Perkins v. State

808 So.2d 1041 (1999)

Roy Edward PERKINS

v.

State.

CR-93-1931

Court of Criminal Appeals of Alabama.

November 19, 1999.

Rehearing Denied February 18, 2000.

*1052 Joseph S. Dice, Tuscaloosa; and Andrew A. Smith, Northport, for appellant.

Bill Pryor, atty. gen.; and Jeremy W. Armstrong, Paul H. Blackwell, Jr., and Andy Scott Poole, asst. attys. gen., for appellee.

LONG, Presiding Judge.

The appellant, Roy Edward Perkins, was convicted of murder made capital because it was committed during the course of a kidnapping in the first degree. See § 13A-5-40(a)(1), Ala.Code 1975. The jury, by a vote of 10-2, recommended that Perkins be sentenced to death. The trial court accepted the jury's recommendation and sentenced Perkins to death.

The State's evidence tended to show the following. On August 9, 1990, at approximately 4:00 p.m., 33-year-old Cathy Gilliam was abducted at gunpoint from her home in the Tuscaloosa County community of New Lexington. Candace Gilliam, Mrs. Gilliam's daughter, testified that she was in her bedroom at approximately 4:00 p.m. on August 9, when she heard her mother scream. After this testimony, Candace, *1053 who was 14 years old at the time of the trial, was excused from the courtroom; in lieu of further live testimony from Candace, it was stipulated that her testimony would have been as follows had she continued to testify: When she heard her mother scream a second time, Candace went to the kitchen. There she saw a man holding her mother and pointing a black pistol at her mother's head. She heard her mother yell for help and say "something about a rapist." (R. 1755.) Candace watched as the man led her mother outside to a vehicle parked behind her mother's car. She could not see the vehicle well, but did notice that it was bigger than a car and that it was gray in color. At that point, Candace telephoned her grandmother. Candace was unable to give a detailed description of the man who had abducted her mother, but she did tell police that the man had brown, straight hair and a thin beard, and that he was not much taller than her mother.

Maudeen Hood, a resident of New Lexington who lived two to three miles from the Gilliam residence, testified that at approximately 5:00 p.m. on August 9, Cathy Gilliam knocked on her back door. According to Hood, Mrs. Gilliam stated that she had been shot and that she was going to die, and she asked Hood to call her father-in-law and to take her to the hospital. Hood stated that she helped Mrs. Gilliam into her kitchen, where Mrs. Gilliam lay on the floor; Hood then telephoned Mrs. Gilliam's father-in-law. When no one answered, Hood telephoned for help. Mrs. Gilliam told Hood that her assailant was about her husband's size, had long brown hair, a beard, and a mustache, and was driving a gray pickup truck. Mrs. Gilliam also told Hood that her assailant had brought her to Hood's house and that he had said that he did not mean to shoot her.

At approximately 5:15 p.m. on August 9, Norman Eldon Willingham, an Alabama state trooper, and Harry Montgomery, Chief Deputy Sheriff of the Tuscaloosa County Sheriffs Department, arrived at the Hood residence. Willingham testified that upon arriving, he saw Mrs. Gilliam lying on the kitchen floor; she had a gunshot wound to her chest. He stated that although Mrs. Gilliam had been shot in the chest, he immediately noticed that there was no hole in the front of her shirt. He stated that Mrs. Gilliam appeared pale, that she was having trouble breathing, and that she was complaining of pain and asking for help. When Willingham asked Mrs. Gilliam to describe her assailant, Mrs. Gilliam told him that he was a white male, approximately 30 years old, with medium-length hair and facial hair, and he was driving a gray full-size pickup truck. In addition, Mrs. Gilliam told Willingham that she had been sitting down when she was shot, and that it had been at least one hour since the shooting. Montgomery testified that he asked Mrs. Gilliam if she knew her assailant, and that she responded that she did not.

Gary Wayne Hunnicut, fire chief with the Samantha Volunteer Fire Department, testified that he was dispatched to the Hood residence on August 9, 1990. He stated that when he arrived, Donnie Hallman, a fellow volunteer, was already on the scene treating Mrs. Gilliam. In addition, both Willingham and Montgomery were present. Hunnicut testified that while he and Hallman were treating Mrs. Gilliam, he heard either Willingham or Montgomery ask Mrs. Gilliam if Perkins was her assailant. According to Hunnicut, Mrs. Gilliam "grunted" and nodded her head in the affirmative. (R. 1287.) In addition, Hunnicut said he heard Mrs. Gilliam grunt and saw her nod her head in the affirmative when either Willingham or *1054 Montgomery asked her if she had been shot with a pistol.

Scott Sassaman, a paramedic with the Suburban Ambulance Company, testified that he arrived at the Hood residence at approximately 5:46 p.m. on August 9. Hallman was already working on Mrs. Gilliam. Sassaman stated that he took over Mrs. Gilliam's treatment and put Mrs. Gilliam in "mass trousers"—air-filled pants that move blood from the lower body to the upper extremities. (R. 2023.) Sassaman stated that he saw no gunpowder residue on Mrs. Gilliam. According to Sassaman, Mrs. Gilliam was placed in the ambulance at approximately 6:00 p.m. While in the ambulance, Sassaman said, Mrs. Gilliam expressed concern about her family and stated that she was going to die. Mrs. Gilliam died in the ambulance on the way to the hospital.

On August 10, 1990, Kenneth Warner, the State Medical Examiner for Tuscaloosa County, performed an autopsy on Mrs. Gilliam. Warner testified that Mrs. Gilliam died from a gunshot wound to her chest that destroyed her liver. He stated that, in addition to the gunshot wound, there was a stab wound just above Mrs. Gilliam's right collarbone. The hyoid bone in Mrs. Gilliam's neck was broken, Warner said, and there was hemorrhaging in her neck muscles. Warner stated that these injuries were consistent with a struggle having taken place. Warner also stated that he found no evidence that Mrs. Gilliam had been raped and that there was no gunpowder residue around the gunshot wound. He testified that if Mrs. Gilliam was wearing a shirt at the time of the shooting, the absence of gunpowder residue around the wound would be meaningless, but that if Mrs. Gilliam was not wearing a shirt when she was shot, the absence of gunpowder residue would indicate that the fatal shot was fired from at least 18 inches away.

Vernon Hudson, Chief Deputy of the Fayette County Sheriff's Department, testified that he was driving south on Highway 63 on August 9, 1990, at approximately 5:30 p.m., when he saw Perkins, whom he knew personally, driving north in a gray pickup truck. Hudson stated that he knew Perkins was wanted in connection with the shooting of a woman in Tuscaloosa County, so he turned around and followed Perkins. According to Hudson, he lost sight of the pickup truck briefly when he turned around, but he saw dust on a dirt road off Highway 63 and he turned down the road. Hudson said he found a gray, 1979 Chevrolet pickup truck abandoned just off the dirt road, and that the keys were in the ignition. Hudson stated that he notified a dispatcher that he had found the truck Perkins was driving and that he stayed with the truck until the homicide unit arrived, at which time, he said, he turned the truck over to Investigator J.R. Simpson. Hudson testified that he found the truck approximately one-half mile from the homes of Perkins's mother and grandmother.

Investigator Simpson testified that he responded to a call regarding an abandoned truck believed to have been driven by Perkins. He stated that when he arrived in Fayette County just off Highway 63, he took photographs of the abandoned truck. He stated that the truck had a gunshot hole in the front windshield and a gunshot hole in the roof of the cab. On cross-examination, he stated that he believed both holes were caused by shots fired from within the truck, most likely from the driver's side. The truck was towed to the homicide unit's impound lot and was "processed" for evidence by Simpson and Dr. John McDuffie, a trace-evidence *1055 examiner with the Alabama Department of Forensic Sciences.

At trial, Perkins stipulated to the following facts, which the trial judge read to the jury:

"The defendant caused the death of Cathy Gilliam with a .357 Magnum pistol. That's number one. Number two, the defendant, Mr. Roy Perkins, was in the 1979 Chevrolet gray pickup truck shown in State's Exhibit number 23. Number three, Cathy Gilliam's blood was found in the 1979 gray Chevrolet pickup truck shown in State's Exhibit number 23."

(R. 2087.)

The State presented evidence that Simpson and McDuffie found a wallet containing Perkins's driver's license and a fragment of a projectile in the gray truck. Fibers from the shorts Mrs. Gilliam was wearing at the time of her abduction were also found in the truck. Perkins's fingerprints were found on the outside of the driver's door of the truck. Further, both the driver and front passenger seats contained reddish stains; the stained portions of the seats were cut out and sent to Dr. Phyllis T. Rollan, a forensic serologist with the Alabama Department of Forensic Sciences. Dr. Rollan testified that the stain found on the back of the front passenger seat was consistent with Mrs. Gilliam's blood.

After the abandoned truck was discovered, the police began searching for Perkins in Fayette County. Bobby Mason, an enforcement agent with the Alabama Alcoholic Beverage Control Board, testified that he participated in the search for Perkins in Fayette County. He stated that on August 11, 1990, he found a campsite in the woods near the homes of Perkins's mother and grandmother. At the campsite, Mason found quilts, cigarettes, various food items, wire-cutters, 10 feet of rope, and a .357 Magnum handgun.

Baxter Pate, a police officer with the City of Northport, also helped in the search for Perkins. Pate testified that at approximately 3:50 p.m. on August 12, 1990, he found Perkins lying on the ground in the woods near the houses of his mother and grandmother. Pate stated that Perkins was crying and whimpering and that he said, "Please, please, don't shoot me." (R. 2106.) After Pate told Perkins not to move, Perkins again stated, "Please, don't shoot me," and then said, "I didn't mean to do it.... I didn't mean to hurt her." (R. 2107.) Pate stated that he called for backup, and that several officers arrived and handcuffed Perkins. At the time of his arrest, Perkins had a gunshot wound to his right knee that he suffered during a struggle with Mrs. Gilliam.

Darlene Hall, a resident of New Lexington who lived approximately one to two miles from the Gilliam residence, also testified at trial. Hall stated that at approximately 3:50 p.m. on August 9, 1990, Perkins came to her home and asked to use her telephone to call a tow truck. According to Hall, she recognized Perkins from a picture in a newspaper article she had been reading, and she immediately retrieved a gun from her bedroom closet. Perkins left when he saw the gun. At trial, Hall positively identified Perkins as the man who had come to her home on August 9.

In addition to Hall's testimony, the State also presented evidence of two rapes allegedly committed by Perkins in the two weeks preceding the abduction of Mrs. Gilliam—one committed on August 1, 1990, and one committed on August 6, 1990. The State presented testimony from the alleged rape victims, B.P. and D.W.; from the doctors who treated them following the alleged rapes; from the nurses who administered the rape kits; from Dr. Rollan, *1056 who performed DNA tests on the rape kits from both victims and compared them to Perkins's DNA; and from the police officers who investigated the alleged rapes.

On appeal, Perkins raises 37 issues, many of which he did not raise by objection in the trial court. Because Perkins was sentenced to death, his failure to object at trial does not bar our review of these issues; however, it does weigh against any claim of prejudice he now makes on appeal. See Dill v. State, 600 So.2d 343 (Ala.Cr.App.1991), aff'd, 600 So.2d 372 (Ala.1992), cert. denied, 507 U.S. 924 , 113 S.Ct. 1293 , 122 L.Ed.2d 684 (1993); 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).

Rule 45A, Ala.R.App.P., provides:

"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, 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."

This court has recognized that "`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." `" Burton v. State, 651 So.2d 641, 645 (Ala.Cr.App.1993), aff'd, 651 So.2d 659 (Ala.1994), cert. denied, 514 U.S. 1115 , 115 S.Ct. 1973 , 131 L.Ed.2d 862 (1995), quoting United States v. Young, 470 U.S. 1, 15 , 105 S.Ct. 1038, 1046 , 84 L.Ed.2d 1 (1985) (quoting, in turn, United States v. Frady, 456 U.S. 152, 163 , 102 S.Ct. 1584, 1592 , 71 L.Ed.2d 816 (1982)). Accordingly, we address each of the 37 issues Perkins raises.

I.

Perkins contends that he was improperly charged under a duplicitous indictment (Issue XX in Perkins's brief to this court), and that the trial court erred in failing to give the jury a specific unanimity instruction. (Issue III in Perkins's brief to this court.) Specifically, he complains that the language of the first-degree kidnapping statute under which he was charged and found guilty—that requires the intent to inflict physical injury or to violate or sexually abuse—improperly permitted him to be convicted by a jury whose verdict was not unanimous. He maintains that under the language of the statute, the indictment, and the trial court's jury instructions, it was possible that some of the jurors "believed beyond a reasonable doubt that [he] abducted Mrs. Gilliam with the intent to physically injure her while the remaining jurors believed beyond a reasonable doubt that he abducted her with the intent to sexually abuse or violate her." (Perkins's brief to this court, p. 46.) As a result, he concludes, the jury's verdict was not unanimous. As this issue was never presented to the trial court, we may review it only under the plain error rule. Rule 45A, Ala.R.App.P.

In support of his argument, Perkins relies on this court's rationale in Knotts v. State, 686 So.2d 431 (Ala.Cr.App.1995), on return to remand, 686 So.2d 484 (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), regarding the requirement of a unanimous verdict. In Knotts, the defendant was charged with two counts of capital murder: murder committed during the course of a burglary and murder committed during the course of a robbery. The trial court failed to instruct the jury that it had to unanimously agree as to one or both counts, and the jury came back with a general verdict of *1057 guilty of capital murder, without any indication as to which count of capital murder it had rested its verdict on. We stated that: "Under Alabama law, the appellant, having been accused of two distinct criminal acts, had the right to a unanimous finding of guilt as to one count or as to both counts." Knotts, 686 So.2d at 462. In addition, we stated that "[t]he general instructions on unanimity in the instant case raise the possibility that the jury was not adequately informed that its duty was to agree on a unanimous verdict as to each count." Id. at 463. Perkins contends that the same is true in his case. However, as the State correctly points out in its brief to this court, Perkins, unlike Knotts, was not charged with two counts of capital murder nor was he accused of two distinct criminal acts; rather, he was charged with one count of capital murder based on one criminal act: murder committed during a kidnapping in the first degree. Thus, the majority of our discussion in Knotts regarding jury unanimity is inapplicable to the case at hand.

Rather, we find our discussion in Harris v. State, 632 So.2d 503 (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), to be controlling. In Harris , the appellant argued that his indictment for murder made capital because it was done for a pecuniary or other valuable consideration or pursuant to a contract or for hire, was duplicitous and violated his right to a unanimous verdict. Harris maintained that he was entitled to a specific unanimity instruction to ensure that all 12 jurors agreed as to whether he had committed the murder for pecuniary gain or for hire. In addressing the validity of the indictment in that case, we quoted the following from Schad v. Arizona, 501 U.S. 624 , 111 S.Ct. 2491 , 115 L.Ed.2d 555 (1991):

"`A way of framing the issue is suggested by analogy. Our cases reflect a long-established rule of the criminal law that an indictment need not specify which overt act, among several named, was the means by which a crime was committed. In Andersen v. United States, 170 U.S. 481 [ 18 S.Ct. 689 , 42 L.Ed. 1116 ] (1898), for example, we sustained a murder conviction against the challenge that the indictment on which the verdict was returned was duplicitous in charging that the theft occurred through both shooting and drowning. In holding that "the Government was not required to make the charge in the alternative," id., at 504 [ 18 S.Ct. at 694 ], we explained that it was immaterial whether death was caused by one means or the other. Cf. Borum v. United States, 284 U.S. 596 [ 52 S.Ct. 205 , 76 L.Ed. 513 ] (1932)(upholding the murder conviction of three co-defendants under a count that failed to specify which of the three did the actual killing); St. Clair v. United States, 154 U.S. 134, 145 [ 14 S.Ct. 1002, 1006 , 38 L.Ed. 936 ] (1894). This fundamental proposition is embodied in the Federal Rules of Criminal Procedure 7(c)(1), which provides that "[i]t may be alleged in a single count that the means by which the defendant committed the offense are unknown or that the defendant committed it by one or more specified means."'"

632 So.2d at 514. We then went on to say:

"`In effect, the indictment charged, in a single count, alternative methods of proving the same crime. See Sisson v. State, 528 So.2d 1151 (Ala.Cr. App.1987), affirmed, Ex parte State, 528 So.2d 1159 (Ala.1988)("Section 32-5A-191(a)(1) and (2) are merely two different methods of proving the same offense—driving under the influence.") "When an offense may be committed by different means or with different intents, such means or intents *1058 may be alleged in an indictment in the same count in the alternative." Alabama Code 1975, § 15-8-50. Chappell v. State, 52 Ala. 359, 360-61 (1875), held that in an indictment for common law robbery, the taking of the property from the victim may be charged to have been "against his will, by violence to his person," or "by putting him in such fear as [to cause him] unwillingly to part with the same" in different counts or in the same count in the alternative.'

