M W HOLMAN DEATH ROW MURDER
Inmate: LAND, MICHAEL JEFFREY
DOC#: 00Z553
Gender: M
Race: W
DOB: 5/23/1969
Prison Holman
Received:1/18/1994
Charge: MURDER
County: JEFFERSON

Al.Com

"Alabama executes Michael Jeffrey Land for 1992 murder, by Carol Robinson. (August 12, 2010)

Michael Jeffrey Land was put to death tonight for the 1992 murder of a 30-year-old mother who was kidnapped from her home and later found shot in the head on Ruffner Mountain. Land, 41, was pronounced dead at 6:23 p.m. at Holman Prison in Atmore after spending 17 years on Alabama's Death Row for the slaying of Candace Brown.

Gov. Bob Riley this week turned down Land's request for clemency. Efforts by Land's attorneys to get the Alabama Supreme Court and the U.S. Supreme Court to halt the execution failed.

When Warden Tony Patterson asked Land if he had any final statements, Land replied "No. Thank you though." Holman Correctional Facility Chaplain Chris Summers got on one knee, held Land's left hand and prayed with him until Land fell into unconciousness.

Montgomery Advertiser

"Inmate executed for 1992 killing," by Bob Johnson. (Associated Press • August 13, 2010)

ATMORE -- An Alabama man had no last words before he was ex­ecuted Thursday for killing a woman who was abducted from her Birmingham home in 1992. Prison officials declared Michael Jeffrey Land, 41, dead from injection at 6:23 p.m. He was exe­cuted less than an hour after the U.S. Supreme Court rejected his fi­nal appeal. The Alabama Supreme Court turned down a plea to stop the execution earlier in the after­noon. Asked by Holman Warden Tony Patterson if he had any last words, Land said, "No. Thank you though."

Land was convicted of capital murder for fatally shooting 30-year-old Candace Brown in the back of the head after cutting her phone line and breaking into and burglarizing her home. Brown's 2-year-old son, Michael, was left alone in the house when she was abducted and was found un­harmed by police the next day. Brown's body was found later in a quarry on Ruffner Mountain. He had been on death row for 16 years, six months and 23 days.

Michael Brown, now 19, witnessed the execution along with Candace Brown's parents, John and Brenda Brown, and her three brothers. The Browns did not talk to reporters after the execution. After speaking with the war­den, Land lay quietly on the hospi­tal gurney in the death chamber with his arms outstretched. He balled his hands into a fist.

Land spoke quietly to Holman Chaplain Chris Summers, who held his hand and prayed for a few mo ments. When Summers stepped away, Land's hands re­laxed and he seemed to lose con­sciousness. A guard came over and rubbed Land's forehead, but he made no response and was pronounced dead minutes later. Land spent much of Thursday visiting with his mother, Gayle Gossett, a former Birmingham po­lice officer; his stepfather, Ellis Gossett; his brother, Jason Land, and his grandfather, Glenn Morrison.

Prisons spokesman Brian Cor­bett said Land got his last meal out of vending machines at the visita­tion yard. He ate a meatball sub sandwich, a double pork chop sandwich and a Philly cheesesteak sandwich, with an orange soda and orange juice.

In a lengthy clemency petition, Land's attorneys had asked Gov. Bob Riley to spare his life because he had turned his life around in prison after a tough childhood marred by mental problems. Since he has been on death row, the peti­tion said, he had earned a GED diploma, created a laundry system and served as a runner, delivering mail, meals and handling other errands.

Assistant Attorney General Clay Crenshaw asked Riley in a letter to reject Land's plea for clemency "because of the horrible nature of his crime." Riley agreed, saying he would not alter the decisions of jurors and the courts.

Court files are not clear on exactly why Land targeted Candace Brown, who worked at a financial institution and, according to fami­ly members, was taking college courses at Birmingham-Southern College. Land was a casual ac­quaintance of his daughter but not a friend, John Brown said. Land was moved Tuesday into a holding cell adjacent to the death chamber and just a few yards from the hospital-style gurney where he died, Corbett said.

His attorneys filed final-day petitions with the U.S. Supreme Court and the Alabama Supreme Court, contending he did not re­ceive due process on Wednesday when Riley turned down his re­quest for clemency. Both courts rejected the plead­ings after attorneys for the state and Riley said the governor gave full consideration to the request.

News24-TV

"Alabama set to execute Land for murder of Candace Brown," by Carol Robinson. (August 12, 2010)

A Jefferson County man is set to die today by lethal injection for the 1992 murder of Candace Brown, who was kidnapped from her home and later found shot in the head on Ruffner Mountain. Michael Jeffrey Land, 41, is scheduled to be executed at 6 p.m. at Holman Prison in Atmore after spending 17 years on Alabama's Death Row.

Late Wednesday afternoon, Gov. Bob Riley turned down Land's request for clemency. Land had asked for clemency earlier this week, saying he had earned a GED and performed good deeds in prison.

Brown's parents, John and Brenda, her son Michael, who is now 19, and her three brothers will attend the execution. "We've always sought justice for our daughter, and that is what we're seeking, justice," her father said Wednesday. "Eighteen years is what we've waited. We aren't going down there to gloat; I am going down there to represent my daughter."

At the time of her death, the 30-year-old Brown was working at an insurance company and doing some prison ministry. Her life, her father said, revolved around her son and helping others. "She loved him to death. She lived for him," John Brown said. "She was so proud of him, and we were so proud of her."

Land, whose mother was a Birmingham police officer at the time of the crime and conviction, was just 24 when he killed Brown after burglarizing her home.

Brown's body was found in a limestone quarry on Ruffner Mountain on May 20, 1992 by a group of high school students who were hiking. She had been reported missing the day before when her landlord found her Roebuck home's back window broken and telephone wires cut. Police found her toddler son inside with a puppy.

Forensics test linked Land's .45-caliber pistol to the bullet that killed Brown. It also linked Land's DNA to semen found on Brown's shoulder and identified blood on his shoes as matching the victim. Brown had named Land, who had previously been to prison twice for receiving stolen property, as a suspect in a prior burglary of her home in which her purse was stolen.

Authorities have said Brown briefly met Land when she was visiting a friend of his in prison as part of her ministry.

John Brown said his daughter's death left an emptiness in their family. "It's been a tragedy for us," he said. "You never expect to outlive your child. She was our only daughter." He said he has no animosity toward Land's family. "I know they are going to hurt," he said. But, he said it's important the decision of the jury and judge be carried out. "He went in my daughter's house; he cut the phone lines, and he took her out and shot her," he said. "All of this was done by his choice."

Among the greatest loss, he said, is that suffered by his grandson, who he and his wife raised after the slaying. "He never really got a chance to know his mother," John Brown said. "He has been deprived of the relationship they were building."

John Brown said his daughter loved to laugh and cut up. She was, he said, a faithful Christian. "I'd like for them to remember her in those ways and the fact that she was a Christian," he said. "That means more to me than anything."

ProDeathPenalty.Com

The police were called to Candace Brown's house after her landlord found that a window had been broken and the telephone wires had been cut. Upon entering the house, the police had discovered a puppy with Candace's unharmed two-year-old child, a note on a bulletin board with Michael Land's name and phone number, and a shoe print with distinctive tread (spelling out “USA”) on one of the broken windowpanes.

Candace had briefly met Land when she was visiting a friend of his in prison as part of a prison ministry. She had named him as a suspect in a prior burglary of her home in which her purse was stolen. Police located Land, who agreed to accompany them to the police station for questioning. He was given his Miranda rights, signed a waiver-of-rights form and agreed to have his statement tape recorded. Land initially claimed not to have seen Candace for a week and provided an alibi to account for the time relevant to her disappearance. During the course of the interview, one detective noticed what appeared to be bloodstains on Land's shoes and asked to inspect them. The detective saw that the tread on his shoes seemed to match the “USA” print on the windowpane at Brown's house and took them for further analysis. Land also complied with a request to change into a jail jumpsuit so his clothes could be inspected for bloodstains.

During this period, the police contacted Land's alibi witness, who did not substantiate his story. The police then confronted Land about the evidence, his inconsistencies, and the lack of corroboration from his alibi witness, telling him he needed to be truthful. He was again informed of, and waived, his Miranda rights. He proceeded to give another statement to the police which was not recorded (hereafter his “second statement”). This time he said he met two men at a service station who asked him if he knew an “easy mark” for a burglary. He suggested Brown's home and the men paid him $20 to cut the window glass of her residence, after which they all entered the kitchen. During the burglary, Brown woke up from the commotion and appeared in the kitchen, where one of the two men knocked her to the floor. Land claimed he became frightened at this point and left. He also admitted in this second statement that he had lied previously about where his car was and informed the detectives it could be found at the mall where he worked. The detectives then formally arrested Land.

The next day Brown's body was discovered in a limestone quarry on Ruffner Mountain near her residence by a group of high school students who were hiking. She had been shot in the back of her head by a .45 caliber automatic handgun. A search of Land's car turned up a .45 handgun, and the bullet from her head matched a bullet test-fired from that gun. They also found wire-cutters and a pair of gloves that had imbedded glass fragments consistent with the glass of the broken window in Brown's house. A DNA profile made from a semen stain, which was found on Brown's blouse, matched Land's blood sample with a degree of certainty of roughly one in 20 million. Land was convicted and sentenced to death in Alabama state court for two counts of capital murder-murder during burglary and murder during kidnapping.

UPDATE: Candace Brown's parents, John and Brenda, her son Michael, who is now 19, and her three brothers all plan to attend the execution. "We've always sought justice for our daughter, and that is what we're seeking, justice," her father said. "Eighteen years is what we've waited. We aren't going down there to gloat; I am going down there to represent my daughter." At the time of her death, the 30-year-old Brown was working at an insurance company and doing some prison ministry. Her life, her father said, revolved around her son and helping others. "She loved him to death. She lived for him," John Brown said. "She was so proud of him, and we were so proud of her."

Land, whose mother was a Birmingham police officer at the time of the crime and conviction, was just 24 when he killed Brown after burglarizing her home. Forensics test linked Land's .45-caliber pistol to the bullet that killed Brown. It also linked Land's DNA to semen found on Brown's shoulder and identified blood on his shoes as matching the victim. Brown had named Land, who had previously been to prison twice for receiving stolen property, as a suspect in a prior burglary of her home in which her purse was stolen. Authorities have said Brown briefly met Land when she was visiting a friend of his in prison as part of her ministry. John Brown said his daughter's death left an emptiness in their family.

"It's been a tragedy for us," he said. "You never expect to outlive your child. She was our only daughter." He said he has no animosity toward Land's family. "I know they are going to hurt," he said. But, he said it's important the decision of the jury and judge be carried out. "He went in my daughter's house; he cut the phone lines, and he took her out and shot her," he said. "All of this was done by his choice." Among the greatest loss, he said, is that suffered by his grandson, who he and his wife raised after the slaying. "He never really got a chance to know his mother," John Brown said. "He has been deprived of the relationship they were building." John Brown said his daughter loved to laugh and cut up. She was, he said, a faithful Christian. "I'd like for them to remember her in those ways and the fact that she was a Christian," he said. "That means more to me than anything."

UPDATE: Land, 41, was pronounced dead at 6:23 p.m. at Holman Prison in Atmore after spending 17 years on Alabama's Death Row for the slaying of Candace Brown. Gov. Bob Riley this week turned down Land's request for clemency. Efforts by Land's attorneys to get the Alabama Supreme Court and the U.S. Supreme Court to halt the execution failed. When Warden Tony Patterson asked Land if he had any final statements, Land replied "No, thank you though."

