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Ex parte Phillips

Supreme Court of Alabama

October 19, 2018

Ex Parte Jessie Livell Phillips
v.
State of Alabama In re: Jessie Livell Phillips

          Marshall Circuit Court, CC-09-596; Court of Criminal Appeals, CR-12-0197

          PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS

          BOLIN, Justice.[1]

         Jessie Livell Phillips was convicted in the Marshall Circuit Court of the capital offense of murder of "two or more persons" for the intentional killing of his wife, Erica Phillips, [2] and their unborn child ("Baby Doe") "by one act or pursuant to one scheme or course of conduct." § 13A-5-40(a)(10), Ala. Code 1975. The jury unanimously recommended that he be sentenced to death. Following a sentencing hearing, the trial court accepted the jury's recommendation and sentenced Phillips to death. The Court of Criminal Appeals affirmed Phillips's conviction but remanded the case for the trial court to address certain defects and errors in its sentencing order. Phillips v. State, [Ms. CR-12-0197, Dec. 18, 2015] ___ So.3d ___ (Ala.Crim.App.2015) ("Phillips I").

         On remand, the trial court conducted another sentencing hearing during which the parties addressed, among other things, the scope of the Court of Criminal Appeals' remand instructions and what impact, if any, the United States Supreme Court's decision in Hurst v. Florida, 577 U.S. ___, 136 S.Ct. 616 (2016), had on Phillips's case. On return to remand, the Court of Criminal Appeals affirmed Phillips's sentence of death. Phillips v. State, [Ms. CR-12-0197, Oct. 21, 2016] ___ So.3d ___ (Ala.Crim.App.2015)(opinion on return to remand) ("Phillips II").

         We granted certiorari review as to 13 issues raised in Phillips's petition related to jury instructions on transferred intent and intent and knowledge; the application of § 13A-1-6, Ala. Code 1975, known as "the Brody Act," to the facts of this case; the chain of custody of a urine sample taken during Erica's autopsy and used to conduct a pregnancy test and the requirements of the Confrontation Clause in regard to the sample; the trial court's consideration of nonstatutory aggravating circumstances; the use of peremptory strikes under Batson v. Kentucky, 476 U.S. 79');">476 U.S. 79');">476 U.S. 79');">476 U.S. 79 (1986); the admission into evidence of an autopsy photograph; the amendment of or material variance from the indictment; the comments that the jury's sentencing verdict was advisory; the "double counting" of capital offenses; and the disparate nature of Phillips's sentencing.

         The facts set out in Phillips I are as follows:

