DOC#: 00Z502
Inmate: DILL, JIMMY LEE
Gender: M
Race: B
DOB: 3/15/1960
Prison Holman
Received: 8/15/89
Charge: MURDER
County: JEFFERSON

Birmingham News

"Alabama executes Jimmy Lee Dill for 1989 slaying of Leon Shaw of Birmingham," by Tom Gordon. (April 16, 2009 6:20 PM)

ATMORE -- Alabama Death Row inmate Jimmy Lee Dill died at 6:16 p.m. today by lethal injection at Holman Correctional Facility. Dill, 49, was the third Alabama inmate to die by lethal injection this year and the 194th executed by the state since 1927. His final words were: "I just hope God's will be done and everybody finds the peace they need. I'm good."

Dill had been on Death Row at Holman since Aug. 15, 1989. He was convicted in May of that year of shooting Leon Shaw in the back of the head and robbing him of cocaine and money in Birmingham on Feb. 8, 1988. Shaw, a 33-year-old drug dealer who at the time was on federal work release, died about nine months later. Shaw's wife Junatha Shaw and their son Leon Shaw Jr., both of Birmingham, were among those who witnessed tonight's execution. Also watching were two of Dill's nieces, Kimberly Allums and Linda Dill.

A few moments before losing consciousness, Dill turned to his victim's family and apologized. He also mouthed words of comfort to his two nieces who were holding hands as one of them sobbed. Afterward, Leon Shaw Jr. said: "I told him I forgave him. I see him a victim, a victim of his raising, a victim of the circumstances. I see my dad as a victim, too, and it's continuing." Jeanette Carr, the victim's advocate for Alabama Attorney General Troy King was with the Shaws and said Dill's expression of remorse was what victims' really want to hear. "It's not very often that they get that," she said.

Department of Corrections spokesman Brian Corbett said Dill spent the day in a holding cell near the execution chamber. He had 19 visitors, mostly family members, and received communion from his spirtual advisor Donald Blocker.

Dill ate a last meal of fried chicken, fried okra, a biscuit and a root beer. He gave his 13-inch TV set to fellow Death Row inmate Randy Lewis and assorted clothing and toiletries to another inmate, William Bush. In addition, Dill left a check for $1.26 to sister-in-law Carolyn Dill.

Dill's attorneys had asked the Alabama Supreme Court to stay his execution. They argued, among other things that he did not have effective legal representation during his murder trial. In an 8-0 vote, the high court denied that petition this morning. The U.S. Supreme Court followed suit this afternoon.

Alabama has 203 Death Row inmates, most of them in Holman, which is near Atmore in southwest Alabama. Two Alabama inmates already have been executed by lethal injection this year. The most recent was Danny Joe Bradley, who on Feb. 12 was put to death for the murder of his stepdaughter. Rhonda Hardin, who was 12, was sexually assaulted and strangled in Piedmont on the night of Jan. 24, 1983.

The next scheduled execution is May 14. The inmate to be executed is Willie McNair, for the robbery and murder of Ella Foy Riley of Henry County in 1990. McNair has been on Death Row 18 years.

Montgomery Advertiser

"Killer Jimmy Lee Dill put to death," by Garry Mitchell. (Associated Press April 17, 2009)

ATMORE -- Jimmy Lee Dill was executed Thursday for murdering a Birmingham man in 1988 during a cocaine robbery, hours after the U.S. Supreme Court and the state's high court refused to block the lethal injection.

The 49-year-old Dill died at 6:16 p.m. Thursday at Holman prison for the shooting death of Leon Shaw, 33. Shaw was robbed of cocaine and about $200. "I just hope that God's will be done and everybody find the peace that they need. I'm good," Dill said from the death chamber.

His two nieces, Kimberly Allums and Linda Dill, witnessed the execution. The victim's son, Leon Shaw Jr., 28, and wife, Junatha Shaw, 47, both of Birmingham, also witnessed the execution. Both noted Dill seemed remorseful. "He said he was sorry. I told him I forgive him. I hope he's in God's arms now," said Leon Shaw Jr., who was only 7 when his father was killed.

When the curtain opened to the execution room, Dill looked through large, brown-rimmed eyeglasses and waved at his two nieces in the witness room. He then turned his head to acknowledge the victim's wife and son in a separate room. Dill prayed with a chaplain who knelt beside him in his final minutes. The procedure lasted about 16 minutes.

The U.S. Supreme Court and the state's high court rejected Dill's requests to delay the execution Thursday. Dill's lawyers had argued that he had ineffective attorneys at his trial and misunderstood a plea offer that could have brought a life prison sentence with a chance for parole.

Dill was convicted of capital murder on May 24, 1989, for killing Shaw, who at the time of his death was assigned to a federal work-release facility in Birmingham on a drug conviction. Shaw, who ran a boutique with his wife, was shot in the back of the head in a car on Feb. 8, 1988, with a .22-caliber bullet and lingered unconscious until his death on Nov. 22, 1988.

Dill had a final meal of fried chicken, okra and a biscuit washed down by a root beer. He gave his sister-in-law Carolyn Dill a check for $1.26 and gave his other personal possessions to fellow death row inmates. Department of Corrections spokesman Brian Corbett said Dill had visits from his two brothers, a sister-in-law, and other family and friends in a special cell near the execution room as he waited for the final court ruling.

Thursday morning, he met with his two attorneys and later met with a spiritual adviser to receive Holy Communion. Since Tuesday, he has made phone calls, written letters to family and friends, watched some TV and read his Bible. Dill had 19 visitors, mostly relatives, including his son Jimmy Johnson.

Dill's attorneys told the state Supreme Court in a bid for a stay that Dill had ineffective lawyers at his Jefferson County trial and misunderstood a plea offer that could have brought a life prison sentence with a chance for parole. Dill had rejected that plea offer.

Prosecutors told the state high court that Dill's attorneys failed to raise any new issues that required blocking his lethal injection. Assistant Attorney General Beth Jackson Hughes said Dill's claims of ineffective defense at his original trial were settled more than a decade ago in his unsuccessful appeal and called his bid for a stay without merit.

At his trial, jurors voted 11-1 for a death sentence and the trial judge adopted the recommended penalty, noting that Dill had a prior felony conviction and that the Shaw murder came during a robbery.

Defense lawyers described Dill as a victim of childhood sexual abuse who became addicted to cocaine and alcohol -- mitigating circumstances that were not disclosed at his trial. But prosecutors said affidavits were taken from Dill's family and the appeals court noted that their potential testimony would not have changed the "balance of mitigating and aggravating circumstances" in Dill's case.

ProDeathPenalty.Com

The victim, Leon Shaw, drove to Terry Dill's house on the afternoon of February 8, 1988. Leon was not supposed to be driving because he was serving time at the Federal Work Release Center for a drug violation. Leon was, however, allowed to leave the center to go to work. He operated the Rose Boutique, which he owned with his wife, Junatha Shaw. Terry Dill left the house and got in the car with Leon. Jimmy Lee Dill was in the front seat with Leon. Leon told Terry Dill that Jimmy Dill wanted to buy drugs from Leon. The testimony reveals that Terry Dill was a former cocaine addict who had sold cocaine with Leon for four years. Leon would pay Terry Dill to bring him customers. Leon, Terry Dill, and Jimmy Dill ran into Jacqueline Ball and Freddie Carter near a church on 85th Street. Leon was still driving the car and Terry Dill was sitting in the backseat behind him. Jimmy Dill was still in the front passenger seat. Apparently, Leon and Jimmy Dill got out of the car. Leon talked to Jacqueline Ball, and Jimmy Dill talked to Freddie Carter. Leon was carrying a black pouch in which he normally kept cocaine and money. Leon had at least $200 in his hand. After Ball and Carter left, Jimmy Dill asked Leon if he would give him some cocaine until he could get the money to pay for it. Leon refused.

They left for Druid Hills, where the work release center was located, because Leon had to sign in at the center. When they got to Druid Hills, Leon’s beeper went off. They all got out of the car and Leon made a telephone call. They went to the Curb Market and Leon bought wine coolers. Leon had a “folded wad of money.” When they left the store, Leon had everyone in the car switch places so that the people at the center would not see him driving. Terry Dill was now driving and Jimmy Dill was in the backseat. Terry Dill drove to the center. Jimmy Dill again asked Leon for cocaine. Leon told him that he would give him the cocaine when Jimmy Dill got some money. He also showed Jimmy Dill a half ounce of cocaine. Jimmy Dill asked for cocaine again when they pulled up to the center. Leon went to the building. He pulled a “big wad of money” out of his pocket. There was so much money that it could not be rolled up. He told the case manager at the center that he had just left the Rose Boutique and was going to make a deposit. While Leon was inside the center, Jimmy Dill said to Terry Dill, “You don’t believe I’ll rob him or shoot him.”

On February 12, four days after Leon was shot, Terry Dill spoke to Leon’s wife, Junatha Shaw and, later the same day, contacted the Birmingham police. On February 18, the police contacted petitioner, who voluntarily went to the station house and made the statement continued to talk about killing Leon. When Leon got back in the car, Jimmy Dill said that he would shoot Leon if he did not give him some cocaine. After they drove off, there was a gunshot. Blood spurted onto Terry Dill. Jimmy Dill had a small automatic pistol, approximately .25 or .22 caliber. Jimmy Dill told Terry Dill to be quiet and keep driving. Jimmy Dill pulled the trigger as if he was going to shoot Leon again. They eventually stopped in an alley. Jimmy Dill searched Leon and took the money and cocaine. Jimmy Dill then got a rag and started wiping fingerprints off of the car. Terry Dill ran away. Jimmy Dill also ran away. Terry Dill called his girlfriend to pick him up. He went home later that evening.

Jimmy Dill stated that he and Terry Dill were with Leon and that they drove to North Birmingham. Terry Dill was driving the car, Leon was on the front passenger seat, and Jimmy Dill was in the backseat behind Terry Dill. Jimmy Dill stated that Leon’s door opened and that he heard a shot from behind Leon. Jimmy Dill was then asked how Leon was shot from behind without the window being shot out of the car. Jimmy Dill then stated that Leon was actually getting into the car when someone ran up to Leon’s door. Jimmy Dill stated that he heard a gunshot. He and Terry Dill got out and ran. Jimmy Dill then stated that after hearing the shot, they drove off and a car followed them. They drove to an alley, jumped out of the car, and ran away. Jimmy Dill stated that Leon had some cocaine in a black bag but he did not see any money.

A woman who lived near the site of the shooting saw the car in the alley, watched the two men leave the scene, and summoned the police, who, upon finding Leon and realizing that he was bleeding profusely, called for an ambulance. The court described what took place thereafter, including the circumstances that led to Leon’s death: Leon was taken to the University Hospital of Birmingham where emergency brain surgery was performed. The bullet entered the left, back side of his brain. Leon was unconscious. He had abnormal movement in his extremities which indicates that the brain is functioning extremely abnormally. Both a feeding tube and breathing tube were inserted. He was discharged from the hospital on April 26, 1988, because there was nothing more the hospital could do for him. Leon could not function independently and required round-the-clock care. Leon eventually pulled the feeding tube out. However, his doctor said he would not replace the tube since he could eat and drink by mouth. Leon was readmitted to the hospital on October 31, 1988. He never regained consciousness and died on November 22, 1988. Leon’s doctors testified that he died of complications from a gunshot wound to the head. Forensic evidence revealed that the bullet removed from Leon’s head was consistent with a .22 caliber projectile. The characteristics of the wound were consistent with a contact gunshot wound.

The jury found petitioner guilty as charged. After a brief recess, the jury returned for the penalty phase of the trial. The State put on one witness in its case, parole officer Carl Michael Newman. Newman testified that Jimmy Dill had two Alabama felony convictions and was on parole at the time Leon was shot. The State submitted into evidence certified copies of the two convictions. The certified copies indicated that on October 4, 1983, Dill was convicted of theft of property in the first degree and, on December 9, 1983, was sentenced to prison for a term of ten years. On the same day he was sentenced for the first conviction, Dill pled guilty to second degree robbery and was sentenced to a concurrent ten-year prison term. Dill was on parole on February 8, 1988, when the Leon Shaw shooting occurred. His parole was revoked on March 15, 1988.

The defense likewise presented one witness, Jimmy Dill. His testimony was brief. Dill indicated that he had a thirteen-month old child, a common-law wife, had worked a number of jobs, and attended nursing school while on parole. In its closing argument to the jury, the State argued that the evidence (introduced during both the guilt and penalty phases of trial) established three aggravating circumstances: the offense had been committed by a person (1) who was under a sentence of imprisonment; (2) who had been previously convicted of a felony involving the use or threat of violence to the person; and (3) who, at the time of the murder, was engaged in the commission of a robbery. As a result, the prosecution argued, the jury should return a death penalty verdict. Wilkinson, relying on Dill’s testimony, urged the jury to recommend a life sentence. The jury found the aggravating circumstances the State had cited, and, therefore, returned a verdict calling for the death sentence.

UPDATE: Just before the execution started, Jimmy Dill said "I just hope that God's will be done and everybody find the peace that they need. I'm good."

Wikipedia

The following individuals have been executed by the State of Alabama at the Holman Correctional Facility near Atmore since 1943:

Inmate Date Method Victim

1 John Louis Evans 22 April 1983 electrocution Edward Nassar.
2 Arthur Lee Jones 21 March 1986 electrocution William Hosea Waymon.
3 Wayne Ritter 28 August 1987 electrocution Edward Nassar.
4 Michael Lindsey 26 May 1989 electrocution Rosemary Zimlich Rutland.
5 Horace Dunkins 14 July 1989 electrocution Lynn McCurry.
6 Herbert Richardson 18 August 1989 electrocution Rena Mae Callins.
7 Arthur Julius 17 November 1989 electrocution Susie Bell Sanders.
8 Wallace Thomas 13 July 1990 electrocution Quenette Shehane.
9 Larry Heath 30 March 1992 electrocution Rebecca Heam.
10 Cornelius Singleton 20 November 1992 electrocution Ann Hogan.
11 Willie Clisby 28 April 1995 electrocution Fletcher Handley.
12 Varnell Weeks 12 May 1995 electrocution Mark Batts.
13 Edward Horsley, Jr. 16 February 1996 electrocution Naomi Rolon.
14 Billy Wayne Waldrop 10 January 1997 electrocution Thurman Donahoo.
15 Walter Hill 2 May 1997 electrocution Willie Mae Hammock, John Tatum, and Lois Tatum.
16 Henry Hays 6 June 1997 electrocution Michael Donald.
17 Stephen Allen Thompson 8 May 1998 electrocution Robin Balarzs.
18 Brian K. Baldwin 18 June 1999 electrocution Naomi Rolon.
19 Victor Kennedy 6 August 1999 electrocution Annie Laura Orr.
20 David Ray Duren 7 January 2000 electrocution Kathleen Bedsole.
21 Freddie Lee Wright 3 March 2000 electrocution Warren Green and Lois Green.
22 Robert Lee Tarver, Jr. 14 April 2000 electrocution Hugh Sims Kite.
23 Pernell Ford 2 June 2002 electrocution Willie C. Griffith and Linda Gail Griffith.
24 Lynda Lyon Block 10 May 2002 electrocution Opelika Officer Roger Lamar Motley.
25 Anthony Keith Johnson 12 December 2002 lethal injection Kenneth Cantrell.
26 Michael Eugene Thompson 13 March 2003 lethal injection Maisie Carlene Gray.
27 Gary Leon Brown 24 April 2003 lethal injection Jack David McGraw.
28 Tommy Jerry Fortenberry 7 August 2003 lethal injection Ronald Michael Guest, Wilbut T. Nelson, Robert William Payne, and Nancy Payne.
29 James Barney Hubbard August 5, 2004 lethal injection Lillian Montgomery.
30 David Kevin Hocker 30 September 2004 lethal injection Jerry Wayne Robinson.
31 Mario Giovanni Centobie 28 April 2005 lethal injection Moody police officer Keith Turner.
32 Jerry Paul Henderson 2 June 2005 lethal injection Jerry Haney in Talladega and for accepting $3,000 from Haney's wife for the killing.
33 George Everett Sibley, Jr. (common-law husband of Lynda Lyon Block) 4 August 2005 lethal injection Opelika Officer Roger Lamar Motley.
34 John W. Peoples, Jr. September 22, 2005 lethal injection Paul Franklin, Judy Franklin, and Paul Franklin, Jr.
35 Larry Eugene Hutcherson October 26, 2006 lethal injection Irma Thelma Gray
36 Aaron Lee Jones May 3, 2007 lethal injection Carl Nelson and Willene Nelson
37 Darrell Grayson July 26, 2007 lethal injection Annie Laura Orr
38 Luther Jerome Williams August 23, 2007 lethal injection John Kirk
39 James Harvey Callahan January 15, 2009 lethal injection Rebecca Suzanne Howell
40 Danny Joe Bradley February 12, 2009 lethal injection Rhonda Hardin
41 Jimmy Lee Dill April 16, 2009 lethal injection Leon Shaw

Dill v. State,600 So.2d 343 (Ala.Cr.App. 1991) (Direct Appeal).

Defendant was convicted in the Circuit Court, Jefferson County, Michael W. McCormick, J., of capital murder committed during the course of a robbery, and he appealed. The Court of Criminal Appeals, Tyson, J., held that: (1) no evidence would have supported the defendant's requested instructions on lesser-included offenses; (2) any prosecutorial misconduct that may have occurred during closing arguments in guilt or penalty phase of the trial did not rise to level of plain error; (3) there was sufficient evidence that the victim's death had been caused by a gunshot wound to the head, even though the victim did not die until nine months later and after he had pulled out his feeding tube and suffered dehydration; (4) the jury was adequately instructed on aggravating and mitigating circumstances; (5) hearsay statements in the presentence report were admissible at sentencing; and (6) the sentence was not the product of passion or prejudice and it was not excessive. Affirmed. Judgment affirmed, Ala., 600 So.2d 372.

TYSON, Judge.

Jimmy Lee Dill was indicted for capital murder in violation of § 13A-5-40(a)(2), Code of Alabama 1975. He was found “guilty as charged in the indictment” and was sentenced to death. The record reveals that the victim, Leon Shaw, drove to Terry Dill's house on the afternoon of February 8, 1989. Shaw was not supposed to be driving because he was serving time at the Federal Work Release Center for a drug violation. Shaw was, however, allowed to leave the center to go to work. He operated the Rose Boutique, which he owned with his wife, Junatha Shaw. Terry Dill left the house and got in the car with Shaw. The appellant was in the front seat with Shaw. Shaw told Terry Dill that the appellant wanted to buy drugs from Shaw.

The testimony reveals that Terry Dill was a former cocaine addict who had sold cocaine with Shaw for four years. Shaw would pay Terry Dill to bring him customers.

