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McGriff v. State
Citations: 908 So. 2d 961; 2000 Ala. Crim. App. LEXIS 121Docket: CR-97-0179
Court: Court of Criminal Appeals of Alabama; September 29, 2000; Alabama; State Appellate Court
Dennis Demetrius McGriff was convicted of murdering Michael McCree by shooting him from a moving vehicle, constituting a violation of Alabama law (13A-5-40(a)(18)). The jury found that McGriff had knowingly created a significant risk of death to others, recommending a death sentence, which the trial court accepted. On October 22, 1996, McGriff, along with Ebra 'Yetta' Hayes and Gabriel Knight, drove past a gathering of about 30 to 40 people in Ashford. McGriff leaned out of the car and fired three shots, one of which fatally struck McCree in the back. Coroner testimony confirmed that the bullet entered McCree’s chest cavity, damaging vital organs. Witnesses Jeffery McCree, Michael’s brother, and Chance Jones testified that they were present during the shooting. They described how McGriff fired from a green car and Jeffery saw his brother collapse after the shots. Police later identified the green car involved and recovered a .44 caliber revolver, which forensic tests linked to the murder. During transport to jail, McGriff admitted to shooting McCree but claimed he did not intend to kill him, stating his aim was at a nearby parked car. At trial, McGriff acknowledged firing the fatal shot. Counsel asserted in the opening statement that McGriff fired the shot that killed McCree, but argued it was not a capital offense due to a lack of intent to kill. McGriff claimed he aimed at a car near which McCree stood and presented witnesses who testified about a prior confrontation between McGriff and McCree, where McCree and two others allegedly chased McGriff and his companions, throwing gasoline bombs at their car approximately five hours before the shooting. As McGriff was sentenced to death, the court is required to review the trial record for any plain error as stipulated by Rule 45A, Ala. R.App. P. This rule permits the Court of Criminal Appeals to identify and act upon plain errors that adversely affect the appellant's substantial rights, regardless of whether these errors were noted during the trial. Plain error is defined as an obvious mistake that undermines the fairness or integrity of judicial proceedings, necessitating careful scrutiny. The court has emphasized the need for sparing use of the plain error exception to prevent miscarriages of justice. McGriff's appeal includes a claim that the trial court improperly denied his application for youthful offender status, arguing that the probation officer's report used in the decision was inadequate because it lacked a personal interview with him. Under the Youthful Offender Act, individuals charged with crimes committed during their minority may be considered for youthful offender status if certain criteria are met, particularly if the crime involves moral turpitude or carries a potential sentence of one year or more. The Alabama Supreme Court clarified that trial courts are not required to order a comprehensive investigation by a probation officer for every application for youthful offender status. While the statute suggests that investigations may be necessary in some cases, the court interpreted this to mean that referrals for such investigations are at the discretion of the trial court, rather than mandatory. The court emphasized that sufficient facts for determining a defendant's eligibility for youthful offender treatment may often be available without a probation officer's report, considering factors like the nature of the crime and prior convictions. In a specific case involving McGriff, the trial court did order an investigation into his background and held a hearing where it was noted that McGriff had previously applied for youthful offender treatment but had been denied. The trial court recognized McGriff's age as a mitigating factor but ultimately denied his application due to his offense occurring shortly after his release from jail. The court's decision was based on its discretion and could only be overturned if shown to be arbitrary or lacking an appropriate investigation or examination of the defendant. In Burks v. State and other cited cases, it is established that trial courts are not mandated to refer every case to a probation officer for investigation or to hold formal hearings to determine youthful offender status. The essential requirement is that the trial court must conduct a sufficient examination of the defendant to intelligently decide on eligibility for treatment as a youthful offender, taking into account the specifics of the case. In McGriff’s situation, despite not holding a formal evidentiary hearing, the trial court adequately considered the circumstances and the serious nature of the charges in its denial of youthful offender treatment, which was deemed not an abuse of discretion. McGriff also contended that the trial court wrongly denied his motion for a continuance due to the late disclosure of a witness statement. This statement, made by a State’s witness, was provided to McGriff one day before trial, prompting his request for more time to investigate. The trial court held a hearing but ultimately denied the continuance, and McGriff could not demonstrate how this late disclosure prejudiced his defense. The record indicated that McGriff had ample opportunity to challenge the witness's testimony, and the State's compliance with discovery rules was adequate, as the defense was given access to the statement six days prior to trial. Thus, the trial court's decision was upheld, as there was no shown prejudice to McGriff's case. Defense counsel cross-examined a witness regarding the delay in reporting statements made by McGriff after a shooting, but there was no evidence that McGriff suffered prejudice from this late disclosure. Alabama law generally disfavors continuances, and a conviction reversal due to a trial judge's refusal to grant a continuance requires clear proof of judicial discretion abuse. McGriff claimed the trial court erred by not quashing the jury venire due to alleged underrepresentation of blacks. Out of 150 jurors, 29 were black, but after strikes, the venire comprised 40 individuals: 36 white, 3 black, and 1 Hispanic. The defense did not provide evidence to support the claim of underrepresentation. Alabama case law specifies that to quash a jury venire, three factors must be proven: the group must be distinctive, the representation must be unfair compared to community demographics, and the underrepresentation must be due to systematic exclusion. McGriff did not demonstrate these factors. Additionally, he argued for jury sequestration based on Rule 19.3, which required consent from all parties for separation. The rule had been amended to allow trial courts discretion to permit jury separation in capital cases, creating a presumption of no prejudice from such separation. McGriff acknowledged relevant case law indicating the amendment to Alabama Code supersedes the previous rule. Section 12-16-9 grants trial courts discretion to permit juries to separate during felony trials or to require sequestration. A