GAVIN v. STATE

SHAW, Judge.

The appellant, Keith Edmund Gavin, was convicted of two counts of capital murder in connection with the murder of William Clinton Clayton, Jr. The murder was made capital (1) because it was committed during the course of a robbery in the first degree, see § 13A-5-40(a)(2), Ala.Code 1975, and (2) because Gavin had been convicted of another murder within 20 years of the present murder, see § 13A-5-40(a)(13), Ala.Code 1975. Gavin was also convicted of one count of attempted murder for shooting at a law-enforcement officer. The jury recommended, by a vote of 10-2, that Gavin be sentenced to death for his capital-murder convictions. The trial court accepted the jury's recommendation and sentenced Gavin to death. In addition, the trial court sentenced Gavin, as a habitual felony offender, to life imprisonment for the attempted-murder conviction.

The evidence adduced at trial indicated the following. A little after 6:30 p.m. on March 6, 1998, Clayton, a contract courier for Corporate Express Delivery Systems, Inc., was shot and killed while sitting in a Corporate Express van outside the Regions Bank in downtown Centre. Clayton had finished his deliveries for the day and had stopped at Regions Bank to obtain money from the ATM in order to take his wife to dinner.

There were four eyewitnesses to the crime, two of whom positively identified Gavin as the shooter. Ronald Baker and Richard Henry, Jr., testified that they were stopped at a traffic light near the Regions Bank and the courthouse in downtown Centre at the time of the shooting. According to Baker and Henry, they saw a man get out of a vehicle, walk to a van parked on the street, and shoot the driver of the van. Upon hearing the gunshots, Baker and Henry immediately fled the scene; neither could identify the shooter.

Larry Twilley testified that he, too, was stopped at a traffic light by the Regions Bank in downtown Centre at the time of the shooting. Twilley testified that while he was stopped at the light, he heard a loud noise, turned, and saw a man with a gun open the driver's side door of a van parked on the street and shoot the driver of the van two times. According to Twilley, the shooter then pushed the driver to the passenger's side, got in the driver's seat, and drove away. Twilley testified that when he first saw the shooter, he noticed something black and red around his head, but that after the shooter got in the van and drove away, the shooter no longer had anything on his head; at that point, Twilley said, he noticed that the shooter had very little hair. At trial, Twilley positively identified Gavin as the shooter.

Dewayne Meeks, Gavin's cousin and an employee of the Illinois Department of Corrections, testified that in early February 1998, he and Gavin traveled from Chicago, Illinois, where they were living, to Cherokee County, Alabama "[t]o pick up some girls ... and just to really get away." (R. 651.) Meeks said that they stayed for a weekend and then returned to Chicago. In early March 1998, Meeks said, Gavin wanted to return to Alabama to find a woman he had met in February. Meeks testified that Gavin told him that if he drove Gavin to Chattanooga, Tennessee, to meet the woman, the woman would reimburse him for the travel expenses. Meeks said that he agreed to drive Gavin to Tennessee and that Meeks's wife and three-year-old son also accompanied them.

Meeks testified that they left Chicago on the night of March 5, 1998, arrived in Chattanooga on the morning of March 6, 1998, and checked into a Super 8 Motel. Meeks said that he rented two rooms at the motel, one for him and his family, and one for Gavin. After they arrived, Meeks said, Gavin made a telephone call, and he and Gavin then drove to a nearby gasoline service station to wait for the woman Gavin had come to see. According to Meeks, the woman did not show up and Gavin then asked him to drive to Fort Payne, Alabama, so that Gavin could find the woman. Meeks agreed and they drove to Fort Payne, but they were again unsuccessful at locating the woman. After they failed to locate the woman in Fort Payne, Meeks said, they drove to Centre to find the woman.

Meeks testified that at approximately 6:30 p.m. on March 6, 1998, he and Gavin arrived in downtown Centre. When they stopped at the intersection near the courthouse and the Regions Bank, Meeks said, Gavin got out of Meeks's vehicle and approached a van that was parked nearby. According to Meeks, he thought Gavin was going to ask the driver of the van for directions. However, when Meeks looked up, he saw that the driver's side door of the van was open, and Gavin was holding a gun. Meeks stated that he watched as Gavin fired two shots at the driver of the van. According to Meeks, immediately after seeing Gavin shoot the driver of the van, he fled the scene, and Gavin got in the van and followed him. Meeks testified that Gavin honked the horn of the van and flashed the lights in an attempt to get Meeks to stop. However, Meeks refused to stop because, he said, he was scared. Meeks stated that he drove back to Chattanooga and told his wife what had happened. He and his wife and child then checked out of the motel and drove back to Chicago.

Meeks testified that when he arrived in Chicago, he immediately informed several of his friends who were in law-enforcement about the shooting. As a result of his conversations with friends, Meeks said, he realized the gun used by Gavin was probably the gun that had been issued to him by the Illinois Department of Corrections. Meeks said that he then checked his home and determined that his gun was, in fact, missing. According to Meeks, he kept the gun in a drawer at home and he had not seen the gun for approximately two weeks before the shooting. Meeks testified that he immediately reported the gun as missing to law enforcement. Meeks admitted that he did not mention to law enforcement when he reported the missing gun that he believed the gun had been used in a shooting in Alabama, but he said that he did inform his boss at the Illinois Department of Corrections that he believed the gun had been used in the shooting. After reporting the gun missing and discussing the shooting with several friends, Meeks said, he then contacted Alabama law enforcement to inform them of his knowledge of the shooting. On March 9, 1998, and again on April 6, 1998, Meeks was interviewed in Chicago by investigators from Alabama. After the interviews, Meeks said, he was indicted for capital murder in connection with the murder of Clayton; that charge was subsequently dismissed.

Danny Smith, an investigator with the District Attorney's Office for the Ninth Judicial Circuit, testified that on the evening of March 6, 1998, he was returning to Centre from Fort Payne when he heard over the radio that there had been a shooting and that both the shooter and the victim were traveling in a white van with lettering on the outside. As he proceeded toward Centre, Investigator Smith said, he saw a van matching the description given out over the radio, and he followed it. According to Investigator Smith, the van was traveling approximately 75 miles per hour and the driver was driving erratically. Investigator Smith testified that he was speaking on the radio with various law-enforcement personnel regarding stopping the van when the van turned on its blinker and stopped on the side of the road. When he pulled in behind the van, Investigator Smith said, the van abruptly pulled back onto the road and sped away. Investigator Smith said that he continued pursuing the van and that, after he turned on his emergency lights, the van stopped in the middle of the road, near the intersection of Highways 68 and 48. Investigator Smith testified that when the van stopped, the driver got out of the vehicle, turned, fired a shot at him, ran in front of the van, turned and fired another shot at him, and then ran into nearby woods. Investigator Smith testified that the driver of the van was black, and that he was wearing a maroon or wine-colored shirt, blue jeans, and some type of toboggan or other type of cap. At trial, Investigator Smith positively identified Gavin as the person who had gotten out of the van and shot at him.

After Gavin fled into the woods, Investigator Smith said, he went to the van and checked the victim. According to Investigator Smith, the victim was still alive, but barely, and he radioed for an ambulance. Investigator Smith testified that when he first went to the van, he saw blood between the two front bucket seats and on the passenger seat; however, there was "very little blood" on the driver's seat. (R. 567.) Investigator Smith said that when emergency personnel removed the victim from the van, blood was transferred to the driver's seat by the personnel who had to enter the van to secure the victim and remove him.

Investigator Smith also testified that, within minutes of Gavin's fleeing into the woods, several law-enforcement officers arrived at the intersection of Highways 48 and 68, and the wooded area into which Gavin had fled was encircled and sealed off so that "no one could come out and cross the road without being seen." (R. 563.) Members of several different law-enforcement agencies then conducted a search for Gavin.

At approximately 9:45 p.m., Tony Holladay, a dog handler for the Limestone Correctional Facility, arrived at the scene with his beagle. Holladay testified that when he first arrived, he obtained information indicating that Investigator Smith had chased the suspect for approximately 20 yards, but had stopped short of the woods. At that point, Holladay said, he had Investigator Smith show him the exact spot he had stopped the pursuit so that the dog would not track Investigator Smith's trail from the roadway but would track the trail of the person who had entered the woods. Holladay testified that he then carried his dog to that spot and put him down. Holladay said that the dog immediately picked up a scent and tracked it into the woods to a creek. Holladay testified that he saw a man, whom he positively identified at trial as Gavin, standing in the creek under a bush, and that when Gavin saw him, Gavin attempted to flee. Holladay stated that he ordered Gavin to stop, but that Gavin did not stop until Holladay fired a shot over Gavin's shoulder.

Gavin was then handcuffed and several law-enforcement officers assisted in maneuvering Gavin out of the creek, up the embankment, and through the woods to the roadway. Kevin Ware, a deputy with the Cherokee County Sheriff's Department, testified that he participated in the search for Gavin and that he was present as Gavin was brought out of the creek. Deputy Ware stated that he heard Gavin say "I hadn't shot anybody and I don't have a gun." (R. 780.) The evidence indicated that from the time Gavin was discovered by Holladay to the time he made the statement in Deputy Ware's presence, no one had had any conversation with Gavin regarding the shooting or why he was being arrested.

The record reflects that Clayton was pronounced dead upon arrival at the hospital. A subsequent autopsy revealed three gunshot wounds to his body caused by two bullets. Stephen Pustilnik, a medical examiner with the Alabama Department of Forensic Sciences, testified that one bullet passed through Clayton's left arm, entered his chest on the left side damaging both of Clayton's lungs and his heart, and exited the right side of the chest. The record reflects that that bullet was later found lodged in the passenger-side door of the van. The second bullet, Dr. Pustilnik said, entered Clayton's left hip and lodged in his back. Dr. Pustilnik testified that the wounds to Clayton's arm and hip would not have bled much because the bullets entered the muscles and the bleeding would have been contained inside those muscles. He stated that the wound to the chest would have bled quite a bit, and that, after blood filled the chest cavity, it would then exit the body at the lowest point. In addition, Dr. Pustilnik testified that there would not have been much "blow back" from the wounds, i.e., because the location of the wounds, the blood from the shots would not have blown backwards from the body toward the shooter. Dr. Pustilnik testified that the cause of Clayton's death was multiple gunshot wounds.

The record reflects that no "usable" fingerprints were found in the van and that no bloodstains were found on Gavin's clothing. (R. 926.) However, the State presented evidence indicating that a motel-room key was found in Gavin's pants pocket after his arrest; the key fit room 113 at the Super 8 Motel in Chattanooga where Meeks and Gavin had rented rooms. In addition, two .40 caliber shell casings were found in the street outside the Regions Bank in downtown Centre, one .40 caliber shell casing was found in the roadway at the intersection of Highways 48 and 68, and a red and black toboggan cap was found near the woods by the intersection of Highways 48 and 68. The bullet found lodged in the passenger-side door of the van and the bullet in Clayton's back were also determined to be .40 caliber. Although law enforcement was unable to find the murder weapon on the night of the crime, several days later, on March 13, 1998, a .40 caliber Glock pistol was found near the woods where Gavin had been discovered. The evidence indicated that the three shell casings and the two bullets had been fired from the pistol, and that the pistol belonged to Dewayne Meeks. The State also presented evidence indicating that in 1982, Gavin had been convicted of murder in Cook County, Illinois. Gavin had served approximately 17 years of a 34-year sentence and had been released on parole only a short time before Clayton's murder.

The State also presented the testimony of Barbara Genovese, a supervisor at the Cherokee County jail. Genovese testified that in April 1998, both Gavin and Meeks were incarcerated at the jail, in separate cells. At one point, Genovese said, when she got Meeks and another inmate out of their cells to take them outside for exercise, Gavin called out to her from his cell and asked if he could go outside and exercise with Meeks and the other inmate. Genovese said that she told Gavin that he could not go outside with Meeks, and that Gavin asked her why. According to Genovese, she told Gavin that he could not go outside with Meeks because when Meeks had initially been brought to the jail, Gavin had become loud and unruly, "screaming and yelling and banging on the doors." (R. 1001.) At that point, Genovese said, Gavin said "Dewayne didn't do anything ... I did it" and "Dewayne should not be in here." (R. 1002.) Genovese testified that she did not know what Gavin was referring to when he said "I did it." (R. 1002.)

On appeal, Gavin raises 30 issues, many of which he did not raise by objection in the trial court. Because Gavin was sentenced to death, his failure to object at trial does not bar our review of these issues; however, it does weigh against any claim of prejudice he now makes on appeal. See Dill v. State, 600 So.2d 343 (Ala.Crim.App.1991), aff'd, 600 So.2d 372 (Ala.1992); Kuenzel v. State, 577 So.2d 474 (Ala.Crim.App.1990), aff'd, 577 So.2d 531 (Ala.1991).

Rule 45A, Ala.R.App.P., provides:

"Plain error" has been defined as error "`so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings.'" Ex parte Womack, 435 So.2d 766, 769 (Ala.1983), quoting United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir.1981). "To rise to the level of plain error, the claimed error must not only seriously affect a defendant's `substantial rights,' but it must also have an unfair prejudicial impact on the jury's deliberations." Hyde v. State, 778 So.2d 199, 209 (Ala.Crim.App.1998), aff'd, 778 So.2d 237 (Ala.2000). This Court has recognized that "`[t]he plain-error exception to the contemporaneous-objection rule is to be "used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result."'" Burton v. State, 651 So.2d 641, 645 (Ala.Crim.App.1993), aff'd, 651 So.2d 659 (Ala.1994), quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), quoting in turn United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982).

I.

Gavin contends that "capital indictments are returned in an arbitrary and capricious or discriminatory manner in the ninth judicial circuit." (Issue I in Gavin's brief at p. 25.) Specifically, he argues that grand juries in the ninth judicial circuit, which includes Cherokee and DeKalb Counties, are twice as likely to return a capital indictment against an African-American defendant than against a Caucasian defendant when there are circumstances that qualify the offense as a capital offense, i.e., robbery, burglary, etc. According to Gavin, grand juries have a duty to indict defendants on the highest possible offense and the failure to indict Caucasian defendants for capital crimes in the ninth judicial circuit violates his right to equal protection, his right to due process, and his right to be free from cruel and unusual punishment. Therefore, Gavin concludes, his capital indictment should be dismissed and he should be reindicted for noncapital murder. Because Gavin raised this issue for the first time in his motion for a new trial, it was not timely. See Rule 15.2(a), Ala.R.Crim.P. ("[o]bjections based on defects in the commencement of the proceeding or in the charge, other than lack of subject matter jurisdiction or failure to charge an offense, may be raised only by pretrial motion as provided in Rule 15.3"), and Rule 15.3(a)(1), Ala.R.Crim.P. ("[a] motion under Rule 15.2 must be made ... at or before arraignment or by such later date as may be set by the court"). Thus, we may review it only for plain error. See Rule 45A, Ala.R.App.P.

In his motion for a new trial, filed on February 4, 2000, and at the hearing on his motion for a new trial,1 Gavin argued that there was a statistical disparity in capital indictments in the ninth judicial circuit, which, he claimed, showed that capital indictments were returned in a discriminatory manner. He argued that of the total number of crimes he claimed were committed in the ninth judicial circuit between 1992 and 2000 that qualified for capital treatment, 86 percent were indicted capitally, but only 50 percent of those capital-qualifying crimes committed by Caucasians were treated as capital offenses in the indictments. He also maintained that although African-Americans constituted roughly 3 percent of the population in the ninth judicial circuit, approximately 40 percent of the capital indictments returned in that circuit were against African-American defendants. In support of his motion for a new trial, he presented statistical evidence regarding the number of murder indictments in the ninth judicial circuit and the race of the defendants in those cases; the number of those cases that he claimed were eligible for treatment as capital; and the number of those cases that were indicted capitally. In addition, he presented the testimony of several law-enforcement officers with the DeKalb County Sheriff's Department and with the Fort Payne Police Department regarding several homicides that had occurred in DeKalb County that, he said, should have been indicted capitally, but that were not solely because the defendants were Caucasian.

