# White v. State

> Court of Criminal Appeals of Alabama · August 30, 2013 · 179 So. 3d 170

URL: https://www.frixlaw.com/law-library/cases/4823417

## Case

- **Full name:** Justin WHITE v. STATE of Alabama
- **Court:** Court of Criminal Appeals of Alabama
- **Decided:** August 30, 2013
- **Citations:** 179 So. 3d 170; 2013 Ala. Crim. App. LEXIS 71; 2013 WL 4710495
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Windom
- **Judges:** Burke, Joiner, Kellum, Welch, Windom
- **Cited by:** 20 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4823417

## How later opinions describe it (automated extraction)

- noting that the admission of evidence is a matter within the trial court's discretion

## Opinion text

WINDOM, Presiding Judge.
Justin White appeals his two convictions for capital murder and his sentences of death. White was convicted of murder made capital for intentionally taking the life of Jasmine Parker during the course of a rape, see § 13A-5-40(a)(3), Ala.Code 1975, and during the course of a burglary, see § 13A-5-40(a)(4), Ala.Code 1975. The jury, by a vote of 9-3, recommended that White be sentenced to life, in prison without the possibility of parole. The circuit court rejected the jury’s- recommendation and sentenced White to death.
Facts and Pmcedwal History
On the morning of July 11,2006, Parker went to work with her mother, Vanessa Parker, at Sharp „ Cleaners in Vestavia. Parker was not employed at the cleaners; however, she helped Vanessa on occasion. Around 3:00 p.m., Sylvia Williams, Vanessa’s coworker, drove Parker home. After Parker got home, she called Vanessa and asked if she could go to a Captain D’s restaurant with Greg Jelks. Vanessa gave Parker permission to-go.'
Vanessa left work around .6:00 p.m. and went to a funeral home;because a friend had passed away. After leaving the funeral home, Vanessa-drove to her apartment. She arrived at the apartment between 7:00 p.m. and 7:30 p.m. As she entered the apartment, she called -out to Parker but received no response.- -At that point, Vanessa noticed that the apartment was in disarray. The cushions .on the couch were misplaced, the telephone had been knocked from its base, and a .coffee table had been knocked-over.
. Vanessa then began to walk through the apartment and found Parker’s body in a small hall area. Parker was nude from the waist down and her shirt was pulled up, exposing her breasts. Parker’s blue jeans had been tied in a knot around her neck and used to strangle her to death. Upon findingParker’s .body, Vanessa .telephoned emergency 911.
In response to Vanessa’s call to 911, law-enforcement officers were dispatched to the apartment. Steve Owens, an officer with the forensic unit of the Birmingham police department, was called to the scene *182 to collect evidence and diagram the scene. 1 While at the scene, Owens took a number of photographs and collected, among other things: 1) a plastic fingernail that had been found next to Parker’s body; 2) a cigar tip that had been found on a table; and 3) a cigarette butt. Parker’s cellular telephone was never found.
•Dr. Gregory G. Davis, with the Jefferson County Coroner’s Office, performed an autopsy on Parker. • According to Dr. Davis, when he began the examination, Parker’s blue jeans were tied around her neck so tightly he could not get his finger between the blue jeans and her neck. Dr. Davis explained that Parker had abrasions on her neck from the blue jeans. She .also had a nonlethal, five-inch cut on her neck. Dr. Davis testified that Parker had petec-hiae — ruptured blood vessels due to pressure — under her eyelids. According to Dr. Davis, “petechiae [are] something that you ..'. expect to see in someone who has been strangled.” (R. 313.) Dr. Davis concluded Parker had died as a result of asphyxia due to strangulation.
During the autopsy, Dr. Davis swabbed Parker’s mouth, vagina, and anus to look for ' signs of sexual assault. He also swabbed a' stain on her leg. Initially, Dr. Davis did not detect any semen on the swabs. However, after examining the swabs a second time, Dr. Davis detected semen on the swab from Parker’s vagina and on the swab from her leg.
’ The investigation into Parker’s murder languished until Detective Christopher Anderson, the lead detective, realized in August 20Ó8 that none of the evidence collected from the crime scene or from Parker’s body had been sent to the Alabama Department of Forensic Sciences (hereinafter “DFS”) for, testing. The evidence collected from the crime scene and from Parker’s body was then sent to DFS. Nathan Rhea, a forensic scientist at DFS, tested numerous items related to Parker’s murder. According to Rhea, he obtained a DNA profile for saliva located on the cigar tip collected from the apartment and from the semen collected from Parker’s leg and vagina.' Rhea then entered those profiles into a State database and determined that the profiles matched White’s profile.
After the State presented evidence establishing that the DNA collected from Parker’s body and the cigar tip matched White’s profile, it informed the court that it was going to present evidence pursuant to Rule 404(b), Ala. R. Evid., establishing that White also had raped and murdered Sierra Black. White objected on- several occasions to the introduction of evidence relating to his guilt in Black’s rape/murder. White argued that the two rape/murders were not so similar as to constitute signature crimes. He also argued that the introduction of evidence relating to the Black murder was unduly prejudicial. The circuit court overruled White’s objection but agreed, on White’s request, to give a limiting instruction.
After giving the jury a limiting instruction relating to the 404(b) evidence, the State presented evidence establishing that White’s DNA was in the State database because he had been convicted of capital murder for raping and killing Black. The State also presented considerable evidence establishing that, White had raped and murdered Black in a manner similar to the rape and murder of Parker. The State presented evidence establishing that White murdered Black, .who like Parker was a young African-American woman, by stran *183 gling her to death with a piece of her clothing while raping her.' The State established that Black and Parker had similar body types and that both women were strangled with soft ■ ligatures (their clothes), a manner of strangulation that is extremely rare. The State presented evidence indicating that items belonging to both women were kept by the murderer. Further, the State established that White had murdered Black slightly under four rrionths after Parker was murdered.
To establish that White raped and murdered Black, the State presented White’s confession. The State also presented' testimony‘from the following witnesses who were involved in 'the investigation into Black’s rape/murder: 1) the evidence technician who collected evidence relating to Black’s murder; 2) the pathologist who performed the autopsy on Black’s body; 3) the scientist with DFS who linked forensic evidence collected- from Black’s body to White; and 4) the detective who interviewed White regarding the Black rape/murder. The State presented extensive evidence regarding the details of Black’s injuries. It also admitted numerous photographs of Black’s body and the crime scene.
During its final jury instructions in the guilt phase, the circuit court again instructed the jury regarding its consideration of evidence of the Black rape/murder. Specifically, the circuit court instructed the jury that it could consider White’s -involvement in the Black rape/murder as evidence only of his identity as the perpetrator in the Parker rape/murder. After being instructed by the circuit court, the jury found White guilty of both counts of capital murder charged in the indictment.
Standard of Review
Because White has been sentenced to death, according to Rule 45A, Ala. R.App. P., this Court must search the record for “plain error.” Rule 45A states:
“In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant.”
(Emphasis added.)
In Ex parte Brown, 11 So.3d 933 (Ala.2008), the Alabama Supreme Court explained:
“ ‘ “To rise to the level of plain error, the claimed error must not only seriously affect a defendant’s ‘substantial rights,’ but it must also have an unfair prejudicial impact on the jury’s deliberations.”” Ex parte Bryant, 951 So.2d 724, 727 (Ala.2002) (quoting Hyde v. State, 778 So.2d 199, 209 (Ala.Crim.App. 1998)). In United States v. Young, 470 U.S. 1, 15 , 105 S.Ct. 1038 , 84 L.Ed.2d 1 (1985), the United States Supreme Court, construing the federal plain-error rule, stated:
. “ ‘The Rule authorizes the Courts of Appeals to correct only “particularly egregious errors,” United States v. Frady, 456 U.S. 152, 163 (1982), those errors that “seriously affect the fairness, integrity or public reputation of judicial proceedings,” United States v. Atkinson, 297 U.S. [157], at 160 [ (1936) ]. In other words, the plain-error exception to the contemporaneous-objection rule is to be “used sparingly, solely in those circumstances in *184 which a miscarriage of justice would otherwise result.” United Staten v. Frady, 466 U.S., at 163, n. 14.’
“See also Ex parte Hodges, 866 So.2d 936, 947-48 (Ala.2003) (recognizing that plain error exists only if failure to recognize the error would ‘seriously affect the fairness or integrity of the judicial proceedings,’ and that the plain-error doctrine is to be ‘used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result’ (internal quotation marks omitted)).”
11 So,3d at 938. “The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal.” Hall v. State, 820 So.2d 118 , 121 (Ala.Crim. App.1999), aff'd, 820 So.2d 162 (Ala.2001). Although White’s failure to object at trial will not'bar this Court from reviewing any issue, it will weigh against any claim of prejudice. See Dill v. State, 600 So.2d 343 (Ala.Crim.App.1991), aff'd, 600 So.2d 372 (Ala.1992).
I.
On appeal, White first argues that the circuit court erroneously allowed the State to present evidence of his involvement in the Black rape/murder under Rule 404(b), Ala. R. Evid. In his brief, White asserts that evidence relating to the Black rape/murder was not admissible under Rule 404(b) for a number of reasons, including that the crimes were dissimilar and the evidence was overly prejudicial. This Court disagrees. 2
Initially, this Court notes:
“‘The admission or exclusion of evidence is a matter within the sound discretion of the trial court.’ Taylor ,v. State, 808 So.2d 1148, 1191 . (Ala.Crim. App.2000), aff'd, 808 So.2d 1216 (Ala. 2001). ‘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 hoggins, 771 So.2d 1093 , 1103 (Ala.2000). This is equally true with regard to the admission- of eollateral-bad-acts evidence. See Davis v. State, 740 So.2d 1116 , 1130 (Ala.Crim.App. 1998). See also Irvin v. State, 940 So.2d 331, 344-46 (Ala.Crim.App.2006).”
Windsor v. State, 110 So.3d 876, 880 (Ala. Crim.App.2012).
Further, Rule 404(b) 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. ...”
The Alabama Supreme Court has “held that the exclusionary rule prevents the State from using evidence of a defendant’s prior bad acts to prove the defendant’s bad character and, thereby, protects the defendant’s right to a fair trial.” Ex parte Drinkard, 777 So.2d 296, 302 (Ala.2000) (citing Ex parte Gofer, 440 So.2d 1121, 1123 (Ala,1988)). This Court has explained that “ ‘[o]n the trial for the alleged commission of a particular crime, evidence *185 of the accused’s having committed another act or crime is not admissible if. the only probative function of such evidence is to prove bad character and the accused’s conformity therewith.’” Lewis v. State, 889 So.2d 628 , 661 (Ala.Crim.App.2008) (quoting C. Gamble, McElroy’s Alabama Evidence § 69.01(1) (5th ed.1998)).
“f discrimination:
“1. Evidence 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, occupations, 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.
“2. A pattern of strikes against black jurors on the particular venire; e.g., 4 of 6 peremptory challenges were used to strike black jurors. Batson, 476 U.S. at 97 , 106 S.Ct. at 1723 .
“3. The past conduct of the state’s attorney in using peremptory challenges to strike all blacks from the jury venire. Swain [v. Alabama, 380 U.S. 202 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965) ].
“4. The type and' manner of the state’s attorney’s questions and statements during voir dire, including nothing more than desultory voir dire. Batson, 476 U.S. at 97 , 106 S.Ct. at 1723 ; Wheeler, 22 Cal.3d at. 281, 583 P.2d at 764, 148 Cal.Rptr. at 905.