Shaw, Dill, and the appellant ran into Jacqueline Ball and Freddie Carter near a church on 85th Street. Shaw was still driving the car and Terry Dill was sitting in the backseat behind him. The appellant was still in the front passenger seat. Apparently, Shaw and the appellant got out of the car. Shaw talked to Jacqueline Ball, and the appellant talked to Freddie Carter. Shaw was carrying a black pouch in which he normally kept cocaine and money. Shaw had at least $200 in his hand.

After Ball and Carter left, the appellant asked Shaw if he would give him some cocaine until he could get the money to pay for it. Shaw refused. They left for Druid Hills, where the work release center was located, because Shaw had to sign in at the center. When they got to Druid Hills, Shaw's beeper went off. They all got out of the car and Shaw made a telephone call. They went to the Curb Market and Shaw bought wine coolers. Shaw had a “folded wad of money.” (R. 481.) When they left the store, Shaw had everyone in the car switch places so that the people at the center would not see him driving. Terry Dill was now driving and the appellant was in the backseat. Terry Dill drove to the center.

The appellant again asked Shaw for cocaine. Shaw told him that he would give him the cocaine when the appellant got some money. He also showed the appellant a half ounce of cocaine. The appellant asked for cocaine again when they pulled up to the center. Shaw went to the building. He pulled a “big wad of money” out of his pocket. (R. 395.) There was so much money that it could not be rolled up. He told the case manager at the center that he had just left the Rose Boutique and was going to make a deposit.

While Shaw was inside the center, the appellant said to Terry Dill, “You don't believe I'll rob him or shoot him.” (R. 490.) The appellant continued to talk about killing Shaw. When Shaw got back in the car, the appellant said that he would shoot Shaw if he did not give him some cocaine. After they drove off, there was a gunshot. Blood spurted onto Terry Dill. The appellant had a small automatic pistol, approximately .25 or .22 caliber. The appellant told Terry Dill to be quiet and keep driving. The appellant pulled the trigger as if he was going to shoot Shaw again. They eventually stopped in an alley. The appellant searched Shaw and took the money and cocaine. The appellant then got a rag and started wiping fingerprints off of the car. Terry Dill ran away. The appellant also ran away. Terry Dill called his girlfriend to pick him up. He went home later that evening.

Shaw was taken to the hospital where emergency brain surgery was performed. The bullet entered the left, back side of his brain. Shaw was unconscious. He had abnormal movement in his extremities which indicates that the brain is functioning extremely abnormally. Both a feeding tube and breathing tube were inserted. He was discharged from the hospital on April 26, 1989, because there was nothing more the hospital could do for him. Shaw could not function independently and required round-the-clock care. Shaw eventually pulled the feeding tube out. However, his doctor said he would not replace the tube since he could eat and drink by mouth. Shaw was readmitted to the hospital on October 31, 1989. He never regained consciousness and died on November 22, 1989. Shaw's doctors testified that he died of complications from a gunshot wound to the head.

Forensic evidence revealed that the bullet removed from Shaw's head was consistent with a .22 caliber projectile. The characteristics of the wound were consistent with a contact gunshot wound.

The appellant gave a statement to the police on February 18, 1989. He stated that he and Terry Dill were with Shaw and that they drove to North Birmingham. Terry Dill was driving the car, Shaw was on the front passenger seat, and the appellant was in the backseat behind Terry Dill. The appellant stated that Shaw's door opened and that he heard a shot from behind Shaw. The appellant was then asked how Shaw was shot from behind without the window being shot out of the car. The appellant then stated that Shaw was actually getting into the car when someone ran up to Shaw's door. The appellant stated that he heard a gunshot. He and Terry Dill got out and ran. The appellant then stated that after hearing the shot, they drove off and a car followed them. They drove to an alley, jumped out of the car, and ran away. The appellant stated that Shaw had some cocaine in a black bag but he did not see any money.

The appellant raises 22 issues on appeal. We note that most of the arguments raised on appeal were not raised at the trial court level.

“[S]ince this is a death case, we must review the [alleged] error before us to see if it constitutes plain error and, thus, should be noticed despite the lack of a proper objection by defense counsel. Rule 45A, A.R.A.P. 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) [ cert. denied, 464 U.S. 986, 104 S.Ct. 436, 78 L.Ed.2d 367 (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' ... which are those errors that ‘seriously affect the fairness, integrity or public reputation of judicial proceedings'.... The plain error rule should be applied ‘solely in those circumstances in which a miscarriage of justice would otherwise result.’ Young, supra, 105 S.Ct., at 1047....

“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, 105 S.Ct., at 1047, n. 14.” Hooks v. State, 534 So.2d 329, 351-52 (Ala.Crim.App.1987), aff'd, 534 So.2d 371 (1988), cert. denied, 488 U.S. 1050, 109 S.Ct. 883, 102 L.Ed.2d 1005 (1989). See also Kuenzel v. State, 577 So.2d 474 (Ala.Crim.App.1990), aff'd, 577 So.2d 531 (Ala.1991); Ex parte Hinton, 548 So.2d 562, 568 (Ala.), cert. denied, 493 U.S. 969, 110 S.Ct. 419, 107 L.Ed.2d 383 (1989). Our examination of the record in this case reveals no plain error.

I

The appellant first contends that the trial court erred in failing to grant a mistrial when Officer Forrest Duncan referred to the appellant's parole officer during his testimony. The appellant did not object to the testimony. The record reveals that the following occurred during the direct examination of Officer Duncan: “Q: After Terry Dill made a statement, what, if anything, did you or Lieutenant Jordan do after that? “A: I attempted to locate Jimmy Dill. “Q: All right. How did you attempt to do that? “A: By several means. Through some of his relatives and through his parole officer. “Q: And did this start on the very day that Terry Dill made the statement, did your efforts start then?” (R. 619-620.)

Following this exchange, this subject was never raised again either on direct or on cross-examination. Following Duncan's testimony and out of the jury's presence, the appellant moved to exclude the statement and moved for a mistrial. The court denied the motion for mistrial but offered to instruct the jury to exclude the statement. The appellant asked for time to think about the offer. The appellant later refused the offered curative instruction because such an instruction might further emphasize the statement.

Although the failure to object does not preclude review in a capital case, such failure weighs against any claim of prejudice. Kuenzel; Ex parte Kennedy, 472 So.2d 1106 (Ala.), cert. denied, 474 U.S. 975, 106 S.Ct. 340, 88 L.Ed.2d 325 (1985). “Plain error is error which, when examined in the context of the entire case, is so obvious that failure to notice it would seriously affect the fairness, integrity, and public reputation of the judicial proceedings.” United States v. Butler, 792 F.2d 1528, 1535 (11th Cir.), cert. denied, Waites v. United States, 479 U.S. 933, 107 S.Ct. 407, 93 L.Ed.2d 359 (1986).

We find that the testimony does not rise to the level of plain error. The statement was elicited incidentally and was never mentioned again. The appellant did not object to the statement. Furthermore, the appellant refused an offer of curative instructions by the court. We note that “ ‘an indirect reference to the defendant's involvement in other crimes is not incurably harmful to the accused, and any possible prejudice may be eradicated by the trial judges's prompt curative instruction to the jury.’ ” McDonald v. State, 516 So.2d 868, 871 (Ala.Crim.App.1987) (quoting Brooks v. State, 462 So.2d 758, 760 (Ala.Crim.App.1984)). See also Kendrick v. State, 444 So.2d 905 (Ala.Crim.App.1984). Our review of the record leads us to conclude that the appellant believed that the statement attracted so little attention that a curative instruction was unnecessary or that, by refusing a curative instruction, the appellant was attempting to invite error. When examined in the context of the entire case, we do not believe that the statement was so egregious that it “seriously affect[ed] the fairness, integrity or public reputation of [the] judicial proceedings.” Hooks at 351-352.

II

The appellant contends that the court erred in failing to give several requested jury charges. These will be specifically addressed in the subsections below. We note that the appellant did not object to the court's failure to give these charges.

A

The appellant contends that the trial court erred in failing to charge the jury on the lesser included offenses of first degree robbery, first degree theft, or second degree theft. We disagree.

A charge on a lesser included offense should be given when there is a reasonable theory from the evidence to support such a proposition. Ex parte Julius, 455 So.2d 984 (Ala.1984), cert. denied, 469 U.S. 1132, 105 S.Ct. 817, 83 L.Ed.2d 809 (1985). Clark v. State, 451 So.2d 368 (Ala.Crim.App.1984). A trial judge, however, may refuse to charge on a lesser included offense when it is clear to the judicial mind that there is no evidence to support such a charge. Mullis v. State, 545 So.2d 205, 211 (Ala.Crim.App.1989); Gurganus v. State, 520 So.2d 170 (Ala.Crim.App.1987). A court should not charge the jury on a lesser included offense “unless there is a rational basis for a verdict convicting the defendant of the included offense.” Ala.Code 1975, § 13A-1-9(b).

Furthermore, an accused is not entitled to a charge on a lesser included offense when he denies committing the crime itself and the State's evidence does not support such a charge. Daly v. State, 442 So.2d 143 (Ala.Crim.App.1983); Williams v. State, 377 So.2d 634 (Ala.Crim.App.), cert. denied, 377 So.2d 639 (Ala.1979).

Our review of the record leads us to the conclusion that there was no rational basis in the evidence for a charge on lesser included offenses. Furthermore, the record reveals that the appellant's defense was the contention that someone else shot Shaw from outside Shaw's car. We find that the trial court did not err in refusing to charge on first degree robbery, first degree theft, or second degree theft. See generally Daniels v. State, 534 So.2d 628 (Ala.Crim.App.1985), aff'd, 534 So.2d 656 (Ala.1986), cert. denied, 479 U.S. 1040, 107 S.Ct. 898, 93 L.Ed.2d 850 (1987); Clark v. State.

B

The appellant next contends that the trial judge erred in refusing his requested jury charges numbers one and two. Both instructions concern the reasonable doubt standard. A review of these charges leads us to conclude that they were properly refused because they were confusing and misleading. Bogan v. State, 529 So.2d 1029 (Ala.Crim.App.1988); Payne v. State, 419 So.2d 286 (Ala.Crim.App.1982). Furthermore, the jury was thoroughly and properly instructed on reasonable doubt.

C

The appellant next contends that the trial court erred in failing to give what he terms the following “bad character” charge: “In your sole discretion, if you see fit to do so, you may disregard the testimony of any witness whom you find to be of ‘bad character or unworthy of belief under oath.’ ” (R. 938.)

The appellant bases his argument on this court's decision in Ashlock v. State, 367 So.2d 560 (Ala.Crim.App.1978), cert. denied, 367 So.2d 562 (Ala.1979). Even assuming that there was evidence presented that some of the witnesses were persons of bad character, the charge was not a correct statement of law and was misleading. See Bogan and Payne. First, the charge would have improperly allowed the jurors to disregard a witness's testimony in their sole discretion. A finding of bad character, however, must be based on the evidence. Unlike the charge in Ashlock, the charge also failed to refer to a specific witness. Thus, it failed to discriminate between a witness whose character was not in issue and a witness whose character may have been in issue.

Even if the appellant's charge had been a correct statement of law, any error in refusing to give the charge would have been harmless because there were far more significant reasons for the jury to reject certain of the witnesses's testimony other than for the reason that they were persons of “bad character”.FN1 Connolly v. State, 602 So.2d 443 (Ala.Crim.App.1990). The jury was also thoroughly and properly instructed on those other reasons. Thus, even had a correct charge been presented, any error would have been harmless. See, e.g., Connolly.

FN1. Although the appellant's charge did not refer to any particular witness, the appellant contends in brief that Junatha Shaw, Terry Dill, and Jacqueline Ball were people of bad character and unworthy of belief.

D and E

The appellant contends that the trial court erred in failing to give his requested charges numbers seven through nine. Charge number seven concerns the credibility of the State's witnesses and the burden of proof. Charges eight and nine concern the credibility of Terry Dill and the burden of proof. The failure to give a proposed jury instruction constitutes reversible error only if such instruction (1) was correct, (2) was not substantially covered by the court's charge, and (3) concerned a point in the trial which was so important that the failure to give the instruction seriously impaired the defendant's ability to defend himself. United States v. Sans, 731 F.2d 1521, 1529-30 (11th Cir.1984), cert. denied, 469 U.S. 1111, 105 S.Ct. 791, 83 L.Ed.2d 785 (1985); Connolly. Our review of the record reveals that the proposed charges were misleading and confusing. Bogan; Payne. Furthermore, the trial court thoroughly charged the jury on the credibility of the witnesses and the State's burden of proof. Thus, the trial court did not err in refusing to give these requested charges.

F

The appellant next contends that the trial court erred in failing to give the jury a requested instruction that the defendant could not be convicted of robbery-murder, the charge set out in the indictment, if the conviction was predicated solely on the fact that the defendant took cocaine from the victim. This argument has no merit. The trial court correctly refused the instruction as it is confusing and misleading. Bogan; Payne.

III

The appellant next contends that the State exercised its peremptory strikes to remove black jurors from the jury venire in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The record reveals that there were 13 black jurors on the jury venire. The State struck six black jurors and the appellant struck one. Six black jurors served on the jury. Although the trial court found that the appellant did not present a prima facie case of racial discrimination, it required the prosecution to state the reasons for its strikes. The appellant argues that the State did not strike one white juror who had the same characteristics as the black jurors who were struck. The record reveals that the prosecutor planned to strike all single jurors. She stated that the most favorable juror in a case involving drugs is one who is older, married, with a stable job and children. The prosecutor stated that the white, single juror was left on the panel accidentally. She thought he had already been struck for cause. Apparently, she showed the trial court her strike sheet which indicated that she had marked through that juror's name as having been struck. The record reveals that the black jurors who served on the jury had substantially those characteristics she stated made a favorable juror. An older, single, white juror was also struck by the State even though she otherwise appeared to be a good juror, as was a single white male.

We need not address the issue of whether the appellant presented a prima facie case of racial discrimination, as it is clear from the record that no such discrimination occurred. Prior decisions of this court have held that age, marital status and employment status may be race-neutral reasons for striking jurors. Warner v. State, 594 So.2d 664 (Ala.Crim.App.1990); Stephens v. State, 580 So.2d 11 (Ala.Crim.App.1990) aff'd, 580 So.2d 26 (Ala.Crim.App.1991). We find the reasons given by the prosecutor to be race-neutral under the circumstances of this case. Furthermore, the record reveals that the State struck white jurors for substantially the same reasons as black jurors. “Such evidence of neutrality may overcome the presumption of discrimination.” Bedford v. State, 548 So.2d 1097, 1098 (Ala.Crim.App.1989). We find that the State did not use its peremptory strikes in a racially discriminatory manner. See, e.g., Singleton v. State, 553 So.2d 689 (Ala.Crim.App.1989); Bedford; Mathews v. State, 534 So.2d 1129 (Ala.Crim.App.1988).

IV

The appellant next contends that his right to counsel was violated by statements made by the prosecutor that invited the jury to punish the appellant for exercising his constitutional right to counsel. This argument has no merit. We have carefully reviewed the record and can find no comments made by the prosecutor that even impliedly referred to the appellant's right to counsel. The comments cited by the appellant were either proper replies in kind or proper comments on the appellant's theory of the case. Furthermore, the appellant failed to object to any of the cited comments. Even if such comments had been error, they certainly did not rise to the level of plain error. See Ex parte Wilhite, 485 So.2d 787 (Ala.1986); Martin v. State, 548 So.2d 488 (Ala.Crim.App.1988), aff'd, 548 So.2d 496 (Ala.), cert. denied, 493 U.S. 970, 110 S.Ct. 419, 107 L.Ed.2d 383 (1989).

V

The appellant next contends that the State improperly commented on his right to remain silent and on his failure to testify. He cites several instances which he deems to be reversible error.

The appellant contends that the State improperly commented on his right to remain silent during voir dire when the prosecutor remarked that “Mr. Dill says that someone else did it?” (R. 26.) When viewed in context, this statement was nothing more than a reference to the appellant's statement which was later admitted into evidence by the State. See Grady v. State, 391 So.2d 1095 (Ala.Crim.App.1980). The comment was in no manner a comment on the appellant's right to remain silent.

The appellant also contends that during closing arguments the prosecutor referred to the appellant's silence by stating that Terry Dill was the “only one” from whom the jurors heard. (R. 671.) As we read the statement in the context of closing arguments, the comment was not a comment on the appellant's silence. The prosecutor was arguing that Terry Dill was the only one who told the truth about the incident. The prosecutor then went through a lengthy summation of all of the testimony which corroborated Terry Dill's testimony. The prosecutor was responding to a very lengthy argument by appellant's counsel which attacked Terry Dill's credibility. Furthermore, the appellant's statement was admitted into evidence. As we read the argument, it was a proper reply in kind to the appellant's argument and an appropriate comment on the believability of the appellant's version of the incident.

“[W]ide latitude is given the State's prosecutors when a response is made during closing argument to an argument previously made by opposing counsel.” Mitchell v. State, 480 So.2d 1254, 1257 (Ala.Crim.App.1985). See also Touart v. State, 562 So.2d 625 (Ala.Crim.App.1989). We find no error in the prosecutor's statement. See, e.g., Sullivan v. State, 394 So.2d 76 (Ala.Crim.App.1981). We note that the appellant failed to object to the comment. Although such failure to object does not preclude review in a capital case, it weighs against any claim of prejudice. Ex parte Kennedy, supra. Even if the statement was error, it was not so egregious as to “seriously affect the fairness or integrity of the judicial proceedings.” Ex parte Womack, 435 So.2d 766, 769 (Ala.), cert. denied, 464 U.S. 986, 104 S.Ct. 436, 78 L.Ed.2d 367 (1983).

The appellant next contends that the prosecutor improperly commented on his right to remain silent by stating that all of the medical evidence negated everything that the appellant told the officers in his statement. He also contends that it was error for the prosecutor to engage in a “pretend cross-examination” of the appellant. Our review of the record reveals that neither of these instances was a reference to the appellant's silence. The prosecutor was simply arguing that the medical evidence negated the appellant's theory of the case that someone outside the car shot Shaw. The “pretend cross-examination” was simply proper closing argument which pointed out the inconsistencies in the appellant's theory of the case. In both instances cited by the appellant, the prosecutor was merely pointing out the appellant's defense and inferentially calling upon the jury to disbelieve it. See, e.g., Bates v. State, 549 So.2d 601 (Ala.Crim.App.1989); Sullivan; Grady. We note that the appellant failed to object to either of the complained of instances. Even if the remarks were improper, they certainly do not rise to the level of plain error. See Womack.