motion for separation or sequestration must not be made in the jury's presence, and the jury must not know which party requested it. McGriff contends that prior court rulings in Smith and Stewart contradict the established history of Rule 19.3 and 12-16-9, but the Alabama Supreme Court has affirmed that the amended 12-16-9 governs these matters, and this court is bound by that precedent unless the law changes. Thus, the trial court's decision to allow jury separation without party consent was correct. Additionally, McGriff claims that the prosecution violated Batson v. Kentucky by excluding jurors based on race and gender. Batson prohibits striking jurors solely based on race, a principle later extended to gender discrimination in J.E.B. v. Alabama. McGriff asserts that the State used 9 out of 14 peremptory strikes against males, constituting gender discrimination. However, he did not object to these strikes on gender grounds during the trial, limiting the review to potential plain error. The prosecution's strike list did not specify gender or race, but the venire list did. Both the prosecution and McGriff used a majority of their strikes against male jurors. The court's prior ruling in Perkins emphasizes that plain-error analysis applies only if there is evidence of purposeful discrimination. The burden lies with the party making a Batson challenge to prove a prima facie case of discrimination, and without such proof, the prosecution is not obligated to justify its peremptory strikes. In Ex parte Branch and Ex parte Bird, the court outlined factors relevant for establishing a prima facie case of gender discrimination in jury selection, which include: (1) jurors sharing only the characteristic of gender, (2) patterns of strikes against one gender, (3) the state's past conduct regarding peremptory challenges, (4) the nature of questions posed during voir dire, (5) the treatment of jurors with similar characteristics, and (6) the separate examination of venire members. The court may also consider whether the state predominantly used strikes against one gender. Upon reviewing the case record, the court found no evidence that the male jurors struck by the State were discriminated against solely based on gender. The prosecution's voir dire questioning was deemed thorough for both genders, and no evidence was presented to suggest a history of discriminatory peremptory challenges by the prosecutor. The mere number of male jurors struck was insufficient to establish a prima facie case of gender discrimination. Additionally, McGriff's claim of racial discrimination under Batson was addressed. The prosecution struck a black juror, A.M., based on a prior conviction for resisting arrest. The defense argued that the conviction was too old to warrant exclusion. The trial court requested the prosecution's justification for the strike, which was based on the juror's criminal history. The court found no violation of J.E.B. or Batson principles based on the evidence presented. The trial court upheld the prosecution's race-neutral justification for peremptory strikes and denied the Batson motion, affirming that peremptory strikes based on a juror's criminal record do not violate Batson principles, referencing Darby v. State. Appeals of Batson rulings are subject to a "clearly erroneous" standard, with significant deference given to trial courts, as established in cases like Davis v. State. McGriff's motion requesting disclosure of potentially favorable information about prospective jurors was denied by the trial court, which reasoned that placing the burden on the state to disclose such information would be impracticable. The trial court's decision was supported by precedent indicating that the state has no obligation to reveal jurors' criminal records, as these do not constitute discoverable evidence under Brady. Multiple jurisdictions have similarly concluded that defendants lack an absolute right to access the criminal records of jurors or witnesses, affirming the trial court's discretion in denying such requests. In *State v. Childs*, the court ruled that defendants have no right to access potential jurors' criminal records unless mandated by statute or court rules. The state is not obligated to disclose information accessible to the appellant from other sources, such as during voir dire. The trial court denied McGriff's request for potential jurors to fill out a questionnaire, citing concerns about jurors' reliability in answering questions outside the courtroom. The court affirmed that there was no abuse of discretion in this decision. Furthermore, McGriff contested the voluntariness of his police statement, claiming it should be suppressed. For such statements to be admissible, the state must demonstrate by a preponderance of evidence that they were voluntary. The trial court's determination on this matter is upheld unless it contradicts the evidence or is clearly erroneous, and involuntary statements are defined as those coerced by force or promises of leniency. In Bram v. United States, the Supreme Court emphasized that a confession must be voluntary, requiring the defendant to have the capacity to exercise free will. Coercion or inducement that impairs this capacity renders a confession involuntary and inadmissible. The determination of voluntariness involves considering the totality of circumstances, a principle upheld by both the U.S. Supreme Court and Alabama courts. At a suppression hearing regarding McGriff's confession, Investigator Richard St. John testified that McGriff was properly informed of his Miranda rights and was neither threatened nor coerced, stating that McGriff confirmed his willingness to speak. Investigator Donald Valenza also affirmed that McGriff waived his rights and voluntarily provided a statement, although no signed Miranda form was present due to the circumstances of the arrest. The recorded interview indicated no coercion, and the court found no substantial evidence suggesting that the trial court's denial of the suppression motion was erroneous. Furthermore, even if the confession were deemed involuntary, any error from its admission would be considered harmless. McGriff's defense asserted he shot McCree without intent to kill, paralleling his prior statement. Any potential error in admitting this statement into evidence was deemed harmless beyond a reasonable doubt, referencing Arizona v. Fulminante and other cases. McGriff contended the trial court erred by allowing testimony implying he had a prior criminal record, specifically during Investigator Donald Valenza's questioning. Valenza's responses indicated he had previously testified in the current case, clarifying any confusion about his prior involvement. McGriff's assertion that this testimony suggested a prior record was unsupported and misrepresented the record. Additionally, McGriff claimed error when the trial court informed the jury about evidence of his guilt not presented at trial, advising them to avoid media coverage related to the case. Jurors were instructed to avoid media regarding the case, as they might encounter unauthorized information. During jury instructions, the court indicated that they could request to listen to the defendant's