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Deblase v. State

Alabama Court of Criminal Appeals

November 16, 2018

John Joseph DEBLASE
STATE of Alabama.

         Rehearing Denied February 22, 2019.

         Appeal from Mobile Circuit Court (CC-12-3095)

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          Alicia A. D'Addario, Carla C. Crowder, and Rachel P. Judge, Montgomery; Glenn L. Davidson, Mobile; and Arthur T. Powell III, Mobile, for appellant.

          Luther Strange and Steve Marshall, attys. gen., and Beth Jackson Hughes, asst. atty. gen., for appellee.

         KELLUM, Judge.

         John Joseph DeBlase was convicted of three counts of capital murder in connection with the murders of his children, four-year-old Natalie Alexis DeBlase ("Natalie") and three-year-old Jonathan Chase DeBlase ("Chase"). The murders were made capital (1) because Natalie was less than 14 years of age, see § 13A-5-40(a)(15), Ala. Code 1975; (2) because Chase was less than 14 years of age, see § 13A-5-40(a)(15), Ala. Code 1975; and (3) because two or more persons were murdered by one act or pursuant to one scheme or course of conduct, see § 13A-5-40(a)(10), Ala. Code 1975. By a vote of 10-2, the jury recommended that DeBlase be sentenced to death for his capital-murder convictions. The trial court followed the jury's recommendation and sentenced DeBlase to death.[1]

         In its sentencing order, the trial court set out the facts of the crimes as follows:

"A. Background Facts

"At the time of her death on March 4, 2010, Natalie DeBlase (`Natalie') was age four years and four months. At the time of his death on Father's Day, June 20, 2010, Jonathan Chase DeBlase (`Chase') was age three years and six months. At the time of the children's deaths, DeBlase was twenty-five years old.

"DeBlase enjoyed a relatively normal upbringing in the Mobile area, attended public schools and graduated high school in 2003, earning a standard diploma. After high school, DeBlase worked several jobs and began a romantic relationship with Corrine Heathcock. Natalie was born of that relationship on November 4, 2005. In June 2006, DeBlase and Corrine married, and Chase was born on December 29, 2006. The marriage was tumultuous with intermittent periods of separation. DeBlase became involved with entertainment wrestling as a hobby,

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and developed a close circle of friends with the same interest. During a separation from Corrine, one of his wrestling friends moved in with DeBlase to defray living expenses. Corrine returned home and began an illicit relationship with the friend. Corrine left, and DeBlase moved in with his parents, Richard and Ann DeBlase. Corrine kept the children until DeBlase filed for divorce in May 2009. The children then lived with DeBlase and his parents. The divorce was final in June 2009 with DeBlase awarded primary physical custody of their children. Corrine's circumstances were such that she could not provide for the children, but for some time she had regular visitation with the children which DeBlase helped facilitate.

"By all accounts, Natalie and Chase were normal happy children. Medical records indicate they were regularly treated for expected childhood illnesses until approximately a year before their deaths. There is no indication the children were mistreated or abused until several months before their deaths. Corrine last had contact with the children on November 17, 2009. At that time, Corrine felt DeBlase was a proper and caring father for Natalie and Chase. She had no concerns about the safety of the children.

"In October 2008, DeBlase met the Co-Defendant, Heather Keaton (hereinafter `Keaton'), through a social media website. She was then enrolled as an undergraduate student at Springhill College in Mobile, attending on a scholarship. She is visually impaired. In 2009, she became ill and returned to her family's home in Louisville, Kentucky. Upon recovering, she came back to Mobile and moved into the home of Richard and Ann DeBlase, along with DeBlase, Natalie, and Chase. Keaton argued with Ann DeBlase about the proper way to care for the children, asserting superior knowledge on child rearing. She was domineering to the point that Richard DeBlase told her to leave his home. On December 23, 2009, Keaton, DeBlase, and the children left the DeBlase home and moved in with Dana Mullins (now deceased).

"In January 2010, they left Dana Mullins's home and stayed several weeks with a friend DeBlase knew through wrestling, Robin `Rivers' Rios, his wife Heather Rios, and their children. There, DeBlase and Keaton argued over Keaton's desire to move back to Louisville. She told Heather Rios she did not want to raise DeBlase's children, but DeBlase wanted his children and Keaton to be a family. The arguments became more heated to the point the Rioses asked them to leave their home. Heather Rios called Ann DeBlase to express concern that DeBlase and Keaton would not properly care for Natalie and Chase.

"In early 2010, DeBlase contacted his parents and asked to borrow a car for the purpose of bringing Natalie and Chase back to live with them. When his parents talked to him the next day, he stated that he and the children would stay with Keaton and not return to his parents' home.

"In February, DeBlase, Keaton, and the children returned to the Rioses' home for a birthday party for one of the Rios children. Chase had diarrhea and smelled bad. Heather Rios bathed him. Both Natalie and Chase appeared hungry and ate unusually large quantities of food. The Rioses advised DeBlase and Keaton to get medical attention for Chase. After the birthday party in February, the Rioses never saw Natalie again.

"DeBlase, Keaton, Natalie, and Chase visited Roger Champion and his family

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in their trailer in the Chunchula area of north Mobile County in late January 2010. The Champions were relocating to north Alabama and agreed for DeBlase to rent the trailer. The night before the Champions departed, DeBlase bought hamburgers for he and Keaton for supper. Only one small salad was shared by Natalie and Chase. The next morning, Champion saw the children sharing one small individual snack-sized box of cereal. As DeBlase and Champion were loading the Champions' furniture into a truck, they heard the children screaming and crying. Upon investigation, Champion's wife told them that she had seen Keaton holding Natalie by the hair while she beat her with a belt and Chase was pushed to the floor. Keaton was enraged because the children had eaten part of a chocolate pie left on the kitchen counter. Champion confronted DeBlase and warned him not to let anything happen to the children. DeBlase responded that Keaton was in charge of disciplining the children and it was only a spanking. The treatment of the children so upset Champion's wife that she left the trailer. Champion knew DeBlase's parents and called them to say he thought Natalie and Chase were at risk of harm. Champion called Creighton Hobbs, a mutual friend with DeBlase, and asked him to check on Natalie and Chase after Champion left the area.

