# Johnson v. State

> Court of Criminal Appeals of Alabama · October 2, 2009 · 120 So. 3d 1130

URL: https://www.frixlaw.com/law-library/cases/4803881

## Case

- **Full name:** Shonda Nicole JOHNSON v. STATE of Alabama
- **Court:** Court of Criminal Appeals of Alabama
- **Decided:** October 2, 2009
- **Citations:** 120 So. 3d 1130; 2009 Ala. Crim. App. LEXIS 124; 2009 WL 3171220
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Main
- **Judges:** Kellum, Main, Welch, Windom, Wise
- **Cited by:** 20 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4803881

## How later opinions describe it (automated extraction)

- finding that, although the murder victim was to be a witness against Johnson, this role did not automatically mandate the application of the disrupting-of-governmental-function aggravating circumstance, nonetheless “the same evidence may be used to establish both the underlyin…
- holding, where witness's volunteered statement during State's questioning was nonresponsive and the trial court sustained defense counsel's objection and instructed the witness to only answer the question that the remark did not rise to the level of plain error and did not adv…
- holding that no error occurred because the prosecutor did not impermissibly vouch for the witness's credibility or make personal assurance of the witness's veracity
- holding it was not error for the chief investigator and the victim’s mother to be allowed to remain in the courtroom throughout the trial

## Opinion text

*1146
After Remand from Alabama Supreme Court
MAIN, Judge.
Shonda Nicole Johnson was convicted of capital murder, in violation of § 13A-5-40(14), Ala.Code 1975, for intentionally murdering Randy McCullar, who had testified or was to testify in a criminal proceeding, specifically a bigamy case, against Johnson, where the murder stemmed from his role as a witness in the bigamy case. Johnson was sentenced to death by the trial court following an advisory verdict by the jury of death by a vote of 11 in favor of death to 1 in favor of life without parole. 1 This Court reversed and remanded Johnson’s conviction because, although her pri- or bad acts and conviction were admissible as exceptions to the exclusionary rule, this Court held that the trial court should have given limiting instructions as to the jury’s consideration of this evidence. Johnson v. State, 120 So.3d 1100 (Ala.Crim.App.2005). The Alabama Supreme Court reversed and remanded this Court’s decision, finding that limiting instructions by the trial court were not necessary because the prior bad acts and conviction were admissible as substantive evidence and therefore no limiting instructions were warranted. Johnson v. State, 120 So.3d 1119 (Ala.2006).
Because these two referenced issues, concerning the admissibility of the prior bad acts and conviction of Johnson, as well as the necessity of limiting instructions therefor, have now been decided on appeal, they will not be revisited.
We also note that a full rendition of the facts established at trial was set forth in the original decision on appeal. See Johnson v. State, 120 So.3d at 1123-26, and will not be repeated.
I.
Johnson argues that the trial court erred by failing to allow her to impeach Timothy Richards with evidence of his pri- or convictions, and further failing to allow her to admit evidence of these convictions during the penalty phase of her trial, in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Alabama law. Johnson refers to two prior convictions for distributing harmful material to minors.
Timothy Richards, Johnson’s codefen-dant in the present case, testified as to Johnson’s and his roles in the shooting and murder of McCullar. During the cross-examination of Richards, defense counsel questioned him as follows:
“Q. Did you have any arrests in the City of Hueytown?
“A: Yes, sir, I do.
“Q: And what was that for?
“A: Distributing to delinquency of a minor.
“Q: Distributing to the delinquency of a minor? And tell what type of distributing to the delinquency of a minor did you partake in?
“A: I didn’t partake in anything, but I was found—
“Q: Did a woman make you do something then?
“A: No.
“Q: What were you — what was the basis of that charge?
“A: What do you mean?
*1147 “Q: Did that — why were you charged with that?
“A: Because of my sister.
“[Prosecutor]: Your Honor, can we approach the bench?
“THE COURT: Uh-huh.
“BENCH CONFERENCE:
“[Prosecutor]: We want to interpose an objection at this point. The defense has not supplied us with any information like this. He’s asked a purely illegal question and he knows it’s illegal to ask and we’d object and we ask for curative instructions at this point.
“[Defense Counsel]: Judge, this is, I believe, going to be a crime of moral turpitude, this is contributing to the delinquency of a minor.
“THE COURT: It seems to me.
“[Prosecutor]: And under the rules, he knew that and we want curative instructions.
“[Defense Counsel]: It is a moral turpitude, therefore, it isn’t necessary. Contributing to the delinquency of a minor—
“[Another Prosecutor]: Was there a conviction?
“[Another Defense Counsel]: I don’t know.
“THE COURT: Contributing to the delinquency of a minor can be as asking a kid to run a stop sign.
“[Prosecutor]: Judge, co-counsel here said they didn’t even know if there was a conviction on it and they haven’t supplied anything. He knew — we ask for instructions, he was intentionally doing that—
“THE COURT: That’s okay, it’s close to 4:00 and everybody is irritable.
“[Defense Counsel]: Judge in my defense, I just found out about it myself. She’s just revealed it to me.
“THE COURT: Okay. That’s fine. That’s fine.
“(END OF BENCH CONFERENCE)
“THE COURT: Ladies and gentlemen of the jury I’m instructing you to disregard any statements or testimony or answers with regard to a charge of, I think they said distributing, but it’s contributing to the delinquency of a minor. That has nothing to do with anything of this case, all right, so just do away with that.”
(R. 576-578.)
Thereafter, the next day, the following transpired:
“[Prosecutor]: Judge, we have filed and gave them a copy of a Motion in Limine.
“THE COURT: Uh-huh, What does it say?
“[Another Prosecutor]: Basically it says anymore questions concerning bad acts of Timothy Richards prior to his meeting the defendant, in front of the jury without being screened, we just thought the way they’ve asked those things, the basically unsubstantiated allegations they’ve asked him about—
“THE COURT: Oh—
“[Prosecutor]: — and it’s just gotten to the point of recklessness—
“[Prosecutor]: Not only that, but they’re throwing out child molestation with no basis for asking the question, there’s no basis or fact for any of that, before they do that we’d ask that they at least approach the bench.
“THE COURT: Uh-huh.
“[Another Prosecutor]: Do you want Tim now or do you want to discuss this first? Richards, the witness.
“THE COURT: They don’t want to do that anymore.
*1148 “[Prosecutor]: Do you want to tell them or—
“THE COURT: I want to be put on notice for any bad acts that you may be wanting to bring out with regard to any witness, give me some notice beforehand so I can rule on it. Okay. Bring the jury in.
“[Another Prosecutor]: One minute. Your Honor.
“[Another Defense Counsel]: We probably need to go ahead and take it up now.
“THE COURT: What? What is it?
“[Defense Counsel]: Judge, this is what we were just discussing, those are the originals. Ed’s got to find something, just a moment. Your Honor.
“[Another Defense Counsel]: Do you want a few minutes to look at that? We just got that copy Friday afternoon.
“[Prosecutor]: Yes, it’s the first time we’ve seen—
“[Another Defense Counsel]: Well, we would have given it to you earlier if we had it earlier. We left here and went straight to the courthouse.
“[Defense Counsel]: There’s a narrative in there. Your Honor,
“THE COURT: A what?
“[Defense Counsel]: A narrative — a deposition, I mean, there’s two of them, one you can read and one you can’t.
“THE COURT: This is one?
“[Defense Counsel]: Yes, sir.
“THE COURT: Was he charged with something on this?
“[Defense Counsel]: Yes, sir.
“THE COURT: Was there a conviction on this?
“[Another Defense Counsel]: Yes, sir, there’s two convictions. These are— there were originally six cases, three were dismissed and three were pled to.
“THE COURT: Uh-huh.
“[Another Defense Counsel]: One was a violation of 13A-12—
“THE COURT: Don’t give me numbers, tell me what it is.
“[Another Defense Counsel]: It’s distribute material which is harmful to a minor, to wit:—
“THE COURT: Is that a felony?
“[Another Defense Counsel]: It’s not a felony, but it’s a crime of moral turpitude we would argue.
“[Another Prosecutor]: But it’s not moral turpitude—
“THE COURT: Give me a list.
“[Another Defense Counsel]: Sir?
“THE COURT: There’s a list somewhere of moral turpitude crimes — I assume you’ve seen it?
“[Another Defense Counsel]: I expect that’s a determination made by the trial court. There’s a—
“THE COURT: Oh, no, we don’t make these things up,—
“[Another Defense Counsel]: Judge, the Section 12-21-162 governs that issue.
“THE COURT: Uh-huh. What does it say?
“[Another Defense Counsel]: It says that in cross-examining a witness with regard to credibility, the witness can be examined, touching on a conviction for a crime involving moral turpitude.
“THE COURT: Uh-huh.
“[Another Defense Counsel]: And his answers may be — may be contradicted by other evidence if they don’t speak truthfully with regard to that. We would argue that distributing pornographic material to a minor—
“THE COURT: Is a felony.
“[Another Defense Counsel]: It is not a felony—
“[Defense Counsel]: No, sir, but it — it’s definitely a crime involving moral turpi *1149 tude when you’re giving young girls who seem like they’re nine or ten by the way they write—
“THE COURT: That sounds good, but that ain’t how the law works.
“[Another Prosecutor]: Your Honor, I think it’s been something that anyone might simply deny, talking about prior convictions and the standard now is no longer moral turpitude, but goes to the truthfulness or falsity of the statement, either more than a year imprisonment or any conviction, I think it’s on the top of the next page, any conviction concerning truthfulness.
“THE COURT: Can you show me where /alls case is in this?
“[Another Defense Counsel]: This is the statute.
“THE COURT: Oh, I know there’s a statute against it. I’m looking for why it would be admissible.
“[Another Defense Counsel]: It would be—
“[Defense Counsel]: Uh — go ahead.
“[Another Defense Counsel]: It’s a crime of moral turpitude. Your Honor.
“THE COURT: You’re just using that word.
“[Another Defense Counsel]: Yes, sir.
“THE COURT: You’re just using the word moral turpitude.
“[Another Defense Counsel]: Yes, sir.
“THE COURT: Does this involve impeachment?
“[Another Defense Counsel]: That involves impeachment, Judge. I believe the defendant in that — or the witness in that case had testified untruthfully with regard to prior convictions—
“THE COURT: Yeah. Untruthfully with regard — the untruthful part is the main part.
“[Another Defense Counsel]: Well—
“[Defense Counsel]: Yes, sir, he—
“[Another Defense Counsel]: Well, in this particular instance. Your Honor, the witness denied—
“[Prosecutor]: No he didn’t.
“[Another Defense Counsel]: He did. We can get her to read that back, Your Honor.
“[Prosecutor]: We need to because he didn’t.
“[Another Defense Counsel]: He said that he didn’t do that—
“[RICHARDS 2 ]: That was my sister’s doing, I didn’t do that, that was dismissed.
“[Another Defense Counsel]: And that simply [is] not true.
“[Another Prosecutor]: First off I’m asking—
“THE COURT: Was it dismissed?
“[Defense Counsel]: No, sir, he pled guilty to the crime—
“[Another Prosecutor]: — what gets you to ask—
“(SPEAKING SIMULTANEOUSLY)
“[Defense Counsel]: — on all three charges—
“[Another Prosecutor]: He admitted to pleading guilty to—
“[Prosecutor]: To contributing.
“[Another Prosecutor]: — contributing.
“[Prosecutor]: He admitted to pleading guilty.
“[Another Defense Counsel]: He didn’t admit to pleading guilty to distribution.
*1150 “[Another Prosecutor]: Well you didn’t ask him that—
“[Another Defense Counsel]: Well, we did—
“[Another Prosecutor]: — you asked him about child molestation is what you asked him about.
“[Prosecutor]: Yeah, you asked him about child molestation.
“THE COURT: Okay. Let’s get the jury in here. Get them in here. I’m not going to let — that is not a crime involving moral turpitude as per any lists that I’ve got.
“[Prosecutor]: And going into the specifics wouldn’t be anyway.
“THE COURT: Nuh-uh.-
“[Defense Counsel]: Judge, the point is he did deny it and we feel that it does involve moral turpitude because he’s distributing—
“THE COURT: Well, you asked contributing to the delinquency of a minor.
“[Defense Counsel]: Yes, sir.
“THE COURT: That’s not—
“[Another Prosecutor]: Even the question was—
“THE COURT: Yeah, that question is bad. And the jury was instructed to disregard it.
“[Another Defense Counsel]: With regard to denying what was — what the conviction itself—
“THE COURT: You find me where this is — I mean, John Q. Everyday Citizen says, ‘Of course, that involves morals and, of course, that is a bad thing.’ That’s not how the law works. Writing a bad check used to be involving moral turpitude. It’s not anymore, it’s not today. And that’s because the Courts have changed it.
“[Another Defense Counsel]: Well, the case that I’ve brought the Court is with regard to—
“THE COURT; He was lying about?
“[Another Defense Counsel]: Lying about prior convictions
“THE COURT; Is that what—
“[Another Defense Counsel]: And the witness in this case was cross examined with regard to prior convictions. He denied the prior conviction and we have proof of that prior conviction.
“THE COURT: That certainly, absolutely should be denied — I mean, that should be allowed if he denies pertinent convictions.
“[Another Defense Counsel]: If the conviction itself is relevant to the case.
“THE COURT: Yeah.
“[Another Prosecutor]: If the conviction involved moral turpitude.
“[Another Defense Counsel]: Well, that particular case involves the defendant opening the door.
“THE COURT: Right.
“[Another Defense Counsel]: And we would argue that the witness has opened—
“THE COURT: No.
“[Another Prosecutor]: No, you can’t ask the question, ‘Have you been convicted?’ and say that’s opening the door.
“THE COURT: Nuh-uh, you cannot— you cannot ask a question that can’t be admitted into evidence and then rebut it by something else. Overruled.”
(R. 582-91).