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
42 Willie McNair May 14, 2009 lethal injection Ella Foy Riley
43 Jack Trawick June 11, 2009 lethal injection Stephanie Gach
44 Max Landon Payne October 8, 2009 lethal injection Braxton Brown
45 Thomas Warren Whisenhant May 27, 2010 lethal injection Sheryl Lynn Payton
46 John Forrest Parker June 10, 2010 lethal injection Elizabeth Dorlene Sennett
47 Michael Jeffrey Land August 12, 2010 lethal injection Candace Brown

Land v. State, 678 So.2d 201 (Ala.Cr.App. 1995). (Direct Appeal)

Defendant was convicted of murder during burglary in first degree and murder during kidnapping in first degree, and was sentenced to death, in the Jefferson Circuit Court, James Hard, J., and defendant appealed. The Court of Criminal Appeals, Bowen, P.J., held that: (1) substantial evidence supported trial court's conclusion that defendant's statement to police was not involuntary; (2) eyeglasses were admissible without establishing chain of custody; (3) adequate chains of custody were established for gloves, piece of window glass, piece of telephone wire, wire cutters, victim's jeans and blouse, defendant's jeans, and pistol; (4) search of defendant's car was authorized under both consent and probable cause plus exigent circumstances exceptions to warrant requirement; (5) prosecutor's remark during closing argument, “Jeff, tell us the truth, tell us the truth,” did not constitute comment on defendant's failure to testify; (6) defendant was not prejudiced when trial court delivered jury instructions in two segments, with one segment preceding closing arguments and other segment following closing arguments; and (7) death was proper sentence. Affirmed.

Land v. State, 678 So.2d 224 (Ala.Cr.App. 1995). (Direct Appeal)

Defendant was convicted in the Jefferson Circuit Court, No. CC-92-4671, James H. Hard IV, J., of capital murder, and he appealed. The Court of Criminal Appeals, 678 So.2d 201, affirmed, and defendant petitioned for writ of certiorari. The Supreme Court, Butts, J., held that: (1) prosecutor's rebuttal closing argument stating that defendant should “tell us the truth, tell us the truth” was not an impermissible comment on defendant's failure to testify, and (2) limited testimony regarding victim's son and impact of victim's death on her family and prosecution's limited references to such evidence during opening and closing statements did not operate to deny defendant a fair trial or to prejudice his substantial rights so as to constitute reversible error. Affirmed.

BUTTS, Justice.

Michael Jeffrey Land was convicted of the capital murder of Candace Brown, and the trial judge sentenced him to death, following the jury's recommendation of that sentence. The Court of Criminal Appeals affirmed both his conviction and his death sentence. Land v. State, 678 So.2d 201 (Ala.Cr.App.1995). On certiorari review, we affirm the judgment of the Court of Criminal Appeals.

On the evening of May 18, 1992, Candace Brown drove to her mother's home to pick up her two-year-old son. Because Ms. Brown's residence had been burglarized five days earlier, her mother and brother followed her home to make sure the house was safe. Ms. Brown's mother and brother left the house at approximately 9:00 p.m. The following morning, May 19, Ms. Brown's landlord went to her residence to supervise the installation of a fence. The landlord observed that a window located near the rear entry to the house had been broken into, that the telephone wires to the house had been cut, and that the window on the driver's side of Ms. Brown's car had been shattered. After knocking on the front door and receiving no response, the landlord asked a neighbor to call the police and then returned to his own home in order to get a spare set of keys to Ms. Brown's house.

When officers from the Birmingham Police Department arrived at Ms. Brown's residence, they established that all doors to the house were locked, that a storm window located near a rear entry to the house had been removed, and that several panes of the interior window behind that storm window had been cut and removed. They saw on one of the removed panes of glass, which was lying on the ground, a shoe imprint with a distinctive tread design bearing the lettering “USA.” The landlord opened the house for the police officers, who found Ms. Brown's infant son alone and unharmed. The officers also found on a bulletin board a note with the name and telephone numbers of Michael Jeffrey Land and his mother, Gail M. Land.

After telephoning Ms. Land and learning from her where her son Jeffrey was working, Detectives Steve Corvin and Larry Fowler went to Riverchase Galleria, a shopping mall in Hoover, where Jeffrey Land was repairing the roof of the mall. The detectives informed Land that they were investigating the disappearance of Ms. Brown, and he agreed to accompany them to the police station to answer some questions. He was taken to an interrogation room and informed of his rights, pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He signed a waiver of rights form and agreed to have his statement tape-recorded.

Land acknowledged in the tape-recorded statement that he knew Ms. Brown, but said that he had not seen her in about a week, that he had no idea where she was, and that he had no knowledge about the most recent break-in at her residence. However, Land later confessed that he had burglarized Ms. Brown's residence six days earlier and that during the course of that burglary he had cut the exterior telephone lines.

When the detectives inquired as to where he had been the night before, i.e., May 18, Land claimed that he had been visiting a girlfriend at her parents' apartment until approximately 11:30 p.m. Land said that after he left the apartment he fell asleep in his car in the parking lot at the apartments and that he awoke at approximately 4:15 a.m., May 19, and drove to his grandfather's house; he said he lived there with his grandfather. Land claimed that he reported to work at the Galleria before 6:00 a.m. that morning, that he had eaten lunch earlier that day with a second girlfriend, and that his car was parked at that second girlfriend's house.

During the interrogation, Detective Fowler noticed that the tread design on the bottom of Land's tennis shoes appeared to match the print the officers had seen on the window glass at Ms. Brown's house. At the completion of Land's interview, Detective Fowler asked to see Land's shoes and, upon closer observation, noticed what appeared to be bloodstains. The detectives asked Land to removes his shoes and clothes, and they gave him a jail uniform to wear.FN1 Meanwhile, Birmingham Police Lieutenant Carl Quinn telephoned Land's second girlfriend, who denied having eaten lunch with him that day and also stated that Land's car was not parked at her home. FN1. The parties agree that Land was arrested at this point.

After Lt. Quinn relayed that information to Detectives Fowler and Corvin, Corvin informed Land that his second girlfriend had denied eating lunch with him and had denied having his car. Detective Corvin then told Land that he needed to tell the truth about the disappearance of Ms. Brown. Confronted with this discrepancy in his statement, Land then agreed to make a second statement, but refused to allow it to be tape-recorded.

Once again, Land was informed of, and waived, his Miranda rights. In his second statement, Land stated that he had met two men, whom he named “Tony” and “Edward,” at a gas station late the previous night and that these men had asked him if he knew an “easy mark” for a burglary. Land stated that he suggested Ms. Brown's house and that Tony and Edward had paid him $20 to cut and remove the glass to a window in Ms. Brown's house. Land said that the three of them entered the kitchen through this window.

Land said that after they entered the house Ms. Brown walked into the kitchen, where the three men were, and that either Tony or Edward slapped her, knocking her to the floor and causing her nose and mouth to bleed. According to Land, as Ms. Brown fell, she grabbed his hand and, he said, in doing so she may have gotten some blood on his gloves. When Detective Corvin told Land that no trace of blood was found in Ms. Brown's house, Land said that either Tony or Edward had cleaned the blood up with paper towels and then had placed the towels in his pants pocket. Land said that after Ms. Brown was injured he became frightened and left the house and that he did not know what happened to her after that.

In this second interview, Land admitted that his car was not parked at a girlfriend's house, but was instead parked in the parking deck at the mall where he had been working. When told by Detective Corvin that the police would need to look in his car, Land asked what would happen if they found something in his car that he was not supposed to have. Detective Corvin told Land that they were looking for evidence concerning Ms. Brown's disappearance and asked Land if he was referring to drugs. Land answered that he had a .45 caliber automatic handgun in his car and would consent to a search of the car only if the police agreed not to charge him with carrying a gun. Without agreeing to Land's conditions, Detective Corvin asked Land for his car keys. Land handed the keys to the detective.

Detective Fowler located Land's car, opened the trunk, and made a visual inventory of the trunk, without moving or touching the contents. He saw a .45 caliber semi-automatic handgun in the trunk, but did not seize it. Instead, the police had the car towed to a secure lot; it was searched two days later pursuant to a valid search warrant.

On the evening of May 19, after completing his second statement, Land was informed that he was under arrest. The next day, May 20, Ms. Brown's body was discovered by hikers in a rock quarry on Ruffner Mountain in Jefferson County. She had been shot once in the back of her head. Land was charged with capital murder.

At trial, the State's expert testimony showed that a pair of wire cutters found during the search of Land's car had made the cuts on the telephone wire leading into Ms. Brown's residence; that two types of glass fragments found on a pair of gloves seized from Land's car were consistent with the glass in the shattered window of Ms. Brown's car and with the glass in the broken window near the rear entry of Ms. Brown's house; that Land's tennis shoe sole had the same distinctive design as the shoe print found on a removed pane of glass at Ms. Brown's house; that the bullet recovered from Ms. Brown's head had been fired from a .45 caliber handgun and that it matched a bullet test-fired from the .45 caliber handgun found in Land's car; and that a DNA profile of a semen stain found on Ms. Brown's blouse matched Land's known blood sample, and that only one in 20,620,000 white males would have those same DNA characteristics (Land is white).

Land was convicted of two counts of capital murder for the death of Ms. Brown. The jury found him guilty of murder during a burglary, Ala.Code 1975, § 13A-5-40(a)(4), and guilty of murder during a kidnapping, Ala.Code 1975, § 13A-5-40(a)(1). By a vote of 11-1, the jury recommended that he be sentenced to death. The trial court followed the jury's recommendation and sentenced Land to die in the electric chair.

Land has raised for this Court's review 23 issues, some of which were also raised before the Court of Criminal Appeals and discussed in that court's lengthy opinion. We have thoroughly reviewed the issues raised before the Court of Criminal Appeals, and we find no error in the opinion of that court. We have also thoroughly reviewed the additional issues Land has raised for the first time before this Court and have found no reversible error. Moreover, we have carefully reviewed the record for “plain error,” in accordance with Rule 39(k), Ala.R.App.P., and have found none. We discuss here the issues that Land did not raise before the Court of Criminal Appeals, and also 2 issues that were raised in that court, but which Land's appellate counsel emphasized in oral argument before this Court.

I.

At oral argument, Land argued, through counsel, that his conviction should be reversed and that he should be given a new trial because, he says, the prosecutor impermissibly commented to the jury regarding his failure to testify. The prosecutor's comments he complains of were made during rebuttal closing argument of the guilt phase of the trial.

In the prosecutor's argument, the court reporter did not provide quotation marks on those portions of the prosecutor's statement that were obviously intended as representations of what various persons had said. In our quotation of the prosecutor's argument here, we have added those quotation marks. The prosecutor stated:

“They arrested him, ladies and gentlemen, for murder. They arrested him following his statement to the Birmingham Police Department: ‘I wasn't there, I didn't have anything to do with it. I don't know what you're talking about. I was at my girlfriend's house, my car was out at Marie F.'s. They take his shoes. They call Marie, they come back and say, ‘Hey, Jeff, Marie ain't got your car. And your shoes match the shoeprint out there on the scene. What you got to say? Tell us the truth.’ “ ‘Well, I'll talk to you, but not if that thing's running. I'll talk to you, I don't want it recorded like that. I'll tell you what happened.’

“So, then the defense wants you to believe that we have so intimidated this man [that] he is going to confess to breaking in a house that we haven't even told him anything about. He talks to you about how he went in the window. That was known at 8:30 in the morning. How he broke the glass to go in that window. It's broken, it's stacked up. “How he was wearing the same clothes that he's got on right now. That matches the footprint out on the scene [sic]. “How he went inside, committed the burglary. They wanted to commit a burglary. What do you do during a burglary? You steal. You steal.

“He gets inside with these two fictional human beings, I guess, and he gets scared and leaves because he realizes he is in some deep trouble. He has got to get out of this thing somehow. He ain't about to admit to committing the killing, so he is going to lay it off on Tony and Edward. ‘Oh, I got scared and left. And I had my car and I drove home and I went over-I went on to work.’ That means he has got his car the entire time. And where do we find the gun that fires the bullet into Candy Brown's head? We find it in the trunk of his automobile at 4:00 o'clock that afternoon. And he's got the keys until such time [as] the Birmingham Police Department takes them from him. He's got the keys. “There was a bullet found inside that house by the front door. It is consistent with having been fired out of this gun. Remember that. “Of course, Mr. Land, even in the statement where he talks to the police, starts hedging his bets and covering his tail a little bit. Said, ‘Oh, I got scared after she got hit by Tony and Edward and there was blood everywhere and that's how it got on my hands-on my gloves and on my pants.’ “ ‘Phyllis Rollan, did you go out there and luminol that place?’ ‘Yep, no blood.’

“ Jeff tell us the truth, tell us the truth. [Because Land questions whether these words were the prosecutor's own words or were part of the prosecutor's summary of other persons' statements, we have not added the quotation marks that have been added on other sentences or phrases.]

