other jurisdictions also agree that a party has a right to clarify or rebut a false impression created on cross-examination. The United States Court of Appeals for the Eighth Circuit aptly stated in
United States v. Beason,
220 F.3d 964, 968 (8th Cir.2000):
“The trial court has broad discretion in the admission of evidence and its decision will be overturned on appeal only if there has been an abuse of discretion.
See United States v. Rogers,
939 F.2d 591, 594 (8th Cir.1991). ‘It is fundamental that where the defendant “opened the door” and “invited error” there can be no reversible error.’
United States v. Steele,
610 F.2d 504, 505 (8th Cir.1979). We have allowed the use of otherwise inadmissible evidence to clarify or rebut an issue opened up by defense counsel on cross-examination.
See United States v. Womochil,
778 F.2d 1311, 1315 (8th Cir.1985) (no abuse of discretion in allowing government to clarify false impression created on cross-examination);
United States v. Finch,
16 F.3d 228, 233 (8th Cir.1994) (under ‘opening the door’ theory, evidence introduced must rebut something that has been elicited on cross-examination).
“Beason’s theory of defense at trial was that Washington orchestrated the events in question, while Beason was an unknowing bystander. We find defense counsel’s questioning, stressing not only that information regarding the hidden currency did not come from Beason, but also that it came from Washington, an individual with a prior drug record, did more than simply dispel an assumption that Beason provided the information. It could have created a misleading inference to the jury that Washington was the ‘bad guy,’ thereby bolstering Bea-son’s defense theory. Although the inference may not be as powerful as the government contends, we cannot say the district court abused its substantial discretion by allowing the government to clarify or rebut any false impression created on cross-examination.
See United States v. Durham,
868 F.2d 1010, 1012 (8th Cir.1989). Thus, we find that admission of the evidence in question did not violate
Bruton [v. United States,
391 U.S. 123 (1968) ].”
See also
Walsh v. State,
596 So.2d 756 (Fla.Dist.Ct.App.1992).
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“ ‘The doctrine of opening the door allows a party to explore otherwise inadmissible evidence on cross-examination when the opposing party has made un-ían* prejudicial use of related evidence on direct examination.’
United States v. Lum,
466 F.Supp. 328, 334 (D.Del.) (citations omitted),
aff'd without opinion,
605 F.2d 1198 (3d Cir.1979). ‘The doctrine ... is limited to testimony that might explain or contradict the testimony offered by the opposing party on direct examination; it cannot be “subverted into a rule for injection of prejudice.” ’
Id.
at 335 (quoting
United States v. Winston,
447 F.2d 1236, 1240 (D.C.Cir.1971)).”
United States v. Durham,
868 F.2d 1010, 1012 (8th Cir.1989), cert. denied, 493 U.S. 954 , 110 S.Ct. 366 , 107 L.Ed.2d 352 (1989).
Here, the defense counsel implied on cross-examination that Det. Hagler acted irresponsibly in not investigating Robert Smith. To rebut the matters that were presented on cross-examination the State had a right to question Det. Hagler so that Det. Hagler could explain his actions during the course of the investigation. Under the caselaw cited above, we hold that there was no error, much less plain error.
XIII.
Brown next argues that the circuit court erred in allowing evidence of what he alleges is prior bad acts to be admitted. Brown cites several instances in support of this contention.
Brown made no objections to any of the challenged evidence; therefore, we review this claim for plain error. See Rule 45A, Ala.R.App.P.
A.
First, Brown argues that it was error for the circuit court to allow Det. Hagler to testify that when he attempted to locate Brown he found that Brown was in the custody of the Birmingham Police Department.
In
Barnes v. State,
727 So.2d 839, 843 (Ala.Crim.App.1997), we stated:
“Our review of the record leads us to conclude that French’s testimony did not rise to the level of plain error. French’s reference to the arrest warrants was unsolicited and was merely an attempt to explain the circumstances surrounding Barnes’s arrest. This Court has found that ‘ “an indirect reference to the defendant’s involvement in other crimes is not incurably harmful to the accused, and any possible prejudice may be eradicated by the trial judge’s prompt curative instruction to the jury.” ’
McDonald v. State,
516 So.2d 868, 871 (Ala.Cr.App.1987) (quoting
Brooks v. State,
462 So.2d 758, 760 (Ala.Cr.App.1984)). While no curative instruction was given in the instant case, we note that the defense did not request a curative instruction.”