“5. The type and manner of questions directed to the challenged juror, including a lack of questions, or a lack of meaningful questions. Slappy v. State, 503 So.2d 350, 355 (Fla.Dist.Ct.App.1987); People v. Turner, 42 Cal.3d 711 , 726 P.2d 102 , 230 Cal.Rptr. 656 (1986); People v. Wheeler, 22 Cal.3d 258 , 583 P.2d 748, 764 , 148 Cal.Rptr. 890 (1978).
*200 “6. Disparate treatment of members of the jury venire with the- same characteristics, or who janswer a question, in the same or similar manner; e.g., in Slappy , a black elementary school teacher was struck as being potentially too liberal because of his job, but a white elementary school teacher was not challenged. Sla ppy, 503 So.2d at 352 and 355.
“7. Disparate, examination .of members of the venire; e.g., in Slappy , a question, designed to, provoke a certain response that is. likely to disqualify a juror was asked to black jurors, but not to white jurors. Slappy, 503 So.2d at 355 .
“8., Circumstantial evidence of intent may be proven by disparate impact where all or most of the challenges were used to strike blacks from the jury. Batson, 476 U.S. at 93 , 106 S.Ct. at 1721 ; Washington v. Davis, 426 U.S. [229] at 242, 96 S.Ct. [2040] at 2049 [ (1976) ].
“9. The state used peremptory challenges to 'dismiss all or most black jurors. See Slappy, 503 So.2d at 854 , Turner, supra.”
Id. at 622-23. In Ex parte Trawich, 698 So.2d 162 (Ala.1997), the Court reiterated the Ex parte Branch factors in a manner applicable to gender as follows:
“(1) evidence that the jurors in question shared only the characteristic of gender and “were in all other respects as' hete-rogenous as the community as a whole; (2) a pattern of strikes against jurors of one gender on the particular venire; (3) the past conduct , of the state’s attorney in. using peremptory challenges to strike members of one gender; (4) the type and manner of the state’s questions and statements' during voir dire; (5) the type and manner .of questions directed to the '.'challenged juror, including a lack-of questions; - (6) disparate treatment of members of the jury venire who had the same characteristics or who answered a question in the same manner or in a similar manner; and (7) separate examination of members of the venire. Additionally, the court may consider whether the Stat;e used all or most of its strikes against members of one gender.”
698 So.2d at 168 .
Here, the State used 12. of its, 14 peremptory- strikes to remove female venire-members. Thereafter, White’s jury consisted of 5. women and 7 men. Also, a female and a male served as alternate jurors. At the conclusion of voir dire, defense counsel did not indicate and the circuit court did not believe that a J.E.B. violation had occurred. The circuit court asked both sides whether they- had anything to say, and defense counsel responded: “The defense is satisfied, Your Hon-- "or.” (R.208.)
Now,, on appeal, White- argues for the first time that the State’s use of 12 of its 14 peremptory strikes, including the last 9 in a row, to remove women establishes a prima fade ease that the. State used its strikes to discriminate against women. This Court disagrees., The use of 12 of 14 peremptory strikes against women does not raise an inference that the State purposefully discriminated against women. See Ex panto Land, 678 So.2d 224, 246 (Ala.1098) (holding that the State’s use of 11 of its 14. peremptory strikes against whites did not raise a inference that the State purposefully discriminated against whites); Ex ponte Trawick, 698 So.2d at 167 (holding that the State’s “use[ ] [of] 11 of its 14 peremptory strikes to remove women from Trawiek’s jury, resulting in a petit jury that was composed of 7 men and 5 women’-’ -did not raise an inference that the State discriminated' against women). Nor does-the State’s use of its last 9 peremptory strikes against women estab *201 lish that there was a pattern to the State’s use of its strikes. McCray v. State, 88 So.3d 1, 19 (Ala.Crim.App.2010) (holding that the State’s use of its last 7 strikes against women did not establish a pattern). Further, the number of strikes the State used against women' is tempered by the fact that 5 jurors and 1 alternate were women. See McCray v. State, 88 So.3d 1, 24 (Ala.Crim.App.2010) (“ ‘ “Of course, the fact that [women] are ultimately seated on the jury does not necessarily bar a finding of discrimination under Batson [or J.E.B.,] see [United States v.] Battle, 836 F.2d [1084,] 1086 [(8th Cir.1987) ],'but the fact may be taken into account in a review of all the circumstances as one that suggests that the government did not seek to rid the jury of persons who shared the [same gender].” United States v, Young-Bey, 893 F.2d 178, 180 (8th Cir.1990)’ ” (quoting Mitchell v. State, 579 So.2d 45 (Ala.Crim.App.1991), quoted with approval in Ex parte Thomas, 659 So.2d 3, 7 (Ala.1994)) (emphasis omitted)). Accordingly, the State did not use “peremptory challenges to dismiss all or most [female] jurors.” Ex parte Branch 526 So.2d at 62S.
Further, there is nothing in the record to indicate that the prosecutor had a history of discriminating against women. The type and manner of questions asked during voir dire were general and not directed toward women. In fact, the State asked questions of the entire venire, then asked follow-up questions of both men and women when appropriate. Additionally, the State did not single out women for individualized vóir dire; rather, all potential jurors (men and women) who had given answers that raised concerns where questioned individually.
White, however, argues that the State treated female potential jurors differently because it struck a female potential juror,L.K., who had been charged with domestic violence but allowed two male potential jurors, D.G. and A.D., to serve on the jury, although they had been charged with two counts of domestic violence and underage drinking, respectively. White further argues that the. State struck females who had friends.or family members.who had been charged,with crimes while failing to strike similarly situated ipales. Specifically, White argues that the State struck potential jurors N.B., R.G., T.S., F.J., and L.H., all females who had family members that had been charged with a crime, but did not strike D.G.,,AD., and J.C., males who themselves had been charged with a crime or who had family members .who had been charged with a crime.. White goes on to argue that the State. targeted women with children under the age of 19 while allowing men with children under 19 to serve on the jury. To support his argument, White asserts that the State struck L.K., N.B., P.D., T.S., F.J., and L.G., all females with children under the age of 19, while allowing J.G., A.D., and D.J., similarly situated males, to serve on the jury. Filially, White argues that the State struck S.C., a female potential juror who answered only one question during voir dire, while allowing T.G. and F.O., male potential jurors who answered only one question during voir dire, to serve on the jury.
White’s argument is not supported by the record. The record establishes that the State struck both men and women who had family members who had been charged with crimes. Although the State allowed some men who had a family member who had been charged with a crime to serve on the jury, it. also allowed B.S., a female who.had á family member charged with a crime, to serve on the jury. White’s argument that the State targeted female potential jurors with children under the age of 19 while -.allowing similarly situated males to- serve on the jury is also belied by the record. Although the State *202 did not strike 3 male potential jurors with children under the age of 19, it also allowed E.K., a similarly situated female juror, to serve. Further; E.S., the female alternate juror:, had a child under the age of 19. Finally, although the State struck S.C., a female potential juror who answered only one question during voir dire, it also struck C.H., a male potential juror who answered only one question. Thus, contrary to White’s assertion, the State struck and allowed men and women to serve who had family members who had been convicted of a crime, who had children under the age of 19, and who answered only one question during voir'dire. Accordingly, disparate treatment is not “obvious oh the face of the record.” Ex parte Walker, 972 So.2d 737, 753 (Ala. 2007).
Finally, White argues the prosecutor targeted female potential jurors by asking the veniremembers whether they felt that a handsome defendant could not have done the acts with which White was charged. According to White, the “comments indicate[d] that the prosecution believed female jurors could not be impartial in a case involving charges of capital murder and rape against an attractive male defendant.” • (White’s brief, at 63-64.) This Court disagrees.
During voir dire, the State asked the following:
“Now, do any of you think looking at the Defendant in this case, Justin White, that he just looks too nice of a guy to have done something like we’re talking about in these indictments?”
(R. 80-81.) After receiving no response, the State asked:
“I mean,- does anybody right now just say, I just 'don’t'believe it, right off the bat, this is not what you would think about a guy that looks like that, handsome guy, well dressed?
“I just, right now, I want to tell you I just don’t believe that he did it; does anybody feel that way?” •'
(R. 81.)
Contrary to White’s assertion, these two questions did not “indicate that the prosecution believed female jurors could not be impartial in a case involving charges of capital murder and rape against an attractive male defendant.” (White’s brief, at 63-64.) Rather, these questions were designed to elicit responses from any potential juror (male or female) who might have felt that a nice-looking, well dressed individual like White would not have committed the horrendous acts with which he was charged.
In sum, the State’s number of peremptory strikes against women does not raise an inference of discrimination. In fact, neither the circuit court nor defense counsel believed that a J-.E.B. violation had occurred. And nothing in the record — from the type and manner of questions asked to the State’s use of its strikes — indicates that the State treated women disparately. Accordingly, this Court cannot say that plain error resulted from the circuit court’s failure to. sua sponte require the State to give its reasons for striking female potential jurors. Therefore, this issue does not entitle White to any relief.
V.
White next argues that, during its guilt-phase closing argument, the State im-permissibly asserted that the jury could consider Rule 404(b), Ala. R. Evid., evidence to establish White’s bad character for feeling no remorse. Specifically, White argues that the State improperly used the fact that he showed no remorse for killing Black to establish that he murdered Parker. White failed to raise this objection at trial; therefore, this issue will be reviewed *203 for plain error only. Rule 45A, Ala. R.App. P.
This Court has explained:
“ While this failure to object does not preclude review in a capital case, it does weigh against any claim of prejudice.’ Ex parte Kennedy, 472 So.2d [1106,] at 1111 [ (Ala.1985) ]_ ‘This court has concluded that the failure to object to improper prosecutorial arguments ... should be weighed as part of our evaluation of the claim on the merits because of its suggestion that the defense did not consider the comments in question to be particularly harmful.’ Johnson v. Wainwright, 778 F.2d 623 , 629 n. 6 (11th Cir.1985), cert. denied, 484 U.S. 872 , 108 S.Ct. 201 , 98 L.Ed.2d 152 (1987).”
Kuenzel v. State, 577 So.2d 474, 489 (Ala.Crim.App.1990) (emphasis omitted).
“ ‘The prosecutor’s duty in a criminal prosecution is to seek justice, and although the prosecutor- should prosecute with vigor, he or she should not use improper methods calculated to produce a wrongful conviction.’ Smith v. State, [Ms. CR-97-1258, December 22, 2000] :— So.2d -, - (Ala.Crim.App. 2000), affd in pertinent part, rev’d on other grounds, [Ms. 1010267, March 14, 2003] — So.2d - (Ala.2003). ‘In reviewing allegedly improper prosecuto-rial comments, conduct, and questioning of witnesses, the task of this Court is to consider their impact in the context of the particular trial, and not to view the allegedly improper acts in the abstract.’ Bankhead v. State, 585 So.2d 97, 106 (Ala.Crim.App.1989), remanded on other grounds, 585 So.2d 112 (Ala.1991), aff'd on return to remand, 625 So.2d 1141 (Ala.Crim.App.1992), rev’d on other grounds, 625 So.2d 1146 (Ala.1993). “Prosecutorial misconduct is a basis for reversing an appellant’s conviction only if, in the context of the entire trial and in light of any curative instruction, the misconduct may have prejudiced the substantial rights of the accused.” ’ Carroll v. State, 599 So.2d 1253, 1268 (Ala.Crim.App.1992), aff'd, 627 So.2d 874 (Ala.1993), quoting United States v. Reed, 887 F.2d 1398, 1402 (11th Cir. 1989). The relevant question is whether the prosecutor’s conduct ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974).”
