Petition for Writ of Certiorari — Michael Dale Iervolino, Petitioner v. Alabama

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Appendix A:

Alabama Court of Criminal Appeals’ Opinion

and Order Denying Rehearing

Iervolino v. State, --- So.3d ---- (2023)

2023 WL 5316682

Only the Westlaw citation is currently available.

sentencing defendant to death based on a jury vote of 10-2

in favor of the death penalty did not violate the Sixth

Amendment; and

NOT YET RELEASED FOR PUBLICATION.

death penalty was a proper sentence.

Court of Criminal Appeals of Alabama.

Michael Dale IERVOLINO

Affirmed.

Kellum, J., specially concurred and filed opinion.

STATE of Alabama

Minor, J., recused himself.

CR-21-0283

August 18, 2023

Synopsis

Background: Defendant was convicted in the Circuit Court,

St. Clair County, No. CC-20-426, of capital murder and was

sentenced to death. Pursuant to statute, an automatic appeal

followed.

Procedural Posture(s): Appellate Review; Trial or Guilt

Phase Motion or Objection; Sentencing or Penalty Phase

Motion or Objection; Jury Selection Challenge or Motion.

West Codenotes

Validity Called into Doubt

Ala. Code § 13A-5-53(a)

Appeal from St. Clair Circuit Court (CC-20-426)

Holdings: The Court of Criminal Appeals, Kellum, J., held

that:

prospective juror's indication that she was the first-grade

teacher of the county district attorney, who also happened to

be the father of the victim, and that she had spoken to friends

about the case did not warrant removing juror for cause due

to impartiality concerns;

prosecution's peremptory strikes of African American

prospective jurors did not constitute a

Batson violation;

prosecution properly authenticated for its admission into

evidence a copy of homeowner's surveillance video;

Opinion

KELLUM, Judge.

*1 The appellant, Michael Dale Iervolino, was convicted

of capital murder for shooting Nicholas Sloan Harmon

while Harmon was inside a vehicle. See § 13A-5-40(a)

(17), Ala. Code 1975. The jury unanimously found the

existence of one aggravating circumstance -- that Iervolino

had previously been convicted of a crime involving the use or

threat of violence, specifically, assault in the second degree,

see § 13A-5-49(2), Ala. Code 1975 -- and, by a vote of

10-2, sentenced Iervolino to death. 1 This appeal, which is

automatic in a case involving the death penalty, followed. See

§ 13A-5-55, Ala. Code 1975. 2

court reporter's failure to record 21 off-the-record bench

conferences was not reversible error;

sufficient evidence supported finding that defendant had the

specific intent to kill victim;

prosecutor's reference to another case during rebuttal closing

argument at the guilt phase was not improper;

Facts and Procedural History

On November 5, 2019, Moody Police Officer Austin Burns

was dispatched to the Valero gasoline station on Kelly Creek

Road in response to a power outage. When he arrived at the

scene, he observed a black four-door Mazda automobile near

a power pole. The windows of the vehicle were fogged and the

driver's side rear window was “busted.” (R. 762.) Harmon was

the sole occupant of the vehicle and was unresponsive when

Iervolino v. State, --- So.3d ---- (2023)

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Officer Burns arrived. Harmon was pronounced dead at the

scene. Joshua Golden, a forensic scientist with the Center for

Applied Forensics at Jacksonville State University, processed

the scene, taking photographs and measurements. He found

blood spatter on the driver's door and the front passenger's

door, and, after Harmon's body was removed from the vehicle,

he found a projectile on the driver's seat. Dr. Valerie Green, a

medical examiner with the Alabama Department of Forensic

Sciences (“DFS”) who performed the autopsy on Harmon,

testified that Harmon died from a gunshot wound to the

left side of his neck that exited through his mouth. Harmon

also had blunt-force injuries that were consistent with an

automobile accident. Testimony indicated that Harmon had

spent the evening with his girlfriend, Annabelle Hemple, at

her apartment in Moody and had left Hemple's apartment

around 10:50 p.m., driving his black Mazda automobile.

Hemple said that the typical route Harmon would drive from

her apartment to his home would take him past the Valero gas

station.

*2 James Stewart testified that on the evening of November

5, 2019, he was at a friend's house when Iervolino arrived

with his girlfriend, Audrey Howard, and three others -- Brent

Mays, Dylan Stewart, and Kimberly Brown. Iervolino was

driving a Pontiac G6 automobile that was owned by Mays.

Stewart left with Iervolino and the others to go to Leeds to

procure drugs from Heath Ramey. On the way, Iervolino and

Howard got into an argument, and Iervolino stopped near a

Wal-Mart discount store where, Stewart said, Iervolino threw

Howard's “stuff out of the car and told us all to get out of the

car.” (R. 893.) Mays left on foot and Stewart did not see him

again that night. Howard and Brown walked to a nearby Taco

Bell fast-food restaurant, and Iervolino drove to the Murphy's

gasoline station located in front of Wal-Mart. Stewart walked

to the gas station to “calm [Iervolino] down.” (R. 894.)

Stewart and Iervolino then left and Iervolino stopped at a Best

Western motel. According to Stewart, Iervolino parked beside

a white ZA Construction work truck, got out of the vehicle

and then “started getting some tools and stuff out of the back

of the truck.” (R. 894.) Stewart said that he (Stewart) took

a set of keys from the truck's toolbox. Stewart and Iervolino

then went to Ramey's house in Leeds to pick up drugs. Jacob

Wilson was at Ramey's house when they arrived and Stewart

saw Wilson give Iervolino a gun, specifically, a Hi-Point 9

mm.

After getting the drugs, Iervolino and Stewart left Ramey's

house, picked up Howard and Brown at the Taco Bell

near Wal-Mart, then went back to the Best Western motel.

Iervolino left him, Howard, and Brown in the Pontiac vehicle

and drove away in the white work truck. Because Brown had

a curfew, Howard followed Iervolino out of the parking lot

in the Pontiac to drive Brown home. On the way, as they

approached the Valero gas station, Stewart saw “a flash of

light across the sky.” (R. 901.) After dropping Brown off at

her house, Howard and Stewart drove to Howard's house. On

the way, they again passed the Valero gas station, at which

time Stewart saw a police vehicle and another vehicle near

a power pole. Iervolino arrived at Howard's house shortly

after Stewart and Howard did. Iervolino was driving the stolen

white work truck, which Stewart said had damage that had not

been there earlier. Stewart testified:

“[Prosecutor]: Now did you have a conversation with

[Iervolino] there at [Howard's] house?

“[Stewart]: Yes, sir.

“[Prosecutor]: Tell the ladies and gentlemen of the jury the

conversation. Where it was and what was said.

“[Stewart]: Well, I was sitting in [Howard's] house and

I was coloring in the coloring book and that's when

[Iervolino] came in and said we needed to go.

“[Prosecutor]: The first thing he said is we needed to go?

“[Stewart]: Yes, sir.

“[Prosecutor]: Okay.

“[Stewart]: And we walk outside -- and me and [Iervolino]

walked outside while [Howard] is putting her stuff up.

Well, he starts taking stuff out of the back of the Pontiac

G6 and putting it into the truck. And then he shows me

two guns. He shows me a Glock 9 mm and a Hi-Point 9

mm. [ 3 ]

“....

“[Prosecutor]: What did he say at that point?

“[Stewart]: He said he had shot him, he had shot him.

“[Prosecutor]: What did you say?

“[Stewart]: I asked him who did he shoot.

“[Prosecutor]: What did he say?

“[Stewart]: He didn't say nothing.

Iervolino v. State, --- So.3d ---- (2023)

2023 WL 5316682

“[Prosecutor]: Okay. So you -- he just says ‘I shot him, I

shot him’?

“[Stewart]: Yes, sir.

“[Prosecutor]: And you ask who and he didn't reply?

“[Stewart]: Yes, sir.

“[Prosecutor]: What happened next?

“[Stewart]: He wanted me to follow him and [Howard] in

that truck to his dad's house.

“[Prosecutor]: Did you do that?

“[Stewart]: No, sir.

“[Prosecutor]: When you were leaving, did you notice

anything about the truck -- you said it was damaged. Did

you notice anything about the taillights on the back?

“[Stewart]: Yes, sir. The taillight was

busted.”

(R. 903-907.) Stewart testified that Iervolino gave him the HiPoint 9mm gun, but instead of following Iervolino, he drove

to Ramey's house, gave the gun back to Wilson, and told

Wilson that Iervolino had shot someone with the gun.

Jacob Wilson testified that he saw Iervolino on the evening

of November 5, 2019, when he came to Ramey's house with

Stewart. Noticing that he had a gun, Iervolino asked Wilson

if he could “use it.” (R. 971.) Wilson let Iervolino borrow the

gun. Wilson said that the gun was a Hi-Point handgun, and

that it was loaded at the time he loaned it to Iervolino. Later

that same night, Wilson said, Stewart returned the gun to him.

*3 Mays testified that after Iervolino made him get out of

his Pontiac G6, he walked around for a while and then noticed

his vehicle parked at the Best Western motel. According to

Mays, when he approached Iervolino, Iervolino said, “I've got

this gun and I'm about to steal this truck.” (R. 556.) Mays then

walked away. As he was walking away, he saw Iervolino drive

a truck out of the parking lot, with his Pontiac G6 following

close behind.

Cody Cox testified that at around 10:30 p.m. on the evening of

November 5, 2019, he was in front of the Best Western motel

with his fiancé, Stephanie Ingam, after her shift had ended at

the motel, when two men approached them, one of whom he

identified at trial as Iervolino. Cox testified:

“He was asking me to take him around the corner of the

building, to give him a ride to go get his truck, and all that.

I thought it was kind of dumb because, I mean, it's like a

hundred yards to walk, so why do I need to give you a ride.

So that kind of threw me off a little bit. And then he kept

trying and kept trying. Well he got, like -- I don't know. I

feel -- I got a bad vibe off of him in all reality. And when

he kept trying to get me to go around the corner. ...”

(R. 527-28.) The two men eventually walked away, after

which Cox saw a work truck leave with one person inside.

Based on Iervolino's odd behavior, Ingam telephoned the

police.

Iervolino's cousin, Johnny Bertram, who lived in Irondale in

Jefferson County, testified that in the early morning hours

of November 6, 2019, Iervolino knocked on his door. As

Bertram was talking with Iervolino near the truck Iervolino

had arrived in, he saw a shell casing on the driver's side

floorboard. Bertram asked Iervolino if he had been firing

guns in the truck, and Iervolino said, “Well, yeah.” (R. 1026.)

Bertram removed the casing from the truck and threw it in his

front yard.

Richard Collins testified that he was a manager at ZA

Construction and that each of the work trucks was equipped

with a tracking system that he could monitor from his cellular

telephone. He said that the system would send notifications to

him when “there's a harsh event -- harsh turn or harsh brake

or a speeding event.” (R. 573.) On the evening of November

5, 2019, he said, he received an alert from the tracking system

that one of the trucks was traveling at a very high rate of speed.

(R. 574.) After contacting several employees, he determined

that the truck had been stolen, and he contacted the police. He

accessed the data from the global positioning system (“GPS”)

on the truck, which showed the location of the truck over the

previous 24 hours as well as its current location. The tracking

system showed that the truck's ignition had started at 10:47

p.m., and that the truck had traveled down Village Drive and

then turned onto Carl Jones Road at approximately 10:49

p.m., where it increased speed to 78 miles per hour. It was at

that point that Collins received the first alert from the tracking

system. From Carl Jones Road, the truck turned onto Park

Avenue at 10.54 p.m. and then onto Kelly Creek Road, where

Iervolino v. State, --- So.3d ---- (2023)

2023 WL 5316682

the Valero gas station was located, at 10:55 p.m. Testimony

indicated that the Valero gas station was 1.41 miles from the

intersection of Carl Jones Road and Park Avenue, and that the

power outage at the Valero gas station occurred at 10:56 p.m.

when “a vehicle struck a guy wire.” (R. 754.) Testimony also

indicated that the stolen truck and Harmon's Mazda were both

“on Park Avenue from the Carl Jones intersection to the Kelly

Creek intersection” at the same time. (R. 1158.) Over the next

several hours, Collins kept law enforcement informed about

the location of the truck.

*4 Sergeant Brian Hassett, with the Irondale Police

Department, testified that on November 5, 2019, he received

a call from the dispatcher about a stolen truck. The dispatcher

told him that the vehicle had been stolen from a motel parking

lot in Moody and that the owner was tracking the truck via

GPS. Three Irondale police officers were dispatched to the

residence where the GPS indicated the truck was located,

but “[a]fter learning of the circumstances of the goings-on in

Moody currently,” they decided that “it was a better option

to just keep eyes on the vehicle and not attempt to make

contact.” (R. 606.) When the stolen truck left the residence

at around 2 a.m. on November 6, 2019, however, officers

attempted to stop the vehicle, which resulted in a highspeed chase, with speeds reaching around 100 miles per hour.

Irondale police officers pursued the truck into Leeds and into

St. Clair County, where additional officers joined the chase.

When other officers put spike strips on the road, the truck

avoided them by going through a ditch. The officers in pursuit

lost the truck, but between 15 and 30 minutes later, Sgt.

Hassett said, he received a call from a fellow police officer

telling him that the truck had been located.

The truck was found stuck in a ditch in a wooded area near

a mobile home on Cline Road in St. Clair County. Officers

with the St. Clair County Sheriff's Department and the Moody

Police Department responded to the scene. Because there was

a steep incline, they had to park and proceed on foot. When

the first officers arrived, they heard an engine “revving”

and walked toward the sound. (R. 655.) As two officers

approached the truck on foot, several gunshots were fired

from an unknown location. As additional officers arrived,

more gunshots were fired. The special weapons and tactics

(“SWAT”) team of the St. Clair County Sheriff's Department

was called to the scene. At around 7 a.m. the morning of

November 6, 2019, the SWAT team deployed gas into the

mobile home where they believed the suspect was located

and then entered the mobile home, but the mobile home was

empty. As Deputy Patrick Adams was leaving the mobile

home, he heard a cough. He examined the outside of the trailer

and “could see that part of the underpinning for the trailer was

missing. So [he] came around the corner with [his] gun drawn

and [his] weapon light on, and [he] could see [Iervolino]

underneath the trailer.” (R. 666.) Iervolino was taken into

custody.

The Glock 9 mm handgun was found under the mobile home

where Iervolino had been found and the Hi-Point 9 mm

handgun was found at Ramey's residence in Leeds. Four shell

casings were found in the stolen truck and one was found in

Bertram's front yard. Nicholas Drake, a firearms and toolmark

examiner with DFS, determined that all five shell casings had

been fired from the Hi-Point 9mm. In addition, he said that

the projectile found in the driver's seat of Harmon's vehicle

had been fired from a Hi-Point firearm, but he could not say

conclusively that it had been fired from the gun that had been

submitted for comparison.

For his actions the night of November 5, 2019, Iervolino

was indicted for two counts of capital murder -- shooting

into a vehicle from inside another vehicle and causing the

death of Harmon, see §§ 13A-5-40(a)(17) and 13A-5-40(a)

(18), Ala. Code 1975 (case no. CC-2020-426) -- as well

as one count of theft of property in the first degree, see §

13A-8-3(b), Ala. Code 1975 (case no. CC-2020-427), and

one count of unlawful breaking and entering a motor vehicle,

see § 13A-8-11(b), Ala. Code 1975 (case no. CC-2020-428).

Immediately before trial began, Iervolino pleaded guilty to the

theft charge and to the breaking-and-entering charge and, at

the sentencing hearing after trial, the trial court sentenced him,

as a habitual felony offender, to 20 years’ imprisonment for

each conviction. Iervolino does not appeal those convictions

and sentences. A jury found Iervolino guilty of both counts

of capital murder as charged in the indictment and, as noted

above, sentenced Iervolino to death, but the trial court set

aside the second capital-murder count, specifically, the count

charging Iervolino with shooting from inside a vehicle under

§ 13A-5-40(a)(18).

Standard of Review

*5 Rule 45A, Ala. R. App. P., as amended effective January

12, 2023, provides:

“In all cases in which the death penalty has been imposed,

the Court of Criminal Appeals may, but shall not be

obligated to, notice any plain error or defect in the

Iervolino v. State, --- So.3d ---- (2023)

2023 WL 5316682

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.”

Before the January 12, 2023, amendment to Rule 45A, the

rules of preservation did not apply in cases in which the death

penalty had been imposed, and this Court was required to

review the entire record for plain error. With the amendment

to Rule 45A, the rules of preservation now apply in cases

in which the death penalty has been imposed and plain-error

review is discretionary with this Court. 4

This Court chooses to exercise its discretion and to continue

to review the entire record for plain error in all cases in which

the death penalty has been imposed. Although this Court

will continue to review the entire record for plain error in

all cases in which the death penalty has been imposed, that

does not mean we will address in our opinions those issues

a defendant raises that have not been properly preserved

for review and are subject only to plain-error review. When

plain-error review was mandatory, this Court addressed in its

opinion the merits of every issue raised by the defendant in

his or her brief on appeal, regardless of whether the issue

had been properly preserved for appellate review, oftentimes

engaging in extensive and lengthy analyses of even those

issues that were reviewed only for plain error. Because plainerror review is now discretionary, it is no longer necessary for

this Court to address in its opinions every issue that is subject

only to plain-error review and, even if we choose to address

those issues, we are not required to engage in the type of indepth analyses as we have in the past.

