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Max Landon PAYNE

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Robbery
Number of victims: 1
Date of murder: March 23, 1992
Date of birth: November 10, 1970
Victim profile: Braxton Brown, 58 (store owner)
Method of murder: Shooting (double-barreled shotgun)
Location: Cullman County, Alabama, USA
Status: Executed by lethal injection in Alabama on October 8, 2009
 
 
 
 
 

The United States Court of Appeals
For the Eleventh Circuit

 

opinion 06-15674

 
 
 
 
 
 

Summary:

Payne was at his sister Wilma’s house with his girlfriend, Sandra Walker, and Wilma. Payne left the house with a double-barreled shotgun. Later that evening two customers saw Payne at West Point Grocery, which was owned by Braxton Brown. Payne had robbed the store, kidnapped Brown, and taken him at gunpoint to his sister’s house. Wilma was still there with Sandra. Sandra testified Brown appeared very nervous and scared, and Payne had a gun and ordered Brown to give Wilma money. Wilma asked Payne to leave Brown with her or take him back to his store and said “maybe he would forget about this.” Payne rejected the suggestion, stating, “No, I am going to do this.”

Payne forced Brown iinto the car and drove to a nearby bride where he shot him twice in the face with a shotgun and dumped him into the Crooked Creek. Around midnight, Payne purchased a bus ticket to Florida. Following a call from Alabama authorities, a Miami police detective met Payne’s bus when it arrived in Miami.

Items found on Payne included Brown’s handgun; a jeweler’s invoice made out to West Point Grocery; a vehicle registration in Brown’s name; three cartons of Marlboro cigarettes; three bank deposit bags containing numerous checks written to West Point Grocery, credit card receipts, rings, and food stamps; bank receipts in Brown’s name; and a total of $1,085.84. Brown’s son identified many items as coming from West Point Grocery. Forensic testing matched human tissue recovered from Payne’s arm sling to Brown’s blood type.

Citations:

Payne v. State, 683 So.2d 440 (Ala.Cr.App. 1995). (Direct Appeal)
Ex parte Payne, 683 So.2d 458 (Ala. 1996). (Direct Appeal)
Payne v. State, 791 So.2d 383 (Ala.Cr.App. 1999). (PCR)
Payne v. Allen, 539 F.3d 1297 (11th Cir. 2008). (Habeas)

Final/Special Meal:

A turkey sandwich with tomatoes and mayonnaise, potato salad and cake.

Final Words:

"I just want to tell my family I love them."

ClarkProsecutor.org

 
 

Alabama Department of Corrections

DOC#: Z566
Inmate: PAYNE, MAX LANDON
Gender: M
Race: W
DOB: 11-10-70
Prison Holman
Received: 06-13-94
Charge: MURDER
County: Cullman

 
 

Alabama Death Row inmate Max Payne executed in 1992 slaying

By Tom Gordon - Birmingham News

Friday, October 09, 2009

ATMORE - Convicted murderer Max Landon Payne on Thursday evening became the sixth Alabama prison inmate to be executed this year. Payne, who had been on Death Row for 15 years, died by lethal injection in Holman Correctional Facility's execution chamber at 6:25 p.m. He was sentenced to death in 1994 for the 1992 robbing, kidnapping and killing of Cullman County store owner Braxton Brown. Brown was killed by two shotgun blasts to the face.

Payne, 38, did not make any last attempts to stop his execution. Asked for any last words as he faced the lethal injections, Payne said to tell his family "I love'em," and signed that message to the people he chose to witness his execution.

Donald Blocker of Kairos Prison Ministry knelt beside Payne's two sisters and two friends in the execution viewing room before the curtains were opened. He told them Payne wouldn't suffer and was ready for what was to come. No witnesses were present on behalf of the victim.

Douglas Price, one of Payne's friends who witnessed his death, said in a statement afterward that Payne paid the ultimate price for his crime. He said Payne had wanted to be an organ donor but that was not allowed. Corrections spokesman Brian Corbett said the denial was based on a medical issue. Payne spent part of the time leading to his death visiting with relatives and friends.

Corbett said Payne had a last meal consisting of a turkey sandwich, potato salad and cake. He also divided his personal possessions among a sister, Wilma Easterling; a friend, Claudia Wheatley; and two fellow Death Row inmates, Richard Flowers and Calvin Stallworth. Among his final visitors were Blocker and a priest, the Rev. Johnnie Savoie.

No other inmates are scheduled for execution now, but the attorney general's office has asked the Alabama Supreme Court to set execution dates for convicted murderers Thomas Arthur and Robert Bryant Melson.

Arthur, 67, of Jefferson County has been on Death Row since 1983. He has been scheduled for execution more than once, and his most recent date was postponed so a judge could conduct a hearing on his claim that another inmate killed Troy Wicker Jr. in 1982. After the hearing, Jefferson County Circuit Judge Teresa Pulliam rejected Arthur's claim, saying he and the inmate were trying to defraud the court.

Melson, 38, has been on Death Row since May 17, 1996. He was convicted of killing three people during an April 1994 robbery at a Popeye's Chicken & Biscuits restaurant in Gadsden.

 
 

Inmate put to death for 1992 murder

By Bob Johnson - Montgomery Advertiser

Associated Press - October 9, 2009

ATMORE -- Alabama death row inmate Max Payne was executed by lethal injection Thursday for the 1992 kidnapping, robbery and killing of Cullman store owner Braxton Brown.

Payne, 38, died at 6:25 p.m. as his two sisters and other relatives wept quietly in the witness viewing room. Payne made a hand sign that means "I love you" to his relatives before losing consciousness. Asked if he had any last words, Payne said, "I just want to tell my family I love them."

The heavyset, balding Payne, strapped to a gurney in the execution chamber, made his last statement after warden Grantt Culliver read the execution order issued by the Alabama Supreme Court. Once the lethal injection began, Payne gestured to family members and spoke quietly with prison chaplain Chris Summers, who was standing a few feet away. At one point Summers grabbed Payne's hand and patted him on the knee. Payne closed his eyes, pinched his lips and seemed to take a deep breath. Then he was still. His sisters, Wilma Easterling and Evelyn Schrimser, cried quietly as they watched from the witness room. They did not talk to news reporters.

One witness, Douglas Price, who prison officials described as a friend of Payne's, released a handwritten statement through prisons spokesman Brian Corbett. In it, Price complained that Payne was not able to donate his organs after his death. "It is like he said today at our last visit, 'Do you think people would care where a heart came from if their child is dying?'" Price said in the statement. Corbett said he's not sure why Payne was unable to donate organs. "It's not a prison issue, it's a medical issue," Corbett said.

No relatives of the victim attended the execution. Payne had been held since Tuesday in a cell just a short walk from the execution chamber.

He was convicted of kidnapping the 58-year-old Brown from his store at gunpoint on March 23, 1992, and taking Brown to a bridge over Crooked Creek in a rural area near West Point. Brown was shot there and his body dumped in the waters below. Assistant Alabama Attorney General Clay Crenshaw said Thursday that no motions to stop the execution had been filed.

An attorney for Payne, Bruce Nestor of Minneapolis, said earlier that Payne had exhausted his appeals and he did not plan to file any last-minute motions to halt the proceedings.

Payne spent Thursday visiting with about a dozen friends, family members and religious advisers in a visitation yard at the prison. For his last meal about 3:30 p.m., Payne had a turkey sandwich with tomatoes and mayonnaise, potato salad and cake, Corbett said.

The condemned inmate gave away his few possessions. He left a rosary necklace, a watch, a white cap and some photos to Easterling; two Bibles, some photos and drawings of family members to a friend, Claudia Wheatley; and his television to death row inmate Calvin Stallworth.

Gov. Bob Riley's press secretary, Todd Stacy, said the governor received letters asking him to commute Payne's death sentence. Stacy said the governor responded to the letters, but took no action to stop the execution. In his earlier appeals, Payne claimed another man shot Brown and asserted that the court-appointed attorney at his trial was ineffective. His pleadings were rejected by state and federal courts.

Len Brooks, who was the Cullman County district attorney at the time, called Brown's killing "a cold, callous, senseless crime." Brooks said the kidnapping and shooting of the store owner shocked the close-knit, rural West Point community in northwest Cullman County.

Payne's lethal injection brings Alabama's 2009 execution total to six, the most in a single year in the state since the U.S. Supreme Court allowed capital punishment to resume in the 1970s. Until now, the most in a single year was four, in 2005, 2000 and 1989.

 
 

Convicted murderer Max Payne executed

By Patrick McCreless - Cullman Times

October 8, 2009

The small, white room was dark except for a soft red light glowing in the corner. Four of Max Landon Payne's closest family and friends sat in a row in front of a window shielded by a white curtain. At 6:01 p.m., a corrections officer pulled back the curtain to reveal Payne, strapped to a table.

Payne caught the eye of his friend Douglas Price and the two immediately flashed each other the Hook 'em Horns hand sign, which, according to prison minister Donald Blocker, meant 'I love you.' "I just want to tell my family I love them," Payne said. After speaking his final words, a priest took Payne's left hand and made a silent prayer as the injections began.

With a calm, somber look on his face, Payne closed his eyes, never to reopen them. Payne, 38, was pronounced dead by lethal injection at 6:25 p.m. Thursday at the Holman Correctional Facility in Atmore.

He had been on death row since 1994, when he was convicted of the kidnapping and murdering of West Point businessman Braxton Brown. In 1992, Payne kidnapped Brown from his place of business and drove him to several places before he took him to a bridge on Crooked Creek, where he shot him in the face with a shotgun. None of Brown's family members attended the execution.

In a written statement, Price said Payne had paid the ultimate sacrifice for the crime he committed. Price added that Payne had wanted to donate his organs but was not allowed to do so. Alabama Department of Corrections Spokesman Brian Corbett said the denial was related to a medical issue.

Payne spent his final hours leading up to the execution watching television and visiting with family and friends. His final meal consisted of a turkey sandwich with tomatoes, potato salad and cake. In a written will, Payne left his most personal possessions to his sister Wilma Easterling and friend Claudia Wheatly, which included a Rosary necklace, several letters and photographs, two Bibles and a drawing of his family. He also left some possessions to fellow inmates Richard Flowers and Calvin Stallworth, including a box of tobacco, seven matches, stamps, food and a television.

Payne's death marked the sixth execution performed in Alabama this year — the most performed in the state over a one-year time span since 1983.

 
 

Max Landon Payne

ProDeathPenalty.com

Max Landon Payne was sentenced to death for the murder of Braxton Brown, the owner of West Point Grocery in Cullman County. Braxton was killed by two shotgun blasts to his face.

On March 23, 1992, the evening Payne murdered Braxtom, Payne was at his sister Wilma’s house with his girlfriend, Sandra Walker, and Wilma. Payne left the house with a double-barreled shotgun. Payne said he was taking the shotgun in case “somebody fucks with me.” Around 8:25 or 8:30 p.m., two customers saw Payne at West Point Grocery, which Braxton owned. Around 8:30 p.m., an alarm company operator received a “hold-up alarm” from West Point Grocery and called the sheriff’s department. The responding deputy discovered the store door open and saw Marlboro packs scattered on the floor, but found no one there.

Payne had robbed the store, kidnapped Braxton, and taken Braxton at gunpoint to his sister’s house. Wilma was still there with Sandra. Sandra testified Braxton appeared very nervous and scared, and Payne had a gun, stood right next to Braxton, and had an arm sling. Payne ordered Braxton to give Wilma money. Braxton laid $20 on a table. Sandra overheard Wilma begging Payne “don’t do this” several times. Wilma asked Payne to leave Braxton with her or take him back to his store and said “maybe he would forget about this.” Braxton nodded nervously.

Payne rejected his sister’s suggestion, stating, “No, I am going to do this.” Payne forced Braxton to leave the house with him. Around 9:15 p.m., Payne went to a friend’s house and asked to use the telephone. Payne called someone and asked for bullets for a .22 rifle. Payne also asked the friend if he had any bullets. During this time, Payne’s other sister Alma went to West Point Grocery and informed police her brother had been seen with Braxton and described the car Payne was driving. Around 10:00 p.m., a police investigator taking pictures at West Point Grocery received a call that gunshots had been heard. He attempted to locate the origin of the shots but failed. When the investigator returned to West Point Grocery, he received a call that Braxton had been seen with Payne.

Following the report of gunshots, an investigator arrived at Wilma’s house and found the car Payne had used that evening. Inside the car were two spent and several unspent shotgun shells. Around midnight, Payne purchased a bus ticket to Florida. The ticket agent noticed Payne wore torn blue jeans with blood stains and had cuts on his face. On the morning of March 24, 1992, a volunteer fireman found a partial dental plate on a bridge over Crooked Creek and noticed dark red stains on the bridge and railing. The search team discovered Braxton’s body in the creek.

Most of Braxton’s face was gone due to two shotgun blasts to the face. He had two large holes in his face: one in his forehead and one in his mouth. An autopsy later retrieved 466 shotgun pellets from Braxton’s skull. A forensic examiner testified Braxton was shot with a shotgun from a distance of one to one-and-a-half feet away. On March 25, 1992, following a call from Alabama authorities, a Miami police detective met Payne’s bus when it arrived in Miami.

Items found on Payne included Braxton’s handgun; a jeweler’s invoice made out to West Point Grocery; a vehicle registration in Braxton’s name; three cartons of Marlboro cigarettes; three bank deposit bags containing numerous checks written to West Point Grocery, credit card receipts, rings, and food stamps; bank receipts in Braxton’s name; and a total of $1,085.84. Braxton’s son identified many items as coming from West Point Grocery. Forensic testing matched human tissue recovered from Payne’s arm sling to Braxton’s blood type.

The counts are: (1) intentional murder committed during an abduction with the intent to accomplish or aid the commission of robbery or flight therefrom; (2) intentional murder during an abduction with the intent to inflict serious physical injury; and (3) intentional murder during a robbery in the first degree. A person commits robbery in the first degree when he, in the course of committing a theft, (1) uses force with intent to overcome physical resistance or threatens the imminent use of force with intent to compel acquiescence to the taking of or escaping with the property; and (2) is armed with a deadly weapon or dangerous instrument or causes serious physical injury to another. Payne was indicted for three counts of capital murder arising from Braxton’s death. An Alabama jury unanimously convicted Payne on all counts and recommended a death sentence by an 11-1 vote. The state trial judge sentenced Payne to death.

 
 

Payne v. State, 683 So.2d 440 (Ala.Cr.App. 1995). (Direct Appeal)

Defendant was convicted in the Circuit Court, Cullman County, Robert Austin, J., of capital murder, and he appealed. The Court of Criminal Appeals, Patterson, J., held that: (1) prosecutor's comments during closing argument were not plain error; (2) delay of 25 months between defendant's indictment and trial did not violate his Sixth Amendment right to speedy trial; (3) defendant's requested jury charge on circumstantial evidence was substantially covered by trial court's oral charge; (4) exigent circumstances supported warrantless search of defendant's automobile; (5) admitting expert witness' deoxyribonucleic acid (DNA) testimony without first determining admissibility of that evidence in hearing outside presence of jury was not plain error; and (6) aggravating circumstances outweighed mitigating circumstances and supported imposition of death penalty. Affirmed. Judgment affirmed, Ala., 683 So.2d 458.

PATTERSON, Judge.

Max Landon Payne was convicted of three counts of capital murder. Ala.Code 1975, § 13A-5-40. Count one charged intentional murder committed during an abduction with the intent to accomplish or aid the commission of robbery or flight therefrom (§ 13A-5-40(a)(1)); count two charged intentional murder during an abduction with the intent to inflict serious physical injury (§ 13A-5-40(a)(1)); and count three charged intentional murder during a robbery in the first degree (§ 13A-5-40(a)(2)). A sentencing hearing was held before the jury, in accordance with §§ 13A-5-45 and -46, and the jury recommended a sentence of death by a vote of 11-1. Thereafter, the trial court held another sentencing hearing in accordance with §§ 13A-5-47 through -52, and, after weighing the aggravating and mitigating circumstances and considering the jury's recommendation, sentenced Payne to death. Payne appeals his conviction, raising five issues. He does not question the sufficiency of the evidence to support his convictions. Nevertheless, after reviewing the record, we find that the evidence was sufficient for the jury to exclude every reasonable hypothesis except that of guilt and to find him guilty of the offenses charged in the indictments beyond a reasonable doubt. In fact, the evidence of guilt was strong and convincing.

On March 23, 1992, Braxton Brown, the owner of West Point Grocery in Cullman, Alabama, was robbed, abducted, and subsequently shot two times in the face with a shotgun. He died as a result of the shotgun wounds and his body was found the following day in Crooked Creek.

The state's evidence tended to show that Payne was at his sister's house, where he was living at the time, in the company of his girlfriend and two other people in the early evening hours of March 23, 1992. Sandra Walker, Payne's girlfriend, testified that she did not know the two individuals with Payne. The three left at around 6:00 p.m. Payne returned to the house about 10 minutes later and went to the closet and removed his double-barreled shotgun. Wilma Faye Easterling, Payne's sister, asked Payne why he needed his shotgun. Payne replied “In case somebody fucks with me.” Walker identified Payne's double-barreled shotgun in court.

At approximately 8:33 p.m. on March 23, 1992, Judy Gail Byrum received an alarm from West Point Grocery. At 8:36 p.m. sheriff's deputy Jason Allen received a call that there had been a holdup at West Point Grocery. Allen notified Toby Welch, a dispatcher, who subsequently asked Gordon Nichols to respond to the scene. Nichols, a deputy sheriff with the Cullman County Sheriff's Department, responded to the call and arrived at West Point Grocery at 8:48 p.m. Nichols discovered the door of the store open and that some of the lights were off in the store. The lights outside the store were also off. Nichols also observed several packs of Marlboro cigarettes lying on the floor in front of the counter. Nichols did not find anyone in the store. He notified the dispatcher and secured the area. Bobby Watson, a sergeant with the Cullman County Sheriff's Department, arrived on the scene at approximately 9:08 p.m. He subsequently requested that an investigator be sent to the scene. Payne had been seen at West Point Grocery by two customers, Christy Sue Godsey and Becky Noone, around 8:25 or 8:30 p.m. Sometime after this and before 9:00 p.m. that evening, Payne arrived at his sister Faye Easterling's house. The victim, Braxton Brown, was with him. Sandra Walker, Payne's girlfriend, was present. At trial, Walker identified a photograph of Brown as the man with Payne that evening. Walker testified that when the two men entered the house, Easterling asked Payne what was going on. Walker testified that Brown had three bank deposit bags and two cartons of Marlboro cigarettes with him. Walker identified the three bank deposit bags at trial. Brown told Easterling that he heard that she was pregnant and also that he heard that she needed “that,” referring to money. Easterling told Brown that she did not want the money. Brown asked her again to take the money and Easterling said that she did not want the money.

Walker testified that Brown appeared very nervous and scared. Payne instructed Brown to give Easterling the money he owed her. Brown took out four $5.00 bills and laid them on the kitchen table. Walker testified that Easterling and Payne then went to the bathroom, which is located next to the kitchen. Walker testified that the door to the bathroom was open and that she overheard Easterling saying “don't do this” several times.

Walker further testified that she, Payne, and Payne's two sisters had been involved in an automobile accident the week before and that Payne was wearing a sling on his left shoulder as a result of an injury he received. Walker testified that Payne had a gun in his right hand, inside the sling, on the night he arrived at the house with Brown. Walker identified a handgun at trial as the one that Payne carried that night. Walker testified that Easterling asked Payne to give the gun back to Brown. Payne refused. Then Payne gave Brown the clip out of the gun. Easterling asked Payne to leave Brown with her or to take him back to his store and said that “maybe he would forget about this.” Walker testified that at this point, Brown nodded in the affirmative. Payne responded “No, I am going to do this.” Then Payne left with Brown.

When they were leaving the house, Payne and Brown met Ricky Smith and his wife Evelyn. Ricky Smith testified that he arrived at Easterling's house around 8:55 or 9:00 p.m. that evening. This was the last time that Brown was seen alive. Smith testified that when he walked into Easterling's house, she was crying. Easterling was speaking to Smith's wife and he overheard her say that Payne had robbed and kidnapped Brown.

At approximately 9:15 p.m., Payne arrived at George Cleghorn's house. Payne asked Cleghorn if he could use his telephone. Payne called someone on the telephone and asked them if they had any bullets for a .22 rifle. Payne also asked Cleghorn if he had any bullets. Cleghorn identified Payne's clothing at trial as the clothing that he was wearing the night of this incident.

Shortly after 9:08 p.m., Payne's sister Alma arrived at the West Point Grocery and informed Sergeant Watson that Payne was traveling in a blue Ford Maverick automobile with one missing headlight. Based on the information that Watson received from Payne's sister, Watson ordered the dispatcher to issue an all-points bulletin to be on the lookout for the automobile and to advise all officers that Payne was in the company of Braxton Brown.

At 10:00 p.m. that evening, Investigator Ted Manus was at the West Point Grocery taking pictures of the scene when he received a call that gunshots had been heard. He went to see if he could locate the origin of the shots but could not. Manus returned to the store and secured several packages of cigarettes from the store that were found on the floor. He then received a call that Brown had been seen with Payne. Manus also received information that Brown and Payne were seen together at a residence near Bethel. Manus left the store and proceeded to the residence.

Mitchell Love, an investigator with the Cullman County Sheriff's Department, arrived at Easterling's residence at approximately 10:15 p.m. Love testified that he located a blue Ford Maverick automobile outside this residence. Love had previously received word to be on the lookout for an automobile matching this description. Love notified the dispatcher that he had located the vehicle and asked for assistance on the scene. Several other officers arrived shortly thereafter. The officers looked inside the vehicle and observed several beer cans, some live and expended shotgun shells and an arm sling.

Phillip Lambert, the chief investigator for the sheriff's department, arrived at Easterling's residence. He also looked inside the Ford Maverick and observed two spent shotgun shells, several unspent shotgun shells, and an arm sling. He later called for a tow truck to have the automobile towed to the sheriff's department.