" Williams v. State, 538 So.2d 1250, 1252 (Ala.Cr.App.1988). Thus, in Tucker v. State, 537 So.2d 59 (Ala.Cr.App.1988), this court held that an indictment that charged the capital murder of a police officer in alternative language complied with the statutory language of § 13A-6-2(a)(1) and § 13A-5-40(a)(5), Code of Alabama 1975. By statutory definition, the murder of a police officer is made capital when the officer is intentionally killed `while such officer is on duty' or `because of some official or job-related act or performance.' This court reasoned:

"`"An apparent purpose of these several provisions [§ 15-8-50, -51, -52] is to obviate the necessity of a multiplicity of counts, permitting one count to serve the purposes accomplished by several at common law...." Horton v. State, 53 Ala. 488, 492 (1875). The indictment was properly framed to conform with the proof. It charged only one offense— capital murder of a peace officer— which was committed for one of two reasons: either because the officer was trying to arrest Tucker's stepmother or because the officer was trying to arrest Tucker. This indictment completely satisfied the constitutional requirements of due process. Summers v. State, 348 So.2d 1126, 1132 (Ala.Cr.App.), cert. denied, Ex parte Summers, 348 So.2d 1136 (Ala.1977), cert. denied, 434 U.S. 1070 , 98 S.Ct. 1253 , 55 L.Ed.2d 773 (1978). See Davis v. State, 505 So.2d 1303, 1304 (Ala.Cr.App.1987)(operating a motor vehicle "while under the influence of intoxicating liquors or narcotic drugs"); Wilson v. State, 84 Ala. 426 , 4 So. 383 (1888)(murder "by striking him in the head ... or by choking him with a piece of ... cord"); King v. State, 137 Ala. 47 , 34 So. 683 (1903)(murder "by hitting him or by striking him with a miner's pick, or by stabbing or cutting him with a knife, or with some sharp instrument").'

" Tucker v. State, supra, at 61.

"As in Tucker v. State, supra, in the present case, the indictment in the present case charged only one offense—capital murder for hire—which was committed for one of two reasons: either Isaiah Harris was killed pursuant to a contract in order for Louise Harris [the defendant] and Lorenzo McCarter to continue their relationship, or Isaiah Harris was killed pursuant to a contract in order for the perpetrators to secure pecuniary gain, specifically $100 paid by Louise Harris and the proceeds of certain insurance policies on the victim's life, which were to be divided among all the participants. Thus, the indictment was not duplicitous."

632 So.2d at 514-15. See also Sockwell v. State, 675 So.2d 4 (Ala.Cr.App.1993), aff'd, 675 So.2d 38 (Ala.1995), cert. denied, 519 U.S. 838 , 117 S.Ct. 115 , 136 L.Ed.2d 67 (1996).

Similarly, here, contrary to his contention, Perkins was charged with a single offense—murder made capital because it was committed during the course of a kidnapping in the first degree—which was committed with one of two intents: the *1059 intent to physically injure Mrs. Gilliam or the intent to sexually abuse Mrs. Gilliam. The alternative intents were properly charged in a single count; thus, the indictment was not duplicitous.

Moreover, the trial court's jury instructions regarding jury unanimity were proper. The trial court instructed the jury that it had to reach a unanimous verdict. Although Perkins contends that he was entitled to a specific instruction that the jury must unanimously agree as to his specific intent when he kidnapped Mrs. Gilliam, i.e., whether he intended to physically injure Mrs. Gilliam or whether he intended to sexually abuse Mrs. Gilliam, we find "that the jury did not have to decide between this alternative language." Harris, 632 So.2d at 515. "`If a statute describes a single offense which may be committed in more than one factual manner, or by way of different acts, jury unanimity is not necessary as to the means by which it is committed, where the acts are conceptually similar or not repugnant to each other.'" Knotts, 686 So.2d at 461, quoting 23A C.J.S. Criminal Law § 1398 (1989). The intent to sexually abuse and the intent to physically harm—the two alternative intents for first-degree kidnapping —are so conceptually similar as to make it constitutionally permissible for the jurors to agree on a unanimous verdict without necessarily unanimously agreeing on Perkins's intent; any combination of the two alternative intents would be permissible. See Schad v. Arizona, supra.

Accordingly, we find no error, plain or otherwise, as to this matter.

II.

Perkins also contends that the trial court abused its discretion in granting the State's motion to disqualify the Tuscaloosa County public defender's office from representing him. (Issue XVIII in Perkins's brief to this court.) He maintains that the trial court's disqualification of the public defender's office violated his Sixth Amendment right to counsel and his "presumptive right to counsel of choice." (Perkins's brief to this court, p. 97.)

In February 1993, over a year before Perkins's trial, the State filed a motion to disqualify the public defender's office from representing Perkins based on a potential conflict of interest. The State argued that the hiring of Shirley Fields—a former captain in the Tuscaloosa homicide unit and second in command of that unit during its investigation of Mrs. Gilliam's murder—as an investigator with the public defender's office, created a potential conflict of interest because Fields had been involved in the murder investigation in a supervisory capacity, was privy to confidential government information concerning the case that was not subject to disclosure, and was a possible witness for the State at Perkins's trial. At a hearing on the motion in March 1993, Fields testified that he played a supervisory role in the investigation of Mrs. Gilliam's death, that he was privy to sensitive information about the investigation, that he participated in the processing of one of the State's most important pieces of evidence (the gray pickup truck), but that he had not been actively involved in every aspect of the investigation. In addition, he stated that, in the past, the district attorney's office had often consulted him about trial strategy in cases in which he had played a supervisory role. Following Fields's testimony, the public defender representing Perkins argued against the motion, stating that although there was a potential conflict if the State ultimately called Fields to testify, Perkins was willing to waive that potential conflict. After the hearing, the trial court entered a written order granting the State's motion to disqualify *1060 the public defender's office, stating, in pertinent part:

"This Court finds no evidence of a violation of Rule of Professional Responsibility 1.11. However, the nature of this case and the scrutiny to which it would be subjected upon possible appellate review, warrants this Court to act with extreme caution to avoid any appearance of impropriety or appearance of a conflict of interest. The Court noted this exercise of caution is to protect both the rights of the State and the defendant. The Court further finds that substitution of counsel at this stage of the proceedings produces no injury to Mr. Perkins's defense."

(C. 71-72.)

On appeal, Perkins contends that there was no actual or potential conflict of interest because, he says, Fields was not actively involved in the investigation of Mrs. Gilliam's murder and because Fields was ultimately not called to testify by the State at his trial. He maintains that the State "`manufactur[ed] [a] conflict in order to prevent [him] from having a particularly able defense counsel at his side.'" (Perkins's brief to this court, p. 100, quoting Wheat v. United States, 486 U.S. 153 , 108 S.Ct. 1692 , 100 L.Ed.2d 140 (1988).) Thus, he concludes, his right to counsel of choice was violated. We disagree.

Fields's testimony at the hearing on the State's motion to recuse revealed that he was involved in the investigation of Mrs. Gilliam's murder in a supervisory capacity and that he was privy to sensitive information concerning the case. In addition, Fields was a potential witness for the State based on his involvement in the processing of the gray pickup truck. This created not only an "appearance of impropriety," as the trial court stated, but a real potential for conflict. Contrary to Perkins's contention, merely because this potential conflict did not burgeon into an actual conflict of interest (Fields was, in fact, not called as a witness for the State), does not lessen the duty of the trial court to exercise caution, especially in a case where the most severe of all penalties might be imposed.

Although we recognize that a criminal defendant has a presumptive right to counsel of his choosing, that right is not absolute. In Snell v. State, 723 So.2d 105 (Ala.Cr.App.1998), we stated:

"An indigent defendant who cannot afford to retain an attorney has an absolute right to have counsel appointed by the court in all criminal proceedings in which representation by counsel is constitutionally required. Gideon v. Wainwright, 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963); Strickland v. State, 280 Ala. 31 , 189 So.2d 771 (1965); U.S. Const. amend. VI and XIV; Art. I, Ala. Const.1901, § 6; Ala.Code 1975, § 15-12-21; Ala.R.Crim.P. 6.1. While an indigent defendant may have the right to be represented by counsel, he has no absolute right to be represented by any particular counsel or by counsel of his choice. Briggs v. State, 549 So.2d 155 (Ala.Cr.App.1989). The essential aim of the Sixth Amendment is to guarantee an effective advocate, not counsel preferred by the defendant. Wheat v. United States, 486 U.S. 153 , 108 S.Ct. 1692 , 100 L.Ed.2d 140 (1988). The Sixth Amendment does not guarantee a defendant a meaningful relationship, rapport, or even confidence in court-appointed counsel. Morris v. Slappy, 461 U.S. 1 , 103 S.Ct. 1610 , 75 L.Ed.2d 610 (1983); Siers v. Ryan, 773 F.2d 37 (3d Cir.1985), cert. denied, 490 U.S. 1025 , 109 S.Ct. 1758 , 104 L.Ed.2d 194 (1989).

"The decision to substitute or to remove court-appointed counsel and to appoint new counsel for an accused rests *1061 within the sound discretion of the trial court. Boldin v. State, 585 So.2d 218 (Ala.Cr.App.1991); Cox v. State, 489 So.2d 612 (Ala.Cr.App.1985)."

723 So.2d at 107 (emphasis added).

"In determining whether or not to disqualify defense counsel, the court must balance two Sixth Amendment rights: (1) the right to be represented by counsel of choice and (2) the right to a defense conducted by an attorney who is free of conflicts of interest. [ Wheat, 486 U.S.] at 160, 108 S.Ct. at 1697 . The need for fair, efficient, and orderly administration of justice overcomes the right to counsel of choice where an attorney has an actual conflict of interest, such as when he has previously represented a person who will be called as a witness against a current client at a criminal trial.... Indeed, even a potential conflict suffices for disqualification...."

United States v. Ross, 33 F.3d 1507, 1523 (11th Cir.1994), cert. denied, 515 U.S. 1132 , 115 S.Ct. 2558 , 132 L.Ed.2d 812 (1995). As stated above, there was a clear potential for conflict in this case. Fields's employment with the office representing Perkins, after his involvement in the investigation of Mrs. Gilliam's death, combined with the possibility that he may have been called as a witness for the State at Perkins's trial, created a potential conflict for the public defender's office, as well as for the State. Given the heightened scrutiny this court must undertake in cases in which the death penalty has been imposed, we see no abuse of discretion on the part of the trial court in exercising its own scrutiny to ensure a fair trial to both sides in a case where the death penalty is a possible punishment.

Perkins also contends, however, that the trial court erred in disqualifying the public defender's office because he offered to waive his right to conflict-free counsel. Although we recognize that a criminal defendant may choose to waive his right to conflict-free counsel, it is entirely within the trial court's discretion to accept or to reject such a waiver. In Wheat, supra, the United States Supreme Court stated that trial courts "must be allowed substantial latitude in refusing waivers of conflicts of interest not only in those rare cases where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses." 486 U.S. at 163 , 108 S.Ct. at 1699 . The Court then went on to say:

"Unfortunately for all concerned, a [trial] court must pass on the issue whether or not to allow a waiver of a conflict of interest by a criminal defendant not with the wisdom of hindsight after the trial has taken place, but in the murkier pre-trial context when relationships between parties are seen through a glass, darkly. The likelihood and dimensions of nascent conflicts of interest are notoriously hard to predict, even for those thoroughly familiar with criminal trials."

486 U.S. at 162-63 , 108 S.Ct. at 1699 . We see no abuse of discretion in the trial court's rejection of Perkins's offer to waive the potential conflict.

Finally, we point out that there is no evidence that Perkins's defense was prejudiced by the disqualification of the public defender's office. Although Perkins makes a bare allegation that the two attorneys subsequently appointed to represent him lacked the resources of the public defender's office, he has failed to provide any proof of this assertion. In addition, even if the personal resources of his counsel were less than the public defender's office, there is no evidence that this resulted *1062 in an inadequate defense; the record reveals that Perkins's attorneys filed numerous motions for extraordinary expenses that the trial court granted—Perkins's attorneys were clearly provided with the resources necessary to defend him.

Accordingly, we find no abuse of the trial court's discretion in granting the State's motion to disqualify the public defender's office from representing Perkins.

III.

Perkins further contends that he was denied his Sixth Amendment right to counsel because, he says, he was denied access to his attorneys before trial. (Issue XXIV in Perkins's brief to this court.) Because Perkins received no adverse ruling on any motion, written or oral, regarding access to his attorneys, we may review this claim only for plain error. Rule 45A, Ala. R.App.P.

Perkins contends that his counsel filed a motion requesting that Perkins be transferred from the William Donaldson Correctional Facility in Bessemer to the Tuscaloosa County jail "so that he would be readily available to assist [his counsel] in preparing his defense," and that the trial court denied the motion. (Perkins's brief to this court, pp. 146-47.) A review of the record reveals that no such motion was ever filed by Perkins's counsel. Rather, when first appointed, Perkins's counsel filed a motion to transfer Perkins to Tuscaloosa for an interview. That motion was granted by the trial court, and Perkins was, in fact, transferred to Tuscaloosa where an interview was conducted. The record also reveals that Perkins's counsel, in a pretrial hearing on August 12, 1993, orally requested that Perkins be transferred to Tuscaloosa "from time to time in preparation for his hearing[s]." (R. 33.) Again, the trial court granted the request, but told Perkins's counsel "to keep the Court apprised by motion" when Perkins would need to be transferred. (R. 38.) No motions were filed by Perkins's counsel in compliance with the court's request. Moreover, the trial court granted extraordinary travel expenses to Perkins's defense team so that they could travel to Bessemer when they needed to meet with Perkins if a problem arose and Perkins was unable to be transferred to Tuscaloosa. At another pretrial hearing on October 27, 1993, Perkins's counsel again orally raised the issue of transferring Perkins to the Tuscaloosa County jail. Because the county jail was overcrowded and Perkins had not been transferred since the August 12 hearing, Perkins's counsel suggested that the court allow extraordinary expenses so they could travel to Bessemer. However, Perkins's counsel made no objection to Perkins not being transferred to Tuscaloosa. Again, the trial court granted counsel's request and permitted extraordinary travel expenses. On March 24, 1994, Perkins's counsel filed a motion requesting that Perkins be transferred to Tuscaloosa one week before his trial. The trial court granted that request.

Clearly, Perkins was not denied access to his attorneys. Although overcrowding at the Tuscaloosa County jail prevented his transfer between August 12, 1993, and October 27, 1993, the record indicates that Perkins was transferred to Tuscaloosa on at least three other occasions before his trial on April 18, 1994. His attorneys were provided with extraordinary expenses to pay for their travel to and from Bessemer to consult with Perkins when he could not be transferred. Perkins did not object to this arrangement at trial. Given these circumstances, we conclude that Perkins was not denied access to his attorneys before trial; therefore, he was not deprived of his Sixth Amendment right to counsel. See Smith v. State, 698 So.2d 189 *1063 (Ala.Cr.App.1996), aff'd, 698 So.2d 219 (Ala.), cert. denied, 522 U.S. 957 , 118 S.Ct. 385 , 139 L.Ed.2d 300 (1997) (defendant was not denied due process of law or deprived of his right to counsel when the trial court denied his motion to be transferred from Holman Prison to the Lee County jail before his trial). Accordingly, we find no, error, plain or otherwise, as to this claim.

IV.

Perkins contends that the trial court committed several errors in its discovery orders. (Issue XXII in Perkins's brief to this court.)

A.

First, Perkins contends that the trial court erred in requiring him to disclose to the State the materials considered by his experts in forming their opinions regarding Perkins's mental condition at the time of the crime. [1] Specifically, he contends that the results from a Minnesota Multiphasic Personality Inventory ("MMPI"), and the results from psychological evaluations conducted while he was in prison before the present offense (during the years 1983-1990), were not discoverable because, he says, his experts, Dr. John Goff, a neuropsychologist, and Ed Owens, a social worker, did not "rely" on these items in forming their opinions. Perkins did not object to the State's motion for discovery of these items or to the trial court's order granting the motion; thus, we may determine only whether allowing such discovery was plain error. Rule 45A, Ala.R.App.P.

Although Perkins provides a laundry list of constitutional rights that he says were violated by the trial court's discovery order, after reviewing Perkins's 12-page argument, we believe that Perkins's claim is best summarized in a single sentence in his appellate brief: "If the adversarial process is to mean anything, it must permit defense counsel to pursue an investigation unfettered by discovery rules that require [him] to disclose any unfavorable and potentially incriminating results which the investigation may reveal." (Perkins's brief to this court, p. 125; emphasis added.) Clearly, had the results of his MMPI and his prison records been favorable to his defense—Perkins's expert, Dr. Goff, in fact, utilized the favorable portions of his prison records to support his conclusions regarding Perkins's mental condition— Perkins would not now be objecting to their discovery. In essence, Perkins is arguing that the items were not discoverable merely because they were unfavorable to his defense. This simply is not the law.

Materials used by experts (for the State and the defense alike) in forming their opinions are clearly discoverable under Rule 16.2(c), Ala.R.Crim.P. Such materials do not have to be exclusively relied on by the experts in order to be discoverable, as Perkins contends, but must only be read and considered by the expert. Here, Owens specifically stated that he considered Perkins's prison records in making his social history and social assessment of Perkins. In addition, Dr. Goff specifically stated that he considered the MMPI results, although invalid, in forming his opinion, and his report included a reference to the invalidity of the results and the possible reasons for that invalidity. These items, although not favorable to the defense, were discoverable by the State because they were materials considered by the defense experts in forming their opinions.

*1064 Perkins contends, however, that because his MMPI results were invalid, Dr. Goff could not consider them in forming his opinion. Although we acknowledge that Dr. Goff stated in his report that the invalid MMPI results were not "particularly helpful," he in no way stated that he ignored the results or that he could not consider them in reaching his conclusions. (C. 326.) Rather, as stated above, the invalid results and the possible reasons for their invalidity—including the possibility that Perkins intentionally faked the test results to make it appear that he was mentally ill—were included in Dr. Goff's written report. Moreover, even if Dr. Goff did ignore the results, they would still be discoverable by the State. The State is entitled to a thorough and sifting cross-examination of defense witnesses, just as a defendant is entitled to a thorough and sifting cross-examination of State witnesses. The State is entitled to examine an expert on the facts that formed the basis of the expert's opinion, including facts relevant to the opinion that were ignored or excluded by the expert. The fact that Perkins may have intentionally faked the test results in order to appear mentally ill was certainly relevant to Dr. Goff's testimony regarding Perkins's mental condition. Merely because such materials were not favorable to Perkins does not render them undiscoverable. Accordingly, we find no error, plain or otherwise, regarding this claim.