"On February 27, 2009, Phillips, Erica, and their two children met Erica's brother, Billy Droze ('Billy'), at a McDonald's restaurant in Hampton Cove. According to Billy, they all arrived at the McDonald's restaurant at the same time and Phillips and Erica were driving two separate vehicles--Erica was driving a black Ford Explorer Sport Trac truck and Phillips was driving a black Nissan Maxima car. Billy explained that, before that day, he had not seen the Nissan Maxima. Thereafter, Phillips, Billy, Erica, and the two children entered the McDonald's restaurant to eat lunch, and they stayed there for approximately 30 to 45 minutes. While at the restaurant, they decided to all drive to the car wash in Guntersville to visit Erica and Billy's brother, Lance Droze ('Lance'), who was working at the car wash that day.
"According to Billy, they left the restaurant driving three separate vehicles--Erica drove the truck, Phillips drove the car, and Billy drove his vehicle--and they all arrived at the car wash at the same time. Billy explained that they parked each of their vehicles in three separate car-wash 'bays.' When they arrived at the car wash, Billy saw Lance washing a boat in one of the car-wash bays; he exited his vehicle, walked over to Lance, and told him that they were there to see him. Shortly thereafter, Lance finished washing the boat and hauled it away from the car wash, and Billy walked back to his vehicle.
"According to Billy, as he was walking back to his vehicle, he stopped at the car-wash bay in which Erica's truck was parked. Billy stated that Erica was sitting in the driver's seat of the truck and that Phillips was sitting in the rear-passenger seat 'fiddling with' a gun. (R. 505.) ... Soon after, Billy heard Erica yell, 'Help me, Bill' (R. 504), and he went back to where Erica had parked her truck. According to Billy, he 'got there just in time to see [Phillips] kill her.' (R. 505.)
"Billy explained that he saw Phillips and Erica engaged in a 'struggle.' According to Billy, Phillips had Erica 'in a headlock, pointing [the gun] to her head.' (R. 506.) Although she was able to 'break free' from the headlock, within 'seconds' of her doing so, Phillips fired one shot at Erica. Billy then grabbed his niece and nephew, who were both nearby when the shooting occurred, and Phillips told Billy to 'get out of there.' (R. 506.) Billy then put his niece and nephew in his vehicle and drove to get Lance, who, Billy said, was approximately 100 yards away at the Guntersville Boat Mart returning the boat he had just washed. While putting his niece and nephew in his vehicle, Billy saw Phillips drive off in Erica's truck. Billy told Lance what had happened at the car wash, telephoned for help, and took the children away from the car wash.
"Lance then ran toward the car wash and went over to Erica, who was lying on the ground. According to Lance, Erica was lying on her side with her head on her arm, her left eye was swollen, and there was a lot of blood on the ground. Lance explained that Erica could not speak and was having difficulty breathing. Lance 'held her for a few minutes, and ... noticed she was choking and [then] turned her over.' (R. 540.) Soon after, Doug Ware, an investigator with the Guntersville Police Department, arrived at the car wash and told Lance to move.
"....
"Erica was transported to the emergency room at Marshall Medical Center North ('MMCN'). Joann Ray, the charge nurse on duty in the emergency room, explained that Erica was unresponsive, which Ray described as having 'no spontaneous movement ... [and] no verbal communication.' (R. 644.) Ray further explained that Erica had a very shallow respiration -- 'maybe three to six [breaths] a minute.' (R. 645.) According to Ray, it was determined that Erica needed specialized care--specifically, treatment by a neurosurgeon. Because MMCN did not have a neurosurgeon on duty, Erica was transported to a hospital in Huntsville.
"At some point shortly after the shooting, John Siggers, an agent with the Marshall County Drug Enforcement Unit, and Tim Abercrombie, a sergeant with the Albertville Police Department, were meeting about 'drug unit business' at the Albertville police station. During that meeting, Sgt. Abercrombie received a telephone call from someone with the Guntersville Police Department informing him that they were searching for a homicide suspect and providing Sgt. Abercrombie with a description of both the suspect and the vehicle they believed he was driving. Sgt. Abercrombie then told Agent Siggers that they 'were looking for a black Ford Explorer Sport Trac driven by [Phillips], and it was possibly headed to Willow Creek Apartments on Highway 205.' (R. 549.) Thereafter, both Sgt. Abercrombie and Agent Siggers left the Albertville police station to assist in locating Phillips.
"Almost immediately after leaving the parking lot of the Albertville police station, Agent Siggers saw a black Ford Explorer Sport Trac. Agent Siggers explained that he
"'pulled out behind [the vehicle] to run the tag, and as [he] pulled out behind it, [the vehicle] pulled over into the, up against the curb, a parking spot next to Albertville Police Department. At that time, Mr. Phillips step[ped] out of the vehicle.'
"(R. 551.) Agent Siggers explained that Phillips then walked over to the sidewalk 'and stood and looked at [him].' (R. 553.) At that point, Agent Siggers got out of his vehicle with his weapon drawn and Phillips put his hands up, walked toward Agent Siggers, and said, 'I did it. I don't want no trouble.' (R. 553.) Agent Siggers then put Phillips 'up against the hood of his vehicle to put [hand]cuffs on him,' and, while doing so, Phillips told Agent Siggers that the 'gun's in [his] back pocket.' (R. 554.) Agent Siggers then retrieved the gun from Phillips's pocket and 'cleared the weapon.' (R. 555.) According to Agent Siggers, the gun had 'one live round in the chamber and three live rounds in the magazine.' (R. 555.)
"Agent Siggers then walked Phillips to the front door of the Albertville police station and sat him down on a brick retaining wall. Thereafter, Benny Womack, the chief of the Albertville Police Department, walked out and asked Agent Siggers what was going on. Agent Siggers told Chief Womack that Phillips was a 'suspect' in a homicide that had occurred in Guntersville. Phillips, however, interjected and explained to Agent Siggers and Chief Womack that he 'is not a suspect. [He] did it.' (R. 557.) ...
"Investigator [Mike] Turner responded to the car wash to assist Investigator Ware in processing the crime scene. Shortly after arriving, however, Investigator Turner 'found out that [Agent Siggers] had [Phillips] in custody in Albertville.' (R. 619.) Investigator Turner then left the car wash and drove to the Albertville police station. Upon arriving at the Albertville police station, Investigator Turner received from Agent Siggers the gun that had been retrieved from Phillips's pocket. Thereafter, Investigator Turner and Sgt. Abercrombie read to Phillips his Miranda2 rights, which Phillips waived, and questioned him about the shooting at the car wash.
"During that interview, Phillips explained the following: Sometime before February 27, 2009, Erica had purchased a used Lexus from a car dealership in New Hope. That car, however, did not work properly, and, on February 27, 2009, Phillips and Erica returned to the car dealership to try to get their money back. The owners of the car dealership, however, refused to give them their money back and, instead, offered to exchange the Lexus for a used Nissan Maxima. Phillips explained that, rather than losing money on the Lexus that did not work properly, he agreed to the exchange and took the Nissan Maxima. According to Phillips, Erica was not happy with the exchange and began arguing with him.
"After getting the Nissan Maxima, Erica and Phillips drove to a McDonald's restaurant to meet Billy. Phillips explained that, while eating at the restaurant, Erica continued to argue with him, saying, '"What the f*** did you get that Maxima for?" "You dumb-ass n*****, I could have just not took nothing and just left the money there and just said f*** it."' (C. 172.)
"Phillips explained that, after eating at the McDonald's restaurant, he, Billy, and Erica decided to go to the car wash to see Lance. Phillips stated that, before leaving the McDonald's, however, he removed a gun from the glove compartment of Erica's truck and put it in his pocket. Phillips explained that he did so because neither he nor Erica had a permit for the weapon and he did not want her to be in possession of the gun 'in case she got pulled over.' (C. 167.) ...
"According to Phillips, after arriving at the car wash, Erica 'just kept on and kept on and kept on and it just happened.' (C. 168.) Phillips explained that Erica was '[s]till pissed about the Maxima. Still calling [him] "dumb" and "stupid." "You shouldn't have did that."' (C. 177.) Then, Phillips explained, the following occurred:
"'And she's still yelling and cussing and I just said, "Why don't you shut up for a minute and just let it all sink in and calm down and everything." And she just kept cussing and calling me names and--
"'....
"'Well, I had the pistol in my back pocket from when we left McDonald's.
"'....
"'I got the pistol in my back pocket. And she just kept on and kept on and kept on and kept on and I just shot her, got in the car and left.
"'[Investigator Turner]: Where were you aiming?
"'[Phillips]: I wasn't really I just pointed and pulled the trigger . I don't--I still don't know where it hit her. I don't --I'm guessing it did hit her because she fell.'
"(C. 178-80.) Phillips explained that, before he shot her, Erica asked, '"What you going to do with that?"' (C. 180.) According to Phillips, he did not point the gun at her for a long time; rather, he maintained that he 'pulled the trigger, pointed and shot. Put [the gun] back in [his] pocket, got in the truck and left.' (C. 180.) Phillips also explained that he had to step over Erica's body to get in the truck and leave.
"....
"When asked what the shooting was about, Phillips explained:
"'Everything. I mean, you just don't know how it feel to be married to a woman for four years and for the last, I'd say, two years, every day she's bitching at you about something. She called me a n*****. She called me a fa***t. It--I don't know, it just all just added up and I could have found a better way to end it, but--'
"(C. 165.) Additionally, when asked whether he intended to kill Erica, Phillips stated:
"'Like I say, when I pulled that gun out and pointed it at her and pulled the trigger, did I want to kill her? No. Did I pull the trigger? Yes.'
"(C. 208-09.)
"The next day--February 28, 2009--Investigator Turner conducted a second interview with Phillips. ... Investigator Turner explained to Phillips that Erica had died at approximately 1:00 a.m. and that she had been approximately eight weeks pregnant. Phillips explained that he had learned of the pregnancy a couple of weeks before the shooting when Erica had gone to a doctor who had confirmed that she was pregnant.
"____
"2 Miranda v. Arizona, 384 U.S. 436 (1966)." Phillips I, ___ So.3d at ___ (some footnotes omitted).

         I. Standard of Review

         "This Court reviews pure questions of law in criminal cases de novo." Ex parte Key, 890 So.2d 1056, 1059 (Ala. 2003). Further, "'[u]nder the ore tenus standard of review, we must assume the trial court's factual finding ... was correct, and thus we must uphold the order based on that finding unless the court had before it no credible evidence to support that finding.' W.D. Williams, Inc. v. Ivey, 777 So.2d 94, 98 (Ala. 2000)." Ex parte Wilding, 41 So.3d 75, 77 (Ala. 2009).

         II. Analysis

         A. Instruction on Transferred Intent

         Phillips argues that the trial court's instruction that he could be convicted of capital murder of "two or more persons" if the jury found he had the specific intent to kill only Erica violates his right to present a defense, to be presumed innocent, to due process, to fair warning, to a fair trial, and to a reliable conviction and sentence as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Alabama law. Specifically, he contends that the trial court's instruction on "transferred intent" improperly lowered the State's burden of proving each element of capital murder of Baby Doe beyond a reasonable doubt. Phillips asserts that, despite language in the indictment charging that he "intentionally cause[d] the death of Erica Carmen Phillips, by shooting her with a pistol, and did intentionally cause the death of Baby Doe, by shooting Erica Carmen Phillips with a pistol while the said Erica Carmen Phillips was pregnant with Baby Doe," the State requested jury charges that eliminated the requirement that he have the specific intent to kill each victim. "'"Generally speaking, the standard of review for jury instructions is abuse of discretion."'" Chambers v. State, 181 So.3d 429, 443 (Ala.Crim.App.2015)(quoting Arthur v. Bolen, 41 So.3d 745, 749 (Ala. 2010), quoting in turn Pollock v. CCC Invs. I, LLC, 933 So.2d 572, 574 (Fla. Dist Ct. App. 2006)).