"Hobbs had previously attended a cook-out at the Champions' trailer with DeBlase, Keaton, and the children. On that occasion, Hobbs observed Keaton abusing Natalie and Chase. He saw Keaton screaming and cursing the children and roughly grabbing Natalie. Keaton said the children were `just horrible' and `like demon spawn from Hell.' Hobbs thought Keaton's conduct was out of line and warned her not to treat the children that way or he would call the police. DeBlase did nothing to stop Keaton's abuse of the children. Based on his interactions with DeBlase and Keaton, Hobbs felt Keaton was dominant and DeBlase the subservient member of their relationship.

"Hobbs visited DeBlase in February 2010 to check on the children at the Champions' trailer. DeBlase was on the floor in pain and Keaton was upset. Keaton claimed DeBlase's parents and his aunt and uncle had forced entry into the trailer, causing injury to DeBlase's ribs in the process and pushing Keaton to the floor. In a very agitated manner, Keaton, while referring to herself, declared, `I hope this baby dies.' This is when Hobbs learned Keaton was pregnant. Hobbs took them to the emergency room for DeBlase to be examined, and then returned them to the trailer. While DeBlase was being examined, Hobbs took Natalie and Chase to supper. The children were extremely hungry. Soon thereafter, DeBlase advised Hobbs they were moving to Peach Place Apartments.

"Richard and Ann DeBlase testified to a different version of events. They had not seen the children since December 23, 2009, and had not given them their Christmas gifts or Chase's birthday gifts. They did not know where DeBlase was living, but by inquiring of his friends, learned they were at the Champions' trailer. In February, along with Richard's sister, Rose Heathcox, and her husband, they took the children's gifts to the trailer. Rose knocked on the door and DeBlase opened the door, expressed surprise at their visit, and allowed them to come in. He did not seem pleased by the unannounced visit, but let Natalie and Chase open their presents. Keaton came from the back of the trailer and became upset, shouting words to the

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effect of `what is that bitch doing here,' referring to Ann DeBlase. To avoid a confrontation, Ann and Richard left the trailer and waited in the car for Rose and her husband. This was the last time they saw or spoke to their grandchildren. They denied any physical altercation or struggle while at the trailer.

"Later that month, DeBlase, Keaton, and the children moved into Unit 41 of Peach Place Apartments. Nicole Conniff was the manager of Peach Place. Many times she observed the children outside the apartment unattended in the parking area adjacent to a high traffic street. She and occupants of Peach Place were concerned about the safety of the unattended children. Chase often appeared with a dirty `sagging' diaper.

"The rental agreement at Peach Place allowed access to all units by the manager for the purpose of pest control inspections. On one occasion, Conniff accompanied the pest control inspector to DeBlase and Keaton's apartment. After knocking several times without a response, Conniff used her master key to enter. Upon entering, she observed Natalie and Chase sitting on the floor facing different walls of the living room of the small apartment. Keaton came out of the bedroom screaming and cursing the children for letting people into the apartment. The children sat silently facing the wall and were visibly shaking. Conniff explained she used the master key to gain entry, but Keaton remained upset. Later, Keaton and DeBlase came to Conniff complaining about the entry to their apartment. DeBlase was threatening in voicing objection to her entering the apartment. Occasionally, police units came to Peach Place for various reasons. After the police left, DeBlase would often inquire of Conniff why the police were there. He did this to the point that Conniff asked him [if] he had something to hide.

"The first week of March 2010, the Rioses ran into DeBlase at an area Wal-Mart. When told Chase was waiting in the van with Keaton, the Rioses went to see him. Once they got to the van, the Rioses inquired about Natalie and were told she was staying with friends. They were shocked by Chase's appearance. He looked `emergency room sick.' He seemed in a stupor and was very pale. They insisted DeBlase get medical attention for Chase. DeBlase did call an area medical clinic where Natalie and Chase had been treated in the past, and reported Chase had diarrhea. The clinic advised he be given Gatorade and monitored. This was one of the few requests for medical advice for Natalie or Chase in the year before their deaths. This was the last time the Rioses saw Chase.

"DeBlase enrolled in Blue Cliff Career College in Mobile in August 2009, and took classes in massage therapy. There he met another student, Renee Pierce. She gave him rides to school and knew he had children he referred to as `my little princess' and `a little flirt.' DeBlase took a leave of absence from school from January 14th through March 2, 2010. On his return, Pierce noticed he was different. She described him as `weird' and he appeared to be unclean. These conditions continued until he dropped out of Blue Cliff in July 2010.

"On June 20, 2010, Hobbs called DeBlase and asked him about his plans with Natalie and Chase for Father's Day. Hobbs said he had gifts for the children and wanted to bring them over. DeBlase said he would call Hobbs when he got home, but never did. Hobbs tried to call DeBlase after Father's Day, but DeBlase would not answer the calls.

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"On June 21, 2010, Keaton accompanied DeBlase to class at Blue Cliff. Renee Pierce asked who was keeping the children. He said they were with a friend. Keaton came to school with DeBlase several more times and had conversations with Pierce. Keaton said she did not want to be a mother to Natalie or Chase, and that someone needed to teach Natalie that she was not a little princess. She called them `the spawn of Satan,' and referred to her unborn child as `the chosen one.' She expressed concern that Natalie and Chase would be jealous of her child.

"DeBlase and Keaton were evicted from Peach Place on July 23, 2010. They left Mobile, briefly lived with Keaton's grandmother in Rome, Georgia, and then moved to Louisville, Kentucky, where Keaton's mother, Hellena Keaton, lived with her fiancé Jim Emery. Hellena owned rental property in Louisville where DeBlase and Keaton lived. Next door to the rental property, Emery's friend, Les Wilson, and his wife resided. Les Wilson is a retired Louisville Metro Police officer. On August 25, 2010, Keaton gave birth to a daughter. Hellena and Emery were told DeBlase's children were living with relatives in Las Vegas.