B.

Second, Perkins contends that the State violated Rule 16.1, Ala.R.Crim.P., by not disclosing, until one week before trial, a statement Perkins made to Officer Baxter Pate at the time of his arrest. He maintains that because Rule 16.1(a), Ala. R.Crim.P., requires disclosure within 14 days of a request and because his request was made nearly 2 years before the State disclosed the statement, the State violated Rule 16.1, and the statement should have been excluded from evidence. Perkins did not object to the allegedly untimely disclosure, nor did he object to the admission of the statement at trial; thus, we may review this claim only for plain error. Rule 45A, Ala.R.App.P.

On July 8, 1992, Perkins filed a motion for discovery, in which he requested all statements made by him to law enforcement personnel. That motion was granted, and several statements made by Perkins were disclosed by the State over the two-year period leading up to Perkins's trial in 1994. At a hearing on April 14, 1994, the week before trial, the prosecutor informed the court that he had, within a week before the hearing, learned of the existence of the statement Perkins made to Pate at the time he was arrested. The prosecutor informed the trial court that he had mailed a summary of the statement to defense counsel as soon as he had learned of its existence. Defense counsel confirmed that he had received notice of the statement on April 12, 1994, and made no objection to the timeliness of the disclosure.

In Thomas v. State, 508 So.2d 310 (Ala. Cr.App.1987), this court addressed an identical issue and stated:

"`The appellant provides no evidence that the untimeliness of the State's compliance [with the discovery order] prejudiced her case. Moreover, this court has found that even if the State failed to comply with an order for discovery, the items may still be admissible because the State offered the defense counsel an opportunity to inspect and examine [the materials] in accordance with Rule 18.5(a), Alabama Temporary Rules of Criminal Procedure. Clemons v. State, 491 So.2d at 1060 (Ala.Cr.App.1986).'" *1065 508 So.2d at 313 . See also Travis v. State, 776 So.2d 819 (Ala.Cr.App.1997). Similarly, Perkins has provided no evidence, indeed he has not even alleged, that he was prejudiced by the State's failure to disclose the statement until one week before trial. Perkins had ample time to prepare his cross-examination of Pate. Accordingly, we find no error, plain or otherwise, regarding this claim.

C.

Finally, Perkins contends that numerous other disclosures by the State were untimely under the 14-day rule of Rule 16.1, Ala.R.Crim.P., resulting, Perkins says, in "trial by ambush." (Perkins's brief to this court, p. 133.) Perkins did not object to any of the State's allegedly untimely disclosures. Moreover, as stated above, he has failed to provide any evidence, nor does he even allege—other than his bare allegation that he suffered from "trial by ambush"—that he was prejudiced by the allegedly untimely disclosures. After reviewing the record, we find that Perkins was provided with all the discovery materials ordered by the trial court before trial. The record reveals that the trial court was diligent in overseeing ongoing discovery before trial and that Perkins made no objections to any of what he now says were late disclosures. Thus, we find no error, plain or otherwise, regarding these claims.

V.

Perkins contends that he was denied his right to a fair trial and an impartial jury when the trial court refused to allow him to conduct individual, sequestered voir dire examination of the venire regarding the prospective jurors' exposure to pretrial publicity and their views on capital punishment. (Issue XXV in Perkins's brief to this court.)

The record reflects that Perkins initially moved for individual, sequestered voir dire examination of all prospective jurors on the grounds of "[e]motionally charged and prejudicial publicity." (C. 152.) In addition, he argued that individual, sequestered voir dire was necessary to obtain honest answers from prospective jurors regarding their views on capital punishment. After conducting a hearing on Perkins's motion, the trial court denied his request for individual, sequestered voir dire regarding prospective jurors' views on capital punishment, but, contrary to Perkins's contention on appeal, the trial court granted Perkins's request for individual, sequestered voir dire regarding pretrial publicity. The following procedure, outlined by the trial court in its order on Perkins's motion, was used during voir dire: After the initial, general qualification of the venire, by the trial court and by counsel for both Perkins and the State, the 88-member venire was divided into 7 panels [2] and counsel was allowed to question the panels regarding the veniremembers' views on capital punishment. (R. 107.) Following the questioning of each panel, the trial court asked each panel if anyone had read or heard about the case in any manner. Those who responded affirmatively were then questioned by counsel individually, in a sequestered setting. Thus, the only issue we may review is whether the trial court erred in denying Perkins's request for individual, sequestered voir dire to determine the prospective jurors' views on capital punishment.

This court has repeatedly held that questioning the venire in panels meets the requirements of due process and provides *1066 reasonable assurance that any prejudice on the part of the jurors will be exposed. Haney v. State, 603 So.2d 368, 402 (Ala.Cr. App.1991), aff'd, 603 So.2d 412 (Ala.1992), cert. denied, 507 U.S. 925 , 113 S.Ct. 1297 , 122 L.Ed.2d 687 (1993).

"`In Alabama, there is no requirement that a defendant be allowed to question each prospective juror individually during voir dire examination. This rule applies to capital cases, and the granting of a request for individual voir dire is discretionary with the trial court.' Coral v. State, 628 So.2d 954, 968 (Ala. Cr.App.1992). `The fact that the appellant's case involved capital murder is not alone reason to require individual voir dire.... A trial court's decision in denying individual voir dire examination of a jury panel will not be disturbed on appeal absent an abuse of that discretion.' Smith v. State, 588 So.2d 561, 579 (Ala.Cr.App.1991). See also Henderson v. State, 583 So.2d 276, 283 (Ala.Cr.App. 1990), affirmed, 583 So.2d 305 (Ala.1991), cert. denied, 503 U.S. 908 , 112 S.Ct. 1268 , 117 L.Ed.2d 496 (1992)."

Taylor v. State, 666 So.2d 36, 66 (Ala.Cr. App.1994), aff'd, 666 So.2d 73 (Ala.1995), cert. denied, 516 U.S. 1120 , 116 S.Ct. 928 , 133 L.Ed.2d 856 (1996). See also Smith v. State, 727 So.2d 147 (Ala.Cr.App.1998); and George v. State, 717 So.2d 827 (Ala.Cr. App.), aff'd in pertinent part, 717 So.2d 844 (Ala.1996), aff'd on return to remand, 717 So.2d 849 (Ala.Cr.App.1997), aff'd, 717 So.2d 858 (Ala.), cert. denied, 525 U.S. 1024 , 119 S.Ct. 556 , 142 L.Ed.2d 462 (1998). Perkins offered no evidence in the trial court to show how he was prejudiced as a result of prospective jurors being questioned in panels, as opposed to individually, regarding their views on capital punishment. On appeal, he offers only general arguments concerning the possibility of prejudice and fails to show that any comments by a prospective juror improperly influenced other members of a panel.

"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 that discretion." Ex parte Land, 678 So.2d 224, 242 (Ala.), cert. denied, 519 U.S. 933 , 117 S.Ct. 308 , 136 L.Ed.2d 224 (1996). A careful review of the record reveals that the method of voir dire employed by the trial court was sufficient to "provide[] reasonable assurance that prejudice would have been discovered if present." Haney, supra, 603 So.2d at 402. Accordingly, we find that the trial court did not abuse its discretion by denying Perkins's motion for individual, sequestered voir dire examination regarding the veniremembers' views on capital punishment.

VI.

Perkins contends that the trial court erred in denying his motion for a change of venue based on pretrial publicity because, he says, the pretrial publicity in his case was so extensive and prejudicial that he could not receive a fair and impartial trial in Tuscaloosa County. (Issue XXI in Perkins's brief to this court.)

Before trial, Perkins filed a motion for a change of venue. To his motion, he attached several newspaper articles about the case from the Tuscaloosa News, and a videotape of a news broadcast regarding the case that had run on one of the local Tuscaloosa television stations. [3] After two *1067 hearings, the trial court denied the motion. Following the voir dire examination, Perkins renewed his motion, arguing that because a majority of the venire indicated that they had read or heard something about the case from the news media, including an article that had been published the day before jury selection began, he could not obtain a fair and impartial jury in Tuscaloosa County. The trial court again denied the motion and stated:

"[W]e did grant the Defendant's motion, in part, for individual voir dire on the issue of pretrial publicity and knowledge of the case. And jurors were individually examined on that. There were actually —there was actually a small percentage, as I recall, that actually read the articles in this past Sunday's paper. And based on that and the other considerations that we covered when the motion on this was first submitted, the Court will deny the motion to transfer."

(R. 1678.)

When reviewing the correctness of a trial court's ruling on a motion for a change of venue, we must determine whether the trial court abused its discretion.

"`The determination of whether or not to grant a motion for change of venue is generally left to the sound discretion of the trial judge because he has the best opportunity to assess any prejudicial publicity against the defendant and any prejudicial feeling against the defendant in the community which would make it difficult for the defendant to receive a fair and impartial trial.'

" Nelson v. State, 440 So.2d 1130, 1132 (Ala.Cr.App.1983). See also Trahan v. State, 450 So.2d 1102 (Ala.Cr.App.1984). An appellant must prove a `gross abuse of discretion' before the trial court's ruling on a motion for change of venue will be reversed on appeal. Anderson v. State, 443 So.2d 1364 (Ala.Cr.App. 1983)."

Hunt v. State, 642 So.2d 999, 1042 (Ala.Cr. App.1993), aff'd, 642 So.2d 1060 (Ala.1994). "A trial court is in a better position than an appellate court to determine what effect, if any, pretrial publicity might have in a particular case." Joiner v. State, 651 So.2d 1155, 1156 (Ala.Cr.App.1994).

In Oryang v. State, 642 So.2d 979 (Ala. Cr.App.1993), we stated the following regarding the standard a trial court should use in deciding whether to grant a motion for a change of venue based upon pretrial publicity:

"`"`There are two situations in which a change of venue is mandated. The first is when the defendant can show that prejudicial pre-trial publicity "has so saturated the community as to have a probable impact on the prospective jurors" and thus renders the trial setting "inherently suspect." McWilliams v. United States, 394 F.2d 41 (U.S.C.A. 8th Cir.1968); Dobbert v. Florida, 432 U.S. 282 , 97 S.Ct. 2290 , 53 L.Ed.2d 344 (1977). In this situation, a "pattern of deep and bitter prejudice" must exist in the community. Irvin v. Dowd, [ 366 U.S. 717 , 81 S.Ct. 1639 , 6 L.Ed.2d 751 (1961) ] supra.

"`"`The second situation occurs when the defendant shows "a connection between *1068 the publicity generated by the news articles, radio and television broadcasts in the existence of actual prejudice." McWilliams v. United States, supra.'

"`" Nelson, 440 So.2d at 1131-32 ."

"` Thomas v. State, 539 So.2d 375 (Ala. Crim.App.1988). See also Robinson v. State, 430 So.2d 883 (Ala.Crim.App. 1983).'

" Holladay v. State, 549 So.2d 122, 125 (Ala.Cr.App.1988), affirmed, 549 So.2d 135 (Ala.1989), cert. denied, 493 U.S. 1012 , 110 S.Ct. 575 , 107 L.Ed.2d 569 (1989).

"Thus, a change of venue must be granted only when it can be shown that the pretrial publicity has so `pervasively saturated' the community as to make the `court proceedings nothing more than a "hollow formality,"' Hart v. State, 612 So.2d 520, 526-27 (Ala.Cr.App.), affirmed, 612 So.2d 536 (Ala.1992), cert. denied, 508 U.S. 953 , 113 S.Ct. 2450 , 124 L.Ed.2d 666 (1993), citing Rideau v. Louisiana, 373 U.S. 723, 726 , 83 S.Ct. 1417, 1419 , 10 L.Ed.2d 663 (1963), or when actual prejudice can be demonstrated. The burden of showing this saturation of the community or actual prejudice lies with the appellant. Sheppard v. Maxwell, 384 U.S. 333 , 86 S.Ct. 1507 , 16 L.Ed.2d 600 (1966). In order to show community saturation, the appellant must show more than the fact `that a case generates even widespread publicity.' Thompson v. State, 581 So.2d 1216, 1233 (Ala.Cr.App.1991), cert. denied, 502 U.S. 1030 , 112 S.Ct. 868 , 116 L.Ed.2d 774 (1992). `"Newspaper articles alone would not necessitate a change of venue unless it was shown that the articles so affected the general citizenry through the insertion of such sensational, accusational or denunciatory statements, that a fair and impartial trial was impossible. Patton v. State, 246 Ala. 639 , 21 So.2d 844 [1945]."' Thompson v. State, supra at 1233, quoting McLaren v. State, 353 So.2d 24, 31 (Ala. Cr.App.), cert. denied, 353 So.2d 35 (Ala. 1977). Furthermore, in order for a defendant to show [actual] prejudice, the `"proper manner for ascertaining whether adverse publicity may have biased the prospective jurors is through the voir dire examination." Anderson v. State, 362 So.2d 1296, 1299 (Ala.Crim. App.1978).' Ex parte Grayson, 479 So.2d 76, 80 (Ala.1985), cert. denied, 474 U.S. 865 , 106 S.Ct. 189 , 88 L.Ed.2d 157 (1985)."

642 So.2d at 982-83.

We acknowledge that Perkins's case received extensive publicity in Tuscaloosa County. However, "`in order to obtain a change of venue, it must be shown that pre-trial publicity surrounding the case was inherently prejudicial.'" Oryang, supra, at 983 , quoting Holladay v. State, 549 So.2d 122, 125 (Ala.Cr.App. 1988), aff'd, 549 So.2d 135 (Ala.), cert. denied, 493 U.S. 1012 , 110 S.Ct. 575 , 107 L.Ed.2d 569 (1989). We recognize that the "presumptive prejudice" standard is "`rarely' applicable, and is reserved for only `extreme situations.'" Hunt, 642 So.2d at 1043, quoting Coleman v. Kemp, 778 F.2d 1487, 1537 (11th Cir.1985), cert. denied, 476 U.S. 1164 , 106 S.Ct. 2289 , 90 L.Ed.2d 730 (1986). We also recognize that Perkins's burden—to show that pretrial publicity so saturated the community as to deny him a fair trial—is a very heavy burden. See Hunt, supra at 1043. "`Prejudicial' publicity usually must consist of much more than stating the charge and reporting on the pretrial and trial processes. `Publicity' and `prejudice' are not the same thing. Excess publicity does not automatically or necessarily mean that *1069 the publicity was prejudicial." 642 So.2d at 1043.

We do not find that the pretrial publicity in this case so "pervasively saturated" the community as to render the court proceedings nothing more than a "hollow formality." Oryang, supra, at 983 . Nor do we find that the publicity was so inherently prejudicial as to create a presumption of prejudice. To justify a change of venue, the publicity must be both extensive and sensational in nature. "If the media coverage is factual as opposed to inflammatory or sensational, this undermines any claim for a presumption of prejudice." United States v. Angiulo, 897 F.2d 1169, 1181 (1st Cir.), cert. denied, 498 U.S. 845 , 111 S.Ct. 130 , 112 L.Ed.2d 98 (1990). We have examined the media materials presented to the trial court, and we find that most of the reports were factual and relatively objective rather than accusatory, inflammatory, or sensational. Perkins has failed to prove that the media reports so inflamed or saturated the community as to create an emotional tide against him. Thus, he has not shown that the pretrial publicity in this case was so inherently or presumptively prejudicial as to constitute one of those "extreme situations" that warrant a presumption of prejudice.

In addition, we find no evidence of bias on the part of prospective jurors so pervasive as to indicate actual prejudice. On appeal, Perkins offers us nothing more than the assertion that the majority of the prospective jurors on the venire had heard about the case and that 25 of the 88 prospective jurors had been excused for cause based on their exposure to pretrial publicity. However, as the Alabama Supreme Court stated in Ex parte Grayson, 479 So.2d 76 (Ala.), cert. denied, 474 U.S. 865 , 106 S.Ct. 189 , 88 L.Ed.2d 157 (1985):

"`To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court....'

"The standard of fairness does not require jurors to be totally ignorant of the facts and issues involved. Murphy v. Florida, 421 U.S. 794, 799-800 , 95 S.Ct. 2031, 2035-2036 , 44 L.Ed.2d 589 (1975). Thus, `[t]he proper manner for ascertaining whether adverse publicity may have biased the prospective jurors is through the voir dire examination.' Anderson v. State, 362 So.2d 1296, 1299 (Ala.Crim.App.1978)."

479 So.2d at 80 . "`"The relevant question is not whether the community remembered the case, but whether the jurors at [the accused's] trial had such fixed opinions that they could not judge impartially the guilt of the defendant." Patton v. Yount, 467 U.S. 1025, 1035 , 104 S.Ct. 2885, 2891 , 81 L.Ed.2d 847 (1984).'" Siebert v. State, 562 So.2d 586, 589 (Ala.Cr.App. 1989), aff'd, 562 So.2d 600 (Ala.), cert. denied, 498 U.S. 963 , 111 S.Ct. 398 , 112 L.Ed.2d 408 (1990), quoting Fortenberry v. State, 545 So.2d 129 (Ala.Cr.App.1988), aff'd, 545 So.2d 145 (Ala.1989), cert. denied, 495 U.S. 911 , 110 S.Ct. 1937 , 109 L.Ed.2d 300 (1990). The jury venire in this case was extensively and thoroughly examined in an individual, sequestered setting regarding each prospective juror's knowledge about the case. While the majority of prospective jurors were aware of the abduction and murder of Mrs. Gilliam, and of the manhunt by law enforcement officials to capture Perkins following the murder, opinions of less than one-third (25 *1070 of 88) of the venire were actually tainted by pretrial publicity. See Russell v. State, 739 So.2d 58 (Ala.Cr.App.1999).