At 12:05 a.m., on March 24, 1992, Rebecca Herbstreth, a ticket agent for Greyhound Bus Lines in Birmingham, Alabama, sold someone identifying himself as James Beavers a bus ticket to Key West, Florida. At trial, Herbstreth identified Payne as the individual who claimed to be James Beavers. Herbstreth testified that she noticed that Payne was wearing a white T-shirt and torn blue jeans that had blood stains on them. Herbstreth further testified that Payne had cuts on his face. Payne gave Herbstreth a gold chain when he bought his ticket. Herbstreth identified this gold chain at trial. The chain was subsequently identified by the victim's son as one offered for sale from West Point Grocery. Payne handed out cigarettes to passengers while waiting for his bus and also helped one individual pay for a bus ticket. Herbstreth testified that Payne had tied a blue money bag to his waist that contained a lot of money. Herbstreth stated that Payne told her he received this money from the sale of his automobile.

At approximately 7:50 a.m. on the morning of March 24, 1992, a man walked into the Greyhound Bus Station in Birmingham with a wallet that he had found about a block away. Herbstreth was still working. She called the Birmingham police. Herbstreth looked in the wallet and found Braxton Brown's Social Security card inside. Herbstreth identified the wallet at trial. Inside were nine different credit cards, all of which had Braxton Brown's name on them.

On March 24, 1992, Officer Mitchell Love went to Payne's mother's residence. Payne's sister, Alma Lee, was present at the residence. Lee gave Love a double-barreled shotgun that she had in the trunk of her automobile. Love identified the shotgun that he received from Lee at trial. It is the same shotgun that Walker identified as Payne's shotgun.

Also on March 24, 1992, Deputy Sheriff Sidney Yarbrough searched the blue Ford Maverick automobile that had been towed from Easterling's house the night before. Inside he found two spent shotgun shells and four shotgun shells that had not been fired. He identified these shells at trial. Yarbrough also found a blue arm sling in the automobile, which he identified at trial.

Volunteer fireman John Hardin, a resident of West Point, searched for Braxton Brown on the morning of March 24. He went to a bridge on Crooked Creek near West Point. He noticed a dark colored substance on the bridge and on the railing of the bridge. He discovered a partial dental plate on the bridge. He contacted the sheriff's department.

Phillip Lambert, Ted Manus, and Anthony Dotson arrived at the bridge. Lambert observed red stains on the bridge and the partial plate. Lambert also observed a broken set of eyeglasses and a lens on the bridge. These glasses were subsequently identified by the victim's son as belonging to his father. Manus discovered a body in the creek. When the body was brought up from the creek, Manus observed that most of the face was missing. Dotson, who was serving as the coroner on this date, was present when the body was removed from the water. Dotson testified that the victim had suffered two gunshot wounds to the face. There were two large holes in the face-one in the victim's forehead and one in his mouth. Dotson knew Brown and identified the victim as Braxton Brown.

Lambert testified that he believed that the holes in the victim's face were the result of a shotgun blast. The victim's body was taken to Moss Funeral Home and later released to Peggy Lindsey of the Alabama Department of Forensic Sciences for an autopsy.

On March 25, 1992, a detective from the Metro Dade Police Department in Miami, Florida, received a telephone call that Payne was due to arrive at the Greyhound bus station in Miami. The Cullman authorities provided Detective John Robert Butchko with Payne's description and informed him that Payne was involved in a robbery-murder in Cullman, Alabama. Butchko also received information that Payne would be carrying a green duffel bag and was probably armed. Butchko was further informed that Payne was likely traveling under the name of James Beavers.

Based on this information, Butchko arrived at the Greyhound bus station and awaited the arrival of Payne's bus. A security guard held everyone on the bus so that Butchko could identify the people exiting. Butchko approached Payne, who was carrying a green duffel bag, after he exited the bus. Payne identified himself as James Beavers. Butchko was about to pat Payne down for weapons when Payne informed him that he had a .25 caliber gun in his right rear pocket. Butchko identified a Sterling .25 caliber automatic pistol at trial as the gun that he removed from Payne's pocket. This is the same gun that Sandra Walker previously identified as the gun she saw Payne with at Easterling's house when he was with the victim. This gun was also identified at trial by the victim's son as having belonged to his father. Butchko also removed Payne's wallet from his pocket. The identification in the wallet was that of Max Landon Payne. Butchko identified the wallet and its contents at trial.

Payne was subsequently transported to the homicide division of the Metro Dade County Police. Butchko saw Payne again in an investigation room at the station. Butchko asked Payne if he could search his green duffel bag. Payne subsequently signed a consent form allowing Butchko to search the duffel bag. The consent form was admitted into evidence and identified at trial. Upon searching the duffel bag Butchko found many items, including the following that he identified at trial: a jeweler's invoice made out to West Point Grocery; a Greyhound bus ticket in the name of James Beavers; a State of Alabama vehicle registration in the name of Braxton Brown; three cartons of Marlboro cigarettes; three First Alabama Bank deposit bags containing numerous checks written to West Point Grocery, credit card receipts, rings, and food stamps; bank receipts in Braxton Brown's name; $196.54 found in Payne's wallet; and, $889.30 found in the bank bags. Many of these items were subsequently identified by the victim's son as coming from West Point Grocery.

Further testimony was heard from Peggie Lindsey, an investigator with the Alabama Department of Forensic Sciences. Lindsey transported Brown's body to Birmingham for an autopsy. Dr. Joseph Embry performed the autopsy and Lindsey assisted. Lindsey testified that Embry removed around 466 shotgun pellets from the victim's skull. Lindsey also testified that Dr. Embry removed a blood sample from the victim, which she later delivered to a serologist in Huntsville. Lindsey testified that the victim died from the gunshot wounds to his head.

Brent Wheeler, with the Alabama Department of Forensic Sciences in Huntsville, examined the shotgun pellets, the shotgun and the two spent shotgun shells found in Payne's automobile. He also examined the pellets that were taken from the victim's skull. Wheeler concluded that the pellets removed from the victim's head represented the pellets of two shotgun shells, maybe three. He also testified that the two spent shotgun shells that were found in Payne's automobile were the same type of shells that had been used to shoot the victim. Wheeler further testified that the two expended shells found in the automobile had been fired from Payne's shotgun that had been taken from the trunk of his sister's automobile. Wheeler stated that the pellets taken from the victim's skull could have come from the two empty shotgun shells found in the automobile. Wheeler testified that it was his opinion that the victim was shot from a distance of one to one and one-half feet.

Morris Glen Brown, a serologist for the Alabama Department of Forensic Sciences, tested a blood sample taken from the victim. Brown testified that the victim's blood was “type-ABO, type was type O, Erythrocytic D-type 2-1 PGM, type 1, DAP, type B.” Brown also tested a human tissue sample taken from Payne's arm sling. He testified that the tissue on the arm sling could have been the victim's because of “blow-back” from the shooting of the shotgun.

Roger D. Morrison, from the Department of Forensic Sciences, tested a blood sample from the victim and a blood sample from Payne. He also tested the tissue sample taken from the arm sling. He conducted an HLA DQ Alpha test for the purpose of a DNA comparison. He concluded that the tissue from the sling and the bloodstain from the victim were both of the same HLA DQ Alpha type. According to him, this type appears in approximately six percent of the population. The test he performed was an exclusionary test, and he concluded that there was a 94% chance that the tissue taken from Payne's sling was the victim's tissue. He further concluded that the tissue taken from the sling could not have come from Payne himself. Payne presented testimony from 10 witnesses in an effort to show that it was possible that another man, by the name of James Beavers, could have committed this murder. Evelyn Smith, who passed the victim and Payne as they left Easterling's house on the night of the murder, testified that she heard her husband say “Hi, James, how are you?” Smith further testified that the only James she knows is James Beavers. Kelley Mosley, who was across the street from the West Point Grocery on the night of March 23, 1992, testified that she saw a blue Ford Maverick automobile at the store at around 9:00 p.m. and that there were three people in the automobile. The one in the backseat, she testified, had shoulder-length hair. James Beavers, who has shoulder-length blond hair, testified that he lived across the street from Easterling in March 1992. Beavers testified that he did see Payne on March 23, when he helped him fix his automobile. He denied having any knowledge of the crime. Christine Hyde testified that she had a conversation with James Beavers in December 1992 in which Beavers admitted to shooting the victim in the face. Becky Graves testified that she was in the West Point Grocery store at about 8:10 p.m. on March 23, 1992. She said that while she was in the store she saw a man with shoulder-length blonde hair. An affidavit from Tracey Shields was read into evidence. Shields stated that she saw Payne pull up to his mother's house at around 9:15 p.m. on March 23, 1992, and stated that she saw another person in the automobile with long hair. Payne did not testify.

The state subsequently presented several rebuttal witnesses. Most of these witnesses were people who testified that James Beavers was home on the night of this incident and that he did not leave his house on that night.

I.

Payne contends that the prosecutor, in his initial closing argument, impermissibly commented on Payne's failure to testify. “Article I, § 6, of the Alabama Constitution of 1901 states, in part, that the accused in a criminal prosecution ‘shall not be compelled to give evidence against himself.’ This constitutional right is the basis for the requirement that a criminal defendant's failure to testify shall not be commented upon by the prosecution. Ex parte Wilson, 571 So.2d 1251, 1261 (Ala.1990); Whitt v. State, 370 So.2d 736, 738 (Ala.1979). In Alabama, this right is also protected by statute:

“ ‘On the trial of all indictments, complaints or other criminal proceedings, the person on trial shall, at his own request, but not otherwise, be a competent witness, and his failure to make such a request shall not create any presumption against him nor be the subject of comment by counsel. If the district attorney makes any comment concerning the defendant's failure to testify, a new trial must be granted on motion filed within 30 days from entry of the judgment.’ “Ala.Code 1975, § 12-21-220.” Ex parte Musgrove, 638 So.2d 1360, 1367 (Ala.1993), cert. denied, Musgrove v. Alabama, 513 U.S. 845, 115 S.Ct. 136, 130 L.Ed.2d 78 (1994).

The questioned comments must be reviewed under the plain error standard, Ala.R.App.P. 45A, because defense counsel made no objection to them. “In considering what constitutes ‘plain error’ in a capital case, the Alabama Supreme Court has looked to the federal court's interpretation of what is ‘plain error.’ See Ex parte Harrell, 470 So.2d 1309 (Ala.1985); Ex parte Womack, 435 So.2d 766 (Ala.1983).

“In United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the Supreme Court stated that the plain error doctrine should be used to correct only ‘particularly egregious errors' (quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982)) which are those errors that ‘seriously affect the fairness, integrity or public reputation of judicial proceedings' (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)). Young, supra [470 U.S. at 14-18], 105 S.Ct. at 1046-47. The plain error rule should be applied ‘solely in those circumstances in which a miscarriage of justice would otherwise result.’ Young, supra [470 U.S. at 15], 105 S.Ct., at 1047 (quoting Frady, supra, 456 U.S. at 163, n. 14, 102 S.Ct. at 1592, n. 14).

“Furthermore, the court noted that the plain error doctrine requires that the ‘claimed error not only seriously affects “substantial rights” [of the defendant], but that it had an unfair prejudicial impact on the jury's deliberations. Only then would [a] court be able to conclude that the error undermined the fairness of the trial and contributed to a miscarriage of justice.’ Young, supra [470 U.S. at 16, n. 14], 105 S.Ct., at 1047, n. 14.” Hooks v. State, 534 So.2d 329, 351-52 (Ala.Cr.App.1987), aff'd, 534 So.2d 371 (Ala.1988), cert. denied, 488 U.S. 1050, 109 S.Ct. 883, 102 L.Ed.2d 1005 (1989), quoted in Land v. State, 678 So.2d 201, 216-17 (Ala.Cr.App.1995); Kuenzel v. State, 577 So.2d 474, 481-82 (Ala.Cr.App.1990), aff'd, 577 So.2d 531 (Ala.), cert. denied, 502 U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991). See also DeBruce v. State, 651 So.2d 599 (Ala.Cr.App.1993) aff'd Ex parte DeBruce, 651 So.2d 624 (Ala.1994).

In Windsor v. State, 683 So.2d 1021, 1023-24 (Ala.1994), the Alabama Supreme Court addressed the standard for reviewing whether a comment is a comment on an accused's failure to testify, as follows: “As this Court recently held in Ex parte Musgrove, 638 So.2d 1360 (Ala.1993), ‘When an accused contends that a prosecutor has made improper comments during a closing argument, the statements at issue must be viewed in the context of the evidence presented in the case and the entire closing argument[s] made to the jury....’ 638 So.2d at 1368.... “....

“Alabama, by statute, specifically protects the privilege against self-incrimination from comment by the prosecution. § 12-21-200, Ala.Code 1975. A prosecutor must be extremely careful not to overstep the mark or to break with the established protocol regarding statements about that privilege. Musgrove, supra. To improperly comment on that privilege would be a clear violation of the defendant's rights under Article I, § 6, Ala. Const. 1901, as well as the rights protected by the Fifth Amendment as that Amendment is incorporated into the Fourteenth Amendment to the United States Constitution.

“In Ex parte Wilson, 571 So.2d 1251, 1261 (Ala.1990), this Court cited the standard endorsed by the United States Court of Appeals for the Eleventh Circuit:

“ ‘ “[A] statement by a prosecutor is improper if it was manifestly intended to be, or was of such a character that the jury would naturally and necessarily take it to be, a comment on the failure of the accused to testify.” Marsden v. Moore, 847 F.2d 1536, 1547 (11th Cir.), cert. denied, 488 U.S. 983, 109 S.Ct. 534, 102 L.Ed.2d 566 (1988); United States v. Betancourt, 734 F.2d 750, 758 (11th Cir.), cert. denied, 469 U.S. 1021, 105 S.Ct. 440, 83 L.Ed.2d 365 (1984).’ ”

It is with these principles in mind that we review the prosecutorial comments asserted by Payne to constitute comments on his failure to testify.

The prosecutor made the first comments during his argument concerning the jury's consideration of the defense's theory that James Beavers, rather than Payne, committed the offenses charged. In listing the evidence arguably indicating Beavers's guilt and the evidence arguably indicating Payne's guilt and in asking the jury to weigh one list of evidence against the other, the prosecutor stated:

“[Beavers's] mother, Mrs. Reynolds, said he was there all that time. [His ex-girlfriend's] son, Terry, said he was there that night. The police, by their own testimony, continued to investigate. Every time they would receive an additional report, they would go out and see if they could find James Beavers.... The investigation continued. On each occasion, there was no evidence to tie Mr. Beavers to this situation. He was available in court to testify. Let's go over to the other side and say what evidence and what circumstances do you have against the defendant. As I say, I have always felt what a person does is more reliable than what [is] said by a third party or whoever. When we go through these, ask yourself, ‘Is that consistent with a person who is not the defendant or the one that is guilty of the crime?’ ” (Emphasis added.)

We find the following to be particularly applicable in this instance: “Because this is a case in which the death penalty has been imposed, the fact that no objection was made stating the particular ground asserted on appeal does not prevent our review of this issue. Ex parte Hart, 612 So.2d 536, 537 (Ala.1992), cert. denied, 508 U.S. 953, 113 S.Ct. 2450 [124 L.Ed.2d 666] (1993). However, the failure to object

“ ‘ “ does weigh against any claim of prejudice.” Ex parte Kennedy, 472 So.2d 1106, 1111 (Ala.), cert. denied, 474 U.S. 975, 106 S.Ct. 340, 88 L.Ed.2d 325 (1985). “This court has concluded that the failure to object to [allegedly] improper prosecutorial arguments ... should be weighed as part of our evaluation of the claim on the merits because of its suggestion that the defense did not consider the comments in question to be particularly harmful.” Johnson v. Wainwright, 778 F.2d 623, 629 n. 6 (11th Cir.1985), cert. denied, 484 U.S. 872, 108 S.Ct. 201, 98 L.Ed.2d 152 (1987).’ “ Kuenzel v. State, 577 So.2d at 489 (emphasis original in Ex parte Kennedy ).” Land v. State, 678 So.2d 201, 223 (Ala.Cr.App.1995).

Not only did defense counsel evidently not consider these comments to be particularly harmful, he also pointed out that Beavers had testified. In reiterating each witness's testimony arguably pointing to Beavers's guilt, defense counsel stated: “What about James Beavers? You got to see him and hear him and what all he had to say. He had some criminal convictions. If I remember the evidence, he is older than [Payne]. I think they are even related in some way. Which one of them had some experience in crime? Which one of them knew the things to do?” (Emphasis added.)

The only arguable difference between defense counsel's comment and the prosecutor's argument was that the prosecutor, after recognizing Beavers's testimony, shifted the focus to the evidence arguably supporting Payne's guilt. We consider this second remark to be akin to the comments under scrutiny in Ex parte Musgrove. There, the prosecutor asked the questions “What did you hear from the defense?” and “What did you hear from the Defendant?” The Supreme Court explicitly agreed with the following interpretation of the latter question:

“ ‘[This comment,] when viewed in the context of the entire argument, did not refer to the appellant's failure to testify, but was rather the prosecutor's opening into a summary of the case presented by the defense. The comment was clearly not a direct reference to the appellant's failure to testify because it was not ‘manifestly intended to be, or was of such a character that the jury would naturally and necessarily take it to be, a comment on the failure of the accused to testify.’ [Citations omitted.] Nor was this comment an indirect reference to the appellant's failure to testify and there was no “close identification” of the appellants as the exact people who did not become witnesses. [Citations omitted.] This statement by the prosecutor was merely a general opening statement to a recapitulation of the defense's case.' ” Ex parte Musgrove, 638 So.2d at 1369 (quoting Musgrove v. State, 638 So.2d 1347, 1359 (Ala.Cr.App.1992)), aff'd, Musgrove v. Alabama, 513 U.S. 845, 115 S.Ct. 136, 130 L.Ed.2d 78 (1994).

We also find persuasive United States v. Chandler, 996 F.2d 1073, 1094-95 (11th Cir.1993), cert. denied, Chandler v. U.S., 512 U.S. 1227, 114 S.Ct. 2724, 129 L.Ed.2d 848 (1994), in which the court reviewed the prosecutor's comment that the defendant, Chandler, was more culpable than one of his cohorts Charles Ray Jarrell, who testified for the prosecution. In that argument, the prosecutor made the following comments: “You've heard several times that in return for his cooperation in this case ... the United States government and the State of Alabama have agreed to recommend a 25-year sentence without parole for Charles Ray Jarrell....

“Now, the defendant will no doubt argue this simply is not somehow not [sic] fair. Charles Ray Jarrell came here before you and testified before you. You were able to hear his testimony. He came in here, admitted what he did, came in here and told you what he did, what kind of person he is and [it] isn't anything to write home about, there is no question about that. But I submit to you that a man that was willing to solicit two different prospective killers on at least three different occasions, a man who was willing to provide money to people to perform the act, a man who was willing to provide weapons to complete the act and a man who is cunning and manipulative is a far more dangerous individual than a self-confessed town drunk living hand to mouth who allows himself to be manipulated into actually doing this terrible act.” Id. at 1094 (emphasis added).

In reviewing these remarks, the court stated: “Viewed in the context in which the statement was made, we find that the prosecutor's statement was not improper. A common sense reading of the statement suggests that the prosecutor was arguing that Jarrell was not as culpable as Chandler. The argument was based, not on Chandler's failure to testify, but on the facts elicited from Jarrell's testimony. A jury would not naturally take the argument to be a comment on Chandler's failure to testify, nor is it obvious that the remark was so intended.” Id. at 1095.

Accordingly, we find that the first comments under scrutiny do not constitute plain error. See also Dill v. State, 600 So.2d 343, 355 (Ala.Cr.App.1991), aff'd, 600 So.2d 372 (Ala.1992), cert. denied, Dill v. Alabama, 507 U.S. 924, 113 S.Ct. 1293, 122 L.Ed.2d 684 (1993) (the court held that the comment-that Terry Dill was the “only one” from whom the jurors had heard-made immediately before the prosecutor's lengthy summation of the evidence corroborating the testimony of Terry Dill (who was in a vehicle with the victim and the defendant when the defendant shot the victim) was not a comment on the defendant's failure to testify and even if it was, it did not amount to plain error).

The second comment by the prosecutor is as follows: “It is pretty clear up to the point they leave the house here at nine o'clock that evening-not much conjecture can be involved as far as that. After that, that is the last time Braxton Brown was seen alive. He was with the defendant. We assume from the time frame that [Payne] left here, came back up here, and went down this road here, going back to the West Point Grocery. The conjecture arises ‘What happened during that time frame?’ I don't know. I don't know whether [Payne] asked for the magazine back and Braxton Brown said ‘No way.’ I don't know if he saw a patrol car. You see, unbeknown to [Payne], he doesn't know any alarm has gone off. He doesn't know that the police know anything. He may have passed a patrol car going from the West Point Grocery over here to where [Payne] lives, and he may have panicked. He may have thought that Wilma turned him in. He may have thought, ‘Now I have no choice.’ Or he may have got down here and said, ‘Braxton, I'm going to let you out here and I'm going to cut a trail here. By the time you get back up here to get help, I'll be long gone. Let's make a deal. If I let you out and you don't contact the authorities, we will forget this happened.’ Maybe at that point, Braxton said, ‘No way. I'm going to call the police when I get a chance.’ And [Payne] ended it right there on that bridge. Then he goes to the airport or bus station and buys the bus ticket.... Whatever scenario you think fits, something between here and there happened. That is for you to decide. The end result is that [Payne] undoubtedly was here on this bridge and did the murder on that occasion.” (Emphasis added.)

Early in his initial closing argument, the prosecutor explained to the jury that the purpose of an investigation is to preserve the evidence and the scene for the jury to consider in the subsequent prosecution, in this case 26 months after the offense. He further stated, “It is our responsibility at this point and our duty to re-create by evidence what the circumstances were on that day.” Some of his argument was couched in the terms what “we” know, e.g., “What is the next thing we know?” We conclude that, by the comments under scrutiny, the prosecutor was merely following this line of thought; the prosecutor was merely arguing to the jury that even though the prosecution had not been able to reconstruct the events of the entire evening, the evidence still pointed to Payne's guilt. See State v. Windsor, 683 So.2d at 1023 (the Court in finding objected-to comment-“If we could get into that mind over there [the defendant's] and put out here what is in there, we would have no reason for a jury.”-without error stated that “it is apparent that the prosecutor was referring not to Windsor's failure to testify, but rather to the State's own failure to produce direct evidence of Windsor's intent”).