"On November 14, 2010, while leaving his job at the airport, DeBlase was arrested for running a stop sign, no vehicle registration, and other traffic violations. He was jailed overnight, and his van impounded. The next day, Hellena overheard Keaton and DeBlase arguing, and heard her daughter say, `so, you are going to be like that. You're not with me because you love me, you are with me because...,' and heard DeBlase say, `I'll tell.' Hellena became alarmed and asked her what was going on. Keaton said the children were no longer with them, and that something happened to Natalie in the spring and to Chase on Father's Day. Hellena told Emery, who called Les Wilson for advice. Emery reported that DeBlase's children may have been killed. Wilson contacted Lt. Kevin Thompson, a Louisville Metro Police Department officer he had worked with in the past. Lt. Thompson arranged for officers to go to the residence for a welfare check to see if Keaton was in danger and remove her if she wished. Officers Krissy Hagan and Shawn Erie conducted the welfare check. They saw no sign of injury to Keaton or signs of a struggle in the residence. Based on their experience, they thought DeBlase and Keaton's reactions to their visit unusual. Keaton said that she wanted to leave with them, but was calm, slow, and deliberate in gathering her belongings. There were no harsh exchanges between Keaton and DeBlase. DeBlase mostly sat quietly and stared out the window. Keaton was taken to meet with Lt. Thompson. Soon after the officers and Keaton left the residence, Les Wilson observed DeBlase leaving the apartment carrying a travel bag.

"That same day, Lt. Thompson interviewed Keaton at his office. Her responses to his questions were long, rambling, and confusing at best. Generally, she portrayed herself as an innocent and handicapped victim of abuse by DeBlase who, because of her blindness, was not sure what happened to Natalie and Chase. She states that Natalie had a toxic odor on her breath, lost control of bodily functions, and threw up `black stuff.' She stated that on March 4th, DeBlase left for school and Natalie was put on a tarp in the closet. Keaton became concerned and called DeBlase who said he would check on her when he got home. According to Keaton's statement, on his return, Natalie was unresponsive. Keaton said Natalie was dressed in red

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pajamas, put in the back of their van after dark, and driven to a location Keaton could not describe. She said DeBlase opened the rear of the van and walked to a wooded area, and she assumed disposed of Natalie's body. She stated that on June 20th, Chase displayed the same symptoms as Natalie and became unresponsive. Chase was put in the back of the van and his body was taken to an undisclosed location. Lt. Thompson testified at trial that he believed Keaton was untruthful during the interview, was not as naive as she appeared, and was calculating when it suited her.

"Lt. Thompson contacted law enforcement in Mobile to relay information about the missing children. Donald Boykin, a former lieutenant in the homicide division of the Mobile Police Department, received the information and assigned Sgt. Angela Prine to investigate.

"Lt. Thompson obtained Keaton's cell phone. It was examined by a computer forensic expert in Louisville. He retrieved voicemails left by DeBlase. In the voicemails, DeBlase professes his love for Keaton while crying and saying he is sorry things turned out as they had. He asked her to contact him.

"Upon search of DeBlase's impounded van, law enforcement recovered pictures of Natalie and Chase, children's stuffed animals, a duffle bag, and a container of antifreeze. A second search was conducted using cadaver dogs. Both dogs alerted to the scent of dead body on items in the back of the interior area of the van.

"Sgt. Prine contacted Corrine and was advised she had not had contact with her children in over a year and did not know their whereabouts. Sgt. Prine also contacted several of DeBlase's friends in Mobile. Sgt. Prine traveled to Louisville, and with Lt. Thompson, went to a women's shelter to interview Keaton. She refused to be interviewed and left the shelter upon the officers' departure. Sgt. Prine obtained an arrest warrant for Keaton on charges of child abuse. Keaton's cell phone was traced and she was soon taken into custody.

"Sgt. Prine interviewed Keaton in Louisville on November 30, 2010. Keaton again gave long, rambling, and self-serving responses to questions. She also denied knowing how Natalie or Chase died, and relied on her visual impairment and illness during her pregnancy for her lack of knowledge. When confronted with witness statements that she had abused the children in Mobile, she aggressively responded that DeBlase's friends were conspiring against her for a variety of reasons. After that interview, Keaton was arrested for child abuse and extradited to Mobile.

"After leaving Louisville, DeBlase traveled to Pace, Florida, and stayed with his friend, Randall Melville. Melville received a call on December 2, 2010, informing him a local news program reported the police were looking for DeBlase about missing children. Melville asked DeBlase what was going on. He responded he had not killed his children, and gathered his belongings and left on foot. Melville contacted the Sheriff's office and a short time later, DeBlase was apprehended.

"B. DeBlase Interviews

"Lt. Boykin and Sgt. Prine were promptly notified that DeBlase was in the Santa Rosa County [Florida] Sheriff Department's custody and went there with a warrant for his arrest on the charge of abuse of a corpse. After giving the Miranda warnings,[[2] ] they interviewed DeBlase in the early hours of

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December 3rd. A second interview took place later that same day, and a third interview was conducted by Lt. Boykin and a Mobile County Assistant District Attorney on December 7th.

"After the first interview, DeBlase was transported to Mobile. In route, he directed Lt. Boykin and Sgt. Prine to an area off Beverly Jeffries Highway near Citronelle in north Mobile County. He indicated the general area where he disposed of Natalie's body. They then proceeded to Highway 57 north of Vancleave, M[ississippi], where DeBlase thought he disposed of Chase's body.

"At the first interview, DeBlase began with an incredible story about the children being kidnapped on Father's Day during broad daylight by two armed men wearing masks. He quickly abandoned this story when told that Keaton had admitted that Natalie died months earlier. DeBlase then related a version of events somewhat consistent with later interviews and discovered evidence. He says before he left for school on March 4th, Keaton had bound Natalie's arms and legs with duct tape. She could not move her hands or legs apart and was placed inside a suitcase. He says the suitcase was open when he left home, and that he had eye contact with Natalie and she was alive. The binding with tape and placement in the suitcase was Keaton's form of discipline for Natalie to change her attitude. She was called `princess' by family and friends and Keaton felt she must be taught not to act like a princess.

"DeBlase was absent from their Peach Place apartment for twelve to fourteen hours that day. Upon returning, he found the suitcase zipped shut in a closet. Natalie was lifeless and her body cold and stiff with her jaw locked open like something had been stuffed in her mouth. They dressed her in red pajamas and placed her in the back of their van. DeBlase drove with Keaton and Chase to the Citronelle area where Natalie's body was left in a wooded area. When asked why he did not call 911 on finding Natalie dead, he said he loved Keaton and was afraid of losing her, their expected child, and Chase.

