# Appendix — Brownfield v. Alabama > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2310%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2010 - **Citation:** 562 U.S. 1003 ## Text IN THE SUPREME COURT OF ALABAMA February 19, 2010 1070225 Ex parte James Ben Brownfield, Jr. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: James Ben Brownfield, Jr. v. State of Alabama) (Jackson Circuit Court: CC02-99; CC02-100; CC02-101; Criminal Appeals: CR-04-0743). CERTIFICATE OF JUDGMENT WHEREAS, the ruling on the application for rehearing filed in this case and indicated below was entered in this cause on February 19, 2010. Application Overruled. No Opinion. Stuart, J.— Cobb, C.J., and Lyons, Woodall, Smith, Bolin Parker. and Murdock, JJ., concur. Shaw, Jd., recuses himself. WHEREAS, the appeal in the above referenced cause has been duly submitted and considered by the Supreme Court of Alabama and the judgment indicated below wa entered in thi on December 23, 2009 Affirmed. Stuart, J.—Cobb, C.J., and Lyons, Woodall. Smith. Bolin, Parker, and Murdock, Jd concur. Shaw. J.. recuses himself Now, THEREFORE, pursuant to Rule 41, Ala. k App. P., IT IS HEREBY ORDERED that this Court's judgement in this cause is certified on this date. IT Is FURTHER ORDERED that, unless otherwise ordered by this Court or agreed upon by the par ties. the costs of this cause are hereby taxed as provided by Rule 35, Ala. R. App. P. |. Robert G. Esdale, Sr., as Clerk of the Supreme Court of Alabama, do hereby certify that the fore going is a full, true, and correct copy of the instrutment(s) herewith set out as same appear(s) of record in said Court. Witness my hand this 19th of February, 2010 / ROBERT G. ESDALE, SR. Clerk, Supreme Court of Alabama SUPREME COURT OF ALABAMA No. 10702590 December 23, 2009 Rx PARTE JAMES BEN BROWNFIELD, JR (IN RE JAMES BEN BROWNFIELD, JR STUART, Justice James Ben Brownfield, Jr., was convicted ol three counts of capital murder, see §13A-5 40(a)(4)(murder committed during a burglary), §13A-5-40(a)(10)(murder of two or more persons by one act or pursuant to one scheme or course of conduct), and §13A-5-40(a)(15) (murder when the victim is less than 14 years of age), Ala.Code 1975 The jury, by a vote of 11-1, recommended that This case was originally assigned to another Justice on this Court: it wa reassigned to Justice Stuart on November 19. 2009 a srownfield be sent need to death. Alter conduct ing a sentencing hearing the trial court sentenced Brownfield to death. The Court of Criminal Appeals affirmed Brownfields convictions and sentence. Brownfield v. State, |[Ms. CR-04-07438 April 27, 2007! S0.3ad (Ala.Crim.App.2007) We granted certiorari review to determine a mate rial question of first impression concerning Zule 11 .2(b), Ala. R.Crim. P Brownfield was arrested for and confessed to murdering Brenda Whitehead McCutchin, Joshua Dewayne Hodges, and Latham Durwood McCutchin. Brownfield pleaded not guilty and not suilty by reason of mental disease or defect. To determine whether Brownfield was competent to stand trial and to determine his mental condition at the time he committed the offenses, the trial court ordered pretrial mental examinations pul suant to Rule 11.2(a)(1) and (2), Ala. R.Crim. P { Rule 11.2(a) provid (a) Motion “hy (1) Competency to Stand rial. When a person charged with a crime is before a circult court, the d fendant, the defendant’s attorney, or the district attorney may petitio for, or the court on itS Own motion may order, an exam nation to assist in the determination of the defendant present mental condition and competency to tand trial “(2) Mental Condition at Time of Offense. If the deter dant has timely raised a defense of ‘not guilty by reason of mental disease or defect’ either by the entry of a plea or by filing a pre-trial motion pursuant to Rule 15, the court on its own motion may order, or the defendant, the defen dant’s attorney, or the district attorney may move ior a! examination into the defendant’s mental condition at the time of the offense Dr. Melissa Clinger, a psychologist, « onducted the examinations During the guilt phase of Brownfield’s trial, the State called Dr. Clinger as a rebuttal witness to address evidence offered by Brownfield through his expert witnesse: about his mental condition at the time of the offenses. Dr. Clinger testified that during the pretrial mental examination Brownfield informed her that he had a high-school diploma, that he had completed three years ol technical school, that he “was doing three differ ent things for one year,” that he had worked at a variety of fast-food establishments, that he had held the position of assistant manager once, and that he was a cook at another restaurant and wa looking to be promoted to a crew OF § hift chief. The State then questioned Dr. Clinger as to whethe Brownfield had informed her about his activitie on December 23. 24, and 25, 2001." The following Oc urred “'Prosecutor]}: All right; did he have any mem ory at all as to his activities on December 93rd, 24th, and 25th? “!Dr Clinger] He was able to provide me with an account of what he was doing during most of that time “!Prosecutor]: All right; was he able to recall getting into a verbal dispute with hi ister (Brenda McCutchin] on the 23rd? “(Dr. Clinger]: Ye The murders occurred in the early morning hours oO December 24, 200] was he able to give me a sequential and log cal account of what was going on to assess memory. “IProsecutor]: Now, the fact that he couldnt remember everything perfectly, did you find that to be unusual? ‘{Dr. Clinger]: No. “tProsecutor]: Now, based on your inspection and examination of [Brownfield] and pursuant to the orders of this court, have you reached an opinion as to whether the defendant, Ben Brownfield, suffered at the time of the offense from a severe mental disease or defect? “(Dr. Clinger]: | saw no indication to the point that he ever suffered from a severe mental disease or defect, you know, ever or during the time of the alleged offense “(Prosecutor]: Now, based on your examina tion and inspection of him, were you able to develop an opinion as to whether he was able to appreciate the nature and quality or the wrongfulness of his acts regarding the time period in question, December 23rd, 24th, and 25th? “(Dr. Clinger]: I thought that he had no sig nificant impairment as far as mental illnes: or cognitive deficits or problems in thinking that would have interfered with his ability to appreciate the wrongfulness of his acts and the consequences On cross-examination, Brownfield’s counsel elicited testimony from Dr. Clinger that Brown field had informed her that on December 23, 2001, he had ingested several Xanax tablets and had snorted crystal methamphetamine. She testified that he also told her that in the past he had had difficulty recalling events that had happened while he was under the influence of Xanax. Before the Court of Criminal Appeals, Brown- field argued that the trial court erred in admitting Dr. Clinger’s testimony because, he says, the tes- timony was prohibited by Rule 11.2(b). Specifi- cally, he objected to the admission of Dr. Clinger's testimony regarding statements he had made during the mental examinations. The Court of Criminal Appeals upheld the trial court's eviden- tiary ruling, holding that Brownfield had opened the door to the issue of his mental state at the time of the offenses by pleading “not guilty by rea son of mental disease or defect,” by putting on evi- dence of his mental state at the time of the offenses through the testimony of Dr. Roger Lacy, and by Brownfield’s counsel s questioning of other witnesses, attempting to portray Brownfield as unable to recall the events or to speak voluntarily with authorities. However, the fact that Brown- field “opened the door” for the State to present testimony with regard to his mental condition is not determinative of whether the admission of the testimony regarding statements Brownfield made during the pretrial mental examinations was proper. Rule 11.2(b), Ala. R.Crim. P., governs the ad- missibility of testimony about = statements made by a defendant during a mental examintion. Rule 11.2(b)(2), provides: 10a “The results of mental examinations made pursuant to subsection (a)(2) of this rule [pro- viding for examination into the defendant's mental condition at the time of the offense] and the results of similar examinations regarding the defendant's mental condition at the time of the offense conducted pursuant to Rule 11.4 shall be admissible in evidence on the issue of the defendant's mental condition at the time of the offense only if the defendant has not subsequently withdrawn his or her plea of not guilty by reason of mental disease or defect. Whether the examination is con ducted with or without the defendant's con- sent, no statement made by the defendant during the course of any examination, no les- timony by an examining psychiatrist or psy chologist based upon sucha statement, and no other evidence directly derived from the defen dant's statement shall be admitted against the defendant in any criminal proceeding, except on an tissue respecting mental condition on which the defendant has testified.” (Emphasis added.) The plain language of Rule 11.2(b)(2) unequiv- ocally forbids the admission of statements made by a defendant or evidence derived from the defen- dant’s statements during a pretrial mental exam ination unless the defendant testifies about his or her mental condition. Consequently, because srownfield did not testify at his trial, applying the plain language of Rule 11.2(b)(2), we must con- clude that error occurred in the admission of Dr. Clinger’s testimony concerning statements Brownfield made during the mental examinations. lla Although it was proper to admit into evidence Dr. Clinger’s testimony regarding her opinion about Brownfield’s mental condition at the time of the offenses. the admission of her testimony regarding statements made by Brownfield during the mental examinations was error. The inquiry, however, does not end here. This Court must determine whether it “appear|s] that the error complained of has probably injuriously affected |Brownfield’s] substantial rights.” Rule 45, Ala. R.App. P., provides: “No judgment may be reversed or set aside, nor new trial granted in any civil or criminal case on the ground of misdirection of the jury, the giving or refusal of special charges or the improper admission or rejection of evidence, nor for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error com- plained of has probably injuriously affected substantial rights of the parties.” The Court of Criminal Appeals has further stated with regard to the application of the harm- less-error rule: “““After finding error, an appellate court may still affirm a conviction on the ground that the error was harmless, if indeed it was.’ Guthrie uv. State, 616 So.2d 914, 931 (Ala.Crim.App.1993), citing Chapman v. Cali fornia, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). “The harmless error rule apphes in capital cases.” Knotts v. State, 686 So.2d 431, 469 (Ala.Crim.App.1995), opinion after remand, 686 So.2d 484 (Ala.Crim.App.1995), aff'd, 686 So.2d 486 (Ala.1996), cert. denied, 520 U.S. 1199, 117 S.Ct. 1559, 1387 L.Ed.2d 706 (1997), citing Ex parte Whisenhant, 482 So.2d 1241 (Ala.1983). “In order for a const}- tutional error to be deemed harmless unde} Chapman, the state must prove beyond a reasonable doubt that the error did not con- tribute to the verdict. In order for the crror to be deemed harmless under Rule 45, the state must establish that the error did not injuri ously affect the appellant’s substantial rights.” Coral v. State, 628 So.2d 954, 973 (Ala.Crim.App.1992), opinion after remand, 628 So.2d 988 (Ala.Crim.App.1992), aff d, So.2d 1004 (Ala.1993), cert. denied, 511 U. 1012, 11 $C t. 13887, 128 L.Ed.2d 61 Bers ‘The purpose of the harmless error rule 1s to avoid setting aside a conviction or sentence for small errors or defects that have little, if any, likelihood of changing the result of the trial or sentencing.” Davis v. State, 718 So.2d 1148 1164 (Ala.Crim.App.1997), aff'd, 718 So.2d 1166 (Ala.1998), cert. denied, 525 U.S. 1179, 119 S.Ct. 1117, 143 L.Ed.2d 112 (1999) “McNabb Uv. State. ele! So.2d QQ. 976-7 7 (Ala.Crim.App.2001) Sale U. State, 8 So.3d 330. 347 (Ala.Crim.App.2008). See also Hx parte Brown, 11 So.3d 933 (Ala.2008) (holding that the alleged improper admission of evidence in a capital trial was harmless); Cothren v. State, 705 So.2d 849 (Ala.Crim.App.1997) (holding that the improper admission of the de fe ndant 's coerced confession lea was harmless in light of the overwhelming evi dence establishing that the defendant committed the capital offense). In this case, a review of the record establishes that the admission of Dr. Clinger’s testimony was harmless; the improperly admitted evidence could not have probably injuriously affected Brownfield’s substantial rights. The admission of testimony regarding Brownfield’s statements con- cerning his education and work experience 1s harmless because those statements are not rele- vant to whether Brownfield committed the offense or to his mental condition at the time of the offense. Consequently, testimony concerning those statements could not have probably injuriously affected Brownfield’s substantial rights. Likewise, Dr. Clinger’s testimony regarding Brownfield’s recollection of the events on December 23, 24, and 25, 2001, could not have probably injuriously affected Brownfield’s substantial rights because statements Brownfield made to law-enforcement officers on December 25 and 26, 2001, had been previously admitted into evidence and established with greater detail what Brownfield recalled regarding the events leading up to and following the murders. Brownfield’s statement on December 25 provides: “This statement is written by Investigator Petty for Mr. Brownfield as told by him. My sister, [Brenda McCutchin], brother-in-law [Latham McCutchin] and myself had been arguing off and on for a while. Brenda was accusing me of taking her money, and she was ripping me off, too. Sunday night, 12/23/01, she. Brenda. went to bed around 10:00 p.m. l4a Around midnight, | took about seven or erght Xanax: I think it was seven. I was wanting it to knock me out, but it did the opposite. It got me angry the more I thought about how she treated me. I went into a rage. I used a regu- lar claw hammer with a rubber grip, and the grip was black. They slept in the living room—Brenda and Josh slept in the living room, and | went in with the hammer and hit Brenda in the head first, and then J] hit Josh. When I hit her, Josh screamed out, and that’s why I hit him. I turned out the lights and | left. | locked the door. This was around 2:00 a.m. or 3:00 a.m. From there, I went to Latham’s house. I went there because I was going to kill him, too. I got to Latham’s, and | knocked on the door and he let me in. | had the hammer inside my jacket. Latham didn’t know anything was wrong. I told him I was soing to go so he could go back to bed. When | sot up, I reached in my coat and pulled out the hammer. Latham was behind me, saw it and grabbed it. I let go with my left hand and elbowed him, and I turned around and punched him several times. That's what hap- pened to my hand. I don’t remember how many times I hit him, and | turned around and punched him several times. That's what happened to my hand. | don’t remember how many times I hit him, but that’s when I started hitting him with the hammer in the head. I was wanting him to die but he kept breathing and making noises. That's when | sot the knife. I don’t remember which I did first. but I stabbed him in the chest and the throat. 