Minor v. State, 914 So.2d 372, 415 (Ala. Crim.App.2004). In addition:
“ ‘In judging a prosecutor’s closing argument, the standard is whether the argument “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” ’Bankhead [v . State], 585 So.2d [97,] 107 [(Ala.Crim.App.1989),] quoting Darden v. Wainwright, 477 U.S. 168, 181 , 106 S.Ct. 2464, 2471 , 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637 , 94 S.Ct. 1868 , 40 L.Ed.2d 431 (1974)). ‘A prosecutor’s statement must be viewed in the context of all of the evidence presented and in the context of the complete closing arguments to the jury.’ Roberts v. State, 735 So.2d 1244, 1253 (Ala.Crim.App.1997), aff'd, 735 So.2d 1270 (Ala.), cert. denied, 5[2] 8 U.S. 939 , 120 S.Ct. 346 , 145 L.Ed.2d 271 (1999). Moreover, ‘statements of counsel in argument' to the jury must be viewed as delivered in the heat of debate; such statements are usually valued by the jury at their true worth and are not expected to become factors in the formation of the verdict.’ Bankhead, 585 So.2d at 106. ‘Questions of the propriety of argument of counsel are largely within the trial court’s discretion, McCullough v. State, 357 So.2d 397, 399 (Ala.Crim.App.1978), and that - court is *204 .given broad discretion in determining what is permissible argument.’ . Bankhead, 585 So.2d at 105. We will not reverse the judgment of the trial court unless there has been an abuse of that discretion. Id,”
Ferguson v. State, 814 So.2d 925, 945-46 (Ala.Grim.App.2000), affd, 814 So.2d 970 (Ala.-2001).
During his guilt-phase ‘closing argument, the prosecutor stated:
“What did [White] say in that statement that he gave Detective Robinson, in the Bessemer case?
“He said, it’s kind of hard to explain how I -like it. When I’m. with a girl, I like to put my hands around her neck.
“Yeah, that is kind of hard to explain. But that is the way he likes it. That’s his MO. That’s what he does. It wasn’t spontaneous. It wasn’t something that just happened. This was not an accident. ■' •
“That’s what Sierra Black’s case tells you about Jasmine Parker’s case.
“When you listen to his statement in Sierra Black’s case. It tells you everything you need’ to know about Justin White. Everything.
“Did he show any remorse whatsoever? Other than for himself?
“The only time he teared up, was when he started talking about what was going to happen to him. He never said I feel bad for what happened to Sierra. It’s all about him.”
(R. 587-88.)
As stated above, evidence establishing that White raped and murdered Black was admissible under Rule 404(b), Ala. R.Crim. P., to establish his identity as the individual who raped and murdered Parker. Because White’s actions in raping and murdering Black were admissible to establish his identity, the evidence relating to facts underlying Black’s rape and murder and the circumstances of that crime were admissible. Jones v. State, 915 So.2d 78, 83 (Ala.Crim.App.2005). The. prosecutor’s comment about White’s lack of remorse was not, as White argues, an improper comment on his bad character.. Instead, the prosecutor’s comment related to evidence — White’s lack of remorse for killing Black — tending to establish that White intentionally murdered Black. See Darby v. State, lib S.W.3d 714, 721 (Tex.App.2004) (holding that the jury may infer intent to kill from the defendant’s lack of remorse). Because the prosecutor’s comment related to evidence establishing White’s intent to murder Black, no error, much less plain error, occurred.
Moreover, even if the prosecutor’s comment was improper, it did not “so infect[ ] the trial with unfairness as to'make the resulting conviction-a denial of due process.” Minor , 914 So.2d at 415 . The prosecutor’s statement was isolated and made in the heat of debate. See Smith v. State, 795. So.2d 788, 826 (Ala.Crim.App.2000) (holding that the “isolated statement by the prosecutor [did not] so ‘infect[ ] the trial with unfairness’ that.Smith was denied due process”). Further, the jury was repeatedly instructed that it could not consider White’s involvement in the Black murder to infer his bad character. See Ex parte Belisle, 11 So.3d 323, 333 (Ala.2008) (quoting Cochran v. Ward, 935 So.2d 1169, 1176 (Ala.2006)) (“[A]n appellate court ‘presume[s] that the jury follows the trial court’s instructions unless there is evidence to the contrary.’”). In addition to the circuit court’s instructions, the prosecutor informed the jury that it could not use the evidence of White’s other crimes or bad acts to infer bad character. Additionally, the State presented overwhelming evidence establishing that White raped and murdered Parker, including DNA from his *205 semen on her body and DNA on a cigar tip placing him in Parker’s apartment at the time of the crime. The State also presented evidence establishing that White raped and murdered another woman in a similar manner less than four months later.
Based on the forgoing, this Court cannot say that the’prosecutor’s comment “so infected the'trial with unfairness as to make the resulting conviction a denial of due process.” Minor , 914 So.2d at- 415. Accordingly, .this issue does not rise to the level of plain error. Rule 45A, Ala. R.App. P.
VI.
White next argues that the circuit court erroneously allowed the State to introduce victim-impact evidence during the guilt phase of the trial. Specifically, White argues that the State improperly admitted a recording of the telephone call Vanessa Parker made to emergency 911 after finding her daughter’s lifeless body. According to White, the 911 call was full of emotional statements and pleas for help and thus constituted-inadmissible victim-impact evidence. White further argues that the State improperly capitalized on the emotional 911 call during its closing argument. According to White, the admission of the 911 recording requires that his conviction be reversed. White did not raise this argument at trial; therefore, this issue will be reviewed for plain error only. Rule 45A, Ala. R.App. P.
During the guilt phase, the State admitted a recording of the telephone call Vanessa Parker made to emergency 911 after finding her daughter’s body. -Vanessa Parker was clearly upset as she asked for help. Thereafter, - during the State’s guilt-phase closing argument,- the prosecutor acknowledged the emotional nature of this case and asked the jury not to consider emotion but, instead, to rely only on the evidence. Specifically, the prosecutor stated:
“Ladies 'and gentlemen, ... this case involves passion. ■ Anytime you have a murder case. Especially a young 17 year-old girl. The'only daughter of a single mother. Who’s working trying to raise that child by herself. No other children. Is murdered.
“And ho't just murdered. But strangled to death. Raped in their own apartment. And Vanessa has to come home and find that.
“Will she ever get that picture out of her head? I don’t think so. How can you?
“And you understand the emotion that she feels because you heard that 911 tape. It just tears you up inside.
“But, when you go back to that.jury room it’s not about.passion any more, Because passion,can only take you so far. What it’s about when you get back there, is about the evidence.
(R. 582-83) (emphasis added.)
“Victim-impact statements typically ‘describe the effect of the crime on the victim and his family.’” Turner v. State, 924 So.2d 737, 770 (Ala.Crim.App.2002) (quoting Payne v, Tennessee, 501 U.S. 808, 821 , 111 S.Ct. 2597 , 115 L.Ed.2d 720 (1991)). “It is well settled that victim-impact statements ‘are admissible during the guilt phase of a criminal trial only if the statements are relevant to a material issue of the guilt phase. Testimony that has no-probative value on any material question of fact -or inquiry is inadmissible.’ ” Jackson v. State, 791 So.2d 979, 1011 (Ala.Crim.App.2000)- (quoting Ex parte Crymes, 630 So.2d 125, 126 (Ala.1993), citing in turn Charles W. Gamble, McElroy’s Alabama Evidence § 21.01 (4th ed.1991)). This Court has explained that evidence relating to the discovery of the *206 victim’s body is not victim-impact evidence. Turner, 924 So.2d at 769-70 . See also Gissendanner v. State, 949 So.2d 956, 965 (Ala.Crim.App.2006) (holding that evidence relating to the discovery of the victim’s body did not constitute victim-impact evidence).
Here, the recording of the call Vanessa Parker made to emergency 911 after finding her daughter’s lifeless body was relevant to the discovery of Parker’s body, the timing of the murder, and how the police became involved in investigating the murder. Accordingly, the recording did not constitute victim-impact evidence.
Further, the prosecutor did not, as White argues, capitalize on the emotional 911 recording. Instead, the prosecutor acknowledged that this case involves emotional facts and evidence, including the 911 recording, and correctly informed the jury that it should not consider passion or emotions. Rather, according to the prosecutor’s statement, the jury should focus on the evidence.
Because the 911 recording did not constitute victim-impact evidence and because the prosecutor did not argue that the jury should consider the emotional nature of the recording, this issue is without merit. Accordingly, it does not entitle White to any relief.
Moreover, even if the 911 recording and the prosecutor’s statement did constitute impermissible victim-impact evidence and argument, this Court holds that the error does not rise to the level of plain error. In Ex parte Rieber, 663 So.2d 999 (Ala.1995), the Alabama Supreme Court held:
“We agree with Rieber that Mr. Craig’s testimony concerning Ms. Craig’s children, their ages, and the status of their custody after the murder was not relevant with respect to the question of his guilt or innocence and, therefore, that it was inadmissible in the guilt phase of the trial. The only issue before the jury during the guilt phase of the trial was whether Rieber had robbed and killed Ms. Craig. However, in Ex parte Crymes, 630 So.2d 125 (Ala.1993), a plurality of this Court held in a capital murder case in which the defendant was sentenced to life-imprisonment without parole that a judgment of conviction can be upheld if the record conclusively shows that the admission of the victim impact evidence during the guilt phase of the trial did not affect the outcome of the trial or otherwise prejudice a substantial right of the defendant. See, also, Giles v. State, 632 So.2d 568 (Ala. Crim.App.1992), aff'd, 632 So.2d 577 (Ala.1993), cert. denied, [512] U.S. [1213], 114 S.Ct. 2694 , 129 L.Ed.2d 825 (1994); Ex parte Parker, 610 So.2d 1181 (Ala.1992), cert. denied, [509] U.S. [929], 113 S.Ct. 3053 , 125 L.Ed.2d 737 (1993); Lawhorn v. State, [ 581 So.2d 1159 (Ala.Crim.App.1990), aff'd, 581 So.2d 1179 (Ala.1991) ]; Hooks v. State, 534 So.2d 329 (Ala.Crim.App.1987), aff'd, 534 So.2d 371 (Ala.1988), cert. denied, 488 U.S. 1050 , 109 S.Ct. 883 , 102 L.Ed.2d 1005 (1989); and Ex parte Whisenhant, [ 555 So.2d 235 (Ala.1989) ], applying a harmless error analysis in death penalty cases. Our review of the record indicates that Rieber’s attorneys did not object to Mr. Craig’s brief references to Ms. Craig’s children or ask him any questions on cross-examination. The trial court clearly instructed the jury that it had to determine, based on all of the evidence, whether Rieber had robbed and killed Ms. Craig. The jury was instructed that it could not find Rieber guilty unless the prosecutor- had established his guilt beyond a reasonable doubt. The jury was also instructed not to let sympathy or prejudice affect its verdict. We caution prosecutors that *207 the introduction of victim impact evidence during the guilt phase of a capital murder trial can result in reversible error if the record indicates that it probably distracted the jury and kept it from performing its duty of determining the guilt or innocence of the defendant based on the admissible evidence and the applicable law. However, after- examining the record 'in- its. entirety,.we conclude that the aforementioned portions of Mr. Craig’s testimony, although they should not have been permitted, did not operate to deny Rieber a fair trial. It is presumed that jurors do not leave their common sense at the courthouse door. .It would elevate form over substance for us to hold, based on the record before us,, that Rieber- did not receive a fair trial simply because the jurors were told what they probably had already suspected — that Ms. Craig was not a ‘human island,’ but a unique individual whose murder had inevitably had a profound impact on her children, spouse, parents, friends, or dependents (paraphrasing a portion of Justice Souter’s opinion concurring in the judgment in Payne v. Tennessee, 501 U.S. 808, 838 , 111 S.Ct. 2597, 2615 , 115 L.Ed.2d 720 (1991)).”