Moreover, we find that both defense counsel did not consider the comments in question to be particularly harmful. In fact, they used this line of argument to Payne's benefit. Early in his argument, one defense counsel said: “[The prosecutor] did say that whatever happened at that bridge, he doesn't know. The State doesn't know and they have not proven to you what happened or who did what to Braxton Brown. There are a lot of different theories that can come up.” Counsel also stated that he did not know, e.g., “Whatever took place on that night, James Beavers was calculating and making plans that he didn't want to be seen with Mr. Brown that night”; and “If Mr. Beavers did in fact do the killing, he could have wiped off the gun with the sling. I don't know.” The other defense counsel, in arguing that in order for the jury to convict Payne the evidence had to point to Payne's guilt beyond a reasonable doubt, stated the following: “[The prosecutor] told us a few minutes ago-maybe this happened or maybe that happened. This decision y'all are about to make is too important to be based on speculation.”

Accordingly, we find that this second comment did not constitute plain error. Compare Windsor v. State, 593 So.2d 87, 90-92 (Ala.Cr.App.1991) (the court, in reviewing the prosecutor's comment-“ they can't explain why [the victim's] weapon [which had been missing since immediately after his death] was in the defendant's pocket when he was arrested”-made by the prosecutor while pointing at the defendant, held that the comment was an indirect comment on the defendant's failure to testify and, further, that the comment could have been construed as alerting the jury to the defendant's opportunity to refute the prosecution's case because only the defendant could have explained why the victim's gun was in his possession) (emphasis added); Burson v. State, 373 So.2d 1239, 1241 (Ala.Cr.App.1979) (the court found the following comment to be a direct comment on the defendant's failure to testify and thus the trial court's overruling of the defendant's objections was error: “[the defendant] was hiding, in the closet. Or maybe he was just sitting in the closet. I don't know, he's not going to tell us.”).

II.

Payne contends that he was denied his Sixth Amendment right to a speedy trial because there was a 25-month delay between his indictment and the trial of his case. Payne was arrested in Dade County, Florida, on March 25, 1992, and was indicted by the Cullman County grand jury on April 16, 1992. His trial began on May 23, 1994. In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court set forth four factors to be considered when analyzing a speedy trial claim. These factors are (1) the length of the delay; (2) reasons for the delay; (3) when the defendant asserted his right to a speedy trial; and (4) any prejudice that the defendant has suffered due to the delay. In Barker, the court stated that because these factors are interrelated, they should be considered together in light of all the relevant circumstances in a particular case. The length of the delay is the triggering mechanism for an examination of the other factors and the delay must be presumptively prejudicial in order to merit inquiry into the three other factors. Smith v. State, 409 So.2d 958 (Ala.Cr.App.1981). Whether the length of the delay is presumptively prejudicial must be determined on a case-by-case basis. Id.

In this case, the delay between Payne's arrest and his trial was 25 months. Much of this delay can be attributed to the retirement of one judge and the recusal of two others. Until September 1993 Judge Jack Riley of Cullman County presided over this case. When Judge Riley retired, this case was assigned to Judge Frank Brunner, a newly appointed judge. Judge Brunner recused himself from hearing this case on January 12, 1994. Judge Fred Folsom was then assigned to the case. On January 24, 1994, Judge Folsom recused himself from this case and requested that the Alabama Supreme Court assign a judge. On February 3, 1994, the Alabama Supreme Court appointed Judge Robert Austin, of Blount county, to try the case. Judge Austin immediately ordered a pretrial conference and scheduled the trial to begin on May 23, 1994. Thus for 6 of the 25 months that this case was pending, the delay was attributable to the problems of finding a judge who could hear the case. Payne did not file his first motion asserting his right to a speedy trial until approximately 19 months after his arrest. His first motion for a speedy trial was also entered after Judge Riley had retired. His second motion for speedy trial was filed after Judge Brunner had recused himself and his third motion for speedy trial was filed on February 14, 1994, 11 days after the Alabama Supreme Court appointed Judge Austin to the case. Payne was tried approximately three and one-half months after Judge Austin was appointed to the case.

Based on the foregoing, we conclude that the delay of 25 months was not presumptively prejudicial in light of the fact that much of the delay was due to the problem of finding a judge to hear the case. This delay is not attributable to either the prosecution or Payne. Even though we have concluded that this delay was not presumptively prejudicial, we have reviewed the record in light of the remaining three factors and find no violation of Payne's right to a speedy trial. Payne offers no evidence showing that he was prejudiced by the lapse of time between indictment and trial.

III.

Payne contends that the trial court committed reversible error by denying his requested jury charge regarding circumstantial evidence. Payne argues that his requested charge was an accurate statement of the law, that it was not confusing or misleading, and that it was not substantially covered by the court's oral charge.

Payne requested the following jury instruction: “I charge you, the Jury, that if the circumstances as proven are capable of explanation of any reasonable hypothesis consistent with the Defendant's innocence and if the circumstances are capable of such explanation, then the defendant should be acquitted.”

The court denied this charge and instructed the jury, in pertinent part, as follows: “A conviction may be had upon evidence which is partially circumstantial so long as the evidence is so strong and cogent as to prove the guilt of the defendant to a moral certainty and beyond a reasonable doubt. A conviction may not be had upon circumstantial evidence if there is an inference consistent with the innocence of the Defendant.” Payne argues that “inference,” as used in the court's jury charge, does not mean substantially the same as “hypothesis,” as used in Payne's requested jury charge. We disagree.

The Random House Dictionary of the English Language, (6th ed., 1973), defines “hypothesis” as “a proposition, or set of propositions, set forth as an explanation for the occurrence of some specified group of phenomena, either asserted merely as a provisional conjecture to guide investigation (working hypothesis) or accepted as highly probable in the light of established facts.” Id., at 702 (first definition). To “infer” is “to derive by reasoning; conclude or judge from premises or evidence.” Id., at 729 (first definition).

However, the issue here does not hinge, as Payne argues, solely on the definition of “hypothesis.” Rather, the focus is on “reasonable hypothesis.” Reason-distinguished by common sense-is the hallmark of any reasonable hypothesis or inference. Accordingly, the state is not asked to eliminate every single hypothesis inconsistent with the defendant's guilt. In Crawford v. State, 112 Ala. 1, 21 So. 214 (1895) (quoted in Cox v. State, 373 So.2d 342, 345 (Ala.Cr.App.1979)), the Supreme Court held:

“It is not every hypothesis of innocence, reasonable or unreasonable, possible or imaginary, the evidence must exclude, but only such hypotheses as are reasonable, springing from a consideration and comparison of the entire evidence.” Id., 112 Ala. at 26, 21 So. at 222.

In the context before us, both “reasonable hypothesis” and “inference” require an explanation that is both consistent with the evidence and agreeable to common sense. The similarity of the meaning of these words is reflected by case law in which the words are used interchangeably. See, e.g. Watley v. State, 568 So.2d 852, 856 (Ala.Cr.App.1989), cert. quashed, 568 So.2d 857 (Ala.1990) (quoted in McWhorter v. State, 588 So.2d 951 (Ala.Cr.App.1991)).

The trial court may deny a requested jury charge that is substantially covered by the court's oral charge. Dill v. State, 600 So.2d 343 (Ala.Cr.App.1991). We hold that Payne's requested jury charge was substantially covered by the court's oral charge. Therefore, the court did not err when it denied Payne's requested jury charge.

IV.

Payne contends that the trial court committed reversible error by admitting evidence obtained during an allegedly illegal search of his automobile. At a suppression hearing, Cullman County Sheriff's Deputy Mitch Love testified as follows. On March 23, 1992, he received a number of radio transmissions regarding a robbery-abduction at West Point Grocery. The sheriff's deputies were given a description of the suspect, Max Payne: a white male, driving a light blue Ford Maverick, and carrying a shotgun. Love drove to Payne's residence. Payne was not there, but his mother and his sister, Wilma Faye Easterling, were. Love spoke to Easterling and to Payne's mother. Easterling told Love that when she was at her house earlier that evening, Payne had arrived with Brown, bank deposit bags, and a weapon. She further stated that Payne left her house in the Maverick with the victim. After this conversation, Love left Payne's house and continued searching for the Maverick. He found it parked at Easterling's house, and called for assistance. The automobile windows were down, and Love looked into the automobile with his flashlight. He observed empty beer cans, shotgun shells on the floorboard, a sling in the back seat, and keys in the ignition. Sheriff Laney and Officers Yarbrough, DeMonia, Nichols, and Weston joined Love at the automobile a few minutes after Love called for assistance. Sheriff Laney removed the keys from the ignition.

Sheriff Laney testified as follows. He was investigating the crime when he heard Love's call. Laney was one of the first to arrive on the scene with Love. He looked into the automobile and saw the same things Love testified to seeing. He removed the keys from the ignition and opened the trunk. The victim's whereabouts were not known at that time. Laney stated that when he looked in the trunk, he was looking for the victim.

Phillip Lambert, chief investigator for the Cullman County Sheriff's department, testified as follows. Lambert arrived after the trunk had been searched. He looked into the automobile and observed the same items Laney and Love testified to seeing, with the exception of the automobile keys. Lambert then spoke with Easterling. She told him that the Maverick parked on the property was the same automobile Payne was driving when he left with Brown. She also told Lambert that he and the other officers “could look in it, do what [they] wanted to, take it with [them] or anything [they] wanted to do.” Lambert then determined that Easterling and her husband were renting the property upon which the automobile was parked. Ted Manus obtained Easterling's written consent to search the premises. The sheriff called for a wrecker, and the Maverick was towed to the sheriff's department, where it was locked and later searched.

Generally, a valid warrantless search must be accompanied by certain circumstances that would render the act of obtaining a warrant either useless or unreasonable. One such situation in which a warrant is not required is when exigent circumstances exist concurrently with probable cause. Land v. State, 678 So.2d 201 (Ala.Cr.App.1995) (holding that warrantless search of appellant's vehicle was valid because the police had probable cause to believe that appellant had committed the crime, and the vehicle's inherent mobility was a sufficiently exigent circumstance); see also Johnson v. State, 554 P.2d 51 (Okla.Crim.App.1976), cert. denied, 429 U.S. 943, 97 S.Ct. 364, 50 L.Ed.2d 314 (1976) (holding that immediate warrantless search of the trunk of defendant's automobile was proper, because the police believed the kidnapped victim was in there and were acting “in hopes of saving a human life”).

In this case, the police had the following information before they removed the automobile keys and opened the trunk: that Brown's grocery store had been robbed by a white male with a shotgun; that the suspect was driving a light blue Ford Maverick; that Brown had been abducted; that after the robbery, Payne drove to Easterling's house in his light blue Ford Maverick; that when he arrived there, Brown was with him and he had bank deposit bags and a gun; that Payne left Easterling's house in his Maverick with Brown, the bank deposit bags, and the gun; that the Maverick was not parked in front of Easterling's house between 10:00 p.m. and 10:15 p.m., but that it was parked there at 10:30 p.m. Therefore, the police had sufficient information to “ ‘warrant a man of reasonable caution in the belief’ ” that several crimes had been committed, that the appellant had committed them, and that the vehicle contained evidence of the crimes. Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502, 514 (1983) (quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543, 555 (1925)).

Furthermore, in cases involving searches of automobiles the vehicle's inherent mobility establishes a presumption of exigent circumstances. Mewbourn v. State, 570 So.2d 805, 810 (Ala.Cr.App.1990) (“a vehicle's potential for mobility raises the presumption of exigent circumstances”). In this case, however, the vehicle's mobility was accompanied by several additional exigent circumstances. For example, the Maverick had been returned to Easterling's house less than 30 minutes before Love located it. Love testified that he called for backup and that the whereabouts of Payne and the victim were unknown at that time. Laney testified that he looked inside the automobile to determine whether anyone was hiding in the automobile. Laney further testified that he removed the keys from the ignition in order to open the trunk to search for the victim. We conclude that the police had sufficient probable cause to search the automobile, and that the concomitant exigent circumstances were overwhelming; therefore, the warrantless visual search of the interior and the trunk of the Maverick was valid.

The Maverick was later towed to the sheriff's department where it was thoroughly searched. However, before the automobile was towed, Easterling gave her express verbal and written consent to the search. In Johnson v. State, 584 So.2d 881 (Ala.Cr.App.1991), this court held: “ ‘A defendant has no constitutional right of privacy where he does not have exclusive possession and control over the place searched. The person who does have present, exclusive possession and control over the place in question, or who shares the premises coequally with the person claiming to be aggrieved, may give consent to search.’ ” Id., at 886 (quoting C. Gamble, McElroy's Alabama Evidence § 334.01(3)(b) (3d ed. 1977)). See also Zumbado v. State, 615 So.2d 1223 (Ala.Cr.App.1993) (applying this rule in upholding a consensual search where the appellant parked his automobile at the house trailer where he lived with his girlfriend; the girlfriend was present, but the appellant was not; the girlfriend was apparently in exclusive control of the premises; and the girlfriend consented to the search of the automobile).

In this case, Payne parked his automobile on property rented by Easterling and her husband. Payne left the windows of the automobile down and left the keys in the ignition. Therefore, Payne did not have exclusive control over the automobile when it was searched. Easterling, in contrast, did have apparent exclusive control of the property, including the automobile. Accordingly, she was capable of giving valid consent to the search of the automobile. She gave her consent; therefore, the warrantless search of the automobile at the sheriff's office was valid.

Furthermore, we note that the automobile was in plain view, and the police had probable cause to believe that the automobile itself was evidence of the crimes. See Watson v. State, 533 So.2d 737 (Ala.Cr.App.1988) (“[P]lain view is obtained without any prior entry or opening of the vehicle.... when the car itself is in plain view and it is subject to seizure as evidence of a crime....”); Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974). Therefore, the warrantless seizure of the automobile was proper.

V.

Payne contends that the trial court erred by admitting an expert witness's DNA testimony (specifically for the genetic marker HLA DQ Alpha) without first determining the admissibility of that evidence in a hearing outside the presence of the jury.FN1 Because Payne neither requested a hearing outside the jury's presence nor objected to the admission of the DNA testimony on this ground, we review this issue only for plain error, as required by Ala.R.App.P. 45A. (Payne made no pretrial motion to suppress this evidence; however, at trial, he did object to the expert's testing result, when the witness was asked that result, with the following objection: “There is no proper predicate for the scientific test reliability or requirements for the Frye case [ Frye v. United States, 293 F. 1013 (D.C.Cir.1923),] which have been set out in that case have not been met.”)

FN1. We conclude, from Payne's one-page argument, that he is not contesting the expert's testimony regarding the experts statistical interpretation of the test result. Payne quotes only the three-pronged test for the admission of the DNA “matching” evidence. See Yelder v. State, 630 So.2d 92, 102 (Ala.Cr.App.1991), rev'd on other grounds, 630 So.2d 107 (Ala.1992) (quoted by Payne and quoting Ex parte Perry, 586 So.2d 242, 250 (Ala.1991)).

We find to be significant the fact that the DNA evidence in this case is not truly “matching” evidence as that term is used in Ex parte Perry. In Perry, the expert testified that the DNA of the blood found on the victim and on the front doorknob of his residence “matched” the appellant's DNA and that the probability of finding similar DNA was 1 in 209,100,000. In the case before us, the expert testified that the HLA DQ Alpha type of the tissue from Payne's arm sling and of the victim's blood was the same, but that Payne's was different and that six percent of the Caucasian population shares this type. He explained that the test's primary function is to exclude, that it is not DNA “fingerprinting.” As authority for his argument, Payne quotes the following: “Prior to the admission of DNA testimony into evidence, a hearing outside the presence of the jury must be held to determine if the [three-pronged] test [announced in Ex parte Perry, 586 So.2d 242 (Ala.1991) ] has been met.” This language can be found in Yelder v. State, 630 So.2d 92, 102 (Ala.Cr.App.1991), rev'd on other grounds, 630 So.2d 107 (Ala.1992). See also Hutcherson v. State, 677 So.2d 1174, 1191 (Ala.Cr.App.1994) (quoting this same language from Yelder ). As support for this mandate in Yelder, the court cites Ex parte Perry. However, the Alabama Supreme Court in Ex parte Perry issued no such unqualified mandate.

The Perry Court stated the following: “Earlier, we stated that Perry contends that the trial court erred by submitting the DNA evidence to the jury without first holding a hearing concerning its admissibility. As we explain presently, we do not hold that the trial court has necessarily erred. “We do hold, however, that if the admissibility of DNA evidence is challenged, the trial court should conduct a hearing outside the presence of the jury to address the considerations raised in this opinion.” 586 So.2d at 254-55 (emphasis added). We think that implicit in this language is the qualification that the defendant must request a hearing outside the presence of the jury.

We are so persuaded by the death penalty case Felder v. State, 470 So.2d 1321 (Ala.Cr.App.1984), aff'd, 470 So.2d 1330 (Ala.), vacated on other grounds, 474 U.S. 976, 106 S.Ct. 376, 88 L.Ed.2d 330 (1985). There, the appellant, before trial, requested an evidentiary hearing to determine the voluntariness of his confession. However, during trial, the officer who had taken the appellant's statement testified, in the presence of the jury, as to the voluntariness of the statement and, after defense counsel's voir dire of the witness, counsel stated that he had no objection to the admission of the statement. In answer to the appellant's contention that he was entitled to a hearing on the voluntariness of the confession outside the presence of the jury, the court made the following observations:

“[A]n accused is not entitled to a hearing outside the presence of the jury unless he specifically requests that it be held outside the presence of the jury. A trial judge is not required to remove the jury for the hearing absent a request by the accused. Harris v. State, 406 So.2d 1074[, 1075] (Ala.Crim.App.1981) [ (“On the question of the voluntariness of a confession, the burden is not on the trial court to withdraw the jury ex mero motu, hear evidence on the question of the voluntariness of a confession outside the jury's presence, and expressly rule.”) ]; Gamble, McElroy's Alabama Evidence, § 200.02(5)(6) (3d ed. 1977). Defense counsel did not request a hearing outside the presence of the jury in his request for an evidentiary hearing or when he asked to examine Ward on voir dire.

“Therefore, we hold the appellant did receive a full and fair hearing on the voluntariness of his confession and cannot now complain that such hearing was not held outside the presence of the jury.” 470 So.2d at 1326. Cf. also Cliff v. State, 518 So.2d 786, 791 (Ala.Cr.App.1987) (“an accused is not entitled to a hearing [on the voluntariness of his confession] outside the presence of the jury unless he specifically requests one”).FN2

FN2. We find cases involving the voluntariness of a confession to be sufficiently analogous to the question before us to be persuasive. We do note that confession cases entail an even greater impetus than is present here, because the rule in confession cases is “that extrajudicial confessions are prima facie involuntary and inadmissible and the duty rests in the first instance on the trial court to determine whether or not a confession is voluntary, and unless it so appears it should not be admitted.” Taylor v. State, 282 Ala. 567, 569, 213 So.2d 566, 569 (1968), cert. denied, Taylor v. Alabama, 393 U.S. 1102, 89 S.Ct. 903, 21 L.Ed.2d 795 (1969).

In this case, there is absolutely no implication of plain error in regard to the admission of the DNA evidence. The expert witness, in testifying to the following, generally met the requirements of a predicate for the admission of such testimony, as announced by the Perry Court: (1) there is a theory, generally accepted in the scientific community, that supports the conclusion that DNA forensic testing can produce reliable results, see also Perry, 586 So.2d at 250; Yelder, 630 So.2d at 102; (2) there are current techniques that are capable of producing reliable results in DNA identification and that are generally accepted in the scientific community, see also Perry, 586 So.2d at 250; Yelder, 630 So.2d at 102; and (3) the testing laboratory performed generally accepted scientific techniques without error in the performance or interpretation of the test, i.e., (a) the techniques used by the testing laboratory are generally accepted in the scientific community, and (b) there was no error in the performance or interpretation of the tests. Upon this evidence, the trial court found the DNA result to be admissible. We note that the trial court had no disputed evidence before it. In fact, the cross-examination of the expert consists of less than two transcribed pages. Based on the record, the DNA evidence was properly received into evidence, and the trial court's failure to ex mero muto hold a hearing outside the presence of the jury was not plain error.

VI.

Pursuant to Ala.R.App.P. 45A, we have examined the record in this case for plain error, whether or not it was brought to our attention or the trial court's attention. After a careful search of the record, we have found no plain error or defect in either the guilt or sentencing phases of the trial.

Pursuant to § 13A-5-53, we have reviewed Payne's sentence. This section requires this court to review the propriety of the death sentence, as well as to review the case for any error involving the conviction. This review includes a determination of the following: (1) whether error that adversely affected Payne's rights occurred during his sentence proceedings; (2) whether findings by the trial court concerning aggravating and mitigating circumstances were supported by the evidence; and (3) whether death is the proper sentence in this case. Section 13A-5-53(b) requires that in determining whether death is the proper sentence, this court must determine the following: (1) whether the death sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor; (2) whether after this court undertakes an independent weighing of the aggravating and mitigating circumstances it determine that death is considered the proper sentence; and (3) whether the death sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the appellant.

A separate sentencing hearing was held before the jury pursuant to §§ 13A-5-45 and -46. The jury heard evidence concerning aggravating and mitigating circumstances. It was properly instructed by the trial court on the applicable law and after being so informed returned an advisory verdict of 11 in favor of death and 1 in favor of life imprisonment without the possibility of parole.

The trial court held another hearing in accordance with § 13A-5-47, in order to determine whether to follow the jury's recommendation. The trial court ordered and received a written presentence investigation report as required by § 13A-5-47(b). The trial court entered specific written findings on the existence or nonexistence of aggravating circumstances set forth in § 13A-5-49 as well as the existence or nonexistence of any mitigating circumstances set forth in § 13A-5-51 and § 13A-5-52. The trial court also enumerated specific findings of fact summarizing the crimes and Payne's participation in them. The trial court found the existence of the following aggravating circumstance: “The Court makes a finding of fact that the capital offense was committed while the defendant was engaged or was an accomplice in the commission of or an attempt to commit, the offense of robbery and the offense of kidnapping.” The trial court noted that this was the only aggravating circumstance argued by the state and the only aggravating circumstance considered by the court.