statement to the Sheriffs Department, but only that statement would be played in the presence of the court reporter. The absence of objections to these comments by defense counsel suggests that they were not deemed prejudicial. The court concluded that no plain error occurred due to the comments made during instructions. Additionally, McGriff contended that the trial court erred by preventing defense witness Frederick Shaw from testifying about the community reputation for violence of individuals McCree, Walker, and Thompson. The trial judge initially excluded this testimony due to a lack of evidence supporting a self-defense claim. However, during Shaw’s testimony, he referenced the reputations of these individuals for violence when explaining his fear during an encounter with them. The prosecutor objected to this line of questioning, but the defense argued that the prosecutor had opened the door to the topic. Ultimately, the court's initial exclusion of the reputation evidence and the subsequent objections highlighted the tension regarding the admissibility of character evidence in the trial. The court overruled an objection regarding the admission of testimony about the reputations of Jerry Thompson and Michael McCree, allowing evidence of their known violent behavior. Witness testimony indicated fear of Thompson due to his reputation for violence, while there was uncertainty regarding McCree, who was present but not perceived as a threat. The witness had observed McCree with Thompson and another individual, Scat, multiple times, often in social settings where confrontations occurred, primarily between Thompson and Scat. Additionally, defense witness Frederick Shaw testified about why he and McGriff did not report a car chase and subsequent gas bombings to the police, citing confusion and fear. Shaw admitted to being scared and observed that McGriff exhibited similar fear and frustration. The court found no reversible error in allowing Shaw's testimony or the admission of evidence about their decision not to involve law enforcement. Lastly, McGriff contended the trial court improperly allowed hearsay evidence, defined under Rule 801(c) as statements not made by a declarant while testifying, that were presented to prove the truth of the matter asserted. The implications of these claims are significant in assessing the admissibility of evidence and the trial's integrity. Hearsay evidence may be deemed harmless if there is substantial evidence demonstrating guilt or if no objection was raised at the time of admission, provided it did not infringe on the appellant's substantial rights. In this case, McGriff contends that allowing Evelyn Hayes, the mother of his codefendant, to testify about her daughter's statement to the police was erroneous and constituted prejudicial hearsay. Although defense counsel did not object immediately to this testimony, an objection was raised later. The court noted that while a nontestifying codefendant's statement implicating the accused is typically inadmissible and violates confrontation rights, any error in this instance was ultimately deemed harmless beyond a reasonable doubt. The court referenced precedents indicating that errors regarding confrontation rights can be classified as harmless, allowing for the affirmation of a conviction or sentence even after identifying an error. The harmless error rule is applicable in capital cases as well. A constitutional error can be considered harmless if the state proves beyond a reasonable doubt that it did not affect the verdict or sentence, as per Chapman. Under Ala. RApp. P. 45, the state must show that the error did not or likely did not injuriously affect the appellant’s substantial rights. The harmless error rule aims to prevent the overturning of convictions for minor errors unlikely to alter trial outcomes. The discussed case concluded that the error did not contribute to the sentence nor harm the appellant's substantial rights. Citing Davis v. State, the court emphasized that a valid conviction should not be overturned if the error is harmless beyond a reasonable doubt. Plain error is only recognized when an obvious error significantly undermines the fairness of judicial proceedings, as noted in Bush v. State. The U.S. Supreme Court has acknowledged that many errors, including wrongfully admitted evidence at sentencing, can be harmless. In this case, Mrs. Hayes did not specify which defendant took the gun, and it was uncontested that McGriff fired the fatal shot. The only issue was McGriff’s intent to kill, and the evidence regarding the gun’s retrieval did not prejudice McGriff sufficiently to warrant a reversal. Additionally, McGriff argued it was erroneous to allow Corporal Flowers to testify about a conversation with Jerry Thompson concerning the shooting. During cross-examination, Flowers stated that Thompson mentioned only that "Mick is dead." The defense objected, claiming hearsay, but the court allowed the testimony, concluding it was relevant to the case. Corporal Flowers testified that upon arrival at the scene, an individual informed him that "Mike is dead," later identifying the victim as Michael McCree and the alleged shooter as Dennis McGriff, Sara’s nephew. Flowers provided a description of a green Nissan vehicle with three occupants, which he broadcasted. This testimony was deemed cumulative, as it mirrored other witness accounts, including McGriff's own statements to law enforcement. The defense argued the evidence was inadmissible hearsay; however, its admission was considered harmless error, supported by precedent that cumulative evidence does not typically affect the outcome. The only contested point was McGriff's intent to kill McCree, which Flowers's testimony did not clarify, thus rendering any potential error harmless beyond a reasonable doubt. Additionally, McGriff challenged the trial court's decision to allow Officer Forehand to be questioned about McGriff's direction when arrested. Forehand confirmed he was aware of statements given by McGriff and the driver, Yetta Hayes, but noted neither stated they were heading to the police station. There were no objections to this line of questioning, leading to a review for plain error only. The defense effectively rehabilitated the witness's testimony regarding the absence of such a question, mitigating any potential issue. Errors in the trial proceedings were deemed harmless due to the defense counsel's actions, as established in Chapman v. California. Testimony from three witnesses contradicted McGriff’s claim that he was en route to the police station when arrested, indicating instead that Officer Forehand pursued the vehicle he was in. McGriff contended that the trial court failed to ensure the full transcription of the jury instructions, specifically regarding the indictment charging him with capital murder. He argued that the absence of this transcript inhibited appellate review. However, the court found McGriff's argument lacking merit because he did not identify any transcription deficiencies during the trial or in his motion to supplement the record, which focused on unrelated documents. The court noted that it is the appellant’s responsibility to highlight record deficiencies