To constitute plain error the error must be so egregious that it affected the integrity of the proceedings. We cannot say that the comment amounted to plain error.
B.
Second, Brown argues that it was error for the circuit court to allow State’s witness Kevin Clayton to testify that he and Brown had been arrested on an unrelated robbery charge.
The record shows that on cross-examination Clayton was questioned as to how he came to make a statement to the police about the murder, about his location at the time of the statement, and the fact that he and Brown were being held together at the Birmingham Detention Center at the time of the questioning. On redirect by the State, the following occurred:
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“[Prosecutor]: Kevin, I hate to ask you this, but since we went into it, let me ask you: You were talking about a robbery case that you and him picked up?
“[Clayton]: Yes, sir.
“[Prosecutor]: It wasn’t this case, was it?
“[Clayton]: No, sir.
“[Prosecutor]: It wasn’t the case where the lady died in Hueytown, was it?
“[Clayton]: No, sir.
“[Prosecutor]: It was something else, wasn’t it?
“[Clayton]: Yes, sir.
“[Prosecutor]: Okay. So, there’s no allegation that you were involved in this case; right?
“[Clayton]: No, sir.”
(R. 346-47.)
Defense counsel clearly opened the door to this line of questioning on cross-examination. As we previously stated, when the door is opened, evidence of other crimes is admissible as proper rebuttal evidence. Cf.
Barnes v. State,
supra (no plain error in reference to prior burglary because Barnes admitted burglary but not the murder).
C.
Third, Brown argues that it was error for the circuit court to allow the following testimony during the direct examination of State’s witness Kelly Watkins:
“[Prosecutor]: What happened to the car on Saturday?
“[Watkins]: He told me that some detectives had gotten behind him and was trying to pull him over, and he jumped out of the car and ran from the police.
“[Prosecutor]: Did you think anything about it at that point about him abandoning [Betty Kirkpatrick’s] car?
“[Watkins]: I figured maybe something — I figured he might have had a warrant, and that is why he ran.”
(R. 377-78.)
In
Massey v. State,
49 Ala.App. 341, 343-44 , 272 So.2d 267, 269 (Crim.App.1972), cert. denied, 289 Ala. 747 , 272 So.2d 270 (1973), we addressed a similar issue and stated:
“During the redirect examination of Powell E. Morris, a witness for the State who was a criminal laboratory technician for the City of Birmingham, he testified that he had made an examination of the pistol in question and of the bullets and shell casing which had been submitted to him. He was asked, ‘Do you keep records showing what you received when you were with the City,’ and he answered, ‘Yes, sir, but — these records were used in the last case. I don’t know who has them, my receipts and what have you.’ The appellant argues that this reference to the ‘last case’ by this witness was error. Here, however, there was no objection to this at the time the unsolicited response was made by the witness, nor was there a motion to exclude or a motion to strike same. The rule governing this is found in
Ivory v. State,
237 Ala. 344 , 186 So. 460 [ (1939) ]; and in the absence of the objection and appropriate motion where such unsolicited response comes in, such failure to act constitutes a waiver and may not be made the object of a motion for a mistrial at a later time in the proceedings. See also
Treadaway v. State,
18 Ala.App. 409 , 92 So. 529 [ (1922) ]; and
Howton v. State,
21 Ala.App. 237 , 107 So. 28 [ (1926) ].”
Watkins’s response was unsolicited by the State, and Brown did not move to strike the answer. The jury could easily have inferred that Watkins was referencing an arrest warrant for the capital-murder charges involved in this case. “We
*907
cannot conclude that the unsolicited comment ... prejudiced [the appellant] to the point of plain error....”