“Ladies and gentlemen, the Birmingham Police Department did not conspire against Jeffrey Land. I don't care about this guy unless or until he breaks the law here in the state of Alabama. And that's what he has done in this case. He committed a burglary and during that burglary he fired in that house. And then he marched Candy Brown up to Ruffner Mountain and he tried to blow her brains out. Now, you tell me, is a shot to the back of the head with a .45, is that an intent to kill? “.... “He is wearing gloves. He goes in and at some point Candy Brown wakes up and he says, ‘You're going with me.’ She said, ‘I'm not going anywhere.’ Maybe she ran towards the front door, maybe she was trying to get out. But at one point Michael Jeffrey Land fires the gun and said, ‘The next one's for the kid. You're going with me.’ “.... “And he tells her to lie down. ‘Lie down.’ ... “... He stands above her, bang, right in the back of the head. “....

“And he had the gall, gosh, the gall to be wearing the same clothes that he had just blown her brains out with. He didn't even go home and take a bath. He didn't go home and change clothes to get out of these death clothes, if you will. He didn't think nobody was going to find her. But Candy Brown knew somebody would find Michael, the little boy. “....

“But this man right here, ladies and gentlemen, he stands before you and says, ‘They lied, those people lied, I don't know anything about a footprint nor a statement saying I was there.’ Through his attorneys he continues to say ‘I don't know anything about the wire cutters or the phone lines or the glass fragments, I don't know anything about the gun or how that bullet got into her head. It may not even be the right bullet. And if it is, David Higgins is so dumb he can't read it.’ That's how with utter and total degradation of the Birmingham Police Department, Department of Forensic Sciences, Coroner's Office [sic]. “No Birmingham police officer, with what they go through day in and day out, *232 should have to put up with the accusations that were put forth in this room. No Department of Forensic Sciences personnel should have to put up with those kinds of accusations, but they have to, part of their job.”

A.

Land argues that the first emphasized statement in this quotation of the prosecutor's argument beckoned Land to tell the truth and that the statement was a direct comment by the prosecutor on Land's right not to testify. He argues that, at a minimum, the jury could have understood this statement to be a comment upon Land's failure to testify. He argues that the second emphasized statement of the prosecutor was a comment on Land's failure to testify because, he argues, it suggests that through his attorneys Land could continue to lie without taking the stand.

Further, Land contends that the second comment adversely colors the first because, he says, it demonstrates that with the first comment the prosecutor was not referring to Land's recorded statement. Rather, Land argues, the prosecutor was highlighting the fact that Land did not testify and was suggesting that he was lying to the jury though his attorneys and was thereby inviting the jury to infer that Land was guilty. Finally, Land argues that because the prosecutor made two separate comments regarding Land's silence, it increased the probability that the jury would understand the remarks to constitute a comment on Land's failure to testify.

In response, the State contends that when the first emphasized comment is viewed in the context of this particular trial and in light of the full text of the prosecutor's closing argument, it is clear that the prosecutor was referring to the confession given by Land, which was part of the evidence at trial. In other words, the State argues that the remark was not a comment on Land's failure to testify, but was instead a comment on Land's failure to tell the truth in his statement to the police. The State argues that the second statement at issue was merely a continuation of the first and was a permissible reply-in-kind argument directed to defense counsel's earlier statements.

B.

In Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), the United States Supreme Court held that a state prosecutor's direct comment on an accused's failure to testify violates the accused's rights under the Fifth and Fourteenth Amendments to the United States Constitution. Under this standard, “a statement by a prosecutor is improper if it was manifestly intended to be, or was of such a character that the jury would naturally and necessarily take it to be, a comment on the failure of the accused to testify.” Marsden v. Moore, 847 F.2d 1536, 1547 (11th Cir.), cert. denied, 488 U.S. 983, 109 S.Ct. 534, 102 L.Ed.2d 566 (1988). This Court has also ruled that “where there is the possibility that a prosecutor's comment could be understood by the jury as a reference to failure of defendant to testify, § 6 [Alabama Constitution of 1901] is violated.” Beecher v. State, 294 Ala. 674, 682, 320 So.2d 727, 734 (1975).

As noted by the State, Land failed to object to either of these comments and, thus, failed to preserve for appellate review the issues he now raises. However, because this is a case where the death penalty has been imposed, this Court will, pursuant to Rule 39(k), Ala.R.App.P., notice any “plain error,” regardless of whether an objection was made before the trial court. Plain error is error that “has or probably has adversely affected the substantial rights of the petitioner.” Rule 39(k). “In other words, the plain-error exception to the contemporaneous objection rule is to be ‘used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.’ ” United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985), quoting United States v. Frady, 456 U.S. 152, 163, n. 14, 102 S.Ct. 1584, 1592, n. 14, 71 L.Ed.2d 816 (1982).

We further note that “[w]hen an accused contends that a prosecutor has made improper comments during a closing argument, the statements at issue must be viewed in the context of the evidence presented in the case and the entire closing argument made to the jury-both defense counsel's and the prosecutor's.” Ex parte Musgrove, 638 So.2d 1360, 1368 (Ala.1993), cert. denied, Rogers v. Alabama, 513 U.S. 845, 115 S.Ct. 136, 130 L.Ed.2d 78 (1994).

1. “ Jeff tell us the truth, tell us the truth.”

The Court of Criminal Appeals addressed the issue whether the prosecutor's use of these words violated Land's constitutional rights, and that court found no error, plain or otherwise. That court held there was no chance that the jury could have understood the comment to be a reference to Land's failure to testify. Land, 678 So.2d at 218. We agree. In the first part of the prosecutor's rebuttal closing, he simply quoted or paraphrased statements Land had made to the police and statements the police had made to Land while he was being interrogated. It is clear that the prosecutor's discourse was nothing more than a “story” of the evidence told to the jury by the prosecutor's switching back and forth, speaking as Land, as the police, as a witness, and as the prosecutor himself.

The Court of Criminal Appeals correctly held that “the remark was not a comment on the appellant's failure to testify, but a comment on the appellant's failure to tell the truth in his statement to the police.” Land, 678 So.2d at 217. In the context of the prosecutor's entire closing statement, the jury could not have construed the words “Jeff tell us the truth, tell us the truth,” to be anything other than a narration of what the police had said to Land when his initial statement conflicted with known facts. There was no error in the prosecutor's use of those words.

2. “ Through his attorneys he continues to say ‘I don't know anything about the wire cutters or the phone lines or the glass fragments, I don't know anything about the gun or how that bullet got into her head.’ ”

These words, also part of the prosecutor's rebuttal closing argument, followed his discussion of various statements that Land's counsel had made during closing argument. Land's counsel had attacked the credibility of the evidence presented by the State's expert witnesses, including testimony regarding the tennis-shoe “footprint” similar to Land's found on a pane of glass, the procedure used to compare the cut made by Land's wire cutters to the cut made on the telephone wire, the procedures used to analyze evidence for a blood type and DNA match, the match of a bullet fired from Land's gun to the bullet retrieved from the victim's body, and the match of two types of glass found on Land's gloves with the window glass in the victim's car and house.

We disapprove of a statement by a prosecutor referring the jury to the fact that the defendant spoke through his attorneys, i.e., that he did not speak for himself. Thus, if Land's counsel had made a contemporaneous objection to this statement, and we were to apply the Beecher standard explained above, we might have held the comment to be reversible error. This is true even though it is clear to this Court that, when viewed in the context of the confrontational nature of closing arguments, the prosecutor's comment was intended as a “reply in kind” to the argument made by Land's counsel.

However, the comment was not objected to during trial. Thus, the statement may be considered only by the standard of the plain error rule. Under that standard, given the evidence presented in this case, we find no plain error in the prosecutor's statement.FN2 FN2. We further note that the lack of a contemporaneous objection by experienced defense counsel leads this Court to believe that the prosecutor's comment was not stated with an inflection or tone that would have naturally led a listener to construe it as a reference to Land's failure to testify.

II.

Land argues that his rights guaranteed under the Fifth, Sixth, Eighth, and Fourteen Amendments to the United States Constitution, and similar rights guaranteed under Alabama law, were violated when, he says, the trial court failed to correct what he calls a juror's misunderstanding about the presumption of innocence and the juror's responsibility for recommending a punishment. At the close of the guilt phase of the trial, the judge informed both defense counsel and the prosecution that he had received an anonymous note from the jury during defense counsel's closing argument.

The trial court informed the attorneys for both sides that it had decided that Juror C. had written the note. Defense counsel agreed to have Juror C. removed from the panel and replaced by alternate Juror S.

“[JUDGE HARD]: Let me get this on the record about the alternates. Let me tell you what my proposal is. We had Walter, you don't know yet-we had, as the jury exited for a break before Erskine [Mathis] argued, Andy Willis, the bailiff, handed me a yellow paper that will become your property, I read this to the fellows before Erskine [Mathis] argued. We have divined that Ms. C. wrote this note, the lady that had been a victim and wanted to talk privately, isn't that Ms. C., the one with the hat? That's Ms. C. She wrote the note. “I have the law here, the rules of procedure that tell me, in blue highlight, if anybody wants to read it, the last person struck shall be the alternate and if it becomes necessary for an alternate to replace a principal juror, then the last person struck shall be so designated as such. So, I can say to you guys that your last strike was 289, [Juror S.] Is that the blonde on the left? Does anybody know? “[MR. MATHIS (defense counsel) ]: I would state for the record that the lady who wrote the note has glared at us ever since we found out about the note, as though she would like to spit. I have been particularly cognizant of that. While I was standing up there within two feet of her trying to give my closing argument, I was really worried- “[JUDGE HARD]: Well, do you want her to be struck? “[MR. MATHIS]: I think that is our client's decision and, of course, mine and Hiram [Dodd's] as well. “[MR. DODD (defense counsel) ]: I think the client needs to hear what she said. “[THE COURT]: Here's what she said: ‘I object to Mr. Dodd's statement about them wanting us to kill him. I feel he did it to play on our guilt. Whatever the verdict may be we are not responsible for the punishment of the defendant if found guilty, the defendant is. If I may object.’ It is signed ‘juror.’ “I show it to you. Give it to Walter when you are through with it. “[MR. MATHIS]: I want to exercise my discretion- “[MR. DODD]: You have observed her more than I have- “[MR. MATHIS]: I have serious misgivings about leaving her on the jury, in light of the appearance of things. “[MR. LAND (defendant) ]: Did y'all just get the note today? “[MR. MATHIS]: Yeah. “[MR. DODD]: Just now. “[MR. LAND]: She's been glaring before today. “[MR. DODD]: All right. Don't say anything else. “[JUDGE HARD]: All right. “[MR. MATHIS]: We would like to have her excluded, Judge. “[MR. DODD]: And whoever is supposed to be put in there, put them in.”

Land now points out that although the note was signed “juror,” it included the plural terms “us,” “our,” and “we,” and he argues that this fact suggests that its contents actually represented the view of the jury as a whole. Land contends that the text of the note evidences a misunderstanding-that the jury is not responsible for recommending a punishment-and also suggests that the jury may have prematurely concluded that he was guilty. Land now asserts that, at a minimum, the trial court was obligated to poll the jury or to allow defense counsel an opportunity to ascertain whether there existed juror bias.

In response, the State argues that there was no error, because, it says, the trial court properly instructed the jury on the presumption of innocence, the reasonable doubt standard, and the jury's role in sentencing, and the State says the judge alleviated any possible prejudice to Land by replacing Juror C. with an alternate. The State contends that Land's argument based on the use of the plurals “we” and “us” is unfounded because the note was signed with the singular noun “juror.” It also argues that Land presented no proof that the note represented the feelings of more than the one juror that was replaced.

We find no error in the actions of the trial court. A trial court has considerable discretion in determining the scope of the inquiry required when there is an irregularity involving a juror or the jury. See Johnson v. State, 620 So.2d 679 (Ala.Cr.App.1992), reversed on other grounds, 620 So.2d 709 (Ala.1992), cert. denied, 510 U.S. 905, 114 S.Ct. 285, 126 L.Ed.2d 235 (1993), and Sistrunk v. State, 596 So.2d 644 (Ala.Cr.App.1992). The record reveals that there was no doubt in the minds of the trial judge, the prosecutors, defense counsel, or the defendant that Juror C. had written the note. Not only did Land's counsel not object to the trial court's actions, they specifically requested that the judge, to remedy the problem, only replace Juror C. Moreover, because Land did not object to the trial court's action, this issue is reviewable only under the plain error standard. Clearly, the trial court did not commit plain error.