The appellant next contends that the prosecutor also improperly commented on his prearrest silence in violation of Ex parte Marek, 556 So.2d 375 (Ala.1989). A review of the record reveals that the cited remarks were proper replies in kind. The appellant strenuously argued during closing arguments that Terry Dill was not worthy of belief because he did not go to the police until four days after the incident. The State's response merely pointed out that if Terry Dill's version was not worthy of belief because he delayed going to the police, the appellant's version of the facts was likewise not worthy of belief because he also did not go to the police until several days after the incident. The prosecutor was simply arguing that if Terry Dill's testimony was not credible because of the delay, then that reasoning also applied to the appellant's version of the facts. In order to determine whether a prosecutor's statement is improper, it must be examined in its context and in light of what transpired, “that is, in light of the preceding argument of defense counsel to which the prosecutor's argument was an answer.” Henderson v. State, 460 So.2d 331, 333 (Ala.Crim.App.1984) (citations omitted). See also Touart. “Remarks or comments of the prosecuting attorney, including those which might otherwise be improper, are not grounds for reversal when they are invited, provoked, or occasioned by accused's counsel and are in reply to or retaliation for his acts and statements.” Id. The prosecutor's comments were a proper reply in kind. Furthermore, the appellant failed to object to these comments. Thus, this weighs against any claim of prejudice. Ex parte Kennedy. Even if the remarks constituted error, they did not rise to the level of plain error. See Ex parte Womack.

The appellant finally argues that the prosecutor commented on the appellant's silence when she referred to the appellant's writing a note to his attorney. As we read the statement in the context of the closing arguments, the comment was again a reference to the appellant's contention that a person outside of the car shot Shaw. We again note that no objection was made to the remark. Even if the remark constituted error, it certainly did not rise to the level of plain error. See Ex parte Womack.

VI

The appellant argues that he is entitled to a new trial due to several instances of prosecutorial misconduct. Some of these arguments have been previously addressed by this court in this opinion. We will address the remaining arguments separately below.

A

The appellant's first claim of prosecutorial misconduct involves a portion of the prosecutor's closing argument at the guilt stage of the trial in which she stated that the appellant believed he could get whatever he wanted and take whatever he needed from anybody. She further stated that the appellant believed that no man could punish him and that God was the only one who could punish him. The argument that the appellant claims to be error constitutes approximately two pages of the record. (R. 784-786.) The appellant contends that the prosecutor's argument constituted a “metaphysical tirade” and was prejudicial and inflammatory. We note that no objection was made to this portion of the closing argument. We have carefully reviewed the prosecutor's statements. “This court has concluded that the failure to object to improper prosecutorial arguments ... should be weighed as part of our evaluation of the claim on the merits because of its suggestion that the defense did not consider the comments in question to be particularly harmful.” Kuenzel, (quoting Johnson v. Wainwright, 778 F.2d 623, 629, n. 6 (11th Cir.1985)).

“ ‘[C]ounsel in the trial of any lawsuit has the unbridled right (to be sure, duty) to argue the reasonable inferences from the evidence most favorable to his client.’ ” Kuenzel, (quoting Ex parte Ainsworth, 501 So.2d 1269, 1270 (Ala.1986)). Prosecutors should be allowed wide latitude in their exhortations to the jury. Armstrong v. State, 516 So.2d 806 (Ala.Crim.App.1986); Varner v. State, 418 So.2d 961 (Ala.Crim.App.1982). The conduct by the accused during the trial is a proper subject of comment. Haywood v. State, 501 So.2d 515 (Ala.Crim.App.1986). Furthermore, “[i]n a proper case, the prosecuting attorney may characterize the accused or his conduct in language which, although it consists of invective or opprobrious terms, accords with the evidence in the case.” Nicks v. State, 521 So.2d 1018, 1023 (Ala.Crim.App.1987), aff'd, 521 So.2d 1035 (Ala.), cert. denied, 487 U.S. 1241, 108 S.Ct. 2916, 101 L.Ed.2d 948 (1988).

The prosecutor's remarks were legitimate inferences drawn from the evidence or proper comments on the appellant's conduct during the trial. There was evidence presented that the appellant stated that the State would have no case if Terry Dill did not testify. He also stated that the State had no case during the State's closing argument. There was also testimony that several days prior to the trial the appellant stated that he had asked God to forgive him for what he had done and that no one else should punish him for what he had done. Thus, the above-cited portion of the prosecutor's argument was not error. Even if it did constitute error, however, it does not rise to the level of plain error. “ ‘Plain error is error which, when examined in the context of the entire case, is so obvious that failure to notice it would seriously affect the fairness, integrity and public reputation of the judicial proceedings.’ ” Kuenzel, (quoting United States v. Butler, 792 F.2d 1528, 1535 (11th Cir.), cert. denied, Waites v. United States, 479 U.S. 933, 107 S.Ct. 407, 93 L.Ed.2d 359 (1986)).

B

The appellant argues that the prosecutor improperly expressed her personal opinion or professional judgment during closing arguments. We note that the appellant failed to object to any of the instances he now cites as error. Although the failure to object does not preclude our review in this case, it does weigh against any claim of prejudice. See Kuenzel. The appellant contends that the prosecutor erred during the penalty stage closing argument when she asked the jurors to do their duty under the law. Although the prosecutor's argument was improper, we do not find that it rose to the level of plain error. The statements “were not such as to undermine the fairness of the trial and contribute to a miscarriage of justice.” Martin v. State, 548 So.2d 488, 495 (Ala.Crim.App.1988), aff'd, 548 So.2d 496 (Ala.), cert. denied, 493 U.S. 970, 110 S.Ct. 419, 107 L.Ed.2d 383 (1989) (quoting United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 1047, 84 L.Ed.2d 1 (1985)). When looking at the prosecutor's remarks in context, it is clear that she was asking the jury to enforce the law, and as prescribed by law, impose the death penalty. After correctly discussing the applicable law, she asked the jurors to do their duty “ under the law.” (R. 858.) Thus, although we find that the prosecutor's remarks were inappropriate, when examined in the context of the entire closing argument, they do not rise to the level of plain error. See Kuenzel.

The appellant also contends that the prosecutor improperly argued her personal opinion when comparing the appellant's case to an earlier capital murder case. During a brief portion of her closing argument the prosecutor referred to a prior capital murder case in which many people sympathized with the victim. She then stated that nobody had sympathy for Leon Shaw, that she had no sympathy for him, and that she did not ask the jury to have sympathy for him. Our review of the remarks in the context of the prosecutor's entire closing argument reveals that the prosecutor was simply asking the jury to convict the appellant even though the evidence revealed that the victim was a drug dealer. She was asking the jury not to allow the victim's character to affect the verdict. Her argument may not have been based on facts in evidence, but it was certainly not based on her personal opinion. We do not interpret the prosecutor's comments as an attempt to cajole the jury into reaching a verdict that was based on her importance or credibility. See Kuenzel. Even if the comments constituted error, they do not rise to the level of plain error. See Kuenzel.

The appellant next contends that the following argument of the prosecutor constituted an improper expression of personal opinion or professional judgment concerning one of the witnesses: “Junatha Shaw, mother of two, two prior felony convictions for drugs, and shooting into an occupied dwelling, with a revocation pending on a theft case. She will get no sympathy I can guarantee from my office. But she can't stop either.” (R. 669.)

When viewed in context, these remarks were part of an argument on the character of the witness based on the evidence presented. Furthermore, the witness testified that she was not going to receive anything from the district attorney's office in exchange for her testimony and thus rebutted any inference to the contrary. When viewed in context, the prosecutor's comments were legitimate inferences based on the evidence. “[A] criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor's conduct affected the fairness of the trial.” United States v. Young, 470 U.S. at 11, 105 S.Ct. at 1044. Although the prosecutor could have chosen more appropriate language to make the same argument, her comments do not constitute reversible error. Furthermore, the appellant failed to object to this portion of the closing argument. Even if error, the comments certainly do not rise to the level of plain error. See Kuenzel; Ex parte Womack.

The appellant also objects to the following argument made by the prosecutor: “The police don't care. That's always a good smoke screen. That's always something to talk about. Where are the fingerprints? Where are the ballistics? Well, you're right. When the police don't know who in the world to go to until eight days later, certainly time enough for somebody who had a murder weapon to get rid of it, as well as cash money, and certainly enough time to use up the cocaine. And along the money lines, if you don't believe that thousands of dollars can be snorted or put in your vein in one week, then you don't know what it's like in the cocaine world. That money would have gone like that, as well as with the cocaine (indicating).” (R. 777.)

This argument certainly did not prejudice the appellant. Prosecutors are given “wide latitude in their exhortations to the jury.” Armstrong v. State, 516 So.2d 806, 809 (Ala.Crim.App.1986). Even if these statements constituted error, they certainly do not rise to the level of plain error. See Kuenzel.

The appellant also contends that during her closing argument, the prosecutor vouched for the credibility of eyewitness Terry Dill. We have carefully reviewed the record and find that although the prosecutor's remarks were inappropriate because they were based on facts not in evidence and could arguably be interpreted as vouching for the credibility of the witness, the remarks did not constitute reversible error. The thrust of the prosecutor's argument was that Terry Dill had already admitted to being a drug dealer so he had no reason to lie about what happened. This argument was made in response to the appellant's strenuous attack on Terry Dill's credibility.

In reviewing allegedly improper prosecutorial comments, conduct, and questioning of witnesses, our task is to consider their impact in the context of the particular trial, and not to view the allegedly improper acts and/or comments in the abstract. Whitlow v. State, 509 So.2d 252 (Ala.Crim.App.1987); Wysinger v. State, 448 So.2d 435 (Ala.Crim.App.1983); Carpenter v. State, 404 So.2d 89 (Ala.Crim.App.1980), cert. quashed, 404 So.2d 100 (Ala.1981).

In light of the brevity and isolated nature of the remarks and the thorough instructions of the trial court which charged the jury that they were the exclusive judges of the evidence in the case and the sole judges of the credibility of the witnesses, we find that the remarks, although inappropriate, do not constitute reversible error. The statements did not so infect the trial with unfairness “as to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986) (citation omitted).

C

The appellant contends that the prosecutor made several misleading comments to the jury during the voir dire and in her opening statement during the penalty stage concerning aggravating and mitigating circumstances and the imposition of the death penalty. He also contends that she mislead the jurors during the voir dire as to what constituted reasonable doubt and as to the law on a juror's eligibility to serve on the jury based on his or her views of the death penalty. The appellant failed to object to any of alleged erroneous statements. We find it unnecessary to set out these contentions individually because, after a careful review of the record, we find that they have no merit. Even if error had occurred, it certainly did not rise to the level required for plain error. See Kuenzel. We also note that the jury was thoroughly instructed on the concepts of reasonable doubt and on aggravating and mitigating circumstances.

VII

The appellant contends that there was insufficient evidence of causation to sustain the verdict and that the trial court erred in failing to instruct the jury on the element of causation. These arguments will be addressed separately below.

A

The appellant contends that there is insufficient evidence to sustain the verdict because Leon Shaw's death was caused by his pulling out his feeding tube and dehydration rather than by the gunshot wound. We disagree. The record reveals that two physicians testified that the victim died as a result of complications from a gunshot wound. There was testimony that the victim was admitted to the hospital with an injury that was “generally not survivable.” (R. 305.)

“A person is criminally liable if the result would not have occurred but for his conduct, operating alone or concurrently, with another cause, unless the concurrent cause was sufficient to produce the result and the conduct of the actor clearly insufficient.” Ala.Code 1975 § 13A-2-5(a). “Where, as here, the wound inflicted by defendant upon the victim is dangerous to life, the fact that there are other contributing causes of death does not prevent such a wound from being the legal cause of death. It does not have to be the sole cause. This is true whether (1) the other cause precedes, (2) the other cause is synchronous with, or (3) the other cause follows, commission of the felonious act charged.” (citations omitted.) Smith v. State, 354 So.2d 1167, 1170 (Ala.Crim.App.1977), cert. denied, 354 So.2d 1172 (Ala.1978). We see no reasonable basis for a conclusion that the death was not caused by the gunshot wound. The evidence clearly supports the verdict.

B

The appellant contends that the trial court erred in failing to charge the jury on the specific element of causation. The appellant did not object to the court's oral charge, did not orally request such a charge, and did not submit a written requested charge on this issue. Thus, it is impossible for this court to determine what specific charge the appellant would have had the court give to the jury. In any event, we find that the court's failure to give a charge on causation did not constitute reversible error. The trial court properly charged the jurors that they must find that the defendant's conduct caused the death of another person. He also instructed the jury that all elements of the offense must be proved beyond a reasonable doubt. In light of § 13A-2-5(a)'s “but for” test, it is more likely that a complete instruction on causation would actually have been favorable to the prosecution. See Henderson v. Kibbe, 431 U.S. 145, 156 n. 16, 97 S.Ct. 1730, 1738 n. 16, 52 L.Ed.2d 203 (1977). Furthermore, the appellant's defense was based on the assertion that someone other than the appellant murdered Leon Shaw. If the jury believed the appellant's version of the incident they would have acquitted him because they would have believed that the appellant did not shoot Leon Shaw. Thus, the trial court did not err on failing to instruct the jury on the specific element of causation.

VIII

The appellant contends that the trial court erred in failing to instruct the jury on the lesser included offenses of first degree assault and first degree attempted murder. The appellant bases this argument on the fact that Shaw did not die until 9 months after he was shot. He contends that a jury could have found that Shaw may have died from “the inaction or inattention to the victim's medical problems by the victim's family or from the victim's own conscious or unconscious desire to die.” (Appellant's brief at 66-67.) The appellant did not object to the trial court's failure to instruct on these offenses. While this failure does not preclude our review in capital cases, it does weigh against any claim of prejudice. Bui v. State, 551 So.2d 1094 (Ala.Crim.App.1988), aff'd, 551 So.2d 1125 (Ala.1989), vacated on other grounds, 499 U.S. 971, 111 S.Ct. 1613, 113 L.Ed.2d 712 (1991).

The jury should be charged on a lesser included offense when there is a reasonable theory from the evidence to support such a position. Ex parte Julius, 455 So.2d 984 (Ala.1984), cert. denied, 469 U.S. 1132, 105 S.Ct. 817, 83 L.Ed.2d 809 (1985). “A trial judge may refuse to charge on a lesser included offense when it is clear to the judicial mind that there is no evidence to support the jury's being charged on the lesser included offense.” Gurganus v. State, 520 So.2d 170, 174 (Ala.Crim.App.1987). When the accused denies committing the offense charged, he is not entitled to instructions on a lesser included offense. Daly v. State, 442 So.2d 143 (Ala.Crim.App.1983).

There was absolutely no factual basis to support a conviction for assault or attempted murder. There was no evidence presented from which the jury could have reasonably inferred that the appellant shot Shaw but that something else caused his death. The only reasonable conclusion from the evidence was that the appellant murdered Shaw or that someone else murdered Shaw.

IX

The appellant next contends that he is entitled to relief because of various errors that occurred during the penalty phase of his trial. These claims will be addressed separately below.

A

The appellant first contends that the trial court failed to adequately inform the jurors that there was no requirement that mitigating circumstances be unanimously found. He relies on Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). We note initially that the appellant failed to object to the trial court's instructions on these grounds. While that does not preclude our review of this claim, it does weigh against any claim of prejudice. Bui.

The appellant's argument was previously rejected by this court in Kuenzel, supra, wherein we stated: “We have examined the complained of portion of the trial judge's charge on mitigating circumstances and find that it is in accordance with the pattern jury instruction and in accordance with § 13A-5-45(g). Therefore, we find no plain error.... The basis of the defendant's argument lies in the fact that the trial judge ‘used the collective “you” throughout its instructions.’ The defendant contends that ‘[i]t would be perfectly reasonable for a juror to conclude ... that “you” means all of you, unanimously, when determining whether a mitigating circumstance existed.’ ...

“We reject this contention as did the Alabama Supreme Court in Ex parte Martin, 548 So.2d 496, 499 (Ala.), cert. denied, 493 U.S. 970, 110 S.Ct. 419, 107 L.Ed.2d 383 (1989): “ ‘The charge to the jury in the instant case was in accordance with the pattern jury instruction and in accordance with Ala.Code 1975 § 13A-5-45(g). The jury was told that the defendant had the burden of injecting an issue of mitigating circumstances, but that once it was injected the state had the burden of disproving the factual existence of any mitigating circumstances by a preponderance of the evidence. There was no jury charge or verdict form to indicate that at least 10 jurors must agree on the existence of a mitigating circumstance. “ ‘We have considered the trial court's charge to the jury in light of the holding in Mills and are of the opinion that the jurors could not have reasonably believed that they were required to agree unanimously on the existence of any mitigating factor.’ ” Kuenzel. Based on the above, we find no error in the trial court's instructions.

B

The appellant also contends that the trial court erred because it did not properly instruct the jury as to unanimity regarding aggravating circumstances. The appellant did not object to any penalty stage jury instructions concerning the burden of proof.

The trial court's instructions substantially followed the pattern jury instructions recommended by the Alabama Supreme Court. This Court will not hold that the trial court plainly erred when the jury was instructed pursuant to those pattern instructions. See Ex parte Martin; 548 So.2d 496 (Ala.), cert. denied, 493 U.S. 970, 110 S.Ct. 419, 107 L.Ed.2d 383 (1989); Ex parte Harrell, 470 So.2d 1309, 1312 (Ala.), cert. denied, 474 U.S. 935, 106 S.Ct. 269, 88 L.Ed.2d 276 (1985); Kuenzel. Furthermore, the instruction was a correct statement of the law which correctly informed the jury that unanimity was required to find the existence of an aggravating circumstance.

C

The appellant next contends that the trial court violated the principles of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), by instructing the jury as follows: “A mitigating circumstance does not have to be included in the list that I have read to you in order for it to be considered by you. In addition to the mitigating circumstances previously specified, mitigating circumstances shall include any aspect of the defendant's character or record in any of the circumstances of the offense that the defendant offers as a basis for a sentence of life imprisonment without parole instead of death. A mitigating circumstance considered by you should be based on the evidence you have heard.” (R. 872-73.) (emphasis added.)

With the exception of the word “in” emphasized in the quoted charge, which is the portion of the charge to which the appellant objects, the charge is identical to that provided in Alabama Pattern Jury Instructions. The pattern jury instruction provides in relevant part: “shall include any aspect of the defendant's character or record and any of the circumstances of the offense.” “ Proposed Pattern Jury Instructions for use in Sentence Phase of Capital Cases Tried Under Act No. 81-178 (Alabama Bar Institute for Continuing Legal Education 1982).” For several reasons, it appears that this discrepancy is most probably a typographical error. The appellant made no objection to the charge. Furthermore, the other portion of the charge was identical to the pattern jury charge. If such is the case, the charge was taken directly from Lockett. Because we cannot base our ruling on speculation, however, we also find that the appellant is not entitled to relief even if the judge spoke the word “in” rather than “and” if the charge was given as it appears.