Barnes v. State,
727 So.2d at 843 . See also
Dill v. State,
600 So.2d 343 (Ala.Crim.App.1991), aff'd, 600 So.2d 372 (Ala.1992), cert. denied, 507 U.S. 924 , 113 S.Ct. 1293 , 122 L.Ed.2d 684 (1993) (no plain error when witness said that defendant had a parole officer). Accordingly, we find no plain error.
XIV.
Brown next argues that there were numerous instances of prosecutorial misconduct that denied him a fair trial. The majority of the instances relate to claims of improper prosecutorial argument in opening and closing statements. No objections were made to any of the challenged instances of alleged misconduct; therefore, we review this claim for plain error. See Rule 45A, Ala.R.App.P.
“While the failure to object will not bar our review of [the appellant’s] claim of prosecutorial misconduct, it will weigh against any claim of prejudice that Calhoun makes on appeal ‘ “ ‘because of its suggestion that the defense did not consider the comments in question to be particularly harmful.’ ” ’
Ferguson v. State,
814 So.2d 925, 945 (Ala.Crim.App.2000), aff'd, 814 So.2d 970 (Ala.2001), cert. denied, 535 U.S. 907 , 122 S.Ct. 1208 , 152 L.Ed.2d 145 (2002), quoting
Kuenzel v. State,
577 So.2d 474, 489 (Ala.Crim.App.1990), aff'd, 577 So.2d 531 (Ala.1991).”
Calhoun v. State,
932 So.2d 923, 962 (Ala.Crim.App.2005), cert. denied, 548 U.S. 926 , 126 S.Ct. 2984 , 165 L.Ed.2d 990 (2006).
The following standard of review is used when reviewing claims of improper prosecutorial argument:
“ ‘ “The relevant question is whether the prosecutor’s comments ‘so infected the trial with unfairness as to make the insulting conviction a denial of due process.’ ”
Darden v. Wainwright, 477
U.S. 168, 181, 106 S.Ct. 2464, 2471 , 91 L.Ed.2d 144 (1986), quoting
Donnelly v. DeChristoforo,
416 U.S. 637 , 94 S.Ct. 1868 , 40 L.Ed.2d 431 (1974). Comments made by the prosecutor must be evaluated in the context of the whole trial.
Duren v. State,
590 So.2d 360, 364 (Ala.Cr.App.1990), aff'd, 590 So.2d 369 (Ala.1991), cert. denied, 503 U.S. 974 , 112 S.Ct. 1594 , 118 L.Ed.2d 310 (1992).’”
Bonner v. State,
921 So.2d 469, 473 (Ala.Crim.App.2005), quoting
Simmons v. State,
797 So.2d 1134, 1162 (Ala.Crim.App.1999).
Furthermore, the circuit court on several occasions instructed the jury that arguments of counsel were not evidence. “We presume that the jury follows the circuit court’s instructions.”
Calhoun v. State,
932 So.2d at 965.
Before closing arguments in the guilt phase the circuit court gave the following instruction:
“In the arguments, the attorneys may call your attention to evidence which they consider to be material and will ask you to draw certain inferences from that evidence. Please keep in mind, however, that you are not bound by their recollection of the evidence. That it is your recollection of the evidence that controls in this case. Your recollection alone must guide your deliberations.
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“Let me say that they may also call your attention to certain principles of law during their arguments. You are not bound by any principles of law mentioned by counsel. You must apply only the law to which you are instructed by me to the facts as you find them to be.”
(R. 552-53.)
A.
First, Brown argues that the prosecutor falsely stated in closing argument
*908
that he had offered Brown no deal to plead guilty. He asserts that the record shows that Brown was offered a deal; therefore, he says, the statement was false, misleading, and resulted in reversible error.
In rebuttal closing argument at the guilt phase, the prosecutor made the following argument:
“That is the case of State of Alabama v. Michael Brown. The case of Alabama v. Robert Smith, who would that be based on? Well, who told us it was Michael Smith — or Robert Smith? Case of Alabama v. Kevin Clayton, who would that case be built around? Michael Brown. Moses — what is Moses’ last name? Smiley. Who would that case be built around? Michael Brown. I say hell no, no deals. You are going to be held responsible for what you did. You are not going to sneak in here and ask for a deal and go nail some other people when your DNA is on that napkin. No.