1 took off the clothes | was wearing and took a shower. | had brought the extra clothes from my house that | put back on. | took his wallet with, | think, about filty dollars in it. I left and went to the South Pittsburgh/Kimball area. 1 pulled into a restaurant: | think it was Jack’s. It was on the right side of the road. I pulled into the dump ster and threw away the coat, hammer, knife, my clothes and Latham’s wallet. I rode around for a while, and then | went to Wal-Mart which is where I bought this shirt and other clothes and gifts. I bought them with the money out of Latham’s wallet. All of this hap pened between midnight to 5:00 p.m. on Mon day. | had my own fifty-dollar gift certificat from Wal-Mart, which I also used. | didn't start my day planning to kill anyone. That’ not me. I guess | got to a breaking point.” Brownfield made a similar, though not identical! statement, to law-enforcement officers on Decem ber 26. Brownfield’s statement establishes in detail his recollection of the events surrounding the murders: the statements made to Dr. Clinge some seven months after the murders are general! and cursory. Therefore, Dr. Clinger’s testimony) with regard to statements made by Brownfield about his activities on the days surrounding the murders, in light of the previously admitted detailed statement Brownfield made to the police, could not have probably injuriously affected srownfield’s substantial rights. Finally, the evidence of Brownfield’s guilt as to the capital offenses was overwhelming. The evidence indicated that during the week of! December 24, 2001, Brownfield had been using crystal methamphetamine and on the evening ol December 24 had consumed several Xanax tablets After taking the tablets, he became angry at ht sister, Brenda McCutchin, who was sleeping in her bed with her grandson, Joshua Hodges Jrownfield entered the room and beat both Brenda and Joshua with a claw hammer. He then left Brenda’s house and traveled in her car to Latham McCutchin’s house. He entered Latham house, and a struggle ensued. Brownfield struck Latham with his fists and the hammer Srownfield also stabbed Latham in the heart and cut his throat with a knife. When Brownfield left Latham’s house, he took Latham’s wallet. The ev dence further indicated that Brownfield admitted to his ex-girlfriend, Tammy Farmer, that he had killed Brenda. Joshua, and Latham. The results of DNA testing of blood found on Brownfield’s sho indicated that the blood was Latham’s. Becausi the evidence was sufficient to prove beyond a reasonable doubt that Brownfield committed the capital offenses, the error in the admission ol Dr. Clinger’s testimony was harmle:s The judgment of the Court of Criminal Appea affirmed. AFFIRMED COBB, C.J., and LYON WOODALI SMITH BOLIN, PARKER, and MURDOCK, JJ., concu! SHAW, J recuse himselt with murdering Lathan Jia‘ r) course of ae burglar’ Cr LBA-5-40(a)l Nia Code 1975. Count [Il charged Brownlield w murdering Brenda McCutchin, Joshua Hodg and Latham MecCute! 1! gurinyv one cl r p uant to one chem«e r course oO} ona f S13A-5-40 (a)(10) Aiq Code 1975 Coie charged Brownfield with murda Hodges who was under 14 years of SI3BA 5-40 (a)( Ld) \ia.Code U5) al uly ommended by a vote ol ] | that Brownticia entenced LO death The cram. COUT Ccentve jury's recommendation and sent a death Thi App i | followed The trial court set out thi the evidence which we \aopt | ome tin December 23, ZU00] ¥ hours of December 24, 2001, br irda Wh head McCutchin Joshua Dewavni Hod ind Latham Wurwood McCutcn! vere mM dered in their homes in Scottsbore laban \t the time of their deat! Mrenda was fo! ven vears old. Joshua was tnret Cal ind Latham wa ix{ hou! Cal \fter consumI1ng X ina pill n tn December 23. 2001, the twenty even eal defendant, Jam« Ben Brownfield, Jr., becal enraged with hi ISte! Brenda Whitehe MeCutchin Ove! aruy ina mone W hil Brenda and her grandso) joshua Dewar Hodges, were sleeping 1n their bed, the ae lant decided to. ki ( tranvea nu ' Vic itcnin ine deltendant ti } i cIaW mer into tne room where Brenda and Josnua were sleeping and hit Brenda with it. Whe} the defendant hit Brenda, Joshua awoke ©} ing. At that time, the defendant began hittin hoth Brenda and Jo hua with the claw han mer. Brenda suffered approximately twent forceful blow to the head and other injurte to he hody Joshua uffered approximat ixteen blows to the head and other injuri { nN) hody ,.oth Brenda and Joshua died tron multiple blunt-force injuri Before he tett Brenda house. the defendant attempted pu the house with Kerosene and a ciparctt After killing Brenda and Joshua, the actiet lant took the claw hammer and a set ol} clea lotne and drove acro town to the residel Nn) brother-in-law Latham Durwoor MceCutchin. The defendant initially preten i friendly visit with Latham but later in the residence. the defendant informed Lathan that he was going to kill him. The dete ndant ind Latham struggled for the claw hamm«: vith the defendant subduing Latham by hit ting him with hi list ind the hamm: Latham sullered numerous injurl Hi fered at least ten forceful DlOW to the ne with the claw hammer, bruising to the lov chest, arm and hand fractured rib ind fractured vertenra Late! { tabbed Latham 11 the heart and cut throat with a knife. Latham died from mult) ple blunt-force injuries \fter killing Lath the defendant howered and dre ed in lean clothe lie § mrnered TN r led + } | ‘ | ] * } * } { »* 4 ' . wy Tye I ‘ ; ‘ re - ‘ r < mr it } } . r) ?} I ' , | , | ! mt Ff | tt ! \ } } 4 > | ’ . , ~ }4)Q) ~ , ‘ ‘4 ’ ' } took Brownfield to the break area of the station and had him sit at a table. Officer Porch stated that he did not engage in any conversation with Brownfield at that time. He stated that approx} mately 20 minutes later, Investigator Doug Hood with the Jackson County District Attorney's office and Investigator Robert Petty of the Scottsboro Police Department came and took custody ol Brownfield. According to Officer Porch, Brownfield did not appear to be intoxicated; he did not have inv trouble walking into the police station from the patrol car or sitting at the table in the break room; and he did not get physically ill while Officer Porch’'s presence Officer Porch stated that e saw nothing that led him to believe that Brownfield was intoxicated Officer Porch testified that around 3:30 p.m December 26, 2001, he escorted Brownfield from he jail to his patrol car, transported him back to the police department, and released him to Inves tigators Hood and Petty; he stated that he did not engaye in any conversation with Brownfield at that time. He further testified that at approx) mately 5:00 p.m. on December 26, he transported Brownfield back to the jail without conversation Officer Porch testified that at no time while he was observing Brownfield did he or anyone in his presence use violence, make any promises or threats. or offer him any inducement to get Brownfield to make a statement Investigator Hood testified that Investigator Petty and he took custody of Brownfield at approx ) imately 12:50 p.m. on December 25 to interview him and that he conducted a second interview with Brownfield at 3:28 p.m. on December +) 6. 2001. Investigator Hood stated that at the onset of both interviews he advised Brownfield of his Miranda rights by reading him those rights fron a card, and that Brownfield checked the box on the Miranda card indicating that he understood his rights and that he wished to speak to author- ities. He signed the card, and Investigator Hood and Investigator Petty also signed the card as wit nesses.’ According to Investigator Hood, Brown field was cooperative and listened to authorities and followed directions. Investigator Hood further stated that neither he nor anyone 1n his presence used any violence on Brownfield, made any promises or threats to Brownfield, told him that it would be better for him to confess or to make a statement. or offered him any inducement to get him to make a statement. He testified that Brown field was handcuffed at the beginning of the December 25 interview, but that he removed Brownfield’s handcuffs after observing his demeanor during the initial part of the interview and determining that Brownfield was being coop erative and did not pose a risk. Investigator Petty also testified that he was prt sent when Investigator Hood interviewed Brown. field on December 25 and 26. Investigator Petty’s testimony was substantially similar to Investi- cator Hood’s testimony, i.e., that Brownfield did not appear to be intoxicated when he was being interviewed, at neither he nor anyone in his stigator Hood stated that, although he Miranda rights to Brownfield at the beginning of the view and Brownfield indicated that he understood wished to speak with them, Brownfield «id not actually ] ird until the interview was concluded 25a presence used any violence on Brownfield, made any promises or threats to Brownfield, told Brownfield that it would be better for hiin to con- fess or to make a statement, or offered Brownfield any inducement to get him to make a statement, he also testified that Brownfield appeared to understand his rights and that he voluntarily waived them to speak with authorities. Investi- gator Petty further testified that Brownfield’s eyes were not bloodshot, that he did not detect any slurred speech, and that Brownfield was quiet during portions of the interview but not hard to understand. Investigator Petty also testified that he trans- ported Brownfield back to the jail following the first interview, and that Brownfield agreed to take officers to the location in Tennessee where he had discarded the bag containing the bloody clothing, the hammer, the knife, and Latham’s wallet. According to Investigator Petty, they went to a restaurant where Brownfield claimed to have dis- carded the items, but were unable to locate any evidence. Although Brownfield did not present any wit nesses at the suppression hearing, he did file a number of ex parte motions with the trial court regarding his expert witnesses and the manner in which the defense contended Xanax and other medications affect an individual’s mental state.” There was an extended discussion regarding the absence of the defense experts at the suppression hearing. The record indicates that the suppression hearing had been continued a number of times; the State's evidence had been presented and then the hearing continued for two wecks to allow the defense to prepare and call its witnesses. Brown 2Qa “The trial court held the suppression hearing outside the hearing of the jury; therefore, we review the evidentiary findings of the trial court at that hearing under the ore tenus stan dard.’ Ex parte Jacksun, 886 So0.2d 155, 159 (Ala.2004). ‘When evidence is presented ore tenus to the trial court, the court’s findings of fact based on that evidence are presumed to be correct,’ Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994); ‘|w]le indulge a presumption that the trial court properly ruled on the weight and probative force of the evidence, Bradley v. State, 494 So.2d 750, 761 (Ala.Crim.App.1985), aff'd, 494 So.2d 772 (Ala.1986); and we make ‘ “all the reasonable inferences and credibility choices supportive of the decision of the trial court.”’ Kennedy v State, 640 So.2d 22, 26 (Ala.Crim.App.1993), quoting Bradley, 494 So.2d at 761. ‘“*"Where evidence is presented to the trial court ore / ‘ tenus in a nonjury case, a presumption of cor- rectness exists as to the court’s conclusions on issues of fact; its determination will not be disturbed unless clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence.’ kx parte Jackson, 886 So.2d at 159, quoting State v. Hill, 690 So.2d 1201, 1203 (Ala.1996), quot ing in turn Ex parte Agee, 669 So.2d 102, 104 (Ala.1995). field did not raise on appeal the trial court's denial of his motion for an additional continuance so that he could secur: the presence of his expert witnesses at the suppression hear ing; we find no plain error in the trial court's refusal to grant another con-tinuance approximately one week before trial 30a “However, ‘|t]he ore tenus presumption of cor- rectness applies to findings of fact, not to con- clusions of law.’ City of Russellville Zoning Bd. of Adjustment v. Vernon, 842 So.2d 627, 629 (Ala.2002). ‘[T]he ore tenus rule does not extend to cloak a trial judge’s conclusions of law, or incorrect application of law to the facts, with a presumption of correctness.’ Eubanks v. Hale, 752 So.2d 1113, 1144-49 (Ala.1999). ‘“‘{W]hen the trial court improp- erly applies the law to the facts, no presump- tion of correctness exists as to the court's judgment.’”’ Ex parte Jackson, 886 So.2d at 159, quoting Hill, 690 So.2d at 1203, quoting in turn, Ex parte Agee, 669 So.2d at 104. Thus, we review the trial court’s conclusions of law and its application of law to the facts under ' the de novo standard of review.” Washington v. State, 922 So.2d 145, 157-58 (Ala.Crim.App.2005). “When reviewing a ruling on the voluntariness of a confession, we apply the standard artic- ulated by the Alabama Supreme Court in McLeod v. State, 718 So.2d 727 (Ala.1998): “*Ror a confession, or an inculpatory state ment, to be admissible, the State must prove by a preponderance of the evidence that it was voluntary. Ex parte Singleton, 465 So.2d 443, 445 (Ala.1985). The initial determination 1s made by the trial court. Singleton, 465 So.2d at 445. The trial court’s determination will not be disturbed unless it is contrary to the great weight of the evidence or is manifestly wrong. ola Marschke Uv. State, 490 So.2d 7T7 (Ala.Crim.App.1984) “Tho Fifth Amendment to the Constitution of the United States provides in pertinent part: “No person ... shall be compelled in any crim. inal case to be a witness against himself. . Similarly, §6 of the Alabama Constitution ol! 1901 provides that “in al] criminal prosecu tions, the accused ... shall not be compelled to sive evidence against himself.” These const} tutional guarantees ensure that no involun- tary confession, or other inculpatory statement. is admissible to convict the accused of a criminal offense. Culombe ¢ Connecticut, 367 U.S. 568, 81 58.Ct. 1860, 6 L.Ed.2d 1037 (1961); Hubbard v. State, 255 Ala. 183. 