That being said, this Court has explained the plain-error

standard of review as follows:

“ ‘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 113,

121 (Ala. Crim. App. 1999), aff'd, 820 So. 2d 152 (Ala.

2001). Plain error is ‘error that is so obvious that the

failure to notice it would seriously affect the fairness or

integrity of the judicial proceedings.’ Ex parte Trawick,

698 So. 2d 162, 167 (Ala. 1997), modified on other

grounds, Ex parte Wood, 715 So. 2d 819 (Ala. 1998).

'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.’ Hyde v. State, 778 So. 2d

199, 209 (Ala. Crim. App. 1998), aff'd,

778 So. 2d

237 (Ala. 2000). 'The plain error standard applies only

where a particularly egregious error occurred at trial and

that error has or probably has substantially prejudiced

the defendant.’

Ex parte Trawick, 698 So. 2d at 167.

‘[P]lain error must be obvious on the face of the record.

A silent record, that is a record that on its face contains

no evidence to support the alleged error, does not establish

an obvious error.’ Ex parte Walker, 972 So. 2d 737, 753

(Ala. 2007). Thus, ‘[u]nder the plain-error standard, the

appellant must establish that an obvious, indisputable error

occurred, and he must establish that the error adversely

affected the outcome of the trial.’

Wilson v. State, 142

So. 3d 732, 751 (Ala. Crim. App. 2010). ‘[T]he plain error

exception to the contemporaneous-objection rule is to be

“used sparingly, solely in those circumstances in which a

miscarriage of justice would otherwise result.” ’

United

States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d

1 (1985) (quoting

United States v. Frady, 456 U.S. 152,

163 n.14, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)).”

*6 DeBlase v. State, 294 So. 3d 154, 182-83 (Ala. Crim.

App. 2018).

Analysis

Iervolino contends that the trial court erred in requiring him

to wear a stun belt during his trial because, he says, “to wear

a stun belt without subjecting this decision to any scrutiny

violated Mr. Iervolino's rights to fully participate in his trial

and communicate with his lawyers, as well as his rights

to due process, a fair trial, and a reliable conviction and

sentence.” (Iervolino's brief at p. 46.) The State asserts that

Iervolino did not object to the stun belt and that the trial court's

requiring him to wear the belt did not rise to the level of

plain error. 5 We agree with the State. Because there was no

objection to the use of a stun belt, this issue was not properly

preserved for review and is subject only to plain-error review.

We find no plain error in the use of the stun belt. See Floyd

v. State, 289 So. 3d 337, 369-71 (Ala. Crim. App. 2017);

Reynolds v. State, 114 So. 3d 61, 81-82 (Ala. Crim. App.

Iervolino v. State, --- So.3d ---- (2023)

2023 WL 5316682

2010); McMillan v. State, 139 So. 3d 184, 228-29 (Ala. Crim.

App. 2010); Belisle v. State, 11 So. 3d 256, 281-82 (Ala. Crim.

App. 2007), aff'd, 11 So. 3d 323 (Ala. 2008); and Hyde v.

State, 13 So. 3d 997, 1005-07 (Ala. Crim. App. 2007).

II.

Iervolino contends that the trial court erred in denying his

motion for a change of venue because, he says, Harmon's

relationship to the St. Clair County District Attorney resulted

in widespread and prejudicial media coverage of the case,

rendering it impossible for him to receive a fair trial in St.

Clair County.

In March 2021 Iervolino filed a motion for a change of

venue, arguing that he could not obtain a fair trial in either

St. Clair County “or counties in proximity to St. Clair”

because Harmon was the son of the St. Clair County District

Attorney and because, he said, there had been extensive media

coverage and “public expression” about the case. (C. 93-4.)

He asserted:

“[Iervolino] avers that the news coverage and social media

coverage of this killing, investigation and murder was

extensive, and pervasively saturated the area of St. Clair

County and counties in proximity thereto. Further, the news

media's use of the relationship of the victim to the District

Attorney as a main focus of coverage was sensational and

was intended to affect the reader's interest in the story with

a fact not relevant to the crime but intended to peak the

emotion and sympathy of the reader or viewer to an extent

and in a way not normally found in criminal cases.”

(C. 95.)

At a pretrial hearing in August 2021, defense counsel

presented to the trial court numerous news articles involving

the case. The following occurred:

“THE COURT: The issue of pretrial publicity here, is it

based on any evidence-based analysis or investigation that

has taken place by an investigator in essence this, we

have newspaper articles -- we're going to have newspaper

articles anywhere in the State of Alabama. For instance -and I went through exhaustively -- Trussville's in Jefferson

County; Anniston is Calhoun County; St. Clair Times is

St. Clair; Al.com is statewide; Gadsden, Etowah; WBRC,

North Central. And you can go on and on. If it's limited

to the pretrial publicity alone prong that I'm reviewing --

if it's limited to pretrial publicity alone, regardless of the

relationship of the young man and what his father does for

a living, then I think you have to go a little further and say

we've reached out to people in the community, people in

the community have indicated they have heard of the case,

people in the community have indicated they could not be

fair or unbiased. Not that that is a necessary component of

a change of venue, but do we have anything being asserted

in that respect?

*7 “[Defense counsel]: Your Honor, we have no evidence

to offer of that. And I would just say quickly that the

decision you have to make in something like that is if the

trial is ultimately here, those kind of -- that kind of polling

is difficult sometimes to pull off without becoming a part of

the problem yourself is -- to get anything that's statistically

significant. So, no we have not done that. And that was a

long answer to tell you that no, we don't have any more

evidence from that question that you just asked.

“....

“[Prosecutor]: Just looking at what was submitted today

-- and, like I said, I've seen that before. But what was

submitted today is a total of 17 articles. Eleven of them

were before [Iervolino] was even charged with the murder

of Nicholas Harmon. And in none of these articles -- they

were all factual. None of them state that [Iervolino] was

guilty of any crime. None of them will state or -- basically

what should happen, what the paper thinks ought to happen.

None of them state that because [the victim is] the DA's

son, he ought to be convicted. None of them state because

he's the DA's son should -- that anything should happen or

he be treated any way.

“There's two ways you prove this. I haven't heard either

one proved and it's [Iervolino's] burden to prove to the

Court that there's actual prejudice -- there's absolutely zero

proof of actual prejudice -- or that when the presumed

prejudice resulting from community saturation with which

such prejudicial proof of pretrial publicity that no impartial

jury can be selected.

“Now if we want to talk about

saturated, I think we'd all agree the

Coronavirus is saturated. That's what

saturation is, all day every day they're

talking about the Harmon family and

their loss. That just hasn't happened

Iervolino v. State, --- So.3d ---- (2023)

2023 WL 5316682

here, and it's been factual if it was

reported.”

(Supp. R. 168-75.) The prosecutor then asserted that the

prudent thing to do would be to empanel a sufficient number

of jurors and question them concerning their knowledge of

the case. A lengthy discussion between the trial court and

the parties ensued. The trial court issued a five-page order

denying the motion for a change of venue, in which it stated

that it intended to conduct a “thorough voir dire examination

of the prospective jurors.” (C. 134.)

The record reflects that there were 70 prospective jurors on

the venire. Only 18 of those prospective jurors indicated that

they had heard about the case. Those 18 prospective jurors

were questioned individually. The trial court removed six of

those prospective jurors for cause based on their knowledge

of the case and one because, the trial court said, she appeared

to be “breaking down emotionally.” (R. 413-15.)

“ ‘When requesting a change of venue, “[t]he burden

of proof is on the defendant to “show to the reasonable

satisfaction of the court that a fair and impartial trial and

an unbiased verdict cannot be reasonably expected in the

county in which the defendant is to be tried.’ ” ’ Jackson v.

State, 791 So. 2d 979, 995 (Ala. Crim. App. 2000) (quoting

Hardy v. State, 804 So. 2d 247, 293 (Ala. Crim. App. 1999),

aff'd, 804 So. 2d 298 (Ala. 2000), quoting in turn Rule

10.1(b), Ala. R. Crim. P.).

“ ‘[T]he determination of whether or not to grant a

motion for change of venue is generally left to the

sound discretion of the trial judge because he has

the best opportunity to assess any prejudicial publicity

against the defendant and any prejudicial feeling against

the defendant in the community which would make it

difficult for the defendant to receive a fair and impartial

trial.’ ” Nelson v. State, 440 So. 2d 1130, 1132 (Ala.

Crim. App. 1983). Therefore, ‘[a] trial court's ruling on a

motion for a change of venue is reviewed for an abuse of

discretion.’ Woodward v. State, 123 So. 3d 989, 1049

(Ala. Crim. App. 2011).

*8 “ ‘In connection with pretrial publicity, there are two

situations which mandate a change of venue: 1) when

the accused has demonstrated “actual prejudice” against

him on the part of the jurors; 2) when there is “presumed

prejudice” resulting from community saturation with

such prejudicial pretrial publicity that no impartial jury

can be selected.’

“ Hunt v. State, 642 So. 2d 999, 1042-43 (Ala. Crim.

App. 1993), aff'd, 642 So. 2d 1060 (Ala. 1994).

“....

“ ‘Actual prejudice exists when one or more jurors

indicated before trial that they believed the defendant was

guilty, and they could not set aside their opinions and

decide the case based on the evidence presented at trial.’

Hosch v. State, 155 So. 3d 1048, 1118 (Ala. Crim. App.

2013). ‘The standard of fairness does not require jurors

to be totally ignorant of the facts and issues involved.’

Ex parte Grayson, 479 So. 2d 76, 80 (Ala. 1985). ‘ “It is

sufficient if the juror can lay aside his impression or opinion

and render a verdict based on the evidence presented in

court....” ’

Id. (quoting

Irvin v. Dowd, 366 U.S. 717,

723, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961)).

“....

“Prejudice is presumed ‘ “when pretrial publicity

is sufficiently prejudicial and inflammatory and the

prejudicial pretrial publicity saturated the community

where the trials were held.” ’ Hunt[ v. State], 642 So. 2d

[999,] 1043 [(Ala. Crim. App. 1993)] (emphasis omitted)

(quoting

Coleman v. Kemp, 778 F.2d 1487, 1490 (11th

Cir. 1985)). ‘ “To justify a presumption of prejudice under

this standard, the publicity must be both extensive and

sensational in nature. If the media coverage is factual as

opposed to inflammatory or sensational, this undermines

any claim for a presumption of prejudice.” ’

Jones

v. State, 43 So. 3d 1258, 1267 (Ala. Crim. App. 2007)

(quoting

United States v. Angiulo, 897 F.2d 1169, 1181

(1st Cir. 1990)). ‘In order to show community saturation,

the appellant must show more than the fact “that a case

generates even widespread publicity.” ’ Oryang v. State,

642 So. 2d 979, 983 (Ala. Crim. App. 1993) (quoting

Thompson v. State, 581 So. 2d 1216, 1233 (Ala. Crim.

App. 1991)). Only when ‘the pretrial publicity has so

“pervasively saturated” the community as to make the

“court proceedings nothing more than a ‘hollow formality’

” ’ will presume prejudice be found to exist. Oryang, 642

So.2d at 983 (quoting

Hart v. State, 612 So. 2d 520,

526-27 (Ala. Crim. App.), aff'd, 612 So. 2d 536 (Ala.

Iervolino v. State, --- So.3d ---- (2023)

2023 WL 5316682

1992), quoting in turn,

Rideau v. Louisiana, 373 U.S.

723, 726, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963)). ‘This

require[s] a showing that a feeling of deep and bitter

prejudice exists in [the county] as a result of the publicity.’

Ex parte Fowler, 574 So. 2d 745, 747 (Ala. 1990).

“In determining whether presumed prejudice exists, we

look at the totality of the circumstances, including the size

and characteristics of the community where the offense

occurred; the content of the media coverage; the timing of

the media coverage in relation to the trial; the extent of

the media coverage; and the media interference with the

trial or its influence on the verdict. See, e.g.,

Skilling v.

United States, 561 U.S. 358, 130 S.Ct. 2896, 177 L.Ed.2d

619 (2010), and Luong v. State, 199 So. 3d 139, 146

(Ala. 2014). ‘[T]he “presumptive prejudice” standard is

“ ‘rarely’ applicable, and is reserved for only ‘extreme

The media coverage in this case was not as extensive as the

coverage in Luong, and this case is not one of those rare

cases where a change of venue was warranted. As the State

asserted at the pretrial hearing, the majority of the articles that

defense counsel presented were written before an arrest had

been made in the case. The articles were factual accounts of

the murder and the subsequent investigation of that murder

by law enforcement. As stated above, out of 70 prospective

jurors, only 18 had heard about the case, and only 6 of those

were removed for cause because of their knowledge of the

case. There is no indication in the record that the remaining

12 prospective jurors who had heard about the case had any

preconceived view of the case based on their exposure to any

type of media coverage. Iervolino failed to meet his burden of

establishing that he could not receive a fair and impartial trial

in St. Clair County. Therefore, the trial court properly denied

Iervolino's motion for a change of venue.

situations.’ ” ’

Whitehead v. State, 777 So. 2d 781, 801

(Ala. Crim. App. 1999), aff'd, 777 So. 2d 854 (Ala. 2000)

(quoting

Hunt, 642 So. 2d at 1043, quoting in turn,

Coleman, 778 F.2d at 1537).”

Floyd v. State, 289 So. 3d 337, 372-74 (Ala. Crim.

App. 2017).

“[T]he Alabama Supreme Court in Luong v. State, 199 So. 3d

139 (Ala. 2014), recognized the difficulty of establishing that

a motion for a change of venue is warranted based on a claim

of prejudicial pretrial publicity.” Thompson v. State, 310 So.

3d 850, 865 (Ala. Crim. App. 2018). In Luong, the defendant

was convicted of killing his four children by throwing them

off a bridge. The Alabama Supreme Court, in declining to

find that the extensive media coverage of the case warranted

a change of venue, stated:

“ ‘If, in this age of instant, mass communication, we were

to automatically disqualify persons who have heard about

an alleged crime from serving as a juror, the inevitable

result would be that truly heinous or notorious acts will go

unpunished. The law does not prohibit the informed citizen

from participating in the affairs of justice. In prominent

cases of national concern, we cannot allow widespread

publicity concerning these matters to paralyze our system.’

”

Luong, 199 So. 3d at 150 (quoting

F.2d 184, 210 (5th Cir. 1975)).

Calley v. Callaway, 519

III.

Iervolino contends that the trial court's voir dire process

violated state and federal law because, he says, it was

inadequate. He asserts that voir dire took less than one day

and that “the entire extent of the trial court's voir dire on

the threat of impartiality due to the victim's identity and

pretrial publicity was asking each panel leading questions

about whether anyone knew anything about the case or had

been exposed to any coverage of the case.” (Iervolino's brief

at p. 56.) Iervolino did not object to the trial court's method

of conducting voir dire; therefore, this issue was not properly

preserved for review, and it is subject only to plain-error

review.

“ ‘A trial court is vested with great discretion in

determining how voir dire examination will be conducted,

and that court's decision on how extensive a voir dire

examination is required will not be overturned except for

an abuse of that discretion.’

Ex parte Land, 678 So. 2d

224, 242 (Ala.), cert. denied, 519 U.S. 933, 117 S.Ct. 308,

136 L.Ed.2d 224 (1996).”

*10

Whitehead v. State, 777 So. 2d 781, 798 (Ala. Crim.

App. 1999). “The trial court controls the scope of the voir

dire examination.” King v. State, 790 So. 2d 1253, 1254 (Fla.

Dist. Ct. App. 2001). “The scope of the voir dire examination

of veniremembers is left largely to the discretion of the trial

court and will not be disturbed on appeal on the ground

Iervolino v. State, --- So.3d ---- (2023)

2023 WL 5316682

that voir dire examination was limited absent an abuse of

that discretion.” Smith v. State, 698 So. 2d 189, 198 (Ala.

Crim. App. 1996). “We give the trial court broad discretion

in determining the scope and the form in which the voir dire

questions are propounded, and the length of an inquiry, alone,

does not satisfy the high bar necessary to show an abuse of

discretion.” Thomas v. State, 454 Md. 495, 508-09, 165 A.

3d 368, 376 (2017).

As stated previously, after various prospective jurors were

excused for hardship or illness, the remaining 70 prospective

jurors were subject to voir dire examination. The prospective

jurors were questioned in a group concerning their general

qualifications and were then split into panels. They were

questioned about their knowledge of the case by the trial

court and by both the prosecutor and defense counsel. Followup questions were asked of those prospective jurors who

answered that they had heard about the case and those

prospective jurors that said they would have difficulties

voting for a sentence of death. There is no indication that voir

dire was inadequate or insufficient to disclose any prejudice

that a prospective juror may have had. The trial court did

not prevent either party from questioning the prospective

jurors on any matter and did not restrict the time either

party had to question prospective jurors. See

Broadnax

v. State, 825 So. 2d 134, 162 (Ala. Crim. App. 2000) (“A

complete review of the voir dire indicates that the method of

the examination and the precautions taken by the trial court

‘provided reasonable assurance that prejudice would have

been discovered if present.’