Under the charge as it appears above, the jury could have reasonably concluded that they could consider any aspect of the appellant's character even though the jury may have believed it could only consider his record as it applied to the circumstances of the offense. Furthermore, even if error occurred, any error was harmless. See Ex parte Whisenhant, 482 So.2d 1241 (Ala.1983) (harmless error rule applies in capital cases at the sentencing hearing). Both the prosecutor and the appellant's attorney informed the jury that it could consider anything in mitigation. Furthermore, the aggravating circumstances clearly and abundantly outweighed what the appellant alleges to be the mitigating circumstances. See Baldwin v. State, 456 So.2d 117 (Ala.Crim.App.1983), aff'd, 456 So.2d 129 (Ala.1984), aff'd, 472 U.S. 372, 105 S.Ct. 2727, 86 L.Ed.2d 300 (1985). See also Tafero v. Dugger, 873 F.2d 249 (11th Cir.1989), cert. denied, 494 U.S. 1090, 110 S.Ct. 1834, 108 L.Ed.2d 962 (1990) (harmless error not to charge jury on nonstatutory mitigating circumstances when there was no reasonable probability that jury would have reached a different result had they been given such an instruction); White v. Dugger, 523 So.2d 140 (Fla.1988); Ford v. State, 522 So.2d 345 (Fla.1988).

D

The appellant argues in a one-sentence footnote that the trial court's instruction to the jury regarding the State's burden of disproving mitigating circumstances by a preponderance of the evidence violated his constitutional rights. This claim has no merit. We also note that the appellant failed to object to this instruction at trial. Ala.Code 1975, § 13A-5-45(g), provides that the defendant has the burden of injecting mitigating circumstances and when this occurs, the State has the burden of disproving the factual existence of those mitigating circumstances by a preponderance of the evidence. Aggravating circumstances must be proved beyond a reasonable doubt. Ala.Code 1975, § 13A-5-45(e).

In Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), the Supreme Court held that defendants may be required to prove mitigating circumstances by a preponderance of the evidence as long as the State's method of allocating the burdens of proof did not lessen the State's burden of proving every element of the offense charged, or in that case, the existence of aggravating circumstances. In Alabama, the defendant only has to “inject” the existence of mitigating circumstances and the State must disprove their existence by a preponderance of the evidence. This in no way lessens the State's burden of proving the elements of its case or the existence of aggravating circumstances. In fact, the State still has a greater burden in disproving the existence of mitigating circumstances than the defendant has in introducing mitigating circumstances. The defendant need only “inject” the issue. We do not find Alabama's method of allocating the burdens of proof unconstitutional. Furthermore, the State did not attempt to disprove any of the appellant's alleged mitigating circumstances. Thus, the jury did not even have to consider the State's burden of disproving the existence of mitigating circumstances.

E

The appellant contends that the trial court erred in failing to adequately instruct the jury as to the mitigating circumstance that “[t]he victim was a participant in the defendant's conduct or consented to it.” Ala.Code 1975, § 13A-5-51(3). The appellant did not object to the lack of a more specific instruction. Thus, any error in the instruction must rise to the level of plain error. The instruction was identical to Alabama's “ Proposed Pattern Jury Instructions for use in the Sentence Phase of Capital Cases Tried Under Act No. 81-178 ” and thus, did not constitute plain error. Kuenzel. Furthermore, the appellant has failed to specify how the court could have further instructed the jury as to this mitigating circumstance.

F

The appellant also contends that the trial court erred to reversal in failing to give the jury preliminary instructions at the penalty phase of the trial and prior to voir dire and jury selection. He argues that failure to give such instructions prior to voir dire resulted in the jurors' failure to truthfully answer questions concerning the imposition of the death penalty. The appellant failed to object to either of these alleged erroneous omissions. These claims have no merit. There is no requirement that the trial court give the jury such preliminary instructions. The jury was thoroughly and properly instructed during the penalty phase of the trial. The jurors were thoroughly questioned about their feelings concerning the death penalty and surely could honestly answer such questions without preliminary instructions. We cannot see how the appellant was harmed by the absence of such preliminary instructions. Even if error occurred, it certainly does not rise to the level required for a finding of plain error. See Ex parte Womack, 435 So.2d 766, 769 (Ala.), cert. denied, 464 U.S. 986, 104 S.Ct. 436, 78 L.Ed.2d 367 (1983).

G

The appellant next contends that the trial court erred in not asking jurors whether they had fixed opinions in favor of the death penalty. The appellant did not question the jurors as to whether they had fixed opinions in favor of the death penalty even though he had ample opportunity to do so during the voir dire. Furthermore, he never requested that the trial court question the jury on this matter. This Court recently rejected the same argument in Henderson v. State, 583 So.2d 276 (Ala.Crim.App.1990). In light of Henderson, we find that the court did not err in failing to life-qualify the jury.

H

The appellant contends that prosecutorial misconduct rendered a death sentence constitutionally impossible. Most of the claims the appellant raises in this section have been previously addressed in this opinion.

The appellant argues that prosecutorial misconduct occurred when the prosecutor relied on three aggravating circumstances after initially indicating that she would rely on only two aggravating circumstances. The appellant did not object to this alleged act of misconduct. The record reveals that, prior to the penalty portion of the trial and outside the presence of the jury, the prosecutor indicated that she would be relying on § 13A-5-49(1) (capital offense committed by a person under a sentence of imprisonment) and § 13A-5-49(4) (capital offense committed while defendant was engaged in the commission of a robbery). During the course of the penalty phase hearing, however, the prosecutor introduced a certified copy of the appellant's prior convictions for second degree robbery and for second degree theft. See Ala.Code 1975, 13A-5-49(2) (defendant was previously convicted of another capital offense or felony involving the use or threat of violence to the person). The appellant's attorney did not object to the admission of the appellant's certified prior convictions, including the second degree robbery. In fact, when specifically asked about the convictions, he stated that he had no objection. There is absolutely no evidence that the appellant's attorney was unaware of the prior convictions prior to the hearing. The record does not indicate that any prosecutorial misconduct occurred. Furthermore, even if it had, the alleged error certainly did not rise to plain error requiring relief for the appellant. See Kuenzel.

The appellant next contends that prosecutorial misconduct requiring reversal of the death sentence occurred when the prosecutor elicited the details concerning his prior second degree robbery conviction. He alleges that the prosecutor improperly introduced a nonstatutory aggravating circumstance into evidence and that such evidence was based on inadmissible hearsay. The record reveals that the prosecutor admitted certified copies of a conviction for second degree robbery and for first degree theft. The appellant's parole officer then testified that the appellant was under a sentence of imprisonment at the time of the offense in question. On cross-examination, the appellant asked the parole officer about the details of the second degree robbery conviction. The parole officer testified concerning the violence surrounding that conviction. The appellant asked for information in a probation report regarding the offense. On redirect examination, the prosecutor elicited further details about the offense which the appellant did not bring out during cross-examination.

“Any evidence which has probative value and is relevant to sentence shall be received at the sentence hearing regardless of its admissibility under the exclusionary rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements.” Ala.Code 1975, § 13A-5-45(d). See also Stephens v. State, 580 So.2d 11 (Ala.Crim.App.1990). Thus, the appellant's hearsay claim has no merit. Furthermore, the testimony concerning the violence surrounding the robbery conviction was properly admitted to show the violent nature of the offense under Ala.Code 1975, § 13A-5-45(c). Siebert v. State, 562 So.2d 586 (Ala.Crim.App.1989), aff'd, 562 So.2d 600 (Ala.), cert. denied, 498 U.S. 963, 111 S.Ct. 398, 112 L.Ed.2d 408 (1990).

I

The appellant next contends that the trial court erred in failing to find the existence of any mitigating circumstances. The appellant specifically argues that the failure to find the following statutory and nonstatutory mitigating circumstances requires the reversal of his death sentence: (1) the fact that the appellant refused to plead guilty and receive a sentence of life imprisonment indicated that the appellant had mental health problems; (2) the fact that Leon Shaw was a participant in the appellant's conduct; and (3) the fact that the appellant was a drug addict and was in a state of extreme mental or emotional disturbance at the time of the murder and did not have the capacity to understand the criminality of his conduct.

The record reveals that the trial court found no statutory or nonstatutory mitigating circumstances. This finding is fully supported by the evidence in this cause. See Brownlee v. State, 545 So.2d 151 (Ala.Crim.App.1988), aff'd, 545 So.2d 166 (Ala.), cert. denied, 493 U.S. 874, 110 S.Ct. 208, 107 L.Ed.2d 161 (1989); Thomas v. State, 539 So.2d 375 (Ala.Crim.App.), aff'd, 539 So.2d 399 (Ala.1988); Tarver v. State, 500 So.2d 1232 (Ala.Crim.App.), aff'd, 500 So.2d 1256 (Ala.1986), cert. denied, 482 U.S. 920, 107 S.Ct. 3197, 96 L.Ed.2d 685 (1987).

J

The appellant argues that the trial court erred in its sentencing order in which it stated that “the court holds that the aggravating circumstances outweigh the mitigating circumstances and compel the court to affix punishment at death.” The appellant claims that this statement indicates that the trial court misunderstood the law as it applies to the death sentence and believed that the death sentence was mandatory. This argument has no merit. It is clear from the record, including all of the jury instructions and the sentencing order, that the trial court clearly understood the law and did not believe that a death sentence was mandatory. Furthermore, we do not agree with the appellant's reading of the sentencing order.

X

The appellant argues that the trial court erred in failing to find that Leon Shaw was “a participant in the defendant's conduct or participated in it.” Ala.Code 1975, § 13A-5-51(3). The appellant's argument that Leon Shaw's refusal to give him cocaine made Shaw a participant in the appellant's conduct has no merit and is not a reasonable interpretation of the statute. Section 13A-5-51(3) contemplates a situation wherein the victim participated in the capital crime with the defendant. Furthermore, the appellant seems to argue that because Leon Shaw was a drug dealer, the appellant should not have received the death penalty. This argument likewise has no merit. The relative worth of the victim is not a consideration in determining whether to impose the death penalty. See Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987).

XI

The appellant next contends that the trial court erred in two instances by limiting his cross-examination of Junatha Shaw. These arguments will be addressed separately below.

A

The appellant contends that the trial court erred in failing to allow him to cross-examine Junatha Shaw about the underlying offenses for which she had been on probation and a new charge which precipitated a probation revocation hearing. The record reveals that Junatha Shaw had two convictions for cocaine possession and one conviction for shooting into an occupied dwelling. She also had a pending theft charge against her and was facing revocation of her probation as a result of that charge. The record reveals that prior to Junatha Shaw's taking the stand, the trial court ruled that the appellant could inquire into the witness's pending revocation hearing in order to show bias but prohibited the appellant from inquiring into the underlying details of the offenses.

We need not address the merits of this issue because the record reveals that Junatha Shaw's prior convictions, the pending theft charge, and the possible probation revocation were brought out during the State's direct examination of the witness. The prosecutor also questioned Shaw as to any agreements made with her in exchange for her testimony. The appellant also questioned the witness on cross-examination concerning the cocaine possession convictions. The appellant could have further examined the witness regarding bias or any agreements made with the State concerning the pending charge but apparently chose not to do so. Thus, even if the trial court's initial ruling prohibiting the appellant from going into the underlying offenses constituted error, any error was harmless in light of the fact that all of the underlying offenses were presented to the jury. Furthermore, the appellant was never prohibited from questioning the witness about any bias she may have had or any agreements she may have made with the State in exchange for her testimony. The appellant was in no way harmed or prejudiced by the trial court's ruling.

B

The appellant next contends that the trial court erred in not allowing him to question Junatha Shaw about a “drug raid” that occurred at her house after the victim, Leon Shaw, has returned home from the hospital. This argument has no merit. It is not permissible to prove a witness's good or bad character or to fortify or impeach a witness's testimony by proving particular acts. Carroll v. State, 555 So.2d 805 (Ala.Crim.App.1989). The record reveals that the appellant was attempting to impugn the witness's character by the introduction of an unrelated and immaterial specific bad act. Furthermore, it is unclear from the appellant's question whether the witness was the object of the search, whether a search warrant was even executed, whether the witness had any guilty involvement in the act forming the basis of the reason for the search or, if there was a search, whether anything was found. We note that after the court sustained the State's objection, the appellant did not make an offer of proof. See Freeman v. State, 453 So.2d 776 (Ala.Crim.App.1984). The trial court did not err in refusing to allow the appellant to cross-examine the witness about an alleged, unrelated drug raid.

XII

The appellant next contends that the trial court erred in allowing Dr. Keith Langford to testify as to the victim's cause of death because his testimony was based partly on a hospital discharge summary which was prepared by another physician who did not testify. The record reveals that the hospital records were in evidence at the time of Dr. Langford's testimony. This issue was recently addressed by the Alabama Supreme Court, which stated that “a medical expert may give opinion testimony based in part on the opinions of others when those other opinions have been admitted into evidence.” Ex parte Bailey, 590 So.2d 354, (Ala.1991). See also Ex parte Wesley, 575 So.2d 127 (Ala.1990); Nash v. Cosby, 574 So.2d 700 (Ala.1990). Thus, Dr. Langford's testimony concerning the cause of death was properly admitted.

XIII

The appellant next contends that the trial court erred in allowing Dr. Robert Brissie, the coroner who performed the autopsy on the victim, to testify as to the ultimate fact in issue in the case. He specifically points to Dr. Brissie's statement that “the manner of death was best described as homicide.” (R. 330.) We note that the appellant failed to object to this testimony at the trial. Although this failure to object does not preclude our review in a capital case, it does weigh against any claim of prejudice. See Bui.

Although a witness may not give an opinion on an ultimate fact in issue, Brissie's testimony does not constitute reversible error under the circumstances of this case. Dr. Brissie had already testified that the cause of death was complications from a gunshot wound to the head. His use of the word “homicide” did not change the nature of his testimony that the victim's death was the result of a gunshot wound. Furthermore, there was no dispute at trial that someone shot Leon Shaw. The appellant's theory of the case was that someone else shot Leon Shaw. Even if the appellant had properly objected, any error in Dr. Brissie's testimony did not affect the substantial rights of the appellant. See Page v. State, 487 So.2d 999 (Ala.Crim.App.1986). Furthermore, any error in the testimony was not so egregious that it “seriously affect[ed] the fairness, integrity or public reputation of the judicial proceedings.” United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (citation omitted).

XIV

The appellant contends that the trial court erred in allowing the State to refer to the victim's surviving children during the guilt stage closing argument in violation of Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). The appellant argues that the following portion of the closing argument constitutes reversible error: “So why are we here? Who does care about Leon Shaw? Who cares that this man was assassinated just four blocks from the courthouse? Who cares that he's lying in his grave today? “Well, you would think that these people do (indicating). He did leave two children, who have to grow up with the fact that their father was murdered because of cocaine. That he was a dealer, that he was a criminal. You would think these people would care.” (R. 665-66.)

The appellant failed to object to this portion of the closing argument.

Although we do not approve of the prosecutor's comments, they certainly do not rise to the level of those condemned in Booth. See Kuenzel. Rather than asking for sympathy, the prosecutor was in fact personalizing the victim in a negative light. She was certainly not implying that the jury should have sympathy for the victim. Furthermore, although the comments personalized the victim, they were brief enough that we cannot conclude that they prejudiced the appellant. See Kuenzel. prosecutor's remarks were markedly different in scope and tone from those condemned in Booth and did not present the emotionally charged appeal that was presented in Booth. While we do not approve of the prosecutor's comments, they do not constitute reversible error. See, eg., Bertolotti v. Dugger, 883 F.2d 1503 (11th Cir, 1989), cert. denied, 497 U.S. 1032, 110 S.Ct. 3296, 111 L.Ed.2d 804 (1990); Gilmore v. Armontrout, 861 F.2d 1061 (8th Cir.1988), cert. denied, 490 U.S. 1114, 109 S.Ct. 3176, 104 L.Ed.2d 1037 (1989); People v. Miranda, 44 Cal.3d 57, 241 Cal.Rptr. 594, 629, 744 P.2d 1127, 1161 (1987), cert. denied, 486 U.S. 1038, 108 S.Ct. 2026, 100 L.Ed.2d 613 (1988) (prosecutor's comments regarding effect of murder on victim's family held harmless beyond a reasonable doubt); People v. Ghent, 43 Cal.3d 739, 239 Cal.Rptr. 82, 739 P.2d 1250 (1987), cert. denied, 485 U.S. 929, 108 S.Ct. 1099, 99 L.Ed.2d 261 (1988) (same). They certainly do not rise to the level of plain error.

XV

The appellant next contends that his death sentence constitutes cruel and unusual punishment.FN2 The main thrust of the appellant's argument is that his sentence constitutes cruel and unusual punishment because he rejected a settlement offer of life imprisonment. He argues that he was given the death penalty because he requested a jury trial. He also contends that he did not understand the terms of the settlement offer when it was made. This argument has no merit. FN2. Many of the reasons given by the appellant to support this contention have been previously addressed in this opinion or are addressed later in this opinion.

The appellant's attorney stated to the trial court that the appellant understood the terms of the offer. The appellant stated to the court that he understood the difference between the life sentence he would receive pursuant to the offer and a capital murder sentence. There is no evidence that the death penalty was imposed because the appellant requested a jury trial. In essence, the appellant is arguing that every time a defendant receives a sentence which is greater than the sentence offered as a settlement, the sentence would constitute cruel and unusual punishment. We certainly cannot accept such a hard and fast rule. Each case must be decided on its own facts. The record in this case supports the imposition of the death penalty. (See Part XXIII of this opinion.)

XVI

The appellant next contends that the trial court erred in allowing Terry Dill to testify as to hearsay statements made by his mother, Abby Dill. Specifically, the appellant objects to the admission of Abby Dill's hearsay statement that in the late afternoon on the day of the murder, the appellant telephoned her and told her four different stories. The appellant contends that the reference to “four different stories” was prejudicial to him because it gave the jury the impression that he was lying. Although the appellant failed to object to this testimony at trial, he contends that the statement constitutes plain error and thus, requires his conviction to be reversed. We disagree.

Even if an objection had been made, the admission of the hearsay testimony would have been harmless error because it did not affect the substantial rights of the appellant. See Page v. State, 487 So.2d 999 (Ala.Crim.App.1986). Abby Dill herself testified during the trial to many statements made to her by the appellant. She testified that the appellant called her a number of times between 5:00 p.m. and 6:00 p.m. on the day of the murder. She further testified that immediately before the appellant was arrested he told her to get some money and send him and Terry Dill out of town. She further testified that on the Friday before the trial the appellant called and told her that Terry Dill should not say anything and “take some years.” (R. 447.) Abby Dill's own testimony on direct and cross-examination certainly gave rise to a stronger inference that the appellant was lying than did the hearsay statement admitted through Terry Dill. In light of the entire record, any error in the admission of the testimony was harmless. Furthermore, the admission of Terry Dill's testimony certainly did not rise to the level required for plain error. See Kuenzel.