Rule 609, Ala.R.Evid., addresses the impeachment of witnesses by evidence of convictions of crimes, as follows:
“a) General Rule. For the purpose of attacking the credibility of a witness,
“(1)(A) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by *1151 death or imprisonment in excess of one year under the law under which the witness was convicted, and
“(1)(B) evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and
“(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.”
The Advisory Committee Notes to this section state that § 12-21-162(b), Ala. Code 1975, which had authorized impeachment by evidence of crimes involving moral turpitude was superceded by Rule 609. 3 These notes further state that an alternate test for determining the propriety of the prior conviction for impeachment purposes was established: one as to seriousness, specifying the crime carry a sentence of at least one year or death; and the other requiring that the crime involved dishonesty or false statement. As to the latter, the Notes explain:
“Crimes involving ‘dishonesty or false statement,’ as indicated in the report of the Senate Committee on the Judiciary during the process of adopting the corresponding Federal Rule 609, include crimes ‘such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement or false pretense, or any other offense, in the nature of crimen falsi the commission of which involves some element of untruthfulness, deceit, or falsification bearing on the accused’s propensity to testify truthfully.’ Senate Comm. on Judiciary, Fed. Rules of Evidence, S.Rep. No. 1277, 93d Cong., 2d Sess., 14 (1974).”
In Adams v. State, 955 So.2d 1037, 1081-83 (Ala.Crim.App.2003), writ. granted in part, reversed in part on other grounds, Ex parte Adams, 955 So.2d 1106 (Ala.2005), Adams argued that his cross-examination of a State’s witness was improperly restricted because he was not allowed to question the witness concerning his prior convictions for encouraging the delinquency of a minor and for indecent exposure. Adams argued that, pursuant to Rule 609, Ala.R.Evid., he should have been allowed to impeach the witness with evidence of these prior convictions. Noting that Rule 609 “significantly narrowed the definition of crimes that were admissible to impeach a witness,” 955 So.2d at 1082, this Court held:
“Alabama has never held that the crimes of indecent exposure and contributing to the delinquency of a minor are crimes that fit within the definition of Rule 609, Ala.R.Evid. Indeed, neither crime involves dishonesty or false statements and have no bearing on a person’s ability to testify truthfully. Compare Alfa Mutual General Insurance Company v. Oglesby, 711 So.2d 938 (Ala.1997) (‘[t]he courts of this state have not determined whether indecent exposure is a crime involving moral turpitude’), with Duckett v. State, 61 Md.App. 151, 157 , 485 A.2d 691, 694 (1985), aff'd, 306 Md. 503 , 510 A.2d 253 (1986) (‘We hold, therefore, that, for purposes of impeachment, indecent exposure is not an infamous crime, a crime of moral turpitude, a felony, nor a crime involving dishonesty or deceit’).”
955 So.2d at 1083.
Because the crime of distribution of harmful material to a minor is a misde *1152 meanor, see § 18A-12-200.5(1), Ala.Code 1975, and is not an offense which would bear on the witness’s propensity to testify truthfully, it is not admissible under Rule 609 for impeachment purposes. Therefore the trial court properly prevented Johnson from introducing evidence of these convictions and her constitutional rights were not violated because of this restriction of cross-examination. 4
Moreover, the trial court properly prevented the admission of this evidence during the penalty phase of Johnson’s trial before the jury. Richards’s prior convictions for distributing harmful material to a minor did not constitute a statutory mitigating circumstance and this evidence was properly held to not constitute a nonstatu-tory mitigating circumstance.
“The United States Supreme Court had declared that a defendant convicted of capital murder must be allowed to present at the sentencing hearing a broad range of proposed mitigating evidence. The Court held:
“ ‘[W]e conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.’
“Lockett v. Ohio, 438 U.S. 586, 604 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978) (footnotes omitted).
“By statute, Alabama law allows a broad spectrum of evidence to be offered as mitigation:
“ ‘In addition to the mitigating circumstances specified in Section 13A-5-51, mitigating circumstances shall include any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant offers as a basis for a sentence of life imprisonment without parole instead of death, and any other relevant mitigating circumstance which the defendant offers as a basis for a sentence of life imprisonment without parole instead of death.’
Ҥ 13A-5-52, Ala.Code 1975.
“Our Supreme Court has previously stated:
“ ‘To determine the appropriate sentence, the sentencer must engage in a “broad inquiry into all relevant mitigating evidence to allow an individualized determination.” Buchanan v. Anqelone, 522 U.S. 269, 276 (1998). Alabama’s sentencing scheme broadly allows the accused to present evidence in mitigation. Jacobs v. State, 361 So.2d 640, 652-53 (Ala.1978). See 13A-5-45(g), Ala.Code 1975 (“The defendant shall be allowed to offer any mitigating circumstance defined in Sections 13A-5-51 and 13A-5-52.”). “[Ejvidence about the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse.” California v. Brown, 479 U.S. 538 (1987) (O’Connor, J., concurring specially).’
*1153 “Ex parte Smith, [Ms. 1010267, March 14, 2003] - So.3d [-] at -[(Ala.2003)].
“Evidence proffered in mitigation by the defendant must be relevant, however, and the determination of relevance is a decision for the trial court to make in the sound exercise of its discretion. Knotts v. State, 686 So.2d 431, 444 (Ala.Crim.App.1995), aff'd, 686 So.2d 486 (Ala.1996). We stated in Knotts :
“ ‘The determination of the relevancy of evidence lies within the sound discretion of the trial court. Borden v. State, 522 So.2d 333 (Ala.Cr.App.1988); C. Gamble, McElroy’s Alabama Evidence, § 21.01(6) (4th ed.1991). Here, the trial court was required to admit all relevant mitigating evidence of the appellant’s character or record and any circumstances pertaining to the offenses.’ ”
Beckworth v. State, 946 So.2d 490, 504-05 (Ala.Crim.App.2005).
“Although a defendant’s right to present proposed mitigating evidence is quite broad, evidence that is irrelevant and unrelated to a defendant’s character or record or to the circumstances of the crime is properly excluded. See Beckworth v. State, 946 So.2d at 507 (evidence that Beckworth’s father was currently charged with sexually abusing Beckworth’s daughter was properly excluded because it was irrelevant).” Woods v. State, 13 So.3d 1, 33 (Ala.Crim.App.2007) (finding “no error, plain or otherwise, as to this claim”).
“ ‘ “While Lockett [v. Ohio, 438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978) ] and its progeny require consideration of all evidence submitted as mitigation, whether the evidence is actually found to be mitigating is in the discretion of the sentencing authority.” Bankhead v. State, 585 So.2d 97, 108 (Ala.Cr.App.1989).’ Ex parte Slaton, 680 So.2d 909, 924 (Ala.1996). Finally, although the trial court must consider all mitigating circumstances, it has discretion in determining whether a particular mitigating circumstance is proven and the weight it will give that circumstance. See Williams v. State, 710 So.2d 1276 (Ala.Crim.App.1996), aff'd, 710 So.2d 1350 (Ala.1997).”
Sharp v. State, [Ms. CR-05-2371, December 19, 2008] - So.3d -, - (Ala.Crim.App.2008) (opinion on return to remand).
Here, Richards’s prior convictions do not constitute one of the statutorily enumerated mitigating circumstances in § 13A-5-51, Ala.Code 1975, as these all address the circumstances and conduct of the capital defendant. Moreover, the trial court did not abuse its discretion in determining that Richards’s prior convictions did not constitute a nonstatutory mitigating circumstance.
II.
Johnson argues that the trial court inaccurately and improperly instructed the jury on the aggravating circumstance of “hindering government functions,” § 13A-5-49(7), Ala.Code 1975, so that the jury was “virtually ensured” to find its existence. (Johnson’s Brief on Appeal at 24.) Specifically, Johnson contends that the trial court’s written instructions to the jury concerning the aggravating circumstance of hindering government functions improperly equated it with the aggravating portion of the capital offense for which she was charged. § 13A-5-40(14), Ala.Code 1975. These written instructions were taken from the State’s Motion for Consideration of Aggravating Circumstances.
Section 13A-5-40(14), Ala.Code 1975, sets out the capital offense of murder “when the victim is subpoenaed, or has been subpoenaed, to testify, or the victim *1154 had testified, in any preliminary hearing, grand jury proceeding, criminal trial or criminal proceeding of whatever nature, or civil trial or civil proceeding of whatever nature, in any municipal, state, or federal court, when the murder stems from, is caused by, or is related to the capacity or role of the victim as a witness.”
The record indicates that after the jury had begun deliberations on the sentencing part of the trial, a question was submitted to the judge requesting a list of examples of mitigating and aggravating circumstances, because the jury stated that the trial court had read the instructions too quickly. (R. 1314.) The trial judge again orally instructed them as to the two aggravating circumstances that they were to consider and stated, “The two that you are to address, and in that I’m giving them to you does not mean that they exist, you make the determination of whether they exist or not.” (R. 1314.) He then tore off the bottom portion of a State’s motion, which contained the two aggravating circumstances. The prosecutor stated to the judge that defense counsel had previously mentioned that “there’s general rules regarding written materials and instructions.” (R. 1315.) The trial court responded, “No.” (R. 1315.)
After the trial court completed his instructions to the jury but before the jury retired, the trial court conducted a bench conference. The prosecutor noted that under § 13A-5-45(e), Ala.Code 1975, the underlying part of a capital offense which was proven by the jury’s verdict as having been found beyond a reasonable doubt is considered proven as to that aggravating circumstance at sentencing. (R. 1320.) The trial court responded that he felt certain that the jury was aware of that, and defense counsel stated that “I [Defense Counsel] pointed that out.” (R. 1320.) A review of the arguments made to the jury by defense counsel and the prosecutor indicate that they felt that the jury’s verdict showed a finding of the existence of the same evidence which would establish the aggravating circumstance of interference with a government function. (R. 1309-10, 1313.) The prosecutor also argued concerning the importance of protecting witnesses to the justice system. (R. 1312-13.)
Johnson raised no objections to the trial court’s instruction and defense counsel stated that he had informed the jury that by finding Johnson guilty beyond a reasonable doubt of the capital offense, they would be finding the existence of the aggravating circumstance. Therefore we review this issue for plain error pursuant to Rule 45A, Ala.R.App.P.
“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.”
Rule 45A, Ala.R.App.P. “ ‘Plain error is defined as error that has “adversely affected the substantial right of the appellant.” ’ ” Ex parte Brown, 11 So.3d 933, 936 (Ala.2008), quoting Hall v. State, 820 So.2d 113, 121 (Ala.Crim.App.1999).
“ ‘The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal. As the United States Supreme Court stated in United States v. Young, 470 U.S. 1 , 105 S.Ct. 1038 , 84 L.Ed.2d 1 (1985), the plain-error doctrine applies only if the error is “particularly egregious” and if it “seriously affectfs] the fairness, integrity *1155 or public reputation of judicial proceedings.” See Ex parte Price, 725 So.2d 1068 (Ala.1998), cert. denied, 526 U.S. 1138 , 119 S.Ct. 1809 , 143 L.Ed.2d 1012 (1999); Burgess v. State, 723 So.2d 742 (Ala.Crim.App.1997), aff'd, 723 So.2d 770 (Ala.1998), cert. denied, 526 U.S. 1052 , 119 S.Ct. 1360 , 143 L.Ed.2d 521 (1999); Johnson v. State, 620 So.2d 679, 701 (Ala.Crim.App.1992), rev’d on other grounds, 620 So.2d 709 (Ala.1993), on remand, 620 So.2d 714 (Ala.Crim.App.), cert. denied, 510 U.S. 905 , 114 S.Ct. 285 , 126 L.Ed.2d 235 (1993).’
“Hall v. State, 820 So.2d 113, 121-22 (Ala.Crim.App.1999), aff'd, 820 So.2d 152 (Ala.2001). Although the failure to object will not preclude our review, it will weigh against any claim of prejudice. See Dill v. State, 600 So.2d 343 (Ala.Crim.App.1991), aff'd, 600 So.2d 372 (Ala.1992).”
Sale v. State, 8 So.3d 330, 345 (Ala.Crim.App.2008).
The State’s Motion for Consideration of Aggravating Circumstances sets out the pertinent aggravating circumstance as follows:
“2. That the murder by the Defendant was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws; to wit: that the murder stemmed from, was caused by, or was related to Randy McCullar’s role as a witness.”
This sets out the statutory language establishing the aggravating circumstance followed by the evidence which the State argued would prove its existence, in similar form to an indictment. The jury was aware of the State’s argument and was instructed that it was its duty to determine whether the necessary facts existed to establish the existence of the aggravating circumstance.
The jury’s verdict finding that Johnson murdered McCullar where the murder stemmed from his role as a witness did not automatically require a finding of the existence at sentencing of the aggravating circumstance that the murder was committed to disrupt or hinder governmental functions. However, the same evidence may be used to establish both the underlying aggravation in the offense as the aggravating circumstance, depending on the case.
In Whitehead v. State, 777 So.2d 781 (Ala.Crim.App.1999), Whitehead was convicted of two capital offenses for murdering a witness in a theft proceeding against him. In finding that these verdicts did not constitute aggravating circumstances at sentencing, this Court stated:
“The record reveals that the jury was properly instructed on the aggravating circumstances it could consider and the process to be used in weighing the aggravating and mitigating circumstances found to exist in the case. The fact that the murder victim was a witness, both a witness who had testified in a criminal proceeding and a witness who had been subpoenaed to testify in a criminal proceeding, is not an aggravating circumstance for the jury’s consideration in determining the proper sentence under § 13A-5-49, Ala.Code 1975. The jury was instructed accordingly, and jurors are presumed to follow the instructions of the trial court. See Taylor v. State, 666 So.2d 36 (Ala.Cr.App.), aff'd, 666 So.2d 73 (Ala.1995), cert. denied, 516 U.S. 1120 , 116 S.Ct. 928 , 133 L.Ed.2d 856 (1996). We note that in its sentencing order, the trial court stated that it was fully aware that the murder of a witness was not an aggravating circumstance provided for in § 13A-5-49, and that it had considered only the aggravating circumstances provided for by stat *1156 ute in reaching its sentencing determination.”