III.

Land argues that his rights guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and similar rights guaranteed by Alabama law, were violated when, he says, the prosecutor used prejudicial victim impact evidence during the guilt phase of the trial. Before trial, Land's counsel asked the court to prohibit the State from introducing evidence regarding the condition in which the police found Ms. Brown's two-year-old son following her disappearance. The grounds for this motion was the argument that that evidence would likely inflame the emotions of the jury. The trial court reserved its ruling on the motion until trial, but after the trial began it never ruled on the motion.

According to Land, the prosecution learned during voir dire examination of prospective jurors that those prospective jurors who had some memory of news media accounts of Ms. Brown's murder recalled that her infant son had been with her in the house. Land argues that during opening statements the prosecutor then focused on Ms. Brown's infant son by suggesting that he was the last person to see his mother alive and by informing the jury that he had been left alone in the house when his mother was abducted from the house. Land argues that during the guilt phase of the trial the prosecutor elicited references to the child from several witnesses, and that in closing statements he emphasized the suggestion that Ms. Brown had sacrificed her life to keep her son alive.

Land also contends that the prosecutor improperly introduced evidence regarding the impact Ms. Brown's death had upon her family and then, during closing arguments, commented several times on the family's loss. Land contends that this evidence should have been excluded because, he says, its prejudicial effect far outweighed any probative value it may have had.

In response, the State argues that there was no error in the prosecution's questioning of those prospective jurors that remembered the crime, and that any questioning regarding the presence of the victim's son was not for the purpose of gathering victim impact evidence, but was merely a part of the general questioning of the venirepersons to ascertain whether any of them had prior knowledge and fixed opinions about the case. The State argues that the prosecution's opening statement telling the jury about the fact that the child had been left alone in the house was not improper because that was a fact the prosecutor expected the evidence would show, or, the State says, was a crucial part of the res gestae or chain of events in Ms. Brown's death. Further, the State contends that any questioning of witnesses regarding the child was not improper or was at most merely harmless error. The State argues that any mention of the victim's child by the prosecution during closing arguments of the guilt phase was to state a legitimate inference derived from the evidence and was, therefore, proper. Again, the State argues that, at most, the comments about the child were harmless error. The State also says that Land did not object to any references to the child during opening arguments, questioning of witnesses, or closing arguments.

The State argues that any comment or questioning by the prosecution regarding the effect of Ms. Brown's death on her family did not have an impact on the fairness of Land's trial. It also says that Land did not object to the comments or questioning. The State contends that, at most, the prosecution's action was only harmless error.

Recently, this Court examined the issue of victim impact evidence in Ex parte Rieber, [Ms. 1940271, May 19, 1995] 663 So.2d 999 (Ala.1995). In Rieber, we acknowledged that testimony regarding a murder victim's children was not relevant to the issue of the accused's guilt or innocence and was, thus, inadmissible during the guilt phase of trial; we noted, however, that “a judgment of conviction can be upheld if the record conclusively shows that the admission of the victim impact evidence during the guilt phase of the trial did not affect the outcome of the trial or otherwise prejudice a substantial right of the defendant.” 663 So.2d at 1005. After thoroughly reviewing the record of this present case, we conclude that the limited testimony regarding Ms. Brown's infant son and the impact of Ms. Brown's death on her family, and the prosecution's limited references to such evidence, did not operate to deny Land a fair trial or to prejudice his substantial rights. Thus, we find no reversible error as to this issue.

IV.

Relying on Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), and Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), Land argued to this Court at oral argument that he should receive a new sentencing hearing because the trial judge stated that he had read and considered several letters written to him by the victim's family and friends. Land contends that the letters, which expressed the writers' opinions regarding Land, the crime, and the appropriate punishment, prejudiced the judge against him, prevented him from receiving a fair sentencing hearing, and violated his Eighth Amendment rights.

In response, the State agrees that the law prohibits a trial court from considering victim impact evidence regarding characterizations of the defendant, the crime, or appropriate punishment. However, the State's position is that although the trial judge did read the letters that are now at issue, he did not improperly “consider” them during the process of determining Land's sentence. The State asserts that the trial judge was an experienced judge and was well aware of the law regarding what factors he could consider in determining Land's sentence and was capable of sorting out and using only the information he could properly consider under the law.

Because Land failed to make a contemporaneous objection during his sentencing hearing when the trial judge stated that he had read the letters from Ms. Brown's family and friends, we review this issue under the plain error standard.

The trial judge stated the following during the sentencing hearing: “[JUDGE HARD]: I have also received, as you know, additional correspondence from family members, both [members of the] Brown family and [members of the] Land family. I would like to thank each person who has written me from both sides for the heartfelt sentiments that you have forwarded to me, many of you. I appreciate it. Many of the comments were very disturbing, but I thought very carefully about everything that's been written to me by every person. Of necessity, I copied everything and gave it to the lawyers and Mr. Land. “.... “[JUDGE HARD]: All right. Proceeding to the determination of sentence, as we know, we lawyers know that I am to determine sentence based squarely on whether or not prevailing [sic] circumstances found to exist outweigh mitigating circumstances found to exist. I am to consider the jury's recommendation contained in their advisory verdict, though, as we all understand, we are in a jury-override state and the jury's recommendation is not binding on the Court. “.... “[JUDGE HARD]: To mitigation. Number one.... “....

“[JUDGE HARD]: As I mentioned earlier, ladies and gentlemen, I have carefully read every scrap of paper submitted to me, including the Hillcrest discharge papers, Dr. Rosecran's findings, the pre-sentence report by Mr. Bryant, the letters submitted by the respective families. I have listened, of course, to the trial, first and second stage and, as well in October, comments of counsel, and I have reviewed the entire case, recalling the arguments given at the first and second stage and third stage in October. “To conclude, I find no mitigating circumstance by way of 13A-5-52.”

In Ex parte McWilliams, 640 So.2d 1015 (Ala.1993), this Court directed a new sentencing hearing where the record did not reveal whether the trial judge, in imposing the death sentence on the defendant, had improperly considered certain portions of victim-impact statements that contained the type of information involved in this case. In contrast, the record in this case indicates to this Court that the trial court determined Land's sentence in a manner consistent with the procedure established by §§ 13A-5-47 to -52. The record indicates that the trial court reviewed the letters at issue, both those written by the victim's family and those written by Land's family, out of a respect for the families and for the limited purpose of possibly establishing a mitigating factor under § 13A-5-51 to be weighed in Land's favor at trial. We find no plain error in the actions of the trial court.

V.

Land next argues that his conviction under count one of his indictment must be reversed because, he says, the State failed to introduce sufficient evidence by which a rational jury could conclude that he was guilty on that count. Count one charged Land, pursuant to Ala.Code 1975, § 13A-5-40(a)(4), with the intentional killing of Candace Brown in the course of a first or second degree burglary. Land contends that the State introduced no evidence that he intended to commit a theft when he entered Ms. Brown's home and, thus, he argues that the trial court erred in denying his motion for a judgment of acquittal on that count. Relying on Coulter v. State, 438 So.2d 336 (Ala.Cr.App.1982), judgment affirmed, Ex parte Coulter, 438 So.2d 352 (Ala.1983), denial of habeas corpus affirmed, Coulter v. Herring, 60 F.3d 1499 (11th Cir.Ala.1995), he also argues that no proof of intent to commit a theft was put before the jury, so that the aggravating factor that the murder was committed while the defendant was engaged in a burglary, listed in Ala.Code 1975, § 13A-5-49(4), should not have been used in the determination of his sentence. Land contends that he should receive a new sentencing hearing.

In response, the State argues that it presented evidence that, when Land broke into Ms. Brown's home, he clearly intended to commit a theft therein. The State notes that it presented in evidence Land's statement to the police in which he said that when he met Tony and Edward they discussed “doing a burglary” and in which Land said he told them “he knew an easy mark.” In that statement Land said he drove to Ms. Brown's home, broke a window, and entered through that window, planning to commit a theft, but was interrupted by Ms. Brown. The State contends that that evidence was sufficient to support a jury's finding that, when Land broke into Ms. Brown's home, he intended to commit a theft.

In Ex parte G.G., 601 So.2d 890, 892 (Ala.1992), we stated: “In order to defeat a defendant's motion for judgment of acquittal, the State must prove, by substantial evidence, the elements of the charge and the defendant's guilt beyond a reasonable doubt.” However, an appellate court will review the evidence in a light most favorable to the prosecution. Breckenridge v. State, 628 So.2d 1012 (Ala.Cr.App.1993). Moreover, a conviction will not be set aside because of an alleged insufficiency of the evidence unless the preponderance of the evidence against the verdict is so decisive as to clearly convince the appellate court that the verdict is unjust. Id.

In this case, given Land's statement to the police regarding his “break-in” into Ms. Brown's house, we conclude that the State presented substantial evidence that Land intended to commit a theft therein. Thus, the trial court did not err in denying Land's motion for a judgment of acquittal on the first count of his indictment. Given that ruling, we need not address Land's second contention, that he should receive a new sentencing hearing.

VI.

Land argues that the “fruits” of his arrest, including his first statement and the evidence obtained from his car, were improperly admitted into evidence. He contends that when the police arrested him, without an arrest warrant, they did not have probable cause to do so. Thus, he argues, the statement and other evidence were “fruit of the poison tree” and admission of the evidence violated his rights guaranteed under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and rights guaranteed under the Alabama Constitution. Land claims that he was “under arrest” when the police took his shoes and clothes and gave him a jail uniform to wear because at that time, he says, he was no longer free to leave the police station.

He asserts that his arrest was made without probable cause because, he says, under the totality of the circumstances there was not a fair probability that he had committed a crime. He contends that all the police knew about the crime at that time was that there had been a burglary at Ms. Brown's house, that she had disappeared, that his name and telephone number had been found on a bulletin board in the house, and that he appeared to have blood spatters on his shoes. Land points out that the police also knew at that time that he had been cooperative with their investigation of Ms. Brown's disappearance, had given a voluntary statement, and had accounted for his whereabouts at the time she had disappeared. Land argues that although the police later obtained additional incriminating evidence against him, that fact does not validate what he says was an illegal arrest. As noted above, Land argues that the fruits of his arrest were not admissible and that his conviction, based on that evidence, should be reversed.

The State agrees that Land was under arrest, though not formally, when the police took his clothes and shoes. However, the State argues that Land's arrest was supported by probable cause, pointing to such evidence as the fact that Land's telephone number was found in Ms. Brown's house, that Land had admitted to cutting the telephone line and breaking into Ms. Brown's house a week before her murder, that his story about having lunch that day with his second girlfriend and leaving his car at her house was not true, that Land was wearing tennis shoes with a “USA” tread design that appeared similar to a shoe print on a piece of glass that had been removed from Ms. Brown's house, and that he appeared to have blood spatters on his shoes.

Ala.Code 1975, § 15-10-3(a)(3), states that a police officer may arrest a person without a warrant “[w]hen a felony has been committed and the officer has reasonable cause to believe that the person arrested committed the felony.” An officer has reasonable, or probable, cause to make an arrest “when, at the time the arrest is made, the facts and circumstances within his knowledge, and of which he has reasonably trustworthy information, are sufficient to lead a prudent person to believe that the suspect is committing or has committed an offense.” Gord v. State, 475 So.2d 900, 902-03 (Ala.Cr.App.1985). See Manning v. State, 568 So.2d 327 (Ala.Cr.App.1990), and Brannon v. State, 549 So.2d 532 (Ala.Cr.App.1989). Thus, a warrantless arrest is not legal if it is supported only by a suspicion in the officer's mind that the person has committed an offense. Brannon, supra. Evidence seized pursuant to a warrantless arrest not supported by probable cause is inadmissible, and a conviction based on that evidence must be reversed. Id.

Land and the State disagree as to whether the police were aware, when they arrested Land, that the tread design on his tennis shoe was similar to the print on the pane of glass that had been removed from Ms. Brown's house. However, even if the police were unaware of that particular connection of Land to the crime, we conclude that Land's arrest was amply supported by probable cause. The trial court did not err in admitting the evidence seized pursuant to Land's warrantless arrest.

VII.