promptly according to the Rules of Appellate Procedure. The court's review was constrained to assessing whether any plain error occurred, as the indictment and jury instructions were part of the appeal record. The indictment charged McGriff with intentionally causing the death of Michael McCree using a .44 caliber revolver from a vehicle, violating Alabama law. The trial court provided proper jury instructions on the elements of capital murder, and appellate review of capital cases is conducted under a stricter standard, utilizing the plain-error doctrine to identify any prejudicial errors in the record. An automatic appeal is mandated in death penalty cases, requiring a thorough review for plain error and ensuring that indigent appellants receive a sufficiently complete record for proper appellate consideration. The failure of a court reporter to transcribe the indictment reading is not grounds for denying review, as there is no evidence of prejudice to the defendant, McGriff, and the indictment was indeed read to the jury. McGriff's claims regarding Alabama's statutory cap on attorney compensation in capital cases have been consistently rejected by the courts, citing concerns related to the separation of powers, just compensation, effective assistance of counsel, and Equal Protection rights. Recent legislative changes under the “Investment in Justice Act of 1999” have increased compensation rates for attorneys representing indigent defendants, significantly raising the hourly rates and removing limits on capital case compensation. Additionally, McGriff contends that the prosecutor improperly introduced victim impact evidence during the guilt phase, specifically details about the victim's marital status and child. However, because there was no objection during the trial, the issue is reviewed for plain error. While the testimony about the victim's family may have been irrelevant at that stage, it did not constitute reversible error based on precedent from the Alabama Supreme Court. Prosecutors are warned that introducing victim impact evidence during the guilt phase of a capital murder trial can lead to reversible error if it distracts the jury from its duty to determine the defendant's guilt based solely on admissible evidence and the law. However, in this case, despite the improper admission of certain testimony from the victim’s husband, it did not deny Rieber a fair trial. The court presumes jurors use common sense and did not find that the testimony regarding the victim’s individuality, while inadmissible, constituted plain error as it was a minor part of the trial transcript. Additionally, McGriff contested the trial court's questioning of the victim’s brother about the victim's condition post-shooting. The court noted there was no objection to this testimony, thus limiting the review to plain error. The testimony was relevant and provided context for the jury regarding the circumstances of the shooting, particularly since no crime-scene photographs were available. Even if there was an error in admitting this testimony, it was deemed harmless and did not affect McGriff's substantial rights. Lastly, McGriff claimed insufficient evidence of intent to kill McCree. The court found that ample evidence supported the jury's conclusion of intent, including testimony from a witness who heard McGriff threaten the victim after the shots were fired. McGriff admitted to shooting McCree and expressed indifference about the act. He fired into a crowd, resulting in one individual’s death, claiming those individuals were involved in a prior car chase. Evidence indicated McGriff’s intent to kill, a determination typically reserved for jury consideration. Intent can be inferred from the use of a deadly weapon and surrounding circumstances, supported by case law stating that circumstantial evidence holds equal weight to direct evidence. The jury had sufficient evidence to conclude McGriff intended to kill McCree. McGriff contended that the State did not prove the killing was unprovoked, a point addressed later in the opinion. Additionally, he claimed prosecutorial misconduct during the trial compromised his right to a fair trial. The standard for assessing such misconduct evaluates whether it created enough unfairness to violate due process. The court noted that a failure to object to alleged misconduct could imply that the defense did not perceive the comments as detrimental. The Court's review of prosecutorial comments and conduct is contextual, focusing on their impact during the specific trial rather than in isolation. Previous cases emphasize that jury arguments are considered as part of a heated debate, with jurors typically assessing their value and not allowing them to unduly influence the verdict. Both prosecution and defense are entitled to present their interpretations of the evidence, and they can argue legitimate inferences based on that evidence. Claims of prosecutorial misconduct undergo a harmless error analysis. In this case, the prosecutor's mention of the defense's failure to call a witness, Jerry Thompson, occurred during rebuttal and went unobjected to by the defense, which limits the review to assessing potential plain error. The absence of an objection may indicate that the defense did not view the remarks as significantly detrimental. The court references several precedents to support its analysis and the procedural implications of unobjected comments. Officer Flowers testified about Thompson's actions, stating Thompson admitted to shooting toward a car and into the air, which he explained to police shortly after the incident. This acknowledgment of reckless behavior is not indicative of intentional murder, even though it was considered inexcusable. The prosecutor's comments regarding the absence of certain witness testimonies were a response to defense arguments and did not violate legal standards about commenting on witness availability. Additionally, the prosecutor's interpretation of intent based on the weapon's mechanics—specifically that it required manual action to fire multiple times—was presented without objection, which undermines claims of prejudice. The case references several precedents that support these points, emphasizing the nuances of witness testimony and legal arguments in court. The State's argument did not rely solely on McGriff pulling the gun's hammer back to establish his intent to kill McCree, but considered it circumstantial evidence of intent. Citing *Bishop v. State*, the court noted that intent may be inferred from various circumstances, including the nature of the weapon, prior conduct, and the anticipated outcome of the violent act. The trial court repeatedly instructed the jury that proving capital murder required establishing McGriff's specific intent to kill, which the court found no error in. McGriff contended that the prosecutor's comments regarding potential illicit activities and substantial amounts of cash were improper, suggesting they encouraged jurors to infer guilt based on unrelated conduct. The court, however, determined the prosecutor's inferences were legitimate based on trial evidence, including testimony about the substantial cash possessed by McGriff and others at the