Haney v. State, 603 So. 2d

[368] at 402 [(Ala. Crim. App. 1991)].”). We find no error,

much less plain error, in the trial court's method of voir dire.

IV.

Iervolino contends that the trial court erred in deathqualifying prospective jurors because, he says, deathqualified juries are “significantly more prone to convict

than ordinary ones.” (Iervolino's brief at p. 92.) However,

“ ‘[a]ppellate courts in Alabama have repeatedly held that

there is no violation of state or federal law in death-qualifying

prospective jurors in a capital case, even if it results in a more

conviction-prone jury.’ ” Smith v. State, [Ms. CR-17-1014,

September 2, 2022] ––– So. 3d ––––, –––– (Ala. Crim. App.

2022) (quoting Jackson v. State, 305 So. 3d 440, 465 (Ala.

Crim. App. 2019)). Therefore, this claim is meritless.

Iervolino contends that the trial court erred in not removing

for cause prospective jurors J.A., Mi.B., B.S., R.H., and De.C.

because, he says, they were unable to be impartial. Iervolino

removed all five prospective jurors using peremptory

strikes. 6 Iervolino challenged De.C. for cause, and the trial

court denied the challenge, but he did not challenge for cause

J.A., Mi.B., B.S., or R.H. Therefore, with respect to J.A.,

Mi.B., B.S., and R.H., this issue was not properly preserved

for review and is subject only to plain-error review.

“ ‘To justify a challenge of a juror for cause there must be

a statutory ground (Ala. Code Section 12-16-150 (1975)),

or some matter which imports absolute bias or favor, and

leaves nothing to the discretion of the trial court.’ Nettles

v. State, 435 So. 2d 146, 149 (Ala. Crim. App.), aff'd,

435 So. 2d 151 (Ala. 1983). Section 12-16-150 sets out

the grounds for removal of veniremembers for cause in

criminal cases .... In addition to the statutory grounds,

there are other common-law grounds for challenging

veniremembers for cause where those grounds are not

inconsistent with the statute.

Smith v. State, [213 So.

3d 108 (Ala. Crim. App. 2000)], aff'd in pertinent part,

rev'd in part, [213 So. 3d 214] (Ala. 2003); Kinder v.

State, 515 So. 2d 55, 60 (Ala. Crim. App. 1986). Here,

we are dealing with the common-law ground for challenge

of suspicion of bias or partiality. See discussion of the

common-law grounds for challenge in

Tomlin v. State,

909 So. 2d 213 (Ala. Crim. App. 2002), remanded for

resentencing,

909 So. 2d 283 (Ala. 2003). Ultimately,

the test to be applied is whether the veniremember can

set aside his or her opinions, prejudices, or biases, and try

the case fairly and impartially, according to the law and

the evidence.

Smith v. State, supra. This determination

of a veniremember's absolute bias or favor is based on

the veniremember's answers and demeanor and is within

the discretion of the trial court; however, that discretion is

not unlimited. Rule 18.4(e), Ala. R. Crim. P., provides, in

part: ‘When a prospective juror is subject to challenge for

cause or it reasonably appears that the prospective juror

cannot or will not render a fair and impartial verdict, the

court, on its own initiative or on motion of any party, shall

excuse that juror from service in the case.’ Even proof that

a veniremember has a bias or fixed opinion is insufficient

to support a challenge for cause. A prospective juror should

Iervolino v. State, --- So.3d ---- (2023)

2023 WL 5316682

not be disqualified for prejudice or bias if it appears from

his or her answers and demeanor that the influence of that

prejudice or bias can be eliminated and that, if chosen as a

juror, the veniremember would render a verdict according

to the law and the evidence. Mann v. State, 581 So. 2d 22,

25 (Ala. Crim. App. 1991);

Minshew v. State, 542 So.

2d 307 (Ala. Crim. App. 1988).”

*11 McGowan v. State, 990 So. 2d 931, 951 (Ala. Crim.

App. 2003).

“A trial judge's finding on whether or not a particular

juror is biased ‘is based upon determinations of demeanor

and credibility that are peculiarly within a trial judge's

province.’ [Wainwright v.] Witt, 469 U.S. [412] at 429, 105

S.Ct. [844] at 855, 83 L.Ed.2d 841 [ (1985)]. That finding

must be accorded proper deference on appeal.

Id. ‘A

trial court's rulings on challenges for cause based on bias

[are] entitled to great weight and will not be disturbed on

appeal unless clearly shown to be an abuse of discretion.’

Nobis v. State, 401 So. 2d 191, 198 (Ala. Cr. App.), cert.

denied, Ex parte Nobis, 401 So. 2d 204 (Ala. 1981).”

Martin v. State, 548 So. 2d 488, 490-91 (Ala. Crim. App.

1988).

Iervolino argues that the trial court should have removed

J.A. and Mi.B. for cause because, he says, they both stated

during voir dire that they would give added weight to the

testimony of police officers. During voir dire examination

by defense counsel, both J.A. and Mi.B. answered in the

affirmative when asked if they would “put more stock,

generally speaking, in a witness who is law enforcement” and

“give a little more weight” to law-enforcement witnesses “as

opposed to a layperson.” (R. 347.) Defense counsel asked no

follow-up questions.

“Alabama law has long held that the mere fact that

a prospective juror expresses an opinion that lawenforcement officials would be more likely to tell the truth

when compared to other witnesses does not constitute a

sufficient reason for granting a challenge for cause, so

long as the juror can set aside his opinion and decide the

case based solely on the law and the evidence presented

at trial. See, e.g., Ex parte Myers, 699 So. 2d 1285, 1290

(Ala. 1997);

Knotts v. State, 686 So. 2d 431, 477

(Ala. Crim. App.), opinion after remand, 686 So. 2d 484

(Ala. Crim. App. 1995), aff'd, 686 So.2d 486 (Ala.1996),

cert. denied, 520 U.S. 1199, 117 S.Ct. 1559, 137 L.Ed.2d

706 (1997); Grimsley v. State, 678 So. 2d 1197, 1210

(Ala. Crim. App. 1996); Stephens v. State, 675 So. 2d

73, 76 (Ala. Crim. App. 1995); McCray v. State, 629 So.

2d 729, 733 (Ala. Crim. App. 1993); Perryman v. State,

558 So. 2d 972, 977 (Ala. Crim. App. 1989). It is only

where the potential juror would ‘ “unquestioningly credit

the testimony of law enforcement officers over that of

defense witnesses,” ’ that would render a prospective juror

incompetent to serve.

Uptain v. State, 534 So. 2d [686,]

687 [(Ala. Crim. App. 1988)], abrogated on other grounds,

Bethea v. Springhill Memorial Hospital, 833 So. 2d 1,

6-7 (Ala. 2002) (quoting State v. Davenport, 445 So. 2d

1190, 1193-94 (La. 1984)).”

Duke v. State, 889 So. 2d 1, 23 (Ala. Crim. App. 2002),

judgment vacated on other grounds by Duke v. Alabama, 544

U.S. 901, 125 S.Ct. 1588, 161 L.Ed.2d 270 (2005). Neither

J.A. nor Mi.B. indicated that they would “unquestioningly

credit the testimony of law enforcement officers over that of

defense witnesses.”

Graham v. State, 299 So. 3d 273, 295 (Ala. Crim. App.

2019), this Court held that the trial court should have removed

for cause a prospective juror who had indicated that she

would credit the testimony of a law-enforcement officer more

than the testimony of lay witnesses because no follow-up

questions were asked of the prospective juror and she was not

rehabilitated. However, in

Graham, the defendant had not

only preserved the issue for appellate review by challenging

the prospective juror for cause, but the prospective juror

personally knew one of the law-enforcement officers who

testified at trial and had stated that she would trust that

officer above others because of her personal relationship

which him. In this case, Iervolino did not challenge J.A. and

Mi.B. for cause, and J.A. and Mi.B. were asked only whether

they would give more credit to law-enforcement witnesses

generally, not whether they would give more credit to a

specific law-enforcement officer's testimony.

*12 “[I]t will be a rare case in which plain error is found

based on a trial court's failure to strike a juror sua sponte.”

State v. Pike, 614 S.W.3d 651, 656-57 (Mo. App. W.D. 2021).

“A majority of the federal circuit courts of appeals will

not consider a biased-juror argument if the appellant did

Iervolino v. State, --- So.3d ---- (2023)

2023 WL 5316682

not object to the allegedly biased juror during the juryselection process. See

United States v. Johnson, 688

F.3d 494, 500-01 (8th Cir. 2012);

Dawson v. Wal–Mart

Stores, Inc., 978 F.2d 205, 210 (5th Cir. 1992); United

States v. Joshi, 896 F.2d 1303, 1307–08 (11th Cir. 1990);

United States v. Reis, 788 F.2d 54, 59 (1st Cir. 1986);

United States v. Diaz–Albertini, 772 F.2d 654, 657 (10th

Cir. 1985);

United States v. Harris, 530 F.2d 576, 579–

80 (4th Cir. 1976); United States v. Ragland, 375 F.2d 471,

475 (2d Cir. 1967).

State v. Geleneau, 873 N.W.3d 373, 380-81 (Minn. App.

2015).

“[I]f a trial court strikes a juror sua sponte and the

defendant is convicted, the defendant later could challenge

his conviction on the ground that the trial court erred

in striking the juror. As the Missouri Court of Appeals

observed in holding that a trial court did not commit

plain error in failing to sua sponte strike a questionable

juror: ‘ “[t]he rule requiring contemporaneous objections

to the qualifications of jurors is well founded. It serves to

minimize the incentive to sandbag in the hope of acquittal

and, if unsuccessful, mount a postconviction attack on the

jury selection process.” ’

State v. Wright, 30 S.W.3d

906, 914 (Mo. Ct. App. 2000), quoting

815 S.W.2d 422, 423 (Mo. 1991).”

State v. Hadley,

People v. Metcalfe, 202 Ill. 2d 544, 556, 270 Ill. Dec. 69,

77, 782 N.E.2d 263, 271 (2002). “ ‘Counsel with knowledge

of a disqualification of a juror may not remain silent and

gamble on a favorable verdict and if unfavorable, raise the

matter in a motion for new trial.’ ” Fisher v. State, 587 So. 2d

1027, 1035 (Ala. Crim. App. 1991) (quoting Daniels v. State,

49 Ala. App. 654, 275 So. 2d 169, 172-73 (1973)). We find

no plain error in the trial court's not sua sponte removing for

cause prospective jurors J.A. and Mi.B.

bias against Iervolino. Therefore, we find no plain error in the

trial court's not sua sponte removing B.S. and R.H. for cause.

Iervolino argues that the trial court erred in denying his

challenge for cause as to prospective juror De.C. because, he

says, De.C. indicated that she had taught Harmon's father, the

St. Clair County District Attorney, in elementary school and

that she had spoken to friends about the case.

De.C. volunteered that she had taught the District Attorney

when he was in the first grade. When asked follow-up

questions, De.C. said that she “could make a judgment” and

be fair. (R. 211.) Later during voir dire, De.C. indicated that

she had heard about the case, but she said that she could put

that aside and base her decision strictly on the evidence in the

case.

*13 “ ‘[T]he mere fact that a prospective juror is

personally acquainted with the victim [or his family] does

not automatically disqualify a person from sitting on a

criminal jury.’ Brownlee v. State, 545 So. 2d 151, 164

(Ala. Cr. App. 1988), affirmed, 545 So. 2d 166 (Ala.),

cert. denied, 493 U.S. 874, 110 S.Ct. 208, 107 L.Ed.2d

161 (1989).... Instead, the test is ‘whether the [prospective]

juror's acquaintance with [the victim] or relative is such

that it would result in probable prejudice.’

Vaughn v.

Griffith, 565 So. 2d 75, 77 (Ala. 1990), cert. denied, 498

U.S. 1097, 111 S.Ct. 987, 112 L.Ed.2d 1072 (1991).”

Morrison v. State, 601 So. 2d 165, 168 (Ala. Crim. App.

1992).

Here, De.C.’s responses do not indicate that she was biased

against Iervolino in any way, and she made it clear that she

could be fair and base her decision solely on the evidence.

Therefore, the trial court did not err in denying Iervolino's

challenge for cause as to De.C.

Iervolino argues that the trial court should have removed

prospective jurors B.S. and R.H. for cause because B.S.

indicated that his brother and sister-in-law had been murdered

and R.H. indicated that he had been the victim of an act of road

rage. However, neither B.S. nor R.H. indicated any type of

VI.

Iervolino contends that the trial court erred in denying his

motion made pursuant to

Batson v. Kentucky, 476 U.S.

79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), because, he

Iervolino v. State, --- So.3d ---- (2023)

2023 WL 5316682

says, the State exercised its peremptory strikes in a racially

discriminatory manner.

“In evaluating a

Batson claim, a three-step process must

be followed. See

Foster v. Chatman, 578 U.S. [488], 136

S.Ct. 1737, 195 L.Ed.2d 1 (2016);

Snyder v. Louisiana,

552 U.S. 472, 476-77, 128 S.Ct. 1203, 170 L.Ed.2d 175

(2008);

Miller-El v. Cockrell, 537 U.S. 322, 328-29, 123

S.Ct. 1029, 154 L.Ed.2d 931 (2003); and

U.S. at 96-98, 106 S.Ct. 1712.

Batson, 476

“ ‘First, a defendant must make a prima facie showing

that a peremptory challenge has been exercised on the

basis of race. [ Batson,] 476 U.S. at 96-97[, 106

S.Ct. 1712]. Second, if that showing has been made,

the prosecution must offer a race-neutral basis for

striking the juror in question.

Id., at 97-98[, 106

S.Ct. 1712]. Third, in light of the parties’ submissions,

the trial court must determine whether the defendant

has shown purposeful discrimination.

S.Ct. 1712].’

“

Id., at 98[, 106

Miller-El, 537 U.S. at 328-29, 123 S.Ct. 1029.

“When a trial court does not make an express finding

that the defendant has established a prima facie case of

discrimination under the first step of the process but the

prosecution nonetheless provides reasons for its strikes

under the second step of the process, ‘this Court will review

the reasons given and the trial court's ultimate decision

on the

Batson motion without any determination of

whether the moving party met its burden of proving a prima

facie case of discrimination.’ Ex parte Brooks, 695 So. 2d

184, 190 (Ala. 1997). ...

“ ‘Within the context of

Batson, a “race-neutral”

explanation “means an explanation based on something

other than the race of the juror. At this step of the

inquiry, the issue is the facial validity of the prosecutor's

explanation. Unless a discriminatory intent is inherent in

the prosecutor's explanation, the reason offered will be

deemed race neutral.”

Hernandez v. New York, 500

U.S. 352, 360, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395

(1991).’

“ Allen v. State, 659 So. 2d 135, 147 (Ala. Crim. App.

1994) (emphasis added). ‘The second step of this process

does not demand an explanation that is persuasive, or even

plausible.’

Purkett v. Elem, 514 U.S. 765, 767-68, 115

S.Ct. 1769, 131 L.Ed.2d 834 (1995). ...

“ ‘Once the prosecutor has articulated a

nondiscriminatory reason for challenging the black

jurors, the other side can offer evidence showing that the

reasons or explanations are merely a sham or pretext.

[ People v.] Wheeler, 22 Cal.3d [258] at 282, 583 P.2d

[748] at 763-64, 148 Cal.Rptr. [890] at 906 [(1978)].

Other than reasons that are obviously contrived, the

following are illustrative of the types of evidence that

can be used to show sham or pretext:

*14 “ ‘1. The reasons given are not related to the facts

of the case.

“ ‘2. There was a lack of questioning to the challenged

juror, or a lack of meaningful questions.

“ ‘3. Disparate treatment -- persons with the same or

similar characteristics as the challenged juror were not

struck....

“ ‘4. Disparate examination of members of the venire;

e.g., a question designed to provoke a certain response

that is likely to disqualify the juror was asked to black

jurors, but not to white jurors....

“ ‘5. The prosecutor, having 6 peremptory challenges,

used 2 to remove the only 2 blacks remaining on the

venire....

“ ‘6. “[A]n explanation based on a group bias where

the group trait is not shown to apply to the challenged

juror specifically.”

Slappy [v. State], 503 So. 2d

[350] at 355 [(Fla. Dist. Ct. App. 1987)]. For instance,

an assumption that teachers as a class are too liberal,

without any specific questions having been directed to

the panel or the individual juror showing the potentially

liberal nature of the challenged juror.’

“ Ex parte Branch, 526 So. 2d 609, 624 (Ala. 1987). ‘

“The explanation offered for striking each black juror must

be evaluated in light of the explanations offered for the

prosecutor's other peremptory strikes, and as well, in light

Iervolino v. State, --- So.3d ---- (2023)

2023 WL 5316682

of the strength of the prima facie case.” ’

Ex parte Bird,

594 So. 2d 676, 683 (Ala. 1991) (quoting

Gamble v.

State, 257 Ga. 325, 327, 357 S.E.2d 792, 795 (1987)). In

other words, all relevant circumstances must be considered

in determining whether purposeful discrimination has been

shown. See

Snyder, 552 U.S. at 478, 128 S.Ct. 1203

(‘[I]n reviewing a ruling claimed to be a

Batson error,

all of the circumstances that bear upon the issue of racial

animosity must be consulted.’).

