# Griffin v. State

> Court of Criminal Appeals of Alabama · February 4, 2000 · 790 So. 2d 267

URL: https://www.frixlaw.com/law-library/cases/1848917

## Case

- **Court:** Court of Criminal Appeals of Alabama
- **Decided:** February 4, 2000
- **Citations:** 790 So. 2d 267; 2000 Ala. Crim. App. LEXIS 17; 1999 WL 1128995
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Fry
- **Cited by:** 37 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Ex Parte Griffin, 790 So. 2d 351 (2000).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1848917

## Opinion text

790 So.2d 267 (1999)
Louis GRIFFIN
v.
STATE.
CR-97-1026.
Court of Criminal Appeals of Alabama.
December 10, 1999.
Opinion on Return to Remand February 4, 2000.
Rehearing Denied March 31, 2000.
*278 J.T. Simonetti, Jr., Birmingham, for appellant.
Bill Pryor, atty. gen.; and Jeremy W. Armstrong and James R. Houts, asst. attys. gen., for appellee.
FRY, Judge.
On April 12, 1996, the appellant, Louis Griffin, pleaded guilty in the United States District Court for the Southern District of New York to violations of the federal Racketeer Influenced and Corrupt Organizations Act (RICO). During Griffin's plea, he admitted to participating in the murder of Christopher Lynn Davis in Birmingham, Alabama, on September 24, 1992. (C.R. 250.) During the March 1997 term, a Jefferson County grand jury returned an indictment charging Griffin with the capital offense of murder for "pecuniary or other valuable consideration." See § 13A-5-40(a)(7), Ala.Code 1975. Griffin was tried and the jury returned a verdict finding Griffin guilty of capital murder, as charged in the indictment. The jury, by a vote of 10-2, recommended that Griffin be sentenced to death. A sentencing hearing was held on January 29, 1998, and the trial court sentenced Griffin to death. On January 30, 1998, Griffin filed a motion for a new trial. On March 24, 1998, the trial court denied Griffin's motion for a new trial. This appeal followed.
The evidence established the following: Jesse Straiton, a crime scene technician for the Birmingham Police Department, *279 testified that he was called to the Avondale pool game room on September 24, 1992, to investigate the scene of the murder of Davis. Straiton stated, in his opinion, that because he was unable to find any empty shell casings at the scene, he believed that revolver(s) were used during the incident.
Dr. Robert Brissie, chief coroner and medical examiner for Jefferson County, testified that he performed an autopsy on Davis on September 28, 1992. Dr. Brissie stated that Davis had suffered "at least seven" gunshot injuries. (R. 427.) According to Dr. Brissie, at least three of the wounds would have been fatal, and that many of the shots were fired at close range—from 12 inches to 20 inches.
David Higgins, a forensic scientist for the Birmingham lab of the Department of Forensic Sciences, testified that he analyzed the bullets and fragments found in Davis's body and determined that the bullets were from either a .357 Magnum or a.38 caliber revolver. Higgins stated that regardless of whether the revolver was a.357 Magnum or a .38, the weapon was capable of holding a maximum of six bullets. Higgins said based on his analysis, he was "ninety-nine point ninety-nine percent sure these [bullets] were fired out of a revolver." (R. 440.)
Johnny Spragg, Jr., testified that he had lived in Birmingham most of his life. Spragg stated that he and Rapheal Bimbo [1] sold drugs. According to Spragg, he and Bimbo received their drug supply from Carlton "K" Henry, who, in turn, purchased the drugs from the 142nd Street Lynch Mob Crew (hereinafter "the Crew"), a gang in New York City. Spragg testified that during September 1992, while he and Bimbo were outside in the Avondale projects, a policeman drove up and asked Bimbo to walk over to his car. Because Bimbo was in possession of drugs, he ran from the officer. During the pursuit, Bimbo threw the drugs on the roof of a shed. A short time later, Spragg met Bimbo at Bimbo's grandmother's house. Bimbo was talking on the phone with Henry. Bimbo told Henry about being chased by a police officer, throwing the drugs on the shed's roof, and learning that Davis had retrieved the drugs and refused to return them. After Bimbo ended his telephone conversation with Henry, he told Spragg that Davis had taken possession of some of the drugs and was refusing to return them. Bimbo told Spragg that Henry indicated he "was going to have his man and them to come down here ... [and] take care of the situation." (R. 467.)
Spragg further testified that Griffin was the "security man" for the Crew. According to Spragg, approximately one week after Davis refused to return the drugs, Henry came to his apartment with Griffin. Later that night at a motel near the Birmingham Airport, Spragg met Griffin, Henry, and Jonathan Ferrell (hereinafter "Johnny O."). Spragg testified that he, Griffin, Henry, and Johnny O. rode around in the Avondale area that night and Henry pointed Davis out in a group of people at a playground. Spragg testified that Griffin wanted to kill Davis at that time, but that Henry told him to wait until later.
The next day, Spragg, Griffin, Henry, Johnny O., and Bimbo met at a church in Avondale. Spragg testified that Bimbo gave Henry $4000, and that Henry then gave Griffin and Johnny O. each $2000. Spragg testified that Henry gave the money to Griffin and Johnny O. as payment for the "hit" on Davis.
*280 The next day Griffin called Spragg and asked him to help find Davis. Spragg went to the motel and picked up Griffin and Johnny O., who were dressed in black clothing and had two six-shot .357 Magnum revolvers. That same night, Spragg drove Griffin and Johnny O. around the Avondale area in search of Davis. Spragg stated that they stopped outside the Avondale pool game room, and that he found Davis inside the game room. Spragg returned to the vehicle where Griffin and Johnny O. were waiting, got into the driver's side, and told them where Davis was standing and what Davis was wearing. According to Spragg, he stayed in the vehicle while Griffin and Johnny O. entered the game room; Spragg heard several gunshots come from the game room. Griffin and Johnny O. then ran out of the game room and got into the vehicle. Spragg testified that, as he drove away, someone fired two shots at them and that his vehicle was hit by buckshot. Additionally, Spragg testified that, after the shooting, Griffin's demeanor was "nonchalant... cool ... like it was ... business as usual." (R. 495.)
Spragg stated that he drove Griffin and Johnny O. to the motel. At the motel, Spragg put Griffin and Johnny O.'s guns in the trunk of his vehicle along with the empty shell casings. According to Spragg, Henry drove Griffin and Johnny O. to the Hartsfield International Airport in Atlanta so that there would not be a record of their leaving Alabama.
Later that day, Spragg and Bimbo threw the guns and the shell casings into East Lake. Spragg testified that, when he returned to the game room and looked through a window, Davis's body was lying in the same area where Davis was standing before the shooting occurred.
Spragg testified against Griffin pursuant to the terms of a plea agreement he entered in New York District Court. According to Spragg, he believed that, if he cooperated and testified for the government against Griffin, the United States Attorney General would request that the sentencing judge be lenient when determining his sentence.
Derek Razor testified that he and Griffin grew up together in the Harlem neighborhood of New York City. Razor indicated that he and Griffin were involved in the Crew in New York City. Razor stated that Henry told him that Bimbo had thrown some drugs on top of a shed while he was running from the police and that the person who recovered the drugs would not give them back. According to Razor, Henry requested that Griffin and Johnny O. "take care of business." Razor testified that, a few days later, Henry told him that Griffin and Johnny O. had "taken care of business." Razor stated that he had pleaded guilty in federal court to conspiracy to commit murder and that he was testifying because he hoped to reduce his sentence on federal charges.
Bimbo testified that he had met Griffin only twice—once briefly during a visit in New York City and again at the "bullpen" at the Jefferson County jail. Bimbo stated that he admitted to federal agents that he and Spragg had disposed of the weapons used to murder Davis by throwing them in a lake.
Chiquita Norman testified that she and Felicia Crenshaw were standing outside— approximately 10 feet from—the Avondale pool game room at the time of the shooting. Norman stated that two men walked into the game room and that she then heard gunshots. According to Norman, someone fired shots at the two men as they exited the game room and ran away. Norman further stated that she did not recognize either of the men and did not recognize Griffin.
*281 Joseph Walsh, an agent for the Federal Bureau of Investigation (hereinafter F.B.I.), testified that one of his assignments was an investigation of the Crew. He stated that Griffin had pleaded guilty in federal court to conspiracy to commit the murder of Davis.
Officer Andre Pressley of the Birmingham Police Department testified that Crenshaw, who was outside the game room when the incident occurred, identified two people as the alleged shooters, neither of whom was Griffin.
Sabrina Smith testified that she gave birth to Griffin's son on September 10, 1992, at Harlem Hospital in New York City. According to Smith, their baby had to stay in the hospital 14 days because of an infection. Smith stated that her baby was released from the hospital on the afternoon of September 24, 1992—the day Davis was killed, and that Griffin was with her on the day their baby was released. According to Smith, Griffin was also in New York City on September 25 and 26.
Jamilah Shabazz testified that she was living with Henry around the time the murder occurred. Testimony indicated that a room at the Holiday Inn motel near the Birmingham airport was registered to a person named Henry on the day that the murder occurred. Shabazz identified the handwriting on the motel registration receipt as Henry's. Additionally, Shabazz stated that, on September 25, 1992, she accompanied Henry and two other men to Atlanta, Georgia, because Henry told her that he was going to drive the men to the airport. Shabazz indicated the two men wore black clothing and that they both had New York accents. Shabazz stated she was unsure whether Griffin was one of the men in the vehicle with her and Henry.
Initially, we note that because Griffin was sentenced to death, our review is conducted pursuant to Rule 45A, Ala.R.App.P. which provides:
"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, 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."
While Griffin's failure to object at trial does not bar our review of an issue, it does weigh against any claim of prejudice he now raises on appeal. Kuenzel v. State, 577 So.2d 474 (Ala.Cr.App.1990), aff'd, 577 So.2d 531 (Ala.), cert. denied, 502 U.S. 886 , 112 S.Ct. 242 , 116 L.Ed.2d 197 (1991). Additionally, in Ex parte Land, 678 So.2d 224 (Ala.), cert. denied, 519 U.S. 933 , 117 S.Ct. 308 , 136 L.Ed.2d 224 (1996), our Supreme Court held:
"Plain error is error that `has or probably has adversely affected the substantial rights of the petitioner.' Rule 39(k)[Ala.R.App.P]. `In other words, the plain error exception to the contemporaneous-objection rule is to be "used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result."` United States v. Young, 470 U.S. 1, 15 , 105 S.Ct. 1038, 1046 , 84 L.Ed.2d 1 (1985), quoting United States v. Frady, 456 U.S. 152, 163, n. 14 , 102 S.Ct. 1584, 1592, n. 14 , 71 L.Ed.2d 816 (1982)."
678 So.2d at 232 . See Freeman v. State, 776 So.2d 160 (Ala.Cr.App.1999). Accordingly, we will review the errors raised on appeal.
I.
Griffin contends that "[t]he trial court reversibly erred when it prevented the defense from showing that the state had *282 previously prosecuted two other individuals for Davis's death, and that one of the individuals admitted responsibility for the offense." (Griffin's brief to this Court at p. 1.) Griffin further argues that "since [the guilty plea conviction] was evidence derived from in-court proceedings, it was by very definition not hearsay" and, therefore, admissible. (Griffin's brief to this Court at p. 2-3.)
In either the fall of 1992 or the spring of 1993, a Jefferson County grand jury indicted Falanda Miles and Anthony Embry for the murder of Davis. In May 1993, Embry pleaded guilty to Davis's murder and was sentenced to 20 years' imprisonment. In April 1994, Miles was tried and acquitted of the murder of Davis.
Griffin argues that the trial court should have admitted the prosecutions of Embry and Miles into evidence because, he says, "the plea of Mr. Embry, and the prosecution of Mr. Miles, was a critical component of the defense case, for it would show that there was ample reason to believe that [he] had not committed the offense: namely, that others had been prosecuted and admitted to responsibility for the offense." (Griffin's brief to this Court at p. 3.)
"A careful analysis of all the pertinent decisions will reveal that the true test of whether evidence of another's guilt is admissible lies within the sound discretion of the trial judge. A particular collection of facts indicating guilt of one other than the accused is admissible if, but only if, the deciding authority, ... feels that the whole of the offered evidence tending to show another's guilt is worth considering or, ... has any tendency to make such other person's guilt more probable than it would without the evidence."
C. Gamble, McElroy's Alabama Evidence, § 48.01(1) (5th ed. 1996).
"`As a general rule, an accused may introduce any legal evidence that tends to show that someone else committed the crime for which he is charged. Green v. State, 258 Ala. 471 , 64 So.2d 84 (1953). See generally C. Gamble, McElroy's Alabama Evidence, § 48.01(1) (3d ed. 1977); Schroeder, Hoffman and Thigpen, Alabama Evidence, § 4-4(a)(c) (1987).'"
Travis v. State, 776 So.2d 819, 851 (Ala.Cr. App.1997), quoting Thomas v. State, 539 So.2d 375, 395 (Ala.Cr.App.), aff'd, 539 So.2d 399 (1988), cert. denied, 491 U.S. 910 , 109 S.Ct. 3201 , 105 L.Ed.2d 709 (1989)(Emphasis added).
