McMillan v. State

MAIN, Judge.

Calvin McMillan was convicted of capital murder for the intentional murder of James Bryan Martin by shooting him in the course of a first-degree robbery, see § 13A-5-40(a)(2), Ala.Code 1975, and for the intentional murder of James Bryan Martin by shooting him inside a vehicle, see § 13A-5^0(a)(17), Ala.Code 1975. The trial court sentenced McMillan to death following the jury’s 8-4 advisory verdict of life imprisonment without parole. The trial court overrode the jury’s recommendation, finding that the aggravating circumstance that the murder was committed during a robbery outweighed the statutory mitigating circumstances concerning McMillan’s age at the time of the offense and his lack of criminal history, as well as the nonstatutory mitigating circumstances.

The State’s evidence tended to show that on August 29, 2007, Calvin McMillan and Rondarrell Williams drove to the Wal- *191 Mart discount retail store in Millbrook in a white Nissan Sentra automobile belonging to Williams’s girlfriend, in order for McMillan “to get him a ride.” (R. 1046.) Williams testified that he knew that McMillan had a gun. The men parked the vehicle by a truck on the outskirts of the parking lot and Williams went into the Wal-Mart store. He purchased some speakers and returned to the vehicle, where McMillan, despite opening and closing the vehicle’s front passenger door several times, had remained. After a few minutes, Williams again got out of the vehicle and returned to the store. 1

While Williams was in the store, McMillan got out of the vehicle and began walking around the parking lot, eventually standing by the entrance to the store. He subsequently returned to the vehicle and sat in the front passenger seat with the door open. He then got out of the vehicle quickly, wearing a different shirt than he was wearing when he and Williams had entered the parking lot, and approached a man later identified as the victim.

That same evening, the victim, James Bryan Martin, had driven to the Wal-Mart store in Millbrook following a Montgomery Biscuits minor-league baseball game. He had parked his Ford F-100 pickup truck in the parking lot a few rows from the vehicle driven by Williams and had entered the store. Inside, he had purchased diapers, a Vault brand beverage, and Reese’s brand candy. After checking out, he put his bags in his truck.

The victim was then approached by a man later identified as McMillan. Video surveillance of the parking lot of the Wal-Mart store, which was admitted into evidence as a DVD, shows that Martin walked several feet toward McMillan, and then turned and walked back to his truck. The surveillance video also shows that Martin got into his truck and that a few seconds later the brake lights on the truck came on. The video further shows that McMillan also walked toward Martin’s truck, hesitated when another vehicle drove down the aisle, and then, when that vehicle passed, McMillan went to the driver’s side door of the truck. The video demonstrates that McMillan appeared to shoot Martin and then pull him out of his truck. Martin collapsed on the concrete and McMillan shot him two more times. McMillan got into the truck and started to drive away. He then placed the truck into park, got out of the truck, and appears to have shot Martin again. At that point, McMillan quickly got back into the truck and sped out of the parking lot. Several witnesses who were present in the parking lot or who were in the entrance of the Wal-Mart store approached the victim and called for help.

As the shooting began, the video surveillance shows that Williams walked from the Wal-Mart, hesitated, took a few steps backward, and then walked to his girlfriend’s vehicle. Williams placed his bags in the trunk of the vehicle and drove away.

A number of BOLO 2 alerts were issued pursuant to descriptions given by witnesses, and they were reissued after the video-surveillance tapes were reviewed. An officer, Corporal Manora of the Montgomery Police Department, who was patrolling the next morning at approximately *192 9:30 a.m., saw a truck matching the description given in the BOLO and began to follow it. The officer called for backup. The truck pulled into an apartment complex and stopped, and the driver jumped out of the truck and ran away. The patrolling officer and another officer who had arrived at the scene chased the driver but were unable to catch him. Neither officer could identify the driver, because they saw him only from behind.

A large number of law-enforcement personnel, including a helicopter crew, arrived at the scene, and a crowd of onlookers gathered. Calvin McMillan, who was among the crowd, later stated that he informed an officer that he had some belongings in the truck and asked if he could retrieve them. (R. 1240-41.)

The truck was taken into custody by the Millbrook Police Department and driven to the Alabama Bureau of Investigation where it was processed for fingerprints. Thirty-three of the fingerprints found in the truck matched McMillan’s.

The truck was then picked up and inventoried by officers from the Millbrook Police Department. The truck contained a bag with McMillan’s clothing, as well as a DVD movie that had been rented by Martin. Another bag in the truck contained McMillan’s clothing. Officers also found the 9mm High Point brand automatic pistol used to shoot Martin hidden under some clothing in a compartment behind the front seat. A karaoke machine, televisions, and an iron were also found in the truck. McMillan’s wallet with his Alabama driver’s license and McMillan’s Hyundai Motor Manufacturing contractor’s identification card were also located in the truck. Officers found documents pertaining to the ownership of the truck, including one from MAX Federal Credit Union, which contains Martin’s signature as the borrower, and McMillan had signed on the line purporting to be a co-borrower for the truck.

Two disposable cameras were found in the truck. The film from those cameras was subsequently developed one of the pictures was a photograph of McMillan pointing a pistol resembling the murder weapon at the camera, 3 a photograph of a 9mm High Point pistol positioned on a pile of money, another photograph of the pistol placed on a pillow or bedding, and two photographs of McMillan making hand gestures at the camera. There was also a photograph of a closet containing a striped shirt and a camouflage hat that matched the description of the shirt and hat worn by the man who had shot Martin. 4 Among the clothing found in the truck was a black shirt with a neon skull that resembled the shirt worn by the man in Williams’s girlfriend’s vehicle the first time he had gotten out of the vehicle. 5 The officers also found a pair of black Dickie brand shorts like those worn by the man who shot Martin; in the pocket of those shorts was a 9mm shell casing and a Reese’s brand candy wrapper.

McMillan gave a statement indicating that he had been given a ride to Montgomery in the truck belonging to Martin by a man named Melvin Ingram Browning and *193 that Browning had driven away with McMillan’s possessions in the truck. The State introduced evidence at trial indicating that McMillan had a Social Security card for a Melvin Eugene Browning in his wallet. (R. 1240.) Melvin Eugene Browning testified that his wallet had been lost years before this incident and that he was in the Lee County jail at the time of the offense. The State presented evidence to substantiate Browning’s whereabouts at the time of the offense.

At trial, McMillan denied that he was the man who committed the offense and challenged the strength and credibility of the State’s evidence.

I.

McMillan argues that the trial court erred in admitting his statement, which he says was unconstitutionally obtained after he had invoked his right to counsel. McMillan alleges that police officers improperly reinitiated the interrogation after he had requested counsel when the officer remained silent for several minutes and then asked McMillan to initial a waiver-of-rights form concerning his invocation of right to counsel. Thus, McMillan argues that although he unambiguously invoked his right to counsel, the police improperly subjected him to further interrogation before securing counsel. McMillan further asserts that because the State offered no proof that his subsequent statement was not made in response to police questioning, which was the State’s burden, the statement was inadmissible. He argues that this erroneous admission caused his defense extreme prejudice and therefore constituted reversible error.

The State presented testimony at trial that McMillan gave a statement to an investigator with the Millbrook Police Department, Investigator Kirk Pelham, and another officer. 6 - Investigator Pelham testified that he interviewed McMillan at the Millbrook Police Department and that the statement was recorded. After being informed of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), McMillan indicated that he wanted an attorney. Investigator Pelham testified that he then “stopped, ... gathered [his] stuff, and began to leave the room.” (R. 1228.) In response to his actions, Investigator Pelham testified that McMillan stated, “ ‘What, I can’t answer questions?’ ” (R. 1228.) To which, investigator Pelham confirmed that he could not. Thereafter, McMillan stated that he wished to continue with the interview, and Investigator Pelham asked if he understood all of his rights and whether he had any questions. McMillan affirmed that he understood his rights, and the interview began.

During the pretrial suppression hearing, Investigator Pelham testified that neither he nor anyone in his presence threatened or coerced McMillan in order to force him to give a statement, nor did anyone make any promises or give any hopes of reward in order to obtain his statement. He further testified that McMillan did not appear to be under the influence of any substance and affirmed that he could read and write. He testified that McMillan had been informed of his constitutional rights before he indicated that he wished to have an attorney present. McMillan had been initialing each line of the Miranda form, indicating that he waived his rights; however, when he stated that he wanted an *194 attorney, Investigator Pelham testified that he asked him to write “no, with attorney present” next to the statement of that right on the form. (R. 190.) He testified that McMillan did not make that notation, but instead asked, “ “What, I can’t talk? I’ll answer questions.’ ” (R. 194.) Investigator Pelham further testified that he responded affirmatively and McMillan then stated, “ ‘I’ll talk.’ ” (R. 195.) McMillan was again informed of his rights and initialed the waiver form.

Investigator Pelham testified that he left the interrogation room before beginning the interview in order to telephone the prosecutor, stating that “I wanted to call you [the prosecutor] and make sure that I was doing what I needed to do on my end.” (R. 196.)

He then returned to the interrogation room and asked McMillan if he understood his rights and whether he had any questions. McMillan responded that he understood his rights, that he had no questions, and that he wished to answer questions. He was then interviewed until he indicated that he did not wish to answer questions anymore.

At both the pretrial hearing and at trial, the State introduced a recording of the interview, including the initial invocation by McMillan of his right to counsel and his subsequent waiver.

“ ‘In Edwards v. Arizona, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 (1981), the United States Supreme Court held:

“ ‘ “[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.... [A]n accused, ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.”

“ ‘451 U. S. at 484-85, 101 S.Ct. 1880 , 68 L.Ed.2d 378 (footnote omitted). The purpose of this rule is to protect an accused in police custody from “ ‘badgering]’ or ‘overreaching’ — explicit or subtle, deliberate or unintentional— [that] might otherwise wear down the accused and persuade him to incriminate himself notwithstanding his earlier request for counsel’s assistance.” Smith v. Illinois, 469 U.S. 91, 98 , 105 S.Ct. 490 , 83 L.Ed.2d 488 (1984), quoting Oregon v. Bradshaw, 462 U.S. 1039, 1044 , 103 S.Ct. 2830 , 77 L.Ed.2d 405 (1983).

“ ‘ “This ‘rigid’ prophylactic rule, Fare v. Michael C., 442 U.S. 707, 719 , 99 S.Ct. 2560 , 61 L.Ed.2d 197 (1979), embodies two distinct inquiries. First, courts must determine whether the accused actually invoked his right to counsel. See, e.g., Edwards v. Arizona, supra, 451 U.S. [477], at 484-485, 101 S.Ct. 1880 , 68 L.Ed.2d 378 [ (1981) ] (whether accused ‘expressed his desire’ for, or ‘clearly asserted’ his right to, the assistance of counsel); Miranda v. Arizona, 384 U.S. [436], at 444-445, 86 S.Ct. 1602 , 16 L.Ed.2d 694 [ (1966) ] (whether accused ‘indicate[d] in any manner and at any stage of the process that he wish[ed] to consult with an attorney before speaking1). Second, if the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had in *195 voked. Edwards v. Arizona, supra, [451 U.S.,] at 485, 486, n. 9.”

“ ‘Smith, v. Illinois, 469 U.S. at 95 , 105 S.Ct. 490 , 83 L.Ed.2d 488 .’ ”

Phillips v. State, 65 So.3d 971, 1020 (Ala.Crim.App.2010).

“The Supreme Court in Edwards [v. Arizona, 451 U.S. 477 (1981),] made it clear that a suspect may waive his previously asserted right to counsel and respond to interrogation. However, when an accused has invoked his right to counsel, a valid waiver of that right cannot be established by showing only that the accused responded to police-initiated interrogation after again being advised of his Miranda rights.”

Ex parte Williams, 31 So.3d 670, 676 (Ala.2009).

“ ‘[A]n accused ... having expressed his desire to deal with police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him unless the accused himself initiates further communication, exchanges or conversations with the police.’ Edwards v. Arizona, 451 U.S. 477, 484-85 , 101 S.Ct. 1880, 1884-85 , 68 L.Ed.2d 378 (1981) (emphasis added). See also Payne v. State, 424 So.2d 722 (Ala.Crim.App.1982). As has been stated in this jurisdiction, ‘[a]ny person arrested who asserts his right to counsel may later change his mind and voluntarily submit to questioning.’ Morrison v. State, 398 So.2d 730, 743 (Ala.Crim.App.1979), rev. on other grounds, 398 So.2d 751 (Ala.1981) (citations omitted); see also Sales v. State, 432 So.2d 560 (Ala.Crim.App.1983).”

Seawright v. State, 479 So.2d 1362, 1366 (Ala.Crim.App.1985). See also Davenport v. State, 968 So.2d 27, 30-31 (Ala.Crim.App.2005).

McMillan argues on appeal that the police continued interrogating him after he had invoked his right to counsel because Investigator Pelham asked him to initial the waiver form, indicating that he was not waiving his right to counsel. However, this action by the police did not constitute interrogation.

“ ‘[S]inee the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.’ Rhode Island v. Innis, 446 U.S. 291, 302 , 100 S.Ct. 1682 , 64 L.Ed.2d 297 (1980) (footnote omitted).” Snowden v. State, 968 So.2d 1004, 1013 (Ala.Crim.App.2006). “Since ‘the Sixth Amendment is not violated whenever — by luck or happenstance — the State obtains incriminating statements from the accused after the right to counsel has attached,’ [Maine v. Moulton,] 474 U.S. [159], at 176, 106 S.Ct. [477], at 487 [ (1985) ], citing United States v. Henry, [ 447 U.S. 264 ], at 276, 100 S.Ct. [2183] at 2189 [ (1980) ] (Powell, J., concurring),” a defendant must demonstrate that the police took some action “that was designed deliberately to elicit incriminating remarks.” Kuhlmann v. Wilson, 477 U.S. 436, 459 , 106 S.Ct. 2616 , 91 L.Ed.2d 364 (1986).

Here, Investigator Pelham’s conduct, asking McMillan to mark or make a notation on the waiver form to indicate that he was invoking his right to counsel, was not an act that was “designed deliberately to elicit incriminating remarks.” Kuhlmann v. Wilson, 477 U.S. at 459 . Rather, this request by Investigator Pelham was “a purely administrative ‘housekeeping’ ” 7 act that is necessary for police to maintain proper records.

*196 Moreover, McMillan initiated the interview by asking, “You mean with a lawyer present you can’t ask me no questions? ... I’m saying I’ll answer some questions.” (Court’s Exhibit PPP; State’s Exhibit 118.) On the recording of McMillan’s statement, he then stated that he thought that Investigator Pelham was planning on getting him a lawyer. Following this assertion by McMillan, Investigator Pelham again informed McMillan of his constitutional rights, and McMillan acknowledged that he understood them. McMillan then stated that he wished to waive those rights and answer questions.

In Crumpton v. State, 677 So.2d 814, 817 (Ala.Crim.App.1995), an officer testified that he ceased questioning Crumpton, the defendant, when he invoked his right to counsel, but “that when he got up to leave [Crumpton] said to him that he did not want to die in the electric chair.” This Court held that Crumpton initiated the questioning by making the comment.

“In Oregon v.. Bradshaw, [ 462 U.S. 1039 , 103 S.Ct. 2830 , 77 L.Ed.2d 405 (1981) ] the United States Supreme Court had occasion to define ‘initiate’ as that term was used in Edwards v. Arizona. The Court stated:

“ ‘While we doubt that it would be desirable to build a superstructure of legal refinements around the word “initiate” in this context, there are undoubtedly situations where a bare inquiry by either a defendant or by a police officer should not be held to “initiate” any inquiries, such as a request for a drink of water or a request to use a telephone, that are so routine that they cannot be fairly said to represent a desire on the part of an accused to open up a more generalized discussion relating directly or indirectly to the investigation....

“ ‘... [T]he respondent’s question in this case as to what was going to happen to him evinced a willingness and a desire for a generalized discussion about the investigation; it was not merely a necessary inquiry arising out of the incidents of the custodial relationship. It could reasonably have been interpreted by the officer as relating generally to the investigation .... ’

“462 U.S. at 1045-46, 103 S.Ct. at 2835 , 77 L.Ed.2d at 412 .

“This court in Wilson v. State, 571 So.2d 1237 (Ala.Cr.App.1989), rev’d on other grounds, 571 So.2d 1251 (Ala.), on remand, 571 So.2d 1266 (Ala.Cr.App.1990), applied both of the above United States Supreme Court’s holdings and stated:

“ ‘Under the totality of the circum-stancés in the present case, the evidence indicates that the appellant knowingly and intelligently waived his right to counsel by initiating conversation with Investigator Kidd; stating that he wished to speak without his attorney present; and initially stating, “Mr. Kidd, I ain’t done nothing.” Such a statement indicates a desire “for a generalized discussion about the investigation.” ’

“571 So.2d at 1247.”