Perkins has failed to show either that the community was saturated with pretrial publicity or that actual prejudice existed among the jurors at his trial. The media coverage was not so sensational and inflammatory as to create a presumption of prejudice. The record contains no indication that any juror who sat on Perkins's jury had a fixed opinion of Perkins's guilt or that the verdict was not impartially rendered on the evidence presented at trial. Accordingly, we find that the trial court did not abuse its discretion in denying Perkins's motion for a change of venue.

VII.

Perkins contends that his right to due process, his right to counsel, and his right to a fair and impartial jury were violated when the circuit court clerk excused prospective jurors outside his presence. (Issue XXVI in Perkins's brief to this court.) Before trial, Perkins objected to the clerk's excusing of prospective jurors and requested that the trial judge personally handle all requests for excusal. The trial judge denied the request, stating that the clerk had been designated to handle such requests.

This claim has been decided adversely to Perkins on numerous occasions. Windsor v. State, 683 So.2d 1021 (Ala.1994), on remand to 683 So.2d 1027 (Ala.Cr.App.1994), aff'd, 683 So.2d 1042 (Ala.1996), cert. denied, 520 U.S. 1171 , 117 S.Ct. 1438 , 137 L.Ed.2d 545 (1997); Burgess v. State, [Ms. CR-93-2054, November 20, 1998] ___ So.2d ___ (Ala.Cr.App.1998); Slaton v. State, 680 So.2d 879 (Ala.Cr.App.1995), aff'd, 680 So.2d 909 (Ala.1996), cert. denied, 519 U.S. 1079 , 117 S.Ct. 742 , 136 L.Ed.2d 680 (1997); Dobyne v. State, 672 So.2d 1319 (Ala.Cr.App.), on return to remand, 672 So.2d 1353 (Ala.Cr.App.1994), aff'd, 672 So.2d 1354 (Ala.1995), cert. denied, 517 U.S. 1169 , 116 S.Ct. 1571 , 134 L.Ed.2d 670 (1996). Accordingly, we find no error here.

VIII.

Perkins contends that the trial court erred in permitting the victim's husband, Wally Gilliam, to sit at the prosecution's table during his trial. (Issue XV in Perkins's brief to this court.) He claims that Mr. Gilliam's presence "created the grave and impermissible risk that the jury would identify the prosecution of Roy Perkins with the suffering and desires of the victim's family." (Perkins's brief to this court, p. 86.) Moreover, he maintains that it was error for the prosecutor to introduce Mr. Gilliam to the venire as a "prosecuting witness." [4] (Perkins's brief to this court, p. 85.) Because Perkins did not object either to Mr. Gilliam's introduction to the jury or to Mr. Gilliam's presence at the prosecution's table during trial, we may review this claim only for plain error. Rule 45A, Ala.R.App.P.

Perkins's argument concerning the presence of a relative of the victim at the prosecution's table has been addressed and rejected by this court on numerous occasions. See Minor v. State, 780 So.2d 707 (Ala.Cr.App.1999); Maples v. State, 758 So.2d 1 (Ala.Cr.App.1999); Roy Burgess v. State, 811 So.2d 557 (Ala.Cr.App.1998); Harris v. State, 632 So.2d 503 (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 *1071 1004 (1995); Coral v. State, 628 So.2d 954, 984 (Ala.Cr.App.), aff'd on return to remand, 628 So.2d 988 (Ala.Cr.App.1992), aff'd, 628 So.2d 1004 (Ala.1993), cert. denied, 511 U.S. 1012 , 114 S.Ct. 1387 , 128 L.Ed.2d 61 (1994); Williams v. State, 601 So.2d 1062 (Ala.Cr.App.1991), aff'd, 662 So.2d 929 (Ala.), cert. denied, 506 U.S. 957 , 113 S.Ct. 417 , 121 L.Ed.2d 340 (1992); and Henderson v. State, 583 So.2d 276 (Ala.Cr. App.1990), aff'd, 583 So.2d 305 (Ala.1991), cert. denied, 503 U.S. 908 , 112 S.Ct. 1268 , 117 L.Ed.2d 496 (1992). In Henderson , this court stated:

"The presence of a victim seated at the counsel table for the prosecution is specifically provided for by `The Alabama Crime Victims' Court Attendance Act,' codified at §§ 15-14-50 et seq., Code of Alabama 1975. This act gives victims of a criminal offense the right to be present in the courtroom and seated alongside the prosecutor during the trial of the individual charged with that offense."

583 So.2d at 285-86.

Section 15-14-56(a), Ala.Code 1975, specifically provides:

"Whenever a victim is unable to attend such trial or hearing or any portion thereof by reason of death; disability; hardship; incapacity; physical, mental, or emotional condition; age; or other inability, the victim, the victim's guardian or the victim's family may select a representative who shall be entitled to exercise any right granted to the victim, pursuant to the provisions of this article."

The right of the victim or the victim's representative to sit at the counsel table applies in both capital and noncapital cases. Burgess, 811 So.2d at 575 , citing Coral, 628 So.2d at 984. Clearly, Mr. Gilliam had a right to be present in the courtroom and to sit at the prosecution's table during the trial of the man accused of murdering his wife.

Moreover, because a victim or a member of a victim's family is entitled to sit at the prosecution's table during a trial, "[l]ogically, it would therefore follow that there is nothing wrong with introducing that person to the jury." Henderson, 583 So.2d at 286. See also Slaton v. State, 680 So.2d 879, 906 (Ala.Cr.App.1995), aff'd, 680 So.2d 909 (Ala.1996), cert. denied, 519 U.S. 1079 , 117 S.Ct. 742 , 136 L.Ed.2d 680 (1997). Accordingly, there was no error, plain or otherwise, when the trial court introduced Mr. Gilliam to the venire or when it allowed Mr. Gilliam to sit at the prosecution's table during the trial.

IX.

Perkins contends that the trial court erred in granting the State's challenge for cause as to prospective juror C.R. on the ground that her ability to be fair and impartial was substantially impaired due to her views on the death penalty. (Issue XIX in Perkins's brief to this court.) He maintains that C.R. did not have a deep-seated opposition to capital punishment and at most had "vague personal feelings against capital punishment," which, he says, were insufficient to justify a challenge for cause. (Perkins's brief to this court, p. 106.) Because Perkins did not oppose the State's challenge as to C.R., we may review this claim only for plain error. Rule 45A, Ala.R.App.P.

After the 88-member venire was divided into panels, the trial court began the panel voir dire examination by asking each panel if anyone was so opposed to the death penalty that their views would substantially impair their duties as jurors. In response to this question, C.R. remained silent. During individual voir dire of C.R. by the prosecutor, C.R. indicated that she *1072 had no feelings about the death penalty one way or the other. However, in response to specific questioning by Perkins's counsel, C.R. stated that she was strongly opposed to the death penalty, but that she would consider the evidence on mitigating and aggravating circumstances as instructed by the trial court. Further questioning by the prosecutor revealed that C.R. was completely against the death penalty; she indicated that she could never personally return a verdict for death. In an attempt to rehabilitate C.R., Perkins's counsel then asked C.R. if she could impose a verdict of death for people such as Adolph Hitler, Jeffrey Dahmer, and Ted Bundy. C.R. indicated that she could sentence Hitler to death, but she refused to answer the question as to the others; instead, C.R. merely reiterated that she was "strongly against the death sentence." (R. 1132-33.)

"`"The proper standard for determining whether a prospective juror may be excluded for cause because of his or her views on capital punishment is `whether the juror's views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath."' Wainwright v. Witt, 469 U.S. 412, 424 , 105 S.Ct. 844, 852 , 83 L.Ed.2d 841 (1985); Gray v. Mississippi, 481 U.S. 648 [at 657-58], 107 S.Ct. 2045, 2051 , 95 L.Ed.2d 622 (1987). `The crucial inquiry is whether the veniremen could follow the court's instructions and obey his oath, notwithstanding his views on capital punishment.' Dutton v. Brown, 812 F.2d 593, 595 (10th Cir.), cert. denied, Dutton v. Maynard, 484 U.S. 836 , 108 S.Ct. 116 , 98 L.Ed.2d 74 (1987). A juror's bias need not be proved with `unmistakable clarity' because `juror bias cannot be reduced to question and answer sessions which obtain results in the manner of a catechism.' Id.

"`"A trial judge's finding on whether or not a particular juror is biased `is based upon determination of demeanor and credibility that are peculiarly within a trial judge's province.' Witt, 469 U.S. at 428 , 105 S.Ct. at 854 . That finding must be accorded proper deference on appeal. Id. `A trial court's ruling on challenges for cause based on bias [are] entitled to great weight and will not be disturbed on appeal unless clearly shown to be an abuse of discretion.' Nobis v. State, 401 So.2d 191, 198 (Ala.Cr.App.), cert. denied, Ex parte Nobis, 401 So.2d 204 (Ala.1981)."

"` Martin v. State, 548 So.2d 488, 490-91 (Ala.Cr.App.1988), affirmed, 548 So.2d 496 (Ala.1989), cert. denied, 493 U.S. 970 , 110 S.Ct. 419 , 107 L.Ed.2d 383 (1989). "[A] blanket declaration of support of or opposition to the death penalty is not necessary for a trial judge to disqualify a juror." Ex parte Whisenhant, 555 So.2d 235, 241 (Ala.1989), cert. denied, 496 U.S. 943 , 110 S.Ct. 3230 , 110 L.Ed.2d 676 (1990).'"

Dallas v. State, 711 So.2d 1101, 1107 (Ala. Cr.App.1997), aff'd, 711 So.2d 1114 (Ala.), cert. denied, 525 U.S. 860 , 119 S.Ct. 145 , 142 L.Ed.2d 118 (1998), quoting Taylor v. State, 666 So.2d 36, 47 (Ala.Cr.App.1994), aff'd, 666 So.2d 73 (Ala.1995), cert. denied, 516 U.S. 1120 , 116 S.Ct. 928 , 133 L.Ed.2d 856 (1996).

Considering C.R.'s initial responses regarding the death penalty—that she had no feelings about it one way or the other— together with her subsequent vacillating answers—first, that she could consider the death penalty, then that she could never impose the death penalty—it appears that the trial court was unsure whether C.R.'s statement to Perkins's counsel that she *1073 could consider the death penalty was candid, or rather was merely an attempt to please Perkins's counsel. [5] See, e.g., Hyde v. State, 778 So.2d 199 (Ala.Cr.App.1998). "`The trial judge was in the best position to evaluate the demeanor of [C.R.] and to "hear not only the words recorded by the court reporter but also the meaning actually conveyed by [C.R.]."'" Drinkard v. State, 777 So.2d 225, 250 (Ala.Cr.App. 1998), quoting Stewart v. State, 730 So.2d 1203, 1226 (Ala.Cr.App.1996), quoting in turn, Clark v. State, 443 So.2d 1287, 1289 (Ala.Cr.App.1983). "It is sufficient if the trial court, after taking into consideration the veniremember's answers and demeanor, `is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law.'" Williams v. State, 601 So.2d 1062, 1069 (Ala.Cr.App.1991), aff'd, 662 So.2d 929 (Ala.), cert. denied, 506 U.S. 957 , 113 S.Ct. 417 , 121 L.Ed.2d 340 (1992), quoting Wainwright v. Witt, 469 U.S. 412, 426 , 105 S.Ct. 844, 853 , 83 L.Ed.2d 841 (1985). Based on the record before us, we find no abuse of the trial court's discretion in granting the State's challenge for cause as to prospective juror C.R. Therefore, there is no error, plain or otherwise, as to this claim.

X.

Perkins contends that the trial court erred by denying 14 of his challenges for cause as to prospective jurors. (Issue XXIII in Perkins's brief to this court.)

We note that the trial court granted 30 of Perkins's challenges for cause. We also note that several of the reasons Perkins raises on appeal to support his contention that these 14 jurors should have been excused for cause were never presented to the trial court, and therefore, may be reviewed only for plain error. Rule 45A, Ala.R.App.P. Likewise, some of the reasons Perkins asserted at trial to support his challenges for cause have been abandoned on appeal. Regardless of whether the reasons were raised at trial, we find no error, plain or otherwise, in the trial court's denial of these 14 challenges for cause for any reason.

"To justify a challenge for cause, there must be a proper statutory ground or `"some matter which imports absolute bias or favor, and leaves nothing to the discretion of the trial court."' Clark v. State, 621 So.2d 309, 321 (Ala.Cr.App.1992)(quoting Nettles v. State, 435 So.2d 146, 149 (Ala.Cr.App. 1983)). This Court has held that `once a juror indicates initially that he or she is biased or prejudiced or has deep-seated impressions' about a case, the juror should be removed for cause. Knop v. McCain, 561 So.2d 229, 234 (Ala.1989). The test to be applied in determining whether a juror should be removed for cause is whether the juror can eliminate the influence of his previous feelings and render a verdict according to the evidence and the law. Ex parte Taylor, 666 So.2d 73, 82 (Ala.1995). A juror `need not be excused merely because [the juror] knows something of the case to be tried or because [the juror] has formed some opinions regarding it.' Kinder v. State, 515 So.2d 55, 61 (Ala. Cr.App.1986). Even in cases where a potential juror has expressed some preconceived opinion as to the guilt of the accused, the juror is sufficiently impartial if he or she can set aside that opinion and render a verdict based upon the evidence in the case. Kinder , at 60-61. In order to justify disqualification, a juror `"must have more than a bias, or *1074 fixed opinion, as to the guilt or innocence of the accused"'; `"[s]uch opinion must be so fixed ... that it would bias the verdict a juror would be required to render."' Oryang v. State, 642 So.2d 979, 987 (Ala.Cr.App.1993) (quoting Siebert v. State, 562 So.2d 586, 595 (Ala.Cr. App.1989))."

Ex parte Davis, 718 So.2d 1166, 1171-72 (Ala.1998), cert. denied, 525 U.S. 1179 , 119 S.Ct. 1117 , 143 L.Ed.2d 112 (1999).

In Harris v. State, 632 So.2d 503 (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), we stated:

"`"The test to be applied is can the juror eliminate the influence of his scruples and render a verdict according to the evidence. Ordinarily a juror is not disqualified where it appears that he is willing to follow the instructions of law given by the trial court and is able to decide the case impartially according to the evidence notwithstanding his scruples. The determination of this question is based on the juror's answers and demeanor and is within the sound discretion of the trial judge. Tidmore [v. City of Birmingham, 356 So.2d 231 (Ala.Cr. App.1977), cert. denied, 356 So.2d 234 (Ala.1978) ]. A juror is incompetent whose answers show that he would follow his own views regardless of the instructions of the court. Watwood v. State, 389 So.2d 549, 550 (Ala.Cr. App.), cert. denied, 389 So.2d 552 (Ala. 1980).

"` Barbee v. State, 395 So.2d 1128, 1130-31 (Ala.Cr.App.1981)....

"`"Thus, where a juror states that he has opinions but that he would try the case fairly and impartially according to the law and the evidence and that he would not allow his opinion to influence his decision, it is not error for a trial judge to deny a challenge for cause. Howard v. State, 420 So.2d 828, 831 (Ala.Cr.App.1982). `A juror who brings his thoughts out into the open in response to voir dire questions may be the one who later "bends over backwards" to be fair....' Clark v. State, 443 So.2d 1287, 1289 (Ala.Cr. App.1983)." " Mahan v. State, 508 So.2d 1180 (Ala.Cr.App.1986)."'

" Kinder v. State, 515 So.2d 55, 60-61 (Ala.Cr.App.1986)."

632 So.2d at 520-21.

Perkins's predominant argument on appeal is that eight prospective jurors whom he challenged should have been excused for cause because, he says, they had been exposed to pretrial publicity concerning the case. Although all of these jurors stated honestly during voir dire examination that they had read or heard something about the case, all specifically stated that they could set aside what they had read or heard and could render a fair and impartial verdict based solely on the evidence presented at trial. "[A] defendant is not entitled to jurors who are totally ignorant of the facts and issues involved in the case." Neal v. State, 731 So.2d 609, 613 (Ala.Cr.App.1997), aff'd, 731 So.2d 621 (Ala.), cert. denied, 527 U.S. 1027 , 119 S.Ct. 2377 , 144 L.Ed.2d 780 (1999).

As to Perkins's remaining complaints, we have thoroughly reviewed the record of the voir dire examination, and find no evidence that any of the jurors Perkins challenges had such a bias or fixed opinion so as to impair their ability to be fair and impartial in rendering a verdict. All 14 jurors stated during voir dire examination that they could be fair and impartial, that they could follow the law as the court instructed them, that they could render a verdict based solely on the evidence presented, and that they could set aside any personal views they may have had and not *1075 let those views influence their decision in any way.

Thus, we find no error, plain or otherwise, in the trial court's denial of Perkins's 14 challenges for cause.

XI.

Perkins contends that the trial court erred in denying his motion made pursuant to Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), because, he says, he established a prima facie case of racial discrimination in the selection of the jury. (Issue XVI in Perkins's brief to this court.) Specifically, he contends that the State's use of 10 of its 18 peremptory strikes to remove blacks from the venire established a prima facie case of racial discrimination and that the trial court's reference, when it denied his motion, to the fact that the percentage of blacks on the jury exceeded the percentage of blacks on the venire violated the principle announced by the Alabama Supreme Court in Ex parte Thomas, 659 So.2d 3 (Ala.1994).