With respect to his equal-protection claim, Gavin presented no evidence indicating that the grand jury that indicted him did so with a discriminatory purpose. "[A] defendant who alleges an equal protection violation has the burden of proving `the existence of purposeful discrimination.'" McCleskey v. Kemp, 481 U.S. 279, 292, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), quoting Whitus v. Georgia, 385 U.S. 545, 550, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967). Gavin presented no evidence specific to his own case that would support an inference that race played a role in his being indicted for capital murder; he presented only evidence regarding other indictments in the ninth judicial circuit. However, for the reasons set forth below, this evidence was not sufficient to raise an inference of discrimination for purposes of equal protection, or to show a violation of due process or the prohibition against cruel and unusual punishment.

First, Gavin's argument is based on the return of indictments in the ninth judicial circuit as a whole, not the return of indictments in the county in which he was indicted — Cherokee County. All of Gavin's statistics and all of the evidence he presented at the hearing on the motion for a new trial focused on the ninth judicial circuit as a whole — in fact, all of his testimonial evidence from law-enforcement officers concerned crimes committed in DeKalb County. However, grand juries are drawn from counties, not circuits. See § 12-16-1 et seq., Ala.Code 1975; Rule 12, Ala.R.Crim.P. Therefore, even if DeKalb County grand juries were returning indictments in a discriminatory fashion, that fact would not affect Gavin's constitutional rights because he was not indicted in DeKalb County; he was indicted in Cherokee County. The statistics Gavin presented to the trial court in support of his motion for a new trial reflect that all of the homicides he claimed were eligible for capital treatment in Cherokee County were, in fact, indicted capitally.2 (C. 340-42.) Gavin has failed to show that capital indictments in Cherokee County, the county in which he was indicted, are returned in an arbitrary, capricious, or discriminatory manner; therefore, he has failed to show a violation of his constitutional rights.

Second, even if we were to consider the evidence and statistics regarding the crimes in DeKalb County, we would still find that Gavin has failed to show that indictments in the ninth judicial circuit are returned in an arbitrary, capricious, or discriminatory manner. Gavin's argument is premised on the assumption that grand juries are under an affirmative duty to indict for the highest possible offense. Gavin has cited no law, and we have found none, that supports that assertion.3 Rule 12.3(c)(1), Ala.R.Crim.P., provides that grand juries have a duty to "[i]nquire into all indictable offenses committed or triable within the county," and Rule 12.3(d)(1), Ala.R.Crim.P., provides that grand juries have the authority to return indictments. However, nothing in Rule 12.3 states that grand juries have an affirmative duty to indict in all circumstances as Gavin appears to contend.

In addition, after thoroughly reviewing all of the evidence Gavin presented regarding those cases in DeKalb County that he claims should have been indicted capitally, we note that most of the cases about which Gavin complains were clearly not capital eligible,4 and, based on the limited evidence Gavin actually presented regarding the crimes, it is highly questionable whether the remaining cases were capital eligible.5

Furthermore, Gavin's evidence consisted solely of the testimony of various law-enforcement personnel who investigated the crimes regarding what they had discovered during their respective investigations. However, Gavin presented no evidence indicating, and he does not argue, that the testimony he presented at the hearings on the motion for a new trial was the same testimony that was presented to the grand juries that returned the indictments in those cases. "[I]t is within the discretion of the district attorney to call or not to call certain witnesses in the presentation of the offense before the grand jury although those witnesses are subpoenaed by the district attorney, the foreman of the grand jury or the clerk of the circuit court, `on the application of the grand jury.'" Allen v. State, 380 So.2d 313, 327 (Ala.Crim.App.1979), quoting § 12-16-197, Ala.Code 1975. Therefore, even if the circumstances surrounding these crimes contained a capital-qualifying element, as Gavin contends, we do not know whether any evidence of the capital element, i.e., burglary, robbery, etc., was actually presented to the grand jury. Nor do we know whether the district attorney chose to pursue a capital charge with respect to any of these crimes. "`[I]f a prosecutor has possible cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, rests entirely in his discretion.'" Piggly Wiggly No. 208, Inc. v. Dutton, 601 So.2d 907, 910 (Ala.1992), quoting 63A Am.Jur.2d Prosecuting Attorneys § 24 (1984)(emphasis added). For all we know, in the cases Gavin claims were capital, the prosecutor chose not to pursue a capital charge with the grand jury, or failed to present witnesses who could have given testimony indicating that there was a circumstance that qualified the offense as capital.

Based on the evidence presented, we conclude that Gavin failed to prove that capital indictments in the ninth judicial circuit are returned in an arbitrary, capricious, or discriminatory manner. Therefore, we find no error, plain or otherwise, as to this claim.

II.

Gavin contends that § 13A-5-40(a)(13), Ala.Code 1975, is unconstitutional. (Issue III in Gavin's brief.)

Section 13A-5-40(a)(13) provides:

(Emphasis added.)

Gavin contends that the 20-year limit in § 13A-5-40(a)(13) is arbitrary and that it violates his equal-protection and due process rights, and the ban on cruel and unusual punishment. Gavin concedes that in Hubbard v. State, 382 So.2d 577 (Ala.Crim.App.1979), aff'd, 382 So.2d 597 (Ala.1980), judgment set aside on other grounds, 405 So.2d 695 (Ala.1981), this Court upheld § 13-11-2(a)(13), Ala.Code 1975 (repealed),6 the predecessor to § 13A-5-40(a)(13), against these same constitutional attacks. See also Carroll v. State, 599 So.2d 1253 (Ala.Crim.App.1992), aff'd, 627 So.2d 874 (Ala.1993)(applying Hubbard to § 13A-5-40(a)(13)). Nevertheless, he requests that we overrule Hubbard. We decline to do so. For the reasons stated in Hubbard, the 20-year limit in § 13A-5-40(a)(13) is not unconstitutional.

Gavin also contends that § 13A-5-40(a)(13) violates equal protection guarantees and the ban on cruel and unusual punishment when it provides that the prior murder conviction "shall include murder in any degree as defined at the time and place of the prior conviction." Gavin argues that because some jurisdictions define as "murder" conduct that would constitute only "manslaughter" in Alabama, such as provocation manslaughter, a person convicted of a provocation homicide in a jurisdiction labeling that crime as a degree of "murder," upon committing a subsequent murder in Alabama, would be eligible for capital treatment merely because the prior crime was labeled a "murder" in that jurisdiction, while if the same person had been convicted of the provocation homicide in Alabama, he or she would not be eligible for capital treatment for a subsequent murder because the prior crime was "manslaughter" in Alabama, not "murder." According to Gavin, because "the determining factor in qualifying a murder as capital [under § 13A-5-40(a)(13)] is not the conduct of the party, but the statutory nomenclature of the jurisdiction in which the predicate murder conviction was obtained ... the statute acts to create materially different outcomes for identical behaviors." (Gavin's brief at p. 67.) In addition, Gavin argues that the statute's "deference to the criminal codes of other jurisdictions" is an unconstitutional delegation of the legislature's power to define crimes. (Gavin's brief at p. 67.)

In J.L.N. v. State, [Ms. CR-00-2209, October 25, 2002] ___ So.2d ___ (Ala.Crim.App.2002), this Court stated:

___ So.2d at ___.

Gavin does not claim that § 13A-5-40(a)(13) is unconstitutional as applied to him, i.e., he does not argue that the conduct underlying his prior murder conviction in Illinois does not constitute "murder" in Alabama or that he is being treated more harshly than individuals whose prior conduct was similar to his. Rather, Gavin's sole argument is that § 13A-5-40(a)(13) may violate the constitutional rights of someone at some point in the future. Gavin does not have standing to argue that § 13A-5-40(a)(13) is unconstitutional if applied to third parties in hypothetical situations.

The record reflects that the prior conduct underlying Gavin's prior murder conviction falls within the definition of murder in § 13A-6-2, Ala.Code 19757; therefore, § 13A-5-40(a)(13) is constitutional as applied to Gavin. We decline to reach the question of the constitutionality of § 13A-5-40(a)(13) in any other situation.

III.

Gavin contends that he was denied a fair and impartial trial because of pretrial publicity, which he claims was extensive and prejudicial. (Issue XI in Gavin's brief.) According to Gavin, there was extensive coverage of the case in newspapers "not only in Cherokee County, but also from daily newspapers in ... nearby cities" that "saturated the small media market of Cherokee County." (Gavin's brief at pp. 111-12.) Because Gavin raised this issue for the first time in his motion for a new trial,8 it was untimely. See, e.g., Williams v. State, 710 So.2d 1276, 1322 (Ala.Crim.App.1996), aff'd, 710 So.2d 1350 (Ala.1997). Therefore, we may review it only for plain error. See Rule 45A, Ala.R.App.P.

Oryang v. State, 642 So.2d 979, 982-83 (Ala.Crim.App.1993). Moreover, "the passage of time is a factor that can bring objectivity to a case in which the pretrial publicity has been extensive." Ex parte Travis, 776 So.2d 874, 878 (Ala.2000).

Gavin has failed to establish that the pretrial publicity in this case so "pervasively saturated" the community as to render the court proceedings nothing more than a "hollow formality" or that he suffered actual prejudice. Oryang, at 983. Gavin cites to only one newspaper article that was printed shortly after his arrest; he offers nothing more than the bare assertion that the record, in particular the juror questionnaires, shows that the "case received near saturation coverage." (Gavin's brief at p. 111.) The juror questionnaires reflect that approximately half of the prospective jurors had read or heard about the case through media coverage; the majority of those, however, indicated that they had only heard about it when it had first happened, approximately 20 months before the trial.

Whitehead v. State, 777 So.2d 781, 801-02 (Ala.Crim.App.1999), aff'd, 777 So.2d 854 (Ala.2000). There is no indication in the record, and Gavin does not argue otherwise, that any juror had a fixed opinion of Gavin's guilt or that the verdicts were not impartially rendered on the evidence presented at trial.

Therefore, we find no error, plain or otherwise, as to this claim.

IV.

Gavin contends that the trial court erred in denying his pretrial requests to remove his appointed counsel. (Issues IV and X in Gavin's brief.) Gavin makes two arguments in this regard; we address each in turn.

A.

First, Gavin contends that the trial court erred in denying his written pretrial motion to remove both his appointed counsel.

The record reflects that on September 28, 1998, over 13 months before his trial began in early November 1999, Gavin filed a pro se motion with the trial court requesting that his appointed counsel, Bayne Smith and John Ufford, be removed and that new counsel appointed. He listed the following grounds in his motion: (1) "conflict of interest"; (2) "ineffective assistance of counsel"; (3) "misrepresentation"; and (4) "plain lack of interest." (C. 17.) At a hearing on October 13, 1998, Gavin withdrew the motion. He indicated to the trial court that he was satisfied with counsel's representation and that he believed they were acting in his best interests. He also told the court that, although there had been some issues with respect to counsel's availability to meet with him and discuss the case, "we got everything understood now as far as the availability of me seeing them when I need to see them about certain matters." (R. 9.) At a subsequent hearing on November 2, 1998, the trial court again mentioned Gavin's pro se motion to remove his appointed counsel and inquired whether Gavin was still satisfied with Smith and Ufford's representing him, to which Gavin replied that he was.

On July 14, 1999, a little over three months before his trial began, Gavin filed a pro se motion "To Renew Motion to Dismiss Counsel." (C. 69.) In that motion, Gavin indicated that he wanted to renew his previous motion to dismiss counsel on the same grounds listed in the previous motion and to have new counsel appointed to represent him. The trial court held a hearing on the motion on August 10, 1999. At the hearing, Gavin stated that he did not feel his attorneys were putting enough "emphasis" on his innocence; that they were not ready for trial; that they were "biased and inaccurate"; that he and Smith did not "agree upon anything whatsoever" and had had a conflict from the beginning; that they had not investigated the case properly or interviewed the witnesses in Chicago whom he had asked them to talk with; and that they were not keeping him informed of the progress in the case. (R. 1552.) Gavin requested that new counsel be appointed who were "not acquainted or associated with the surrounding counties of Cherokee [and] not familiar with the publicity surrounding the case." (R. 1553.) In response to Gavin's complaints, Smith9 told the court that he was prepared to go to trial; that he had hired an investigator and a mitigation expert to investigate the various leads Gavin had provided them with; and that the investigator was traveling to Chicago that day to investigate the witnesses referred to by Gavin and that the only reason the investigator had not gone to Chicago earlier was because the court had only recently authorized the funds for the trip. After hearing from Gavin and Smith, the court noted that, based on what it had seen, Gavin's attorneys had spent an "impressive amount of time and effort" on the case and had, in fact, convinced the court to authorize more funds than it had ever authorized in any other case. (R. 1557.) In addition, the prosecutor noted for the record that he and his staff had had more contact with defense counsel in preparation for this case than in any other case he had tried and that he believed Gavin's attorneys had done a great deal of work on Gavin's behalf. The court took the motion under advisement and issued an order denying the motion on August 12, 1999.

Baker v. State, [Ms. CR-95-0292, January 12, 2001] ___ So.2d ___, ___ (Ala.Crim.App.2001).

Gavin has failed to show that his counsel had a conflict of interest or that there was a "total lack of communication" between him and his counsel that would have prevented the preparation of an adequate defense. At most, Gavin lacked confidence in his attorneys, and he and his counsel lacked "a meaningful relationship." However, neither of those qualities are guaranteed by the Sixth Amendment. The trial court did not abuse its discretion in denying Gavin's pretrial motion to remove his appointed counsel.

B.

Second, Gavin contends that the trial court erred in denying his oral motion to remove his appointed counsel made on the second day of jury selection.

The record reflects that at the beginning of the second day of jury selection, after the trial court had qualified the venire and divided it into panels, and after the venire had completed the juror questionnaires, Gavin orally moved for a mistrial and to have his lead attorney, Bayne Smith, removed as counsel on the grounds of "conflict of interest, misrepresentation, and poorly [sic] advisement."10 (R. 293.) Gavin told the court that he and Smith had been "bickering back and forth about the truth, the facts, the evidence, and the law" and that, in the last day, Smith had been pressuring him to accept a plea offer from the prosecutor. (R. 294.) He stated, however, that his relationship with his second attorney, John Ufford, was "neutral," but noted that Ufford "shares the same views of Mr. Smith" and that when he had asked Ufford to take over as lead counsel before trial, Ufford had declined. (R. 296.) In response to Gavin's claim that Smith had been pressuring him to accept a plea agreement, the trial court noted: "[I]t appears to me that no such pressure has resulted in any inappropriate or improper result. I mean, you've resisted any such pressure, you're here today having rejected any suggestion or any offer." (R. 301.) The trial court then denied Gavin's motions.