215 So.2d 261 (19638) It has long been held that a confession, or any inculpatory statement, is involuntary if it ‘sc either coerced through force or induced through an express or implied promise 01 leniency. Bram v. United States, 168 U.S. 582, 18 S.Ct. 183. 42 L.Ed. 568 (1897). In Culombe, °67 U.S. at 602, 81 S.Ct. at 1879, the Supreme Court of the United States explained that for a confession to be voluntary, the defendant must have the capacity to exercise his own free will in choosing to confess. If his capacity has been impaired, that is, “if his will has been overborne” by coercion or inducement, then the confession is involuntary and cannot be admitted into evidence. Jd. (emphasi: added) ity of the circu! 1964 U.S. 478 umstance Ove rborne by parte VMatthe tating that looking Athy sé C oltale late, 97 \dditional] n delined include i capac Iti ( L)t 0o.2d ()4 | ( in Corin Lp] ) n order tor int it { He) LOT) inadm) bie it Wit { Le nown U! l the mind oO! tne delendant W a IDst tiall impaired VWnen the roi nee A made Moore { stale 'Fele ( : : (Ala.Cr.App.1986); Moor tate, 415 10 (Ala.Cr.App.), cert. denied | 1210 (Ala.), cert. denied, 459 | )4 Ct. 459. 74 L.Ebd.Z2d 610 (19862), and Cas ited therein Intoxicatiol hort of manta uch impairment ol the will and mind a make al mdividual UNCONSCEIOU ol the me ing ol h) wora will not Trenaer a Latemcnt or conte 1) nadm) rbd fice bale f So.2d | | \) | ] » (AI Ul App.) I denied b 90 2d 1187 (Ala. 1930) ay Paimer herte 1( , 9d 5 ) \la.Cr.App.), cert denied 1() | ! (Ala.1981). cert. demied, 4595 Ct. 1280, 71 L.hWd.2d 4 Y he voluntarine fan alleged conf a gue tion Ol law adadre ed to tne tria f ! vhose ruling will not be disturbed on appé mnie tf appeal to ne mtral LO tne reat yvejyht of the « dence ea 1] I esth fice i Slate upra ( vr? 0? Late a » (Ala.Cr.App.1979) | deyure ntox) it } VIC Ky uld lfect tne Larne Ol a tatement 1 GQuestio! | , nitially rdare ca Lné tL} ! lependi upon it ru { { the yur ing and that no one applied any violence threatened, or offered any promise or induct ment to the defendant ‘The defendant gave another statement t the police on December 26, 2001 The entire statement was recorded by videotape. Detec tives Hood and Petty conducted the interview Prior to the statement, the defendant was read his Miranda rights and waived them. At no time did Detective Hood or Detective Petty physically harm, threaten, or offer any promise or inducement to the defendant erty} The court is mindful that. due to the right against self-incrimination, an involuntarily civen incriminating statement is not admis- sible in a subsequent criminal prosecution The court finds from the evidence that the defendant's statements to Detectives Hood and Petty and Major Ralph Dawe were made freely and voluntarily. The court further finds based on the totality of the circumstances that the defendant knowingly and voluntarily waived his Miranda rights.’ 75-177.) Similarlv, the tri und WS 1n 1ts sentencing orde) + } ) 4 he court has fullv considered the testim« \ of Dr. Roger Lacy, Dr. Lee Evans, D Clinger. and all other witnesses during the ruilt and penalty phases of the trial. The defendant maintains that he was under the influence of extreme mental or emotional dis- turbance due to his use of crystal metham pnetamine ana Xanax In nis confession to law enforcement, the defendant indicated that he had taken seven or eight Xanax pills prior to the thr.e murders. The defendant did not reveal to law enforcement that he had been using crystal methamphetamine each day of the week prior to the murders. The first evi dence of defendant's use of crystal metham- phetamine was reported by Dr. Melissa Clinger in her Forensic Evaluation Report. The information was provided to Dr. Clinger by the defendant during the evaluation pro- cess. Later, the defendant reported to Dr. Laev and Dr. Evans that he had been on a erystal-methamphetamine binge the week prior to the murders. He also reported to the experts that he had taken Xanax the night of the murders. The defendant’s friends testified that the defendant was a frequent user of erystal methamphetamine. The court does not doubt that the defendant was using crystal methamphetamine the week prior to the crimes and Xanax the night of the crimes. The court. however, has no credible evidence regarding the quantity of drugs ingested by the defendant or the times of ingestion. Fur thermore. the evidence indicates that over ime people develop immunities and tolerance to the effects of drugs. The defendant had been abusing drugs for years. The court finds by a preponderance of the evidence that the defendant did not commit the murders while under the influence of extreme mental or emo- tional disturbance. The defendant’s demeanor and actions immediately following the crimes indicate otherwise. The defendant's friends ind acquaintances testified that the defen- dant acted normally shortly after the mur- lers. Teresa Manning testified that she saw the defendant at the store where she worked. on December 24, 2001, at 1:00 A.M. or 1:30 A.M. She said that she and the defendant car ried on a conversation and that there was ( nothing unusual about how the defendant was acting. The defendant attended a party imme- diately after the murders. Hannah Robertson testified that she saw the defendant at the partv between 1:00 A.M. and 2:00 A.M. on December 24, 2001. She said the defendant looked better than usual. She said that the defendant’s hair looked wet. She carried on a conversation with the defendant and said that he seemed normal, that he could talk very sood, and did not appear to be intoxicated. Nick Logan, the defendant's best friend, tes tified that he saw the defendant at the party on December 24, 2001. In fact. he and the defendant left the party and rode around for approximately twenty minutes. Mr. Logan talked with the defendant for a long period of time shortly after the murders and he said that the defendant did not appear to be intox- icated. He said he noticed nothing out of the ordinary. The court does not find that the defendant was so impaired that he was suft- fering from an extreme mental or emotional disturbance at the time of the offenses.” \ (). a00-a04,) The evidence indicated that Brownfield com- mitted the murders sometime during the evening of December 23, 2001, or the early morning hours of December 24, 2001. The « cated that in the early mo 24 2001. Brownfield went to a party and engagea In What witnesses test. ) | | as normal. coherent conversation. Upon his arr around noon on December 25, 2001, Brownfield confessed to the murders. He also confessed second interview with autho: of December 26, 2001. A numbe f law-entorc: ment officials testified that when he made Ni fessions Brownfield appeared to be coherent, a not appear to be intoxicated or under the influence of any substance, and appeared to understand hi rights and voluntarily waived the | threat, promise, or inducement. It 1s clear that trial court determined that Brownfield was not affected by his purported ingestion of Xanax he night of the murders and crystal metham phetamine in the weeks leading up to the murdet that he was unable to knowingly and voluntar1| waive his Miranda rights. We have reviewed transcript, the videotapes of the two recorded col fessions, and the other evidence 1n the | evant to this ISSueé ana we cConciulde Cnat . . - + . + yo 4 « | " _r ,y | record supports thi Crial rt Ss T1inains ne tria . : how } r | COure Gia Not anus ] ret I qaen Br oe >] : _ + . é 795% | { SrOWNIeIAaA Ss Iii Tt} ippre - ic } tris 2Tround Wi ] a I test TN tt ) r) ] ris to Lhre el ; 7 Kr \ Lie | A ] 1 A ‘ } ] Or V lun arii’ v4 i\ Vi ] a | earch of th utom I ‘ ind eryvstal meth Alt t } t ’ } 40a Brownfield also claims that the trial court erred in denying his motion to suppress photographs of items seized from his automobile because, he claims, his consent to the search of the vehicle was involuntary.’ The photographs showed bags from a Wal-Mart discount store containing cloth- ing Brownfield purchased after the murders. In a scattergun manner, Brownfield avers that he con- sented to the search only upon an overwhelming show of force by the police, because of his alleged compromised mental state caused by his drug use, and because he was not first advised of his Miranda rights before consenting to the search. At the suppression hearing, Captain Ralph Dawe of the Scottsboro Police Department testi- fied that Brownfield consented to a search of the vehicle after he was arrested. According to Cap- tain Dawe. the automobile was searched for weapons or bloody clothing, and officers discov- ered, among other things, deodorant, a hair trim- mer, and several articles of clothing. to suppress the evidence, the trial court obviously resoly anv credibility choices re-garding Brownfield's mental stat in favor of the State, as is evidenced by the trial court's find ings in its sentencing order concerning mitigating evidence of Brownfield's alleged ingestion of drugs The State acknowledges that, although Brownfield's sister Brenda, and not Brownfield, was the owner of the automobile, Brownfield's lack of standing to challenge the search of the vehicle was not ratsed at trial and has there fore been waived. Thus, for purposes of this opinion, we assume that Brownfield had standing to challenge the search of the vehicle. See, e.g., Washington, 922 So.2d at bos tla Further, as is discussed in Part 1.A. above, Off) cer Porch testified that two or three officers ordered Brownfield to come out of the apartment with his hands up; that Brownfield complied with the officers’ orders and came out of the apartment with his hands in the air, lay down on his stom- ach, and placed his hands behind his back, and was placed in handcuffs at that time. The undis- puted testimony indicated that Brownfield was not struck or beaten by officers when he was taken into custody, nor was he threatened by any officers in Officer Porch’s presence. With regard to Browntfield’s alleged intoxication rendering his consent involuntary, as we have already discussed in Part I.A. above, the trial court found from the conflicting evidence that Brownfield was not intoxicated at the time of the murders, at the time of his arrest, or at the time he made his statements to the authorities. For the same reasons stated in Part ].A., Brownfield 1s not entitled to any relief on this claim. Similarly, Brownfield is not entitled to any relief based on his contentions that the search of the vehicle was conducted before he was advised of his Miranda rights and that he consented to the search only in the face of overwhelming force from the police. As this Court recently stated in Wash ington, supra: “This court has long held that warrantless searches are per se unreasonable, unless they fall within one of the recognized exceptions to the warrant requirement. Rokitski v. State, 715 So.2d 859, 861 (Ala.Crim.App.1997). ‘One of the exceptions to the rule that a warrant less search is per se unreasonable is a search 42a conducted with the consent of the owner.’ Foldi. vu. State, 861 So.2d 414, 422 (Ala.Crim.App.2002). ‘Consent to a search must be knowingly, intelligently, and freely given.’ Ex parte Wilson, 571 So.2d 1251, 1255 (Ala.1990). ‘“[W]here the validity of a search rests on consent, the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntar- ily given, a burden that is not satisfied by showing a mere submission to a claim of law- ful authority.” ' Miller v. State, 602 So0.2d 488, 491 (Ala.Crim.App.1992), quoting Florida v. Rover, 460 U.S. 491, 497, 103 5.Ct. 1319, 75 L.Ed.2d 229 (1983). ‘[T]he question whether a consent to a search was in fact “voluntary” or was the product of duress or coercion, express or implied, is a question of fact to be deter- mined from the totality of the circumstances.’ Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 §.Ct. 2041, 36 L.Ed.2d 854 (1973). ‘Factors relevant to this determination include the cir- cumstances under which the defendant came into custody, the defendant’s awareness of the right to withhold consent, the defendant's per- formance of cooperative acts, the defendant's age, intelligence, and education, and the nature of police behavior.’ Cable v. State, 540 So.2d 769, 774 (Ala.Crim.App.1985). “‘No particular factor should be given undue weight in determining the issue of voluntari- ness. The fact that a defendant was not informed of the right to refuse to consent does not, of itself, negate a finding of voluntart- ness. Nor does the fact that the defendant was 4°26 40a in police custody or that the officers made a showing of force. Kennedy v. State, 640 So.2d 22, 24-5 (Ala.Cr.App.1993), quoting Martinez v. State, 624 So.2d 711, 715-16 (Ala.Cr.App.1993).’ “Rokitski. 715 So.2d at 861-62. See also United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) ([T]he fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search. Similarly, under Schneckloth [v Bustamonte, 412 U.S. 218, 234 (1973) J, the absence of proof that [a defendant] knew he could withhold his consent, though it may be a factor in the overall judgment, is not to be viven controlling significance.’). “However, although not dispositive of the question of vol- untariness, the fact that a defendant had been advised of his Miranda rights and of his right to refuse the request to search are significant factors in determining whether the consent was voluntary.’ Foldi, 861 So.2d at 422. See also United States v. Mendenhall, 446 U.S 544, 558-59, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (Although the Constitution does not require “proof of knowledge of a right to refuse as the sine qua non of an effective consent to a search,” [Schneckloth v. Bustamonte, 412 U.S 218. 234 (1973) | (footnote omitted), such knowledge was highly relevant to the deter mination that there had been consent.’).’ Washington v. State, 922 So.2d at 163-64. Here. Brownfield, who was 27 years old at the time of his arrest, was ordered out of the apart 44a ment by a number of armed officers and was instructed to lay down in the ground, at which time he was handcuffed. Officers then requested his permission to search the vehicle. However, under the specific facts of this case, 1t appears that the consent was knowingly and freely given. As has been thoroughly discussed, there is no indl- cation that Brownfield was under the influence of alcohol or any narcotic substance at the time he consented to the search, despite his claims that he took a number of Xanax a day and a half before the search and that he had been using crystal methamphetamine for two wecks before the search. The overwhelming evidence, specifically the abundance of testimony from law enforcement and Brownfield’s friends alike, indicated that he was not under the influence at the time of his arrest and subsequent consent to the search of the vehicle. Further, he was cooperative with author- ities from the instant he encountered them at the apartment. Finally, there is no indication that 3rownfield was unaware of or incapable of refus- ing to consent to the search. Rather, considering the totality of the circumstances and resolving all credibility choices in favor of the trial court's rul- ing, we conclude that after being lawfully arrested Brownfield voluntarily consented to the search, even without first being advised of his Miranda rights, and that that consent was freely offered without regard to the show of force by the police in taking Brownfield into custody. Moreover, consent is not the lone exception to the warrant requirement. Rather, there are a number of additional exceptions, including (1) a search incident to a lawful arrest and (2) probable Lda cause. See State v. Gargus, 899 So.2d 587 (Ala.Crim.App.2003). Both exceptions apply in this case. For these reasons, we cannot say that the trial court erred in denying Brownfield's motion to suppress the photographs of the items discovered in the automobile. C ,rownfield next contends that the trial court allowed improper hearsay testimony. Specifically, he claims that Virginia Goode was allowed to tes- tify that “her brother [Charles Jackson] had called her at approximately noon on December 20, 2001, and told her that Tammy Farmer had said that there were two bodies in a home on Wallace Lane and that ‘this guy’ had killed them. (R. 1122.)" (Brownfield’s brief at p. 40.) Prior to Goode’s testimony, Tammy Farmer tes tified that she and Brownfield dated “off and on™ (R. 1085) and that she also dated Charles Jackson (R. 1087.) According to Farmer, Brownfield admit ted to her sometime late in the evening of Decem ber 24 or early in the morning of December 20 that he had killed Brenda, Josh, and his brother in-law. and described the killings in some detail Farmer testified that Brownfield finally went to sleep at approximately 4:00 a.m. on December 25, 9001. at which time she also went to sleep. She further testified that at approximately 11:15 a.m on December 25, 2001, she telephoned Jackson and “proceeded to tell him what had happened.” (R. 1108.) Farmer stated that the police arrived at her apartment shortly after she spoke with Ja kson Also before (,00d¢ restimon Larry Dune director of the Jackson County 911 emergence line. testified that someone placed an cmergen¢ ; 911 call at approximate ly noon on December 2001. and reported two bodies 1n a nous \ccord ing to Duncan, there wa no audiotape of the 9] call. but the notion on tn d) patcners lov iy cated as follow “On 12/25/2Z200 it | | operatol received a call on. the ecottshboro§ Police Department line. And he entered it as a 1] which IS FCC ord hecause ak didn t Know wh to do with it at that time. And it was a call b an unknown female who relused herself, and sh advised that he had Kno edge ol a female and child dead ata residen On Wallace Lan and would not i Nov [ knew ind once avaln he refused her nal and advised the locatiol Lhe cc dence on the lett ek 1115.) Dune in identified additional | on the log as indicating that law enlorcement notified of the call and reflecting the 91 ]-dispatel operator § effort to trace tne emergency ii} ft ascertain the caller telephone numbet Goode testified that Charle Jackson wa I brother, and that she received a telephone ' from him “just before lunch.” (R lowing exchange then occurred “Prosecutor ] (Oka and alte) vour brother did Vt ) | [Cioodel: Y« i ; ' cu YAY '* 3 ‘ ' ’ ' Af 7 ( , | rs I | | , j ( . if 1 ' . i pial ; , | ippeal LO U ss | | | ks ’ ‘ “a ’ rya'y . - : r the is aame 1 | f *() | ; ; ) / ee le " ’ ’ , Tia {)] tLe MI ' ry¢ I , . | : | 1] | | ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial o1 hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801(c), Ala. R. Evid We do not read Goode’s testimony as being ffered for the truth of any matters asserted Rather, we read her testimony to explain why she telephoned the authorities. It is well settled that the he arsav rule “““does not exclude extrajudicial utterances offered merely to prove the fact of the making or delivery thereof, or to explain subse- quent conduct of a hearer.’ Ashford v. State, 472 So.2d 717. 719 (Ala.Crim.App.1985), quoting 22A C.J.S. Criminal Law § 718 (1961).” Robtitaill 1 So.2d at 57 (Ala.Crim.App.2005). See also Stallworth v. State, R68 So.2a 1128 State, 97 (Ala.Crim.App.2001). Thus, the testimony was not inadmissible eee evidence. Brownfield also avers that in the context of the evidence—1.e.. Farmer’s earlier testimony that Brownfield had confessed to her and that she had telephoned her boyfriend Jackson and told him of Brownfield’s confession, coupled with Goode’s tes- timony that Jackson was her brother—Goode's testimony had the effect of “repeating definite complaints of a particular crime by the accused, ithat were} so likely to be misused by the jury as evidence of the fact asserted that it should [have been] excluded as hearsay.” (Brownfield’s brief at p. 45, quoting Moseley v. State, 570 So.2d 719, 721 (Ala.Crim.App.1990).) However. we note that at no point did Goode testify that Brownfield was involved in the killings, 1.e., she did not identify killer as anyone other than “this guy.” + \ .) LOT St _ “ ¢ - - oat ~ loa , — ~~ —_ 2a trial. It was undisputed that the police had already begun investigating the case upon the dis- covery of Latham’s body sometime before Goode's call to the police. Additionally, there was an abun- dance of evidence that Brownfield confessed repeatedly to committing the crimes, both to Farmer and to law-enforcement officials upon his arrest and in subsequent interrogations. There- fore, even if the admission of Goode’s testimony was error, it was harmless. See. e.g., Stallworth v. State, 868 So.2d 1128 (Ala.Crim.App.2001). See also Rule 45. Ala.R.App.P.* DD. Brownfield further contends that the trial court improperly prevented him from introducing the full text of statements made by a deceased indi- vidual after the State had first introduced part of that statement. The State plaved for the jury a videotape of Brownfield’s confession to the police. In that video, an investigator told Brownfield that “a cou- ple of witnesses” or “some folks” claimed to have seen Brownfield at the Wallace Lane residence: the officer then stopped mid-sentence and asked whether Brownfield remembered having to have ~ We note that at the request ot the defense, the trial court cautioned the jury that the 911-dispatch log was not offered for the truth of the matter asserted. We also note that no such instruction was requested or given with regard to Goode's testimony regarding her statements during the 911 call. While the better practice mav have been to give a limiting instruction, in the context of this case based on the evidence presented at trial. the lack of such a limiting instruction did not amount to reversible error 4 4 , P 7) aiter committing the acts \ rd e T ale the ?) ) T ? ) T | | ) 1e1iQ LLi¢ aEeteece Bose ( (] { LT trial Lal iting tnat Rr A ( 1 W en Weck and later In possesslOn | r 2 L¥OooO White 4 hr qiryiwrktnory b lo I} ) Br \ m 7 ‘ ry 7 r } , ‘ auTomMmoodiie Nis, Sraewy sce COTiCeC Tus, i 1d ¢ ; : - . ' an interence that Browntle ld was tne de} witness claimed to have seen at the Wallace ine : . . | —s ) 4 a" . | art residence On Dect mber 24 Accoraing to DD!) i | c } sae ; field. the witness. who was not identified videotape, was 4 harles Erskin Smith. whom ] Ic 14 — ; a_i. — 1; | a } Ok, 1OoOWever, omit! rad since a1ledad anda Was th unavailable to testify at trial. Brownfield clain TNAt Ene remalnadael r SIMICN S STATEMERE INCLIUACt 1 description of the person Smit! lalmed to hay seen and tnat that aescript l ( ! { ‘| ; . [Defense Out) e | { ( Li ( , tnat wnat TnHev 4 CQ tne | 4 tape rie } } ISKed a question which that questlol I \ ) , > says that they had a witness that saw son - a. : 1 > > | + body driving an ‘S85 white Chrysler at _ witness has now died, and, of course, that would normally be hearsay. But we want to make the argument that they have essentially introduced part of that statement, and we would lke to introduce the rest of the state- ment. The statement of the description of the individual does not or is not consistent with Brownfield. You know, it’s a smaller individ ual and that’s what we want to introduce, and we think because thev've been able to essen tially introduce part of that statement, then we just want to introduce the rest of it. “(Prosecutor]: Well. Judge. our position is that the defendant [sic] 1 think. is deceased, and 1 believe that is correct end that there is noth- ing in the rules of evidence or the law that permits that statement to come in or hearsay about that statement to comes in. And it does not fall within any of the exceptions to the rules. “THe CourT: | would agree with that, but how do vou address the fact that the question was asked in the statement or interrogation of the defendant? “{Prosecutor]: Well, judge, I guess my answer to that would be that if that’s the case, then any information that officers use 1n the inter- rogation or in questioning witnesses would be subject to being brought in outside the hearsay rules which again I just don’t think the law says-well, the law says that hearsay can come in based on, you know, if it’s a dying declaration which there’s no contention that that’s here. But if there has been a court IIA proceeding and there's been testimony and the availability to cross-examine on that issue by the other party which we don't have here, so | don’t know of any basis under the law that it would come in. “(Defense counsel]: Well, we could put on the record that this is a denial of my client's due process rights. The State is having its cake and eating it, too. They're able to, through the videotape, introduce an inference that my client was there on 12/24 and that someone saw him there. And now we're being denied the right to cross-examine their knowledge about that. You know, thev're getting in what they want to get in, but the truth is according to the written statement-there’s two state- ments. and this is the only two-statement wit- ness that I know of. Now, I could be wrong. but according to my files, this is the only two- statement witness, so this witness was very important to the State. And they went back—- 1 believe Detective Petty went back—well, [Detective Shane] Clarke went first and then Il believe Detective Petty went back. And | believe Detective Petty testified yesterday inat he felt like that he needed to clarify, and | may be wrong as to exactly what he said, but it was something to that effect. But now we're being precluded it appears. And we Tre asking for the right to not be precluded from getting the information that rebuts their allegation and assertion to the jury. We need the jury to hear the whole statement, and I didnt research what rule that is that [the prosecu- 56a tor} has referred to. But, first, it sounds good, but. secondly, Iam familiar that there 1s some type of rule that addresses, you know, if a par- tial statement is introduced that the whole thing should come in. Now, for more of a bet ter argument, it seems to me that just fair- ness and due process rights because the jury is going to be left with the inference that Mr. Brownfield was back there on 12/24, belteve, around noon or whenever that took place according to the question through the video. “Tore Court: But he denied that he was there that day, correct? “! Defense counsel]: He did deny that. “Tue CourT: And he said that he was there but said that it happened the next day? “(Defense counsel}: Well, the whole presump- tion of the video is that this man has done this and he’s involved and our story or the State’s story or the law enforcement’s story is what you believe. And there is direct evidence that rebuts that as there will be a lot of other evi- dence that rebuts it. But on this specific issue, we're prevented from getting that in. And, again— “THE CouRt: Well, you've got it tn that there was someone else reported at the residence on the 24th, and it wasn’t the defendant. “(Defense counsel]: Well, | agree with Your Honor on that point absolutely, I agree. But what were not being able to get in, Your Honor, is the very description of this person, which is in no way the same person as Ben Brownfield according to the witness. And, again, the State has had every opportunity well. | believe their objection here is that they will not have a right to cross-examine this witness who is now deceased. But they re not the ones that took-well, I’m not saying [the prosecutors], but the State or the prosecution is the one that had the opportunity to at least two times talk to this witness. And if they needed to talk to him anymore, you know, either him or others to further corroborate his statements, then they have had the opportu nity to do so. And it would be unfair and a denial of my client’s due process rights from being able to put this in and on that ground alone plus the ground that Gary argued. “(Prosecutor]: Well, Judge. | beheve the defense received a copy of that statement. “(Defense counsel]: Your Honor, we'll concede to that. You know, we've had that statement, and [ don’t know exactly when we got it, but I'm not going to argue that the State has with held that statement because “!Prosecutor]: Well, my point being 1s that they had an opportunity just as the State did to talk to that witness further. And it would not have changed the issue here in court if the witness has since deceased. But any further reference to that statement outside of the video in which the defendant denied being there that particular date was brought up in questioning by the defense attorneys not by the State. 