777 So.2d at 819 .
Thus, a verdict of guilt under § 13A-5-49(7), Ala.Code 1975, does not automatically result in the finding of an aggravating circumstance, as in the situations described in § 13A-5^45(e). 5 See McNabb v. State, 887 So.2d 929, 994-95 (Ala.Crim.App.2003) (finding that the capital murder of a police officer does not necessarily include conduct that corresponds with the aggravating circumstance of disrupting or hindering the lawful exercise of any governmental function or the enforcement of the laws).
Here, the evidence that Johnson murdered McCullar because he was going to testify in the bigamy proceedings against her both supported the jury’s verdict and proved the aggravating circumstance. See State v. Bethel, 110 Ohio St.3d 416, 448 , 854 N.E.2d 150, 186 (2006) (Be-thel was properly found guilty of capital murder with the aggravating portion that the victim was a witness to another offense and that he was killed to prevent his testimony; and one of the aggravating circumstances was properly found to be that Bethel committed the murder to “escape detection, apprehension, trial, or punishment for another offense.... ”). See also Ex parte Baker, 906 So.2d 277, 288 (Ala.2004) (the trial court’s reliance on the hindering the lawful exercise of governmental function aggravating circumstance based on Baker’s wife’s charge of assault III against him was contradicted by the trial court’s finding that Baker planned to kill his wife due to jealousy). The jury was correctly orally charged by the trial court as to its duty and, although the written instruction given to the jury also included the evidence which the State sought the jury to find to support the aggravating circumstance, it did not unduly coerce such a finding. Moreover, Rule 21.1, Ala.R.Crim. P., designates that the ordinary procedure shall be that written instructions to the jury will not be taken back for deliberations; however, the rule recognizes that in a complex case, the jury may be aided in understanding the issues by having a copy of the charges with them. Rule 21.2 states in pertinent part that “[n]either a copy of the charges against the defendant nor the ‘given’ written instructions shall go to the jury room; provided, however, that the court may, in its discretion, submit the written charges to the jury in a complex case.” Thus, in a case such as the present, that involves capital murder and where the jury clearly indicated by its question that it was having difficulty understanding the aggravating and mitigating circumstances, the trial judge did not abuse his discretion in deciding to send the written instructions back with the jury.
We find no plain error as to the trial court’s written instructions on the aggravating circumstance of hindering or disrupting governmental functions.
III.
Johnson argues that the trial court improperly refused to accept the jury’s initial decision to recommend a sentence of life without parole and effectively coerced the jury into returning an advisory verdict of death. She further argues that *1157 the trial court should have declared a mistrial if it did not accept the jury’s verdict.
The record reveals that the jury initially returned two advisory verdict forms, one stated that the jury was recommending a sentence of life without parole but indicated a vote of nine in favor of the death penalty and three in favor of life without parole and the other stated that the jury was recommending a sentence of death and indicated a vote of nine in favor of the death penalty and three in favor of life without parole. (R. 1324-25.) The trial court received the verdict and stated, “We need to redo it, don’t we?” (R. 1322.) The prosecutor stated that “[a]s I understand it, that would be a non-recommendation.” (1322.) Defense counsel agreed. The trial court instructed the jury as to the requisite votes for each sentencing verdict (R. 1322-33), and the jury again deliberated.
The jury returned with a verdict form and, before receiving it, the trial court ensured that the jury understood the voting requirements. (R. 1323-24.) The jury recommended a sentence of death by a vote of 11 in favor of the death penalty and 1 in favor of life without parole. The jury was polled to verify the vote.
During a conference held in the judge’s chambers, both defense counsels argued that because the jurors had originally handed the judge the form that stated that they were recommending a sentence of life without parole, they had made their decision. They argued that the jury had been deadlocked and asked for a mistrial. The prosecutors argued that the jurors had clearly been confused by the verdict forms, but that their vote had been consistent; therefore, the prosecutor argued, the trial court had properly instructed them on the numbers required for each sentencing verdict. Moreover, they noted that there was no indication that the jury had been deadlocked.
“The decision of the jury to return an advisory verdict recommending a sentence of life imprisonment without parole must be based on a vote of a majority of the jurors. The decision of the jury to recommend a sentence of death must be based on a vote of at least 10 jurors. The verdict of the jury must be in writing and must specify the vote.”
§ 13A-5-46(f), Ala.Code 1975.
Thus, the jury’s advisory verdict in the present case did not originally follow proper sentencing mandates and it was clear that the jurors were confused when they used both of the verdict forms sent back to reflect their vote. See Johnston v. Bowersox, 119 F.Supp.2d 971, 990-91 (E.D.Mo.2000) (where jury returned an improper verdict form advising a sentence of death, the court properly refused the first verdict form, instructed the jury to re-read the instructions and sent the jury back with the instructions and the verdict form). See also Perkins v. State, 808 So.2d 1041, 1135-36 (Ala.Crim.App.1999), affirmed, Ex parte Perkins, 808 So.2d 1143 (Ala.2001), cert. granted and judgment vacated on other grounds, Perkins v. Alabama, 536 U.S. 953 , 122 S.Ct. 2653 , 153 L.Ed.2d 830 (2002) (where the jury indicated a vote of 11 jurors in favor of death when polled rather than 10 jurors in favor of death as reflected on the verdict form, it was clear that 1 of the jurors was affirming the jury’s vote rather his or her own and no error occurred).
In Hart v. State, 612 So.2d 520, 532-33 (Ala.Crim.App.1992), affirmed, Ex parte Hart, 612 So.2d 536 (Ala.1992), cert. denied, Hart v. Alabama, 508 U.S. 953 , 113 S.Ct. 2450 , 124 L.Ed.2d 666 (1993), Hart argued that the trial court erred when it sent the jury back to deliberate after it had returned a verdict of nine in favor of *1158 the death penalty and three in favor of life without parole. Thereafter, the jury returned a verdict of 11 in favor of the death penalty and 1 in favor of life without parole. This Court found no error by the trial court in that the verdict did not comport with the statute and there was no evidence of coercion by the trial court. Quoting Kuenzel v. State, 577 So.2d 474, 524 (Ala.Crim.App.1990), affirmed, Ex parte Kuenzel, 577 So.2d 531 (Ala.1991), cert. denied, Kuenzel v. Alabama, 502 U.S. 886 , 112 S.Ct. 242 , 116 L.Ed.2d 197 (1991), this Court stated:
“ ‘[I]t does appear that the first verdict of the jury was not proper under § 13A-5-46(f), which provides:
“ ‘ “The decision of the jury to return an advisory verdict recommending a sentence of life imprisonment without parole must be based on a vote of a majority of the jurors. The decision of the jury to recommend a sentence of death must be based on a vote of at least ten jurors. The verdict of the jury must be in writing and must specify the vote.”
“ ‘The jury’s first verdict was not responsive to the instructions of the trial judge or to the requirements of law.
“ ‘ “Nothing seems better settled than that it is the duty of the court to look after the form and substance of the verdict of the jury, so as to prevent an unintelligible or insufficient verdict from passing into the records of the court.” Martin v. State, 29 Ala.App. 395, 396 , 196 So. 753, 753-54 (1940). Accord, Bentley v. State, 20 Ala.App. 635 , 104 So. 679 (1925). The instructions of the trial judge sending the jury back for further deliberations did not constitute a directed verdict or deprive the defendant of the “leniency of the jury.” United States v. Walker, 456 F.2d 1037, 1039 (5th Cir.1972). Where the verdict of the jury is not responsive to the instructions of the trial judge and the requirements of the law, the trial judge has a duty to reject that improper verdict and require the jury to resume its deliberations. Doughty v. State, 228 Ala. 568, 570 , 154 So. 778, 779-80 (1934).’ ”
612 So.2d at 532-33.
Here, the trial court also properly recognized that the jury’s verdict was not proper under § 13A-5-46(f), Ala.Code 1975, and sent the jury back to reconsider its recommended sentence. There was no indication of coercion by the trial court as to what decision that the jury should make. In fact, the trial court advised the jury that it “should not be influenced in any way by what [it] may imagine to be the views of the Court on any such subject.” (R. 1244-54.) The trial court further instructed the jury that “no statement, question, ruling, remark or other expression that has been made by the Court at anytime during the course of this trial either during the guilt phase or during the sentencing hearing is intended to indicate any opinion of what the facts are or what the punishment should be.” (R. 1244.) There was no error, plain or otherwise, as to this matter.
IV.
Johnson argues that the trial court erred by requesting that the jury have certain members to write down the instructions given to them at the close of the guilt and penalty phases of her trial to use as reference during deliberations. She contends that this led to an unreliable verdict and sentence.
The record indicates that as the judge instructed the jury concerning the purpose and use of charges prior to the jury’s retiring to deliberate at the guilt phase, he stated the following:
*1159 “Now the law is a very specific thing. And I would suggest to all the juries that they nominate a couple of folks to write down the law. And I will read it slowly enough for you to get it down exactly, so that you will have the exact law with you when you retire. And I think that’s important.”
(R. 1208.) No objection was raised by Johnson as to this instruction or when the trial court supplied the jury with pens and pads before they were charged as to the sentencing phase. (R. 1283.) Therefore, we review this issue for plain error. Rule 45A, Ala.R.App.P.
As set out in Issue II, supra, Rule 21.1, Ala.R.App.P. states in pertinent part that “[njeither a copy of the charges against the defendant nor the ‘given’ written instructions shall go to the jury room; provided, however, that the court may, in its discretion, submit the written charges to the jury in a complex ease.” Moreover, the determination of whether the jury would be aided by having a copy of the instructions or notes thereon is a matter better suited to the trial court’s discretion.
“A trial court’s determination on whether to submit written charges to the jury in a complex case will not be overturned absent a showing of an abuse of discretion. See Wright v. State, 740 So.2d 1147 (Ala.Cr.App.1999) (sending written charges to the jury during deliberations was not an abuse of discretion). See also Gaddy v. State, 698 So.2d 1100, 1147 (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) (denying a request to send written charges back with the jury during its deliberations during the guilt phase in a capital murder trial was not error).”
Apicella v. State, 809 So.2d 841, 862 (Ala.Crim.App.2000), affirmed, Ex parte Apicella, 809 So.2d 865 (Ala.2001), cert. denied, Apicella v. Alabama, 534 U.S. 1086 , 122 S.Ct. 824 , 151 L.Ed.2d 706 (2002).
Here, where the case involved capital murder and a number of complexities, there is no indication that the trial court abused its discretion by suggesting that the jury take notes of its instructions. Moreover, there is no indication that this suggestion adversely affected Johnson’s substantial rights.
V.
Johnson argues that numerous instances of prosecutorial misconduct denied her of a fair trial and accurate sentence determination.
A.
Johnson contends that the State convicted her based on irrelevant and overly prejudicial evidence concerning her promiscuity. Specifically, she argues that the State obscured the real issues and inflamed the jury by “sparing] no detail in presenting to the jury a picture of a promiscuous woman who was in several romantic relationships at once over a period of years and who had children by different men.” (Johnson’s brief at 38.)
However, as this Court has previously held, evidence of Johnson’s bigamy was relevant in the present case as a necessary element of the capital offense with which Johnson was charged, murder when the victim had testified as a witness in a criminal proceeding and the murder is related to the victim’s role as a witness. See Johnson v. State, 120 So.3d 1100, 1103-04 (Ala.Crim.App.2005). The bigamy charge was also relevant as it established motive. 120 So.3d at 1105-08. Additionally, her adulterous relationships were held to have been part of an unbroken chain of events that precipitated the murder, and that evidence was relevant to shed light on these *1160 events, which culminated in the murder. 120 So.3d at 1106-07.
Furthermore, as this Court has also previously resolved, the relevance of this evidence was not outweighed by its prejudicial impact. Johnson v. State, 120 So.3d at 1114. The State did not use this evidence to confuse the jury, or “ ‘to imply the inference of facts which do not exist,’ ” or “ ‘to bolster a weak case against the defendant.’” Blackmon v. State, 7 So.3d 397, 430 (Ala.Crim.App.2005). “Moreover, the evidence concerning Johnson’s adulterous affairs was not unduly or unfairly prejudicial, because it related to Johnson’s conviction for bigamy, Johnson’s motive, and the conspiracy theory.” 120 So.3d at 1113.
Because the evidence was relevant and not unduly prejudicial, the prosecutor’s conduct in presenting this evidence was not improper.
B.
Johnson alleges that the State repeatedly and unconstitutionally substituted emotions for facts to the jury. She cites to a comment made by the prosecutor during his closing argument to the jury, equating Johnson’s conduct with that of a Nazi commander; victim-impact testimony by the victim’s mother; and various questions posed by the prosecutor alluding to the fact that the victim was no longer present for the trial or for his family.
As to the prosecutor’s comment during his closing argument to the jury at the guilt phase, Johnson failed to object to the Nazi reference; thus, this issue must be evaluated pursuant to the plain error rule. Rule 45A, Ala.R.App.P.
The record indicates that the trial court cautioned the jury prior to closing arguments that the attorneys’ comments do not constitute evidence. Following the closing arguments, the judge instructed the jury that “if they (sic) attorneys have said anything, they, of course, definitely have feelings about the case, but you understand that their simple statements are not evidence, that what they said in closing and opening arguments are not evidence.” (R. 1214.) Thus, the jury was charged as to the way to evaluate such comments.