Crumpton v. State, 677 So.2d at 816-17 .

In the present case, McMillan invoked his right to counsel, but he then waived this right in an ambiguous manner. Investigator Pelham properly reinstructed McMillan of his rights as a result of Pel-ham’s or McMillan’s apparent lack of understanding. He then left the room and later returned and again informed McMillan of his rights. McMillan clearly indicated that he understood his rights, and that he wished to waive them, and he marked *197 the waiver-of-rights form, indicating his decision to waive his rights.

“ ‘If the accused manifests a lack of understanding as to the meaning of these rights, or how they directly affect him, the interrogators must make special efforts to secure his understanding. Repetition of the warnings, and the giving of hypothetical factual examples may become necessary. These precautions will help to ensure that any waiver subsequently made is “knowing and intelligent.” ’

“19 Am.Jur., Proof of Facts § 11 at 21 (1967). See also id. § 8 at 18. It was the obligation of the interrogator not to ignore or gloss over the possible implications of McDevitt’s response. He should have made an inquiry to clarify the ambiguity and to specifically advise McDev-itt, at that time, that appointed counsel would be provided, if desired, before the questioning proceeded. E.g., People v. Turnage, 45 Cal.App.3d 201, 211-12 , 119 Cal.Rptr. 237, 243-44 (1975) (wherein the court noted that, where confronted with a patent ambiguity with respect to the suspect’s understanding of his constitutional rights, when the suspect stated that he could not afford an attorney, after having waived his rights, the officer was justified in asking clarifying questions).

“In so holding, we caution that our ruling is not to be interpreted too broadly. We are not indicating that the formal Miranda requirements should be expanded. It would be unreasonable as well as impractical to impose the requirement upon officers that they enumerate to a suspect every conceivable consequence of waiver of the warnings or that they place a legal interpretation on a suspect’s actions or statements. ‘Although a suspect must be apprised of his or her rights, providing a general legal education is not the business of the police or the courts.’ People v. Williams, 62 N.Y.2d 285, 288 , 476 N.Y.S.2d 788, 790 , 465 N.E.2d 327, 329 (1984). We also do not mean to require the interrogator to detect the misunderstanding of clear warnings without some indication of misunderstanding. In other words, if no confusion or misunderstanding is manifested, the interrogator is not required to go beyond a reading of the Miranda warnings. What we do require, however, is that the Miranda warnings be clearly explained and if, after the suspect has indicated an understanding of those rights, he subsequently acts in such a manner as to reasonably alert the interrogating officer that the warnings may have been misunderstood, the officer must insure that the suspect fully and correctly understands his Miranda rights. This is ‘to insure that what was proclaimed in the Constitution ha[s] not become but a “form of words,”’ 384 U.S. at 444 , 86 S.Ct. at 1612 ; in other words, the ritualistic reading of the Miranda warnings will not always, without exception, sufficiently apprise an accused of his rights. The Miranda warnings are not to be treated as ‘a mere textual formality to be recited on the way to eliciting a confession.’ United States v. Rondon, 614 F.Supp. 667, 670 (S.D.N.Y.1985).”

State v. McDevitt, 484 So.2d 543, 549-50 (Ala.Crim.App.1985). Cf. Ex parte Woods, 789 So.2d 941, 944-46 (Ala.2001) (officers did not improperly continue to interrogate Woods after he had checked the “ ‘no’ ” box on the waiver-of-rights form by asking whether he had checked the correct box because his invocation of his right to counsel was ambiguous).

Following McMillan’s initial invocation of his right to counsel, he indicated that he wished to waive that right; however this waiver was ambiguous. Investigator Pel- *198 ham refrained from questioning him at that time and again informed him of his constitutional rights on two occasions. McMillan then indicated an understanding of his rights and a desire to waive them. Because Investigator Pelham did not interrogate McMillan until he had indicated that he understood his rights and chose to waive them, there was no constitutional violation of his right to counsel and his statement was properly admitted.

II.

McMillan argues that the State illegally exercised its peremptory strikes in a racially discriminatory manner. He contends that the trial court improperly determined that there was no prima facie showing of racial discrimination. On appeal, he raises other specific allegations that were not raised at trial.

A.

McMillan alleges that the prosecutor improperly and unconstitutionally struck potential jurors based on race. He therefore contends that the trial court improperly failed to find a prima facie case of discrimination.

The transcript indicates that the court’s list of potential jurors before voir dire contained 140 names. 8 (R. 305.) A lengthy voir dire was conducted, whereby the trial court initially allowed potential jurors to come forward with reasons that serving on the jury would cause him or her hardship. Thirty-one potential jurors were excused for hardship. (R. 375-76.) The remaining veniremembers completed juror questionnaires that had been prepared by both parties. They were then questioned by the trial court concerning any relationships to the parties, attorneys, witnesses, or their families. The trial court also asked general questions of the potential jurors concerning any connections they had with law-enforcement personnel or agencies, whether they had been victims of crime, and whether they had served on a jury or a grand jury in the past.

Thereafter, both the prosecutor and defense counsel thoroughly questioned the veniremembers as to concerns that might have affected their jury service on this case. The trial court finally asked questions of potential jurors individually who had indicated that they had been exposed to pretrial publicity or had strong feelings concerning the automatic imposition of the death penalty or of the sentence of life imprisonment without parole. The court also followed up on statements that potential jurors had made in answering earlier questions that had indicated the possibility of bias. Subsequently, the prosecutor moved to strike three potential jurors for cause, and the trial court granted these strikes. Defense counsel moved to strike seven potential jurors for cause and six of these were granted. In all, the trial court excused 13 potential jurors for cause.

The jury panel was then composed of 52 members from which the parties each struck 19 potential jurors. Defense counsel made a motion pursuant to Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), concerning three of the four black veniremembers who were struck by the prosecutor. 9

The following transpired concerning this motion:

*199 “[Defense counsel]: ... We make a Batson challenge as to three black jurors that were stricken by the State.... [J]uror number 114, just in reviewing my notes I have the only thing he responded to was when you asked where everybody works and I think he said McDonald’s [fast-food restaurant]. I don’t think there was any other response.

“[Prosecutor]: It’s a female.

“[Defense counsel]: I’m sorry, she. She worked at McDonald’s. I don’t have any other response. The State may have some other responses on which they’re basing their strike on, but that’s about all I had.

“[Prosecutor]: What are the others?

“[Defense counsel]: [Juror 81].[ 10 ]

“[Prosecutor]: [Juror 79], okay. And?

“[Defense counsel]: [Juror 176].

“[District Attorney]: Okay.

“[Prosecutor]: Is that it?

“[Defense counsel]: Those are the three black jurors that were stricken, yes, sir. And the basis of that is just in looking at my notes, reflecting on my notes, I don’t see anything that’s necessarily detrimental to the State as to why they would be stricken.

“THE COURT: Well, did you compare these jurors to other jurors that the State did not strike for similar traits to establish the first prong of your Bat-son challenge?

“[Defense counsel]: Judge, I would simply say that, for example, [Juror 79] voted or said that she would likely vote for the death penalty if he was convicted.

“[Prosecutor]: May I respond to that assertion. Your Honor?

“THE COURT: Okay.

“[Prosecutor]: During the life and death qualification of the jury we do not show that [Juror 79] said anything. And her questionnaire says T can’t make that call on someone’s life.’ So to the extent that they’re asserting that she made favorable comments to the death penalty on their first prong of the challenge, we would respectfully disagree with that assertion.

“[District attorney]: Plus in asking she said in question 21 it says ‘what do you think about the death penalty?’ She said nothing. So we had her listed as a weak death penalty person or soft on the death penalty and basically tried to strike all similarly situated people.

“[Prosecutor]: I mean, if they can show another juror that had a similar answer that was white, then I mean, starting out under [E]x parte Branch, my concern is there were eight African-American jurors when we started this process. The State struck four, of which the defense takes issue with three. However, the defense struck one, number 202, ..., leaving three African-Americans on the venire, none of which is the alternate, so they are actual jurors who will serve in this case. I think if you’re looking at it from just a cold calculated numbers game like the defense is approaching it, it’s not there. And therefore under Branch we would just ask that we not be required to defend what wasn’t even an objectable [sic] striking of the jury.

“THE COURT: We’ve got three African-Americans remaining on the jury?

*200 “[District Attorney]: Who are not alternates.

“THE COURT: Out of the 12?

“[Prosecutor]: Who are not alternates, yes, sir.

“THE COURT: I’m not good at math, but that’s 25 percent, isn’t it?

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“THE COURT: And the makeup of the black population in this county is what, somewhere close to 16?

“[District Attorney]: Yes, sir. And plus the makeup of the entire panel, it was even less if you consider the entire panel that we struck from.

“THE COURT: All right. Number one, I don’t think the defense can show a prima facie case to even get to the next prong with regard to the Batson challenge; unless you can show me something else, that there’s somebody that wasn’t struck, that was white that the State did not strike, that had the same characteristics as these black people that'were struck.

“[Defense counsel]: Judge, we don’t have that. We simply were requesting that the State put on the record why they struck those particular jurors.

“THE COURT: All right. Well, I don’t think the State is — let me rephrase that. I don’t think the defense has set forth a prima facie case to give rise to the State being required to state then-basis for strikes, but I will note that the State did submit to the defense, as well as to the Court, information that they had on potential jurors. In looking at that information I see that [Juror 114] was previously convicted of assault third in Wetumpka in April of 2009. That’s information that the defense was provided as well.

“And I don’t — anyway, based on the— as the Court said, based on the Court’s understanding of Batson , although I realize that a lot of times courts don’t follow it, the Batson, Branch and progeny, the Court finds the defense has failed to set forth a prima facie case that would require the State to proceed with stating their reasons for strikes, therefore the Batson motion is denied. I may be running a risk, but if I am, so be it.”

(R. 645-50.)

The record reveals that McMillan failed to make a prima facie showing of racial discrimination. The only basis for his motion was that the State struck the three cited black potential jurors and that defense counsel did not believe that they had said anything detrimental to the State. When the trial court asked defense counsel for more specifics or facts supporting an inference of discriminatory intent, he was unable to provide any.

In Johnson v. State, 823 So.2d 1 (Ala.Crim.App.), cert. denied, Ex parte Johnson, 823 So.2d 57 (Ala.2001), cert. denied, Johnson v. Alabama, 535 U.S. 1085 , 122 S.Ct. 1978 , 152 L.Ed.2d 1035 (2002), this Court held that Johnson failed to make a prima facie showing of discrimination because he offered no evidence other than statistics and defense counsel’s opinion that no valid reasons for striking these jurors, had been revealed during voir dire questioning. This Court stated:

“ ‘In Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), the United States Supreme Court set out the components of a prima facie case of racial discrimination in jury selection. In addition to showing that the State used peremptory challenges to remove members of a cognizable group to which he belongs and relying upon the fact that peremptory strikes permit discrimination, a claimant also must show that these facts and any other relevant *201 facts raise an inference that the prosecutor used his strikes in a discriminatory manner. In Ex parte Branch, 526 So.2d 609, 622-623 (Ala.1987), the Alabama Supreme Court explained that relevant factors could include, but were not limited to, the following: evidence that the jurors shared only the characteristic of their group membership and were heterogeneous in all other respects; a pattern of strikes against black jurors; past conduct of the prosecutor; type and manner of the prosecutor’s questions during voir dire, including desultory voir dire; type and manner of questions to the challenged juror, including a lack of questions or meaningful questions; disparate treatment of veniremembers with the same characteristics or type of responses; disparate examination of members of the venire; circumstantial evidence of intent due to the use of most challenges to strike African-Americans; and the use of peremptory challenges to dismiss all or most black jurors.’

“Madison v. State, 718 So.2d 90, 101-102 (Ala.Crim.App.1997), aff'd, 718 So.2d 104 (Ala.), cert. denied, 525 U.S. 1006 , 119 S.Ct. 521 , 142 L.Ed.2d 432 (1998).

“Johnson offered no evidence, other than statistics and his counsel’s opinion that no valid reasons for striking these jurors were revealed during voir dire, to show that the prosecutor exercised his strikes in a discriminatory manner. See, e.g., Duncan v. State, 827 So.2d 838, 855-57 (Ala.Crim.App.1999), aff'd, 827 So.2d 861 (Ala.2001) (Batson motion in which counsel asserted only statistics and his opinion that nothing was revealed during voir dire to provide a legitimate reason for the strikes held insufficient to satisfy defendant’s burden of proving a prima facie case). Johnson did not offer evidence, nor even allege, that the struck veniremembers shared only the characteristic of race, that there was a lack of meaningful voir dire directed at black veniremembers, that black and white veniremembers were treated differently, or that the prosecutor had a history of using peremptory challenges in a manner that discriminated against black veniremembers. Johnson noted only that the State used 6 (less than half of its 14) strikes to remove 6 of the 9 African-Americans from the venire, and that, in his counsel’s opinion, no articulable reason for the strikes was revealed during voir dire. We do not find the statistics or defense counsel’s assertions that in his opinion no legitimate reasons for the strikes were revealed during voir dire to be sufficient to establish a prima facie case of racial discrimination. ‘A circuit court’s ruling on a Batson objection is entitled to great deference, and we will reverse such a ruling only if it is clearly erroneous.’ Talley v. State, 687 So.2d 1261, 1267 (Ala.Crim.App.1996). ‘“[A] finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” ’ Davis v. State 555 So.2d 309, 312 (Ala.Crim.App.1989), quoting Powell v. State, 548 So.2d 590, 594 (Ala.Crim.App.1988), aff'd, 548 So.2d 605 (Ala.1989), quoting, in turn, Anderson v. City of Bessemer, 470 U.S. 564, 573 , 105 S.Ct. 1504 , 84 L.Ed.2d 518 (1985). Based on the scant record before us, we simply cannot say with a ‘definite and firm conviction’ that the trial court erred in finding that Johnson did not establish a prima facie case of racial discrimination.”

Johnson v. State, 823 So.2d at 19-20. See also Vanpelt v. State, 74 So.3d 32 (Ala.Crim.App.2009).

*202 The State was not required to give its reasons for its strikes because McMillan did not establish a prima facie showing of discrimination. “ ‘After the appellant makes a timely Batson motion and establishes a prima facie showing of discrimination, the burden shifts to the state to provide a race-neutral reason for each strike.... See, e.g., Ex parte Bird, 594 So.2d 676 (Ala.1991). We will reverse the circuit court’s ruling on the Batson motion only if it is “clearly erroneous.” Jackson v. State, 549 So.2d 616 (Ala.Cr.App.1989).’” Killingsworth v. State, 82 So.3d 716, 749 (Ala.Crim.App.2009), quoting, Cooper v. State, 611 So.2d 460, 463 (Ala.Crim.App.1992). Therefore, the trial court properly found no prima facie showing was made by McMillan, and the State was not required to come forward with reasons for its strikes.

B.

On appeal, McMillan further contends that the African-American veniremembers who were struck were a heterogeneous group who shared only their race as a characteristic; they were treated differently than whites who gave similar answers on voir dire; there was a lack of meaningful questioning; the percentage of African-Americans struck from the jury created a disparate impact; and the El-more County District Attorney’s office has a long history of discriminating against African-Americans in jury selection. McMillan raises these grounds for the first time on appeal; therefore, any error must rise to the level of plain error. See Rule 45A, Ala.R.App.P.

“ ‘ “For plain error to exist in the Batson context, the record must raise an inference that the state [or the defendant] engaged in ‘purposeful discrimination’ in the exercise of its peremptory challenges. See Ex parte Watkins, 509 So.2d 1074 (Ala.), cert. denied, 484 U.S. 918 , 108 S.Ct. 269 , 98 L.Ed.2d 226 (1987).” ’ ”

“ ‘Smith v. State, 756 So.2d 892, 915 (Ala.Crim.App.1998), aff'd, 756 So.2d 957 (Ala.2000) (quoting Rieber v. State, 663 So.2d 985, 991 (Ala.Crim.App.1994), quoting in turn other cases).’

“Ex parte Walker, 972 So.2d [737] at 742 [ (Ala.2007) ].”

Ex parte Sharp, [Ms. 1080959, December 4, 2009] - So.3d -, - (Ala.2009).