On appeal, Gavin contends that the trial court's denial of his motion to remove Smith as his lead counsel denied him his right to represent himself because, he says, he made a "particularized request to proceed pro se." (Gavin's brief at p. 74.) The record refutes this claim. Contrary to Gavin's contention, at no point during the colloquy did he request to proceed pro se. In addition, a review of the colloquy clearly shows that Gavin did not want to proceed pro se. As the State correctly points out in its brief to this Court, Gavin's request to remove his counsel was directed solely at Smith. Gavin specifically stated that he and Smith had been having problems communicating, but that his relationship with Ufford was "neutral," and he never requested that Ufford be removed as his counsel, thus indicating that he did not, in fact, want to proceed pro se. However, even assuming that Gavin's request was directed at both Smith and Ufford, Gavin did not merely move to have counsel removed, he requested a mistrial, thus further showing that he did not want to proceed pro se, but that he wanted the trial delayed so that new counsel could be appointed. Contrary to Gavin's contention, his right to represent himself is not implicated in this case. See, e.g., Ex parte Clemons, 720 So.2d 985 (Ala.1998).

We find no abuse of discretion on the part of the trial court in denying Gavin's oral motion to remove his counsel. Gavin alleged only that he and Smith had been "bickering" about the facts, the evidence, and the law, and that Smith had been pressuring him to accept a plea agreement. As the trial court correctly noted, Gavin obviously withstood whatever "pressure" Smith allegedly placed on him — he rejected the plea offer. In addition, Gavin's apparent disagreement with Smith about the facts, the evidence, and the law was simply not sufficient to warrant removing Smith as counsel. As this Court noted in Cox v. State, 489 So.2d 612 (Ala.Crim.App.1985):

489 So.2d at 622. (Some emphasis in Cox; some emphasis added.) The trial court did not err in denying Gavin's oral motion to remove his counsel.

V.

Gavin contends that he was denied a fair and impartial trial because, he says, African-Americans are systematically excluded from grand-jury and petit-jury venires in Cherokee County. (Issue V in Gavin's brief.) He argues that the jury-selection process in Cherokee County violates the fair-cross-section requirement of the Sixth Amendment and the Equal Protection Clause of the Fourteenth Amendment. Because Gavin raised this issue for the first time in his motion for a new trial, it was not timely. See, e.g., Sistrunk v. State, 630 So.2d 147 (Ala.Crim.App.1993). Therefore, we review it only for plain error. See Rule 45A, Ala.R.App.P.

At the hearing on his motion for a new trial, Gavin introduced into evidence the list of jurors who had been summoned for grand jury service the week that he was indicted; the list of the jurors who had served on the grand jury that indicted him; the list of jurors who had been summoned for jury service the week of his trial; 1990 census data listing the number of African-Americans in Cherokee County by age group; and 1990 census data listing the number of African-Americans in Cherokee County who owned vehicles and the number of African-Americans who did not own vehicles. In addition, Gavin argued that 6.6% of the population in Cherokee County was African-American,11 but that, due to systematic undercounting of African-Americans, it "should be presumed that the situation is worse than the calculations indicate." (R. 1436.)

With respect to the grand jury that indicted Gavin, the record indicates that 160 people were summoned for grand jury service that week, of which 6, or 3.75%, were African-American. Several of the summonses went undelivered and several jurors were excused or disqualified. The panel from which the grand jury was selected consisted of 45 people, of which 1, or 2.22%, was African-American. All 18 members of the grand jury that indicted Gavin were Caucasian. With respect to the petit jury venire, the record reflects that 300 people were summoned for jury service, of which 16, or 5.33%, were African-American. Subtracting those summonses that were undelivered and those jurors who were disqualified or excused by the court, 67 people served on the venire from which Gavin's petit jury was selected, of which 6, or 8.95%, were African-American. The jury that convicted Gavin consisted of 11 Caucasians and 3 African-Americans.

Gavin presented no evidence as to the process Cherokee County uses to summon its jurors, and the record is not entirely clear on that point. During the first hearing on Gavin's motion for a new trial, the prosecutor indicated that jurors are randomly selected from lists of licensed drivers in Cherokee County produced by the Administrative Office of Courts. At the second hearing on Gavin's motion for a new trial, the trial court indicated that, in addition to driver's licenses, identification cards may also be used in the process, although the court indicated that it was not sure whether that was true or not. However, as noted above, Gavin introduced evidence of the number of African-Americans in Cherokee County who did and did not own vehicles, and, based on that evidence, he argued to the trial court that the percentage of African-Americans who do not own vehicles was significantly higher than the percentage of Caucasians who do not own vehicles and that, therefore, the use of driver's licenses to summon jurors systematically excludes a large portion of the African-American population in Cherokee County. Given the lack of evidence as to the selection process used in Cherokee County and Gavin's argument at the hearing on his motion for a new trial, which was based on the assumption that Cherokee County used driver's licenses to summon jurors, we assume for purposes of addressing this issue that Cherokee County randomly selects its jurors from lists of licensed drivers.12

"[T]he American concept of the jury trial contemplates a jury drawn from a fair cross section of the community." Taylor v. Louisiana, 419 U.S. 522, 527, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). Under the Sixth Amendment, "petit juries must be drawn from a source fairly representative of the community"; however, an accused is "not entitled to a jury of any particular composition." Id. at 538, 95 S.Ct. 692. "`[I]t is the source from which the venire is selected that must be fairly representative of the community, rather than the jury actually chosen.'" Gamble v. State, 791 So.2d 409, 425 (Ala.Crim.App.2000), quoting Travis v. State, 776 So.2d 819, 838 (Ala.Crim.App.1997), aff'd, 776 So.2d 874 (Ala.2000). As this Court noted in Sistrunk:

630 So.2d at 149-50. "When raising a claim under [the fair-cross-section] requirement, a defendant `has the burden of establishing a prima facie case of a "fair cross section" violation.'" Id. at 149, quoting Pierce v. State, 576 So.2d 236, 241 (Ala.Crim.App.1990).

Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979).

Gavin has satisfied the first prong of the Duren test — African-Americans are a distinctive group in the community. However, he has failed to establish the second and third prongs of the Duren test — he has not shown that African-Americans are not fairly and reasonably represented on grand and petit jury venires in Cherokee County and that any suggested underrepresentation of African-Americans on grand and petit jury venires in Cherokee County is the result of systematic exclusion inherent in the jury-selection process.

Travis, 776 So.2d at 838, quoting Stanton v. State, 648 So.2d 638, 640-41 (Ala.Crim.App.1994). "In the absence of a showing of systematic exclusion, the showing of a disparity between the percentage of blacks in the population of the county in which venue is situated and the percentage of blacks on the venire does not establish a violation of the fair cross-section requirement." Stewart v. State, 623 So.2d 413, 415 (Ala.Crim.App.1993).

As noted above, Gavin presented evidence regarding the composition of the grand-jury and petit-jury venires in his case. That evidence indicated that African-Americans were underrepresented on the grand jury venire, but that they were overrepresented on the petit jury venire.13 However, he failed to present any evidence regarding the composition of other grand and petit jury venires in Cherokee County. He also failed to show that there was any systematic exclusion of Africans-Americans inherent in the jury-selection process." `Random selection from a list of licensed drivers has been held to be an acceptable manner in which to select a jury.'" Acklin v. State, 790 So.2d 975, 985 (Ala.Crim.App.2000), quoting Stanton, 648 So.2d at 641. See also Carroll v. State, 852 So.2d 801 (Ala.Crim.App.1999), aff'd in pertinent part, remanded on other grounds, 852 So.2d 821 (Ala.2001), on return to remand, 852 So.2d 830 (Ala.Crim.App.2001), rev'd on other grounds, 852 So.2d 833 (Ala.2002), and the cases cited therein. Although Gavin introduced evidence indicating that the percentage of African-Americans in Cherokee County who do not own vehicles is higher than the percentage of Caucasians in Cherokee County who do not own vehicles, as the prosecutor correctly pointed out at the hearing on the motion for a new trial, merely because someone does not own a vehicle does not mean that person does not have a driver's license. Thus, Gavin's statistics regarding vehicle ownership do not overcome the well-established law upholding the use of driver's licenses in summoning juries. Gavin has failed to establish a violation of the fair-cross-section requirement in the selection of grand-jury and petit-jury venires in Cherokee County.

Likewise, Gavin has failed to establish an equal-protection violation in the selection of grand-jury and petit-jury venires in Cherokee County. To prove an equal-protection violation in the context of jury selection, an accused has the burden to establish that the jury-selection process employed resulted in the substantial underrepresentation of a cognizable group in the community. See Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977). The accused must establish: (1) that the group alleged to have been excluded "is one that is a recognizable, distinct class"; (2) that the group has been substantially underrepresented on jury venires "over a significant period of time"; and (3) that there was purposeful discrimination against members of the underrepresented group, which will be presumed if the selection procedure "is susceptible of abuse or is not racially neutral." Id. at 494, 97 S.Ct. 1272.

As noted above, African-Americans are a distinct group; thus, Gavin has established the first element under Castaneda. However, also as noted above, Gavin failed to establish that African-Americans have been underrepresented on jury venires in Cherokee County over a period of time; he only presented evidence of the composition of the grand-jury and petit-jury venires in his case. Finally, Gavin has not established, nor has he alleged, purposeful discrimination, and we conclude that random selection of jurors from a list of licensed drivers is a race-neutral selection process not susceptible of abuse.

Therefore, we find no error, plain or otherwise, as to this claim.

VI.

Gavin contends that the trial court erred in denying his motion made pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), because, he says, the State improperly struck jurors on the basis of their race. (Issue VI in Gavin's brief.)

After the jury was struck, was administered the oath, was given preliminary instructions regarding sequestration and the format the trial would take, and was recessed for the evening, Gavin made the following objection to the State's peremptory strikes:

(R. 48159-82.) The trial court denied Gavin's Batson motion on two grounds: (1) that it had been waived because he had not made the motion until after the jury had been sworn, and (2) that he had failed to establish a prima facie case of racial discrimination. Both rulings were correct.

First, contrary to Gavin's contention, his Batson motion was untimely.14 "To be timely, a Batson objection must be interposed before the jury is empaneled and sworn." DeFries v. State, 597 So.2d 742, 750 (Ala.Crim.App.1992).

Wal-Mart Stores, Inc. v. Goodman, 789 So.2d 166, 175 (Ala.2000). In this case, Gavin's motion was not made until after the venire had been dismissed, the jury had been sworn, and the trial court had given its preliminary instructions to the jury. In addition, nothing in the record indicates that Gavin was prevented from making his Batson motion in a timely fashion. Therefore, the trial court's initial ruling that the motion was untimely was correct. Moreover, because Gavin's Batson motion was not timely, we may review the trial court's alternative ruling that Gavin failed to establish a prima facie case of racial discrimination only for plain error. See Rule 45A, Ala.R.App.P.

The record reflects that there were 67 people on the venire, 6 of whom were African-American. The State used 3 of its 20 peremptory strikes to remove African-Americans from the venire. Gavin argues that the State's removal of 3 African-Americans constituted a prima facie case of racial discrimination because, he says, "[t]he percentage of the State's peremptory strikes employed against Africans was over twice their percentage in the venire panel, and over two and one-quarter times their percentage in the general population." (Gavin's brief at p. 82.) Gavin's argument is based solely on statistics. However, statistics alone are not sufficient to establish a prima facie case of racial discrimination.

In addressing a similar issue in Ex parte Trawick, 698 So.2d 162 (Ala.1997), the Alabama Supreme Court stated, in pertinent part:

698 So.2d at 167-68. See also Ex parte Pressley, 770 So.2d 143 (Ala.2000).

Similarly, here, Gavin has offered no evidence, nor has he alleged, that the African-American veniremembers struck by the State shared only the characteristics of race, that anything in the type or manner of the State's statements or questions during the voir dire examination indicated an intent to discriminate against African-American jurors, that there was a lack of meaningful voir dire directed at African-American jurors, that African-American jurors and Caucasian jurors were treated differently, or that the State had a history of using peremptory challenges in a manner that discriminated against African-American veniremembers. Rather, Gavin offers only statistics regarding the number and percentage of strikes used by the State to remove African-American jurors from the venire. "[W]hile such statistical evidence can play a role in establishing a prima facie case, that type of evidence alone cannot support a prima facie case." Armstrong v. State, 710 So.2d 531, 534 (Ala.Crim.App.1997). Based on our review of the record, the trial court did not err in denying Gavin's Batson motion.

VII.

Gavin contends that the trial court erred in allowing certain testimony and in admitting certain pieces of evidence during both the guilt-phase and the penalty-phase of his trial. (Issues VII, VIII, and IX in Gavin's brief.) We address each of Gavin's claims in turn.

A.

Gavin contends that the trial court erred in permitting the State to introduce evidence indicating that he had previously been convicted of murder because, he says, the prior conviction was improper evidence of his bad character. During the guilt-phase of the trial, the State introduced into evidence a certified copy of a statement of conviction indicating that on June 9, 1982, Gavin had been convicted of murder in Cook County, Illinois. The State also presented testimony from Severia Morris, a parole supervisor with the Illinois Department of Corrections, regarding Gavin's prior conviction. Gavin did not object to the admission of the statement of conviction or to Morris's testimony; therefore, we may review this issue only for plain error. See Rule 45A, Ala.R.App.P.

Gavin was charged under § 13A-5-40(a)(13), Ala.Code 1975, with murder made capital because he had been convicted of murder in the 20 years preceding the present crime. Count II of the capital indictment specifically charged:

(C. 10.) Gavin's 1982 murder conviction was an element of the capital offense that the State was required to prove beyond a reasonable doubt; therefore, evidence of that conviction was properly admitted. See, e.g., Ex parte Arthur, 472 So.2d 665, 667 (Ala.1985); Peraita v. State, [Ms. CR-01-0289, May 30, 2003] ___ So.2d ___ (Ala.Crim.App.2003); and Cosby v. State, 627 So.2d 1059 (Ala.Crim.App.1993). Moreover, we note that the trial court gave the jury the following limiting instruction regarding the prior conviction:

(R. 1194-95.) We find no error, plain or otherwise, as to this claim.

B.

Gavin also contends that the trial court erred in admitting evidence of his 1982 murder conviction and evidence of a 1979 burglary conviction because, he says, there was no showing that he had been represented by counsel for either of those convictions. Because Gavin did not object to the admission of these prior convictions on this ground at trial, we review this claim only for plain error. See Rule 45A, Ala.R.App.P.

As noted above, during the guilt-phase of the trial, the State introduced into evidence a certified copy of a statement of conviction indicating that Gavin had been convicted of murder in 1982 in Cook County, Illinois. The certified copy stated, in part:

(C. 102.)(Emphasis added.) During the sentencing hearing before the trial court, the State also introduced into evidence a certified copy of a statement of conviction indicating that Gavin had also been convicted of burglary in 1979 in Cook County, Illinois.15 The certified copy of the burglary conviction stated, in part:

(C. 180.)(Emphasis added.)

It is well settled that "[a]n uncounseled prior conviction cannot be used to support a finding of guilt or to enhance punishment." Ex parte Reese, 620 So.2d 579, 580 (Ala.1993). "The State bears `the burden of proving a valid prior conviction in which appellant was either represented by counsel or waived same.'" Reynolds v. State, 615 So.2d 94, 97 (Ala.Crim.App.1992), quoting Meadows v. State, 473 So.2d 582, 588 (Ala.Crim.App.1985). In Jackson v. State, 502 So.2d 858, 865 (Ala.Crim.App.1986), this Court held that, where documents pertaining to a prior conviction showed that the appellant had been represented by counsel at arraignment and at the entry of his plea, a presumption arose that he was represented by his counsel during the entire proceedings and the burden shifted to the appellant to prove otherwise. See also Shepard v. State, 539 So.2d 449, 450 (Ala.Crim.App.1988)("Because the record clearly shows that the appellant was represented by counsel when he made his motion to enter a guilty plea, there is a presumption that he was represented by counsel during the entire proceedings and it is his burden to prove otherwise.").