In Thomas v. State, 766 So.2d 860 (Ala.Crim.App.1998), overruled on other grounds, Ex parte Taylor, 10 So.3d 1075 (Ala.2005), the prosecutor commented that the murder “ ‘was more like some kind of Nazi war crime.’ ” This Court held that Thomas’s counsel was not ineffective for failing to object to this comment, and stated:
“ ‘ “In a proper case, the prosecuting attorney may characterize the accused or his conduct in language which, although it consists of invective or opprobrious terms, accords with the evidence of the case.’” Johnson v. State, 620 So.2d 679, 703 (Ala.Cr.App.1992) (the prosecutor’s reference to the ‘animalistic nature of the human mind’ and his comment that the offense was ‘absolutely filthy, horrendously dirty and despicable’ were ‘either proper statements of the evidence, proper inferences from the evidence, or conclusions that were properly drawn from the evidence,’ 620 So.2d at 702; also the prosecutor’s comment in penalty phase that the appellant was not a civilized human being was in accord with the evidence that the two victims had been brutally beaten and then their home set on fire), rev’d on other ground, 620 So.2d 709 (Ala.1993), cert. denied, 510 U.S. 905 , 114 S.Ct. 285 , 126 L.Ed.2d 235 (1993) (quoting Nicks v. State, 521 So.2d 1018, 1023 (Ala.Cr.App.1987), aff'd, 521 So.2d 1035 (Ala.1988), cert. denied, 487 U.S. 1241 , 108 S.Ct. 2916 , 101 L.Ed.2d 948 (1988)). See also Taylor v. State, 666 So.2d 36, 65 (Ala.Cr. *1161 App.1994) (characterizations of the crime as a ‘massacre’ and of the crime scene as a ‘slaughterhouse’ were proper inferences from the evidence), aff'd, 666 So.2d 73 (Ala.1995), cert. denied, 516 U.S. 1120 , 116 S.Ct. 928 , 133 L.Ed.2d 856 (1996); McMillian v. State, 594 So.2d 1253, 1262 (Ala.CrApp.1991) (comments characterizing the killing as ‘uncivilized’ and ‘befitting animals’ were reasonable inferences drawn from the evidence and legitimate comments on the evidence); Hurst v. State, 356 So.2d 1224, 1236 (Ala.Cr.App.1978) (prosecutor’s closing remark that ‘[t]his man slaughtered him’ did not overstep the bounds of fairness and impartiality). See also Wright v. State, 279 Ala. 543, 550-51 , 188 So.2d 272, 279 (1966) (‘[a]r-gument of counsel should not be so restricted as to prevent reference, by way of illustration, to historical facts’).”
766 So.2d at 954-55 .
In the present case, evaluating this comment by the prosecutor in the context of his argument and the evidence presented, this comment did not rise to the level of plain error.
Moreover, the victim-impact evidence to which Johnson alludes is testimony by the victim’s mother concerning the loss of her son. Johnson does not specify which statements by the witness during her testimony to which she is referring. No objection appears in the record during the witness’s guilt-phase testimony on this ground; therefore, we review this issue for plain error.
A review of the witness’s testimony reveals that there was no impropriety and that she made no statement amounting to victim-impact evidence during the guilt phase. Although she became upset once when she responded that the next time that she saw the victim following a phone call on the night of the offense was in his casket, this was not improper victim-impact testimony. Grayson v. State, 824 So.2d 804, 812 (Ala.Crim.App.1999), affirmed, Ex Parte Grayson, 824 So.2d 844 (Ala.2001), cert. denied, Grayson v. Alabama, 537 U.S. 842 , 123 S.Ct. 172 , 154 L.Ed.2d 66 (2002) (wherein testimony by the victim’s mother identifying her and stating that she had planned to return home was not victim-impact testimony and was relevant as to the timing of the victim’s death as well as to explain the location of the death). Here, the mother’s reference to the coffin was made in explaining the timing of his death.
“As the Alabama Supreme Court stated in Ex parte Rieber, 663 So.2d 999 (Ala.1995):
“ ‘It is presumed that jurors do not leave their common sense at the courthouse door. It would elevate form over substance for us to hold, based on the record before us, that [the appellant] did not receive a fair trial simply because the jurors were told what they probably had already suspected — that [the victim] was not a “human island,” but a unique individual whose murder had inevitably had a profound impact on her children, spouse, parents, friends, or dependents (paraphrasing a portion of Justice Souter’s opinion concurring in the judgment in Payne v. Tennessee, 501 U.S. 808, 838 , 111 S.Ct. 2597, 2615 , 115 L.Ed.2d 720 (1991)).’
“663 So.2d at 1006.”
Calhoun v. State, 932 So.2d 923, 969 (Ala.Crim.App.2005), cert. denied, Calhoun v. Alabama, 548 U.S. 926 , 126 S.Ct. 2984 , 165 L.Ed.2d 990 (2006). Moreover, there was no plain error to Johnson due to the witness crying. See Frazier v. State, 758 So.2d 577, 596 (Ala.Crim.App.1999), and the cases cited therein.
*1162 “In McNair v. State, 653 So.2d 320 (Ala.Cr.App.1992), this Court held:
“ ‘ “[A]s a general rule, a demonstration by, or the misconduct of, a bystander or spectator during a criminal trial — including even a disturbance having a tendency to influence or disturb the jury — is not deemed to be sufficient reason for the granting of a new trial unless it appears that the rights of the accused were prejudiced thereby, and, generally, in the absence of a showing to the contrary, it will be assumed that the jury was not prejudiced; similarly, manifestations of grief by spectators related to the victim of a crime, as a general matter, will not alone furnish good ground for a new trial, a showing being required that the case of the accused was prejudiced by such conduct.”
“‘Annot., 31 A.L.R.4th 229 , 234-35 (1984). This same general rule also applies to emotional manifestations made while testifying. 31 A.L.R.4th at 235-36. See Hall v. State, 500 So.2d 1282, 1290-91 (Ala.Cr.App.1986) (rape victim cried during her testimony); Smith v. State, 37 Ala.App. 116, 118 , 64 So.2d 620, 621 , cert. denied, 258 Ala. 647 , 64 So.2d 622 (1953) (assault victim “cried aloud” during testimony); James v. State, 44 Ala.App. 593, 595 , 217 So.2d 545, 547 (1969) (assault with intent to rape victim cried twice during testimony); Lee v. State, 265 Ala. 623, 627 , 93 So.2d 757, 761 (1957) (wife of deceased murder victim “sobbing” while testifying); Duff v. State, 40 Ala.App. 80, 83 , 111 So.2d 621, 624 (1958), cert. denied, 269 Ala. 696 , 111 So.2d 627 (1959) (mother of deceased murder victim “crying out loud” during prosecutor’s opening statement). This rule applies in capital cases. See Henderson v. State, 583 So.2d 276, 287 (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).
“ ‘The emotional manifestations present rise nowhere near the level presented in Collum v. State, 21 Ala.App. 220, 221 , 107 So. 35, 35-36 (1926) (new trial required where in a prosecution for seduction, the prosecutrix fainted in the witness chair, and mother came to her aid weeping and crying, “Nobody knows how much we have suffered over this trouble. Lord have mercy on us.”) and White v. State, 25 Ala.App. 323, 324 , 146 So. 85 (1933) (new trial required where widow of murder victim contradicted defense counsel during his closing argument).
“ ‘Here, as in Smith, 37 Ala.App. at 118 , 64 So.2d at 621: “The trial judge witnessed the incidents]. To him must of necessity be committed a wide discretion in determining whether or not the occurrence^] affected the rights of the accused to a fair, impartial trial.” We find no merit to the appellant’s argument that the prosecution should have been required to call witnesses who were not members of the victim’s family.’ ”
DeBruce v. State, 651 So.2d 599, 608-09 (Ala.Crim.App.1993), affirmed, Ex parte DeBruce, 651 So.2d 624 (Ala.1994).
There was no plain error in the victim’s mother’s testimony amounting to improper ■victim-impact testimony.
Finally, as to statements by witnesses that alluded to the victim’s inability to be present for the trial due to his death, these comments did not prejudicially impact Johnson’s trial. See Ex parte Walker, 972 So.2d 737, 747 (Ala.2007) (wherein although portions of the testimony by the capital-murder victim’s daughter and a friend may have been inappropriate, they did not prejudicially impact Walker’s trial). *1163 Thus, the State did not repeatedly or unconstitutionally substitute emotions for facts to the jury.
C.
Johnson alleges that the State improperly argued facts not in evidence; specifically, Johnson points to a portion of the prosecutor’s closing argument during the guilt phase wherein he addressed Richards’s testimony and the testimony by Richards’s sister. She argues that these witnesses did not give the testimony which the prosecutor argued to the jury. She argues that, by manufacturing testimony, the State deprived her of a fair trial.
Johnson cites the prosecutor’s argument during his closing at the guilt phase, concerning Richards’s testimony when he commented:
“Do you remember and Tim Richards tells us a story from October, mid October to late November, one thing after another she’s bringing up, the defendant is bringing up, saying, ‘We’ve got to get rid of Randy, we’ve got to get rid of Randy.’ What’s the first one? ‘Oh, the bigamy, I’m gonna go to jail, who’s gonna take care of the kids? You’ve got to — if you love me, you’re gonna take care of this for me.’ The second thing is the money. ‘Oh, Randy came into a lot of money, a couple hundred thousand dollars. If something happens to him, that money goes to Chad, the boy we have custody of and then we get it.’”
(R. 1173.)
Johnson argues that, although Richards testified that she had talked about losing custody of her child and the settlement money, she had never addressed the bigamy case. However, Richards clearly testified that one of Johnson’s reasons for wanting McCullar killed was due to the impending bigamy charges. In fact, the following dialogue occurred during the direct examination of Richards:
“Q: Did the defendant, Shonda Johnson, ever tell you why she wanted Randy McCullar killed?
“A: One was because he was filing bigamy charges on her. Another one was because he was trying to take a child away from her and there was a big money settlement in between this.”
(R. 468-69.)
Thus, the prosecutor accurately summarized this testimony by Richards.
As to the testimony by Richards’s sister, the prosecutor argued:
“Two days, before the killing and I think it’s crucially important, crucially important in this case, Audrey Gray [Richards’s sister] on Thanksgiving. You saw her take that witness stand. She gave information in this case, early before anybody’s charged. She said, ‘My brother did this. My brother’s involved.’ She didn’t have to tell us that. She implicated her brother in the killing of Randy McCullar.”
(R. 1204.)
During Richards’s trial testimony he stated that when he told his sister that Johnson had been questioned concerning McCullar’s death, his sister looked at him and said, “ Y’all did it, didn’t you?’ ” (R. 555.) He further quoted her as having said, “ Y’all had something to do with this, didn’t you?’ ” (R. 556.) Moreover, during Richards’s sister’s testimony at trial, she stated that two days prior to McCullar’s death, Johnson told her that she and Richards were going “head hunting.” (R. 733.) When Richards’s sister asked what that meant, Johnson responded that they had a gun in the trunk of their car. (R. 733.) She testified that “I looked at my brother and told him not to do anything stupid.” (R. 735.) She further testified that she *1164 was aware of the trouble that Richards and Johnson were having with MeCullar. (R. 734.) She stated that after the murder, her brother brought her a note and attempted to get her to establish an alibi for Johnson and him for the time of the murder. (R. 739.) Johnson told her that MeCullar had been shot and, when she asked what had happened to the gun in the back of the car, Johnson responded, “ ‘Don’t worry about it, it’s been taken care of.’ ” (R. 740^41.) Richards’s sister also testified that she eventually spoke to two police officers and gave them this same information. (R. 743.) She testified that by doing so she knew that her brother and Johnson were being implicated and would be prosecuted. (R. 743.)
Thus, the prosecutor’s argument as to what Richards’s sister had testified to was a reasonable inference from the evidence.
“ ‘ “ ‘During closing argument, the prosecutor, as well as defense counsel, has a right to present his impressions from the evidence, if reasonable, and may argue every legitimate inference.’ ” Reeves v. State, 807 So.2d 18, 45 (Ala.Crim.App.2000), quoting Rutledge v. State, 523 So.2d 1087, 1100 (Ala.Crim.App.1987) (citation omitted), rev’d on other grounds, 523 So.2d 1118 (Ala.1988).
“ ‘ “ ‘The test of a prosecutor’s legitimate argument is that whatever is based on facts and evidence is within the scope of proper comment and argument. Kirkland v. State, 340 So.2d 1139 (Ala.Crim.App.), cert. denied, 340 So.2d 1140 (Ala.1976 [1977]). Statements based on facts admissible in evidence are proper. Henley v. State, 361 So.2d 1148 (Ala.Crim.App.), cert. denied, 361 So.2d 1152 (Ala.1978). A prosecutor as well as defense counsel has a right to present his impressions from the evidence. He may argue every legitimate inference from the evidence and may examine, collate, sift, and treat the evidence in his own way. Williams v. State, 377 So.2d 634 (Ala.Crim.App.1979); McQueen v. State, 355 So.2d 407 (Ala.Crim.App.1978).’ ”
“‘Ballard v. State, 767 So.2d 1123, 1135 (Ala.Crim.App.1999), writ quashed, 767 So.2d 1142 (Ala.2000), quoting Watson v. State, 398 So.2d 320, 328 (Ala.Crim.App.1980), cert. denied, 398 So.2d 332 (Ala.), cert. denied, 452 U.S. 941 , 101 S.Ct. 3085 , 69 L.Ed.2d 955 (1981).’
“Johnson v. State, 823 So.2d 1, 47 (Ala.Crim.App.2001).”
Minor v. State, 914 So.2d 372, 426 (Ala.Crim.App.2004), cert. denied, Minor v. Alabama, 548 U.S. 925 , 126 S.Ct. 2977 , 165 L.Ed.2d 987 (2006). See Harris v. State, 2 So.3d 880, 921 (Ala.Crim.App.2007).
Here, the “prosecutor’s comments were based on evidence that had been introduced or were a legitimate inference that could have been drawn from the evidence. See Ballard [v. State, 767 So.2d 1123, 1135 (Ala.Crim.App.1999) ].” Smith v. State, [Ms. CR-97-1258, January 16, 2009] - So.3d -, - (Ala.Crim.App.2007) (opinion on return to fourth remand). Thus, there was no error in the prosecutor’s comments.