"DeBlase also admitted that he saw Keaton duct tape Chase to a broom handle on the evening of June 19th. Keaton was disciplining Chase due to lack of success in his potty training. He was taped rigid to the broom handle and was unable to move his arms or legs, then placed in a corner of the bedroom, and wedged against the wall by a dresser. A tarp was put under his feet. DeBlase took a sleeping pill to help him sleep in the same room where Chase stood. The next morning, Father's Day, DeBlase woke to find Chase still taped to the broom with a sock in his mouth and tape around his face. Chase was dead. Chase's body was put in a garbage bag. Later, he was transported in the back of the van to Mississippi and left in the woods.

"DeBlase said for days before their respective deaths, Natalie and Chase had a strong odor on their breath and were throwing up `black stuff.' He never sought medical attention for the children or contacted law enforcement.

"C. DeBlase Letters

"After his arrest and while in Mobile Metro Jail, DeBlase wrote a number of handwritten letters. An FBI handwriting expert authenticated the handwriting as DeBlase's. The letters are dated between December 8, 2010, and January 2, 2011. Several of the letters refer to an ultimatum from Keaton in January 2010 that DeBlase choose to be with her or his children. He stated that he was

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`blinded by love' and chose Keaton. He allowed Keaton to treat the children as she wished. He wrote the children were beaten with a belt, made to stand in a corner for extended periods, and given poison in their sippy cups to break their spirits.

"In one letter, DeBlase said he found Natalie taped and gagged and dead in the suitcase on March 4th. Other letters stated she was alive in the suitcase when he found her, and after he asked her why she would not obey Keaton, he held her in the air and choked her to death to stop the torture. Several letters also state he choked Chase to death to stop his being tortured. The letters also describe the disposal of their bodies as described in his statements to the investigators.

"The investigators received these letters in [September] 2011 from Brandon Newburn, an inmate at Fountain Correctional Center. Newburn was housed in the same wedge as DeBlase in Mobile Metro Jail during the time the letters were written. Newburn protected DeBlase from harassment by other inmates. Along with his fellow cellmate, Kinard Henson, Newburn signed many of the letters as a witness. Newburn testified that no agreement existed with the District Attorney's office to have the two consecutive life sentences he is now serving reduced.

"D. Children's Remains

"On December 4, 2010, there was an unsuccessful search of the area identified by DeBlase north of Vancleave, Mississippi, with cadaver dogs. On December 5, 2010, an unsuccessful search was conducted for Natalie's body.

"On December 8th, `Operation Chase' was undertaken north of Vancleave, Mississippi, on Highway 57, with sixty to seventy people walking in parallel lines in a grid pattern across the search areas. A search member found scattered human remains in the woods not far from the roadway. Along with the human remains, there were multiple pieces of gray duct tape close to where the skull was located, a white sock attached to the duct tape, pieces of garbage bag, training pants for a child, and a diaper. There were blonde hairs found attached to the sticking side of the duct tape. An officer testified at trial that a piece of duct tape was found that when retaped together formed the dimensions of a child's head. The duct tape would cover a child's entire face, with only the nose exposed. The sock attached to the tape aligned with the location of the mouth. Also, the officer testified that there was evidence of animal activity and chew marks on the tape around the area of the eyes.

"The State used DNA from a tooth to prove they [we]re the skeletal remains of Chase. A child Chase's age usually has over two hundred and forty bones, but the investigators only recovered twenty-one bones at the scene, including pieces of the skull. The bones were found during an exhaustive search. A forensic anthropologist, Dr. Alice Curtin, testified at trial that there was evidence of animal activity and gnawing on the bones. Also, she testified that on the roof of Chase's eye orbit, there was porous bone. She stated this is usually diagnosed due to anemia, often the result of malnutrition, and it is a non-specific indicator of poor health.

"On December 11th, there was a search for Natalie's remains with seventy-seven volunteers and four dogs off of Beverly Jeffries Highway. They did a similar grid pattern, and cleared the area. The remains were found close to the road, with part of the skull and

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lower jaw located underneath a log. Found near the remains were remnants of red clothing. There was a portion of the scalp recovered that was mummified, and too hard for soft tissue DNA analysis. Again, the State used a tooth from the remains to prove they [we]re the remains of Natalie. The search only recovered sixty-eight bones. Dr. Curtin, the forensic anthropologist, testified that Natalie encountered a period of growth disruption before she died. Both the femurs and tibia bones showed Harris lines, which are lines of arrested growth, on x-rays. Although lines of arrested growth are nonspecific as to cause, nutritional deficiencies, poisoning, psychological stress, or high fever can cause them.

"Dr. Staci Turner, the doctor who performed the children's autopsies, could not determine cause of death for either child because of the condition of the remains. The condition of the bones was consistent with bones exposed to the elements for months. She ruled the manner of death of both children to be homicidal violence.

"In 2011, Natalie and Chase's remains were exhumed for testing pursuant to a Court order. The bones were tested for ethylene glycol, an active ingredient in antifreeze. The forensic toxicologist tested washes and debris from both children's craniums, a diaper recovered with Chase's remains, pants recovered with Natalie's remains, and a scalp tissue sample recovered with Natalie's remains, and found no traces of the chemical. The forensic toxicologist gave four reasons for the negative result of the testing: 1) the methods for testing were not sensitive enough to find traces of the chemical; 2) it was never ingested; 3) it was washed away by the elements because ethylene glycol is soluble in water; or 4) it could have metabolized and left no trace in the body."

(C. 59-72.)[3]

         DeBlase's defense was that Keaton killed Natalie and Chase. He claimed that he did not actively participate in the abuse or the murder of his children and that, therefore, he was not guilty of capital murder but was, at most, guilty of reckless manslaughter. DeBlase presented evidence indicating that Keaton had admitted to a social worker that she had beaten Natalie and Chase with a belt multiple times and that she believed that it was better for children to die than to suffer abuse. DeBlase also presented evidence that he sought medical treatment for Chase regularly, including the day after Natalie was killed in March 2010. In addition, DeBlase presented evidence indicating that Keaton was the dominant person in their relationship and raised the inference that Keaton was mentally unstable, and he presented evidence that he was a good father before he met Keaton.

