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Floyd v. State

Alabama Court of Criminal Appeals

July 7, 2017

Cedric Jerome Floyd
v.
State of Alabama

         Appeal from Escambia Circuit Court (CC-11-247)

          KELLUM, Judge.

         Cedric Jerome Floyd was convicted of murder made capital because it was committed during the course of a burglary. See § 13A-5-40(a)(4), Ala. Code 1975. The jury unanimously found beyond a reasonable doubt the existence of four aggravating circumstances -- that the murder was committed during the course of a burglary, see § 13A-5-49(4), Ala. Code 1975; that the murder was committed while Floyd was under a sentence of imprisonment, see § 13A-5-49(1), Ala. Code 1975; that the murder was committed after Floyd had previously been convicted of a felony involving the use or threat of violence, see § 13A-5-49(2), Ala. Code 1975; and that the murder was especially heinous, atrocious, or cruel when compared to other capital offenses, see § 13A-5-49(8), Ala. Code 1975. By a vote of 11-1, the jury recommended that Floyd be sentenced to death for his capital-murder conviction. The trial court followed the jury's recommendation and sentenced Floyd to death.[1]

         Facts

         The evidence adduced during the guilt phase of the trial indicated the following. In the early morning hours of January 2, 2011, Tina Jones, a single mother of four, was shot and killed in her home in Atmore. Floyd and Jones had dated for approximately two years before the murder. The State presented evidence indicating that the relationship had been tumultuous and that there had been altercations between Floyd and Jones during their relationship. Jones ended the relationship in November 2010, approximately two months before she was killed, and began dating another man.

         On December 31, 2010, Jones and her three youngest children[2] spent the night at Jones's aunt's house because, according to Lakeshia Finley, Jones's cousin, Jones was afraid of Floyd. Jones's uncle, James Jones ("James") and his girlfriend, Sarah Marshall ("Sarah"), who were living with Jones at the time, were alone at Jones's house that night, or thought they were. James testified that when he woke on January 1, 2011, he found Floyd sitting in the living room smoking a cigarette. James said that he did not know how Floyd had gotten into the house. James telephoned Jones and told her that Floyd was in the house. He and Sarah then left; Floyd was still in the house when James and Sarah left.

         After learning that Floyd had been in her house, Jones, accompanied by her father, Curtis Jones, and Finley, went to the Atmore Police Department to report the incident. Floyd also went to the police department. Jones informed Officer John Stallworth that Floyd had broken into her house and had stolen her cellular telephone. Officer Stallworth explained to Jones that she could file a complaint for burglary and theft, but Jones declined, telling Officer Stallworth that she wanted a restraining order against Floyd but that she did not want Floyd arrested. Officer Stallworth explained to Jones that the police department did not issue restraining orders, and he explained the steps Jones could take to obtain a restraining order. At Jones's request, Officer Stallworth instructed Floyd not to return to Jones's residence and told Floyd that if he did so he would be arrested on sight. Floyd agreed not to return to Jones's residence.

         Throughout the day on January 1, 2011, Floyd sent numerous text messages to Jones's 18-year-old daughter, Ky'Toria Lawson, who lived with Jones. In many of the messages, Floyd threatened Jones and other members of her family. Floyd also told Ky'Toria that he had let the family dog out of the backyard fence and that it had been hit by a car. Some of Floyd's text messages were also sexual in nature. Ky'Toria told Jones about the text messages, and that afternoon she and Jones went to the police station to report the messages, where, once again, Jones spoke with Officer Stallworth. Jones told Officer Stallworth that she was afraid of Floyd because, when Floyd had previously been in jail, he had telephoned her and had told her that he had people watching her and reporting to him. Jones also told Officer Stallworth that her aunt had told her that Floyd had said that he was going to kill Jones and then kill himself. Neither Jones nor Ky'Toria filed a complaint against Floyd at that time. Ky'Toria testified that she did not file a complaint because she was scared that she would have to testify against Floyd and that Floyd would then "come after us." (R. 2518.) Officer Stallworth assured them that officers would drive by Jones's house throughout the night. Officer Stallworth instructed Jones to turn her porch light on that night and, if Floyd came to her house, to turn her porch light off to signal the officers driving by that Floyd was inside the house.

         Around 11:00 p.m. that night, Ky'Toria came home with her friend, Tramescka Peavy. Jones was asleep in her bedroom, and Ky'Toria and Peavy woke her up and spoke to her. Ky'Toria and Peavy then went to Ky'Toria's bedroom to watch a movie. Ky'Toria said that as soon as the movie started, she fell asleep. Peavy testified that she did not fall asleep but dozed off and on. At approximately 12:45 a.m., Ky'Toria awoke to a loud bang. Ky'Toria said that she jumped when she heard the noise and that Peavy grabbed her. At that point, Floyd entered Ky'Toria's bedroom and demanded her car keys. Ky'Toria testified that Floyd appeared to be in a hurry. Ky'Toria asked Floyd why he was there, at which point, Floyd grabbed Ky'Toria's cellular telephone and Peavy's cellular telephone, eyeglasses, and Army-issued dog tags, and fled. Peavy attempted to chase Floyd, but Ky'Toria stopped her. Peavy testified that Floyd dropped her eyeglasses and dog tags in the living room but that he kept both her and Ky'Toria's cellular telephones.

         At that point, Ky'Toria, whose bedroom was across the hall from James and Sarah's room, but on the other side of the house from Jones's bedroom, woke up James and Sarah. James and Sarah both testified that they were awakened that night by Ky'Toria screaming that Floyd was in the house. The three then went into the den and Ky'Toria telephoned emergency 911. Testimony indicated that the call was made at 12:46 a.m. At that point, Ky'Toria did not know that her mother had been killed, and she simply asked the 911 dispatcher to send police to the house because Floyd was there. James then looked for Jones and found her lying on the floor in a pool of blood in the hallway just outside her bedroom. Sarah then telephoned emergency 911 to request an ambulance.

         Police and paramedics arrived at the scene shortly after the emergency calls. Paramedics began working on Jones. Police cleared the house and later transported James, Sarah, Ky'Toria, and Peavy to the police station, where they gave statements to police about the events of that night. Diana Chavers, one of the medics who responded to the emergency call, testified that when she arrived she was informed by police that the victim had multiple gunshot wounds and was believed to be deceased. Chavers said that Jones was not breathing and did not have a pulse. However, when Chavers placed a cardiac monitor on Jones, there appeared to be some electrical activity in the heart. Chavers and her partner then attempted to resuscitate Jones. To clear Jones's airway for intubation, Chavers had to remove several teeth from Jones's throat; the teeth had been knocked out and had lodged in Jones's throat as a result of a gunshot to Jones's face. The resuscitation efforts were ultimately unsuccessful and Jones was transported to the hospital where she was pronounced dead on arrival.

         Dr. Eugene Hart, a forensic pathologist with the Alabama Department of Forensic Sciences who performed the autopsy on Jones, testified that the cause of Jones's death was multiple gunshot wounds. Specifically, Dr. Hart testified that Jones suffered three gunshot wounds -- one to the back of the head, one to the face, and one to the back. Dr. Hart characterized the gunshot wound to the back of the head as a "hard contact gunshot wound, " meaning that the gun was pressed firmly against Jones's head when it was fired. (R. 2921.) Dr. Hart said that the bullet traveled from back to front through Jones's brain, with a slightly downward trajectory. Dr. Hart testified that the gunshot wound to Jones's face was not a contact wound, but was fired from less than 12 inches away. The bullet, Dr. Hart said, went through the bridge of Jones's nose and down through the upper jaw, finally stopping in Jones's lower jaw. Dr. Hart removed both of those bullets and sent them for ballistics testing. As for the gunshot wound to the back, Dr. Hart testified that the bullet entered the upper left portion of Jones's back and exited through the left front of the chest. Dr. Hart characterized this wound as an "indeterminate range gunshot wound" based on the lack of soot and stippling around the wound. (R. 2936.) Dr. Hart said that the lack of soot or stippling may have been because Jones was clothed at the time the shot was fired or it may have been because the shot was fired from a distance; because he could not make that determination conclusively, he characterized the wound as being from an indeterminate range. Dr. Hart testified that the gunshot wounds to Jones's face and back were likely survivable, but that it was unlikely that Jones could have survived the gunshot wound to the back of her head. At the scene, police found that the window in Jones's bedroom had been broken from the outside and shards of glass were on the bedroom floor. One of those shards was stained with blood, and subsequent DNA testing revealed that the blood was Floyd's. On a dresser in Jones's bedroom, police found a .38 caliber revolver, which was later determined through ballistics testing to be the murder weapon. The revolver contained three spent shell casings, and hair was found on the end of the barrel. There was blood spatter on the carpet in Jones's bedroom and in the hallway where Jones was found, and a bullet fragment was found on the floor in the hallway. In the front yard, police found a bandana and a jacket, and Floyd later admitted that the jacket belonged to him; inside one of the pockets of the jacket was an unopened pack of Newport brand cigarettes. What appeared to be a "freshly smoked cigarette" was found on the deck just outside Jones's bedroom window; the cigarette was a Newport brand. (R. 2800.) Additional cigarette butts and beer cans were found near the backyard fence.

         Shortly after 1:00 a.m., approximately 30 minutes after Jones was fatally shot, Floyd telephoned emergency 911 using Jones's cellular telephone. Floyd told the dispatcher that he was the person the police were looking for and that he was in Freemanville, that he was unarmed, and that he wanted to turn himself in. Officers picked up Floyd in Freemanville and transported him to the Atmore Police Department, where Floyd gave two statements to police confessing to killing Jones.

         In his first statement, given to Jason Dean, the chief of police, and Chuck Brooks, an investigator with the Atmore Police Department, which was recorded and played for the jury, Floyd stated that all he remembered was "jumping over the fence and jumping through the window. And she was just lying on the floor." (R. 3285-86.) Floyd said that he did not remember how many times he had shot Jones, but that he had tried to shoot himself and "it wouldn't work." (R. 3286.) Floyd said that the previous day, he had found out that Jones had been cheating on him, and he had traded his automobile for a .38 caliber gun and $300. Floyd said that he had left the gun in Jones's bedroom before he left Jones's house; specifically, Floyd said that he "just threw it on the dresser." (R. 3294.) Floyd also stated that the jacket found in Jones's front yard was his and that he had dropped it as he fled the scene. Finally, Floyd said that someone had driven him to and from Jones's house that night, but he refused to identify that person.