The mere fact that another individual has confessed to the offense for which the accused is being tried or that another individual has been prosecuted for that offense is not legal evidence admissible in the trial of the accused. "It is, of course, permissible for the defendant to show that another than himself committed the crime with which he is charged, but such proof is confined to substantive facts, and cannot include conduct or admissions, nor even confessions, unless they are part of the res gestae." Ward v. State, 15 Ala.App. 174, 175 , 72 So. 754 (1916)(emphasis added). See Erskine v. State, 21 Ala.App. 307 , 107 So. 720 (1926).
"`[T]he outcome of another's prosecution is simply irrelevant to the guilt or innocence of the defendant and may not be received as substantive evidence at defendant's trial. See, e.g., Hill v. State, 210 Ala. 221 , 97 So. 639 (1923).'"
Whitt v. State, 733 So.2d 463, 483 (Ala.Cr. App.1998), quoting Stokes v. State, 462 So.2d 964, 967 (Ala.Cr.App.1984).
"Traditional authority has held that the admission or confession of another that such person committed the crime for which the accused is being tried is *283 generally not admissible. This is customarily grounded upon the premise that the admission or confession is violative of the hearsay rule."
C. Gamble, McElroy's Alabama Evidence § 48.01(4) (5th ed. 1996). See Glass v. State, 19 Ala.App. 530 , 98 So. 702 (1923). Furthermore,
"Alabama law historically has embraced the position that the declaration of an unavailable person, that such person committed the crime for which the accused is being tried, is not admissible under the hearsay exception for declarations against interest."
Id. at § 249.02.
As the trial court correctly determined, the admission of evidence of the two prior prosecutions and the outcome of those prosecutions, was not material, that is "of consequence," in the determination of Griffin's guilt or innocence. The trial court stated in the case action summary with regard to this issue,
"It is noted that [the trial court] does not believe that this evidence [the conviction of Embry and the acquittal of Miles] is relative to others being tried or that acquittal or arrest bears on a genuine issue in the case before the Griffin jury and indeed would be confusing and irrelevant."
(Supp.R.7.) We agree; the evidence did not make Griffin's guilt more probable or less probable. As we stated in a similar situation in Hill v. State, 210 Ala. 221 , 97 So. 639, 641 (1923), "Such an acquittal is no more competent to show the defendant's innocence than that other's conviction would have been to show the defendant's guilt."
Griffin cites in support of his argument the United States Supreme Court's holding in Chambers v. Mississippi, 410 U.S. 284 , 93 S.Ct. 1038 , 35 L.Ed.2d 297 (1973), that the trial court had erred in preventing Chambers from introducing hearsay evidence at trial that pointed to the guilt of another man, Gable McDonald, and to Chambers's innocence.
In Thomas v. State, 539 So.2d at 395-96, we provided a complete discussion of the facts and holding in Chambers . We noted that the United States Supreme Court in reversing Chambers's conviction relied heavily upon the fact that McDonald was available to testify at trial and to be cross-examined by the state, that there were strong assurances of the reliability of evidence, and that the hearsay statements, which pointed to the guilt of McDonald, also pointed to Chambers's innocence.
We conclude, however, that Chambers is distinguishable from the present case. Here, Griffin did not subpoena or call either of the persons previously prosecuted for Davis's murder. Therefore, Griffin offered no substantive facts tending to prove that Miles or Embry killed Davis. Griffin requested to present the evidence through court records showing the previous arrests, indictments, and prosecutions of the other individuals. As we stated in Pool v. State, 19 Ala.App. 406, 406 , 98 So. 309 (1923), when we reviewed the admissibility of Pool's evidence to prove that T. McNeal had been convicted of the offense that Pool was charged with:
"The indictment against T. McNeal and the verdict of the jury finding him guilty of the crime for which [Pool] has been convicted, and the judgment of the circuit court showing his conviction, were not original evidence tending to show that T. McNeal had committed the offense for which [Pool] has here been convicted. Both the indictment and conviction may have been based on evidence entirely insufficient to sustain them. The evidence offered was inadmissible." *284 As in Pool , the trial court here properly denied Griffin's motion to admit the court records to show the previous arrests, indictments, and prosecutions of Miles and Embry because they did not tend to establish, as Griffin argues, his innocence. See Glass v. State, 19 Ala.App. at 530, 98 So. at 702 (stating "the record of the conviction of another is not original evidence tending to show his guilt, and was not admissible for the purpose of showing his guilt and incidentally the defendant's innocence").
Based on the above analysis, we conclude the trial court did not err in refusing to admit the evidence regarding Miles and Embry.
II.
Griffin contends that the trial court erred in requiring him to call two defense witnesses "out of order" during the state's case-in-chief. We find no objection in the record by Griffin to calling these witnesses out of order. Because Griffin failed to object at trial, our review is limited to plain error. Ala.R.App.P., Rule 45A.
This Court has held:
"The appellant bears the burden of bringing the record before the appellate court. Montgomery v. State, 504 So.2d 370 (Ala.Cr.App.1987). An appellate court may only consider the facts contained in the record on appeal, and it may not presume any facts not shown by that record and make them a ground for reversal. Williams v. State, 412 So.2d 1274 (Ala.Cr.App.1982)."
Carden v. State, 621 So.2d 342, 346-347 (Ala.Cr.App.1992). "The trial court has discretion in scheduling and in determining courtroom procedure; however, when the exercise of that discretion results in the denial of a basic constitutional right, we must find that that discretion has been abused." Ephraim v. State, 627 So.2d 1102, 1105 (Ala.Cr.App.1993). "The mode of conducting the examination of witnesses and the order of introducing evidence are matters within the discretion of the trial court." Alford v. State Farm Fire & Cas. Co., 496 So.2d 19, 21 (Ala.1986), quoting Drs. Lane, Bryant, Eubanks & Dulaney v. Otts, 412 So.2d 254, 259 (Ala.1982).
In the sentencing order, the trial court indicated that it permitted defense witness Bimbo to testify during the state's case-in-chief to allow Bimbo's attorney an opportunity to be present. (Supp.R.30.) The record shows Bimbo's attorney, who had in fact advised Bimbo not to testify, was present in the courtroom. (R. 588-589.) Norman was called by the defense during the state's case-in-chief because the trial court questioned her availability at a later time. (Supp.R.30.)
Although Griffin claims that the testimony of these two defense witnesses before the state rested its case "was grossly prejudicial," he has failed to establish how this procedure denied him a fair trial. Griffin offers only speculation to support any alleged prejudice; therefore, he has failed to show how the trial court abused its discretion and violated his constitutional rights. No plain error occurred in the trial court's allowing Bimbo and Norman to testify out of order that would result in a miscarriage of justice.
III.
Griffin contends the state, during its first closing argument, improperly commented on his failure to testify at trial. According to Griffin, reversible error occurred when the prosecutor stated:
"And the real issue in this case, as I see the evidence presented, is he's trying to say through his attorneys and through his witnesses that it was somebody else that did this murder, but it wasn't him."
(R. 815-16.)
Because Griffin failed to object at trial, our review is limited to a plain-error review. Ala.R.App.P., Rule 45A.
*285 In Ex parte Brooks, 695 So.2d 184, 188-189 (Ala.1997), cert. denied, 522 U.S. 893 , 118 S.Ct. 233 , 139 L.Ed.2d 164 (1997), our Supreme Court held:
"Alabama law distinguishes direct comments from indirect comments and establishes that a direct comment on the defendant's failure to testify mandates the reversal of the defendant's conviction, if the trial court failed to promptly cure that comment.... On the other hand, `covert,' or indirect, comments are construed against the defendant, based upon the literal construction of Ala.Code 1975, § 12-21-220, which created the `virtual identification doctrine.' Ex parte Yarber, 375 So.2d [1231] at 1234 [(Ala.1979) ]. Thus, in a case in which there has been only an indirect reference to a defendant's failure to testify, in order for the comment to constitute reversible error, there must have been a virtual identification of the defendant as the person who did not become a witness. Ex parte Yarber, 375 So.2d at 1234."
(Some citations omitted.)
At trial, Griffin's defense theory was that he did not murder Davis; that he was in New York City and not in Birmingham at the time of the murder. The alleged improper comment made by the prosecutor, when read in conjunction with the testimony at trial, is simply a restatement of Griffin's defense. We conclude that the prosecutor's statement "`rather than emphasizing the defendant's silence, merely point[s] out his defense and inferentially called on the jury not to believe it.'" Kimble v. State, 545 So.2d 228, 230 (Ala. Cr.App.1989), quoting Brinks v. State, 500 So.2d 1311, 1315 (Ala.Cr.App.1986). We find no plain error in the prosecutor's comment.
IV.
Griffin contends that the trial court's finding that the defense failed to present a prima facie case of racial discrimination in the exercise of the state's peremptory challenges of prospective jurors was erroneous. See Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). The record indicates that, after the jury was struck and before it was seated, the following transpired:
"[Defense counsel]: Judge, out of 13 strikes the state struck eight blacks.
"THE COURT: That's right. That's what I show.
"[Defense counsel]: Which would leave us with how many?
"THE COURT: Four according to my—
"[Defense counsel]: The defendant is black.
"THE COURT: Yes. That's true.
"[Defense counsel]: We make a motion of prima facie evidence of racial discrimination in the selection of the jury.
"THE COURT: Denied. Did I cut you off?
"[Defense counsel]: No, sir.
"THE COURT: Denied, based upon everything I've seen and heard and in camera discussions we had with a number of the jurors that were struck."
(R. 262-63.)
Griffin did not provide any further argument to establish a prima facie case of racial discrimination. Essentially, the only assertion made by Griffin's counsel in support of his motion was that the state had used 8 of its 13 strikes to remove black potential jurors. The trial court stated the following in the case action summary with regard to Griffin's motion:
"[B]ased on trial court's observation of the voir dire process, including extensive individual voir dire—re death penalty —court holds no prima facie case for *286 discriminatory striking is made by the defense. `Problems' with the death penalty and negative contact with law enforcement are observed as relative [reasons] for state's peremptory strikes."
(Supp.R.8-9.)
In Price v. State, 725 So.2d 1003 , (Ala. Cr.App.1997), aff'd, 725 So.2d 1063 (Ala. 1998), cert. denied, 526 U.S. 1133 , 119 S.Ct. 1809 , 143 L.Ed.2d 1012 (1999), we addressed a similar situation and stated:
"`"A defendant claiming a Batson violation must make a prima facie showing that the prosecution used its peremptory strikes in a discriminatory manner. Jackson v. State, 594 So.2d 1289 (Ala.Cr.App. 1991). Only when the defendant establishes facts and circumstances that raise an inference of discrimination must the state give its reasons for its peremptory strikes. Carter v. State, 603 So.2d 1137 (Ala. Cr.App.1992)."
"` Stokes v. State, 648 So.2d 1179, 1180 (Ala.Cr.App.1994). We will reverse a trial court's ruling on a Batson motion only when that ruling is clearly erroneous. Ex parte Branch, 526 So.2d 609 (Ala.1987).'
" Clemons v. State, 720 So.2d 961, 974 (Ala.Cr.App.1996).
". . . .
"`Batson, Ex parte Branch, 526 So.2d 609 (Ala.1987), and their progeny make it very clear that "`[t]he burden of persuasion is initially on the party alleging discriminatory use of peremptory challenges to establish a prima facie case of discrimination.'" Ex parte Bird, 594 So.2d 676, 679 (Ala.1991) (quoting Ex parte Branch, 526 So.2d at 622 ). Until this burden is met, the challenged party "is under no obligation to offer explanations for its peremptory strikes." Jackson v. State, 594 So.2d 1289, 1292 (Ala.Cr. App.1991). See also Huntley v. State, 627 So.2d 1013 (Ala.1992). Merely showing that the challenged party struck one more members of a particular race is not sufficient to establish a prima facie case. Harrell v. State, 571 So.2d 1270, 1271 (Ala.1990), cert. denied, 499 U.S. 984 , 111 S.Ct. 1641 , 113 L.Ed.2d 736 (1991); Ashley v. State, 606 So.2d 187, 192 (Ala.Cr.App. 1992); Jones v. State, 603 So.2d 419, 420-21 (Ala.Cr.App.1992). See also Hood v. State, 598 So.2d 1022, 1023 (Ala.Cr.App.1991)....
" Edwards v. State, [ 628 So.2d 1021 ] at 1024 [ (Ala.Cr.App.1993) ].
"`"In Ashley v. State, 606 So.2d 187 (Ala.Cr.App.1992), the prosecution used three of its seven strikes to remove blacks from the pool of potential jurors. This court held that the `appellant failed to establish a prima facie case under Batson and Ex parte Branch [ 526 So.2d 609 (Ala.1987) ] because the appellant failed to show any evidence of discrimination other than the number of blacks struck.' Ashley, 606 So.2d at 192 . Similarly in the present case, the only evidence presented to the trial court by the appellant was the fact that three out of the seven potential black jurors were struck by the prosecution. There was no evidence presented that any of the factors set out in Ex parte Branch, 526 So.2d 609 (Ala.1987), which may be used to establish a prima facie case, existed. The evidence presented at trial was not sufficient to prove a prima facie case of a Batson violation. The trial court did not err in denying the appellant's Batson motion."