time of their arrest. The prosecution aimed to argue that the motive for murder was related to money rather than firebombs. Even if the prosecutor’s remarks were questionable, the court concluded they did not significantly compromise the fairness of McGriff's trial. Additionally, McGriff argued that the prosecutor improperly introduced penalty-phase issues during the guilt phase. Since no objections were raised during the trial, the court applied a plain-error analysis to these claims. Under the plain-error rule, a lack of appropriate objection diminishes claims of prejudice. Relevant case law includes Ex parte Kennedy and Ex parte Smith. During the guilt phase of a capital trial, punishment should not be a consideration, as established in Berard v. State and McNair v. State. Although the prosecutor used a metaphor when discussing sentencing, it was interpreted as an appeal for law enforcement, which is a permissible argument. McGriff contends the prosecutor engaged in misconduct by labeling him a coward on multiple occasions. However, the court noted that comments on a defendant's character are common in legal proceedings, citing numerous past cases where character references did not lead to reversible error. The remarks made were supported by McGriff's conduct, which included firing a gun from a moving vehicle rather than confronting the victim directly, actions consistent with the prosecutor's characterization of cowardice. F. McGriff alleges prosecutorial misconduct during the closing argument of the guilt phase, claiming that the prosecutor referenced facts not in evidence. However, after thorough review, it was determined that any questionable comments were either inadvertent and did not affect the verdict, or were valid inferences from the evidence. No actions by the prosecution rendered the trial unfair, and thus McGriff was not deprived of a fair trial, as supported by Darden v. Wainwright. Additionally, McGriff contends that the cumulative effect of these alleged errors constitutes reversible error, citing Ex parte Tomlin. The court, however, found no prosecutorial misconduct that would justify reversal, concluding that McGriff's claims of cumulative error lacked merit, referencing Minor v. State. McGriff also claims reversible error due to the trial court's jury instructions during the guilt phase. The court emphasized that it has broad discretion in formulating instructions, which must be evaluated in their entirety rather than in isolation. The principles established in previous cases, such as Williams v. State and Self v. State, guide this review. The court applies a harmless-error analysis to any erroneous instructions given in a capital trial. Specifically, McGriff challenges the instruction on heat-of-passion provocation, arguing it incorrectly led the jury to consider capital murder before assessing whether the provocation reduced the charge to manslaughter. However, as there was no objection during the trial regarding these instructions, the review is limited to identifying plain error. The court found that the facts did not support an instruction on heat-of-passion provocation, particularly since a defense witness indicated a significant time lapse between the car chase and the murder. Individuals charged with a greater offense are entitled to instructions on lesser included offenses if there is a reasonable evidentiary basis supporting their claim. A trial court may refuse such instructions only if: (1) there is no evidence suggesting the lesser offense fits the factual scenario, or (2) the instruction would confuse or mislead the jury. The central issue in this case is whether the evidence suggests the appellant's actions were driven by legal provocation that induced a heat of passion, as defined by Alabama law. To reduce murder to manslaughter under Section 13A-6-3 of the Code of Alabama 1975, the provocation must stem from recognized legal circumstances, specifically witnessing a spouse's adultery or facing an imminent assault. Alabama courts have limited interpretations of "reasonable time for passion to cool," prompting references to other jurisdictions for clarification. A notable case from Kansas illustrates the distinction between impulsive actions driven by immediate provocation and premeditated acts motivated by revenge. The Kansas Supreme Court emphasized that while immediate acts of violence prompted by provocation may reduce murder charges to manslaughter, actions taken after a cooling-off period reflect malice and intent, thereby negating claims of heat of passion. The court in Yarborough evaluated whether the determination of a reasonable cooling-off period was a factual or legal matter. Citing Bishop's treatise, it noted that an ordinary cooling time might be an hour. The court upheld the trial court’s decision not to provide a manslaughter instruction, referencing State v. Follin, where a 10-hour interval after provocation was deemed sufficient for passions to cool. The court stated that an instruction on a lesser included offense is warranted only when evidence supports such a theory. It found no plain error in the jury instruction since McGriff had no legal right to the instruction on heat-of-passion provocation, which was not established by evidence. Any potential error in jury instructions was determined to be harmless beyond a reasonable doubt. The trial court ensured the accuracy of its jury instructions and addressed juror requests for clarification regarding capital murder, murder, and manslaughter, confirming that the jury understood the implications of heat-of-passion provocation. Even if McGriff were entitled to such an instruction, the trial court's guidance did not shift the burden of proof and did not prejudice his case. The instruction clarified that provoked manslaughter could apply even if the provoker was not the victim, a point reinforced by the trial court after defense objections. Finally, McGriff's claim of heat-of-passion provocation conflicted with his trial defense that he did not intend to kill, suggesting that his actions were intentional yet legally excusable under the circumstances. Two defenses presented by McGriff are found to be inconsistent, and the jury's guilty verdict for capital murder is supported by trial evidence. McGriff contends that the trial court's instructions regarding the intent necessary for capital murder were ambiguous. However, the court determined that this claim is unfounded, noting that the jury received multiple reinstructions on the elements of capital murder and the requirement of intent. The trial court emphasized this point repeatedly, indicating that the jury had been adequately informed. In the penalty phase, the court identified deficiencies in the trial court’s sentencing order, which failed to comply with Alabama Code § 13A-5-47(d). The trial court did not provide specific written findings regarding the aggravating and mitigating circumstances as required. Consequently, the case is remanded for the trial court to rectify these deficiencies. Additionally, although McGriff had been charged with five offenses, the pre-sentence report indicated he had only one conviction for possession of a forged instrument in the second degree. Only