In this case, the record affirmatively shows that Gavin was represented by counsel in both of his prior convictions both at arraignment and at the time of the convictions. Thus, there is a presumption that he was represented by counsel throughout the entire proceedings, and Gavin has failed to rebut that presumption. Therefore, we find no error, much less plain error, in the admission of Gavin's prior convictions.

C.

Gavin contends that the trial court erred in admitting into evidence at the sentencing phase of his trial a document entitled "Official Statement of Facts" which sets forth the facts surrounding his prior murder conviction. He argues that the document was inadmissible hearsay that did not fall within any exception to the hearsay rule and that violated his right to confrontation. Gavin did not object to the admission of the document on the ground that it violated his right to confrontation; therefore, we review that claim only for plain error. See Rule 45A, Ala.R.App.P.

After the jury returned its guilt-phase verdicts, but before the sentencing phase of the trial began, the court held a hearing outside the presence of the jury regarding the "Official Statement of Facts." The court ruled that the last paragraph of the statement would have to be redacted,16 but that the remainder of the document would be admissible pursuant to § 13A-5-45(d), Ala.Code 1975, as relevant to sentencing, and that Gavin, who had been provided with the statement after the jury's guilt-phase verdicts, which were returned on Saturday before sentencing was to begin on Monday, had a fair opportunity to rebut the facts in the document.17

During the sentencing hearing, the State called Severia Morris, an Illinois parole supervisor, to testify. During her testimony, she identified State's Exhibit 42, the redacted version of the "Official Statement of Facts" that was part of Gavin's parole file. Through questioning, the prosecutor attempted to lay a predicate for admission of the document under the business-records exception to the hearsay rule.18 After questioning Morris about the document on voir dire, Gavin objected to admission of the document on three grounds. He argued that it was hearsay and that the State had failed to lay the proper predicate for admission of the document under the business-records exception to the hearsay rule. He also argued that the document was inadmissible under § 13A-5-45(d), Ala.Code 1975, which, he said, should be strictly construed in his favor to prevent admission of the document because, according to Gavin, "the defense has not had the opportunity to properly rebut this document, we did not have access to the record of trial which is the only official source of facts from which that document could have been prepared, that we were given investigation only and not the official record of trial in determination of the facts." (R. 1234.) Finally, he argued that the document was irrelevant and was more prejudicial than probative because, he said, both aggravating circumstances relating to the prior conviction — that he was on parole at the time of Clayton's murder, see § 13A-5-49(1), Ala.Code 1975, and that he had previously been convicted of another capital offense or a felony involving the use or threat of violence to the person, see § 13A-5-49(2), Ala.Code 1975 — had been proven beyond a reasonable doubt by virtue of the guilt-phase verdict finding him guilty of capital murder pursuant to § 13A-5-40(a)(13), Ala.Code 1975. The trial court overruled Gavin's objections and admitted the document.

The document, signed by an assistant state attorney in Illinois, states the following regarding the prior conviction:

(C. 144.)

"At the sentence hearing evidence may be presented as to any matter that the court deems relevant to sentence and shall include any matters relating to the aggravating and mitigating circumstances referred to in Sections 13A-5-49, 13A-5-51, and 13A-5-52." § 13A-5-45(c), Ala.Code 1975. Section 13A-5-45(d), Ala.Code 1975, specifically provides:

(Emphasis added.)

After reviewing the record, we conclude that the "Official Statement of Facts" was properly admitted under § 13A-5-45(d). The document had probative value and was relevant to sentencing. As noted above, with respect to the prior conviction, the State pursued two aggravating circumstances — that Gavin was on parole at the time of Clayton's murder and that Gavin had previously been convicted of a capital offense or a felony involving the use or threat of violence to the person. The facts surrounding Gavin's prior murder conviction were relevant and probative and properly admitted to show the violent nature of the prior offense. See Dill v. State, 600 So.2d 343, 364 (Ala.Crim.App.1991), aff'd, 600 So.2d 372 (Ala.1992)(holding that hearsay evidence of the circumstances surrounding the defendant's prior robbery conviction "was properly admitted to show the violent nature of the offense"); Siebert v. State, 562 So.2d 586, 598 (Ala.Crim.App.1989), aff'd, 562 So.2d 600 (Ala.1990)(holding that "testimony regarding the violence of the appellant's prior manslaughter offense was relevant and of probative value in the sentencing aspect of the trial"); and Johnson v. State, 399 So.2d 859, 864 (Ala.Crim.App.1979), aff'd in pertinent part, rev'd on other grounds, 399 So.2d 873 (Ala.1979)(holding that hearsay evidence "[t]hat the defendant had been involved in a prior robbery where great violence had been perpetrated against the victim" was properly admitted under § 13-11-3, Ala.Code 1975, the predecessor to § 13A-5-45(c) and (d), Ala.Code 1975, as probative and relevant to the sentencing determination).

Moreover, we conclude, as did the trial court, that Gavin was provided a fair opportunity to rebut the facts in the document. Gavin stated at trial that he did not have access to the "official record" from his previous conviction, but that he had "investigation only." (R. 1234.) We do not believe that Gavin's not having the official record of his previous trial denied him a fair opportunity to rebut the facts of the document; his reference to "investigation only" indicates that he had at least some information from the investigation of the prior murder. In addition, in addressing a similar claim regarding the opportunity to rebut hearsay evidence in Ex parte Dunaway, 746 So.2d 1042 (Ala.1999), four Justices on the Alabama Supreme Court noted that "[a]lthough he had a constitutional right not to do so, Dunaway, in an effort to rebut the [hearsay] testimony of the State's witnesses..., could have testified during the sentencing phase, as he chose to do during the guilt phase."19 746 So.2d at 1048. Although Gavin did not testify at the guilt phase of his trial, as the appellant did in Ex parte Dunaway, he nevertheless could have testified at the sentencing phase in an effort to rebut the facts regarding the prior murder. Therefore, we find that Gavin was afforded a fair opportunity to rebut the facts in the document as required by § 13A-5-45(d).

Further, we find no violation of Gavin's right to due process and confrontation.

McNabb v. State, 887 So.2d 929, 968-69 (Ala.Crim.App.2001).

Ex parte Dunaway, 746 So.2d at 1047-48.20

Although the State did not demonstrate that the assistant state attorney who made the document was unavailable, we find that doing so was not required in this case because the utility of trial confrontation was remote. In addition, we find that the document had a minimal indicia of reliability.

With respect to reliability, the State argues that the document was reliable because it fell within the business-records exception to the hearsay rule. See Rule 803(6), Ala.R.Evid. (which provides that "[a] memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness" is admissible as an exception to the hearsay rule). Although we do not discount the possibility that the document could constitute a business record under Rule 803(6), after reviewing the record in this case we find that the State failed to lay the proper predicate for its admission as a business record. As noted above, the State introduced the document through the testimony of Morris, the Illinois parole supervisor who kept a copy of the document in her records. The document, however, was not made by Morris, it was made by an assistant state attorney. Although the document was retained, and probably relied on, by Morris in the regular course of her business activity, neither of these occurrences is sufficient to make the document Morris's business record under Rule 803(6). It is clear from the testimony that if the document constituted a business record, it was the assistant state attorney's business record, not Morris's business record; therefore, Morris could not lay the predicate for admission of the document under the business-records exception to the hearsay rule. See Mayo v. City of Rainbow City, 642 So.2d 524 (Ala.Crim.App.1994).

In addition, we find that the document did not fall within the public-records exception to the hearsay rule. See Rule 803(8), Ala.R.Evid. (which provides, in part, that "[r]ecords, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth ... the activities of the office or agency, or ... matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, when offered against the defendant in criminal cases, matters observed by police officers and other law enforcement personnel" are admissible as an exception to the hearsay rule). The facts and circumstances surrounding the murder in Illinois do not constitute the "activities of the" Illinois state attorney's office. In addition, the crime was not "observed" by the assistant state attorney who made the statement of facts; therefore, although, as noted below, the assistant state's attorney had a duty imposed by law to write the statement of facts, the facts of the crime would not constitute "matters observed pursuant to duty imposed by law."21

Although, based on the record, the document does not fall within any of the exceptions to the hearsay rule, we nevertheless find that it bears indicia of reliability because it has particularized guarantees of trustworthiness. As noted above, the document was prepared by an assistant state attorney, an officer of the court. In addition, it was prepared pursuant to a duty imposed by Illinois law. See 730 Ill. Comp. Stat. Ann. 5/5-4-1(d) (2003)(which provides, in part, that "[w]hen the defendant is committed to the Department of Corrections, the State's attorney shall and counsel for the defendant may file a statement with the clerk of the court to be transmitted to the department, agency, or institution to which the defendant is committed to furnish such department, agency or institution with the facts and circumstances of the offense for which the person was committed"). Because the maker of the document was an officer of the court who was under a duty imposed by law to make the document, we believe there was incentive for the statement to be accurate. Therefore, we conclude that the admission of the "Official Statement of Facts" did not violate Gavin's right to confrontation.

Accordingly, the "Official Statement of Facts" regarding Gavin's prior murder conviction was properly admitted into evidence at the sentencing phase of the trial.

D.

Gavin contends that the trial court erred in allowing the State to introduce into evidence during the guilt-phase of his trial a mug shot of him that had been taken in connection with his 1982 Illinois murder conviction. He maintains that the State failed to meet the three requirements for admission of mug shots as set forth in Ex parte Long, 600 So.2d 982 (Ala.1992), and that the mug shot was highly prejudicial in that it "portray[ed him] as a `bad' or `dangerous' person." (Gavin's brief at p. 93.)

During the testimony of Severia Morris, the Illinois Department of Corrections parole supervisor, the State asked if Morris had a photograph in her file of the "Keith Gavin" who had been convicted of murder in Illinois in 1982; she said that she did, and Gavin objected to admission of the photograph. The trial court overruled Gavin's objection and admitted the photograph into evidence. The photograph was a typical mug shot with juxtaposed frontal and profile views and a placard depicting a number and stating "Illinois Department of Corrections"; information below the photograph indicated that it had been taken at the "East Moline Correctional Facility" and included not only Gavin's name and physical characteristics, but also that he had been convicted of "murder" and sentenced to "34 yrs." (C. 142.)

"While mug shots are generally inadmissible in a criminal trial because the jury may infer the defendant has a criminal history, under certain circumstances, admitting a mug shot into evidence does not constitute reversible error." Holland v. State, 654 So.2d 77, 82 (Ala.Crim.App.1994). In Ex parte Long, the Alabama Supreme Court adopted the three prerequisites set forth in United States v. Harrington, 490 F.2d 487 (2d. Cir.1973), for determining the admissibility of a mug shot; those prerequisites are: (1) the State must have a demonstrable need for the mug shot; (2) the mug shot must not itself imply to the jury that the defendant has a prior criminal record; and (3) the manner of introduction of the mug shot must not draw particular attention to the source and implication of the mug shot. However, as the Supreme Court noted in Ex parte Long,"the failure to meet one or more of these criteria would not necessarily result in reversible error." 600 So.2d at 989.

In this case, we cannot say that the State had a demonstrable need to introduce the mug shot. We recognize that the State was required to prove, as an element of the capital offense, that Gavin had been convicted of murder within 20 years preceding the present murder, and that, as part of that proof, the State had to present evidence that the "Keith Gavin" who had been convicted of murder in Illinois in 1982 was, in fact, the "Keith Edmund Gavin" who was on trial for capital murder. However, Morris positively identified Gavin at trial as the man who had been convicted of murder in Illinois in 1982 and released on parole in December 1997. Therefore, there was no need for the State to introduce into evidence the mug shot. In addition, the manner in which the mug shot was introduced as well as the mug shot itself clearly showed that Gavin had previously been convicted of murder. Therefore, none of the prerequisites for introduction of the mug shot were met.

However, because the State was required to prove, as an element of the capital offense, that Gavin had been convicted of murder in the 20 years preceding the present murder, and as noted in Part VII.A. of this opinion, evidence of Gavin's prior murder conviction was, in fact, properly admitted during the guilt-phase of the trial, the jury was well aware at the time the mug shot was introduced that Gavin had been convicted of murder in Illinois in 1982. Moreover, the mug shot was taken in connection with the 1982 murder conviction and did not otherwise indicate any other criminal history on Gavin's part. As this Court noted in addressing a similar issue in Webb v. State, 539 So.2d 343 (Ala.Crim.App.1987):

539 So.2d at 348. See also State v. Rackley, 128 N.M. 761, 998 P.2d 1212 (N.M.Ct.App.2000), and State v. Blankenship, 102 Ohio App.3d 534, 657 N.E.2d 559 (1995).

Given that the jury was already aware of Gavin's 1982 murder conviction at the time the mug shot was introduced, any error on the part of the trial court in admitting the mug shot into evidence was not prejudicial to Gavin, but was harmless beyond a reasonable doubt.

E.

Gavin contends that the trial court erred in overruling his objection and allowing Investigator Danny Smith to identify him at trial because, he says, Investigator Smith's identification was tainted by an impermissibly suggestive one-man showup that occurred on the night of the crimes.

At trial, Investigator Smith testified that he was present during most of the search for Gavin on the night of March 6, 1998, but that at approximately 9:30 p.m., he returned to his office briefly. Investigator Smith stated that when he was en route back to the search area at about 10:30 p.m., he was informed that a suspect had been taken into custody, and he instructed the officers who were transporting the suspect to the jail to meet him in Leesburg so that he could "look at the suspect that they had in custody to make sure that they, in fact, had the right person." (R. 570.) Over objection,22 Investigator Smith testified that the officers met him as directed and that he identified the person in the back of the patrol car as the person who had been driving the van and who had shot at him. At trial, he positively identified Gavin as the person who had been driving the van, who had fired at him, and who he had seen in the back of the patrol car.

Ex parte Appleton, 828 So.2d 894, 899-900 (Ala.2001).

Gavin argues that the identification procedure in this case was unnecessarily and impermissibly suggestive merely because it was a one-man showup. Although a one-man showup is inherently suggestive, "it does not necessarily follow that the procedure [is] unduly suggestive so that it would taint [a] subsequent in-court identification." Quarles v. State, 711 So.2d 1115, 1117 (Ala.Crim.App.1997). See also Nichols v. State, 624 So.2d 1328, 1338 (Ala.Crim.App.1992)(although one-man showups "are by their nature suggestive, they are not necessarily unduly so"), and Cooley v. State, 439 So.2d 193, 195 (Ala.Crim.App.1983)("the mere fact that the appellant was subjected to a one-man showup does not necessarily render that identification procedure impermissibly suggestive"). As this Court noted in O'Dell v. State, 482 So.2d 1341 (Ala.Crim.App.1985):

482 So.2d at 1346.

We find that the showup in this case was not unnecessarily and impermissibly suggestive. Investigator Smith, a trained law-enforcement officer, requested that the officers transporting Gavin to the jail meet him in Leesburg so that he could "look at the suspect that they had in custody to make sure that they, in fact, had the right person." (R. 570.) It is clear from Investigator Smith's testimony that his identification of Gavin in the patrol car was not based on any preconceived notion that the person the police had in custody was, in fact, the person who had shot at him, but rather, was a precautionary measure to ensure that the right man was in custody so that the manhunt that had been going on for a little over three hours could be called off. See, e.g., Davis v. State, 216 Ga.App. 580, 581, 455 S.E.2d 115, 116 (1995)("It is recognized that any psychological effect a one-on-one showup may have on a potential witness is greatly diminished when that witness is a law enforcement officer who, through experience, training or both, has learned certain witness identification techniques and procedures."), and People v. Cinatus, 200 A.D.2d 754, 754, 607 N.Y.S.2d 363, 364 (1994)(holding "that the witness was a police officer is relevant in determining whether or not the identification procedure employed was unduly suggestive"). Under these circumstances, we find that the one-man showup was not unnecessarily or impermissibly suggestive.