         After giving his first statement, Floyd was placed in a cell at the Atmore Police Department. At approximately 3:45 a.m., Glenn Carlee, Atmore's Director of Public Safety, went to the cell and spoke with Floyd. In his second statement, which was not recorded, Floyd again confessed to killing Jones. According to Carlee, Floyd stated: "I messed up. I killed the woman I love. ... I wanted to be with her, but the gun wouldn't work." (R. 3476.) Floyd reiterated to Carlee that he had jumped over the fence in Jones's backyard and had then jumped through the bedroom window and shot Jones. Floyd also reiterated that he had traded his automobile for the gun he had used to kill Jones, but he refused to tell Carlee from whom he had gotten the gun.

         In March 2011, Scott Walden, an investigator with the Atmore Police Department, went to the Escambia County detention facility to interview an informant in an unrelated case. As he was leaving, Inv. Walden said, he saw Floyd in the hallway. Floyd told Inv. Walden that he wanted to speak to him, but Inv. Walden told Floyd that he could not speak with Floyd without Floyd's lawyer present. Inv. Walden advised Floyd that his lawyer could set up a meeting to discuss whatever Floyd wanted to discuss. At that point, Floyd stated: "The bitch didn't get me a lawyer. She took me there and brought me back." (R. 3180.) Floyd was apparently referring to the person who had driven him to and from Jones's house the night of the murder.

         In December 2011, Inv. Walden again went to the Escambia County detention facility, this time to obtain a DNA swab from Floyd, and Floyd again made a statement to Inv. Walden:

"He said, you know, I tried to talk to you last time you wouldn't talk to me. But I'm telling you, the girl took me there and brought me back. I want to talk to you. If you could help me out and get a lower sentence."

(R. 3184.) Again, Inv. Walden refused to speak with Floyd without the presence of Floyd's attorney.

         Floyd's defense at trial was twofold. First, Floyd argued that he was not the perpetrator of the crime, and he attacked the State's case against him. Through cross-examination of witnesses, Floyd elicited testimony that law enforcement took only 24 photographs at the crime scene; that law enforcement did not attempt to gather fingerprints from the crime scene or the murder weapon; that law enforcement did not submit for DNA testing the cigarette butts, beer cans, and bandana found at the scene, or the hair found on the barrel of the murder weapon; that law enforcement did not submit for forensic testing the clothing he was wearing the night of the crime to determine if the victim's blood was present; that law enforcement did not conduct a gunpowder-residue test to determine if he had recently fired a gun; and that law enforcement conducted no blood-spatter analysis of the crime scene. Floyd also elicited testimony that the clothing he was wearing the night of the crime had no bloodstains and that there was no "physical or scientific" evidence that the murder weapon found at the scene was the gun Floyd had purchased the day of the murder. (R. 3349.)

         Floyd also presented testimony from Jack Remus, a forensic consultant, who testified as to how he would have investigated Floyd's case if he had been called to the crime scene. Essentially, Remus testified that he would have submitted for DNA testing the cigarette butts and beer cans found at the scene; that he would have had the gun found at the scene processed for both DNA and fingerprints; that he would have submitted Floyd's clothing to be processed for DNA and other trace evidence; and that he would have tested Floyd's person for gunpowder residue. Remus also stated that he would have taken more than 24 photographs of the crime scene. Remus said that he would have taken photographs of the various pieces of evidence at a 90-degree angle with a ruler or other measure present in the photograph in order to accurately portray the evidence, and that he would have taken long-range, medium-range, and close-up photographs of the entire crime scene to ensure that an analysis of bloodstains, among other things, could be conducted using the photographs. Remus said that he reviewed the photographs of the crime scene taken by law enforcement and that the photographs were not taken at the correct angle and were not sufficient to conduct a blood-spatter analysis of the scene. However, he did testify that the photographs were sufficient for him to conclude that the bloodstains on the floor and wall in the hallway where Jones was found were not spatter from the shooting, but were stains from when Jones was moved to the ambulance.

         Floyd also attacked his statements to police and posited that he had not, in fact, confessed to the murder. Floyd stressed that in his first statement to Chief Dean and Inv. Brooks, he had said that he remembered only jumping through the window and seeing Jones on the floor, not that he had shot Jones. He also presented testimony from a dispatcher at the Atmore Police Department who testified that the dispatch logs indicated that at 2:45 a.m. on January 2, 2011, Floyd was taken from the Atmore Police Department and transported to a county facility, thus making it impossible for him to have given his second statement to Carlee at 3:45 a.m. while in a cell at the Atmore Police Department, as Carlee had testified. Second, Floyd argued that he was intoxicated at the time of the crime and thus was unable to form the intent to kill. Roy Donta James ("Roy") testified that he and his girlfriend picked up Floyd from his house in Poarch around 11:00 a.m. on January 1, 2011, and spent most of the day with Floyd. Roy said that he and Floyd initially went to his house, then drove around Atmore for a few hours that afternoon, and then returned to his house around 5:30 p.m. or 6:00 p.m. Roy said that he and Floyd drank alcohol and ingested approximately seven grams of powder cocaine throughout the day. Roy stated that he initially drove Floyd home around 8:00 p.m. that evening, but a short time later, Roy said, Floyd called and asked Roy to come get him again. Roy picked up Floyd around 9:30 p.m. and the two went to a casino for a short time, then went to a local nightclub for a short time where Roy said he purchased a bottle of liquor, and then went back to Roy's house for a short time. Roy then again drove Floyd home sometime between 11:00 p.m. and midnight. Roy testified that he did not see Floyd use his cellular telephone at all that day. Rather, Roy said, Floyd asked to use Roy's cellular telephone.

         Ernest Dean Rolin, Jr., testified that on January 1, 2011, he was in Poarch at his girlfriend's house, located on the same street Floyd lived on, when around 5:00 p.m he saw Floyd standing in the middle of the street. Floyd asked Rolin to drive him to Atmore, and Rolin said that he dropped Floyd off in Atmore around 5:20 p.m. Rolin said that he saw Floyd again in Poarch outside of his girlfriend's house at approximately 8:00 p.m. Floyd again asked Rolin to drive him to Atmore, and Rolin dropped Floyd off near an auto parts store in Atmore. Rolin testified that Floyd did not appear intoxicated when he saw him that day and that he did not see Floyd ingest any drugs, although he admitted to giving Floyd crystal methamphetamine. However, Rolin testified at a pretrial hearing and a transcript of that testimony was introduced into evidence by the State. In his pretrial testimony, Rolin stated that Floyd did appear intoxicated when he saw Floyd that day and that he did see Floyd ingest the crystal methamphetamine he had given Floyd.

         At the penalty phase of the trial, the State introduced evidence that Floyd had pleaded guilty in September 2007 to first-degree rape and attempted first-degree sodomy and had been sentenced to 15 years' imprisonment for each conviction, which sentence had been split, and Floyd had been ordered to serve 2 years in confinement followed by 5 years on probation. The State also presented evidence that in September 2010, Floyd had pleaded guilty to first-degree criminal mischief and had been sentenced to 15 years' imprisonment, split to serve 3 years in a community-corrections program followed by 3 years on probation. The State also recalled to testify Ky'Toria Lawson and Sarah Marshall and called to testify Michael Dennis, Jones's older brother, Eloise Dirden, Jones's aunt, and Kerrya Jones, Jones's oldest son, to testify about the impact Jones's death had on their lives.

         Floyd waived his right to counsel and represented himself during the penalty phase of the trial. Floyd waived opening statement and closing argument and presented no evidence in mitigation. After the jury returned its penalty-phase verdict, Floyd reinvoked his right to counsel, and at the sentencing hearing before the trial court, counsel introduced into evidence various records relating to Floyd, including medical records, school records, and records from his participation in a community-corrections program, as well as reports from Dr. Doug McKeown and Dr. Ronald McCarver, both forensic psychologists who had evaluated Floyd before trial to determine his competency to stand trial and his mental state at the time of the offense, and a report from a private investigation firm.

         Floyd also presented testimony from four witnesses. Alma Mose, Floyd's grandmother, testified that she had raised Floyd, that Floyd's mother and father were absent from his life, and that Floyd, in fact, did not meet his father until after he had been accused of killing Jones. Mose said that Floyd took music lessons and attended church regularly when he was a child but that when he was about 14, he was sexually abused by the mother of one of his friends, and that he then began getting into trouble. He began hanging around with older boys, using illegal drugs, and committing petty crimes, and he was committed to the Department of Youth Services. Floyd also had to take anger-management classes in school because he started fights. Mose said that, although Floyd dropped out of school after the ninth grade, he did get his GED. In his late teens, Mose said, Floyd suffered a head injury in an automobile accident. Mose said that Floyd fathered three children, with three different women, and that, although Floyd did not provide financially for his children, he spent a lot of time with them. Mose asked the court to sentence Floyd to life imprisonment without the possibility of parole. Mose said that Floyd did not shoot and kill Jones but that Floyd's new girlfriend had killed Jones and that Floyd was protecting his girlfriend because she was pregnant and he did not want her going to prison for the murder.

         Robert Brewer, a substance-abuse counselor, testified that Floyd was referred to him by a probation officer for substance-abuse treatment as a condition of probation. Brewer assessed Floyd in December 2010, determined that Floyd had a substance-abuse problem, and outlined a one-year plan of "intensive outpatient treatment." (R. 4278.) Brewer said that he was Floyd's counselor for about three weeks before Floyd was arrested and could no longer participate in the program. In the month that Floyd was enrolled in the treatment program, he tested positive for cocaine three times, including on December 30, 2010, and he tested negative one time.

         Robert DeFrancisco, a forensic psychologist, testified that he reviewed Floyd's school and medical records as well as the reports prepared by Dr. McKeown and Dr. McCarver.[3] In his capacity as the psychologist for the county detention facility, Dr. DeFrancisco also met Floyd several times while Floyd was in jail awaiting trial. Dr. DeFrancisco testified that Floyd's IQ when he was 5 years old was 109 but that when Floyd was evaluated before trial, Floyd's IQ was 82. This "clinically significant drop" in IQ, Dr. DeFrancisco said, is consistent with "prefrontal lobe damage, " either from a head injury or from consistent use of illegal narcotics, such as cocaine and methamphetamine. (R. 4298-99.) Dr. DeFrancisco stated that no testing was performed on Floyd to determine if Floyd, in fact, suffered brain damage, but he stated that Floyd had suffered head trauma and had a substance-abuse problem. According to Dr. DeFrancisco, a person suffering from prefrontal lobe damage will have "a hard time making decisions, " will be "impulsive, " and will have "difficulty controlling themselves." (R. 4300.) Dr. DeFrancisco also testified that, in his opinion, Floyd suffered from antisocial or borderline personality disorder, which adversely affected his "ability to conform his behavior to society's standards." (R. 4300.)