*287 "` Moore v. State, 677 So.2d 828, 829 (Ala.Cr.App.1996).
"`"When determining whether a challenging party has shown a prima facie case of racial discrimination in the use of peremptory strikes, `the court is to consider "all relevant circumstances" which could lead to an inference of [such] discrimination.' Ex parte Branch, 526 So.2d 609, 622 (Ala.1987). The challenging party `may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial.' Batson, 476 U.S. at 96 , 106 S.Ct. at 1723 (emphasis added). Normally, the challenging party has not shown that the prosecution used its peremptory strikes in a racially discriminatory manner where the only evidence presented in support of a prima facie case of discrimination is the fact that blacks were struck by the prosecution. Ex parte Branch, 526 So.2d 609, 622-23 (Ala.1987), contains a nonexclusive list of factors that a challenging party might use to establish a prima facie case of discrimination. This list includes, `[a] pattern of strikes against [jurors of a certain gender or race] on a particular venire; e.g., 4 of 6 peremptory challenges were used to strike black jurors.' Branch, 526 So.2d at 623 (emphasis added). A pattern `"implies that the decision-maker... selected ... a particular course of action at least in part `because of,' not merely `in spite of,' its adverse effects upon an identifiable group," Hernandez [v. New York ], 500 U.S. 352, 360 , 111 S.Ct. [1859] at 1866, [ 114 L.Ed.2d 395 (1991) ] (quoting Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279 , 99 S.Ct. 2282, 2296 , 60 L.Ed.2d 870 (1979)) (footnote and citation omitted in Hernandez).' Freeman v. State, 651 So.2d 576, 583 (Ala.Cr.App.1994). When determining whether peremptory strikes were used in a manner to suggest a discriminatory `pattern of strikes,' `[m]erely showing that the challenged party struck one or more members of a particular race is not sufficient to establish a prima facie case [of discrimination].' Edwards v. State, 628 So.2d 1021, 1024 (Ala.Cr.App.1993)."
"` Bell v. State, 676 So.2d 1349, 1350 (Ala.Cr.App.1995)....'
" Clemons v. State, 720 So.2d at 975 ."
725 So.2d at 1059-60. See Pressley v. State, 770 So.2d 115 (Ala.Cr.App.1999); and Farrior v. State, 728 So.2d 691 (Ala. Cr.App.1998).
Here, Griffin relied solely on the number of strikes made by the State against blacks, without any supporting evidence indicating a discriminatory intent or purpose, to support his Batson motion. Consequently, we concur with the trial court that Griffin failed to make a prima facie showing of racial discrimination by the state. He has not shown that the trial court's denial of his Batson motion was clearly erroneous.
V.
Griffin contends the testimony of his alleged accomplices, Spragg and Bimbo, [2] was insufficiently corroborated as a matter *288 of law; therefore, he says, his conviction must be reversed. Specifically, he argues that the "state failed to meet its burden of proof, and offered no other evidence that [he] committed the capital offense of murder for pecuniary gain besides the unreliable and unverified testimony offered by [his] accomplices." (Griffin's brief to this Court at p. 25.)
Section 12-21-222, Ala.Code 1975, provides that:
"A conviction of felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and such corroborative evidence, if it merely shows the commission of the offense of the circumstances thereof, is not sufficient."
In Arthur v. State, 711 So.2d 1031 (Ala. Cr.App.1996), aff'd, 711 So.2d 1097 (Ala. 1997), this Court stated:
"`"Corroboration need only be slight to suffice." Ingle v. State 400 So.2d 938, 940 (Ala.Cr.App.1981). "While corroborating evidence need not be strong, it `... must be of substantive character, must be inconsistent with the innocence of a defendant and must do more than raise a suspicion of guilt.' McCoy v. State, 397 So.2d 577 (Ala.Cr.App.), cert. denied, 397 So.2d 589 (Ala.1981)." Booker v. State, 477 So.2d 1388, 1390 (Ala.Cr. App.1985). "However, the corroboration need not be sufficiently strong by itself to warrant a conviction." Miles v. State, 476 So.2d 1228, 1234 (Ala.Cr. App.1985). The requisite corroborative evidence is determined by a process of elimination or subtraction. Caldwell v. State, 418 So.2d 168, 170 (Ala.Cr.App.1981). "The means for analyzing the evidence to determine if there is sufficient evidence to corroborate testimony of an accomplice is to set aside the accomplice's testimony and determine whether or not the remaining evidence tends to connect the defendant with the commission of the offense." Leonard v. State, 459 So.2d 970, 971 (Ala.Cr.App.1984). "Whether such corroborative evidence exists is a question of law to be resolved by the trial court, its probative force and sufficiency being questions for the jury." Caldwell v. State, supra, at 170. Circumstantial evidence is sufficient to show corroboration. Jackson v. State, 451 So.2d 435, 437 (Ala.Cr.App.1984). See also McConnell v. State, 429 So.2d 662 (Ala.Cr.App.1983).'
"Hodges v. State, 500 So.2d [1273] at 1275-76 [ (Ala.Cr.App.1986) ].
"In Ware v. State, 409 So.2d 886 (Ala. Cr.App.1981), writ quashed, 409 So.2d 893 (Ala.1982), this court quoted Andrews v. State, 370 So.2d 320, 322 (Ala. Cr.App.), cert. denied, 370 So.2d 323 (Ala.1979), stating:
"`"The corroboration of an accomplice must tend to connect the accused with the commission of the crime but need not refer to any statement or fact testified to by the accomplice. `Corroborate means to strengthen, to make stronger; to strengthen, not the proof of any particular fact to which the witness has testified, but to strengthen the probative, criminating force of his testimony.' Malachi v. State, 89 Ala. 134, 140-141 , 8 So. 104 , 106 (1889); Smith v. State, 230 Ala. 413, 416 , 161 So. 538 (1935); Brown v. State, 31 Ala.App. 529 , 19 So.2d 88 (1944). The corroborative evidence need not to be strong, nor sufficient of itself to support a conviction, the criterion being that it legitimately tend to connect the accused with the offense. Miller v. State, 290 Ala. 248 , 275 So.2d 675 (1973). Corroborative *289 evidence need not directly confirm any particular fact nor go to every material fact stated by the accomplice. Bridges v. State, 52 Ala.App. 546 , 295 So.2d 266 (1974); Dykes v. State, 30 Ala.App. 129 , 1 So.2d 754 (1941). Corroborative evidence need not directly connect the accused with the offense but need only tend to do so. State v. Canada, 107 Ariz. 66 , 481 P.2d 859 , cert. denied, 404 U.S. 848 , 92 S.Ct. 154 , 30 L.Ed.2d 87 (1971). See Pearce v. State, 26 Ala.App. 492, 495 , 164 So. 114 , cert. denied, 231 Ala. 150 , 164 So. 118 (1935) (`(B)ut, as we read the cases, the corroboratory evidence, if it meets the test of "tending to connect the defendant with the commission of the offense," need not be, in and of itself alone, that tending in any wise to fasten guilt upon the defendant'); 23 C.J.S. Criminal Law § 812(3) (1961). The sufficiency of corroborating evidence is established if its probative value tends to connect the defendant with the commission of the crime. Lowe v. State, 32 Ala.App. 176 , 22 So.2d 618 (1945). The corroboration of an accomplice may be shown by circumstantial evidence. Blevins v. State, 56 Ala.App. 115 , 319 So.2d 734 , cert. denied, 294 Ala. 753 , 319 So.2d 739 (1975); Tidwell v. State, 23 Ala.App. 409 , 126 So. 186 (1930).
"`. . . .
"409 So.2d at 891."
711 So.2d at 1059-60 (emphasis in original). In addition, "[i]t has been held that nonaccomplice evidence of an admission or confession by the accused is sufficient corroboration of an accomplice's testimony to sustain a conviction of the accused." C. Gamble, McElroy's Alabama Evidence, § 300.01(9) (5th ed. 1996). See White v. State, 352 So.2d 29 (Ala.Cr.App.1977); Williams v. State, 52 Ala.App. 406 , 293 So.2d 324 (1974); Floks v. State, 49 Ala. App. 101 , 268 So.2d 881 (1972); and Knowles v. State, 44 Ala.App. 545 , 215 So.2d 727 (1968).
The trial court determined that Spragg was an accomplice in the murder of Davis. Spragg testified that Griffin and Johnny O. each received $2,000 from Henry to kill Davis.
We conclude that Spragg's testimony was sufficiently corroborated by the following evidence. Bimbo, a defense witness, testified during cross-examination by the state that he had previously informed the government that Griffin had killed Davis for pecuniary gain. (R. 614-15.)
"While the general rule is that the testimony of an accomplice cannot be corroborated by the testimony of another accomplice, the necessary corroboration of the state's accomplice may be supplied by the testimony of an accomplice witness who is called by and testifies for the defendant."
Ward v. State, 376 So.2d 1112, 1116 (Ala. Cr.App.1979). Moreover, Griffin in his guilty plea in federal court admitted killing Davis. Because we conclude in Part VI of this opinion that Griffin's admission in the guilty plea proceeding in federal court was properly admitted into evidence, Griffin's admission provided a connection to the offense sufficient to corroborate Spragg's testimony. Furthermore, testimony indicated that Henry had a motel room in Birmingham registered in his name on the day Davis was killed and that a telephone call was made from that room to Griffin's girlfriend in New York City. This testimony suggests that Griffin was in Birmingham and had an opportunity to participate in the offense. "If ... the accused is in close proximity to the crime and there is other evidence indicating guilt, such a combination of evidence is sufficient to corroborate *290 the testimony of an accomplice." C. Gamble, McElroy's Alabama Evidence, § 300.01(14) (5th ed. 1996). Although Shabazz could not identify Griffin, her testimony corroborated Spragg's testimony that Henry took Griffin and Johnny O. to Atlanta for their return flight to New York City. The evidence presented by the state, independent of Spragg's testimony, sufficiently connected Griffin with the killing of Davis.
VI.
Griffin contends that the trial court erred when it admitted in evidence his admission that he had killed Davis, which occurred during his guilty plea in federal court to RICO violations. Specifically, he argues that the federal plea allocution was inadmissible because, he says, he "was not fully informed of the consequences of the plea: namely, that he would be prosecuted for capital murder upon entering the plea agreement." (Griffin's brief to this Court at p. 31).
"Judicial confessions ... consist of guilty pleas, or statements in support of such pleas, made in judicial proceedings. These confessions may have been made in other actions.... Alabama has long held that an accused's plea of guilty in another court to a charge of doing a criminal act for which the accused is not being tried is admissible on the present trial even in the absence of a warning to the accused in such other court as to the effect of, or the subsequent usability as incriminating evidence of, the entry of a plea of guilty. Such a guilty plea, or a statement made in support of it, is admissible in the later litigation as an admission. A voluntary plea of guilty at a preliminary hearing before a committing magistrate by one charged with a crime, for example, is admissible in evidence as a confession in the subsequent trial of the accused."
C. Gamble, McElroy's Alabama Evidence, § 200.09(1) (5th ed. 1996).
An admission by a defendant constitutes the strongest possible evidence of his guilt. Rule 801(d)(2)(A), Ala.R.Evid., includes among the statements defined as "not hearsay," a statement "offered against a party" that is "his own statement." A plea of guilty by a defendant to a felony and his allocution on that plea are admissions under Rule 801(d)(2)(A).
Our determination of the admissibility of Griffin's plea of guilty in federal court rests upon a determination of whether Griffin entered his plea voluntarily. We analyze the allegation under the standard provided by Boykin v. Alabama, 395 U.S. 238 , 89 S.Ct. 1709 , 23 L.Ed.2d 274 (1969), Twyman v. State, 293 Ala. 75 , 300 So.2d 124 (1974), and Ireland v. State, 47 Ala. App. 65 , 250 So.2d 602 (Ala.Cr.App.1971).
During the guilty plea hearing the federal trial court, after determining that Griffin was represented by counsel, engaged in a lengthy colloquy with Griffin, in which the court explained Griffin's rights and ensured that Griffin was waiving those rights knowingly and voluntarily. The court advised Griffin of the range of punishment that could be imposed upon conviction, and Griffin stated that he understood the possible punishment. Because Griffin was represented by counsel, had ample time for reflection before entering his plea, was provided with an opportunity to consider the weight of the evidence against him, and was fully informed of his rights, we conclude that Griffin's plea of guilty to RICO charges, in which he admitted participating in the murder of Davis, was made voluntarily.
We reject Griffin's argument that his plea was not voluntary because, he says, he was not informed that "he would be prosecuted for capital murder upon entering *291 the plea agreement." (Griffin's brief to this Court at p. 31.) According to Griffin, his prosecution in the State of Alabama for the capital murder of Davis is a direct consequence of his guilty plea to the RICO charges; therefore, he concludes his plea was involuntary.