McMillan contends that the potential black jurors who were struck by the State were a heterogeneous group who only shared race as a common characteristic. This indicia of discrimination has been described as

“ ‘[e]vidence that the “jurors in question share[d] only this one characteristic— their membership in the group — and that in all other respects they [were] as heterogeneous as the community as a whole.” [People v.] Wheeler, 22 Cal.3d [258,] at 280, 583 P.2d [748,] at 764, 148 Cal.Rptr. [890,] at 905 [(1978)]. For instance “it may be significant that the persons challenged, although all black, include both men and women and are a variety of ages, occupation, and social or economic conditions,” Wheeler, 22 Cal.3d at 280, 583 P.2d at 764, 148 Cal.Rptr. at 905, n. 27, indicating that race was the deciding factor.’ ”

Brown v. State, 74 So.3d 984, 1022 (Ala.Crim.App.2010).

Although the African-American potential jurors struck by the State may appear to be homogeneous on first blush, the information provided by them during voir dire examination is pertinent here, as well as in evaluating whether they were treated differently from potential white jurors. Moreover, their answers establish *203 that there were race-neutral reasons for striking these potential jurors.

Juror 79 was the State’s 11th strike and a female. Although she originally indicated that she tended to be pro-death penalty, she subsequently affirmed that she would base her decision on the law and evidence alone. (R. 505.) She also stated that her husband worked at the Hyundai automotive plant. (R. 386.) Moreover, she stated that she regularly visited her son in jail (R. 458) and that she had served on a jury in a case that was dismissed. (R. 425.)

This potential juror’s husband was employed at the same Hyundai automotive plant where McMillan had been employed, as evidenced by his identification card being a key piece of evidence tying him to the victim’s truck. Moreover, the State also used McMillan’s Hyundai identification card to identify his wallet and to prove the falsity of his statement, because the wallet containing the Hyundai identification card was located in the truck rather than having been in his possession as he alleged in his statement. Thus Juror 79’s husband’s employment was related “to the particular case to be tried.” Batson v. Kentucky, 476 U.S. at 97 ; Ex parte Branch, 526 So.2d at 623 .

Moreover, a juror’s previous service on a jury that dismissed a case has been held to be a race-neutral reason for striking a potential juror. See Watkins v. State, 551 So.2d 421, 422-23 (Ala.Crim.App.1988) (“served on a jury ... where the defendant was found not guilty”; “served on two juries,” one civil and one criminal, neither of which were able to reach a verdict); Smith v. State, 531 So.2d 1245, 1248 (Ala.Crim.App.1987) (“sat on a jury in a criminal case that returned a verdict of not guilty”); Thomas v. State, 520 So.2d 223, 226 (Ala.Crim.App.1987) (“had been a juror on a civil case wherein the monetary award ‘went both ways’ ”); Levert v. State, 512 So.2d 790, 795 (Ala.Crim.App.1987) (prior service in a criminal trial where the verdict was “in great contrast to the theory of the case presented by the prosecution”).

Moreover, Juror 79’s statement that she had visited her son in jail would have provided a race-neutral reason for striking a potential juror. “ ‘Striking a prospective juror because a member of the juror’s family has been convicted of a crime is a valid race-neutral reason under Batson.’ Lewis v. State, 741 So.2d 452, 456 (Ala.Crim.App.1999).” Gobble v. State, 104 So.3d 920, 949 (Ala.Crim.App.2010).

Juror 173 was not listed at trial as one of the potential jurors who was struck based on his race. However, the record indicates that this potential juror was an African-American male and that was the State’s 19th and last strike. This potential juror stated that he was a supervisor at the Hyundai automotive plant where McMillan had worked. 11 Therefore, he was properly struck for race-neutral reasons. See Batson v. Kentucky, 476 U.S. at 97 ; Ex parte Branch, 526 So.2d at 623 .

Juror 114, a female, was the State’s 6th strike. The trial court pointed out that defense counsel had also been made aware that this potential juror had been convicted of third-degree assault in April 2009. (R. 649.) The record does not contain evidence or indicia that any other potential juror had been convicted of an offense. This reason has previously been held to be race neutral.

“The prosecutor’s reason for striking the three black veniremembers based on *204 information concerning prior convictions was a valid and race-neutral reason. Even a suspicion that a potential juror was involved in or connected with criminal activity can be a sufficiently race-neutral reason for a strike.

“ ‘ “A connection with or a founded suspicion of criminal activity can constitute a sufficiently race-neutral reason for the exercise of a peremptory strike. Stephens v. State, 580 So.2d 11 (Ala.Crim.App.1990), aff'd, 580 So.2d 26 (Ala.1991); Powell v. State, 548 So.2d 590 (Ala.Crim.App.1988), aff'd on other grounds, 548 So.2d 605 (Ala.1989); Lynn v. State, 543 So.2d 704 (Ala.Cr.App.1987), aff'd, 543 So.2d 709 (Ala.1988), cert. denied, 493 U.S. 945 , 110 S.Ct. 351 , 107 L.Ed.2d 338 (1989). This connection with or suspicion of criminal activity includes the juror in question, as well as close relatives and friends of the juror. Stephens; Allen v. State, 555 So.2d 1185 (Ala.Crim.App.1989); Lynn.”’

“Baker v. State, 906 So.2d 210, 255 (Ala.Crim.App.2001), rev’d on other grounds, 906 So.2d 277 (Ala.2004), quoting Heard v. State, 584 So.2d 556, 560 (Ala.Crim.App.1991). See also McGriff v. State, 908 So.2d 961, 981 (Ala.Crim.App.2000), rev’d on other grounds, 908 So.2d 1024 (Ala.2004) (‘Peremptory strikes based on the criminal record of a prospective juror do not violate Batson. Darby v. State, 601 So.2d 117 (Ala.Crim.App.1989).’).”

Brown v. State, 982 So.2d 565, 584-85 (Ala.Crim.App.2006), cert. denied, 552 U.S. 1321 , 128 S.Ct. 1893 , 170 L.Ed.2d 763 (2008).

Juror 176 was a female African-American who was removed by the prosecutor’s 5th strike. She stated that she worked in overnight stocking in electronics at the Millbrook Wal-Mart store. In the present case, the offense occurred at the Millbrook Wal-Mart store, and McMillan’s accomplice purchased speakers on the night of the offense from that store. Thus, this reason would be tied to this particular case. See Batson v. Kentucky, 476 U.S. at 97 ; Ex parte Branch, 526 So.2d at 623 . 12 A white potential juror, Juror 71, stated that she had worked at the Millbrook Wal-Mart but not at the time of the offense. She was struck by defense counsel, using his 6th strike, which presumably closely followed the State’s 5th strike of potential juror number 176.

This potential juror also stated that her brother had dealt with the district attorney’s office for a drug program. See Gorum v. State, 671 So.2d 764, 766 (Ala.Crim.App.1995) (the reason given by prosecutor for striking African-American venire-member, that veniremember’s brother had recently been indicted for selling drugs, was race neutral, stating, “[t]he fact that ‘[a veniremember] or a relative of [his] had been either charged with, prosecuted for, or convicted of a crime’ has been held to be a race-neutral reason. Scott v. State, 599 So.2d 1222, 1228 (Ala.Cr.App.), cert. denied, 599 So.2d 1229 (Ala.1992), overruled on other grounds, Smith v. State, 612 So.2d 1314, 1316 (Ala.Cr.App.1992).”).

She further answered that she had previously served on a jury, that she had relatives in the police department, and that she was related to another prospective juror.

Furthermore, despite McMillan’s contention that there was a lack of meaningful questions asked of the venire, the record *205 contains extensive questioning of the potential jurors. McMillan was not constrained from any examination of the panel. The panel was questioned as to the member’s relationships with any of the parties, attorneys, or witnesses, their feelings about the possible sentences, their knowledge of the offense, and other pertinent matters. Moreover, there were follow-up questions asked concerning answers given by potential jurors that might have indicated a prejudice, such as their place of employment and their addresses. See Brown v. State, 982 So.2d 565, 586 (Ala.Crim.App.2006) (“Although Brown in his brief alleges that the prosecutor failed to engage the three black veniremembers with prior convictions in any form of meaningful voir dire, it was unnecessary to ask these potential jurors any further questions. The record indicates that the entire panel was questioned at length by both parties and that neither party was deprived from asking any potential juror any submitted question. There was no confusion concerning this matter; no further questioning was requested”).

McMillan’s claim that the striking of the jury by the prosecutor reflected a disparate impact on African-American potential jurors is not established by the record. He contends that the potential juror panel was only eight percent black and that African-Americans were removed for cause. 13 Thus, McMillan argues, the prosecutor’s use of four strikes to remove African-American potential jurors “create[d] a disproportionate impact.” (McMillan’s brief 34.)

However, as noted by the prosecutor at trial, three of the jurors who served on the case were African-American. The trial court also concluded that there was no disparate treatment because 25 percent of the jury was African-American, while 16 percent of the population of Elmore County was African-American. There is no inference of discriminatory intent by the State’s use of 4 of its 19 strikes to remove African-Americans from the venire. See Brown v. State, 74 So.3d 984, 1024 (Ala.Crim.App.2010) (despite Brown’s argument that there was “ ‘a stark statistical disparity in the prosecution’s use of its strikes,’ ... [a]n examination of the percentages of each of the categories set forth above shows that the composition of the jury is substantially similar to the composition of the venire”).

Although McMillan contends that the district attorney’s office has a long history of striking jurors based on race, “this was not reflected in, or indicated by, the record. See Sharifi v. State, 993 So.2d 907, 928 (Ala.Crim.App.2008) (no inference from the record of discriminatory use of peremptory challenges by the prosecutor despite Sharifi’s argument that Madison County has a long history of violating Bat-son and that the number of strikes used by the State indicated prejudice).” Dotch v. State, 67 So.3d 936, 982 (Ala.Crim.App.2010).

McMillan refers to two cases in which the Elmore County District Attorney’s office was held to have possibly entered its strikes based on race.

In Bell v. Haley, (No. CIV.A. 95-T-913-N, Dec. 5, 2001) (not reported in F.Supp.2d), the federal district court determined, under the guidelines of Swain v. Alabama, 380 U.S. 202 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965), that the district attorney’s office had used its strikes in a discriminatory manner because it struck the *206 remaining five potential African-American jurors from the panel. 14 The prosecutor was required to give reasons for her strikes. Ultimately, the court noted that, although there was a strong probability that Bell had made a valid claim, “[t]he evidence does not prove beyond any doubt that race was a motivating factor in [the district attorney’s] decision to strike all the African-American venire members.” Bell v. Haley, supra, at n. 45.

In Henderson v. State 549 So.2d 105 (Ala.Crim.App.1987), this Court determined that because the trial occurred before the United States Supreme Court released its decision in Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), Henderson was entitled to a hearing to present any evidence of discrimination in the selection of the jury that heard his case. The trial court found that the prosecutor was not able to provide race-neutral reasons for 2 of the 10 strikes.

These two cases alone, which were never brought to the trial court’s attention, do not raise an inference that the Elmore County District Attorney’s office has a history of prejudicial jury striking. Perkins v. State, 808 So.2d 1041 , 1076 n. 7 (Ala.Crim.App.1999), affirmed, 808 So.2d 1143 (Ala.2001), cert. granted, judgment vacated on other grounds, 536 U.S. 953 , 122 S.Ct. 2653 , 153 L.Ed.2d 830 (2002) (“Although Perkins does cite two federal cases in which the court found Batson violations by a prosecutor in Tuscaloosa County, this, alone, is not sufficient to establish a history of discriminatory striking for the prosecutor in this case.”). See also Dunaway v. State, [Ms. CR-06-0996, December 18, 2009] - So.3d -, - (Ala.Crim.App.2009) (“ ‘Dunaway cites this Court to one case, Morrison v. Jones, 952 F.Supp. 729 (M.D.Ala.1996), in support of his contention the Barbour County District Attorney’s Office has a history of racial discrimination in jury selection. This Court will not find a “pattern of discrimination” based on one case out of the thousands criminal cases that have been prosecuted in Barbour County.’ ” 15 ).

Moreover, there was no pattern of strikes used by the State to challenge African-American potential jurors, as described in Ex parte Branch, 526 So.2d at 623 . As illustrative of the types of evidence that can be used to overcome an inference of discrimination, the Branch court stated that the State could show that “[t]here is no evidence of a pattern of strikes used to challenge African-American jurors; e.g., having a total of 6 peremptory challenges, the state used 2 to strike African-American jurors and 4 to strike white jurors, and there were African-Americans remaining on the venire.” Id.

In the present case, McMillan failed to make a prima facie showing of discrimination by the State in striking the jury. Thus, the trial court committed no error in determining that McMillan failed to meet his burden of proof. Further, the record indicates that there was no plain error in the prosecutor’s striking of the four African-American potential jurors.

*207 III.

McMillan argues that the trial court’s rejection of the jury’s verdict of life imprisonment without parole rendered his death sentence unconstitutional under State and federal law. Specifically, he contends that the trial court improperly used his juvenile adjudications to assign little weight to the statutory and nonstatutory mitigating circumstances; that the trial court failed to appropriately weigh established nonstatu-tory mitigating circumstances; that the trial court placed undue influence on the one aggravating circumstances; and that the trial court’s rejection of the jury’s verdict is not supported by the law.

A.

McMillan, relying heavily on Ex parte Burgess, 811 So.2d 617 (Ala.2000), contends that the trial court improperly relied on his juvenile adjudications to assign little weight to the statutory mitigating factors regarding his age and lack of significant history of prior criminal activity, as well as the nonstatutory factors established in this case.

In Ex parte Burgess, supra, Burgess argued that the trial court erred in overriding the jury’s recommendation of life imprisonment without parole by improperly relying on his juvenile history. He argued that his juvenile adjudications should not have been used to negate the statutory mitigating circumstances concerning his age and lack of significant criminal history. The Alabama Supreme Court determined that the trial court had abused its discretion in its use of Burgess’s juvenile adjudications as follows:

“Section 13A-5-47(b), Ala.Code 1975, requires that the trial court order and receive a written presentence investigation report ‘[bjefore making the sentencing determination,’ and that ‘[t]he report and any evidence submitted in connection with it shall be made part of the record in the case.’ Rule 26.3(b), Ala.R.Crim.P., provides for what may be contained in such a presentence report. When a defendant has a significant juvenile record, his or her teenage difficulties will appear as part of the presentence , report. However, under the Alabama capital-sentencing scheme, juvenile adjudications are not convictions and cannot be considered as prior criminal activity. Freeman v. State, 555 So.2d 196, 212 (Ala.Crim.App.1988), aff'd, 555 So.2d 215 (Ala.1989), cert. denied, 496 U.S. 912 , 110 S.Ct. 2604 , 110 L.Ed.2d 284 (1990). Only convictions can negate the statutory mitigating circumstance of no significant history of prior criminal activity. § 13A-5-51(1), Ala.Code 1975; Freeman v. State, 651 So.2d 576, 597-98 (Ala.Crim.App.1994).

“The fact that a trial court has access through the presentence report to the juvenile record of a defendant convicted of a capital crime, but cannot consider juvenile adjudications to negate the mitigating circumstances of the lack of any significant history of prior criminal activity, appears to be a contradiction. In discussing that issue, the Court of Criminal Appeals concluded that although juvenile adjudications cannot be used to negate the mitigating circumstances, the trial court can consider them when conducting the weighing process required in capital cases. The Court of Criminal Appeals stated:

“ ‘Although it is well-settled law in Alabama that juvenile adjudications cannot be used to negate the statutory mitigating circumstances that the defendant has no significant history of prior criminal activity, Freeman, supra, 555 So.2d at 212 , the courts of this state have never held that the trial court must entirely ignore a de *208 fendant’s juvenile adjudications in performing its ‘weighing’ duties. The trial court’s consideration of a defendant’s juvenile adjudications when conducting the weighing process offends neither general constitutional principles nor specific provisions of Alabama law. In fact, Alabama’s capital punishment statute contemplates that the trial court will have any prior juvenile record of the defendant before it when it is deciding upon the proper sentence: pursuant to § 13A-5^47, Ala Code 1975, the trial court is required to consider the presentence report of a defendant convicted of capital murder, and Rule 26.3(b)(2), Ala.R.Crim.P., specifically provides for the inclusion of the defendant’s prior juvenile record in the presen-tence report.

“‘To hold that the trial court is prohibited from considering a defendant’s juvenile adjudications in its individualized assessment of the weight to assign to the statutory mitigating circumstances of “no significant history of prior criminal activity” would obligate the trial court to assign precisely the same weight to this mitigating circumstances in every case where, such as here, a juvenile defendant is convicted of capital murder. Under this view of the capital sentencing scheme, two juveniles, both the same age and both convicted of capital murder, one with no prior juvenile record and the other with a very significant prior juvenile record, would necessarily benefit equally from the statutory mitigating circumstance “no significant history of prior criminal activity.” This would amount to an endorsement of the sort of numerical “tallying” disallowed by § 13A-5-48, Ala.Code 1975, and an abjuration of the weighing function mandated by § 13A-5-47(e), Ala.Code 1975.