663 So.2d at 1005-06 .
As in Rieber, the -jurors in this ease did “not leave their common sense at the court house door.” Id. Instead, they were well aware that Parker was not a ‘“human island,’ but a* unique individual whose murder had inevitably had a profound impact on her [mom].... ” Id. Both the prosecutor and defense counsel informed the jury that it could not consider emotion but instead should consider only the evidence. Thereafter, the circuit court instructed the jury that its verdict should not be based upon prejudice, sympathy, compassion, or any other emotion.
After reviewing the record as a whole, this Court finds no indication that the recording or argument affected the outcome of- the trial or that either otherwise prejudiced White’s - substantial rights. Accordingly, this issue does not rise to the level of plain error. Rule 45A, Ala. R.App. P.
VII.
White next argues that the circuit court erroneously prohibited him from eliciting evidence highlighting a deficiency in the investigation of Parker’s rape/murder. According to "White, “[b]y motion in limine, the State sought to prevent the defense from questioning officers involved in the Jasmine Parker investigation about their knowledge . of an individual named ‘[W]heezy’ who allegedly expressed an intent to kill Ms. Parker over drugs.” (White’s brief, at 73.) White asserts that the State claimed that Wheezy’s statement was hearsay and thus was inadmissible. According to. White, “the defense explained that it would not seek to admit this evidence for the truth of the matter asserted, but ‘to cross-examine the State’s witnesses concerning the investigation and the work that [they] did ... in this case.’ ” (White’s brief, at 73.) White then asserts that, “[notwithstanding this nonhearsay basis for the admission of this evidence, the trial court granted the State’s motion to exclude the evidence as hearsay.” Id. White then argues that, “[b]y preventing Mr. "White from using this evidence for a critical, nonhearsay purpose, the trial court violated Mr. White’s fundamental right to present a complete defense.” Id. White’s argument does not accurately reflect the circuit court’s ruling and is without merit.
Before trial, the State orally moved the circuit court to prevent White from eliciting hearsay statements indicating that a person named Willy Tate had filed a police *208 report stating that he had heard another individual named “Gankman” say that another individual named “Wheezy” said that he was going to kill Parker because she stole marijuana from him'. (R. 17.) Thereafter, the following Occurred:
“[Prosecutor]: The second motion I would make. Your Honor, is in regards to — it’s basically a Motion In Limine in regal’d to some hearsay that the defense may try to introduce into the case. And the detective’s notes and a police report.
“There is a report by an individual naméd Willy Tate, who goes 'to the police and tells them that he heard another individual by the 'name of Gankman talking about a guy' named ‘Wheezy’, who had his marijuana stolen by Jasmine. And Wheezy said' that he was going to kill Jasmine.
“And there’s double and triple hearsay in there. And we would just ask that the defense not be allowed to introduce that evidence, unless, it is through a person that would not violate the hearsay rule.
“THE COURT: Response?
[[Image here]]
“[Defense-counsel]: To the extent that we — I don’t want .to limit our ability to cross-examine the State’s witnesses concerning the investigation and the work that he did — the State’s witnesses did in this case.
“I don’t want to be limited in the questions that I can ask concerning his investigation of this ‘Mr. Jones,’ and ‘Gankman’. and such other people. I believe we would be entitled to ask those questions' should we desire to.
“[Prosecutor]: Well, Judge, that is obviously my objection in regard to- how that is asked. If, like I said, the evidence as I understand it is coming from one witness, Willy Tate. He’s talking about somebody told him about what another person said.
“THE COURT: Do y’all get that part? ■ He said, hearsay, he objects to the 'hewrsay nature of it?
“[Prosecutor]: So I don’t want them to ask the Detective, didn’t Witty Tate tell you that Omlmcm said that Wheezy was going to kill Jasmine. They emt produce my mimesses to that effect—
“THE COURT: All right. I’ll grant that motion.”
(R. 17-19) (emphasis addéd.)
As the above-quoted portion of the record shows, the circuit court did not, as White asserts, prevent him from using Tate’s police report for the nonhearsay purpose of questioning the police regarding' the adequacy' of their investigation. To the contrary, the State objected only to 'defense counsel’s using the statement in the report for the truth of the matter asserted, i,e., asking “the Detective, didn’t Willy Tate tell you that Gankman said that Wheezy was going to kill Jasmine.” (R. 19.) Thereafter, the circuit court granted the" State’s motion preventing defense counsel from using the Tate report for héarsay purposes. Nothing in the State’s argument or the circuit court’s ruling indicated that defense counsel could hot have used the report for the nonhearsay purpose of trying to attack the State’s investigation into all suspects.
Because the circuit court did not prevent defense counsel from using the Tate police report to attack the adequacy of the State’s investigation into all possible suspects, White’s argument to the contrary is refuted by the record. See Albanran v. State, 96 So.3d 131, 160 (Ala.Crim.App.2011) (recognizing that claims that are refuted by the record are without merit); McNabb v. State, 991 So.2d 313, 320 (Ala. Crim.App.2007) (holding that a claim that is refuted by the record is without merit *209 and does not entitle the appellant to relief). Consequently, this issue is without merit and does not entitle White to any relief.
vm.
White next argues that the State improperly argued facts not in evidence. According to White, the prosecutor improperly argued that the semen on Parker’s leg had to have been left, the day of the murder because otherwise she would have washed it off. White also argues that the prosecutor improperly stated that White confessed to raping Black.' White asserts that the State did not present any evidence indicating that Parker washed herself the day of the murder; therefore, its argument that she would have washed the semen off was unsupported by facts in evidence. He further argues that he never confessed to raping Black; therefore, the prosecutor’s unsubstantiated factual assertion requires that his conviction by reversed. White did not raise these objections at trial; therefore, this Court reviews these issues from plain error, only. Rule 45A, Ala. R.App. P,
“ ‘During, closing argument, the prosecutor, as well as defense counsel, has a right to present his impressions from the evidence, if reasonable, and may argue every legitimate inference,’” Reeves v. State, 807 So.2d 18, 45 (Ala.Crim.App.2000) (quoting Rutledge v. State, 523 So.2d 1087, 1100 (Ala.Crim.App.1987), rev’d on other grounds, 523 So.2d 1118 (Ala.1988), abrogated by Bethea v, Springhill Mem’l Hosp., 833 So.2d 1 (Ala.2002)). “ ‘ “A prosecutor as well as defense counsel has a right to present his impressions from the evidence,” and “[h]e may argue every legitimate inference from the evidence and may examine, collate, sift, and treat the evidence in his own way.”’” Sneed v. State, 1 So.3d 104, 140 (Ala.Crim.App.2007) (quoting Henderson v. State, 584 So.2d 841 , 856-57- (Ala.Crim.App.1988), quoting in turn Watson v. State, 398 So.2d 320, 328 (Ala.Crim.App.1980)).
Further, as discussed in Section V of this opinion,
“ ‘[w]hile this failure to object does not preclude review in a capital case, it does weigh against any claim of prejudice.’ Ex parte Kennedy, 472 So.2d [1106,] at 1111 [(Ala.1985)]_ ‘This court has concluded that the failure to object to improper prosecutorial arguments ... should be weighed as part of our evaluation of the claim on the merits because of its suggestion that the defense did not consider the comments in question to be particularly harmful.’ Johnson v. Wainwright, 778 F.2d 623 , 629 n. 6 (11th Cir.1985), cert. denied, 484 U.S. 872 , 108 S.Ct. 201 , 98 L.Ed.2d 152 (1987).”
Kuenzel v. State, 577 So.2d at 489 (emphasis omitted).
“ ‘The prosecutor’s duty in a criminal prosecution is to seek justice, and although the prosecutor should prosecute with vigor, he or she should not use improper methods calculated to produce a wrongful conviction.’ Smith v. State, [Ms. CR-97-1258, December 22, 2000] — So.2d -, - (Ala.Crim.App. 2000), aff'd in pertinent part, rev’d on other grounds, [Ms. 1010267, March 14, 2003] — So.2d — (Ala.2003). ‘In reviewing allegedly improper prosecuto-rial comments, conduct, and questioning of witnesses, the task of this Court is to consider their impact in. the context of the particular trial, and not to view the allegedly improper acts in the abstract.’ Bankhead v. State, 585 So.2d 97, 106 (Ala.Crim.App.1989), remanded on other grounds, 585 So.2d 112 (Ala.1991), aff'd on return to remand, 625 So.2d 1141 (Ala.Crim.App.1992), rev’d on other grounds, 625 So.2d 1146 (Ala.1993). ‘ “Prosecutorial misconduct is a basis for *210 reversing an appellant’s conviction only if, in the context of the entire trial and in light of any curative instruction, the misconduct may have prejudiced the substantial rights of the accused.” ’ Carroll v. State, 599 So.2d 1253, 1268 (Ala.Crim.App.1992), aff'd, 627 So.2d 874 (Ala.1993), quoting United States v. Reed, 887 F.2d 1398, 1402 (11th Cir.1989). The relevant question is whether the prosecutor’s conduct ‘so infected the trial’ with unfairness as to make the resulting conviction a denial of due process.’ Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974).”
Minor v. State, 914 So.2d at 415 . In addition:
“ ‘in judging a prosecutor’s closing argument, the standard is whether the argument “so infected the trial with unfairness as to make the resulting conviction a ,denial of due process.” ’ Bankhead [v. State], 585 So.2d [97,] 107 [(Ala.Crim.App.1989),] quoting Darden v. Wainwright, 477 U.S. 168, 181 , 106 S.Ct. 2464, 2471 , 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637 , 94 S.Ct. 1868 , 40 L.Ed.2d 431 (1974)). ‘A prosecutor’s statement must be viewed in the context of all of the evidence presented and in the context of the complete closing arguments to the jury.’ Roberts v. State, 735 So.2d 1244, 1253 (Ala.Crim.App.1997), aff'd, 735 So.2d 1270 (Ala.), cert. denied, 528 U.S. 939 , 120 S.Ct. 346 , 145 L.Ed.2d 271 (1999). Moreover, ‘statements of counsel in argument to the jury must be viewed as delivered in the heat of debate; such statements are usually valued by the jury at their true worth and are not expected to become factors in the formation of the verdict.’ Bank-head, 585 So.2d at 106. ‘Questions of the propriety of argument of counsel are largely within the trial court’s discretion, McCullough v. State, 357 So.2d 397, 399 (Ala.Crim.App.1978), and that court is given broad discretion- in determining what is permissible argument.’ Bankhead, 585 So.2d at 105.' We will not reverse the judgment of the trial court unless there has been an abuse of that discretioh. Id.”
Ferguson v. State, 814 So.2d at 945-46.
A.
White asserts that the prosecutor erroneously argued facts not in evidence when the prosecutor stated that White confessed to raping Black. Specifically, White argues that the following portion of the prosecutor’s closing argument constitutes reversible error:
“The fact that he confessed to raping Sierra Black. The fact that he confess.ed to holding her down, and she would come up, and boom. He hit her head on the edge of the table again.”
(R. 557.) White contends that he never confessed to raping Black; therefore, the prosecutor improperly argued facts not in evidence. This Court disagrees.
Although in his confession White never said that he raped Black, he did confess to facts establishing that he raped Black. White, while confessing to murdering Black, described having sex with Black as follows:
“[White]: She pretty much came over and we had sex and it was a little too rough and I got a little too carried away and I got to the point where we was;' during the rough sex I was too rough with her neck and I hit.her, accidentally hit her head up against the wooden table I had in that sectional [couch].
[[Image here]]
“Detective: Um so when she hit her head what happened?