Initially, we note that before entering his guilty plea to the RICO charges, Griffin executed a plea agreement with the United States Attorney for the Southern District of New York, approved by his defense counsel, which included the following statement:
"It is further understood that this Agreement does not bind any federal, state, or local prosecuting authority other than this Office."
(C.R.272.) Therefore, Griffin was informed that other jurisdictions were not bound by the agreement.
"`"`[A]n accused is entitled to information concerning the direct consequences of his plea. He is not entitled to information concerning all collateral effects, or future contingencies that might arise.'" Fearson v. State, 662 So.2d 1225, 1226 (Ala.Cr.App.1995)(quoting Minnifield v. State, 439 So.2d 190, 192 (Ala.Cr.App.1983)).'"
Robinson v. State, 730 So.2d 252, 254 (Ala. Cr.App.1998). Griffin's prosecution for capital murder in the State of Alabama was not a direct consequence of his plea of guilty to RICO violations in federal court. The federal prosecutor was not required to inform Griffin of the possibility that he might be charged in the State of Alabama for the murder of Davis. The State of Alabama is a different, independent sovereign from the federal government; therefore, prosecution in the State of Alabama was totally independent of the federal prosecution.
"`"[E]ach government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other.
"`. . . .
"`Thus, "[e]ach has the power, inherent in any sovereign, independently to determine what shall be an offense against its authority and to punish such offenses, and in doing so each `is exercising its own sovereignty, not that of the other.'" [United States v.] Wheeler, 435 U.S. [313] at 320, 98 S.Ct. [1079] at 1084[, 55 L.Ed.2d 303 (1978) ] (quoting [ United States v.] Lanza , 260 U.S. [377] at 382, 43 S.Ct. [141] at 142[, 67 L.Ed. 306 (1922)) ]."
Clemons v. State, 720 So.2d 961, 967 (Ala. Cr.App.1996), aff'd, 720 So.2d 985 (Ala. 1998), cert. denied, 525 U.S. 1124 , 119 S.Ct. 907 , 142 L.Ed.2d 906 (1999), quoting Heath v. Alabama, 474 U.S. 82, 88-90 , 106 S.Ct. 433, 437-38 , 88 L.Ed.2d 387, 392-93 (1985).
Griffin's prosecution in the State of Alabama was conducted by an independent sovereign and involved an entirely distinct legal offense from the offense underlying the guilty plea conviction in federal court. The prosecution in Alabama was not an "automatic" or "definite" consequence of Griffin's federal plea of guilty to RICO violations. While the admission in his plea of guilty that he killed Davis may have been the impetus to start his prosecution in Alabama, the prosecution for capital murder was not a direct consequence, as a matter of law, from his plea. United States v. Persico, 621 F.Supp. 842 (S.D.N.Y.1985)(holding that a defendant need only be advised concerning the direct consequence of the guilty plea; thus, the defendant did not have to be advised that the "conduct underlying the plea may become a predicate act for criminal offenses committed by the defendant after the date of such conduct"—establishing a RICO violation); *292 United States v. Andreadis, 366 F.2d 423 (2d Cir.1966), cert. denied, 385 U.S. 1001 , 87 S.Ct. 703 , 17 L.Ed.2d 541 (1967)(defendant's plea in state court to a charge of false advertising was admissible later in a federal prosecution for mail fraud arising from the advertising); and Myers v. United States, 49 F.2d 230 (4th Cir.), cert. denied, 283 U.S. 866 , 51 S.Ct. 657 , 75 L.Ed. 1470 (1931)(state court guilty plea to charge of possession of illegal liquor was admissible in subsequent federal prosecution for unlawfully selling liquor).
We conclude that no error occurred when the trial court admitted into evidence Griffin's voluntary plea of guilty to RICO violations.
VII.
Griffin contends the state lost or destroyed exculpatory evidence before his trial. Approximately four years before Griffin's trial, the state prosecuted two other men, Miles and Embry, for the murder of Davis. Griffin requested during pretrial discovery that the state produce the original police file that led to the prosecutions of Miles and Embry. The state, however, was unable to produce the file because the file was missing. Griffin claims the loss or destruction of the original case file "establishes an unacceptable likelihood of prejudice to [him] that requires reversal." (Griffin's brief to this Court at p. 38.) We disagree.
In May v. State, 710 So.2d 1362, 1369 (Ala.Cr.App.1997), this Court 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 evidence potentially useful to the defense:
"`"[U]nless 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." ...'
" 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 )."
(Some citations omitted.)
The record indicates that the state made a diligent effort to locate the missing case file. Nothing in the record indicates the loss of the original case file was the result of bad faith on the part of the police or the state. Therefore, we conclude Griffin was not denied due process in this regard.
Moreover, Griffin has failed to demonstrate that the evidence that was lost was critical to the defense's case. In his brief to this Court, Griffin claims that the following inferences can be drawn regarding the evidence in the lost case file:
(1) At least two eyewitnesses identified someone other than Griffin as the shooter;
(2) There were many people in the game room at the time of the shooting and without the case file Griffin had no way to learn their identities; and
(3) Presumably, there was forensic evidence of the two individuals arrested and prosecuted for the Davis murder. *293 (Griffin's brief to this Court at p. 39-40.) Griffin, however, offers no more than speculation and conjecture in support of his argument. Griffin presented testimony that two eyewitnesses had identified other men as the shooters of Davis. Additionally, Norman and Shabazz, Henry's girlfriend, were unable to identify Griffin at trial. Griffin presented evidence in his defense that he was not in Birmingham at the time of the murder. Furthermore, the police never recovered the murder weapon. Consequently, we fail to see how Griffin was incapable of presenting his defense and unfairly prejudiced by the state's inability to produce the missing file. Any evidence obtained from the file would have been cumulative and not so critical as to make Griffin's trial fundamentally unfair.
VIII.
Griffin claims that the presentence investigation report (hereinafter "PSI"), required by § 13A-5-47(b), Ala. Code 1975, was inadequate and "[did] not provide adequate guidance to the trial court." (Griffin's brief to this Court at p. 43.) Specifically, Griffin claims that the PSI is deficient because, he says, no effort was made to secure personal information regarding his children, to discover why he left school, or to contact other members of his family. Because Griffin did not object to the PSI report at his sentencing hearing, our review is limited to a plain-error review. Rule 45A, Ala.R.App.P.
Griffin cites Guthrie v. State, 689 So.2d 935 (Ala.Cr.App.1996), in support of his claim that his PSI report was inadequate. However, we find the PSI report in Guthrie is easily distinguished from Griffin's PSI report. The personal and social history included in Guthrie's PSI report was taken from an interview with Guthrie that occurred at least five years before Guthrie's sentencing hearing and did not contain psychological information that was known to exist. 689 So.2d at 947-948 . We remanded the case in Guthrie because the report "implie[d] little, if any, attempt [was made] to subjectively evaluate Guthrie." 689 So.2d at 947 .
By contrast, the record before us indicates that Griffin's presentence investigation occurred during the month between his conviction and sentence. The PSI report contains Griffin's personal and social history, indicating that he is single and has fathered four children; provides his work history; and states that Griffin "did not want to name any references or give any additional information" other than the information he provided. (C.R.192.) The PSI report also indicates that the court was in possession of Griffin's prior criminal record. Although Griffin claims that information regarding the case status of codefendants, victim notification information, victim impact, and financial status were insufficient, we conclude that a remand is not required. Griffin merely states that these categories were left blank; he offers no evidence that this information was available. He does not proffer the evidence or indicate how it would assist the trial court in its evaluation. Furthermore, the PSI report directly refutes Griffin's argument on appeal because it states that Griffin did not want to provide further information. The same trial judge who presided over and imposed sentence on Griffin also conducted the trial and sentenced Griffin's codefendant, Bimbo; therefore, the trial court was familiar with the evidence. Additionally, Griffin's counsel argued the existence of mitigating circumstances. Evidence of Griffin's character was presented implicitly throughout the guilt and sentencing proceedings. Based on the foregoing, we conclude that the PSI report adequately presented evidence from which the trial court could *294 evaluate Griffin and meets the requirements of § 13A-5-47(b), Ala.Code 1975.
IX.
Griffin argues that "[h]earsay infected the entire trial" and "violated [his] rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, [and] the equivalent portions of the Alabama Constitution, and Alabama law." (Griffin's brief to this Court at p. 44.) Griffin lists from the record several instances where, he says, inadmissible hearsay was allowed into evidence. [3] Specifically, Griffin claims that improper hearsay was admitted during the state's opening statement and during the direct testimony of Spragg and Razor. We will address each of these claims in turn.
1. Alleged instances of improper hearsay admitted during the state's guilt-phase opening statement.
Griffin claims the prosecutor relied on "anticipated hearsay" during his opening statement on at least four occasions. (Griffin's brief to this Court at p. 45.) All of these claimed errors occurred during the state's guilt-phase opening statement and involved statements made by either Davis or Henry.
"The purpose of opening statements is for each party to give the jury an overview of what the evidence will show."
McKinney v. State, 654 So.2d 95, 98 (Ala. Cr.App.1995). In addition, "the scope of an opening statement rests within the sound discretion of the trial judge." Shelton v. State, [Ms. CR-97-1313, May 28, 1999] ___ So.2d ___, ___ (Ala.Cr.App. 1999). The prosecutor "`"is to be allowed considerable latitude in presenting to the jury in his opening statement what he expects the evidence to show."'" Kinder v. State, 515 So.2d 55, 66 (Ala.Cr.App. 1986), quoting Ex parte Baldwin, 456 So.2d 129, 136 (Ala.1984)(emphasis in original.) We have reviewed the portions of the record Griffin cites. Because we conclude in subsection 2 of this part of our opinion that the alleged improper hearsay was properly admitted into evidence and in light of the wide latitude in presenting expected evidence during opening argument, we conclude no error occurred.
2. Alleged instances of improper hearsay admitted during the direct examinations of Spragg and Razor.
Griffin lists four instances of the admission of alleged hearsay that occurred during the state's direct examination of Spragg. Three of these instances involved statements about a telephone conversation between Bimbo and Henry. Spragg testified that Bimbo had a telephone conversation with Henry. During the conversation, Bimbo informed Henry that Davis had recovered the drugs and was refusing to return them. In addition Spragg indicated that Bimbo told him that Henry was going to have someone "come down here" and "take care of the situation." Spragg also testified that Bimbo told him he gave Henry $4000. The final instance cited by Griffin occurred when Spragg testified that a telephone number listed on the motel receipt was Bimbo's pager number.
Griffin also claims that improper hearsay was admitted four times during the direct examination of Razor. Three of these claimed instances concern Razor's testimony regarding statements made by Henry to Razor about Bimbo's throwing *295 the drugs on a roof and Davis's refusing to return them. According to Razor, Henry asked him whether he thought Griffin and Johnny O. "would come down here and take care of some business." (R. 548.) Additionally, Razor testified that Henry informed him that Griffin and Johnny O. had taken "care of business." (R. 551.) The last instance concerned a conversation between Razor and Johnny O. in which Johnny O. stated that Henry owed him money.
The trial court concluded that the alleged hearsay evidence offered by Spragg and Razor was admissible because the instances involved a statement or act by one coconspirator against another coconspirator. We agree.
Rule 801(c), Ala.R.Evid., states:
"`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."
Rule 801, Ala.R.Evid., lists many types of statements that are by definition not hearsay. Included in that list are admissions by party opponents. Rule 801(d)(2)(E) declares a statement is not hearsay if:
"The statement is offered against a party and is ... a statement by a coconspirator of a party during the course and in furtherance of the conspiracy."
In addition, this Court has held:
"`"Where proof of a conspiracy exists, any act or statement by an accused's co-conspirator in the commission of the crime, done or made before the commission of the crime, during the existence of the conspiracy and in the furtherance of a plan or design, is admissible against the accused."' Deutcsh v. State, 610 So.2d 1212, 1222 (Ala.Cr.App. 1992), quoting Charles W. Gamble, McElroy's Alabama Evidence, § 195.03(1)(4th ed. 1991).
"`[T]he principle is that by conspiring together, the conspirators have jointly assumed to themselves, as a body, the attributes of individuality, so far as necessary to pursue a common design; thus, rendering whatever is done or said in furtherance of that design a part of the res gestae and, therefore, the act of all.'
Charles W. Gamble, McElroy's Alabama Evidence, § 195.03(1)(4th ed. 1991)(citing Stokley v. State, 254 Ala. 534 , 49 So.2d 284 (1950))."
Nettles v. State, 683 So.2d 9, 12 (Ala.Cr. App.1996).
"`While it is preferable that a co-conspirator testify after the prima facie showing of the existence of a conspiracy, such order of proof is not mandatory. The order of proof requirement is for the purpose of expediting the trial and saving the valuable time of the trial court, rather than protecting or securing any supposed right a defendant might have. Morton v. State 338 So.2d 423, 425 (Ala.Cr.App.), cert. denied, 338 So.2d 428 (Ala.1976); Conley [v. State, 354 So.2d 1172 (Ala.Cr.App.1977) ]'"
Harris v. State, 632 So.2d 503, 524 (Ala.Cr. App.1992), aff'd, 632 So.2d 543 (Ala.1993), aff'd, 513 U.S. 504 , 115 S.Ct. 1031 , 130 L.Ed.2d 1004 (1995), quoting Nance v. State, 424 So.2d 1358, 1365 (Ala.Cr.App. 1982).