“ ‘[T]he critical question in determining whether a

[defendant] has proved purposeful discrimination at step

three is the persuasiveness of the prosecutor's justification

for his peremptory strike. At this stage, “implausible or

fantastic justifications may (and probably will) be found

to be pretexts for purposeful discrimination.” ’

Miller-

El, 537 U.S. at 339, 123 S.Ct. 1029 (quoting

Purkett,

514 U.S. at 768, 115 S.Ct. 1769). Because ‘ “[t]he trial

court is in a better position than the appellate court to

distinguish bona fide reasons from sham excuses,” ’ Harris

v. State, 2 So. 3d 880, 899 (Ala. Crim. App. 2007) (quoting

Heard v. State, 584 So. 2d 556, 561 (Ala. Crim. App.

1991)), an appellate court must give deference to a trial

court's findings and ‘ “reverse the circuit court's ruling on

the

Batson motion only if it is ‘clearly erroneous.’ ”

’Johnson v. State, 43 So. 3d 7, 12 (Ala. Crim. App. 2009)

(quoting Cooper v. State, 611 So. 2d 460, 463 (Ala. Crim.

App. 1992), quoting in turn Jackson v. State, 549 So. 2d

616, 619 (Ala. Crim. App. 1989)).”

DeBlase v. State, 294 So. 3d 154, 201-02 (Ala. Crim. App.

2018).

After challenges for cause, 56 prospective jurors remained

on the venire, 5 of whom were black. Each party had

22 peremptory strikes, with the last 3 strikes serving as

alternates, and the State struck all 5 black prospective jurors,

using its 5th, 8th, 12th, 16th, and 18th strikes to strike

black prospective jurors Y.C., S.J., J.M., J.T., and H.B. At

the conclusion of the striking process, Iervolino argued that

the State had violated

Batson by removing all black

prospective jurors from the venire. Although the trial court

did not make a finding that Iervolino had established a prima

facie case of discrimination, it requested that the State give

its reasons for striking the black jurors. Therefore, we review

the State's reasons without determining whether there was a

prima facie case of discrimination. The State indicated that it

struck Y.C. because Y.C. has an “extensive speeding” record

and had “held himself out as a mental health professional.” (R.

423.) According to the State, it had “information from the

defense that they may call a mental health professional and

[defense counsel] been seeking mental health records of the

defendant, and we do not want to have a mental health

professional on the jury.” (R. 423.) The State struck S.J.

because “[s]he has an extensive speeding history and an

extensive involvement with law enforcement in speeds over

25 miles an hour” (R. 422), and because she was wearing a

mask. (R. 424.) The State struck J.M. because, based on the

past and current lawsuits J.M. had in Talladega County, it had

a good faith belief that J.M. may not have been a resident of

St. Clair County:

*15 “[J.M.] has had contacts with Talladega County.

His family is from Talladega County. We've prosecuted

many [relatives of J.M.] in Talladega County. He also

shows civil lawsuits that are pending in Talladega County

within the last six months, so that would show that he has

some contact with Talladega County. I wonder if he's even

qualified, but you did qualify him as a juror. But out of an

abundance of caution, we didn't want to get into the fact of

whether he's lived here for six months or nine months or

how many months.”

(R. 422.) The State struck J.T. because

“[J.T.] has an extensive speeding history. He has [an]

expired tag. He's been speeding over -- in excess of 85 miles

an hour, which in this case we intend to show that the stolen

truck that [Iervolino] stole went in excess of over 85 miles

an hour and we intend to make a big deal out of the fact

that someone was speeding 80 miles an hour going down -downtown Leeds; and if he thinks that that's okay and has

done such himself, then he needs to be struck.”

(R. 423.) Finally, the State struck H.B. because H.B. was

wearing a mask. Upon questioning by the trial court, the State

indicated that it had stricken every prospective juror who

was wearing a mask and every prospective juror who had an

extensive history of speeding.

In response to the State's striking prospective jurors with

a history of speeding, defense counsel stated that he did

not “know what records the [prosecutor] has investigated,”

that defense counsel did not have “access to those traffic

offenses for all of the jurors” and that the information was “not

what we learned from the jury.” (R. 424-25.) The State then

Iervolino v. State, --- So.3d ---- (2023)

2023 WL 5316682

asserted that defense counsel “may have access to AlaCourt

[the Alabama judicial electronic filing system] as do we,

which would be a source and our source for speeding.” (R.

425.) Defense counsel had no response to the State's striking

prospective jurors for wearing a mask or for striking J.M.

because he had past and current lawsuits in Talladega County

and may not have been a resident of St. Clair County. Defense

counsel agreed that Y.C. had indicated that he had experience

in the mental-health field. The trial court denied the Batson

motion, finding that the State's strikes were not racially

motivated, after which the court recessed for the evening.

record on appeal and “ ‘[t]his Court is bound by the record on

appeal and cannot consider facts not contained in the record.’

”

McCary v. State, 93 So. 3d 1002, 1008 (Ala. Crim.

App. 2011) (quoting Morrow v. State, 928 So. 2d 315, 320

n.5 (Ala. Crim. App. 2004)). In addition, the records from

Alacourt were not presented to the trial court. We will not

find error on the part of the trial court in denying a

Batson

motion based on evidence that was not presented to it.

VII.

The following morning, the trial court revisited the Batson

motion after noting that one of the 15 empaneled jurors

was wearing a mask. The State again indicated that it had

stricken all prospective jurors wearing masks, including the

empaneled juror who was wearing a mask, who the record

reflects was the State's last strike and was an alternate juror.

The State then explained further why it had stricken all

prospective jurors who wore masks:

“When I saw those jurors and those had [masks] on, it

concerned me that they might hold it against us somehow

or if I'm up here near the rail talking, they may back up, they

may be concerned, they may be immunocompromised,

they may be concerned about the flu. But that's my

reasoning is I didn't want them distracted from this -- the

facts of this case by ‘Am I going to be endangered by the

witness who is up there started coughing on the witness

stand.’ That is a race-neutral reason.”

(R. 441-42.)

On appeal, Iervolino does not argue that the State's reasons

for its strikes of black prospective jurors were not raceneutral. Rather, he makes several arguments regarding why

he believes the State's reasons were pretextual. None of

the arguments Iervolino makes on appeal, however, were

presented to the trial court. Therefore, they were not properly

preserved for review and are subject only to plain-error

review. Suffice it to say, we have thoroughly reviewed the

record, and we find that the State's reasons for the strikes

were not pretextual and that there was no error, much less

plain error, in the trial court's denial of Iervolino's

Batson

motion. We note that with respect to the State's striking

prospective jurors with a history of speeding, Iervolino relies,

in part, on records from Alacourt that, he says, show that the

State did not strike several white jurors who had a history of

speeding. However, the records from Alacourt are not in the

*16 Iervolino contends that the trial court erred in admitting

into evidence two surveillance videos because, he says, the

State failed to present sufficient evidence to authenticate

the videos. Specifically, he challenges the admission of a

surveillance video from Bertram's home-surveillance system

depicting Iervolino at Bertram's house in the early morning

hours of November 6, 2019. He also challenges the admission

of a surveillance video of the night of November 5, 2019,

from a Comfort Inn motel next door to the Best Western motel

where the ZA construction work truck was stolen. Iervolino

did not object to the admission of either surveillance video.

Therefore, this issue was not properly preserved for review

and is subject only to plain-error review.

“There are two theories upon which photographs,

motion pictures, videotapes, sound recordings, and

the like are analyzed for admission into evidence:

the ‘pictorial communication’ or ‘pictorial testimony’

theory and the ‘silent witness’ theory. Wigmore [on

Evidence], ... § 790 [(1970 & Supp. 1991)]; McCormick

[on Evidence], ... § 214 [(1992)]; and Schroeder, [Alabama

Evidence,] ... § 11-3 [(1987 & Supp. 1988)]. The ‘pictorial

communication’ theory is that a photograph, etc., is merely

a graphic portrayal or static expression of what a qualified

and competent witness sensed at the time in question.

Wigmore, supra, § 790, and McCormick, supra, § 214.

The ‘silent witness’ theory is that a photograph, etc.,

is admissible, even in the absence of an observing or

sensing witness, because the process or mechanism by

which the photograph, etc., is made ensures reliability

and trustworthiness. In essence, the process or mechanism

substitutes for the witness's senses, and because the process

or mechanism is explained before the photograph, etc., is

admitted, the trust placed in its truthfulness comes from

the proposition that, had a witness been there, the witness

Iervolino v. State, --- So.3d ---- (2023)

2023 WL 5316682

would have sensed what the photograph, etc., records.

Wigmore, supra, § 790, and McCormick, supra, § 214.

“.... The proper foundation required for admission into

evidence of a sound recording or other medium by

which a scene or event is recorded (e.g., a photograph,

motion picture, videotape, etc.) depends upon the particular

circumstances. If there is no qualified and competent

witness who can testify that the sound recording or other

medium accurately and reliably represents what he or she

sensed at the time in question, then the ‘silent witness’

foundation must be laid. Under the ‘silent witness’ theory,

a witness must explain how the process or mechanism that

created the item works and how the process or mechanism

ensures reliability.

“....

“[Off. Benninger]: He had no way of downloading it or

anything, so I got my work iPhone out and I video-recorded

it with the iPhone.

*17 “[Prosecutor]: So you took your personal -- not

your personal, but your work iPhone video mechanism is

recording [sic], right?

“[Off. Benninger]: Yes, ma'am.

“[Prosecutor]: And is that a phone that you use in the

ordinary course of policing?

“[Off. Benninger]: Yes, ma'am.

“[Prosecutor]: And you're familiar with how that works?

“[Off. Benninger]: Yes, ma'am.

“On the other hand, when a qualified

and competent witness can testify that

the sound recording or other medium

accurately and reliably represents

what the witness sensed at the time

in question, then the foundation

required is that for the ‘pictorial

communication’ theory. Under this

theory, the party offering the item must

present sufficient evidence to meet

the ‘reliable representation’ standard,

that is, the witness must testify that

the witness has sufficient personal

knowledge of the scene or events

pictured or the sounds recorded and

that the item offered accurately and

reliably represents the actual scene or

sounds.”

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

With respect to the surveillance video from Bertram's house,

the record reflects that Moody Police Officer Christopher

Benninger viewed the video and recorded it using his cellular

telephone. Officer Benninger testified:

“[Prosecutor]: When you saw that on the video footage,

what did you do?

“[Prosecutor]: And you're familiar with how that records

and how it downloads and saves? “[Off. Benninger]: Yes,

ma'am.

“[Prosecutor]: So you pulled out your iPhone and you

actually recorded what you are seeing with your own eyes

at that residence?

“[Off. Benninger]: Yes, ma'am.”

(R. 722-723.) Officer Benninger testified that the video he

made with his phone was an accurate copy of what he

saw on Bertram's surveillance system. In addition, Bertram

testified about Iervolino and Iervolino's girlfriend coming to

his house on November 5, 2019, at around midnight. During

his testimony, the prosecutor played the video for Bertram

and asked Bertram questions about the video and what it

depicted. Bertram's testimony, in essence, verified the content

of the video that Officer Benninger had made from Bertram's

surveillance system.

With respect to the surveillance video from the Comfort Inn,

Vallabhbhai “Peter” Patel testified that he was the owner and

operator of the Comfort Inn in November 2019. He said that,

at that time, the motel had a surveillance system, that the

system had five or six cameras, that the cameras recorded the

outside of the motel, and that the motel had had the system for

approximately six years. According to Patel, he gave agents

with the Federal Bureau of Investigation (“FBI”) access to

the system and they downloaded footage from the night of

November 5, 2019. Patel testified that he watched the video

that had been downloaded and that it “accurately reflect[ed]

Iervolino v. State, --- So.3d ---- (2023)

2023 WL 5316682

the hotel landscape.” (R. 511.) Patel also testified that the

surveillance system worked accurately and had not had any

malfunctions. In addition, the video was played during the

testimony of Cody Cox, who was at the Best Western motel

the night of November 5, 2019, and he verified the contents

of the video based on what he observed that night.

Based on the testimony above, we conclude that the State

properly authenticated both surveillance videos. Therefore,

we find no error, much less plain error, in the admission of

the videos.

VIII.

Iervolino contends that the trial court erred in admitting

photographs of Harmon's injuries and of the crime

scene. Specifically, he argues that the photographs were

cumulative, irrelevant, inflammatory, and had “little to

no probative value.” (Iervolino's brief at p. 86.) In his

brief, Iervolino cites to pages 287-369 and 537-50 in

the clerk's record, 7 but he specifically challenges only

the “42 autopsy photographs ...and several additional

photographs of the deceased victim at the scene,” the “six

nearly identical photographs” showing blood on Harmon's

hands, photographs showing redness on Harmon's back,

and photographs showing a metal dowel running through

Harmon's head depicting the trajectory of the bullet.

(Iervolino's brief at p. 86.)

*18 “ ‘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. 1993), 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 368, 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). ‘ “[A]utopsy 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 1143 (Ala. 2001), judgment vacated on other

grounds, 536 U.S. 953, 122 S.Ct. 2653, 153 L.Ed.2d 830

(2002), on remand to,

851 So. 2d 453 (Ala. 2002).”

Brooks v. State, 973 So. 2d 380, 393 (Ala. Crim. App.

2007). This Court has also held that photographs of probes

through a body that show the trajectory of a bullet are

admissible. See McMillan v. State, 139 So. 3d 184, 254 (Ala.

Crim. App. 2010) (“[T]he probes showed the trajectories of

the bullets through the victim's body, which are particularly

relevant in this case because McMillan argued that the victim

was not in the truck when he was shot.”)

We have reviewed all the photographs that were admitted

into evidence and conclude that the trial court did not err in

admitting the photographs into evidence, even though some

were cumulative or gruesome.

IX.

Iervolino contends that the St. Clair District Attorney's Office

was improperly involved in his prosecution even after it had

recused itself. Specifically, he argues that the St. Clair District

Attorney's Office offered State's witness Kimberly Brown

a plea bargain for several felony charges against her in St.

Clair County in exchange for her testifying against Iervolino.

Iervolino did not raise this issue in the trial court; therefore,

it was not properly preserved for review and is subject only

to plain-error review.

*19 On cross-examination, in response to leading questions

by defense counsel, Brown indicated that she had an

“understanding with the State about [her] testimony” and that

she had been promised “leniency” on her pending felony

charges in exchange for her testimony. (R. 1001.) On redirect

examination, however, the following occurred:

Iervolino v. State, --- So.3d ---- (2023)

2023 WL 5316682

“[Prosecutor]: Where are those charges? Where are those

charges pending that you just told him about?

“[Brown]: St. Clair.

“[Prosecutor]: Okay. And am I prosecuting you for that?

“[Brown]: No, ma'am.

“[Prosecutor]: Is Mr. Giddens prosecuting you for that?

been subpoenaed to testify at Iervolino's trial and that she did

appear of her own accord.

The record does not support Iervolino's assertions that the St.

Clair County District Attorney's Office remained involved in

his prosecution after it had recused itself by offering Brown a

plea bargain in exchange for her testimony at Iervolino's trial.

Therefore, we find no error, much less plain error, as to this

claim.

“[Brown]: No, ma'am.

“[Prosecutor]: And have Mr. Giddens and I ever spoken

with you about your charges and any promises or any

benefit you would get from coming in and telling these

ladies and gentlemen some version?

“[Brown]: No, ma'am.

“[Prosecutor]: What did we tell you to tell?

“[Brown]: The truth.

“[Prosecutor]: That's what we told you to tell; isn't it?

“[Brown]: Yes, sir.

“[Prosecutor]: Did we make you -“[Brown]: Yes, ma'am.

“[Prosecutor]: -- any promise that you would get some kind

of benefit for coming in and telling them some story or

some version?

“[Brown]: No, ma'am.

“[Prosecutor]: And, so, if [defense counsel] is asking you

about a benefit or something that you've gotten from

testifying, what do you mean? You haven't gotten anything

from us.

“[Brown]:

No,

ma'am.

misunderstood. I'm sorry.”

(R. 1003-04.) On recross-examination, defense counsel asked

Brown if Guinn Conley was the person prosecuting her and

Brown said that she did not know. Brown denied ever having

a conversion with Conley about her testimony at Iervolino's

trial. On redirect examination, Brown stated that she had

Iervolino contends that the trial court erred in allowing

victim-impact evidence during the guilt phase of his trial.

Specifically, he argues that, during opening statements, the

prosecutor told the jury that Harmon was the son of the

St. Clair County District Attorney, that Harmon was called

“Boo,” and that he dreamed of being a pilot, as well

as subsequently eliciting other personal information from

Harmon's girlfriend. In one sentence in this section of his

brief, Iervolino also asserts: “In rebuttal closing arguments,

the prosecution expressly invoked the impact the crime had on

the victim's family and asked the jury to return a guilty verdict

for the victim's family. (R. 1274-76.)” (Iervolino's brief at p.

89.) Iervolino did not object to any of the now challenged

victim-impact evidence. Therefore, he failed to preserve this

issue for review and it is subject only to plain-error review.

We have reviewed the record and find no plain error.

XI.