The trial court also considered mitigating circumstances as set forth in § 13A-5-51 and § 13A-5-52. The trial court found one statutory mitigating circumstances as set forth in § 13A-5-51, Payne's age at the time of the offense. The trial court also found certain nonstatutory mitigating circumstances as set forth in § 13A-5-52. These mitigating circumstances were: that Payne was under the influence of drugs and alcohol at the time of the commission of these offenses; that Payne was undergoing some emotional problems concerning the alleged paternity of a child that he thought was his; that Payne had had a bad childhood because of his stepfather's alcohol problems, his stepfather's abuse of his sister, his mother's numerous marriages, and a generally poor childhood environment; and that Payne currently appears to have a good relationship with his family. In addition, the trial court considered the presentencing report, evidence presented at trial and at the sentencing hearings, and the advisory verdict of the jury. Payne had the opportunity to rebut the evidence contained in the presentencing report. The trial court weighed the aggravating circumstance against the mitigating circumstances and finding that the aggravating circumstance outweighed the mitigating circumstances, sentenced Payne to death.

Payne was convicted of two counts, count I and count II of the indictment, of intentional murder during kidnapping in the first degree, pursuant to § 13A-5-40(a)(1). He was also convicted of intentional murder during a robbery, pursuant to § 13A-5-40(a)(2) as charged in count III of the indictment. These are capital offenses under Alabama's death penalty statute. We take judicial notice that similar crimes are being punished capitally in this state. See Heath v. State, 455 So.2d 898 (Ala.Cr.App.1983), aff'd, 455 So.2d 905 (Ala.1984), aff'd, 474 U.S. 82, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985) (kidnapping-murder); Cochran v. State, 500 So.2d 1161 (Ala.Cr.App.1984), aff'd in part, rev'd in part, 500 So.2d 1179 (Ala.1985), aff'd on return to remand, 500 So.2d 1188 (Ala.Cr.App.), aff'd 500 So.2d 1064 (Ala.1986), cert. denied, 481 U.S. 1033, 107 S.Ct. 1965, 95 L.Ed.2d 537 (1987) (robbery-murder); Musgrove v. State, 519 So.2d 565 (Ala.Cr.App.1986), aff'd, 519 So.2d 586 (Ala.1987), cert. denied, 486 U.S. 1036, 108 S.Ct. 2024, 100 L.Ed.2d 611 (1988) (kidnapping-murder); Davis v. State, 536 So.2d 110 (Ala.Cr.App.1987), aff'd, 536 So.2d 118 (Ala.1988), cert. denied, 490 U.S. 1028, 109 S.Ct. 1766, 104 L.Ed.2d 201 (1989) (robbery-murder); Boyd v. State, 542 So.2d 1247 (Ala.Cr.App.1988), aff'd, 542 So.2d 1276 (Ala.), cert. denied, 493 U.S. 883, 110 S.Ct. 219, 107 L.Ed.2d 172 (1989) (kidnapping-murder and robbery-murder); Hallford v. State, 548 So.2d 526 (Ala.Cr.App.1988), aff'd, 548 So.2d 547 (Ala.), cert. denied, 493 U.S. 945, 110 S.Ct. 354, 107 L.Ed.2d 342 (1989) (robbery-murder).

We have carefully searched the record of both the guilt and the sentence phases of the appellant's trial, and we have found no error warranting reversal. In reviewing the sentence, 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 supported by the evidence. We concur in the judgment of the trial court that death is the appropriate sentence in this case. Our independent weighing of the aggravating circumstance and mitigating circumstances convinces us that the sentence of death is appropriate for this appellant. We find that the sentence of death is neither excessive nor disproportionate to the penalty imposed in similar cases.

Accordingly, Payne's conviction and sentence of death are due to be, and they are hereby, affirmed. AFFIRMED. All Judges concur.

 
 

Ex parte Payne, 683 So.2d 458 (Ala. 1996). (Direct Appeal)

Defendant was convicted in the Cullman Circuit Court, No. CC-92-179, Robert E. Austin, J., of capital murder. Defendant appealed. The Court of Criminal Appeals affirmed, 683 So.2d 440, and defendant appealed. The Supreme Court, Kennedy, J., held that: (1) prosecutor's closing argument statements did not infringe upon defendant's right to remain silent; (2) jury instructions given adequately encompassed instruction requested by defendant; (3) defendant's speedy trial rights were not violated; and (4) warrantless search and seizure of defendant's automobile was justified. Affirmed.

KENNEDY, Justice.

Max Landon Payne was convicted on three counts of capital murder (all relating to one killing): count one charged Payne with intentional murder committed during an abduction with the intent to accomplish or aid the commission of robbery or flight therefrom, pursuant to § 13A-5-40(a)(1), Ala.Code 1975; count two charged Payne with intentional murder during an abduction with the intent to inflict serious physical injury, pursuant to § 13A-5-40(a)(1); and count three charged Payne with intentional murder during a robbery in the first degree, pursuant to § 13A-5-40(a)(2). After the sentencing phase of the trial, the jury recommended the death penalty. The trial court accepted the recommendation and sentenced Payne to death. The Court of Criminal Appeals affirmed the conviction and death sentence. Payne v. State, 683 So.2d 440 (Ala.Crim.App.1995).

Payne raises four issues on appeal: (1) Did the Court of Criminal Appeals correctly hold that certain comments made by the prosecutor during closing arguments did not infringe upon Payne's right to remain silent? (2) Did the trial court err in failing to give certain jury charges requested by Payne? (3) Was Payne denied his right to a speedy trial? and (4) Did the trial court commit reversible error by admitting evidence obtained during what Payne says was an illegal search of his automobile?

The Court of Criminal Appeals set out the facts in its opinion. However, we feel it necessary to recite the facts as stated by that court in order to better present the issues. “On March 23, 1992, Braxton Brown, the owner of West Point Grocery in Cullman, Alabama, was robbed, abducted, and subsequently shot two times in the face with a shotgun. He died as a result of the shotgun wounds and his body was found the following day in Crooked Creek.

“The state's evidence tended to show that Payne was at his sister's house, where he was living at the time, in the company of his girlfriend and two other people in the early evening hours of March 23, 1992. Sandra Walker, Payne's girlfriend, testified that she did not know the other two individuals with Payne. The three left at around 6:00 p.m. Payne returned to the house about 10 minutes later and went to the closet and removed his double-barreled shotgun. Wilma Faye Easterling, Payne's sister, asked Payne why he needed his shotgun. Payne replied, ‘In case somebody fucks with me.’ Walker identified Payne's double-barreled shotgun in court.

“At approximately 8:33 p.m. on March 23, 1992, Judy Gail Byrum [an employee of the company that monitored the alarm system at the West Point Grocery Store] received an alarm from West Point Grocery. At 8:36 p.m. sheriff's deputy Jason Allen received a call that there had been a holdup at West Point Grocery. Allen notified Toby Welch, a dispatcher, who subsequently asked Gordon Nichols to respond to the scene. Nichols, a deputy sheriff with the Cullman County Sheriff's Department, responded to the call and arrived at West Point Grocery at 8:48 p.m. Nichols discovered the door of the store open and that some of the lights were off in the store. The lights outside the store were also off. Nichols also observed several packs of Marlboro cigarettes lying on the floor in front of the counter. Nichols did not find anyone in the store. He notified the dispatcher and secured the area. Bobby Watson, a sergeant with the Cullman County Sheriff's Department, arrived on the scene at approximately 9:08 p.m. He subsequently requested that an investigator be sent to the scene. Payne had been seen at West Point Grocery by two customers, Christy Sue Godsey and Becky Noone, around 8:25 or 8:30 p.m. Sometime after this and before 9:00 p.m. that evening, Payne arrived at his sister Faye Easterling's house. The victim, Braxton Brown, was with him. Sandra Walker, Payne's girlfriend, was present. At trial, Walker identified a photograph of Brown as a photograph of the man with Payne that evening. Walker testified that when the two men entered the house, Easterling asked Payne what was going on. Walker testified that Brown had three bank deposit bags and two cartons of Marlboro cigarettes with him. Walker identified the three bank deposit bags at trial. Brown told Easterling that he heard that she was pregnant and also that he heard that she needed ‘that,’ referring to money. Easterling told Brown that she did not want the money. Brown asked her again to take the money, and Easterling said that she did not want the money.

“Walker testified that Brown appeared very nervous and scared. Payne instructed Brown to give Easterling the money he owed her. Brown took out four $5.00 bills and laid them on the kitchen table. Walker testified that Easterling and Payne then went to the bathroom, which is located next to the kitchen. Walker testified that the door to the bathroom was open and that she overheard Easterling saying ‘don't do this' several times.

“Walker further testified that she, Payne, and Payne's two sisters had been involved in an automobile accident the week before and that Payne was wearing a sling on his left shoulder as a result of an injury he received. Walker testified that Payne had a gun in his right hand, inside the sling, on the night he arrived at the house with Brown. Walker identified a handgun at trial as the one that Payne carried that night. Walker testified that Easterling asked Payne to give the gun back to Brown. Payne refused. Then Payne gave Brown the clip out of the gun. Easterling asked Payne to leave Brown with her or to take him back to his store and said that ‘maybe he would forget about this.’ Walker testified that at this point, Brown nodded in the affirmative. Payne responded, ‘No, I am going to do this.’ Then Payne left with Brown.

“When they were leaving the house, Payne and Brown met Ricky Smith and his wife Evelyn. Ricky Smith testified that he arrived at Easterling's house around 8:55 or 9:00 p.m. that evening. This was the last time that Brown was seen alive. Smith testified that when he walked into Easterling's house, she was crying. Easterling was speaking to Smith's wife and he overheard her say that Payne had robbed and kidnapped Brown.

“At approximately 9:15 p.m., Payne arrived at George Cleghorn's house. Payne asked Cleghorn if he could use his telephone. Payne called someone on the telephone and asked them if they had any bullets for a .22 rifle. Payne also asked Cleghorn if he had any bullets. Cleghorn identified Payne's clothing at trial as the clothing that he was wearing the night of this incident.

“Shortly after 9:08 p.m., Payne's sister Alma arrived at the West Point Grocery and informed Sergeant Watson that Payne was traveling in a blue Ford Maverick automobile with one missing headlight. Based on the information that Watson received from Payne's sister, Watson ordered the dispatcher to issue an all-points bulletin to be on the lookout for the automobile and to advise all officers that Payne was in the company of Braxton Brown.

“At 10:00 p.m. that evening, Investigator Ted Manus was at the West Point Grocery taking pictures of the scene when he received a call that gunshots had been heard. He went to see if he could locate the origin of the shots but could not. Manus returned to the store and secured several packages of cigarettes from the store that were found on the floor. He then received a call that Brown had been seen with Payne. Manus also received information that Brown and Payne were seen together at a residence near Bethel. Manus left the store and proceeded to the residence.

“Mitchell Love, an investigator with the Cullman County Sheriff's Department, arrived at Easterling's residence at approximately 10:15 p.m. Love testified that he located a blue Ford Maverick automobile outside this residence. Love had previously received word to be on the lookout for an automobile matching this description. Love notified the dispatcher that he had located the vehicle and asked for assistance on the scene. Several other officers arrived shortly thereafter. The officers looked inside the vehicle and observed several beer cans, some live [shotgun shells and some] expended shotgun shells and an arm sling.

“Phillip Lambert, the chief investigator for the sheriff's department, arrived at Easterling's residence. He also looked inside the Ford Maverick and observed two spent shotgun shells, several unspent shotgun shells, and an arm sling. He later called for a tow truck to have the automobile towed to the sheriff's department.

“At 12:05 a.m., on March 24, 1992, Rebecca Herbstreth, a ticket agent for Greyhound Bus Lines in Birmingham, Alabama, sold someone identifying himself as James Beavers a bus ticket to Key West, Florida. At trial, Herbstreth identified Payne as the individual who claimed to be James Beavers. Herbstreth testified that she noticed that Payne was wearing a white T-shirt and torn blue jeans that had blood stains on them. Herbstreth further testified that Payne had cuts on his face. Payne gave Herbstreth a gold chain when he bought his ticket. Herbstreth identified this gold chain at trial. The chain was subsequently identified by the victim's son as one offered for sale from West Point Grocery. Payne handed out cigarettes to passengers while waiting for his bus and also helped one individual pay for a bus ticket. Herbstreth testified that Payne had tied to his waist a blue money bag that contained a lot of money. Herbstreth stated that Payne told her he received this money from the sale of his automobile.

“At approximately 7:50 a.m. on the morning of March 24, 1992, a man walked into the Greyhound Bus Station in Birmingham with a wallet that he had found about a block away. Herbstreth was still working. She called the Birmingham police. Herbstreth looked in the wallet and found Braxton Brown's Social Security card inside. Herbstreth identified the wallet at trial. Inside were nine different credit cards, all of which had Braxton Brown's name on them.

“On March 24, 1992, Officer Mitchell Love went to Payne's mother's residence. Payne's sister, Alma Lee, was present at the residence. Lee gave Love a double-barreled shotgun that she had in the trunk of her automobile. At trial, Love identified the shotgun that he received from Lee. It is the same shotgun that Walker identified as Payne's shotgun.

“Also on March 24, 1992, Deputy Sheriff Sidney Yarbrough searched the blue Ford Maverick automobile that had been towed from Easterling's house the night before. Inside he found two spent shotgun shells and four shotgun shells that had not been fired. He identified these shells at trial. Yarbrough also found a blue arm sling in the automobile, which he identified at trial.

“Volunteer fireman John Hardin, a resident of West Point, searched for Braxton Brown on the morning of March 24. He went to a bridge on Crooked Creek near West Point. He noticed a dark colored substance on the bridge and on the railing of the bridge. He discovered a partial dental plate on the bridge. He contacted the sheriff's department.

“Phillip Lambert, Ted Manus, and Anthony Dotson arrived at the bridge. Lambert observed red stains on the bridge and the partial plate. Lambert also observed a broken set of eyeglasses and a lens on the bridge. These glasses were subsequently identified by the victim's son as belonging to his father. Manus discovered a body in the creek. When the body was brought up from the creek, Manus observed that most of the face was missing. Dotson, who was serving as the coroner on this date, was present when the body was removed from the water. Dotson testified that the victim had suffered two gunshot wounds to the face. There were two large holes in the face-one in the victim's forehead and one in his mouth. Dotson knew Brown and identified the victim as Braxton Brown.

“Lambert testified that he believed that the holes in the victim's face were the result of a shotgun blast. The victim's body was taken to Moss Funeral Home and was later released to Peggy Lindsey of the Alabama Department of Forensic Sciences for an autopsy.

“On March 25, 1992, a detective from the Metro Dade County Police Department in Miami, Florida, received a telephone call that Payne was due to arrive at the Greyhound bus station in Miami. The Cullman authorities provided Detective John Robert Butchko with Payne's description and informed him that Payne was involved in a robbery-murder in Cullman, Alabama. Butchko also received information that Payne would be carrying a green duffel bag and was probably armed. Butchko was further informed that Payne was likely traveling under the name of James Beavers.

“Based on this information, Butchko arrived at the Greyhound bus station and awaited the arrival of Payne's bus. A security guard held everyone on the bus so that Butchko could identify the people exiting. Butchko approached Payne, who was carrying a green duffel bag, after he exited the bus. Payne identified himself as James Beavers. Butchko was about to pat Payne down for weapons when Payne informed him that he had a .25 caliber gun in his right rear pocket. Butchko identified a Sterling .25 caliber automatic pistol at trial as the gun that he removed from Payne's pocket. This is the same gun that Sandra Walker previously identified as the gun she saw Payne with at Easterling's house when he was with the victim. This gun was also identified at trial by the victim's son as having belonged to his father. Butchko also removed Payne's wallet from his pocket. The identification in the wallet was that of Max Landon Payne. Butchko identified the wallet and its contents at trial.

“Payne was subsequently transported to the homicide division of the Metro Dade County Police Department. Butchko saw Payne again in an investigation room at the station. Butchko asked Payne if he could search his green duffel bag. Payne subsequently signed a consent form allowing Butchko to search the duffel bag. The consent form was admitted into evidence and identified at trial. Upon searching the duffel bag, Butchko found many items, including the following that he identified at trial: a jeweler's invoice made out to West Point Grocery; a Greyhound bus ticket in the name of James Beavers; a State of Alabama vehicle registration in the name of Braxton Brown; three cartons of Marlboro cigarettes; three First Alabama Bank deposit bags containing numerous checks written to West Point Grocery, credit card receipts, rings, and food stamps; bank receipts in Braxton Brown's name; $196.54 found in Payne's wallet; and $889.30 found in the bank bags. Many of these items were subsequently identified by the victim's son as coming from West Point Grocery.

“Further testimony was heard from Peggie Lindsey, an investigator with the Alabama Department of Forensic Sciences. Lindsey transported Brown's body to Birmingham for an autopsy. Dr. Joseph Embry performed the autopsy, and Lindsey assisted. Lindsey testified that Embry removed around 466 shotgun pellets from the victim's skull. Lindsey also testified that Dr. Embry removed a blood sample from the victim, which she later delivered to a serologist in Huntsville. Lindsey testified that the victim died from the gunshot wounds to his head.

“Brent Wheeler, with the Alabama Department of Forensic Sciences in Huntsville, examined the shotgun pellets, the shotgun, and the two spent shotgun shells found in Payne's automobile. He also examined the pellets that were taken from the victim's skull. Wheeler concluded that the pellets removed from the victim's head represented the pellets of two shotgun shells, maybe three. He also testified that the two spent shotgun shells that were found in Payne's automobile were the same type of shells that had been used to shoot the victim. Wheeler further testified that the two expended shells found in the automobile had been fired from Payne's shotgun that had been taken from the trunk of his sister's automobile. Wheeler stated that the pellets taken from the victim's skull could have come from the two empty shotgun shells found in the automobile. Wheeler testified that it was his opinion that the victim was shot from a distance of one to one and one-half feet.

“Morris Glen Brown, a serologist for the Alabama Department of Forensic Sciences, tested a blood sample taken from the victim. Brown testified that the victim's blood was ‘type-ABO, type was type O, Erythrocytic D-type 2-1 PGM, type 1, DAP, type B.’ Brown also tested a human tissue sample taken from Payne's arm sling. He testified that the tissue on the arm sling could have been the victim's because of ‘blow-back’ from the shooting of the shotgun.

“Roger D. Morrison, from the Department of Forensic Sciences, tested a blood sample from the victim and a blood sample from Payne. He also tested the tissue sample taken from the arm sling. He conducted an HLA DQ Alpha test for the purpose of a DNA comparison. He concluded that the tissue from the sling and the bloodstain from the victim were both of the same HLA DQ Alpha type. According to him, this type appears in approximately six percent of the population. The test he performed was an exclusionary test, and he concluded that there was a 94% chance that the tissue taken from Payne's sling was the victim's tissue. He further concluded that the tissue taken from the sling could not have come from Payne himself. Payne presented testimony from 10 witnesses in an effort to show that it was possible that another man, by the name of James Beavers, could have committed this murder. Evelyn Smith, who passed the victim and Payne as they left Easterling's house on the night of the murder, testified that she heard her husband say ‘Hi, James, how are you?’ Smith further testified that the only James she knows is James Beavers. Kelley Mosley, who was across the street from the West Point Grocery on the night of March 23, 1992, testified that she saw a blue Ford Maverick automobile at the store at around 9:00 p.m. and that there were three people in the automobile. The one in the backseat, she testified, had shoulder-length hair. James Beavers, who has shoulder-length blond hair, testified that he lived across the street from Easterling in March 1992. Beavers testified that he did see Payne on March 23, when he helped him fix his automobile. He denied having any knowledge of the crime. Christine Hyde testified that she had a conversation with James Beavers in December 1992 in which Beavers admitted to shooting the victim in the face. Becky Graves testified that she was in the West Point Grocery at about 8:10 p.m. on March 23, 1992. She said that while she was in the store she saw a man with shoulder-length blonde hair. An affidavit from Tracey Shields was read into evidence. Shields stated that she saw Payne pull up to his mother's house at around 9:15 p.m. on March 23, 1992, and stated that she saw another person in the automobile with long hair. Payne did not testify.

“The state subsequently presented several rebuttal witnesses. Most of these witnesses were people who testified that James Beavers was at home on the night of this incident and that he did not leave his house on that night.” 683 So.2d at 443-47.

1. Did the Court of Criminal Appeals correctly hold that certain comments made by the prosecutor during closing arguments did not infringe upon Payne's right to remain silent?

Payne argues that comments made by the State in its closing arguments prejudiced him; he contends they were directed at his constitutional right not to testify. He says the comments by the State led the jury to believe that people are more likely to be innocent if they themselves testify rather than rely on the testimony of other persons. The State argues that the comments, taken in the context of the entire closing arguments, do not constitute reversible error.

The United States Supreme Court held in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), that a prosecutor's direct comment on the defendant's failure to testify violates the defendant's rights under the Fifth and Fourteenth Amendments to the United States Constitution. Also, an indirect statement, one of such character that the jury would naturally and necessarily take it to be a comment on the defendant's failure to testify, violates the defendant's constitutional rights. Marsden v. Moore, 847 F.2d 1536 (11th Cir.), cert. denied, 488 U.S. 983, 109 S.Ct. 534, 102 L.Ed.2d 566 (1988). Also, such a statement violates the defendant's rights under the Alabama Constitution. Beecher v. State, 294 Ala. 674, 320 So.2d 727 (1975).

Because Payne did not object at trial to the comments he now complains of, we must review the statements under the plain error rule and take appropriate action if plain error is evident, even though the error was not complained of at trial. Rule 45A, A.R.App.P.; Powell v. State, 631 So.2d 289 (Ala.Crim.App.1993). The plain error rule requires not only that the claimed error seriously affected substantial rights of the defendant, but also that the error had an unfair prejudicial impact on the jurors' deliberations. United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985).