         The trial court instructed the jury that "the State of Alabama is not required to prove to you beyond a reasonable doubt that the defendant Jessie Phillips had a specific intent to kill both Erica Phillips and Baby Doe." The court also instructed the jury that, "if the State of Alabama proves to you beyond a reasonable doubt that the defendant Jessie Phillips intended to kill Erica Phillips and also killed an unintended victim, Baby Doe, by a single act, the defendant can be convicted of capital murder." In addition, the court instructed the jury that it is sufficient if the defendant "is proven beyond a reasonable doubt to have caused the death of an intended victim as well as an unintended victim by a single act." Defense counsel objected to those instructions.

         During jury deliberations, the jury sent a note asking specifically if there "ha[s] to be intent to kill 2 people for it to be capital murder" or "is it the result of the murder that the second person was killed without intent." The judge reinstructed the jury that the State was required to prove that Phillips "intended to kill Erica Phillips and also killed an unintended victim." Phillips argues that the instruction on transferred intent diverged from the indictment, the pattern jury instructions, and the law and that it improperly lowered the State's burden to prove each element of the charged offense beyond a reasonable doubt. This Court has not addressed the issue whether the doctrine of transferred intent applies to convict a defendant of capital murder of two or more persons under § 13A-5-40(10), Ala. Code 1975, when the defendant took a single action with intent to harm a single individual but killed both that individual and her unborn child.

         This Court agrees with the reasoning of the Alabama Court of Criminal Appeals on this issue. In Phillips I, that court held:

"Although Phillips correctly contends that 'Alabama law is clear that in order to be guilty of capital murder, a defendant ha[s] to have the specific intent to kill' (Phillips's brief, p. 24), Phillips incorrectly argues that 'Alabama law requires a defendant to have the specific intent to kill each victim.' (Phillips's brief, p. 26 (emphasis added).) Indeed, our caselaw clearly holds otherwise.
"This Court, in Smith v. State, 213 So.3d 108 (Ala.Crim.App.2000), aff'd in part, rev'd in part on other grounds, and remanded, Ex parte Smith, 213 So.3d 214 (Ala. 2003), addressed this issue.
"Specifically, in Smith, Smith was charged with capital murder for causing the death of two or more persons 'by one act or pursuant to one scheme or course of conduct.' Id. at 124 (quoting § 13A-5-40(a)(10), Ala. Code 1975). On appeal, Smith argued that the trial court's instructions were erroneous because, he said, 'the court's instructions allowed the jury to convict him of having committed the capital offense without finding intent as to two victims.' Id. at 181. This Court rejected that claim, holding:
"'Section 13A-5-40(b) specifies that murder, as a component of the capital offense, means "murder" as defined in § 13A-6-2(a)(1): "A person commits the crime of murder if ... [w]ith intent to cause the death of another person, he causes the death of that person or another person ...." (Emphasis added.)
"'"By its language, § 13A-6-2(a)(1) clearly invokes the doctrine of transferred intent in defining the crime of murder. For example, if Defendant fires a gun with the intent to kill Smith but instead kills Jones, then Defendant is guilty of the intentional murder of Jones.
"'"... Section 13A-5-40(b) refers to § 13A-6-2(a)(1) for the definition of 'murder'; and § 13A-6-2(a)(1) codifies the doctrine of transferred intent in that definition."
"'Ex parte Jackson, 614 So.2d 405, 407 (Ala. 1993).
"Thus, depending on the facts of a case, it is conceivable that the offense of murder wherein two or more persons are murdered by one act or pursuant to one scheme or course of conduct could arise from the intent to kill one person. The court in Living v. State, 796 So.2d 1121 (Ala.Crim.App.2000), reckoned with such possibility. In Living the court stated:
"'"On appeal, ... Living argues that the jury could have found that he intentionally killed Jennifer, but that he did not intend to kill Melissa. Therefore, according to Living, the jury could have found him guilty of murder with regard to Jennifer and guilty of reckless manslaughter with regard to Melissa.
"'"Under the doctrine of transferred intent, however, if Living intended to kill Jennifer he would be criminally culpable for murder with regard to the unintended death of Melissa. See Harvey v. State, 111 Md.App. 401, 681 A.2d 628 (1996) (the doctrine of transferred intent operates with full force whenever the unintended victim is hit and killed; it makes no difference whether the intended victim is missed; hit and killed; or hit and only wounded). Several jurisdictions have held that the doctrine of transferred intent is applicable when a defendant kills an intended victim as well as an unintended victim. See, e.g., State v. Fennell, 340 S.C. 266, 531 S.E.2d 512 (2000); Ochoa v. State, 115 Nev. 194, 981 P.2d 1201, 1205 (1999); Mordica v. State, 618 So.2d 301, 303 (Fla. Dist. Ct. App. 1993); and State v. Worlock, 117 N.J. 596, 569 A.2d 1314, 1325 (1990).
"'"... If Living intended to kill Jennifer, his specific intent would transfer to the killing of Melissa."
"'796 So.2d at [1131].
"'Accordingly, the appellant's contention is based on the incorrect assumption that the prosecution is required to prove subjective intent to kill as to each victim: that is not required by law.' "Smith, 213 So.3d at 182 (emphasis added; footnote omitted). Thus, contrary to Phillips's argument on appeal, the State is not required to demonstrate that Phillips had the specific intent to kill both Erica and Baby Doe. Rather, the State needed to establish only that Phillips had the specific intent to kill Erica and that Baby Doe died as a result of that one act--regardless of whether Baby Doe was an intended or unintended victim."

Phillips I, ___ So.3d at ___ (final emphasis added).

         Phillips argues that the holding in the Alabama Court of Criminal Appeals' opinion on transferred intent conflicts with Ex parte Jackson, 614 So.2d 405 (Ala. 1993). In Jackson, the defendant was indicted for murder made capital because he fired a weapon from outside a motor vehicle in an attempt to kill a person inside the vehicle and caused the death of the unintended victim, who was outside the vehicle. This Court held that the intended victim's location in the vehicle could not be "transferred" to the actual victim's location outside the vehicle so as to elevate the crime to capital murder.