At oral argument, Land argued to this Court that his cross-examination of Detective Fowler was improperly curtailed when the trial court would not allow him to question Fowler about the contents of an internal police memorandum outlining an anonymous tip that two persons other than Land may have been involved in Ms. Brown's murder. Land contends that the police were overly zealous in their investigation of him and that they failed to conduct a thorough investigation of other potential suspects. He now argues that the memorandum was admissible under the “public records exception” to the hearsay rule, relying on Grantham v. State, 580 So.2d 53 (Ala.Cr.App.1991),FN3 and, thus, he asserts that he should have been allowed to further cross-examine Fowler on the question whether there were other possible suspects. Land asserts that the trial court committed reversible error in limiting the scope of his cross-examination of Fowler because, he says, it prevented him from fully developing his defense and infringed upon his right to confront witnesses testifying against him. He contends that the court's action violated his rights guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and rights guaranteed by Alabama law.

FN3. In Grantham, the Court of Criminal Appeals stated: “Sections 12-21-35 and 36-18-2 [Ala.Code 1975] essentially establish a public record exception to the hearsay rule that is similar in nature to the business record exception found in § 12-21-43.” 580 So.2d at 55.

Land also argues that the trial court infringed on his right to full cross-examination when, he says, it prohibited defense counsel from asking leading questions of Detective Corvin. He contends that the court's action limiting cross-examination of Corvin violated his rights guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and rights guaranteed by Alabama law.

In response, the State points out that Land's counsel was allowed, without objection, to ask Fowler whether he had seen the memorandum at issue and that counsel obtained a response indicating that he had seen it. The State notes that Land's counsel then attempted to elicit from Fowler a statement of the contents of the memorandum. It argues that the memorandum was clearly hearsay evidence and inadmissible, and that the trial court therefore did not err in preventing Land from further questioning Fowler regarding the contents of the memorandum.

The Court of Criminal Appeals held that the trial court correctly ruled the internal police memorandum inadmissible hearsay. It stated: “ ‘The general rule in Alabama is that an accused is not entitled to introduce testimony that someone else was suspected of committing the crime for which he is being tried.’ ” Land, 678 So.2d at 207 (quoting Johnson v. State, 612 So.2d 1288, 1293 (Ala.Cr.App.1992)).

With regard to Land's argument relating to his cross-examination of Detectives Fowler and Corvin, we note that the latitude and extent of cross-examination of witnesses rests within the sound discretion of the trial court and that the trial court's ruling on these matters will not be reversed except for an abuse of discretion. Ex parte Pope, 562 So.2d 131 (Ala.1989), cert. denied, 498 U.S. 841, 111 S.Ct. 118, 112 L.Ed.2d 87 (1990); Beavers v. State, 565 So.2d 688 (Ala.Cr.App.1990). We find no abuse of discretion with regard to the trial court's limitation on Land's cross-examination of Fowler with regard to the police memorandum. The contents of the memorandum were clearly hearsay reduced to a writing. Although Land argues that the memorandum was admissible under a “public records exception” to the hearsay rule, which he says is similar to the business records exception, we conclude that such an exception would not make the document admissible, and admissibility was required in order for Land to be entitled to further question Fowler about the document. Exceptions to the hearsay rule will not make admissible into evidence documents that are inadmissible for reasons other than the fact of their hearsay nature. Gullatt v. State, 409 So.2d 466 (Ala.Cr.App.1981). In this case, the evidentiary rule relating to testimony about other suspects, which the Court of Criminal Appeals relied upon and which is quoted above, made the memorandum inadmissible. The trial court did not abuse its discretion in limiting Land's cross-examination of Detective Fowler.

Similarly, we find no abuse of discretion by the trial court with regard to Land's cross-examination of Detective Corvin. The trial court did sustain a “leading question” objection by the prosecution to a question asked of Corvin by defense counsel. However, we conclude that the one ruling by the trial court now complained of by Land did not prevent his counsel from conducting a thorough and sifting cross-examination of Corvin. The record contains an additional 30 pages of questioning of Corvin by defense counsel following the trial court's ruling that Land now claims abridged his constitutional rights.

VIII.

Land argues that the trial court committed reversible error when it denied defense motions to excuse two prospective jurors for cause. Land argues that prospective Juror P.H. should have been dismissed for cause because, Land says, voir dire questioning revealed that he had significant knowledge about the case and that he had a significant potential for bias against Land arising from a sympathy for Ms. Brown's son. Land argues that prospective Juror W.H. should have been dismissed for cause because, he says, during voir dire W.H. expressed an unequivocal belief that once a person is found guilty of capital murder that person should be put to death and that life without parole should not be considered. Land argues that any later “rehabilitation” of W.H. was a response learned by W.H. after observing other similarly opinionated prospective jurors being struck from the jury panel.

In response, the State argues that prospective Juror P.H. did not need to be struck for cause because he indicated only that he had read the newspaper every day and recalled sketchy facts of the case, but did not know any specifics of it. The State argues that prospective Juror W.H. did not need to be struck for cause during questioning by the trial court because he clearly expressed his opinion that the death sentence was not appropriate in every murder case and that each case should be judged on its own merits. In sum, the State contends that there was no statutory ground on which to strike either of these prospective jurors for cause and that they did not show an absolute bias against Land or a fixed opinion as to his guilt or as to the application of the death penalty.

Even though a prospective juror may initially admit to a potential for bias, the trial court's denial of a motion to strike that person for cause will not be considered error by an appellate court if, upon further questioning, it is ultimately determined that the person can set aside his or her opinions and try the case fairly and impartially, based on the evidence and the law. Knop v. McCain, 561 So.2d 229 (Ala.1989); Siebert v. State, 562 So.2d 586 (Ala.Cr.App.1989), affirmed, 562 So.2d 600 (Ala.), cert. denied, 498 U.S. 963, 111 S.Ct. 398, 112 L.Ed.2d 408 (1990); Perryman v. State, 558 So.2d 972 (Ala.Cr.App.1989). Only when a prospective juror's testimony indicates a bias or prejudice so fixed or deep-seated that that person cannot be impartial and objective must a challenge for cause be granted by the trial court. Knop, supra; Siebert, supra; Perryman, supra. Finally, a trial court's ruling on a motion to strike a juror for cause, based on an allegation of juror bias, is entitled to great weight and will not be disturbed on appeal unless it is shown that the court clearly abused its discretion. Forehand v. State, 624 So.2d 688 (Ala.Cr.App.1993); Siebert, supra.

After thoroughly reviewing the record, we conclude that the voir dire testimony of both P.H. and W.H. clearly indicates they could try the case fairly and impartially. Neither prospective juror expressed a deep-seated or fixed bias or prejudice that would have required a strike for cause. Accordingly, the trial court did not err in denying Land's motions.

IX.

Land contends, for the first time, that he was deprived of his rights guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution and rights guaranteed by Alabama law, to a reliable sentencing determination when, he says, the trial court ignored what he calls an unrebutted nonstatutory mitigating circumstance. Land argues that this unrebutted nonstatutory mitigating circumstance is shown by information contained in records from the Hillcrest mental facility regarding his treatment there in June 1986. Land stresses five bits of information contained in the reports: (1) that he suffered from a conduct disorder, (2) that he had an unstable home environment, (3) that he had significant impulse control problems, (4) that he had no father figure, and (5) that he had no contact with his natural father. Land argues that the trial court erred by simply holding that this information did not rise to the level of indicating a statutory mitigating circumstance, without considering it to indicate a nonstatutory one.

In response, the State argues that although the law requires that a sentencing authority must not be precluded from considering any mitigating evidence, a trial court is not required to list the evidence it considers in determining the existence or nonexistence of nonstatutory mitigating factors. It notes that in this case the trial court clearly stated in its sentencing order that it did consider Land's records from Hillcrest and, thus, that it must have considered the information Land now emphasizes. The State contends that it was not error for the trial court to consider the Hillcrest records without finding the existence of a nonstatutory mitigating circumstance.

In Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978), the Supreme Court stated that “the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” (Emphasis original, footnote omitted.)

In Haney v. State, 603 So.2d 368, 389 (Ala.Cr.App.1991), affirmed, 603 So.2d 412 (Ala.1992), cert. denied, 507 U.S. 925, 113 S.Ct. 1297, 122 L.Ed.2d 687 (1993), the Court of Criminal Appeals stated the following with regard to nonstatutory mitigating factors: “ It is not required that the evidence submitted by the accused as a nonstatutory mitigating circumstance be weighed as a mitigating circumstance by the sentencer, in this case, the trial court; although consideration of all mitigating circumstances is required, the decision of whether a particular mitigating circumstance is proven and the weight to be given it rests with the sentencer.” (Emphasis added.)

The trial court's sentencing order specifically stated that the court had reviewed the Hillcrest records Land now highlights. In fact, in his order the trial judge quoted a portion of those records summarizing Land's history and his condition on discharge. Although the trial court did not find that any of the circumstances described in the Hillcrest records qualified as statutory mitigating factors, it is clear to this Court that the trial court did consider that information when it determined Land's sentence. Thus, we find no plain error in the trial court's sentencing of Land.

X.

Land also argues that the trial court's refusal to allow the use of a jury questionnaire form or individual voir dire prevented him from selecting a fair and impartial jury and, thus, violated his rights guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and rights guaranteed by Alabama law. He contends that the use of a jury questionnaire, or individual voir dire examination of prospective jurors, was required in order for him to be able to conduct an effective voir dire designed to detect bias arising from pretrial publicity, without contaminating the entire venire. Land argues that the group voir dire, in which he says 33 of 56 members of the venire responded by indicating that they had been crime victims, left every prospective member of the jury with a greater sense of vulnerability to crime. Land contends that these discussions created an atmosphere of hostility toward him and destroyed any chance of a fair trial. Land also argues that group voir dire examination had the prejudicial effect of “training” members of the venire on how to answer questions relating to the use of the death penalty, in such a way as to avoid being struck for cause.

In response, the State argues that although the trial court did not permit individual sequestered voir dire examination or the use of a jury questionnaire the record shows that the trial court allowed extensive group voir dire examination on the questions of possible prejudice arising out of pre-trial publicity, as well as questions concerning the prospective jurors' views about the death penalty. The State contends that the trial court took adequate steps to ensure that Land would be judged by a fair and impartial jury and that the failure to use the voir dire examination procedure Land now argues was necessary was not reversible error.

A trial court is vested with great discretion in determining how voir dire examination will be conducted, and that court's decision on how extensive a voir dire examination is required will not be overturned except for an abuse of that discretion. Fletcher v. State, 291 Ala. 67, 277 So.2d 882 (1973); Lane v. State, 644 So.2d 1318 (Ala.Cr.App.1994); Harris v. State, 632 So.2d 503 (Ala.Cr.App.1992), affirmed, 632 So.2d 543 (Ala.1993), affirmed, 513 U.S. 504, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995). After reviewing the record, we conclude that the trial court did not abuse its discretion in this regard.

XI.

Land next argues that the trial court miscalculated what Land's age was at the time of Ms. Brown's murder, and that the miscalculation denied him an individualized sentence and thereby violated his rights guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution and rights guaranteed by Alabama law. Land states that he was born on May 23, 1969, and was only 22 years old at the time of Ms. Brown's death, on May 18, 1992. He argues that the trial court erroneously concluded that he was only a few days short of his 24th birthday at that time. Land contends that, based on the error, the trial court concluded that Land's age at the time of the crime was not an applicable mitigating circumstance. Relying on Lockett, supra, and its progeny, Land argues that the trial court's reliance on the miscalculation deprived him of the right to that court's consideration of a possible mitigating factor that would have suggested a sentence less than death and, thus, requires reversal of his sentence.

In response, the State notes that Land did not raise this claim at his sentencing or on direct appeal and that, therefore, it is subject to review only under the plain error standard. In sum, the State argues that Land has not shown the degree of harm required for a reversal under the plain error standard. It argues that even if the trial court had not made the miscalculation, which the State considers “minor,” it is improbable that it would have made any difference in that court's decision that Land's age at the time of the crime was not a mitigating circumstance.

In its sentencing order, the trial court did miscalculate Land's age at the time of Ms. Brown's murder. The trial court stated that Land was “five days short of his 24th birthday,” when he was actually five days short of his 23d birthday. Although Land has attempted to magnify the error by arguing he was only 22 and the trial court determined he was almost 24, the truth is that the trial court miscalculated by only one year. Whether he was five days short of 23, or five days short of 24, Land was clearly an adult, not a minor, when he killed Ms. Brown. We conclude that the trial court's miscalculation of Land's age by one year did not rise to the level of plain error.