At trial, Payne's defense was that a man named James Beavers committed the crime. In discussing this defense, the prosecutor asked the jury to compare the evidence against Beavers with the evidence that Payne committed the murder: “[Beavers's] mother, Mrs. Reynolds, said he was there all that time. [His ex-girlfriend's] son, Terry, said he was there that night. The police, by their own testimony, continued to investigate. Every time they would receive an additional report, they would go out and see if they could find James Beavers.... The investigation continued. On each occasion, there was no evidence to tie Mr. Beavers to this situation. He was available in court to testify. Let's go over to the other side and say [see] what evidence and what circumstances do you have against the defendant. As I say, I have always felt what a person does is more reliable than what [is] said by a third party or whoever. When we go through these, ask yourself, ‘Is that consistent with a person who is not the defendant or the one that is guilty of the crime?’ ” R.T. 747 (emphasis added).

We note that defense counsel's failure to object to these comments does not prevent our review. However, the failure to object should be weighed as part of our evaluation of the comments, because the failure to object may suggest that the defense did not consider the comments to be particularly harmful. Ex parte Kennedy, 472 So.2d 1106 (Ala.), cert. denied, 474 U.S. 975, 106 S.Ct. 340, 88 L.Ed.2d 325 (1985).

We agree with the Court of Criminal Appeals that United States v. Chandler, 996 F.2d 1073, 1094-95 (11th Cir.1993), cert. denied, 512 U.S. 1227, 114 S.Ct. 2724, 129 L.Ed.2d 848 (1994), is persuasive regarding the interpretation of the prosecutor's comments. In Chandler, the court reviewed the prosecutor's statement that the defendant, Chandler, was more culpable than one of his cohorts, Charles Ray Jarrell, who testified for the prosecution. In that argument, the prosecutor made the following comments: “You've heard several times that in return for his cooperation in this case ... the United States government and the State of Alabama have agreed to recommend a 25-year sentence without parole for Charles Ray Jarrell....

“Now, the defendant will no doubt argue this simply is not somehow not [sic] fair. Charles Ray Jarrell came here before you and testified before you. You were able to hear his testimony. He came in here, admitted what he did, came in here and told you what he did, what kind of person he is and [it] isn't anything to write home about, there is no question about that. But I submit to you that a man that was willing to solicit two different prospective killers on at least three different occasions, a man who was willing to provide money to people to perform the act, a man who was willing to provide weapons to complete the act and a man who is cunning and manipulative is a far more dangerous individual than a self-confessed town drunk living hand to mouth who allows himself to be manipulated into actually doing this terrible act.” Id. at 1094 (emphasis added).

In reviewing these remarks, the court stated: “Viewed in the context in which the statement was made, we find that the prosecutor's statement was not improper. A common sense reading of the statement suggests that the prosecutor was arguing that Jarrell was not as culpable as Chandler. The argument was based, not on Chandler's failure to testify, but on the facts elicited from Jarrell's testimony. A jury would not naturally take the argument to be a comment on Chandler's failure to testify, nor is it obvious that the remark was so intended.” Id. at 1095.

Based on the foregoing, we hold that the prosecutor's comment did not constitute an impermissible comment on Payne's right to remain silent. The comment, read in context, was not a direct or indirect comment on Payne's failure to testify. A jury would not naturally and necessarily infer that this was a comment on Payne's failure to testify. Rather, it was a summation of the defense's case versus the evidence presented by the State, Payne's defense being that someone else killed Brown.

This case is similar to Dill v. State, 600 So.2d 343 (Ala.Crim.App.1991), aff'd, 600 So.2d 372 (Ala.1992), cert. denied, 507 U.S. 924, 113 S.Ct. 1293, 122 L.Ed.2d 684 (1993), wherein the prosecutor stated that the defendant's brother was the only one from whom the jurors had heard; the statement was held not to be a comment on the defendant's silence. The comment, read in context, was that the defendant's brother, who testified for the prosecution, was the only one who told the truth. The prosecutor then went through a lengthy summation of the testimony that supported the brother's testimony. This was made in response to defense counsel's closing argument, which had attacked the brother's credibility; the comment was held not to amount to plain error.

Payne argues that the following comments by the prosecutor were also an impermissible reference to his right not to testify: “It is pretty clear up to the point they leave the house here at nine o'clock that evening-not much conjecture can be involved as far as that. After that, that is the last time Braxton Brown was seen alive. He was with the defendant. We assume from the time frame that [Payne] left here, came back up here, and went down this road here, going back to the West Point Grocery. The conjecture arises ‘What happened during that time frame?’ I don't know. I don't know whether [Payne] asked for the magazine back and Braxton Brown said ‘No way.’ I don't know if he saw a patrol car. You see, ... [Payne] ... doesn't know any alarm has gone off. He doesn't know that the police know anything. He may have passed a patrol car going from the West Point Grocery over here to where [Payne] lives, and he may have panicked. He may have thought that Wilma turned him in. He may have thought, ‘Now I have no choice.’ Or he may have got down here and said, ‘Braxton, I'm going to let you out here and I'm going to cut a trail here. By the time you get back up here to get help, I'll be long gone. Let's make a deal. If I let you out and you don't contact the authorities, we will forget this happened.’ Maybe at that point, Braxton said, ‘No way. I'm going to call the police when I get a chance.’ And [Payne] ended it right there on that bridge. Then he goes to the airport or bus station and buys the bus ticket.... Whatever scenario you think fits, something between here and there happened. That is for you to decide. The end result is that [Payne] undoubtedly was here on this bridge and did the murder on that occasion.” R.T. 755-57. (Emphasis added.)

As with the earlier comments, Payine's counsel apparently did not find these statements to be particularly harmful, because he did not object. Again, we must review them under the plain error rule and weigh the lack of an objection as part of our evaluation of the comments.

Before making these comments, the prosecutor told the jury that witnesses had been presented by both sides and that it was the jury's duty to determine which, if any, statements made by a witness it believed. He also told them that in closing arguments both sides may make inferences from the evidence and that the jury could agree or disagree with those inferences. He also stated that it was the prosecutor's job to re-create through the testimony of witnesses what the circumstances were on the day of the murder. He also for some of his argument uses the term “we,” e.g., “we assume that ...” and “there's no way we could rebut that.” As for the use of the word “we,” the prosecutor was referring to the fact that more than one prosecutor tried the case.

Viewing the comments Payne claims are improper in light of earlier comments made by the prosecutor during closing arguments, we conclude that no error occurred. The prosecutor was merely summarizing the case and commenting on inferences from the evidence presented. That is, the prosecutor was merely commenting that even though the prosecution had not been able to reconstruct every event of the evening, one could reasonably infer from the evidence presented that Payne was guilty.

It is well settled that the State can comment on the fact that its evidence is uncontradicted or has not been denied. Ex parte Wilson, 571 So.2d 1251 (Ala.1990); Ex parte Williams, 461 So.2d 852 (Ala.1984). However, the prosecutor cannot make comments that invade the right of the defendant not to testify. Id. We hold that the prosecutor's comments did not invade that right.

Also, we note that in his closing arguments Payne's counsel used these same inferences drawn from the prosecutor's inability to reconstruct every event of the evening. He commented on the fact that the State did not know what had happened on the bridge and did not prove what happened, or who did what, to the victim. He also commented on what Beavers could have been doing at the time at which the State says the jury could infer that Payne was committing the murder. Payne's counsel stated that the State said “maybe this happened or maybe that happened,” but that a guilty verdict was “too important to be based on speculation.”

2. Did the trial court err in failing to give certain jury charges requested by Payne?

Payne requested the following jury instruction: “I charge you, the Jury, that if the circumstances as proven are capable of explanation of any reasonable hypothesis consistent with the Defendant's innocence and if the circumstances are capable of such explanation, then the defendant should be acquitted.”

The court denied this charge and instructed the jury, in pertinent part, as follows: “The evidence that I have talked to you about in this case is evidence that has been testified to or introduced in some way. Now, some of the evidence in this case has been what we call circumstantial. Circumstantial evidence is defined under the law as positive proof of circumstances or facts sought which tend to prove the existence of other facts sought to be proven. Circumstantial evidence is an inference that is drawn from certain physical facts that are found as a result of the evidence. As I told you, the defendant in this case is presumed to be innocent. When part or all of the evidence that is relied on by the prosecution in a case is circumstantial, the chain of circumstances must be so complete and of such a character so as to convince you beyond a reasonable doubt and to a moral certainty of the defendant's guilt. The evidence must be so strong and cogent as to show the defendant's guilt beyond a reasonable doubt, then you should find the defendant not guilty [sic].

“A conviction may be had upon evidence which is partially circumstantial so long as the evidence is so strong and cogent as to prove the guilt of the defendant to a moral certainty and beyond a reasonable doubt. A conviction may not be had upon circumstantial evidence if there is an inference consistent with the innocence of the defendant. Evidence of circumstantial nature may be sufficient to convict if such evidence convinces the jury beyond a reasonable doubt of the guilt of the accused. What I just told you there is if some of the evidence relied on is circumstantial, the burden is the same. The State must prove to you through those circumstances the guilt of the defendant beyond a reasonable doubt. That would be the duty that would be placed upon the State in this case.” R.T. 815-17 (emphasis added).

Payne argues that “inference,” as that term is used in the court's jury charge, does not mean substantially the same as “hypothesis,” as used in Payne's requested jury charge. The State contends that there was no need for the trial court to give the jury charge requested by Payne because, it argues, the charge given by the trial court substantially covered the same subject matter.

We agree with the statement of the Court of Criminal Appeals that “the state is not asked to eliminate every single hypothesis inconsistent with the defendant's guilt,” rather “only such hypotheses as are reasonable, springing from a consideration and comparison of the entire evidence.” 683 So.2d at 452, quoting Crawford v. State, 112 Ala. 1, 21 So. 214 (1896), and Cox v. State, 373 So.2d 342, 345 (Ala.Cr.App.1979).

Black's Law Dictionary 743 (6th ed.1990), defines “hypothesis” as “A supposition, assumption, or theory; a theory set up by the prosecution, on a criminal trial, or by the defense, as an explanation of the facts in evidence, and a ground for inferring guilt or innocence, as the case may be, or as indicating a probable or possible motive for the crime.” (Emphasis added.)

In support of his argument, Payne cites Ex parte Smiley, 655 So.2d 1091 (Ala.1995), for the proposition that the judge should have used the word “hypothesis” rather than “inference.” However, Smiley differs from this case in that it did not address a jury charge; rather it addressed the sufficiency of the evidence in a murder case. We stated in Smiley that a person's presence at the scene of a crime is not enough to justify a conviction for the crime, but that the person's presence at the scene, taken along with other facts and circumstances tending to connect that person with the crime, may be enough to support a conviction. 655 So.2d at 1094. We also set out in Smiley the applicable test:

“[W]hether a jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether the evidence excludes every reasonable hypothesis but guilt, but rather whether a jury might reasonably conclude that it does.... Stated differently, to support the jury's verdict of guilty, circumstantial evidence and reasonable inferences therefrom have to be inconsistent with any rational hypothesis of innocence.”655 So.2d at 1094. (Emphasis added.) The test in Smiley states that an inference or a hypothesis of innocence must be a reasonable one.

The refusal of a requested written instruction is not a cause for reversal, even if the requested charge is a correct statement of the law, so long as it appears that the same rule of law was substantially and fairly given to the jury in the court's oral charge or in other charges given at the request of the parties. Rule 21.1, Ala.R.Cr.P.; Marek v. State, 556 So.2d 383 (Ala.1989) (if requested charge is subsumed in the court's oral charge, the refusal of the charge is not error under Rule 14, Temp. Ala.R.Cr.P.).

We hold that the charge given in this case did substantially and fairly state the same rule of law that was stated in the charge Payne requested. In summary, the trial court's charge refers to the use of circumstantial evidence in the case; it clearly indicates that the State must prove its case beyond a reasonable doubt; and, finally, it states that the defendant cannot be convicted if the evidence leads to an inference consistent with innocence.

3. Was Payne denied his right to a speedy trial?

Payne argues that he was denied his Sixth Amendment right to a speedy trial because there was a 25-month delay between his indictment and his trial. Payne contends that the Court of Criminal Appeals erred in its application of the following factors set out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), for a court to consider when analyzing a speedy-trial claim: (1) the length of the delay; (2) reasons for the delay; (3) when the defendant asserted his right to a speedy trial; and (4) any prejudice that the defendant has suffered because of the delay.

Payne argues that the court erred in weighing the Barker factors by not including in the “length of the delay” the six months it took to “find a judge to hear the case.” He contends that the six months that passed between the retirement of one judge and the appointment of another should have been weighed against the State.

The procedural history of Payne's case is as follows: March 25, 1992-Payne was arrested in Dade County, Florida. (C.R.49.) April 16, 1992-Payne was indicted by a Cullman County grand jury on three counts of capital murder. (C.R.2.) April 22, 1992-Payne made his initial appearance in court. (C.R.3-4.) April 29, 1992-Payne moved to dismiss the indictment. (C.R.17-18.) April 30, 1992-Payne filed 4 motions: (1) a motion to compel the state to elect whether to proceed on the first, the second, or the third count of the indictment; (2) another motion to dismiss the indictment; (3) a petition for psychiatric evaluations to determine his competency at the time of the offense and his competency to stand trial; and (4) a motion to vacate the State's discovery order and for a protective order, requesting that the State be prohibited from taking hair, blood, saliva, and urine samples. (C.R.20-30.) May 6, 1992-Payne moved for a continuance on his motion for psychiatric evaluations, which was scheduled to be heard on May 7, 1992; Payne moved for a change of venue and requested a hearing on this issue. (C.R.34-35.) May 7, 1992-Payne filed an ex parte application for investigative expenses, requesting a hearing on the issue; Payne also moved for permission to file other motions. (C.R.38-48.) May 8, 1992-Payne moved to suppress his statement and requested a hearing on this issue. (C.R.49-54.) May 13, 1992-Payne moved to suppress certain physical evidence and requested a hearing on this issue. (C. 55-58.) May 14, 1992-Payne moved to continue the trial, which was set for May 18, 1992. (C.R.59-59A.) June 10, 1992-Payne moved to continue the the psychiatric evaluation and change of venue hearings. (C.R.60-61.) July 15, 1992-Payne again moved to continue the hearings on the psychiatric evaluation and change of venue. (C.R.62-63.) September 3, 1992-The hearing on Payne's motion for psychiatric evaluation and change of venue was held. The trial court ordered psychiatric evaluations for Payne and denied the change of venue motion. (Supp.vol.3, 1-84.) (C.R.64-65.) October 26, 1992-The trial court found Payne competent to stand trial and set trial for December 14, 1992. (C.R.66-67.) November 30, 1992-Payne requested to individually voir dire the jury and to sequester those who had been questioned individually from those who had not. (C.R.68-80.) December 1, 1992-The State moved to continue the trial, which was set for December 14, 1992, because the blood-type analysis had not been completed. (C.R.81-82.) December 17, 1992-Payne moved for a pretrial determination of the admissibility of certain evidence, specifically requesting a hearing 60 days before trial. (C.R.85-86.) December 18, 1992-The trial court set a hearing for a pretrial determination of the admissibility of evidence, for January 7, 1993. (C.R.210.) January 7, 1993-At the hearing, the trial court ordered the State and Payne to file briefs on the legal issues presented regarding the admissibility of certain evidence. (Supp.vol.4, pp. 1-205.) (C.R.208.) January 20, 1993-The State moved to extend the time for filing the requested briefs. (C.R.87-88.) January 21, 1993-The trial court extended the time to file briefs, to February 10, 1993. (C.R.208.) February 5, 1993-Payne moved to further extend the time for filing briefs; the trial court extended the time to March 10, 1993. (C.R.89-90, 208.) March 19, 1993-The State moved to continue the trial, which had been set for March 22, 1993, because DNA testing had not been completed. (C.R.90-91.) March 25, 1993-The trial court denied Payne's motion to suppress his statement and certain evidence seized from his automobile. (C.R.97-98.) April 10, 1993-Payne petitioned the Court of Criminal Appeals for a writ of mandamus, challenging the trial court's denial of his motion to suppress his statement and evidence seized from his car. (C.R.208.) April 12, 1993-Payne filed an ex parte request for investigative expenses. (C.R.91-97.) April 13, 1993-The trial court granted Payne's request for investigative expenses. (C.R.211.) April 23, 1993-The Court of Criminal Appeals denied Payne's petition for the writ of mandamus. Ex parte Payne, 626 So.2d 651 (Ala.Crim.App.1993); Payne petitioned this Court for a writ of mandamus. (C.R.97-98.) May 14, 1993-Payne moved for a continuance pending this Court's ruling on the mandamus petition. (C.R.99-100.) June 9, 1993-the trial court continued the trial, pending this Court's review of Payne's petition and pending resolution of Payne's motion concerning out-of-state witnesses. (C.R.101-02.) June 14, 1993-This Court denied the writ of mandamus. (C.R.103.) August 30, 1993-Payne moved for production of witnesses, an incarcerated person; he also petitioned for certification of the materiality of out-of-state witnesses. (C.R.103-108.) September 10, 1993-The presiding judge in the circuit denied both of the motions filed on August 30, 1993, noting that the trial date had not been set, because of the retirement of Judge Riley. (C.R.108-09, 211.) November 10, 1993-Payne moved for a speedy trial. (C.R.112.) November 12, 1993-Payne again moved for production of witnesses and a certification of materiality of out-of-state witnesses. (C.R.113-19, 122.) January 12, 1994-Newly appointed Circuit Judge Frank Brunner recused because he had previously been appointed guardian ad litem for the victim's minor daughter. (C.R.211.) January 14, 1994-Payne again moved for a speedy trial. (C.R.124-25.) January 24, 1994-The presiding circuit judge recused because he had just had surgery and was still recuperating. (C.R.211.) January 25, 1994-The presiding circuit judge notified the Chief Justice of this Court of his recusal and requested that the case be assigned to another circuit judge. (C.R.126.) January 28, 1994-Payne filed a motion for the court to reconsider all previously filed motions. (C.R.127.) February 3, 1994-This Court entered an order appointing Judge Robert Austin to hear the case. Judge Austin set a pretrial conference for February 14, 1994. (C.R.129-130.) February 14, 1994-Payne made a motion in limine. (C.R.131-34.) March 7, 1994-Payne moved to dismiss the indictment, alleging a failure to give him a speedy trial. (C.R.136-38.) FN1 FN1. In his motion to dismiss filed March 7, 1994, Payne claims that he first asserted his right for a speedy trial in “July 1993.” However, nothing in the record indicates that to be the case; Payne does not dispute, in his briefs to this Court, that his first motion for a speedy trial was filed on September 20, 1993. March 11, 1994-The motion to dismiss was denied and trial was set for May 23, 1994. (C.R.138-39.) May 3, 1994-Payne moved for production of witnesses and a certification of the materiality of an out-of-state witness, for the third time. (C.R.140-143.) May 23, 1994-The trial began. (R.T. 1.)

The Court of Criminal Appeals held that the delay of 25 months between indictment and trial was not presumptively prejudicial, because much of the delay was due to the problem of finding a judge to hear the case. That court wrote, “This delay is not attributable to either the prosecution or Payne.” 683 So.2d at 452. The court reviewed the remaining Barker factors and found no violation of Payne's right to a speedy trial.

Payne contends that the Court of Criminal Appeals should have weighed against the State the delay due to the problem of finding a judge to hear the case. The United States Supreme Court has written: “A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” Barker, 407 U.S. at 531, 92 S.Ct. at 2192.

We must consider the Barker factors. There were 25 months between indictment and trial. There were several reasons for the delay of the trial: From Payne's April 16, 1992, indictment to the first setting of trial-for May 18, 1992-Payne filed at least 9 motions, including a motion for a continuance. From June 10, 1992, to September 3, 1992, Payne filed several motions, including a motion for a psychiatric evaluation and for a hearing on that motion. On October 6, 1992, the trial court found Payne competent to stand trial and set trial for December 14, 1992. On December 1, 1992, the State made its first motion for a continuance. On December 17, 1992, Payne moved for a pretrial hearing on whether to suppress certain evidence. The requested hearing was set for January 7, 1993.

At the hearing, the trial court ordered the parties to file briefs. Subsequently, both the State and Payne requested additional time to file their briefs. On March 19, 1993, the State moved for a continuance because DNA testing was not complete. On March 25, 1993, the trial court denied Payne's motion to suppress. In April 1993, Payne asked for investigative funds, which the trial court granted. Also in April, Payne petitioned the Court of Criminal Appeals for a writ of mandamus regarding the suppression issue. The writ was denied on April 23, 1993. Payne then petitioned this Court for a writ of mandamus regarding the suppression issue. On May 14, 1993, Payne moved for a continuance pending this Court's ruling on the mandamus petition. The trial court granted the continuance on June 9, 1993. On June 14, 1993, this Court denied the writ.

The delay caused by the retirement of one judge and the recusal of two others began in September 1993 and ended on February 3, 1993, when this Court appointed a judge to hear the case. On September 10, 1993, the presiding circuit judge denied two of Payne's motions regarding witnesses because the trial judge sitting on the case had retired. Two months later, on November 10, 1993, Payne moved for a speedy trial. Until November 1993-19 months after the indictment-Payne had not asserted his right to a speedy trial. On November 12, 1993, Payne filed another motion regarding witnesses.

The next action in the case occurred on January 12, 1994, when a new judge was appointed for the circuit in which Payne had been indicted. That same day, the new judge recused, because of a conflict of interest arising from the fact that he had been guardian ad litem for the victim's minor daughter. On January 14, 1994, Payne again moved for a speedy trial. On January 24, 1994, the presiding judge in the circuit recused because of health problems. On January 25, 1994, he notified the Chief Justice of his recusal, and on February 3, 1994, this Court appointed another judge to hear the case. On that same day, the trial judge set a pretrial hearing for February 14, 1994. On March 7, 1994, Payne filed a motion to dismiss, alleging a denial of a speedy trial FN2-that motion was denied on March 11, 1994. The trial began on May 23, 1994.

FN2. The Court of Criminal Appeals stated that Payne filed his third speedy trial motion on February 14, 1994. 683 So.2d at 451. However, the record indicates that it was filed on March 7, 1994, and Paine does not dispute this.