XVII

The appellant next contends that the trial court erred to reversal in referring to the appellant's possible punishment during the trial court's guilt phase instructions. The court instructed the jury as follows: “Ladies and gentlemen, of course, it's my duty at this time to give you those principles of law which you have to apply to the facts in this case as you find those facts. And let me stop there and say this, that the defendant in this case is charged with having committed a capital murder, capital offense. Of course, a capital offense is an offense for which the punishment is either life imprisonment without parole or death. The law provides that if a defendant is convicted of a capital offense, additional proceedings will be held to determine whether his punishment is to be life without parole or death. But at this time, you are not to concern yourselves with any issue of punishment. Instead the only determination you are to make at this time is whether the State has proven beyond a reasonable doubt and to a moral certainty that the defendant is guilty of the capital offense or any lesser included offense, which I'll explain later. And that's your only consideration at this time.” (R. 789-790.) The charge is substantially the same as the charge suggested in the seventh of the “General Considerations” of the “ Proposed Pattern Jury Instructions for use in the Guilt Stage of Capital Cases Tried Under Act No. 81-178 (Alabama Bar Institute for Continuing Legal Education 1982).” Immediately before the proposed charge, the pattern jury instructions state, “The trial judge should consider giving the following instruction or one similar to it, either at the beginning of the guilt stage trial or at some place during the oral charge to the jury at the end of the guilt stage or both.” Id. The charge in no way diverts the jury's attention from the main issue of guilt. See Crowe v. State, 435 So.2d 1371 (Ala.Crim.App.1983). We find no error in the court's charge.

XVIII and XIX

The appellant next contends that the trial court erred in admitting his statement because he was a drug addict and could not have knowingly waived his Miranda rights. He also contends that the statement was inadmissible because the police intentionally failed to tape the statement. The appellant did not object to the admissibility of the statement at trial.

The record reveals that the appellant signed a waiver of rights form. Sergeant Duncan testified that he read the appellant his Miranda rights and had the appellant read along with him. He testified that the appellant stated that he understood his rights and wanted to talk about what happened. Duncan further testified that he had been around people who were under the influence of drugs and/or alcohol. He testified that at the time the statement was taken the appellant did not appear to be under the influence of drugs or alcohol. Duncan testified that the appellant was lucid. He further testified that the appellant was not threatened in any way or promised a reward. He further testified that he did not suggest using a tape recorder at that point, but that he took notes as the appellant was talking.

The finding of the trial court as to voluntariness will not be disturbed unless it appears contrary to the great weight of the evidence or is manifestly wrong. Lewis v. State, 535 So.2d 228 (Ala.Crim.App.1988); Magwood v. State, 494 So.2d 124 (Ala.Crim.App.1985), aff'd, 494 So.2d 154 (Ala.), cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986). “The fundamental requirements for voluntariness are that the court must conclude, in order to find a defendant's confession voluntary, that he made an independent and informed choice of his own free will, that he possessed the capability to do so, and that his will was not overborne by pressures and circumstances swirling around him.” Lewis, at 235. See also Magwood. We find that the trial court did not err in admitting the statement. There was sufficient evidence that the appellant was capable of understanding his rights and indeed, that he understood his Miranda rights. We also note that the appellant presented absolutely no evidence that he was under the influence of drugs or alcohol at the time he gave the statement.

The trial court likewise did not err in admitting the statement even though it was not tape recorded. There is no right or requirement that a statement be tape recorded. The fact that the statement was not taped went to its weight, not its admissibility. See Hammins v. State, 439 So.2d 809 (Ala.Crim.App.1983); Alexander v. State, 370 So.2d 330 (Ala.Crim.App.), cert. denied, 370 So.2d 332 (Ala.1979). The appellant was free to test Sergeant Duncan's memory during cross-examination.

XX

The appellant next contends that the introduction of his presentence report and the trial court's consideration of the report denied him a fair sentencing hearing. The appellant bases his allegation on several grounds of error which will be addressed separately below. We note that the appellant did not object to the presentence report.

A

The appellant contends that he did not receive the presentence report in a timely manner and as a result, that he did not have an adequate opportunity to review the report and to rebut the hearsay statements therein. We note that this court has held numerous times that presentence reports are admissible and may be considered by the trial court as long as the information contained herein is relevant to the sentencing and the defendant has the opportunity to rebut the information. See, e.g., Kuenzel; Thompson v. State, 503 So.2d 871 (Ala.Crim.App.1986), aff'd, 503 So.2d 887 (Ala.), cert. denied, 484 U.S. 872, 108 S.Ct. 204, 98 L.Ed.2d 155 (1987).

Although the record reveals that the appellant had a copy of the presentence report prior to the sentencing hearing, there is no evidence in the record to indicate when he received that report. The appellant specifically stated that he had no objection to the admission of the presentence report. He did not indicate that he had not had time to review the report nor did he ask for a continuance. This evidence indicates that the appellant received the report in a timely manner. We can find no evidence in the record that the appellant received the report in an untimely manner or was prejudiced in any way. See, e.g., Henderson v. State, 583 So.2d 276 (Ala.Crim.App.1990); Thompson.

B

The appellant contends that the presentence report contained hearsay statements indicating that he had been involved in criminal activity for which he was not convicted. He further claims that he did not have the opportunity to rebut these statements and that the inclusion of that information in the report prejudiced him. This argument has no merit.

The information contained in the report to which the appellant objects concerns the vehicle in which Leon Shaw was found and appears as follows: “The tag on the vehicle was registered to Aaron Brown, and the VIN [vehicle identification number] of the vehicle was registered to Alabama Farm Bureau on a salvaged vehicle.” (Supp.R. 9.) The appellant contends that this information indicates that the appellant was in a stolen vehicle and thus prejudiced him. We disagree. As we read the report, this information simply referred to the car in which Shaw was found. It certainly does not imply that the appellant was involved in stealing a car. Furthermore, the evidence at trial led to the inference that the car in which Shaw was found belonged to Leon Shaw. Leon Shaw was driving the car when he picked up Terry Dill. There is no mention anywhere in the record that the appellant had been involved in a car theft. Furthermore, there is nothing in the record to indicate that the trial court considered this information from presentence report in sentencing the appellant. This information was not mentioned at the sentencing hearing or in the sentencing order. Furthermore, the appellant had the opportunity to, but did not, rebut the information. Even if the statement was interpreted as a reference to a crime for which the appellant was not convicted, such information would not have made the report per se prejudicial in light of the fact that the trial court in no way considered the information in imposing sentence. See, e.g., Johnson v. State, 521 So.2d 1006 (Ala.Crim.App.1986), aff'd, 521 So.2d 1018 (Ala.), cert. denied, 488 U.S. 876, 109 S.Ct. 193, 102 L.Ed.2d 162 (1988).

C

The appellant next contends that the presentence report was prejudicial because it contained hearsay information that he told his parole officer that Terry Dill had murdered Leon Shaw. We note that the presentence report was not prepared by the parole officer to whom the appellant made the statement.

We note that although the presentence report is an out-of-court statement and is entirely hearsay, it is admissible under Ala.Code 1975, § 13A-5-47. Thompson. The trial court is only required to provide a fair opportunity for rebuttal.

The appellant has failed to show that he was prejudiced by the statement. The appellant's culpability was established by the jury's verdict of guilty on the basis of which a conviction was entered. See Ex parte Davis, 569 So.2d 738 (Ala.1990); Thompson. The appellant was sentenced for that conviction. The appellant's sentence was based on the existence of three aggravating circumstances and the fact that there were no mitigating circumstances. Thus, this argument is without merit.

D

The appellant finally contends that the trial court erred in considering the presentence report because it was based in part on an interview held without counsel present and without first advising him of his Miranda rights. He specifically refers to his statement that Terry Dill was the person who murdered Leon Shaw. That statement was made to the appellant's parole officer. The presentence report indicates that the officer who prepared the report did not personally interview the appellant.

We find that even if error had occurred in the failure to give the appellant his Miranda warnings and to notify his counsel of the interview, any error was harmless because the statements attributed to the appellant were constitutionally insignificant. See Kuenzel. Furthermore, it is clear from the record that the trial court accurately weighed the aggravating and mitigating circumstances based on the evidence presented at the sentencing hearing and the trial and not on anything contained in the presentence report. “We find beyond a reasonable doubt that the inclusion of these statements did not contribute to or affect the trial judges's imposition of the death penalty.” Kuenzel, at 526.

We note that some federal jurisdictions have held that Miranda warnings are not required prior to a presentence interview when the defendant has already been convicted of a crime. See, e.g., United States v. Cortes, 922 F.2d 123 (2d Cir.1990); United States v. Rogers, 921 F.2d 975 (10th Cir.), cert. denied, 498 U.S. 839, 111 S.Ct. 113, 112 L.Ed.2d 83 (1990); United States v. Jackson, 886 F.2d 838 (7th Cir.1989) (the court also held that the Sixth Amendment right to assistance of counsel likewise did not extend to the defendant's presentence interview by his probation officer). See also United States v. Rea, 678 F.2d 382 (2d Cir.1982) (prisoner released on probation not entitled to Miranda warnings when speaking with probation officer); United States v. MacKenzie, 601 F.2d 221 (5th Cir.1979), cert. denied, 444 U.S. 1018, 100 S.Ct. 673, 62 L.Ed.2d 649 (1980) ( Miranda warnings not required at interview with probation officer regarding revocation of probation).

XXI

The appellant next contends that the trial court erred in failing to sua sponte order a competency hearing under the authority of Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). The appellant contends that the trial court must have observed or learned of aberrant behavior on the part of the appellant because the court entered an order for a mental examination. The record reveals that this order was set aside approximately a month after it was entered because the appellant's counsel failed to respond. (R. 983-84.) The appellant also contends that his failure to accept the State's settlement offer of life imprisonment indicated that he was incompetent to stand trial.

“It is without dispute that the conviction of an accused person while that person is legally incompetent violates the right to due process, and that State procedures must be adequate to protect that right.” Ex parte LaFlore, 445 So.2d 932, 934 (Ala.1983). “[A] trial court has an independent duty to inquire into an accused's state of mind when there are reasonable grounds to doubt the accused's competency to stand trial.” Id. (emphasis supplied.) See also Ponder v. State, 472 So.2d 691 (Ala.Crim.App.1985); Livingston v. State, 419 So.2d 270 (Ala.Crim.App.1982). The trial court is in a far better position than the reviewing court to determine a defendant's competency to stand trial. Stewart v. State, 562 So.2d 1365 (Ala.Crim.App.1989). Our review of the record reveals no evidence whatsoever that would raise a bona fide and reasonable doubt that the appellant was not competent to stand trial. Furthermore, the appellant's assertion that the trial court must have observed aberrant behavior on the part of the appellant is based purely on speculation. A reviewing court cannot predicate error on matters not shown by the record. Robinson v. State, 444 So.2d 884 (Ala.1983). We find no error in the trial court's failure to order and conduct a competency hearing. See, e.g., Soriano v. State, 527 So.2d 1367 (Ala.Crim.App.1988); Robinson v. State, 428 So.2d 167 (Ala.Crim.App.1982).

XXII

The appellant finally contends that the trial court erred in not appointing an expert psychiatrist and a private investigator pursuant to Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). This argument has no merit.

The record reveals that the appellant did not request the assistance of a psychiatrist, nor did he plead insanity. Our review of the record leads us to conclude that the appellant “made no showing of a particularized need or that such assistance was necessary for an adequate defense” as required under Ake. Nelson v. State, 511 So.2d 225, 237 (Ala.Crim.App.1986), aff'd, 511 So.2d 248 (Ala.1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988). Thus, the trial court did not err in failing to appoint a psychiatrist. See, e.g., Stewart v. State, 562 So.2d 1365 (Ala.Crim.App.1989).

The record reflects that while his motion for a new trial was pending, the appellant filed a pro se motion for funds that would permit the hiring of a private investigator. Even if the principles of Ake apply to anything other than psychiatrists and the insanity defense, we find no error in the court's failure to appoint a private investigator. See, e.g., Nelson; Duren v. State, 507 So.2d 111 (Ala.Crim.App.1986), aff'd, 507 So.2d 121 (Ala.), cert. denied, 484 U.S. 905, 108 S.Ct. 249, 98 L.Ed.2d 206 (1987); Hold v. State, 485 So.2d 801 (Ala.Crim.App.1986).

XXIII

As required by Beck v. State, 396 So.2d 645 (Ala.1980), and Ala.Code 1975, § 13A-5-53, we have reviewed this case for any error involving the appellant's conviction and to determine the propriety of the death sentence.

There is no suggestion in the record that the death penalty was imposed under the influence of passion, prejudice, or any other arbitrary factor. Our review of the sentencing proceedings indicates that the trial court's findings concerning the aggravating and mitigating circumstances are supported by the evidence. The trial court found the existence of three aggravating circumstances: (1) the murder was committed during a robbery in the first degree; (2) the capital offense was committed by a person under sentence of imprisonment; and (3) the appellant had previously been convicted of a felony involving the use or threat of violence. After considering each of the statutory mitigating circumstances set out in Ala.Code 1975, § 13A-5-51 and the possibility of any nonstatutory mitigating circumstances set out in Ala.Code 1975, § 13A-5-52, the trial court found the existence of no mitigating circumstances. These findings were supported by the evidence. See Brownlee v. State, 545 So.2d 151 (Ala.Crim.App.1988), aff'd, 545 So.2d 166 (Ala.), cert. denied, 493 U.S. 874, 110 S.Ct. 208, 107 L.Ed.2d 161 (1989).

Our independent weighing of the aggravating and mitigating circumstances convinces us of the propriety of the death penalty in this case. Furthermore, we are convinced that the death sentence is neither excessive nor disproportionate to the penalty imposed in similar cases, considering both the crime and the appellant. Two-thirds of Alabama death sentences are for robbery-murder. Kuenzel; Brownlee.

We have searched the entire record for any plain error or defect which might have adversely affected the substantial rights of the appellant and have found none. A.R.App.P. 45A.

The appellant's conviction and his sentence of death are due to be, and hereby are, affirmed. All the Judges concur.

ON REHEARING

On rehearing, the appellant again asserts that the jury should have been charged on robbery in the first degree and theft in the first and second degree. Although our original opinion sufficiently addresses this argument, in an abundance of caution, we reiterate that there was no rational basis for giving any of those charges. We note that in his statement to the police, the appellant denied shooting the victim and contended that someone else shot the victim. Furthermore, he stated that after the victim was shot, he and Terry Dill drove to an alley, jumped out of the car and ran away. He further stated that he did not see any money on the victim that day. A review of the record reveals that there was no reasonable basis in the evidence for a verdict convicting the appellant of any of the above-named offenses. OPINION EXTENDED; MOTION DENIED; APPLICATION OVERRULED. All the Judges concur.

Dill v. State,767 So.2d 366 (Ala. Cr. App 1999) (PCR).

Following affirmance, 600 So.2d 372, of conviction of murder and sentence of death, petitioner sought postconviction relief. The Jefferson Circuit Court, No. CC-88-3709.60, Michael W. McCormick, J., summarily denied petition. Petitioner appealed. The Court of Criminal Appeals, 717 So.2d 826, remanded for evidentiary hearing. The Circuit Court again denied all relief. On return to remand, the Court of Criminal Appeals, Long, P.J., held that petitioner was not denied effective assistance of counsel at trial. Affirmed.

LONG, Presiding Judge.

We originally remanded this cause to the trial court with directions that that court conduct an evidentiary hearing addressing Jimmy Lee Dill's claims of ineffective assistance of counsel, raised in his Rule 32, Ala.R.Crim.P., petition. Dill v. State, 717 So.2d 826 (Ala.Cr.App.1995). Dill and the state both argued, and we agreed, that Dill's claims of ineffective assistance of counsel were alleged with sufficient specificity to merit a hearing in the trial court. We ordered the trial court to conduct an evidentiary hearing concerning these claims and to file a written order of its findings with regard to Dill's claims.

The trial court has filed an order with this court on return to remand. On September 13, 1996, the trial court held an evidentiary hearing on the allegations of ineffective assistance of counsel made in Dill's petition; on October 9, 1996, in a written order, the trial court denied all relief. Judge Michael McCormick, the circuit judge who presided over Dill's trial, also presided over the evidentiary hearing on the Rule 32 petition. Dill's attorneys at trial were J. Louis Wilkinson and Virginia Vinson. He was represented by different counsel on appeal. No witnesses were called at the evidentiary hearing. It appears from the trial court's order and from the transcript of the hearing that, at the hearing, Dill abandoned most of the claims in his petition.

The essential facts of this case were recited by this court in this court's opinion on direct appeal, see Dill v. State, 600 So.2d 343 (Ala.Cr.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). Those facts are as follows: “The record reveals that the victim, Leon Shaw, drove to Terry Dill's house on the afternoon of February 8, 1989. Shaw was not supposed to be driving because he was serving time at the Federal Work Release Center for a drug violation. Shaw was, however, allowed to leave the center to go to work. He operated the Rose Boutique, which he owned with his wife, Junatha Shaw. Terry Dill left the house and got in the car with Shaw. The appellant was in the front seat with Shaw. Shaw told Terry Dill that the appellant wanted to buy drugs from Shaw.

“The testimony reveals that Terry Dill was a former cocaine addict who had sold cocaine with Shaw for four years. Shaw would pay Terry Dill to bring him customers.

“Shaw, Dill, and the appellant ran into Jacqueline Ball and Freddie Carter near a church on 85th Street. Shaw was still driving the car and Terry Dill was sitting in the backseat behind him. The appellant was still in the front passenger seat. Apparently, Shaw and the appellant got out of the car. Shaw talked to Jacqueline Ball, and the appellant talked to Freddie Carter. Shaw was carrying a black pouch in which he normally kept cocaine and money. Shaw had at least $200 in his hand.

“After Ball and Carter left, the appellant asked Shaw if he would give him some cocaine until he could get the money to pay for it. Shaw refused. They left for Druid Hills, where the work release center was located, because Shaw had to sign in at the center. When they got to Druid Hills, Shaw's beeper went off. They all got out of the car and Shaw made a telephone call. They went to the Curb Market and Shaw bought wine coolers. Shaw had a ‘folded wad of money.’ (R. 481.) When they left the store, Shaw had everyone in the car switch places so that the people at the center would not see him driving. Terry Dill was now driving and the appellant was in the backseat. Terry Dill drove to the center.

“The appellant again asked Shaw for cocaine. Shaw told him that he would give him the cocaine when the appellant got some money. He also showed the appellant a half ounce of cocaine. The appellant asked for cocaine again when they pulled up to the center. Shaw went to the building. He pulled a ‘big wad of money’ out of his pocket. (R. 395.) There was so much money that it could not be rolled up. He told the case manager at the center that he had just left the Rose Boutique and was going to make a deposit.

“While Shaw was inside the center, the appellant said to Terry Dill, ‘You don't believe I'll rob him or shoot him.’ (R. 490.) The appellant continued to talk about killing Shaw. When Shaw got back in the car, the appellant said that he would shoot Shaw if he did not give him some cocaine. After they drove off, there was a gunshot. Blood spurted onto Terry Dill. The appellant had a small automatic pistol, approximately .25 or .22 caliber. The appellant told Terry Dill to be quiet and keep driving. The appellant pulled the trigger as if he was going to shoot Shaw again. They eventually stopped in an alley. The appellant searched Shaw and took the money and cocaine. The appellant then got a rag and started wiping fingerprints off of the car. Terry Dill ran away. The appellant also ran away. Terry Dill called his girlfriend to pick him up. He went home later that evening.