         The decision in Jackson, however, concerned the application of the doctrine of transferred intent to § 13A-5-40(a)(17), Ala. Code 1975, which makes capital the offense of murder committed by or through the use of a deadly weapon while the victim is in a vehicle. The Jackson Court reasoned:

"Under the facts alleged in the indictment, Jackson's intent to kill Prickett can certainly be 'transferred' to the conduct that actually resulted in the death of Roberts. However, Prickett's location (in a motor vehicle) cannot be 'transferred' to Roberts so as to elevate the crime to capital murder.
"First, the clear statutory language of § 13A-5-40(a)(17), considered together with § 13A-5-40(b) and § 13A-6-2(a)(1), [Ala. Code 1975, ] does not yield that result. Section 13A-5-40(b)[, Ala. Code 1975, ] refers to § 13A-6-2(a)(1) for the definition of 'murder'; and § 13A-6-2(a)(1) codifies the doctrine of transferred intent in that definition. However, § 13A-5-40(a)(17) makes a 'murder' capital only when 'the victim is killed in a motor vehicle.' That is, that section defines a factual circumstance rather than merely a state of mind; and that factual circumstance is not present in this case. Prickett was not 'killed' and Roberts was not 'in a motor vehicle.'
"Second, we presume that the Legislature knows the meaning of the words it uses in enacting legislation. Moreover, we are convinced that the Legislature, if it intended § 13A-5-40(a)(17) to apply in this case, knew how to draft a statute to reach that end. In the 1975 death penalty statute, the Legislature made capital a '[m]urder when perpetrated against any witness subpoenaed to testify at any preliminary hearing, trial or grand jury proceeding against the defendant who kills or procures the killing of witness, or when perpetrated against any human being while intending to kill such witness.' Ala. Code 1975, § 13-11-2(a)(14)(emphasis added). The analogue to that section in the 1981 death penalty statute does not retain that transferred intent provision, and therefore the section would apply only to the murder of the witness intended to be killed. § 13A-5-40(a)(14), Ala. Code 1975. See Joseph A. Colquitt, The Death Penalty Laws of Alabama, 33 Ala.L.Rev. 213, 247 (1982). We conclude, therefore, that had the Legislature intended § 13A-5-40(a)(17) to apply to the facts of Jackson's case, it would have included a transferred intent provision similar to that included in the 1975 act. The judiciary will not add that which the Legislature chose to omit."

Jackson, 614 So.2d at 407.

         Phillips, however, is charged, not under § 13A-5-40(a)(17), but under § 13A-5-40(a)(10), Ala. Code 1975, which makes capital the offense of murder of two or more persons without any factual specification about the location of the victim. Thus, the statutes at issue and the facts in Jackson and this case are significantly different. The factual circumstance that makes a murder capital in § 13A-5-40(a)(10) is the murder of two persons. Jackson involved the charge of murder made capital under § 13A-5-40(a)(17), shooting a victim who is inside a vehicle from outside the vehicle, and the death of an unintended victim who was standing outside the vehicle. In this case, Phillips killed both the intended victim and the unborn victim. Thus, Phillips's argument that the reasoning of Jackson is applicable to this case is unavailing.

         Phillips also cites a capital case decided by the Texas Court of Criminal Appeals, Roberts v. State, 273 S.W.3d 322, 330-31 (Tex. Crim. App. 2008), in support of his argument that an instruction on transferred intent is not applicable when the charge is the murder of a woman and her unborn child. In Roberts, the court held that transferred intent may be applied to support a charge of capital murder for the death of more than one individual during the same criminal transaction only if there is proof of the intent to kill the same number of persons who actually died. 273 S.W.3d at 329. The Texas court concluded that the evidence was insufficient to show that the defendant specifically intended to kill the unborn child during the same criminal transaction because the defendant did not know the mother was pregnant. 273 S.W.3d at 331. There was no such mistake of fact in Phillips's case. Phillips fired a pistol directly at his pregnant wife knowing that she was pregnant with their child. Under the specific factual circumstances of this case, the evidence demonstrates that Phillips had the specific intent to kill his wife and that this intent transferred to the unborn child.

         Phillips's case actually is more analogous to the decision of the Appellate Court of Illinois in People v. Alvarez-Garcia, 395 Ill.App.3d 719, 936 N.E.2d 588, 344 Ill.Dec. 59 (2009). In Alvarez-Garcia, the defendant murdered a pregnant woman. The baby was delivered posthumously and died a few months later. The State prosecuted the defendant for both murders under a theory of transferred intent. The Illinois appellate court affirmed the conviction, reasoning that the principle that the death of the unintended victim was a natural and possible consequence of the deliberate shooting of the intended victim under the doctrine of transferred intent "is unaffected by the fact that both the intended victim and the unintended victim are killed." 395 Ill.App.3d at 732, 936 N.E.2d at 600, 344 Ill.Dec. at 71. The court held that the defendant was properly charged with murder of the infant "because it was a natural and probable consequence of his act of intentionally shooting her mother multiple times while she was in utero." 395 Ill.App.3d at 733, 936 N.E.2d at 600, 344 Ill.Dec. at 71.

         In Cockrell v. State, 890 So.2d 174 (Ala. 2004), this Court discussed intent as set forth in Alabama's murder statute, § 13A-6-2(a), Ala. Code 1975, as follows:

"[Section] 13A-6-2(a), Ala. Code 1975, provides that '[a] person commits the crime of murder if ... [w]ith the intent to cause the death of another person, he causes the death of that person or of another person.' The phrase 'another person' appears twice in the foregoing quote from § 13A-6-2(a). The only reference to intent in § 13A-6-2(a) is tied directly to the first reference to 'another person' providing '[w]ith the intent to cause the death of another person.' This first reference to 'another person' clearly applies to the intended victim. The second reference to the death of 'another person,' clearly applies to a person other than the intended victim. Section 13A-6-2(a) does not link the reference to 'another person' with intent in the context of the unintended victim because, indeed, it could not possibly be so linked. Any 'intent' as to the innocent victim is nonexistent; the death of the innocent victim is an unintended result. Intent is imputed as the result of a legal fiction adopted to prevent wrongdoers from escaping the consequences of killing without specific intent by the fluke of bad aim."

890 So.2d at 180.

         It is clear that transferred intent is included within § 13A-6-2(a), Ala. Code 1975, and that Alabama's murder statute is incorporated into § 13A-5-40(a)(10), which criminalizes the murder of two or more persons. Thus, under § 13A-5-40(a)(10), "'it is conceivable that the offense of murder wherein two or more persons are murdered by one act or pursuant to one scheme or course of conduct could arise from the intent to kill one person.'" Phillips I, So.3d at (quoting Smith, 213 So.3d at 182, citing in turn Living v. State, 796 So.2d at 1131). This Court therefore cannot conclude that the trial court's instruction on transferred intent violated Phillips's constitutional rights or Alabama law. Consequently, we agree with the Court of Criminal Appeals' determination that the trial court did not exceed its discretion in its instruction on transferred intent.

         B. Instructions on Knowledge and Intent

         Phillips argues that the trial court improperly conflated "knowledge" and "intent" in the following instruction:

"Intent, under the law, is the definition of knowingly. I charge you, members of the jury, that a person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware of his conduct and is aware of the nature and that the circumstances exist. ... What you have to ascertain is whether the defendant was aware that he was carrying out a particular act. That's what I meant, and that's what I mean by intent. Was the defendant aware that they were carrying out a particular act? That's what we mean when we say intent."