“Can we build a case another way? Maybe, but it is not going to be that way.
“I know we all hear about deals and things like that. Oh, the State made a deal. Not this time. Now, you guys will get the opportunity to find him guilty of felony murder. That is your opportunity; but not me.
“You don’t put a bag over a 65-year-old lady’s head, you don’t choke her, and you don’t cut her throat and then say deal time. I don’t care if you said [President] George Bush did it. If the DNA is on that napkin, you are riding around in the car and you are bragging about it, you are going to go to trial for it. What y’all do with it is up to you. I am not taking it away from you.”
(R. 587-88.)
Immediately before the prosecutor’s argument defense counsel made the following argument:
“I can’t get around the fact — and I am not even going to try to — that Michael made the statement that he did to the police. And I am sorry that he was in the position that he made that statement and that he participated and knew there was a robbery.
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“Ms. Kirkpatrick’s death was tragic. I will be the first to admit that. What I think is even more tragic is that there are apparently some people out there that had a part in this, and nobody is doing anything about it. And I think it is tragic that because of the fact that that is happening or has happened and will continue to happen, that apparently that Michael is going to suffer the full brunt of what happened when he only participated in a small portion of it.”
(R. 588-86.)
The record shows that before trial the State discussed with Brown the possibility of Brown’s pleading guilty to capital murder and receiving a sentence of life imprisonment without the possibility of parole. The following occurred at a pretrial hearing:
“The Court: All right. I know that there was discussion of some possible resolution of this case. I presume that since we are ready to bring the jury up that this case — I was going to be advised at a later time.
“[Defense counsel]: We have had numerous discussions about this with [the prosecutor] and with regard to a life sentence, and we have explored what, in fact, that would do to the sentence Mr. Brown is already serving, and [other defense counsel] has talked to several people in the Department of Corrections, and we have relayed that information to [the prosecutor]. And the idea was that if he pled to a life consecutive
*909
and how much would it increase his time and so forth. And we have gone over those figures with [the prosecutor], and he was not willing to extend that offer to us on the life consecutive sentence.
“Failing that, he did offer to — offer us a sentence on a plea of guilty of life without parole, and [defense counsel] and I have explored this possibility in great detail with Mr. Brown on more than one occasion. And it is my understanding that Mr. Brown does not wish to accept that offer.... ”
(R. 9-10.)
After considering the prosecutor’s comment in the context of the entire trial, we conclude that the prosecutor was arguing that the State had not offered Brown a deal to plead guilty to felony murder and that it was the jury’s decision to determine whether Brown was guilty of felony murder or capital murder. Part of the prosecutor’s comment was in response to the comments of defense counsel in its closing argument. “ ‘When the door is opened by defense counsel’s argument, it swings wide, and a number of areas barred to prosecutorial comment will suddenly be subject to reply.’ ”
Davis v. State,
494 So.2d 851, 855 (Ala.Crim.App.1986) (quoting Defoor,
Prosecutorial Misconduct in Closing Argument,
7 Nova L.J. 443, 469-70 (1982-83)).
“ ‘In reviewing allegedly improper pros-ecutorial comments, conduct, and questioning of witnesses, the task of this Court is to consider their impact in the context of the particular trial, and not to view the allegedly improper acts in the abstract.
Whitlow v. State,
509 So.2d 252, 256 (Ala.Cr.App.1987);
Wysinger v. State,
448 So.2d 435, 438 (Ala.Cr.App.1983);
Carpenter v. State,
404 So.2d 89, 97 (Ala.Cr.App.1980),
cert. denied,
404 So.2d 100 (Ala.1981). Moreover, this Court has also held that statements of counsel in argument to the jury must be viewed as delivered in the heat of debate; such statements are usually valued by the jury at their true worth and are not expected to become factors in the formation of the verdict.