D.
Johnson argues that the prosecutor improperly expressed his opinions about the evidence and Johnson’s guilt by referring to her as a “liar” and vouching for the credibility of the State’s witnesses. However, Johnson cites no instance in which the prosecutor directly referred to her as a liar, nor does she cite any instance of vouching for a State’s witness. These objections were also not raised at trial.
*1165 However, any characterization of Johnson as a liar by the prosecutor would have been supported by the evidence in the present case because of the varying statements given by her to the police. She initially stated that she was in Tuscaloosa, Alabama, at the time of the murder, but eventually admitted that the first statement was untrue and cast the blame on Richards; she eventually admitted having been involved in the murder. Similarly, in Smith v. State, 795 So.2d 788 (Ala.Crim.App.2000), Smith argued that the prosecutor improperly referred to him as a liar. This Court stated:
“Clearly, this characterization of the appellant is supported by the record. Smith, in his first statement, totally denied any involvement in the robbery-murder. In the second statement he admitted his participation in the robber-murder. ‘[T]he prosecutor, in the appropriate case, may use opprobrious terms to characterize the accused or his conduct, provided that the remarks are in accord with the evidence.’ Bankhead [v. State, 585 So.2d 97, 105 (Ala.Crim.App.1989)].”
795 So.2d at 826 .
Further, there is no indication in the record that the prosecutor improperly vouched for the credibility of the State’s witnesses.
“ ‘A distinction must be made between an argument by the prosecutor personally vouching for a witness, thereby bolstering the credibility of the witness, and an argument concerning the credibility of a witness based upon the testimony presented at trial. “[Pjrosecutors must avoid making personal guarantees as to the credibility of the state’s witnesses.” Ex parte Parker, 610 So.2d 1181 (Ala.1992). See Ex parte Waldrop, 459 So.2d 959, 961 (Ala.1984), cert. denied, 471 U.S. 1030 , 105 S.Ct. 2050 , 85 L.Ed.2d 323 (1985).
“ ‘ “ ‘Attempts to bolster a witness by vouching for his credibility are normally improper and error.’ ... The test for improper vouching is whether the jury could reasonably believe that the prosecutor was indicating a personal belief in the witness’ credibility.... This test may be satisfied in two ways. First, the prosecution may place the prestige of the government behind the witness, by making explicit personal assurances of the witness’ veracity.... Secondly, a prosecutor may implicitly vouch for the witness’ veracity by indicating that information not presented to the jury supports the testimony.”
“ ‘United States v. Sims, 719 F.2d 375, 377 (11th Cir.1983), cert. denied, 465 U.S. 1034 , 104 S.Ct. 1304 , 79 L.Ed.2d 703 (1984).’
“DeBruce v. State, 651 So.2d 599, 610-11 (Ala.Crim.App.1993), aff'd, 651 So.2d 624 (Ala.1994).”
Brown v. State, 11 So.3d 866, 910-11 (Ala.Crim.App.2007), affirmed, Ex parte Brown, 11 So.3d 933 (Ala.2008), cert. denied, Brown v. Alabama, 557 U.S. 938 , 129 S.Ct. 2864 , 174 L.Ed.2d 582 (2009).
Here, there is no indication in the record that the prosecutor impermissibly vouched for any witness’s credibility as he never suggested that there was evidence undisclosed to the jury that would support a witness’s testimony nor did he ever make personal assurances of a witness’s veracity. Thus, there is no error on this ground.
E.
Johnson argues that the State mischar-acterized the law as to the jury’s responsibility for assessing the hindering governmental functions aggravating circumstance of § 13A-5-49(7), Ala.Code 1975. Johnson *1166 argues that the State improperly argued that the same evidence that supported a finding of guilt as to the aggravating element of the capital offense, concerning his role as a witness, also supported a finding of the hindering governmental functions aggravating circumstance at sentencing.
This matter has been discussed, supra, in Issue II. The same evidence that established that Johnson was hindering governmental functions by disabling a prosecution for bigamy by killing the complaining witness also established that she committed the murder by killing a witness who was to testify in the bigamy case. Thus, in the present case, the same evidence did establish both the underlying aggravating element of the capital offense and the aggravating circumstance at sentencing. See State v. Bethel, supra. Cf. Centobie v. State, 861 So.2d 1111 (Ala.Crim.App.2001) (evidence proved that Centobie was preventing a lawful arrest by an on duty police officer so as to satisfy both the aggravating circumstance of avoiding a lawful arrest and the underlying aggravating portion of the capital offense that the murder was of an on-duty police officer). McNabb v. State, 741 So.2d 488 (Ala.Crim.App.1998)(table), affirmed, Ex parte McNabb, 887 So.2d 998 (Ala.2004), cert. denied, McNabb v. Alabama, 543 U.S. 1005 , 125 S.Ct. 606 , 160 L.Ed.2d 466 (2004) (evidence proved that MeNabb murdered an on duty police officer who had witnessed his commission of another offense proved both the aggravating element of the capital offense, that the officer was on duty, and the aggravating circumstances that the crime was committed to hinder the lawful exercise of governmental functions and to avoid lawful arrest).
F.
Johnson contends that the prosecutor improperly led witnesses on direct examination and testified on their behalf. She cites to 43 instances of alleged leading by reference to page number, 21 instances of alleged repeating of improper questions for emphasis by reference to page number, and 17 instances of allegedly failing to lay a proper predicate by reference to page number. She further cites to three alleged instances of bolstering the witness, two where the prosecutor asked whether one witness attended church and one witness had served in Vietnam. She also cites to two instances wherein she alleges that the prosecutor attempted to lead two witnesses concerning the make of an automobile by suggesting that they were mistaken. She also includes two colloquies during which she alleges that the prosecutor badgered two defense witnesses on cross-examination by attempting to undermine their testimony by questioning them on highly prejudicial facts not in evidence. Finally, she cites to a comment by the prosecutor during the testimony of a police officer where he commented that Johnson had “let one slip,” eluding to a mistake by Johnson which had drawn the officer’s attention. (R. 1065.) Thus, she argues the prosecutor improperly commented on the evidence.
“‘In reviewing allegedly improper prosecutorial comments, conduct, and questioning of witnesses, the task of this Court is to consider their impact in the context of the particular trial, and not to view the allegedly improper acts in the abstract. Whitlow v. State, 509 So.2d 252, 256 (Ala.Cr.App.1987); Wysinger v. State, 448 So.2d 435, 438 (Ala.Cr.App.1983); Carpenter v. State, 404 So.2d 89, 97 (Ala.Cr.App.1980), cert. denied, 404 So.2d 100 (Ala.1981). Moreover, this Court has also held that statements of counsel in argument to the jury must be viewed as delivered in the heat of debate; such statements are usually valued by the *1167 jury at their true worth and are not expected to become factors in the formation of the verdict. Orr v. State, 462 So.2d 1013, 1016 (Ala.Cr.App.1984); Sanders v. State, 426 So.2d 497, 509 (Ala.Cr.App.1982).
“Bankhead v. State, 585 So.2d 97, 106 (Ala.Cr.App.1989), aff'd. in relevant part, remanded on other grounds, 585 So.2d 112, 127 (Ala.1991), aff'd. on return to remand, 625 So.2d 1141 (Ala.Cr.App.1992).”
Hutcherson v. State, 727 So.2d 846, 854-55 (Ala.Crim.App.1997), affirmed, Ex parte Hutcherson, 727 So.2d 861 (Ala.1998), cert. denied, Hutcherson v. Alabama, 527 U.S. 1024 , 119 S.Ct. 2371 , 144 L.Ed.2d 775 (1999). A review of the alleged instances of improper leading reveals no error, plain or otherwise. 6
As to her argument that the prosecutor badgered the defense witnesses on cross-examination,
“ ‘A party is given wide latitude on cross-examination to test a witness’s partiality, bias, intent, credibility, or prejudice, or to impeach, illustrate, or test the accuracy of the witness’s testimony or recollection as well as the extent of his knowledge. Wells v. State, 292 Ala. 256 , 292 So.2d 471 (1973); Housing Authority of City of Decatur v. Decatur Land Co., 258 Ala. 607 , 64 So.2d 594 (1953); Hooper v. State, 585 So.2d 142 (Ala.Cr.App.1991), cert. denied, 503 U.S. 920 , 112 S.Ct. 1295 , 117 L.Ed.2d 517 (1992); C. Gamble, [McElroy’s Alabama Evidence, § 136.01 (4th ed.1991)]. The range of cross-examination rests largely in the discretion of the trial court, and that court’s ruling will not be disturbed unless it clearly appears that the defendant was prejudiced by the ruling. Hooper v. State. However, “where the witness’ testimony is important to the determination of the issues being tried, there is little, if any, discretion in the trial court to disallow cross-examination.” Wells v. State, 292 Ala. at 258 , 292 So.2d at 473 .’
“Williams v. State, 710 So.2d 1276, 1327-28 (Ala.Cr.App.1996), aff'd, 710 So.2d 1350 (Ala.1997), cert. denied, 524 U.S. 929 , 118 S.Ct. 2325 , 141 L.Ed.2d 699 (1998).”
Ballard v. State, 767 So.2d 1123, 1140-41 (Ala.Crim.App.1999). The prosecutor did not step outside the range of propriety or badger any defense witness in the present case.
In Calhoun v. State, 932 So.2d 923 (Ala.Crim.App.2005), a capital case, Calhoun argued that the prosecutor led witnesses on direct examination and restated questions to bolster their testimony. He cited to 325 instances in which the prosecutor led witnesses. This Court noted that Calhoun did not object to most of these instances and found no instance where illegal evidence was admitted or any reversible error resulting from these questions. This Court stated:
“Rule 611(c), Ala.R.Evid., which addresses leading questions, states:
“‘Leading questions should not be used on the direct examination of a witness, except when justice requires that they be allowed. Leading questions are permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.’
*1168 “Alabama has never enforced an across-the-board ban on leading questions by a prosecutor during direct examination. ‘Every question may be said in some sense to be leading....’ Donnell v. Jones, 13 Ala. 490, 507 (1848). As we stated in Williams v. State, 568 So.2d 354, 356-57 (Ala.Crim.App.1990):
“1 “Any question expressly or impliedly assuming a material fact not theretofore testified to, so that the answer may affirm such fact, is leading. Smith v. S.H. Kress & Co., 210 Ala. 436 , 98 So. 378 [ (1923) ].” Ray v. State, 32 Ala.App. 556, 559 , 28 So.2d 116, 118 (1946). “‘[T]he trial judge has discretion to allow some leading questions, especially since prior testimony is simply being repeated.’ Brown Mechanical Contractors, Inc. v. Centennial Ins. Co., 431 So.2d 932, 944 (Ala.1983). ‘Whether to allow or disallow a leading question is within the discretion of the trial court and except for a flagrant violation there will not be reversible error.’ Bradford v. Stanley, 355 So.2d 328, 331 (Ala.1978).” Lynn v. State, 543 So.2d 704, 707 (Ala.Cr.App.1987), affirmed, 543 So.2d 709 (Ala.1988), cert. denied, [493] U.S. [945], 110 S.Ct. 351 , 107 L.Ed.2d 338 (1989). Thus, leading questions may be allowed on direct examination, depending on the circumstances of the particular case. Certain subjects are especially conducive to a leading form, “‘else the counsel and witness cannot be made to understand each other,’ ” among them “ ‘[p]roof of ... personal identity.’ ” C. Gamble, McElroy’s Alabama Evidence § 121.05(2) (3d ed.1977).’
“See also Evans v. State, 794 So.2d 415 (Ala.Crim.App.2000), and James v. State, 788 So.2d 185 (Ala.Crim.App.2000). We have refused to find error when a circuit court has allowed leading questions on preliminary matters that are not disputed, see Womble v. State, 44 Ala.App. 416 , 211 So.2d 881 (1968); when a witness is hostile, see Dennis v. State, 584 So.2d 548 (Ala.Crim.App.1991); when a witness is immature, see McCurley v. State, 455 So.2d 1014 (Ala.Crim.App.1984); when a witness’s memory has failed, see Garth v. State, 536 So.2d 173 (Ala.Crim.App.1988); and to establish the predicate for admission of a confession, see Jones v. State, 292 Ala. 126 , 290 So.2d 165 (1974).”
932 So.2d at 963 .
Moreover, there is no indication that the prosecutor failed to lay a proper predicate for the admission of evidence by leading State’s witnesses.
“As we stated in George v. State, 717 So.2d 827 (Ala.Crim.App.1996):
“ ‘None of the questions led to the admission of illegal evidence and none prejudiced the appellant. The questions were merely attempts to speed up the direct examination. The trial court is vested with wide discretion in this area “because it has been said that there is no form of question which may not be leading and that the trial court should look beyond the form to the substance and effect of the inquiry in the particular circumstances of the case.” C. Gamble, McElroy’s Alabama Evidence, § 121.05(3) (4th ed.1991).’
“George v. State, 717 So.2d at 838 , rev’d on other grounds, 717 So.2d 844 (Ala.1996).”
Hodges v. State, 856 So.2d 875, 922-23 (Ala.Crim.App.2001), affirmed, Ex parte Hodges, 856 So.2d 936 (Ala.2003), cert. denied, Hodges v. Alabama, 540 U.S. 986 , 124 S.Ct. 465 , 157 L.Ed.2d 379 (2003).
“ ‘Whether to allow or disallow leading questions is discretionary with the *1169 trial court and except for a flagrant violation will there be reversible error.’ Ruffin v. State, 582 So.2d 1159, 1162 (Ala.Crim.App.1991), quoting Jones v. State, 292 Ala. 126, 128 , 290 So.2d 165, 166 (1974). See also, C. Gamble, McElroy’s Alabama Evidence § 121.05 (4th ed.1991).” Smith v. State, - So.3d -, - (Ala.Crim.App.2000), affirmed in part, reversed in part on other grounds, Ex parte Smith, - So.3d - (Ala.2003).