In Thomas, the Alabama Supreme Court held that the mere fact that the percentage of blacks on the jury is equal to or exceeds the percentage of blacks on the venire cannot negate what would otherwise be a prima facie case of racial discrimination. In other words, if a trial court would otherwise have found a prima facie case of racial discrimination, the court cannot find that no prima facie case exists solely because the percentage of blacks on the jury exceeds the percentage of blacks on the venire. Implicit in this holding is the requirement that a prima facie case of racial discrimination was actually established before the trial court used "statistics" to negate it. Thus, contrary to Perkins's contention, Thomas does not prevent the trial court from considering statistics, along with the numerous other factors set out in Ex parte Branch, 526 So.2d 609 (Ala.1987), in denying a defendant's Batson motion. In Thomas, the Supreme Court specifically stated:

"We emphasize that our disapproval of the construction that has been given Harrell II [ Harrell v. State, 571 So.2d 1270 (Ala.1990), cert. denied, 499 U.S. 984 , 111 S.Ct. 1641 , 113 L.Ed.2d 736 (1990)] does not mean that an increased percentage of blacks on the jury can never be a circumstance to be considered in ruling whether a discriminatory use of peremptory strikes has been shown. In a proper case, the fact that the percentage of blacks on the jury is higher than the percentage of blacks on the venire may be a factor to be considered in deciding whether a prima facie case of discrimination has been made or rebutted. However, where, as here, the prosecutor has used such a large portion of his strikes against blacks as to indicate a pattern of striking blacks from the venire, the fact that the jury has a higher percentage of blacks than the venire had does not mean that no prima facie case of discrimination has been made."

659 So.2d at 8 (emphasis added).

In Thomas, the Supreme Court found that the State's use of 9 of its 10 peremptory strikes to remove blacks from the venire was, alone, sufficient to establish a prima facie case of racial discrimination. Thus, the Court concluded, the trial court's finding that there was no prima facie case solely because the percentage of blacks on the jury exceeded the percentage of blacks on the venire was clearly erroneous. Here, unlike in Thomas, the State's use of 10 of its 18 peremptory strikes to remove blacks from the venire was not sufficient, in and of itself, to establish a prima facie case of racial discrimination. Contrary to Perkins's contention, *1076 the prosecutor did not use "such a large portion of his strikes against blacks as to indicate a pattern of striking blacks from the venire." Thomas, 659 So.2d at 8 . It is well established that the mere fact that the prosecutor used one or more of his strikes to remove blacks is not sufficient to establish a prima facie case of discrimination. In Harrell v. State, 555 So.2d 263, 268 (Ala.1989), on return to remand, 571 So.2d 1269 (Ala.Cr.App.), writ quashed, 571 So.2d 1270 (Ala.1990), cert. denied, 499 U.S. 984 , 111 S.Ct. 1641 , 113 L.Ed.2d 736 (1991), the Alabama Supreme Court stated:

"The defendant may not prove his prima facie case solely from the fact that the prosecutor struck one or more blacks from his jury. United States v. Lane, 866 F.2d 103, 106 (4th Cir.1989). The defendant must offer some evidence in addition to the striking of blacks that would raise the inference of discrimination. In determining whether the evidence is sufficient to create an inference of discrimination, the court should look to the factors listed in Branch, supra, for guidance."

Perkins failed to offer the trial court— and has failed to offer this court—any evidence, other than the number of strikes used by the prosecutor to remove blacks, that would raise an inference of discrimination and establish a prima facie case. After thoroughly reviewing the record in light of the factors set out in Branch, supra, we find no evidence that the black veniremembers who were struck by the State shared only the characteristics of race. [6] We find nothing in the type or manner of the prosecutor's questions during the extensive voir dire examination that indicates any intent to discriminate against black jurors; nor do we find a lack of meaningful voir dire directed at black jurors. On the contrary, it appears that the prosecutor thoroughly questioned both black and white jurors alike. Furthermore, Perkins has provided no evidence that the prosecutor in this case had a history of misusing peremptory challenges so as to discriminate against blacks. [7] In essence, Perkins offers this court nothing, other than the number of blacks struck, to support his contention that the State improperly struck jurors based solely on their race. "Without more, we do not find that the number of strikes this prosecutor used to remove [blacks] from the venire is sufficient to establish a prima facie case of [racial] discrimination." Ex parte Trawick, 698 So.2d 162, 168 (Ala.), cert. denied, 522 U.S. 1000 , 118 S.Ct. 568 , 139 L.Ed.2d 408 (1997).

Because we find that Perkins failed to establish a prima facie case of *1077 racial discrimination through the pattern of the prosecutor's strikes, or any of the other factors set out in Branch, supra, the trial court's reference, in response to Perkins's purely statistical argument at trial, to the fact that the percentage of blacks on the jury exceeded the percentage of blacks on the venire did not violate the Supreme Court's holding in Thomas. Clearly, the trial court was merely responding in-kind to Perkins's purely statistical argument by also referring to statistics, a factor that the Alabama Supreme Court specifically stated could be considered in determining whether a prima facie case existed. Such a reference to statistics is not an indication that Perkins had established a prima facie case or that the trial court refused to make that finding solely because of statistics— the practice expressly disapproved of in Thomas. Rather, this reference indicates that the trial court, faced with an argument based solely on numbers, decided to frame its response also in terms of numbers. Because Perkins failed to establish a prima facie case of racial discrimination in the first place, the trial court could not have, as Perkins contends, violated the principles in Thomas by negating a prima facie case through the use of statistics. In a case such as this, where the trial court cites statistics in response to a defendant's purely statistical Batson motion, the trial court does not violate the principles of Thomas when the record clearly indicates that the defendant failed to establish a prima facie case of racial discrimination. Accordingly, we find that the trial court's denial of Perkins's Batson motion was not clearly erroneous.

XII.

Perkins contends that the State improperly used its peremptory strikes to remove male jurors from the venire, in violation of the principles of Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), and J.E.B. v. Alabama, 511 U.S. 127 , 114 S.Ct. 1419 , 128 L.Ed.2d 89 (1994). (Issue XVII in Perkins's brief to this court.) Because Perkins did not raise a J.E.B. objection at trial, we may review this claim only for plain error. Rule 45A, Ala.R.App.P. In a Batson claim, the plain-error analysis is triggered only if the record supports an inference that the prosecution engaged in purposeful discrimination. See Ex parte Watkins, 509 So.2d 1074 (Ala.), cert. denied, 484 U.S. 918 , 108 S.Ct. 269 , 98 L.Ed.2d 226 (1987).

On appeal, the only evidence Perkins offers in support of his claim that the prosecutor discriminated against men is that the prosecutor used 11 of his 18 peremptory challenges to remove men from the venire. In Ex parte Trawick, 698 So.2d 162 (Ala.), cert. denied, 522 U.S. 1000 , 118 S.Ct. 568 , 139 L.Ed.2d 408 (1997), the Alabama Supreme Court held:

"A party making a Batson or J.E.B. challenge bears the burden of proving a prima facie case of discrimination and, in the absence of such proof, the prosecution is not required to state its reasons for its peremptory challenges. Ex parte Branch, 526 So.2d 609 (Ala.1987); Ex parte Bird, 594 So.2d 676 (Ala.1991). In Branch , this Court discussed a number of relevant factors a defendant could submit in attempting to establish a prima facie case of racial discrimination; those factors are likewise applicable in the case of a defendant seeking to establish gender discrimination in the jury selection process. Those factors, stated in a manner applicable to gender discrimination, are as follows: (1) evidence that the jurors in question shared only the characteristic of gender and were in all other respects as heterogenous as the community as a whole; (2) a pattern of strikes against jurors of one gender on the particular venire; (3) the past conduct *1078 of the state's attorney in using peremptory challenges to strike members of one gender; (4) the type and manner of the state's questions and statements during voir dire; (5) the type and manner of questions directed to the challenged juror, including a lack of questions; (6) disparate treatment of members of the jury venire who had the same characteristics or who answered a question in the same manner or in a similar manner; and (7) separate examination of members of the venire. Additionally, the court may consider whether the State used all or most of its strikes against members of one gender."

698 So.2d at 167-68. See also Willie Burgess v. State, [Ms. CR-93-2054, November 20, 1998] ___ So.2d ___, ___ (Ala.Cr.App. 1998).

Here, we have thoroughly reviewed the record in light of the factors set out in Branch , and we find no evidence that the male veniremembers who were struck by the State shared only the characteristics of gender. We find nothing in the type or manner of the prosecutor's questions during the extensive voir dire examination that indicates any intent to discriminate against male jurors; nor do we find a lack of meaningful voir dire directed at male jurors. On the contrary, it appears that male and female jurors alike were thoroughly questioned regarding their personal opinions on issues ranging from circumstantial evidence to the death penalty. Furthermore, Perkins has provided no evidence that the prosecutor in this case had a history of misusing peremptory challenges so as to discriminate against either gender. Although Perkins has raised a claim of gender discrimination on appeal, that is all he has done—raise the claim. He offers this court nothing, other than the number of men struck, to support his contention that the State improperly struck jurors based solely on their gender. "Without more, we do not find that the number of strikes this prosecutor used to remove [men] from the venire is sufficient to establish a prima facie case of gender discrimination." Ex parte Trawick, 698 So.2d at 168. See also Armstrong v. State, 710 So.2d 531 (Ala.Cr.App.1997); Merriweather v. State, 629 So.2d 77 (Ala.Cr.App. 1993). Accordingly, we find no plain error as to this claim.

XIII.

Perkins contends that his right to a fair trial and his due process rights were violated because, he says, he was forced to wear a leg restraint during his trial. (Issue VII in Perkins's brief to this court.) Specifically, he contends that the leg restraint, put on by the sheriff's department as a security measure, made his movements "visibly awkward," limited his range of motion, and prejudiced the jury against him. (Perkins's brief to this court, p. 64.) Because Perkins never received an adverse ruling from the trial court as to this issue, we may review this claim only under the plain-error rule. Rule 45A, Ala. R.App.P.

A review of the record reveals the following facts relevant to this claim. During the final day of the voir dire examination of the venire, Perkins's counsel objected to the leg restraint, arguing that it caused Perkins to limp, and that it unduly focused the jury's attention on the fact that he had been shot in the leg. (R. 1422-28.) Perkins's counsel requested that the restraint be removed. Because at that time the sheriff was unavailable to be questioned concerning the security measure, the court deferred ruling on Perkins's motion until the following morning. The next morning, after voir dire had ended, but before the jury had been struck, the trial court held a hearing on whether the leg restraint should be removed. (R. 1601-06.) After *1079 the hearing, the court granted Perkins's motion to have the leg restraint removed. (R. 1606.) Following the hearing, the striking of the jury continued. After the jury was struck, a recess was taken to allow the jurors to make arrangements for their sequestration. While the trial court was instructing the jurors regarding the recess, Perkins's counsel requested to approach the bench. The following then occurred:

"[Perkins's counsel]: The Sheriff's Department has to take Roy to get something to eat.

"[Perkins's counsel]: And to take the device off.

"[Perkins's counsel]: So we probably need to have the jurors somewhere other than the court, someplace in your office.

"[Prosecutor]: We can't here?

"[The Court]: He was saying that the defendant is going to have to go get something to eat and have the brace taken off. So we might just can put them back there and let them be organizing and finding out what can be done back there."

(R. 1695.) After the recess, the trial began.

Contrary to Perkins's contention, there is nothing in the record to indicate that he was forced to wear the leg restraint throughout his trial. The above-quoted portion of the record reveals that the restraint was removed during the recess before the trial began—the first practical opportunity to remove the restraint following the court's ruling. The remainder of the record, however, is silent regarding this issue; there is nothing in the record to show whether the restraint was again placed on Perkins at any point later in the trial.

"`"This court cannot predicate error on matters not shown by the record, nor can we presume error from a silent record." Smelcher v. State, 520 So.2d 229 (Ala.Cr.App.1987); Abbott v. State, 494 So.2d 789 (Ala.Cr.App.1986). "Where the record is silent on appeal, it will be presumed that what ought to have been done was not only done, but rightly done." Jolly v. State, 405 So.2d 76 (Ala. Cr.App.1981); Watson v. State, 398 So.2d 320 (Ala.Cr.App.1980), writ denied, 398 So.2d 332 (Ala.), cert. denied, 452 U.S. 941 , 101 S.Ct. 3085 , 69 L.Ed.2d 955 (1981).'"

Gaddy v. State, 698 So.2d 1100, 1130 (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), quoting Owens v. State, 597 So.2d 734, 736 (Ala.Cr.App. 1992). The fact that the restraint is never again mentioned in the record, combined with the lack of any objection by Perkins's counsel at a subsequent point in the trial, even though this was obviously an important issue to Perkins, indicates that the restraint was, in fact, never put back on Perkins after it was initially removed pursuant to the court's order.

We point out, however, that even if Perkins had been forced to wear the restraint throughout the trial, there would have been no error. It is not always reversible error for a defendant to be handcuffed or shackled in front of the jury. See Brock v. State, 555 So.2d 285 (Ala.Cr. App.1989), on return to remand, 580 So.2d 1390 (Ala.Cr.App.1991); Campbell v. State, 484 So.2d 1168 (Ala.Cr.App.1985). Here, it is clear from the record that the restraint was not visible to the jury; it was, apparently, placed under Perkins's pants. In discussing Perkins's objection, the trial court specifically stated, "I have not been able to see any evidence of any device except the fact that he [Perkins] may be walking a little differently." (R. 1425.) In addition, Perkins's counsel admitted that, *1080 after getting accustomed to the restraint, Perkins "was walking better" than he had when he first got the restraint. (R. 1602.) Under these circumstances, it would not have been error to require Perkins to wear the restraint.

Based on the foregoing, we find no error, plain or otherwise, regarding this claim.

XIV.

Perkins contends that the trial court erred by allowing the State to introduce evidence regarding several collateral bad acts and crimes allegedly committed by him in the two weeks preceding Mrs. Gilliam's abduction and murder. (Issue I in Perkins's brief to this court.)

A.

First, Perkins contends that the trial court erred by allowing the State to present the testimony of several witnesses that tended to show that he had raped two women, B.P. and D.W., on August 1, 1990, and August 6, 1990, respectively.

State's witness B.P. testified that on August 1, 1990, at approximately 6:00 p.m., Perkins, whom B.P. knew personally, came to her home in Alberta City in Tuscaloosa County, and asked her to ride with him to Fayette County to return the car he was driving to his friend. B.P. stated that she agreed to ride with Perkins and that she and Perkins were drinking beer and smoking marijuana in the car when Perkins suddenly turned off the main road onto a dirt road. According to B.P., Perkins told her that he and some friends had a "camp house" in the woods, and that he wanted to see if anyone was there before driving on. (R. 1894.) Perkins then pulled up next to a white building, honked the horn, and hollered out the car window. When no one came out of the building, B.P. asked Perkins to take her home. Perkins agreed, but told B.P. that she would have to drive because he was too drunk. B.P. got out of the passenger side of the car and walked around the car to the driver's side. Perkins likewise got out of the car, and when B.P. turned her back to him to get in the driver's seat, Perkins grabbed her and put a knife to her throat. B.P. testified that the knife was approximately 12 inches long and that it looked like a hunting knife.

According to B.P., Perkins removed a string from the bottom of her shirt, tied her hands behind her back, and led her into the white building, where he forced her to lie on a mattress on the floor. B.P. testified that Perkins then removed her clothes and began to masturbate. B.P. attempted to convince Perkins to let her go, but when she did, Perkins threatened to kill her. At that point, B.P. said, she asked Perkins for a cigarette; Perkins agreed, and he walked B.P. outside to the car to get her a cigarette. He then told B.P. to go back inside the building; B.P. complied. B.P. stated that Perkins remained outside the building, and she then used her lit cigarette to burn the string around one of her wrists. B.P. testified that she was unable to burn the string around both wrists because Perkins came back inside the building.

B.P. testified that when Perkins returned to the building, he raped her. Afterwards, B.P. said that Perkins apologized for raping her, told her that he did not mean to do it, and asked for her forgiveness. B.P. stated that Perkins then lay beside her on the mattress and, after a period of time, passed out. After Perkins passed out, B.P. retrieved a shotgun that was standing against a wall in the building and hit Perkins on the head. B.P. stated that she then grabbed her clothes and ran to the car. According to B.P., as she was trying to start the car, Perkins ran out of the building and toward the car. B.P. got *1081 the car started before Perkins could reach her, and drove to Miller's Grocery in Northport, where she telephoned the police. B.P. stated that she arrived at Miller's Grocery between 1:30 a.m. and 2:00 a.m. on August 2, 1990.

State's witness William Carl Gaddy, a deputy with the Tuscaloosa County Sheriff's Department, testified that he responded to a call from Miller's Grocery on August 2, 1990. He stated that he arrived at the grocery at approximately 1:29 a.m. and spoke with B.P. He stated that he noticed B.P. had marks on her wrists and bruises on her right arm.

State's witness Mark Seigel, an emergency room physician at Druid City Hospital in Tuscaloosa, testified that he examined B.P. on August 2, 1990. Dr. Seigel stated that he noticed that B.P. had reddened and "abraded areas" on both wrists, which, he said, were consistent with having been tied or bound. (R.2007.) In addition, Dr. Seigel completed a rape kit on B.P. According to Deborah Herren, a registered nurse who was present when the rape kit was completed on B.P., she gave the kit to Sergeant J.R. Simpson. Sergeant Simpson testified that he transported B.P.'s rape kit to Dr. John McDuffie at the Alabama Department of Forensic Sciences.

State's witness D.W. testified that on August 6, 1990, at approximately 5:00 p.m., she met a friend in the woods near Perkins's grandmother's house. According to D.W., who knew Perkins from elementary school, she and her friend talked for awhile, and then the friend left. D.W. stated that when her friend left, she got into her car to leave, but then got out again to go to the bathroom. According to D.W., when she got out of her car, Perkins grabbed her from behind and put a knife to her throat. She stated that the knife was approximately 12 inches long and that it appeared to be a hunting knife. D.W. testified that Perkins tied her hands behind her back with rope he had and forced her to lie on the front seat of her car. Perkins then drove her car across a field to a white building, where he dragged a mattress outside. D.W. stated that Perkins forced her to lie on the mattress, and that he then raped and sodomized her repeatedly. Afterwards, Perkins drove D.W. down a dirt road, got out of her car, and allowed D.W. to leave. D.W. immediately drove to her brother's house, where she notified the police.