"The fact of a party's participation in a conspiracy may be proven by that party's own express admission. It has been held, for example, that proof both of the accused's and another's membership in the alleged conspiracy may consist solely of accused's own admission or confession of such membership."
*296 C. Gamble, McElroy's Alabama Evidence, § 195.03(2)(5th ed. 1996).
"In determining whether the State presented a prima facie case, this court will consider the evidence in the light most favorable to the State. Hutcherson v. State, 441 So.2d 1048 (Ala.Cr.App.1983); Smelcher v. State, 385 So.2d 653 (Ala.Cr. App.1980)."
Salter v. State, 578 So.2d 1092, 1094 (Ala. Cr.App.1990).
Reviewing the evidence in the light most favorable to the state, we find that the testimony of Spragg and Razor was not hearsay and that it was properly admitted. Before Spragg and Razor testified, the evidence at trial established that Davis was shot seven times with either .38 caliber or .357 Magnum bullets that came from one or more revolvers. The testimony also established that at the time of Davis's murder, those caliber revolvers held only six rounds. While these facts alone are insufficient to establish a conspiracy before the testimony of Spragg and Razor, any deficiency was cured by the admission of further evidence.
In his federal plea allocution, Griffin admitted to participating with Razor, Henry, and others in Davis's murder. This admission, in and of itself, established Griffin's participation in the conspiracy sufficient to admit Spragg and Razor's testimony. In addition to Griffin's federal allocution, Norman testified that while she was outside of the game room on the night of the murder, she saw two men enter the game room. After hearing gunshots, she saw two men run from the building. Shabazz testified the day after the murder that Henry drove two men with New York accents to the Hartsfield International Airport in Atlanta. The testimony of both Norman and Shabazz was consistent with that of Spragg and Razor. Clearly, the admission by Griffin and the supporting evidence by Norman and Shabazz sufficiently established a conspiracy and, thus, the testimony of Spragg and Razor was properly admitted.
Likewise, Spragg's testimony concerning Bimbo's beeper number being listed on the motel registration was properly admitted. Rule 602, Ala.R.Evid., states, in pertinent part:
"A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness's own testimony."
In reviewing the record, we find the state laid the proper foundation for Spragg's testimony by establishing that Spragg had personal knowledge of Bimbo's beeper number.
Upon a careful review of the record, we conclude that the objected—to portions of Spragg and Razor's testimony were not hearsay. Consequently, the prosecutor's argument was permissible because it was supported by the evidence. No error occurred.
X.
Griffin contends that the state violated Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 , (1963), when it did not provide a gun that law enforcement officers located in the lake where the guns used to kill Davis were allegedly thrown. Griffin argues that this gun was critical to his defense because "it was not the type of gun that was purportedly used by [him] to kill Mr. Davis." (Griffin's brief to this Court at p. 53.) Additionally, he appears to argue that the state suppressed a forensics report conducted on the gun.
In 1995, three years after the murder of Davis, Spragg informed law enforcement *297 officers that he had thrown the guns used by Griffin and Johnny O. to kill Davis into East Lake. When law enforcement officers searched the lake and the surrounding area, they found a .38 revolver. The state was unable to turn the revolver over to Griffin because the F.B.I. laboratory had destroyed it. Although Griffin alleges that the state had the revolver examined by a forensics expert and a written report was compiled, the prosecutor represented to the trial court that there was no written report.
In order to establish a Brady violation, Griffin "must establish 1) that the state suppressed evidence, 2) that the evidence was favorable to the defense, and 3) that the evidence was material." Ellis v. State, 641 So.2d 333, 337 (Ala.Cr.App. 1994).
"Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceedings would have been different. A `reasonable probability' is a probability to undermine confidence in the outcome."
United States v. Bagley, 473 U.S. 667, 682 , 105 S.Ct. 3375, 3379-3380 , 87 L.Ed.2d 481 (1985).
We conclude that Griffin has failed to establish a Brady violation. Although the revolver had been destroyed, the jury was informed that a revolver had been found in the lake at Spragg's direction. Additionally, the revolver and any examination conducted upon it were not material or exculpatory. Walsh testified that the revolver was examined by the F.B.I. firearms laboratory and that it was damaged. The testimony indicated that the recovered gun was so deteriorated from water damage that any attempt to perform a projectile analysis would have been futile. Thus, contrary to Griffin's assertion, his defense was not limited by the state's inability to produce the weapon for analysis. Therefore, the recovered weapon was not material to the determination of whether Griffin killed Davis.
Griffin has failed to establish that the result of his trial would have been different had the gun been provided; we conclude that the state did not commit a Brady violation with regard to the destroyed weapon.
XI.
Griffin contends the trial court erred when it denied his motion in limine and allowed the state to comment on his alleged affiliation with the Crew because, he says, those comments were "extremely prejudicial and generally inadmissible by the Alabama courts." (Griffin's brief to this Court at p. 59.)
Griffin relies on Ex parte Thomas, 625 So.2d 1156 (Ala.1993), in which the Alabama Supreme Court stated that allowing the state to comment on any possible gang affiliation is equal to allowing the state to introduce evidence of collateral criminal acts.
Rule 404(b), Ala.R.Evid., states, in pertinent part:
"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive. ..."
(Emphasis added.) This Court has previously held that a defendant's involvement in gang activity may be relevant to prove motive in a particular case. Siler v. State, 705 So.2d 552 (Ala.Cr.App.1997); see also Knotts v. State, 686 So.2d 431, 469 (Ala.Cr. App.1995), aff'd, 686 So.2d 486 (Ala.1996), cert. denied, 520 U.S. 1199 , 117 S.Ct. 1559 , 137 L.Ed.2d 706 (1997)(holding that "the appellant's possible membership in an organization *298 that espouses racial hatred is relevant to a possible motive for the homicide").
The theory of the state's case was that Griffin, a member of the Crew, was paid to come to Birmingham to kill Davis because Davis had refused to return the drugs to Bimbo, a drug dealer affiliated with the Crew. Griffin's defense was that he was not in Alabama when Davis was murdered and that he was not involved in Davis's murder. Clearly, Griffin's motive was at issue—motive for a homicide is always a proper inquiry. Chambliss v. State, 373 So.2d 1185 (Ala.Cr.App.), cert. denied, 373 So.2d 1211 (Ala.1979). Because "[evidence] tending to show motive is always admissible," we find no error in the trial court's ruling. Benefield v. State, 726 So.2d 286 (Ala.Cr.App.1997).
Moreover, Rule 403, Ala.R.Evid., states:
"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
We note that the trial court was acutely aware of the provisions of the Rule 403, Ala.R.Evid., balancing test with regard to evidence of Griffin's affiliation with the Crew. In a pretrial hearing on Griffin's motion in limine, the trial court indicated that it would be "very circumspect" about allowing the state to mention Griffin's bad acts during its opening statement. In addition, the trial court indicated to the state that he felt certain testimony concerning "hit gang stuff" was prejudicial and that he was unsure of its probative value. (R. 66.)
In R.D.H. v. State, 775 So.2d 248, 252-53 (Ala.Cr.App.1997), we stated:
"`Evidence of any offense other than that specifically charged is prima facie inadmissible. Nicks v. State, 521 So.2d 1018 (Ala.Cr.App.1987), aff'd, 521 So.2d 1035 (Ala.), cert. denied, 487 U.S. 1241 , 108 S.Ct. 2916 , 101 L.Ed.2d 948 (1988). However, evidence of collateral crimes or bad acts is admissible as part of the prosecutor's case if the defendant's collateral misconduct is relevant to show his guilt other than by suggesting that he is more likely to be guilty of the charged offense because of his past misdeeds. Nicks v. State; Brewer v. State, 440 So.2d 1155 (Ala.Cr.App.1983).
"`. . . .
"... All of the exceptions relate to the relevancy of the evidence, which means that evidence of separate and distinct crimes is admissible only when the evidence is relevant to the crime charged. Mason v. State, 259 Ala. 438 , 66 So.2d 557 (1953); Nicks v. State. If the evidence is not so remote as to lose its relevancy, the decision to allow or to not allow evidence of collateral crimes or acts as part of the state's case rests in the sound discretion of the trial court. McGhee v. State, 333 So.2d 865 (Ala.Cr. App.1976).
". . . .
"That being said, we are, however, also mindful of the well-settled principle that even where the proffered evidence of collateral bad acts is relevant, its probative value must not be substantially outweighed by the danger of undue and unfair prejudice for the evidence to be admissible. Ex parte Smith, 581 So.2d 531, 535 (Ala.1991); Hargress v. City of Montgomery, 479 So.2d 1137 (Ala.1985); Thomas [v. State] 625 So.2d [1149] at 1153 [ (Ala.Cr.App.1992) ]; Jones v. State, 473 So.2d 1197 (Ala.Cr. App.1985). See McElroy's Alabama Evidence, §§ 20.01 and 21.01(4). `Prejudicial' in this context means `"an undue tendency to move the tribunal to decide *299 on an improper basis, commonly, though not always, an emotional one."` Averette v. State, 469 So.2d 1371, 1374 (Ala. Cr.App.1985), quoting State v. Forbes, 445 A.2d 8, 12 (Me.1982). Before the probative value of evidence of collateral bad acts may be held to outweigh its potential prejudicial effect, the evidence must be `reasonably necessary' to the state's case. Bush [v. State, 695 So.2d 70 ] at 85 [ (Ala.Cr.App.1995), aff'd, 695 So.2d 138 (Ala.1997) ]; Averette, 469 So.2d at 1374 ."
According to the state's theory, this homicide centered around Davis's alleged refusal to return drugs to Bimbo, a distributor for the Crew. Griffin's membership in the Crew played a key role in his participation in Davis's murder. It was alleged that Griffin, because he was a "security" man for the Crew, was paid to come to Alabama to kill Davis. To omit this crucial affiliation would have fragmented the presentation of the evidence and confused the jury. Griffin's membership in the Crew and the Crew's stake in selling drugs in Birmingham established the motive for Davis's murder. There was no less prejudicial means of presenting this evidence of motive. Therefore, based on the state's theory of the case and the above analysis, we find the trial court's admission of Griffin's association with the Crew was not error.
Griffin further contends that the trial court erred in admitting into evidence his "complete federal plea allocution" during the penalty phase of his trial. Specifically, Griffin claims the allocution "was enormously prejudicial, and was simply not relevant to any of the mitigating or aggravating circumstances legitimately argued by the defense or the state." (Griffin's brief to this Court at p. 62.) We disagree.
Section 13A-5-45(c) and (d) state:
"(c) At the sentence hearing evidence may be presented as to any matter that the court deems relevant to sentence and shall include any matters relating to the aggravating and mitigating circumstances referred to in Sections 13A-5-49, 13A-5-51 and 13A-5-52. Evidence presented at the trial of the case may be considered insofar as it is relevant to the aggravating and mitigating circumstances without the necessity of re-introducing that evidence at the sentencing hearing, unless the sentence hearing is conducted before a jury other than the one before which the defendant was tried.
"(d) Any evidence which has probative value and is relevant to sentence shall be received at the sentence hearing regardless of its admissibility under the exclusionary rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements. This subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or the State of Alabama."
In Siebert v. State, 562 So.2d 586 , aff'd, 562 So.2d 600 (Ala.1990), cert. denied, 498 U.S. 963 , 111 S.Ct. 398 , 112 L.Ed.2d 408 (1990), the prosecutor argued as an aggravating circumstance that Siebert had previously been convicted of another capital felony or a felony involving the use or threat of violence toward the person. In support of his argument, he introduced into evidence "a prior conviction of manslaughter and introduced evidence concerning the circumstances of the manslaughter in order to prove the violence." 562 So.2d at 597. In affirming the trial court's admission of the evidence, we found "that the testimony regarding the violence of the appellant's prior manslaughter offense was relevant and of probative value in the sentencing aspect of the trial." 562 *300 So.2d at 598. See also Hallford v. State, 548 So.2d 526 (Ala.Cr.App.1988), aff'd, 548 So.2d 547 (Ala.1989), cert. denied, 493 U.S. 945 , 110 S.Ct. 354 , 107 L.Ed.2d 342 (1989)(holding that testimony during the sentencing phase regarding the defendant's incestuous relationship with his daughter was admissible to negate the defendant's claims that he had no significant criminal record and that he was a good father and a person of good character).
Moreover, "`[a] party has "the right to rebut evidence offered against him, be it relevant or irrelevant." Smothers v. State, 39 Ala.App. 292, 295 , 98 So.2d 66, 68 (1957).'" Smith v. State, 756 So.2d 892, 929 (Ala.Cr.App.1998), quoting Childers v. State, 607 So.2d 350, 352 (Ala.Cr. App.1992), rev'd on other grounds, 640 So.2d 16 (Ala.1994).