         Phillips argues that the trial court's instruction improperly lowered the State's burden of proving each element of the charged capital murder beyond a reasonable doubt. He contends that the court erred in instructing the jury that mere "knowledge," rather than "specific intent," was sufficient to convict him of capital murder. Phillips further argues that the trial court never acknowledged that its original instruction was improper or corrected its prior incorrect instruction.

         On direct appeal, the Court of Criminal Appeals, reviewing the claim for plain error, recognized that the trial court's initial instruction, quoted above, on knowledge and intent was incorrect:

"Phillips, in his brief on appeal, correctly explains that this instruction 'improperly conflates the definition of knowledge and intent.' (Phillips's brief, pp. 33-34.) See also § 13A-2-2(1) and (2), Ala. Code 1975.
"We have explained:
"'"Alabama appellate courts have repeatedly held that, to be convicted of [a] capital offense and sentenced to death, a defendant must have had a particularized intent to kill and the jury must have been charged on the requirement of specific intent to kill. E.g., Gamble v. State, 791 So.2d 409, 444 (Ala.Crim.App.2000); Flowers v. State, 799 So.2d 966, 984 (Ala.Crim.App.1999); Duncan v. State, 827 So.2d 838, 848 (Ala.Crim.App.1999)."
"'Ziegler v. State, 886 So.2d 127, 140 (Ala.Crim.App.2003).'
"Brown v. State, 72 So.3d 712, 715 (Ala.Crim.App.2010). Thus, the trial court's instruction conflating 'knowingly' and 'intentionally' was error. That error, however, does not rise to the level of plain error.
"'"In setting forth the standard for plain error review of jury instructions, the court in United States v. Chandler, 996 F.2d 1073, 1085, 1097 (11th Cir. 1993), cited Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990), for the proposition that 'an error occurs only when there is a reasonable likelihood that the jury applied the instruction in an improper manner.'"
"'Williams v. State, 710 So.2d 1276, 1306 (Ala.Crim.App.1996). "The absence of an objection in a case involving the death penalty does not preclude review of the issue; however, the defendant's failure to object does weigh against his claim of prejudice." Ex parte Boyd, 715 So.2d 852, 855 (Ala. 1998).'
"Thompson v. State, 153 So.3d [84, ] 152 [(Ala.Crim.App.2012)].
"Although the trial court initially improperly instructed the jury on intent, 'we do not review the jury instruction in isolation. Instead we consider the jury charge as a whole, and we consider the instructions like a reasonable juror may have interpreted them.' Ziegler v. State, 886 So.2d 127, 140 (Ala.Crim.App.2003) (citing Smith v. State, 795 So.2d 788, 827 (Ala.Crim.App.2000)). Examining the trial court's instructions as a whole, we are convinced that the trial court fully instructed the jury on intent and that a reasonable juror would have interpreted the trial court's instructions as requiring the State to prove beyond a reasonable doubt that Phillips had the specific intent to kill.
"Specifically, the trial court, after reading Phillips's indictment to the jury, instructed the jury as follows:
"'Now I'm going to give you some specific information about that charge. That charges capital--that is a capital murder charge. Alabama Code Section 13A-5-40(a)(10), murder of two or more persons by a single act. The defendant is charged with capital murder. The [sic] states that an intentional murder of two more persons is capital murder. A person commits intentional murder of two or more persons if he causes the death of two or more people, and in performing the act that caused the death of those people, he intended to kill each of those people.
"'To convict, the State must prove beyond a reasonable doubt each of the following elements of intentional murder of two or more persons: ... that in committing the act that caused the deaths of both [Erica] and Baby Doe, the defendant intended to kill the deceased or another person.
"'A person acts intentionally when it is his purpose to cause the death of another person. Let me reread that. A person acts intentionally when it is his purpose to cause the death of another person. The intent to kill must be real and specific.'
"(R. 761-62 (emphasis added).) Thereafter, the trial court instructed the jury on the State's requested jury charges as follows:
"'Requested jury charge number one. The defendant, Jessie Phillips, is charged with capital murder. The law states that intentional murder of two or more persons is capital murder. A person commits the crime of an intentional murder of two or more persons, and in performing the act that caused the death of those people, he intends to kill each of those people.
"'To convict, the State must prove beyond a reasonable doubt each of the following elements of an intentional murder of two or more persons: One, [that] Erica Phillips is dead; two, that Baby Doe is dead; three, that the defendant Jessie Phillips caused the deaths of Erica Phillips and Baby Doe by one act, by shooting them; and that in committing the act which caused the deaths of both Baby--excuse me, Erica Phillips and Baby Doe, the defendant intended to kill the deceased or another person.
"'A person acts intentionally when it is his purpose to cause the death of another person. The intent to kill another person must be real and specific. ...
"'....
"'Requested jury charge number two. In order to convict the defendant Jessie Phillips of a capital offense for the intentional murder of two or more persons, I charge you that the State of Alabama is not required to prove to you beyond a reasonable doubt that the defendant Jessie Phillips had a specific intent to kill both Erica Phillips and Baby Doe by one single act. Under the facts of this case, if the State of Alabama proves to you beyond a reasonable doubt that the defendant Jessie Phillips intended to kill Erica Phillips and also killed an unintended victim, Baby Doe, by a single act, the defendant can be convicted of capital murder.'
"(R. 765-67 (emphasis added).)
"Thus, it is clear that, although the trial court initially conflated the concepts of 'knowingly' and 'intentionally,' the trial court fully and adequately instructed the jury on the specific-intent-to-kill requirement. Thus, although the trial court's initial instruction on intent was erroneous, it does not rise to the level of plain error."

Phillips I, ___ So.3d at ___.

         This Court agrees that the trial court's initial instruction improperly conflated the definitions of "intent" and "knowingly." In Alabama, the culpable mental states of acting "intentionally" and acting "knowingly" are separately defined. Section 13A-2-2(1) provides: "A person acts intentionally with respect to a result or to conduct described by a statute defining an offense, when his purpose is to cause that result or to engage in that conduct." Section 13A-2-2(2) provides: "A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of that nature or that the circumstance exists."

         Section 13A-5-40(b) provides that the definition of "murder" as set forth in § 13A-6-2(a)(1) applies to § 13A-5-40(a)(10). Section 13A-6-2(a)(1) provides that a person commits murder if, "with intent to cause the death of another person, he or she causes the death of that person or of another person." Thus, "knowledge" is not a culpable mental state for the offense of murder. Consequently, the Court of Criminal Appeals correctly held that the trial court's initial instruction conflating the definitions of knowledge and intent was in error.

         The question, however, is whether the erroneous segment of the trial court's initial instruction rises to the level of plain error. Phillips argues that a conviction based upon an erroneous instruction on knowledge rests on unconstitutional ground and must be set aside. Specifically, he contends that the holdings in Boyde v. California, 494 U.S. 370 (1990), and Ex parte Stewart 659 So.2d 122, 128 (Ala. 1993), establish that, although it is possible that the jury's guilty verdict may have had a proper basis, it is equally likely that the verdict was based on the erroneous instruction and that, therefore, the verdict should be set aside.