*211 “[White]: Um she; -pretty much we just ... I could tell that something was wrong with her.... after that second time she hit her head.
“Detective: So she hit it twice.
“[White]: Yeah.
“Detective: Okay.
“[White]: The first time it wasn’t that big of a bump. But then the second time, '
“Detective: Did she holler?
“[White]: She was like ‘ahhhh’ and she ’ kept holding the back of her head. I was like what the f* *k? And then she started dazing out. I was like what the f**k is'going oh? And so I’m like freaking out. I’m like what the f* *k? And you know I was holding her neck too, too hard and ... I could tell she couldn’t breathe. And the next , thing I know she had just passed out. I was like oh she’s f* * * * * ⅜ dead and I’m like, I’m •..
“Detective: Did you finish? I mean were y’all through ... with the sex?
“[White]: I mean ... ..we was, we was still going and I stopped and I was like oh s* *t.”
(C. 290-92.) -
Although White denied that he raped Black, a reasonable inference from White’s description of the events leads to the: conclusion of rape. Specifically, White explained the he hit Black’s head twice and held her neck until she passed out but was, in relation to the sex, “still going.” (C. at 292.) From the facts as described by White during his interview, the State reasonably inferred that White confessed to raping Black. Therefore, this issue is without merit.
B.
Next, White argues that the State improperly argued facts not in evidence when he stated that White’s semen found on Parker’s leg must' have been left there the day of the murder because otherwise she would have washed it off. During closing argument, the State argued:
“They had sex- that day that he was there, that we can put him there. On July 11th. If they had sex 'any other time before then. That semen on her leg would have washed off. She would have taken a shower in the morning.” *213 1986) (quoting Tucker v. State, 474 So.2d 181, 132 (Ala.Cr.App.1984), rev’d on other grounds, 474 So.2d 134 (1985)). The officers related information obtained from other sources to explain why they proceeded as they did. This was not hearsay. See, e.g., Brannon [v. State ], 549 So.2d [582] at 539 [ (Ala.Crim.App.1989)]; McC ray v. State, 548 So.2d 678 , 576 (Ala.Cr.App.1988). See, also, Molina v. State, 533 So.2d 701, 714 (Ala.Cr.App.1988), cert. denied, 489 U.S. 1086 , 109 S.Ct. 1647 , 103 L.Ed.2d 851 (1989); Tillis v. Stats, 469 So.2d 1367, 1370 (Ala.Cr.App.1985).”
*211 (R. 554-55.) According to White, there was no evidence indicating that Parker showered the day of her murder; therefore, the prosecutor’s comment requires his conviction to be reversed. This Court disagrees.
Although there was no evidence indicating when Parker showered last, the State did not argue that she did, in fact, take a shower. Rather, the State argued that if the semen • had been left • on Parker on some day other than the day of the murder, she would have washed it off. Thus, the State asked the jury to assume that Parker showered at some point.
Further, the circuit court emphasized during its jury instruction that the jury could consider only evidence presented at trial and could not consider facts not supported by evidence. The; circuit court instructed the jury that the evidence comes from the witness stand and that what the lawyers say is not evidence. See Ex parte Belisle, 11 So.3d at 333 (“[A]n appellate court (presume[s] that the jury follows the trial court’s instructions' unless there is evidence to the contrary.’ ” (quoting Cochran v. Ward, 935 So.2d at 1176 )).
Further, the State presented other evidence from which the jury could have inferred that White was with Parker and left his semen on her on the day she was murdered. Cf. McNabb v. State, 887 So.2d 929, 971 (Ala.Crim.App.2001) (holding that “testimony that may be inadmissible may *212 be rendered harmless by prior or subsequent lawful testimony to the same effect or from which the same facts can be inferred”). The State presented. evidence indicating that Parker was wearing jeans the day she was murdered that would have rubbed away any semen left on her leg a previous day. Further, the State presented evidence establishing that between 3:00 p.m. and 7:30 p.m. on July 11, Parker struggled with an attacker in her apartment, was stripped of her jeans and panties, and was strangled to death with those jeans. During the same period, White was in Parker’s apartment and smoked a cigar. 6 Additionally, the State presented evidence establishing that White raped and murdered another women in a very similar mariner less than four months later.
Because the State did not say that Parker did take a shower, because the circuit court instructed the jury that attorneys’ statements are not evidence and that it could consider only evidence, and because the argument that White left the semen on the day of the murder could have been inferred from other. evidence,, this Court cannot say that the State’s argument, which was delivered in the heat of debate, “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Minor, 914 So.2d at 415 (citations and quotations omitted). For the same reasons, “this Court cannot say that the prosecutor’s ... comment had an ‘unfair prejudicial impact on the jury’s deliberations.’ ” Wilson v. State, 142, So.Sd 732, 751 (Ala.Crim.App.2010) (quoting Em parte Brown, 11 So.3d 933, 938 (Ala.2008)). Accordingly, White has not established that this alleged error rises to, the level of plain error. Rule 45A, Ala. R App. P.
IX.
White next argues that the circuit court erroneously allowed the pathologist to testify to inflammatory hearsay statements concerning whether -sexual assault occurred. Specifically, White argues that the circuit court erroneously allowed Dr. Gregory Davis, a forensic pathologist with the Jefferson County Coroner’s Office, to testify to the opinion of another nontestify-ing individual’s opinion that there was likely a sexual-assault component to this case. According to White, Dr. Davis’s testimony constituted inadmissable hearsay and violated his Sixth Amendment right to confront the witnesses, against him. This Court disagrees.
“ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801(c), Ala. R. Evid. “It is clear that the hearsay rule applies only to a statement offered for the truth* of its contents.” Edwards v. State, 502 So.2d 846, 848-49 (Ala.Crim.App.1986) (citations omitted). “A statement offered for a reason other than to establish the truth of the matter asserted therein is not, hearsay.” Deardorff v. State, 6 So.3d 1205, 1216 (Ala.Crim.App.2004) (citing Smith v. State, 795 So.2d 788, 814 (Ala.Crim.App.2000)). In Sawyer v. State, 698 So.2d 1035 (Ala.Crim, App.1992), this Court explained:
“‘A statement may be- admissible where it is not offered to prove the truth of whatever facts might be stated, “but rather to establish the reason for action or conduct by the witness [when the reason for the action or conduct is relevant to an issue at trial].” ’ Edwards v. State, 502 So.2d 846, 849 (Ala.Cr.App.
*213 598 So.2d at 1038. See also Miller v. State, 687 So.2d 1281, 1285 (Ala.Crim.App.1996) (“The officers’ testimony in this ease was received to show the-reasons fop the officers’ actions and how their investigation focused on a suspect.”).
Similarly, “[t]he -[Confrontation] Clause ... does not- bar the use of testimonial statements for purposes other than -establishing the- truth of the matter asserted.” Crawford v. Washington, 541 U.S. 36 , 59 n. 9, 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004) (citing Tennessee v. Street, 471 U.S. 409, 414 , 105 S.Ct. 2078 , 85 L.Ed.2d 425 (1985)). As the Supreme Court of the United States has held, “the Confrontation Clause ... has no application to out-of-court statements that are not offered to prove the truth of the matter asserted.” Williams v. Illinois, — U.S. -, -, 132 S.Ct. 2221, 2228 , 183 L.Ed.2d 89 (2012).
Here, the record .establishes that Dr. Davis’s testimony was not offered for the truth -of the matter asserted; therefore, it was not inadmissible hearsay and did not implicate the Confrontation Clause. At trial, Dr. Davis testified that he initially did not find any sperm during his examination of the biological material collected from Parker’s body. Accordingly, his findings were that there was no sperm. Later, however, Dr. Davis’s findings changed. While explaining why his. findings changed, the following occurred: - ,
“[Dr. Davis]: Ms. Parker died in July of 2006. And 1 looked at the slides initially in July of 2006.
. “Actually, I was. not the only person involved in this ease. We had someone who was in training with us, at the time. He was — he was in training for forensic pathology the way that I had been, years ago in San Diego.
“So he looked at the slides in July of 2006. He did not see any sperm. I looked at the slides in July of 2006,1 did not see any sperm.
“But in November of 2006, Owen— Owen Middleton is the pathologist who was in training with- us. It bothered him, because it seemed clear that there was likely a component of sexual assault in this case—
“[Defense counsel]: I’m going to object. If he’s going to testify as to the opinion of another person, Judge. It appears that that’s what he is doing, at this time.
“[Prosecutor]: Judge, he’s not testifying to the truth , of the matter asserted, but to show wh/y he did what he did next.
“THE COURT: Overruled. Go ahead.
“[Dr. Davis]: Okay.
“So Dr. Middleton looked at the slides again. Detected sperm this time, few and pale, but present.
“I then looked at the slides. I also saw. the sperm the second time when I looked at the slides in November of 2006.
“As soon as I realized sperm were there to be seen,; I contacted Detective Bristow.' .-And the- following day I *214 talk[ed]- with Detective Anderson with the Police Department.- To let them know that we had now seen sperm. So that part of our examination and findings had changed. "And we wanted them to know that.
“(Brief pause.)
“THE COURT: Okay,-’Ladies and gentlemen. What the witness just said, the other gentleman found on his review of the slides. You cannot accept that for the truth of that matter.
“You can only consider that testi’mony to understand why they did what they did follomng that. What they did next, okay. Can y’all do that?
“(No verbal response.)
“THE COURT: Very good. Go ahead.”
(R. 320-22) (emphasis added).
Here, it is obvious from the record that Dr. Davis’s testimony relating to Dr. Middleton’s opinion was not, as White argues, offered for the truth of the matter asserted. Rather, it was offered to show why the biological samples were examined a second time and why Dr. Davis’s finding changed. Accordingly,'White’s argument that Dr. Davis’s testimony constituted inadmissible hearsay and violated the Confrontation Clause is without merit. See Sawyer, 598 So.2d at 1038; Crawford, 541 U.S. at 59 n. 9; Street, 471 U.S. at 414 .
•X.
White next argues that the circuit court impermissibly allowed the State to introducé DNA evidence linking White to Parker’s rape/murder because the State failed to establish a complete chain of custody: Specifically, White argues that the State failed to establish the chain of custody for DNA from the cigar tip collected at Parker’s apartment and for DNA from the biological material collected from her body because the State failed to establish to whom these items were given at the DFS and because the State failed to establish that the items were in the same condition when tested as they were when they were collected. WTiite failed to challenge the chain of custody below; therefore, this Court reviews this issue-for plain error only. Rule 45A, Ala. R.App. P.
The Alabama Supreme Court in Ex parte Holton, 590 So.2d 918 (Ala. 1991), addressed the requirements for a chain of custody:
“Proof of [an] unbroken chain of custody is required in order to establish sufficient identification of the item and continuity of possession, so as to assure the authenticity of-the item.' Id. "In order to establish a proper chain,' the State must show to a ‘reasonable probability that the object is in the same condition as, and not substantially different from, its condition at the commencement of the chain.’ McCray v. State, 548 So.2d 573, 576 (Ala.Crim.App.1988).”
590 So.2d at 919-20 . Later, in Hale v. State, 848 So.2d 224 (Ala.2002), the Alabama Supreme Court reexamined its holding in Holton after the 1995 codification of § 12-21-13, Ala.Code 1975. The Supreme Court stated:
“Section 12-21-13, Ala.Code 1975, provides:
' “ ‘Physical evidence connected with or collected in the investigation of a crime shall not be excluded from con-sidération by a jury or court due to a failure to prove the chain of custody of the evidence. Whenever a witness in a criminal trial identifies a physical piece of evidence connected with or collected in -the investigation of a crime, the evidence shall be submitted to -the jury or court for whatever
*215 weight the jury or court may deem proper. The trial court in its charge to the jury shall explain any break -in the chain of custody concerning the physical evidence.’