58a “(Defense counsel]: And the fact that we had an opportunity to speak to him, I’m not deny- ing. But I’m not seeing the relevance of that in the context of this argument. You know, if we had talked to him for three hours, then where does that put us in this argument because we would still be at the same place? And, again, we're not disputing his statement at all. You know, whatever it says on its face is what we think the jury should hear. “Tiiz COURT: Well, I still see it as hearsay, and I don’t see that there’s an exception to that rule.” (R. 1289-93.) (Emphasis added.) As the trial court noted, the defense elicited tes- timony refuting the inference alluded to in the videotape. On cross-examination of Investigator Hood, the following exchange occurred: “(Defense counsel]: Now, are you aware of someone in the Scottsboro Police Department interviewing a gentleman on 12/24—well, I’m sorry, that interviewed a gentleman sometime after 12/25 of 2001 that purportedly saw a male approximately 5’7” or 5’8” in height at Wallace Lane on or about 12:00 noon on 12/24? “(Prosecutor]: Judge, | object to the hearsay. “(Defense counsel]: Well, I just want to know if he’s aware of that. “THE COURT: Overruled. “(Investigator Hood]: I’m not aware-well, there was a number of witnesses that state- CR, 59a ments were taken from, but there was one guy that said that he [jump-started] a white car at Wallace Lane. “(Defense counsel]: And was that along about noon on 12/24? “(Investigator Hood]: I believe that's right. “(Defense counsel]: And that person did not fit the description of the defendant; is that your understanding? ‘Investigator Hood]: Well, Mr. Brownfield said that he remembered when he got |jump- started]. “(Defense counsel]: But the individual descrip- tion of that man-now, I’m not asking you what my chent said. I’m asking you, do you know what the witness is claiming? “(Investigator Hood]: Well, | don’t know what his specific description was because | didn't take that statement.” 1229-30.) Investigator Petty testified on cross- examination that he estimated Brownfield to be approximately six feet tail and to weigh approx1- mately 230 pounds. The following exchange then occurred: “(Defense counsel]: Now, you took a statement from a Mr. Charles Erskin Smith on 12/26; is that correct? “(Investigator Petty]: Yes, sir. “(Defense counsel]: Can you tell us about that statement and what led you to him, you know, to take a statement? i a fatems [ iL)e] qone rnat C1 THE COU! Welle! mit! linve Liga Nn ¢ nint I ‘ |Wefen vnom: linvest heli ( ‘Delen e « I i ( knowled ( Lpnat |) | ‘ tial] inte! 4 ( » | ql I Investigator Petty] Defense ) ol] ( ind 1ntel ewed Nill Defen CQOul elt W I linve tLivgalto) ‘ad LI Vey | I \ more deta)l Ol wnat V1} mitt done [Defense counsel]: Ok: pul either one of these interview gia tnat duce a lead related LO th) La \nd talk d about what a lead q* Py ‘ ‘ De! ) farts t the + I | rf ’ { tue ' r ) but 1 ceienien | | | | f ‘ vv" k ; | ' ( rot nit tote | ' iz e*irif¢ i , ’ ’ ntrodaduce t } f mit! { 64a allow the defense to elicit hearsay evidence in the form of the statements of a deceased witness to law-enforcement officers investigating the mur- ders was, if error at all, harmless error. See Rule 45, Ala.R.App.P. See also Smith v. State, 745 So.2d 922 (Ala.Crim.App.1999) (exclusion of wit- ness was harmless error). y k de Brownfield also contends that the trial court erred in allowing forensic scientist Nancie Jones to testify as an expert witness because, he claims, PCR DNA analyses was outside of her area of expertise.'! Specifically, he argues that Jones had undertaken no coursework in human genetics; that she was not board-certified in any of the areas emploved in PCR DNA analysis: and that her past involvement in published research was limited to methods of testing other than PCR DNA analysis.'~ se We note that Brownfield does not challenge the admissibility of the DNA evidence itselt. Rather, his specific arguments take issue with Jones's qualifications as an expert. Thus, we need not discuss in detail the admissibility of the evidence itself other than to note that there was no error, plain or otherwise, in the admission of the DNA evi- dence at trial. See generally Blackmon v. State, [Ms. CR-01- 2126, Aug. 25, 2006] —So.2d— (Ala.Crim.App.2005) (opinion on application for rehearing) (dis-cussing the application of the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), analysis to determine the admissibility of PCR DNA evidence.). oe The State avers that this issue is raised for the first time on appeal. We note that Brownfield filed a motion chal lenging the admissibility of the DNA evidence prior to trial, and that the trial court conducted a hearing outside of the boa “‘Whether a witness is sufficiently qualified to testify as an expert 1s a question for the trial court to resolve in its discretion, and its ruling will not be disturbed on appeal unless it has abused that discretion.” Smith v. State, 698 So.2d 189, 205 (Ala.Crim.App.1996), aff'd. 698 So.2d 219 (Ala.1997). Moreover, ‘[i]t is for the jury to deter mine the weight and credibility of an expert wit- ness's testimony.’ Ar/crease v. John Deere Indus. Equip. Co., 663 So.2d 900, 902 (Ala.1995).” Adams v. State, 955 So.2d 1037, 1089 (Ala.Crim.App.2003), rev'd in part, on other grounds, 955 So.2d 1106 (Ala.2005). Here, Jones, a forensic scientist with the Alabama Department of Forensic Sciences, testi- fied extensively as to her training and experience with DNA testing; as to the procedures employed by her laboratory during PCR DNA testing; and as to PCR DNA testing in general. She testified that she had been employed as a forensic scientist since 1994 and that she was formerly employed as a laboratory technician in what is now the foren- sic-biology section from 1988 until 1992. She stated that she had a bachelor of science degree from Athens State College and that she had com- pleted graduate level course work at Alabama A&M University and the University of Alabama hearing of the jury to determine the admissibility of the evi dence. At that hearing, Brownfield questioned Jones exten sively as to her knowledge, skill, training, and areas of expertise. It appears that the trial court understood Brown- field's questioning to challenge Jones's competency to testify as an expert on the proffered DNA evidence. Even assuming that the specific allegations were preserved for appellate review, for the reasons that follow, we find no error, plain or otherwise. Oba at Birmingham, including courses in genetics, molecular biology, biochemistry, and statistics. She testified that she had on-the-job training and had participated in workshops co-sponsored by the Fk Bl and her laboratory to learn to perform PCR DNA analysis. She stated that she was a member of the American Academy of Forensic Sciences, a member of the Southern Association of Forensic Seiences, and a member of the Association of Forensic DNA Analysts and Administrators. She testified that she was the training officer for new forensic scientists hired by her department, hav- ing previously trained three forensic scientists and training a fourth. She stated that her labo ratory undertakes technical and administrative reviews of their notes and reporting, and technical reviews of their DNA process; she further stated that she underwent proficiency testing at least twice a year to compare their own proficiency to that of other scientists at laboratories around the nation, and that she had never failed a proficiency test. She also testified as to the national certifi- cations held by her laboratory, and described in detail the procedures employed by her laboratory in conducting DNA testing, including those employed during PCR DNA testing. She testified that although she did not hold a Ph.D. or board certification in any scientifie disciplines, the Department of Forensic Sciences had no such requirements for forensic scientists. She testified that she conducted “probably hundreds” of DNA tests a vear and that she had previously testified as an expert in DNA testing five or six times. (R. 1433.) Clearly, Jones’s testimony supported the trial court's decision to allow her to testify as an 67a expert witness. Having reviewed the record, we find no abuse of the trial court's diseretion in determining that Jones was qualified to testify as an expert on the State’s DNA evidence i. Brownfield further claims that the trial court improperly allowed Dr. Melissa Clinger, Brown field’s court-appointed psychologist, to testify dur ing the guilt phase of his trial about information he had provided her during her mental examina tion of Brownfield. “The general rule is that by actively pursu Ing an insanity defense and by introducing testimony of qualified psychologists or psv- chiatrists as defense witnesses, the defendant waives any potential psvchotherapist-patient privilege or privilege against self-incrimina tion against subsequent qualified testimony or rebuttal. Hx parte Day, 378 So.2d 1159 (Ala.1979): Salmon v. State, 460 So.2d 334 (Ala.Cr.App.1984); Magwood v. State, 426 So.2d 918 (Ala.Cr.App.1982). “Fifth Amendment problems may. arise, however, when an examining psychiatrist o1 psvchologist is ellowed to give testimony based upon conversations with a eriminal defendant. Rule Li.26D), mee.a.Cr.P.., addresses this problem by limiting such tes timony to the mental condition of the accused Williams v. State, 710 So.2d 1276, 1299 (Ala.Crim.App.1996). Rule 11.2(b), Ala. R.Crim.P.. OSa provides for the admissibility of mental exam) nations. as foliows “(1) The results of examinations conducted pursuant to subsection (a)(1) of this rule, Rule 11.8, or Rule 11.4 on the defendant's mental competency to stand trial shall not be admis- sible as evidence in a trial for the offense charged and shall not prejudice the defendant in entering a plea of not guilty by reason of mental disease or defect “(2) The results of mental examinations made pursuant to subsection (a)(2) of this rule and the results of similar examinations regarding the defendant's mental condition at the time of the offense conducted pursuant to Rule 11.4 shall be admissible 1n evidence on the issue of the defendant's mental condition at the time of the offense only if the defendant has not subsequently withdrawn his or her plea of not suilty by reason of mental disease or defect Whether the examination is conducted with or without the defendant's consent, no statement made by the defendant during the course ot the examination, no testimony by an examin Ing psychiatrist or psychologist based upon such a statement, and no other evidence directly derived from the defendant’s state ment shall be admitted against the detendant In any criminal proceeding, except on an issue respecting mental condition on which the defendant has testified.’ Before trial, Brownfield underwent a court ordered evaluation administered by Dr. Clinger in August 2002 to determine Brownfield’s compe- 69a tenev to stand trial and his mental state at the time of commission of the offenses. Dr. Clinger’s forensic evaluation report contains the following: (C “Prior to beginning the interview, the defen- dant was informed as to the purpose of the evaluation and limited confidentiality of the information to be obtained. He was told the results will be submitted in the form of a report to the Court, the defense attorney, and the District Attorney. He was also intormed that these results may be used in court pro ceedings either through testimony of the examiner and/or the written report, to assist reaching decisions regarding his competency to stand trial and his mental state at the time of the alleged offense, but that none of the information could be used as evidence against him concerning his guilt on any charge. An explanation that this information might be used during the penalty phase as aggravating or mitigating factors was added. Mr. Brown- field indicated he understood the purpose and limited confidentiality of the evaluation, and he reviewed and signed a written notification form indicating his willingness to proceed with the interview.” 115.) At the onset of the guilt phase of the trial, defense counsel confirmed that Brownfield was proceeding under his pleas of not guilty and not guilty by reason of mental disease or defect. (R. 768.) Throughout his opening statements, defense counsel repeated'y stated that the murders were the result of Brownfield’s addiction to metham- phetamine. Defense counsel stated, among other 70a many comments: “This is a case about death by meth.” (C. 776); “You will hear evidence that my client was totally submissive to the drug, meth, and that his brain was basically fried and that he had very, very little cognitive ability to do any- thing.” (C. 777); “[M]y client suffered from amne- sia and confusion.” (R. 777-78); and “[YJou’re going to hear testimony of what it means to falsely con- fess; and you're going to hear evidence of what a false memory is. You will hear evidence from a psychiatrist that these conditions exist in this case.” (R. 778.) Throughout the State’s case during the guilt phase of the trial, Brownfield clearly attempted to elicit evidence challenging his mental status at the time of the offenses, 1.e., attempting to show that the murders were committed while he was under the influence of Xanax and crystal metham- phetamine. During the defense’'s case, Dr. Roger Lacy tes- tified as an expert for the defense; he testified that he had examined the videotaped confessions, the police reports, Dr. Clinger’s report, and the report prepared by Dr. Joseph Embry of the Alabama Department of Forensic Sciences, and had interviewed Brownfield. According to Dr. Lacy, at the time of the murders, Brownfield was “confused, he was in a drug soup.” (R. 1736.) Dr. Lacy further testified that at the time he pur- portedly waived his Miranda rights, Brownfield was “like a two-year-old, you know, being confused and befuddled, delirium.” (R. 1737.) Finally, Dr. Lacy stated that, at tne time he made the confes- sions, Brownfield’s mental status was “confused with gradual changing from about a two-year-old Jla at the beginning to maybe the level of about a ten- year-old at best at the end.” (R. 1737.) He further stated that Brownfield’s statements were invol- untary and that Brownfield could not have made a knowing, voluntary, or intelligent statement. Dr. Lacy further testified that Brownfield was unable to remember anything from the interrogations. According to Dr. Lacy, Brownfield, because of his mental state as a result of his drug ingestion, was ina highly suggestive state and assimilated infor- mation and details relayed to him during the interrogations as his own memories, an occurrence Dr. Lacy characterized as a “false memory.” Dr. Lacy stated that Brownfield, at the time of the confessions, would not have been able to recognize that he was a suspect, would not have recognized the severity of the legal implications of what he was saying, would not have recognized the police investigators as adversaries, and would not have been able to recognize or understand his rights. Dr. Lacy further stated that at the time of the murders, Brownfield was in a state of delirium and would not have understood or accurately interpreted the events taking place around him. At the conclusion of the defense’s case, the State called Dr. Clinger as a rebuttal witness. Dr. Clinger testified without objection that she had examined Brownfield to determine his sanity at the time