“ ‘Alabama’s capital punishment statute does not specify the matters the trial court may consider when engaging in the process of weighing the aggravating circumstances and the mitigating circumstances in a particular case. Nor does the statute require the trial court to make express findings explaining the process by which it weighed the aggravating circumstances and the mitigating circumstances. We conclude that a trial court may, consistent with Alabama law, deem a defendant’s juvenile adjudications to be a relevant consideration in its assessment of the weight to assign to the statutory mitigating circumstances of a defendant’s lack of a significant criminal history and a defendant’s age at the time of the offense.’

“[Burgess v. State], 811 So.2d [557] at 606 [ (Ala.Crim.App.1998) ].

“We agree with the Court of Criminal Appeals’ conclusion that a trial court may consider a defendant’s juvenile adjudications to be a relevant consideration in deciding what weight to assign to the statutory mitigating circumstances of a defendant’s lack of a significant prior criminal history and a defendant’s age at the time of the offense. Other courts considering this dilemma have come to the same conclusion as did the Court of Criminal Appeals. See, e.g., United States v. Pretlow, 770 F.Supp. 239, 243 (D.N.J.1991) (applying New Jersey law); Scott v. Dugger, 686 F.Supp. 1488, 1508 (S.D.Fla.1988), aff'd, 891 F.2d 800 (11th Cir.1989), cert. denied, 498 U.S. 881 , 111 S.Ct. 224 , 112 L.Ed.2d 179 (1990) (applying Florida law); State v. Bays, 87 Ohio St.3d 15, 33-34 , 716 N.E.2d 1126, 1145 (1999), cert. denied, 529 U.S. 1090 , 120 S.Ct. *209 1727 , 146 L.Ed.2d 647 (2000); State v. Rodriguez, 656 A.2d 262, 277-78 (Del.Super.Ct.1993). Nevertheless, Alabama law explicitly precludes a trial court from using juvenile adjudications to negate the mitigating circumstance of no significant history of prior criminal activity. Ex parte Davis, 718 So.2d 1166, 1178 (Ala.1998), cert. denied, 525 U.S. 1179 , 119 S.Ct. 1117 , 143 L.Ed.2d 112 (1999). In other words, during the sentencing process in a capital case, the trial court may use a defendant’s juvenile record to diminish the weight to be accorded the mitigating circumstance of that defendant’s lack of a significant history of prior criminal activity, as well as the mitigating circumstance of that defendant’s age at the time he or she committed the capital offense, but the trial court may not use the juvenile record as the basis for giving little or no weight to such mitigating circumstances.

“We disagree, however, with the Court of Criminal Appeals’ conclusion that the trial court in this case did not improperly consider Burgess’s juvenile adjudications to negate the mitigating circumstances it found to exist. The trial court’s sentencing order shows that Burgess’s juvenile record was a conspicuous and dominating factor in the trial court’s weighing process.

“The statements contained in the trial court’s painstaking written order in this very difficult case reflect that the trial court relied upon Burgess’s juvenile adjudications to give nominal weight not only to the two statutory mitigating circumstance, but also to other mitigating circumstance, including the jury’s recommendation. The trial court’s use of Burgess’s juvenile record — use indicated by the court’s numerous references to that record — to discount to inconsequen-tiality the numerous mitigating circumstance, in favor of the one aggravating circumstance, was an abuse of discretion.”

Ex parte Burgess, 811 So.2d at 624-28 .

Although the Court seems to have based its holding on § 13A-5-51(1), Ala.Code 1975, which allows only convictions to be used to negate the mitigating circumstance of lack of prior significant criminal history, 16 this prohibition appears to have been expanded by the holding in Ex parte Burgess to include the mitigating circumstance of age.

Subsequently, in Ex parte Carroll, 852 So.2d 833 (Ala.2002), the Alabama Supreme Court confirmed its holding in Ex parte Burgess, supra, and found that the trial court had improperly overridden the jury’s recommendation of life imprisonment without parole. The Court determined that, because the trial court had improperly based its negating of the statutory mitigating circumstances of age and lack of prior criminal history on Carroll’s juvenile adjudications, it had violated the holding in Ex parte Burgess. However, the Court further examined the other reasons given by the trial court in negating these mitigating circumstances, i.e., the pain suffered by the victim’s family and the “ ‘great weight’ ” given the jury’s recommendation. The Court discounted both of these latter reasons because the victim’s family had asked that Carroll be sentenced to life imprisonment without parole and *210 because the jury’s recommendation was not given the considerable weight to which it was entitled because of the number of jurors, 10 of the 12 jurors in Ex parte Carroll, recommending life imprisonment without parole, 17 as well as the lack of information known only to the trial court and not to the jury. 18 The Court also reiterated a listing of the factors indicating that a sentence of death was excessive that had previously been enunciated in a special writing in a prior decision in Ex parte Carroll, 852 So.2d 821 (Ala.2001). In that list, the Court notes the jury’s 10-2 recommendation of life imprisonment, the recommendation of the victim’s family, Carroll’s age of 17, and the circumstances of that offense, particularly that Carroll had made no attempt to kill the witnesses to the offense. 19

In the present case, as in Ex parte Burgess, supra, and Ex parte Carroll, supra, the trial court considered McMillan’s prior adjudications in weighing the applicable statutory and nonstatutory mitigating circumstances and in diminishing these factors. However, the holdings in Ex parte Burgess and Ex parte Carroll expressly state that a trial court may consider juvenile adjudications in its weighing process. These decisions require only that the court not use the adjudications as the basis for negating or diminishing the two statutory mitigating circumstances of age and lack of prior criminal history. Thus, there is no prohibition against their use as to nonstatutory mitigating circumstances.

in light of the entire sentencing order in the present case, the trial court clearly also based its decision to accord little weight to these mitigating factors on reasons other than the juvenile adjudications that were both proper and supported by the record. Further, even if the trial court’s determination in according little weight to McMillan’s age and lack of prior significant criminal history based partly on his juvenile adjudications was erroneous, it was harmless in this case. The trial court’s weighing process in this case, particularly as to the factors set out in Ex parte Carroll, supra, that are to be considered, rendered any error resulting from the consideration of the juvenile adjudications harmless. Rule 45, Ala.R.App.P.

“ ‘No judgment may be reversed or set aside ... on the ground of ... improper admission or rejection of evidence, nor for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.’

“Rule 45, Ala.R.App.P.

“In Chapman v. California, 386 U.S. 18, 24 (1967), the United States Supreme Court held that before the violation of certain constitutional rights can be held to be harmless, the appellate court must be able to declare a belief that it was harmless beyond a reasonable doubt. *211 ‘The purpose of the harmless error rule is to avoid setting aside a conviction or sentence for small errors or defects that have little, if any, likelihood of changing the result of the trial or sentencing.’ Davis v. State, 718 So.2d 1148, 1164 (Ala.Crim.App.1997), aff'd, 718 So.2d 1166 (Ala.1998), cert. denied, 525 U.S. 1179 (1999).”

Billups v. State, 72 So.3d 122, 134 (Ala.Crim.App.2010).

In the present case, the trial court made the following findings in weighing the statutory mitigating circumstances:

“This Court finds the existence of two statutory mitigators. Those are that the defendant had no significant history of prior criminal activity and the age of the defendant at the time of the crime.

“During the trial of this case the jury was informed that the defendant had been convicted of assault 3rd degree in December of 2006. The law of this state generally requires that misdemeanor convictions may not be considered for the purposes of negating this mitigator. However, the misdemeanor offense of assault 3rd degree can be used to negate the mitigating circumstance of ‘no significant history of prior criminal activity’ because it is a crime of violence. Stallworth v. State, 868 So.2d 1128 (Ala.Crim.App.2001).

“Accordingly, even though McMillan has no prior felony convictions, the Court finds that this statutory mitigator is significantly diminished by his assault 3rd degree conviction.

“Additionally, the Court may use a defendant’s juvenile record to diminish the weight to be accorded the mitigating circumstance of that defendant’s lack of significant history of prior criminal activity as well as the mitigating circumstance of that defendant’s age at the time he committed the capital offense. Ex parte Carroll, 852 So.2d 833 (Ala.2002). As stated elsewhere in this order, McMillan has a significant juvenile record consisting of adjudications of guilt in two cases of domestic violence 3rd degree, one case of assault 3rd degree, one case of menacing, one case of reckless endangerment, one case of theft 3rd degree and one case of burglary 3rd degree.

“With regard to the statutory miti-gator dealing with the age of the defendant at the time of the crime, the evidence has established that McMillan was 18 years of age at the time that he murdered James Bryan Martin. Therefore, this Court finds that this statutory mitigator does exist. However, based upon his juvenile record and other factors this Court assigns little weight to this factor.

“Not only did McMillan have a juvenile record of violence, but he also possessed the pistol that he used to kill James Bryan Martin as well as ammunition for other weapons. McMillan also had been emancipated prior to committing this crime, had an adult conviction for assault 3rd degree and had obtained a job.”

(C. 18-19.)

Here, eight jurors recommended life imprisonment without parole. In both Ex parte Burgess, supra, and Ex parte Carroll, supra, 10 members of the jury recommended life imprisonment without parole. Moreover, the victim’s family testified to the hardship and pain caused the family by the loss of the victim and never requested, as did the family in Ex parte Carroll, supra, that McMillan be sentenced to life imprisonment without parole.

Moreover, as reflected in Ex parte Carroll, supra, the facts and circumstances surrounding the offense are to be consid *212 ered in determining whether the court’s reliance on the defendant’s juvenile adjudications was the basis for his decision to negate or to diminish the statutory or non-statutory mitigating circumstances. The Court considered Carroll’s role in the murder in finding that the death penalty was inappropriate or excessive in that case. In the present case, the facts surrounding McMillan’s role in the offense clearly supported the trial court’s determination that the override of the jury’s verdict was proper. 20

The trial court explicitly stated that it was basing its decision to give little weight to the mitigating factor of McMillan’s lack of significant prior criminal history on his adult conviction for third-degree assault. This has been held to be proper. Stallworth v. State, 868 So.2d 1128, 1173 (Ala.Crim.App.2001) (holding that a conviction for third-degree assault, a “ ‘significant crime,’ ” can negate the mitigating circumstance of lack of prior significant criminal history because “[t]o be convicted of assault the victim must have suffered from some type of physical injury. See § 13A-6-22, Ala.Code 1975”). The trial court also stated that it considered other factors in determining that McMillan’s age was entitled to little weight. In its sentencing order, the trial court noted that McMillan was emancipated, that he had been employed, that he had purchased ammunition and had obtained a weapon before the murder, and that he had been convicted of third-degree assault.

Based on the record and facts of this case, the trial court’s decision to accord little weight to the two mitigating circumstances based on McMillan’s juvenile adjudications was not erroneous, and, even had we determined that it was error, at most, it was harmless error.

B.

McMillan contends that the trial court failed to give the appropriate weight to established nonstatutory mitigating circumstances. He argues that because of the magnitude of the nonstatutory mitigating evidence and the fact that the State did not introduce any evidence to dispute it, the trial court should not have diminished its weight. Specifically, McMillan refers to the nonstatutory mitigating evidence argued by defense counsel — that he had been raised in extreme poverty, that he had been abandoned by his mother, that he had been physically abused, that he had been raped as a child, that he had been a witness to abuse, that he had been raised in the home of alcoholics and drug addicts, that he did not get proper treatment, that he had no positive male role models, that he had psychological and emotional difficulties, and that he functioned in the borderline range of intellectual functioning. He alleges that because the trial court considered only that his sister was raised in the same environment and yet lived a successful life, its decision to accord little weight to this mitigation was improper.

*213 Despite McMillan’s contention that the State did not refute this mitigating evidence, the record reveals that during the sentencing hearing, the State argued that McMillan had never mentioned any sexual abuse until he was interviewed by an expert in regard to these capital-murder charges. Additionally, on cross-examination of McMillan’s sister, the State elicited testimony that the events this witness had described concerning her mother’s prostitution and substance abuse in New York had occurred before McMillan was born. (R. 1547-48.) Moreover, she acknowledged that her mother was never arrested for prostitution, that she (the sister) was living a productive life, and that McMillan had been living with her in her apartment at the time of the offense. McMillan’s aunt testified that she had taken McMillan and his sisters into her home to raise and, with the help of the Department of Human Resources, did the best that she could. She stated on cross-examination that McMillan had “loved” school.

The State also introduced evidence indicating that a counselor who had interviewed McMillan while he was in detention found no evidence of psychosis and felt that McMillan “‘needed serious consequences for his behaviors.’” (R. 1627.) The State further presented evidence indicating that one of McMillan’s foster mothers had offered to enroll McMillan in the basketball program at the local YMCA, but he had refused. Evidence was introduced revealing extensive aggressive and bad behavior by McMillan.

As to the nonstatutory mitigating circumstances, the trial court made the following findings:

“This Court has considered all of the non-statutory mitigating evidence presented by McMillan. As outlined below, McMillan submitted testimony and argument to the jury on the following non-statutory mitigating circumstances: that he was raised in extreme poverty; that he was abandoned by his mother; that he was physically abused as a child; that he was raped as a child; that he was a witness to his mother’s and sister’s abuse; that he was raised in the home of an alcoholic/drug addict; that he did not get the treatment he needed; that he had no positive male role models; that he suffered from psychological and emotional difficulties; and that his intellectual functioning was in the borderline range.

“As stated earlier, the Defense called a number of witnesses who testified during the penalty phase of this trial. McMillan’s sister, Ella Torrance, testified that she, her sister and McMillan were basically left to fend for themselves by their alcoholic and drug addicted mother. Although Ms. Torrance and her sister were born while their mother lived in New York and abandoned them there, McMillan was not born until after they arrived in the Montgomery and Macon County area. They lived with her mother’s abusive boyfriend and it was claimed that he physically abused the children as well as their mother by beating them and threatening to shoot them with a pistol. The mobile home that they resided in often did not have electricity nor did it have running water. Further, there was very little food available for the children to eat while they were growing up.

“Ms. Torrance also reported that McMillan had been sexually abused by the son of their mother’s boyfriend. It is noted however, that this report of sexual abuse is not documented in any record until McMillan reported it to Dr. Karl Kirkland during Dr. Kirkland’s mental evaluation for the purposes of *214 determining whether this case should proceed to trial.

“McMillan’s aunt, Carol Weaver Christian, testified to facts similar to those as testified by McMillan’s sister, Ella Torrance. Ms. Christian took temporary custody of these three children and attempted to raise them with her four children. However, the children had to go back into the custody of the Department of Human Resources, as Ms. Christian was unable to care for all of them. Since the trial, this Court has learned, based upon its review of McMillan’s juvenile records, that his aunt also requested to be relieved of her temporary custody agreement because she could not govern McMillan’s negative behavior.

“Mr. Teal Dick, a licensed professional counselor and director of the Alabama Family Resource Center, testified as well based upon his review of the records of the Department of Human Resources and his interviews with McMillan and some of McMillan’s family members. Mr. Dick’s testimony revealed that McMillan and his family’s contact with the Department of Human Resources began in 1995. These records confirmed many of the same reports as testified to by McMillan’s sister with regard to the living conditions and threats and abuse suffered by McMillan, his sisters and his mother.

“By the time that McMillan was committed to foster care by the Department of Human Resources he was already aggressive and angry. Within a six-year period McMillan was in and out of twenty-five different homes and placements. At one point, one of his foster parents even tried to get him involved in YMCA basketball but he refused to do so.

“Emma Cosby, also known as Emma Peoples, a social worker who had contact with McMillan through her work with SAFY, a therapeutic foster care organization, testified on McMillan’s behalf as well. She stated that it was her opinion that ‘the system’ had failed McMillan while he was growing up. However, in 2001 she tried to take steps to control his rebellious and aggressive behavior but was unsuccessful. She reported that McMillan had threatened she [sic] and a foster parent with what she later found out was an electric toothbrush. After seeking the intervention of law enforcement, in April 2001, McMillan further threatened Ms. Cosby by telling her that she would find her new born baby’s head lying in a pool of blood when she got home. As a result of this behavior, McMillan was placed in the HIT program, which is a detention type setting. McMillan was enrolled in special education classes while in school due to his tendency to threaten others and he was in fact removed from the Safety Net Residential Program after he assaulted another student.

“Eddie Tucker, McMillan’s biological father testified during the penalty phase as well. He established that he had very little contact with McMillan but would have been willing to take him in and raise him in his home if he had had the opportunity.