Orr v. State,
462 So.2d 1013, 1016 (Ala.Cr.App.1984);
Sanders v. State,
426 So.2d 497, 509 (Ala.Cr.App.1982).’ ”
Barber v. State,
952 So.2d 393, 437-38 (Ala.Crim.App.2005), cert. denied, 549 U.S. 1306 , 127 S.Ct. 1875 , 167 L.Ed.2d 366 (2007), quoting
Bankhead v. State,
585 So.2d 97, 106-07 (Ala.Crim.App.1989).
The circuit court instructed the jury that arguments of counsel were not evidence. There is no indication that the prosecutor’s comment so infected the trial with unfairness that Brown was denied a fair trial. See
Darden v. Wainwright,
477 U.S. 168 , 106 S.Ct. 2464 , 91 L.Ed.2d 144 (1986). Accordingly, we find no plain error.
B.
Second, Brown argues that the prosecutor improperly defined reasonable doubt in its closing argument and that that improper definition allowed the jury to convict Brown on a nonlegal standard of proof.
The prosecutor made the following argument:
“Reasonable doubt: You heard me talk about reasonable doubt during the first of this trial. It is a fair standard. It is a standard that each and every one of us would want applied to us if we were charged with a crime; prove the case beyond a reasonable doubt.
“But I submit to you, ladies and gentlemen, it doesn’t mean beyond any doubt; it doesn’t mean beyond all doubt; and it doesn’t mean that we have to prove the case to a mathematical certainty. If that was — the only way that
*910
could happen, if that was required, we would have to go back in time and see what happened. And if we could do that, we wouldn’t need you, ladies and gentlemen.
“And you are going to hear about the presumption of innocence. Absolutely, this defendant is presumed innocent. When he walked into the courtroom, he was presumed innocent. But that presumption only stays with him until such time that we prove to you his guilt. And I submit to you that we have. Remember I told you, you would know it in your gut what’s reasonable doubt? You will know it in your gut. And I think you know it in your gut.”
(R. 558-59.)
10
The circuit court specifically instructed the jury that it was not to consider arguments of counsel as the arguments related to the law and that the court would instruct the jury as to the law applicable in the case. The court correctly instructed the jury on reasonable doubt. There is no evidence that the above argument so infected the trial with unfairness that Brown was denied a fair trial. See
Darden v. Wainwright,
477 U.S. 168, 181 , 106 S.Ct. 2464 , 91 L.Ed.2d 144 (1986). Accordingly, we find no plain error.
C.
Third, Brown argues that the prosecutor improperly vouched for the credibility of the State witnesses during closing argument. He challenges the following argument:
“Ladies and gentlemen, I don’t vouch for the truth of [Brown’s] statement. All the State of Alabama vouches for is that he made a statement on that occasion. It is your job to decide what part of it is the truth and what part of it is a lie.”
(R. 562.) He also challenges the following comment by the prosecution:
“Did these people have anything to gain by lying to you? Is there any reward or benefit that will come to them by lying to you and telling you that this defendant didn’t tell them that he committed this crime, that he killed this lady, or he hit a lick, or whatever — however it was that he referred to it. Do they have anything to gain by lying to you? No.”
(R. 560-61.)
“A distinction must be made between an argument by the prosecutor personally vouching for a witness, thereby bolstering the credibility of the witness, and an argument concerning the credibility of a witness based upon the testimony presented at trial. ‘[P]rosecutors must avoid making personal guarantees as to the credibility of the state’s witnesses.’
Ex parte Parker,
610 So.2d 1181 (Ala.1992). See
Ex parte Waldrop,
459 So.2d 959, 961 (Ala.1984), cert. denied, 471 U.S. 1030 , 105 S.Ct. 2050 , 85 L.Ed.2d 323 (1985).
“ ‘ “Attempts to bolster a witness by vouching for his credibility are normally improper and error.” ... The test for improper vouching is whether the jury could reasonably believe that the prosecutor was indicating a personal belief in the witness’ credibility.... This test may be satisfied in two ways. First, the prosecution may place the prestige of the government behind the witness, by making explicit personal assurances of the witness’ veracity.... Secondly, a prosecutor may implicitly vouch for the witness’
*911
veracity by indicating that information not presented to the jury supports the testimony.’