However, even assuming that the showup was unnecessarily and impermissibly suggestive (which we hold it was not), it was not so "`"`conducive to irreparable mistaken identification'... or had such a tendency `to give rise to a very substantial likelihood of irreparable misidentification' ... that allowing the witness to make an in-court identification would be a denial of due process."'" Ex parte Appleton, 828 So.2d at 900, quoting Brazell v. State, 369 So.2d 25, 29 (Ala.Crim.App.1978). Applying the five factors set forth in Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), we conclude that the likelihood of misidentification in this case was low.

First, Investigator Smith had ample opportunity to view Gavin at the time of the crime. Investigator Smith testified that although it was dark and it had begun raining, when Gavin shot at him the first time, while standing in the middle of the road, Gavin was illuminated by the headlights from Investigator Smith's vehicle and from the headlights of oncoming traffic. In addition, according to Investigator Smith, when Gavin first got out of the van, he took the time to aim before firing at Investigator Smith.

Second, Investigator Smith's degree of attention at the time of the crime was clearly high as he was a trained law-enforcement officer. As noted by the United States Supreme Court in addressing a similar issue in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977):

432 U.S. at 115, 97 S.Ct. 2243. See also People v. Rupert, 192 A.D.2d 1072, 1073, 595 N.Y.S.2d 998, 999 (1993)("[T]he danger of misidentification was greatly reduced because this confirmatory identification was made by police officers who are trained to be both accurate and objective.").

Third, the record reflects that after Gavin fled into the woods, Investigator Smith provided a description of him to other law-enforcement personnel. Investigator Smith testified that he described Gavin as a black male, wearing a maroon or wine-colored shirt, blue jeans, and some type of toboggan cap or other cap on his head. When Gavin was found, he was wearing blue jeans and a wine-colored shirt; although he was not wearing a toboggan cap, a toboggan cap was found at a point near where Gavin had entered the woods. We recognize that as part of his initial description, Investigator Smith also stated that based on the "thickness" of the gun as he saw it, he believed, but "wasn't sure" (R. 604), that Gavin had a revolver when, in fact, the weapon found was a .40 caliber semiautomatic Glock pistol; however, we do not believe this discrepancy undermines Investigator Smith's otherwise accurate description of Gavin.

Fourth, Investigator Smith testified that when he saw Gavin in the patrol car later that evening, he was positive that the right man was in custody. He also positively identified Gavin at trial. And finally, only a little over three hours had elapsed between the crime and the identification.

Under the circumstances, we conclude that the trial court did not err in allowing Investigator Smith's identification testimony.23

F.

Gavin contends that the trial court erred in allowing the State to introduce into evidence, over his objection, a photograph of the murder weapon. According to Gavin, "[t]he effect of the trial court's failure to sustain the timely objection of the defendant was to allow prejudicial evidence to `pile up' on the jury table, and to simultaneously deprive the defendant of the right to have the entire pistol made subject to cross-examination." (Gavin's brief at p. 99.)

The record reflects that on the first day that testimony was presented (the third day of trial), the State called Dewayne Meeks to testify. During his testimony, Meeks was asked if he could identify State's Exhibit 8, a photograph of the murder weapon. After one objection and two off-the-record bench conferences, the trial court allowed Meeks to testify about the photograph. Meeks then identified the gun in the photograph as the gun that had been issued to him by the Illinois Department of Corrections. At the conclusion of Meeks's testimony, the State offered the photograph as evidence, explaining that the reason it was using the photograph at that time was because the gun itself was still in the possession of a ballistics expert and not in the courtroom. The trial court admitted the photograph into evidence, contingent upon the State's later authenticating the photograph through the testimony of Investigator Smith (who had taken the photograph) and the State's later introducing the actual gun into evidence. The record reflects that the State properly authenticated the photograph through the testimony of Investigator Smith and that it did introduce into evidence the actual gun during the testimony of Mitch Rector, a firearms examiner with the Alabama Department of Forensic Sciences.

Mitchell v. State, 450 So.2d 181, 184-185 (Ala.Crim.App.1984). "The admissibility of photographs lies within the trial court's discretion and will be reviewed only to determine whether there has been an abuse of that discretion." Samuels v. State, 584 So.2d 958, 959 (Ala.Crim.App.1991).

The photograph of the murder weapon was properly admitted into evidence. The murder weapon was, of course, highly relevant to the trial. The photograph of the murder weapon was used so that Meeks, who had traveled from Illinois to testify, could identify the gun, which was still in the possession of the ballistics expert and not available for trial at that point in time. In addition, the photograph was properly authenticated, and the murder weapon itself was later introduced into evidence. Therefore, the trial court did not abuse its discretion in admitting the photograph of the murder weapon.24

G.

Gavin contends that the trial court erred in admitting into evidence, over his objection, the toboggan cap found near the woods into which he fled after shooting at Investigator Smith because, he says, it was irrelevant to any issue in the case and was highly prejudicial.

Jimmy Deberry, a deputy with the Cherokee County Sheriff's Department, testified that he participated in the search for Gavin on the night of March 6, 1998, and that he assisted in the search for, and the collection of, evidence in the area after Gavin's arrest. Deputy Deberry stated that at approximately 11:00 p.m. that evening he found a black and red toboggan cap near the point where Gavin had entered the woods when he fled after shooting at Investigator Smith. Before the State offered the toboggan cap as evidence, Gavin objected on the ground of relevance. Specifically, Gavin argued to the trial court that no evidence had been presented indicating that Gavin had been wearing a toboggan cap at the time of the crimes and that, therefore, the toboggan cap was irrelevant to any issue in the case. The trial court overruled Gavin's objection.

"The admission or exclusion of evidence is a matter within the sound discretion of the trial court." Taylor v. State, 808 So.2d 1148, 1191 (Ala.Crim.App.2000), aff'd, 808 So.2d 1215 (Ala.2001). "The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court's determination on that question will not be reversed except upon a clear showing of abuse of discretion." Ex parte Loggins, 771 So.2d 1093, 1103 (Ala.2000). In addition, "[t]rial courts are vested with considerable discretion in determining whether evidence is relevant, and such a determination will not be reversed absent plain error or an abuse of discretion." Hayes v. State, 717 So.2d 30, 36 (Ala.Crim.App.1997).

Rule 402, Ala.R.Evid., provides that "[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States or that of the State of Alabama, by statute, by these rules, or by other rules applicable in the courts of this State." Rule 401, Ala.R.Evid. defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." "Alabama recognizes a liberal test of relevancy, which states that evidence is admissible `if it has any tendency to lead in logic to make the existence of the fact for which it is offered more or less probable than it would be without the evidence.'" Hayes, 717 So.2d at 36, quoting C. Gamble, Gamble's Alabama Evidence § 401(b). "[A] fact is admissible against a relevancy challenge if it has any probative value, however[ ] slight, upon a matter in the case." Knotts v. State, 686 So.2d 431, 468 (Ala.Crim.App.1995), aff'd, 686 So.2d 486 (Ala.1996). Relevant evidence should be excluded only "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Rule 403, Ala.R.Evid. "The general rule is that articles which are properly identified and which tend to show the commission of the crime or the manner in which it was committed or elucidate some matter in issue are admissible in evidence for inspection and observation by the jury." Beasley v. State, 408 So.2d 173, 179 (Ala.Crim.App.1981).

Contrary to Gavin's contention, the toboggan cap was relevant to the case. Twilley, who positively identified Gavin as the person who had shot Clayton, testified that he remembered that, at one point during the shooting, Gavin was wearing something red and black on his head. Investigator Smith, who positively identified Gavin as the person who had shot at him, testified that Gavin had a toboggan cap or other type of cap on his head when he got out of the van. The toboggan cap introduced by the State was red and black and had been found near where Gavin had entered the woods when he fled after shooting at Investigator Smith. The toboggan cap linked the two crime scenes and supported the testimony of Twilley and Investigator Smith; it was, therefore, relevant. See, e.g., Arthur v. State, 711 So.2d 1031, 1046-47 (Ala.Crim.App.1996), aff'd, 711 So.2d 1097 (Ala.1997). In addition, the prejudicial effect of the toboggan cap did not substantially outweigh its probative value. There was no error on the part of the trial court in admitting the toboggan cap into evidence.25

H.

Gavin contends that the trial court erred in admitting into evidence, over his objection, the motel-room key found in his pants pocket at the time of his arrest and testimony indicating that the key fit room 113 at the Super 8 Motel in Chattanooga, one of the rooms Meeks said he and Gavin had rented on the morning of March 6, 1998. Gavin's entire argument in this regard is as follows:

(Gavin's brief at p. 102.)

Contrary to Gavin's contention, the State was not required to present evidence of the "mathematical odds" of the key fitting room 113 in the Super 8 Motel in Chattanooga as opposed to any other room in the motel for the key to be relevant and admissible. As noted previously, Alabama recognizes a liberal test of relevancy; evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Rule 401, Ala.R.Evid. The key was clearly relevant; it linked Gavin to the Super 8 Motel in Chattanooga and corroborated Meeks's testimony. Whether the key fit another room in that motel or in any other motel went to the weight of the evidence, not to its admissibility. The trial court did not err in admitting into evidence the motel room key found in Gavin's pants pocket after his arrest or the testimony indicating that the key fit room 113 in the Super 8 Motel in Chattanooga on the ground that the State did not establish a proper predicate.

I.

Gavin also contends that the trial court erred in admitting the motel-room key found in his pants pocket as well as the clothing he was wearing at the time of his arrest because, he says, he was arrested without probable cause. Gavin did not challenge the propriety of his arrest in the trial court; he did not move to suppress the motel-room key or his clothing on this ground at trial; and he did not object to the admission of the motel-room key or his clothing on this ground at trial. Therefore, we may review this claim only for plain error. See Rule 45A, Ala.R.App.P.

Reeves v. State, 807 So.2d 18, 35-36 (Ala.Crim.App.2000).

After examining the totality of the circumstances surrounding Gavin's arrest, we find that there was probable cause for the arrest. The evidence indicated that Investigator Smith followed a van matching the description of the van involved in the shooting in downtown Centre until it stopped in the middle of the road at the intersection of Highways 48 and 68. When the driver of the van got out of the vehicle, he fired two shots at Investigator Smith and then fled into a nearby wooded area. Within only a few minutes, other law-enforcement personnel arrived at the scene and formed a perimeter around the wooded area so that no one could leave the area without being seen. Investigator Smith described the suspect to other law-enforcement personnel as being black and wearing a maroon or wine-colored shirt, blue jeans, and some type of toboggan cap or other cap on his head; a lengthy search for the suspect then ensued. Tony Holladay was called in with his tracking dog, he was given a description of the suspect and informed about the circumstances, and the dog tracked a human trail from the point where Investigator Smith had stopped pursuing the suspect into the woods to a creek where Gavin, who was wearing a wine-colored shirt and blue jeans, was discovered standing waist-deep in the creek and hiding behind an overhanging bush. See, e.g., Fields v. State, 644 So.2d 1322, 1324 (Ala.Crim.App.1994)(probable cause existed for arrest of the defendant where defendant was found driving a vehicle and wearing clothes that matched the description given by the victim). When Gavin saw Holladay, he attempted to flee; he did not stop until Holladay fired a shot over his shoulder. See, e.g., Doggett v. State, 791 So.2d 1043, 1057-58 (Ala.Crim.App.2000)("It is well settled that flight at the approach of law-enforcement officers is a strong indicator of mens rea, which may serve as the basis for suspecting criminal activity."). These facts and circumstances were sufficient to "`lead a reasonable person of ordinary caution, acting impartially, to believe'" that Gavin was the driver of the van who had shot and killed Clayton and who had shot at Investigator Smith. Reeves, 807 So.2d at 35, quoting Sockwell v. State, 675 So.2d 4, 13 (Ala.Crim.App.1993), aff'd, 675 So.2d 38 (Ala.1995). There was probable cause to arrest the appellant; therefore, there was no error, plain or otherwise, in the admission of the motel-room key and Gavin's clothing confiscated as a result of the arrest.

J.

Gavin contends that the trial court erred in allowing Investigator Smith to testify regarding what he terms "blood-spatter analysis." (Gavin's brief at p. 94.) Specifically, Gavin contends that Investigator Smith's testimony was inadmissible because, he says (1) Investigator Smith was not qualified as an expert in blood-spatter analysis, and (2) the State failed to lay a predicate under either Frye v. United States, 293 F. 1013 (D.C.Cir.1923), or Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

One of the main points of contention during Gavin's trial was the absence of blood on Gavin's clothing when he was arrested. Gavin argued to the jury that the absence of blood proved that he could not have been the person who shot Clayton because, he said, the person who shot Clayton would have gotten blood on his clothing when he got in the driver's seat of the van and drove away. On the other hand, the State argued, and presented evidence indicating, that based on Clayton's size and position in the van at the time of the shooting, and the nature of the gunshot wounds, there was little or no blood on the driver's seat of the van immediately after the shooting for Gavin to get on his clothes when he drove the van from the scene. According to the State, the blood seen on the driver's seat in the photographs of the interior of the van that were introduced into evidence was transferred there by emergency personnel as they were removing Clayton from the van to transport him to the hospital. In the alternative, the State argued that any blood traces Gavin may have gotten on his clothing when he got in the van had been washed off when Gavin entered the creek in the woods while fleeing the police.

During its case-in-chief, the prosecutor questioned Investigator Smith about what he had seen when he went to the van and checked on the victim after Gavin had fled into the woods. The following occurred during direct examination:

(R. 567.) During cross-examination, Gavin's counsel questioned Investigator Smith as follows:

(R. 604-07.) During redirect examination of Investigator Smith, the following then occurred:

(R. 610-11.)(Emphasis on portion complained of by Gavin.)

Despite Gavin's attempts to characterize Investigator Smith's testimony as expert scientific testimony on blood-spatter analysis, we agree with the State that his testimony was a lay opinion based on his personal knowledge and observations, not expert scientific testimony on blood-spatter analysis.

In general, blood-spatter analysis is the process of examining the size, location, and configuration of bloodstains at a crime scene and using the general characteristics of blood to determine the direction, angle, and speed of the blood before it impacts on a surface in order to recreate the circumstances of the crime. See generally Danny R. Veilleux, Annotation, Admissibility, in Criminal Prosecution, of Expert Opinion Evidence as to "Blood Spatter" Interpretation, 9 A.L.R.5th 369 (1993) and the cases cited therein. Blood-spatter analysis is typically used to determine the position of the victim and the assailant at the time of a crime. Investigator Smith's testimony was not based on blood-spatter analysis; he did not analyze the bloodstains in the van in order to determine the respective locations of Clayton and the assailant at the time of the shooting. Rather, he used the location of Clayton when Clayton was found as well as his knowledge about the shooting to form an opinion as to where the blood would have been as a result of the shooting.