         In Boyde, the United States Supreme Court set forth the standards to be applied to a "concededly erroneous" instruction and an "ambiguous" instruction as follows:

"Our cases, understandably, do not provide a single standard for determining whether various claimed errors in instructing a jury require reversal of a conviction. In some instances, we have held that 'when a case is submitted to the jury on alternative theories the unconstitutionality of any of the theories requires that the conviction be set aside. See, e.g., Stromberg v. California, 283 U.S. 359 (1931).' Leary v. United States, 395 U.S. 6, 31-32 (1969); see also Bachellar v. Maryland, 397 U.S. 564, 571 (1970). In those cases, a jury is clearly instructed by the court that it may convict a defendant on an impermissible legal theory, as well as on a proper theory or theories. Although it is possible that the guilty verdict may have had a proper basis, 'it is equally likely that the verdict ... rested on an unconstitutional ground,' Bachellar, supra, at 571, and we have declined to choose between two such likely possibilities.
"In this case we are presented with a single jury instruction. The instruction is not concededly erroneous, nor found so by a court, as was the case in Stromberg v. California, 283 U.S. 359 (1931).
The claim is that the instruction is ambiguous and therefore subject to an erroneous interpretation. We think therefore the proper inquiry in such a case is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence. Although a defendant need not establish that the jury was more likely than not to have been impermissibly inhibited by the instruction, a capital sentencing proceeding is not inconsistent with the Eighth Amendment if there is only a possibility of such an inhibition. This 'reasonable likelihood' standard, we think, better accommodates the concerns of finality and accuracy than does a standard which makes the inquiry dependent on how a single hypothetical 'reasonable' juror could or might have interpreted the instruction. There is, of course, a strong policy in favor of accurate determination of the appropriate sentence in a capital case, but there is an equally strong policy against retrials years after the first trial where the claimed error amounts to no more than speculation. Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting."

494 U.S. at 379-81 (footnote omitted).

         In Phillips's case, the Court of Criminal Appeals held that, although the trial court's initial instruction was erroneous, the error did not rise to the level of plain error, the standard that court was applying. Phillips I, ___ So.3d at ___. The Court of Criminal Appeals cited both Thompson v. State, 153 So.3d 85, 152 (Ala.Crim.App.2012), and Boyde for the proposition that "'"'an error only occurs when there is a reasonable likelihood that the jury applied the instruction in an improper manner.'"'" Phillips I, ___ So.3d at ___ (quoting Thompson, 153 So.3d at 152, quoting in turn Williams v. State, 710 So.2d 1276, 1306 (Ala.Crim.App.1996)). The Court of Criminal Appeals concluded that the error did not rise to the level of plain error because the trial court's subsequent instructions on intent were proper and a reasonable juror would have interpreted the trial court's instructions as requiring the State to prove beyond a reasonable doubt that Phillips had the specific intent to kill. Phillips argues that the Court of Criminal Appeals applied the incorrect standard because, he says, the holding in Boyde establishes that the "reasonable likelihood" test is applicable only to an "ambiguous" instruction, not to a concededly erroneous instruction given in conjunction with a correct instruction.

         Phillips contends that the Court of Criminal Appeals should have applied the standard for an "impermissible legal theory" set forth in Boyde, supra, and set aside his conviction. The Court notes that the instructions in Boyde related to an erroneous charge on sentencing factors and are therefore significantly different from those given in Phillips's case. In Boyde, the Supreme Court held that mandatory language in a jury instruction listing factors that the jury "shall consider, take into account and be guided by" in assessing whether to impose a death sentence did not violate the Eighth Amendment's prohibition against cruel and unusual punishment, because the instruction did not preclude the jury from considering non-criminal factors, such as the defendant's background and character, as mitigating evidence. Thus, Boyde involved an ambiguous sentencing-factor instruction. In Phillips's case, however, the instruction at issue is not related to sentencing.

         Phillips also cites this Court's decision in Ex parte Stewart, another sentencing case, in which we held that an inadvertent erroneous instruction was plain error and reversed the defendant's death sentence. Phillips specifically relies on this Court's determination that, "[a]lthough the court correctly instructed the jury in other portions of the charge, the inadvertent erroneous statements directly contradicted the correct ones, and we cannot tell which portion of the charge the jury may have followed," 659 So.2d at 128, for the proposition that the instruction was plain error. The facts in Ex parte Stewart, however, are distinguishable from those in Phillips's case. In Ex parte Stewart, the trial court failed to give the applicable pattern jury instruction regarding how to weigh the aggravating circumstances and the mitigating circumstances. Although the trial court did instruct the jury concerning how it was to determine the existence of any aggravating and mitigating circumstances, the trial court provided no direction as to how to apply those circumstances once they were proven because the judge omitted the charge stating that to impose the death penalty the aggravating circumstances must be shown to outweigh the mitigating circumstances. Unlike Ex parte Stewart, the instructions at issue in Phillips's case do not charge an erroneous sentencing theory or omit a sentencing theory.

         It is well settled law that this Court reviews the jury instructions in their entirety before determining whether a reversal is warranted. See, e.g., Ex parte Wood, 715 So.2d 819, 822 (Ala. 1998) (reviewing the charges in their entirety); Ex parte Cothren, 705 So.2d 861, 871 (Ala. 1997) (holding that the "instructions, taken as a whole" were sufficient); Ex parte Windsor, 683 So.2d 1042, 1058 (Ala. 1996) (reviewing jury instructions as a whole); and Gosa v. State, 273 Ala. 346, 350, 139 So.2d 321, 324 (1961) ("The rule is well established that where a portion of the oral charge is erroneous, the whole charge may be looked to and the entire charge must be construed together to see if there be reversible error.").

         Despite its initial misstatement, the trial court repeatedly provided detailed instructions on specific intent in relation to the capital-murder charge. Thus, the court rectified any misunderstanding that may have occurred initially. Consequently, when reviewing the instructions in their entirety, as this Court must do, we cannot conclude that the trial court's instructions were plainly erroneous. We therefore find no error in the Court of Criminal Appeals' determination that the trial court's instructions did not rise to the level of plain error.

         C. Applicability of the Brody Act

         Phillips argues that the definition of "person" set forth in the Brody Act, § 13A-6-1(a)(3), Ala. Code 1975, [3] does not apply to the capital offense of murder of two or more persons set forth in § 13A-5-40(a)(10) or the aggravating circumstance of multiple murders set forth in § 13A-5-49, Ala. Code 1975. Specifically, Phillips contends that the Brody Act is limited to Chapter 6 of the Alabama Criminal Code. Whether the Brody Act applies to the capital-murder statute is an issue of first impression for this Court.