         Lisa Diaz, a social worker who conducted a mitigation investigation, testified that when Floyd was young, he was generally seen as a good person, that he often helped his neighbors, and that he was involved in sports and church activities. However, Diaz said that Floyd had no father figure growing up, that he was bullied in school, and that he began having behavioral issues when he was a teenager. According to Diaz, Floyd "got with the wrong crowd" and began socializing with much older people. (R. 4366.) When he was in the 7th grade, Floyd was diagnosed with defiant and aggressive behavior because he had difficulty obeying rules and responding to authority. Based on his diagnosis and his poor grades, Floyd was placed in "[e]motionally-[c]onflicted" special-education classes. (R. 4357.) Diaz said that Floyd continually got into trouble during his teenage years and began using drugs when he was 17. Diaz also testified that Floyd suffered two head injuries in his youth -- one was sustained during an automobile accident and another when he was hit in the head with a pistol.

         Standard of Review

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

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

"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."

         "The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal." Hall v. State, 820 So.2d 113, 121 (Ala.Crim.App.1999), aff'd, 820 So.2d 152 (Ala. 2001). Plain error is "error that is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings." Ex parte Trawick, 698 So.2d 162, 167 (Ala. 1997), modified on other grounds, Ex parte Wood, 715 So.2d 819 (Ala. 1998). "To rise to the level of plain error, the claimed error must not only seriously affect a defendant's 'substantial rights, ' but it must also have an unfair prejudicial impact on the jury's deliberations." Hyde v. State, 778 So.2d 199, 209 (Ala.Crim.App.1998), aff'd, 778 So.2d 237 (Ala. 2000). "The plain error standard applies only where a particularly egregious error occurred at trial and that error has or probably has substantially prejudiced the defendant." Ex parte Trawick, 698 So.2d at 167. "[P]lain error must be obvious on the face of the record. A silent record, that is a record that on its face contains no evidence to support the alleged error, does not establish an obvious error." Ex parte Walker, 972 So.2d 737, 753 (Ala. 2007). Thus, "[u]nder the plain-error standard, the appellant must establish that an obvious, indisputable error occurred, and he must establish that the error adversely affected the outcome of the trial." Wilson v. State, 142 So.3d 732, 751 (Ala.Crim.App.2010). "[T]he plain error exception to the contemporaneous-objection rule is to be 'used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.'" United States v. Young, 470 U.S. 1, 15 (1985) (quoting United States v. Frady, 456 U.S. 152, 163 n.14 (1982)).

         Analysis

         I.

         Floyd contends that he was denied due process and a fair trial when, he says, the State used the murder as the underlying felony required to establish burglary in order to elevate the crime to a capital offense. (Issue XXIII in Floyd's brief.) Floyd argues that "[t]he use of the murder alone to elevate the charge to capital murder violates the requirement that capital murder statutes 'genuinely narrow' the class of persons eligible for the death penalty" because, he says, it "convert[s] any intentional murder to capital murder based solely on whether it occurs in a building." (Floyd's brief, pp. 96-97; citations omitted.) Floyd did not raise this issue in the trial court; therefore, we review it for plain error. See Rule 45A, Ala. R. App. P.

         Floyd was indicted for murder made capital because it was committed during the course of a burglary as follows:

"The Grand Jury of said County charge that before the finding of this indictment Cedric Jerome Floyd, whose name to the Grand Jury is otherwise unknown, did intentionally cause the death of another person, to-wit: Tina Roshell Jones, by shooting her with a revolver, and the said Cedric Jerome Floyd caused said death during the time that he, knowingly and unlawfully entered or remained, or attempted to enter or remain, unlawfully in a dwelling of another, to-wit: Tina Roshell Jones, with intent to commit a crime therein, to-wit: murder, and while effecting entry or while in the dwelling or in immediate flight therefrom, the said Cedric Jerome Floyd was armed with an explosive or deadly weapon, to-wit: revolver, in violation of § 13A-5-40(a)(4) of the Code of Alabama, against the peace and dignity of the State of Alabama."

(C. 39.)

         In Shaw v. State, 207 So.3d 79 (Ala.Crim.App.2014), this Court rejected an identical argument:

"Shaw next argues that his two convictions for the capital offense of murder during the course of a burglary were improper because, he says, the State improperly relied on the murder of each victim as the underlying offense to establish the burglary. Specifically, Shaw argues that use of the murder itself to elevate the crime to capital murder 'violates the requirement that capital murder statutes "genuinely narrow" the class of persons eligible for the death penalty.' (Shaw's brief, p. 91.)
"....
"This Court has previously considered and rejected this argument. In Hyde v. State, 778 So.2d 199 (Ala.Crim.App.1998), we stated:
"'[Hyde] erroneously argues that the trial court erred in allowing the murder to be elevated to capital murder based on the same facts that constituted the murder itself. Because the State showed that the appellant committed the murder during a burglary of Whitten's house, the murder was properly elevated to, and the appellant was properly convicted of, the capital offense of burglary/murder. See § 13A-5-40(a)(4), Ala. Code 1975.'
"778 So.2d at 213. In Whitehead v. State, 777 So.2d 781 (Ala.Crim.App.1999), this Court held:
"'Whitehead contends that "the use of the murder itself to elevate the murder to capital murder violates the requirement that capital murder statutes 'genuinely narrow' the class of persons eligible for the death penalty." (Whitehead's brief to this court, p. 20.) This same argument was raised on appeal by Whitehead's codefendant Hyde and was rejected by this court. See Hyde [v. State], [778 So.2d 199 (Ala.Crim.App.1998)]. Likewise, we reject Whitehead's argument. Whitten's murder was elevated to capital murder because it was committed during the course of a burglary and because the victim was a witness, not because of the murder itself. See § 13A-5-40(a)(4), Ala. Code 1975. Because the State sufficiently proved the elements of burglary, Whitehead was properly convicted of the capital offense of murder during a burglary.'
"777 So.2d at 839. Here, the murders were elevated to capital murders because they were committed during the course of a burglary and not because of the murders themselves. See Whitehead, supra. Shaw was properly charged and convicted of murdering Doris Gilbert and Robert Gilbert during the course of a burglary."

207 So.3d at 109.

         As in Shaw, the murder in this case was elevated to capital murder, not because of the murder itself, but because the murder was committed during the course of a burglary. Therefore, we find no error, much less plain error, in Floyd being charged with and convicted of murdering Jones during the course of a burglary.

         II.

         Floyd contends that the trial court erred in ordering him to wear an electronic stun device throughout his trial. (Issue I in Floyd's brief.) Specifically, Floyd argues that the trial court ordered him to wear the stun device "because he elected to wear civilian clothing at trial" (Floyd's brief, p. 10) and that "[t]he trial court's procedure of utilizing a stun belt whenever a 'defendant is in civilian clothes' ... effectively punished [him] for exercising his full right to a presumption of innocence." (Floyd's brief, p. 13.) Floyd also argues that requiring him to wear a stun device denied him his right to a fair trial because, he says, it placed him in constant fear of being electrocuted and thereby infringed on his ability to participate in his trial and to communicate with his counsel.

         Our review of the record indicates that, although Floyd mentioned to the trial court that the stun device was uncomfortable and that he felt threatened by the stun device because the law-enforcement officers controlling the device had previously testified against him[4] and, in his opinion, were taking actions designed to provoke him, at no point did Floyd specifically object to the use of the stun device on the grounds he now raises on appeal.[5] Therefore, we review Floyd's claims under the plain-error rule. See Rule 45A, Ala. R. App. P.

         The record reflects that the stun device was mentioned only four times throughout the proceedings. The first mention of the stun device occurred during a pretrial hearing on June 11, 2012, approximately a week before Floyd's trial was originally scheduled to begin, but over a year before Floyd's trial was ultimately held in September 2013. At that hearing, the trial court informed the parties that the sheriff's department was in charge of courtroom security and that the department would "probably" require Floyd to wear an electronic stun device during the trial:

"THE COURT: Okay. And furthermore, on cases where the defendant -- and we have had these before -- where the defendant is in civilian clothes and not shackled as much as he would be if he's in his prison clothes, jail clothes. The sheriff has a procedure of using the stun belt with a remote control, electronic security device. Which, the sheriff is responsible for security, but I just, in talking with the sheriff, that's my understanding that's probably the direction they will handle it. I don't program all of that, other than there is a pattern that has been utilized in other cases before us. And I mention that just so that the defense and the defendant is aware that, I don't know if it's a leg belt or a --
"CAPTAIN FREEMAN: Yes, sir, it's actually called a Stun-Cuff. And we can place it on the arm or the leg and just have a remote for the officer to keep on his person.
"THE COURT: Okay. And if there were some problem, it's able to be turned on and the individual is immediately --
"CAPTAIN FREEMAN: Exactly. It works just like a taser, it's 50, 000 volts.
"THE COURT: Okay. Well, that's just part of the process. And I really don't think that any time it'll be used. But I recognize, one, that does permit the defendant to not look too shackled, or so much of a prison look, because he'll be wearing just regular clothing and he'll look good. I know that y'all, meaning, I'm looking at the Chief Deputy over here, one of the chief deputies, y'all will be in charge of security. I am not to the extent that there is any kind of handcuffing or ankle braces, that's up to y'all. But I'll look at defense, if there's an issue about it, or you think that it's being improperly done or it's unfairly done, I want to make sure the defense knows that the Court's ears are always open. And if there's a problem you can come to me and immediately let me know. But I would expect that both sides could work together in regard to it.
"(commotion in hallway)
"THE COURT: .... Okay. From defense side then, anything else that you think we should cover while we're together this morning?
"[Floyd's counsel]: Nothing that I can think of, Judge."

(R. 267-69.)

         Subsequently, on the third day of voir dire, defense counsel informed the court that "it is the wish of our client to place ... on the record" that "our client feels threatened by the -- as a result of the stun belt being placed upon him. He also feels threatened by one or more of these officers, since they have previously testified against him." (R. 1517-18.) On the fifth day of voir dire, defense counsel informed the court that Floyd was "wearing a very uncomfortable shock device" and that Floyd believed that the security officers were "attempting to provoke him and aggravate him" and "disrupt these proceedings" by "get[ting] near him during the proceedings and in front of the jurors" which, Floyd claimed, "violat[ed] his right to a free or impartial proceeding" and "creat[ed] a perception or problem that may present itself later." (R. 1734.) Finally, during a recess on the second day of the guilt phase of the trial, the trial court noted for the record that the week before, during the first week of voir dire, Floyd "had removed the electrodes from his stun belt" and the sheriff's department had been forced to obtain "a new belt for him, which is a vest, " from another county. (R. 2694.)