Payne contends that it should be presumed that he suffered some prejudice by the 25-month delay. He argues that there was no need for him to present any evidence of prejudice, arguing that under Barker a showing of prejudice comes from the fact of “pretrial incarceration” and from witnesses' “loss of memory” occurring because of the length of time, citing Barker 407 U.S. at 532, 92 S.Ct. at 2193.

Whether a defendant has been denied the constitutional right to a speedy trial cannot be determined by an inflexible rule, but must be determined on a case-by-case basis. In determining that question, a court must weigh the conduct of the prosecution and the conduct of the defense. Barker, 407 U.S. at 530, 92 S.Ct. at 2191-92.

Looking at the Barker factors and the facts presented in this case, we cannot say that Payne was denied his right to a speedy trial. Weighing any presumed prejudice from the 25-month delay and attributing to the State the 6-month delay caused by the lack of a trial judge, we must conclude that Payne was not denied a speedy trial. It is undisputed that Payne did not assert his right to a speedy trial until 19 months after the indictment had been filed. The State did not purposefully attempt to delay the trial, and any delay caused by the lack of a judge should be weighed less heavily against the State than a purposeful delay, according to Barker.

In weighing any prejudice Payne might have suffered, we consider the interests the right to a speedy trial was designed to protect, i.e., preventing oppressive incarceration, minimizing the defendant's anxiety, and, most important, limiting the possibility that the defense will be impaired. Barker. Because Payne presented no specific incidents of prejudice or impairment to his defense, we have looked at any presumed prejudice to Payne. Although between the indictment and the trial Payne spent 25 months in jail and certainly was anxious as to the outcome of his case, we cannot say that this alone is enough to outweigh the other factors. Payne contends that witnesses' loss of memory also prejudiced him. However, Payne does not point to any specific witness who failed to remember the events of the alleged offense. Even presuming some prejudice based on loss of memory as loss of memory, given that loss of memory is rarely reflected in the record, we cannot say that this factor would outweigh the other factors. We note that the State's case would also be affected by witnesses' loss of memory occurring because of the delay in trial; however, this loss of memory can work to the defendant's favor.

We hold that the Court of Criminal Appeals did not err in determining that Payne was not denied his right to a speedy trial.

4. Did the trial court commit reversible error by admitting evidence obtained during what Payne says was an illegal search of his automobile?

We agree with the reasoning of the Court of Criminal Appeals on this issue, and we adopt it as our own: “At a suppression hearing, Cullman County Sheriff's Deputy Mitch Love testified as follows. On March 23, 1992, he received a number of radio transmissions regarding a robbery-abduction at West Point Grocery. The sheriff's deputies were given a description of the suspect, Max Payne: a white male, driving a light blue Ford Maverick, and carrying a shotgun. Love drove to Payne's residence. Payne was not there, but his mother and his sister, Wilma Faye Easterling, were. Love spoke to Easterling and to Payne's mother. Easterling told Love that when she was at her house earlier that evening, Payne had arrived with Brown, bank deposit bags, and a weapon. She further stated that Payne left her house in the Maverick with the victim. After this conversation, Love left Payne's house and continued searching for the Maverick. He found it parked at Easterling's house, and called for assistance. The automobile windows were down, and Love looked into the automobile with his flashlight. He observed empty beer cans, shotgun shells on the floorboard, a sling in the back seat, and keys in the ignition. Sheriff Laney and Officers Yarbrough, DeMonia, Nichols, and Weston joined Love at the automobile a few minutes after Love called for assistance. Sheriff Laney removed the keys from the ignition.

“Sheriff Laney testified as follows. He was investigating the crime when he heard Love's call. Laney was one of the first to arrive on the scene with Love. He looked into the automobile and saw the same things Love testified to seeing. He removed the keys from the ignition and opened the trunk. The victim's whereabouts were not known at that time. Laney stated that when he looked in the trunk, he was looking for the victim.

“Phillip Lambert, chief investigator for the Cullman County Sheriff's department, testified as follows. Lambert arrived after the trunk had been searched. He looked into the automobile and observed the same items Laney and Love testified to seeing, with the exception of the automobile keys. Lambert then spoke with Easterling. She told him that the Maverick parked on the property was the same automobile Payne was driving when he left with Brown. She also told Lambert that he and the other officers ‘could look in it, do what [they] wanted to, take it with [them] or anything [they] wanted to do.’ Lambert then determined that Easterling and her husband were renting the property upon which the automobile was parked. Ted Manus obtained Easterling's written consent to search the premises. The sheriff called for a wrecker, and the Maverick was towed to the sheriff's department, where it was locked and later searched.

“Generally, a valid warrantless search must be accompanied by certain circumstances that would render the act of obtaining a warrant either useless or unreasonable. One such situation in which a warrant is not required is when exigent circumstances exist concurrently with probable cause. Land v. State, 678 So.2d 201 (Ala.Cr.App.1995) (holding that warrantless search of appellant's vehicle was valid because the police had probable cause to believe that appellant had committed the crime, and the vehicle's inherent mobility was a sufficiently exigent circumstance); see also Johnson v. State, 554 P.2d 51 (Okla.Crim.App.1976), cert. denied, 429 U.S. 943, 97 S.Ct. 364, 50 L.Ed.2d 314 (1976) (holding that immediate warrantless search of the trunk of defendant's automobile was proper, because the police believed the kidnapped victim was in there and were acting ‘in hopes of saving a human life’).

“In this case, the police had the following information before they removed the automobile keys and opened the trunk: that Brown's grocery store had been robbed by a white male with a shotgun; that the suspect was driving a light blue Ford Maverick; that Brown had been abducted; that after the robbery, Payne drove to Easterling's house in his light blue Ford Maverick; that when he arrived there, Brown was with him and he had bank deposit bags and a gun; that Payne left Easterling's house in his Maverick with Brown, the bank deposit bags, and the gun; that the Maverick was not parked in front of Easterling's house between 10:00 p.m. and 10:15 p.m., but that it was parked there at 10:30 p.m. Therefore, the police had sufficient information to ‘ “warrant a man of reasonable caution in the belief” ’ that several crimes had been committed, that the appellant had committed them, and that the vehicle contained evidence of the crimes. Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502, 514 (1983) (quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543, 555 (1925)).

“Furthermore, in cases involving searches of automobiles the vehicle's inherent mobility establishes a presumption of exigent circumstances. Mewbourn v. State, 570 So.2d 805, 810 (Ala.Cr.App.1990) (‘a vehicle's potential for mobility raises the presumption of exigent circumstances'). In this case, however, the vehicle's mobility was accompanied by several additional exigent circumstances. For example, the Maverick had been returned to Easterling's house less than 30 minutes before Love located it. Love testified that he called for backup and that the whereabouts of Payne and the victim were unknown at that time. Laney testified that he looked inside the automobile to determine whether anyone was hiding in the automobile. Laney further testified that he removed the keys from the ignition in order to open the trunk to search for the victim. We conclude that the police had sufficient probable cause to search the automobile, and that the concomitant exigent circumstances were overwhelming; therefore, the warrantless visual search of the interior and the trunk of the Maverick was valid.

“The Maverick was later towed to the sheriff's department, where it was thoroughly searched. However, before the automobile was towed, Easterling gave her express verbal and written consent to the search. In Johnson v. State, 584 So.2d 881 (Ala.Cr.App.1991), this court held:

“ ‘ “A defendant has no constitutional right of privacy where he does not have exclusive possession and control over the place searched. The person who does have present, exclusive possession and control over the place in question, or who shares the premises coequally with the person claiming to be aggrieved, may give consent to search.” ’

“ Id., at 886 (quoting C. Gamble, McElroy's Alabama Evidence § 334.01(3)(b) (3d ed.1977). See also Zumbado v. State, 615 So.2d 1223 (Ala.Cr.App.1993) (applying this rule in upholding a consensual search where the appellant parked his automobile at the house trailer where he lived with his girlfriend; the girlfriend was present, but the appellant was not; the girlfriend was apparently in exclusive control of the premises; and the girlfriend consented to the search of the automobile).

“In this case, Payne parked his automobile on property rented by Easterling and her husband. Payne left the windows of the automobile down and left the keys in the ignition. Therefore, Payne did not have exclusive control over the automobile when it was searched. Easterling, in contrast, did have apparent exclusive control of the property, including the automobile. Accordingly, she was capable of giving valid consent to the search of the automobile. She gave her consent; therefore, the warrantless search of the automobile at the sheriff's office was valid.

“Furthermore, we note that the automobile was in plain view, and the police had probable cause to believe that the automobile itself was evidence of the crimes. See Watson v. State, 533 So.2d 737 (Ala.Cr.App.1988) (‘[P]lain view is obtained without any prior entry or opening of the vehicle .... when the car itself is in plain view and it is subject to seizure as evidence of a crime....’); Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974). Therefore, the warrantless seizure of the automobile was proper.”

The judgment of the Court of Criminal Appeals is affirmed. AFFIRMED.

 
 

Payne v. State, 791 So.2d 383 (Ala.Cr.App. 1999). (PCR)

Defendant, whose capital-murder conviction and death sentence were affirmed by the Court of Criminal Appeals, 683 So.2d 440, and the Alabama Supreme Court, filed postconviction relief petition. The Cullman Circuit Court, No. CC-92-179.60, Robert E. Austin, J., dismissed petition, and defendant appealed. The Court of Criminal Appeals, Fry, J., affirmed in part and remanded with directions to address allegations of Brady violation and ineffective assistance of appellate counsel. The Circuit Court filed written statement of reasons for rejecting claims. On return to remand, the Court of Criminal Appeals, Fry, J., held that: (1) defendant was not denied discovery; (2) alleged Brady violation claim failed to meet requirements of newly discovered; (3) defendant failed to establish that trial counsel's failure to present expert testimony on defendant's mental health was outside wide range of reasonable professional assistance; (4) defendant failed to establish ineffective assistance of trial counsel based upon counsel's allegedly inadequate funding; and (5) trial counsel was not ineffective for failing to present additional mitigation evidence during sentencing phase. Affirmed in part and remanded with directions. On remand, affirmed. Certiorari denied, Ala., 791 So.2d 408.

FRY, Judge.

The appellant, Max Landon Payne, appeals from the denial of his petition for postconviction relief filed pursuant to Rule 32, Ala.R.Crim.P. In 1994, Payne was convicted of two counts of intentional murder committed during a kidnapping (§ 13A-5-40(a)(1), Ala.Code 1975) and one count of intentional murder during a robbery in the first degree (§ 13A-5-40(a)(2), Ala.Code 1975). In accordance with §§ 13A-5-45 and -46, a sentencing hearing was held before the jury, and the jury, by a vote of 11-1, recommended a sentence of death. After performing an independent weighing of the aggravating and mitigating circumstances and considering the jury's recommendation, the trial court sentenced Payne to death.

Payne's conviction and sentence of death were affirmed by this court and by the Alabama Supreme Court. Payne v. State, 683 So.2d 440 (Ala.Cr.App.1995), aff'd. 683 So.2d 458 (Ala.1996). The United States Supreme Court denied certiorari review in Payne v. Alabama, 520 U.S. 1146, 117 S.Ct. 1319, 137 L.Ed.2d 481 (1997).

On February 24, 1998, Payne, through counsel, filed a Rule 32 petition, raising numerous claims. On August 10, 1998, the circuit court dismissed Payne's petition, finding the majority of Payne's claims precluded. As for Payne's claim of ineffective assistance of appellate counsel and newly discovered evidence, the trial court “granted leave to amend the petition and/or refile on issues not adjudged as being precluded.” (C.R.64.) On September 21, 1998, before filing an amended petition, Payne filed his notice of appeal, establishing this court's jurisdiction in this matter. He then filed an amended petition. We affirm the trial court's order in part and remand the case for further proceedings.

The state's evidence at the 1994 trial tended to show the following. On March 23, 1992, Braxton Brown, the owner of West Point Grocery, was robbed, abducted, and shot twice in the face. Braxton died as a result of the shotgun wounds. Testimony indicated that the robbery occurred around 8:33 p.m. on March 23, 1992. Two witnesses testified that they saw Payne at the West Point Grocery at 8:30 p.m. Payne's sister and his girlfriend testified that they saw Payne and Brown together later that evening and that they had with them three bank deposit bags and two cartons of Marlboro cigarettes. Testimony further indicated that Payne's girlfriend tried to dissuade Payne from robbing and kidnapping Brown. When Payne was arrested, law enforcement officers found various items belonging to West Point Grocery and to Braxton Brown in Payne's duffel bag.FN1

FN1. A complete recitation of the facts is contained in Payne v. State, 683 So.2d 440, 443-47 (Ala.Cr.App.1995).

On appeal, Payne contends that the trial court erred in ruling that his claims were precluded. Specifically, he argues that his claims of ineffective assistance of trial counsel and newly discovered evidence-of a Brady violation FN2-were not precluded. He further maintains that the trial court erred in denying his petition without conducting an evidentiary hearing. FN2. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

We conduct our review of the trial court's denial of Payne's petition in light of the following principles: “ ‘ “ ‘The plain error rule does not apply to Rule 32 proceedings, even if the case involves the death sentence.’ Thompson v. State, 615 So.2d 129 (Ala.Cr.App.1992).” Cade v. State, 629 So.2d 38, 41 (Ala.Cr.App.1993), cert. denied, 511 U.S. 1046, 114 S.Ct. 1579, 128 L.Ed.2d 221 (1994).' “ ‘In addition, “the procedural bars of Rule 32 apply with equal force to all cases, including those in which the death penalty has been imposed.” State v. Tarver, 629 So.2d 14, 19 (Ala.Cr.App.1993).’ ” Davis v. State, 720 So.2d 1006, 1013 (Ala.Cr.App.1998)(citing Brownlee v. State, 666 So.2d 91, 93 (Ala.Cr.App.1995)).

I.

Payne contends that “the trial court incorrectly ruled that [his] claims of ineffective assistance of trial counsel were precluded because they were not raised on direct appeal.” (Appellant's brief at p. 1. )

At the time of Payne's conviction, claims of ineffective assistance of trial counsel could not be considered for the first time on appeal, and the procedure outlined in Ex parte Jackson, 598 So.2d 895 (Ala.1992), was in effect. Jackson was subsequently overruled by Ex parte Ingram, 675 So.2d 863 (Ala.1996). Payne was sentenced to death on June 13, 1994. The trial court allowed Payne's trial counsel to withdraw and it appointed appellate counsel for Payne on June 23, 1994. Because Payne was represented by different counsel at trial and on appeal, any claim of ineffective assistance of trial counsel should have been raised in a motion for a new trial in order to preserve the issue for review. Ex parte Jackson. Thus, the trial court correctly concluded that Payne's claims regarding ineffective assistance of trial counsel are procedurally barred by Rule 32.2(a)(3) and (a)(5) as claims that could have been, but were not, raised at trial or on appeal. See Bryant v. State, 739 So.2d 1138 (Ala.Cr.App.1998); Dyson v. State, 722 So.2d 782 (Ala.Cr.App.1997); Hartzog v. State, 733 So.2d 461 (Ala.Cr.App.1997); Andersch v. State, 716 So.2d 242 (Ala.Cr.App.1997); Arrington v. State, 716 So.2d 237 (Ala.Cr.App.1997); Alexander v. State, 679 So.2d 227 (Ala.1996); Covington v. State, 671 So.2d 109 (Ala.Cr.App.1995); Alderman v. State, 647 So.2d 28 (Ala.Cr.App.1994); Ex parte Jackson, supra. Cf. Mason v. State, 768 So.2d 981 (Ala.Cr.App.1998)(applying Ex parte Jackson in a capital case); Bush v. State, 695 So.2d 70, 128 (Ala.Cr.App.1995), aff'd, 695 So.2d 138 (Ala.), cert. denied, 522 U.S. 969, 118 S.Ct. 418, 139 L.Ed.2d 320 (1997); and Brown v. State, 712 So.2d 1112 (Ala.Cr.App.1997).

Additionally, the following claims in Payne's petition are procedurally barred under Rule 32.2(a)(2) and (5), Ala.R.Crim.P., because they were raised and addressed at trial and could have been, but were not, raised on appeal:

1. Payne's claim that “the trial court violated his rights to due process and effective assistance of counsel when it denied his motion to have expert psychological and psychiatric assistance with the evaluation, preparation, and presentation of his defense.”

2. Payne's claim that because he “was tried in Cullman County, where the killing at issue occurred and where pretrial publicity made it impossible to select a fair and impartial jury, [he] was deprived of a fair trial by an impartial jury in violation of the Constitutions and laws of the United States and the State of Alabama.”

3. Payne's claim that “improper judicial rulings and conduct before, during and after the guilt and penalty phase of his trial denied him due process, a fair trial, and a reliable and fair sentencing procedure in violation of the constitutions and laws of the State of Alabama (U.S.C.A., Amendments 5, 6, 8 and 14).”

4. Payne's claim that because “his appointed counsel was the brother-in-law of the district attorney he was denied due process and his right to effective and zealous representation by counsel (U.S.C.A., Amendments 5, 6, 8 and 14).”

The following claims in Payne's petition are procedurally barred under Rule 32.2(a)(2) and (4), Ala.R.Crim.P., because they were raised and addressed at trial and/or on appeal:

Payne's claim that “because the judge and jury did not hear crucial mitigating evidence and because of numerous errors throughout his trial, [he] was deprived of a fair and reliable capital sentencing process in violation of the Constitutions and laws of the United States and the State of Alabama.” See Payne, 683 So.2d at 456-58.

2. Payne's claim that “it would be a gross miscarriage of justice to allow [his] current conviction and sentence of death to stand because [he] is actually innocent of the capital offense for which he was convicted.” See Payne, 683 So.2d at 456-58.

3. Payne's claim that “the trial court denied [him] due process by duplicating the finding of conviction as the sole factor of aggravation, and because the aggravator was not any narrower than the underlying crime (U.S.C.A., Amendments 5, 8, and 14).” See Payne, 683 So.2d at 456-58.

The following claims in Payne's petition are procedurally barred under Rule 32.2(a)(3) and (5), Ala.R.Crim.P., because they could have been, but were not, raised and addressed at trial or on appeal:

1. Payne's claim that he “was denied effective assistance of counsel due to trial counsel's failure to obtain and utilize competent psychiatric and psychological assistance in the evaluation, preparation, and presentation of [his] defense.”

2. Payne's claim that the “trial court's lengthy oral instruction on the definition of reasonable doubt standard was inconsistent, diluted the reasonable doubt standard, and permitted the jury to substitute a moral certainty and fair-minded person standard for a juror's individual evidentiary standard of beyond a reasonable doubt, all in violation of [his] rights to due process of law and his entitlement to effective assistance of counsel.”

3. Payne's claim that he “was denied effective assistance of counsel due to his trial attorney's failure to present at sentencing persuasive and available mitigation evidence, denying [him] a fair and reliable sentencing process and violating his rights under the Constitutions and laws of the United States and State of Alabama.”

4. Payne's claim that the trial court denied him due process by failing to find as a mitigating factor Payne's lack of a significant criminal history.

5. Payne's claim that “the trial court violated [his] due process rights by failing to find as a factor of statutory and/or nonstatutory mitigation that James Beavers admitted the commission of the killing and [that] Mr. Payne's role in the capital offense was minor.”

6. Payne's claim that he “was denied due process in the sentencing phase when the prosecutor argued future dangerousness as a reason to impose the death penalty, thereby presenting to the jury uncharged factors of aggravation that exceeded the scope of the proper factor of aggravation.”

7. Payne's claim that he “was denied his right to a fair, impartial, and representative jury as guaranteed by the United States Constitution and the laws and Constitution of the State of Alabama [by the following:]

“i. The judge's secretary's dismissal of potential jurors from the jury pool denied [him] rights to due process of law, trial by an impartial jury, and effective assistance of counsel.

“ii. [He] was denied due process, effective assistance of counsel, and a trial by an impartial jury when two jurors overheard extrajudicial comments made by the victim's family in a courthouse bathroom to the effect that: ‘I can't believe he colored his hair before trial.’

“iii. [He] was denied his right to due process and a jury trial when part of the impaneling of the jury was conducted in his absence.

“iv. The trial judge failed to excuse for cause several potential jurors and improperly excused other members of the venire.

“v. The method of selecting the grand jury and jury venire in Cullman County deprived [him] of his right to a trial by a jury of his peers.”

8. Payne's claim that the “trial court's fundamentally flawed instruction to the jury on the theory of accomplice liability resulted in extreme prejudice to [his] due process rights and deprived [him] of effective assistance of counsel (U.S.C.A., Amendments 5, 6 and 14).”

9. Payne's claim that he “was denied due process because the intent instructions failed to distinguish between the intents required for various forms of homicide and the instructions created a mandatory presumption that any act which causes death demonstrates the intent to kill (U.S.C.A., Amendments 5, 6, 8, and 14).

“i. The trial court denied [him] equal protection and due process by not distinguishing the intent required for capital murder, the intent required for noncapital murder, and the recklessness required for manslaughter, thereby denying a meaningful jury determination of the lesser included offense of simple murder.

“ii. The Alabama homicide statutes create a mandatory or burden-shifting presumption that the intent to kill is the only intentional act for an act which causes death (U.S.C.A., Amendments 5, 6, and 14).

“iii. The trial court denied [him] due process by not adequately and properly presenting to the jury the lesser-included offense of felony-murder, and the essential elements of that lesser-included offense.”

10. Payne's claim that “the trial court's instruction on mitigating circumstances violated due process because it created a substantial possibility that the jury interpreted the instruction to prevent [it] from considering a mitigating circumstance unless [it] unanimously agreed on that circumstance (U.S.C.A., Amendments 5, 6, 8, and 14).”

11. Payne's claim that “by providing a judicial officer with the ultimate decision of life and death, the State of Alabama deprived [him] of due process and his right to trial by jury (U.S.C.A., Amendments 5, 6 and 14).”

12. Payne's claim that he “was denied due process and the effective assistance of counsel when the sentencing court rested its decision in part on erroneous, and or inaccurate, incomplete information in the PSI [pre-sentence investigation report] which [he] had no meaningful opportunity to explain or deny (U.S.C.A., Amendments 5, 6, and 14).”