As to Johnson’s categorizing of error and supporting it by mere reference to page numbers, in Jackson v. State, 791 So.2d 979 (Ala.Crim.App.2000), a capital case, Jackson alleged that the prosecutor used leading questions to elicit testimony from State’s witnesses, citing a series of page numbers without identifying the specific questions or explaining how he was prejudiced by them. This Court stated:
“ “We in no way condone a party’s reliance on the mere citing of page numbers from the record, without a discussion of the pertinent facts from those pages and application of the pertinent law to those facts. We consider such reliance an indication of a lack of merit of the contention the party asserts.’
“Hardy v. State, 804 So.2d 247, 289 (Ala.Cr.App.1999).
“Despite Jackson’s meager argument, we have nevertheless reviewed the entire record in this cause, including the page numbers cited by Jackson — which reveal no objection by Jackson to any of the prosecutor’s questions — and find no error, plain or otherwise, in the State’s questioning of its witnesses.”
791 So.2d at 1015 .
Similarly, in this case a review of the instances cited by Johnson reveals no error adversely affecting Johnson’s rights or that would require a reversal in the outcome of this ease.
G.
Johnson argues that the prosecutor impermissibly vouched for Richards’s credibility when he commented during his closing argument at the guilt phase:
“I don’t want y’all to think we’re vouching for Tim Richards as a person. Tim Richards is a murderer, he’s a despicable person. But I think he told you the truth up there. I don’t have to think that, I think the evidence showed he did. Everything he said up there we are able to verify through a secondary source. So let’s go that, take a look at that. What did he testify to?”
(R. 1172.) Johnson did not object to this comment. Thus, we review this claim for plain error. See Rule 45A, Ala.R.App.P.
This comment by the prosecutor was intended to draw inferences and sort and collate the evidence. Henderson v. State, 584 So.2d 841, 856-57 (Ala.Crim.App.1988), remanded on other grounds, 585 So.2d 862 (Ala.1991). Long v. State, 446 So.2d 658, 662-63 (Ala.Crim.App.1983). It was not so inappropriate as to undermine the fairness of Johnson’s trial.
“The prosecutor was arguing the effect of the witness’s testimony. Moreover, there is no implication in his comments that he had reasons not known by the jury, i.e., reasons other than those arising from the evidence before the jury, for knowing that what the witness said was true. In addition, the prosecutor gave neither his personal assurance nor guarantee of Dr. Hardin’s veracity. See DeBruce v. State, 651 So.2d 599, 610-11 (Ala.Cr.App.1993) (in holding that it was not improper vouching for prosecutor to comment, ‘I’ll submit to you, [the state’s main witness] is telling you the truth,’ the court observed that the credibility of a witness is a legiti *1170 mate subject of discussion, and the prosecutor’s remark was grounded on some testimony given by the witness himself), aff'd, 651 So.2d 624 (Ala.1994).”
Thomas v. State, 766 So.2d 860, 940 (Ala.Crim.App.1998), affirmed, Ex parte Thomas, 766 So.2d 860, 881 (Ala.Crim.App.1998), overruled on other grounds by Ex parte Taylor, 10 So.3d 1075 (Ala.2005).
Moreover, this Court further acknowledged that although it is improper for a prosecutor to vouch for the credibility of a witness, certain qualifying statements, such as “I think” as used in the present case, may result in a comment falling outside the prohibition against personally vouching for the witness. Thus, this Court stated:
“However, those comments that constitute personal vouching are not necessarily easily distinguished from proper comments, as illustrated by the following findings in Ex parte Rieber, 663 So.2d 999, 1014 (Ala.1995), cert. denied, 516 U.S. 995 , 116 S.Ct. 531 , 133 L.Ed.2d 437 (1995):
“‘[W]e view those comments that the prosecutor prefaced with “I think,” “I believe,” “I feel,” “I am satisfied,” and “I have no doubt,” as expressing his reasonable impressions from the evidence. The prosecutor was allowed to argue every legitimate inference from the evidence, and the trial court was afforded wide discretion in regulating his comments. We note, however, that even if these comments were to be viewed as expressions of the prosecutor’s personal opinions and, thus, as “crossing the line” of permissible argument, they, nonetheless, would not constitute reversible error. There is no fixed standard for determining whether a prosecutor’s comments so prejudiced the factfinding process as to require a new trial. Each case must be judged on its own merits. Hooks v. State, [ 534 So.2d 371 (Ala.1988), cert. denied, 488 U.S. 1050 , 109 S.Ct. 883 , 102 L.Ed.2d 1005 (1989) ]; Racine v. State, [ 290 Ala. 225 , 275 So.2d 655 (1973) ]. These remarks by the prosecutor were not as potentially prejudicial as those of the prosecutors in Ex parte Parker, supra, wherein we held that the prosecutors’ remarks did not undermine the fundamental fairness of the trial. We further note that the prosecutor, referring to State’s witness Tommy Erskine, stated: “He was extremely believable to me.” This isolated comment, although improperly expressing the prosecutor’s personal opinion as to Erskine’s credibility, likewise did not constitute reversible error. Ex parte Parker.’
“Compare remarks reviewed in Arthur v. State, 575 So.2d 1165, 1180-84 (Ala.Cr.App.1990), cert. denied, 575 So.2d 1191 (Ala.1991); and King v. State, 518 So.2d 191 (Ala.Cr.App.1987).”
766 So.2d at 939-40 .
This comment by the prosecutor was an argument to the jury concerning the strength of the State’s case, McWhorter v. State, 781 So.2d 257, 321 (Ala.Crim.App.1999), affirmed, Ex parte McWhorter, 781 So.2d 330 (Ala.2000), cert. denied, McWhorter v. Alabama, 532 U.S. 976 , 121 S.Ct. 1612 , 149 L.Ed.2d 476 (2001), and reasonable inferences and conclusions that could be drawn therefrom. As such, this comment did not adversely affect Johnson’s substantial rights.
H.
Johnson argues that the prosecutor appealed to hysteria by telling the jury that Johnson must be executed to protect witnesses in courts and to protect society. Johnson refers to the following argument *1171 made by the prosecutor during his closing argument at the sentencing phase of the trial:
“The question you have to add or have to ask is that, are we as a society willing to put up with the activity this defendant has been found guilty of or do we as a society need to protect ourselves against these type of people? I think that we need to protect ourselves against these type of people. And I think that if we are not willing to enforce the laws that we have in place, then we’re in a lot of trouble.”
(R. 1309.) Johnson failed to object to this argument at trial and, therefore, this issue must be evaluated pursuant to the plain error rule. Rule 45A, Ala.R.App.P.
Here, the prosecutor’s comments “ ‘properly argued the necessity of law enforcement as a deterrent to crime and as a protection of society.’ ” Sneed v. State, 1 So.3d 104, 141 (Ala.Crim.App.2007), cert. denied, Sneed v. Alabama, 555 U.S. 1155 , 129 S.Ct. 1039 , 173 L.Ed.2d 472 (2009), quoting Kuenzel v. State, 577 So.2d 474, 503-04 (Ala.Crim.App.1990), affirmed, Ex parte Kuenzel, 577 So.2d 531 (Ala.1991).
“ ‘In Alabama, the rule is that a district attorney in closing argument may make a general appeal for law enforcement. Embrey v. State, 283 Ala. 110, 118 , 214 So.2d 567 (1968).
“ ‘This line of argument is “within the latitude allowed prosecutors in their exhortations to the jury to discharge their duties in such a manner as, not only to punish crime, but protect the public from like offenses and as an example to deter others from committing like offenses.” Varner v. State, 418 So.2d 961 (Ala.Crim.App.1982); Cook v. State, 369 So.2d 1243 (Ala.Crim.App.1977), affirmed in part, reversed in part on other grounds, 369 So.2d 1251 (Ala.1978).’
“Ex parte Waldrop, 459 So.2d 959, 962 (Ala.1984), cert. denied, 471 U.S. 1030 , 105 S.Ct. 2050 , 85 L.Ed.2d 323 (1985). 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).”
Ingram v. State, 779 So.2d 1225, 1262-63 (Ala.Crim.App.1999), affirmed, Ex parte Ingram, 779 So.2d 1283 (Ala.2000), cert. denied, Ingram v. Alabama, 531 U.S. 1193 , 121 S.Ct. 1194 , 149 L.Ed.2d 109 (2001). There was no plain error due to this comment by the prosecutor.
I.
Johnson contends that the prosecutor improperly told the jury that, as representatives of the community, they had a duty under the law to sentence her to death. She refers to the prosecutor’s comments during the penalty phase.
The record indicates the prosecutor argued as follows:
“Today, I’m going to ask you to enforce the law. Capital murder means death penalty is one of two potential sentences. I’m going to ask you to recommend to the Judge who will make the ultimate decision which of those two sentences that you as representatives of the community think this particular crime should be sentenced with.”
(R. 1249-50.)
“I’m confident that if you follow the law and if you speak for the community, what do we as a community feel the law should be and how it should be executed, I feel confident that you will recommend to the judge that we as a community recommend the actions of this defendant will not be tolerated, not be accepted, it’s not only in a front (sic) to the MeCullars but as a front (sic) to every *1172 Citizen here, we recommend that she receive the death penalty.”
(R. 1255.)
Johnson failed to object to these comments and, therefore, they must be evaluated pursuant to the plain error rule. Rule 45A, Ala.R.App.P.
However, when these comments are viewed in the context of the entire argument, the prosecutor was clearly making an appeal for justice and law enforcement. He urged the jury to consider the evidence of the aggravating and mitigating circumstances and make their decision thereon. The prosecutor has a right to argue the strength of the State’s evidence.
In Freeman v. State, 776 So.2d 160 (Ala.Crim.App.1999), affirmed, Ex parte Freeman, 776 So.2d 203 (Ala.2000), cert. denied, Freeman v. Alabama, 531 U.S. 966 , 121 S.Ct. 400 , 148 L.Ed.2d 308 (2000), the prosecutor made a similar argument, and this Court held:
“Freeman claims that the prosecutor improperly suggested to the jurors that they should act as ‘the conscience of the community’ and impose the death penalty; that they should speak for the people in the community and do what was ‘right and just’; and that they could make a difference by punishing Freeman for his crimes -by recommending the death penalty. (R. 1292-93; 1296-97; 1299-1300.) We have reviewed the prosecutor’s comments in the context of the entire closing argument and find that all of the remarks, like the similar remarks made by the prosecutor at the guilt phase, were general appeals for law enforcement and justice, and appeals to the jury to discharge its duties in such a manner as to punish Freeman for the commission of his crimes and to deter others from committing similar offenses. See Price, supra; Kuenzel, supra. Throughout his closing argument, the prosecutor urged the jury to make its sentence recommendation based on the law and the evidence, not on prejudice, sympathy, or bias for or against Freeman, Sylvia Gordon, Mary Gordon, or Debbie Gordon Hosford. (R. 1292,1296, 1297, 1300, 1303.) The comments were clearly a call for justice, not sympathy.”
776 So.2d at 187. See also McGriff v. State, 908 So.2d 961, 1000 (Ala.Crim.App.2000), reversed on other grounds, Ex parte McGriff, 908 So.2d 1024 (Ala.2004) (prosecutor’s argument to the jury to “ ‘Speak loudly, speak truthfully, speak justice in this case and run the sword of justice right through the Defendant’s guilty little heart because he committed capital murder in this community in a rural small place called Ashford’ ” did not constitute plain error but was “more akin to an appeal for law enforcement.”).
Here, the prosecutor’s comments fell within the range of permissible arguments to the jury. Johnson’s substantial rights were not adversely affected by this argument.
J.
Johnson argues that the cumulative effect of the prosecutorial misconduct denied her of a fair trial. “ ‘ “Because we find no error in the specific instances alleged by the appellant, we find no cumulative error.” Lane v. State, 673 So.2d 825 (Ala.Crim.App.1995). See also McGriff v. State, 908 So.2d 961 (Ala.Crim.App.2000).’ Calhoun v. State, 932 So.2d 923, 974 (Ala.Crim.App.2005). We likewise find no cumulative error in this case.” Harris v. State, 2 So.3d 880, 928 (Ala.Crim.App.2007).
VI.
Johnson argues that the trial court gave several guilt phase instructions to the jury *1173 that are contrary to the law and thereby violated her rights under the United States and Alabama Constitutions and Alabama law.
A.
Johnson contends that the trial court improperly failed to charge the jury as to the necessity for corroboration of accomplice testimony. She argues that the failure to do so constitutes reversible error. Johnson announced that she had no exceptions to the trial court’s charge to the jury at the guilt phase. (R. 1222.) Thus, we review this claim for plain error. Rule 45A, Ala.R.App.P.
“A conviction of felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient.”
§ 12-21-222, Ala.Code 1975.
“This section merely creates a statutory rule, and not a constitutional right.” Alexander v. State, 281 Ala. 457 , 458 204 So.2d 488, 489 (1967). See also Woodberry v. State, 497 So.2d 587, 589 (Ala.Crim.App.1986). Moreover, the failure to give such an instruction can be harmless.
‘““The court should have instructed the jury concerning the need for corroborative evidence of McCants’s testimony. However, the failure to do so does not mean that this cause must automatically be reversed. Automatic reversal exists only when the error ‘necessarily renders a trial fundamentally unfair.’ Rose v. Clark, 478 U.S. 570 , [577], 106 S.Ct. 3101, 3106 , 92 L.Ed.2d 460 (1986). Alabama has applied the harmless error analysis in a case involving the death penalty to the failure of the court to instruct the jury on the principle of accomplice corroboration. Gurley v. State, 639 So.2d 557 (Ala.Cr.App.1993); Frazier v. State, 562 So.2d 543, 558 (Ala.Cr.App.), rev’d on other grounds, 562 So.2d 560 (Ala.1989).” ’ ”
Jackson v. State, 836 So.2d 915, 946 (Ala.Crim.App.1999) (finding that because there was sufficient evidence to corroborate the accomplice’s testimony, the trial court’s failure to instruct the jury on the necessity of corroborating accomplice testimony “did not rise to the level of plain error and was, at most, harmless error. See Rule 45, Ala.R.App.P.”).