The evidence showed that almost immediately after shooting Clayton, Gavin pushed Clayton toward the passenger side of the van, got in the driver's seat, and drove away. Investigator Smith testified that when the van stopped and he went to check on Clayton, he found Clayton, suffering from multiple gunshot wounds, lying across the front of the van. Specifically, Investigator Smith said that Clayton was lying on his right side; his right hip was on the inside edge of the driver's seat; his right shoulder was on the passenger seat; and his feet and legs were on the driver's side floorboard. Investigator Smith also testified that there was a good deal of blood on the floorboard between the two front seats. Given this evidence, it is clear that Investigator Smith's testimony that "the blood flow coming from the body ran away from the area of the seat that Mr. Gavin would have been seated in" was based on common sense, not on novel scientific blood-spatter analysis. Investigator Smith was not offered as an expert witness, and his testimony regarding the blood in the van was nothing more than a lay opinion based on his personal knowledge and observations.

Because Investigator Smith's testimony was not expert scientific testimony on blood-spatter analysis, the State was not required to establish Investigator Smith's qualifications as an expert in blood-spatter analysis nor lay a scientific predicate for his testimony. Rule 701, Ala.R.Evid., provides:

Investigator Smith's opinion was rationally based on his perception of the van when he found Clayton as well as his knowledge of the circumstances surrounding the shooting, and it was helpful to a clear understanding of a fact placed in issue by Gavin, i.e., whether the shooter could have shot Clayton, driven away in the van, and not gotten any blood on his clothing. Therefore, the trial court did not err in allowing Investigator Smith to state his opinion regarding the blood in the van.

Moreover, Investigator Smith's testimony was merely cumulative of other evidence presented during the trial. Dr. Pustilnik testified that the gunshot wounds to Clayton's left hip and left arm would not have bled much, but that the wound to his chest — the bullet entered the left side of the chest and exited the right side — would have bled quite a bit. According to Dr. Pustilnik, the blood from the chest wounds would first fill up the chest cavity and then, because of gravity, exit the body at the lowest point. This testimony, combined with Investigator Smith's testimony regarding Clayton's position in the van when he was found and eyewitness testimony regarding Gavin's pushing Clayton to the passenger side of the van immediately after the shooting raises the same inference as Investigator Smith's testimony about the blood — that no blood would have been on the driver's seat of the van as a result of the shooting, but would have flowed out of the right side of Clayton's chest to the floorboard between the two front seats after he was pushed out of the way by Gavin.

Flynn v. State, 745 So.2d 295, 307 (Ala.Crim.App.1999). Therefore, even if the admission of Investigator Smith's testimony was error, it was harmless.

Finally, we point out that the prosecutor questioned Investigator Smith on redirect examination about the blood in the van only because Gavin had asked similar questions on cross-examination. Gavin opened the door for Investigator Smith's testimony through his cross-examination; he cannot now complain that the testimony was improper. See, e.g., Morgan v. State, 589 So.2d 1315, 1320 (Ala.Crim.App.1991)(an appellant "cannot complain about exploration of an issue which the appellant injected into trial").

K.

Gavin contends that the trial court erred in allowing dog handler Tony Holladay to testify regarding his dog's tracking of Gavin in the woods. Specifically, Gavin argues that the State failed to lay the proper predicate for the dog-tracking evidence because, he says, the State failed to establish the training and expertise of both the handler and the dog. Because Gavin did not object to the dog-tracking evidence, we may review this claim only for plain error. See Rule 45A, Ala.R.App.P.

Holladay testified that he had been a dog handler for the Limestone Correctional Facility for 18 years. He said that his primary responsibility as a dog handler was to "train tracking dogs for the primary purpose of tracking escaped inmates, and also to assist any outside law enforcement agency when they have a felony suspect that they need in the woods or need help apprehending, or to assist for a lost child." (R. 729-30.) Holladay testified that for tracking he uses beagles trained "to run the first human track they encounter." (R. 732.) On cross-examination, Holladay testified that he had been working with the beagle he had used to track Gavin for five years.

When he first arrived at the scene on the night of March 6, 1998, Holladay said, he immediately began gathering information about the suspect and the circumstances of the suspect's flight. He ascertained that the suspect had fled into the woods after firing at Investigator Smith, and that Investigator Smith had chased him for "about 20 yards" but had stopped short of the woods. (R. 732.) Holladay stated that he then requested that Investigator Smith show him the exact spot he stopped chasing the suspect so that his dog would not track Investigator Smith's scent instead of the suspect's scent. Once he determined the location to begin the tracking, he got his dog out of his vehicle, carried the dog to the location, and placed the dog on the ground. According to Holladay, in "less than five seconds, the dog picked the track up" and led him into the woods. (R. 733.) Holladay said that the dog was barking while tracking, which, he said, is an "indication telling me the dog was running the man." (R. 733.) After approximately 10 minutes of tracking in the woods, Holladay said, he and the dog came upon a creek, at which point the dog picked his head up off the ground, which, Holladay said, indicates that he "can smell the suspect" in the vicinity. (R. 733.) Holladay testified that he then waded into the creek, at which point he saw Gavin standing in the creek hiding behind an overhanging bush.

The admissibility of dog-tracking evidence upon a proper predicate has been recognized in Alabama for over a century. See Burks v. State, 240 Ala. 587, 200 So. 418 (1941); Orr v. State, 236 Ala. 462, 183 So. 445 (1938); Loper v. State, 205 Ala. 216, 87 So. 92 (1920); Gallant v. State, 167 Ala. 60, 52 So. 739 (1910); Hargrove v. State, 147 Ala. 97, 41 So. 972 (1906); Richardson v. State, 145 Ala. 46, 41 So. 82 (1906); Little v. State, 145 Ala. 662, 39 So. 674 (1905); Hodge v. State, 98 Ala. 10, 13 So. 385 (1893); Holcombe v. State, 437 So.2d 663 (Ala.Crim.App.1983); Moore v. State, 26 Ala.App. 607, 164 So. 761 (1935); and Allen v. State, 8 Ala.App. 228, 62 So. 971 (1913). As the Alabama Supreme Court noted in 1893, "[i]t is common knowledge that dogs may be trained to follow the tracks of a human being with considerable certainty and accuracy." Hodge, 98 Ala. at 11, 13 So. at 386. The majority of states also recognize the admissibility of dogtracking evidence as long as the proper foundation is laid. See generally J.M. Zitter, Annotation, Evidence of Tracking by Dogs in Criminal Cases, 81 A.L.R.5th 563 (2000), and the cases cited therein.26 For dog-tracking evidence to be admissible, the State must establish the following: the training and reliability of the dog, the qualifications of the person handling the dog, and the circumstances surrounding the tracking by the dog. The foundational evidence need not be overwhelming or specific, but must be sufficient to indicate reliability of the evidence. See Burks, supra (testimony that handler had 10 years' experience in handling bloodhounds, that the bloodhounds used had been trained to trail human beings, and that the bloodhounds had been used for two years was a sufficient predicate for admissibility of dog tracking evidence).

In this case, we find that the State laid a sufficient foundation for admission of the dog-tracking evidence. Holladay testified that he had 18 years' experience in training and handling dogs, that his dogs were trained to track human beings, and that he had been using the dog he used to track Gavin for five years. Although Holladay did not testify to the dog's previous record in tracking human beings, such as how many times the dog had been used and the success rate of the dog, we believe the absence of testimony regarding the dog's "track record" goes to the weight of the evidence, not its admissibility. In addition, Holladay testified to the circumstances regarding the tracking of Gavin from the location that Investigator Smith had stopped his pursuit. We find no error, much less plain error, in the admission of the dog-tracking evidence.27

L.

Gavin contends that the trial court erred in admitting the testimony of Barbara Genovese regarding the statement he made while in jail that "[he] did it." Specifically, Gavin contends that the statement was "vague and equivocal" and, therefore, that its prejudicial effect outweighed its probative value. (Gavin's brief at p. 103.)

As noted in the statement of facts, Barbara Genovese, a supervisor at the Cherokee County jail, testified that in April 1998, when both Gavin and Meeks were incarcerated at the jail, Gavin made a statement to her as she was taking Meeks and another inmate out of their cells to take them outside for exercise. According to Genovese, Gavin called out to her from his cell and asked if he could go outside and exercise with Meeks, and Genovese told Gavin that he could not because when Meeks had initially been brought to the jail, Gavin had become loud and unruly, "screaming and yelling and banging on the doors." (R. 1001.) At that point, Genovese said, Gavin said "Dewayne [Meeks] didn't do anything ... I did it" and "Dewayne should not be in here." (R. 1002.) Genovese testified that she did not know what Gavin was referring to when he said, "I did it." (R. 1002.)

Before Genovese testified, Gavin objected to her testimony and a hearing was held outside the presence of the jury. Gavin argued that his statement to Genovese was inadmissible because, he said, the meaning of the statement was ambiguous and, therefore, the prejudicial effect of the statement outweighed its probative value.28 The trial court overruled Gavin's objection, finding that any ambiguity in the statement went to its weight, not its admissibility. We agree with the trial court.

"`For a confession, or an inculpatory statement, to be admissible, the State must prove by a preponderance of the evidence that it was voluntary.'" Ex parte Williams, 780 So.2d 673, 675 (Ala.2000), quoting McLeod v. State, 718 So.2d 727, 729 (Ala.1998). Moreover:

Worthington v. State, 652 So.2d 790, 792-93 (Ala.Crim.App.1994).

Gavin does not argue that his statement was barred by Miranda or that it was otherwise involuntary, and the record reflects that the statement was, in fact, voluntary. In addition, in light of Gavin's repeated attempts during trial to implicate Meeks in Clayton's murder, the statement was clearly relevant and probative to the case and its probative value was not outweighed by its prejudicial effect. As the trial court correctly found, any ambiguity in the meaning of the statement went to its weight, not its admissibility. The trial court did not err in allowing Genovese's testimony regarding Gavin's statement.

M.

Finally, Gavin contends that the cumulative effect of the allegedly improper admission of all of the above evidence warrants reversal of his convictions. However, after thoroughly reviewing the record, and because we have found only one instance of error, which we held to be harmless, we conclude that a cumulative-effect analysis is not applicable here.

VIII.

Gavin contends that the trial court erred in denying his motion for a judgment of acquittal, made at the close of the State's case, and his motion for a new trial because, he says, the evidence was insufficient to sustain his two capital-murder convictions.29 (Issue XV in Gavin's brief.)

"`In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.'" Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985). "`The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.'" Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting O'Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). "`When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court's decision.'" Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). "The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury." Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).

Ward v. State, 610 So.2d 1190, 1191 (Ala.Crim.App.1992).

Initially, we note that Gavin contends that this Court, in determining whether there was sufficient evidence to sustain his convictions, should not consider much of the evidence against him because, he says, the evidence was improperly admitted. However, in Part VII of this opinion, we hold that the evidence Gavin claims should not be considered in determining the sufficiency of the evidence was properly admitted at his trial. Therefore, that evidence can and will be considered by this Court in addressing the sufficiency of the evidence.

Gavin contends that the evidence was insufficient to sustain his capital-murder convictions because, he says, the testimony of Dewayne Meeks, who, Gavin argues, was an accomplice, was not sufficiently corroborated.

Section 12-21-222, Ala.Code 1975, provides:

"Before § 12-21-222 is invoked, it must clearly appear that the witness is an accomplice, and it is the defendant's burden to prove that a witness is an accomplice, unless the evidence shows without dispute that the witness is an accomplice." Ex parte Davis, 718 So.2d 1166, 1170 (Ala.1998). Whether a witness is an accomplice may be a question of law or fact, depending upon the circumstances of the case. See, e.g., Siler v. State, 705 So.2d 552 (Ala.Crim.App.1997). "When there is a doubt or dispute concerning the complicity of a witness and the testimony is susceptible to different inferences on that point, the question [of whether the witness is an accomplice] is for the jury." Ex parte Bankhead, 585 So.2d 112, 119 (Ala.1991). "When a witness denies willing participation in the crime charged against the defendant, the issue of his being an accomplice is a question of fact for the jury." Id. Moreover, "the mere fact that a witness is indicted for the same crime as the defendant does not alone mark the witness as an accomplice with the defendant in the commission of the crime." Ex parte Davis, 718 So.2d at 1170.

The evidence in this case indicated that Meeks drove Gavin to the scene of the crime. Meeks denied knowing that Gavin was going to shoot Clayton; he claimed he thought Gavin was going to ask the driver of the van for directions. Meeks fled the scene immediately after Gavin shot Clayton and drove back to Illinois before contacting law enforcement about the shooting. These facts presented a jury question as to whether Meeks was an accomplice.30

Assuming, however, that Meeks was an accomplice to the crime, we conclude that his testimony was sufficiently corroborated. In Arthur v. State, 711 So.2d 1031 (Ala.Crim.App.1996), aff'd, 711 So.2d 1097 (Ala.1997), this Court stated the following regarding the corroboration of accomplice testimony:

711 So.2d at 1059-60.

After examining the record in this case, we find that Meeks's testimony was amply corroborated. Larry Twilley, an eyewitness to the crime, positively identified Gavin as the person who shot Clayton. Investigator Smith also positively identified Gavin as the person he saw get out of the driver's side of the van in which Clayton was found and run into the woods. These eyewitness identifications, as well as the other evidence presented by the State, were more than sufficient to corroborate Meeks's testimony. Therefore, the trial court did not err in denying Gavin's motion for a judgment of acquittal or his motion for a new trial on the ground of insufficiency of the evidence.

IX.

Gavin contends that the trial court erred in not instructing the jury on reckless murder, § 13A-6-2(a)(2), Ala.Code 1975, and felony murder, § 13A-6-2(a)(3), Ala.Code 1975, as lesser-included offenses of the capital-murder charges. (Issue XIII in Gavin's brief.) Specifically, he maintains that because Clayton was shot in the hip, arm, and chest, rather than in the head, it was "as likely, if not more likely, that the shooter wished to disable Clayton rather than kill him." (Gavin's brief at p. 118.) Gavin did not request that the trial court instruct the jury on any lesser-included offenses, nor did he object when the trial court did not do so. Therefore, we may review this claim only for plain error. See Rule 45A, Ala.R.App.P.

Clark v. State, [Ms. CR-99-1062, June 27, 2003] ___ So.2d ___, ___ (Ala.Crim.App.2000)(opinion on return to remand and on application for rehearing).