         On this issue, the Court of Criminal Appeals held:

"Phillips contends that defining the word 'person' in both §§ 13A-5-40(a)(10) and 13A-5-49(9), Ala. Code 1975, by using the definition of the word 'person' from § 13A-6-1(a)(3), Ala. Code 1975, violates 'established principles of statutory construction and the rule of lenity' and creates a new class of capital offense -- 'murder of a pregnant woman' (Phillips's brief, p. 15) -- and a new aggravating circumstance. To resolve Phillips's argument on appeal, we must construe §§ 13A-5-40, 13A-5-49, 13A-6-1, and 13A-6-2, Ala. Code 1975.
"....
"In raising this claim, Phillips correctly recognizes that 'the sole provision of the criminal code that arguably made [him] eligible for the death penalty was a change to the definition of the word "person"--outside of the capital murder statute--in [§] 13A-6-1.' (Phillips's brief, p. 15.) Phillips incorrectly argues, however, that the definition of the term 'person' in § 13A-6-1(a)(3), Ala. Code 1975, is limited to only 'Article 1 and Article 2' of Chapter 6 in Title 13A and 'should not be applied to the separate capital-murder statute.' (Phillips's brief, p. 18.)
"Indeed, contrary to Phillips's assertion, a simple reading of the capital-murder statute plainly and unambiguously makes the murder of 'two or more persons'--when one of the victims is an unborn child--a capital offense because the capital-murder statute expressly incorporates the intentional-murder statute codified in § 13A-6-2(a)(1), Ala. Code 1975--a statute that, in turn, uses the term 'person' as defined in § 13A-6-1(a)(3), Ala. Code 1975, which includes an unborn child as a person.
"....
"In other words, the capital-murder statute plainly and unambiguously requires the occurrence of an intentional murder, as defined in § 13A-6-2(a)(1), Ala. Code 1975, and an intentional murder occurs only when a defendant causes the death of a 'person,' which includes an unborn child.
"Because an 'unborn child' is a 'person' under the intentional-murder statute and because the intentional-murder statute is expressly incorporated into the capital-murder statute to define what constitutes a 'murder,' an 'unborn child' is definitionally a 'person' under § 13A-5-40(a)(10), Ala. Code 1975. Thus, to the extent Phillips contends that § 13A-5-40(a)(10), Ala. Code 1975, excludes from its purview the death of an unborn child, that claim is without merit.
"Phillips also argues that the term 'person' as that term is used in § 13A-5-49, Ala. Code 1975, does not include an 'unborn child.' That section sets out the aggravating circumstances for which the death penalty may be imposed and provides, in relevant part:
"'Aggravating circumstances shall be the following:
"'....
"'(9) The defendant intentionally caused the death of two or more persons by one act or pursuant to one scheme or course of conduct. ...'
"§ 13A-5-49(9), Ala. Code 1975 (emphasis added).
"Section 13A-5-49, unlike § 13A-5-40, does not expressly incorporate the intentional-murder statute, and it also does not expressly incorporate the definition of the term 'person' found in § 13A-6-1, Ala. Code 1975. Both § 13A-5-40 and § 13A-5-49, however, use nearly identical language and concern closely related subject matter--i.e., capital offenses and the aggravating circumstances for which a capital offense may be subject to the death penalty.
"When 'statutes "relate to closely allied subjects [they] may be regarded in pari materia." State ex rel. State Board for Registration of Architects v. Jones, 289 Ala. 353, 358, 267 So.2d 427, 431 (1972). "Where statutes are in pari materia they should be construed together" and "should be resolved in favor of each other to form one harmonious plan." League of Women Voters v. Renfro, 292 Ala. 128, 131, 290 So.2d 167, 169 (1974).' Henderson v. State, 616 So.2d 406, 409 (Ala.Crim.App.1993). Thus, like § 13A-5-40(10), we construe § 13A-5-49(9) as including unborn children as 'persons.'
"Although Phillips argues that what defines a 'person' in the capital-murder statute is different from what defines a 'person' in the intentional-murder statute, we do not agree. Indeed, to read those statutes in the manner Phillips would have us read them, this Court would have to ignore the plain meaning of the capital-murder statute and its express incorporation of the intentional-murder statute, would have to read closely related statutes in an inconsistent manner, and would have to disregard the 'clear legislative intent to protect even nonviable fetuses from homicidal acts.' Mack v. Carmack, 79 So.3d 597, 610 (Ala. 2011). Consequently, Phillips is not entitled to any relief on this claim."

Phillips I, ___ So.3d at ___.

         This Court agrees with the reasoning of the Court of Criminal Appeals. Section 13A-6-1 provides, in pertinent part:

"(a) As used in Article 1 and Article 2, the following terms shall have the meanings ascribed to them by this section:
"....
"(3) PERSON. The term, when referring to the victim of a criminal homicide or assault, means a human being, including an unborn child in utero at any stage of development, regardless of viability."

         Article 1 of Chapter 6 sets forth the crimes of homicide, including murder. Section 13A-6-2(a)(1) specifies that a person commits the crime of murder if, "[w]ith intent to cause the death of another person, he or she causes the death of that person or of another person."

         It is obvious from a reading of § 13A-5-39(5), Ala. Code 1975, and § 13A-5-40(b), Ala. Code 1975, that the definition of "person" as set forth in § 13A-6-1(a)(3) is applicable to § 13A-5-40(a)(10). We begin this analysis with § 13A-5-39(5), which provides that "murder and murder by the defendant" "[s]hall be defined as provided in Section 13A-5-40(b)." Section 13A-5-40(b), in turn, provides:

"Except as specifically provided to the contrary in the last part of subdivision (a)(13) of this section, the terms 'murder' and 'murder by the defendant' as used in this section to define capital offenses mean murder as defined in Section 13A-6-2(a)(1), but not as defined in Section 13A-6-2(a)(2) and (3). Subject to the provisions of Section 13A-5-41, [Ala. Code 1975, ] murder as defined in Section 13A-6-2(a)(2) and (3), as well as murder defined in Section 13A-6-2(a)(1), may be a lesser included offense of the capital offenses defined in subsection (a) of this section."

         As previously discussed, the crime of murder as set forth in § 13A-6-2(a)(1) is included within the capital offense of the murder of two or more persons set forth in § 13A-5-40(a)(10). Thus, the definition of "person" as defined in § 13A-6-1(a)(3) is applicable to the capital offense of murder of two or more persons under § 13A-5-40(a)(10).

         It is likewise clear that the definition of "person" set forth in § 13A-6-1(a)(3) is applicable to the aggravating circumstance of the murder of two or more persons. Section 13A-5-49(9) specifies that that aggravating circumstance is applied to support the death penalty when "[t]he defendant intentionally caused the death of two or more persons by one act or pursuant to one scheme or course of conduct." Thus, the wording of § 13A-5-49(9) parallels § 13A-5-40(10), which includes the offense of murder as set forth in § 13A-6-2(a)(1).[4] Consequently, the definition of a person as including an unborn child in utero is applicable to both § 13A-5-40(10) and § 13A-5-49(9), and we find no error in the trial court's application of the Brody Act to the facts of this case.[5]

         D. Chain of Custody

         Phillips asserts that the State failed to establish a chain of custody for the urine sample used to conduct the pregnancy test performed as part of Erica's autopsy. He contends that the State presented no links in the chain. Because Phillips failed to raise this issue at trial, the Court of Criminal Appeals reviewed it for plain error. See Rule 45A, Ala. R. App. P.