"'"Every court has power to preserve and enforce order in its immediate presence; to prevent interruption, disturbance, or hindrance to its proceedings; and to control all persons connected with a judicial proceeding before it."' Thomas v. State, 555 So.2d 1183, 1184-85 (Ala. Cr. App. 1989), quoting Clark v. State, 280 Ala. 493, 497, 195 So.2d 786 (1967), appeal dismissed, cert. denied, 387 U.S. 571, 87 S.Ct. 2071, 18 L.Ed.2d 967 (1967). '"While recognizing that an accused generally has a right to be tried without being subjected to physical restraints, and that this right has been embodied in various constitutional and statutory guaranties, the courts have also recognized that this right is subject to exception, especially on such grounds as the need to prevent (1) the accused's escape, or (2) the accused's resort to violence, or (3) the accused's disruption of the trial."' Thomas, 555 So.2d at 1185, quoting Annot., 90 A.L.R.3d 17, 23 (1979)."

Wood v. State, 699 So.2d 965, 966-67 (Ala.Crim.App.1997).

         Generally, "[i]t is in the sound discretion of the trial court to restrain the defendant, and such discretion should not be disturbed." Brock v. State, 555 So.2d 285, 289 (Ala.Crim.App.1989). "The decision to restrain a defendant rests with the trial judge, and, absent an abuse of discretion, this Court will not disturb his ruling on appeal." McCall v. State, 833 So.2d 673, 676 (Ala.Crim.App.2001). "'Ultimately, ... it is incumbent upon the defendant to show that less drastic alternatives were available and that the trial judge abused his discretion by not implementing them.'" Brock, 555 So.2d at 289 (quoting Wilson v. McCarthy, 770 F.2d 1482, 1486 (9th Cir. 1985)). As this Court noted in Windsor v. State, 683 So.2d 1027 (Ala.Crim.App.1994), aff'd 683 So.2d 1042 (Ala. 1996):

"The trial court can best determine what security measures are necessary. 'Within constitutional limits, great weight must be accorded the discretion of the trial court. The trial judge is responsible for maintaining order in his courtroom. He understands infinitely better than we what is necessary to perform his duty.' Goodwin v. State, 495 So.2d 731, 733 (Ala.Crim.App.1986)."

683 So.2d at 1033.

         In Belisle v. State, 11 So.3d 256 (Ala.Crim.App.2007), aff'd, 11 So.3d 323 (Ala. 2008), this Court addressed a similar issue involving an electronic stun device and found no plain error in the use of such a device. We explained:

"We have approved of the use of a similar device -- a 'stun belt' -- to maintain security in a courtroom. See Snyder v. State, 893 So.2d 488 (Ala.Crim.App.2003). However, we have never had occasion to address this issue under the 'plain error' standard of review.
"Belisle relies on [United States v.] Durham[, 287 F.3d 1297 (11th Cir. 2002), ] to support this argument. However, we believe that this case is more similar to Scieszka v. State, 259 Ga.App. 486, 578 S.E.2d 149 (2003). The Georgia Court of Appeals in Scieszka distinguished the case of Durham based on the fact that the issue had never been presented to the trial court. The court stated:
"'As an initial matter, we note that there is nothing in the record indicating that it was the trial court that required Scieszka to wear the stun belt. Scieszka's trial attorney never objected to the belt or otherwise brought the matter to the trial court's attention, and there was accordingly no ruling on the matter by the court.
"'....
"'Our Supreme Court has held that the use "of a remedial electronic security measure" is permissible where it is shielded from the jury's view and where there is no evidence that defendant was harmed by its use. Young v. State, 269 Ga. 478, 479(2), 499 S.E.2d 60 (1998). In the Young case, the court found that there was nothing in the record to show that the use of such an electronic device was "so inherently prejudicial as to pose an unacceptable threat to his right to a fair trial." (Citation and punctuation omitted.) Id. In another case, the Supreme Court rejected the defendant's argument regarding the use of a stun belt, finding that there was "nothing in the record to support [the defendant's] contention that the device [(although not visible to the jury)] nonetheless had a detrimental psychological effect on his ability to participate in the trial." Brown v. State, 268 Ga. 354, 359-360(7), 490 S.E.2d 75 (1997). And in Stanford v. State, 272 Ga. 267, 271(8), 528 S.E.2d 246 (2000), the court again found no merit to the defendant's arguments regarding the use of an electronic security device because he failed to object to the device and because it was not visible to the jury.
"'Scieszka's argument must similarly fail because he raised no objection to the use of the stun belt and thus did not obtain a ruling from the trial court on the issue. Moreover, the record is devoid of any evidence of harm or prejudice arising from the use of the stun belt at his trial.
"'And contrary to Scieszka's assertion, the recent opinion by the Eleventh Circuit Court of Appeals in United States v. Durham, 287 F.3d 1297 (11th Cir. 2002), does not require a different result. In Durham, the Eleventh Circuit expressed serious concerns regarding the use of these devices and their effect on a defendant's ability to participate in his defense. Id. at 1305-1306. Nevertheless, the defendant in that case had filed a motion seeking to prohibit the stun belt's use, and the district court had ruled that the device could be used in light of the defendant's history of escape attempts. Id. at 1302-1303. The Eleventh Circuit remanded the case, requiring the district court to make factual findings regarding the use of the stun belt and to consider on the record the use of less restrictive alternatives. Id. at 1307-1309. Thus, Durham is distinguishable from this case because the use of the stun belt in that case was court-sanctioned, following the defendant's objection.'
"259 Ga.App. at 487-88, 578 S.E.2d at 150-51. For the reasons discussed in Scieszka, we refuse to find plain error when the issue was not brought to the court's attention, when there is no evidence that Belisle was prejudiced, and when Belisle's substantial rights have not been affected. Rule 45A, Ala. R. App. P."

11 So.3d at 281-82. See also McMillan v. State, 139 So.3d 184, 228-29 (Ala.Crim.App.2010); Reynolds v. State, 114 So.3d 61, 82 (Ala.Crim.App.2010); and Hyde v. State, 13 So.3d 997, 1005-07 (Ala.Crim.App.2007) (all holding that the use of an electronic stun device does not rise to the level of plain error).

         In this case, the record does not support Floyd's contention that the trial court ordered him to wear the stun device as punishment for his choosing to wear civilian clothing during the trial. Indeed, the record contains no order, written or oral, by the trial court requiring any specific security measure. Rather, the record indicates that the trial court deferred to the sheriff's department on all security matters and that the sheriff's department, not the trial court, made the decision to use the stun belt. That being said, it is clear from the June 2012 hearing that the trial court believed that a stun device would be an appropriate security measure, not as a way to punish Floyd, but as a way to maintain security while simultaneously protecting Floyd's presumption of innocence so that when Floyd appeared in front of the jury, he would "not look too shackled, or [have] so much of a prison look." (R. 268.)

         Because Floyd did not specifically object to the use of the device, there is little in the record regarding the device, other than that the first device was a cuff worn on the leg or the arm and that the second device was a vest. Nothing in the record indicates that either device was visible to the jury or inhibited Floyd in any way. Floyd's argument that his constant fear of being electrocuted prevented him from participating in his trial and consulting with his counsel is unsupported by the record -- which reflects repeated instructions by the trial court that security personnel allow Floyd movement during trial, including walking to the bench for bench conferences -- and, quite frankly, is specious, given that Floyd clearly had no fear of being electrocuted when he disabled the first device.

         We also point out that the record contains ample evidence indicating that restraining Floyd was necessary in this case. While in jail awaiting trial on the capital-murder charge, Floyd escaped in October 2012 and was recaptured a few days later in another state, and he was convicted of promoting prison contraband in the spring of 2013. We recognize that these incidents occurred after the stun device was first mentioned in June 2012. However, that does not negate their impact on the necessity for restraining Floyd. As already noted, the trial court did not at the June 2012 hearing, or at any other time, order that Floyd wear the stun device; that decision was made by the sheriff's department. The record, however, does not indicate when the sheriff's department made that decision. At the June 2012 hearing, the trial court indicated only that the sheriff's department would "probably" use a stun device during trial. (R. 267.) Nothing in the record indicates that the decision to use a stun device during Floyd's September 2013 trial was made before Floyd had escaped or had been convicted of promoting prison contraband.

         The record also reflects that during voir dire, Floyd attempted to make a weapon out of the flexible pen he had been provided by the sheriff's department and that he removed the electrodes from the first stun device that was used, forcing the sheriff's department to obtain a second device from another county. (R. 2694.) During the charge conference outside the presence of the jury, Floyd disengaged the leg brace the sheriff's department had placed on him, and a recess had to be taken so that Floyd could be shackled. The record also indicates that during the trial Floyd had to be cautioned about the sheriff's department's rules regarding food and clothing and about furtive movements he had made that had caused concern among security personnel.

         Floyd was on trial for the most serious offense in Alabama. He had prior convictions for rape, attempted sodomy, and criminal mischief. While awaiting trial, he had escaped from custody and had been charged with, and convicted of, promoting prison contraband, and during trial he dismantled two different restraints that had been placed on him. There is no indication in the record that the stun device Floyd wore during trial was visible to the jury or that it prevented Floyd from participating in his trial and consulting with his counsel. Simply put, nothing in the record indicates that the stun device worn by Floyd adversely affected his substantial rights or prejudiced him in any way. Therefore, we find no error, much less plain error, as to this claim.

         III.

         Floyd contends that the trial court erred in denying his motion for a change of venue. (Issue VIII in Floyd's brief.) Specifically, Floyd argues that media coverage of the murder and of his criminal history was so extensive and prejudicial that he could not receive a fair trial in Escambia County.

         Approximately one month before trial, Floyd filed a motion for a change of venue, arguing that media coverage of the case "[a]t each stage of the criminal proceedings" had been so extensive, inflammatory, and prejudicial that "it [would be] impossible to conduct a fair trial by an impartial and unbiased jury in" Escambia County. (C. 1302.) In support of his motion, Floyd submitted numerous articles published in various local newspapers and on the Internet that had included information regarding the crime and his confession, his history with the victim of domestic violence, his escape from the county jail while awaiting trial on the murder charge, his conviction for promoting prison contraband while awaiting trial on the murder charge, and his prior convictions for rape, attempted sodomy, and criminal mischief and the subsequent revocation of his probation for those convictions, as well as his status as a registered sex offender. The trial court postponed ruling on the motion until after voir dire. At the conclusion of voir dire, the trial court heard argument from the parties and then denied the motion.

         "When requesting a change of venue, '[t]he burden of proof is on the defendant to "show to the reasonable satisfaction of the court that a fair and impartial trial and an unbiased verdict cannot be reasonably expected in the county in which the defendant is to be tried."'" Jackson v. State, 791 So.2d 979, 995 (Ala.Crim.App.2000) (quoting Hardy v. State, 804 So.2d 247, 293 (Ala.Crim.App.1999), aff'd, 804 So.2d 298 (Ala. 2000), quoting in turn Rule 10.1(b), Ala. R. Crim. P.).