         At the penalty phase of the trial, DeBlase presented testimony from family and friends about his childhood and difficulties in school and about his character. DeBlase also presented testimony from clinical neuropsychologist Dr. John Goff. Dr. Goff diagnosed DeBlase with "schizotypal personality disorder with dependent features."

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          According to Dr. Goff, a person suffering from this disorder has difficulty forming relationships with other people, has difficulty with his or her own identity and often likes to dress up as other people or characters, is plagued by social anxiety, and is "extremely dependent on other people and ... will go to great lengths in order to avoid being abandoned." (R. 4208.) Dr. Goff described someone suffering from this disorder as "extremely weak, pliable, [and] dependent." (R. 4214.) Dr. Goff also testified that DeBlase had low intellectual functioning with a full-scale IQ of 84, a learning disability, and attention-deficit disorder. Finally, Dr. Goff testified that Keaton had been diagnosed with antisocial personality disorder, which, he said, is characterized by a lack of conscience, cold and calculating behavior, overdramatization, and wild fluctuations in mood. According to Dr. Goff, a person with antisocial personality disorder would take advantage of, and dominate, someone with schizotypal personality disorder.

         Standard of Review

         On appeal, DeBlase raises numerous issues for our review, many of which he did not raise by objection in the trial court. Because DeBlase 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 (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, 105 S.Ct. 1038,

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84 L.Ed.2d 1 (1985) (quoting United States v. Frady, 456 U.S. 152, 163 n.14, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)).



         DeBlase contends that the trial court erred in granting his appointed defense counsel's motion to withdraw and appointing new counsel to represent him seven months before his trial. (Issue II in DeBlase's brief.) Specifically, he argues that "removing prior defense counsel without justification and without consulting or advising Mr. DeBlase regarding the removal" denied him his right to counsel of his choice. (DeBlase's brief, p. 17.) Because DeBlase did not raise this claim in the trial court, we review it for plain error. See Rule 45A, Ala. R. App. P.

         The record reflects that DeBlase was originally represented by James Sears and Ashley Cameron. Sears was appointed after DeBlase's arrest in December 2010 and represented DeBlase at the preliminary hearing in January 2011. Cameron was appointed after DeBlase was indicted in August 2011.[4] Over the course of the next two-and-a-half years, the trial was set and continued six times, with a seventh trial date of October 21, 2013. All but one of those continuances were at DeBlase's request[5] and were the result of a combination of factors, such as the loss of one of DeBlase's expert witnesses, defense counsel's dissatisfaction with the first mitigation expert they had retained, and the State's providing additional previously undisclosed discovery on the eye of trial.

         In September 2013, DeBlase's second mitigation expert, Cheri Hodson, submitted a mitigation report to the trial court and to the State per the court's order, see Part II of this opinion, infra, and that report was discussed, at the behest of the State, by the parties and the court at a hearing that same month. At the September 2013 hearing, the trial court expressed concern that Hodson had stated in her report that because of time constraints she believed that DeBlase had not received a thorough and effective mitigation investigation. However, the court recognized that there had been no motion to continue the October 21, 2013, trial setting and indicated that it was difficult to believe, given Hodson's report, as well as the report of DeBlase's first mitigation expert, that an adequate mitigation investigation had not been done. The court noted the "substantial" amount of money that it had authorized for the defense to retain expert mitigation assistance, and it further noted that, when dealing with the defense's ex parte motions for funds in that regard, it had "encouraged" defense counsel to monitor the progress of the mitigation investigation and to "stay on top of it." (R. 526.)

         The October 2013 trial setting was subsequently continued, at DeBlase's request, to March 24, 2014.[6] Status conferences were held in December 2013 and February 2014, and in early March 2014, the State requested a hearing to again discuss Hodson's September 2013 mitigation report. Hearings were held on March 7, 2014, and on March 10, 2014. Because the trial judge

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was out of town at the time, the presiding judge of the circuit conducted those hearings. At the March 7 hearing, the State indicated that it was concerned that Hodson had stated in her September 2013 report that DeBlase had not had a thorough and effective mitigation investigation and that it was unaware of any further investigation by the defense since September 2013 that would "eradicate that issue." (R. 645.) The court noted the numerous times the case had been scheduled for trial and continued, and it questioned defense counsel about the mitigation investigation — asking what Hodson had done since September 2013 and why counsel had filed an ex parte motion for an additional $10,000 for Hodson in February 2014 given that counsel had already requested and received $10,000 for Hodson and had expended almost $20,000 for their first mitigation expert.[7] Counsel explained that they had had "difficulty" with the first mitigation expert and had hired Hodson to replace the previous expert (R. 647); that Hodson's September 2013 report was her final mitigation report, although she had done "additional investigation" (R. 648); that the request for additional funds was to pay Hodson to testify at trial and "to do other things" (R. 646); and that there were "some issues with [Hodson] that ... would not be appropriate to discuss in open court." (R. 646.) Defense counsel also objected to the court discussing the defense's ex parte motions for funds in open court in front of the State and requested that a discussion be held in the judge's chambers. The court denied counsel's request, chastised counsel for providing what the court deemed unsatisfactory answers, and ordered that Hodson appear on March 10, 2014, "to explain to this court what she's been paid for and why she hasn't done what she's been paid to do." (R. 649.)

         At the March 10, 2014, hearing, the presiding judge reiterated the numerous times the case had been scheduled for trial and the amount of money that had been authorized for the mitigation investigation. The presiding judge also informed counsel that, although the trial judge typically approves an attorney-fee declaration submitted by an appointed attorney, in this case, as the presiding judge of the circuit, he was going to take over that duty and was going to examine counsel's declarations in minute detail, and the court ordered that defense counsel submit up-to-date fee declarations immediately after the conclusion of the hearing so that he could "see what you've been doing in this case ... how much time you spent with this mitigation expert ... [and] how much preparation you've been giving this case." (R. 657.)