of the offenses; she stated that she gath- ered information from the district attorney's office and from defense counsel and had met with Brownfield twice for a total of approximately four or five hours. When asked what information she used to diagnose Brownfield, defense counsel objected and requested a sidebar, at which time a {23 bench conference was held off the record. Upon the conclusion of that bench conference, Dr. Clinger testified without objection that her goal was to evaluate Brownfield and to assess his treatment needs, if any. She stated that she per- formed a diagnostic clinical interview and admin- istered an IQ test; she testified without objection as to her conclusions regarding his intetlectual status and mental ability. Dr. Clinger testified that Brownfield was able to recall and repeat information to her, including arithmetic problems she posed to him, his educational background, and his work history. The following exchange then occurred: “(Prosecutor]: All right; did he have any mem- ory at all as to his activities on December 238, 24 and 25? “[Dr. Clinger]: He was able to provide me with an account of what he was doing during most of that time. “{Prosecutor]: All right; was he able to recall getting into a verbal dispute with his sister on the 23rd? “(Dr. Clinger]: Yes. “|Prosecutor!: And what details was he able to provide regarding that? “(Dr. Clinger]: Well, it was something about- “(Defense counsel]: Judge, | object again. That goes to the very issue that I was informing you about. And that has nothing to do with this test or his assessment, and I would object. “(JURY NOT PRESENT.) “The Court All right; do you want to state your objection? “(Defense counsel]: Well, Judge, what I’m con- cerned about is the very front page of the forensic evaluation report prepared by Dr. Clinger, she says, and I will just read it, ‘Ben Brownfield was also informed that these results may be used in court proceedings either through testimony of the examiner and/or the written report to assist reaching decisions regarding his competency to stand trial and his mental state at the time of the alleged offense but that none of the informa- tion could be used as evidence against him concerning his guilt on any charge.’ Now, my objection is that this questioning, and where | beheve the assistant district attorney was going with that is to get into the facts of what Mr. Brownfield has described to Dr. Melissa Clinger. And just because the court gives some kind of limiting instruction at some point that they are not to consider any of this in their determination of guilt[, it] 1s still highly pre}- udicial and will violate his rights, Your Honor—his due process rights because he was told that none of this could be used, and none of this information could be used as evidence against him. And this is a way to circumvent that by getting into the details of what he told her. 74a “THE COURT: Well, he has raised the issue of insanity at the time of the alleged offense, and the law is very clear that any statements that he gives to the psychologist would be admis- sible on that issue. “|Defense counsel]: Well, there is no issue of insanity, and we withdraw any claim that he was insane. And we will put that on the record, “|Prosecutor]: Judge, we would consider that to be untimely made, and they’ve already introduced evidence from their expert on his inability to recall the details. And if it’s not admissible on his mental state at the time, it certainly is to impeach Dr. Lacy’s testimony about him having no memory whatsoever of these events. “(Defense counsel}: We are not arguing that he was legally insane. That’s the term that I’m talking about, legal insanity. And nothing that we have put on or attempted to argue goes to legal insanity. “(Prosecutor]: Well, Your Honor, that was one of the questions that we asked before we got started if he was maintaining that plea and {defense counsel] stated clearly, yes, [he] was. “(Defense counsel]: Well, we have not put on any evidence to that effect. “(Prosecutor]: And in fact I think he requested an instruction to that effect. “(Defense counsel]: Well, that doesn’t mean that we’re going that route. 75a “THE COURT: Well, | asked specifically so that this issue could be addressed at the very beginning, and you told me that you definitely intended to pursue that plea of not guilty by reason of mental disease or defect. And you put on your psychiatrist. “|Defense counsel]: Well, Your Honor, we said that we were not contesting his sanity at trial or his competency at trial. And that’s what | recall telling the court that that was not going to be an issue. “Titt COURT: Right, because that issue had already been decided by the court because it had not been made an issue previously and there had been no request for a hearing on the issue of whether he was competent to stand trial. “|Defense counsel]: Well, our position now is that we’re not arguing any insanity. “THE COURT: Well, | think it’s too late. I think the door has been opened because there’s been questions asked of your psychiatrist regarding that plea. So I’m going to permit her to testify. But any statements that he made to you, you can relate, you know, if they had a bearing on your assessment of his mental state at the time of the alleged offense. Otherwise, they should not be admissible in this hearing. Do you understand? “(Dr. Clinger]: Well, Your Honor, | didn’t ask if he did it or not, and he didn’t tell me if he did it or not. THE COUR’ All right o that hould take care of that “| Defense { ounsel] Well Judge. iS the court saying that we asked our witnesses questions concerning whether the defendant was legally insane? “THE COURT: [Tm saying that questions were asked and at no time was there an objection made to those questions. And | know the p chiatrist was asked if he was suffering from a mental disease or defect, and “| Defense counsel]: Yes, that was asked “THE COURT: Right, and there was no objec tion made as if you had withdrawn that plea ‘|Defense counsel]: Okay, | see the court point “THE CouRtT: All night; let's recess for lunch Dr. Clinger then testified that Brownfield informed her that he was unhappy with his siste1 because on December 23, 2001, he had given hey some money that she was supposed to have used to obtain drugs. Dr. Clinger testified with regard to the events of December 24 that Brownfield recalled taking a shower at Farmer's residence and riding around with his friend Nick Logan and that he told Farmer what he had done. As for srownfield’s recollection of the events on Decem ber 25, Dr. Clinger testified that Brownfield told her that he remembered the officers advising him of his Miranda rights. According to Dr. Clinger she saw no indication that Brownfield suffered { if L rye | | | ) i¢ ( | A rye | ted tl | rié tf) ] ryt i] ? | ela | ( ’ ' ! { mpairn i! ac Lil Lyi uIC int r] ‘ r? if 1¢) ‘ tT | | i ‘ | ; } ' } ' r ; | ( | ASh ! | bhid)} iJ | | { ( | { | ( [?, . ; ‘ ' . t | 7. | | } { | ‘ } La qT ryrie it] , } it { Lf i if] a | f 1) tepeen. | r) | i | | ( j ? | i 1) | i | ( (J f qt? aa } Mol I ! bat ! i t s? | | " ' | ' — (Sa draw his plea of not guilty by reason of mental disease or defect did not close the door that he had already opened. As this Court stated in Lee v. State, 898 So.2d 790 (Ala.Crim.App.2001) (opinion on return to remand): “Even though the appellant ostensibly aban- doned his plea that he was not guilty by rea- son of mental disease or defect, he clearly based his defense on a contention that there was something wrong with his mental cond1- tion. Therefore, Dr. Ronan’s testimony about the results of her mental examination was admissible to refute his defense that there was something wrong with him, to rebut Dr. Blanton’s testimony that he was psychotic and mentally retarded, and to explain the incon- sistencies between her conclusions and Dr. Blanton’s conclusions. Furthermore, even if the appellant was not advised of his Miranda rights and was not told that his statements could be used against him, Dr. Ronan’s testi- mony about statements the appellant made was admissible pursuant to Rule 11.2(b)(2), Ala.R.Crim.P., because those statements were relevant and material to support her conclu- sion that he did not suffer from any mental disease or defect and that he was not mentally retarded. See Williams v. State, 710 So.2d 1276, 1299-1300 (Ala.Crim.App.1996), aff d, 710 So.2d 1350 (Ala.1997). Finally, the record does not support the assertion that the State was trying to use Dr. Ronan’s testimony to malign the appellant’s character. Rather, it shows that the State used the testimony to rebut Dr. Blanton's testimony and to explain the inconsistencies between his conelusions and her conclusions. Therefore. we do not find that there was any plain error in this regard.” The reasons set forth in Lee are equally appli- cable here. The evidence was properly admitted to rebut both Dr. Lacy’s testimony during the defense’s case, and, to some degree, the testimony elicited by the defense’s questioning of other wit- nesses attempting to portray Brownfield as unable to recall the events or to speak voluntarily with authorities. Therefore, we find no error, plain or otherwise, in the trial court’s allowance of Dr. Clinger’s testimony. G. Brownfield also argues that the cumulative effect of the trial court’s errors mandates a new trial. Although he does not specify what errors he is referring to, we note that this claim was advanced as a subpart of his assorted evidentiary claims addressed in Part I of this opinion; thus, we construe his argument to be limited to the claims addressed in Part I. As the Alabama Supreme Court has so suce- cinctly stated, the cumulative-error rule is as fol- lows: “[W]hile, under the facts of a particular case, no single error among multiple errors may be suf- ficiently prejudicial to require reversal under Rule 45, if the accumulated errors have ‘probably injuriously affected substantial rights of the par- ties,’ then the cumulative effect of the errors may require reversal.” Ex parte Woods, 789 So.2d 941, 942 n. 1 (Ala.2001) (quoting Rule 465, Ala.R.App.P.). Applying this standard, we have SOa considered these allegations of error cumulatively, and we do not find that Brownfield’s substantial rights have probably been injuriously affected. II. Brownfield next argues that the trial court erred in denying his challenges for cause of prospective jurors J.C., A.M., H.P., and D.W. Specifically, Brownfield contends that his challenges for cause of prospective jurors J.C., A.M., and H.P. were improperly denied because those prospective jurors initially indicated in response to general questions posed during voir dire that they would always vote to impose the death penalty for cer- tain convictions. He also argues that prospective juror J.C. failed to affirmatively indicate, in response to a question posed during voir dire, whether he felt that a sentence of life imprison- ment without parole was a serious sentence. He specifically contends that his challenge for cause of prospective juror D.W. should have been granted based on D.W.’s initial denial that she did not know one of the victims granddaughters. As the Alabama Supreme Court explained in Bethea v. Springhill Memorial Hospital, 838 So.2d 1 (Ala.2002), error in the trial court’s refusal to remove a prospective juror for cause is subject to the harmless-error analysis: “The application of a‘harmless-error’ analysis to a trial court's refusal to strike a juror for cause is not new to this Court; in fact, such an analysis was adopted as early as 1909: Sla ‘The appellant was convicted of the crime of murder in the second degree. While it was error to refuse to allow the defendant to challenge the juror C.S. Rhodes for cause, because of his having been cn the jury which had tried another person jointly indicted with the defendant, yet it was error without injury, as the record shows that the defendant challenged said juror perempto- rily, and that, when the jury was formed the defendant had not exhausted his right to peremptory challenges.’ “Turner v. State, 160 Ala. 55, 57, 49 So. 304, 305 (1909). However, in Swain v. Alabama, 380 U.S. 202, 219, Sea S.Ct. 824, 13 L.Ed.2d 759 (1965), overruled on other grounds, Bat- son v. Kentucky, 476 U.S. 79, 106 8.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court stated, in dicta, that ‘[t]he denial or impairment of the right is reversible error without a showing of prejudice. (Empha sis added [in Bethea |.) Some decisions of this Court as well as of the Alabama Court of Criminal Appeals reflect an adoption of this reasoning. See Dixon v. Hardey, 591 So.2d 8 (Ala.1991): Knop v. McCain, “one So.2d 229 (Ala.1989); Ex parte Rutledge, 52 2d 1118 (Ala.1988): Ex parte Beam, . 424 723 (Ala.1987); Uptain v. State, 534 So.2d 686, 688 (Ala.Crim.App.1988) (quoting Swain and cit- ing Beam and Rutledge ); Mason v. State, 536 So.2d 127, 129 (Ala.Crim.App.1988) (quoting U/ptain ). a Cy Si 2S), sZa “~..[TJhis Court has returned to the ‘harm- less-error’ analysis articulated in the Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.ed.2d 80 (1988), and [United States v.] Mar- tinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000), decisions. Because a defendant has no right to a perfect jury or a jury of his or her choice, but rather only to an ‘impartial’ jury, see Ala. Const.1901 $6, we find the harmless-error analysis to be the proper method of assuring the recognition of that right. “In this instance, even if the Betheas could demonstrate that the trial court erred in not granting their request that L.A.C. be removed from the venire for cause (an issue we do not reach), they would need to show that its rul- ing somehow injured them by leaving them with a less-than-impartial jury. The Betheas do not proffer any evidence indicating that the jury that was eventually impaneled to hear this action was biased or partial. Therefore, the Betheas are not entitled to a new trial on this basis.” 