“Shaw was taken to the hospital where emergency brain surgery was performed. The bullet entered the left, back side of his brain. Shaw was unconscious. He had abnormal movement in his extremities which indicates that the brain is functioning extremely abnormally. Both a feeding tube and breathing tube were inserted. He was discharged from the hospital on April 26, 1988, because there was nothing more the hospital could do for him. Shaw could not function independently and required round-the-clock care. Shaw eventually pulled the feeding tube out. However, his doctor said he would not replace the tube since he could eat and drink by mouth. Shaw was readmitted to the hospital on October 31, 1989. He never regained consciousness and died on November 22, 1989. Shaw's doctors testified that he died of complications from a gunshot wound to the head.

“Forensic evidence revealed that the bullet removed from Shaw's head was consistent with a .22 caliber projectile. The characteristics of the wound were consistent with a contact gunshot wound.

“The appellant gave a statement to the police on February 18, 1988. He stated that he and Terry Dill were with Shaw and that they drove to North Birmingham. Terry Dill was driving the car, Shaw was on the front passenger seat, and the appellant was in the backseat behind Terry Dill. The appellant stated that Shaw's door opened and that he heard a shot from behind Shaw. The appellant was then asked how Shaw was shot from behind without the window being shot out of the car. The appellant then stated that Shaw was actually getting into the car when someone ran up to Shaw's door. The appellant stated that he heard a gunshot. He and Terry Dill got out and ran. The appellant then stated that after hearing the shot, they drove off and a car followed them. They drove to an alley, jumped out of the car, and ran away. The appellant stated that Shaw had some cocaine in a black bag but he did not see any money.” 600 So.2d at 350-51.

Initially, we note that all issues cognizable on direct appeal have been scrutinized, and that the record was reviewed under the “plain error” doctrine.

I.

In his petition, Dill presents numerous claims regarding the performance of his trial counsel. He contends that as a result of his trial counsel's alleged errors, he was denied the effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution.

“In order to prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-pronged test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):

“ ‘First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.’ “466 U.S. at 687, 104 S.Ct. at 2064.

“ ‘The performance component outlined in Strickland is an objective one: that is, whether counsel's assistance, judged under “prevailing professional norms,” was “reasonable considering all the circumstances.” ’ Daniels v. State, 650 So.2d 544, 552 (Ala.Cr.App.1994), cert. denied, 488 U.S. 1051, 109 S.Ct. 884, 102 L.Ed.2d 1007 (1995[1989]), quoting Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. ‘A court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.’ Strickland, 466 U.S. at 690, 104 S.Ct. at 2066.

“The claimant alleging ineffective assistance of counsel has the burden of showing that counsel's assistance was ineffective. Ex parte Baldwin, 456 So.2d 129 (Ala.1984), aff'd, 472 U.S. 372, 105 S.Ct. 2727, 86 L.Ed.2d 300 (1985). ‘Once a petitioner has identified the specific acts or omissions that he alleges were not the result of reasonable professional judgment on counsel's part, the court must determine whether those acts or omissions fall “outside the wide range of professionally competent assistance.” [ Strickland,] 466 U.S. at 690, 104 S.Ct. at 2066.’ Daniels, 650 So.2d at 552. When reviewing a claim of ineffective assistance of counsel, this court indulges a strong presumption that counsel's conduct was appropriate and reasonable. 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); Luke v. State, 484 So.2d 531 (Ala.Cr.App.1985). ‘This court must avoid using “hindsight” to evaluate the performance of counsel. We must evaluate all the circumstances surrounding the case at the time of counsel's actions before determining whether counsel rendered ineffective assistance.’ Hallford, 629 So.2d at 9. See also, e.g., Cartwright v. State, 645 So.2d 326 (Ala.Cr.App.1994).

“ ‘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 (citations omitted). See Ex parte Lawley, 512 So.2d 1370, 1372 (Ala.1987).

“ ‘Even if an attorney's performance is determined to be deficient, the petitioner is not entitled to relief unless he establishes that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” [ Strickland,] 466 U.S. at 694, 104 S.Ct. at 2068.’ “ Daniels, 650 So.2d at 552.

“ ‘When a defendant challenges a death sentence such as the one at issue in this case, the question is whether there is a reasonable probability that, absent the errors, the sentencer-including an appellate court, to the extent it independently reweighs the evidence-would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.’ “ Strickland, 466 U.S. at 697, 104 S.Ct. at 2069, quoted in Thompson v. State, 615 So.2d 129, 132 (Ala.Cr.App.1992), cert. denied, 510 U.S. 976, 114 S.Ct. 467, 126 L.Ed.2d 418 (1993).

“In a Rule 32 proceeding, the petitioner has ‘the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.’ Rule 32.3, Ala.R.Crim.P. See Fortenberry v. State, 659 So.2d 194 (Ala.Cr.App.1994), cert. denied, 516 U.S. 846, 116 S.Ct. 137, 133 L.Ed.2d 84 (1995); Wilson v. State, 644 So.2d 1326 (Ala.Cr.App.1994); Elliott v. State, 601 So.2d 1118 (Ala.Cr.App.1992).” Bui v. State, 717 So.2d 6, 12-13 (Ala.Cr.App.1997).

Moreover, “[a] finding of no plain error is one factor to consider when assessing the performance of counsel.” Fortenberry v. State, 659 So.2d 194, 200 (Ala.Cr.App.1994), cert. denied, 516 U.S. 846, 116 S.Ct. 137, 133 L.Ed.2d 84 (1995), quoting Hallford v. State, 629 So.2d 6, 10 (Ala.Cr.App.1992), cert. denied, 511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 491 (1994).

Dill raises the following issues for our review.

Dill initially contends that his trial counsel rendered ineffective assistance during the sentencing phase of his trial because, he says, his counsel failed to investigate mitigating evidence, and, therefore, failed to present any mitigating evidence. Specifically, he maintains that members of his family and his friends could have provided testimony about his background that would have been useful as mitigation. At Dill's trial the only evidence presented by the defense during the sentencing phase was Dill's testimony in his own behalf.

While counsel has a duty to attempt to locate evidence favorable to the defendant, “this duty only requires a reasonable investigation.” Singleton v. Thigpen, 847 F.2d 668, 669 (11th Cir.1988), cert. denied, 488 U.S. 1019, 109 S.Ct. 822, 102 L.Ed.2d 812 (1989) (emphasis added). See Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984); Morrison v. State, 551 So.2d 435 (Ala.Cr.App.1989), cert. denied, 495 U.S. 911, 110 S.Ct. 1938, 109 L.Ed.2d 301 (1990). Counsel's obligation is to conduct a “substantial investigation into each of the plausible lines of defense.” Strickland, 466 U.S. at 681, 104 S.Ct. at 2061 (emphasis added). “A substantial investigation is just what the term implies; it does not demand that counsel discover every shred of evidence but that a reasonable inquiry into all plausible defenses be made.” Id., 466 U.S. at 686, 104 S.Ct. at 2063. “The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information.” Id., 466 U.S. at 691, 104 S.Ct. at 2066.

At the evidentiary hearing, Dill's Rule 32 counsel introduced as evidence in support of this claim affidavits from Dill's brothers, Archie, Leonard, and Lee Henry; from Carolyn Dill, Dill's sister-in-law; from Angela Whaley, the mother of Dill's child; and from Abbie Dill, Dill's aunt. These individuals indicated in their affidavits that they would have testified on Dill's behalf during the sentencing phase of his trial if they had been called as witnesses. In the affidavits, the witnesses testified about Dill's family life and history and about the kind of person Dill was before he began using drugs.

There is nothing in the record to suggest that Dill's trial counsel ignored matters that should reasonably have alerted him to the value of contacting persons who might have information about Dill's background that might be presented as mitigation evidence. See Cochran v. State, 548 So.2d 1062 (Ala.Cr.App.), cert. denied, 493 U.S. 900, 110 S.Ct. 259, 107 L.Ed.2d 208 (1989). There is nothing in the record to indicate that Dill's counsel was aware, or should have been aware, that such persons were willing to testify on Dill's behalf at Dill's sentencing hearing. Thus, we find that Dill has not shown that his trial counsel failed to conduct a reasonable investigation to locate witnesses who could have presented mitigating evidence on his behalf. Dill has not proven by a preponderance of the evidence that his attorneys were ineffective because they failed to investigate and present possible mitigating evidence. Fortenberry, 659 So.2d at 200.

Moreover, even if Dill's trial counsel had been aware of these possible witnesses, none of the testimony presented in their affidavits indicated the existence of any mitigating circumstances recognized by § 13A-5-51, Ala.Code 1975. With reference to the alleged value of the testimony of these potential witnesses, the trial judge who heard Dill's Rule 32 claims, who, as stated earlier, also presided over Dill's trial, found as follows:

“The Court having considered the affidavits of possible witnesses at the defendant's sentencing hearing, the Court finds that all but one of these witnesses are family members of the defendant who would have testified that defendant was a good person until he began to use drugs. This Court finds that defense counsel would not be deficient for [not] calling such witnesses and that if considered deficient would not have prejudiced the defendant.” (C. 30.)

We have reviewed the affidavits. We agree with the trial court that the testimony of these potential witnesses would not have changed the balance of mitigating and aggravating circumstances in Dill's case. “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), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed.2d 695 (1993), quoted in Daniels v. State, 650 So.2d 544, 568 (Ala.Cr.App.1994). Dill has not established the reasonable probability that, but for counsel's failure to call these witnesses during the sentencing phase of his trial, the outcome of the sentencing proceeding would have been different. In light of the evidence presented by the state at trial, we find that the actions of counsel, in presenting mitigating evidence from only Dill, were reasonable under the circumstances. Patrick v. State, 680 So.2d 959, 962 (Ala.Cr.App.1996) (holding that trial counsel is not required to investigate every “will-o'-the-wisp or rabbit trail matters of mitigation or defense”). See Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir.1995) (“our decisions teach that whether counsel's performance is constitutionally deficient depends upon the totality of the circumstances viewed through a lens shaped by the rules and presumptions set down in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and its progeny”); and Singleton, supra (no showing of prejudice resulting from inadequate investigation by trial counsel where habeas petitioner failed to proffer the type of mitigating evidence that would have changed outcome of trial had trial counsel conducted further investigation). Because Dill has not shown that any additional evidence would have changed the trial court's decision at sentencing, we agree with the trial court's ruling that trial counsel did not render ineffective assistance with regard to the investigation and presentation of mitigating evidence during the sentencing phase of Dill's trial. Davis v. State, 720 So.2d 1006 (Ala.Cr.App.1998).

B.

Dill contends that his trial counsel rendered ineffective assistance because counsel failed to present evidence supporting an intervening cause of death. Specifically, Dill maintains that testimony from Dr. Alwyn A. Shugerman, the physician who treated the victim just before his death, would establish that the victim did not die as a result of a gunshot wound, but as the result of dehydration. In support of his argument, Dill admitted into evidence an affidavit from Dr. Shugerman, in which Dr. Shugerman states that Shaw's immediate cause of death was “severe metabolic derangement and multiple organ failure associated with severe dehydration.” (C. 23.)

Dill raised the substantive grounds of this claim for relief on direct appeal. This court, however, rejected this claim, holding: “The appellant contends that there is insufficient evidence to sustain the verdict because Leon Shaw's death was caused by his pulling out his feeding tube and dehydration rather than a gunshot wound. We disagree. The record reveals that two physicians testified that the victim died as a result of complications from a gunshot wound. There was testimony that the victim was admitted to the hospital with an injury that was ‘generally not survivable.’ (R. 305.)

“ ‘A person is criminally liable if the result would not have occurred but for his conduct, operating alone or concurrently, with another cause, unless the concurrent cause was sufficient to produce the result and the conduct of the actor clearly insufficient.’ Ala.Code 1975 § 13A-2-5(a).

“ ‘Where as here, the wound inflicted by defendant upon the victim is dangerous to life, the fact that there are other contributing causes of death does not prevent such a wound from being the legal cause of death. It does not have to be the sole cause. This is true whether (1) the other causes preceded, (2) the other cause is synchronous with, or (3) the other cause follows, commission of the felonious act charged.’ (citations omitted.) “ Smith v. State, 354 So.2d 1167, 1170 (Ala.Cr.App.1977), cert. denied, 354 So.2d 1172 (Ala.1978). We see no reasonable basis for a conclusion that the death was not caused by the gunshot wound. The evidence clearly supports the verdict.” Dill, 600 So.2d at 359 (emphasis added).

Because this court rejected the substantive argument underlying Dill's claim, Dill has failed to support his claim that trial counsel was ineffective for not presenting the testimony of Dr. Shugerman at trial. Moreover, the trial court found as follows with regard to this claim: “Dr. Shugerman was one of the physicians who treated the victim. Although he was not called as a witness, all of his records of treatment were admitted through Dr. Langford, who also treated the victim. (State's Exhibit No. 4.)

“It is clear from the evidence and testimony of Dr. Brissie and Dr. Langford that the cause of death was a gunshot to the head. “Dr. Shugerman's testimony would not have changed or altered that conclusion. “Defense counsel was not deficient in his performance by not calling Dr. Shugerman nor did his failure to call him prejudice the defendant.” (C. 30.)

We have reviewed the record of Dill's direct appeal; we agree with the trial court that Dr. Shugerman's testimony would, at best, be cumulative of other evidence already admitted. The testimony that Dill says Dr. Shugerman would give substantially mirrors the testimony presented at trial by Dr. Langford and Dr. Brissie. Therefore, Dill has failed to establish that he was prejudiced by counsel's failure to call Dr. Shugerman and that there was a reasonable probability that, but for this failure to elicit testimony from Dr. Shugerman about the intervening cause of death, the outcome of his trial could have been different.

Finally, in light of the evidence as presented at trial, Dill's trial counsel may well have made a strategic decision not to focus on the immediate cause of the victim's death. A review of the totality of the circumstances surrounding the victim's death indicates that because of the shotgun wound, the victim's quality of life gradually diminished to the point that the victim, who had a wife and children, was no longer a productive member of society. Counsel may have believed this testimony would have generated more sympathy for the victim. “Strategic choices made after thorough investigation of relevant law and facts are virtually unchallengeable.” Ex parte Lawley, 512 So.2d 1370, 1372 (Ala.1987). We will refrain from using hindsight to evaluate trial counsel's decisions. See Hallford, 629 So.2d at 9; and State v. Tarver, 629 So.2d 14, 21 (Ala.Cr.App.1993). See also Cade v. State, 629 So.2d 38, 42 (Ala.Cr.App.1993), cert. denied, 511 U.S. 1046, 114 S.Ct. 1579, 128 L.Ed.2d 221 (1994) (holding that “an attorney may reasonably decide to avoid presenting evidence [or a defense] that he believes will do more harm than good”). Considering the evidence in its entirety, we cannot say that the failure of Dill's counsel to call Dr. Shugerman as a witness at trial was unreasonable. Nor can we say that there is a reasonable probability that, but for counsel's actions, the results of the proceedings would have been different. We agree with the trial court's ruling that Dill's counsel did not render ineffective assistance in this regard.

C.

Dill contends that his trial counsel rendered ineffective assistance by failing, he says, to “follow through” on the trial court's order for Dill to undergo a psychiatric evaluation. Dill, however, has failed to establish that, but for his counsel's alleged error in this regard, the result of his trial would have been different.

On direct appeal we addressed the underlying substantive issue of Dill's competency to stand trial. We stated, “Our review of the record reveals no evidence whatsoever that would raise a bona fide and reasonable doubt that the appellant was not competent to stand trial.” Dill, 600 So.2d at 343. Therefore, we cannot say that Dill's counsel was ineffective for not raising a nonmeritorious claim.

Additionally, the trial court, after the evidentiary hearing, made the following finding: “The Court finds that there was no reasonable ground to believe that defendant suffered from any mental disease or defect, or any emotional problems at the time of the offense or at any time in his life. “Therefore, defense counsel was not deficient in [not] following up on a psychiatric examination.” (C. 30.)

Dill's Rule 32 counsel offered no new evidence with regard to Dill's competency to stand trial. We believe that the trial court's findings with regard to Dill's mental health are supported by the record. Therefore, Dill has failed to establish that there is a reasonable probability that, but for counsel's actions, the results of his trial would have been different.

Moreover, Dill's defense at trial was based on misidentification. Dill admitted that he was present at the murder, but maintained that someone else actually killed Shaw. Therefore, Dill's mental health was not a central issue at trial. Because Dill failed to establish that his counsel's performance in this regard influenced the outcome of his trial, Dill is not entitled to relief.

Accordingly, we agree with the trial court's ruling that Dill's trial counsel did not render ineffective assistance in this regard.

D.

Dill sets forth the following claims as instances of his trial counsel's alleged failure to provide effective assistance during the guilt and sentencing phases of his trial: 1. His counsel allegedly failed to adequately investigate an available defense during the guilt phase of his trial. 2. His counsel allegedly failed to interview or to call as witnesses persons who could impeach the testimony of Terry Dill, Abbie Dill, and the victim's wife. 3. His counsel allegedly failed to determine if Shaw had cash in his possession at the time was shot. 4. His counsel allegedly failed to listen to Dill's tape-recorded statement to the police. 5. His counsel allegedly failed to investigate his emotional and mental health and his use of drugs at the time of the killing. 6. His counsel allegedly failed to conduct an adequate voir dire and jury selection, in that counsel: a. failed to ask prospective jurors if any of them was unalterably in favor of the death penalty; b. failed to strike those prospective jurors who expressed potential bias against Dill; and c. failed to object when the prosecutor struck prospective jurors on the basis of their economic status. 7. His counsel failed to object to the following alleged instances of prosecutorial misconduct: a. the prosecutor's expressing her personal opinion that Dill was guilty; b. the prosecutor's vouching for the credibility of state's witnesses; c. the prosecutor's imploring jurors to “do their duty” in both the guilt and sentencing phases of trial; d. the prosecutor's numerous comments on Dill's exercise of his right against self-incrimination; and e. the prosecutor's commenting upon Dill's pre-arrest silence. 8. His counsel failed to object to testimony concerning Dill's oral statement to the police. 9. His counsel failed to object to the following alleged instances of “repeated hearsay”: a. hearsay testimony of Dr. Langford; b. hearsay testimony of Abbie Dill; and c. hearsay testimony of Terry Dill. 10. His counsel failed to object when a state's witness improperly gave a lay opinion. 11. His counsel failed to object to the admission of testimony by the coroner regarding the relative position of the parties at the time of the shooting. 12. His counsel failed to object to the prosecutor's alleged mischaracterization of Dill's statement to police. 13. His counsel failed to request a curative instruction for testimony regarding Dill's prior criminal history. 14. His counsel failed to object to the prosecutor's comments on Dill's right to counsel. 15. His counsel failed to object to the coroner's testimony that allegedly went to an ultimate issue. 16. His counsel failed to object to the following additional alleged instances of prosecutorial misconduct: a. the prosecutor's reference to the cause of death as a “shotgun blast” to the head; b. the prosecutor's reminder to the jury to consider the victim's family; c. the prosecutor's use of religion to argue that Dill should be convicted; and d. the prosecutor's expression of her personal knowledge of cocaine and the effects of its usage. 18. His counsel failed to request a jury instruction that the jury should take no adverse inference from Dill's failure to testify. 19. His counsel failed to object to the trial court's instruction on reasonable doubt. 20. His counsel failed to object to the prosecutor's arguments that mitigating circumstances are limited to those listed in the Alabama Code. 21. His counsel failed to object to the trial court's allegedly deficient jury instructions on aggravating and mitigating circumstances. 22. His counsel failed to object to the alleged hearsay components of Dill's presentence report, which had been prepared over five years before Dill's capital murder conviction in connection with Dill's prior conviction for another offense. 23. His counsel failed to object to the alleged hearsay components of the presentence report ordered by the trial court pursuant to § 13A-5-47(b), Ala.Code 1975. 24. His counsel failed to object to the admission of proof of Dill's certified prior convictions. 25. His counsel failed to raise the issue whether “the money allegedly stolen from [the victim] had already been forfeited to the federal government.” (Appellant's brief at p. 88.)