         The court then questioned Hodson about her mitigation investigation. The court asked Hodson what she had done since submitting her report in September 2013 and whether she had asked for an additional $10,000 in funds, and defense counsel objected to the court questioning Hodson in front of the State. Counsel stated that the trial judge had "ordered that report that we presented in September be our final report," and that, as a result, counsel were "under the impression" that the September 2013 report was the report they had to use for trial and they had "instructed Ms. Hodson not to do any more work because that was the mitigation report we were stuck with." (R. 665.) When the court questioned counsel further about the trial judge's previous orders, counsel reiterated that the trial judge "told us that was the end, that that was our final

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mitigation report," and that they "were under the impression that that was what mitigation was supposed to be." (R. 666.) Hodson then interjected and said that counsel had represented to her that September 2013 was the deadline "to submit a final report" and that counsel had represented to her that the trial judge had directed her not to conduct any further investigation. (R. 667.) We note that the record contains no indication whatsoever that the trial judge ordered, or even implied, that the defense could not continue its mitigation investigation after Hodson's September 2013 report had been submitted.

         Hodson then answered some general questions in open court, but indicated that she could not provide adequate answers regarding some matters without providing details that she believed would be inappropriate to reveal in open court, and the court agreed to question her about those matters outside the State's presence. Outside the State's presence, Hodson indicated that she could not complete her mitigation investigation in time for the March 24, 2014, trial setting because she had tried repeatedly to have defense counsel subpoena a multitude of records regarding DeBlase and his family but that counsel had failed to get those records for her. Hodson said that she had expended over $8,000 of the original $10,000 authorized by the trial judge and that she had told counsel that she would need additional funds only if counsel got her the records she needed, she amended her September 2013 report, and she testified at trial.

         Hodson also indicated that counsel had not communicated with her regarding the case. For example, she said that she had asked counsel in June 2013, one month after she was retained, whether they were going to have a neuropsychologist examine DeBlase, and counsel never responded. According to Hodson, she was unaware that counsel had hired neuropsychologist Dr. John Goff until Dr. Goff telephoned her "out of the blue" in February 2014. (R. 682.) She also stated that she needed the results of Dr. Goff's evaluation to complete her mitigation investigation but that counsel never gave her Dr. Goff's report.[8] Counsel stated that they believed that Hodson had recommended that they have DeBlase evaluated by a neuropsychologist but that she did not need "to get any records back." (R. 674.)

         Hodson also said that she had never discussed trial strategy with defense counsel, even though the trial was set to begin in two weeks, and that she had "never seen a case proceed the way this one has" in the 22 years she had been conducting mitigation investigations. (R. 684.) After speaking with Hodson, the court stated that it was going to make a "strong suggestion" to the trial judge, and, over defense counsel's objection, the court directed Hodson to submit her e-mail communications with counsel, under seal, for the court to examine. (R. 686.)

         Four days later, on March 15, 2014, Sears and Cameron filed a motion to withdraw from representing DeBlase, arguing that "[d]ue to circumstances unknown to, and beyond the control of [counsel], it would not be in the best interest of ... DeBlase ... that [counsel] continue as the appointed counsel." (C. 263.) On March 17, 2014, the trial judge, who had returned from out of town, held a status hearing. The court indicated that it had read the transcripts of the hearings conducted on March 7, 2014, and March 10, 2014, and that it was apparent that the mitigation expert could not be prepared in time for the March 24, 2014, trial setting, and the

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court continued the trial. The court also granted defense counsel's motion to withdraw, over the State's objection. The court noted that it was clear from the previous hearings that the performance of defense counsel had been called into question by the presiding judge and by Hodson's testimony and that the questions about counsel's performance were sufficient justification to grant counsel's motion to withdraw. The following day, the trial court appointed new counsel to represent DeBlase and reset the trial for October 14, 2014.

         The Sixth Amendment to the United States Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." "Comprehended within the Sixth Amendment right to assistance of counsel is the right to the effective assistance of counsel and the right to counsel of one's own choosing." Lane v. State, 80 So.3d 280, 294 (Ala.Crim.App. 2010). See also Ex parte Tegner, 682 So.2d 396, 397 (Ala. 1996) (quoting United States v. Ross, 33 F.3d 1507, 1523 (11th Cir. 1994)) ("`[A] criminal defendant has a presumptive right to counsel of choice.'"). "The right to counsel of choice, in turn, ... `implies the right to continuous representation by the counsel of one's choice.'" Lane, 80 So.3d at 294 (quoting United States v. Gearhart, 576 F.3d 459, 464 (7th Cir. 2009). "[T]he wrongful deprivation of choice of counsel is `structural error,' immune from review for harmlessness, because it `pervades the entire trial.'" Kaley v. United States, 571 U.S. 320, 336-37, 134 S.Ct. 1090, 188 L.Ed.2d 46 (2014) (quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 150, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006)).

         However, the right to counsel of choice is not absolute. To the contrary, "[t]he Sixth Amendment right to choose one's own counsel is circumscribed in several important respects." Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). In Wheat, the United States Supreme Court recognized that a defendant is not entitled to choose counsel (1) who is not a member of the bar; (2) whom the defendant cannot afford; (3) who is unwilling to represent him; or (4) who is laboring under a conflict of interest. In addition, in Lane, supra, this Court recognized:

"A criminal defendant cannot use the right to counsel of choice `as a means to delay judicial proceedings.' People v. Espinal, 781 N.Y.S.2d 99, 102, 10 A.D.3d 326, 329 (2004) (quoting People v. Arroyave, 49 N.Y.2d 264, 271, 425 N.Y.S.2d 282, 401 N.E.2d 393 (1980)). Likewise, physical incapacity, gross incompetence, or contumacious conduct may justify a trial court in removing counsel. See, e.g., Burnette v. Terrell, 232 Ill.2d 522, 528, 905 N.E.2d 816, 328 Ill.Dec. 927 (2009); Weaver[ v. State], 894 So.2d [178,] 189 [(Fla. 2004)]; [People v.] Johnson, 215 Mich.App. [658,] 665, 547 N.W.2d [65,] 69 [(1996)]; and Harling[ v. United States], 387 A.2d [1101,] 1105 [(D.C. Cir. 1978)]. In addition, `unexpected difficulties in [the] trial calendar that threaten the State's right to a fair trial' may also justify removal of counsel. Weaver, 894 So.2d at 189.