formal convictions can disqualify the statutory mitigating circumstance of having no significant prior criminal record, as outlined in Ala.Code 1975, § 13A-5-51. The presentence report indicates that McGriff disclosed two juvenile adjudications for shoplifting and vehicle theft, which were also mentioned during his mother’s cross-examination in the penalty phase. However, case law, specifically Freeman v. State, affirms that juvenile adjudications cannot be used to negate this mitigating circumstance. The Supreme Court’s ruling in Ex parte Burgess supports the position that while juvenile records may be considered, they cannot diminish the weight of the mitigating factors regarding a defendant's prior criminal history or age at the time of the crime. Alabama law explicitly prohibits using juvenile adjudications to counter the mitigating circumstance of no significant prior criminal activity. The trial court may consider these records to inform its assessment of the mitigating factors but cannot use them as a basis to assign minimal weight to those circumstances. The case is remanded for the trial court to make written findings in line with Ala.Code 1975, § 13A-5-47(d) and to reweigh aggravating and mitigating circumstances, with findings due within 45 days. The conviction is affirmed, but sentencing is remanded with specific directions. McGriff was convicted of capital murder and sentenced to death by electrocution, with the court confirming the need for compliance in the sentencing order. McGriff challenges the constitutionality of Alabama's capital murder statute, § 13A-5-40(a)(18), which pertains to murders committed with a deadly weapon from within a vehicle, arguing it leads to arbitrary and disproportionate application of the death penalty. The court notes that Alabama has not previously addressed this specific constitutional claim but has previously upheld a similar statute, § 13A-5-40(a)(17), which criminalizes intentional murder of a person inside a vehicle. Both statutes are similar, differing only in the location of the perpetrator or victim. The court acknowledges the legislative response to rising vehicle-related violence as a reason for enacting these laws. The appellant's argument centers on the assertion that there is no rational basis for distinguishing between killings based on the victim's location. However, the court reaffirms its previous ruling that § 13A-5-40(a)(17) is constitutional, asserting that it appropriately elevates certain murders to capital offenses. The court emphasizes that a capital sentencing scheme must meaningfully differentiate between cases where the death penalty is imposed and those where it is not, citing relevant Supreme Court precedents that affirm the constitutionality of capital punishment under certain conditions. Although the appellant claims the statute results in cruel and unusual punishment, the court notes that the Supreme Court has indicated that the death penalty is not inherently unconstitutional for all murder cases and is appropriate for intentional murder. In Gregg v. Georgia and Hadley v. State, it is established that not every vehicular death qualifies as capital murder. Under Section 13A-5-40(a)(17), intentionality is essential for a murder to be classified as a capital offense, aligning with the Supreme Court’s ruling in Enmund v. Florida. A conviction does not guarantee a mandatory death sentence; instead, a separate sentencing hearing is required to determine if the sentence will be life imprisonment without parole or death. The Supreme Court mandates that states must limit the discretion of the sentencer to narrow the pool of death penalty candidates and allow consideration of all relevant evidence that could lead to a decision against the death penalty. Narrowing can occur during either the guilt or sentencing phase, with the presence of aggravating circumstances needed to justify the death penalty. The statutory definition of a capital offense requires intentional murder combined with additional elements, with the legislature classifying specific crimes as capital offenses and prescribing minimum punishments. For a death sentence to be imposed, the prosecution must prove at least one aggravating circumstance during the sentencing phase, and this circumstance must outweigh any mitigating factors. In summary, a defendant is only death-eligible if convicted of intentional murder with a deadly weapon in a vehicle and proven to have aggravating circumstances. The legislature can enact statutes that provide special protections for certain victim classes, ensuring that the capital sentencing scheme is constitutional as long as it effectively narrows the pool of defendants eligible for the death penalty. Alabama's capital sentencing process establishes a clear method for determining whether a defendant should receive a death sentence or life imprisonment without parole, specifically targeting intentional killings from vehicles. Not all such incidents qualify as capital offenses; only those meeting specific aggravating factors, such as creating a great risk of death to many, warrant a death sentence. McGriff's claim that Alabama's sentencing scheme is unconstitutional due to a lack of guidance on how much weight a trial court should give to a jury's life recommendation has been consistently rejected in previous rulings. The courts have upheld the constitutionality of the statute allowing judges to override jury recommendations, citing the Eighth Amendment's allowance for judges to impose capital sentences independently of jury advice. The U.S. Supreme Court has affirmed that states are not required to clarify the weight given to jury recommendations, and the trial judge's discretion does not violate constitutional protections. Alabama’s capital sentencing statute is deemed to adequately limit the trial court's discretion, preventing arbitrary outcomes, as established in Spaziano v. Florida and affirmed in Bush v. State. Claims regarding the standardless override of discretion under § 13A-5-47(e) have been previously addressed and rejected in established case law, including Jackson v. State and Smith v. State, indicating no plain error exists regarding these claims. McGriff alleges multiple instances of prosecutorial misconduct during the penalty phase, arguing they compromised the fairness of the sentencing determination. The standard for evaluating these claims is whether the misconduct rendered the trial fundamentally unfair, as articulated in Darden v. Wainwright. The context of the prosecutor's comments, alongside the totality of evidence and closing arguments, is critical in assessing their impact. It is recognized that jury arguments are often viewed in the heat of debate, and jurors typically weigh the statements at their true worth without them unduly influencing the verdict. Prosecutors are permitted to present their interpretations of evidence and argue legitimate inferences drawn from it, as noted in various precedents, including Henderson v. State and Watson v. State. Many alleged instances of improper prosecutorial arguments lacked trial objections, which, while not barring review in capital cases, diminishes claims of prejudice. The absence of objections