XII.

Land also argues that the prosecutor introduced, and that the trial court improperly admitted, evidence of a prior burglary at Ms. Brown home a few days before she was killed. Land argues that the admission of this evidence violated his rights guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and rights guaranteed by Alabama law. Land says that before his trial a local newspaper reported that Ms. Brown's home had been burglarized, and the phone line cut, a few days before her murder. Land says that the trial court granted his motion in limine to preclude the State from referring to this previous burglary, yet allowed the prosecutor to introduce facts about the burglary through the testimony of Ms. Brown's former landlord. Although Land's argument is not clearly articulated, he contends that it was reversible error for the trial court to overrule his objections and let the jury be told of a prior bad act that he says they would assume he committed.

In response, the State contends that here is no indication in the record that the prosecutor, or any witness called by the State, mentioned Land's involvement in a prior burglary, or mentioned even that a burglary had occurred. The State argues that the prosecutor merely described the sequence of events surrounding the murder, i.e., the res gestae.

As a general rule, when a person is being tried for the alleged commission of one crime, evidence that he or she committed another illegal act that is not now charged is generally inadmissible. McLemore v. State, 562 So.2d 639 (Ala.Cr.App.1989); Gainer v. State, 553 So.2d 673 (Ala.Cr.App.1989); C. Gamble, McElroy's Alabama Evidence § 69.01(1) (4th ed. 1991). An exception to this rule is that that evidence of the other crime is admissible if the other crime is part of the res gestae, or the transactions inseparable from the crime charged. Gainer; McElroy's, § 69.01(3).

Our review of the trial record indicates that there were no comments by the prosecution, and no testimony by a witness, informing the jury that a burglary had occurred at Ms. Brown's home a few days before her murder. The prosecutor did comment in his opening statement that the phone line at the house had been previously cut and then repaired before the night of Ms. Brown's abduction, and Ms. Brown's landlord was allowed to offer testimony to the same fact. However, the statements regarding the phone line did not directly violate the trial judge's order granting Land's motion in limine and directing the State not to mention the earlier burglary. Nor would a reasonable juror naturally assume from such limited statements that a prior burglary had occurred and that Land had committed it. The fact that the phone line had previously been cut and then repaired, shortly before Ms. Brown's abduction and murder, was sufficiently related to the murder to be considered part of the res gestae. We conclude that there was no violation of the general exclusionary rule described above and that the trial court did not err in overruling Land's objections.

XIII.

Land argues that African-Americans were systematically underrepresented in the pool from which his jury was picked and that the systematic underrepresentation prevented his having a jury selected from a fair cross-section of the community and violated his rights guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and rights guaranteed by Alabama law. Land says that in the Birmingham Division of Jefferson County, where his trial was held, African-Americans constitute 42.92% of the total population. He says that only 9 persons on the 56-member jury venire (or 16.07%) were African-Americans. Land argues that this 26.85% underrepresentation of African-Americans on his jury venire requires the reversal of his conviction and death sentence. Citing J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), Land notes that although he is white, he may raise an equal protection issue relating to exclusion of African-Americans from his jury because, he says, the general rule is that a defendant claiming an equal protection violation resulting from the exclusion of a class of persons from a jury need not belong to the class of persons alleged to have been illegally excluded.

Although the State concedes that African-Americans constitute a distinctive group for equal protection purposes, it argues that, even assuming Land's census calculations are correct, he failed to establish that there had been a systematic exclusion of African-Americans from the venire. Citing Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the State argues that Land has failed to establish all the elements needed to prove a violation of the constitutional requirement that a jury be taken from a fair cross-section of the community.

In Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), the United States Supreme Court held that the systematic exclusion of women from the jury selection process deprived the defendant of his rights guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution to have his jury selected from a fair cross-section of the community. Then in Duren, supra, the Court stated: “In order to establish a prima facie violation of the fair cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process.” Duren v. Missouri, 439 U.S. at 364, 99 S.Ct. at 668-69. See Ex parte Dobyne, 672 So.2d 1354 (Ala.1995). In Duren, the Supreme Court held that the defendant had met the third prong of the test, the most difficult one: “His undisputed demonstration that a large discrepancy occurred not just occasionally but in every weekly venire for a period of a year manifestly indicates that the cause of the underrepresentation was systematic-that is, inherent in the particular jury selection process utilized.” Duren v. Missouri, 439 U.S. at 366, 99 S.Ct. at 669. Land, however, has offered no evidence toward meeting the third prong of the test established in Duren. Thus, we conclude that Land's argument on this issue is without merit.

XIV.

Finally, Land argues that the trial court's failure to transcribe certain portions of the trial proceedings requires a reversal of his conviction and sentence because, he says, it prevented him from obtaining a full review of critical portions of his trial. Land says that the trial record reveals over 20 instances in which no transcription was made during what he says were important portions of his trial. According to Land, these portions of the trial include selection of the jury venire; striking the jury; conferences regarding the admissibility of testimony or exhibits offered by the State; a conference that occurred just before Land waived his right to testify; a conference on jury instructions; and the polling of the jury at both phases of the trial.

Land contends he was prejudiced by the lack of a complete transcription. He first argues that it prevented him from challenging the trial court's methods used for selecting a venire and for striking the jury. Land contends that numerous objections he made to the admission of prosecution testimony or exhibits were not preserved. Finally, he argues that the failure to transcribe a conference that occurred just before he waived his right to testify prevented him from challenging that waiver as involuntary or unknowing.

In response, the State argues that there are only two ways Land could show that he was legally entitled to have transcriptions made of the portions of the trial that were not transcribed: (1) by showing that he filed, and that the court granted, a pretrial motion for a transcription of the entire proceedings, or (2) by showing that those portions of the trial not transcribed came within the requirements of Rule 19.4(a), Ala.R.Crim.P.. The State says that Land did not move to have all portions of the proceedings transcribed, and it argues that none of the portions not transcribed falls within the requirements of Rule 19.4(a). The State further argues that Land's claim of prejudice is unpersuasive because, it says, he has failed to show any untranscribed trial incident as to which he could prove reversible error if he had a transcription of the incident.

We conclude that there is no merit to Land's claim of reversible error based on the lack of a complete transcript of his entire trial proceedings. In Hammond v. State, 665 So.2d 970, 972 (Ala.Crim.App.1995), the Court of Criminal Appeals stated that with regard to such a claim as Land now makes, the reviewing court “must determine whether a substantial right of the appellant has been adversely affected by [the] omission from the transcript.” Further, this Court has ruled that even where a transcript was lacking for a portion of the trial that should have been transcribed and the defendant's appellate counsel had not been the defendant's trial counsel, the appellate court had to examine the existing record of the trial in order to determine whether the failure to transcribe that portion of the trial was only harmless error rather than reversible error. Ex parte Harris, 632 So.2d 543 (Ala.1993) (holding that although the failure to transcribe the voir dire examination of the jury was error, it was only harmless error, even when the trial court had granted the defendant's motion to have all proceedings in all phases of the trial transcribed), affirmed, 513 U.S. 504, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995).

The portions of the trial that Land says were not transcribed involve selection of the jury venire and striking the jury; bench conferences among the trial judge, the prosecution, and defense counsel; or the polling of the jury. Regarding transcription of a capital murder trial, such as Land's, Rule 19.4(a), Ala.R.Crim.P.,FN4 states: FN4. This rule creates duties for the court reporter in addition to those established by Ala.Code 1975, § 12-17-275. “In all capital cases (criminal trials in which the defendant is charged with a death penalty offense), the court reporter shall take full stenographic notes of voir dire of the jury and of the arguments of counsel, whether or not such is ordered by the judge or requested by the prosecution or defense. This duty may not be abrogated by the judge or waived by the defendant.” (Emphasis added.)

In Ex parte Harris, this Court noted that the phrase “arguments of counsel,” as it is used in Rule 19.4(a), does not refer to “every incidental discussion between counsel and the trial judge that occurs at the bench,” but, rather, refers only to counsel's opening and closing arguments. 632 So.2d at 545. Thus, it is clear that Rule 19.4(a) did not require the court reporter to transcribe the various bench conferences now placed in issue by Land. Although Land claims error in the lack of a transcript of the court's selection of the venire and of the actual striking of the jury, Rule 19.4(a) requires only transcription of the “voir dire of the venire,” which was transcribed in full and which is part of the record in this case. Nor does Rule 19.4(a) require transcription of the polling of the jury. The transcript shows that both following the jury foreman's pronouncement of the jury's finding as to guilt and then later following the foreman's pronouncement of the jury's recommended sentence, the court reporter made a contemporaneous notation indicating that the judge polled the jury.

It is important to note that Land did not request that all proceedings of the trial be transcribed and, as explained above, Rule 19.4(a) did not require that they all be transcribed. Thus, Land cannot argue that the trial court breached a legal duty with regard to the transcription of his trial. Moreover, Land is raising this issue for the first time on appeal, and our review is subject to the plain error standard. After reviewing the record at the point of each transcript omission referenced by Land, we conclude that the lack of a complete transcription has not adversely affected his substantial rights. Thus, we find no plain error.

XV.

As noted above, we have reviewed the record and the briefs, we have considered the arguments made before us on oral argument, and we have examined the opinion of the Court of Criminal Appeals in relation to the issues raised before that court. We have also thoroughly reviewed the record for plain error, but have found none. We conclude that the Court of Criminal Appeals did not err in affirming Land's conviction and sentence. Moreover, we find that the record contains overwhelming evidence indicating Land's guilt. The judgment of the Court of Criminal Appeals affirming Land's conviction and death sentence is affirmed.

AFFIRMED. HOOPER, C.J., and MADDOX, HOUSTON, KENNEDY,FN* INGRAM, and COOK, JJ., concur.

On Application For Rehearing

BUTTS, Justice.

Land has raised a new argument on application for rehearing. Land, a white male, argues that the State used its peremptory challenges to strike white veniremembers, and particularly white men, in a racially discriminatory and gender-discriminatory manner, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). Land did not raise this argument in the trial court, before the Court of Criminal Appeals, or before this Court on its original review. Further, we did not find such a violation on our review of the record for plain error.

As noted previously, Land has also argued that he should receive a new trial because, he says, African-Americans were systematically underrepresented in the venire and, thus, his jury was not chosen from a fair cross-section of the community. The jury pool for Land's trial was composed of 9 African-Americans and 47 white persons. However, we held that Land did not meet the test set out in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), for proving such a Constitutional violation (see part XIII of the March 1, 1996, opinion). Now, in what he has said was a jury pool that overrepresented the white population, Land argues that he was prejudiced by the State's using its peremptory challenges to strike white persons from the venire. Specifically, Land argues discrimination by the State's using 11 of its 14 peremptory challenges against white members of the venire, and 7 of the 14 against white men. However, we also note that the record reveals that Land himself used all 14 of his peremptory challenges to strike white persons, and used 7 of the 14 against white men.

The record shows that Land did not object to the State's use of its peremptory strikes. Accordingly, no hearing was held in the trial court pursuant to the procedure set out in Ex parte Branch, 526 So.2d 609 (Ala.1987). Land now argues that he has made out a prima facie case of intentional racial and gender discrimination, and that his case must be remanded to the trial court for an evidentiary hearing to allow the State to present race-neutral and gender-neutral reasons for its strikes. We conclude, however, on review of the record, that Land has not made a prima facie showing that the State used its peremptory strikes in violation of Batson or J.E.B. Accordingly, we find no error in the State's use of its peremptory challenges.

APPLICATION OVERRULED.

Land v. Allen, 573 F.3d 1211 (11th Cir. 2009). (Habeas)

Background: Following affirmance of his capital murder conviction and death sentence, 678 So.2d 224, petitioner sought federal habeas relief. The United States District Court for the Northern District of Alabama, No. 04-02866-CV-KOB-PWG, Karon O. Bowdre, J., denied petition, and petitioner appealed.

Holdings: The Court of Appeals held that: (1) claims of erroneous jury instruction and prosecutorial misconduct were subject to deferential standard of review; (2) petitioner's incriminating statement to police was obtained voluntarily; (3) trial court's voluntariness instruction did not violate due process; (4) prosecutor's improper closing statements did not render trial fundamentally unfair; and (5) trial counsel was not ineffective in failing to present mitigation evidence. Affirmed.