833 So.2d at 6-7 (footnotes omitted). See also Calhoun v. State, 932 So.2d 923 (Ala.Crim.App.2005). Here, as in Bethea, Brown- field has offered no evidence that the jury ulti- mately impaneled was_ biased. Brownfield concedes in his brief that he exercised a peremp- tory challenge to remove D.W. from the venire, and it is apparent from the record that prospective jurors J.C., A.M., and H.P. were not selected to serve on the jury empaneled to hear the case. S3a Therefore, even if the trial court's refusal to remove the complained-of venire members for cause was error, the error was harmless. Moreover, we note with regard to prospective jurors J.C., A.M., and H.P., that “[jJurors who give responses that would support a challenge for cause may be rehabilitated by subsequent ques- tioning by the prosecutor or the court.” Johnson v. State, 820 So.2d 842, 855 (Ala.Crim.App.2000). “The crucial inquiry is whether the veniremen could follow the court’s instructions and obey his oath, notwithstanding his views on capital pun- ishment.” McNabb v. State, 887 So.2d 929, 944 (Ala.Crim.App.2001), quoting other cases. Here, although each of the three complained-of prospec- tive jurors gave initial responses during voir dire indicating strong support in the application of the death penalty, each also indicated that they could set aside any predetermined feelings about the death penalty and follow the trial court's instruc- tions. Therefore, there was no error in the trial court’s refusal to remove prospective jurors J.C., A.M., and H.P. for cause. Admittedly, the questions surrounding prospec- tive juror D.W. raise a closer question in that there was some question as to whether a child of D.W.’s brother was Latham McCutchin’s grand- daughter. We note the following individual voir dire: “THE Court: [D.W.], | had some questions that I wanted to ask you. One of the potential witnesses in this case saw your name and thought that you might be related to [T.C.] who is Latham McCutchin’'s daughter. And | S4da beheve the relationship would be that this potential witness thought that you might be the aunt of |T.C.]s’ daughter; is that correct? “PROSPECTIVE JUROR [D.W.]: The only [T] that I know isa [T] that was with my brother when they were in high school, and they did have a child together. But I don’t have any- thing to do with her, you know, | just know her on a first name basis. And, you know, | don’t know her last name, and | don’t know the mother. “THE COURT: So you could be tne aunt of [T.C.]s’ child; is that correct? “PROSPECTIVE JUROR [D.W.]: Yes. “THE COURT: But you don’t know her or the child? “PROSPECTIVE JUROR [D.W.]: No. “THE COURT: Now, the fact that your niece, | guess it would be the granddaughter of one of the alleged victims, Mr. Latham McCutchin, would that have any impact on your verdict in this case? “PROSPECTIVE JUROR [D.W.]: No, because I have no idea of who it is. “THE CourtT: And the fact that there would be some relationship, that would have no effect whatsoever? “PROSPECTIVE JUROR [D.W.]: Well, I don’t know them. So if 1 never knew them, how could I hold them accountable? You know, it’s like Rd5a “THE COURT: Well, it would be in this case that you might have more sympathy towards them because you have come connection with the family. “PROSPECTIVE JUROR [D.W.]: | can’t have any sympathy towards anybody that I don’t know. “THE Court: All right; thank you. Do y'all have any questions? “(Defense counsel]: No. “|Prosecutor]: I think you were asked about the names, [R.M.] and [T.C.], and you don’t know either of those people? “PROSPECTIVE JUROR [D.W.]: Not on a per- sonal basis, you know, I know of them. You know, like, I] don’t know the McCutchins at all, and the only one | know is the daughter that is possibly my brother’s child. “{Prosecutor]: And what is that daughter’s name? “PROSPECTIVE JUROR [D.W.]: [R], and I only know her on a first name basis, and I’ve only seen her, like, three times. And 1 don’t know her birthday, and I don’t know how old she ts. “|Prosecutor|: That’s all. “THE COURT: Was paternity ever established? “PROSPECTIVE JUROR [D.W.]: | reaily don't know. “THE COURT: So your brother was not married to [T.C.]? 86a “PROSPECTIVE JUROR [D.W.]: No, 1t was just a fling, you know, something that happened during high school. And it was possible, but | don’t know anything for sure, and | don't know anything about it.” (R. 722-24.) Thus, although Brownfield exercised a peremp- tory strike to remove D.W. from the venire, it is clear from the following exchange that this was not the type of close familial relationship that nor- mally gives rise to concerns about partiality. The tria! court thoroughly questioned the prospective juror about her possible relationship with the vic- tim and his family and determined that the chal- lenge for cause was due to be denied. We agree with the trial court. For these reasons, Brownfield is not entitled to any relief on this claim. ITI. Brownfield next argues that Alabama’s statu- tory capital-sentencing scheme is constitutionally infirm for two reasons: (1) that pursuant to Ring vu. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the jury, and not the trial judge, must make the determination as to whether the aggravating circumstances outweigh the mit- igating circumstances; and (2) that the jury’s rec- ommendation of death must be unanimous. With regard to Brownfield’s contention that the jury, rather than the trial court, should weigh the mitigating circumstances a,ainst the aggravating circumstances, we note that nothing in Ring 87a requires such an approach. Rather, in a number of opinions decided in the aftermath of Ring, both this Court and the Alabama Supreme Court have concluded that Ring did not invalidate Alabama’s death-penalty statute, a statute that vests the ultimate sentence determination in the hands of the trial judge and not the jury. See, e.g., kx parte Hodges, 856 So.2d 936 (Ala.2003); Ex parte Waldrop, 859 So.2d 1181 (Ala.2002); Duke uv. State, 889 So.2d 1, 41 (Ala.Crim.App.2002) (opin- ion on return to remand), cert. granted, sentence of death vacated pursuant to Roper v. Simmons, 643 U.S. 561, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), Duke v. Alabama, 544 U.S. 901, 125 S.Ct. 1588, 161 L.Ed.2d 270 (2005); Turner v. State, 924 So.2d 737 (Ala.Crim.App.2002); Stallworth vu. State, 868 So.2d 1128, 1178 (Ala.Crim.App.2001) (opinion on return to second remand). In recog- nizing the narrowness of the United States Supreme Court’s holding in Ring, this Court has noted that although “[t]he Ring Court held that any aggravating circumstance that increased a sentence to death must be proved to a jury beyond a reasonable doubt,” the Ring Court “did not reach the question whether judicial sentencing or judi- cial override was constitutional.” Stallworth ov. State, 868 So.2d at 1183 (opinion on return to sec- ond remand). Further: ace Ring’s claim is tightly delineated: He con- tends only that the Sixth Amendment required jury findings on the aggravating cir- cumstances asserted against him. No aggra- vating circumstance’ related to _ past convictions in his case; Ring therefore does not challenge Almendarez-Torres v. United ssa States, 523 U.S. 224, 118 8.Ct. 1219, 140 L.Ed.2d 350 (1998), which held that the fact of prior conviction may be found by the judge even if it increases the statutory maximum sentence. He makes no Sixth Amendment claim with respect to mitigating circum stances. See Apprendi v. New Jersey, 530 U.S 466, 490-91, n. 16, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (noting “the distinction the Court has often recognized between facts in aggravation of punishment and facts in miti gation” (citation omitted [in Ping |)). Nor does he argue that the Sixth Amendment required the jury to make the ultimate determination whether to impose the death penalty. See Proffitt v. Florida, 428 U.S. 242, 252, 96 S.Ct 2960, 49 L.Ed.2d 913 (1976) (plurality opin ion) (“[I]t has never [been] suggested that jury sentencing is constitutionally required.”). He does not question the Arizona Supreme Court’s authority to reweigh the aggravating and mitigating circumstances after that court struck one aggravator. See Clemons v. Mis sissippi, 494 U.S. 738, 745, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990). Finally, Ring does not contend that his indictment was constitu tionally defective. See Apprendi, 530 U.S., at 477, n. 3, 120 S.Ct. 2348, 147 L.Ed.2d 435 (Fourteenth Amendment “has not been construed to include the Fifth Amendment right to ‘presentment or indictment of a Grand ’” 999 Jury’”). Stallworth v. State, 868 So.2d at 1183-84 (quoting Ring, 536 U.S. at 597 n. 4, 122 S.Ct. 2428) RUGn As the Alabama Supreme Court stated in Ha parte Waldrop: “|Tlhe weighing process is not a factual dete mination. In fact, the relative ‘weight’ of aggravating circumstances and mitigating cir cumstances is not susceptible to any quantum of proof. As the United States Court of Appeals for the Kleventh Circuit noted, ‘While the existence of an aggravating or mitigating circumstance is a fact susceptible to proof under a reasonable doubt or preponderance standard ... the relative weight is not.’ Ford v. Strickland, 696 F.2d 804, 818 (11th Cir.1983). This is because weighing the aggra vating circumstances and the mitigating cir cumstances 1s a process in which ‘the sentencer determines whether a defendant el) gible for the death penalty should in fact receive that sentence.’ Tutlaepa v. California, 512 U.S. 967, 972, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994). Moreover, the Supreme Court ha: held that the sentencer in a capital case need not even be instructed as to how to weigh par ticular facts when making a sentencing dec} sion. See Harris v. Alabama, 513 U.S. 504, 512,115 8.Ct. 1031, 130 L.iEd.2d 1004 (1995) (rejecting ‘the notion that “a specific method for balancing mitigating and aggravating fac tors in a capital sentencing proceeding is con stitutionally required”’ (quoting Franklin | Lynaugh, 487 U.S. 164, 179, 108 S.Ct. 2320, 101 L.idd.2d 155 (1988)) and holding that ‘the Constitution does not require a State to ascribe any specific weight to particular fac ay tors, either in avyyvravation or mitigation, to be considered by the Sentence r) “Thus, the weighing proce iol a factual determination or an clement of an offense Instead, it 1s a moral or legal judgment that takes into account a theoretically limitless set of facts and that cannot be reduced to a sci entific formula or the discovery of a discrete observable datum. Sce Caltfornia v. Ramo 163 U.S. 992, 1008, 1038 S.Ct. 3446, 77 L.Ed.2d 1171 (1983) COnce the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty, the jury| | then is free to consider a myriad of factors to determine whether death is the appropriate punish ment.’); Zant v. Stephens, 462 U.S. 862, 902 lO’ S.Ct. 2733, 77 L.Md.2d 235 (1983) (Rehn quist, J., concurring in the judgment) (‘sen tencing decisions rest on a= far-reaching Inquiry into countless facts and circumstances and not on the type of proof of particular el ments that returning a conviction does’) “In Ford vu. Strickland, supra, the defendant claimed that ‘the crime of capital murder in llorida includes the clement of mitivatiny ci cumstances not outweighing ayvyvravatiny en) cumstances and that the capital sentencing proceeding in Florida involves new findings of fact significantly affecting punishment.’ ford, 696 F.2d at 817. The United States Court of Appeals for the Kleventh Circuit rejected thi argument, holding that ‘aggravating and mit ivating Circumstances are not tacts or els 92a “Thus, the determination whether the aggra- vating circumstances outweigh the mitigating circumstances is not a finding of fact or an element of the offense. Consequently, Ring and Apprendi do not require that a jury weigh the aggravating circumstances and the miti- gating circumstances.” Ex parte Waldrop, 859 So.2d at 1189-1190 (foot- note omitted). Here, in returning guilty verdicts as to the charged capital offense of burglary-murder and the capital offense of the murder of two or more people during one act or pursuant to one scheme or course of conduct, the jury of necessity unani- mously found that two statutory aggravating cir- cumstances had been proven beyond a reasonable doubt, i.e., § 13A-5-49(3) and (4), Ala.Code 1975. See, e.g., Stallworth v. State, 868 So.2d 1128 (Ala.Crim.App.2001) (opinion on return to remand) (if the aggravating circumstance that ele- vated the punishment to death was also an ele- ment of the capital offense, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). was not violated because the jury's verdict in the guilt phase found that fact to exist beyond a reasonable doubt). See also Ex parte Waldrop, supra (jury conviction of the capital offense of murder-robbery satisfied the require- ment that an aggravating circumstance be found by the jury and the verdict itself rendered the defendant death-eligible, exposing him to a range of punishment that included the death penalty). Thus, the limited mandates of Ring have been sat- isfied in this case, because the jury unanimously 93a found at least one statutory aggravating circum- stance, making Brownfield eligible for the death penalty. What relative weight to assign the aggra- rating circumstances and mitigating circum- stances was for the trial court. See Ex parte Waldrop, 859 So.2d at 1190 (“the determination whether the aggravating circumstances outweigh the mitigating circumstances 1s not a finding of fact or an clement of the offense. Consequently, Ring and Apprendi do not require that a jury weigh the aggravating circumstances and the mit- igating circumstances.”). Therefore, Brownficld is not entitled to any relief on this claim. With regard to Brownfield’s contention that the jury’s 11-1 advisory verdict in favor of the death penalty was not a “unanimous” verdict as set out in Rule 23.1(a), Ala. R.Crim.P., which states that the “verdict of the jury shall be unanimous, shall be in writing, signed by the foreman, and shall be returned in open court,” we note that the jury's verdict as to the charged offenses was unanimous in this case. The 11-1 vote of the jury following the sentencing hearing recommending that Brownfield be sentenced to death for his commission of the charged offenses was merely an advisory sen- tencing verdict. It is well settled that Alabama law allows for the jury to return an advisory ver- dict as to sentencing in capital-murder cases and that the jury may vote to recommend the death penalty by a vote of at least 10 jurors in favor of death (12-0, 11-1, or 10-2). Further, both this Court and the Alabama Supreme Court have upheld death sentences imposed after the jury made a nonunanimous recommendation that the defendant be sentenced to death. See, e.g., 944 Ex parte McNabb, 887 So.2d 998, 1000 (Ala.2004) (jury recommended death by 10-2 vote); Stallworth v. State, 868 Soe.2d 1128, 1136 (Ala.Crim.App.2001) Gury recommended death by 10-2 vote); Irvin v. State 940 So.2d 331, 364-366 (Ala.Crim.App.2005) Gury recommended death by 10-2 vote). Accordingly, Brownfield’s argument is without merit. IV. Last, as required by §13A-5-53, Ala.Code 1973, we review the propriety of Brownfield’s convic- tions and sentence of death. Brownfield was indicted for, and convicted of, murdering three- year-old Joshua Hodges, a violation of §13A-5- 40(a)(15), Ala.Code 1975; murdering Latham McCutchin during the course of a burglary, a vio- lation of §13A-5-40(a)(4), Ala.Code 1975; and mur- dering Brenda McCutchin, Joshua Hodges, and Latham McCutchin, during one act or pursuant to one