"`The State may properly rebut evidence of mitigating circumstances. See McWilliams v. State, 640 So.2d 982, 988-991 (Ala.Cr.App.1991), aff'd. in part, remanded in part, 640 So.2d 1015 (Ala. 1993). In fact, once the defendant presents mitigation evidence, the burden shifts to the State to disprove the factual existence of the defendant's mitigating circumstances by a preponderance of the evidence. § 13A-5-45(g), Ala.Code 1975.'"
George v. State, 717 So.2d 844, 846 (Ala. 1996), aff'd, 717 So.2d 858 (Ala.1998), cert. denied, 525 U.S. 1024 , 119 S.Ct. 556 , 142 L.Ed.2d 462 (1998).
First, we note that the state did not introduce, and the trial court did not admit, Griffin's "complete federal plea allocution." At the sentencing hearing, the prosecutor argued the existence of the following aggravating circumstances:
1. That the murder was committed for pecuniary gain, see § 13A-5-49(6), Ala. Code 1975;
2. That the murder was committed by a person under sentence of imprisonment, see § 13A-5-49(1), Ala.Code 1975; and
3. That Griffin had been previously convicted of a capital offense or a felony involving the use or threat of violence to the person, see § 13A-5-49(2), Ala.Code 1975.
To prove the existence of these aggravating circumstances, the state introduced, and the trial court admitted into evidence, the following:
1. A certified copy of a letter from Vincent DeFilippis, the assistant chief of the State of New York Executive Department Parole Division, which stated that at the time of Davis's murder Griffin was on parole for robbery in the first degree;
2. A certified copy of the federal indictment charging Griffin with two counts of RICO violations; [4]
3. A certified copy of the federal docket sheet indicating the disposition of his federal plea; and
4. A certified copy of the certificate of disposition of Griffin's guilty plea conviction for robbery in the first degree.
(C.R.401-33.) The above evidence constitutes the evidence admitted by the state during the penalty phase. Therefore, Griffin's claim that his "complete federal plea allocution" was admitted into evidence is directly refuted by the record.
*301 Griffin's argument, however, implies a need to determine whether evidence of his conviction in federal court was correctly admitted to establish the aggravating circumstance that Griffin was previously convicted of a felony involving the use or threat of use of violence to the person, see § 13A-5-49(2), Ala.Code 1975.
To guide us in our determination of whether Griffin's conviction for RICO violations constitutes a felony in the State of Alabama, we look to our determinations as to whether out-of-state felony convictions may be used to enhance a defendant's sentence pursuant to the Habitual Felony Offender Act, see § 13A-5-9, Ala.Code 1975.
In order to determine whether a defendant's conviction in federal court was correctly used to enhance his punishment with regard to the Habitual Felony Offender Act we must decide whether
"the conduct made the basis of that conviction constitutes a felony under Act 607, § 130(4), Acts of Alabama 1977, p. 812 (§ 13A-1-2(4), Alabama Criminal Code), or would have constituted a felony under that section had the conduct taken place in Alabama on or after January 1, 1980; and further, a conviction of a crime against the United States shall be considered to be a felony conviction if that crime is punishable by imprisonment in excess of one (1) year under federal law, and was so punishable at the time of its commission, even if the conduct made the basis of that conviction would not be punishable under Alabama law."
Rule 26.6(b)(3)(iv), Ala.R.Crim.P. See Elston v. State, 687 So.2d 1239 (Ala.Cr.App. 1996). We have stated that "[t]he obvious intent of the legislature in enacting the Habitual Felony Offender Act was to authorize the infliction of a more severe penalty on one who is a persistent offender, regardless of when and where the prior convictions occurred." Esters v. State, 480 So.2d 615, 618 (Ala.Cr.App.1985). We conclude that the same principles apply with regard to the Legislature's enumeration of aggravating circumstances.
With these principles in mind, the first question to be answered in deciding whether a federal offense constitutes a felony for purposes of establishing the aggravating circumstance is whether there is a state counterpart for the federal crime. Although Alabama does not have a criminal statute analogous to the federal RICO violations, see 18 U.S.C. §§ 1961 (1) and (5), this State does proscribe that murder, attempted murder, robberies, and narcotics trafficking—the conduct made the basis of the federal RICO violations—are felonies. See §§ 13A-6-1 to 13A-6-4, 13A-4-2, 13A-8-40 to 13A-8-44, and 13A-12-230 to 13A-12-233, Ala.Code 1975. We, therefore, conclude as did the trial court that Griffin's federal conviction rests on felonious conduct as defined by Alabama law at the time of the federal conviction. Cf. Carter v. State, 420 So.2d 292 (Ala.Cr.App. 1982). Moreover, Griffin's federal conviction can be classified as a felony because the punishment for the violation is in excess of one year under federal law. Thus, there was no error in admitting the evidence to establish the aggravating circumstance that Griffin was previously convicted of a felony involving the use or threat of use of violence to the person.
Additionally, we find no error in the trial court's admission of Griffin's RICO indictment and the federal docket sheet indicating his conviction because their admission is consistent with the principle that in the penalty phase the jury is entitled to receive as much information as possible in order to make an informed decision as to punishment. See Gregg v. Georgia, 428 U.S. 153, 204 , 96 S.Ct. 2909 , *302 2939, 49 L.Ed.2d 859 (1976); and Lockett v. Ohio, 438 U.S. 586, 602-03 , 98 S.Ct. 2954, 2963-64 , 57 L.Ed.2d 973 (1978).
With regard to Griffin's argument that the prosecutor's displaying on a blackboard the various offenses constituting the conduct in the RICO indictment was error, we conclude in light of the liberal admission of evidence in the sentencing hearing and our holding in Siebert , the evidence was necessary to present a complete picture of Griffin and his conduct. Griffin's defense counsel argued that Griffin's age and immaturity constituted mitigating circumstances. Also, in an attempt to negate or deemphasize Griffin's role in the murder, defense counsel argued extensively about the participation of Griffin's accomplices and the fact that some of his accomplices had been granted immunity against prosecution for Davis's murder or in the case of codefendant Bimbo, the fact that Bimbo would be eligible for parole at some time in the future. The prosecutor's presentation on the blackboard and his emphasis on the conduct of Griffin rebutted Griffin's argument that his age and immaturity were mitigating circumstances. In support of his rejection of these mitigating circumstances and his establishment of the existence of the proposed aggravating circumstances, the prosecutor mentioned various murders, attempted murders, and conspiracies to commit murder that Griffin had admitted participating in. He argued that Griffin was the "director of security" for a prosperous narcotics enterprise. These factors were relevant because they tended to prove that Griffin, despite his age and his claim of immaturity, was in fact a responsible, mature adult who actively engaged in the coordinating, planning, and murdering a number of individuals.
Therefore, in light of the policy of liberal admission of evidence during a sentencing hearing and of the argument of defense counsel, we conclude that the admission of the evidence concerning the various offenses committed by Griffin was relevant to establish the aggravating circumstance that he had been previously convicted of a crime of violence. Additionally, the prosecutor's argument was permissible to disprove the factual existence of Griffin's mitigating circumstances by a preponderance of the evidence.
XII.
Griffin next claims the trial court erred when it failed to consider as a mitigating factor the sentences of his accomplices. Griffin's codefendant, Bimbo, was tried for capital murder for his involvement in Davis's murder before the same trial court as Griffin. The jury found Bimbo guilty of the lesser included offense of murder, and Bimbo was sentenced to life imprisonment. Spragg and Razor, coconspirators, testified for the state in exchange for not being indicted and prosecuted for the murder of Davis. Testimony at trial indicated that Henry, another coconspirator, was deceased at the time of Griffin's trial.
Griffin argues that the Alabama Supreme Court has "found that disparate sentences and punishment must be evaluated as a mitigating circumstance." (Griffin's brief to this Court at p. 64.) Griffin cites Ex parte Henderson, 616 So.2d 348 (Ala.1992), in support of his position. In Henderson , Cleveland Turner, Jr., and Curtis Lee Henderson were tried for the capital murder of Willie Perkins. Turner had paid Henderson to kill Perkins because Turner had been having an affair with Perkins's wife. After Perkins was killed, Turner intended to relocate to Springfield, Ohio, with Perkins's wife. Turner and Henderson were tried before different judges and different juries. Despite the jury's recommendation of death *303 in Turner's case, the trial court sentenced him to life imprisonment without parole. The trial court, in its determination, found two mitigating factors: 1) that Turner had no significant prior criminal history and 2) that Turner had a low IQ. At Henderson's sentencing, the trial court considered only one mitigating factor—Henderson's lack of a prior criminal record—and sentenced Henderson to death. On appeal, the Supreme Court reversed Henderson's death sentence and ordered the trial court to consider Henderson's age and his low IQ as two additional mitigating factors. [5]
Griffin's reliance on Henderson is misplaced. Henderson's case was remanded, not because his sentence was harsher than that of his codefendant, but because the trial court failed to consider certain mitigating factors. While the trial court may consider the different treatment of codefendants as a mitigating circumstance, it is not required to do so. We have recently held:
"while Parker [v. Dugger, 498 U.S. 308 , 111 S.Ct. 731 , 112 L.Ed.2d 812 (1991) ] and Ex parte Henderson may suggest that the differential treatment of an accomplice may be a proper subject for consideration as mitigating evidence in a capital case, neither case remotely holds that a trial court is obligated to so find, and neither case lends support to Burgess's claim that the trial court erred in his case. `"Although the trial court is required to consider all mitigating circumstances, the decision whether a particular mitigating circumstance is proven and the weight to be given it rests with the sentencer."` Boyd v. State, 715 So.2d 825, 840 (Ala.Cr.App.1997), aff'd, 715 So.2d 852 (Ala.1998), quoting Williams v. State, 710 So.2d 1276, 1347 (Ala.Cr.App.1996), cert. denied, 524 U.S. 929 , 118 S.Ct. 2325 , 141 L.Ed.2d 699 (1998)."
Roy Burgess v. State, [Ms. CR-94-0475, Dec. 18, 1998] ___ So.2d ___, ___ (Ala. Cr.App.1998).
In Griffin's sentencing order the trial court noted that trial counsel argued as a nonstatutory mitigating circumstance that "Johnny Spragg and Derek Razor were never charged in the murder and that codefendant Bimbo was convicted of the lesser included offense of felony murder and sentenced to a life term with parole eligibility." (Supp.R.33.) The trial court, however, concluded that "[n]o [nonstatutory] mitigating circumstance [See § 13A-5-52, Ala.Code 1975] can be gleaned from any source or material that suggests mitigation of punishment in this case." (Supp.R.35.) Clearly, the trial court considered the argument presented by Griffin's defense counsel with regard to the treatment of his accomplices and within its authority rejected it as a non-statutory mitigating circumstance.
Accordingly, we find no error in the trial court's consideration of the treatment of Griffin's accomplices. In addition, it should be noted that Griffin and Bimbo were not convicted of the same offense. Bimbo was convicted of the lesser offense of intentional murder. The trial court sentenced him to life imprisonment, the maximum sentence under the law for that offense. Therefore, no disparate treatment in punishment resulted between Griffin and his accomplices. See Hamm v. State, 564 So.2d 453 (Ala.Cr.App.1989), aff'd, Ex parte Hamm, 564 So.2d 469 (Ala.1990), cert. denied, 498 U.S. 1008 , 111 S.Ct. 572 , 112 L.Ed.2d 579 (1990).
*304 XIII.
Griffin claims the trial court erred by not providing funds for his counsel, Lawrence Gerzog, who represented him during his federal guilty plea conviction, to travel to Alabama to testify regarding the voluntariness of his federal plea allocution. In his written motion, Griffin offered the conclusory statement that Gerzog's testimony was exculpatory and material to his defense. At the hearing, when the trial court requested a proffer as to why Gerzog's presence was necessary, his counsel indicated that his testimony would assist in establishing Griffin's claim of a violation of double jeopardy. The trial court denied the request, stating:
"If your client is convicted, we can reach it post conviction, because I have not seen anything in all of the files that suggests to me that the State is precluded from trying this capital murder case based on what happened in New York."
(R. 280.) On appeal Griffin claims that the trial court should have approved his request for funds for Gerzog's transportation because Gerzog's testimony could establish that his plea of guilty in federal court was not knowingly and voluntarily made. [6] Because the ground raised on appeal is different from the ground raised at trial, this claim was not properly preserved for appellate review; therefore, our review is limited to one for plain error. Rule 45A, Ala.R.App.P. See Hyde v. State, 778 So.2d 199 (Ala.Cr.App.1998).
"Initially, we note that no Alabama case law requires the state to pay the expenses of nonexpert defense witnesses." Zumbado v. State, 615 So.2d 1223, 1235 (Ala.Cr.App.1993). Moreover, our review of the record leads us to conclude that the trial court was open to provide funds for transportation for out-of-state witnesses, provided the defense presented a reasonable need. [7] Griffin's offer of proof with regard for the need for Gerzog's presence at trial was limited to generalities and did not indicate that Gerzog's presence was critical. Therefore, we cannot say that the trial court's refusal to provide transportation funds for Gerzog based on the reasons presented was plain error.