Dill presented no evidence in support of these claims in his Rule 32 hearing. Therefore, Dill has failed to establish that his trial counsel's performance was deficient and that he was prejudiced by that deficient performance.

Moreover, the claims presented in paragraphs 6(a) and (c); paragraphs 7(a), (b), (c), (d), (e), and (f); paragraph 8; paragraphs 9(a), (b), and (c); paragraph 13; paragraph 14; paragraph 15; paragraphs 16(b), (c), and (d); paragraph 19; paragraph 20; paragraph 21; paragraph 22; paragraph 23; and paragraph 24 were raised as substantive grounds for relief on direct appeal. See Dill v. State, supra. This court rejected these claims on their merits. Therefore, Dill has failed to support the claim, as set out above, that his trial counsel was ineffective for not raising these claims at trial. Dill's counsel cannot be ineffective for failing to pursue nonmeritorious claims.

Additionally, Dill made unsupported allegations in paragraph 1, paragraph 2, paragraph 3, paragraph 4, paragraph 5, paragraph 6(b), paragraph 10, paragraph 11, paragraph 12, paragraph 16(a), paragraph 18, and paragraph 25. Although the burden of pleading and proof was on Dill, Rule 32.3, Ala.R.Crim.P., he presented no evidence at the hearing to support his claims that his counsel's performance with regard to these claim asserted in these paragraphs fell “outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. These claims failed to satisfy the burden-of-proof requirements of Rule 32.3. Furthermore, Dill presented no evidence to show how he was prejudiced by these alleged instances of ineffective assistance. 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).

Moreover, with regard to the above claims of ineffective assistance, which were argued in the pleadings but not pursued at the hearing, the trial court stated: “All other allegations of ineffective assistance of counsel have not been argued, but this Court having tried this case finds that defense counsel was diligent and competent in his representation of the defendant. And he was not deficient.” (C. 30.)

We agree with the trial court's ruling that Dill failed to present any evidence in support of these allegations and that his counsel's performance has not been shown to be deficient with regard to these matters. As this court observed in Stringfellow v. State, 485 So.2d 1238, 1243 (Ala.Cr.App.1986), “ ‘[e]ffectiveness of counsel does not lend itself to measurement by picking through the transcript and counting the places where objections might be made.’ ”

Finally, we note that in his petition Dill claims that his counsel was ineffective for “failing to include in a motion for a new trial each and every constitutional violation enumerated” in his petition. Dill, however, abandons this claim on appeal. “ ‘ “[A]llegations ... not expressly argued on ... appeal ... are deemed by us to be abandoned.” United States v. Burroughs, 650 F.2d 595, 598 (5th Cir.), cert. denied, 454 U.S. 1037, 102 S.Ct. 580, 70 L.Ed.2d 483 (1981).’ ” Brownlee v. State, 666 So.2d 91, 93 (Ala.Cr.App.1995), quoting Burks v. State, 600 So.2d 374, 380 (Ala.Cr.App.1991). In an exercise of diligence, however, we have reviewed each allegation of ineffective assistance of counsel and have found either that it is without merit or that Dill failed to prove it. We have also reviewed the alleged errors for any cumulative effect and still find no error or violation of Dill's rights.

After reviewing the overwhelming evidence against Dill, including his confession, we believe that while his trial counsel may have made certain strategic choices that Dill now challenges, counsel did not render ineffective assistance. An accused is entitled “ ‘not [to] errorless counsel, and not [to] counsel judged ineffective by hindsight, but [to] counsel reasonably likely to render and rendering reasonably effective assistance.’ ” Thompson v. State, 615 So.2d 129, 134 (Ala.Cr.App.1992), cert. denied, 510 U.S. 976, 114 S.Ct. 467, 126 L.Ed.2d 418 (1993), quoting Haggard v. Alabama, 550 F.2d 1019, 1022 (5th Cir.1977). We find no merit to any of Dill's allegations of ineffective assistance of counsel. Dill has not shown “by a preponderance of the evidence the facts necessary to entitle [him] to relief” on any issue concerning the ineffectiveness of his trial counsel. Rule 32.3, Ala.R.Crim.P.

II.

Additionally, we note that numerous claims in Dill's petition, which Dill abandoned at the evidentiary hearing and on appeal, were precluded by Rule 32.2(a), Ala.R.Crim.P. This court has recognized that “[t]he procedural bars of Rule 32 apply with equal force to all cases, including those in which the death penalty has been imposed.” Tarver, 629 So.2d at 19. See Horsley v. State, 675 So.2d 908 (Ala.Cr.App.1996); Grayson v. State, 675 So.2d 516 (Ala.Cr.App.1995), cert. denied, 519 U.S. 934, 117 S.Ct. 309, 136 L.Ed.2d 225 (1996); Brownlee, 666 So.2d at 93; and Cade, 629 So.2d 38.

We find that the following claims in Dill's petition are procedurally barred under Rules 32.2(a)(2) and (4), Ala.R.Crim.P., because they were raised and addressed at trial and on direct appeal:

1. Dill's claim that the trial court erred by permitting a police officer to testify about, and to read from, Dill's pre-arrest statement to the police. Ex parte Dill, 600 So.2d 372, 373-74 (Ala.1992).

2. Dill's claim that the trial court erred by failing to follow through on his order for a psychiatric examination of Dill. Dill, 600 So.2d at 370.

3. Dill's claim that the trial court erred by failing to order a mistrial when the prosecutor made what Dill argued were inflammatory comments regarding his alleged religious beliefs. Dill, 600 So.2d at 356-57.

4. Dill's claim that the trial court erred by failing to order a mistrial after the prosecutor expressed a personal opinion as to his guilt. Dill, 600 So.2d at 357-58.

5. Dill's claim that the trial court erred by failing to order a mistrial after the prosecutor vouched for the credibility of state's witness Terry Dill. Dill, 600 So.2d at 358-59.

6. Dill's claim that a state's witness improperly referred to Dill's parole officer during testimony. Ex parte Dill, 600 So.2d at 373-74.

7. Dill's claim that the trial court erred by failing to give a curative instruction, or to order a mistrial, after a state's witness referred to Dill's parole officer during testimony. Ex parte Dill, 600 So.2d at 373-74.

8. Dill's claim that the trial court erred by failing to order a mistrial when the prosecutor urged jurors to “do their duty” during the sentencing phase of the trial. Dill, 600 So.2d at 357.

9. Dill's claim that the prosecutor used 6 of her 12 strikes to strike blacks, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Dill, 600 So.2d at 354.

10. Dill's claim that the prosecutor improperly struck prospective jurors on the basis of their “economic status.” Dill, 600 So.2d at 354.

11. Dill's claim that the trial court erred by permitting the alleged hearsay testimony of Dr. Langford, including an opinion as to the cause of death, which was based on notes made by another doctor, Dr. Shugerman. Dill, 600 So.2d at 365-66.

12. Dill's claim that he was denied the opportunity to confront a witness against him when Dr. Langford put words into the mouth of Dr. Shugerman, who was not a witness at his trial. Dill, 600 So.2d at 365-66.

We find that the following claims in Dill's petition are procedurally barred under Rules 32.2(a)(3) and (4), Ala.R.Crim.P., because even though they could have been, but were not, raised at trial, they were raised and addressed on direct appeal:

1. Dill's claim that the prosecutor made numerous references to his failure to testify at trial. Dill, 600 So.2d at 355-59.

2. Dill's claim that the prosecutor and a state's witness improperly commented on Dill's pre-arrest silence. Dill, 600 So.2d at 355-56.

3. Dill's claim that the prosecutor improperly commented on his right to counsel. Dill, 600 So.2d at 354-55.

4. Dill's claim that the trial court erred by failing to ask prospective jurors whether they had fixed opinions in favor of the death penalty. Dill, 600 So.2d at 363.

5. Dill's claim that the trial court erred by allowing into evidence the alleged hearsay testimony from Terry Dill. Dill, 600 So.2d at 367.

6. Dill's claim that the prosecutor made the following additional prejudicial and improper comments during trial:

a. The prosecutor's emotional appeal regarding the victim's children. Dill, 600 So.2d at 366-67.

b. The prosecutor's comments on her personal experience and knowledge of cocaine use and the effects of its use. Dill, 600 So.2d at 366-67.

7. Dill's claim that the trial court erred by allowing the coroner to testify as to the cause of death and by allowing the coroner to describe the death as a “homicide,” all of which, he said, invaded the province of the jury. Dill, 600 So.2d at 366.

8. Dill's claim that the trial court erred by improperly instructing the jury on “reasonable doubt.” Dill, 600 So.2d at 353.

9. Dill's claim that the trial court erred by failing to instruct the jury on causation and on the lesser included offenses of robbery in the first degree, assault in the first degree, and attempted murder. Dill, 600 So.2d at 352-53, 359-60.

10. Dill's claim that robbery in the first degree, an element of capital murder, was improperly included as an aggravating circumstance. Dill, 600 So.2d at 371.

11. Dill's claim that the trial court erred by permitting a witness at the sentencing phase to read the contents of a pre-sentence report that had been prepared over five years earlier in connection with his prior convictions. Dill, 600 So.2d at 369-70.

12. Dill's claim that the trial court erred by admitting into evidence certified copies of his prior convictions. Dill, 600 So.2d at 363-64.

13. Dill's claim that the prosecutor improperly sought to limit the mitigating circumstances that the jury could consider, in violation of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), during voir dire and during her argument at the sentencing hearing. Dill, 600 So.2d at 357, 359.

14. Dill's claim that the trial court's charge to the jury regarding mitigating circumstances and aggravating circumstance may have given the jury the impression that it had to be unanimous in finding the existence of a mitigating circumstance. Dill, 600 So.2d at 360-62.

15. Dill's claim that the trial court erred by considering the pre-sentence report that was ordered pursuant to § 13A-5-47(b), Ala.Code 1975. Dill, 600 So.2d at 369-70.

We find that the following claims in Dill's petition are procedurally barred under Rules 32.2(a)(3) and (5), Ala.R.Crim.P., because they could have been raised at trial and on direct appeal, but were not: 1. Dill's claim that the trial court erred by failing to instruct the jury that it should take “no adverse inference” from his failure to testify. 2. Dill's claim that he was denied a fair trial because jurors D.M., J.H., and M.H., who he says were biased against him, were empaneled and served on the jury. 3. Dill's claim that the trial court erred by allowing into evidence alleged hearsay testimony from Abbie Dill. 4. Dill's claim that the trial court erred by failing to order a mistrial when the prosecutor urged jurors to “do their duty [and find the defendant guilty]” during the guilt phase of his trial. 5. Dill's claim that the prosecutor made the following prejudicial and improper comments during his trial: a. The prosecutor's alleged misstatement of Officer Duncan's testimony concerning Dill's statement to the police. b. The prosecutor's allegedly improper statement that Dill caused the victim's death by a “shotgun blast.” 6. Dill's claim that “Dr. Brissie, the coroner, improperly testified, and the prosecutor improperly argued, about the position of the shooter relative to the body of the victim based solely on medical records and an examination of the wound.” (C. 42.) 7. Dill's claim that the trial court erred by admitting in evidence postmortem photographs of Leon Shaw as well as photographs of Shaw's children and the bloody automobile. 8. Dill's claim that the trial court erred and confused the jury when, referring to Terry Dill's criminal past, it stated, “Mr. Dill had one theft case, a shoplifting case, but all those cases [are ones] of moral turpitude.” (C. 45.) 9. Dill's claim that the trial court erred by failing to instruct the jury that “it must find that there was no robbery, and hence no robbery/murder, if it believed that Shaw's money was from the drug trade which would render [the money] incapable of ownership by Shaw.” (C. 45.) 10. Dill's claim that there was a variance between the indictment and the proof, because the indictment charged that the money was the “property of Leon Shaw,” but the money actually belonged to the United States of America. 11. Dill's claim that robbery in the first degree was improperly allowed as an element of the capital crime with which he was charged even though the robbery charge against him, as a separate offense, had been dismissed before trial. 12. Dill's claim that the death penalty has been applied in Alabama in a racially discriminatory manner.

We find Dill's claim that the trial court erred by failing to order a mistrial after the prosecutor vouched for the credibility of state's witness Abbie Dill to be procedurally barred under Rules 32.2(a)(2) and (5), Ala.R.Crim.P., because it was raised and addressed at trial and could have been raised and addressed on direct appeal, but was not.

As noted above, this court on direct appeal searched the entire transcript for error, pursuant to Rule 45A, Ala.R.App.P. Had this court found anything that would merit reversal, even if it had not been raised on appeal, it would have reversed the judgment and remanded this case for a new trial. After evaluating the evidence presented at the evidentiary hearing on Dill's Rule 32 petition, we conclude that the trial court correctly denied the petition. Accordingly, the trial court's judgment is affirmed.

AFFIRMED.

Dill v. Allen, 488 F.3d 1344 (11th Cir. 2007) (Habeas).

TJOFLAT, Circuit Judge:

Petitioner, Jimmy Dill,FN1 is an Alabama prisoner on death row due to his conviction for the 1988 fatal shooting of Leon Shaw in Birmingham. On March 30, 2001, he petitioned the United States District Court for the Northern District of Alabama for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The court denied his petition on March 31, 2004, and he now appeals. The district court granted a certificate of appealability on the question of whether petitioner's trial counsel were constitutionally ineffective in failing to uncover and present mitigating evidence during the penalty phase of petitioner's trial. We subsequently amended the certificate to include the question of whether counsel were constitutionally ineffective in failing to develop and present evidence that the shooting was not the cause of Shaw's death. We find no error in the district court's response to these questions and therefore affirm its denial of habeas corpus relief.

I.

Petitioner was indicted for capital murder in the Circuit Court of Jefferson County, Alabama on December 9, 1988. At arraignment, the court appointed Louis Wilkinson (“Wilkinson”) to represent petitioner, who was indigent.FN2 At some point during the pretrial proceedings, the parties engaged in plea negotiations. The State offered to take the death penalty off the table if petitioner would plead guilty to “straight murder” and agree to a sentence of life imprisonment with the possibility of parole.FN3 Petitioner rejected the State's offer, insisting that he was innocent on the theory that an unknown third party had shot the victim. The case thus proceeded to trial.

FN2. Wilkinson was formerly a District Attorney for Jefferson County and had handled several capital murder cases. At trial, Virginia A. Vinson (“Vinson”) also represented petitioner; Wilkinson, however, handled the majority of the defense's case. FN3. The Alabama's Habitual Felony Offenders Act counseled a life sentence because petitioner had two prior felony convictions. See Ala.Code § 13A-5-9(b).

A.

The trial began on May 24, 1989, and lasted three days.FN4 The Alabama Court of Criminal Appeals, affirming petitioner's conviction and death sentence, set forth the salient facts as established in the State's case-in-chief during the guilt phase of the trial:

FN4. The State called fourteen witnesses during its case-in-chief. Among them were Sgt. H. Forrest Duncan and Lt. Charles L. Jordan of the Birmingham Police Department, to whom petitioner made a post-arrest statement, claiming that a third party, a black male, was the culprit; Terry Dill, petitioner's nephew; Abbie Dill, Terry Dill's mother and the wife of Lee Henry Dill, petitioner's eldest brother; Junatha Shaw, Leon Shaw's widow; Keith Langford, M.D., Shaw's initial attending physician; Michael W. Gorham, M.D., a surgery resident who also treated Shaw; and Robert Brissie, M.D., the Jefferson County Coroner.

[T]he victim, Leon Shaw, drove to Terry Dill's house on the afternoon of February 8, [1988]. Shaw was not supposed to be driving because he was serving time at the Federal Work Release Center for a drug violation. Shaw was, however, allowed to leave the center to go to work. He operated the Rose Boutique, which he owned with his wife, Junatha Shaw. Terry Dill left the house and got in the car with Shaw. [Petitioner] was in the front seat with Shaw. Shaw told Terry Dill that [petitioner] wanted to buy drugs from Shaw. The testimony reveals that Terry Dill was a former cocaine addict who had sold cocaine with Shaw for four years. Shaw would pay Terry Dill to bring him customers.

Shaw, Dill, and [petitioner] ran into Jacqueline Ball and Freddie Carter near a church on 85th Street. Shaw was still driving the car and Terry Dill was sitting in the backseat behind him. [Petitioner] was still in the front passenger seat. Apparently, Shaw and [petitioner] got out of the car. Shaw talked to Jacqueline Ball, and [petitioner] talked to Freddie Carter. Shaw was carrying a black pouch in which he normally kept cocaine and money. Shaw had at least $200 in his hand.

After Ball and Carter left, [petitioner] asked Shaw if he would give him some cocaine until he could get the money to pay for it. Shaw refused. They left for Druid Hills, where the work release center was located, because Shaw had to sign in at the center. When they got to Druid Hills, Shaw's beeper went off. They all got out of the car and Shaw made a telephone call. They went to the Curb Market and Shaw bought wine coolers. Shaw had a “folded wad of money.” When they left the store, Shaw had everyone in the car switch places so that the people at the center would not see him driving. Terry Dill was now driving and [petitioner] was in the backseat. Terry Dill drove to the center.

[Petitioner] again asked Shaw for cocaine. Shaw told him that he would give him the cocaine when [petitioner] got some money. He also showed [petitioner] a half ounce of cocaine. [Petitioner] asked for cocaine again when they pulled up to the center. Shaw went to the building. He pulled a “big wad of money” out of his pocket. There was so much money that it could not be rolled up. He told the case manager at the center that he had just left the Rose Boutique and was going to make a deposit.