suggests that the defense did not perceive the comments as particularly harmful. The standard for "plain error" is established as an obvious error that affects the fairness and integrity of judicial proceedings. In this case, McGriff contended that the prosecutor improperly argued for two aggravating circumstances, asserting that only one was supported by evidence. However, no objection was made to this comment, thus limiting the review to plain error under Rule 45A of the Alabama Rules of Appellate Procedure. The prosecutor erroneously stated that the guilty verdict for capital murder established one aggravating circumstance, though the law specifies that the nature of the crime does not qualify it as such. During the penalty phase, the State acknowledged the error in the prosecutor's statement, clarifying that the only aggravating circumstance proven was that McGriff knowingly created a great risk of death to many persons. The trial court instructed the jury solely on this aggravating circumstance and did not define any others. Upon reviewing the record and jury instructions, no plain error was found, and it was determined that the prosecutor's comments did not render the trial unfair. McGriff also claimed that the prosecutor improperly argued for a death sentence based on him being a "future danger to society," but this argument was similarly assessed for fairness within the context of the entire proceeding. The prosecutor's closing argument during the penalty phase included references to McGriff's violent behavior, specifically citing a prison incident where he threatened another inmate by stating he had previously killed someone and would do so again. McGriff did not object to these comments, which limits the review to a plain-error analysis under Rule 45A, Ala. R.App. P. The argument emphasized McGriff's propensity for violence and future dangerousness, a pertinent factor in capital sentencing. Testimony from corrections officer Kim Patrick Wilson corroborated the prosecutor's comments, as he reported an altercation where McGriff reiterated his willingness to kill again. This evidence regarding future dangerousness is deemed relevant and admissible at the penalty phase, as per Section 13A-5-45(d), which allows any probative evidence concerning sentencing, provided the defendant can rebut hearsay. McGriff also contended that the prosecutor's description of the jury's verdict as a recommendation undermined their role, potentially affecting his right to a fair sentencing. However, no objections were raised regarding these remarks, and the court noted that references to the verdict as a recommendation are consistent with Alabama law, thus not constituting error. The prosecutor made an objectionable remark during the penalty-phase closing argument, urging the jury not to be influenced by any "guilt trip" from the defense, emphasizing their role in making a recommendation based on the law regarding the death penalty. Although this comment was not condoned, it was determined not to constitute plain error, as established in the precedent case, Bryant v. State, where a similar prosecutor's argument was also deemed non-reversible. The jury's role was reinforced by the trial court's instructions, which underscored the seriousness of their task regarding the potential sentence. Additionally, McGriff contested that the prosecutor improperly introduced facts not in evidence, specifically concerning a past conviction for car theft. During the closing argument, the prosecutor referenced McGriff's mother’s testimony about his upbringing and choices, confronting her with a report indicating that she had previously mentioned McGriff's involvement in stealing a car. This line of questioning aimed to impeach her credibility, and the prosecutor's remarks were deemed a legitimate response to her testimony, as they were based on evidence presented during the trial. McGriff contends that the prosecutor improperly referenced his demeanor, specifically stating he was laughing when the jury was not present, which McGriff argues was not properly presented before the jury. Since there was no objection to this remark, a plain-error standard of review applies. The record shows that Lieutenant Joe Pitts testified in the penalty phase about McGriff’s interactions with children before court and remarked on McGriff's demeanor during the trial. The prosecutor later cross-examined Pitts and highlighted McGriff's lack of crying when the jury was out, suggesting he was instead laughing and engaging with family members. The prosecutor's comments during closing arguments, suggesting McGriff was attempting to manipulate the jury for sympathy, were deemed legitimate inferences drawn from Pitts's testimony. Furthermore, McGriff argues the prosecutor mischaracterized evidence regarding his lack of remorse. The court found the prosecutor’s comments were supported by McGriff's own statements post-shooting, where he expressed no regret. McGriff also challenges the prosecutor's assertion that McCree and inmate Bernard Thomas were friends, arguing that this assertion lacked evidentiary support. However, the court agreed that the comment could be inferred from testimony about McGriff’s bragging to Thomas about the shooting, stating that even if improper, it did not infringe upon McGriff's due process rights. Lastly, McGriff argues that the prosecutor incorrectly stated that McGriff's participation in the church choir was not mitigation evidence, including an instance where the prosecutor interrupted the defense counsel’s opening statement to make this claim. Dennis was noted as a churchgoer who participated in the choir during his upbringing, which defense counsel argued reflects his moral character. The prosecutor objected to this characterization, but the trial court overruled the objection, allowing the defense to present this aspect as mitigating evidence. As there was no adverse ruling, the appellate review was conducted for plain error, confirming that the jury was instructed to consider all aspects of Dennis's life as potential mitigation. Additionally, McGriff contended that the prosecutor's assertion that no mitigating evidence was presented constituted an error. Since there was no objection at the time, this too was reviewed for plain error. The prosecutor's closing argument included a comparison of McGriff's rights to those of the victim's family, which the court found to be improper but determined that such comments did not significantly impact the jury's verdict, as they were made in the context of closing arguments and were seen as part of the heated debate. The court referenced previous cases to support its conclusions regarding the handling of the prosecutor's comments and the jury's understanding of mitigating evidence. McGriff's appeal for a new trial based on the cumulative effect of the prosecutor's alleged improper comments was denied, as the court found no instances of improper conduct that would warrant reversal. The court referenced previous cases, indicating that without a single instance of prosecutorial misconduct, claims of cumulative prejudice lack merit. The appellate review of jury instructions highlighted that they must be considered in context, and