There was no error, much less plain error, on the part of the trial court in not instructing the jury on reckless murder as a lesser-included offense of the capital-murder charges "`because the appellant's actions were directed solely at the victim.'" Flowers v. State, 799 So.2d 966, 988 (Ala.Crim.App.1999), quoting Hagood v. State, 777 So.2d 162, 190 (Ala.Crim.App.1998), aff'd in pertinent part, rev'd and remanded on other grounds, 777 So.2d 214 (Ala.1999). See also Dallas v. State, 711 So.2d 1101 (Ala.Crim.App.1997), aff'd, 711 So.2d 1114 (Ala.1998); Sockwell v. State, 675 So.2d 4 (Ala.Crim.App.1993), aff'd, 675 So.2d 38 (Ala.1995); Parker v. State, 587 So.2d 1072 (Ala.Crim.App.1991), on return to remand, 610 So.2d 1171 (Ala.Crim.App.), aff'd, 610 So.2d 1181 (Ala.1992); and Northington v. State, 413 So.2d 1169 (Ala.Crim.App.1981). A person commits the crime of reckless murder if "[u]nder circumstances manifesting extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to a person other than himself, and thereby causes the death of another person." § 13A-6-2(a)(2), Ala.Code 1975. It is well settled that "[a] charge on reckless murder is not appropriate if the defendant's actions are directed toward one particular person." Phillips v. State, 726 So.2d 292, 296 (Ala.Crim.App.1998). See also Ex parte Simmons, 649 So.2d 1282, 1284 (Ala.1994)(reckless murder "requires the prosecution to prove conduct that manifests an extreme indifference to human life and not to the life of any particular person"); Dunaway v. State, 746 So.2d 1021, 1034-35 (Ala.Crim.App.1998), aff'd, 746 So.2d 1042 (Ala.1999)("A charge on reckless murder is not appropriate where the acts resulting in death are directed toward one or more particular people, as was the case here, rather than toward human life in general."); Knotts v. State, 686 So.2d 431, 458 (Ala.Crim.App.), on return to remand, 686 So.2d 484 (Ala.Crim.App.1995), aff'd, 686 So.2d 486 (Ala.1996)("An instruction on reckless murder is not warranted if the accused's conduct was directed toward one individual rather than human life in general."); Leverett v. State, 611 So.2d 481, 482 (Ala.Crim.App.1992)("Where a defendant's acts are specifically directed at a particular victim and no other, the defendant cannot be convicted of murder under the statute dealing with reckless homicide manifesting extreme indifference to human life."); and Haney v. State, 603 So.2d 368, 399 (Ala.Crim.App.1991), aff'd, 603 So.2d 412 (Ala.1992)("The doctrine of universal malice, depraved heart murder, or reckless homicide manifesting extreme indifference to human life is intended to embrace those cases where a person has no deliberate intent to kill or injure any particular individual."). The evidence in this case indicated that Gavin's actions were directed solely at Clayton, who was alone in the van at the time of the shooting. Therefore, there was no reasonable theory from the evidence to support a charge on reckless murder, and the trial court did not err in not instructing the jury on that offense.

There was also no error, or plain error, on the part of the trial court in not instructing the jury on felony murder during a robbery as a lesser-included offense of the charge of capital murder during a robbery because, again, there was no reasonable theory from the evidence to support such a charge. "`"[T]he purpose of the felony-murder doctrine is to hold felons accountable for unintended deaths caused by their dangerous conduct."'" Dobyne v. State, 672 So.2d 1319, 1345 (Ala.Crim.App.1994), aff'd, 672 So.2d 1354 (Ala.1995), quoting White v. State, 587 So.2d 1218, 1231 (Ala.Crim.App.1990), aff'd, 587 So.2d 1236 (Ala.1991), quoting in turn W. LaFave and A. Scott, 2 Substantive Criminal Law § 7.5 at 210 (1986).

Knotts, 686 So.2d at 457. We are not persuaded by Gavin's argument that because Clayton was shot in the hip, arm, and chest, and not in the head, this showed a lack of an intent to kill. The evidence established that Gavin shot Clayton twice at point blank range with a .40 caliber pistol. There was no reasonable theory from this evidence that Gavin did not intend to kill Clayton. See, e.g., Broadnax v. State, 825 So.2d 134 (Ala.Crim.App.2000), aff'd, 825 So.2d 233 (Ala.2001); Woods v. State, 789 So.2d 896 (Ala.Crim.App.1999), aff'd, 789 So.2d 941 (Ala.2001); and Wilson v. State, 777 So.2d 856 (Ala.Crim.App.1999), aff'd, 777 So.2d 935 (Ala.2000). Therefore, the trial court did not err in not instructing the jury on felony murder as a lesser-included offense of capital murder during a robbery.

X.

Gavin contends that during closing arguments the prosecutor improperly commented on his decision not to testify. (Issue XIV in Gavin's brief.) Specifically, he maintains that the prosecutor made "thinly veiled" references to his decision not to testify by repeatedly referring to the facts, evidence, and testimony as "uncontroverted." (Gavin's brief at p. 121.) Gavin specifically objected to three of the prosecutor's references, but he did not do so until after the conclusion of the prosecutor's closing argument; therefore, his objection was not timely. In addition, he did not object to any of the other references about which he now complains on appeal.31 Thus, we review this claim only for plain error. See Rule 45A, Ala.R.App.P.

The record reflects that during opening statements, Gavin's counsel stated the following:

(R. 505-07.)(Emphasis added.)

During closing arguments, the prosecutor stated, in pertinent part:

(R. 1091-92.) The prosecutor then began sifting through the evidence that had been presented during the trial, repeatedly referring to facts, evidence, and testimony as "uncontroverted." In all, the prosecutor used the term "uncontroverted" 15 times during his closing argument.

"A comment on the defendant's failure to testify is to be `scrupulously avoided.'" Taylor v. State, 808 So.2d 1148, 1186 (Ala.Crim.App.2000), aff'd, 808 So.2d 1215 (Ala.2001), quoting Arthur v. State, 575 So.2d 1165, 1186 (Ala.Crim.App.1990).

Windsor v. State, 683 So.2d 1021, 1024 (Ala.1994).

Ex parte Brooks, 695 So.2d 184, 188-89 (Ala.1997)(footnotes omitted).

"Not every comment that refers or alludes to a nontestifying defendant is an impermissible comment on his failure to testify; the prosecutor has a right to comment on reasonable inferences from the evidence." Ex parte Loggins, 771 So.2d 1093, 1101 (Ala.2000).

Kuenzel v. State, 577 So.2d 474, 493-94 (Ala.Crim.App.1990), aff'd, 577 So.2d 531 (Ala.1991). "Further, a prosecutor has the right to indicate to the jury those parts of the evidence or testimony presented by the State that the defense has failed to contradict; that process is not an infringement of the defendant's Fifth Amendment privilege against self-incrimination." Ex parte Brooks, 695 So.2d at 180.

Arthur v. State, 711 So.2d 1031, 1049-50 (Ala.Crim.App.1996), aff'd, 711 So.2d 1097 (Ala.1997), quoting Sellers v. State, 48 Ala.App. 178, 187, 263 So.2d 156, 164-65 (1972).

After thoroughly reviewing the prosecutor's closing argument, we conclude that the majority of the prosecutor's references to "uncontroverted" facts, testimony, and evidence were not directed toward Gavin's decision not to testify; they "merely refer[red] to the fact that the evidence was uncontradicted." Arthur, 711 So.2d at 1049. The comments did not "virtually identify" Gavin as the only person who could contradict the evidence, but were general comments, in direct response to Gavin's opening statement, on the fact that the majority of the State's evidence was uncontradicted. For example, the prosecutor referred to Meeks's testimony about the shooting as uncontradicted. There were three other eyewitnesses to the murder; therefore, contrary to Gavin's contention, he was not the only person who could have refuted Meeks's testimony about the shooting. The prosecutor also referred to the motel-room key found in Gavin's pants pocket and the testimony indicating that that key fit room 113 in the Super 8 Motel in Chattanooga as "uncontradicted facts." (R. 1093.) Again, Gavin was not the only person who could have contradicted this evidence. Most of the prosecutor's other references to "uncontradicted" facts and testimony were similar to those just mentioned and were not manifestly intended or of such a character that a jury would naturally and necessarily take them to be comments on Gavin's choice not to testify.

The record also reflects, however, that the prosecutor referred to Investigator Smith's testimony regarding his following the van and his identification of Gavin as the person who was driving the van and who shot at him as uncontradicted. It is clear from the evidence presented at the trial that the only person who could have contradicted Investigator Smith's testimony that it was, in fact, Gavin, who had been driving the van and who shot at him and then fled into the woods, was Gavin himself. However, we do not believe this comment rises to the level of plain error requiring reversal.

During its oral charge, immediately following its explanation on the presumption of innocence, the trial court instructed the jury as follows:

(R. 1182-83.) In addition, the trial court instructed the jury, both before the trial began and during its oral charge, that arguments of counsel are not evidence.

Contrary to Gavin's contention in his brief, comments on a defendant's decision not to testify are subject to harmless-error analysis. See, e.g., Ex parte Brooks, supra; Simmons v. State, 797 So.2d 1134 (Ala.Crim.App.1999); Hammonds v. State, 777 So.2d 750 (Ala.Crim.App.1999), aff'd, 777 So.2d 777 (Ala.2000); Baxter v. State, 723 So.2d 810 (Ala.Crim.App.1998); and Long v. State, 668 So.2d 56 (Ala.Crim.App.1995). In Long, this Court stated:

668 So.2d at 63-64.

After thoroughly reviewing the entire record, we conclude that any error in the prosecutor's comment that Investigator Smith's testimony was uncontradicted was harmless. This particular remark was not one of the comments Gavin objected to at trial, thus indicating that, at the time it was made, Gavin did not believe the remark to be prejudicial. In addition, in response to Gavin's objection at trial, the prosecutor stated that he had not intended any of his references to "uncontradicted" evidence to be comments on Gavin's decision not to testify. Moreover, all of the prosecutor's references to "uncontradicted" facts, testimony, and evidence were in direct response to Gavin's opening statement. Finally, the evidence against Gavin in this case was overwhelming. See, e.g., Thomas v. State, 824 So.2d 1, 31-32 (Ala.Crim.App.)(noting that some factors to be considered in evaluating whether a prosecutor's comment was harmless are the lack of a contemporaneous objection, the prosecutor's intent in making the comment, and the overwhelming evidence of the appellant's guilt). In light of the evidence presented in this case and the circumstances surrounding the prosecutor's comment, we conclude that any error was harmless beyond a reasonable doubt.

XI.

Gavin contends that the State withheld impeachment evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). (Issue XII in Gavin's brief.)

"[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87, 83 S.Ct. 1194.

Freeman v. State, 722 So.2d 806, 810 (Ala.Crim.App.1998).

Brady applies equally to exculpatory and impeachment evidence. See Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

Ex parte Willingham, 695 So.2d 148, 151-152 (Ala.1996).

Gavin makes two arguments regarding the suppression of evidence, neither of which were raised in the trial court. Therefore, we review both claims under the plain-error rule. See Rule 45A, Ala.R.App.P.

A.

First, Gavin contends that the State withheld evidence of a deal it had made with Dewayne Meeks in exchange for his testimony; specifically, that the State dismissed the capital-murder charge against Meeks in exchange for his testimony against Gavin.

Before trial, Gavin filed a motion to reveal any deals the State had made with its witnesses, including Meeks. At a pretrial hearing on that motion, the following occurred:

(R. 14-15.)

The prosecutor stated that there was no agreement with Meeks for his testimony, and Gavin has failed to show otherwise. The State cannot suppress evidence that does not exist. There was no Brady violation in this regard.

B.

Second, Gavin contends that the State withheld evidence that, at the time of his trial, the medical examiner, Dr. Pustilnik, was under investigation by the Department of Forensic Sciences for "substandard work" in an unrelated case. (Gavin's brief at p. 115.) According to Gavin, Dr. Pustilnik had misdiagnosed the cause of death in another case — stating that the cause of death was asphyxiation when a later autopsy by Dr. Pustilnik's supervisor revealed a gunshot wound to the head that was the true cause of death and that Dr. Pustilnik had not discovered the wound during the initial autopsy. Gavin maintains that Dr. Pustilnik's misdiagnosis was discovered in August 1999, before his trial, and that under Brady it should have been disclosed to him for impeachment purposes.

As noted above, this issue is being raised for the first time on appeal, and Gavin concedes in his brief that nothing in the record supports his assertion regarding Dr. Pustilnik because, he admits, this issue only came to his attention "subsequent to the closure of the record in this cause." (Gavin's brief at p. 114.)32 "The defendant cannot successfully argue that error is plain in the record when there is no indication in the record that the act upon which error is predicated ever occurred." Ex parte Watkins, 509 So.2d 1074, 1077 (Ala.1987). "Without any evidence in the record on appeal to support the allegation of error, this court cannot consider the alleged error even under the `plain error' doctrine." Kuenzel v. State, 577 So.2d 474, 482 (Ala.Crim.App.1990), aff'd, 577 So.2d 531 (Ala.1991).

Id., quoting Ex parte Godbolt, 546 So.2d 991, 998 (Ala.1987). Because nothing in the record supports Gavin's assertion that the State withheld impeachment evidence concerning Dr. Pustilnik, or even that such impeachment evidence existed, we find no plain error as to this claim.

Moreover, we reject Gavin's request to remand this case to allow him to create a record on this issue because "to do otherwise would unduly enlarge the scope of the plain error review as authorized by our appellate rules." Ex parte McNair, 653 So.2d 353, 360 (Ala.1994). See also Ex parte Watkins, supra.

XII.

Gavin contends that electrocution constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. (Issue II in Gavin's brief.)

Recently, the Alabama Legislature amended § 15-18-82, Ala.Code 1975, which sets out the time, place, and method of executions in Alabama, and it added § 15-18-82.1, Ala.Code 1975. Section 15-18-82.1(a) provides:

Newly amended § 15-18-82(a) now provides:

These sections became effective July 1, 2002, and apply to all inmates currently on death row. Because the primary method of execution in Alabama has been changed from electrocution to lethal injection, Gavin's argument is moot. See Clark v. State, [Ms. CR-99-1062, June 27, 2003] ___ So.2d ___, ___ (Ala.Crim.App.2003)(opinion on return to remand and on application for rehearing); Turner v. State, [Ms. CR-99-1568, November 22, 2002] ___ So.2d ___ (Ala.Crim.App.2002); Tomlin v. State, [Ms. CR-98-2126, May 31, 2002] ___ So.2d ___ (Ala.Crim.App.2002); and Duke v. State, 889 So.2d 1 (Ala.Crim.App.2002).

XIII.

Gavin also contends that the United States Supreme Court's decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), requires that his sentence of death be vacated. (Issue I in Gavin's supplemental brief.) Gavin makes several arguments regarding the impact of Ring, all of which have been addressed and decided adversely to him either by this Court or by the Alabama Supreme Court. See Ex parte Smith, [Ms. 1010267, March 14, 2003] ___ So.2d ___ (Ala.2003); Ex parte Hodges, 856 So.2d 936 (Ala.2003); Ex parte Waldrop, 859 So.2d 1181 (Ala.2002); Clark v. State, [Ms. CR-99-1062, June 27, 2003] ___ So.2d ___, ___ (Ala.Crim.App.2000)(opinion on return to remand and on application for rehearing); Ziegler v. State, 886 So.2d 127, 150 (Ala.Crim.App.2003)(opinion on return to remand); Lee v. State, [Ms. CR-00-0084, June 27, 2003] ___ So.2d ___, ___ (Ala.Crim.App.2001)(opinion on return to remand); Lewis v. State, 889 So.2d 623 (Ala.Crim.App.2003); Peraita v. State, [Ms. CR-01-0289, May 30, 2003] ___ So.2d ___ (Ala.Crim.App.2003); Martin v. State, [Ms. CR-99-2249, May 30, 2003] ___ So.2d ___ (Ala.Crim.App.2003); McNabb v. State, 887 So.2d 929, 989 (Ala.Crim.App.2001)(opinion on application for rehearing); Moody v. State, 888 So.2d 532 (Ala.Crim.App.2003); Duke v. State, 889 So.2d 1, 40 (Ala.Crim.App.2002)(opinion on return to remand); Stallworth v. State, 868 So.2d 1128, 1177 (Ala.Crim.App.2001)(opinion on return to second remand); Harrison v. State, 869 So.2d 509, 526 (Ala.Crim.App.2002)(opinion on application for rehearing); Turner v. State, [Ms. CR-99-1568, November 22, 2002] ___ So.2d ___ (Ala.Crim.App.2002); and Tomlin v. State, [Ms. CR-98-2126, November 22, 2002] ___ So.2d ___, ___ (Ala.Crim.App.2002)(opinion on application for rehearing). Gavin's death sentence is not invalid under Ring.

XIV.