“(Emphasis added.) This statute, by its terms, applies only tó ‘[pjhysical evidence connected with or collected in the investigation of the charged crime. To invoke the statute the proponent of the evidence must first establish that the proffered physical evidence is in fact the very evidence ‘connected with or collected in the investigation.’ Moreover,
“ ‘[i]n Land v. State, 678 So.2d 201 (Ala.Cr.App.1995), aff'd, 678 So.2d 224 (Ala.1996), a ease which appears to rely on § 12-21-13, this court .ruled that where a witness can specifically identify the evidence, and. its condition is not an issue in the case, then the State is not required to establish a complete chain of custody in order for the evidence to be admitted into evidence. We stated: “The eyeglasses were admissible without establishing a chain of custody because [the testifying officer] was able to specifically identify them, and their condition was not an issue in the case.” Land, 678 So.2d at 210.... ’
“Lee v. State, 748 So.2d 904, 912-13 (Ala.Crim.App.1999) (emphasis added).”
848 So.2d at 228-29 (emphasis in original).
Here, the State presented sufficient evidence establishing that the cigar , tip and the biological samples were collected in the investigation of Parker’s murder. At trial, Steve Owens, the police evidence technician who had collected evidence at Parker’s apartment, testified that he had collected the cigar, tip from Parker’s apartment after the murder. He packaged and sealed the cigar tip. The package was marked with the police case number and an item number. At trial, Owens, identified'the cigar tip by the item number as an item he collected in connection with the Parker murder. According to Owens, after the cigar tip was collected, packaged, and marked, he submitted it to the Birmingham Police Department property room.
Further, Dr.' Gregory Davis performed the autopsy on Parker’s body. During the autopsy, Dr. Davis swabbed, among other things, Parker’s vagina and a stain on her leg. Those swabs were then smeared on glass slides. After being examined twice, Dr.' Davis detected sperm on the slides. He then package those slides and kept them in an evidence locker until they were retrieved by Detective Chris Anderson. Dr. Davis identified the packages containing the slides at trial. According to Dr. Davis, the packages were in the same condition except that they had DFS stickers on them.
Later, Detective Chris Anderson retrieved those sealed items and took them to the DFS. Nathan Rhea, an expert in forensic DNA analysis at the DFS, viewing the packages identified by Owens and Dr. Davis, testified that those items were received by the DFS and that he recognized those items because the packages had his department’s case number, an item number, and his initials on them.
Accordingly, the State presented sufficient evidence to establish that the cigar tip and the biological samples submitted to the DFS were collected during the investigation of Parker’s murder. Owens and Rhea identified the same package containing the cigar tip, and Owens testified that he collected that cigar tip from Parker’s apartment. Further, Dr. Davis and Rhea identified the same package containing the glass slides, and Dr. Davis identified those slides as ones containing the biological material he collected from Parker’s vagina and leg. Accordingly, pursuant § 12-21- *216 13, Ala.Code 1975, the circuit court did not commit any error, much -less plain error, by allowing the DNA evidence to be admitted. 7
XI.
White next argues that the circuit court erroneously allowed hearsay testimony establishing that the DNA from .the Black rape/murder matched the DNA profile from the Parker rape/murder. Specifically, White argues that Garl Mauterer, an expert in forensic DNA analysis at the DFS who performed the DNA analysis on biological material found on Black’s body, testified that he received a notice that the DNA collected from Black’s body matched the DNA collected from Parker’s body. According to White, Mauterer’s testimony was inadmissible hearsay because Mauterer did not perform the DNA analysis on the biological material collected from Parker’s body. Therefore, White argues that his conviction must be' reversed. This Court disagrees.
Contrary to White’s assertions, Mauterer’s testimony did not constitute hearsay. As stated above, “[hjearsay” is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801(c), Ala. R. Evid. See also Belisle v. State, 11 So.3d 256, 298 (Ala.Crim.App.2007). “A statement offered for a reason other than to establish the truth'of the matter asserted therein is not hearsay,” Deardorff, 6 So.3d at 1216 (citing Smith, 796 So.2d at 814). Here, Mauterer did not testify to the truth of an out-of-court statement. Rather, he testified that he received a notice that the DNA collected from the Parker rape/murder matched the DNÁ recovered from the Black rape/murder. This testimony was not offered to establish that > DNA from the two crimes matched. Instead, it was. offered to show that a notice was sent out stating that the DNA from the two crimes matched and, thus, showed how White was developed as a suspect in the Parker rape/murder. Because Mauterer’s testimony was not offered for the truth of the matter asserted, no error occurred .by its admission.
Moreover, even if Mauterer’s testimony did constitute hearsay, any error in its admission was harmless. Rule 45, Ala. R.App. P. This Court has repeatedly held that “[ajriy error in the admission of hearsay testimony [is] harmless beyond a reasonable doubt when the testimony is cumulative to other lawfully admitted testimony.” Belisle, 11 So.3d at 299 (citing McNair v. State, 706 So.2d 828, 851 (Ala.Crim.App.1997)). See also Gobble v. State, 104 So.3d 920, 958 (Ala.Crim.App.2010) (same). Before Mauterer testified, Rhea properly testified that his analysis of the biological material collected from Parker showed that DNA collected from Parker matched DNA collected from Black. Because Mauterer’s testimony was cumulative to Rhea’s properly admitted testimony, any error in the admission of Mau-terer’s testimony was harmless. Belisle, 11 So.3d at 299.
XII.
White next argues that the circuit court erroneously allowed the State to introduce gruesome, irrelevant, and prejudicial photographs. Specifically, White argues that the circuit court erroneously allowed the State to introduce photographs depicting Black’s body as it was found. According to White, the photographs of Black’s body were unnecessary to ' the State’s case because they were cumulative to a crime-scene techni- *217 dan’s testimony. He further argues that the photographs were unduly prejudicial. Thus, White argues his conviction must be reversed. This Court disagrees. . ,
As stated above, evidence establishing that White raped and murdered Black was admissible under Rule 404(b), Ala. R.Crim. P., to establish his identity as the individual who raped and murdered Parker. Because White’s actions in raping and murdering Black were admissible to establish his identity, the evidence relating to facts underlying Black’s rape and murder and the circumstances of that crime were admissible. Jones v. State, 915 So.2d 78, 88 (Ala.Crim.App.2005).
Further, this Court has held:
‘“Generally, photographs are admissible into evidence in a criminal prosecution “if they tend to prove or disprove some disputed or material issue, to illustrate or elucidate some other relevant fact or evidence, or to corroborate , or disprove some other evidence offered or to be offered, and their admission is within the sound discretion of the trial judge.” ’ Bankhead v. State, 585 So.2d 97, 109 (Ala.Crim.App.1989), remanded on other grounds, 585 So.2d 112 (Ala. 1991), aff'd on return to remand, 625 So.2d 1141 (Ala.Crim.App.1992),- rev’d, 625 So.2d 1146 (Ala.1998), quoting Magwood v. State, 494 So.2d 124, 141 (Ala.Crim.App.1985), aff'd, 494 So,2d 154 (Ala.1986). ‘Photographic exhibits are admissible even though they may be cumulative, demonstrative of undisputed facts, or gruesome,’ Williams v. State, 506 So.2d 868 , 371 (Ala.Crim.App.1986) (citations omitted). In addition, ‘photographic evidence, if relevant, is admissible even if it has a tendency to inflame the minds of the jurors.’ Ex parte Siebert, 555 So.2d 780, 784 (Ala.1989). ‘This court has held that autopsy photographs, although gruesome, are admissible to show the extent of a victim’s injuries.’ Ferguson v. State, 814 So.2d 925, 944 (Ala.Crim.App.2000), aff'd, 814 So.2d 970 (Ala.2001). ‘“[Ajutopsy photographs depicting the character and location of wounds on a victim’s body are admissible even if they are gruesome, cumulative, or relate to .an undisputed matter.” ’ Jackson v. State, 791 So.2d 979, 1016 (Ala.Crim.App.2000), quoting Perkins v. State, 808 So.2d 1041, 1108 (Ala.Crim.App.1999), aff'd, 808 So.2d 1148 (Ala.2001), judgment vacated on other grounds, 586 U.S. 958 (2002), on remand to, 851 So.2d 458 (Ala.2002). ‘The same-rule applies for videotapes as for photographs: “The fact that a photograph is gruesome and ghastly is no reason for excluding it, if relevant, even if the photograph may tend to inflame the jury.” ’ Siebert v. State, 562 So.2d 586, 599 (Ala.Crim.App.1989), aff'd, 562 So.2d 600 (Ala.1990), quoting Walker v. State, 416 So.2d 1083, 1090 (Ala.Crim.App.1982). See also Ward v. State, 814 So.2d 899 (Ala.Crim.App.2000). Generally, ‘[a] properly authenticated video tape recording of the scene of the crime constitutes competent evidence’ and ‘is admissible over the defendant’s objections that the tape was inflammatory, prejudicial, and cumulative.’ Kuenzel v. State, 577 So.2d 474, 512-13 (Ala.Crim. App.1990), aff'd, 577 So.2d 531 (Ala. 1991). ‘Provided that a proper foundation is laid, the admissibility of videotape evidence in a criminal trial is a matter within the sound discretion of the trial judge.’ Donahoo v. State, 505 So.2d 1067, 1071 (Ala.Crim.App.1986).’’
Brooks v. State, 978 So.2d 380, 393 (Ala. Crim.App.2007).
This Court has thoroughly reviewed , all the photographs relating to the Black rape/murder. The photographs were rele *218 vant and admissible to corroborate testimony establishing that Black and Parker had similar body types, were roughly similar in age, and were murdered in a similar manner. Although they are certainly unpleasant, the photographs are not unduly gruesome, and this Court concludes that their prejudicial • effect' did not outweigh their . probative value. Therefore, this Court holds that no error resulted from the admission of the photographs.
XIII.
White next argues that the circuit court erroneously denied his motion for a judgment of acquittal because there was insufficient evidence that he committed murder during a rape or during a burglary. Specifically, White argues that “the basis of the State’s capital- murder-rape and capital murder-burglary charges against Mr. White was-that, in the course of intentionally killing Jasmine Parker, [White] unlawfully remained in Ms. Parker’s home to forcibly compel her into sexual intercourse.” (White’s brief, at 87.) According to White, “[b]ecause the evidence at trial was insufficient to allqw a reasonable conclusion that Mr. White raped Ms. Parker, .neither the capital murder-burglary or the capital murder-rape charges should have been submitted to the jury.” (White’s brief, at 87.)
“In determining the sufficiency of the evidence to sustain a conviction, a reviewing court' must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecutioñ.” Powe v. State, 597 So.2d 721, 724 (Ala.1991) (citing Faircloth v. State, 471 So.2d 485 (Ala. Crim.App.1984)). “‘The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a'rational finder of fact could have found the defendant guilty beyond a reasonable doubt.’” Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997) (quoting O’Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992)). “When there is legal evidence from which the jury could, by fair inference, find the defendant guilty the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court’s decision.” Sale v. State, 8 So.3d 330, 338 (Ala.Crim.App.2008) (quotations and citations omitted). .“The role of appellate courts is not to say what the, facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.” Ex parte Stewart, 900 So.2d 475, 477 (Ala. 2004) (citations and quotations omitted).