D.W. testified that she gave a statement to Vernon Hudson, chief deputy of the Fayette County Sheriff's Department, while at her brother's house. According to D.W., she identified Perkins as her assailant. Hudson corroborated D.W.'s testimony. On cross-examination, D.W. testified that the written statement she gave to police did not include Perkins's name as her assailant, even though her oral statement did. D.W. also stated on cross-examination that she believed that Perkins had pleaded guilty to her rape and that he had been sentenced to 99 years' imprisonment. [8]

State's witness Paul Ashley, an emergency room physician at Fayette County Hospital, testified that he examined D.W. on the night of August 6, 1990. Dr. Ashley stated that he completed a rape kit on D.W. which he gave to Jean Perkins, a registered nurse. Nurse Perkins testified that she, in turn, gave the rape kit to Hudson. Hudson stated that, after receiving the rape kit from Nurse Perkins, he *1082 turned it over to J.W. Stough, who, at the time, was a deputy sheriff with the Fayette County Sheriff's Department. Stough testified that he transported D.W.'s rape kit to the Alabama Department of Forensic Sciences. In addition, Stough testified that he later had occasion to go to the white building described by a rape victim. In the building, Stough found a mattress, an old chair, and some bailing twine.

State's witness Phyllis T. Rollan, a forensic serologist with the Alabama Department of Forensic Sciences, testified that on August 28, 1990, she received the rape kits performed on B.P. and D.W. Rollan testified that she tested the kits and found the presence of semen in each one. According to Rollan, the DNA of the semen found in both rape kits was consistent with Perkins's DNA. Rollan stated that, statistically, Perkins's DNA type could be located in 1 in 33 members of the white population.

Before trial, Perkins filed a motion in limine seeking to prevent the State from introducing evidence of any collateral crimes committed by Perkins, including the rape of B.P. and the alleged rape of D.W. The trial court denied the motion without stating a reason. At trial, Perkins's counsel objected to the testimony of B.P., Gaddy, Dr. Seigel, Nurse Herren, Simpson, D.W., Hudson, Dr. Ashley, Nurse Perkins, Stough, and Rollan, regarding the alleged rapes. The objections were overruled, and the trial court admitted the testimony, again without stating a reason.

On appeal, Perkins contends that evidence of the alleged rapes was inadmissible because, he says, it was not probative of any issue in the case, it did not fall within any of the exceptions to the exclusionary rule, and it was offered solely to show his bad character or his propensity to commit criminal acts. Moreover, he maintains that, even if the evidence was probative of an issue in the case and did fall within one of the exceptions to the exclusionary rule, its prejudicial effect far outweighed its probative value, and, he says, the detail with which the State proved the alleged prior rapes "exceeded all permissible bounds of relevancy." (Perkins's brief to this court, pp. 11-12.)

"On the trial for the alleged commission of a particular crime, evidence of the accused's having committed another act or crime is not admissible if the only probative function of such evidence is to prove bad character and the accused's conformity therewith. This is a general exclusionary rule which prevents the introduction of prior acts or crimes for the sole purpose of suggesting that the accused is more likely to be guilty of the crime in question....

". . . .

"The foregoing exclusionary rule does not work to exclude evidence of all crimes or acts, only such as are offered to show the defendant's bad character and conformity therewith on the occasion of the now-charged crime. If the defendant's commission of another crime or misdeed is relevant for some other material purpose in the case then it may be admitted."

Charles W. Gamble, McElroy's Alabama Evidence, § 69.01(1) at 300-01 (5th ed.1996) (footnotes omitted).

"[E]vidence of collateral offenses may be admissible under certain exceptions to the exclusionary rule or for `other purposes' than to prove the accused's guilt." Williamson v. State, 629 So.2d 777, 780 (Ala. Cr.App.1993). In 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), this court discussed the exceptions to the general exclusionary rule:

*1083 "Numerous Alabama cases list the exceptions to the general exclusionary rule, or tests for relevancy, whereby evidence of collateral crimes or acts may be admitted. These exceptions include the following:

"`(1) Relevancy to prove physical capacity, skill, or means to commit the now-charged crime; (2) part of the res gestae or part of a continuous transaction; (3) relevancy to prove scienter or guilty knowledge; (4) relevancy to prove criminal intent; (5) relevancy to prove plan, design, scheme, or system; (6) relevancy to prove motive; (7) relevancy to prove identity; (8) relevancy to rebut special defenses; and (9) relevancy in various particular crimes.'

" Nelson v. State, 511 So.2d 225, 233 (Ala.Cr.App.1986). See also Twilley v. State, 472 So.2d 1130 (Ala.Cr.App.1985); Brewer v. State, [ 440 So.2d 1155 (Ala.Cr. App.), cert. denied, 440 So.2d 1155 (1983)]; Miller v. State, 405 So.2d 41 (Ala.Cr.App.1981); Thompson v. State, 374 So.2d 377 (Ala.Cr.App.1978), aff'd, 374 So.2d 388 (Ala.1979); McMurtrey v. State, 37 Ala.App. 656 , 74 So.2d 528 (1954); Wilkins v. State, 29 Ala.App. 349 , 197 So. 75 , cert. denied, 240 Ala. 52 , 197 So. 81 (1940); [Charles W. Gamble,] McElroy's [Alabama Evidence] §§ 69.01(1)-(11) [ (3d Ed.1977)]; Schroeder, Evidentiary Use in Criminal Cases of Collateral Crimes and Acts: A Comparison of the Federal Rules and Alabama Law, 35 Ala.L.Rev. 241 (1984). 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); Noble v. State, 253 Ala. 519 , 45 So.2d 857 (1950).

"`All evidence is relevant which throws, or tends to throw, any light upon the guilt or the innocence of the prisoner. And relevant evidence which is introduced to prove any material fact ought not to be rejected merely because it proves, or tends to prove, that at some other time or at the same time the accused has been guilty of some other separate, independent and dissimilar crime. The general rule is well settled that all evidence must be relevant. If evidence is relevant upon the general issue of guilt, or innocence, no valid reason exists for its rejection merely because it may prove, or may tend to prove, that the accused committed some other crime, or may establish some collateral and unrelated fact. Evidence of other acts to be available must have some logical connection and reveal evidence of knowledge, design, plan, scheme, or conspiracy of the crime charged; or circumstantial evidence of identity of the person charged with the crime; or tends to corroborate direct evidence admitted.'

"Underhill, Criminal Evidence § 154 (3d ed. 1923)."

521 So.2d at 1025-26 . "`The decision whether to allow or not to allow evidence of collateral crimes or acts as part of the State's case-in-chief rests within the sound discretion of the trial judge.'" Akin v. State, 698 So.2d 228, 234 (Ala.Cr.App. 1996), cert. denied, 698 So.2d 238 (Ala. 1997), quoting Blanco v. State, 515 So.2d 115, 120 (Ala.Cr.App.1987).

In Bradley v. State, 577 So.2d 541 (Ala. Cr.App.1990), this court stated:

"We have recognized that the list of traditionally recognized exceptions is not exhaustive and fixed. See Nicks v. State, 521 So.2d [1018] at 1025 [(Ala.Cr.App 1987), aff'd, 521 So.2d 1035 *1084 (Ala.), cert. denied, 487 U.S. 1241 , 108 S.Ct. 2916 , 101 L.Ed.2d 948 (1988) ]. `It must ever be borne in mind that the state may prove the accused's commission of another crime if such other crime is relevant for any purpose other than that of showing his guilt through the medium of bad character.' C. Gamble, McElroy's Alabama Evidence § 69.0(1) (3d ed. 1977) (quoting Mr. Justice McElroy, 2nd ed.)

"`In all instances, the question is whether the proposed evidence is primarily to prove the commission of another disconnected crime, or whether it is material to some issue in the case. If it is material and logically relevant to an issue in the case, whether to prove an element of the crime, or to controvert a material contention of defendant, it is not inadmissible because in making the proof the commission of an independent disconnected crime is an inseparable feature of it.'

" Snead v. State, 243 Ala. 23, 24 , 8 So.2d 269, 270 (1942). However, even though evidence of collateral crimes or acts may be relevant to an issue other than the defendant's character, it should be excluded if `it would serve comparatively little or no purpose except to arouse the passion, prejudice, or sympathy of the jury,' Spellman v. State, 473 So.2d 618, 621 (Ala.Cr.App.1985), or put another way, `unless its probative value is "substantially outweighed by its undue prejudice,"' United States v. Stubbins, 877 F.2d 42, 43 (11th Cir.), cert. denied, 493 U.S. 940 , 110 S.Ct. 340 , 107 L.Ed.2d 328 (1989) (quoting United States v. Beechum, 582 F.2d 898 (5th Cir.1978) (en banc), cert. denied, 440 U.S. 920 , 99 S.Ct. 1244 , 59 L.Ed.2d 472 (1979)).

". . . .

"Rather than uphold the trial court by straining to neatly fit the evidence of the three prior incidents into the narrow confines of the traditionally recognized categories, we have chosen to review the court's ruling by determining whether the evidence was `material and logically relevant' to an issue or issues in the case."

577 So.2d at 547-48.

In this case, the evidence of the alleged collateral rapes was material and logically relevant to show Perkins's intent and motive in committing the charged crime. See Knight v. State, 675 So.2d 487, 499 (Ala.Cr. App.1995), cert. denied, 675 So.2d 502 (Ala. 1996). "`If an accused is charged with a crime that requires a prerequisite intent,... then prior or subsequent criminal acts are admissible to establish that he had the necessary intent when he committed the instant crime.'" Hinton v. State, 632 So.2d 1345, 1347-48 (Ala.Cr.App.1993), cert. denied, 632 So.2d 1350 (Ala.1994), quoting Jones v. State, 439 So.2d 1308, 1310 (Ala.Cr.App.1983) (emphasis in Hinton omitted). In addition, "evidence tending to establish motive is always admissible." Jordan v. State, 629 So.2d 738, 741 (Ala.Cr.App.1993), cert. denied, 511 U.S. 1112 , 114 S.Ct. 2112 , 128 L.Ed.2d 671 (1994). "`It is permissible in every criminal case to show that there was an influence, an inducement, operating on the accused, which may have led or tempted him to commit the offense.'" Bradley, 577 So.2d at 549 , quoting Bowden v. State, 538 So.2d 1226, 1235 (Ala.1988) (emphasis in Bowden ).

To prove the capital-murder charge, the State was required to show that Perkins intentionally murdered Mrs. Gilliam during the course of a kidnapping in the first degree. Section 13A-6-43(a)(4), Ala.Code 1975, defines kidnapping in the first degree as "abduct[ing] another person with intent to ... [i]nflict physical injury upon him, or to violate or abuse him sexually." *1085 At trial, the defense theory was that Perkins did not intend to physically harm or to sexually abuse Mrs. Gilliam when he abducted her, nor did he intend to kill Mrs. Gilliam. During opening and closing statements, Perkins's counsel argued that Perkins was guilty of murder, but was not guilty of capital murder. Specifically, Perkins's counsel argued to the jury that Perkins did not intend to physically harm or to sexually abuse Mrs. Gilliam when he abducted her, but that he was merely looking for food and money when Mrs. Gilliam surprised him by coming outside. According to the defense theory, when Mrs. Gilliam saw Perkins, she panicked, and Perkins instinctively grabbed her and took her to the gray truck. Perkins's counsel further argued that a struggle ensued in the truck, that the gun went off accidentally, and that Perkins then took Mrs. Gilliam to Maudeen Hood's house for help. Throughout opening and closing arguments, Perkins's counsel repeatedly emphasized that there was no evidence that Perkins intended to physically harm or to sexually abuse Mrs. Gilliam or to kill her. Because Perkins's motive and intent in abducting Mrs. Gilliam were called into question, evidence of the alleged prior rapes was relevant to contradict Perkins's version of events and to prove that Perkins's intent, when he abducted Mrs. Gilliam, was "to inflict physical injury upon or to violate or abuse [Mrs. Gilliam] sexually," an essential element of the charged crime. The testimony regarding the alleged rapes was admissible because it was probative of matters in issue other than Perkins's bad character or his propensity to commit criminal acts.

Furthermore, contrary to Perkins's contention otherwise, because evidence of the alleged prior rapes was clearly admissible, the State was entitled to prove the details of the circumstances surrounding the alleged rapes. "If evidence of the accused's commission of another crime is admissible, the state may prove in meticulous detail the manner in which the accused committed such other crime." Bush v. State, 695 So.2d 70, 85 (Ala.Cr. App.1995), aff'd, 695 So.2d 138 (Ala.), cert. denied, 522 U.S. 969 , 118 S.Ct. 418 , 139 L.Ed.2d 320 (1997). Finally, we find that the probative value of the collateral-crimes evidence clearly outweighed its prejudicial effect, particularly in view of Perkins's theory of defense at trial. Accordingly, the trial court did not abuse its discretion by admitting testimony regarding the two rapes allegedly committed by Perkins in the two weeks preceding Mrs. Gilliam's abduction and murder.

B.

Second, Perkins contends that the trial court erred by allowing the testimony of Darlene Hall because, he says, her testimony was inadmissible evidence of collateral crimes.

As stated above, Perkins filed a motion in limine before trial seeking to prevent the State from introducing evidence of any collateral crimes he committed. That motion was denied.

"`A party who suffers an adverse ruling on a motion in limine can preserve the ruling for post-judgment and appellate review only by objecting to the introduction of the proffered evidence and assigning specific grounds at the time of trial, unless he or she obtains the express acquiescence of the trial judge that a subsequent objection and assignment of grounds are not necessary.'"

Grimsley v. State, 678 So.2d 1197, 1208 (Ala.Cr.App.1996), quoting Miles v. State, 650 So.2d 583, 586 (Ala.Cr.App.1994), quoting in turn, Parks v. State, 587 So.2d 1012 (Ala.1991) (emphasis added). Here, Perkins did not object to Hall's testimony, nor *1086 did he obtain the express acquiescence of the trial court that an objection would be unnecessary. Therefore, this issue may be reviewed only for plain error. Rule 45A, Ala.R.App.P.

Darlene Hall testified that on August 9, 1990, at approximately 3:50 p.m. (just minutes before Mrs. Gilliam was abducted), Perkins arrived at her house in a bluegray pickup truck and honked the horn. Hall stated that she opened her front door and Perkins asked her if her husband was home. Hall replied that he was not. Perkins then told Hall that he needed to come in and use her telephone to call a tow truck because, he said, his truck was stuck in a field behind her house. Hall told Perkins that he could not come in, but that she would call a wrecker for him. Perkins then gave Hall a telephone number to call, but before Hall could go back inside her house, Perkins told Hall that he was not sure if the number he had given her was the right number, and he told her to wait while he looked in his glove compartment for the number. Hall told Perkins not to bother looking, that she would try the number he had given her. Hall then went inside her house, locked the door, and retrieved a gun from her bedroom closet. When Hall came back to her front door, Perkins was looking through her front window. At that point, Hall told her daughter—who had been present throughout the entire incident—that she was going to shoot Perkins. Perkins stated, "I think I'll go somewhere else," and then quickly left. (R. 1764.) Hall stated that she had recognized Perkins when he first arrived because she had been reading the newspaper, which contained a photograph of Perkins. Hall also stated that she went to the Hood residence later that evening, after hearing about a shooting, and gave a statement to the police regarding the incident with Perkins. Hall testified that she did not see a gun or a knife in Perkins's possession when Perkins was at her home.

Perkins contends that Hall's testimony amounted to evidence of an inadmissible collateral bad act, which, he says, did not fit into any exception to the exclusionary rule. In addition, he maintains that, even if Hall's testimony was admissible under an exception to the exclusionary rule, its prejudicial effect far outweighed its probative value; therefore, he argues its admission was error.

Assuming Perkins's alleged conduct at Hall's house constituted a "bad act," we find that Hall's testimony regarding Perkins's actions only minutes before Mrs. Gilliam's abduction was admissible to show part of the continuous transaction leading up the charged crime. In Travis v. State, 776 So.2d 819 (Ala.Crim.App.1997), we stated:

"`The rule has been stated many times by the appellate courts of this State that in a prosecution for homicide, evidence of connected acts and transactions leading up to and explanatory of the killing is admissible. Byrd v. State, 257 Ala. 100 , 57 So.2d 388 (1952); Keith v. State, 253 Ala. 670 , 46 So.2d 705 (1950); Levert v. State, 252 Ala. 308 , 42 So.2d 532 (1949); Stallings v. State, 249 Ala. 580 , 32 So.2d 236 (1947); McCoy v. State, 232 Ala. 104 , 166 So. 769 (1936); Jordan v State, 81 Ala. 20 , 1 So. 577 (1887); Golden v. State, 39 Ala.App. 361 , 103 So.2d 52 , reversed on other grounds, 267 Ala. 456 , 103 So.2d 62 (1958); Sexton v. State, 28 Ala.App. 59 , 180 So. 729 (1937); Newman v. State, 25 Ala.App. 526 , 149 So. 724 (1933); Roberts v. State, 25 Ala.App. 477 , 149 So. 356 (1933).'"