We reject Griffin's argument on appeal that he was entitled to funds to secure Gerzog because Gerzog was an expert witness. At no time at trial or on appeal does Griffin claim or attempt to prove that Gerzog is an expert in any particular field. Griffin correctly argues that Ake v. Oklahoma, 470 U.S. 68 , 105 S.Ct. 1087 , 84 L.Ed.2d 53 (1985), establishes that a defendant is entitled to funds to pay for an expert. However, the defendant must also show "a reasonable probability that an expert would aid in his defense and that the denial of an expert to assist at trial would result in a fundamentally unfair trial." Dubose v. State, 662 So.2d 1189, 1192 (Ala. 1995). This Court has previously held that "[i]t is only where such an expert is necessary for an adequate defense that an accused may be allowed to procure expert testimony at the State's expense." Davis v. State, 549 So.2d 577, 579 (Ala.Cr.App. 1989). Because Griffin did not request an expert and, consequently, did not present any evidence that indicated that he required an expert, there is no plain error.
Griffin further claims that the trial court erred by not granting his motion to proceed *305 ex parte in his applications for funds. (Issue XXII of Griffin's brief to this Court at p. 91.) Before trial, Griffin filed a motion to proceed ex parte in his applications for funds. The motion correctly states the law, but provides no indication, as the state asserts, as to what expert assistance he required. On appeal, Griffin offers no indication as to what expert assistance was not provided or how he was prejudiced by the trial court's failure to allow him to proceed ex parte. Consequently, we cannot find any error.
XIV.
Griffin contends that the trial court erred when it allowed the state to admit into evidence a redacted copy of his federal plea allocution during the guilt-phase of his trial. Specifically, he argues that "by informing the jury that the plea agreement was redacted, the jury was effectively informed—at the guilty stage— that Mr. Griffin had admitted to other offenses." (Griffin's brief to this Court at p. 68.) According to Griffin, the redacted allocution caused the jury to infer, speculate, and/or conclude that the information withheld was prejudicial to him.
"The prosecution is precluded generally from offering evidence as to the accused's commission of collateral crimes when offered to prove bad character and conformity therewith on the occasion of the now-charged crime. [See Rule 404(b), Ala.R.Evid.] Consequently, if a confession includes an assertion of accused's commission of another crime which itself is not provable in the present prosecution, such assertion should be excluded if, but only if, it can possibly be done without rendering unintelligible the part of the confession pertaining to the crime for which the accused is being tried."
C. Gamble, McElroy's Alabama Evidence, § 200.15 (5th ed. 1996). Therefore, the redaction of Griffin's plea allocution to remove references to Griffin's other bad acts was the proper procedure to eliminate evidence regarding Griffin's collateral crimes from the document and present the admissible, relevant evidence to the jury.
Griffin seems to argue that the physical appearance of the redacted document was prejudicial. Griffin cites Gray v. Maryland, 523 U.S. 185 , 118 S.Ct. 1151 , 140 L.Ed.2d 294 (1998), as authority. Gray , however, is easily distinguishable from this case. In Gray , two defendants, Kevin Gray and Anthony Bell, were tried jointly for murder. At trial, the state was allowed to introduce and admit into evidence a redacted version of Bell's confession to the police implicating himself and Gray. Blank spaces, set off by commas, indicated where Gray's name had been included in the confession. The Supreme Court determined that merely replacing Gray's name with a blank space, or other similar alteration, improperly linked Gray to the confession in the minds of the jury. [7] The Supreme Court concluded that the redacted statement in Gray was directly accusatory because:
1. A jury would react similarly to an unredacted confession or a confession redacted as it had been in Gray ;
2. The obvious deletion called the attention of the jury to the removed name and encouraged speculation by the jurors; and
3. Blanks and similar alterations functioned grammatically the same as if the defendant's name had been inserted.
*306 Gray, 523 U.S. at 192, 118 S.Ct. at 1155-56.
Unlike the facts in Gray , Griffin was the only defendant at his trial. [8] Additionally, the redacted allocution was Griffin's own statement in federal court. Here, the redacted portions of Griffin's allocution related other criminal acts committed by Griffin, which were not relevant to the offense charged. We recognize that it definitely was to Griffin's benefit that the allocution be redacted to prevent prejudice. While the appearance of Griffin's allocution was modified by the redaction, we conclude that a jury would not have reacted similarly to an unredacted version of Griffin's allocution as to the redacted version. As previously noted, the complete allocution indicated numerous offenses that if admitted would have been extremely prejudicial to Griffin. Moreover, while the deletions may have called to the attention of the jury that information had been removed, we do not believe that it encouraged the kind of prejudicial speculation that Griffin asserts it does. We reject Griffin's argument that the redaction may have overemphasized the importance of his confession. The jurors were aware that Griffin had pleaded guilty to RICO violations in federal court. The trial court repeatedly instructed the jury that it was to consider only the evidence presented at trial in making its determination. Finally, it does not appear to us that the blanks and omitted portions functioned grammatically the same as if Griffin's name or the prejudicial information had been inserted. Because the statements were made by Griffin, himself, it is obvious that the information that was included, as well as excluded, pertained to him. We have reviewed the transcript of the redacted allocution introduced at trial and find nothing so egregious in its appearance or in its content to allow a conclusion that the trial court abused its discretion in admitting it into evidence.
Griffin further contends that the trial court erred when it "allowed the prosecution to present Griffin's federal guilty plea as a roleplay." (Issue XVII in Griffin's brief to this Court at p. 116.) Essentially, he argues that the in-court presentation of the guilty plea with individuals in the courtroom reading different roles was improper.
There was nothing improper with the state, in addition to admitting the redacted plea allocution into evidence, also reading it aloud for the jury. See Hyde v. State, supra. Neither the record before us nor Griffin's general assertions in his brief to this Court establish a sufficient basis for us to conclude that the trial court abused its discretion in allowing the "roleplay." We cannot presume error based on a silent record and on the speculation of appellate counsel. Pressley v. State, supra; Magwood v. State, 689 So.2d 959 (Ala.Cr.App. 1996), cert. denied, 522 U.S. 836 , 118 S.Ct. 108 , 139 L.Ed.2d 61 (1997); George v. State, 717 So.2d 827, 834 (Ala.Cr.App.), rev'd on other grounds, 717 So.2d 844 (Ala. 1996), on remand, 717 So.2d 849 (1997), aff'd, 717 So.2d 858 (Ala.1998), cert. denied, 525 U.S. 1024 , 119 S.Ct. 556 , 142 L.Ed.2d 462 (1998).; Arthur v. State, supra; and Gaddy v. State, 698 So.2d 1100 (Ala.Cr.App.1995), aff'd, 698 So.2d 1150 (Ala.), cert. denied, 522 U.S. 1032 , 118 S.Ct. 634 , 139 L.Ed.2d 613 (1997). In light of the broad discretion granted the trial court in determining the procedure and presentation of evidence in the courtroom, we conclude no error occurred here.
*307 XV.
Griffin contends the trial court erred by not granting his motion for a continuance because, he says, the trial court's refusal to continue his trial "effectively foreclosed [his] counsel from investigating, preparing, and presenting a defense, and therefore [the trial court] far exceeded its range of discretion." (Griffin's brief to this Court at p. 71.)
"`The guidelines for determining whether a trial court has abused its discretion in denying a continuance are set out in Ex parte Saranthus, 501 So.2d 1256, 1257 (Ala.1986):
"`"A motion for a continuance is addressed to the discretion of the court and the court's ruling on it will not be disturbed unless there is an abuse of discretion. Fletcher v. State, 291 Ala. 67 , 277 So.2d 882 (1973). If the following principles are satisfied, a trial court should grant a motion for continuance on the ground that a witness or evidence is absent: (1) the expected evidence must be material and competent; (2) there must be a probability that the evidence will be forthcoming if the case is continued; and (3) the moving party must have exercised due diligence to secure the evidence. Knowles v. Blue, 209 Ala. 27, 32 , 95 So. 481, 485-86 (1923).'"
" Fortenberry v. State, 545 So.2d 129, 138 (Ala.Cr.App.1988)."
Ex parte Clark, 728 So.2d 1126, 1134 (Ala. 1998). See also Hyde v. State, supra.
"`[N]ormally, a reviewing court determines the correctness of a trial court's ruling "as of the time when it was made and according to what the record shows was before the lower court at that time."'" Henry v. State, 468 So.2d 896, 899 (Ala.Cr.App.1984), cert. denied, 468 So.2d 902 (Ala.1985).
Dozier v. State, 630 So.2d 137, 140 (Ala.Cr. App.1993).
Griffin argues in his brief to this Court that "several critical witnesses for the defense" were not located and that "additional time was necessary to locate the missing police [file] and investigation records from the original 1992 investigation of the case." (Griffin's brief to this Court at p. 73.)
With regard to Griffin's claim that he needed more time to locate witnesses, we note the following. The record, as a whole, supports a finding that the trial court carefully monitored the activities of counsel and diligently endeavored to ensure that Griffin's rights to a fair trial, especially to present a defense, were protected. Unrelenting efforts were made by the trial court to secure the presence of the witnesses Griffin requested. The record further indicates that two eyewitnesses, Norman and Crenshaw, were, in fact, located. The defense presented Norman as a witness. She testified that she was outside the Avondale pool game room the night Davis was shot. She unequivocally stated that she did not see Griffin there that night. In addition, Crenshaw was also located by law enforcement before the close of the defense's case-in-chief. Although she appeared at court, defense counsel, with Griffin's permission, excused her from testifying. Additionally, the defense presented the testimony of Pressley, who testified that he participated in the murder investigation of Davis in 1992. Pressley stated that he interviewed Crenshaw as part of his investigation. According to Pressley, Crenshaw identified two individuals, neither of whom was Griffin, in a photographic lineup as one of the men who shot Davis. He further testified that *308 Norman also identified the same individuals as Crenshaw as the shooters.
Based on the testimony of Norman and Pressley and the defense's release of Crenshaw as a witness, it appears that the defense was able to adequately present witnesses from the scene of the murder to negate the state's evidence that Griffin was there. Therefore, from the record before us, we conclude that the trial court did not abuse its discretion in denying Griffin's motion for a continuance on this ground.
Although Griffin claims in his brief to this Court that a "large number of witnesses" were located in New York City and needed to be interviewed, he fails to name those witnesses or make any proffer as to the content of their testimony or how such testimony would be material. We note that Smith, a resident of New York City, did testify on Griffin's behalf. Therefore, we find no merit in this argument.
In addition to the need to determine and to locate additional witnesses, Griffin argues more time was needed to locate the original police case file. The state indicated on numerous occasions before trial that the original case file was missing and that all efforts to locate it had been fruitless. Pressley even testified that he had gone to the homicide division "where it [the case file] was housed" and that the case file was missing. (R. 726.)
Although we find no lack of diligence to secure witnesses or evidence on Griffin's behalf, Griffin has not established how the missing witnesses's testimony would be material or that the missing file would be forthcoming had the trial court granted a continuance. Additionally, Griffin does not offer any evidence as to how the trial court's refusal of his request prejudiced his defense. Based on the record before us, the trial court did not abuse its discretion in denying Griffin's motion for a continuance. See Connor v. State, 447 So.2d 860, 863 (Ala.Cr.App.1984) ("The speculative allegations of defense counsel regarding the possible existence of potential witnesses or evidence are insufficient to show that the trial judge abused his discretion.").
XVI.
Griffin claims that the trial court erred by failing to grant his request for funds "to send an investigator to New York to gather evidence necessary both for the guilt phase of [his] trial, and to prepare evidence for the potential penalty phase." (Griffin's brief to this Court at p. 75.) Griffin claims this evidence included "birth records, health records, ... and, more critically, documentary evidence that would have established that [he] was in New York at the time Mr. Davis was killed." (Griffin's brief to this Court at p. 76.)
In Pace v. State, 714 So.2d 320, 331 (Ala.Cr.App.1996), rev'd in part on other grounds, 714 So.2d 332 (Ala.1997), we addressed a similar claim, stating:
"However, in Dubose v. State, 662 So.2d 1189 (Ala.1995), this Court held that the Ake principles relating to assistance of experts are not limited to psychiatrists. The Ake principles, which are grounded in the due process guarantee of fundamental fairness, apply to assistance by nonpsychiatric experts when an indigent defendant makes a proper showing that the requested assistance is needed in order for the defendant to have `a fair opportunity to present his defense.' Dubose, 662 So.2d at 1194 . Specifically, 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. *309 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, 662 So.2d at 1192 ."
714 So.2d at 331.
In his claim of error, Griffin fails to identify whose birth or health records or what other "documentary evidence" could be produced by sending an investigator to New York City. Consequently, Griffin's argument is based merely on an "expectation" that an investigator would have been beneficial to his defense. Assuming, for the sake of argument, that the subject records concerned the birth of his son at Harlem Hospital, then his claim would be without merit. The trial court provided funds to transport Smith from New York City to Alabama to testify on Griffin's behalf. (R. 763-774.) As previously indicated, Smith testified she gave birth to Griffin's son on September 10, 1992, and that Griffin was with her when their infant left the hospital on September 24, 1992. Other documentation of Griffin's son's birth would be cumulative. Therefore, Griffin has failed to demonstrate the trial court abused its discretion by failing to provide additional funds or that he was deprived of his right to a fair trial.