80 So.3d at 299.

         Because "courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them," Wheat, 486 U.S. at 160, 108 S.Ct. 1692, "`[t]here are times when an accused's right to counsel of choice must yield to a greater interest in maintaining high standards of professional responsibility in the courtroom.'" Lane, 80 So.3d at 298-99 (quoting State v. Vanover, 559 N.W.2d 618, 626

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(Iowa 1997)). Simply put, "a defendant's right to counsel of his choice must be balanced against the need for the efficient and effective administration of justice." Hamm v. State, 913 So.2d 460, 472 (Ala.Crim.App. 2002). "Thus, a trial court may remove chosen counsel over the defendant's objection for good cause," Lane, 80 So.3d at 299, and "[t]he 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, 107 (Ala.Crim.App. 1998). See also Scott v. State, 937 So.2d 1065, 1080 (Ala.Crim.App. 2005) ("A trial court has broad discretion in considering whether to grant defense counsel's motion to withdraw."). Indeed, a trial court has "wide latitude in balancing the right to counsel of choice against the needs of fairness... and against the demands of its calendar." Gonzalez-Lopez, 548 U.S. at 152, 126 S.Ct. 2557.

         In this case, we find no error on the part of the trial court in granting Sears and Cameron's motion to withdraw from representing DeBlase. The revelation at the March 7 and 10, 2014, hearings that counsel had not discussed the case with their own mitigation expert, who counsel said they intended to call to testify at trial, other than to instruct her to stop the mitigation investigation, despite the fact that she did not believe that she had completed a thorough and effective investigation, raises serious questions about counsel's representation and preparedness for trial, which, at that time, was scheduled to begin in only two weeks. The fact that counsel had not obtained records regarding DeBlase and his family that Hodson indicated she needed and the fact that counsel was unaware that their mitigation expert would need Dr. Goff's report and, as a result, failed to inform Hodson that DeBlase had been evaluated by Dr. Goff, likewise suggest a lack of preparedness on counsel's part for the penalty phase of the trial.

         We note that DeBlase argues that counsel's representation did not rise to the level of gross incompetence which, he claims, is required under this Court's opinion in Lane for removal of counsel. Although this Court recognized in Lane that gross incompetence would be a valid basis for the removal of counsel, this Court did not hold that counsel's performance must rise to the level of gross incompetence in order to justify removal. Defendants have the right to counsel of their choice, but they also have the right to the effective assistance of counsel, and, in this case, whether Sears and Cameron were providing effective assistance with respect to the mitigation investigation was seriously questioned.

         Moreover, this is not a case, as was Lane, where the trial court removed counsel at the State's request and over the defendant's objection. In this case, the trial court removed counsel at the defense's request and over the State's objection. We note that DeBlase argues that Lane nonetheless mandates reversal of his convictions and sentence because, he says, the presiding judge forced counsel to move to withdraw by questioning counsel's performance, by ordering counsel to submit their attorney-fee declarations, and by stating that he had a "strong suggestion" for the trial judge when the trial judge returned. We disagree. Contrary to DeBlase's argument, the presiding judge did not order counsel "to prepare final fee statements as though they had already been removed." (DeBlase's reply brief, p. 10.) Rather, the presiding judge stated that he wanted to "see what you've been doing in this case ... how much time you spent with this mitigation expert ... [and]

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how much preparation you've been giving this case" (R. 657), and he ordered counsel to provide "up-to-date time fee declaration computations in this case," not final fee declarations. (R. 686.) Nor did the presiding judge "impl[y] that he would `strong[ly]' recommend [counsel's] removal" to the trial judge. (DeBlase's reply brief, p. 10.) Although the presiding judge did state that he was going to give the trial judge "a strong suggestion," the record refutes DeBlase's argument that the suggestion was the removal of counsel. At the hearing on March 17, 2014, the trial judge specifically stated what the presiding judge was suggesting: "[The presiding judge], whether he said it in the transcript, he has certainly let it be known to me that he is strongly of the opinion that the case cannot be tried on the 21st [of March] because of this deficiency with regard to Ms. Hodson's preparation." (R. 693.) Although we have no doubt that counsel felt pressure to withdraw from their representation of DeBlase after their lack of preparation was revealed at the hearings on March 7 and 10, 2014, we do not agree with DeBlase's contention that the presiding judge's comments and actions forced counsel to move to withdraw.

         That being said, any pressure counsel may have felt after the March 7 and 10, 2014, hearings does not change the fact that by filing a motion to withdraw, Sears and Cameron clearly and unequivocally indicated that they were no longer willing to represent DeBlase. As already noted, "a defendant may not insist on representation by an attorney he cannot afford or who for other reasons declines to represent the defendant." Wheat, 486 U.S. at 159, 108 S.Ct. 1692 (emphasis added). "`A criminal defendant does not have a categorical right to insist that a retained or assigned attorney continue to represent him.'" Lane, 80 So.3d at 298 (quoting People v. Childs, 670 N.Y.S.2d 4, 9-10, 247 A.D.2d 319, 325 (N.Y.App.Div. 1998). Contrary to DeBlase's belief, the right to counsel of choice did not give him the right to force Sears and Cameron to represent him unwillingly.

         Given the severity of the charges against DeBlase and balancing the interests of DeBlase's presumptive or qualified right to counsel of choice and his right to the effective assistance of counsel and the trial court's interest in maintaining integrity in judicial proceedings and high standards of professional responsibility in the courtroom, we find that the trial court did not err in granting defense counsel's motion to withdraw. Therefore, we find no error, much less plain error, as to this claim.


         DeBlase contends that the trial court erred in ordering him to produce to the State the reports prepared by his mitigation experts. (Issue VII in DeBlase's brief.) He argues that the reports were internal documents prepared by the defense and its agents and, therefore, not subject to discovery, see Rule 16.2(d), Ala. R. Crim. P., and that, even if the reports were not internal documents, they were not subject to discovery under Rule 16.2(c), Ala. R. Crim. P., because he did not introduce the reports into evidence and did not call a mitigation expert to testify at trial.