PER CURIAM:

Michael Jeffrey Land appeals the district court's denial of his 28 U.S.C. § 2254 habeas petition in which he sought to overturn his conviction and death sentence for the murder of Candace Brown.

Regarding the conviction, he argues that his habeas petition should be granted because: (1) an incriminating statement, allegedly made as a result of police coercion, was admitted at trial in violation of the Fifth and Fourteenth Amendments; (2) the trial court violated Land's due process rights when it instructed the jury that the incriminating statement was made voluntarily, thereby tainting the jury's ability to fulfill its duty of reaching a credibility determination regarding that statement; (3) the prosecutor violated Land's right to a fair trial by arguing facts unsubstantiated by the record; and (4) his Sixth Amendment right to effective assistance of counsel was violated when his defense attorneys failed to object to the prosecutor's factually unsubstantiated arguments.

With reference to his death sentence, Land claims that his counsel were constitutionally ineffective during sentencing for failing to reasonably investigate and present mitigation evidence.

The district court considered these arguments and found no merit. After careful consideration of the parties' briefs and oral argument, we affirm.

BACKGROUND

The police were called to Brown's house after her landlord found that a window had been broken and the telephone wires had been cut. Upon entering the house, the police had discovered Brown's unharmed two-year-old child, a note on a bulletin board with Land's name and phone number, and a shoe print with distinctive tread (spelling out “USA”) on one of the broken windowpanes. They then located Land, who agreed to accompany them to the police station for questioning. He was given his Miranda rights, signed a waiver-of-rights form and agreed to have his statement tape recorded.

Land initially claimed not to have seen Brown for a week and provided an alibi to account for the time relevant to Brown's disappearance. During the course of the interview, one detective noticed what appeared to be bloodstains on Land's shoes and asked to inspect them. The detective saw that the tread on his shoes seemed to match the “USA” print on the windowpane at Brown's house and took them for further analysis. Land also complied with a request to change into a jail jumpsuit so his clothes could be inspected for bloodstains. During this period, the police contacted Land's alibi witness, who did not substantiate his story.

The police then confronted Land about the evidence, his inconsistencies, and the lack of corroboration from his alibi witness, telling him he needed to be truthful. He was again informed of, and waived, his Miranda rights. He proceeded to give another statement to the police which was not recorded (hereafter his “second statement”).FN1 This time he said he met two men at a service station who asked him if he knew an “easy mark” for a burglary. He suggested Brown's home and the men paid him $20 to cut the window glass of her residence, after which they all entered the kitchen. During the burglary, Brown woke up from the commotion and appeared in the kitchen, where one of the two men knocked her to the floor. Land claimed he became frightened at this point and left. He also admitted in this second statement that he had lied previously about where his car was and informed the detectives it could be found at the mall where he worked. The detectives then formally arrested Land.

FN1. At the suppression hearing and at trial, the detectives testified that Land initially made this statement to one detective, who did not record it. The detective then asked if they could record the statement but Land refused, citing his concern that he was admitting to burglary. Land did not refute this testimony.

The next day Brown's body was discovered near her residence. She had been shot in the back of her head by a .45 caliber automatic handgun. A search of Land's car turned up a .45 handgun, and the bullet from her head matched a bullet test-fired from that gun. They also found wire-cutters and a pair of gloves that had imbedded glass fragments consistent with the glass of the broken window in Brown's house. A DNA profile made from a semen stain, which was found on Brown's blouse, matched Land's blood sample with a degree of certainty of roughly one in 20 million.

Land was convicted and sentenced to death in Alabama state court for two counts of capital murder-murder during burglary and murder during kidnapping. His conviction and sentence were affirmed by the Alabama Court of Criminal Appeals, Land v. State, 678 So.2d 201 (Ala.Crim.App.1995), and the Alabama Supreme Court, Ex parte Land, 678 So.2d 224 (Ala.1996). The U.S. Supreme Court denied Land's petition for writ of certiorari. Land v. Alabama, 519 U.S. 933, 117 S.Ct. 308, 136 L.Ed.2d 224 (1996). Land then filed a post-conviction petition in state court pursuant to Alabama Rule of Criminal Procedure 32. After conducting an evidentiary hearing, the trial court denied Land's Rule 32 petition and the Alabama Court of Criminal Appeals affirmed. The Alabama Supreme Court then denied his petition for writ of certiorari. Having lost on all his state court appeals, Land filed a writ of habeas corpus in federal district court, which was also denied. He was then granted a certificate of appealability on five issues, and we now review the district court's denial of his federal petition based on those claims.

STANDARD OF REVIEW

Our review of Land's habeas petition, which was filed after April 24, 1996, is limited by the terms of 28 U.S.C. § 2254 as amended by the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). See Williams v. Taylor, 529 U.S. 362, 402-03, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). In this case, the state court adjudicated on the merits all of the issues Land presents so we must apply AEDPA's deferential standard of review.FN2 That is, we may grant habeas only in those cases where the state court's decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” § 2254(d)(2), or “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” § 2254(d)(1). The Supreme Court has further clarified this latter requirement as follows:

FN2. Land argues that the district court should not have applied § 2254(d)'s deferential standard of review on two of his claims-the erroneous jury instruction and the prosecutorial misconduct-because it incorrectly found that the state court had adjudicated them on the merits. Land asserts it should have instead applied de novo review to these claims as the Alabama Supreme Court did not explicitly rule on them despite his raising the issues. We disagree. The Alabama Supreme Court stated in its opinion that Land has raised for this Court's review 23 issues, some of which were also raised before the Court of Criminal Appeals and discussed in that court's lengthy opinion. We have thoroughly reviewed the issues raised before the Court of Criminal Appeals, and we find no error in the opinion of that court. We have also thoroughly reviewed the additional issues Land has raised for the first time before this Court and have found no reversible error. Ex parte Land, 678 So.2d at 230. While not explicitly addressing the claims, the Alabama Supreme Court's statement is sufficient to qualify as having adjudicated them on the merits. We have previously held that “[t]he statutory language [of § 2254] focuses on the result, not on the reasoning that led to the result.... [A]ll that is required is a rejection of the claim on the merits, not an explanation.” Wright v. Sec'y for Dept. of Corrections, 278 F.3d 1245, 1255 (11th Cir.2002) (finding the summary state appellate court order in Wright v. State, 536 So.2d 1072 (Fla. 4th DCA 1988),-“[w]e affirm the convictions and life sentences imposed thereon for count I and count II”-was sufficient to receive § 2254(d) deference). Thus, the district court was correct in finding that the state court had adjudicated each claim on the merits. Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 412-13, 120 S.Ct. 1495. We now turn to Land's arguments applying this standard of review.

DISCUSSION

1. The Admission of Land's Second Statement Did Not Violate the Fifth and Fourteenth Amendments

Land claims that his incriminating second statement was made involuntarily because it was coerced by the police officers, who created a threatening atmosphere in the interrogation room.FN3 Under Federal law, a confession is deemed involuntary if the “[speaker's] will was overborne in such a way to render his confession the product of coercion.” Arizona v. Fulminante, 499 U.S. 279, 288, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). In making this determination, a court must consider the totality of the surrounding circumstances and ensure that the State has met its burden of demonstrating by a preponderance of the evidence that the confession was a result of voluntary choice. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). FN3. Land does not contest that he waived his Miranda warnings again before the second statement.

The district court, applying AEDPA deference, found that the state court's conclusion that Land's confession was voluntary was not an unreasonable determination of the facts in light of the testimony presented at the suppression hearing and at trial, nor was it contrary to, or an unreasonable application of, clearly established Federal law.

As an initial matter, Land argues that AEDPA deference is inappropriate with regard to the state court's legal conclusion that the statement was voluntary, citing Miller v. Fenton, in which the Supreme Court held that “the ultimate question whether, under the totality of the circumstances, the challenged confession was obtained in a manner compatible with the requirements of the Constitution is a matter for independent federal determination.” 474 U.S. 104, 112, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). Recognizing that Miller predated the recent AEDPA provisions, Land claims that AEDPA did not alter the standard of review that Miller established, relying on a post-AEDPA Fifth Circuit case. See ShisInday v. Quarterman, 511 F.3d 514, 522 (5th Cir.2007) (noting that the defendant “is correct that the voluntariness of a confession is a matter for independent federal determination” but that “subsidiary factual questions ... are entitled to the § 2254(d) presumption”) (quotation and citation omitted).

We agree that we must independently ascertain and apply Federal law to determine whether the challenged statement was obtained in accordance with the Constitution. However, we do so as a first step in order to ultimately determine whether the state court's finding that Land's statement was voluntary was contrary to, or an unreasonable application of, that law. See, e.g., Lam v. Kelchner, 304 F.3d 256, 264 (3d Cir.2002) (“The ultimate issue of voluntariness is a legal question requiring an independent federal determination. Thus, under the AEDPA habeas standard, we are required to determine whether the state court's legal determination of voluntariness was contrary to or an unreasonable application of Supreme Court precedent.”) (internal citation omitted).

Turning to the substance of Land's coercion claim, we first note that he did not testify in state court in connection with the motion to suppress, therefore the testimony of the three officers regarding the circumstances of the second statement is unrefuted. Nonetheless, Land argues that the police testimony itself supports a conclusion that his statement was coerced, pointing to the following facts elicited at trial: When Land commenced his second statement, the police had taken his shoes and clothes, and he was in an orange jumpsuit and barefoot. He changed positions often during the interview, at certain points curling himself up into “a semi-fetal position” with his feet pulled up onto the chair and his hands covering his face. At one point, one officer took Land's wrist and moved his hand away from his head, saying something to the effect of “Boy, look up at me when I talk to you.” This officer also acknowledged that “Mr. Land was probably frightened of [him].” Finally, Land argues that the simple fact that the statement was unrecorded suggests that it was the police who chose not to record it in order to avoid having an objective account of the events.

The officers, however, all provided direct testimony describing the circumstances surrounding Land's statement. They each testified that Land was not threatened in any way. One officer said he perceived Land's behavior as simply trying to avoid the questions and that Land's changes in position were not the result of any touching or any other conduct by the officers. Furthermore, nothing in the record suggests that the change of clothes and the confiscation of his shoes were attempts to humiliate Land; on the contrary, it appears unrefuted that this was done solely so that further forensic analysis could be undertaken. And, finally, there is nothing in the record to refute the detectives' testimony that it was Land who requested that the statement not be taped.

Taking into account the totality of the circumstances, the trial court found that Land's body language indicated an aversion to the questions rather than a fear of the questioner and that his will was not “overborne.” Land attempts to rebut the trial court's finding through inference and implication, relying primarily on the theory that the body language that the police described simply could not be consistent with a voluntary statement. These ex post explanations of his own behavior in the interrogation room, standing alone, are not enough to counteract the weight of the officers' unrefuted testimony and we cannot say that the state court erred in crediting their testimony.

We find that the conclusion that Land's statement was voluntary is not an unreasonable determination of the facts in light of the evidence presented, nor is it contrary to, or an unreasonable application of, clearly established Federal law.

2. The Trial Court Did Not Violate Land's Due Process Rights When it Instructed the Jury That His Incriminating Statement Was Voluntary

Land next asserts that even if the state trial court did not err in finding his second statement voluntarily given for purposes of admitting the statement into evidence, the court nonetheless violated his due process rights by instructing the jury that the second statement was made voluntarily, because the instruction tainted the jury's analysis of the credibility of that statement. The trial judge gave the following instruction:

With regard to the alleged statements made by the defendant to the officers, whether we are talking about the recorded statement or the alleged unrecorded statement, you should know that you may consider all of the facts and circumstances surrounding the taking of the statement in determining the weight or credibility that you give to the statement.

In exercising your exclusive prerogative of determining the credibility of the evidence or the weight to which the evidence is properly entitled, you people may consider the circumstances under which the statement or statements were obtained, including the situation and the mutual relation to the parties. I determine the voluntariness of the statement, you people determine the weight and credibility of one's statement and may disregard a defendant's statement which is unworthy of belief or in which you entertain a reasonable doubt as to its truth. (emphasis added). Land argues that this instruction placed him at a severe disadvantage because the defense's theory of the case rested on showing that the statement was a result of police coercion and therefore untruthful, unreliable and not credible. Specifically, he suggests that these instructions were contradictory, conveying that the issue of voluntariness had been resolved and was outside the jury's purview but that, at the same time, the jury still had the right to reject the statement as not credible due to a finding of coercion.