"[T]he determination of whether or not to grant a motion for change of venue is generally left to the sound discretion of the trial judge because he has the best opportunity to assess any prejudicial publicity against the defendant and any prejudicial feeling against the defendant in the community which would make it difficult for the defendant to receive a fair and impartial trial."

Nelson v. State, 440 So.2d 1130, 1132 (Ala.Crim.App.1983). Therefore, "[a] trial court's ruling on a motion for a change of venue is reviewed for an abuse of discretion." Woodward v. State, 123 So.3d 989, 1049 (Ala.Crim.App.2011).

"In connection with pretrial publicity, there are two situations which mandate a change of venue: 1) when the accused has demonstrated 'actual prejudice' against him on the part of the jurors; 2) when there is 'presumed prejudice' resulting from community saturation with such prejudicial pretrial publicity that no impartial jury can be selected."

Hunt v. State, 642 So.2d 999, 1042-43 (Ala.Crim.App.1993), aff'd, 642 So.2d 1060 (Ala. 1994).

         A.

         Floyd argues that he suffered actual prejudice because, he says, there are "tight connections inherent in small communities like Atmore" and several prospective jurors had connections to the case, either because they knew the victim's family or Floyd's family or because they knew potential witnesses in the case. (Floyd's brief, p. 62.) Floyd also points to two jurors who sat on his jury who indicated during voir dire that they had heard about the case, and he argues that it is "doubtful" that those two jurors could set aside what they had heard even though both stated during voir dire that they could. (Floyd's brief, p. 63.)

         "Actual prejudice exists when one or more jurors indicated before trial that they believed the defendant was guilty, and they could not set aside their opinions and decide the case based on the evidence presented at trial." Hosch v. State, 155 So.3d 1048, 1118 (Ala.Crim.App.2013). "The standard of fairness does not require jurors to be totally ignorant of the facts and issues involved." Ex parte Grayson, 479 So.2d 76, 80 (Ala. 1985). "'It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. ...'" Id. (quoting Irvin v. Dowd, 366 U.S. 717, 723 (1961)).

         The record reflects that half the jurors who served on Floyd's jury had heard about the case through the media. However, all those jurors indicated during voir dire that they had no opinion as to Floyd's guilt or innocence and that they could set aside what they had heard and decide the case based on the evidence presented during trial. Floyd's argument that it is "doubtful" that two of those jurors could set aside what they had heard despite their statements to the contrary is based on pure speculation and is unsupported by the record. Moreover, the fact that several prospective jurors knew the victim's family, Floyd's family, or potential witnesses has no bearing on whether Floyd suffered actual prejudice unless those jurors had a fixed opinion as to Floyd's guilt that they could not set aside, which the record reflects is not the case. The record indicates that Floyd was not actually prejudiced by pretrial publicity so as to warrant a change of venue.

         B.

         Floyd also argues that prejudice should be presumed in this case because, he says, the publicity was not remote in time from his trial, but was constant from the time of the murder in January 2011 until his trial in September 2013; the publicity was sensational and inflammatory, revealing gruesome details of the murder as well as his extensive criminal history; the small size of the community coupled with the wide distribution of several local newspapers that had reported on the crime ensured that most people in the county had heard about the case; and numerous comments on the Internet in response to various articles about the crime revealed "the community's animus towards" him. (Floyd's brief, p. 60.)

         Prejudice is presumed "'when pretrial publicity is sufficiently prejudicial and inflammatory and the prejudicial pretrial publicity saturated the community where the trials were held.'" Hunt, 642 So.2d at 1043 (emphasis omitted) (quoting Coleman v. Kemp, 778 F.2d 1487, 1490 (11th Cir. 1985)). "'To justify a presumption of prejudice under this standard, the publicity must be both extensive and sensational in nature. If the media coverage is factual as opposed to inflammatory or sensational, this undermines any claim for a presumption of prejudice.'" Jones v. State, 43 So.3d 1258, 1267 (Ala.Crim.App.2007) (quoting United States v. Angiulo, 897 F.2d 1169, 1181 (1st Cir. 1990)). "In order to show community saturation, the appellant must show more than the fact 'that a case generates even widespread publicity.'" Oryang v. State, 642 So.2d 979, 983 (Ala.Crim.App.1993) (quoting Thompson v. State, 581 So.2d 1216, 1233 (Ala.Crim.App.1991)). Only when "the pretrial publicity has so 'pervasively saturated' the community as to make the 'court proceedings nothing more than a "hollow formality"'" will presumed prejudice be found to exist. Oryang, 642 So.2d at 983 (quoting Hart v. State, 612 So.2d 520, 526-27 (Ala. Crim. App.), aff'd, 612 So.2d 536 (Ala. 1992), quoting in turn, Rideau v. Louisiana, 373 U.S. 723, 726 (1963)). "This require[s] a showing that a feeling of deep and bitter prejudice exists in [the county] as a result of the publicity." Ex parte Fowler, 574 So.2d 745, 747 (Ala. 1990).

         In determining whether presumed prejudice exists, we look at the totality of the circumstances, including the size and characteristics of the community where the offense occurred; the content of the media coverage; the timing of the media coverage in relation to the trial; the extent of the media coverage; and the media interference with the trial or its influence on the verdict. See, e.g., Skilling v. United States, 561 U.S. 358 (2010), and Luong v. State, 199 So.3d 139, 146 (Ala. 2014). "[T]he 'presumptive prejudice' standard is '"rarely" applicable, and is reserved for only "extreme situations."'" Whitehead v. State, 777 So.2d 781, 801 (Ala.Crim.App.1999), aff'd, 777 So.2d 854 (Ala. 2000) (quoting Hunt, 642 So.2d at 1043, quoting in turn, Coleman, 778 F.2d at 1537)).

         The record reflects that Escambia County is a relatively small rural county. According to the 2010 census, Escambia County had a population of just over 38, 000 residents. The small size of the community weighs in favor of a finding of presumed prejudice.

         However, the content of the publicity weighs against a finding of presumed prejudice. We have thoroughly reviewed all the articles submitted by Floyd in support of his motion, and we conclude that, although they did not paint a flattering picture of Floyd, they were largely factual, as opposed to inflammatory and sensational. Additionally, although most of the articles did reference some or all of Floyd's criminal history, "the mere fact that media coverage references a defendant's criminal history, by itself, is not sufficient to satisfy the presumed-prejudice standard, " McCray v. State, 88 So.3d 1, 70 (Ala.Crim.App.2010), and the record in this case reflects that only a few of the prospective jurors who had heard about the case through the media had heard about Floyd's criminal history.

         The timing and extent of publicity also weigh against a finding of presumed prejudice. Based on Floyd's submissions to the trial court, only 20 articles about the crime were published in newspapers and on the Internet. Those articles were published in a 14-month period after the crime -- between January 2011 and March 2013 -- and no articles were published in the 6 months leading up to Floyd's September 2013 trial.

         Finally, nothing in the record indicates that the media interfered with the trial or influenced the jury's verdict. Floyd argues that numerous anonymous comments made in response to the articles published on the Internet establish that the media influenced the community and, thus, the trial. Although we agree with Floyd that some of the comments were inflammatory, we cannot say that they establish a "deep and bitter prejudice" in the community. "This Court cannot conclude that, in this age of digital communication, the published opinions of certain of the citizens in this particular community constitute grounds for presuming that a fair trial could not be conducted." Luong, 199 So.3d at 147.

         Based on the record before us, we cannot say that the media coverage in this case so pervasively saturated the community as to create an emotional tide against Floyd that rendered the court proceedings nothing more than a hollow formality. The publicity in this case was not so extensive and so inherently prejudicial as to constitute one of those "extreme situations" that warrant a presumption of prejudice.

         For these reasons, the trial court properly denied Floyd's motion for a change of venue.

         IV.

         Floyd also contends that the trial court erred in denying his motion for funds to hire a polling expert. (Issue XXI in Floyd's brief.) Specifically, Floyd argues that "a polling expert was necessary to evaluate the community's bias" given the media's "inflammatory coverage of the offense, and the enhanced prejudice resulting from the small community." (Floyd's brief, p. 94.)

         To be entitled to funds to pay for an expert, a defendant "must show more than a mere possibility that he or she will receive useful assistance from the expert." Ex parte Dobyne, 672 So.2d 1354, 1357 (Ala. 1995). "[F]or an indigent defendant to be entitled to expert assistance at public expense, he must show a reasonable probability that the expert would be of assistance in the defense and that the denial of expert assistance would result in a fundamentally unfair trial." Ex parte Moody, 684 So.2d 114, 119 (Ala. 1996).

         In Ex parte Grayson, 479 So.2d 76 (Ala. 1985), the Alabama Supreme Court noted that "'[t]he proper manner for ascertaining whether adverse publicity may have biased the prospective jurors is through the voir dire examination, ' Anderson v. State, 362 So.2d 1296, 1299 (Ala.Crim.App.1978), not through extensive and expensive surveys." 479 So.2d at 80. Subsequently, in Travis v. State, 776 So.2d 819 (Ala.Crim.App.1997), aff'd, 776 So.2d 874 (Ala. 2000), this Court echoed that sentiment, noting that "the proper method to determine whether a prospective juror is biased is through voir dire, not through opinion polls, " and we upheld the trial court's denial of the defendant's request for funds for a pollster on the ground that the defendant had "failed to establish a need for a pollster because the same information was available to him at trial through voir dire examination." 776 So.2d at 872. See also Riley v. State, 166 So.3d 705, 734 (Ala.Crim.App.2013); Perkins v. State, 808 So.2d 1042, 1066 n.3 (Ala.Crim.App.1999), judgment vacated on other grounds, 536 U.S. 953 (2002); Hart v. State, 612 So.2d 520, 527 (Ala. Crim. App.), aff'd, 612 So.2d 536 (Ala. 1992); and Holladay v. State, 549 So.2d 122, 126 (Ala.Crim.App.1988), aff'd, 549 So.2d 135 (Ala. 1989) (all upholding a trial court's denial of a defendant's request for funds for polling).

         Similarly, here, Floyd has failed to establish a need for a polling expert. Voir dire in this case was extensive and thorough, lasting seven days, and the trial court permitted the parties to question individually each juror who indicated that he or she had read or heard about the case. Floyd was able to determine who had been exposed to pretrial publicity and the extent of that exposure through voir dire examination. A polling expert was unnecessary. Therefore, the trial court properly denied Floyd's motion for funds for a polling expert.

         V.

         Floyd contends that the trial court erred in allowing the venire to be death-qualified. (Issue XXIV in Floyd's brief.)[6]Specifically, Floyd argues that death-qualifying prospective jurors disproportionately excludes minorities and women from the jury and results in a conviction-prone jury. However, "[t]he practice of death-qualifying juries has been repeatedly held to be constitutional." Townes v. State, [Ms. CR-10-1892, December 18, 2015] ___ So.3d ___, ___ (Ala.Crim.App.2015). See also Johnson v. State, 823 So.2d 1, 14 (Ala.Crim.App.2001), and the cases cited therein. Therefore, we find no error on the part of the trial court in allowing the venire to be death-qualified.