“United States v. Sims,
719 F.2d 375, 377 (11th Cir.1983), cert. denied, 465 U.S. 1034 , 104 S.Ct. 1304 , 79 L.Ed.2d 703 (1984).”
DeBruce v. State,
651 So.2d 599, 610-11 (Ala.Crim.App.1993), aff'd, 651 So.2d 624 (Ala.1994).
In
Jackson v. State,
674 So.2d 1318 (Ala.Crim.App.1993), rev’d on other grounds, 674 So.2d 1365 (Ala.1994), we held that similar arguments were not improper. “[T]he prosecutor’s comments in this case did not constitute personal guarantees as to the witnesses’ credibility, but rather were proper inferences from the evidence, and, therefore, did not constitute error.” 674 So.2d at 1336-37. There was no plain error.
D.
Fourth, Brown argues that the prosecutor improperly argued victim-impact evidence in his closing at the guilt phase when he made the following argument:
“And there’s not one thing that you ladies and gentlemen can do to bring this lady back. There is no way that you are going to make this thing all right.
But, you know, you can sure make it a whole lot worse if the person responsible for her death is not held accountable.”
(R. 565) (emphasis added).
While we do not condone the prosecutor’s comments, we cannot say that the argument so infected the trial with unfairness that Brown was denied his constitutional right to a fair trial. The Alabama Supreme Court in
Ex parte Rieber,
663 So.2d 999 (Ala.1995), held that the admission of victim-impact evidence at the guilt phase of a capital trial did not amount to plain error. The court stated:
“We caution prosecutors that the introduction of victim impact evidence during the guilt phase of a capital murder trial can result in reversible error if the record indicates that it probably distracted the jury and kept it from performing its duty of determining the guilt or innocence of the defendant based on the admissible evidence and the applicable law. However, after examining the record in its entirety, we conclude that the aforementioned portions of Mr. Craig’s testimony, although they should not have been permitted, did not operate to deny Rieber a fair trial. It is presumed that jurors do not leave their common sense at the courthouse door. It would elevate form over substance for us to hold, based on the record before us, that Rieber did not receive a fair trial simply because the jurors were told what they probably had already suspected — that Ms. Craig [the murder victim] was not a ‘human island,’ but a unique individual whose murder had inevitably had a profound impact on her children, spouse, parents, friends, or dependents (paraphrasing a portion of Justice Souter’s opinion concurring in the judgment in
Payne v. Tennessee,
501 U.S. 808, 838 , 111 S.Ct. 2597, 2615 , 115 L.Ed.2d 720 (1991)).”
663 So.2d at 1006 . For the reasons stated in
Rieber ,
we find no plain error.
XV.
Brown argues that there was a material variance between the indictment and the proof at trial. He first contends that the indictment charged him with causing the death of Betty Kirkpatrick by “choking and cutting her throat” but that the coroner testified that Kirkpatrick died of strangulation and that she was most
*912
likely not breathing when her throat was cut.
11
We addressed a similar issue in
Thompson v. State,
542 So.2d 1286 (Ala.Crim.App.1988), aff'd, 542 So.2d 1300 (Ala.), cert. denied, 493 U.S. 986 , 110 S.Ct. 528 , 107 L.Ed.2d 527 (1989), and stated:
“ ‘[N]o variance ought ever to be regarded as material where the allegation and proof substantially correspond, or where the variance was not of a character which could have misled the defendant at the trial.’
Washington & Georgetown R.R. v. Hickey,
166 U.S. 521, 531 , 17 S.Ct. 661, 665 , 41 L.Ed. 1101 (1897).
“Moreover, the actual inquiry
“ ‘is not whether there has been a variance in proof, but whether there has been such a variance as to “affect the substantial rights” of the accused. The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.’
“Berger v. United States,
295 U.S. 78, 82 , 55 S.Ct. 629, 630 , 79 L.Ed. 1314 (1935).
“ ‘In order to be valid an indictment must: (1) show the accused what to prepare a defense against; (2) identify the offense so that he is tried for the same charge that was brought before the grand jury; (3) protect somewhat against double jeopardy; and (4) give the court the means to accept or reject the verdict, pronounce judgment, and pass sentence.
Baker v. State,
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1610895. Public record. Not legal advice.