13. Payne's claim that “Alabama's judicially ordered electrocution of [him] at a given specific date and time, constitutes unusual and cruel punishment, and a denial of equal protection, and due process of law under the constitutions and laws of the United States and State of Alabama (U.S.C.A., Amendments 5, 8, 9 and 14).”

14. Payne's claim that “the trial court's instructions on the weighing of aggravating and mitigating circumstances and the role of the jury in the sentencing process denied [him] due process of law and a fair and reliable capital sentencing process, in violation of the constitution and laws of the United States and the State of Alabama (U.S.C.A., Amendments 5, 8 and 14).”

15. Payne's claim that he “was denied effective assistance of counsel at both the guilt and penalty phase of the trial proceedings, in violation of the constitutions and laws of the United States and State of Alabama (U.S.C.A., Amendments 5, 6, 8 and 14).

“i. [He] was denied effective assistance of counsel when at the conclusion of the guilt phase of trial, counsel failed to object to improper statements by the prosecutor in the argument before the jury.

“ii. [He] was denied effective assistance of counsel at sentencing hearing before the jury when trial counsel failed to object to improper statements by the prosecutor in the argument before the sentencing jury (U.S.C.A., Amendments 6 and 14).

“iii. [He] was denied effective assistance of counsel when trial counsel's main theory of defense was that [he] was nothing more than an accomplice and that as an accomplice [he] could not be guilty of capital murder.

“iv. [He] was denied effective assistance of counsel by trial counsel's failure to contest or cross-examine the state's expert witnesses or present expert testimony on Payne's behalf.

“v. [He] was denied effective assistance of counsel when trial counsel failed to renew the motion for a court-ordered mental exam after the return of the guilty verdict but prior to the sentencing phase.

“vi. [He] was generally denied the effective assistance of counsel at the guilt phase of his trial in violation of the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and the Constitution and laws of the State of Alabama.

“vii. [He] was generally denied the effective assistance of counsel at the penalty phase of his trial in violation of his right to a fair and reliable capital sentencing process and the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and the Constitution and laws of the State of Alabama.” (C.R.307-76.)

II.

Payne contends that we should remand this cause to the circuit court for an evidentiary hearing on his claims of newly discovered evidence-a Brady violation-and of ineffective assistance of appellate counsel. The state agrees.FN3 Based on the pleadings before us, we are unable to determine whether Payne's claim of newly discovered evidence was properly precluded. Therefore, we must remand this cause for further consideration. Additionally, Payne's claims that appellate counsel was ineffective may also, if true, be meritorious. “ ‘When a petition contains matter which, if true, would entitle the petitioner to relief, an evidentiary hearing must be held.’ ” Bryant v. State, 739 So.2d at 1140, quoting Smith v. State, 581 So.2d 1283, 1284 (Ala.Cr.App.1991), citing Ex parte Boatwright, 471 So.2d 1257, 1258 (Ala.1985). FN3. During oral argument the state requested that we remand this cause to the circuit court for an evidentiary hearing on the claims of newly discovered evidence and ineffective assistance of appellate counsel.

Accordingly, this case is remanded to the circuit court for an evidentiary hearing pursuant to Rule 32.9, Ala.R.Crim.P. to address Payne's claims of ineffective assistance of appellate counsel and newly discovered evidence-the alleged Brady violation. The trial court is directed to “make specific findings of fact relating to each material issue of fact presented,” as required by Rule 32.9(d), Ala.R.Crim.P. Due return should be filed in this court no later than 56 days from the date of this opinion and shall include the trial court's written statement of the court's findings and the transcript and/or affidavits, if any, from the proceeding.

AFFIRMED IN PART; REMANDED WITH DIRECTIONS.

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

On Return to Remand

FRY, Judge.

On July 9, 1999, we remanded this cause to the circuit court with directions that it address the claims in Payne's Rule 32, Ala.R.Crim.P., petition alleging newly discovered evidence-in effect allegations of a Brady FN1 violation and ineffective assistance of appellate counsel. FN2 Payne v. State, 791 So.2d 383 (Ala.Cr.App.1999). FN1. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

FN2. In oral argument before this Court, Payne and the state requested that we remand this cause to the circuit court for a hearing on Payne's claims of ineffective assistance of appellate counsel. Specifically, Payne argued, and the state agreed, that he had presented facially meritorious claims of appellate counsel's failure to present on direct appeal claims of ineffective assistance of trial counsel.

The circuit court has complied with our directions and on return to remand has filed an order containing a written statement of its reasons for rejecting Payne's allegations of a Brady violation and of ineffective assistance of appellate counsel.

Initially, we note that the circuit court denied Payne's Rule 32 petition on August 10, 1998, stating: “[I]t is, therefore, Ordered, Adjudged and Decreed that the petition filed herein is denied.” (C.R.64.) Although the order seems to grant Payne leave “to amend the petition and/or refile on issues not adjudged as being precluded,” we conclude that because the court denied the petition and because Payne filed his notice of appeal on September 21, 1998, removing jurisdiction from the circuit court, Payne was foreclosed from amending the petition. See Rule 32.7(b), Ala.R.Crim.P. (“Amendments to pleadings may be permitted at any stage of the proceedings prior to entry of judgment” (emphasis added)).

Although this Court dismissed Payne's appeal from this order on September 28, 1998, 741 So.2d 498 (Ala.Cr.App.1998)(table), this Court ordered the appeal to be reinstated on October 26, 1998. Payne filed an amended Rule 32 petition in the circuit court on January 13, 1999. That court, however, did not have jurisdiction because Payne's appeal was pending; therefore, that filing, as well as all subsequent filings, were void. We remanded this cause on July 9, 1999. The record on return to remand indicates that at the evidentiary hearing, the circuit court, upon agreement of both parties, permitted Payne's counsel to present evidence with regard to claims made in the amended petition.

The general rule is that jurisdiction of one case cannot be in two courts at the same time. McKinney v. State, 549 So.2d 166 (Ala.Cr.App.1989). Jurisdiction of this cause at the time Payne filed his amended Rule 32 petition rested with this Court. Therefore, the matters addressed with regard to the amended Rule 32 petition cannot be considered by this Court because they were never properly before the circuit court.

Furthermore, even if we could consider the claims raised in the amended Rule 32 petition, we have no means of adequately reviewing those contentions because a copy of the amended Rule 32 petition, which the circuit court mentioned at the evidentiary hearing, was not made a part of the record on return to remand. Thus, our review is limited to Payne's claims of ineffective assistance of appellate counsel and the alleged Brady violation, as pleaded in the original petition filed on February 24, 1998.

I.

Because of the complicated history of the proceedings and rulings regarding this Rule 32 petition, we feel compelled to address the numerous complaints by Payne at the evidentiary hearing on remand regarding his inability to conduct discovery.

Payne filed his petition on February 24, 1998. On May 13, 1998, Payne filed a motion for discovery of “institutional records” and files, and a motion for discovery of prosecution files and records. Although these motions essentially list the information sought and do not offer any good cause as to why the discovery was necessary or exactly what Payne believed the information he sought to discover would reveal, the circuit court granted Payne's motions on May 22, 1998. When the circuit court denied Payne's petition on August 10, 1998, it vacated these discovery orders. There is no indication in the record, and Payne has made no representation, that from the time the circuit court ordered discovery (May 22) until the time that it vacated the orders (August 10) Payne made any effort to obtain the information he had requested. We do not believe that the time to begin discovery is after the date set for the hearing to which the discovery items are directed; therefore, we question Payne's diligence in conducting discovery.

Payne appealed the circuit court's denial of postconviction relief and this Court remanded the cause for an evidentiary hearing on July 9, 1999. This Court ordered that due return of the cause be filed within 56 days of issuance of its opinion. See Payne v. State, 791 So.2d at 393. On July 21, 1999, the circuit court set the hearing for August 20, 1999, but the hearing was continued until August 27, 1999. Although Payne filed an application for rehearing with this Court on July 23, 1999, filed an application on August 2, 1999, requesting more time for the evidentiary hearing to be held, and filed a supplemental motion for more time on August 10, 1999, Payne did not file a motion for discovery with the circuit court. We note that although in his application for rehearing and his motions to this Court, Payne represented that as of the dates on the filings, he had been “unable to conduct basic discovery, take depositions, review defense counsel's trial and appellate file, or review of any portion of the State's trial file,” Payne made no efforts to obtain the discovery other than the original request he made on May 13, 1998.

On August 16, 1999-four days before the original evidentiary date scheduled for the hearing and after representations about discovery had been made to this Court-Payne filed a motion for discovery, while this case was on remand in the circuit court. In light of Payne's lack of diligence in conducting discovery, we seriously question the timeliness of Payne's discovery request and his efforts to conduct discovery while his case was on remand. If Payne had moved the circuit court for discovery when this Court remanded the case, he could have been conducting discovery from July 9.

It does appear from the record that Payne's counsel made efforts to obtain the prosecutor's file a week before the hearing. However, there was some confusion, and the file was not released until just before the hearing. The record further indicates that when the state realized the problem it tried to make arrangements for Payne's counsel to review the file, but Payne's counsel, who was from Iowa, had already left town. Additionally, we note that while hearing argument from Payne's counsel about his not having received a report from Dr. Lawrence Maier,FN3 the circuit court elicited an admission from Payne's counsel that he had not requested that a subpoena be issued to Taylor Hardin Medical Unit for Payne's medical records, which would have included a copy of Dr. Maier's report. Thus, while it appears from the record that Payne had time, which we acknowledge may have been limited, during which he could have conducted discovery, Payne did not make a good faith effort to do so.

FN3. Dr. Maier, a licensed clinical psychologist and certified forensic examiner, examined Payne before trial to determine whether he was competent to stand trial.

Furthermore, as did the circuit court, we reject the following argument by Payne: “We have made diligent efforts to try to obtain discovery in this matter. I would also note that any delay in terms of filing a discovery motion after remand, was based on our understanding that the Alabama Supreme Court was preparing on the case of Ex parte Land. It would be thought that case would be determined to determine whether or not Payne had a right to discovery and provide guidance to this Court as to whether or not Mr. Payne was entitled to discovery. As soon as that decision came down, we proceeded to file a motion for discovery.” (R. 24-25.)

While we believe that it was serendipitous that the Supreme Court released Ex parte Land, [Ms. 1971816, August 6, 1999],FN* in August, Payne's efforts to conduct discovery were at most minimal. Unlike the circumstances in Land, where the circuit court had denied discovery, the circuit court here granted Payne broad discovery from an extremely general motion. The court's orders granting discovery were effective for over two months before they were vacated. Payne, however, did not take advantage of the circuit court's order and made little, if any, effort to pursue discovery during the two months before the circuit court's denied his petition and vacated the discovery orders or while the case was pending on remand in the circuit court. Furthermore, because Payne did have access to the prosecutor's file, and his jail records, as well as some of his institutional records even though his time for review was limited, we conclude that Payne was not denied discovery.

FN* Note from the reporter of decisions: On June 2, 2000, on application for rehearing, the Supreme Court withdrew its August 6, 1999, opinion in Ex parte Land and substituted another one. The August 6, 1999, opinion carried the judgment line “PETITION GRANTED; WRIT ISSUED.” The June 2, 2000, opinion carried the judgment line “OPINION OF AUGUST 6, 1999, WITHDRAWN; OPINION SUBSTITUTED; [REHEARING] APPLICATION GRANTED; PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.” See 775 So.2d 847. Finally, Payne claims that the circuit court erred in denying his motion for funds for a mental health expert. We have previously rejected a similar argument. See Ford v. State, 630 So.2d 111 (Ala.Cr.App.1991), aff'd. 630 So.2d 113 (Ala.1993), cert. denied, 511 U.S. 1078, 114 S.Ct. 1664, 128 L.Ed.2d 380 (1994).

II.

“When reviewing a trial court's ruling on a postconviction petition, this Court must determine whether the trial court abused its discretion. Jones v. State, 724 So.2d 75 (Ala.Cr.App.1998); Elliott v. State, 601 So.2d 1118 (Ala.Cr.App.1992).” Brown v. State, [Ms. CR-98-0343, October 1, 1999] --- So.2d ---- (Ala.Cr.App.1999). Moreover, it is well settled that “[i]f the circuit judge has personal knowledge of the facts underlying the allegations in the [Rule 32] petition, he may deny the petition without further proceedings so long as he states the reasons for the denial in a written order.” Sheats v. State, 556 So.2d 1094, 1095 (Ala.Cr.App.1989). The judge in this Rule 32 proceeding, Judge Robert Austin, also presided over Payne's trial. We recognize that Judge Austin was in a much better position than this Court to consider Payne's claims because of his personal knowledge of the facts surrounding Payne's allegations. Brown v. State, supra.

III.

On appeal from his Rule 32 petition, Payne alleged that a Brady violation occurred when “the State of Alabama specifically contacted a key witness, [Ricky Smith] prior to trial, causing [Smith] to change his testimony and through improper interference to testify untruthfully.” (Payne's brief to this Court at p. 5.)

“ ‘ “In order to establish a Brady violation, appellant must prove: ‘(1) The prosecution's suppression of evidence; (2) The favorable character of the suppressed evidence for the defense; (3) The materiality of the suppressed evidence.’ Knight v. State, 478 So.2d 332, 335 (Ala.Cr.App.1985).... “ ‘ “[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” ' “ ‘... “The concept of ‘suppression’ implies that the Government has information in its possession of which the defendant lacks knowledge and which the defendant would benefit from knowing.” ' ” Davis v. State, 720 So.2d 1006, 1026-27 (Ala.Cr.App.1998), cert. denied, 525 U.S. 1149, 119 S.Ct. 1049, 143 L.Ed.2d 55 (1999). (Citations omitted.)

Because this Brady claim was first presented in a Rule 32 petition, Payne can obtain relief only if it involves “newly discovered evidence.” Newly discovered evidence is defined under Rule 32.1, Ala.R.Crim.P., as follows: “Subject to the limitations of Rule 32.2, any defendant who has been convicted of a criminal offense may institute a proceeding in the court of original conviction to secure appropriate relief on the ground that: “.... “(e) Newly discovered material facts exist which require that the conviction or sentence be vacated by the court, because: “(1) The facts relied upon were not known by petitioner or petitioner's counsel at the time of trial or sentencing or in time to file a post-trial motion pursuant to Rule 24, or in time to be included in any previous collateral proceeding and could not have been discovered by any of those times through the exercise of reasonable diligence; “(2) The facts are not merely cumulative to other facts that were known; “(3) The facts do not merely amount to impeachment evidence; “(4) If the facts had been known at the time of trial or of sentencing, the result probably would have been different; and “(5) The facts establish that petitioner is innocent of the crime for which petitioner was convicted or should not have received the sentence that petitioner received.” Rule 32.1(e), Ala.R.Crim.P. We note that because of the conjunctive “and” between (4) and (5), Payne must meet all five prerequisites of Rule 32.1(e), Ala.R.Crim.P., in order to prevail. Cf. Brown v. State, supra.

The circuit court, in its order on return to remand, made the following findings with regard to this claim: “The ‘newly discovered evidence’ and Brady material [are] actually an old story wrapped in a new cover. Petitioner claims that Mr. Ricky Smith, ex-brother-in-law, who testified at trial, was promised help in a divorce case by the District Attorney if he would testify falsely at trial. However, Mr. Smith's actual testimony was that while being interviewed by the District Attorney prior to Payne's trial, when Smith attempted to discuss the divorce case the response by the D.A. was that ‘he couldn't get involved in that.’ The D.A. further volunteered ‘but that after the trial was over, if I would come see him, he would help me get counsel.’

“Mr. Smith's sole purpose at this hearing is to convince the Court that he is a person who gives perjured testimony for small, even insignificant favors, such as helping to locate suitable counsel in a divorce action. Even should the court choose to believe such a confessed liar, Smith's account of the exchange appears to be little more than a public official attempting to fend off the attempts by an unsavory individual to solicit special treatment. Even Smith admits that he was told that the District Attorney ‘could not get involved with that.’ But when such testimony is considered in contrast with that of the District Attorney who flatly denies making any promises in exchange for testimony, the Court does not find the testimony of Ricky Smith to be credible or worthy of belief.

“It is important to note that at trial the State rested without the District Attorney calling Ricky Smith as a witness. In fact, at trial, Smith was initially called by the defense as a witness and at that time Smith claimed it was not the District Attorney, but rather the defendant's family that was threatening him concerning his testimony. The nature of Smith's contradictory testimony and tendency to disregard the truth was given full airing in front of the jury when investigator NeSmith testified for the defendant that Smith had given a contradictory version of what happened than the version he testified to in Court. The Court finds all of the above constitutes neither newly discovered evidence or any violation of Brady v. Maryland.” (C.R. on remand 194-95.)

The circuit court's findings in its order are supported by the record and are sufficient to support its denial of relief on this allegation. Payne failed to establish that the evidence was newly discovered. Specifically, Payne failed to establish that the facts relied upon were not cumulative to other facts known, that the facts did not amount to impeachment evidence, that if the facts had been known at trial the result would probably have been different, and that the facts establish Payne's innocence. Rule 32.1(e), Ala.R.Crim.P. Therefore, we conclude that Payne's alleged Brady claim has failed to meet the requirements of newly discovered evidence and that Payne was not entitled to relief with regard to this claim.

IV.

In his Rule 32 petition, Payne raised a general allegation that his appellate counsel was ineffective. (C.R.359-60.) This claim was completely unsupported by a statement of specific facts. It therefore failed to meet the specificity requirements of Rule 32.6(b), Ala.R.Crim.P. Furthermore, because of the conclusory nature of Payne's general allegation in his petition, Payne failed to meet his burden under Rule 32.3, Ala.R.Crim.P., of pleading and proving by a preponderance of the evidence facts necessary to entitle him to relief.

In his petition, Payne did, however, specifically plead (within other claims) the following allegations of ineffective assistance of appellate counsel: 1. That appellate counsel failed to argue on appeal that trial counsel was ineffective for failing to “obtain and utilize competent psychiatric and psychological assistance” when presenting his defense (C.R.313-15); 2. That appellate counsel was ineffective because he did not argue on appeal that the trial court had erred in refusing to instruct the jury on the lesser-included offense of felony murder (C.R.339-40); 3. That appellate counsel was ineffective for not challenging the accuracy of the presentence investigation report (C.R.354); and 4. That appellate counsel was ineffective for failing to raise the following ineffective-assistance-of-trial-counsel claims on direct appeal: a. Trial counsel's failure to object to improper statements allegedly made by the prosecutor during argument in the guilt phase and sentencing phase of his trial (C.R.366); b. Trial counsel's failure to establish an adequate defense that he was not guilty of capital murder (C.R.369); c. Trial counsel's failure to “contest or cross-examine the state's expert witnesses or present expert testimony on [his] behalf (C.R.370); d. Trial counsel's failure to “renew the motion for a court-ordered mental exam after the return of the guilty verdict but prior to the sentencing phase (C.R.370); e. Trial counsel's failure to provide adequate representation due to inadequate funding (C.R.371); and f. Trial counsel's failure to investigate and to present adequate mitigation evidence during the sentencing phase of his trial (C.R.372).

Because it appears that Payne did not present evidence at the evidentiary hearing with regard to claims 2, 3, 4.a, 4.b, 4.c, and 4.d, we conclude that he has abandoned these claims and we will not review them. Cf. Brownlee v. State, 666 So.2d 91, 93 (Ala.Cr.App.1995). Moreover, even if we were to attempt to review these claims, we would conclude that Payne has failed to prove by a preponderance of the evidence that appellate counsel's performance was deficient. Rule 32.3, Ala.R.Crim.P.

Payne's claims of ineffective assistance of appellate counsel depend on whether Payne proves that appellate counsel failed to present on direct appeal a claim that would have entitled him to relief. Thus, in order to obtain relief, Payne must establish that his claims of ineffective assistance of trial counsel are meritorious and that, if they had been raised on direct appeal, the outcome of his appeal would have been different. Bryant v. State, 739 So.2d 1138 (Ala.Cr.App.1998). “To prevail on a claim of ineffective assistance of counsel, a defendant must show that his counsel's performance was deficient and that he was prejudiced by that deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This court must avoid using the benefit of hindsight and must evaluate the counsel's conduct at the time of its occurrence. Ex parte Lawley, 512 So.2d 1370 (Ala.1987). ‘When this court is reviewing a claim of ineffective assistance of counsel, we indulge a strong presumption that counsel's conduct was appropriate and reasonable. Luke v. State, 484 So.2d 531, 534 (Ala.Cr.App.1985).” Hallford v. State, 629 So.2d 6, 9 (Ala.Cr.App.1992).

“ ‘Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act, or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.’ “ Strickland, 466 U.S. at 689, 104 S.Ct. at 2065-66. (Citations omitted.) Ex parte Lawley, 512 So.2d 1370, 1372 (Ala.1987). ‘Counsel's conduct must be considered within the context of the facts of the particular case and as of the time of the alleged misconduct.’ Ex parte Baldwin, 456 So.2d 129, 134 (Ala.1984), aff'd, 472 U.S. 372, 105 S.Ct. 2727, 86 L.Ed.2d 300 (1985).” State v. Tarver, 629 So.2d 14, 17 (Ala.Cr.App.1993).

With regard to Payne's claim that his appellate counsel failed to argue on appeal that trial counsel was ineffective for failing to “obtain and utilize competent psychiatric and psychological assistance” during his trial, the circuit court made the following findings of fact: “4. Prior to trial, based upon motion of trial counsel, a psychiatric exam was ordered by the Court to determine the defendant's competency to stand trial and his mental state at the time of the offense. An extensive evaluation was performed by Dr. Maier, an independent expert hired by the Court. The report indicated that petitioner was drinking heavily at the time of the offense, noted the mental anxiety of the defendant prior to trial, considered the medications that the defendant was taking to deal with depression, and further considered the defendant's history of alcohol abuse. The expert evaluation offered no evidence of mental disease or defect or diminished capacity of the defendant.