776 So.2d at 858 , quoting Twilley v. State, 472 So.2d 1130, 1135-37 (Ala.Cr.App.1985).

Further, in Davis v. State, 740 So.2d 1115 (Ala.Cr.App.1998), aff'd, 740 So.2d 1135 (Ala.1999), we stated the following *1087 regarding the continuous transaction exception to the exclusionary rule:

"In Rowell v. State, 570 So.2d 848 (Ala.Cr.App.1990), we held that evidence of uncharged crimes may properly be admitted under the following circumstances:

"`Evidence of the accused's commission of another crime is admissible if such other crime is inseparably connected with or is a part of the res gestae of the now-charged crime. This rule is often expressed in terms of the other crime and the nowcharged crime being parts of one continuous transaction or one continuous criminal occurrence.' C. Gamble, McElroy's Alabama Evidence (3d ed. 1977), § 69.01(3). See also Orr v. State, 462 So.2d 1013, 1015 (Ala.Cr. App.1984). "Evidence of other crimes is properly admissible as part of the res gestae if all of the criminal acts are part of one continuous criminal adventure by the same party occurring within a matter of hours. Miller v. State, 405 So.2d 41 (Ala.Crim.App. 1981). See also Moseley v. State, 357 So.2d 390 (Ala.Crim.App.1978); Summers v. State, 348 So.2d 1126 (Ala. Crim.App.), cert. denied, 348 So.2d 1136 (Ala.1977)." Pettaway v. State, 494 So.2d 884, 886 (Ala.Cr.App.1986). In the present case, this evidence "was intimately connected with the same transaction which is the basis of the State's case.... The decision whether to allow or not to allow evidence of collateral crimes or acts as part of the State's case-in-chief rests within the sound discretion of the trial judge." Blanco v. State, 515 So.2d 115, 120 (Ala.Cr.App.1987), and cases cited therein. "The trial court did not err in overruling appellant's objection to the admission of such evidence. No matter how many distinct crimes may be involved, all the details of one continuous criminal occurrence or adventure may be given as part of the offense with which the defendant is charged." Coleman v. State, 487 So.2d 1380, 1385 (Ala.Cr.App.1986) and cases cited therein.'

" 570 So.2d at 852 . See also Windsor v. State, 683 So.2d 1027, 1035-36 (Ala.Cr. App.1994), aff'd, 683 So.2d 1042 (Ala. 1996), cert. denied, 520 U.S. 1171 , 117 S.Ct. 1438 , 137 L.Ed.2d 545 (1997)."

740 So.2d at 1115. Additionally:

"`In a prosecution for unlawful homicide it is "permissible to show all that transpired at the time of the difficulty and everything leading up to and explanatory of the tragedy." Moulton v. State, 19 Ala.App. 446, 450 , 98 So. 709 , cert. denied, 210 Ala. 656 , 98 So. 715 (1923). Testimony is admissible if it "tend(s) to prove the surrounding facts and circumstances leading up to and relating to the homicide." Hill v. State, 25 Ala.App. 264, 265 , 144 So. 582 (1932). "Evidence of connected acts leading up to and explanatory of killing, throwing light on action, animus, or intent of accused, is admissible, though not res gestae." Smallwood v. State, 26 Ala.App. 360, 361 , 159 So. 699 (1935). See also Palmer v. State, 401 So.2d 266, 269-70 (Ala.Crim.App.), cert. denied, Ex parte Palmer, 401 So.2d 270 (Ala.1981).'"

Read v. State, 686 So.2d 563, 566 (Ala.Cr. App.1996), quoting Smith v. State, 447 So.2d 1327, 1330 (Ala.Cr.App.1983), aff'd, 447 So.2d 1334 (Ala.1984).

In this case, Perkins's attempt to gain entry into Hall's home and the kidnapping of Mrs. Gilliam occurred within minutes of each other and were part of one continuous criminal transaction. Therefore, the trial court did not abuse its discretion in admitting Hall's testimony.

*1088 Moreover, we find that Hall's testimony was also admissible to show Perkins's intent. As stated previously, evidence of collateral crimes and acts is admissible if it is material and logically relevant to an issue in the case, and is not offered for the purpose of showing the accused's bad character. Section 13A-6-43(a)(4), Ala.Code 1975, states that "[a] person commits the crime of kidnapping in the first degree if he abducts another person with intent to ... inflict physical injury upon him, or to violate or abuse him sexually." Section 13A-6-40(2), Ala.Code 1975, defines "abduct," in pertinent part, as "restrain[ing] a person with intent to prevent his liberation." Thus, to establish the crime of kidnapping in the first degree, the State must prove the intent to inflict physical injury or to sexually abuse, and the intent to prevent liberation. We stated above that testimony that Perkins had allegedly raped two women was relevant to show his intent to sexually abuse Mrs. Gilliam when he kidnapped her. Here, Hall's testimony would allow a logical inference that Perkins intended to abduct Mrs. Gilliam, i.e., to prevent her liberation.

Because Hall's testimony was not probative only to show Perkins's bad character or to show that Perkins acted in conformity with that bad character, it was properly admitted into evidence. Moreover, the probative value of the testimony clearly outweighed its prejudicial effect. Accordingly, there was no error, plain or otherwise, in the trial court's admission of the testimony.

C.

Third, Perkins contends that the trial court erred by allowing the testimony of Mrs. Gilliam's daughter, Candace Gilliam —whose statement was read into the record by the prosecutor pursuant to a stipulation by Perkins—that she heard Mrs. Gilliam say, at the time of the abduction, "something about a rapist." (R. 1755.) Because Perkins not only failed to object to Candace's testimony, but actually stipulated to it, we may review this claim only for plain error. Rule 45A, Ala. R.App.P.

During trial, Perkins and his counsel agreed to stipulate to the testimony to prevent Candace from testifying in open court. [9] Included in the agreed-upon statement that was read to the jury by the prosecutor was the following statement: "Candace heard her mother yell for her help and something about a rapist." (R. 1755.) Perkins's contention on appeal is that this statement was inadmissible hearsay. Perkins contends that the State impermissibly introduced Candace's testimony regarding Mrs. Gilliam's statement about "a rapist" to prove that Perkins was, in fact, a rapist, and to show that he intended to sexually abuse Mrs. Gilliam. He further contends that the testimony was not only hearsay, but double hearsay, because, he says, Mrs. Gilliam's cry of "rapist," was not based on Mrs. Gilliam's personal knowledge of Perkins, but on newspaper articles about Perkins that she had read before her abduction. Thus, he concludes, the statement was "the equivalent of the plainly impermissible tactic of *1089 introducing through Candace Gilliam a copy of the newspaper articles which referred to [him] as a rapist." (Perkins's brief to this court, p. 16.)

"`Hearsay testimony consists of an out-of-court statement offered to prove the truth of the matter asserted.'" Laney v. State, 643 So.2d 1024, 1025 (Ala.Cr.App. 1994), quoting Brannon v. State, 549 So.2d 532, 539 (Ala.Cr.App.1989). [10] "The hearsay rule is based upon the idea that out-of-court statements are to be excluded because they are unreliable and untrustworthy." Charles W. Gamble, McElroy's Alabama Evidence, § 242.01(1) (4th ed. 1991).

Here, Candace's testimony that Mrs. Gilliam yelled the word "rapist" as she was being abducted clearly falls within the "excited utterance" exception to the hearsay rule. In Berryhill v. State, 726 So.2d 297 (Ala.Crim.App.1998), this court stated:

" McElroy's Alabama Evidence provides:

"`Generally, a person's statement concerning a startling occurrence made while perceiving the occurrence, or soon after perception thereof, and while the declarant is under the stress of a nervous excitement created by such perception, is admissible as tending to prove the truth of the matter asserted. A statement of this kind is frequently referred to as a spontaneous exclamation or excited utterance and is an exception to the hearsay evidence rule. This historic exception is continued under the Alabama Rules of Evidence by means of the following language found in Rule 803(2):

"`"Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

"`"The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

"`". . . .

"`"(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition."'

"`This rule sets out three conditions which must be met for admission of the statement. There must be a startling event or condition, the statement must relate to the circumstances of the occurrence and the statement must be made before time has elapsed sufficient for the declarant to fabricate. The statement must be the apparently spontaneous product of that occurrence operating upon the visual, auditory, or other perceptive sense of the speaker. The declaration must be instinctive rather than deliberative. In short, it must be the reflex product of the immediate sensual impressions, unaided by retrospective mental action. Whether a statement qualifies as an excited utterance is a preliminary and discretionary question for the trial court.

"`Although a statement of this kind is nearly always referred to or described in the Alabama decisions as being a part of the res gestae, it is submitted that the terms "spontaneous exclamation" and "excited utterance" are preferable because the words "res gestae" have been used to signify so many different things that their use is calculated to promote confusion as to the proper scope of the present exception.'

*1090 "C. Gamble, McElroy's Alabama Evidence, § 265.01(1) at 1281 (5th ed. 1996). (Emphasis added; footnotes omitted.)"

726 So.2d at 300 . See also Reeves v. State, 456 So.2d 1156, 1159 (Ala.Cr.App.1984) (testimony by daughter of kidnapping victim about conversation between victim and defendant fell within the res gestae exception to the hearsay rule because the statements "were incident to what was done and shed light on the main facts of the case").

Candace's testimony revealed that Mrs. Gilliam yelled the word "rapist" and cried for help as Perkins held a pistol to her head and dragged her away from her home, and from her onlooking daughter. Mrs. Gilliam's statement was clearly an excited utterance—it was "a spontaneous exclamation" concerning "a startling occurrence" made while perceiving that occurrence. Thus, it was admissible under the excited utterance exception to the hearsay rule.

Moreover, Perkins's contention that the statement by Mrs. Gilliam was "double hearsay" is equally meritless. Perkins maintains that Mrs. Gilliam's cry of "rapist" was prompted by a newspaper article about Perkins that Mrs. Gilliam had allegedly read just before her abduction and that admitting the statement was the equivalent of admitting the newspaper article. Although we recognize that such an inference could have been supported by the evidence presented at trial—especially in light of Darlene Hall's testimony that, in fact, an article about Perkins appeared in the newspaper on the day of Mrs. Gilliam's abduction—we point out that an inference is all that could be gleaned from the record on this issue. [11] There was no evidence introduced to show that Mrs. Gilliam had, in fact, read the newspaper article before she was abducted, nor was the alleged article introduced into evidence at the trial. In fact, there is no direct evidence in the record tending to indicate why Mrs. Gilliam yelled the word "rapist" as she was being abducted. Because there was no evidence of a second hearsay statement, i.e., the newspaper article, there was no "double hearsay," as Perkins contends.

Accordingly, the admission of Candace Gilliam's testimony regarding Mrs. Gilliam's statement during her abduction was not error, plain or otherwise.

D.

Last, Perkins contends that the trial court erred by permitting testimony from three witnesses, Harry Montgomery, James Hudson, Jr., and Roy Sanderson, regarding the gray pickup truck that Perkins was driving on the day of Mrs. Gilliam's abduction. Specifically, he contends that Montgomery, Hudson, and Sanderson all testified that the truck, which belonged to James Hudson, Sr., was stolen, and that at the time it was stolen, inside it were a.357 Magnum pistol and a high-powered rifle. He maintains that this evidence was not relevant "for any proper purpose" and that its prejudicial effect far outweighed its probative value. (Perkins's brief to this court, p. 23.) Because Perkins either failed to object to the complained-of testimony or did not receive an adverse ruling on any objection, this claim may be reviewed only for plain error. Rule 45A, Ala.R.App.P.

*1091 Included in Perkins's pretrial motion in limine seeking to prevent the State from introducing evidence of any collateral crimes or acts was a request that the State be prevented from introducing any testimony regarding the fact that approximately two to three days before he abducted and killed Mrs. Gilliam, Perkins had stolen the gray pickup truck, and that when he stole it, both a .357 Magnum and a high-powered rifle were inside the truck. While arguing against the motion, the State presented to the trial court the following facts: Two to three days before Perkins abducted and killed Mrs. Gilliam, he stole the gray pickup truck from the home of James Albert Hudson, Jr., who was keeping the truck for its owner, Hudson's father, James Albert Hudson, Sr. At the time of the theft, Hudson had a .357 Magnum pistol and a high-powered rifle in the truck. In addition, there were no bullet holes in the truck while it was in Hudson's possession, and Hudson could not recall that anyone had bled while in the truck. As stated above, Perkins's motion in limine was denied.

During opening arguments, the prosecutor told the jury that the evidence would show that the gray pickup truck that Perkins was seen driving "had originally come from the home of James A. Hudson, Jr." (R. 1727), and that the truck contained a.357 Magnum pistol and a high-powered rifle while it was in Hudson's possession. The prosecutor also told the jury that, when the gray pickup truck was found, the.357 Magnum pistol and the high-powered rifle were missing, but were later found near Perkins's mother's and grandmother's houses in the Berry area. Perkins did not object to these statements by the prosecutor.

The record reveals that, in contrast to the prosecutor's opening statements and his proffer to the trial court during the pretrial hearing on the motion in limine, the State did not present any evidence to the jury that the truck, or the weapons inside the truck were stolen by Perkins. Rather, the State presented only the following testimony at trial regarding the truck and the weapons: Harry Montgomery, chief deputy of the Tuscaloosa County Sheriff's Department, testified that, pursuant to the investigation of the gray pickup truck, he discovered that the truck "belong[ed]" to a man named James Albert Hudson, Sr. (R. 1962.) Perkins did not object to this testimony. After Montgomery's testimony, Roy Sanderson, a state trooper, testified that he was conducting personal business in the Berry area near Perkins's mother's and grandmother's houses on August 12, 1990, when he noticed a high-powered rifle under one of the houses. Perkins objected to Sanderson's testimony, but a review of the record reveals that the trial court did not rule on the objection; rather, the State agreed to cease its questioning of Sanderson and to put on no further evidence regarding the rifle. This concession was made by the State after Perkins offered to make the following stipulation of facts, which was read to the jury by the trial court:

"The defendant caused the death of Cathy Gilliam with a .357 magnum pistol. That's number one. Number two, the Defendant, Mr. Roy Perkins, was in the 1979 Chevrolet gray pickup truck shown in State's Exhibit number 23. Number three, Cathy Gilliam's blood was found in the 1979 gray Chevrolet pickup truck shown in State's Exhibit number 23."

(R. 2087.) During discussions regarding the stipulation, Perkins refused to stipulate that he killed Mrs. Gilliam while she was in the gray pickup truck, or that the bullet holes found in the truck after the murder were not there two to three days before the murder. Perkins claimed that *1092 such evidence was irrelevant. The State agreed to the stipulation, but stated its intention to present the testimony of James Hudson, Jr., that there were no bullet holes in the truck two to three days before Mrs. Gilliam's abduction. Immediately following the stipulation, the State presented Hudson's testimony. Hudson testified that he was very familiar with the gray pickup truck and that he had last seen the truck two to three days before Mrs. Gilliam's abduction. He stated that when he last saw the truck, there were no bullet holes in it. Hudson did not testify that he was in possession of the truck, or that the truck had been stolen. Perkins did not object to Hudson's testimony.

Perkins contends on appeal that the State's evidence that Perkins stole the gray pickup truck, the .357 Magnum pistol, and the high-powered rifle was inadmissible evidence of collateral crimes. Because it is clear from the record that no evidence was actually introduced at trial that Perkins stole the truck from Hudson, or that Perkins did not have permission to drive the truck, or that the truck even contained a .357 Magnum pistol or a high-powered rifle while it was in Perkins's possession, Perkins's argument on appeal is moot. Apparently, Perkins's argument is based on the prosecutor's statements to the trial court during the pretrial hearing on Perkins's motion in limine about the origins of the truck and the weapons, rather than on the evidence that was actually introduced at trial. As the evidence that was actually presented to the jury did not reveal a collateral crime, we find no error, plain or otherwise, in its admission.

Moreover, even if the evidence that the State intended to introduce at trial, but did not—i.e., that Perkins stole the truck, along with the .357 Magnum pistol and the high-powered rifle inside the truck—had been introduced, there would have been no error. As stated above, although Perkins stipulated that he caused Mrs. Gilliam's death with a .357 Magnum pistol, he refused to stipulate that Mrs. Gilliam was shot while she was inside the truck. The State was entitled to prove the circumstances of Mrs. Gilliam's death, including the location of her shooting. Such evidence was highly relevant to a material element of the State's case. Furthermore, because such evidence would have been admissible had the State chosen to introduce it, the fact that the prosecutor referred to such evidence during his opening statement—before he agreed not to proceed with the evidence—was not error, plain or otherwise.

E.

Finally, Perkins contends that even if all of the collateral-crimes evidence addressed above was admissible, the trial court's failure to give an instruction to the jurors explaining the limited purpose for which the evidence could be considered constituted reversible error. Because Perkins did not request a limiting instruction, we may review this claim only for plain error. Rule 45A, Ala.R.App.P.

We recognize that "[w]here evidence is admissible on a certain point only, the trial court should advise the jury to consider it on that point alone." King v. State, 521 So.2d 1360, 1362 (Ala.Cr.App.1987). However, "[w]hen such evidence is admitted against an appellant, it is the sole responsibility of the appellant to request the court to instruct the jury as to the limited and proper purpose for which such evidence is admitted. If the appellant failed to request such an instruction, she may be considered to have waived the right to the protective instruction." Miller v. State, 405 So.2d 41, 47 (Ala.Cr.App.1981). See also Minor, 780 So.2d 707 ; Varner v. State, 497 So.2d 1135 (Ala.Cr.App.1986); *1093 Weaver v. State, 466 So.2d 1037 (Ala.Cr. App.1985); Robinson v. State, 361 So.2d 379 (Ala.Cr.App.), cert. denied, 361 So.2d 383 (Ala.1978).

Perkins failed to request a limiting instruction regarding the collateral crimes evidence, even after being repeatedly told by the prosecutor that the State would not object to such an instruction. Thus, "[b]ased on established precedent [set forth above] we conclude that the trial court's failure to instruct the jury that evidence of [Perkins's collateral crimes] could be used only for the limited purpose of [showing his intent] was not plain error. Plain error is "error that is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings." Ex parte Trawick, 698 So.2d 162, 167 (Ala.1997), cert. denied, 522 U.S. 1000 , 118 S.Ct. 568 , 139 L.Ed.2d 408 (1997). Here, the error was not so "egregious" that it "has or probably has substantially prejudiced" Perkins. Trawick, 698 So.2d at 167 .