“Dr. Kimberly Ackerson also testified on behalf of the Defense. Dr. Ackerson is a forensic psychologist with a private practice in Birmingham, Alabama. Dr. Ackerson reviewed the DHR records, met with the defendant and spoke with his aunt and sister. Dr. Ackerson did not do any testing of McMillan although she did review the report that was generated by Dr. Karl Kirkland who did. Dr. Kirkland, in his evaluation prepared for this Court conducted a number of tests in arriving at his diagnostic im *215 pressions and an IQ score of 76 for McMillan.

“Dr. Ackerson’s testimony was basically a recap of the testimony of the other witnesses. She did, however, testify from the records that it had been determined by other professionals that McMillan knew the difference between right and wrong and that in 2001 Dr. Majure had reported that there was no evidence that McMillan was suffering from psychosis and that McMillan was aware of and in control of his behavior. She further acknowledged that her review of the records revealed that McMillan’s alleged sexual abuse was first reported to Dr. Kirkland by McMillan at the time of his interview.

“With regard to the Defense’s claim of borderline intellectual functioning the Court notes that Dr. Kirkland’s report established that McMillan has an IQ of 76. McMillan is not mildly retarded, but functions in the classification range immediately above the mild mental retardation as well as in the range of low average intellectual functioning. Dr. Kirkland, in his report, further stated that while McMillan functions on a fourth grade reading level, his intellectual functioning and social adaptive functioning were on a high borderline to low average intellectual level.

“In reviewing and considering the non-statutory mitigating circumstances, as a whole, this Court assigns very little weight to them.

“McMillan’s sister, Ella Torrance, was raised in the same home and under the same conditions as he was. She graduated from school, owns her own car, has a good job, supports herself and has not been involved in any criminal conduct.”

(C. 23-28.)

The trial court’s findings clearly indicate that it considered all the nonstatutory mitigating evidence presented and weighed it against the evidence tending to discount it. The evidence indicating that McMillan’s sister was able to overcome her upbringing was not the only evidence weighing against McMillan’s evidence of his background. The trial court did not abuse its discretion.

The Alabama Supreme Court in Ex parte Hart, 612 So.2d 536 (Ala.1992), cert. denied, 508 U.S. 953 , 113 S.Ct. 2450 , 124 L.Ed.2d 666 (1993), found that the trial court did not abuse its discretion in failing to find the existence of any nonstatutory mitigating circumstances because it was clear that the court had understood its duty to consider these circumstances. The Court stated:

“The Court of Criminal Appeals correctly stated the following in Cochran v. State, 500 So.2d 1161, 1176 (Ala.Cr.App.1984), reversed and remanded on other grounds, 500 So.2d 1179 (Ala.1985), 500 So.2d 1188 (Ala.Cr.App.), aff'd, 500 So.2d 1064 (Ala.1986), cert. denied, 481 U.S. 1033 , 107 S.Ct. 1965 , 95 L.Ed.2d 537 (1987):

“ ‘It is not required that evidence submitted by the accused as a non-statutory mitigating circumstance be weighed as a mitigating circumstance by the trial judge. Mikenas v. State, 407 So.2d 892, 893 (Fla.1981), cert. denied, 456 U.S. 1011 , 102 S.Ct. 2307 , 73 L.Ed.2d 1308 (1982).

“ ‘ “Although consideration of all mitigating circumstances is required by the United States Constitution, Lockett v. Ohio, 438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978), the decision of whether a particular mitigating circumstance in sentencing is proven and the weight to be given it rest with the judge and jury. Lucas v. State, 376 So.2d 1149 (Fla.1979).” Smith v. State, 407 So.2d 894, 901 (Fla.1981), *216 cert. denied, 456 U.S. 984 , 102 S.Ct. 2260 , 72 L.Ed.2d 864 (1982).’ ”

Ex parte Hart, 612 So.2d at 542. Moreover,

“As the Alabama Supreme Court stated in Ex parte Giles, 632 So.2d 577 (Ala.1993):

“‘We are aware of no authority for Giles’s legal proposition that these [mitigating] factors, assuming they were conclusively established, mandate a sentence of life imprisonment. Although evidence of nonstatutory factors, such as that presented by Giles, cannot be excluded from the sentencing tribunal, Lockett v. Ohio, 438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978), such evidence is only “potentially mitigating.” Skipper v. South Carolina, 476 U.S. 1, 7 , 106 S.Ct. 1669, 1672 , 90 L.Ed.2d 1 (1986) (emphasis added). The sentencing tribunal, and, on appeal, the reviewing court, determines the weight to be assigned to each factor. 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); Smith v. State, 407 So.2d 894 (Fla.1981), cert. denied, 456 U.S. 984 , 102 S.Ct. 2260 , 72 L.Ed.2d 864 (1982).’

“632 So.2d at 585.”

Calhoun v. State, 932 So.2d 923, 974-75 (Ala.Crim.App.2005).

Here, the record and sentencing order indicate that the trial court properly considered these nonstatutory mitigating factors.

C.

McMillan argues that the trial court placed undue influence on the one aggravating circumstance that the murder was committed while he was engaged in the commission of a robbery. § 13A-5-49(4), Ala.Code 1975. In making this argument, McMillan argues his disapproval of the practice of “double-counting” the robbery/murder circumstance and notes that murder during a robbery accounts for two-thirds of the capital offenses in Alabama.

In Gobble v. State, 104 So.3d 920 (Ala.Crim.App.2010), this Court held that the one aggravating circumstance that the capital offense was especially heinous, atrocious or cruel as compared to other capital offenses outweighed the “ ‘over twenty mitigating circumstances’ ” Gobble alleged were proffered and proved by the defense. This Court stated:

“Section 13A-5A8, Ala.Code 1975, provides:

“ ‘The process described in Sections 13A-5-46(e)(2), 13A-5-46(e)(3) and Section 13A-5-47(e) of weighing the aggravating and mitigating circumstances to determine the sentence shall not be defined to mean a mere tallying of aggravating and mitigating circumstances for the purpose of numerical comparison. Instead, it shall be defined to mean a process by which circumstances relevant to sentence are marshalled and considered in an organized fashion for the purpose of determining whether the proper sentence in view of all the relevant circumstances in an individual case is life imprisonment without parole or death.’

“ ‘The determination of whether the aggravating circumstances outweigh the mitigating circumstances is not a numerical one, but instead involves the gravity of the aggravation as compared to the mitigation.’ Ex parte Clisby, 456 So.2d 105, 108-09 (Ala.1984). ‘[W]hile the existence of an aggravating or mitigating circumstance is a fact susceptible to proof, the relative weight of each is not; the process of weighing, unlike facts, is *217 not susceptible to proof by either party.’ Lawhorn v. State, 581 So.2d 1159, 1171 (Ala.Crim.App.1990). Clearly, the circuit court gave the mitigating circumstances little weight in light of the brutal and heinous aggravating circumstance that was present in this case. ‘The weight to be attached to the aggravating and the mitigating evidence is strictly within the discretion of the sentencing authority.’ Smith v. State, 908 So.2d 273, 298 (Ala.Crim.App.2000). We agree with the circuit court’s findings.”

Gobble v. State, 104 So.3d at 976 . See also Lee v. State, 898 So.2d 790, 873 (Ala.Crim.App.2001), cert. denied, 898 So.2d 874 (Ala.2004), cert. denied, 543 U.S. 924 , 125 S.Ct. 309 , 160 L.Ed.2d 222 (2004) (holding that the trial court was correct in determining that the one aggravating circumstance that the murder was committed during a robbery outweighed the two statutory mitigating circumstances of lack of significant history of criminal activity and the defendant’s age at the time of the offense, as well as a number of nonstatuto-ry mitigating circumstances).

Furthermore, there was no error in that the only aggravating circumstance, which is one included in § 13A-5-49(4), Ala.Code 1975, was also an element of the offense.

“We have previously addressed this issue in other cases and have held that the fact that a particular capital offense necessarily includes one or more aggravating circumstances as specified in Ala. Code 1975, § 13A-5-49, shall not preclude the finding and consideration of that relevant circumstance or those circumstances in determining the sentence. Ex parte Kennedy, 472 So.2d 1106 (Ala.), cert. denied, 474 U.S. 975 , 106 S.Ct. 340 , 88 L.Ed.2d 325 (1985); Smith v. State, 698 So.2d 189 (Ala.Cr.App.1996). Furthermore, Alabama courts have repeatedly upheld death sentences where the only aggravating circumstance supporting the death sentence overlaps with an element of the capital offense. Smith v. State, supra; Heath v. State, 455 So.2d 898 (Ala.Cr.App.1983), affirmed, 455 So.2d 905 (Ala.1984), affirmed, 474 U.S. 82 , 106 S.Ct. 433 , 88 L.Ed.2d 387 (1985); Jenkins v. State, 627 So.2d 1034 (Ala.Cr.App.1992), affirmed, 627 So.2d 1054 (Ala.1993), cert. denied, 511 U.S. 1012 , 114 S.Ct. 1388 , 128 L.Ed.2d 63 (1994).”

Ex parte Trawick, 698 So.2d 162, 178 (Ala.1997).

D.

McMillan argues that the trial court’s rejection of the jury’s verdict is not supported by the law. McMillan contends that pursuant to Ex parte Carroll, supra, the trial court may consider, in overriding the jury’s advisory verdict, information not known by the jury only if that information may properly be used to undermine a mitigating circumstance. Thus, McMillan surmises that the trial court determined that the jury was unable to follow the law and it placed substantial weight on information not known to the jury.

However, the record confirms that the trial court looked to the factors enumerated in Ex parte Carroll, as set out previously. See Part III.A. The trial court made the following extensive findings concerning the jury’s advisory verdict:

“In Carroll, ten jurors recommended life without parole. Here, eight jurors made such a recommendation, one number greater than the statutory minimum to allow a life without parole recommendation.

“Just as this Court is unable to read the minds of any witnesses or parties, likewise it is unable to read the minds of the jury. However, the Court had an opportunity to work with and observe *218 these jurors for almost a week and a half.

“Based on the overwhelming evidence in this case and the unanimous verdicts on both counts of capital murder, it is not easy to determine why eight members of the jury voted against the death penalty in this case. It is highly possible that fewer than eight jurors initially voted for life without parole and that the number of those jurors voting for life without parole only increased as they grew tired of the process and dealt with the weight that a death recommendation would have on each of them.

“In the end, this Court is unable to specifically say why the jury was unable to follow the law to make a recommendation of death in this case. The only fact that is known, is that two more jurors ultimately voted for the death penalty in this case than in Carroll. The Court finds that that weighs in favor of an override of the jury’s recommendation in this case; at least in comparison to Carroll.

“B) Conflicting Evidence of the ‘Trigger Man’:

“While the facts in CaiToll may have left some doubt as to the identity of the ‘trigger man,’ all of the evidence in this case points to McMillan as the perpetrator. As outlined in great detail earlier in this order, the State’s evidence established beyond all reasonable doubt that McMillan intentionally murdered James Bryan Martin while robbing him of his truck. The jury unanimously returned a verdict in approximately an hour and twenty minutes finding that McMillan killed James Bryan Martin. If there was any residual doubt as to any other person’s involvement in these murders, as there apparently was in Carroll, it is not founded upon the evidence presented at trial or in the jury’s guilt phase verdicts. Accordingly, in comparison to Carroll, judicial override is proper in this case.

“(C) Recommendation of Victim’s Family:

“In Carroll, the victim’s family recommended Carroll not receive the death penalty. No person from the Martin family has made any such recommendation in this case. In fact, members of James Bryan Martin’s family were properly precluded from giving any testimony with regard to their recommendation of McMillan’s sentence in one way or another. Accordingly, in comparison to Carroll, judicial override is proper in this case.

“D) Facts of the Crime/Not Killing the Witnesses:

“Although in Carroll, the defendant did not kill all the witnesses and the Supreme Court found that that factor weighed in favor of a life without parole sentence that is not the’case here. The main witness to McMillan’s robbery was James Bryan Martin and McMillan killed him so he could escape in Martin’s truck. The surrounding circumstances of this crime did not afford McMillan with an opportunity to kill or not kill other potential witnesses. Accordingly, in comparison to Gam-oil, judicial override is proper in this case.

“E) Additional Facts Unknown to the jury:

“Finally, Carroll also allows this Court to consider information known only to the trial court and not to the jury, when such information can properly be used to undermine a mitigating circumstance. This Court places substantial weight on this factor in this case.

“This Court has had the benefit of working on this case since shortly after the Grand Jury returned the indictment. *219 It has held numerous evidentiary hearings in preparation for the trial of this case. This Court has had an opportunity to observe McMillan’s demeanor and conduct throughout these proceedings. He has shown no emotion nor has he indicated any remorse whatsoever.

“In the course of preparing the mental evaluation Dr. Karl Kirkland interviewed McMillan. McMillan concocted a story about a ‘drug deal gone bad’ when relating the facts of this case to Dr. Kirkland. Obviously, the evidence presented in this case including the video evidence in no way supports such a story.

“During the penalty phase of this case the jury was informed that McMillan had been convicted of assault 3rd degree on December 20, 2006 in Dallas County. The jury was not told that the facts supporting this crime to which McMillan pled guilty, established that McMillan was chasing another student at the Safety Net Program, caught up with him and pushed him to the ground injuring his knee because the other student had told on McMillan for choking him.

“Additionally, McMillan has a substantial juvenile record dating back to the age of 12. During the almost six years between December 8, 2000 and November 1, 2006, McMillan was adjudicated guilty in two cases of domestic violence 3rd degree, one case of assault 3rd degree, one case of menacing, one case of reckless endangerment, one case of theft 3rd degree and one case of burglary 3rd degree. Of these seven offenses, only two of them are nonviolent offenses.

“McMillan’s domestic violence adjudications both involved altercations that he had with one of his foster parents, Wilhemenia Boykin. On two occasions he hit her in the head and shoulder and in another he threatened to kill her. Twenty-nine months later he was adjudicated guilty of reckless endangerment, menacing and assault 3rd degree arising out of him shooting a ‘BB’ gun at students at Loachapoka High School, shooting at one young man specifically and shooting a young lady in the thigh.

“McMillan has been incarcerated in the Elmore County Jail since his arrest in this case. During this time he has assaulted at least two different inmates. One of those has been assaulted with a bar of soap inside a sock and a second one was cut on his right eye, shoulder and hand using a jail-made ‘shank.’ During the trial of this case and on July 8, 2009, jail-made handcuff keys were found in McMillan’s constructive possession. Additionally, a few weeks before trial the lock on McMillan’s cell door was found bent so that the door would not close and lock correctly.

“In addition to these facts, shortly after McMillan and his codefendant Rondarrell Williams were arrested, McMillan sent a letter to Williams telling him to lie about what happened. In September 2008 McMillan threatened Williams’s life and the life of his family if Williams testified against him in this case.

“Since none of the factors listed by the Alabama Supreme Court in Carroll ‘tips the scales in favor of following the jury’s recommendation’ this Court finds no legal prohibition for overriding the jury’s recommendation.

“These facts significantly diminish the statutory and non-statutory mitigating circumstances that have been presented in this case.

“Justification For Override

“Under Alabama Law the trial judges are required to make the ultimate determination with regard to sentencing. In Harris v. Alabama, 513 U.S. 504 (1995), *220 the Supreme Court of the United States held:

“ ‘[T]he Constitution permits a trial judge, acting alone, to impose a capital sentence. It is thus not offended when a state further requires a sentencing judge to consider a jury’s recommendation and trust a judge to give it the proper weight.’

“This responsibility of making this decision has been placed upon the trial judges of this state in general and this Court in particular by the legislature through the Alabama Criminal Code.

“This Court has had the opportunity to try and impose the sentence in a number of capital murder cases over the last twenty-two years and eight months. In some of these cases, this Court has imposed death. In others, it has imposed a sentence of life without parole. In each of these cases this Court has followed the recommendation of the jury. In this case however, the Court finds that a proper weighing of the aggravating circumstance and mitigating circumstances does not support a sentence of life without parole.

“The Court is aware of many cases in Alabama over the years where the death penalty has been upheld as the appropriate punishment for the capital offense of an intentional murder during the course of committing a robbery 1st degree. In fact this Court has been affirmed most recently on direct appeal of Charlie Washington v. State of Alabama, 922 So.2d 145 (Ala.Crim.App.2005), cert. denied June 16, 2005, Ala. S. Ct, cert. denied, Washington v. Alabama, 546 U.S. 1142 (2006), in its imposition of a death sentence after Washington was convicted of an intentional murder during a robbery 1st degree. Additionally, the Court of Criminal Appeals in Bush v. State, 92 So.3d 121 (Ala Crim.App.2009), again affirmed the trial court in ruling on a Rule 82 appeal when the trial court sentenced the defendant to death after having received a life without parole recommendation from the jury with a twelve to nothing vote. Further, in Ferguson v. State, 13 So.3d 418 (Ala.Crim.App.2008), the trial court was again affirmed on a review of a Rule 32 [Ala.R.Crim.P.,] appeal on a robbery murder when the trial judge sentenced the defendant to death after receiving a jury recommendation of life without parole by a vote of eleven to one.