         VI.

         Floyd contends that the trial court improperly limited his voir dire examination of prospective jurors regarding their views on the death penalty, in violation of Morgan v. Illinois, 504 U.S. 719 (1992). (Issue XVII in Floyd's brief.) Specifically, Floyd argues that the trial court erred in refusing to allow him to ask prospective jurors a hypothetical question about what factors they would consider in deciding a sentence if they were seated as jurors in an unrelated high-profile case involving a shooting in a Colorado movie theater.

         During voir dire of the first panel of prospective jurors, [7] defense counsel asked prospective jurors if they had followed any high-profile criminal cases in the media, such as the theater shooting in Colorado. Several jurors indicated that they had. Defense counsel then asked:

"In that particular case, imagine -- if you would, let's just pretend for a second that we're not here in Escambia County, Alabama, that we're in Aurora, Colorado, and that you're on that jury out there. And just hypothetically speaking. And you understand that anything we say about that case in no way has any reflection on this case here. That's a case in another court in another place and you realize we're not talking about this.
"If you were -- if you were on that case out there, on that jury, and you and 11 other jurors heard all the testimony in that case, you were there for however long that trial lasted, and you found that you didn't hear any testimony that would have made you think there was self-defense involved; in other words --"

(R. 1471-72.)

         At that point, the trial court interrupted defense counsel and, at a bench conference, asked defense counsel to clarify the purpose of the question. Defense counsel indicated that he wanted to ask prospective jurors about their views on the death penalty and what factors they would consider in making a penalty-phase decision but that he did not want to mention any of the facts of Floyd's case for fear of tainting the panel. The State asserted that defense counsel could simply ask jurors their views on capital punishment without using a hypothetical about an unrelated case. The trial court agreed and limited defense counsel to questioning the jury about "issues that will assist [counsel] in helping [counsel] choose a jury" and instructed defense counsel to not use "hypotheticals that don't even -- that are just made up like this." (R. 1477.) The court specifically noted that no jury trial had yet been held regarding the theater shooting in Colorado. The trial court also noted that it "may give [counsel] some liberties" (R. 1478) and "permit [counsel] to explore some of these issues when we get these people in here individually" but the court instructed defense counsel not to "put this entire panel through a hypothetical trial." (R. 1479.) Defense counsel then continued voir dire without using the hypothetical question. The record reflects that defense counsel thoroughly questioning each panel of jurors regarding the jurors' views on the death penalty and also questioned many of the jurors individually.

         Rule 18.4(c), Ala. R. Crim. P., provides that "[t]he court shall permit the parties or their attorneys to conduct a reasonable examination of prospective jurors." In Morgan, supra, the United States Supreme Court held that a capital defendant is entitled to question prospective jurors about their views on the death penalty and to strike for cause those prospective jurors who would automatically impose the death penalty if the defendant is found guilty of the capital charge. However, "[t]he right to question veniremembers regarding their qualifications to serve on the jury or their interest or bias is limited by propriety and pertinence and is to be exercised within the sound discretion of the trial court, and the questions must be reasonable under the circumstances of the case." Smith v. State, 698 So.2d 189, 198 (Ala.Crim.App.1996), aff'd, 698 So.2d 219 (Ala. 1997). See also Rule 18.4(d), Ala. R. Crim. P. ("Voir dire examination of prospective jurors shall be limited to inquiries directed to basis for challenge for cause or for obtaining information enabling the parties to knowledgeably exercise their strikes."). "In selecting a jury for a particular case, 'the nature, variety, and extent of the questions that should be asked prospective jurors' must be left largely within the sound discretion of the trial court." Bracewell v. State, 447 So.2d 815, 821 (Ala.Crim.App.1983), aff'd, 447 So.2d 827 (Ala. 1984) (quoting Peoples v. State, 375 So.2d 561, 562 (Ala.Crim.App.1979)). "A trial court is vested with great discretion in determining how voir dire examination will be conducted, and the court's decision as to the extent of voir dire examination required will not be overturned except for an abuse of that discretion." Travis v. State, 776 So.2d 819, 835 (Ala.Crim.App.1997), aff'd, 776 So.2d 874 (Ala. 2000).

         The trial court's limiting Floyd's use, during panel voir dire, of a hypothetical question regarding what factors prospective jurors would consider in deciding a sentence if they were seated as jurors in an unrelated, factually dissimilar case they had seen in the media did not violate Morgan, supra. Floyd was permitted to, and did, question prospective jurors extensively regarding their views on the death penalty and whether they would automatically vote to impose the death penalty upon conviction. The trial court did not abuse its discretion in limiting the form of the questions used by defense counsel to obtain that information. Therefore, Floyd is entitled to no relief on this claim.

         VII.

         Floyd contends that the trial court erred in not investigating alleged juror misconduct that occurred during voir dire. (Issue XIV in Floyd's brief.) Specifically, Floyd argues that the trial court should have investigated when a prospective juror indicated that she had heard about the case from another prospective juror on the first day of voir dire. Floyd did not request that the trial court conduct an investigation into the alleged misconduct, nor did he object when the trial court did not do so sua sponte. Therefore, we review this claim for plain error. See Rule 45A, Ala. R. App. P.

         During panel voir dire, prospective juror S.J. indicated that she had heard about the case. During individual voir dire of S.J., the following occurred:

"[Floyd's counsel]: [S.J.] You had indicated that you had read something in the newspaper or saw something on television or some kind of news media regarding this.
"[Prospective Juror S.J.] No. It was no[t] real media. That's why I said I heard something, but it was not through the media. I didn't know anything until I got here and Judge Rice said something about a criminal case. And the person sitting next to me told me of three criminal cases that were in the paper. And I feel like -- well, that was all, but I thought I needed to ....
"[Floyd's counsel]: Do you have any - hearing that or anything else that you may have heard, did that cause you to have a fixed opinion as to the guilt or innocence of Mr. Floyd?
"[Prospective Juror S.J.]: No."

(R. 2310-11.) No further questions were asked of S.J. by the trial court or the parties.

         Relying on Holland v. State, 588 So.2d 543 (Ala.Crim.App.1991), and similar cases, Floyd argues that the trial court was required to investigate the conversation between S.J. and another prospective juror "to determine which veniremember discussed the media coverage during voir dire" and "whether any other veniremember on the panel heard the comments" and that the trial court's failure to do so denied him his rights to due process, to a fair trial, and to a reliable sentence. (Floyd's brief, p. 86.)

         Floyd's argument is premised on the notion that the conversation between S.J. and the other prospective juror on the first day of voir dire amounted to misconduct. It did not. The record indicates that on the first day of voir dire, after the trial court had administered the oath to prospective jurors and had asked general qualifying questions, the court informed the venire that there were several criminal cases set for trial that week, most of which would last only one or two days, but one of which could last as long as two weeks. According to S.J., it was at this point that another prospective juror informed her of three criminal cases that had been reported in the newspaper. However, at this point in the process, the jurors had not been instructed not to discuss the cases or their jury service. It was not until the venire was later divided into two groups -- one group for Floyd's trial and one group for the other criminal trials scheduled that week -- and voir dire specific to Floyd's case began that the trial court instructed the jurors not to discuss Floyd's case or their jury service.

         Unlike in Holland, in which a prospective juror expressed to other prospective jurors her opinion that the defendant was guilty after being specifically instructed by the trial court not to discuss the case, the prospective juror in this case, after the trial court had informed the venire that there were several criminal cases set for trial, simply commented to S.J. about three criminal cases that had been reported in the media. That comment did not violate any instructions by the court and did not constitute misconduct. Because there was no misconduct, there was no need for the trial court to conduct an investigation.

         Moreover, in Luong v. State, 199 So.3d 173 (Ala.Crim.App.2015), this Court recognized that

"'[t]here is no per se rule requiring an inquiry in every instance of alleged [juror] misconduct.' United States v. Hernandez, 921 F.2d 1569, 1577 (11th Cir. 1991). '[A] trial judge "has broad flexibility in such matters, especially when the alleged prejudice results from statements by the jurors themselves, and not from media publicity or other outside influences."' United States v. Peterson, 385 F.3d 127, 134 (2nd Cir. 2004), quoting in turn United States v. Thai, 29 F.3d 785, 803 (2d Cir. 1994)."

199 So.3d at 186. This Court further recognized that when juror misconduct is alleged to have occurred during voir dire, "the voir dire process itself [is] sufficient to uncover bias." Id., citing State v. Vazquez, 87 Conn.App. 792, 867 A.2d 15 (2005).

         Voir dire examination in this case was extensive, lasting seven days and spanning over 1400 pages in the record. Prospective jurors were initially questioned in panels, but those who indicated that they had heard about the case, as well as others, were questioned individually. Of the prospective jurors who indicated that they had heard about the case, S.J. was the only prospective juror who said that she had heard about the case from another prospective juror. Based on the circumstances in this case, the trial court was not required to conduct an investigation into the conversation between S.J. and the other prospective juror.

         For these reasons, we find no error, much less plain error, as to this claim.

         VIII.

         Floyd contends that the State exercised its peremptory strikes in a racially discriminatory manner in violation of Batson v. Kentucky, 476 U.S. 79 (1986). (Issue XI in Floyd's brief.) Specifically, Floyd argues that the State struck 15 of 22 African-American prospective jurors from the venire, that many of the African-American prospective jurors who were struck answered questions similarly to Caucasian prospective jurors who were not struck, and that the State engaged in disparate questioning of African-American and Caucasian prospective jurors. Floyd did not raise a Batson motion in the trial court; therefore, we review this claim for plain error. See Rule 45A, Ala. R. App. P.

         As noted previously, "plain error must be obvious on the face of the record. A silent record, that is a record that on its face contains no evidence to support the alleged error, does not establish an obvious error." Ex parte Walker, 972 So.2d 737, 753 (Ala. 2007). Thus, "[f]or an appellate court to find plain error in the Batson context, the court must find that the record raises an inference of purposeful discrimination by the State in the exercise of its peremptory challenges." Saunders v. State, 10 So.3d 53, 78 (Ala.Crim.App.2007).