The Supreme Court has made clear that it is the province or capacity of juries to assess the truthfulness of confessions ... [and] any evidence relating to the accuracy or weight of confessions admitted into evidence. A defendant ... [is free] to familiarize a jury with circumstances that attend the taking of his confession, including facts bearing upon its weight and voluntariness. In like measure, of course, juries [are] at liberty to disregard confessions that are insufficiently corroborated or otherwise deemed unworthy of belief. Lego, 404 U.S. at 485-86, 92 S.Ct. 619 (emphasis added);FN4 see also United States v. Harper, 432 F.2d 100, 102 (5th Cir.1970) FN5 (noting that “ the fairest method for determining the voluntariness of a confession” is for the judge to “permit[ ] the confession and the question of voluntariness to go to the jury, after having made his own preliminary determination that there was no taint of compulsion but without indicating his evaluation to the jury”) (emphasis added).

FN4. Although 18 U.S.C. § 3501(a) is inapplicable to this case, it helps to illuminate the scope of the voluntariness instruction vis-a-vis Federal law: (a) In any criminal prosecution brought by the United States or by the District of Columbia, a confession, as defined in subsection (e) hereof, shall be admissible in evidence if it is voluntarily given.... If the trial judge determines that the confession was voluntarily made it shall be admitted in evidence and the trial judge shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances. (emphasis added).

FN5. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close of business on September 30, 1981.

The heart of the matter, then, is whether one can truly “familiarize a jury with ... facts bearing upon ... voluntariness,” Lego, 404 U.S. at 486, 92 S.Ct. 619, if the trial court explicitly tells the jury it has already found the statement to be voluntary without further explication of this concept. Given that the trial court had stated it found the statement was made voluntarily and that a credibility determination would be based on the same coercion evidence, the jurors may have been under the belief that they were de facto compelled to find the statement credible. “The proper standard for reviewing such claims [of constitutionally defective jury instructions] is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution.” Jones v. United States, 527 U.S. 373, 390, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999) (quotations omitted). Here, we believe that there is a reasonable likelihood that the jury would apply the given instruction in such a way that it would not feel like it could make an independent determination of the credibility of the statement, in violation of the Supreme Court's dictates in Lego. As such, we find that a decision upholding this instruction, as given, is contrary to, or an unreasonable application of, clearly established Federal law.

However, only if “the ailing [jury] instruction by itself so infected the entire trial [will] the resulting conviction violate[ ] due process.” Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (emphasis added) (quotations omitted). While it is quite possible the instruction was confusing, we do not think it so infected the entire trial as to warrant habeas relief. See, e.g., United States v. Bear Killer, 534 F.2d 1253, 1259 (finding that while the judge erred in instructing the jury the statement was voluntary, “the erroneous instruction was harmless and did not have a substantial influence on the jury's verdict of guilty in this cause”). Viewing the set of jury instructions in its entirety, of which the voluntariness portion was but a small part, and given all the available evidence and arguments presented to the jury, we cannot say that the addition of the offending clause had a “substantial influence on the jury's verdict of guilty.” Id.

3. The Prosecutor Arguing Facts Outside the Record Did Not Result in a Violation of Due Process

Land next asserts that the prosecutor unconstitutionally argued facts that were not supported by the evidence in the record. Prosecutorial misconduct can be a basis for relief if it “so infected 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, 91 L.Ed.2d 144 (1986) (quotations omitted). In determining whether arguments are sufficiently egregious to result in the denial of due process, we have considered the statements in the context of the entire proceeding, including factors such as: (1) whether the remarks were isolated, ambiguous, or unintentional; (2) whether there was a contemporaneous objection by defense counsel; (3) the trial court's instructions; and (4) the weight of aggravating and mitigating factors. Romine v. Head, 253 F.3d 1349, 1369-70 (11th Cir.2001).

No direct evidence was presented describing the events that took place in Candace Brown's home. Nonetheless, the prosecutor made the following statements at closing: [Mr. Land] goes in and at some point Candy Brown wakes up and he says you're going with me. She said I'm not going anywhere. Maybe she ran towards the front door, maybe she was trying to get out. But at one point Michael Jeffrey Land fires the gun and said the next one's for your kid. I submit to you that at the point Candy Brown pulled her pants on and puts some shoes on and walks out of the house and on the way out Candy Brown did one last desperate attempt to protect her child, she locked the door. .... [Jeff Land] didn't think nobody was going to find her. But Candy Brown knew, Candy Brown knew somebody would find Michael, the little boy. [T]here is a phrase in [the Bible], no greater love have one man than to lay down his life for his friend. And that ladies and gentlemen, is what Candy Brown did for her little boy, she gave up everything that she had, not knowing if it would work. And she gave up everything in the world to save that little boy. That's exactly what happened. (emphasis added). Land argues that these statements were unsubstantiated by any testimony and erroneously made to inflame the passions of the jurors. The district court below found that they were reasonably inferred from the evidence at trial.

We agree with Land that the statements were improper. This reenactment was not comprised of reasonable inferences from the evidence but rather pure speculation. No witnesses recounted what was said and we have no way of knowing whether Land threatened the child. The prosecutor exceeded the bounds of appropriate conduct by claiming to describe exactly what happened, and particularly what was said, with such specificity. Given the context and the evidence on the record, we do not agree with the district court that such evidence could provide a legitimate basis for the prosecutor to assert either what was said or done in the interaction between Land and Brown.

However, the bar for granting habeas based on prosecutorial misconduct is a high one. While we by no means condone the prosecutor's behavior, we are hard-pressed to reach the conclusion that these statements rendered the trial “fundamentally unfair.” See Brooks v. Francis, 716 F.2d 780, 788 (11th Cir.1983) (“[P]rosecutorial misconduct, though outside the bounds of propriety, is not reversible error where it does not render the trial fundamentally unfair.”) (citation omitted). As noted earlier, the evidence of guilt was overwhelming, and thus any error was harmless. Therefore, we agree with the district court opinion that it is not contrary to, or an unreasonable application of, Federal law to reach the conclusion that Land's statements did not “so infect[ ] the trial with unfairness as to make the resulting conviction a denial of due process.” (quoting Darden, 477 U.S. at 181, 106 S.Ct. 2464).

Furthermore, because we ultimately find that Land is not entitled to relief based on prosecutorial misconduct, we likewise find that he is not entitled to relief on his claim that defense counsel's failure to object to the prosecutor's statements amounted to constitutionally ineffective assistance of counsel. “An ineffective assistance claim has two components: A petitioner must show that counsel's performance was deficient, and that the deficiency prejudiced the defense.” Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Land, however, cannot show prejudice in his defense counsel's failure to object to prosecutorial misconduct that, itself, does not warrant reversal.

4. Defense Counsel's Failure to Present Mitigation Evidence at the Penalty Phase of the Trial Did Not Amount to Ineffective Assistance of Counsel

Lastly, Land argues that his defense counsel were constitutionally deficient during sentencing because they failed to investigate and present mitigating evidence regarding Land's abusive childhood and his mental illness. FN6 The mitigation evidence actually presented involved the testimony of two witnesses-his mother and grandfather-who, Land now asserts, “simply made naked pleas to the jury that they spare Mr. Land from the death penalty.” Land claims that had his attorneys presented all the available mitigating evidence, the jury would not have imposed a death sentence and therefore he was prejudiced.

FN6. Land also challenges his attorneys' failure to retain and present a mitigation specialist. The State argues that this claim is procedurally defaulted because Land failed to raise it during his state post-conviction proceedings. However, as discussed below, Land did present the testimony of psychologist Dr. Katherine Boyer at his Rule 32 hearing. Therefore, we will address this argument to the extent Land is arguing that his attorneys were ineffective for failing to present experts such as Dr. Boyer, whose testimony regarding Land's abusive childhood and mental illness was similar to that which would have been presented by a mitigation expert.

To establish deficiency, a defendant must show that “counsel's representation fell below an objective standard of reasonableness ... under prevailing professional norms.” Wiggins, 539 U.S. at 521, 123 S.Ct. 2527 (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052) (quotations omitted). As to the penalty phase of the trial, “we consider whether counsel reasonably investigated possible mitigating factors and made a reasonable effort to present mitigating evidence to the sentencing court.” Henyard v. McDonough, 459 F.3d 1217, 1242 (11th Cir.2006).

To establish prejudice, a defendant must prove “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. In determining whether a defendant has established prejudice at sentencing, the reviewing court must evaluate “the totality of the available mitigation evidence-both that adduced at trial, and the evidence adduced in the habeas proceeding-in reweighing it against the evidence in aggravation.” Bottoson v. Moore, 234 F.3d 526, 534 (11th Cir.2000) (quoting Williams, 529 U.S. at 397-98, 120 S.Ct. 1495).

The bulk of the mitigating evidence presented at the Rule 32 hearing, which Land argues should have been presented at trial, addressed two issues-his childhood upbringing and his mental state. The essence of the testimony by his mother was that her first husband, Land's biological father, ignored him and was abusive towards her. This abuse, which sometimes had occurred in Land's presence, led to their divorce when Land was just over one year old. Her subsequent remarriage a few years later did not provide a loving father figure, as Land's stepfather did not treat him kindly. For example, at times his stepfather would take pictures of Land crying and then show them to him, saying “this is what you look like-a cry baby,” and when Land's grandmother died, his stepfather told him he had fifteen minutes to cry in his room and then he had to “straighten up.” Testimony was also presented by Land's mother and a friend discussing Land's physical appearance during childhood. This testimony included the fact that Land was born with a club foot, had eyes that were wide apart, and was bullied extensively as an adolescent because he was shorter than his classmates (Land is 5'2” tall as an adult).

The evidence regarding Land's mental state was presented by Dr. Katherine Boyer, who testified that Land met the criteria for an antisocial personality disorder. Dr. Boyer explained that as a young child, Land lived in a “climate of fear” due to his father's domineering personality and that his father had “disrupted Mr. Land's ability to connect with other people, emotionally.” Consequently, she said that Land had developed into an emotionally unstable person. On cross-examination, Land's trial counsel testified that he was sure he had considered introducing evidence regarding Land's broken home but concluded that such evidence was unremarkable because the degree of difficulty in Land's childhood was the same as that suffered by many.FN7

FN7. As to the mitigating evidence actually presented at sentencing, defense counsel testified that he chose to put Land's mother on the stand at sentencing because she “made a very good impression” and Land's grandfather because he was “a very, very stately gentleman” who made a “compelling figure.” Together, he explained, the two witnesses made an emotional appeal to the jury that caused some of the jurors' eyes to tear up. Although the emotional appeal was ultimately insufficient to avoid Land's death sentence, it was not unreasonable for the state court to conclude, under Strickland, that Land's counsel had made a reasonable tactical decision and was not ineffective in doing so.

Dr. Boyer also testified on cross-examination that Land's “failure to conform to social norms with respect to lawful behavior” as well as his “deceitfulness, use of aliases or conning others for personal profit or pleasure, [and] impulsivity” were among the characteristics she used to reach her diagnosis. Land's trial counsel further testified that keeping from the jury Land's criminal history, to which Dr. Boyer referred, (which they did successfully), formed an important part of the trial strategy. Thus, not presenting any of the mitigation evidence developed at the Rule 32 hearing appears consistent with trial counsel's defense strategy and would not qualify as objectively unreasonable.

Regardless, however, it is clear that Land cannot meet the prejudice prong. As the state post-conviction court pointed out, many of the facts adduced at the Rule 32 proceeding-for example, having divorced parents, being picked on at school, and losing a grandmother-were unremarkable because they “are things most people have to deal with while growing up.” As to Land's mental state, we believe Land's history of deception and criminality, which would almost certainly have been revealed to the jury because they were an integral part of Dr. Boyer's diagnosis, substantially undercuts any potential benefit her mitigation testimony might have had. We cannot say that the state court's determination that Land was not prejudiced by his counsel's sentencing strategy was an unreasonable application of clearly established Federal law.

Having considered each of Land's claims, we find no support for a reversal of the district court's denial of habeas relief. AFFIRMED.