“ ‘[T]he error of failing to instruct the jury on the need for corroborative evidence is harmless when the testimony of an accomplice has in fact been corroborated. Frazier v. State, 562 So.2d 543, 558 (Ala.Cr.App.), reversed on other grounds, 562 So.2d 560 (Ala.1989). Accord People v. Brunner, 797 P.2d 788, 790 (Colo.App.1990); State v. Brown [ 187 Conn. 602 ], 447 A.2d 734, 740 (Conn.1982); Ali v. United States, 581 A.2d 368, 377-78 (D.C.App.1990), cert. denied, 502 U.S. 893 , 112 S.Ct. 259 [ 116 L.Ed.2d 213 ] (1991); Strong v. State [ 261 Md. 371 ], 275 A.2d 491, 495 (Md.1971), vacated on other grounds, 408 U.S. 939 [ 92 S.Ct. 2872 , 33 L.Ed.2d 760 ] (1972); State v. England, 409 N.W.2d 262, 265 (Minn.App.1987).’ ”
Burton v. State, 651 So.2d 641, 654 (Ala.Crim.App.1993), quoting, Gurley v. State, 639 So.2d 557, 561 (Ala.Crim.App.1993). See also Ex parte Bankhead, 585 So.2d 112, 119 (Ala.1991), affirmed on return to remand, Bankhead v. State, 625 So.2d 1141 (Ala.Crim.App.1992), reversed on other grounds, Ex parte Bankhead, 625 So.2d 1146 (Ala.1993) (holding that because there was sufficient evidence to corroborate the accomplice’s testimony, the trial court did not commit reversible error in not in *1174 structing the jury on corroboration of accomplice testimony). Hutcherson v. State, 677 So.2d 1174, 1200 (Ala.Crim.App.1994), reversed on other grounds, 677 So.2d 1205 (Ala.1996) (holding that even if witness was an accomplice and testified for the State, “there was more than sufficient evidence to corroborate his testimony; therefore, no reversible error would have occurred. Burton v. State, 651 So.2d 641 (Ala.Cr.App.1993); Gurley v. State, 639 So.2d 557 (Ala.Cr.App.1993); Frazier v. State, 562 So.2d 543 (Ala.Cr.App.), rev’d on other grounds, 562 So.2d 560 (Ala.1989)”).
Here, there was ample evidence to corroborate Richards’s testimony. 7 Corroborating evidence in the present case included Johnson’s statement to the police, the testimony of two State’s witnesses that she wanted McCullar dead, the testimony of a State’s witness that she had solicited him to murder McCullar, her statements to Richards’s sister both before and following the murder, and her ability to take the police to the location where the murder weapon was dumped. Therefore, the trial court’s failure to instruct the jury as to the necessity of corroborating accomplice testimony did not adversely affect Johnson’s substantial rights. See Hyde v. State, 778 So.2d 199, 221 (Ala.Crim.App.1998), affirmed, Ex parte Hyde, 778 So.2d 237 (Ala.2000), cert. denied, Hyde v. Alabama, 532 U.S. 907 , 121 S.Ct. 1233 , 149 L.Ed.2d 142 (2001) (holding that because there was corroborating evidence, there was no plain error due to the trial court’s not charging the jury regarding accomplice testimony).
B.
Johnson argues that the trial court erred by failing to instruct the jury that it could consider Richards’s plea agreement in evaluating his testimony. Johnson did not object to this omission at trial and raises it for the first time on appeal; therefore, this matter is due to be evaluated pursuant to the plain error standard. Rule 45A, Ala.R.App.P.
The trial court instructed the jury as to it’s duty in weighing and evaluating the credibility to be accorded to the testimony of witnesses as follows:
“If you believe that any material part of the evidence of any witness is willfully false, you may disregard all the testimony of such witness. If you believe that any witness has perjured themselves, has testified falsely to an important element in the case, you may disregard all the testimony given by that witness.”
(R. 1213-14.)
This instruction by the trial court adequately apprised the jury of its duty in weighing the testimony of witnesses where his or her credibility is at issue. Moreover, the jury was informed of Richards’s plea bargain agreement during the guilt phase of the trial, as well as his involvement in the offense and his relationship with Johnson which would be considerations in determining the weight to accord his testimony.
In Owens v. State, 291 Ala. 107 , 278 So.2d 693 (1973), Owens argued that the trial court erred in failing to give his requested instruction that the fact that a witness is a law enforcement officer does not require that his testimony be given greater credibility. Because there is no authority requiring that the specific requested charge must be given, and because the trial court gave the jury instructions as to its duty in evaluating witness credibility, the court found no reversible error on this ground.' The court stated, “We are unable to find convincing authority that such *1175 charge must be given, especially where the record reveals that the trial court in its oral charge instructed the jury with respect to their duty to consider the interest or bias in determining what weight they would give the testimony of such witness.” 291 Ala. at 111 , 278 So.2d at 695 .
Similarly, in the present case, there is no authority mandating that the trial court instruct the jury that a plea bargain must be weighed in determining the credibility of a witness’s testimony. Furthermore, the jury was aware of the plea bargain through testimony at the guilt phase; and the jury was thoroughly instructed concerning its duty in evaluating a witness’s credibility in its determinations. Cf. Felder v. State, 697 So.2d 490 (Ala.Crim.App.1996) (trial court did not err in failing to give instructions that the jury could consider that witness had drug problems in evaluating his credibility where the trial court’s instructions on witness credibility were more than adequate and the jury had been apprised that the witness had a drug addiction).
The trial court’s failure to charge the jury to consider Richards’s plea bargain in evaluating his credibility did not adversely affect Johnson’s substantial rights.
C.
Johnson argues that the trial court erred in instructing the jury that it had to consider evidence as credible if it was conveyed by more than one witness. Johnson failed to object to this instruction at trial and therefore this matter must be evaluated pursuant to the plain error rule. Rule 45A, Ala.R.App.P.
Taken in context, the portion of the trial court’s instruction to which Johnson objects stated as follows:
“Impeachment: If any witness has been impeached or their testimony has been discredited, that’s what impeach means, then the jury may disregard his or her testimony unless that testimony is corroborated by other testimony not so impeached. In other words, if a person has — testimony has been discredited, you may disregard it, but you may not disregard it if someone else testifies to the same thing. All right. Got that.”
(R. 1218.)
This charge is not improper. In Leatherwood v. State, 17 Ala.App. 498 , 85 So. 875 (1920), the court found that the trial court erred by failing to give the requested charge that if the jury determines that a witness has been impeached, “ ‘his entire testimony may be disregarded, unless corroborated by the testimony not so impeached.’ ” Id. The court stated:
“[The requested charge] simply asserts that if the jury believe from the evidence that the witness named has been successfully impeached, and if they believe from the evidence said witness is shown to be a man of bad character and unworthy of belief, they are authorized to disregard his evidence altogether; the charge does not require them to do so, and hence was not invasive of the province of the jury. Prater v. State [ 107 Ala. 26 , 18 So. 238 (1895) ], supra. The credibility of witnesses is a matter for the consideration of the jury, guided by such instructions from the court as the nature and character of the evidence and the particular case may require.”
Id. See also Baynes v. State, 423 So.2d 307, 311 (Ala.Crim.App.1982) (holding that the trial court’s charge fairly covered the subject of impeachment by stating, in pertinent part, “ ‘If any witness testifying has been impeached, then the jury may disregard his or her testimony unless his or her testimony be corroborated by other testimony not so impeached.’ ”).
*1176 The jury here was properly instructed immediately following the above-quoted charge, that:
“If you believe that any material part of the evidence of any witness is willfully false, you may disregard all the testimony of such witness. If you believe that any witness has perjured themselves, has testified falsely to an important element in the case, you may disregard all the testimony given by that witness.
“My job throughout this trial is to see that the trial is carried on in an orderly fashion to make rulings and decide the law in the case. The attorneys’, for both the State and the defense, job is to present the case and your job is to determine the facts in the case.”
(R. 1213-14.)
Thus, the jury was clearly instructed that the credibility of witnesses was a matter for its consideration and determination in light of the evidence presented. “It is well-settled law that, provided the instructions accurately state the law, a trial court has broad discretion in formulating its instructions to the jury. Broadnax v. State, 825 So.2d 134 (Ala.Crim.App.2000).” Snyder v. State, 893 So.2d 482, 486 (Ala.2001). The trial court’s instructions covered the subject matter of witness credibility and bias correctly. The trial judge was informing the jury that if a witness has been impeached, his testimony may be disregarded but the testimony of witnesses who have not been impeached should be considered and weighed. Moreover, if a witness has been impeached his testimony may be rehabilitated by a corroborating source. See C. Gamble, McElroy’s Alabama Evidence (5th ed.1996), §§ 149.01(14), 155.02(8). These instructions did not adversely affect Johnson’s substantial rights.
D.
Johnson argues that the trial court failed to instruct the jury concerning the necessary standard for a conviction based on circumstantial evidence. Johnson did not object on this ground at trial and, therefore, this matter is due to be analyzed pursuant to the plain error rule. Rule 45A, Ala.R.App.P.
Johnson’s conviction was not based solely on circumstantial evidence. Her final statement to the police concerning her involvement, as well as the evidence from Richards concerning Johnson’s role in the murder, constituted direct evidence of her involvement. See Yancey v. State, 65 So.3d 452, 458 (Ala.Crim.App.2009) (“Direct evidence has been defined as evidence that ‘demonstrates the existence or non-existence of a precise fact and issue without the need to draw inferences or apply presumptions.’ J. Colquitt, Alabama Law of Evidence § 1.0 at 2 (1990). As such, credible eye-witness testimony is strong evidence of the stated facts concerning an offense.”). See also Young v. State, 892 So.2d 988, 990 (Ala.Crim.App.2004) (“direct evidence has been defined as ‘ “the assertions of human beings used as the basis of inference to the propositions asserted by them. This may be called ‘testimonial evidence.’ ” ’ (Quoting 1A Wig-more, Evidence § 25 (Tillers rev. ed.1983).) Moreover, it is well settled that ‘[t]he testimony of the victim alone [is] sufficient to establish a prima facie case of robbery.’ Watkins v. State, 565 So.2d 1227, 1231 (Ala.Crim.App.1990).”).
The Alabama Supreme Court held in Ex parte Carter, 889 So.2d 528 (Ala.2004), that an instruction on circumstantial evidence is not required by the trial court, even where the case is based wholly on such evidence, stating:
“In Thomas v. State, 824 So.2d 1 (Ala.Crim.App.1999), Thomas was convicted *1177 of the capital offense of murder committed during a rape and was sentenced to death. In conducting a plain-error review of Thomas’s trial and sentencing, the Court of Criminal Appeals held that although all of the evidence was likely circumstantial, 2 it was not plain error for the trial court not to have given a circumstantial-evidence instruction; Thomas had not asked for such an instruction and after the trial court’s oral charge to the jury Thomas’s attorney announced that he was satisfied with the jury instructions. 824 So.2d at 38-39.
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“... As the Court of Criminal Appeals recognized in Thomas:
“ ‘ “[Although a] few courts have held that general instructions, such as those dealing with the burden of proof, are sufficient, a larger number of jurisdictions have adopted the rule that an instruction on the law of circumstantial evidence is not required where the jury is properly and adequately charged concerning the reasonable doubt standard.” ’
“Thomas, 824 So.2d at 36, citing Caroll J. Miller, Annotation, Modem Status of Rule Regarding Necessity of Instruction on Circumstantial Evidence in Criminal Trial-State Cases, 36 A.L.R.4th 1046 , 1052 (1985). Although a trial court may give a circumstantial-evidence instruction if it finds the instruction appropriate or helpful in a particular case, a trial court is not required to give the jury such an instruction merely because all of the State’s evidence in a criminal case is circumstantial. To the extent that this ruling is inconsistent with Thomas v. State, 824 So.2d 1 (Ala.Crim.App.1999), Davenport v. City of Birmingham, 570 So.2d 1298 (Ala.Crim.App.1990), Ex parte Williams, 468 So.2d 99 (Ala.1985), and Howard v. State, 108 Ala. 571 , 18 So. 813 (1895), those cases are overruled.
889 So.2d at 531-33 .
Here, the trial court instructed the jury on the reasonable doubt standard in evaluating the evidence. The evidence supporting Johnson’s conviction, moreover, was not entirely circumstantial. Johnson’s substantial rights were not adversely affected by the trial court’s failure to instruct the jury as to circumstantial evidence.
E.
Johnson argues that the trial court’s definition of reasonable doubt was unconstitutional, in violation of Cage v. Louisiana, 498 U.S. 39 , 111 S.Ct. 328 , 112 L.Ed.2d 339 (1990). Because Johnson raised no objection on this ground at trial, we review this issue for plain error. Rule 45A, Ala.R.App.P.
In the present case, the trial court instructed the jury concerning the reasonable doubt standard as follows:
“Reasonable doubt; The term reasonable doubt means a doubt which has a good reason for arising out of the evidence in the case. It means a doubt growing out of the unsatisfactory nature of the evidence in the case. It does not mean a doubt which arises from a mere whim or from a groundless surmise or guess. While the law requires you to be satisfied of the defendant’s guilt beyond a reasonable doubt, it at the same time prohibits you from going outside the evidence to search for doubts upon which to acquit the defendant.