While Shaw was inside the center, [petitioner] said to Terry Dill, “You don't believe I'll rob him or shoot him.” [Petitioner] continued to talk about killing Shaw. When Shaw got back in the car, [petitioner] said that he would shoot Shaw if he did not give him some cocaine. After they drove off, there was a gunshot. Blood spurted onto Terry Dill. [Petitioner] had a small automatic pistol, approximately .25 or .22 caliber. [Petitioner] told Terry Dill to be quiet and keep driving. [Petitioner] pulled the trigger as if he was going to shoot Shaw again. They eventually stopped in an alley. [Petitioner] searched Shaw and took the money and cocaine. [Petitioner] then got a rag and started wiping fingerprints off of the car. Terry Dill ran away. [Petitioner] also ran away. Terry Dill called his girlfriend to pick him up. He went home later that evening. Dill v. State, 600 So.2d 343, 350 (Ala.Crim.App.1991) (record citations omitted).

The court then related petitioner's version of what took place, summarizing the statement that petitioner gave the police on February 18, 1988, which the State introduced into evidence.FN5. On February 12, four days after Shaw was shot, Terry Dill spoke to Shaw's wife, Junatha Shaw and, later the same day, contacted the Birmingham police. On February 18, the police contacted petitioner, who voluntarily went to the station house and made the statement described above.

[Petitioner] stated that he and Terry Dill were with Shaw and that they drove to North Birmingham. Terry Dill was driving the car, Shaw was on the front passenger seat, and [petitioner] was in the backseat behind Terry Dill. [Petitioner] stated that Shaw's door opened and that he heard a shot from behind Shaw. [Petitioner] was then asked how Shaw was shot from behind without the window being shot out of the car. [Petitioner] then stated that Shaw was actually getting into the car when someone ran up to Shaw's door. [Petitioner] stated that he heard a gunshot. He and Terry Dill got out and ran. [Petitioner] then stated that after hearing the shot, they drove off and a car followed them. They drove to an alley, jumped out of the car, and ran away. [Petitioner] stated that Shaw had some cocaine in a black bag but he did not see any money. Id. at 351.

A woman who lived near the site of the shooting saw the car in the alley, watched the two men leave the scene, and summoned the police, who, upon finding Shaw and realizing that he was bleeding profusely, called for an ambulance. The court described what took place thereafter, including the circumstances that led to Shaw's death:

Shaw was taken to the [University Hospital of Birmingham] where emergency brain surgery was performed. The bullet entered the left, back side of his brain. Shaw was unconscious. He had abnormal movement in his extremities which indicates that the brain is functioning extremely abnormally. Both a feeding tube and breathing tube were inserted. He was discharged from the hospital on April 26, [1988], because there was nothing more the hospital could do for him. Shaw could not function independently and required round-the-clock care. Shaw eventually pulled the feeding tube out.FN6 However, his doctor said he would not replace the tube since he could eat and drink by mouth. Shaw was readmitted to the hospital on October 31, [1988]. He never regained consciousness and died on November 22, [1988]. Shaw's doctors testified that he died of complications from a gunshot wound to the head.

FN6. The issue of how Shaw's feeding tube became displaced is disputed in the instant habeas proceeding. We discuss this dispute in disposing of the issue of whether petitioner's counsel were ineffective in failing to present evidence on Shaw's cause of death. Forensic evidence revealed that the bullet removed from Shaw's head was consistent with a .22 caliber projectile. The characteristics of the wound were consistent with a contact gunshot wound. Id. at 350-51.

B.

After the State rested its case, petitioner moved the court for a judgment of acquittal. The court denied the motion.FN7 In closing argument to the jury, the prosecutor contended that the forensic evidence, which indicated that the fatal shot had been fired from the back seat of the car, corroborated Terry Dill's explanation of how the shooting occurred. Wilkinson, in rebuttal, FN8 disagreed: “[Petitioner] was consistent in one thing, that an unknown black male that Shaw had stopped to talk to shot Shaw. He said that [in his post-arrest statement to the police]. And that fits in very well with the facts, physical and otherwise, and just as well as anything Terry Dill said.”FN9

FN7. At that point, in the absence of the jury, the court asked petitioner's counsel, Wilkinson, whether the defense would be presenting any evidence, and Wilkinson replied that it would not: THE COURT: All right. The State has rested. Anything for the defendant? MR. WILKINSON: Judge, on behalf of the defendant I know of no further new evidence that we could present, and we rest, Your Honor. FN8. The defense's rebuttal to the prosecution's closing argument was split between Vinson, who began, and Wilkinson, who concluded.

FN9. This explanation of the shooting was consistent with the position Wilkinson took in his opening statement to the jury at the outset of the trial. There, Wilkinson focused on the theory that an “unknown black male” was involved in the shooting. He said, “Who killed [Shaw] and why, we could speculate on, we could conjecture about, maybe you all will conclude as to why. But we're only here about [petitioner] and whether or not he should face capital murder, the death penalty, for killing someone that he did not kill.”

The jury found petitioner guilty as charged.FN10 After a brief recess, the jury returned for the penalty phase of the trial.FN11 The State put on one witness in its case, parole officer Carl Michael Newman. Newman testified that petitioner had two Alabama felony convictions and was on parole at the time Shaw was shot.FN12 The defense likewise presented one witness, petitioner. His testimony was brief. Petitioner indicated that he had a thirteen-month old child, a common-law wife, had worked a number of jobs, and attended nursing school while on parole.

FN10. The jury deliberated for an hour and 35 minutes, from 2:05 to 3:40 p.m. FN11. Before the jury returned to the courtroom, the court and defense counsel engaged in the following colloquy about mitigating circumstances: THE COURT: What about mitigating circumstances? MR. WILKINSON: Which can be almost anything. MS. VINSON: Yes. It can be almost anything. Not enumerated, but I think a separate statute says any circumstances of the offense can be considered mitigating circumstances. MR. WILKINSON: Or I suppose you might have three, might have five, might have six. I don't know. Actually we were just blank on submitting it, you know, a statement to the jury. We're just submitting it to them. And if [petitioner] wanted to make a statement on his own behalf, he can. But that was all. We were blank on doing it.

FN12. The State submitted into evidence certified copies of the two convictions. The certified copies indicated that on October 4, 1983, petitioner was convicted of theft of property in the first degree and, on December 9, 1983, was sentenced to prison for a term of ten years. On the same day he was sentenced for the first conviction, petitioner pled guilty to second degree robbery and was sentenced to a concurrent ten-year prison term. Petitioner was on parole on February 8, 1988, when the Shaw shooting occurred. His parole was revoked on March 15, 1988.

In its closing argument to the jury, the State argued that the evidence (introduced during both the guilt and penalty phases of trial) established three aggravating circumstances: the offense had been committed by a person (1) who was under a sentence of imprisonment; (2) who had been previously convicted of a felony involving the use or threat of violence to the person; and (3) who, at the time of the murder, was engaged in the commission of a robbery.FN13 As a result, the prosecution argued, the jury should return a death penalty verdict. Wilkinson, relying on petitioner's testimony, urged the jury to recommend a life sentence. The jury found the aggravating circumstances the State had cited, and, therefore, returned a verdict calling for the death sentence.FN14

FN13. Under Alabama law, aggravating circumstances authorizing the imposition of the death sentence include the following: “(1) The capital offense was committed by a person under sentence of imprisonment”; “(2) The defendant was previously convicted of ... a felony involving the use or threat of violence to the person”; and “(4) The capital offense was committed while the defendant was engaged ... in the commission of ... robbery.” Ala.Code § 13A-5-49. FN14. The jury voted 11 to 1 in favor of the death penalty.

The court sentenced petitioner on July 14, 1989, in accordance with the jury's verdict.FN15 The court based its sentence on the same aggravating circumstances the jury had found, and the absence of any mitigating circumstances.

FN15. Prior to sentencing, a pre-sentence investigation was conducted and a report thereof was submitted to the court and parties. During the sentencing hearing, defense counsel, arguing for a sentence of life imprisonment, raised two points: (1) that other cases in which the death penalty was imposed were “more extreme as far as the cruelty [and] viciousness of the act” than the case at hand, and (2) that the victim was “a person who dealt dope to the defendant,” and thus bore “great responsibility in that whole set of affairs.”

C.

Petitioner appealed his conviction and sentence.FN16 The Alabama Court of Criminal Appeals affirmed, Dill v. State, 600 So.2d 343 (Ala.Crim.App.1991), as did the Alabama Supreme Court, Dill v. State ( Ex parte Dill), 600 So.2d 372 (Ala.1992). The United States Supreme Court denied certiorari. Dill v. Alabama, 507 U.S. 924, 113 S.Ct. 1293, 122 L.Ed.2d 684 (1993).

FN16. The issues petitioner raised on direct appeal are not pertinent to our disposition of the instant appeal.

On July 1, 1994, proceeding under Rule 32 of the Alabama Rules of Criminal Procedure,FN17 petitioner returned to the Circuit Court of Jefferson County, asking that court to set aside his conviction and sentence.FN18 His petition contained forty-nine claims based on the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States ConstitutionFN19 and article I, section 6 of the Alabama Constitution, and it was supported by six affidavits.FN20 On September 14, 1994, the court denied the Rule 32 petition without holding an evidentiary hearing.FN21 Petitioner appealed the ruling. On July 7, 1995, the Alabama Court of Criminal Appeals vacated the ruling in part, and remanded the case to the circuit court for an evidentiary hearing on petitioner's ineffective assistance of counsel claims.FN22 Dill v. State, 717 So.2d 826, 827 (Ala.Crim.App.1995).

FN17. Rule 32 generally allows “any defendant who has been convicted of a criminal offense [to] institute a proceeding in the court of original conviction to secure appropriate relief” on various grounds, including that “[t]he constitution of the United States or of the State of Alabama requires a new trial, a new sentence proceeding, or other relief.” Ala. R.Crim. P. 32.1. Petitioner's Rule 32 petition was handled by the same judge who had presided over his trial.

FN18. The petition was prepared and filed by attorneys F. Hampton McFadden and Edwin O. Rogers. Several other lawyers subsequently represented petitioner as he pursued Rule 32 relief. Peter H. Burke and Edwin O. Rogers handled his appeal of the circuit court's September 14, 1994 ruling denying the petition. On remand from the court of criminal appeals, Michael Bevers and L. Dan Turberville represented petitioner at his Rule 32 hearing.

FN19. The only claims pertinent to the instant appeal are the two claims designated in the certificate of appealability, as amended.

FN20. These affidavits were executed during the period of May 3-June 29, 1994. Of the six affiants, two had testified for the State in the guilt phase of petitioner's trial: Terry Dill and Abbie Dill (Terry Dill's mother and petitioner's sister-in-law). One affiant-petitioner-had testified in the penalty phase of the trial. The three remaining affiants, none of whom had testified at the trial, were Angela Johnson (petitioner's common-law wife), Dr. Alwyn Shugerman (the physician who attended to Leon Shaw after he returned to the hospital on October 31, 1988), and Cheryl Wilkinson-Simonetti (the attorney appointed to represent petitioner after he was charged with the robbery of Shaw, prior to Shaw's death).

Collectively, the affidavits indicated that petitioner had consumed beer and had intravenously taken “several doses of cocaine” during the night and morning preceding his post-arrest statement to the police; Shaw had made “good progress” after his return home from the hospital in April 1988; Shaw's wife, Junatha Shaw, who had a live-in boyfriend while she was caring for her husband between his hospitalizations, failed to take care of her husband properly following his discharge from the hospital on April 26, 1988; “severe dehydration ... along with the other related derangements, was a primary cause of Shaw's death” (according to Dr. Shugerman's affidavit); and petitioner took good care of his common-law wife, Angela Johnson, prior to his arrest. In addition, each affiant stated that he or she either had limited contact or no contact with defense counsel prior to petitioner's trial.

FN21. In relevant part, Ala. R.Crim. P. 32.9 states: “Unless the court dismisses the petition, petitioner shall be entitled to an evidentiary hearing to determine disputed issues of material fact, with the right to subpoena material witnesses on his behalf. The court in its discretion may take evidence by affidavits, written interrogatories, or depositions, in lieu of an evidentiary hearing, in which event the presence of the petitioner is not required, or the court may take some evidence by such means and other evidence in an evidentiary hearing.” Ala. R.Crim. P. 32.9(a) (emphasis added).

FN22. Petitioner claimed that his trial counsel failed (1) to investigate and prepare petitioner's case for trial; (2) to ensure that petitioner received the psychiatric examination the trial court ordered; (3) to ask the venire persons in voir dire whether any of them had fixed opinions in favor of the death penalty; (4) to strike biased jurors who eventually were empaneled; (5) adequately to represent petitioner at trial; (6) to object to numerous instances of prosecutorial misconduct and the admission of inadmissible evidence; (7) to claim a variance between the indictment and the proof; (8) to request necessary jury instructions; (9) to conduct an adequate investigation for the sentencing phase; and (10) to include in a motion for a new trial the constitutional violations enumerated in petitioner's Rule 32 petition.

At the evidentiary hearing the circuit court held on September 13, 1996, the above claims were effectively reduced to the two claims now before us, as indicated in our introduction to this opinion and in our treatment of the merits of this appeal: whether counsel were deficient in failing to present evidence that the cause of Shaw's death was not the bullet wound he suffered but severe dehydration, and whether counsel should have presented the mitigating evidence reflected in the affidavits supporting his Rule 32 petition.

The circuit court convened a Rule 32 hearing to address those claims on September 13, 1996. After the court announced the purpose of the hearing, petitioner's attorney, Michael Bevers, objected to going forward with the hearing on the ground that petitioner was not present. The transcript of the hearing records his objection and the court's responses, as follows: MR. BEVERS: For the record we would move to object that [petitioner] was not brought here to the courtroom and he's not present. THE COURT: Where is he? MR. BEVERS: He's in prison in West Jefferson. THE COURT: There was no request that he be here, otherwise I would have had him here. MR. BEVERS: Would that have been our duty to request that, Your Honor? THE COURT: Yes, sir. MR. BEVERS: Very well.

Bevers did not request a continuance (in order to obtain petitioner's presence), so the hearing continued. FN23. When the hearing began, at 10:10 a.m., Bevers's co-counsel, Turberville, was not present. When Turberville's participation (in an argument) became necessary, the court recessed the proceeding until 2:34 p.m., at which time both attorneys were in attendance.

Petitioner's counsel presented no live testimony to support petitioner's petition. Instead, counsel relied on the six affidavits attached to the originally-filed petition, as well as later-filed affidavitsFN24 from six persons related to petitioner by blood or marriage: Leonard Dill, Lee Henry Dill, and Archie Dill (petitioner's brothers), Abbie Dill (Lee Henry Dill's wife), Carolyn Elaine Dill (Archie Dill's wife), and Angela Johnson Whaley (petitioner's former common-law wife, who presumably married a man surnamed Whaley after executing the earlier affidavit).FN25 The substance of these later-filed affidavits was that petitioner had been a good person until he began his drug use, and that he had cared for his ailing, arthritic mother, who died in October of 1984 while he was in prison. Counsel also relied on the affidavit of Dr. Alwyn Shugerman.FN26 In that later affidavit, which supplemented the affidavit he executed on June 14, 1994, Shugerman stated that “the immediate cause of [Shaw's] death was severe metabolic derangement and multiple organ failure associated with severe dehydration.”FN27

FN24. These affidavits were all taken during the period of May 15-24, 1996. FN25. The affidavits of Abbie Dill and Angela Johnson Whaley supplemented the affidavits they had given earlier, which were attached to the Rule 32 petition when it was filed on July 1, 1994.

FN26. Dr. Shugerman's later-filed affidavit, which he executed on July 13, 1996, was attached to a motion that petitioner's counsel filed prior to the Rule 32 hearing. In that motion, counsel sought leave of court to take Shugerman's deposition. The court denied the motion during the Rule 32 hearing.

FN27. Dr. Shugerman based his opinion on his “current review of the available medical hospital record,” the only reliable information about the patient at hand given that Shaw had died eight years previously. In his earlier affidavit, see supra note 22, Shugerman said that “severe dehydration ... along with the other related derangements, was a primary cause of Shaw's death.”

The State presented no evidence, in the form of either live testimony or affidavit, in opposition to petitioner's Rule 32 petition. Rather, it argued that petitioner had failed to adduce sufficient evidence to make out a prima facie case that the performance of his attorneys did not pass constitutional muster.

On October 9, 1996, the circuit court denied the Rule 32 relief petitioner was seeking.FN28 Petitioner appealed, and the Alabama Court of Criminal Appeals affirmed on March 26, 1999. Dill v. State, 767 So.2d 366 (Ala.Crim.App.1999). On March 31, 2000, the Alabama Supreme Court denied certiorari.

FN28. In denying relief, the Rule 32 court focused on the three ineffective assistance of counsel claims raised by petitioner during the hearing: (1) trial counsel's failure to call Dr. Shugerman to testify as to the victim's cause of death; (2) trial counsel's failure to follow up on the psychiatric examination of the defendant for use in the guilt phase or sentencing phase of the trial; and (3) trial counsel's failure to call mitigating witnesses during the sentencing phase. We set forth the relevant findings of fact from both the circuit court as well as the court of criminal appeals in our analysis of petitioner's claims in part III, infra.

D.

On March 30, 2001, his state remedies having been exhausted, petitioner sought a writ of habeas corpus in the United States District Court for the Northern District of Alabama, pursuant to 28 U.S.C. § 2254. His petition contained several claims for relief, two of which are pertinent here: his attorneys rendered ineffective assistance of counsel by failing (1) to call Dr. Shugerman as a witness during the guilt phase of the trial to testify that Shaw died of severe dehydration; and (2) to uncover and present mitigating evidence during the penalty phase of the trial.FN29 Relying on the record of the Rule 32 proceeding, including the circuit court's dispositive order and the opinion of the court of criminal appeals, the district court denied relief.

* * *

Given the weakness of the mitigating circumstances that petitioner presents, we are unpersuaded by his argument that such testimony would have surmounted the three aggravating factorsFN55 found by the trial court. We agree with the state court that any failure of petitioner's trial counsel to investigate and present mitigating evidence during the penalty phase was not unreasonable, and moreover, petitioner was not prejudiced as a result. Petitioner's trial counsel did not offer constitutionally inadequate assistance in that regard.

FN55. The three aggravating factors in this case are that: (1) the capital offense was committed by a person under sentence of imprisonment; (2) the defendant was previously convicted of a felony involving the use or threat of violence to the person; and (3) the capital offense was committed while the defendant was engaged in the commission of a robbery.

IV.

For the foregoing reasons, we hold that the district court properly denied petitioner's federal habeas relief on his ineffective assistance of counsel claims. The district court's order is therefore AFFIRMED.