“No juror is in a position to compare this case with other capital cases as they do not have the resources and benefit of the decisions from the appellate courts nor the personal experience received by trying and deciding these types of cases. When this Court compares the facts of this case to similar cases there is little question that ‘when compared to other cases with similar facts, a sentence of death is not in any way a disproportionate sentence’.”

(C. 12-28.)

Here, the trial court properly considered the pertinent factors in its decision to override the jury’s advisory verdict, as expressed in Ex parte Carroll. In Mitchell v. State, 84 So.3d 968 (Ala.Crim.App.2010), this Court stated:

“ ‘The weight to be given that mitigating circumstance should depend upon the number of jurors recommending a sentence of life imprisonment without parole, and also upon the strength of the factual basis for such a recommendation in the form of information known to the jury, such as conflicting evidence concerning the identity of the “triggerman” or a recommendation of leniency by the victim’s family; the jury’s recommenda *221 tion may be overridden based upon information known only to the trial court and not to the jury, when such information can properly be used to undermine a mitigating circumstance.’

“852 So.2d at 836.

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“Further, the circuit court noted that in arriving at its decision, it had,

“ ‘considered the evidence presented at trial, the evidence presented during the penalty phase in the jury’s presence, the jury’s 10 to 2 advisory verdict for Life Without Parole, the Pre-Sentence Investigation Report (although some portions of the report were expressly excluded from the Court’s consideration such as Youthful Offender convictions), additional testimony at the sentencing phase, and arguments presented at the sentencing hearing.’

“(C.R. 26.) Because the circuit court clearly set forth its reasons for ‘giving the jury’s recommendation the consideration he gave it,’ expressly stated that the jury’s recommendation ‘weighted] heavily in favor of the defendant,’ and gave its reasons for overriding the jury’s recommendation, this Court finds that the circuit court satisfied the requirements set forth in Taylor and Carroll. Carroll, 852 So.2d at 836, (C.R. 26-27.) Consequently, Mitchell is not entitled to relief on this issue.”

Mitchell v. State, 84 So.3d at 992 .

The trial court’s sentencing order and the record support its findings as to the jury override, as does the holding in Ex parte Carroll.

IV.

McMillan argues that the defense was erroneously prevented from adequately presenting mitigating evidence, in violation of State and federal law. He refers to the criminal record of his stepbrother, who he alleged raped him when he was a child and who was also raised by the same abusive father. Moreover, he-argues that he should have been allowed to present this evidence because his stepbrother, like McMillan, had been convicted of the capital offense of murder committed by shooting into a vehicle, and that, because the main theory of his defense at the penalty phase of his trial was the sexual, physical, and mental abuse he suffered during his childhood, this evidence was especially relevant. He also submits that because the State predominately argued that because his sisters were raised in the same household and now lead successful lives, he should have been allowed to show that his stepbrother, who was raised by the same father, did not lead a successful life.

In making his argument, McMillan relies on Ex parte Smith, [Ms. 1010627, March 14, 2003] - So.3d - (Ala.2003), to contend that he “ ‘was prevented from presenting a complete picture of the impact his dysfunctional family had on his development.’” (McMillan’s brief, at 53), quoting Ex parte Smith, - So.3d at -.

Concerning a defendant’s right to present mitigating evidence at his sentencing hearing, this Court has opined:

“ ‘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 *222 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.”

“ ‘§ 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. Angelone, 522 U.S. 269, 276 , 118 S.Ct. 757 , 139 L.Ed.2d 702 (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.’). ‘[E]vidence 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 , 107 S.Ct. 837 , 93 L.Ed.2d 934 (1987) (O’Connor, J., concurring specially).”

“ ‘Ex parte Smith, [Ms. 1010267, March 14, 2003] - So.3d at -.

“‘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 Beck-worth’s father was currently charged with sexually abusing Beckworth’s daughter was properly excluded be *223 cause 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).”

Johnson v. State, 120 So.3d 1130, 1153 (Ala.Crim.App.2009).

Here, McMillan was not raised by his father, so he and his stepbrother did not grow up in the same household. Moreover, his stepbrother’s upbringing was not relevant to McMillan’s character or to the present offense.

At the sentencing hearing, McMillan sought to introduce his stepbrother’s arrest record for the offense of murder by shooting into a vehicle and a record showing that his stepbrother pleaded guilty to first-degree robbery. The State responded that the arrest record did not show any conviction and that these records were not relevant to McMillan’s defense that the Department of Human Resources had failed him. Although the State acknowledged that the records did seem to address the argument concerning his sister’s successful life, there was evidence presented by the defense connecting McMillan to the stepbrother or to the environment in which the stepbrother had grown up. The prosecutor surmised that the proffered evidence was “remote, it’s tenuous, and it has nothing to do with the circumstances of this offense or the character or record of [McMillan] that he would offer as a basis for life without parole.” (R. 1644.) The trial court noted, “I haven’t heard this [stepbrother’s] name mentioned other than what he allegedly did.” (R. 1645.) It then disallowed the documents to be presented to the jury because they were immaterial and irrelevant “to the issues that the jury is called on to decide in the penalty phase with regard to Calvin McMillan.” (R. 1645.)

Here, it is unlikely that any juror would have accorded more weight to the nonstat-utory mitigating circumstances concerning McMillan’s background based on these records. They were aware of his claims that he had been sexually abused by his stepbrother. They were also aware of the difficult circumstances of his upbringing. See generally Davis v. State, 44 So.3d 1118, 1141 (Ala.Crim.App.2009) (“Evidence of a difficult childhood has been characterized as a ‘double-edged’ sword. See Bacon v. Lee, 225 F.3d 470, 481 (4th Cir.2000). ‘[E]mphasizing a client’s deprived childhood does not have a very beneficial impact on a northwest Florida jury, given the fact that many jurors have had difficult lives, but have not turned to criminal conduct.’ Card v. Dugger, 911 F.2d 1494, 1511 (11th Cir.1990). What one juror finds to be mitigation another juror may find aggravating. ‘[Mitigation may be in the eye of the beholder.’ ”).

Moreover, McMillan spent very little time with his father and, as stated by the *224 prosecutor, the evidence indicated that he had not been with his father over a six-year period before the charges were brought against the stepbrother. Further, it appears that the stepbrother was arrested for the capital offense, but there was no evidence that he was tried or convicted of the crime.

There was no abuse of discretion by the trial court in determining that the evidence was not relevant as mitigation.

V.

McMillan argues that the trial court erred by preventing him from thoroughly cross-examining a State’s witness. Specifically, McMillan refers to Investigator Kirk Pelham of the Millbrook Police Department, who was assigned as the case agent in the investigation of this offense.

On appeal, McMillan alleges that at trial he sought to question Investigator Pelham concerning his violation of certain police-department policies, including use of police equipment, careless handling of equipment, unauthorized use of a city vehicle, conduct unbecoming an officer, and failing to obey and execute lawful orders of supervisors. 21 McMillan argues that this was relevant as an indication that Investigator Pelham failed to maintain a proper chain of custody as to the evidence in McMillan’s case.

At trial, after McMillan entered his proffer of the evidence concerning this disciplinary report, the prosecutor responded that he did not believe that it should be allowed into evidence because the alleged incidences occurred on July 18, 2008, after his involvement in the present case. The prosecutor stated:

“If the defendant has any information showing that at any time there was a suspect or weak or even a missing link as to evidence based on his handling of it, then that would certainly be relevant. But to say that the last piece of evidence that or pieces of evidence that Detective Pelham transported in this case occurred in March of 2008. This incident occurred approximately three and a half months after that, which makes it remote from this case and it occurred after this case....

“... [I]f there had been any indication in this report that there was any evidence in this car, that it was other than personal equipment, which is radio, badge and gun, then I would say that’s a different story, but there is a huge difference between personal items that you carry with you everywhere you go and evidence which is handled specially. You take it out of the evidence locker, you take it somewhere and you turn it over, but that you keep secure. I think this is a huge difference between personal equipment and evidence.”

(R. 1235-36.)

Thereafter, the trial judge held that the defense could not inquire into the evidence surrounding the disciplinary report, finding that it was too remote in time, that it was not relevant or probative of any issues in this case, and that there had been no evidence to suggest that Investigator Pel-ham had ever done anything improper or unprofessional as an officer in dealing with evidence in a case.

“Initially we note that

“ ‘ “ ‘The scope of cross-examination in a criminal proceeding is within the discretion of the trial court, and *225 it is not renewable except for the trial judge’s prejudicial abuse of discretion. The right to a thorough and sifting cross-examination of a witness does not extend to matters that are collateral or immaterial and the trial judge is within his discretion in limiting questions which are of that nature. Collins v. State, [Ala.Crim.App., 364 So.2d 368 (1978).]’ ”

“ ‘Burton v. State, 487 So.2d 951, 956 (Ala.Crim.App.1984), quoting Coburn v. State, 424 So.2d 665, 669 (Ala.Crim.App.1982).’

“Gamble v. State, 791 So.2d 409, 434 (Ala.Crim.App.2000).”

Moore v. City of Leeds, 1 So.3d 145, 151 (Ala.Crim.App.), cert. denied, 1 So.3d 157 (Ala.2008).

“Before evidence may be considered by a jury, it must fulfill certain minimum requirements of admissibility, including that of relevancy. ‘Evidence which is relevant has some tendency to make the existence of any fact or inference that is of consequence to the determination of the action more or less probable than it would be without the evidence.’ Dawkins v. State, 455 So.2d 220, 221 (Ala.Cr.App.1984).

“In Dennard v. State, 405 So.2d 408, 410 (Ala.Cr.App.1981), we held:

“ ‘Evidence, to be competent and admissible, must be relevant. This is to say, evidence must tend to prove or disprove the issues before the jury. The determination of the relevancy or lack of relevancy of particular evidence rests largely in the sound discretion of the trial judge. It is, therefore, the duty of the trial judge to limit the evidence to the points in issue so that the attention of the jury is not distracted, nor withdrawn from the primary issues, to be directed towards foreign matters or issues of questionable or doubtful relevancy.’

“The court may exclude evidence when it is such as to furnish a basis for nothing more than mere conjecture or remote inferences in reference to the transaction under investigation. Trawick v. State, 431 So.2d 574, 578 (Ala.Cr.App.1983).”

Hawkins v. State, 549 So.2d 552, 557 (Ala.Crim.App.1989).

Here, the trial court did not abuse its discretion in determining that any report indicating that the case officer had been cited for misusing city property that was not related to this case, which citation had occurred after his involvement in this case, was not relevant. Additionally, McMillan has presented no evidence that the investigator mishandled any evidence in the present case.

Moreover, although McMillan contends that he should have been allowed to cross-examine Investigator Pelham concerning the disciplinary reports in order to impeach him, this argument is too tenuous to be meritorious. He argues that Investigator Pelham “had an ‘interest’ in providing testimony that he followed police procedures in this case, thereby protecting his career and professional reputation.” (McMillan’s brief, at 60.)

“ ‘In the discharge of its fact finding functions the jury’s search for the truth includes the paramount right to consider a witness’s motivation, and any evidence testing “his interest, bias or prejudice” so as to “illustrate or impeach the accuracy of his testimony” is a competent, material and relevant subject of cross-examination, and the jury’s right to be given such evidence is, of itself, part of the fact finding process. Green v. State, [ 258 Ala. 471 , 64 So.2d 84 (1953) ].’

*226 “Ex parte Brooks, 393 So.2d 486, 487-88 (Ala.1980).”

Gobble v. State, 104 So.3d at 953 .

However, a witness may not be unduly harassed and interrogated concerning a matter that does not indicate bias in the particular case under the guise of impeachment. 22

“ ‘ “Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness.... A more particular attack on the witness’ credibility is effected by means of cross-examination directed towards revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand....’””

Ex parte Lynn, 477 So.2d 1385, 1386 (Ala.1985) (quoting other cases). See also Newsome v. State, 570 So.2d 703, 714 (Ala.Crim.App.1989) (“The trial judge may reasonably limit the range of cross-examination on matters that are repetitious, argumentative, collateral, irrelevant, harassing, annoying, or humiliating. Atwell v. State, 354 So.2d 30 (Ala.Cr.App.1977), cert. denied, 354 So.2d 39 (Ala.1978).”).

Here, any disciplinary concerning the investigator’s use of city property following his role in the investigation of this offense would not have indicated bias or effected his credibility so that it would not have constituted valid impeachment evidence.

VI.

McMillan argues that the trial court erred in admitting prejudicial victim-impact evidence during the guilt phase of the trial. McMillan refers to a photograph of the victim and his wife on their wedding day that the State introduced as proof of life of the victim. He argues that this wedding photograph should not have been admitted during the guilt phase of the trial because it was irrelevant, injected personal and inflammatory considerations into the trial, and undermined the reliability of the verdict.

Because McMillan failed to raise this argument at the trial court level, this matter is to be examined pursuant to the plain-error rule. See Rule 45A, Ala. R.App.P.

“In Jolly [v. State, 395 So.2d 1135 (Ala.Crim.App.1981) ], citing McElroy’s Alabama Evidence, this court held:

“ ‘ “It generally is agreed that the photograph of the victim of the homicide, taken before the alleged murder, is admissible for the purpose of identification. This is usually admitted in connection with the testimony of a witness who saw the alleged deceased at the time of the killing and who is called upon to identify the deceased as the person in the photograph. The foregoing decisions which admit the victim’s photograph into evidence for the purpose of identification are applicable even though there exists no dispute over the identity of the deceased, (citing Luschen v. State, 51 Ala.App. 255 , 284 So.2d 282 (1973) (not error to *227 introduce ‘angelic’ looking picture of deceased); Boyd v. State, 50 Ala.App. 394 , 279 So.2d 565 (1973); Sanders v. State, 202 [Ala.App.] 37, 202 Ala. 37 , 79 So. 375 (1918)).” ’

“395 So.2d at 1142.”

Burgess v. State, 827 So.2d 134, 187 (Ala.Crim.App.1998), affirmed, 827 So.2d 193 (Ala.2000), cert. denied, 537 U.S. 976 , 123 S.Ct. 468 , 154 L.Ed.2d 335 (2002). See Taylor v. State, 666 So.2d 36, 66 (Ala.Crim.App.1994) (finding no plain error in the admission during the guilt phase of a photograph of the victims in front of a Christmas tree). See also Ferguson v. State, 814 So.2d 925 (Ala.Crim.App.2000) (finding no plain error in admission during the guilt phase of the victims in front of their boat because it was relevant to show, among other things, that they were alive before the offense).

There was no plain error in the present case resulting from the admission into evidence of the wedding photograph and the identification by his widow of the victim in the photograph.

VII.

McMillan contends that the trial court erred by refusing to grant a continuance for the defense to conduct an adequate investigation into mitigation. McMillan refers to the trial court’s denial of his second motion for a continuance in order to obtain a reliable mitigation expert. He asserts that his mitigation expert suffered from a neurological condition and therefore she was unable to conduct her investigation, and therefore he requested a continuance three weeks before the date set for trial. 23 The trial court granted him a continuance for a month. However, he argues, the expert’s medical condition persisted, and he requested another continuance, which was also denied. Therefore, he was forced to obtain a mitigation expert with no experience.

The record indicates that in February 2009, five months after McMillan requested and was granted funds to hire a mitigation specialist, he hired Dr. Kimberly Ack-erson. On April 20, 2009, he made his first motion to continue based on her medical condition. The trial court granted his motion for a month and reset the trial for June 22, 2009.

McMillan filed another motion to continue on May 15, 2009, indicating that he had been attempting to find another mitigation expert to replace Dr. Ackerson and had spoken to at least seven specialists who had indicated that it would take at least eight months to prepare for trial.

On May 18, 2009, McMillan filed a motion asking the trial court to appoint another mitigation expert, stating that his “initial mitigation specialist has a medical condition that could prevent her from testifying on the trial date, and has already caused the initial date to be continued.” (C.R. 442.) The motion also stated that “Defense Counsel has interviewed the proposed social worker, G. Teal Dick, and believes that he is qualified to provide mitigation services for the Defendant. He has indicated that he is willing to undergo the task as a mitigation specialist.” (C.R. 423.) He attached a copy of Dick’s resumé to the motion, including his qualifications and history of working with the courts, the Department of Human Resources (“DHR”), Hillcrest Behavioral Health Hospital, and the community. (C.R. 434.)

*228 On May 21, the trial court entered an order denying the motion for a continuance and another order granting the motion to appoint Dick as the mitigation specialist and granting the defense additional funds if necessary. (C.R. 437, 438.)