the trial court has broad discretion in formulating them. McGriff contested a remark implying that a life sentence could include parole, suggesting it made the death penalty seem more favorable. However, the trial court's overall instructions clearly stated that the options were life without parole or death, and this specific comment did not mislead the jury or affect their verdict. As such, no plain error was found regarding the jury instructions. McGriff contends that the trial court erred by not instructing the jury on all statutory mitigating circumstances. However, after the jury instructions were given, defense counsel expressed satisfaction with them, leading to a plain-error review under Rule 45A, Ala. R.App. P. During the penalty phase, the defense argued for a life sentence based on various factors, including McGriff's remorse, lack of a father-son relationship, respectfulness, actions in saving his brother, church attendance, hyperactivity, potential positive contributions in prison, and having a young child. None of these arguments established statutory mitigating circumstances. The trial court instructed the jury to consider mitigating circumstances presented by the defendant, emphasizing that their deliberations were not limited to those listed. Examples of mitigating circumstances included McGriff's lack of a father-son relationship, non-resistance to arrest, childhood hyperactivity managed with medication, potential to help other inmates, general pleasantness, and any other evidence-based circumstances. The court clarified that mitigating circumstances could arise from any relevant characteristics of McGriff or the crime, which should be considered in determining punishment, even without justification for the crime. The trial court's instructions were deemed thorough and accurate, tailored to the evidence, and there was no obligation to instruct on any unargued statutory mitigating circumstances during the penalty phase, as supported by precedent in Johnson v. State. The trial court's instructions during the penalty phase were aligned with the evidence and did not constitute plain error. The court is not obligated to identify statutory mitigating circumstances not presented by the defense or to read the full list of such circumstances if there is no supporting evidence. McGriff's claims of various mitigating factors—including his remorse, respectful behavior, lack of significant prior criminal activity, mental disturbance during the crime, and age—were evaluated at the trial court's discretion. The court is required to consider all evidence presented as mitigating, but it is not mandated to accept all such evidence as mitigating. The precedent set by Lockett v. Ohio indicates that while all evidence must be considered, the determination of what constitutes mitigating evidence lies within the discretion of the sentencing authority. Thus, merely presenting evidence does not compel the judge or jury to find those mitigating factors exist. In capital cases, defendants have the constitutional right to present mitigating evidence related to their character, record, and the circumstances of the offense, as established in *California v. Brown* and further supported by several Alabama cases. While the trial court must consider all mitigating circumstances, the determination of whether specific mitigating evidence is proven and its significance lies with the sentencing authority. The trial court is not obligated to detail in its sentencing order each nonstatutory mitigating factor considered, and a lack of listing indicates that some evidence was deemed non-mitigating rather than unconsidered. The trial court's requirement to evaluate mitigating evidence complies with *Lockett v. Ohio*. In the case of McGriff, the trial court properly addressed all statutory mitigating circumstances and confirmed the consideration of nonstatutory factors. McGriff was convicted of capital murder for shooting Michael McCree from a vehicle, with the trial court finding that the sentence was not influenced by arbitrary factors. The only aggravating circumstance identified was that McGriff knowingly created a significant risk of death to multiple individuals during the incident, as evidenced by his actions of firing a handgun into a crowd, presenting a substantial danger to bystanders. The trial court identified one statutory mitigating circumstance for McGriff: a lack of significant prior criminal activity. It found no evidence for other mitigating factors. Specifically, the court concluded that McGriff was not under extreme mental or emotional disturbance during the crime despite having consumed alcohol earlier that day. A forensic psychological evaluation indicated that his behavior was not influenced by psychiatric issues, and his detailed statement about the crime suggested he was fully aware of his actions. The court also determined that McGriff's age, nearly 21 at the time, and his prior criminal history did not qualify as mitigating circumstances. Nonstatutory mitigating evidence included his challenging upbringing, particularly the absence of his biological father, but the presence of a capable stepfather was noted. McGriff's childhood diagnosis of hyperactivity and use of Ritalin was acknowledged, but no direct link to his conduct during the shooting was established. The court's findings were deemed well-supported by the record. Under Alabama Code Section 13A-5-53(b)(2), the court weighed aggravating and mitigating circumstances and determined that the death penalty was appropriate for McGriff's actions. Additionally, Section 13A-5-53(b)(3) required an assessment of the proportionality of the death sentence in comparison to similar cases. Citing precedents, the court reaffirmed that McGriff's sentence was neither disproportionate nor excessive, upholding the legality of the death penalty under applicable statutes. In Merrill v. State, 741 So.2d 1099 (Ala.Crim. App. 1997), the court vacated a death sentence due to the absence of aggravating circumstances presented to the jury, affirming the trial court's judgment. Ebra Hayes was convicted of capital murder in the death of McCree and sentenced to life imprisonment without parole, with her conviction affirmed in an unpublished memorandum. Gabriel Knight pleaded guilty to manslaughter in the same case and received a 15-year sentence, with no appeal filed. The trial court confirmed a prospective juror's prior conviction, and defense counsel did not contest this during the Batson hearing. A misstatement of the code section in the indictment (citing 13A-5-40(18) instead of 13A-5-40(a)(18)) was noted, but the court ruled that such a miscitation does not invalidate an indictment that adequately states an offense, provided there is no actual prejudice to the defendant. The indictment was deemed sufficient as it followed the statute's language. The case referenced a 1994 amendment to the Code of Alabama, which clarified certain capital offenses related to murder with a deadly weapon. Additionally, the court addressed statutory mitigating circumstances, noting that these can include aspects of a defendant's character or circumstances of the offense that might warrant a life sentence instead of death.