Section 13A-5-40(a)(3), Ala.Code' 1975, provides, in relevant part, that “[m]urder by the defendant during a rape in the first or second degree” is a capital offense. Section 13A-5-40(a)(4), Ala.Code 1975, provides, in relevant part, that “[mjurder by the defendant during a burglary in the first or second degree” is a capital offense. For- capital-murder- purposes, a - person commits the crime of murder if he or she, with the “intent to cause- the death of another person, ... causes the death of that person....” § 13A-6-2(a)(l), Ala. Code 1975. “A person commits the crime of rape in the first degree if ... [h]e or she engages in sexual intercourse with a member of the opposite sex by forcible compulsion ,,” § 13A-6-61(a)(l), Ala. Code 1975. “A person commits the crime of burglary in the first degree if he or she knowingly and unlawfully enters or remains unlawfully in a dwelling with intent to commit a crime therein, and, if, in effecting entry or while in [the] dwelling or in immediate flight therefrom, the person or another participant in the crime ... *219 [cfcuses physical injury to any person who is not a participant in the crime.... ” § 13A-7-5(a)(2), Ala.Code 1975.
White argues that the intent to commit rape was the intent relied upon by the State to satisfy the element of burglary that requires proof that White remained unlawfully in a “dwelling vuth intent to commit a crime therein.... ” § 13A-7-5(a), Ala.Code 1975. From there, White argues that the State presented insufficient evidence to establish that he raped Parker. . According to White, because the State presented insufficient evidence to establish that he raped Parker, it presented insufficient evidence indicating that he had the intent to rape Parker and, thus, failed to prove either capital murder/rape or capital murder/burglary. This Court disagrees.
The State presented evidence indicating that while investigating Parker’s murder, officers found a cigar tip containing White’s DNA in the apartment. Vanessa Parker testified that the cigar tip was not in the apartment the morning she and Parker went to work. Thus, the State established that White was in Parker’s apartment between 3:00 p.m. — when Parker left her mother’s work to go home,on the day of the murder — and 7:30 p.m., when her mother found her body.
The State also presented evidence establishing that there was a struggle in the apartment before' Parker’s murder. The State’s evidence established that White engaged in sexual intercourse with Parker. DNA from semen located in Parker’s vagina and on her Leg matched White’s DNA profile. Further, Parker’s body was found nude from the waist down with her shirt pulled up exposing her breasts. The State established that, while mostly nude, Parker was murdered by being strangled with her pants and- that her throat was slit.
• The .State also presented evidence establishing that1 White raped and murdered Black in a manner very similar to Parker’s rape and murder. Thus, the State presented evidence establishing White’s identity as Parker’s murderer.
Based on this evidence, the State presented sufficient evidence from which the jury could have reasonably inferred that White was in Parker’s apartment and struggled with and raped her while strangling her to death with her jeans. Accordingly, the State- presented sufficient evidence to sustain White’s convictions for murder during- a burglary and for murder during a rape.
XIV.
White next argues that because there was no evidence of a burglary independent of .the commission of the forcible rape, there was insufficient evidence to convict White of capital murder during the course of a burglary. According to White, the State’s only evidence establishing that he unlawfully remained in Parker’s apartment was evidence establishing that he raped her. White then argues that evidence of the commission of a crime, standing alone, is inadequate to support the unlawfully-remaining element of burglary.
It is well settled that, when a burglar was initially given permission of be in a house, evidence establishing that the victim and the burglar struggled is circumstantial evidence that the burglar’s license to be in the house was revoked and the burglar remained unlawfully. Brown v. State, 11 So.3d at 913. Although “evidence of a commission of a crime, standing alone, is inadequate to support the finding of an unlawful rem'aining, ... evidence of a struggle can supply the necessary evidence of an unlawful remaining.” Davis v. State, 737 So.2d 480, 484 (Ala.1999). Accordingly, although evidence establishing that the *220 defendant murdered the victim in the victim’s houses by a stealthy or instantaneous method would be insufficient to show that the license to be in the house had been revoked and'that the defendant remained unlawfully, the “choice to kill by a less-than-instantaneous technique [such as] strangulation” would be sufficient. Id.
Here, the State presented evidence indicating that White and Parker struggled in the apartment, knocking over furniture. The State also presented ^evidence establishing that White; raped Parker. The State’s evidence further established-that White then strangled Parker to death.
Based on the evidence establishing that White struggled with, raped, and strangled Parker, the State presented sufficient evidence from which the jury' could have found that'any license White had to be in Parker’s apartment had been revoked and he unlawfully remained there. Davis, 737 So.2d at 484 . Therefore, this issue does not entitle White to any relief
XV.
White next argues that the circuit court failed to properly instruct the jury on weighing the aggravating and mitigating circumstances. Specifically, White argues that the circuit court instructed the jury to weigh the aggravating circumstances and the-mitigating circumstances but failed to inform the jury how, to vote after the weighing process. According to White, the circuit. court’s failure to, inform the jury how to vote after the weighing process “prevented jurors from understanding when, they should recommend a sentence of life or death.”, (White’s brief, at 93.) White did not. raise, this objection at trial; therefore, this issue is reviewed for plain error only.. Rule 45A, Ala. R.App. P.
White’s contention that the circuit, court failed to inform the jury how to vote after weighing the aggravating and mitigating circumstances, i.e., to vote for death if the aggravation outweighs the. mitigation or for life without the. possibility of parole if the mitigation outweighs the aggravation, is refuted by the record. 'At trial, the circuit court instructed the jury as follows:
“So ladies and gentlemen, if, after a full and fair consideration of all the evidence in this case, you are convinced beyond a reasonable doubt, that at least one aggravating circumstance does exist. And you are convinced that that aggravating circumstance outweighs any mitigating circumstance that,has been offered. Then the form of your verdict would be:
“ ‘We, the jury, find the Defendant to be punished by death.’
(t
“If, on the other hand, you find that the mitigating circumstances outweigh the aggravating circumstances, your verdict would be:
“We, the jury, find that the Defendant be punished of life imprisonment without parole.”
(R. 730.)
Because the circuit court instructed the jury on how to vote after it weighed the aggravating circumstances and the mitigating circumstances, White’s argument to the contrary is without merit. Albarran, 96 So.3d at 160 (“This assertion is refuted by the record and is without merit.”). Accordingly, this issue does not entitle White to any relief.
XVI.
White next argues that his death sentence must be vacated in light of Ring v. Arizona, 536 U.S. 584 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002). Specifically, White argues that his, death sentence is invalid under Ring because 'the jury did not . unanimously find that an aggravating *221 circumstance existed and because the jury did not unanimously find that the aggravating circumstances outweighed the mitigating circumstances.- White also argues that decision to impose the death penalty must be made by the jury as opposed to-a judge. Finally, White argues that this Court should .overrule the Alabama Supreme Court’s decision in Ex parte Waldrop, 859 So.2d 1181 (Ala.2002).
In Ring , the United States Supreme Court applied its earlier holding in Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), to death-penalty cases and held that, under the Sixth Amendment, a capital defendant is “entitled to a. jury determination of any fact [other than a pripr conviction] on which the legislature conditions an increase in their maximum punishment.” Ring, 536 U.S. at 589, 600 . In Ex parte, Waldrop, 859 So.2d 1181 (Ala.2002), the Alabama Supreme Court applied Ring to a similar situation and held:
“[W]hen a defendant is found guilty of a capital offense, ‘any aggravating circumstance which the verdict convicting the defendant establishes was- proven beyond a reasonable doubt at trial shall be considered as proven beyond a reasonable doubt for purposes of the sentencing hearing.’ Ala.Code 1975, § 1SA-5-45(e); see also Ala.Code 1975, § 18A-5-50 (‘The fact that a particular capital offense as defined in Section 13A-5-40(a) necessarily includes one or more aggravating circumstances- as specified in Section 13A-5-49 shall not be construed to preclude the finding and consideration-of that relevant circumstance or circumstances in determining sentence.’). This is known as ‘double-counting’ or ‘overlap,’ and Alabama courts ‘have repeatedly upheld death sentences where the only aggravating circumstance supporting the death sentence overlaps with an element of the capital offense.’ Ex parte Trawick, 698 So.2d 162, 178 (Ala.1997); see also Coral v. State, 628 So.2d 954, 965 (Ala.Crim.App. 1992).
“Because the jury convicted Waldrop of two counts of murder during a robbery in the first degree,-a violation of Ala.Code 1975, § 18A-5-40(a)(2), the statutory aggravating- circumstance of committing a capital offense while engaged in the commission of a robbery, Ala.Code.1975, § 13A-5-49(4), was ‘proven beyond a reasonable doubt.’ Ala.Code 1975, § 18A-5-45(e); Ala.Code 1975, § 13A-5-50. Only one aggravating circumstance must exist in order to impose a sentence of death. Ala.Code 1975, § 13A-5-45(f). Thus, in Wal-drop’s case, the jury, and not the trial judge, determined the existence of. the ‘aggravating circumstance necessary for imposition of the death penalty.’ Ring, 536 U.S. at 609, 122 ,S.Ct. at 2443. Therefore, the findings reflected in the jury’s verdict alone exposed Waldrop to a range of punishment that had as its maximum the death penalty. This is all Ring [v. Arizona, 586 U.S. 584 (2002),] and Apprendi [v. New Jersey, 530 U.S. 466 (2000),] require.”
859 So.2d at 1188 .
Like Waldrop, White was convicted of capital offenses .that have corresponding aggravating circumstances,. i.e., murder during the course of a rape and murder during the course of a burglary. See §§. 13A-5-40(a)(3), 13A-5-40(a)(4), 13A-5-49(4), AkuCode 1975. Accordingly, the jury’s verdict finding White guilty of the two counts of capital murder-established that the jury unanimously found that aggravating circumstances existed. Because the jury’s guilt-phase' verdict established that the jury found a fact necessary to expose White to a sentence of death, *222 White’s Sixth Amendment right to a jury was not violáted.
To the extent White argues that the Supreme Court’s holding in Ring was violated because the jury- did not unanimously find that the aggravating circumstances outweighed the mitigating circumstances, this argument is likewise .without merit. In Waldrop, the Alabama Supreme Court addressed an identical issue and held:
“The determination whether the aggravating circumstances outweigh the mitigating circumstances is. not a finding of fact or an element of the offense. Consequently, Ring [v. Arizona, 636 U.S. 584 (2002),] and Apprendi [v. New Jersey, 530 U.S. 466 (2000),] do not require that a jury weigh the aggravating circumstances and the mitigating circumstances.”
Id. at 1190. Because the balancing of the aggravating and mitigating circumstances, i.e., the sentencing determination itself, is not a finding of fact that was necessary to expose White to a sentence of death, his death sentence does not violate Ring and Apprendi . Consequently, White is not entitled to any relief on this issue. 8
Finally, to the extent White argues that only juries may impose a sentence of death, his argument is without merit. In Mitchell v. State, 84 So.3d 968 ; 993 (Ala.Crim.App.2010), this Court explained that judicial sentencing in capital cases is constitutional. Specifically, this Court held
“that the Constitution of the United States does not prohibit vesting the final sentencing authority in the circuit court. See Spaziano v. Florida, 468 U.S. [447,] 465 [(1984)]. ' Further, in Harris v. Alabama, the Supreme Court of the United States held that Alabama’s sentencing standard, which (at that time) required only that the judge consider the jury’s advisory opinion, was ‘consistent with established constitutional law.’ 513 U.S. 504, 511 , 115 S.Ct. 1031 , 130 L.Ed.2d 1004 (1995). The Court went on to explain that ‘the Eighth Amendment does not require the State to define- the wéight the sentencing judge must accord an advisory jury verdict.’ Id. at 512 . Therefore, Mitchell’s argument that Alabama’s judicial-override provision is unconstitutional is without merit.”