The record further reveals that Dr. Ack-erson testified as to mitigating evidence during the penalty phase of trial. Dick also testified as to mitigation at the penalty phase.

“ ‘ “ ‘A motion for a continuance is addressed to the discretion of the court and the court’s ruling on it will not be disturbed unless there is an abuse of discretion. Fletcher v. State, 291 Ala. 67 , 277 So.2d 882 (1973). If the following principles are satisfied, a trial court should grant a motion for continuance on the ground that a witness or evidence is absent: (1) the expected evidence must be material and competent; (2) there must be a probability that the evidence will be forthcoming if the case is continued; and (3) the moving party must have exercised due diligence to secure the evidence. Knowles v. Blue, 209 Ala. 27, 32 , 95 So. 481, 485-86 (1923).’ ”

“ ‘Fortenberry v. State, 545 So.2d 129, 138 (Ala.Crim.App.1988).’

“Ex parte Clark, 728 So.2d 1126, 1134 (Ala.1998) (quoting Ex parte Saranthus, 501 So.2d 1256, 1257 (Ala.1986)). See also Scott v. State, 937 So.2d 1065, 1076 (Ala.Crim.App.2005).

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“< reVersal of a conviction because of the refusal of the trial judge to grant a continuance requires ‘a positive demonstration of abuse of judicial discretion.’ Clayton v. State, 45 Ala.App. 127, 129 , 226 So.2d 671, 672 (1969).” Beauregard v. State, 372 So.2d 37, 43 (Ala.Cr.App.), cert. denied, 372 So.2d 44 (Ala.1979).’

“McGlown v. State, 598 So.2d 1027, 1029 (Ala.Crim.App.1992).”

Eatmon v. State, 992 So.2d 64, 68 (Ala.Crim.App.2007), cert. denied, Eatmon v. Alabama, 555 U.S. 876 , 129 S.Ct. 185 , 172 L.Ed.2d 132 (2008).

Because McMillan was granted the appointment of a second mitigation specialist and his initial witness, Dr. Ackerson, was able to testify extensively at trial, he was not prejudiced by the denial of his second motion for a continuance, which requested time “until the Defendant can find an experienced mitigation specialist to replace Dr. Kimberly Ackerson.” (C.R. 435.) Thus, the trial court did not abuse its discretion in denying the second motion for a continuance, and its decision was not an unreasonable insistence on expeditiousness.

VIII.

McMillan argues that the trial court erred by requiring him to wear an electronic stun belt during trial. The record indicated that McMillan failed to object to this issue at trial. Therefore, this matter is due to be evaluated pursuant to the plain-error rule. See Rule 45A, Ala. R-App.P.

This Court has previously held that there was no plain error in requiring a defendant to wear a stun belt, relying on Scieszka v. State, 259 Ga.App. 486 , 578 S.E.2d 149 (2003).

“ ‘Our Supreme Court has held that the use “of a remedial electronic security measure” is permissible where it is shielded from the jury’s view and where there is no evidence that defendant was harmed by its use. Young v. State, 269 Ga. 478, 479 (2), 499 *229 S.E.2d 60 (1998). In the Young case, the court found that there was nothing in the record to show that the use of such an electronic device was “so inherently prejudicial as to pose an unacceptable threat to his right to a fair trial” (Citation and punctuation omitted.) Id. In another case, the Supreme Court rejected the defendant’s argument regarding the use of a stun belt, finding that there was “nothing in the record to support [the defendant’s] contention that the device [(although not visible to the jury)] nonetheless had a detrimental psychological effect on his ability to participate in the trial.” Brown v. State, 268 Ga. 354, 359-860 (7), 490 S.E.2d 75 (1997). And in Stanford v. State, 272 Ga. 267, 271 (8), 528 S.E.2d 246 (2000), the court again found no merit to the defendant’s arguments regarding the use of an electronic security device because he failed to object to the device and because it was not visible to the jury.

“ ‘Scieszka’s argument must similarly fail because he raised no objection to the use of the stun belt and thus did not obtain a ruling from the trial court on the issue. Moreover, the record is devoid of any evidence of harm or prejudice arising from the use of the stun belt at his trial.

“ ‘And contrary to Scieszka’s assertion, the recent opinion by the Eleventh Circuit Court of Appeals in United States v. Durham, 287 F.3d 1297 (11th Cir.2002), does not require a different result. In Durham , the Eleventh Circuit expressed serious concerns regarding the use of these devices and their effect on a defendant’s ability to participate in his defense. Id. at 1305-1306 . Nevertheless, the defendant in that case had filed a motion seeking to prohibit the stun belt’s use, and the district court had ruled that the device could be used in light of the defendant’s history of escape attempts. Id. at 1302-1303 . The Eleventh Circuit remanded the ease, requiring the district court to make factual findings regarding the use of the stun belt and to consider on the record the use of less restrictive alternatives. Id. at 1307-1309 . Thus Durham is distinguishable from this case because the use of the stun belt in that case was court-sanctioned following the defendant’s objection.’

“259 Ga.App. at 487-88, 578 S.E.2d at 150-51 .”

Belisle v. State, 11 So.3d 256, 282 (Ala.Crim.App.2007), affirmed, 11 So.3d 323 (Ala.2008), cert. denied, 557 U.S. 939 , 129 S.Ct. 2865 , 174 L.Ed.2d 582 (2009).

Here, there was no indication of error as a result of the use of the stun belt.

IX.

McMillan argues that the trial court committed reversible error by admitting what he says were prejudicial photographs that served no purpose except to inflame the passions of the jury. McMillan refers to photographs developed from a disposable camera 24 that was found in the victim’s truck when it was processed by the police. He specifically refers to a photograph of a gun on a pile of money, two photographs of him making gestures toward the camera, and a photograph of him posed pointing a gun toward the camera.

*230 McMillan argues that the photographs should not have been allowed into evidence because, he says, the State failed to lay the proper predicate • for their admission by proving who took the photographs or when they were taken. He also argues that they were inadmissible because they were evidence of prior bad acts offered to prove his bad character and were overly prejudicial.

A.

McMillan contends that the State failed to lay the proper predicate for the admission of the photographs because there was no evidence as to who took the photographs or when they were taken. He alleges that the prosecutor’s argument at trial that the photographs should be admitted pursuant to the “silent witness” theory has never been applied in Alabama “to images where the defendant is alleged to have taken the photographs.” (McMillan’s brief, at 73.)

At trial, evidence showed that the disposable cameras were found in the victim’s truck. One was located in the passenger compartment and the other was found in a bag behind the seat. (R. 210-11, 1198.) The bag was found within a Fila brand bag that contained McMillan’s belongings. (R. 206.) After the truck was processed and inventoried, the cameras were turned over to Investigator Pelham. (R. 1035-36.) The cameras were taken for processing to a Rite Aid drug store. The employee who had developed the film in the cameras testified that she did so in the normal course of business, that she had been trained to do so, and that all the equipment was working properly. (R. 1104-06.) The officer, Investigator Pelham, who brought the cameras into the Rite Aid drug store remained while the film was processed. (R. 1106.) He testified that he watched the process of the development and that he made copies of the photographs. (R. 1199.) He further testified that he did not alter or tamper with the evidence and that the photographs were placed in evidence bags and then put into the evidence locker. He identified them in court as being the same as when they were developed and received at the Rite Aid drug store. (R. 1201.)

At trial, a witness who had seen McMillan when he came by the witness’s apartment on the night following the offense testified that he had known McMillan through his son. He stated that McMillan came by his apartment in order to show his new truck to the brother of the witness’s god-parent. The State showed the four photographs to the witness, and he identified McMillan, the man he had seen that night, as the man in the photographs. The photographs were also shown to Ron-darrell Williams for identification purposes. (R. 1090-91.)

As to the photographs of the gun, 25 Investigator Pelham testified that the photographs of the gun depicted an automatic weapon and that the photograph depicting the gun lying on the pillow or bedding revealed three round holes in the trigger. (R. 1210-11.)

The photographs were properly allowed into evidence. The photographs of McMillan were authenticated by two witnesses who authenticated that the photographs showed McMillan as he appeared at the time of the offense. Thus, the “silent witness” theory was not necessary for their admission. See Ex parte Rieber, 663 So.2d *231 999, 1008 (Ala.1995) (“ ‘If there is no qualified and competent witness who can testify that the sound recording or other medium accurately and reliably represents what he or she sensed at the time in question, then the “silent witness” foundation must be laid.’ ”).

Moreover, had the witnesses not testified that this was McMillan’s appearance at the time of the offense, the “silent witness” theory would have allowed the photographs of McMillan to be admitted pursuant to the testimony of the Rite Aid drug-store employee.

The photographs of the gun were also admissible pursuant to the “silent witness” theory based on the testimony of the Rite Aid employee.

“ ‘There are two theories upon which photographs, motion pictures, videotapes, sound recordings, and the like are analyzed for admission into evidence: the “pictorial communication” or “pictorial testimony” theory and the “silent witness” theory. [2 John W. Strong, James H. Chadbourn,] Wigmore [on Evidence, § 790 (1970 & Supp.1991) ]; McCormick [on Evidence § 214 (1992) ]; and [William A. Schroeder, et al., Alabama Evidence, § 11-3 (1987 & Supp. 1988) ]. The “pictorial communication” theory is that a photograph, etc., is merely a graphic portrayal or static expression of what a qualified and competent witness sensed at the time in question. Wigmore, supra, § 790, and McCormick, supra, § 214. The “silent witness” theory is that a photograph, etc., is admissible, even in the absence of an observing or sensing witness, because the process or mechanism by which the photograph, etc., is made ensures reliability and trustworthiness. In essence, the process or mechanism substitutes for the witness’s senses, and because the process or mechanism is explained before the photograph, etc., is admitted, the trust placed in its truthfulness comes from the proposition that, had a witness been there, the witness would have sensed what the photograph, etc., records. Wigmore, supra, § 790, and McCormick, supra, § 214.

“ ‘A reasonable reading of [Voudrie v. State, 387 So.2d 248 (Ala.Crim.App.1980), cert. denied, 387 So.2d 256 (Ala.1980); Carraway v. State, 583 So.2d 993 (Ala.Crim.App.1991), cert. denied, 583 So.2d 997 (Ala.1991); Molina v. State, 533 So.2d 701 (Ala.Crim.App.1988), cert. denied, 489 U.S. 1086 , 109 S.Ct. 1547 , 103 L.Ed.2d 851 (1989),] and the more recent caselaw of the Court of Criminal Appeals leads us to conclude that the Court of Criminal Appeals is of the opinion that the “pictorial communication” and “silent witness” theories are mutually exclusive theories, rather than alternative theories. The proper foundation required for admission into evidence of a sound recording or other medium by which a scene or event is recorded (e.g., a photograph, motion picture, videotape, etc.) depends upon the particular circumstances. If there is no qualified and competent witness who can testify that the sound recording or other medium accurately and reliably represents what he or she sensed at the time in question, then the “silent witness” foundation must be laid. Under the “silent witness” theory, a witness must explain how the process or mechanism that created the item works and how the process or mechanism ensures reliability.’ ”

Ex parte Rieber, 663 So.2d at 1008, cert. denied, 516 U.S. 995 , 116 S.Ct. 531 , 133 L.Ed.2d 437 (1995).

The “silent witness” theory allows the admission of photographs under certain conditions according to the procedures, *232 safeguards of the processing, and proof thereof that is presented at trial.

“ ‘The proper foundation required for admission into evidence of a sound recording or other medium by which a scene or event is recorded (e.g., a photograph, motion picture, videotape, etc.) depends upon the particular circumstances. If there is no qualified and competent witness who can testify that the sound recording or other medium accurately and reliably represents what he or she sensed at the time in question, then the “silent witness” foundation must be laid. Under the “silent witness” theory, a witness must explain how the process or mechanism that created the item works and how the process or mechanism ensures reliability. When the “silent witness” theory is used, the party seeking to have the sound recording or other medium admitted into evidence must meet the seven-prong Voudrie [v. State 387 So.2d 248 (Ala.Crim.App.1980),] test. Rewritten to have more general application, the Voudrie standard requires:

“‘(1) a showing that the device or process or mechanism that produced the item being offered as evidence was capable of recording what a witness would have seen or heard had a witness been present at the scene or event recorded,

“‘(2) a showing that the operator of the device or process or mechanism was competent,

“ ‘(3) establishment of the authenticity and correctness of the resulting recording, photograph, videotape, etc.,

“ ‘(4) a showing that no changes, additions, or deletions have been made,

“ ‘(5) a showing of the manner in which the recording, photograph, videotape, etc., was preserved,

“ ‘(6) identification of the speakers, or persons pictured, and

“ ‘(7) for criminal cases only, a showing that any statement made in the recording, tape, etc., was voluntarily made without any kind of coercion or improper inducement.’

“Ex parte Fuller, 620 So.2d 675, 678 (Ala.1993).”

Baker v. State, 87 So.3d 587, 596 (Ala.Crim.App.2009). 26

In the present case, the State presented a sufficient precedent or foundation to allow the photographs into evidence.

B.

The photographs were admissible because they were relevant and probative to the case, despite McMillan’s claim that they should have been precluded under Rule 404(b), Ala.R.Evid.

“1 “ ‘Photographic evidence is admissible in a criminal prosecution if it tends to prove or disprove some disputed or material issue, to illustrate some relevant fact or evidence, or to corroborate or dispute other evidence in the case. Photographs that tend to shed light on, to strengthen, or to illustrate other testimony presented may be admitted into evidence.... Finally photographic evidence, if relevant, is admissible even if it has a tendency to inflame the minds of the jurors.” ’

“ ‘Gaddy v. State, 698 So.2d 1100, 1148 (Ala.Cr.App.1995), aff'd, 698 So.2d 1150 (Ala.1997) (quoting Ex parte Siebert, 555 So.2d 780, 783-84 (Ala.1989)). Furthermore, photographs that depict *233 the crime scene are relevant and therefore admissible. Aultman v. State, 621 So.2d 353 (Ala.Cr.App.1992), cert. denied, 510 U.S. 954 , 114 S.Ct. 407 , 126 L.Ed.2d 354 (1993); Ex parte Siebert, 555 So.2d 780, 783-84 (Ala.1989), cert. denied, 497 U.S. 1032 , 110 S.Ct. 3297 , 111 L.Ed.2d 806 (1990); Hill v. State, 516 So.2d 876 (Ala.Cr.App.1987). Finally, photographs may be admissible even if they are cumulative or demonstrate undisputed facts. Stanton v. State, 648 So.2d 638 (Ala.Cr.App.1994); Hopkins v. State, 429 So.2d 1146, 1157 (Ala.Cr.App.1983).’

“Hyde v. State, 778 So.2d 199, 234-35 (Ala.Crim.App.1998), aff'd, 778 So.2d 237 (Ala.2000).”

Newton v. State, 78 So.3d 458, 474 (Ala.Crim.App.2009). See also Holder v. State, 584 So.2d 872, 881 (Ala.Crim.App.1991) (“Generally, whether to admit photographic evidence is left to the sound discretion of the trial court and its decision will be reversed only when an abuse of discretion has occurred. See Bankhead [v. State, 585 So.2d 97 (Ala.Crim.App.1989), remanded on other grounds, 585 So.2d 112 (Ala.1991), affirmed on return to remand, 625 So.2d 1141 (Ala.Crim.App.1992), reversed on other grounds, 625 So.2d 1146 (1993) ]; Magwood v. State, 494 So.2d 124 (Ala.Cr.App.1985), aff'd, 494 So.2d 154 (Ala.1986), cert. denied, 479 U.S. 995 , 107 S.Ct. 599 , 93 L.Ed.2d 599 (198[6])”).

In the present case, McMillan gave a statement indicating that another man gave him a ride in the victim’s truck and that it was that man who jumped from the truck and tried to escape when the police attempted to apprehend the person who had shot the victims. McMillan also called the eyewitnesses’ descriptions of the perpetrator into question. Therefore, the question of the perpetrator’s appearance became relevant.

“Rule 401, Ala. R. Evid., provides:

“ ‘ “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’

“Rule 402, Ala. R. Evid., provides:

“ ‘All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States or that of the State of Alabama, by statute, by these rules, or by other rules applicable in the courts of this State. Evidence which is not relevant is not admissible.’

“Rule 403, Ala. R. Evid., provides:

“ ‘Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.’

“Finally, Rule 404(b), Ala. R. Evid., provides:

“ ‘Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any *234 such evidence it intends to introduce at trial.’