“5. Pretrial investigation was made of a Dr. Larimore concerning a claim by petitioner that he had suffered head trauma in an automobile accident. Dr. Larimore's deposition was taken. In addition, investigation was made of a Dr. Coleman at Woodland Community Hospital. All of this information was made available to the jury in this cause. Depositions of Dr. Larimore and Dr. Coleman were played to the jury.” (C.R. on remand 192.)

The circuit court's findings of fact are supported by the record. Additionally, we note that Payne's trial counsel, Gregory A. Nichols, testified that at the time he requested a mental evaluation for Payne he believed that Payne was competent to stand trial. Recognizing, however, that Payne had had an unusual childhood and that there were perhaps underlying mental problems, he made the request to determine their influence on his adult behavior. Payne was evaluated by a licensed mental health expert. None of the expert's opinions included a finding that Payne, as he argued in his Rule 32 hearing, suffered extreme mental and emotional duress at the time of the offense or that he was incapable of appreciating the criminality of his conduct. Thus, Payne has not shown that his trial counsel's failure to present expert testimony on his mental health was outside “the wide range of reasonable professional assistance.” Strickland v. Washington, 466 U.S. 668, 669, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Additionally, Payne had not shown that additional testimony about his mental health would have changed the outcome of his trial.

As we noted in Samra v. State, 771 So.2d 1108, 1120 (Ala.Cr.App.1999):

“ ‘A distinction must be made between a failure to investigate the mental history of an accused and the rejection of insanity as a defense after proper investigation. “An attorney with considerable experience in criminal matters and, therefore, in dealing with a wide range of people ... may be presumed to have some ability to evaluate the mental capacity of his client.” United States ex rel. Rivera v. Franzen, 594 F.Supp. 198, 202 (N.D.Ill.1984). “As a practical matter, when deciding whether to present an insanity defense, the criminal defendant's lawyer is truly the final psychiatrist. It is not the role of a court to doubt his judgment.... Trial counsel may not reject the insanity defense “ ‘without pursuing the basic inquiries necessary to evaluate its merits intelligently.’ ” Rivera, 594 F.Supp. at 203. See also Martin v. Maggio, 711 F.2d 1273, 1280 (5th Cir.1983), rehearing denied, 739 F.2d 184 (5th Cir.), cert. denied, 469 U.S. 1028, 105 S.Ct. 447, 83 L.Ed.2d 373 (1984); Pickens v. Lockhart, 714 F.2d 1455, 1467 (8th Cir.1983) (“It is only after a full investigation of all the mitigating circumstances that counsel can make an informed, tactical decision about which information would be the most helpful to the client's case”).' “ Dill v. State, 484 So.2d 491, 498 (Ala.Cr.App.1985) (emphasis original). See also Roy v. State, 680 So.2d 936 (Ala.Cr.App.1996).”

Because Payne has failed to establish that his ineffective-assistance-of-trial-counsel claim is meritorious, he has failed to prove by a preponderance of the evidence that his appellate counsel was ineffective for failing to present this claim.

We find absolutely no support for Payne's contention that he was denied effective assistance by his trial counsel because counsel's funding was inadequate. Payne's trial counsel stated: “I would have done the same job for [Payne] regardless of whether I had been well compensated or not.” (R. on return to remand 84.) Payne did not offer any evidence to refute this statement. Thus, we reject Payne's claim with regard to his trial counsel's performance and, accordingly, conclude that Payne's appellate counsel was not ineffective. See McNair v. State, 706 So.2d 828 (Ala.Cr.App.1997), cert. denied, 523 U.S. 1064, 118 S.Ct. 1396, 140 L.Ed.2d 654 (1998); and Hallford v. State, 629 So.2d 6 (Ala.Cr.App.1992), cert. denied, 511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 491 (1994). Next Payne contends that his appellate counsel was ineffective for failing to raise a claim that his trial counsel was ineffective in presenting mitigation evidence during the sentencing phase of his trial. “In reviewing this claim, we are guided by the following principles. In Daniels v. State, 650 So.2d 544, 568-70 (Ala.Cr.App.1994), cert. denied, 514 U.S. 1024, 115 S.Ct. 1375, 131 L.Ed.2d 230 (1995), we stated the following regarding a claim that trial counsel had been ineffective during the penalty phase of a capital murder trial: “ ‘In determining whether Haas was ineffective at original sentencing, ... we recognize that the “ ‘ “two-pronged Strickland analysis applies whether the ineffectiveness complained of occurred in the defendant's trial or in a subsequent adversarial sentencing proceeding. However, in a challenge to the imposition of a death sentence, the prejudice prong of the Strickland inquiry focuses on whether ‘the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.’ ”

“ ‘ Stevens v. Zant, 968 F.2d 1076, 1081 (11th Cir.1992) (citation omitted), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed.2d 695 (1993). We also recognize that

“ ‘ “[w]hile ‘[i]t should be beyond cavil that an attorney who fails altogether to make any preparations for the penalty phase of a capital murder trial deprives his client of reasonably effective assistance of counsel by any objective standard of reasonableness,’ see Blake v. Kemp, 758 F.2d 523, 533 (11th Cir.1985), it is unclear how detailed an investigation is necessary to provide a defendant with the effective assistance of counsel. Strickland only requires that counsel's actions fall within the wide spectrum of what can be considered reasonable assistance of counsel.”

“ ‘ White v. Singletary, 972 F.2d 1218, 1224 (11th Cir.1992). The principles regarding an attorney's duty to conduct an investigation into mitigating evidence have been summarized as follows:

“ ‘ “An attorney has a duty to conduct a reasonable investigation, including an investigation of the defendant's background, for possible mitigating evidence. Thompson v. Wainwright, 787 F.2d 1447, 1451 (11th Cir.1986). First, it must be determined whether a reasonable investigation should have uncovered such mitigating evidence. If so, then a determination must be made whether the failure to put this evidence before the jury was a tactical choice by trial counsel. If so, such a choice must be given a strong presumption of correctness, and the inquiry is generally at an end. Funchess v. Wainwright, 772 F.2d 683, 689-90 (11th Cir.1985). If, however, the failure to present the mitigating evidence was an oversight, and not a tactical decision, then a harmlessness review must be made to determine if there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Thus, it must be determined that defendant suffered actual prejudice due to the ineffectiveness of his trial counsel before relief will be granted.” “ ‘ Middleton v. Dugger, 849 F.2d 491, 493 (11th Cir.1988).

“ ‘Applying the foregoing principles to the issue of whether Haas provided effective assistance of counsel at original sentencing, we conclude that the appellant's claim is without merit. Although the defense called only one witness at the sentencing hearing, that witness was Mrs. Hebert, the appellant's mother, who pleaded for the appellant's life. Mrs. Hebert had retained Haas, conferred with him at length, paid all his trial fees, and, by the time of sentencing, had exhausted her funds. The circuit court's sentencing order stated that “it is apparent to the court that [Mrs. Hebert] was devoted to [the appellant].”

“ ‘Since Haas had spoken with Mrs. Hebert about the appellant and had observed by her words and actions that she appeared to be “devoted” to the appellant, we cannot fault Haas for failing to discover the appellant's “traumatic” childhood, in which, according to later testimony by Dr. Herlihy, Mrs. Hebert's “emotional rejection” of her son played a large part. Compare Bertolotti v. Dugger, 883 F.2d 1503, 1520 (11th Cir.1989) (defense counsel held to have provided effective assistance on claim that counsel overlooked or failed to investigate evidence of defendant's traumatic childhood, where counsel interviewed defendant's parents), cert. denied, 497 U.S. 1032, 110 S.Ct. 3296, 111 L.Ed.2d 804 (1990). See also Beets v. Collins, 986 F.2d 1478, 1488-89 (5th Cir.1993) (although counsel did not “conduct a thorough investigation of [the defendant's] medical, mental, and psychological history,” which would have revealed that the defendant “was raised in abject poverty, experienced a debilitating hearing loss, was afflicted with learning disabilities, had received head injuries as a child, and suffers from battered woman syndrome,” the court observed that the defendant never gave her attorney “any hint that she had been abused by previous husbands or boyfriends. Neither [the defendant] nor any other member of her family ever conveyed to [the attorney] any information giving him reason to believe that she had a history of being physically abused.”), rehearing granted, 998 F.2d 253 (5th Cir.1993); Cantu v. Collins, 967 F.2d 1006, 1016 (5th Cir.1992) (despite fact that counsel failed to present evidence of defendant's “low IQ, emotional immaturity, troubled youth, trauma as a result of his parents' divorce, and appearance of neglect,” court found that counsel had “thoroughly investigated these claims, consulting with his client as well as [client's] father and brother for possible mitigating evidence,” and the claims were not supported in fact), cert. denied, [509] U.S. [926], 113 S.Ct. 3045, 125 L.Ed.2d 730 (1993); Wilkerson v. Collins, 950 F.2d 1054, 1064-65 (5th Cir.1992) (although attorney failed to discover or develop mitigating evidence that defendant had a “deprived family background,” and psychological and mental “limitations,” the court observed that “trial counsel interviewed [the defendant], his mother, and other relatives. Neither [the defendant] nor his relatives were able to supply the names of potential defense witnesses. Investigation did not reveal reason to suspect that [the defendant's] mental capacity was in any fashion impaired.”), cert. denied, [509] U.S. [921], 113 S.Ct. 3035, 125 L.Ed.2d 722 (1993); Thompson v. State, 581 So.2d 1216, 1238 (Ala.Cr.App.1991) (upholding circuit court's finding that counsel, who presented only the testimony of defendant's mother at sentencing, was not ineffective for failing to present evidence of the defendant's violent family background, addiction and substance abuse), cert. denied, 502 U.S. 1030, 112 S.Ct. 868, 116 L.Ed.2d 774 (1992).

“ ‘We hold that Haas was not ineffective at the original sentencing proceeding.’ “650 So.2d at 568-70 (emphasis omitted).

“Furthermore, counsel is not necessarily ineffective simply because he does not present all possible mitigating evidence. ‘Although the failure to conduct a reasonable investigation of possible mitigating evidence may constitute ineffective assistance of counsel, “counsel may make a reasonable strategic judgment to present less than all possible available evidence in mitigation.” Stanley v. Zant, 697 F.2d 955, 965 (11th Cir.1983), cert. denied, 467 U.S. 1219, 104 S.Ct. 2667, 81 L.Ed.2d 372 (1984).’ Lundy v. State, 568 So.2d 399, 403 (Ala.Cr.App.1990).

“ ‘When a decision to not put on certain mitigating evidence is based on a “strategic choice,” courts have always found no ineffective performance. Moore v. Maggio, 740 F.2d 308 (5th Cir.1984), cert. denied, 472 U.S. 1032, 105 S.Ct. 3514, 87 L.Ed.2d 643 (1985); Lowenfield v. Phelps, 817 F.2d 285 (5th Cir.1987), aff'd, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988). No two lawyers would try a case exactly the same way.

“ ‘We cannot say that counsel's performance is deficient because he failed to call more witnesses at the sentencing phase. “The decision not to call a particular witness is usually a tactical decision not constituting ineffective assistance of counsel.” Oliver v. State, 435 So.2d 207, 208 (Ala.Cr.App.1983). At the hearing on the Rule 32 petition, the appellant's mother, two of his aunts, an uncle, and several old friends offered character testimony. Most of these witness did not have contact with the appellant near the time of the murder. There has never been a case where additional witnesses could not have been called. The appellant presented relatives and personal friends who, upon interview, were found to testify on his behalf. We refuse to set a standard that a court may be reversed because it did not hear unoffered testimony from still more friends and relatives. We also refuse to say that a member of the bar is guilty of ineffectiveness for not calling every witness and friend who was willing to testify. To hold otherwise would clog an already overburdened system with repetitious testimony. The appellant has failed to satisfy either prong of the Strickland test.’ “ State v. Tarver, 629 So.2d 14, 21 (Ala.Cr.App.1993).

“ ‘With regard to McKinnon's representation of Morrison at the punishment-fixing and sentencing phases of his trial, we find that the observations of the court in Clark v. Dugger, 834 F.2d 1561, 1568 (11th Cir.1987), are appropriate:

“ ‘ “The failure to conduct a reasonable investigation of possible mitigating evidence may render counsel's assistance ineffective. Lightbourne v. Dugger, 829 F.2d 1012, 1025 (11th Cir.1987); Thompson v. Wainwright, 787 F.2d 1447, 1450 (11th Cir.1986), cert. denied, 481 U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d 825 (1987). ‘After a sufficient investigation, however, “counsel may make a reasonable strategic judgment to present less than all possible available evidence in mitigation.” ’ Lightbourne, 829 F.2d at 1025 (quoting Mitchell v. Kemp, 762 F.2d 886, 889 (11th Cir.1985), cert. denied, 483 U.S. 1026, 107 S.Ct. 3248, 97 L.Ed.2d 774 (1987) and Stanley v. Zant, 697 F.2d 955, 965 (11th Cir.1983), cert. denied, sub nom. [ Stanley v. Kemp,] 467 U.S. 1219, 104 S.Ct. 2667, 81 L.Ed.2d 372 (1984)). In essence, ‘counsel has no absolute duty to present mitigating character evidence.’ Id. (quoting Mitchell, 762 F.2d at 889). [Counsel] conducted a reasonable investigation to determine the availability of appropriate mitigating evidence and simply made a tactical decision to not present some of the available mitigating evidence. In this circuit, [counsel's] decision is ‘accorded a strong presumption of correctness which is “virtually unchallengeable.” ’ Id. (quoting Sinclair v. Wainwright, 814 F.2d 1516, 1519 (11th Cir.1987) and Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984)). Given the alternatives ... faced, [counsel's] handling of the penalty phase was not unreasonable. See Stanley, 697 F.2d at 958-70. We therefore conclude that there has been no showing of ineffective assistance nor prejudice to defendant in the way trial counsel prepared and tried [this] case.” ' “ Morrison v. State, 551 So.2d at 445.

“ ‘We find that the holding of Fleming v. Kemp, 748 F.2d 1435, 1452 (11th Cir.1984), cert. denied, 475 U.S. 1058, 106 S.Ct. 1286, 89 L.Ed.2d 593 (1986), is applicable here:

“ ‘ “In summary, we are not persuaded by petitioner's argument that ... [defense counsel] rendered him ineffective assistance of counsel. Petitioner's examples of professional dereliction dissolve away under close scrutiny, leaving at best a handful of colorable claims. A defense attorney is not ineffective solely because his client is sentenced to death. ‘Intrusive post-trial inquiry into attorney performance,’ such as that which has been required in this case, may ‘dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client.’ Strickland v. Washington, [466] U.S. at [690], 104 S.Ct. at 2066. Counsel's performance, here, ensured a fundamentally ‘fair trial’ which ‘produced a just result.’ Id. at [686], 104 S.Ct. at 2064. There is no reason to set aside petitioner's conviction or his penalty on account of the representation he received.” ' “ Bell v. State, 518 So.2d 840, 847 (Ala.Cr.App.1987), cert. denied, 486 U.S. 1036, 108 S.Ct. 2024, 100 L.Ed.2d 611 (1988).” Pierce v. State, [Ms. CR-96-1668, March 2, 1999] --- So.2d ----, ---- (Ala.Cr.App.1999).

With the foregoing principles in mind, we conclude that the circuit court adequately assessed and rejected the evidence presented to support Payne's contention that his trial court's failure to investigate and to present adequate mitigation evidence during the sentencing phase of his trial and we adopt the following portion of the order: “3. More than a year before the trial, the attorneys for petitioner requested extra-ordinary expenses for an investigator to assist them in the preparation of the case. The request was made by motion filed by trial counsel which states: “ ‘Counsel is required to obtain information relative to Mr. Payne's medical history, educational history, employment, training history, family and social history, religious and cultural influences. Counsel must direct an investigator to obtain records from all doctors, hospitals, schools, employers, interview people with knowledge of the aspects of Mr. Payne's background.’ “This motion was granted by Judge Riley. Johnny NeSmith, a retired agent of the Alabama Bureau of Investigation was hired to assist petitioner in his trial. NeSmith contacted witnesses from as far away as Mobile and actually testified at petitioner's trial. Mr. NeSmith spent in excess of 50 hours investigating witnesses and leads in the case. “.... “6. Trial counsel adequately gathered information from petitioner's family prior to trial. This is readily apparent from the amount of background material on the petitioner's life which was presented to the jury. Petitioner's sister and mother actually testified on behalf of the petitioner at trial. A claim of petitioner is that trial counsel failed to establish a ‘rapport’ with the petitioner's family members, and that this failure led to the family failing to give full assistance to the defense and further resulted in mother and sister testifying in an ineffective manner. The argument appears to assume that the attorneys had some sort of duty to rehearse or ‘coach’ the witnesses before trial. It can only be speculated that had such rehearsing and coaching occurred and the outcome of the trial remained the same, then the petitioner would allege such inducement by the attorneys as ineffectiveness because (it would be alleged) everyone knows that spontaneous and unrehearsed testimony is far more emotional and effective than rehearsed or coached testimony. As to the lack of ‘rapport’ affecting the trial defense, petitioner's attorney handling the Rule 32 petition questioned trial counsel about a remark made by the District Attorney in closing arguments referring to the zealous defense of Payne by his family. The District Attorney's characterization of this defense as a ‘conspiracy’ among the family to protect Payne certainly belies the allegation that there was no cooperation between the family and petitioner's defense. “It is apparent to this Court that arguments of Rule 32 counsel concerning the relationship between trial counsel and the petitioner's [family] is hindsight based upon the results of the trial. This may be fueled by the family's natural desire to come to the aid of the petitioner. From the testimony at trial and from the Court's own observation of the petitioner's family and trial counsel during trial, the Court finds there was no deficiency on the part of trial counsel. “.... “8. This Rule 32 hearing was far more remarkable for what evidence was not brought out than what evidence was produced. The appellate counsel, whose performance is alleged to have been ineffective, was not called as a witness. The other trial counsel, Robert Sapp, was not called as a witness even though Mr. Nicholas stated it was Sapp who handled the mental/psychological part of the pretrial motions while Nicholas handled the change of venue motion. Nicholas was called by the petitioner to testify as to what actions were taken by trial counsel, even though Nicholas testified that he has since lost his trial file due to changes of residences and law offices since the trial. No attempt was made to ascertain or demonstrate any deficiencies in counsel performance by Sapp. Payne himself, although present in Court did not testify as to his relationship and preparations with his trial counsel, nor as to any deficiencies in his counsel's performance. “9. Much of the focus of petitioner's Rule 32 counsel was criticism of trial counsel performance in eliciting mitigating evidence at trial. Rule 32 counsel's complaint deals not so much with the fact that certain evidence was not brought out, but that it was not presented in precisely the same manner, or in the same detail as Rule 32 counsel would have liked. This criticism by Rule 32 counsel extends even to the fact that trial counsel did not ask exactly the same questions which Rule 32 counsel now says should have been asked (R. 168.) Rule 32 counsel further criticizes trial counsel for not asking the same witnesses the same questions in the penalty phases as was asked in the guilt phase. This, Rule 32 counsel asserts ‘failed to highlight’ (R. 187.) certain information already heard and considered by the jury. Rule 32 counsel at one point in the evidentiary hearing claims ineffective assistance of appellate counsel for failing to reinterview every defense witness at trial in order to determine whether their trial testimony was insufficiently ‘vivid’ or ‘compelling’ as a result [of] the defense counsel's failure to establish the proper degree of ‘rapport’ which Rule 32 counsel feels necessary. “The decisions as to whether or not to present evidence of mental impairment, alcohol abuse by the defendant, prior history of family disfunction, evidence of the offense being committed by another and non-family testimony as mitigation, were all trial strategy decisions based upon the investigations of the attorneys and the investigator, discussions and conferences with the family members and the evidence which counsel knew that the prosecution possessed.” (C.R. on remand 191-96.)

The evidence presented by Payne at the evidentiary hearing was merely an attempt to establish an ineffective-assistance-of-trial-counsel claim by calling the same defense witnesses presented at trial and arguing that Payne's counsel should have elicited more elaborate testimony from these witnesses. The evidence at the hearing indicated that Payne's trial counsel established a good relationship with Payne's family members. Merely because trial counsel did not present the evidence as Payne now believes he should have presented does not establish that trial counsel was ineffective. To so conclude would require us to engage in hindsight and speculation, which we will not do.

Additionally, Payne argues that trial counsel should have presented evidence of his conformity to confinement while he awaited trial. We note, however, that the jail records produced at the hearing do not support such a finding. While incarcerated awaiting his trial, Payne violated jail policies and rules. Because the evidence did not support a finding that Payne's behavior while he was incarcerated provided mitigation evidence and trial counsel decided not to present the evidence for that very reason, Payne has failed to establish that his trial counsel was ineffective.

Furthermore, we reject Payne's argument that trial counsel presented insufficient mitigation evidence of his history of alcohol abuse and drug abuse and his alleged intoxication at the time of the offense, of physical and sexual abuse within his family, and of his mental and emotional disabilities. Numerous witnesses testified during the guilt phase about Payne's consumption of alcohol on the day of the offense and about the various forms of physical abuse that Payne suffered and witnessed. Additionally, evidence was presented from Payne's physicians concerning his mental and emotional faculties and the effects of drug and alcohol consumption of his faculties. That evidence was also placed before the jury during the penalty phase. In light of the evidence presented during the guilt phase and the penalty phase of the trial, we conclude that Payne's trial counsel was not ineffective for not presenting additional evidence. Thus, appellate counsel was not ineffective for not raising such a claim.

V.

In conducting our review on return to remand, we note that we inadvertently failed to address Payne's claims that he was denied due process and a right to effective assistance of counsel by the state's “withholding of probative evidence from the psychiatrist ordered to evaluate the accused” and “when the sentencing court rested its decision in part on erroneous, and/or inaccurate, incomplete information in the PSI (presentence investigation report) which the petitioner had no meaningful opportunity to explain or deny.” (C.R.351, 354.) These claims are procedurally barred by Rule 32.2(a)(3) and (5), Ala.R.Crim.P., because they could have been, but were not, raised and addressed at trial or on appeal.

For the foregoing reasons, the circuit court did not abuse its discretion in denying Payne's postconviction petition. AFFIRMED.

 

 

 
 
 
 
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