scheme or course of conduct, a violation of §13A-5-40(a}(10), Ala.Code 1975. The record reflects that Brownfield’s sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor. Section 13A-5-53(b)(1), Ala.Code 1975. The trial court’s sentencing order reflects that, with regard to each capital-murder charge, the court found the existence of the aggravating cir- cumstance that the murders were especially heinous, atrocious, or cruel: “Under the pretext of a friendly visit, the defendant was~ allowed into Latham MecCutchin’s home. Rather than a friendly 95a visit, the defendant’s sole purpose of gaining entry into the home was to kill Latham McCutchin. Minutes after being invited into Latham’s home. the defendant informed Latham that he was going to kill him. Imme- diately, Latham tried to defend himself from the defendant. He saw the defendant pull the claw hammer from his jacket and grabbed at it. During the struggle for the claw hammer, the defendant elbowed Latham and punched him several times with his fists. Dr. Embry testified that he observed a 6 1/2 inch by 1/2 inch rib bruise on Latham’s lower chest. After punching Latham with his fists, the defendant began to hit Latham repeatedly with the claw hammer. Latham suffered at least ten forceful blows to the head. He had numerous lacera- tions to his head and fractures on his skull. Dr. Embry described the lacerations as blunt- force injuries to the scalp. He said some injuries extended all the way to the bone and the bone was driven into the brain or dis- placed. He described one 3-inch-by-3-inch sec- tion of bone missing from Latham’s head. Latham suffered defensive wounds to his arms and hands in an attempt to ward off the defendant's blows. According to Dr. Embry, Latham suffered bruising to his forearm and hands. Latham also suffered fractured ribs and a fractured vertebra. Latham didn’t die instantly. According to Dr. Embry, the bleed- ing around the left kidney and blood in the bladder indicates that Latham survived fora period of time. The defendant stabbed Latham in the heart with a knife leaving a 1 1/4 incl 46a wound over the heart and extending into it. The defendant cut Latham’s throat with the knife from one side of his neck to the other. The defendant told investigators that he stabbed Latham in the chest and cut his throat because he kept breathing and making noises. He also told his girlfriend that ‘they don’t die instantly.’ Clearly, Latham McCutchin suffered intense pain for a signif- icant periad of time prior to his death. Addi- tionally, Latham McCutchin © suffered psychologically. The court can only imagine the intense fear that Latham must have felt when his brother-in-law told him that he was going to kill him. Latham was trapped in his own home having been awakened from sleep for the night. Latham had no weapon to defend himself against the much younger and stronger defendant. He saw the defendant pull the claw hammer from his jacket and was helpless to prevent the attack on his life. The murder of Latham McCutchin was committed under circumstances that caused fear and pain to Latham before his death. Further- more, while Latham lay dying or dead in his living room floor, the defendant wrote a mes- sage on a wall in the house. He wrote, ‘This was necessary Ben. I’m sorry for your family. They deserved it.’ Afterward, the defendant showered in the victim’s bathroom, gathered his blood-soiled clothes, the claw hammer, and knife, and left the residence to dispose of the evidence. The court finds that Latham’s mur- der was a conscienceless or pitiless crime and unnecessarily torturous to the victim. The Q7a court finds that the defendant's brutality to Latham exceeds that which is normally pre- sent in a capital case. “Brenda Whitehead McCutchin and her three- yvear-old grandson, Joshua Dewayne Hodges were murdered in their bed. Both Brenda and Joshua were asleep when the defendant first struck Brenda with aclaw hammer. After the defendant hit Brenda with the claw hammer, Joshua woke up crying. At that point, the defendant began attacking both Brenda and Joshua with the claw hammer. Brenda tried to defend herself and/or Joshua. Dr. Embry tes- tified that Brenda suffered lacerations to her face, injuries to her shoulder and right side of the body, broken jaw on both sides of the face, and broken left middle and ring fingers with extensive blunt-force injuries to the hands. Both Brenda and Joshua suffered fractured skulls. The defendant told his girlfriend that ‘they don’t die instantly.” According to Dr. Embry, a person may live longer with a frac- tured skull because the brain can swell. One autopsy photograph shows Brenda's herniated brain protruding from the skull. In addition to a fractured skull, Joshua suffered lacerations consuming a large area around the right eye. He suffered injuries to both sides of his face, the right side of his neck, and the upper torso. Perhaps in an attempt to ward off the blows, Joshua suffered a 1/4 inch cut to his right Iit- tle finger. Ultimately Brenda and Joshua died from their injuries but not before each of them experienced intense pain from the savage 98a beatings. Brenda suffered approximately twenty forceful blows to her head. Joshua suf- fered approximately sixteen forceful blows to his head. As did Latham, Brenda and Joshua suffered psychologically. Surely, Brenda was horrified when she awoke to see her own brother attacking her with a claw hammer as she lay helpless in her own bed. During the attack, there was sufficient time for Brenda to fear not only for her life but to fear for the life of her three-year-old grandson who was sleep- ing just inches away. Certainly, Brenda expe- rienced mental suffering and agony upon realizing that her brother intended to kill not only her, but also her grandson and that she was helpless to prevent it. Joshua could not possibly have escaped mental suffering. He was awakened from sleep by the sounds of the attack on his grandmother. When he cried out, he saw his beloved uncle raise a claw hammer to him as well. Certainly, Joshua experienced extreme shock, fright, and horror before his death. The murders of Brenda McCutchin and Joshua Hodges were committed under cir- cumstances that caused fear and pain to them before their deaths. While Brenda and Joshua lay dying or dead in their bed, the defendant left messages in various rooms of the house. He wrote, ‘Fuck this God,’ ‘Fuck this world,’ ‘T’ll be dead too,’ ‘It’s about to pick up,’ ‘Don’t look for me,’ “Tammy I love you Always Never 4-get Baby,’ ‘Killing is my business,’ and ‘My whole life I have been ran over. It’s stopping now.’ Afterward, the defendant retrieved the claw hammer and proceeded to Latham 99a McCutchin's house to kill Latham. The court finds that the murders of Brenda McCutchin and Joshua Hodges were conscienceless or pitiless crimes and unnecessarily torturous to the victims. The court finds that the brutality the defendant exhibited to Brenda and to Joshua exceeds that which is normally pre- sent in a capital case. “The court finds that the State proved beyond a reasonable doubt that each of the murders of the three victims was especially heinous, atro- cious or cruel compared to other capital offenses.” (C. 350-53.) The trial court also found that the murders were committed by one act or pursuant to one scheme or course of conduct. Section 13A-5- 49(9), Ala.Code 1975. The trial court’s sentencing order further reflects that the court also found as an aggravating circumstance in the count charg- ing Brownfield with Latham’s death that the mur- der was committed during the commission of a first-degree burglary. Section 13A-5-49(4), Ala.Code 1975. The State presented ample evidence indicating that the murders were committed by one act or pursuant to one scheme or course of conduct. Thus, this aggravating circumstance was correctly applied in this case. Similarly, there was an abundance of evidence indicating that Brownfield went to Latham’s res- idence intending to kill him; thus, there was ample evidence that that murder was committed during the commission of a first-degree burglary. Therefore, this aggravating circumstance was cor- 100a rectly applied as to the count charging Brownfield with killing Latham. Finally, for the circumstance that the murders were especially heinous, atrocious. or cruel to exist, the murders must have been unnecessarily torturous to the victims. See Ex parte Kyzer, 399 So.2d 330, 334 (Ala.1981). In this determination we must consider whether the violence involved in achieving the killing went beyond what was necessary to cause death, whether the victims experienced appreciable suffering after a swift assault, and whether there was psychological tor- ture. See Norris v. State, 793 So.2d 847 (Ala.Crim.App.1999). The evidence supports the above-quoted portion of the trial court’s findings that the murders were especially heinous, atro- cious, or cruel. Brownfield savagely bludgeoned to death his 47-year-old sister and her 3-year-old grandson as they lay helpless in their bed; both victims awakened upon the first blows, and each suffered defensive wounds among the many wounds sustained during the extended attacks; and Brenda surely suffered knowing that she could not defend either herself or her young grandson as they were being beaten to death, as too did young Joshua, who was awakened from his sleep to the sight of his uncle attacking first his grandmother a few inches from him, and then the attack alternating between him and his grand- mother. Similarly, 64-year-old Latham saw the commencement of the attack that killed him in his own home, at the hands of his brother-in-law; that attack lasted for some time as well, and Latham suffered a number of wounds, some defensive. Finally, the evidence indicated that the victims 101a survived for some period following the com- mencement of the attacks. We have consistently held that brutal beatings that result in death meet the statutory definition of especially heinous, atrocious, or cruel. See Brooks v. State, 695 So.2d 176 (Ala.Crim.App.1996), aff'd, 695 So.2d 184 (1997); Smith v. State, 795 So.2d 788 (Ala.Crim.App.2000); Ashley v. State, 651 So.2d 1096 (Ala.Crim.App.1994); McGahee v. State, 632 So.2d 976 (Ala.Crim.App.), aff'd, 6382 So.2d 981 (Ala.1993); Freeman v. State, 555 So.2d 196 (Ala.Crim.App.1988). Clearly, there was sufficient evidence from which the jury could conclude that the manner of death in this case was especially heinous, atrocious, or cruel when compared to other capital cases. ‘Thus, this aggravating cir- cumstance was correctly found by both the jury and the circuit court. The trial court found one statutory mitigating circumstance was present-that Brownfield had no significant history of prior criminal activity. Sec- tion 13A-5-51 (1), Ala.Code 1975. The trial court’s sentencing order further addressed the evidence of nonstatutory mitigating circumstances’ that defense counsel had presented: “During the penalty phase of the trial, the defendant presented evidence of nonstatutory mitigating circumstances. “Evidence exists that the defendant, during his childhood, suffered from obesity, was rejected by his peers, and provided the pri- mary care to his ailing parents. During ado- lescence, the defendant experimented with drugs to gain friendships. From the age of 102: twenty years to the age of twenty-four years, the defendant made a lot of friends but was regularly abusing drugs. The following years, the defendant’s drug use continued to worsen. The court finds that the defendant suffered from a substance dependence disorder that went untreated. “The defendant presented evidence that he suffers from dysthymie disorder, a mental ill- ness that exists when a person has chronic feelings of sadness and low, self-esteem. The court recognizes that the defendant experi- enced periods of sadness-and low self-esteem during his life but does not find that these periods were severe or chronic. The evidence shows that the defendant was doted on by his parents and had a relatively happy childhood. During early adulthood, the defendant social- ized with his extended family and friends and maintained employment. The defendant was able to function appropriately in society although he did not always choose to do so. “The defendant presented evidence that he was detrimentally affected by the death of his parents. Surely, the defendant experienced sadness and loss by the death of his parents. The defendant was an adult, however, when his parents died. The court does not find that the defendant was harmed by his parents’ deaths. “The evidence established that the defendant demonstrated the capacity to love and care for another human being during his life. The defendant loved and cared for his elderly par- 1O3a ents. The evidence further established that the defendant had friends and relatives that cared for him Jased on the evidence, the court finds that the defendant is a low risk for future violence in prison and would adapt well to prison env! ronment. The court finds that, once taken into custody, the defendant cooperated with law enforcement and confessed to the crimes. The court further finds that the defendant ha: expressed remorse for the deaths of the vic tims.” (C. 359-60.) The circuit court weighed the aggra vating circumstances and the mitigating circum stances, considered the jury's recommendation of death, and sentenced Brownfield to death. Con trary to Brownfield’s bare assertion on appeal, there 1s no indication that either the jury's advi sory verdict or the trial court’s imposition of the death penalty was imposed as a result of passion, prejudice, or some other arbitrary factor, Pursuant to § 13A-5-53(b)(2), Ala.Code 1975, we must independently weigh the aggravating cir- cumstances and the mitigating circumstances to determine the propriety of Brownficld’s sentence of death. Brownfield, in a cold and brutal manner, savagely beat his 47-year-old sister, Brenda, and her 3-year-old grandson, Joshua, to death with a hammer and then wrote assorted comments on the ralls and attempted to set fire to the house. He then drove across town to the house where his 64 year-old brother-in-law, Latham, lived, which he entered under the ruse of a friendly visit, before killing Latham by savagely beating him with the ame nammer he had used to kill Brenda an Joshua and stabbing him in the heart with a knife. Further, the evidence indicated that all three victim ulfered defensive wounds and that they survived the initial blows and were alive for ome period during the attacks. This Court is con vinced, alte, Independe ntiyv we rr hing the avora Valtiny circumstance and Lr mitivatis Circumstance that death was the appropriate punishment [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2310%3A2. Public record. Not legal advice.