“This court addressed the admissibility of evidence about collateral bad acts in Irvin v. State, 940 So.2d 381 , 344-46 (Ala.Crim.App.2005), as follows:

“ ‘ “The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court’s determination on that question will not be reversed except upon a clear showing of abuse of discretion.” Ex parte Loggins, 771 So.2d 1093, 1103 (Ala.2000). This is equally true with regard to the admission of collateral-acts evidence. See Davis v. State, 740 So.2d 1115, 1130 (Ala.Crim.App.1998). Moreover, “ ‘[a] trial court will not be placed in error for assigning the wrong reason for a proper ruling, if that ruling is correct for any reason.’ ” Peraita v. State, 897 So.2d 1161, 1183 (Ala.Crim.App.2003), aff'd, 897 So.2d 1227 (Ala.2004) (quoting Nicks v. State, 521 So.2d 1018, 1030-31 (Ala.Crim.App.1987), aff'd, 521 So.2d 1035 (Ala.), cert. denied, 487 U.S. 1241 , 108 S.Ct. 2916 , 101 L.Ed.2d 948 (1988)).’ ”

Baker v. State, 87 So.3d at 598 .

In this case, the photographs of McMillan were relevant because he challenged the descriptions given by a number of State’s witnesses’ descriptions of the perpetrator of the offense as having differed from his appearance; one of them as to the length of his hair. 27 Other State’s witnesses who knew McMillan described him as having closely cropped hair and a goatee. (R. 1084, 1090-91.) At the time of trial, McMillan had changed his appearance and had no goatee. Thus, McMillan brought his appearance into issue at trial and opened the door for the admission of photographic evidence by the State to prove that Rondarrell Williams and the witness who saw McMillan on the night following the offense were accurate as to them descriptions. See Hardy v. State, 804 So.2d 247, 271 (Ala.Crim.App.1999), affirmed, 804 So.2d 298 (Ala.2000), cert. denied, 534 U.S. 1043 , 122 S.Ct. 621 , 151 L.Ed.2d 543 (2001) (“ ‘Similarly, factors such as the witness’s familiarity with the defendant’s appearance at the time the surveillance photographs were taken or dressed in a manner similar to the individual depicted in the photographs, and whether the defendant had either disguised his appearance at the time of the offense or altered his appearance prior to trial, would also have some bearing on whether the witness is better able than the jury to make a correct identification. See United States v. Ellis, 121 F.3d 908, 926 (4th Cir.1997), cert. denied, 522 U.S. 1068 , 118 S.Ct. 738 , 139 L.Ed.2d 674 (1998) (upholding the admission of lay opinion identification testimony by a witness who had known defendant for approximately five years, where defendant had disguised himself with a mask and a hooded sweatshirt at the time of the offense); [United States v.] Towns, 913 F.2d [434] at 445 [(7th Cir.1990) ] (upholding identification testimony from defendant’s former girlfriend, who had observed defendant’s appearance on the day of the bank robbery, where the surveillance photograph depicted the robber “wearing a stocking cap, sunglasses, and a sweatsuit that potentially made him appear heavier than he really was” and where defendant had shaved his mous-tache off prior to trial); [United States v.] Borrelli, 621 F.2d [1092] at 1095 [(10th Cir.1980) ] (finding lay opinion identifiea *235 tion testimony helpful where witness, defendant’s stepfather, “had independent knowledge of [defendant’s] appearance both before and at the time of the robbery” and defendant “had significantly altered his appearance by changing his hairstyle and growing a moustache”)’ ”).

Moreover, the photograph of McMillan pointing the gun proved that he had possession or access to a gun similar to the murder weapon. The other photographs of the gun from the same roll of film containing the photographs of McMillan also connect him to the weapon. Because no fingerprint evidence was found on the murder weapon, this photographic evidence was particularly important to the State’s case. Thus, this evidence “ ‘ “ ‘had some logical connection’ ” ’ ” to the murder and tended to corroborate Rondarrell Williams’s statement that McMillan possessed a 9mm or 40-caliber automatic. (R. 1048, 1063, 1089-90.) Mitchell v. State, 84 So.3d 968, 1010 (Ala.Crim.App.2010). See also Brown v. State, 56 So.3d 729 (Ala.Crim.App.2009) (“Although the State could not directly connect the caliber of bullets and the bullet casings found at Brown’s house with the fragments found in the victim’s body, the bullets and bullet casings were of the same caliber as the gun Brown told police Martin used to kill Laney and subsequently asked Brown to throw off of the bridge. Given the liberal test applied to determine the relevancy of evidence, the caliber of the bullets and bullet casings found at Brown’s house, and the type of gun Brown threw over the bridge, we cannot say that the circuit court abused its discretion by allowing the bullets and bullet casings into evidence at trial.”).

Although the photographs of the gun were not directly identified as depicting the murder weapon, the weight and credibility of the evidence were matters for the jury’s determination. Investigator Pelham testified that the photographs of the gun depicted an automatic weapon, and that the photograph depicting the gun lying on the pillow or bedding revealed three round holes in the trigger. (R. 1210-11.) The defense introduced evidence of photographs from various pawn shops to prove that a number of similar guns have three holes in the trigger.

Adam Grooms, the forensics expert who specialized in firearms and tool marks, testified concerning the gun that was found in the victim’s truck. He identified it as the weapon that had discharged the bullets (that killed the victim) in this offense. He was not shown the photographs for identification or comparison. Although the prosecutor referred to a defect or scratch on the trigger guard of the gun that he argued was also apparent in the photograph of McMillan pointing the gun at the camera, neither Investigator Pelham nor Adam Grooms testified concerning the scratch. However, the gun and the photographs of the gun were relevant and could be evaluated and considered by the jury.

“ ‘ “[T]he State is not permitted to give in evidence other crimes alleged to have been committed by the defendant unless they are so connected by circumstances with the particular crime charged as that proof of one fact with its circumstances has some bearing on the issue on trial other than to show in the defendant a tendency or disposition to commit the crime with which he is charged.” ’

“Ex parte Casey, 889 So.2d 615, 618 (Ala.2004) (quoting Garner v. State, 269 Ala. 531, 533 , 114 So.2d 385, 386 (1959) (emphasis omitted)).’

Ex parte Deardorff, 6 So.3d 1235, 1242 (Ala.2008).

*236 Here, the photographs of McMillan were relevant to the issue of identity and the photographs of the gun were admissible to connect McMillan to the murder weapon.

C.

The probative value of the photographs outweighed their prejudicial impact.

“ ““ “Judicial inquiry does not end with a determination that the evidence of another crime is relevant and probative of a necessary element of the charged offense. It does not suffice simply to see if the evidence is capable of being fitted within an exception to the rule. Rather, a balancing test must be applied. The evidence of another similar crime must not only be relevant, it must also be reasonably necessary to the government’s case, and it must be plain, clear, and conclusive, before its probative value will be held to outweigh its potential prejudicial effects.’” Averette v. State, 469 So.2d 1371, 1374 (Ala.Cr.App.1985), quoting United States v. Turquitt, supra [ 557 F.2d 464 ,] at 468-69 [(5th Cir.1977) ]. ‘ “ ‘Prejudicial’ is used in this phrase to limit the introduction of probative evidence of prior misconduct only when it is unduly and unfairly prejudicial.” [Citation omitted.] “Of course, ‘prejudice, in this context, means more than simply damage to the opponent’s cause. A party’s case is always damaged by evidence that the facts are contrary to his contention; but that cannot be grounds for exclusion. What is meant here is an undue tendency to move the tribunal to decide on an improper basis, commonly, though not always, an emotional one.’ ” ’ Averette v. State, supra, at 1374.”

“ ‘[Robinson v. State,] 528 So.2d [343,] 347 [ (Ala.Crim.App.1986) ]. See also Hocker v. State, 840 So.2d 197, 213-14 (Ala.Crim.App.2002).’ ”

Baker v. State, 87 So.3d at 599 .

Although the probative value of the photograph of the gun lying on a pile of money is questionable as opposed to its prejudicial impact in light of the other photographs available of the gun and because no money was taken in this offense, the error, if any, in its admission on the basis that its probative value outweighed its prejudicial effect was harmless. See Rule 45, Ala. R.App.P. (“No judgment may be reversed or set aside, nor new trial granted in any civil or criminal case on the ground of misdirection of the jury, the giving or refusal of special charges or the improper admission or rejection of evidence, nor for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”).

“The Alabama Supreme Court has stated:

“ ‘ “[Bjefore the reviewing court can affirm a judgment based upon the ‘harmless error’ rule, that court must find conclusively that the trial court’s error did not affect the outcome of the trial or otherwise prejudice a substantial right of the defendant.” Ex parte Crymes, 630 So.2d 125, 126 (Ala.1993) (emphasis omitted). “ ‘The basis for the [exclusionary rule] lies in the belief that the prejudicial effect of prior crimes will far outweigh any probative value that might be gained from them. Most agree that such evidence of prior crimes has almost an irrevers *237 ible impact upon the minds of jurors.’ ” Ex parte Cofer, 440 So.2d 1121, 1123 (Ala.1983), quoting C. Gamble, McElroy’s Alabama Evidence, § 69.01(1) (3d ed. 1977), also quoted in Hobbs v. State, 669 So.2d 1030, 1032 (Ala.Crim.App.1995).’

“Ex parte Casey, 889 So.2d 615, 621-22 (Ala.2004).”

Turner v. State, 929 So.2d 1041, 1043 (Ala.Crim.App.2005).

Here, the presence of the money did not prove or indicate a prior offense or a collateral bad act by McMillan so that the admission of the photograph might have effected one of McMillan’s substantial rights. Moreover, in light of the overwhelming evidence against McMillan, it is clear that the jury’s decision was based on the evidence of guilt rather than any prejudice from the fact that the gun was positioned atop a pile of money in the photograph. Johnson v. State, 120 So.3d 1130, 1187 (Ala.Crim.App.2009). Brown v. State, 74 So.3d 984, 1013 (Ala.Crim.App.2010) (“[T]he evidence as to Brown’s guilt was overwhelming. After reviewing the entire record as a whole, ‘it is clear beyond a reasonable doubt that the jury would have returned a verdict of guilty’ even without the admission of Washington’s statement to Mobbs. United States v. Hasting, 461 U.S. 499, 510 , 103 S.Ct. 1974 , 76 L.Ed.2d 96 (1983). See also Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967). Under these circumstances, any error in the admission of Washington’s statement to Mobbs was harmless. See Rule 45, Ala.R.App.P.”).

“ ‘ “ ‘After finding error, an appellate court may still affirm a conviction on the ground that the error was harmless, if indeed it was.’ Guthrie v. State, 616 So.2d 914, 931 (Ala.Crim.App.1993), citing Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967). ‘The harmless error rule applies in capital cases.’ Knotts v. State, 686 So.2d 431, 469 (Ala.Crim.App.1995), opinion after remand, 686 So.2d 484 (Ala.Crim.App.1995), aff'd, 686 So.2d 486 (Ala.1996), cert. denied, 520 U.S. 1199 , 117 S.Ct. 1559 , 137 L.Ed.2d 706 (1997), citing Ex parte Whisenhant, 482 So.2d 1241 (Ala.1983). ‘In order for a constitutional error to be deemed harmless under Chapman , the state must prove beyond a reasonable doubt that the error did not contribute to the verdict. In order for the error to be deemed harmless under Rule 45, the state must establish that the error did not injuriously affect the appellant’s substantial rights.’ Coral v. State, 628 So.2d 954, 973 (Ala.Crim.App.1992), opinion after remand, 628 So.2d 988 (Ala.Crim.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). ‘The purpose of the harmless error rule is to avoid setting aside a conviction or sentence for small errors or defects that have little, if any, likelihood of changing the result of the trial or sentencing.’ Davis v. State, 718 So.2d 1148, 1164 (Ala.Crim.App.1997), aff'd, 718 So.2d 1166 (Ala.1998), cert. denied, 525 U.S. 1179 , 119 S.Ct. 1117 , 143 L.Ed.2d 112 (1999).”

‘“McNabb v. State, 887 So.2d 929, 976-77 (Ala.Crim.App.2001).’

“Sale v. State, 8 So.3d 330, 347 (Ala.Crim.App.2008). See also Ex parte Brown, 11 So.3d 933 (Ala.2008) (holding that the alleged improper admission of evidence in a capital trial was harmless); Cothren v. State, 705 So.2d 849 (Ala.Crim.App.1997) (holding that the im *238 proper admission of the defendant’s coerced confession was harmless in light of the overwhelming evidence establishing that the defendant committed the capital offense).”

Ex parte Brownfield, 44 So.3d 43, 48 (Ala.2009).

In the present case, the photographs were relevant and properly admitted. Moreover, the probative value of the photographs was not outweighed by their prejudicial effect. The photograph showing the gun atop the pile of money was properly admitted; any error was, at most, harmless.

X.

McMillan argues that prosecutorial misconduct undermined the reliability of the death sentence. He cites three instances in which he. alleges that the prosecutor engaged in impropriety.

A.

McMillan alleges that the prosecutor improperly introduced victim-impact evidence by eliciting testimony from the victim’s father during the penalty phase that indicated a comparison between the fact that the victim’s mother had left his family when the victim was a child, as had McMillan’s mother. McMillan argues that this testimony served only to point out harm caused to the victim’s family by the offense. McMillan also alleges that the prosecutor emphasized this impropriety by diminishing the hardships of McMillan’s childhood by stating that he was not the only child who had been a “victim” of a dysfunctional family and that others had not grown “up to be sociopathic killers.” (R. 1520-21.)

“In Payne v. Tennessee, 501 U.S. 808 , 111 S.Ct. 2597 , 115 L.Ed.2d 720 (1991), the United States Supreme Court held: “‘[A] State may properly conclude that for the jury to assess meaningfully the defendant’s moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant. “[T]he State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.” Booth [v. Maryland ], 482 U.S. [496, 517 (1987) ] (White, J„ dissenting) (citation omitted). By turning the 'victim into a “faceless stranger at the penalty phase of a capital trial,” [South Carolina v.] Gathers, 490 U.S. [805, 821 (1989)] (O’Connor, dissenting), Booth deprives the State of the full moral force of its evidence and may prevent the jury from having before it all the information necessary to determine the proper punishment for a first-degree murder.’

“501 U. S. at 825, 111 S.Ct. 2597 . The Supreme Court further stated:

“ ‘We thus hold that if the State chooses to permit the admission of victim impact evidence and prosecuto-rial argument on that subject, the Eighth Amendment erects no per se bar. A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim’s family is relevant to the jury’s decision as to whether or not the death penalty should be imposed. There is no reason to treat such evidence differently than other relevant evidence is treated.’

“Payne, 501 U.S. at 827 , 111 S.Ct. 2597 . The Supreme Court recognized that vie- *239 tim-impact evidence ‘is designed to show instead each victim’s “uniqueness as an individual human being,” whatever the jury might think the loss to the community resulting from his death might be.’ Payne, 501 U.S. at 823 , 111 S.Ct. 2597 .”

Woods v. State, 13 So.3d 1, 35 (Ala.Crim.App.2007).

There was no impropriety in comparing the abandonment by the victim’s mother with that of McMillan or in comparing McMillan with other child victims who did not grow up to be criminals. These arguments were used to rebut McMillan’s mitigating evidence concerning the hardships of his childhood. See Woods v. State, 13 So.3d 1 (Ala.Crim.App.2007) (testimony from victim’s family as to the harm to the children, grandchildren, and planned children caused by the victim’s loss was proper rebuttal testimony for the mitigating evidence offered by Woods, i.e., that he was the father of three children whom he loved). See also Ferguson v. State, 814 So.2d 925, 949 (Ala.Crim.App.2000), affirmed, 814 So.2d 970 . (Ma.2001), cert. denied, 535 U.S. 907 , 122 S.Ct. 1208 , 152 L.Ed.2d 145 (2002) (prosecutor’s argument that the victims also did not have a chance was proper rebuttal to the mitigating evidence that Ferguson did not have a chance because of his difficult childhood and his low intelligence).

“Obviously, a prosecutor is permitted to argue to the trial court (or to the jury) that it should not find evidence offered by a defendant to be mitigating. Moreover, ‘[a] prosecutor has a right based on fundamental fairness to reply in kind to the argument of defense counsel.’ DeBruce v. State, 651 So.2d 599, 609 (Ala.Crim.App.1993), aff'd, 651 So.2d 624 (Ala.1994).”

Ferguson v. State, 814 So.2d at 949.

There was no impropriety by the prosecutor as to his argument at the penalty phase on this ground.

B.

McMillan contends that the prosecutor engaged in improper conduct by telling the jury that the district attorney’s office, the police, and the victim’s family had already decided that death was the appropriate sentence. McMillan refers to the following argument by the prosecutor during his closing at the guilt phase:

“Now, ladies and gentlemen, several months ago my office decided that this case justified our seeking the death penalty

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