         A summary of the law applicable to chain-of-custody issues is set forth in Ex parte Mills, 62 So.3d 574, 595-98 (Ala. 2010), and quoted by the Court of Criminal Appeals in Phillips I:

"'In Ex parte Holton, [590 So.2d 918 (Ala. 1991), ] this Court stated:
"'"The State must establish a chain of custody without breaks in order to lay a sufficient predicate for admission of evidence. Ex parte Williams, 548 So.2d 518, 520 (Ala. 1989). Proof of this unbroken chain of custody is required in order to establish sufficient identification of the item and continuity of possession, so as to assure the authenticity of the item. Id. In order to establish a proper chain, the State must show to a 'reasonable probability that the object is in the same condition as, and not substantially different from, its condition at the commencement of the chain.' McCray v. State, 548 So.2d 573, 576 (Ala.Crim.App.1988). Because the proponent of the item of demonstrative evidence has the burden of showing this reasonable probability, we require that the proof be shown on the record with regard to the various elements discussed below.
"'"The chain of custody is composed of 'links.' A 'link' is anyone who handled the item. The State must identify each link from the time the item was seized. In order to show a proper chain of custody, the record must show each link and also the following with regard to each link's possession of the item: '(1) [the] receipt of the item; (2) [the] ultimate disposition of the item, i.e., transfer, destruction, or retention; and (3) [the] safeguarding and handling of the item between receipt and disposition.' Imwinkelried, The Identification of Original, Real Evidence, 61 Mil. L. Rev. 145, 159 (1973).
"'"If the State, or any other proponent of demonstrative evidence, fails to identify a link or fails to show for the record any one of the three criteria as to each link, the result is a 'missing' link, and the item is inadmissible. If, however, the State has shown each link and has shown all three criteria as to each link, but has done so with circumstantial evidence, as opposed to the direct testimony of the 'link,' as to one or more criteria or as to one or more links, the result is a 'weak' link. When the link is 'weak,' a question of credibility and weight is presented, not one of admissibility."
"'590 So.2d at 919-20.
"'In Ex parte Cook, [624 So.2d 511 (Ala. 1993)], the defendant, who had been convicted of murder, contended that the trial court committed reversible error in admitting, over the defendant's objection, several items of physical evidence--specifically, cigarette butts, a knife scabbard, blood-soaked gauze, socks, and jeans. This Court held that the cigarette butts, scabbard, gauze, and socks should not have been admitted over the defendant's objection. 624 So.2d at 512-14. In particular, this Court stated:
"'"A link was also missing in the chain of custody of the cigarette butts, scabbard, gauze, and socks. Although [Officer] Weldon testified that she directed and observed the collection, the State did not establish when these items were sealed or how they were handled or safeguarded from the time they were seized until Rowland[, a forensic serologist, ] received them [and tested them]. This evidence was inadmissible under [Ex parte] Holton[, 590 So.2d 918 (1991)].
"'"The cigarette butts were prejudicial to [the defendant], because they established that someone with her blood type was in [the victim's] house. Likewise, the socks found in [the defendant's] mobile home were prejudicial, because they were stained with blood that matched [the victim's] type. The erroneous admission of these items probably injuriously affected [the defendant's] substantial rights, and she is entitled to a new trial. See Rule 45, Ala. R. App. P."
"'624 So.2d at 514.
"'In Birge [v. State], [973 So.2d 1085 (Ala.Crim.App.2007)], the victim was thought to have died of natural causes and had been transported to Indiana for burial. 973 So.2d at 1087. However, after law enforcement began to investigate, the victim's body was exhumed, and an autopsy was performed in Indiana. At trial, there was testimony that the victim had died from an overdose of prescription drugs. That cause-of-death testimony was based on the results of testing of samples taken from the victim's body during the autopsy. 973 So.2d at 1088-89.
"'Citing missing links in the chain of custody, the defendant in Birge objected to the introduction of the toxicology results and the cause-of-death testimony based on those results. The doctor who performed the autopsy testified at trial and stated that he had watched his assistant place the samples in a locked refrigerator. The doctor testified that the next day his assistant would have delivered the samples to a courier, who then would have delivered them to an independent lab for testing. However, neither the doctor's assistant who secured the samples, nor the courier who transported the samples to the lab, nor the analyst who tested the samples testified at trial. The doctor also testified that there may have been several people who had handled the specimens during that time. Additionally, there were significant discrepancies between the doctor's notes about the specimens in his autopsy report and the description of those specimens in the toxicology report from the independent lab that had tested them. The Court of Criminal Appeals ultimately concluded that there were numerous missing links in the chain of custody and that, because those missing links related to the crux of the case against the defendant, the trial court had committed reversible error in admitting the evidence over the defendant's objection. 973 So.2d at 1094-95, 1105.
"'In contrast to Ex parte Cook and Birge, however, the State here offered sufficient evidence on each link in the chain of custody of the evidence Mills complains of. Investigator Smith first discovered the evidence in the trunk. Officer McCraw recovered the evidence pursuant to a search warrant, inventoried it, bagged it, secured it, and delivered it to the custody of the DFS [Department of Forensic Sciences] employee who logged the evidence and gave McCraw a receipt for it. Bass, who examined and tested the evidence at DFS, testified generally about the protocols used to test items at DFS, and he testified specifically about the testing he performed on the evidence.
"'Although the "tall" DFS employee to whom McCraw submitted the items was never identified and did not testify at trial, McCraw's testimony was sufficient direct evidence indicating that the items were secured until they were delivered to DFS. As to whether there was sufficient circumstantial evidence indicating that the items remained secure until Bass tested them, the State cites Lee v. State, 898 So.2d 790, 847-48 (Ala.Crim.App.2001), in which the Court of Criminal Appeals stated:
"'"'"The purpose for requiring that the chain of custody be shown is to establish to a reasonable probability that there has been no tampering with the evidence."' Jones v. State, 616 So.2d 949, 951 (Ala.Crim.App.1993) (quoting Williams v. State, 505 So.2d 1252, 1253 (Ala.Crim.App.1986), aff'd, 505 So.2d 1254 (Ala. 1987)).
"'"'"'"Tangible evidence of crime is admissible when shown to be 'in substantially the same condition as when the crime was committed.' And it is to be presumed that the integrity of evidence routinely handled by governmental officials was suitably preserved '[unless the accused makes] a minimal showing of ill will, bad faith, evil motivation, or some evidence of tampering.' If, however, that condition is met, the Government must establish that acceptable precautions were taken to maintain the evidence in its original state.
"'"'"'"The undertaking on that score need not rule out every conceivable chance that somehow the [identity] or character of the evidence underwent change. '[T]he possibility of misidentification and adulteration must be eliminated,' we have said, 'not absolutely, but as a matter of reasonable probability.' So long as the court is persuaded that as a matter of normal likelihood the evidence has been adequately safeguarded, the jury ...

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