Mitchell, 84 So.3d at 993 . See also Ex parte Taylor, 808 So.2d 1215, 1218-19 (Ala.2001) (holding that the Constitution does not prohibit judicial sentencing); Hodges v. State, 856 So.2d 875, 934 (Ala.Crim.App.2001) (same).
Because the Constitution does not, as White argues, prohibit judicial sentencing in capital cases, his argument that only juries may impose a sentence of death is without merit. Therefore, this issue does not entitle White to any relief.
xvii;
White next argues that the circuit court erroneously allowed the jury to be death-qualified thus resulting in a conviction-prone jury in violation of his right to an impartial jury.
This Court has repeatedly rejected arguments identical to White’s argument. For instance, in Sockwell v. State, 675 So.2d 4 (Ala.Crim.App.1993), this Court held:
*223 “In Lockhart v. McCree, 476 U.S. 162 , 106 S.Ct. 1758 , 90 L.Ed.2d 137 (1986), the Supreme Court held that the Constitution does not prohibit states from ‘death qualification’ of juries in capital cases and that so qualifying a jury does not deprive a defendant of an impartial jury. 476 U.S. at 173, 106 S.Ct. at 1764. Alabama Courts have consistently held likewise. See Williams v. State, 556 So.2d 737 (Ala.Crim.App.1986), rev’d in part, 556 So.2d 744 (Ala.1987); Edwards v. State, 515 So.2d 86, 88 (Ala.Crim.App.1987); Martin v. State, 494 So.2d 749 (Ala.Crim.App.1985).”
675 So.2d at 18 ; see also Revis v. State, 101 So.3d 247, 310-11 (Ala.Crim.App.2011) (same); McCray v. State, 88 So.3d 1, 76 (Ala.Crim.App.2010) (same); Vanpelt v. State, 74 So.3d 32, 50 (Ala.Crim.App.2009) (same).
Because the Constitution does not prohibit death-qualification of the jury in a capital-murder trial, the circuit court committed no error in’allowing the prospective jurors to be questioned about their views toward capital punishment. Accordingly, this issue does not entitle White to any relief.
XVIH.
White next argues that the circuit court erred by double counting elements of his capital offenses as aggravating circumstances. Specifically, White asserts that “[t]he double counting of rape and burglary as [both elements of his capital' offenses and] aggravating circumstances ... 'was constitutionally impermissible.” (White’s brief, at 97.)
Contrary to White’s assertion, there is no constitutional or statutory prohibition against double counting certain circumstances as both elements' of the offenses and aggravating circumstances. See § 13A-5-45(e), Ala.Code 1975 (providing that “any aggravating circumstance which the verdict convicting the defendant establishes was proven beyond a reasonable doubt at trial shall be considered as proven beyond a reasonable doubt for purposes of the sentence hearing”). The United .States Supreme Court, the Alabama Supreme Court, and this Court have all upheld the practice of double counting. See Lowenfield v. Phelps, 484 U.S. 231, 241-46 , 108 S.Ct. 546 , 98 L.Ed.2d 568 (1988) (“The fact that the aggravating circumstance duplicated one of the elements of the crime does not make this sentence constitutionally infirm.”); Tuilaepa v. California, 512 U.S. 967, 972 , 114 S.Ct. 2630 , 129 L.Ed.2d 750 (1994) (“The aggravating circumstance may be contained in the definition of the crime or in a separate sentencing factor (or m both).”); Ex parte Kennedy, 472 So.2d 1106, 1108 (Ala.1985) (rejecting a constitutional challenge to double counting); Brown v. State, 11 So.3d 866, 929 (Ala.Crim.App.2007); Harris v. State, 2 So.3d 880 (Ala.Crim.App.2007); Jones v. State, 946 So.2d 903, 928 (Ala.Crim.App.2006); Per aita v. State, 897 So.2d 1161, 1220-21 (Ala.Crim.App.2003); Coral v. State, 628 So.2d 954, 965-66 (Ala.Crim.App.1992); Haney v. State, 603 So.2d 368, 379-81 (Ala.Crim.App.1991). Because double counting is constitutionally permitted and statutorily required, White is not entitled to any relief on this issue. § 13A-5-45(e), Ala.Code 1975.
XIX.
White also argues that Alabama’s method of execution — lethal injection — is unconstitutional.
This Court notes that White’s entire argument as to this issue consists of one paragraph and completely fails to offer any argument regarding why he believes lethal injection is unconstitutional. . Rather, White, in cursory form, declares that lethal *224 injection in. Alabama has not been found to comply with the standards established by the Supreme Court of the United States in Baze v. Bees, 553 U.S. 35 , 128 S.Ct. 1520 , 170 L.Ed.2d 420 (2008); therefore, his sentence of death “constitutes cruel and unusual punishment in violation of the Eight and Fourteenth Amendments to the United States Constitution, the-Alabama Constitution and Alabama law.” (White’s brief, at 99.) White’s argument fails to take into account the fact that he bears the burden to establish that lethal injection constitutes cruel and unusual punishment. See Harris v. Wright, 93 F.3d 581, 583 (9th Cir.1996) (recognizing that the appellant bears a heavy burden to establish .that his sentence is cruel and unusual); cf. United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir,2006) (explaining that the appellant bears the, burden to establish that his sentence in disproportionate); Cole v. State, 721 So.2d 255, 260 (Ala.Crim.App.1998) (recognizing that the appellant has the burden to establish that a State statute is unconstitutional); Holmes v. Concord Fire Dist., 625 So.2d 811, 812 (Ala.Civ.App.1993) (“The party mounting a constitutional challenge to a statute bears the burden of overcoming a presumption of constitutionality.”). Because White bears the burden to establish that lethal injection is unconstitutional, his argument that lethal injection is ünconstitutional until a court determines otherwise is without merit.
Moreover, this Court, in Saunders v. State, held that “lethal injection does not constitute per se cruel and unusual punishment. See e.g., McNabb v. State, 991 So.2d 313 (Ala.Crim.App.2007), and cases cited therein.” 10 So.3d 53, 111 (Ala.Crim.App.2007). Further, both the Supreme Court of the United States and the Alabama Supreme Court have held that lethal injection does not constitute cruel and unusual punishment. Baze, 553 U.S. at 54-56 (holding that lethal injection does not violate the Eighth Amendment); Ex parte Belisle, 11 So.3d at 839 (holding that lethal injection is not unconstitutional). White has not offered this Court any basis upon which to hold that lethal injection is unconstitutional.
Because White’s claim has béen rejected by the Supreme Court of the' United States, the Alabama Supreme Court, and this Court and because he has not offered this Court any reason to revisit that issue, ho is not entitled to any relief.
AAi
Finally, White argues that the circuit court’s order sentencing him to death was deficient for several reasons. The State agrees that the circuit court’s order fails to comply § 18A-5-47(d), Ala.Code 1975.
Section 13A-5-47(d), Ala.Code 1975, provides:
“Based upon the evidence presented at trial, the evidence presented during the sentence hearing, and the pre-sentence investigation report and any evidence submitted in connection with it, the trial court shall enter specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in Section 13A-5-49, each mitigating circumstance enumerated in Section 13A-5 — 51j and any additional [nonstatutory] mitigating circumstances offered pursuant to Section 13A-5-52. The trial court shall, also enter written findings of facts summarizing the crime and the defendant’s participation in it.”
See also Jackson v. State, 169 So.3d 1,113 (Ala.Crim,App.2013).
Here, the circuit court’s sentencing order fails to summarize the facts of the crime and White’s participation in it. Further, the circuit court failed to enter spe- *225 cifle written findings of fact regarding the “existence or nonexistence of each aggravating circumstance enumerated in Section 13A-5-40, each mitigating circumstance enumerated in Section 13A-5-51, and any additional [nonstatutory] mitigating circumstances offered pursuant to Section 1SA-5-52.” § 13A-5-47(d), Ala.Code 1975.
Consequently, this cause is remanded with instructions for the circuit court to enter a new sentencing order that fully complies with § 13A-5-47(d), Ala.Code 1975. 9 The circuit court’s new order should also “comply with the requirements of Ex parte Carroll, 852 So.2d 833 (Ala. 2002), and Ex parte Taylor, 808 So.2d 1215 (Ala.2001), [by setting] out specific reasons for giving the jury’s recommendation the weight that it gave it,” Jackson, 169 So.3d at 115 , and it should “fully set forth [its] reasons for overriding the jury’s advisory verdict.” Yancey v. State, 65 So.3d 452, 480 (Ala.Crim.App.2009).
For the foregoing reasons, White’s capital-murder convictions are affirmed. This cause is, however, remanded to the circuit court with instructions for it to enter an amended sentencing order that fully complies with § 13A-5-47(d), Ala.Code 1975, and the requirements of Ex parte Carroll and Ex parte Taylor. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 56 days after the release of. this opinion.
AFFIRMED AS TO CONVICTIONS; REMANDED WITH INSTRUCTIONS AS TO SENTENCING.
WELCH, KELLUM, and BURKE, JJ„ concur. JOINER, J,, concurs in part and concurs in the result in part, with opinion.
. At the time of trial, Owens was an enforcement agent with, the Alabama Beverage Con-trbl Board.
. ‘White also argues that evidence establishing his involvement in the Black rape/murdcr was hot admissible under Rule 404(b), Ala. R. Evid., to establish his intent to commit the Parker rape/murder. In its final jury instrue-tions, the circuit court "limited die juiy’s consideration of the 404(b) evidence to establishing White's identity. Therefore,' this Court will not address whether the evidence was properly admit! cd to establish intent.
. White also argues that evidence of the Black rape/murder was not admissible under Rule 404(b) because there was insufficient evidence to establish that he raped Parker. As discussed later in this opinion, the State presented sufficient evidence establishing that he raped Parker; therefore, this argument is without merit.
. In both this prosecution and the prosecution of the Black rape/murder, the circuit court suppressed the portion of White’s statement given before he was read the Miranda warnings.
. In Batson v, Kentucky, the Supreme Court of the United States established a three-part test to determine whether a party used its peremptoiy strikes in a manner that discriminates against a particular race in violation of the Equal Protection Clause, "In J.E.B. v. Alabama, 511 U.S. 127 , 114 S.Ct. 1419 , 128 L.Ed.2d 89 (1994), the United States Supreme Court further extended Batson to gender-based strikes.” Sharrief v. Garlach, 798 So.2d 646, 653 (Ala.2001), Thus, the analysis under Batson and J.E.B. is the same.
. A cigar tip found in Parker's apartment contained White's DNA, Parker’s mother testified that the cigar tip was not in the apartment when she and Parker loft for work the morning of the murder.
i Tlic condition of the evidence was not at issue at trial,
. White also makes several arguments regard- . ing why he believes this Court should overrule the Supreme Court’s holding in Ex parte Wal d rop. However, this Court is bound by the decisions of the Alabama Supreme Court and has no authority to-overrule those decisions. See. § 12-3-16, Ala.Code . 1975; Whatley v. State, 146 So.3d 437, 489 (Ala.Crim.App. 2011).
. Because this Court remands this cause for the circuit court to amend its sentencing order, this Court pretermits any discussion of issues IV and VI in White’s brief which involve challenges to the circuit court’s decision to sentence White to death.
. White divides this issue into two subissues: 1) whether sufficient mitigating evidence supported the jury’s recommendation of life in prison without the possibility of parole and 2) whether the circuit court's rejection of the jury's recommendation conflicted with state and federal law. White cites no authority in support of his first subissue and contends only that the circuit court’s override "rendered Mr. White's sentencing fundamentally unreliable under state and federal flaw.” (White's brief on return to remand, at 11.) This Court considers White’s two subissues to be one issue and addresses it accordingly.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4823417. Public record. Not legal advice.