*1178 “In arriving at your verdict, it is your duty to carefully consider the entire evidence in the case and in doing so you should entertain only those doubts, as they arise from the evidence or any part of the evidence, which are reasonable. Unless the doubt is a reasonable one, and does so arise, it will not be sufficient in law to authorize a verdict of not guilty. Upon careful review of all the evidence you ask your inner conscience, ‘Is she guilty,’ and the answer comes back, ‘I doubt if she is,’ then you must acquit the defendant in the case. If you answer your inner conscience, ‘Is she guilty,’ and the answer comes back, ‘I have no reasonable doubt that she is guilty,’ then you must convict.
“There is no such thing as absolute certainty in human affairs, for justice is, after all, an approximate science and its ends are not to be defeated by failure of mathematical proof.”
(R. 1212-13.)
Johnson argues that because the jury was charged on reasonable doubt by including language which referred to “mathematical” proof, and reminded of these instructions when being charged as to reasonable doubt at sentencing, her rights to due process were violated. She further complains that the trial court twice equated reasonable doubt with “moral certainty.”
“ ‘ “ ‘In Cage v. Louisiana, [ 498 U.S. 39 , 111 S.Ct. 328 , 112 L.Ed.2d 339 (1990) ] the United States Supreme Court found that if the instruction equated “reasonable doubt” to “grave uncertainty,” and “actual substantial doubt” and stated that what was required was “moral certainty” a reasonable jury could interpret the instruction to allow a lesser degree of proof to convict than that required by the due process clause. It was the use of all three phrases in conjunction with each other that the Supreme Court determined was unconstitutional in Cage. Gaskins v. McKellar, 500 U.S. 961 , 111 S.Ct. 2277 , 114 L.Ed.2d 728 (1991).’
“ ‘ “Sockwell v. State, 675 So.2d 4, 23 (Ala.Cr.App.1993).” ’
“Price v. State, 725 at 1021.
“ ‘ “Use of some but not all of the terminology found offensive in Cage does not automatically constitute reversible error.” Taylor v. State, 666 So.2d 36, 56 (Ala.Cr.App.), opinion after remand, 666 So.2d 71 (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) (citations omitted). The instruction given in this case does not equate “reasonable doubt” with “moral certainty” “grave uncertainty” or “actual substantial doubt,” which the United States Supreme Court found to be improper in Cage . Taken as a whole, the instruction was not improper; it was not confusing and it did not lessen the State’s burden of proof. Taylor, supra. See also, Ex parte Williams, 640 So.2d 1015, 1023-24 (Ala.1993).’
“Hyde v. State, 778 So.2d 199, 222 (Ala.Cr.App.1998).”
McWhorter v. State, 781 So.2d 257, 303 (Ala.Crim.App.1999), affirmed, Ex parte McWhorter, 781 So.2d 330 (Ala.2000), cert. denied, McWhorter v. Alabama, 532 U.S. 976 , 121 S.Ct. 1612 , 149 L.Ed.2d 476 (2001).
However, the charge given by the trial judge in the present case did not imper-missibly lower the State’s burden of proof, as in Cage . The use of such language in describing the reasonable doubt standard as “ ‘it’s rarely possible to prove anything to an absolute or mathematical certainty,’ ” *1179 has been held to be proper and not viola-tive of Cage. McWhorter v. State, 781 So.2d at 302. Moreover, this Court has held that the use of the term “moral certainty” is also permissible in defining the reasonable doubt standard.
“While the trial court used the terms ‘actual substantial doubt’ and ‘moral certainty1 in its instructions, it did not also use the term ‘grave uncertainty1 in defining reasonable doubt. It was the use of all three terms that the Supreme Court found unconstitutional in Cage . See Gaskins v. McKellar, 500 U.S. 961 , 111 S.Ct. 2277 , 114 L.Ed.2d 728 (1991); Coral v. State, 628 So.2d 954 (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). This court has held that use of some, but not all, of the terms examined in Cage does not necessarily constitute reversible error. Haney v. State, 603 So.2d 368 (Ala.Cr.App.1991), affd, 603 So.2d 412 (Ala.1992), cert. denied, 507 U.S. 925 , 113 S.Ct. 1297 , 122 L.Ed.2d 687 (1993).”
Lawhorn v. State, 756 So.2d 971, 985 (Ala.Crim.App.1999), cert. denied, Lawhorn v. Alabama, 531 U.S. 835 , 121 S.Ct. 93 , 148 L.Ed.2d 53 (2000).
“ “When reviewing a trial court’s instructions, “ ‘the court’s charge must be taken as a whole, and the portions challenged are not to be isolated from or taken out of context, but rather considered together.’ ” Self v. State, 620 So.2d 110, 113 (Ala.Cr.App.1992) (quoting Porter v. State, 520 So.2d 235, 237 (Ala.Cr.App.1987)); see also, Beard v. State, 612 So.2d 1335 (Ala.Cr.App.1992); Alexander v. State, 601 So.2d 1130 (Ala.Cr.App.1992).’ Maples v. State, 758 So.2d 1, 65 (Ala.Cr.App.1999).” McWhorter v. State, 781 So.2d at 302.
Here, the jury was properly charged as to the reasonable doubt standard and this charge would not have lessened the State’s burden or shifted the burden of proof. Johnson’s substantial rights were not adversely affected by these instructions.
F.
Johnson argues that the trial court’s guilt phase instructions improperly indicated that the appropriate verdict was that of guilt. Johnson did not object on this ground until appeal and therefore this issue must be evaluated pursuant to the plain error rule. Rule 45A, Ala.R.App.P.
Johnson’s argument is based on a single word by the trial court during his charge, wherein he stated, “The defendant is presumed to be innocent until she is proven guilty beyond a reasonable doubt by the evidence in the case.” (R. 1211.) She argues that the trial court’s use of the word “until” rather than “unless” required the jury to return a verdict of guilt. “The incorrect instruction could have been a mere slip of the tongue on the part of the trial court or, perhaps, is the result of an error made by the court reporter in transcribing the court’s oral charge.” Woods v. State, 13 So.3d 1 , 41 n. 1 (Ala.Crim.App.2007) (finding no plain error in trial court’s misstatement that the prosecutor’s burden in disproving a mitigating circumstance by a preponderance of the evidence means that the jury should consider that the circumstance does not exist unless the evidence as a whole makes it more likely that it does exist). See Dorsey v. State, 881 So.2d 460, 517 (Ala.Crim.App.2001), affirmed in part, reversed in part on other grounds, Ex parte Dorsey, 881 So.2d 533 (Ala.2003), overruled on other ground, Heard v. State, 999 So.2d 992 (Ala.2007) (comment by the trial court in charging the jury as to a finding of guilt on a lesser included offense was a clear inadvertent slip of the tongue and did not constitute plain error in light of the entire charge).
*1180 This same issue has been previously presented to this Court and decided adversely to Johnson’s position. In Snyder v. State, 893 So.2d 488, 548 (Ala.Crim.App.2003), Snyder contended that the trial court lessened the State’s burden of proof by using the word “until” rather than “unless” in its charge on the presumption of innocence. He argued that the use of this word “ ‘informed the jury that a guilty verdict was expected.’ ” 893 So.2d at 548. This Court found no error due to this charge, stating:
“The Alabama Supreme Court has used the word ‘until’ to characterize the State’s burden of proof. In Ex parte Scroggins, 727 So.2d 131, 134 (Ala.1998), the court stated, ‘The burden of proof in all criminal prosecutions rests upon the State, with the presumption of innocence attending the defendant until the burden of proof has been met.’ Also, we approved a similar instruction in Thomas v. State, 824 So.2d 1 (Ala.Crim.App.1999).
“The trial court’s jury instructions, when viewed as a whole, correctly informed the jury that if the State did not meet its burden, the jury had a duty to acquit the defendant. No reasonable juror would have concluded that the instructions implied that the State would always meet that burden. There was no error, much less plain error, in the trial court instruction on the presumption of innocence.”
893 So.2d at 549.
A review of the trial court’s entire charge, rather than this statement in isolation, shows that the jury was properly informed of the law concerning the presumption of innocence. Therefore, Johnson’s substantial rights were not adversely affected by this charge.
VII.
Johnson argues that the trial court erroneously allowed the aggravating circumstance that the murder was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws to be applied to her case because: the facts did not establish that the purpose of the killing was to hinder law enforcement; the trial court treated the aggravating element of the capital offense and this aggravating circumstance as the same; 8 and this circumstance would be overly broad if it is allowed to apply in this context. Specifically, she argues that the aggravating circumstance should not be applied here because it did not involve the murder of a police officer. She further argues that, if allowed to apply to this case, this circumstance will be unconstitutionally vague and overbroad because “[i]t would not be difficult to find an angle to almost every murder case that involved the hindrance of a governmental function or the enforcement of the laws.” (Johnson’s brief p. 74.) Johnson is raising these arguments for the first time on appeal and therefore they are due to be analyzed pursuant to the plain error standard. Rule 45A, Ala.R.App.P.
A.
Johnson alleges that this aggravating circumstance should not apply to this case because it has not been applied in Alabama other than for the murder of a police officer. However, Alabama cases have applied this circumstance to the murders of individuals other than officers where the murder hindered or disrupted the enforcement of the laws or governmental functions. In Davis v. State, 804 So.2d 1153 (Ala.Crim.App.2000), this aggravating cir- *1181 eumstance was applied to the murder of an informant in a drug case against Davis. Moreover, in Baker v. State, 906 So.2d 210 (Ala.Crim.App.2001), reversed on other grounds, Ex parte Baker, 906 So.2d 277 (Ala.2004), on remand to, Baker v. State, 906 So.2d 292 (Ala.Crim.App.2005), the trial court found that this aggravating circumstance applied to the murder “because a misdemeanor charge of assault III was pending against the appellant based on a warrant filed by the victim.” 906 So.2d at 276. The assault charge had been reinstated by the victim, Baker’s wife, after having been dismissed due to the victim’s failure to appear; the evidence indicated that Baker had physically prevented her from appearing. Id. Although the Alabama Supreme Court reversed this case on other grounds, it noted that in applying this aggravating circumstance, the trial court seemed to contradict itself as it earlier stated that the murder was committed “ ‘solely1 ” due to jealousy. See 64 A.L.R.4th 755 (1988). Cf. State v. Hall, 976 S.W.2d 121, 134 (Tenn.1998) (finding that aggravating circumstance that murder was committed during escape from lawful custody was not “ ‘unconstitutionally vague as applied to this case’ ” because “ ‘it was intended to protect law enforcement officers’ ” where victims were killed while defendants were attempting to escape to Mexico).
In the present case, Johnson’s primary motive in killing MeCullar was to prevent him from testifying in the bigamy case against her. MeCullar was clearly the State’s main witness. Thus, the murder was committed to prevent this prosecution and the enforcement of the law.
B.
Johnson argues that this aggravating circumstance is overly broad and vague when applied to this case because the trial court did not define for the jury the terms “governmental functions” or “enforcement of laws.” She further argues that this circumstance could be argued to apply to almost every murder and is therefore overly broad if held to apply to this situation.
The record indicates that, after the jury had retired for deliberations as to the sentencing recommendation, it returned with a question concerning the mitigating and aggravating circumstances. (R. 1314.) The trial court again informed them of the aggravating circumstances that they could consider, including that “the capital offense was committed to disrupt or hinder the unlawful exercise of any governmental function or enforcement of laws.” (R. 1315.) The trial court then sent a written statement of the two aggravating circumstances that the jury could consider back with them for their continued deliberations. This statement of the pertinent aggravating circumstance continued with the language “to-wit: the murder stemmed from, was caused by, or was related to Randy McCullar’s role as a witness.” This language clearly informed the jury of the evidence in this case that had to be found to support a finding of this aggravating circumstance.
It was not necessary for the trial court to define “governmental functions” and “enforcement of the laws” as these terms were intended to be construed pursuant to their ordinary meaning. As this Court stated in Wilson v. State, 777 So.2d 856, 922 (Ala.Crim.App.1999), where Wilson contended that the trial court erred by failing to define “ ‘ “knowingly creates a great risk of death to many persons” ’ ” as it applies to the aggravating circumstance in § 13A-5-49(3):
“ ‘The phrase at issue has not been defined by statute or by case law. “When a term is included in a statute *1182 relevant to a case, and that term is not defined by statute, whether it is necessary for the trial court to define the term for the jury hinges on the facts of the case. See Thornton v. State, 570 So.2d 762 (Ala.Cr.App.1990).” Ivery v. State, 686 So.2d 495 (Ala.Cr.App.1996). This principle “has added meaning when the challenged terms can be understood by the average juror in their common usage.” Thornton, 570 So.2d at 772 . In this case, the intended meaning of the phrase at issue is clear on its face. This phrase is written in plain English and contains no terms of art or legal jargon. We fail to see any way in which a labored definition of this phrase would have clarified its meaning. Our conclusion is buttressed by the fact that, unlike the appellants in Ivery and Thornton , the appellant here has failed to present any conceivable confusion, based on the facts of this case, that may have resulted from the use of this phrase alone without definition. Moreover, the trial court’s jury charge regarding this aggravating circumstance followed the pertinent pattern jury instruction in Proposed Pattern Jury Instructions for use in the Sentence Phase of Capital Cases Tried under Act No. 81-178. That pattern jury instruction provides no definition for the phrase at issue. “ ‘ “[W]e do not think we should hold that the trial judge plainly erred when he instructed the jury pursuant to a pattern jury instruction ‘recommended’ by this Court, especially in the absence of an objection or request from the defendant.” ’ Kuenzel [v. State], 577 So.2d [474], 520, [ (Ala.Cr.App.1990), aff'd, 577 So.2d 531 (Ala.1991), cert. denied, 502 U.S. 886 , 112 S.Ct. 242 , 116 L.Ed.2d 197 (1991) ], quoting Ex parte Harrell, 470 So.2d 1309, 1315 [ (Ala.1985) ].” 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) (emphasis in original). We find no plai

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4803881. Public record. Not legal advice.