Iervolino contends that there are “substantial omissions” in

the record on appeal that, he says, violate his constitutional

rights and hinder this Court's ability to review the claims

he presents on appeal and to review the record for plain

error. (Iervolino's brief at p. 80.) Before trial, Iervolino filed

a motion requesting that a court reporter record “any and all

proceedings before the Court,” which the trial court granted.

(C. 71.)

*20 “As we stated in

Wynn v. State, 804 So. 2d

1122, 1143-44 (Ala. Crim. App.), cert. denied, 804 So. 2d

1152 (Ala. 2001):

“ ‘[I]t should have been apparent to the defense during

the trial that the court reporter was not recording

certain sidebars.... Defense counsel could have easily

Iervolino v. State, --- So.3d ---- (2023)

2023 WL 5316682

reminded the trial court that it had granted his motion

for full recordation of the proceedings and remedied the

omissions at that time. Therefore, this error was invited

by the appellant.”

This Court found reversible error based on substantial

“Moreover, in determining whether there is reversible error

based on an omission in the transcript we use the standard

omitted from the record, and in

Hammond v. State, 665

So. 2d 970, 972-73 (Ala. Crim. App. 1995), where a large

portion of voir dire examination was missing, including the

discussed in

Ingram v. State, 779 So. 2d 1225 (Ala.

Crim. App. 1999), aff'd, 779 So. 2d 1283 (Ala. 2000), cert.

denied, 531 U.S. 1193, 121 S.Ct. 1194, 149 L.Ed.2d 109

(2001). In

Ingram, we stated:

“ ‘Where the transcript or record is incomplete, two rules

have evolved. The first applies to the situation where the

appellant is represented on appeal by the same counsel

that represented him at trial. In that case, the failure to

supply a complete record is not error per se and will not

work a reversal absent a specific showing of prejudice.

In other words, in such a case, the appellant must show

that failure to record and preserve the specific portion

of the trial proceedings complained of visits a hardship

upon him and prejudices his appeal. The second applies

to the situation where the appellant is represented by new

counsel on appeal. When he is represented on appeal

by counsel other than the attorney at trial, the absence

of a substantial and significant portion of the record,

even absent any showing of specific prejudice or error,

is sufficient to warrant reversal.’

“

779 So. 2d at 1280-81.”

Calhoun v. State, 932 So. 2d 923, 941-42 (Ala. Crim. App.

2005).

“ ‘We do not advocate a mechanistic approach to situations

involving the absence of a complete transcript of the

trial proceedings. We must, however, be able to conclude

affirmatively that no substantial rights of the appellant

have been adversely affected by the omissions of the

transcript. When ... a substantial and significant portion of

the record is missing, and the appellant is represented on

appeal by counsel not involved at trial, such a conclusion

is foreclosed...’ ”

Ex parte Godbolt, 546 So. 2d 991, 997 (Ala. 1987) (quoting

United States v. Selva, 559 F.2d 1303, 1305-06 (5th Cir.

1977)).

omissions in the record in

Green v. State, 796 So. 2d 438

(Ala. Crim. App. 2001), where both a sentencing hearing

and a hearing on the trustworthiness of a witness were

State's challenges to six prospective jurors. However, in Ex

parte Harris, 632 So. 2d 543, 546 (Ala. 1993), the Alabama

Supreme Court found that the failure to transcribe a portion

of voir dire examination and several bench conferences was

not reversible error. The Court explained:

*21 “We have carefully reread those portions of the

record where each omission occurred and have reread the

several pages before and the several pages after those

omitted portions, to ascertain, if possible, the content and

substance of the discussions not transcribed, so as to

determine whether ‘a substantial and significant portion

of the record’ is missing and to determine whether we

could ‘conclude affirmatively that no substantial rights of

[Harris] have been adversely affected by the omissions

from the transcript.’ [Ex parte Godbolt, 546 So. 2d 991

(Ala. 1987)].

“From this extensive review, and given the particular facts

of this case, we have concluded that the untranscribed

portions of the proceedings did not constitute ‘a substantial

and significant portion of the record’ and we have

‘conclud[ed] affirmatively that no substantial rights of

[Harris] have been adversely affected by the omissions

from the transcript.’ Rather, we have concluded that the

trial court's rulings related to certain omitted portions of the

proceedings were adverse to the state and that the content or

substance of the other discussions that occurred out of the

hearing of the court reporter was general in nature and had

no effect on the outcome of the case. We conclude, under

the facts of this case, that the error in failing to ensure that

the entire proceedings were transcribed was harmless.”

632 So. 2d at 546.

In his brief, Iervolino cites 21 off-the-record bench

conferences that were not recorded and included in the record

on appeal, and he argues that the missing bench conferences

are “substantial.” (Iervolino's brief at p. 79.) However, we

have reviewed the entire record, paying particular attention

to each page cited by Iervolino and the surrounding pages,

Iervolino v. State, --- So.3d ---- (2023)

2023 WL 5316682

and we conclude that, in many of the instances, the trial

court indicated that it needed to discuss scheduling or

procedural matters with the attorneys. And the only reference

in Iervolino's brief to a specific bench-conference is the

following:

“For example, the trial court referenced an ‘off the record'

discussion of [Iervolino's] guilty pleas to theft and breaking

and entering, including ‘what, if any, limiting instruction

would be given and what would be subject to comment

of counsel.’ The court then revealed that ‘the Court was

requested to give a limited charge as to what evidence could

be or not [be] used.’ There is no such discussion or request

in the record, which hinders this Court's consideration of

claims presented on appeal and plain error review.”

(Iervolino's brief at p. 80.) Although Iervolino appears to

argue that the discussion concerning a limiting instruction on

the use of the convictions was not part of the record, the record

refutes this assertion. There was a discussion concerning this

instruction during the charge conference, and defense counsel

indicated he was satisfied with the instruction the trial court

indicated it was going to give to the jury. (R. 1210-14.) We

conclude that the untranscribed portions of the proceedings

did not constitute a substantial and significant portion of the

record, and we are confident that “no substantial rights of

[Iervolino] have been adversely affected by the omissions

from the transcript.”

Ex parte Harris, 632 So. 2d at 546.

Indeed, the trial court took every precaution to ensure that

the record was complete for appeal and that its rulings, and

the rationale for those rulings, were contained in the record

that was certified to this Court. Therefore, Iervolino is due no

relief on this claim.

XII.

in a light most favorable to the prosecution.” ’ Ballenger

v. State, 720 So. 2d 1033, 1034 (Ala. Crim. App. 1998),

quoting Faircloth v. State, 471 So. 2d 485, 488 (Ala. Crim.

App. 1984), aff'd, 471 So. 2d 493 (Ala. 1985). ‘ “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.” ’ Farrior v. State, 728 So. 2d 691,

696 (Ala. Crim. App. 1998), quoting Ward v. State, 557 So.

2d 848, 850 (Ala. Crim. App. 1990). '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.’

parte Bankston, 358 So. 2d 1040, 1042 (Ala. 1978).”

Gavin v. State, 891 So. 2d 907, 974 (Ala. Crim. App.

2003).

“ ‘[T]he element of intent, being a state of mind or mental

purpose, is usually incapable of direct proof, [and] it may

be inferred from the character of the assault, the use

of a deadly weapon and other attendant circumstances.’

Johnson v. State, 390 So. 2d 1160, 1167 (Ala. Cr. App.),

cert. denied, 390 So. 2d 1168 (Ala. 1980). Accord Fears v.

State, 451 So. 2d 385, 387 (Ala. Cr. App. 1984); Young v.

State, 428 So. 2d 155, 158 (Ala. Cr. App. 1982).”

Jones v. State, 591 So. 2d 569, 574 (Ala. Crim. App. 1991).

Moreover:

*22 Iervolino contends that the evidence was insufficient

to sustain his conviction for capital murder because, he says,

the State failed to prove that he had the specific intent to kill.

Iervolino challenged the sufficiency of the evidence in his

motion for a judgment of acquittal, made at the close of the

State's case, and in his postjudgment motion for a judgment

of acquittal and/or motion for a new trial.

“[C]ircumstantial evidence alone may be sufficient in

conjunction with other facts and circumstances which tend

to connect the accused with the commission of the crime to

sustain a conviction. Dolvin v. State, 391 So. 2d 133 (Ala.

“ ‘ “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

Scanland v. State, 473 So. 2d 1182, 1185 (Ala. Crim. App.

1985).

1980) and cases there;

Cumbo v. State, 368 So. 2d 871

(Ala. Crim. App. 1979), cert. denied, 368 So. 2d 877 (Ala.

1979).”

Iervolino v. State, --- So.3d ---- (2023)

2023 WL 5316682

As explained earlier in this opinion, the evidence at trial

established that, while Iervolino was speeding away from the

Best Western motel in a stolen truck, he was armed with a

gun that he fired several times. Iervolino admitted to Stewart

that he had shot someone and there were numerous witnesses

who testified concerning Iervolino's state of mind on the night

of the murder and how angry and aggressive he was acting.

In addition, the evidence established that Harmon was found

dead inside his vehicle after the vehicle had crashed and

that Harmon and Iervolino had been on the same road at the

same time. Viewed in a light most favorable to the State, the

evidence was more than sufficient to establish that Iervolino

had the specific intent to kill Harmon.

XIII.

*23 Iervolino contends that the prosecutor engaged in

misconduct during closing arguments at both the guilt phase

and penalty phase of his trial.

“In reviewing allegedly improper prosecutorial comments,

conduct, and questioning of witnesses, the task of this

Court is to consider their impact in the context of the

particular trial, and not to view the allegedly improper acts

in the abstract. Whitlow v. State, 509 So. 2d 252, 256 (Ala.

Cr. App. 1987); Wysinger v. State, 448 So. 2d 435, 438

(Ala. Cr. App. 1983); Carpenter v. State, 404 So. 2d 89, 97

(Ala. Cr. App. 1980), cert. denied, 404 So. 2d 100 (Ala.

1981). Moreover, this Court has also held that statements of

counsel in argument to the jury must be viewed as delivered

in the heat of debate; such statements are usually valued by

the jury at their true worth and are not expected to become

factors in the formation of the verdict. Orr v. State, 462 So.

2d 1013, 1016 (Ala. Cr. App. 1984);

Sanders v. State,

426 So. 2d 497, 509 (Ala. Cr. App. 1982).”

Bankhead v. State, 585 So. 2d 97, 106–07 (Ala. Crim. App.

1989).

“ ‘The relevant question is whether the prosecutor's

comments so infected the trial with unfairness as to

make the resulting conviction a denial of due process.’

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). Comments made by the prosecutor must be

evaluated in the context of the whole trial.

Duren v.

State, 590 So. 2d 360, 364 (Ala. Cr. App. 1990), aff'd, 590

So.2d 369 (Ala. 1991), cert. denied, 503 U.S. 974, 112 S.Ct.

1594, 118 L.Ed.2d 310 (1992). ‘Prosecutorial misconduct

is subject to a harmless error analysis.’ Bush v. State, 695

So. 2d at 131 (citations omitted); Smith v. State, 698 So. 2d

at 203 (citations omitted).”

Simmons v. State, 797 So. 2d 1134, 1162 (Ala. Crim. App.

1999). “A criminal conviction is not to be lightly overturned

on the basis of a prosecutor's comments standing alone.”

United States v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038,

84 L.Ed.2d 1 (1985). “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.”

105.

Bankhead, 585 So. 2d at

Iervolino did not object to many of the remarks by the

prosecutor that he now challenges on appeal. Those remarks

that were not objected to in the trial court were not properly

preserved for review and are subject only to plain-error

review. “ ‘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.’ ”

Kuenzel v.

State, 577 So. 2d 474, 489 (Ala. Crim. App. 1990), quoting

Johnson v. Wainwright, 778 F.2d 623, 629 n.6 (11th Cir.

1985). “Prosecutorial misconduct during closing arguments

rarely constitutes plain error that requires reversal.” People

v. Walters, 148 P. 3d 331, 335 (Colo. App. 2006). “ ‘[T]he

impropriety of the argument must be gross indeed in order for

this Court to hold that a trial judge abused his discretion in not

recognizing and correcting ex mero motu an argument which

defense counsel apparently did not believe was prejudicial

when he heard it.’

State v. Johnson, 298 N.C. 355, 369,

259 S.E.2d 752, 761 (1979).”

State v. Gregory, 340 N.C.

365, 424, 459 S.E.2d 638, 672 (1995).

*24 Iervolino argues that the prosecutor improperly

referenced another case during rebuttal closing argument at

the guilt phase of the trial. The following occurred:

Iervolino v. State, --- So.3d ---- (2023)

2023 WL 5316682

“[Prosecutor]: You know, I've been doing this a long

time. ... I never, ever am ceased to be amazed when I hear

a defense argument and I wonder if he's been watching the

same trial I watched.... It's an alternative world is what that

was. I haven't heard any theory on why did [Harmon] stop?

If he's just going home and that he just happened to meet

up with this killer over here, he just happened to meet up -nothing going on between these two and he took that yield

and he's headed home. Why did he stop? Why did he stop

and give this person -- get this, now, I'm on the side of the

road with a gun, I'm waiting. I'm waiting here because I'm

going to execute him, as he said. I need him to stop here.

Well, aren't I lucky because he did. And then I don't just

step out and blast away through the window. I walk around

behind the car and come around and get the exact angle shot

that he did. Does that sound like it was concocted based on

that interview he had with him? The investigator. Because

you've got -- all of that has to fall into play for that to be

true. And it's ridiculous is what it is. You've got all of this

evidence. You know, I told you I was the DA -- I've been

a DA in Talladega and as I'm sitting there listening to this,

a case I had come to mind. We had a little -- pretty little

six-year-old girl who had disclosed somebody in the house,

a male, had done something inappropriate. And me and

Mrs. Kilgore were talking to her and Mrs. Kilgore posed

the question to her, this beautiful little girl -- and she had

this wonderful little southern drawl. And she posed the

question, well, what if he said -“[Defense counsel]: Objection -“[Prosecutor]: -- he didn't do it?

“[Defense counsel]: -- if the Court please. We have no

evidence in this case about a six-year-old girl or inference

from it.

“THE COURT: Overruled. I'll let him get where he's going.

“[Prosecutor]: [Defense counsel] referred to a movie.

“THE COURT: I understand.

“[Prosecutor]: I didn't hear any evidence of a Demi Moore

movie in the trial.

“THE COURT: I was here. Proceed.

“[Defense counsel]: Touche'.

“[Prosecutor]: Anyway, when she

posed the question, well, what if he

said he didn't do it? In that beautiful

little drawl, she said, well, he did. And

I'm sitting there thinking those three

words sum up this case. Well, he did.

You can offer all of the alternative

realities you want to and it can't change

the facts of this case.”

(R. 1269-70.) (emphasis on portion complained of by

Iervolino).

When viewed in context, it is clear that the prosecutor's

reference to another case was part of a proper comment on the

weakness of the defense's alternative theories of the crime.

“ ‘One of the most prevalent arguments to a jury is that

the position and argument of the adversary is unwarranted,

silly, fanciful or illogical.’Crook v. State, 276 Ala. 268,

270, 160 So. 2d 896, 897 (1963). ‘[A] prosecutor's remarks

during closing argument pointing out the flaws in the

defense's theory of the case do not constitute improper

argument.’ Reeves v. State, 807 So. 2d 18, 45 (Ala. Crim.

App. 2000).”

*25

Minor v. State, 914 So. 2d 372, 423-24 (Ala. Crim.

App. 2004). There was no error in the prosecutor's comment.

Iervolino argues that the prosecutor twice misstated the law

during closing arguments at the guilt phase.

First, Iervolino asserts that the prosecutor incorrectly stated

the law regarding the specific intent to kill. Iervolino did

not object to the comment he now challenges on appeal and,

after reviewing the record, we conclude that, in context, the

prosecutor's argument on the intent to kill was not error, much

less plain error.

Second, during the prosecutor's rebuttal closing argument, the

following occurred:

Iervolino v. State, --- So.3d ---- (2023)

2023 WL 5316682

“[Prosecutor]: You know, the law is not just in some law

book. The law is not just what judges say it is. The law is

not just what lawyers say it is or prosecutors. The law is

what you say it is. The law is what you say it is -“[Defense counsel]: Objection, if the -“[Prosecutor]: -- in your county -“[Defense counsel]: -- please. A misstatement of the law.

“THE COURT: What's the objection?

“[Defense counsel]: He told the jury that the law wasn't

what you said, the law is what they find. I suspect in your

charge you're going to tell the ladies and gentlemen of the

jury that you will charge them with the law.

“THE COURT: Ladies and gentlemen of the jury, you are

the decider of the facts. I will tell you what the law is to

apply that law to the facts as you hear them. [Prosecutor]

you can proceed.

“[Prosecutor]: Thank you. If I could

finish. The law, based on your verdict,

is what you want the law to be in

your county. Your verdict tells us

what you want the law to be about

somebody who -- by all evidence

in this case, ... Harmon did nothing

wrong to anybody. That somebody

would take a gun and shoot him. We'll

know what you think the law is.”

Iervolino argues that, during the guilt phase closing argument,

the prosecutor improperly “sought to bolster the reliability

of key witnesses by making explicit assurances of their

veracity and indicating that information the jury did not

have supported their testimony.” (Iervolino's brief at p. 69.)