"The following are illustrative of the types of evidence that can be used to raise the inference of discrimination:
"1. Evidence that the 'jurors in question share[d] only this one characteristic -- their membership in the group -- and that in all other respects they [were] as heterogeneous as the community as a whole.' [People v.] Wheeler, 22 Cal.3d [258, ] 280, 583 P.2d [748, ] 764, 148 Cal.Rptr. [890, ] 905 [(1978)]. For instance 'it may be significant that the persons challenged, although all black, include both men and women and are a variety of ages, occupations, and social or economic conditions, ' Wheeler, 22 Cal.3d at 280, 583 P.2d at 764, 148 Cal.Rptr. at 905, n.27, indicating that race was the deciding factor.
"2. A pattern of strikes against black jurors on the particular venire; e.g., 4 of 6 peremptory challenges were used to strike black jurors. Batson, 476 U.S. at 97, 106 S.Ct. at 1723.
"3. The past conduct of the state's attorney in using peremptory challenges to strike all blacks from the jury venire. Swain [v. Alabama, 380 U.S. 202 (1965)].
"4. The type and manner of the state's attorney's questions and statements during voir dire, including nothing more than desultory voir dire. Batson, 476 U.S. at 97, 106 S.Ct. at 1723; Wheeler, 22 Cal.3d at 281, 583 P.2d at 764, 148 Cal.Rptr. At 905.
"5. The type and manner of questions directed to the challenged juror, including a lack of questions, or a lack of meaningful questions. Slappy v. State, 503 So.2d 350, 355, (Fla. Dist. Ct. App. 1987); People v. Turner, 42 Cal.3d 711, 726 P.2d 102, 230 Cal.Rptr. 656 (1986); People v. Wheeler, 22 Cal.3d 258');">22 Cal.3d 258, 583 P.2d 748, 764, 148 Cal.Rptr. 890');">148 Cal.Rptr. 890 (1978).
"6. Disparate treatment of members of the jury venire with the same characteristics, or who answer a question in the same or similar manner; e.g., in Slappy, a black elementary school teacher was struck as being potentially too liberal because of his job, but a white elementary school teacher was not challenged. Slappy, 503 So.2d at 352 and 355.
"7. Disparate examination of members of the venire; e.g., in Slappy, a question designed to provoke a certain response that is likely to disqualify a juror was asked to black jurors, but not to white jurors. Slappy, 503 So.2d at 355.
"8. Circumstantial evidence of intent may be proven by disparate impact where all or most of the challenges were used to strike blacks from the jury. Batson, 476 U.S. at 93, 106 S.Ct. at 1721; Washington v. Davis, 426 U.S. [229, ] 242, 96 S.Ct. [2040, ] 2049 [(1976)].
"9. The state used peremptory challenges to dismiss all or most black jurors. See Slappy, 503 So.2d at 354, Turner, supra."

Ex parte Branch, 526 So.2d 609, 622-23 (Ala. 1987).

         We have thoroughly reviewed the record of voir dire examination, and after considering Floyd's arguments and the factors in Ex parte Branch, we find no inference in the record that the State engaged in purposeful discrimination against African-American prospective jurors when exercising its peremptory strikes. Therefore, we find no plain error as to this claim.

         Guilt-Phase Issues

         IX.

         Floyd contends that the trial court erred in denying his counsel's motion to withdraw on the ground that counsel had a conflict of interest. (Issue V in Floyd's brief.) Floyd argues that counsel had an actual conflict of interest and that counsel's conflict was so great that it "damaged the attorney-client relationship beyond repair." (Floyd's brief, p. 44.) The trial court's denial of counsel's motion to withdraw, Floyd maintains, denied him his Sixth Amendment right to counsel and his rights to due process, a fair trial, and a reliable verdict.

         The record reflects that the guilt phase of the trial began on Thursday, September 26, 2013. After opening statements and testimony from several prosecution witnesses over the course of two days, the trial recessed Friday afternoon for the weekend. Before trial resumed on Monday, September 30, 2013, defense counsel filed a demand for an emergency ex parte hearing to be held outside the presence of the State and outside Floyd's presence. At the hearing, defense counsel, through two attorneys they had retained to represent them, [8] informed the trial court that they wanted to withdraw from representing Floyd on the ground of conflict of interest, and they filed with the court a written motion to withdraw, alleging that "the Alabama Rules of Professional Conduct require that the undersigned attorneys withdraw" but that "the attorney-client privilege prevent[s] them from disclosing statements and conduct by the client which gives rise to this request." (C. 2010-11.)

         Defense counsel informed the trial court at the hearing that, around noon on Friday, defense counsel had been discussing some of the witnesses the State had subpoenaed to testify when Floyd told counsel "that their concern about a particular witness subpoenaed by the State was not necessary because he had made contact with [another person] and asked her to call this witness and advise the witness not to show up."[9] (R. 2965.) Counsel later clarified that only one of them had heard Floyd's statement. Counsel also informed the court that Floyd had contacted the person "on a secure line, " which counsel indicated was "jail speak" for a cellular telephone. (R. 2968.) Counsel told the court that they believed that Floyd's self-reported action constituted the crime of tampering with a witness, see § 13A-10-124, Ala. Code 1975, and as soon as the trial recessed Friday afternoon, they had contacted two attorneys to advise them as to the best course of action. Those attorneys advised defense counsel not to "have any further contact with this defendant under any such circumstances" and "to seal their boxes [and] notify their investigators to shut down all proceedings, " which defense counsel did. (R. 2966-67.)

         Defense counsel argued that it would be "difficult" for them to continue to represent Floyd "knowing that he is out there continuing to violate the law." (R. 2978.) According to counsel, they had "felt this concern all along" and had feared "what this guy was doing, " (R. 2980), and they characterized Floyd as a "loose cannon." (R. 3016.) When the trial court indicated that it was considering calling to testify at the hearing both the witness at issue and the person Floyd had allegedly contacted, counsel argued against such testimony, noting that it could possibly alert the State and/or Floyd to the situation. Defense counsel noted that they had not informed Floyd about the reason for the ex parte hearing or his absence therefrom, despite the fact that, during a recess in the hearing, Floyd had asked what was happening.

         Counsel asserted, however, that "Floyd's past conduct, which includes escape, promoting prison contraband, and other conduct that we are privy to" made it "highly, highly probable" that Floyd was telling the truth about his actions. (R. 3006-07.) Defense counsel argued that they had "lost all trust and faith" in Floyd, and that, as a result, they could not "honestly go forward, based upon this information, and provide him with adequate representation as required under the constitution." (R. 3009.) Defense counsel said that they had spent the entire weekend consulting with their retained attorneys, as well as other attorneys, and that they had concluded that "[t]here is not a path that can go forward with us as counsel." (R. 2995.) Counsel repeatedly pointed out during the hearing that Floyd's constitutional rights were of paramount importance and had to be protected. When specifically asked by the trial court if they could "continue fighting and scraping and clawing like they have been" if the court denied their motion to withdraw, counsel indicated that they could not, "[i]f for no other reason than they can't monitor [Floyd] 24 hours a day." (R. 3003-04.)

         Defense counsel also sought guidance from the trial court on how to handle the situation with Floyd if their motion to withdraw was denied. Counsel noted that, if they informed Floyd of the reason for the ex parte hearing, Floyd would in all likelihood lose trust in them, as they had in him, and would request that they be removed as counsel. On the other hand, to not inform Floyd of the reason for the hearing would result in Floyd's not being made aware that what he had allegedly done was improper and could be viewed by Floyd as defense counsel's implicit approval of Floyd's attempting to contact a State's witness. Defense counsel pointed out that they did not believe that Floyd "realized that what he was telling [defense counsel] would cause these consequences." (R. 3009.) After the trial court denied the motion to withdraw, defense counsel indicated that they believed Floyd had a right to know what had happened during the ex parte hearing. However, the record does not reflect whether counsel informed Floyd about what had happened during the hearing.

         Throughout the hearing, the trial court expressed concern that Floyd was attempting to "manipulate the Court." (R. 2974.) The court noted that the only remedy if it granted the motion to withdraw was to declare a mistrial because it would be impossible for a newly appointed attorney to take over the case mid-trial. The court expressed concern with such a scenario, noting that a criminal defendant could provoke a mistrial simply by telling counsel that he or she had contacted a State's witness, even if no such contact had occurred. The court said that it was "troubled by any defendant in a capital murder case, just every time coming up with, probably go on the Internet, how to find ways to mistry your case. Allege this or say this or look cross-eyed. I mean, I don't want this defendant, or any defendant, to be in control of this trial." (R. 2997.) The court explained:

"But this is the problem I'm having, too, is, I mean -- and I'm not saying that I'd rule this way, but, I mean, what would prevent a defendant in any case to lean over to his counsel and say, Well, I sent somebody out to get that old State's witness. Or I sent a smoke signal out of the jail telling, better not show. I mean, he is, in a way, manipulating this Court."

(R. 3005.) The court noted that it could all be a ruse by Floyd and that it was not satisfied that Floyd "didn't just make it up." (R. 3006.) The court later stated it was "not totally convinced that this is a lost trial and that I'm not able to continue it, other than your representation that there is no way defense counsel could go forward representing this fellow." (R. 3015.)

         After a recess, the trial court denied defense counsel's motion to withdraw. The court noted that it was "not unmindful of the pressure [its ruling] puts on defense counsel, " but it expressed confidence in defense counsel's abilities to continue representing Floyd. (R. 3027-8.) After the ex parte hearing concluded, defense counsel refiled their motion to withdraw in open court, with Floyd present. Defense counsel subsequently filed a petition for a writ of mandamus, which this Court denied by order (case no. CR-12-2094).

         "The decision to substitute or to remove court-appointed counsel and to appoint new counsel for an accused rests within the sound discretion of the trial court." Snell v. State, 723 So.2d 105');">723 So.2d 105, 107 (Ala.Crim.App.1998). To warrant a substitution of counsel, there must be an actual conflict of interest or an irreconcilable conflict between counsel and the defendant so great that it resulted in a total lack of communication that prevented an adequate defense. See Snell, 723 So.2d at 107. See also Scott v. State, 937 So.2d 1065, 1080 (Ala.Crim.App.2005); Boldin v. State, 585 So.2d 218, 219 (Ala.Crim.App.1991); and Ex parte Bell, 511 So.2d 519, 522 (Ala.Crim.App.1987). To prevail on an actual-conflict-of-interest claim under the Sixth Amendment, "a defendant must establish that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 350 (1980).

"To prove that an actual conflict adversely affected his counsel's performance, a defendant must make a factual showing 'that his counsel actively represented conflicting interests, ' Cuyler v. Sullivan, 446 U.S. at 350, 100 S.Ct. at 1719, '"and must demonstrate that the attorney 'made a choice between possible alternative courses of action, such as eliciting (or failing to elicit) evidence helpful to one client but harmful to the other.'"' Barham v. United States, 724 F.2d 1529, 1532 (11th Cir.) (quoting United States v. Mers, 701 F.2d 1321, 1328 (11th Cir. 1983)), cert. denied, 467 U.S. 1230, 104 S.Ct. 2687, 81 L.Ed.2d 882 (1984)."