XV.

Perkins contends that the trial court erred in admitting DNA evidence tending to connect him to the earlier rapes of B.P. and D.W. (Issue VI in Perkins's brief to this court.) He maintains that the State failed to lay the proper predicate under Ex parte Perry, 586 So.2d 242 (Ala. 1991) [12] —specifically, that the State failed to satisfy the third prong of Perry —and that, therefore, the DNA evidence was inadmissible. The State's DNA expert, Phyllis Rollan, testified that the DNA of semen found in the rape-kit examinations of B.P. and D.W. was consistent with Perkins's DNA, and that Perkins's DNA type could be located in 1 in 33 members of the white population. At trial, Perkins did not object to the admission of this DNA evidence; therefore, we may review his claim on appeal only for plain error. Rule 45A, Ala.R.App.P.

In Hyde v. State, 778 So.2d 199 (Ala.Cr. App.1998), we stated the following regarding plain-error review:

"`The Alabama Supreme Court has adopted federal case law defining plain error, holding that "`[p]lain error' only arises if the error is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings." Ex parte Womack, 435 So.2d 766, 769 (Ala.), cert. denied, 464 U.S. 986 , 104 S.Ct. 436 , 78 L.Ed.2d 367 (1983)(quoting United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir.1981)).'

" Haney v. State, 603 So.2d 368, 392 (Ala. Cr.App.1991), aff'd, 603 So.2d 412 (Ala. 1992), cert. denied, 507 U.S. 925 , 113 S.Ct. 1297 , 122 L.Ed.2d 687 (1993). To rise to the level of plain error, the claimed error must not only seriously affect a defendant's `substantial rights,' but it must also have an unfair prejudicial impact on the jury's deliberations. United States v. Young, 470 U.S. 1 , 16-17 n. 14, 105 S.Ct. 1038 , 1047 n. 14, 84 L.Ed.2d 1 , 13 n. 14 (1985). Finally, a failure to object will weigh heavily against a claim of prejudice. Williams v. State, 601 So.2d 1062, 1066 (Ala.Cr. App.1991), aff'd, 662 So.2d 929 (Ala.), cert. denied, 506 U.S. 957 , 113 S.Ct. 417 , 121 L.Ed.2d 340 (1992). See also Brooks v. State, 695 So.2d 176 (Ala.Cr. App.1996), aff'd, 695 So.2d 184 (Ala.), *1094 cert. denied, 522 U.S. 893 , 118 S.Ct. 233 , 139 L.Ed.2d 164 (1997)."

778 So.2d at 209 .

Perkins argues that the State did not present testimony regarding the third prong of the Perry test—i.e., that in this particular case the testing laboratory performed generally accepted scientific techniques without error in the performance or interpretation of the DNA testing—before Rollan testified concerning DNA matching and DNA population frequency statistics. However, under the circumstances of this case, the admission of the DNA evidence was not plain error. As noted above, Perkins did not object to the DNA evidence when it was offered during trial, nor did he request a hearing outside the presence of the jury to determine the admissibility of the DNA evidence. On appeal, Perkins makes only the conclusory assertion that the State's DNA matching and population frequency evidence was unreliable. However, he has provided no support for this conclusion. Perkins offers no proof that, had his counsel challenged the DNA evidence at trial by demanding that the State's witnesses provide testimony fully satisfying all prongs of the Perry test, the State would have been unable to lay a sufficient predicate for the admission of the DNA evidence. We find that, absent an objection at trial, and absent any suggestion that the DNA evidence was unreliable, the admission of the DNA evidence in Perkins's case was not plain error. See McDonald v. State, 743 So.2d 501 (Fla. 1999) (admission of DNA evidence in capital-murder trial without the proper predicate, absent an objection by the defendant, was not "fundamental error"). Furthermore, we find it especially significant that the DNA evidence about which Perkins complains on appeal was offered specifically to connect Perkins to two prior rapes. The admission of this DNA evidence did not have the powerful effect of "conclusively" establishing in the eyes of the jury some element of the capital offense for which Perkins was being tried or of uniquely "identifying" Perkins as the person who committed the now-charged offense. The DNA evidence was offered to prove Perkins's commission of prior offenses, the commission of which, the State argued, tended to show one element of the now-charged capital offense—Perkins's intent to sexually abuse Mrs. Gilliam when he abducted her. In addition to the DNA evidence presented through Rollan, the State offered the testimony of several other witnesses, including the alleged rape victims, B.P. and D.W., in attempting to prove Perkins's commission of the prior offenses. (See Part XIV of this opinion wherein we hold that evidence of the two prior alleged rapes was admissible to show Perkins's intent to sexually abuse Mrs. Gilliam.) Moreover, the record shows that Perkins in fact pleaded guilty to the first-degree rape of B.P. and was sentenced to 99 years' imprisonment. Under the circumstances, we conclude that Perkins has failed to show that the admission of the DNA evidence seriously affected his substantial rights or had an unfair prejudicial impact on the jury's verdict. Thus, there was no plain error here.

XVI.

Perkins contends that the trial court erred in admitting into evidence several alleged hearsay statements. (Issue XIV in Perkins's brief to this court.)

A.

First, Perkins contends that the trial court erred by allowing Maudeen Hood, Norman Willingham, Robert Carter, Scott Sassaman, and Gary Hunnicut to testify regarding statements made by Cathy Gilliam shortly before her death. He maintains that the statements made by *1095 Mrs. Gilliam were inadmissible hearsay because, he says, they "failed to meet the ... prerequisites of dying declaration testimony." (Perkins's brief to this court, pp. 84-85.) Before trial, Perkins filed a motion to suppress the statements made by Mrs. Gilliam. After a hearing, the trial court denied the motion, without stating a reason.

Perkins challenges the following testimony: Scott Sassaman's testimony that, in the ambulance on the way the hospital, Mrs. Gilliam expressed concern about her family; Maudeen Hood's and Norman Willingham's testimony that Mrs. Gilliam gave them a description of her assailant and of the truck her assailant was driving; Robert Carter's testimony that Mrs. Gilliam gave him a description of the truck that her assailant was driving and of the general direction in which the truck was traveling; and Gary Hunnicut's testimony that, in response to questioning by law enforcement officials, Mrs. Gilliam "grunted" and nodded her head when asked whether Perkins was her assailant and whether she had been shot with a pistol.

"A dying declaration is a statement by a person who believes that his death will certainly occur soon. He must be gripped by that despair of life which is naturally produced by an impression of almost dissolution, a dissolution so near as to cause all motives of falsehood to be superseded by the strongest inducements to strict accuracy. It has been said that the declarant, when making the statement, must have been in settled, hopeless expectation of impending death."

Charles W. Gamble, McElroy's Alabama Evidence, § 248.01(1) (4th ed. 1991)(footnotes omitted). In O'Cain v. State, 586 So.2d 34 (Ala.Cr.App.1991), this court stated:

"`A dying declaration is a statement made by the victim of a homicide, at a time when the victim believes that death is impending, describing the cause of, and the circumstances attending, the homicide. Such a statement is admissible, as an exception to the hearsay rule, on the ground of necessity, and on the theory that a person expecting imminent death, just as a person testifying under the obligation of an oath, will speak nothing but the truth.

"`It must be shown that the declarant was facing death, with no hope of recovery, and that he was aware thereof. If these requirements are satisfied, the declaration is admissible to the same extent that the testimony of the declarant would have been, had he been called as a witness.'

"C. Torcia, Wharton's Criminal Evidence § 301 (14th ed. 1986). See also, C. Gamble, McElroy's Alabama Evidence, § 248.01(1) (3d ed. 1977).

"It is not indispensable that the declarant should have said that he believed that he must or would die soon, as such belief may in the circumstances be inferred from his condition and his conduct. C. Gamble, supra, at § 248.01(1). In determining whether the declarant believed that death was imminent, the trial court may look to statements of the deceased, the nature of his wounds, his weakness, and all the circumstances tending to show the deceased's state of mind at the time. Ragland v. State, 238 Ala. 587 , 192 So. 498 (1939); Bell v. State, 402 So.2d 1 (Ala.Cr.App.1981); Voudrie v. State, 387 So.2d 248 (Ala.Cr. App.), cert. denied, 387 So.2d 256 (Ala. 1980). Statements by the declarant are admissible to show his belief that death was impending, and such statements alone may constitute a sufficient foundation. Carson v. State, 439 So.2d 1350 *1096 (Ala.Cr.App.1983); Voudrie v. State; C. Torcia, supra, at § 309. A dying person need not expressly state that he is going to die. The use of words which are the equivalent of such a statement is sufficient. Marshall v. State, 219 Ala. 83 , 121 So. 72 (1929). It has been held that the use of the expression, `I think I am going to die,' was a sufficient predicate for the admission of a statement as a dying declaration. Evans v. State, 209 Ala. 563 , 96 So. 923 (1923).

"Whether the declarant believed that death was certain to occur soon is for the determination of the trial court, reversible upon appeal only if the evidence did not warrant such a finding. Marshall v. State; Carson v. State; Shikles v. State, 31 Ala.App. 423 , 18 So.2d 412 (1944), cert. denied, 245 Ala. 641 , 18 So.2d 417 (1944). `"The circumstances of each case will show whether the requisite consciousness existed; and it is poor policy to disturb the ruling of the trial judge upon the meaning of these circumstances.'" Evans v. State, 209 Ala. at 564 , 96 So. at 924 (quoting 2 Wigmore on Evidence § 1442, p. 1809)."

586 So.2d at 37-38.

We conclude that the circumstances surrounding Mrs. Gilliam's statements clearly supported admitting those statements as dying declarations. Maudeen Hood's testimony that, when Mrs. Gilliam knocked on her door, Mrs. Gilliam stated that she had been shot and that she was going to die, and that Mrs. Gilliam asked Hood to take her to the hospital clearly indicated Mrs. Gilliam's knowledge of the severity of her wounds and of her impending death. The complained-of testimony of Scott Sassaman—that Mrs. Gilliam expressed concern about her family— although not related to the circumstances surrounding her abduction and shooting, and, thus, not a dying declaration, was clearly an indication of Mrs. Gilliam's belief that she was going to die and was therefore properly admitted as a statement "to show [her] belief that death was impending." O'Cain, 586 So.2d at 37. Sassaman's further testimony that he heard Mrs. Gilliam specifically say that she was going to die also showed that Mrs. Gilliam was aware of her impending death. Moreover, the circumstances surrounding the statements—the severity of Mrs. Gilliam's wounds, her weakened condition exhibited by the fact that she was lying on Hood's kitchen floor, and her repeated requests for something to lessen her pain— also support the conclusion that Mrs. Gilliam was aware that death was near. Because Mrs. Gilliam was aware that her death was impending, and because her statements to Hood, Willingham, and Carter (which were also overheard by Hunnicut) were about her assailant and the circumstances surrounding the shooting, the statements were properly admitted as dying declarations.

Perkins contends, however, that, even if the statements did meet the requirements of the dying declaration exception to the hearsay rule—i.e., they were made with Mrs. Gilliam's knowledge of her impending death—Hunnicut's testimony that he heard Mrs. Gilliam grunt and nod her head in response to questioning by law enforcement officials was not within the dying declaration exception because, he says, "such gestures do not constitute a statement." (Perkins's brief to this court, p. 84.) Contrary to Perkins's contention, "[n]onverbal conduct of a person constitutes a statement, for hearsay purposes... if it was intended by the actor as an assertion." Charles W. Gamble, supra, at § 242.01(2). Clearly, Mrs. Gilliam's actions of grunting and of nodding her head in response to questions by law-enforcement officials regarding her assailant were *1097 intended by Mrs. Gilliam to be answers to those questions. Although nonverbal assertions, Mrs. Gilliam's actions constituted statements for purposes of the hearsay rule and thus were admissible under the dying declaration exception to that rule.

Because all of Mrs. Gilliam's statements to Sassaman, Hood, Willingham, Carter, and Hunnicut fell within the dying declaration exception to the hearsay rule, or were admissible to show her belief that her death was near, there was no error in their admission.

B.

Second, Perkins contends that the trial court erred by allowing J.W. Stough, former deputy sheriff of Fayette County, to testify that he obtained information about the white building—where both B.P. and D.W. testified that Perkins raped them—from "another rape victim." (Perkins's brief to this court, p. 83.) He maintains that Stough's testimony was hearsay, "completely irrelevant to the case, and intended only to play upon the passions and sympathies of the jury." (Perkins's brief to this court, p. 83.) Because Perkins did not object to Stough's testimony, we may review this claim only for plain error. Rule 45A, Ala.R.App.P.

Stough testified as follows:

"[Prosecutor]: Did you have an occasion to actually go out to what I call a block house in the Fayette County area?

"[Stough]: Yes, sir, I did.

"[Prosecutor]: And where did you get information concerning this block house?

"[Stough]: From one of the residents that lived in Berry, told me—

"[Prosecutor]: Did you find out from somebody else where this place could be?

"[Stough]: Yes, sir, I did.

"[Prosecutor]: Had you had a description of where this was before you found it?

"[Stough]: Yes, sir.

"[Prosecutor]: And without going into what the description was, where did you receive that description from?

"[Stough]: From another victim, a rape victim.

"[Prosecutor]: Where did you [get] this information from, somebody else?

"[Stough]: Where the building was located?

"[Prosecutor]: Yes, sir.

"[Stough]: Yes, sir, from someone else."

(R. 2216.)

"`Hearsay testimony consists of an out-of-court statement offered to prove the truth of the matter asserted.'" Laney v. State, 643 So.2d 1024, 1025 (Ala.Cr.App. 1994), quoting Brannon v. State, 549 So.2d 532, 539 (Ala.Cr.App.1989). Stough's testimony that he received a description of the white building from "another victim, a rape victim" was not offered to prove the truth of the matter asserted, i.e., that another rape victim existed, just as Stough's statement that he learned of the location of the building from "someone else" was not offered to prove that "someone else" existed. Rather, it was offered to explain how Stough determined the location of the building, which he later searched. "`A statement may be admissible where it is not offered to prove the truth of whatever facts might be stated, "but rather to establish the reason for action or conduct by the witness."'" Sawyer v. State, 598 So.2d 1035, 1038 (Ala.Cr.App.), cert. denied, 506 U.S. 943 , 113 S.Ct. 386 , 121 L.Ed.2d 295 (1992), quoting Edwards v. State, 502 So.2d 846, 849 (Ala.Cr.App.1986), quoting in turn, Tucker v. State, 474 So.2d 131, 132 (Ala.Cr.App.1984), rev'd on other grounds, 474 So.2d 134 (Ala.1985). Because *1098 Stough's testimony was not hearsay, there was no error, plain or otherwise, in its admission.

XVII.

Perkins contends that the trial court violated the principles of Boykin v. Alabama, 395 U.S. 238 , 89 S.Ct. 1709 , 23 L.Ed.2d 274 (1969), when it accepted two stipulations from him—which, he says, amounted to a guilty plea to felony murder, or at least to reckless manslaughter— without determining whether he entered into those stipulations knowingly and voluntarily. (Issue IV in Perkins's brief to this court.)

At trial, the State called Candace Gilliam, Mrs. Gilliam's 14-year-old daughter, to testify regarding her mother's abduction. After a few introductory questions by the prosecutor, Candace was unable to continue, and requested a break. During this break, Perkins's counsel offered to stipulate to Candace's testimony, stating that he did not "see any need for the young girl to go through this." (R. 1747.) Perkins acknowledged, on the record, that he understood that he had the right to cross-examine Candace, and stated that he "absolutely" agreed with his counsel and wanted to waive that right and to have Candace's statement read into the record by the prosecutor. (R. 1754.) After this exchange, the following stipulation was read by the prosecutor:

"Miss Candace Gilliam would state as follows to this effect: When she heard her mother screaming a second time, Candace went to the kitchen to see what was happening. Candace—she saw a man with what she believes was a black pistol pointed at her mother's head. And he was holding her with his other hand. She heard a broom drop. Candace heard both of them say something, but she is not sure what was said. The man said: `Drop the broom.' She had a broom in her hand. Candace heard her mother yell for her help and something about a rapist. The man led her mother to a vehicle behind her mother's car. She is not sure what kind of vehicle, but she did see an antenna, gray windshield, bigger than a car. At that point, Candace ran back to a room and called her grandmother. Candace was unable to give a physical description of the man other than a: One, thin beard unlike her father's beard. The hair was straight like regular hair. Two, brown hair appeared to be windblown hair. Three, not much taller than her mother. Four, she believed the pistol was black in color. Candace was unable to pick anyone out of a lineup."

(R. 1754-55.)

The State also called State Trooper Roy Sanderson to testify at trial. Sanderson testified that he was in the Berry area near the houses of Perkins's mother and grandmother on August 12, 1990, when he noticed a high-powered rifle under one of the houses. At this point, Perkins's counsel objected to testimony regarding the rifle. In response, the prosecutor explained his intent to present Dr. Warner's testimony that he was unable to determine what weapon had been used to shoot Mrs. Gilliam, but that her gunshot wound was consistent both with a rifle and with a .357 Magnum pistol. Perkins's counsel then offered to stipulate that Perkins caused Mrs. Gilliam's death with a .357 Magnum pistol. After a lengthy bench conference regarding the details of the stipulation, the trial court asked Perkins if he was willing to stipulate to certain facts as having been established and proved; Perkins, on the record, agreed. The prosecutor then agreed to forgo putting on any evidence regarding the rifle. The following stipulation was read to the jury by the trial court:

*1099 "Ladies and gentlemen of the jury, the following facts have been stipulated between the State and counsel for the Defense as having been established and proved. And I'll read the following facts to you th

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