Gavin contends that the trial court's findings concerning the aggravating and mitigating circumstances were improper. (Issues XVI and XVIII in Gavin's brief.) He makes two arguments in this regard; we address each in turn.

A.

First, Gavin contends that the trial court erred in finding as an aggravating circumstance that he committed the crime while under a sentence of imprisonment, see § 13A-5-49(1), Ala.Code 1975. He argues that although parole from an Alabama conviction would constitute being under a sentence of imprisonment under § 13A-5-49(1), "[t]here is nothing in the record to indicate that the legal status of the defendant with the Illinois authorities was within the ambit of the language of Ala.Code [1975,] § 13A-5-49(1)." (Gavin's brief at p. 127.)

Section 13A-5-39(7), Ala.Code 1975, defines the term "under sentence of imprisonment" as used in § 13A-5-49(1) as "while serving a term of imprisonment, while under a suspended sentence, while on probation or parole, or while on work release, furlough, escape, or any other type of release or freedom while or after serving a term of imprisonment, other than unconditional release and freedom after expiration of the term of sentence." Nothing in the definition of "under sentence of imprisonment" limits the term to parole from an Alabama conviction, as opposed to parole from a conviction in another state. See, e.g., Lewis v. State, 889 So.2d 623 (Ala.Crim.App.2003)(upholding death sentence where trial court found as an aggravating circumstance that the capital offense was committed while the defendant was under a sentence of imprisonment based on the fact that the defendant was on parole from felony convictions in Georgia).

Severia Morris, a parole supervisor from the Illinois Department of Corrections, testified that, at the time Clayton was murdered in March 1998, Gavin was on parole from the Illinois Department of Corrections. Gavin had been convicted in 1982 of murder and served approximately 17 years of a 34-year sentence; he had been paroled in December 1997. This testimony was sufficient to establish that Gavin was "under a sentence of imprisonment" pursuant to § 13A-5-49(1) at the time of Clayton's murder.

Therefore, the trial court did not err in finding the existence of the aggravating circumstance in § 13A-5-49(1) that Gavin was under a sentence of imprisonment.

B.

Second, Gavin contends that the trial court erred in finding no statutory or nonstatutory mitigating circumstances to exist. He maintains that the trial court should have found the existence of the statutory mitigating circumstances (1) that he was under the influence of extreme mental or emotional disturbance at the time of the crime, see § 13A-5-51(2), Ala.Code 1975, and (2) that his capacity to appreciate the criminality of his conduct or to conform his conduct to the law was substantially impaired at the time of the crime, see § 13A-5-51(6), Ala.Code 1975. In addition, he argues that the trial court should have found the following to constitute nonstatutory mitigation: (1) his disadvantaged background growing up in a Chicago housing project; (2) his potential for rehabilitation, as evidenced by the fact that he attained his GED certificate while serving his prison term in Illinois; (3) the fact that he is a religious person; and (4) that because the victim was not shot in the head "it is more likely than not that the shooter, even were it conceded to be the defendant, intended to disable the victim rather than kill him." (Gavin's brief at p. 130.)

Reeves v. State, 807 So.2d 18, 47-48 (Ala.Crim.App.2000).

In its sentencing order, the trial court made the following findings regarding mitigating circumstances:

(C. 190-96.)(Capitalization in original.)

The sentencing order shows that the trial court considered all of the mitigating evidence offered by Gavin. The trial court did not limit or restrict Gavin in any way as to the evidence he presented or the arguments he made regarding mitigating circumstances. In its sentencing order, the trial court addressed each statutory mitigating circumstance listed in § 13A-5-51, Ala.Code 1975, and it determined that none of those circumstances existed under the evidence presented. In addition, the trial court set forth the nonstatutory mitigating evidence offered by Gavin, and concluded that the evidence did not rise to the level of a mitigating circumstance. The trial court's findings in this regard are supported by the record.

Because it is clear from a review of the entire record that the trial court understood its duty to consider all the mitigating evidence presented by Gavin, that the trial court did in fact consider all such evidence, and that the trial court's findings are supported by the evidence, we find no error in the trial court's findings regarding the statutory and nonstatutory mitigating circumstances.

XV.

Finally, Gavin reminds this Court of its responsibility in reviewing death sentences under § 13A-5-53(b), Ala.Code 1975. (Issues XVII, XVIII, and XIX in Gavin's brief.) We undertake our mandated review of the death sentence in Part XVI of this opinion. However, we find it prudent at this point to address some of Gavin's specific arguments regarding his death sentence.

First, Gavin contends that his sentence of death was imposed under the influence of passion, prejudice, and other arbitrary factors, see § 13A-5-53(b)(1), Ala.Code 1975, because, he says, capital indictments in Cherokee County are returned arbitrarily, capriciously, and discriminatorily. However, we have already determined that capital indictments in Cherokee County are not returned in an arbitrary, capricious, or discriminatory manner. (See Part I of this opinion.) Therefore, there is no support for Gavin's argument in this regard.

Gavin also contends that death is not the appropriate sentence in his case because, he says, the aggravating circumstances do not outweigh the mitigating circumstances, see § 13A-5-53(b)(2). In support of this argument, Gavin asks this Court to consider several mitigating circumstances that the trial court found not to exist. (See Part XIV of this opinion.) However, as this Court stated in Roberts v. State, 735 So.2d 1244 (Ala.Crim.App.1997):

735 So.2d at 1269 (emphasis added). See also Clark v. State, [Ms. CR-99-1062, June 27, 2003] ___ So.2d ___, ___ (Ala.Crim.App.2000)(opinion on return to remand and on application for rehearing), and Guthrie v. State, 689 So.2d 935 (Ala.Crim.App.1996), aff'd, 689 So.2d 951 (Ala.1997). This Court cannot, as Gavin urges us to do, consider mitigating circumstances not found to exist by the trial court.

Finally, Gavin contends that "the fact that the co-defendant, Dewayne Meeks, was allowed to walk away without prosecution, creates a severe disproportionality" in his sentence of death, see § 13A-5-53(b)(3), and that the trial court should have considered the fact that Meeks was not prosecuted as a mitigating circumstance. (Gavin's brief at p. 131.)

Although Meeks was initially charged with the capital murder, that charge was dismissed because the prosecutor and the investigators believed that Meeks was not a participant in the murder. Meeks testified at trial that he did not participate in the murder, but that when Gavin got out of the car, he thought Gavin was going to ask the driver of the van for directions. Nothing in the record supports Gavin's assertion that Meeks was a participant in the murder and that Meeks's lack of prosecution should have been considered by the trial court. Compare Ex parte Burgess, 811 So.2d 617 (Ala.2000)(holding that the trial court should have considered in mitigation the fact that Burgess was the only one of six participants in the crime (two of whom admitted that they participated in the crime) who was charged with, and prosecuted for, the murder). Thus, we find no error on the part of the trial court in not finding the fact that Meeks was not prosecuted to be a mitigating circumstance.

Moreover, even assuming that Meeks was an accomplice in the murder, merely because he was not prosecuted does not automatically make Gavin's death sentence disproportionate. See, e.g., Arthur v. State, 711 So.2d 1031, 1096 (Ala.Crim.App.1996), aff'd, 711 So.2d 1097 (Ala.1997)("the fact that two of the appellant's accomplices were not prosecuted does not make his death sentence disproportionate"), and Neelley v. State, 494 So.2d 669, 682 (Ala.Crim.App.1985), aff'd, 494 So.2d 697 (Ala.1986)(the appellant's death sentence was not disproportionate despite the fact that her accomplice had not been prosecuted for his participation in the murder).

Ex parte McWhorter, 781 So.2d 330, 344 (Ala.2000). "Because of `the need for individualized consideration as a constitutional requirement in imposing the death sentence', Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973, 990 (1978), the focus must be on the defendant." Wright v. State, 494 So.2d 726, 740 (Ala.Crim.App.1985), aff'd, 494 So.2d 745 (Ala.1986). As discussed further in Part XVI of this opinion, Gavin's sentence is not disproportionate or excessive when compared to the sentences imposed in similar cases.

XVI.

In accordance with Rule 45A, Ala.R.App.P., we have examined the record for any plain error with respect to Gavin's capital-murder convictions, whether or not brought to our attention or to the attention of the trial court. We find no plain error or defect in the proceedings during the guilt phase of the trial.

We have also reviewed Gavin's sentence in accordance with § 13A-5-53, Ala.Code 1975, which requires that, in addition to reviewing the case for any error involving Gavin's capital-murder convictions, we shall also review the propriety of the death sentence. This review shall include our determination of the following: (1) whether any error adversely affecting the rights of the defendant occurred in the sentence proceedings; (2) whether the trial court's findings concerning the aggravating and mitigating circumstances were supported by the evidence; and (3) whether death is the appropriate sentence in the case. Section 13A-5-53(b) requires that, in determining whether death is the proper sentence, we must determine: (1) whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; (2) whether an independent weighing by this Court of the aggravating and mitigating circumstances indicates that death is the proper sentence; and (3) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

After the jury convicted Gavin of the capital offenses charged in the indictment, a separate sentencing hearing was held before the jury in accordance with §§ 13A-5-45 and -46, Ala.Code 1975. After hearing evidence concerning the aggravating and mitigating circumstances; after being properly instructed by the trial court as to the applicable law; and after being correctly advised as to its function in reference to the finding of any aggravating and mitigating circumstances, the weighing of those circumstances, if appropriate, and its responsibility in reference to the return of an advisory verdict, the jury recommended a sentence of death by a vote of 10-2.

Thereafter, the trial court held another hearing, in accordance with § 13A-5-47, Ala.Code 1975, to aid it in determining whether it would sentence Gavin to life imprisonment without parole or to death as recommended by the jury. The trial court ordered and received a written presentence investigation report, as required by § 13A-5-47(b). In its sentencing order, the trial court entered specific written findings regarding the existence or nonexistence of each mitigating circumstance enumerated in § 13A-5-51, Ala.Code 1975, as well as written findings of fact summarizing the offense and Gavin's participation in it. In addition, the court expressly stated that it had considered the mitigating evidence offered by Gavin pursuant § 13A-5-52, Ala.Code 1975, and that it found no nonstatutory mitigating circumstances to exist.

The trial court also entered specific written findings concerning the three aggravating circumstances in § 13A-5-49, Ala.Code 1975, that it found to exist, but it did not enter specific written findings as to the remainder of the aggravating circumstances in § 13A-5-49, Ala.Code 1975, as required by § 13A-5-47(d), Ala.Code 1975. However, in Stewart v. State, 730 So.2d 1203 (Ala.Crim.App.1996), aff'd, 730 So.2d 1246 (Ala.1999), this Court held that a trial court's failure to make specific written findings regarding those aggravating circumstances in § 13A-5-49, Ala.Code 1975, that it found not to exist was harmless. We stated:

730 So.2d at 1219.

Similarly, the record here indicates that the trial court did not refuse or fail to consider any applicable aggravating circumstances. At the sentencing hearing before the jury and the sentencing hearing before the court, the State argued the existence of only three aggravating circumstances, the same three that the trial court expressly found to exist. Moreover, given the court's express finding as to the existence of three aggravating circumstances, it is clear that the court found the remaining aggravating circumstances listed in § 13A-5-49, Ala.Code 1975, not to exist and, thus, we have a sufficient basis to review the propriety of Gavin's death sentence. Therefore, we conclude that the defect in the court's sentencing order was a technical error without injury to Gavin.33

As noted, in its findings, the trial court found the existence of three statutory aggravating circumstances: (1) that the murder was committed while Gavin was under a sentence of imprisonment, see § 13A-5-49(1), Ala.Code 1975; (2) that Gavin had previously been convicted of another capital offense or a felony involving the use or threat of violence to the person, see § 13A-5-49(2), Ala.Code 1975; and (3) that the murder was committed during the course of a robbery in the first degree, see § 13A-5-49(4), Ala.Code 1975. The trial court found no statutory or nonstatutory mitigating circumstances to exist under §§ 13A-5-51 and -52, Ala.Code 1975.

The trial court's sentencing order reflects that after considering all the evidence presented, the arguments of counsel, the presentence report, and the advisory verdict of the jury, and after weighing the aggravating circumstances against the absence of any mitigating circumstances, the trial court found that the aggravating circumstances outweighed the nonexistent mitigating circumstances. Accordingly, the trial court sentenced Gavin to death. The trial court's findings concerning the aggravating circumstances and the mitigating circumstances are supported by the evidence, and we find no plain error or defect in the sentencing phase of the proceedings.34

Gavin was convicted of murder committed during the course of a robbery and murder after Gavin had been convicted of murder in the 20 years preceding the present murder. These offenses are defined by statute as capital offenses. See §§ 13A-5-40(a)(2) and 13A-5-40(a)(13), Ala.Code 1975. We take judicial notice that similar crimes have been punished capitally throughout the state. See, e.g., cases dealing with murders committed during a robbery: Reeves v. State, 807 So.2d 18 (Ala.Crim.App.2000); Ferguson v. State, 814 So.2d 925 (Ala.Crim.App.2000), aff'd, 814 So.2d 970 (Ala.2001); Maxwell v. State, 828 So.2d 347 (Ala.Crim.App.2000); Jackson v. State, 791 So.2d 979 (Ala.Crim.App.2000); West v. State, 793 So.2d 870 (Ala.Crim.App.2000); Clemons v. State, 720 So.2d 961 (Ala.Crim.App.1996), aff'd, 720 So.2d 985 (Ala.1998); Williams v. State, 710 So.2d 1276 (Ala.Crim.App.1996), aff'd, 710 So.2d 1350 (Ala.1997); Henderson v. State, 583 So.2d 276 (Ala.Crim.App.1990), aff'd, 583 So.2d 305 (Ala.1991); Kuenzel v. State, 577 So.2d 474 (Ala.Crim.App.1990), aff'd, 577 So.2d 531 (Ala.1991); and cases where the defendant had been convicted of murder in the preceding 20 years: Peraita v. State, [Ms. CR-01-0289, May 30, 2003] ___ So.2d ___ (Ala.Crim.App.2003); Broadnax v. State, 825 So.2d 134 (Ala.Crim.App.2000), aff'd, 825 So.2d 233 (Ala.2001); Flowers v. State, 799 So.2d 966 (Ala.Crim.App.1999); Borden v. State, 769 So.2d 935 (Ala.Crim.App.1997), aff'd, 769 So.2d 950 (Ala.2000); Arthur v. State, 711 So.2d 1031 (Ala.Crim.App.1996), aff'd, 711 So.2d 1097 (Ala.1997); Carroll v. State, 599 So.2d 1253 (Ala.Crim.App.1992), aff'd, 627 So.2d 874 (Ala.1993); Nelson v. State, 511 So.2d 225 (Ala.Crim.App.1986), aff'd, 511 So.2d 248 (Ala.1987); Hubbard v. State, 500 So.2d 1204 (Ala.Crim.App.), aff'd, 500 So.2d 1231 (Ala.1986).

After carefully reviewing the record of the guilt phase and of the sentencing phase of Gavin's trial, we find no evidence that the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor. The findings and conclusions of the trial court are amply supported by the evidence. We have independently weighed the aggravating circumstances against the absence of any statutory or nonstatutory mitigating circumstances, and we concur in the trial court's judgment that the aggravating circumstances outweigh the nonexistent mitigating circumstances, and we agree that death is the appropriate sentence in this case. Considering the crime committed, and Gavin, we find that the sentence of death is neither excessive nor disproportionate to the penalty imposed in similar cases.

Therefore, based on the foregoing, Gavin's convictions and sentences are affirmed.

AFFIRMED.

McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ., concur.