Specifically, he argues that the prosecutor stated several

times that certain witnesses had no reason to lie and were

telling the truth. Iervolino did not object to any of the

prosecutor's comments in this regard and, after reviewing

the record, we find no error, much less plain error, in the

prosecutor's comments. In this regard, we note that, although

“ ‘prosecutors must avoid making personal guarantees as to

the credibility of the state's witnesses,’ ” DeBruce v. State, 651

So. 2d 599, 611 (Ala. Crim. App. 1993) (quoting

Ex parte

Parker, 610 So. 2d 1181, 1187 (Ala. 1992)), “[a] distinction

must be made between an argument by the prosecutor

personally vouching for a witness, thereby bolstering the

credibility of the witness, and an argument concerning the

credibility of a witness based upon the testimony presented at

trial.” DeBruce, 651 So. 2d at 610.

*26 “It is not improper for a prosecutor to ask the jury

to draw inferences and to exercise common sense. State

v. Fauci, 282 Conn. [23,] 37, 917 A.2d 978[, 988 (2007)].

A prosecutor may urge the jury to find for stated reasons

that a witness was truthful or untruthful. See

State v.

Stevenson, 269 Conn. 563, 585, 849 A.2d 626 (2004). A

prosecutor may also ‘remark on the motives that a witness

may have to lie, or not to lie, as the case may be.’ (Internal

quotation marks omitted.)

(R. 1277-78.)

The prosecutor misstated the law when he said that the jury

determined what the law was. However, after Iervolino's

objection, the trial court immediately instructed the jury that

the jury would decide the facts and that the trial court would

instruct the jury as to what the law was. “[T]he trial court

acted immediately to ... instruct the jury, these actions of

the trial court erased any possible prejudicial effect to the

appellant. ...” Glenn v. State, 395 So. 2d 102, 109 (Ala. Crim.

App. 1980).

Id.”

State v. Felix, 111 Conn. App. 801, 811-12, 961 A.2d 458,

467 (2008). In this case, the prosecutor was not personally

vouching for the credibility of witnesses.

Iervolino argues that, during rebuttal closing argument at the

guilt phase of the trial, the prosecutor improperly commented

on his right against self-incrimination by stating:

“[A] stolen truck that they pled guilty to Monday. Do

you think that's not a trial strategy? Because what did

Mrs. Manning say? He could have pled guilty any time

Iervolino v. State, --- So.3d ---- (2023)

2023 WL 5316682

in the last two years and he waited until Monday so these

lawyers could get up here and argue he's this great and

wonderful man, he's owned up to what he did. Monday. Not

at arraignment. Not two years ago. Not a year ago. Not six

months. That ain't got nothing to do with this case.”

Iervolino in a good light for accepting responsibility for the

stolen work truck by pointing out to the jury that Iervolino

had waited to do so until just before the capital-murder trial

started. The above argument was not an improper comment

on Iervolino's right against self-incrimination.

(R. 1273-74.) Iervolino did not object to this comment.

During closing argument, defense counsel stated the

following:

“Now you've heard an awful lot of evidence about the fact

that a truck was taken from the Best Western. We've pled to

that and we did that. That truck was burglarized and it was.

Mr. Iervolino did that. He's pled to that. He didn't shoot

anyone.”

(R. 1261.)

“It is well settled that ‘a] prosecutor has the right to “reply

in kind” to statements made by defense counsel in the

defense's closing argument.’ Newton v. State, [78 So. 3d

458, 478] (Ala. Crim. App. 2009) (citations and quotations

omitted). ‘ “When the door is opened by defense counsel's

argument, it swings wide, and a number of areas barred to

prosecutorial comment will suddenly be subject to reply.”

’

Davis v. State, 494 So. 2d 851, 855 (Ala. Crim.

App. 1986) (quoting DeFoor, Prosecutorial Misconduct in

Closing Argument, 7 Nova L.J. 443, 469-70 (1982-83)).

Further, a prosecutor's rebuttal argument is ‘viewed as

having been made in the heat of the debate, and such a

remark is usually valued by the jury at its true worth and

not expected to become a factor in the formulation of the

verdict.’ McGowan v. State, 990 So. 2d 931, 974 (Ala.

Crim. App. 2003).”

Vanpelt v. State, 74 So. 3d 32, 82 (Ala. Crim. App. 2009).

“Closing arguments are rarely scripted with precision.”

People v. Tillery, 231 P.3d 36, 44 (Colo. App. 2009).

“Prosecutors have latitude to respond in rebuttal closing

to arguments raised by defense counsel in their closing.”

State v. Mars, 116 Hawaii 125, 142, 170 P.3d 861, 878

(2007). “[A] prosecutor is allowed to respond to defense

arguments with logical force and vigor.”

Commonwealth

v. Chmiel, 585 Pa. 547, 889 A. 2d 501, 544 (2005).

After reviewing the record, we find no error, much less plain

error, in the prosecutor's argument. The prosecutor had the

right to reply in kind to defense counsel's attempt to paint

*27 Iervolino argues that, during rebuttal closing argument

at the penalty phase of the trial, the prosecutor improperly

commented on his failure to testify when the prosecutor said

that Harmon was unable to testify because he was dead.

Iervolino did not object to the comment he now challenges

on appeal.

The record reflects that defense counsel stated the following

during closing argument at the penalty phase:

“[I]f I've said or done anything so far to insinuate that this is

some sort of balancing act between the defendant's hard life

and Nicholas Sloan Harmon's good life -- that's not it at all.

I would never do that. This is a tragedy what has happened

in this case and I know nothing but good about the victim,

but that's not the purpose of this, so it's not about that.”

(R. 1446.) Defense counsel further stated that the penalty

phase of the trial had “nothing to do with the victim. Nothing

to do with your verdict.” (R. 1449.) In rebuttal, the prosecutor

stated:

“But he mentioned the victim a couple of times and I'm

going to say one thing -- last thing and I'm going to

sit down. The State is always one witness short in a

murder case because the defendant has killed the witness.

I speak for Sloan Harmon because he can't. We're always

one witness short and it's always the same reasons, the

defendant kills him.”

(R. 1453.)

In addressing a prosecutor's comment on a defendant's failure

to testify, the Alabama Supreme Court has stated:

“Alabama law distinguishes direct comments from indirect

comments and establishes that a direct comment on the

defendant's failure to testify mandates the reversal of the

defendant's conviction, if the trial court failed to promptly

cure that comment.

Whitt v. State, [370 So. 2d 736

(Ala. 1979)]; Ex parte Yarber, [375 So. 2d 1231 (Ala.

Iervolino v. State, --- So.3d ---- (2023)

2023 WL 5316682

1979)]; Ex parte Williams, [461 So. 2d 852 (Ala. 1984)];

Ex parte Wilson, [571 So. 2d 1251 (Ala. 1990)]. On the

other hand, ‘covert,’ or indirect, comments are construed

against the defendant, based upon the literal construction

of Ala. Code 1975, § 12-21-220, which created the ‘virtual

identification doctrine.’ Ex parte Yarber, 375 So. 2d at

1234. Thus, in a case in which there has been only an

indirect reference to a defendant's failure to testify, in

order for the comment to constitute reversible error, there

must have been a virtual identification of the defendant

as the person who did not become a witness. Ex parte

Yarber, 375 So. 2d at 1234; Ex parte Williams, supra;

parte Wilson, supra;

Ex parte Purser, [607 So. 2d 301

(Ala. 1992)]. A virtual identification will not exist where

the prosecutor's comments were directed toward the fact

that the State's evidence was uncontradicted, or had not

been denied. See Beecher v. State, 294 Ala. 674, 682, 320

So. 2d 727, 734 (1975); Ex parte Williams, supra;

parte Purser, supra. Yet, in such circumstances, it becomes

important to know whether the defendant alone could have

provided the missing evidence.

“A challenged comment of a

prosecutor made during closing

arguments must be viewed in the

context of the evidence presented

in the case and the entire closing

arguments made to the jury -- both

defense counsel's and the prosecutor's.

Ex parte Land, [678 So. 2d 224

(Ala. 1996)]; Windsor v. State, 683 So.

2d 1021, 1023 (Ala. 1994); Ex parte

Musgrove, 638 So. 2d 1360, 1368

(Ala. 1993), cert. denied, 513 U.S. 845,

115 S.Ct. 136, 130 L.Ed.2d 78 (1994).”

*28 Ex parte Brooks, 695 So. 2d 184, 188-89 (Ala. 1997).

Wiggins v. State, 193 So. 3d 765 (Ala. Crim. App.

2014), this Court found no error in a similar comment by

the prosecutor that, because the victim could not speak for

himself, the prosecutor had to speak for him. We stated:

“This Court has upheld a prosecutor's comment in closing

that he speaks for the victim's family. ‘[W]e find no

reversible error in a brief statement suggesting that

the prosecutory attorney speaks for the victim's family.'

Henderson v. State, 583 So. 2d 276, 286 (Ala. Crim.

App. 1990). See also

Sanchez v. State, 41 P. 3d 531,

535 (Wyo. 2002) (‘The prosecutor merely told the jury that

it had the opportunity to speak for the victim. We do not

perceive the comment as being an improper community

outrage appeal or that it prejudiced [the defendant]

unfairly.’);

State v. Braxton, 352 N.C. 158, 204,

531 S.E.2d 428, 455 (2000) (‘This Court has previously

found no gross impropriety requiring intervention ex mero

motu when a prosecutor has argued that he speaks for the

victim.’).”

193 So. 3d at 809.

Here, the prosecutor's comment was neither a direct nor an

indirect comment on Iervolino's failure to testify and did not

constitute error, much less plain error.

Iervolino argues that, during closing argument at the penalty

phase of the trial, the prosecutor “improperly denigrated

the mitigation expert” and “misstate[d] the law” when he

“implied that the jury should not consider evidence presented

by the mitigation expert because her personal beliefs about

the death penalty would disqualify her from serving on a

capital jury.” (Iervolino's brief at pp. 72-73.) Iervolino also

argues that the prosecutor improperly compared the victim's

rights to his rights and “improperly ‘impl[ied] that the system

coddles criminals by providing them with more procedural

protections than their victims’ ” by “characteriz[ing] the jury

potentially finding a mitigating circumstance as ‘punishing’

the victim.” (Iervolino's brief at pp. 72-74.) Iervolino did not

object to the prosecutor's comments in this regard, and we find

no error, much less plain error.

In closing argument, the prosecutor discussed and disputed

the evidence the mitigation expert had detailed in her

testimony. The prosecutor stated, in relevant part:

“And you've heard evidence from the mitigation expert

about a bad childhood and all of the things that go into

Iervolino v. State, --- So.3d ---- (2023)

2023 WL 5316682

that and the drug use and all the things. And that's just

simply for the nonstatutory aggravating circumstance[s] ...

And also a circumstance of -- based on -- I guess based

on all of this bad childhood that you -- that he could not

appreciate the criminal conduct or conform that to the law.

Now I thought about it during lunch. Now what I heard

in that was -- yesterday, you heard [the other prosecutor's]

theme of the argument was that two people -- two men,

one doing everything right and one doing everything wrong

-- is that Nicholas Sloan Harmon appeared to be doing

everything right while the defendant appeared to be doing

everything wrong. But by finding that mitigating factor, it's

almost to me as if you are punishing Sloan Harmon twice.

He's punished with death by the defendant, but now we're

going to punish him again and the defendant not get the

appropriate punishment because he had a bad childhood

and [Harmon] had a good one. ...

*29 “And what really bothered me

was this: [The mitigation expert]

doesn't believe in the death penalty.

And that's fine. If you do, fine. If

you don't, fine. Those are personal

decisions. But if she does not, she's not

qualified to be a juror in the case like

you are, but she's up here telling you

-- not qualified to be a juror -- what a

juror ought to do and that just bothered

me. It just does. I think you know what

to do. That's why I just said common

sense. Your common sense is going to

tell you what to do.”

(R. 1442-43.)

Contrary to Iervolino's belief, the prosecutor's argument did

not imply that the jury should not consider his mitigating

evidence, nor did it improperly compare his rights to

the victim's rights. Rather, when viewed in context, the

prosecutor's argument was that the evidence presented by

Iervolino was not mitigating or, if it was, that it should be

given little weight. “A prosecutor has the right to argue the

weight of the evidence presented and to impeach the defense's

evidence.”

App. 1999).

Maples v. State, 758 So. 2d 1, 54 (Ala. Crim.

“It is well settled that the ‘State is not required to agree with

the defendant that the evidence offered during the penalty

phase is sufficiently mitigating to preclude imposition

of the death sentence[, and] the State is free to argue

that the evidence is not mitigating at all.’

State v.

Storey, 40 S.W.3d 898, 910-11 (Mo. 2001). Thus, ‘ “[a]

prosecutor may present an argument to the jury regarding

the appropriate weight to afford the mitigating factors

offered by the defendant.” ’ Vanpelt [v. State], 74 So. 3d

[32,] 90 [(Ala. Crim. App. 2009)] (quoting Malicoat v.

Mullin, 426 F.3d 1241, 1257 (10th Cir. 2005)). That is, ‘the

prosecutor, as an advocate, may argue to the jury that it

should give the defendant's mitigating evidence little or no

weight.’

Mitchell v. State, 84 So. 3d 968, 1001 (Ala.

Crim. App. 2010) (citing

Storey, 40 S.W.3d at 910–11).”

Wimbley v. State, 191 So. 3d 176, 240 (Ala. Crim. App.

2014), judgment vacated on other grounds by Wimbley v.

Alabama, 578 U.S. 1009, 136 S.Ct. 2387, 195 L.Ed.2d 760

(2016).

Moreover, “[a] prosecutor may argue in closing any evidence

that was presented at trial.”

Williams v. State, 627 So.

2d 994, 996 (Ala. Crim. App. 1992). On cross-examination,

Iervolino's mitigation expert testified, without objection,

that she did not believe in the death penalty under any

circumstances, and this testimony was a proper subject of

comment by the prosecutor.

XIV.

Iervolino also raises several challenges to the trial court's jury

instructions at both the guilt phase and penalty phase of his

trial.

“ ‘A trial court has broad discretion in formulating its

jury instructions, provided those instructions accurately

reflect the law and the facts of the case.’

Pressley v.

State, 770 So. 2d 115, 139 (Ala. Crim. App. 1999), aff'd,

770 So. 2d 143 (Ala. 2000). A ‘jury charge must be

construed as a whole and the language must be construed

reasonably.’

Ingram v. State, 779 So. 2d 1225, 1258

(Ala. Crim. App. 1999), aff'd, 779 So. 2d 1283 (Ala. 2000).

‘ “Hypercriticism should not be indulged in construing

Iervolino v. State, --- So.3d ---- (2023)

2023 WL 5316682

charges of the court ...; nor fanciful theories based on the

vagaries of the imagination advanced in the construction

and weight you give that evidence in this case is solely to

your good discretion.”

of the court's charge.” ’

Pressley, 770 So. 2d at 139

(quoting Addington v. State, 16 Ala. App. 10, 19, 74

So. 846 (1916)). '[W]e must evaluate instructions like a

(R. 1295-96.) Because Iervolino did not object to the trial

court's instruction, this issue was not properly preserved for

review and is subject only to plain-error review. We find no

plain error.

reasonable juror may have interpreted them.’

Ingram,

779 So. 2d at 1258. A court's charge ‘must be given a

reasonable -- not a strained -- construction,’

Williams

v. State, 710 So. 2d 1276, 1305 (Ala. Crim. App. 1996),

aff'd, 710 So. 2d 1350 (Ala. 1997), and ‘ “must be taken as

a whole, and the portions challenged are not to be isolated

therefrom or taken out of context, but rather considered

together.” ’ Self v. State, 620 So. 2d 110, 113 (Ala. Crim.

App. 1992) (quoting Porter v. State, 520 So. 2d 235, 237

(Ala. Crim. App. 1987)). ‘When reviewing a trial court's

jury instructions, we must view them as a whole, not in

bits and pieces, and as a reasonable juror would have

interpreted them.’ Johnson v. State, 820 So. 2d 842, 874

(Ala. Crim. App. 2000), aff'd, 820 So. 2d 883 (Ala. 2001).

Moreover, plain error in jury instructions ‘ “occurs only

when there is a reasonable likelihood that the jury applied

the instruction in an improper manner.” ’

Williams, 710

So. 2d at 1306 (quoting

United States v. Chandler, 996

F.2d 1073, 1085 (11th Cir. 1993)).”

*30

2017).

Floyd v. State, 289 So. 3d 337, 439 (Ala. Crim. App.

Iervolino argues that the trial court erred in not giving a

limiting instruction to the jury regarding his convictions for

theft and unlawful breaking and entering a vehicle in relation

to the stolen work truck. Iervolino did not object on this

ground at trial and, in fact, he twice indicated -- once during

the charge conference and again at the conclusion of the trial

court's oral charge to the jury at the guilt phase of the trial -that he was satisfied with the instruction the trial court gave,

which reads:

“You've heard evidence that the defendant entered a plea of

guilty to the charges or to the charged offenses, unlawful

breaking and entering a vehicle and theft of property first

degree. These criminal charges, like all criminal charges,

have their own individual elements independent of each

other and independent of any other case. What relevance

In his brief, Iervolino does not identify exactly what type of

limiting instruction he believes the trial court should have

given, and he cites two separate lines of cases involving

limiting instructions. First, Iervolino cites Ex parte Minor,

780 So. 2d 796, 803 (Ala. 2000), and its progeny. In

Ex parte Minor, the Alabama Supreme Court held that

it was plain error not to give a limiting instruction to

the jury that a defendant's prior convictions could not be

considered as substantive evidence of the defendant's guilt

when the prosecutor had used those convictions to impeach

the defendant's credibility during his testimony at trial.