XVII.
Griffin next claims that the trial court was biased against him and had a preconceived notion of his guilt. (Issue XVIII in Griffin's brief to this Court at p. 80.) Specifically, Griffin argues in his brief to this Court that the following notation in the case action summary by the trial court indicates the trial court's bias:
"Presided over Alabama v. Bimbo, tried in October, 1997 and have heard testimony of Johnny Sprague [sic] and Derek Razor concerning the ongoing criminal activities conducted by defendant Griffin, Johnny O., Carlton Henry, and others in September, 1992—same testimony is anticipated in this case."
(C.R.6.) Griffin did not file a pretrial motion requesting the trial court to recuse itself; therefore, our review is limited to one for plain error. Rule 45A, Ala. R.App.P.
In Woodall v. State, 730 So.2d 627, 638 (Ala.Cr.App.1997), aff'd. in part and rev'd on other grounds, 730 So.2d 652 (Ala.1998), we held that:
"To disqualify a judge because of bias, the bias must be personal bias. Ex parte Large, 501 So.2d 1208, 1210-11 (Ala.1986).
"`The bias or prejudice which has to be shown before a judge is disqualified must be `personal' bias, and not `judicial' bias. Personal bias, as contrasted with judicial, is an attitude of extra-judicial origin, or one derived non coram judice. In re White, 53 Ala.App. 377 , 300 So.2d 420 (1974). The fact that one of the parties before the court is known to and thought well of by the judge is not sufficient to show bias. Duncan v. Sherrill, 341 So.2d 946 (Ala.1977). Neither is the fact that the judge had previously sentenced the defendant's partner in crime to the maximum sentence and bemoaned the fact that he could not impose a longer sentence sufficient to constitute proof of bias. Coleman v. State, 57 Ala.App. 75 , 326 So.2d 140 (1976). Nor is bias proved simply because the trial judge who presided at the second trial of defendant had also presided *310 at his first trial and heard evidence later found to be inadmissible by an appellate court. Walker v. State, 38 Ala.App. 204 , 84 So.2d 383 (1955).'
" McMurphy v. State, 455 So.2d 924, 929 (Ala.Cr.App.)."
Griffin and Bimbo were both charged with capital murder in the contract killing of Davis. As previously indicated, the same circuit judge presided over the trials of Griffin and his codefendant, Bimbo. We conclude that the above-mentioned comment written in the case action summary by the trial court was simply a statement on what the trial court expected the evidence to be, based on the prior trial. Nothing in the trial court's comments indicates personal bias or prejudice against Griffin. We refuse to follow Griffin's suggestion and give the comment such a strained interpretation. See Grayson v. State, 675 So.2d 516 (Ala.Cr.App.1995), cert. denied, 519 U.S. 934 , 117 S.Ct. 309 , 136 L.Ed.2d 225 (1996). No plain error occurred in this regard.
Griffin further contends that the trial court erred because, he says, the trial court ordered two state witnesses transported sua sponte. (Issue XXX in Griffin's brief to this Court at p. 133.) Specifically, he claims that because the trial court's orders to transport Spragg and Razor from federal custody appear to precede the state's petitions requesting their transportation, the following improprieties may have occurred:
1. The trial court dictated what witnesses the state should call;
2. The state had ex parte contact with the trial court; or
3. A hearing between the parties was held but not transcribed.
Griffin failed to present this claim at trial; therefore, our review is limited to plain error. Rule 45A, Ala.R.App.P.
"The determination of the prejudicial character of improper conduct and comments of a trial judge in most cases depends on the issues, parties, and general circumstances of each case. While a particular remark [or action] by the trial judge may be open to question, in order for it to amount to grossly improper error requiring reversal, it must have influenced the result of the trial."
Thompson v. State, 503 So.2d 871, 879 (Ala.Cr.App.1986), aff'd, 503 So.2d 887 (Ala.), cert. denied, 484 U.S. 872 , 108 S.Ct. 204 , 98 L.Ed.2d 155 (1987).
Griffin's claim relates back to when he was originally scheduled to be tried jointly with codefendant Bimbo and does not refer to the trial that resulted in his conviction. The record indicates that the trial court signed the order to transport Spragg on August 14, 1997, for the October 20, 1997, trial date. The order securing Spragg's presence for the October 20, 1997, trial date was filed the same day as the state's petition, August 33, 1997. [9] (C.R.48-49.) The record further indicates that the trial court signed the order to transport Razor for the October 20, 1997, trial date on September 2, 1997. That order was also filed on the same day as the state's petition, September 3, 1997. (C.R.53-54.) Neither of the petitions filed by the state were dated, so the record is silent concerning when the state prepared their requests. Both the petitions and the orders indicate the date of trial was October 20, 1997. [10]
*311 Although the petitions from the state and the orders from the trial court were filed on the same day, we refuse to say that the orders preceded the petitions. The record does not contain the pretrial hearings for the October 20, 1997, trial date and we will not reach such a conclusion based on a silent record and conjecture. Moreover, even if the orders were signed before the petitions were filed, we are unwilling to conclude that that alone is an indication of any ex parte contact between the trial court and the state or an indication that the trial court in some way directed or improperly influenced any part of the state's case. Furthermore, especially in light of the fact that the petitions and orders regard the October 20, 1997, trial date and do not involve the acquisition of the witnesses for the trial that resulted in Griffin's conviction, Griffin has failed to establish any prejudice. Griffin offers no evidence, either direct or circumstantial, that he was in any way prejudiced by the trial court's allegedly improper actions. His conclusions are "based on pure speculation and [are] without foundation in fact or in law." Alonzo Burgess v. State, 723 So.2d 742, 756 (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). Thus, we conclude that no plain error occurred.
XVIII.
Griffin contends numerous errors occurred during the voir dire process that prevented him from receiving a fair trial. (Issue XIX in Griffin's brief to this Court at p. 83.) Specifically, Griffin claims the trial court erred by denying his motion for the discovery of juror information, by failing to grant his motion to allow a juror questionnaire, and by failing to grant his motion for individual voir dire. We will address each of these claims individually.
A. Denial of his motion for access to juror information.
Initially, we question the timeliness of Griffin's motion for discovery of juror information. On the first day of Griffin's trial and just before the voir dire of the jury was to begin, defense counsel put forth the following argument:
"[Defense counsel]: Your Honor, we would like access to, inspection of, and copying of all of the jury system records, directing the Jefferson County officials that have discretion and control over these records to provide us with access to the master list, the source list, and the computer programming and data or any other records in their possession, which would basically go to the issue that we believe that the Jefferson County jury list excludes a large number of citizens who are black and who are female and who otherwise would qualify for service on account of their race, sex, age or employment.
"However, we truly believe that there is a systematic—on account of the way that certain members of this race issue, race designation, are actually not eligible for driver's licenses, we would ask the Court to take judicial notice of the fact that there are a higher degree of black citizens who are cited or charged for driving without a license and things of that nature.
"We feel like that the manner in which the jury pool is actually selected violates the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and corresponding provisions of the Alabama Constitution.
"And under Test v. United States, [ 420 U.S. 28 , 95 S.Ct. 749 , 42 L.Ed.2d 786 (1975) ] the courts have held that there's long been the view that jury commission records must be made available *312 for inspection and copying by criminal defendants who allege that they— that the system they operate violates the constitution.
"And it's those records, Your Honor, that we're asking for.
"THE COURT: Well, you have no evidence that what you've said is true, do you?
"[Defense counsel]: Your Honor, other than observations, you know, as far as a practicing attorney in the court system that there is a large degree of black citizens who do not maintain driver's licenses.
"THE COURT: I think it's driver's ID that triggers the jury summons. I may be wrong. I think it's ID as opposed to driver's license.
"[Defense counsel]: Still, Your Honor, we feel like that there's a high degree of those citizens who do not either—because of their inability to read and write and other socioeconomic problems do not even try to obtain an ID or a driver's license.
"THE COURT: Well, in the absence of some evidence that our system pertaining to jurors is constitutionally informed, I will deny your motion, please ma'am.
"I sit in here day in and day out, as you know, and I see plenty of women and black people on jury venires. I have not observed any paucity of women or black people on the jury venires, but if—I'm not familiar with this Test case that you've cited me. I'll read that."
(R. 90-92.) Griffin provided no documentary or statistical evidence in support of his motion.
Our Supreme Court has previously held:
"Selection of a petit jury from a representative cross-section of the community is an essential component of the Sixth Amendment right to a jury trial. Taylor v. Louisiana, 419 U.S. 522 , 95 S.Ct. 692 , 42 L.Ed.2d 690 (1975). Section 12-16-55, Ala.Code 1975, also requires that all persons selected for jury service be selected at random from a fair cross-section of the population of the area served by the court and that all qualified citizens have the opportunity to be considered for jury service in this state and an obligation to serve as jurors when summoned for that purpose.
"In order to establish a prima facie violation of the fair-cross-section requirement, a defendant must show (1) that the persons alleged to have been excluded constitute a distinctive group in the community; (2) that the representation of the group on venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process. Duren v. Missouri, 439 U.S. 357 , 99 S.Ct. 664 , 58 L.Ed.2d 579 . Rayburn v. State, 495 So.2d 733 (Ala.Cr.App.1986)."
Ex parte Dobyne, 672 So.2d 1354, 1356 (Ala.1995), cert. denied, 517 U.S. 1169 , 116 S.Ct. 1571 , 134 L.Ed.2d 670 (1996). The Supreme Court further stated in Dobyne that the burden of establishing a prima facia case rests on the defendant. Id. Additionally, we have held that the random selection of jurors from a list of licensed drivers is an acceptable manner by which to select a jury venire. Finch v. State, 715 So.2d 906 (Ala.Cr.App.1997), citing Sistrunk v. State, 630 So.2d 147 (Ala.Cr.App. 1993).
Here, Griffin's argument rests on the "expectation" that the requested discovery would establish that his right to a jury consisting of a fair cross section of the community was violated. Griffin has failed to show that the method of jury selection *313 —the use of a list of licensed drivers— was unacceptable; therefore, Griffin has failed to establish these groups were underrepresented or that there was systematic exclusion of these groups in the jury selection process.
B. Failure to grant Griffin's request for a juror questionnaire.
On November 17, 1997, a month before trial, Griffin filed a motion requesting to be allowed to use a jury questionnaire to aid in the jury selection process. (C.R. 131-132.) The record further indicates the following took place after voir dire:
"[Defense counsel]: The defense also has a motion for the use of a jury questionnaire, which I guess is moot at this point, but if you wanted to show it as denied.
"THE COURT: I'll just show it as moot. But in all fairness, I generally don't allow them.
"[Defense counsel]: Right. That's what I—
"THE COURT: We would have individual voir dire on the death penalty. We would have had it on media, if we had needed it."
(R. 286.)
The general rule is that, in order for this Court to review an issue on appeal, the appellant must have received an adverse ruling by the trial court. See Berryhill v. State, 726 So.2d 297 (Ala.Cr.App.1998)(holding this Court will not review the merits of a motion presented by appellant at trial unless the trial court has issued a ruling adverse to the appellant on the motion). However, because Griffin was sentenced to death, we will review the claim for plain error. Rule 45A, Ala.R.App.P.
This exact issue was before our Supreme Court in Ex parte Land, supra. In Ex parte Land, Justice Butts, writing for the Court, stated:
"A trial court is vested with great discretion in determining how voir dire examination will be conducted, and that court's decision on how extensive a voir dire examination is required will not be overturned except for an abuse of the discretion. Fletcher v. State, 291 Ala. 67 , 277 So.2d 882 (1973); Lane v. State, 644 So.2d 1318 (Ala.Cr.App.1994); Harris v. State, 632 So.2d 503 (Ala.Cr.App. 1992), affirmed, 632 So.2d 543 (Ala.1993), affirmed, 513 U.S. 504 , 115 S.Ct. 1031 , 130 L.Ed.2d 1004 (1995)."
678 So.2d at 242 . See Alonzo Burgess v. State, supra. We have reviewed the pertinent portions of the record and find that extensive questioning of the potential jurors was conducted by the state and by the defense. We conclude that no abuse of discretion occurred in this regard. Therefore, we find no plain error. See Maples v. State, 758 So.2d 1 (Ala.Cr.App.1999); and Drinkard v. State, 777 So.2d 225 (Ala. Cr.App.1998), rev'd on other grounds, Ex parte Drinkard, 777 So.2d 295 (Ala.2000).
C. Failure to allow individual voir dire.
Griffin claims on appeal that "[t]he trial court's denial of [his] motion for individual voir dire was an unreasonable restriction on his right to discover possible prejudice or biases of jurors." (Griffin's brief to this Court at p. 86-87.) Although the record indicates that Griffin did file a motion for individual voir dire, there is no indication in the record that the trial court ever ruled on the motion. (See C.R. 60-62) Because Griffin did not receive an adverse ruling, our review is limited to one for plain error. Rule 45A, Ala.R.App.P.
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1848917. Public record. Not legal advice.