Molton v. State, 651 So.2d 663, 669 (Ala.Crim.App.1994).

         In Scott, supra, this Court addressed a similar issue and explained:

"A trial court has broad discretion in considering whether to grant defense counsel's motion to withdraw. Unless defense counsel establishes an actual conflict of interest or an irreconcilable conflict between counsel and the defendant, the trial court's denial of the motion to withdraw will not be overturned. E.g., Ex parte Bell, 511 So.2d 519, 522 (Ala.Crim.App.1987). We have previously discussed the principles relevant to appellate review of a motion to withdraw.
"'"'[T]he decision whether to remove an appointed counsel and appoint another counsel for defendant is within the sound discretion of the trial court.' Crawford v. State, 479 So.2d 1349, 1355 (Ala. Cr. App. 1985). See also, Tudhope v. State, 364 So.2d 708 (Ala. Cr. App. 1978).... The right to choose counsel may not be subverted to obstruct the orderly procedure in the court or to interfere with the fair administration of justice. United States v. Sexton, 473 F.2d 512 (5th Cir. 1973)."
"'Briggs v. State, 549 So.2d 155, 160 (Ala.Crim.App.1989).
"'"In order to prevail on a motion for substitution of counsel, the accused must show a demonstrated conflict of interest or the existence of an irreconcilable conflict so great that it has resulted in a total lack of communication that will prevent the preparation of an adequate defense." Snell v. State, [723 So.2d 105, 107 (Ala.Crim.App.1998)]. In Wilson v. State, 753 So.2d 683 (Fla. Dist. Ct. App. 2000), a defendant moved to have his counsel dismissed. When asked on what grounds he wished to have his counsel dismissed, the defendant responded that counsel had not conferred with him about the law and that he had lost faith in counsel. The trial court responded that he found defense counsel's performance to have been exemplary; however, '[c]onsistent with his behavior throughout the trial, the defendant refused to remain silent after the trial judge's rulings, ' supra at 686. The trial court denied the appellant's motion, and the Florida Appellate Court upheld that decision, stating:
"'"'[T]rial courts are given broad discretion to determine whether a motion to withdraw should be granted.... The primary responsibility of the Court is to facilitate the orderly administration of justice. In making the decision of whether to grant counsel permission to withdraw, the trial court must balance the need for orderly administration of justice with the fact that an irreconcilable conflict exists between counsel and the accused. In doing so, the Court must consider the timing of the motion, the inconvenience to the witnesses, the period of time elapsed between the date of the alleged offense and trial, and the possibility that any new counsel would be confronted with the same conflict. As long as the trial court has a reasonable basis for believing that the attorney-client relation has not deteriorated to a point to where counsel can no longer give effective aid in the fair presentation of a defense, the Court is justified in denying a motion to withdraw. The decision of a trial court to deny a motion to withdraw will not be disturbed absent a clear abuse of discretion.'"
"'Wilson v. State, 753 So.2d at 688, quoting Sanborn v. State, 474 So.2d 309, 314 (Fla. Dist. Ct. App. 1985) (citations omitted).
"'In the present case, the appellant has made no such showing that a conflict of interest or an irreconcilable conflict exists. Although the appellant alleged that his counsel visited him infrequently, he made no showing of a "total lack of communication, " which would have prevented the preparation of a sufficient defense; all the appellant has demonstrated is a possible lack of "a meaningful relationship" or a lack of "confidence in court-appointed counsel, " neither of which is guaranteed him under the United States Constitution or Alabama Constitution 1901. Therefore, the trial court did not abuse its discretion by failing to substitute or remove court-appointed counsel and appoint a new counsel for the appellant.'
"Baker v. State, 906 So.2d 210, 226-27 (Ala.Crim.App.2001), rev'd on other grounds, 906 So.2d 277 (Ala. 2004).
"Scott contends that an actual conflict of interest existed. Defense counsel presented no evidence to support this assertion when they filed the motion to withdraw, and they did not present any evidence in support of this claim during the hearing on the motion for a new trial. In fact, when defense counsel raised the issue in the motion for a new trial, they stated that they had moved to withdraw 'because of the conflict that was created, not by -- not by anyone other than the defendant, himself. He created a conflict, not by -- it wasn't created by the Court, it wasn't created by the State, but it was created by the defendant and some potential witnesses.' (R. 1152-53.)
"As the State has argued, Scott failed to demonstrate either that a conflict of interest existed or that the alleged conflict adversely affected counsel's performance. Without such proof, Scott has failed to establish a constitutional violation. Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).
"Furthermore, the motion to withdraw was made on the morning of trial, after nearly three years had passed from the date of the crimes; without question, the witnesses who had appeared for trial would have been inconvenienced if the motion had been granted. Finally, because Scott failed even to allege any facts regarding the nature of the controversy, it was possible, if not probable, that new counsel would be confronted with the same conflict. These factors, too, supported the trial court's denial of the motion to withdraw. See Baker v. State, 906 So.2d at 226-27. The trial court had a reasonable basis for denying the motion to withdraw. No abuse of discretion occurred, and Scott is not entitled to any relief on this claim."

Scott, 937 So.2d at 1080-82.

         At the ex parte hearing, defense counsel presented no evidence indicating that they had an actual conflict of interest that adversely affected their performance or that there existed an irreconcilable conflict that resulted in a "total lack of communication." Counsel merely argued that it would be "difficult" for them to continue representing Floyd because they had lost "faith and trust" in Floyd, they believed that he was "out there continuing to violate the law, " and they could not "monitor him 24 hours a day." However, as the trial court repeatedly pointed out at the hearing, there was no evidence indicating that Floyd had, in fact, contacted anyone about any State's witness, or would do so in the future, or that any State's witness had been contacted and asked not to testify. Lack of trust in a client does not establish an actual conflict of interest or an irreconcilable conflict so great that it results in a total lack of communication.

         On appeal, Floyd argues that counsel's actions in spending a weekend investigating and preparing their motion to withdraw instead of working on his case, not informing Floyd on the record about the reasons they had filed the motion to withdraw and what had transpired during the hearing, [10]revealing to the trial court Floyd's statement that he had tampered with a witness, [11] and arguing that they believed Floyd's statement because of Floyd's other crimes[12] establish that counsel had an actual conflict of interest and an irreconcilable conflict so great that it resulted in a total lack of communication. In other words, Floyd argues that the very fact that counsel investigated the best course of action to take in response to his statement that he had tampered with a witness and then moved to withdraw from representing him establishes a conflict. We disagree. The fact that an attorney spends time trying to determine what action is appropriate under the Alabama Rules of Professional Conduct and then moves to withdraw from representation does not establish that the attorney had an actual conflict of interest that adversely affected the attorney's performance or that there existed an irreconcilable conflict that resulted in a total lack of communication with the client.

         Counsel's actions here did not amount to the active representation of conflicting interests and do not establish that counsel made choices between alternative courses of action that were harmful to Floyd. As counsel pointed out at the ex parte hearing, the "paramount obligation" was protecting the "constitutional rights of the defendant." (R. 3004.) It is clear from the record that counsel's extensive work on the issue of Floyd's alleged witness tampering, and their ultimate decision to move to withdraw from representing Floyd, was not to represent their own interests, but to ensure that Floyd's constitutional rights were protected. Indeed, the fact that counsel struggled with the issue for two days reflects counsel's acute awareness of their duty of loyalty to their client. Counsel's actions also do not indicate that there was a "total lack of communication" between counsel and Floyd. At most, counsel's actions reflect that they were not comfortable representing Floyd because they did not trust him. Despite that lack of trust, however, the record reflects that defense counsel vigorously defended Floyd throughout the trial. See, e.g., Nix v. State, 747 So.2d 351, 354 (Ala.Crim.App.1999) ("Where, as here, the record indicates that counsel was well prepared and represented the appellant ably and skillfully, the trial court's refusal to allow a substitution of the appellant's counsel is not an abuse of discretion.").

         Moreover, defense counsel filed their motion to withdraw on the 3d day of the guilt phase of the trial -- the 11th day of the trial overall -- almost three years after the crime had been committed. There is no doubt that the witnesses who had appeared for trial would have been inconvenienced if counsel's motion had been granted and a mistrial declared. Additionally, as the trial court noted at the ex parte hearing, there was no evidence indicating that Floyd had, in fact, tampered with a witness, only that Floyd had told his counsel that he had. The trial court's concern that Floyd was simply trying to manipulate the court into declaring a mistrial was well founded, given Floyd's repeated misconduct while awaiting trial and during the trial. See Part II of this opinion. Finally, whether Floyd actually tampered with a witness or simply told his counsel that he had in order to provoke a mistrial, it is probable that new counsel would be confronted with the same alleged "conflict."

         Under the circumstances in this case, we find no abuse of discretion on the part of the trial court in denying defense counsel's motion to withdraw.

         X.

         Floyd contends that the trial court erred in refusing to allow him to cross-examine Tramescka Peavy regarding whether her relationship with Jones's daughter, Ky'Toria, was romantic. (Issue XIII in Floyd's brief.) Specifically, Floyd argues that a romantic relationship between Peavy and Ky'Toria would have established that Peavy was biased against him and had a motive to testify against him.

"It is well settled that '[a] party is entitled to a thorough and sifting cross-examination of the witnesses against him, ' McMillian v. State, 594 So.2d 1253, 1261 (Ala.Crim.App.1991), remanded on other grounds, 594 So.2d 1288 (Ala. 1992), opinion after remand, 616 So.2d 933 (Ala.Crim.App.1993), citing Perry v. Brakefield, 534 So.2d 602 (Ala. 1988), and § 12-21-137, Ala. Code 1975, and that a party should be given 'wide latitude on cross-examination to test a witness's partiality, bias, intent, credibility, or prejudice, or to impeach, illustrate, or test the accuracy of the witness's testimony or recollection as well as the extent of his knowledge.' Williams v. State, 710 So.2d 1276, 1327 (Ala.Crim.App.1996), aff'd, 710 So.2d 1350 (Ala. 1997), cert. denied, 524 U.S. 929, 118 S.Ct. 2325, 141 L.Ed.2d 699 (1998). It is equally well established, however, 'that the latitude and extent of cross-examination are matters which of necessity rest largely within the sound discretion of the trial court, and rulings with respect thereto will not be revised on appeal except in extreme cases of abuse.' Long v. State, 621 So.2d 383, 388 (Ala.Crim.App.1993), cert. denied, 510 U.S. 932, 114 S.Ct. 345, 126 L.Ed.2d 310 (1993), quoting Beavers v. State, 565 So.2d 688, 689 (Ala.Crim.App.1990). 'The trial judge may reasonably limit the range of cross-examination on matters that are repetitious, argumentative, ...

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