However, as explained in our statement of facts at the

beginning of this opinion, Iervolino engaged in a crime spree

that started with breaking and entering a vehicle, continued

to stealing that vehicle, murdering Harmon, and then firing

a weapon at law enforcement. Iervolino's actions in relation

to the stolen work truck, and his subsequent guilty-plea

convictions for theft and unlawful breaking and entering a

vehicle, were part of the res gestae of the capital murder and

were admissible as substantive evidence of Iervolino's guilt.

Therefore,

Ex parte Minor and its progeny do not apply

here. As the Alabama Supreme Court recognized in Johnson

v. State, 120 So. 3d 119 (Ala. 2006):

“It is contradictory and inconsistent to allow, on the one

hand, evidence of Johnson's prior bigamy conviction and

prior bad acts as substantive evidence of the offense

with which she was charged [capital murder of a witness

who was going to testify before a grand jury in the

bigamy prosecution against Johnson], yet, on the other

hand, to require a limiting instruction instructing the

jury that it cannot consider the evidence as substantive

evidence that Johnson committed the charged offense.

Other jurisdictions that have considered this issue have

concluded that a limiting instruction is not required when

evidence of other crimes or prior bad acts is properly

admitted as part of the res gestae of the crime with which

the defendant is charged. See People v. Coney, 98 P.3d

930 (Colo. Ct. App. 2004) (holding that evidence of other

offenses or acts that are part and parcel of the charged

offense is admissible as res gestae and may be admitted

Iervolino v. State, --- So.3d ---- (2023)

2023 WL 5316682

without a limiting instruction);

State v. Long, 173 N.J.

138, 171, 801 A.2d 221, 242 (2002) (evidence of the

defendant's actions ‘served to paint a complete picture

of the relevant criminal transaction’ and therefore was

admissible, and a limiting instruction was unnecessary

because the evidence was admitted under the res gestae

exception); and

Camacho v. State, 864 S.W.2d 524,

535 (Tex. Crim. App. 1993) (holding the evidence of

the extraneous offenses showed the context in which the

criminal act occurred, i.e., the res gestae, and was therefore

admissible and not subject to the requirement of a limiting

instruction).”

*31 Johnson v. State, 120 So. 3d 1119, 1129-30 (Ala. 2006).

Second, Iervolino cites

Huddleston v. United States, 485

U.S. 681 691-92, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988),

and

Ex parte Billups, 86 So. 3d 1079, 1085-86 (Ala.

2010), and its progeny. In

Ex parte Billups, the Alabama

Supreme Court, relying on

Huddleston, held that it was

plain error for the trial court to instruct the jury that it could

consider evidence of collateral acts for all the purposes in

Rule 404(b), Ala. R. Evid., including those purposes that were

implausible or not at issue in the case. However, the Alabama

Supreme Court “expressly limited the holding in that case

to the ‘particular circumstances of [that] case,’ ” which, it

said, were “extreme.”

R.C.W. v. State, 168 So. 3d 102,

117-19 (Ala. 2014) (quoting

Ex parte Billups, 86 So. 3d

at 1086). Those same extreme circumstances are not present

here. Moreover, this Court has refused to apply

Billups outside its specific facts. See

Ex parte

Russell v. State, 272

So. 3d 1134, 1186-88 (Ala. Crim. App. 2017), and

Boyle

v. State, 154 So. 3d 171, 211-12 (Ala. Crim. App. 2013) (both

holding that there was no error on the part of the trial court

in not instructing the jury that it could consider evidence of

collateral crimes only as evidence of intent and motive).

Iervolino argues that the trial court's jury instruction during

the guilt phase of the trial on reasonable doubt was flawed

because, he says, it lessened the State's burden of proof

and violated the United States Supreme Court's holding

Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328,

112 L.Ed.2d 339 (1990). Specifically, he argues that the

instruction contained the terms “mere guess or opinion”

and “a mere fanciful, vague, conjectural, or speculative

doubt.” (Iervolino's brief at p. 93, 111 S.Ct. 328.) Iervolino

did not object to the court's jury instruction on reasonable

doubt. Therefore, this issue was not properly preserved for

review and is subject only to plain-error review. We find no

error, much less plain error, in the trial court's reasonabledoubt instruction. As the State correctly argues in its brief, this

Court has previously upheld virtually identical instructions.

See Albarran v. State, 96 So. 3d 131, 191 (Ala. Crim. App.

2011);

Lewis v. State, 24 So. 3d 480, 517-19 (Ala. Crim.

App. 2006).

Iervolino argues that the trial court erred in instructing the

jury during the penalty phase of the trial that, “[i]f you

believe that the State's offered evidence outweighs or is

more convincing than the mitigating evidence offered by

[Iervolino], then that mitigating evidence should not be

considered in sentencing.” (R. 1460.) According to Iervolino,

this instruction “precluded the jury from giving full effect to

the mitigating evidence in violation of clear Supreme Court

precedent.” (Iervolino's brief at p. 84.) Because Iervolino

did not object to the instruction, this issue was not properly

preserved for review and is subject only to plain-error review.

We find no error, much less plain error, in this instruction.

The trial court's instructions during the penalty phase of the

trial were thorough and exhaustive. In context, the trial court

stated, in relevant part:

*32 “[T]he burden of proof is on the State to convince

each of you beyond a reasonable doubt as to the existence

of any aggravating circumstances to be considered by

you in determining what the punishment is in this case.

This means that before you can reach a verdict that the

defendant's punishment be death, each and every one

of you must be convinced beyond a reasonable doubt

based on the evidence that at least one of the aggravating

circumstances exist. If you are not unanimously convinced

that one and the same aggravating circumstance exists

beyond a reasonable doubt based on the evidence, then

you must return a verdict sentencing the defendant to life

Iervolino v. State, --- So.3d ---- (2023)

2023 WL 5316682

imprisonment without the possibility of parole regardless

of whether there are any mitigating circumstances. ...

“In the event you do not find that any aggravating

circumstance has been proven by the State, you need

not concern yourself with the mitigating circumstances in

this case. If you find beyond a reasonable doubt that the

aggravating circumstance on which I instructed you does

exist in this case, then you must proceed to consider the

mitigating circumstances.

“....

“The laws of this state further provide that mitigating

circumstances shall not be limited to those I just listed

but shall also include any aspect of the defendant's

character or background, any circumstances surrounding

the offense, and any other relevant mitigating evidence

that the defendant offers in support for a sentence of life

imprisonment without parole. If the factual existence of

any evidence offered by the defendant in mitigation is

in dispute, the State shall have the burden of disproving

the factual existence of the disputed mitigating evidence

by a preponderance of the evidence. The preponderance

of the evidence standard requires the State, in order to

negate the existence of disputed mitigating evidence, to

offer evidence of greater weight or evidence that is more

convincing than that offered by the defendant. If you

believe that the State's offered evidence outweighs or is

more convincing than the mitigating evidence offered by

the defendant, then that mitigating evidence should not be

considered in sentencing. On the other hand, if you believe

that the State's offered evidence is of less or equal weight

or is less convincing than the mitigating evidence offered

by the defendant, then that mitigating evidence should be

considered in sentencing.

“....

“.... The process of weighing the aggravating

circumstances and the mitigating circumstances against

each other in order to determine the proper punishment is

not a mathematical process. In other words, you should

not merely total the number of aggravating circumstances

and compare that number to the total number of mitigating

circumstances. The law of this state recognizes that it

is possible in at least some situations that one or a few

aggravating circumstances might outweigh a larger number

of mitigating circumstances.

“The law of this state also recognizes

that it is possible in at least

some situations that a large number

of aggravating circumstances might

not outweigh one or more few

mitigating circumstances. In other

words, the law contemplates that

different circumstances may be given

different weights or values in

determining the sentence in a case

and you, the jury, are to decide what

weight or value is to be given to a

particular circumstance in determining

the sentence in light of all other

circumstances in the case.”

(R. 1456-63; emphasis on portion complained of by

Iervolino.)

The trial court's instructions mirror the Alabama Pattern

Jury Instructions: Criminal Proceedings, Capital Murder,

Penalty Phase Capital 18+, effective after passage of

Act No. 2017-131, Ala. Acts 2017 (adopted September

27, 2018) (as found at http://judicial.alabama.gov/library/

juryinstructions as of the date of this opinion). And, contrary

to Iervolino's belief, the single statement about which he

complains did not unconstitutionally preclude the jury from

considering mitigating evidence he presented. Rather, the

trial court properly instructed the jury to consider the

mitigating evidence and to determine whether the State

had disproved the mitigating evidence. The complained-of

statement properly informed the jury that if, and only if, the

State disproved a mitigating circumstance by a preponderance

of the evidence should the jury then not consider that

mitigating circumstance in determining sentence. This is a

correct statement of the law regarding the State's burden

of disproving a mitigating circumstance and it is not

constitutionally unsound.

*33 Iervolino argues that the trial court erred in instructing

the jury at the penalty phase of the trial on only one statutory

mitigating circumstance, specifically, the capacity of the

defendant to appreciate the criminality of his conduct or

Iervolino v. State, --- So.3d ---- (2023)

2023 WL 5316682

to conform his conduct to the requirements of law was

substantially impaired, § 13A-5-51(6), Ala. Code 1975. He

argues that the trial court should have also instructed the jury

on the mitigating circumstance that “the capital offense was

committed while the defendant was under the influence of

extreme mental or emotional disturbance.” § 13A-5-51(2),

Ala. Code 1975.

The record reflects that Iervolino requested that the trial court

instruct the jury on § 13A-5-51(6), but that he did not request

that the court instruct the jury on § 13A-5-51(2). Indeed,

when asked during the charge conference if § 13A-5-51(6)

was the only statutory mitigating circumstance on which

Iervolino wanted an instruction, defense counsel stated that

they had “discussed that with Iervolino and he's prepared to

go on the record to say that's consistent with what his wishes

would be.” (R. 1433.) Also, during closing argument at the

penalty phase, defense counsel mentioned only the mitigating

circumstance in § 13A-5-51(6), Ala. Code 1975. Although

counsel argued in closing that Iervolino had had problems as a

child and had PTSD due to the loss of a leg, counsel made no

argument that, at the time of the crime, Iervolino was under

the inf luence of extreme mental or emotional disturbance.

“ 'Under the doctrine of invited error, a defendant cannot

by his own voluntary conduct invite error and then seek

to profit thereby.’ Phillips v. State, 527 So. 2d 154, 156

(Ala. 1988). ‘The doctrine of invited error applies to deathpenalty cases and operates to waive any error unless the

error rises to the level of plain error.’ Snyder v. State, 893

So. 2d 488, 518 (Ala. Crim. App. 2003).”

Robitaille v. State, 971 So. 2d 43, 59 (Ala. Crim. App. 2005).

Moreover, “[t]he trial judge had no burden to recognize a

statutory mitigating circumstance not presented by the proffer

to the jury.” Pressley v. State, 770 So. 2d 115, 141-42 (Ala.

Crim. App. 1999). “We have previously held that the trial

court did not commit plain error when it did not sua sponte

instruct the jury on a statutory mitigating circumstance the

appellant had not offered.” Hosch v. State, 155 So. 3d 1048,

1086 (Ala. Crim. App. 2013). We find no error, much less

plain error, in the trial court's not instructing the jury on the

mitigating circumstance in § 13A-5-51(2), Ala. Code 1975.

Iervolino argues that the trial court erred in instructing the jury

during the penalty phase of the trial that his prior conviction

for assault in the second degree was a violent felony for

purposes of the aggravating circumstance in § 13A-5-49(2),

Ala. Code 1975, that the defendant was previously convicted

of another capital offense or a felony involving the use or

threat of violence. Specifically, he argues that it was up to

the jury to determine whether the prior conviction was a

violent felony and that the trial court's instruction preempted

the jury's factfinding role in violation of the United States

Supreme Court's holdings in

Hurst v. Florida, 577 U.S.

92, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and

Ring v.

Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556

(2002). Because Iervolino did not object to the instruction,

this issue was not properly preserved for review and is subject

only to plain-error review. We find no error, much less plain

error, in the court's instruction.

As the State correctly argues, there is no scenario under which

Iervolino's prior conviction was not a violent felony. Iervolino

was charged and convicted of second-degree assault under

§ 13A-6-21(a)(4), Ala. Code 1975, which requires physical

injury to the victim. As this Court explained in rejecting a

similar claim in Jackson v. State, 305 So. 3d 440 (Ala. Crim.

App. 2019):

*34 “Jackson argues that the trial court erred in instructing

the jury ‘that the crime of robbery in the first degree is

a felony involving the use or threat of violence to the

person.’ (R. 2194.) Specifically, he argues that, pursuant to

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348,

147 L.Ed.2d 435 (2000),

Ring v. Arizona, 536 U.S. 584,

122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and

Hurst

v. Florida, 577 U.S. 92, 136 S.Ct. 616, 193 L.Ed.2d

504 (2016), it was for the jury to determine whether his

prior conviction for first-degree robbery was a felony

involving the use or threat of violence and, thus, whether

the aggravating circumstance that he had previously been

convicted of a felony involving the use or threat of violence

existed. Jackson did not raise this issue in the trial court.

Therefore, we review this c l aim for plain error. See Rule

45A, Ala. R. App. P.

“ ‘ “In setting out the standard for plain error review

of jury instructions, the court in

United States v.

Chandler, 996 F.2d 1073, 1085, 1097 (11th Cir. 1993),

cited

Boyde v. California, 494 U.S. 370, 380, 110

Iervolino v. State, --- So.3d ---- (2023)

2023 WL 5316682

S.Ct. 1190, 108 L.Ed.2d 316 (1990), for the proposition

that ‘an error occurs only when there is a reasonable

likelihood that the jury applied the instruction in an

second-degree murder based on a verdict where two jurors

had voted not guilty. The Court held that, under the Sixth

Amendment to the United States Constitution, “[a] jury must

improper manner.’

Williams v. State, 710 So. 2d

1276, 1306 (Ala. Cr. App. 1996), aff'd, 710 So. 2d 1350

(Ala. 1997), cert. denied, 524 U.S. 929, 118 S.Ct. 2325,

141 L.Ed.2d 699 (1998).” ’

reach a unanimous verdict in order to convict.”

590 U.S.

at ––––, 140 S.Ct. at 1395. The Court further held:

“

Broadnax v. State, 825 So. 2d 134, 196 (Ala. Crim.

App. 2000), aff'd,

825 So. 2d 233 (Ala. 2001) (quoting

Pilley v. State, 789 So. 2d 870, 882-83 (Ala. Crim.

App. 1998), rev'd on other grounds, 789 So. 2d 888 (Ala.

2000)). Moreover, ‘[t]he absence of an objection in a case

involving the death penalty does not preclude review of the

issue; however, the defendant's failure to object does weigh

against his claim of prejudice.’

2d 852, 855 (Ala. 1998).

Ex parte Boyd, 715 So.

“As the State correctly argues, there is no scenario where

the crime of robbery in the first degree is not a felony

involving the use or threat of violence.

“....

“Because first-degree robbery is a Class A felony that

requires either the use or the threat of force and that requires

either that the defendant be armed with a deadly weapon

or dangerous instrument or cause serious physical injury

to another, first-degree robbery necessarily constitutes ‘a

felony involving the use or threat of violence to the person.’

§ 13A-5-49(2), Ala. Code 1975. Accordingly, we find no

error, plain or otherwise, in the trial court's instruction in

this regard.”

Jackson, 305 So. 3d at 497-98.

XV.

Iervolino contends that the jury's death verdict violates the

United States Supreme Court's decision in

Ramos v.

Louisiana, 590 U.S. ––––, 140 S.Ct. 1390, 206 L.Ed.2d 583

(2020), because it was not unanimous.

The United States Supreme Court in

Ramos v. Louisiana

considered a Louisiana law that allowed for a verdict of guilt

without a unanimous finding. Ramos had been convicted of

“There can be no question either that the Sixth

Amendment's unanimity requirement applies to state

and federal criminal trials equally. This Court has long

explained that the Sixth Amendment right to a jury

trial is ‘fundamental to the American scheme of justice’

and incorporated against the States under the Fourteenth

Amendment. This Court has long explained, too, that

incorporated provisions of the Bill of Rights bear the same

content when asserted against States as they do when

asserted against the federal government. So if the Sixth

Amendment's right to a jury trial requires a unanimous

verdict to support a conviction in federal court, it requires

no less in state court.”

*35

Ramos, 590 U.S. at ––––, 140 S.Ct. at 1397

(footnotes omitted). The issue in

Ramos was whether

a jury could convict a defendant of a crime with a

nonunanimous verdict, not whether a jury could sentence

a defendant with a nonunanimous verdict. Indeed, the

Court recognized in

Ramos that “only two States are

potentially affected by our judgment,” specifically Louisiana

and Oregon, because those were the only two states that

permitted a conviction with a nonunanimous jury verdict.

590 U.S. at ––––, 140 S.Ct. at 1406.

As the United States Court of Appeals for the Fifth Circuit

has noted:

“The Supreme Court recently held ‘the Sixth Amendment's

unanimity requirement applies to state and federal criminal

trials equally.’

Ramos v. Louisiana, ––– U.S. ––––,

140 S. Ct. 1390, 1397, 206 L.Ed.2d 583 (2020). But

‘the Sixth Amendment's right to a jury trial requires a

unanimous verdict to support a conviction,’ not a sentence.

Id. (emphasis added). In other words, a jury must be

unanimous on the factfinding underlying a sentence, but

not on the sentence actually imposed. See

Ring v.

Arizona, 536 U.S. 584, 609, 122 S.Ct. 2428, 153 L.Ed.2d

556 (2002) (finding a jury vote required for the ‘factfinding

necessary’ for a sentence but not the sentence itself). Here,

Ruiz's jury was unanimous on the factfinding underlying

Iervolino v. State, --- So.3d ---- (2023)

2023 WL 5316682

his conviction and sentence, including the special fact

issues at the sentencing phase. Because Ruiz's conviction

meets the Sixth Amendment's unanimity requirement,

Ramos is of no moment.”

Ruiz v. Davis, 819 F.App'x 238, 246 n.9 (5th Cir. 2020)(not

selected for publication in the Federal Reporter). Alabama's

capital statute requires the jury to unanimously find the

existence of an aggravating circumstance before a capital

defendant is eligible for the death penalty. In other words,

jury unanimity on the factfinding underlying a death sentence

is required, which complies with

Ring v. Arizona, 536

U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and its

progeny. Jury unanimity as to the sentence actually imposed is

not required. Therefore, the jury's nonunanimous 10-2 verdict

sentencing Iervolino to death does not violate

Ramos.

XVI.

Although no longer required by Rule 45A, Ala. R. App. P.,

we have nonetheless reviewed the record in this case and we

find no plain error or defect in the guilt phase of the trial.

Section 13A-5-53, Ala. Code 1975, provides, in relevant

part:

“(a) In any case in which the death penalty is imposed,

in addition to reviewing the case for any error involving

the conviction, the Alabama Court of Criminal Appeals,

subject to review by the Alabama Supreme Court, shall

also review the propriety of the death sentence. This

review shall include the determination of whether any error

adversely affecting the rights of the defendant was made in

the sentence proceedings, whether the trial court's findings

concerning the aggravating and mitigating circumstances

were supported by the evidence, and whether death was

the proper sentence in the case. If the court determines

that an error adversely affecting the rights of the defendant

was made in the sentence proceedings or that one or

more of the trial court's findings concerning aggravating

and mitigating circumstances were not supported by the

evidence, it shall remand the case for new proceedings

to the extent necessary to correct the error or errors. If

the appellate court finds that no error adversely affecting

the rights of the defendant was made in the sentence

proceedings and that the trial court's findings concerning

aggravating and mitigating circumstances were supported

by the evidence, it shall proceed to review the propriety of

the decision that death was the proper sentence.

*36 “(b) In determining whether death was the proper

sentence in the case the Alabama Court of Criminal

Appeals, subject to review by the Alabama Supreme Court,

shall determine:

“(1) Whether the sentence of death was imposed under

the influence of passion, prejudice, or any other arbitrary

factor;

“(2) Whether an independent weighing of the

aggravating and mitigating circumstances at the

appellate level indicates that death was the proper

sentence; and

“(3) Whether the sentence of death is excessive or

disproportionate to the penalty imposed in similar cases,

considering both the crime and the defendant.

“(c) The Court of Criminal Appeals shall explicitly address

each of the three questions specified in subsection (b) of

this section in every case it reviews in which a sentence of

death has been imposed.”

Section 13A-5-53(a) requires this Court to determine

“whether any error adversely affecting the rights of the

defendant was made in the sentence proceedings.” In effect,

this Court is required by

§ 13A-5-53(a) to review the

penalty phase of the trial for plain error. It is unclear whether

the amendment to Rule 45A making plain-error review

discretionary with this Court supersedes the mandatory plainerror review required by

§ 13A-5-53(a). However, it is

not necessary for us to make that determination because,

as explained earlier in this opinion, this Court chooses to

exercise its discretion and to review the entire record for plain

error in all cases in which the death penalty has been imposed.

We have reviewed the record, and we find no plain error

defect in the penalty phase of the trial.

Section 13A-5-53(a) also requires this Court to determine

“whether the trial court's findings concerning the aggravating

and mitigating circumstances were supported by the

evidence.” When the legislature removed the final sentencing

decision from the trial court and placed it in the hands of

the jury by Act No. 2017-131, Ala. Acts 2017, it amended

§ 13A-5-47, Ala. Code 1975, to remove subsection (d),

Iervolino v. State, --- So.3d ---- (2023)

2023 WL 5316682

which required the trial court to make specific findings

of fact regarding the existence or nonexistence of each

aggravating circumstance in § 13A-5-49, Ala. Code 1975,

each mitigating circumstance in § 13A-5-51, Ala. Code 1975,

and any additional mitigating circumstances offered by the

defendant pursuant to § 13A-5-52, Ala. Code 1975. Now,

§ 13A-5-47(b), Ala. Code 1975, requires the trial court

to make specific findings of fact regarding the existence or

nonexistence of aggravating circumstances and mitigating

circumstances only in cases in which jury sentencing is

waived. Because jury sentencing was not waived in this

case, the trial court was not required to make specific

findings of fact regarding aggravating circumstances and

mitigating circumstances. In addition, Alabama's capitalsentencing statutes do not require the jury to render verdicts

on the mitigating circumstances it found to exist and the

jury did not return special verdicts regarding mitigating

circumstances. Because we do not know which mitigating

circumstances, if any, the jury found to exist, this Court cannot

determine whether those circumstances were supported by the

evidence. However, the jury did render a unanimous verdict

finding one aggravating circumstance -- that Iervolino had

previously been convicted of a crime involving the use or

threat of violence, specifically, assault in the second degree,

see § 13A-5-49(2), Ala. Code 1975 -- and that aggravating

circumstance is supported by the evidence.

*37 Finally,

§ 13A-5-53(a) requires this Court to

determine “whether death was the proper sentence in the case”

and

§ 13A-5-53(b) sets out three questions this Court must

answer to make that determination.

Section 13A-5-53(b)

(1) requires this Court to determine “[w]hether the sentence of

death was imposed under the influence of passion, prejudice,

or any other arbitrary factor.” We have thoroughly reviewed

the record and we find that Iervolino's sentence was not

imposed under the influence of passion, prejudice, or any

other arbitrary factor.

Section 13A-5-53(b)(2) requires this Court to determine

“[w]hether an independent weighing of the aggravating and

mitigating circumstances at the appellate level indicates

that death was the proper sentence.” This section has

been interpreted as requiring this Court to “ ‘reweigh the

aggravating and mitigating circumstances as found by the

trial court.’ ” Ex parte Lewis, 24 So. 3d 540, 546 (Ala.

As already explained, the trial court was not required to

make specific findings of fact regarding the existence or

nonexistence of aggravating circumstances and mitigating

circumstances in this case, and Alabama's capital-sentencing

statutes do not require the jury to render verdicts regarding

mitigating circumstances. Without knowing which mitigating

circumstances were found by the jury to exist, it is impossible

for this Court to perform this part of our mandatory review of

the death sentence in this case.

Finally,

§ 13A-5-53(b)(3) requires this Court to

determine “[w]hether the sentence of death is excessive or

disproportionate to the penalty imposed in similar cases,

considering both the crime and the defendant.” Iervolino

was convicted of capital murder for shooting Harmon while

Harmon was inside a vehicle. See § 13A5-40(17), Ala. Code

1975. Similar crimes have been punished capitally throughout

Alabama. See, e.g., Young v. State, [Ms. CR-17-0595, August

6, 2021] ––– So. 3d –––– (Ala. Crim. App. 2021); Capote v.

State, 323 So. 3d 104 (Ala. Crim. App. 2020); Dotch v. State,

67 So. 3d 936 (Ala. Crim. App. 2010); and

940 So. 2d 331 (Ala. Crim. App. 2005).

Irvin v. State,

After thoroughly reviewing the record, we conclude that death

was the proper sentence in this case.

Based on the foregoing, we affirm Iervolino's capital-murder

conviction and his sentence of death.

AFFIRMED.

Windom, P.J., and McCool and Cole, JJ., concur. Kellum, J.,

concurs specially, with opinion. Minor, J., recuses himself.

KELLUM, Judge, concurring specially.

Although I authored the main opinion for this Court, I write

specially for two reasons.

First, I agree with both Justice Shaw and Justice Wise in their

opinions dissenting from the amendment to the plain-error

rule in Rule 45A, Ala. R. App. P. As former members of this

Court for many years, both Justice Shaw and Justice Wise are

well acquainted with the plain-error rule and its importance

in death-penalty appeals. As Justice Shaw explained in his

opinion dissenting from the amendment to Rule 45A:

2009) (quoting

Roberts v. State, 735 So. 2d 1244, 1269

(Ala. Crim. App. 1997), aff'd, 735 So. 2d 1270 (Ala. 1999)).

Iervolino v. State, --- So.3d ---- (2023)

2023 WL 5316682

“I see no compelling reason to repeal the mandatory plainerror review provided under Rule 45A, Ala. R. App. P.

The Alabama Court of Criminal Appeals is well-suited

to conduct such a review on direct appeal, and if there

is reversible error in a case in which the death penalty

has been imposed, it should be detected and resolved

sooner rather than later. If such error is detected in

subsequent state or federal postconviction litigation and

relief is granted, which can occur many, many years after

trial, the State, because of the passage of time and its

effect on the evidence and witnesses, may be substantially

hindered in prosecuting a new trial and obtaining another

sentence of death. Further, because of the limitations

of postconviction proceedings, including those involving

ineffective-assistance-of-counsel claims, such proceedings

may provide a defendant less effective remedies than plainerror review on direct appeal: ineffective-assistance-ofcounsel claims have unique restrictions, and constitutional

violations are barred from review in Rule 32, Ala. R. Crim.

P., proceedings if they could have been, but were not, raised

at trial or on direct appeal. Rule 32.2(a)(3) & (5), Ala. R.

Crim. P.

*38 “I have personally conducted

many plain-error reviews of records

in death-penalty cases, and it concerns

me that no longer will the fact that a

plain-error review occurred on direct

appeal add to the confidence in a

capital conviction and sentence of

death. In my view, a thorough plainerror review of a death-penalty case

on direct appeal serves the interests

of both the State and the defendant.

Mandatory plain-error review under

Rule 45A has existed for 44 years; I see

no need for its unsolicited demise.”

See pages CT.R-9 to CT.R-14 in that volume of the Alabama

Reporter containing opinions from 350-352 So. 3d for the

order amending Rule 45A, Ala. R. App. P., and the special

writings to that order.

I, too, see no reason to depart from the long-standing practice

of conducting plain-error review of the entire record in cases

in which the death penalty has been imposed. I agree that

plain-error review not only serves the interests of both the

State and the defendant and ensures confidence in the capitalmurder conviction and death sentence, but it is vital for

detecting and resolving errors at the earliest possible time in

what is often a many years-long process as the conviction and

sentence make their way through both state and federal courts.

Although as Justice Wise noted in her opinion dissenting from

the amendment to Rule 45A, “plain-error review on direct

appeal places a burden on the Court of Criminal Appeals

and requires the use of judicial resources,” I believe it is

important for this Court to continue to shoulder the burden of

reviewing the entire record for plain error in order to ensure

confidence in the outcome of cases in which the death penalty

is imposed. After all, as Justice Wise recognized, “in these

cases, the defendants’ very lives are at stake, and ... such

cases are entitled to heightened review on direct appeal.” For

the reasons expressed by Justice Shaw and Justice Wise in

their opinions dissenting from the amendment to Rule 45A,

I agree with this Court's decision to continue reviewing the

entire record for plain error in cases in which the death penalty

is imposed despite the fact that plain-error review is now

discretionary.

Second, as explained in the main opinion, now that Alabama's

capital-sentencing statutes have been amended to make the

jury the sentencer (unless jury sentencing is waived), it

is impossible for this Court to reweigh the aggravating

circumstances and the mitigating circumstances as part of

our statutorily mandated review of the death penalty. The

jury is not required to render verdicts regarding which

mitigating circumstances it found to exist and, in fact, it

would be impossible to impose such a requirement because

jury unanimity is not required with respect to mitigating

circumstances. Therefore, I encourage the legislature to

amend

§ 13A-5-53, Ala. Code 1975, to remove from

this Court's review of a death sentence the requirement that

this Court reweigh the aggravating circumstances and the

mitigating circumstances.

All Citations

--- So.3d ----, 2023 WL 5316682

Iervolino v. State, --- So.3d ---- (2023)

2023 WL 5316682

Footnotes

Iervolino was charged with capital murder after April 11, 2017, the effective date of Act No. 2017-131, Ala.

Acts 2017, which amended

§§ 13A-5-45,

13A-5-46, and

13A-5-47, Ala. Code 1975, to, among other

things, remove the trial court's authority to override a jury's sentencing verdict, thereby making the jury the

final sentencing authority.

We point out that Harmon is the son of St. Clair County District Attorney Lyle Harmon. Therefore, the St. Clair

County District Attorney's Office recused itself from prosecuting the case against Iervolino, and all the judges

in St. Clair County recused themselves from presiding over the case. Pursuant to Art. VI, Section 149, Ala.

Const. 1901, and § 12-1-14, Ala. Code 1975, the Chief Justice of the Alabama Supreme Court appointed a

special judge, Talladega County Presiding Circuit Judge Chad E. Woodruff, to preside over the case, and

the Talladega County District Attorney's Office prosecuted the case in St. Clair County.

The employee of ZA construction who was assigned to the stolen truck testified that a handgun that belonged

to him, a Glock 9 mm, was in the truck when it was stolen.

As explained later in this opinion, the amendment to Rule 45A does not relieve this Court of its duty to review

the propriety of the death sentence in accordance with

§ 13A-5-53(b), Ala. Code 1975.

The State filed its brief in this case before the amendment to Rule 45A, Ala. R. App. P.

R.H. ultimately served as an alternate juror.

The photographs contained on pages 287-369 show the following: State's Exhibit 1 is an autopsy photograph

of Harmon that shows a close up of his face; State's Exhibits 2-4 show Harmon's covered body on a gurney;

State's Exhibits 5 through 19 are photographs of Harmon's body before the autopsy; State's Exhibits 20

through 26 are photographs of the clothing that Harmon was wearing when he was shot; State's Exhibit 30 is

a photograph of evidence collected at autopsy; State's Exhibit 31 is a photograph of a fingerprint card made

at the autopsy; State's Exhibits 32 and 33 are photographs of blood evidence collected at the autopsy; State's

Exhibit 34 is a photograph of a palm print made at the autopsy; State's Exhibits 35 and 36 are photographs

of blood samples collected at the autopsy; State's Exhibits 37 through 48 are photographs showing various

injuries to Harmon's body; State's Exhibit 49 is a photograph showing a probe of the path of the bullet; State's

Exhibits 50 and 51 are photographs showing injuries to Harmon's body. The photographs on pages C. 537-50

show the following: State's Exhibit number 157 is a photograph of the inside of Harmon's car; State's Exhibits

158 and 159 are photographs of Harmon's body in his vehicle; State's Exhibit 160 is a photograph of blood

splatter on a car window; State's Exhibits 161 and 162 are photographs showing Harmon inside his vehicle;

State's Exhibit 163 is a photograph of Harmon after his body was taken out of his vehicle.

End of Document

ALABAMA COURT OF CRIMINAL APPEALS

October 27, 2023

CR-21-0283

Michael Dale Iervolino v. State of Alabama (Appeal from St. Clair Circuit Court:

CC-20-426)

NOTICE

You are hereby notified that on October 27, 2023, the following action was

taken in the above-reference cause by the Court of Criminal Appeals:

Application for Rehearing Overruled.

D. Scott Mitchell, Clerk

Appendix B:

Denial of Certiorari by the

Alabama Supreme Court

IN THE SUPREME COURT OF ALABAMA

April 19, 2024

SC-2023-0827

Ex parte Michael Dale Iervolino. PETITION FOR WRIT OF

CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re:

Michael Dale Iervolino v. State of Alabama) (St. Clair Circuit Court: CC20-426; Criminal Appeals: CR-21-0283).

CERTIFICATE OF JUDGMENT

WHEREAS, the petition for writ of certiorari in the above

referenced cause has been duly submitted and considered by the

Supreme Court of Alabama and the judgment indicated below was

entered in this cause on April 19, 2024:

Writ Denied. No Opinion. Bryan, J. -- Parker, C.J., and Shaw,

Wise, Sellers, Mendheim, Stewart, Mitchell, and Cook, JJ., concur.

NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS

HEREBY ORDERED that this Court's judgment in this cause is certified

on this date. IT IS FURTHER ORDERED that, unless otherwise ordered

by this Court or agreed upon by the parties, the costs of this cause are

hereby taxed as provided by Rule 35, Ala. R. App. P.

I, Megan B. Rhodebeck, certify that this is the record of the judgment of the Court, witness

my hand and seal.

Clerk, Supreme Court of Alabama

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.