         The record reflects that DeBlase hired his first mitigation expert, Janann McInnis, in 2012 and the trial court ordered DeBlase to produce McInnis's report to the State when it was completed. DeBlase filed written objections to the trial court's order, and the issue whether the State was entitled to discovery of the report was discussed at length during pretrial hearings on October 12, 2012, and December 5, 2012. On December 17, 2012, the trial

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court overruled DeBlase's objections and ordered that DeBlase produce to the State a copy of McInnis's report within five days. Subsequently, DeBlase indicated that he was not satisfied with McInnis, and in May 2013 he requested and received funds to hire a second mitigation expert, Cheri Hodson. At a hearing in August 2013, the trial court ordered DeBlase to produce Hodson's mitigation report to the State, and DeBlase again complied with the court's order. As noted in Part I of this opinion, supra, in March 2014, attorneys James Sears and Ashley Cameron withdrew from representing DeBlase, and the trial court appointed new counsel to represent him. The record reflects that Hodson continued as DeBlase's mitigation expert after the change in representation but that counsel did not introduce Hodson's September 2013 report at trial and did not call Hodson to testify at trial.

         Rule 16.2(a), Ala. R. Crim. P., requires a defendant to disclose, upon the State's request, all "books, papers, documents, photographs, tangible objects, buildings, places, or portions of any of these things which are within the possession, custody, or control of the defendant and which the defendant intends to introduce in evidence at the trial." In addition, Rule 16.2(c) requires a defendant to disclose, upon the State's request, "any results or reports of physical or mental examinations, and of scientific tests or experiments ... which the defendant intends to introduce in evidence at the trial or which were prepared by a witness whom the defendant intends to call at the trial." However, Rule 16.2(d), provides:

"Except as to scientific or medical reports, this rule does not authorize the discovery or inspection of reports, memoranda, or other internal defense documents made by the defendant or the defendant's attorneys or defendant's agents in connection with the investigation or defense of the case; nor shall this rule authorize discovery or inspection of statements made by the defendant to defendant's attorneys or agents, or statements made by state/municipality or defense witnesses, or prospective state/municipality or defense witnesses, to the defendant, the defendant's attorneys, or agents."

         After examining the reports prepared by both DeBlase's mitigation experts, we conclude that those reports were not subject to discovery. The mitigation reports cannot fairly be characterized as medical or scientific reports so as to fall within Rule 16.2(c), although one report did rely in part on medical records relating to DeBlase, and there is no indication in the record that DeBlase intended to introduce those reports into evidence so as to make them discoverable under Rule 16.2(a). The report prepared by McInnis consists primarily of a synopsis of the interviews she conducted with DeBlase, his parents, and several of his friends, i.e., it is little more than a summary of "statements made by the defendant to defendant's attorneys or agents, [and] statements made by state/municipality or defense witnesses, or prospective state/municipality or defense witnesses, to the defendant, the defendant's attorneys, or agents." Rule 16.2(d). The report prepared by Hodson goes only slightly further; it provides a social history of DeBlase and his parents based on statements made by DeBlase, his parents, and several of DeBlase's friends, and includes Hodson's expert opinion as to the impact that history had on DeBlase and a listing of what Hodson believed were relevant mitigating circumstances. Both reports fall squarely within Rule 16.2(d), and the trial court erred in ordering DeBlase to produce the reports to the State. Cf., Knotts v. State, 686 So.2d 431, 473-74 (Ala.Crim.App. 1995), aff'd, 686 So.2d 486 (Ala. 1996)

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(holding that the trial court erred in ordering the defendant to provide to the State a summary of the expected testimony of his expert criminologist, who testified at the penalty phase of the trial).

         However, our conclusion that the trial court erred in ordering discovery of the reports does not end our analysis. Rule 45, Ala. R. App. P., provides:

"No judgment may be reversed or set aside, nor new trial granted in any civil or criminal case on the ground of misdirection of the jury, the giving or refusal of special charges or the improper admission or rejection of evidence, nor for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties."

See Jackson v. State, 623 So.2d 411, 413 (Ala.Crim.App. 1993) (recognizing applicability of the harmless-error rule to discovery issues).

         DeBlase has failed to establish that he was prejudiced by disclosure of the reports. DeBlase argues that the reports contained "intimate details" of his life and that he was "[u]ndeniably" prejudiced because, he says, disclosure of the reports to the State "allowed the State unfair access to [his] mitigation evidence, as well as his penalty-phase strategy." (DeBlase's brief, p. 66.) However, DeBlase admits that he presented at trial "only a fraction" of the information that was contained in the reports, and he does not argue, nor does the record reflect, that the information in the reports was not otherwise available to the State or that the State used the information in the reports to his detriment at trial. (DeBlase's brief, p. 60.) Based on the record before us, we have no trouble concluding that the trial court's error in ordering DeBlase to produce the mitigation reports to the State did not injuriously affect his substantial rights and was, at most, harmless error. Therefore, DeBlase is entitled to no relief on this claim.


         DeBlase contends that the trial court erred in denying his motion for a change of venue. (Issue VIII in DeBlase's brief.) He argues that the media coverage of the murders was so extensive and prejudicial that he could not receive a fair trial in Mobile County.

         In April 2013, DeBlase filed a motion for a change of venue, arguing that "newspapers, broadcast media, and other forms of communication in Mobile County and neighboring counties have given the case such extensive publicity, and in a manner so prejudicial to him, that it is impossible to conduct a fair trial by an impartial and unbiased jury in this county." (C. 110-11.) DeBlase also asserted that comments in response to media reports on the Internet "show the vitriol and bias still present in the residents of Mobile County," and he attached to his motion a printout of comments to one media report that was published on the Internet. (C. 111.) DeBlase also requested and received funds to hire a polling expert.

         The trial court held three hearings on the motion in July, August, and September 2013.[9] At those hearings, DeBlase did not present evidence of any media reports

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about the case.[10] However, he presented testimony from Jerry Ingram about a telephone poll Ingram had conducted of 300 Mobile County residents in February and March 2013. Ingram testified that, of the 300 people polled, roughly two-thirds had heard about the murders. Of those who had heard about the case, Ingram said, roughly 68% indicated that they believed DeBlase was guilty based on what they had heard. We note that those responding to the poll were not asked whether they could set aside their opinions and what they had heard about the case and try the case fairly if they were called as a juror.

         In response, the State presented testimony from its own polling expert, Verne Kennedy, who had reviewed Ingram's report. Kennedy testified that, based on the methodology used in the poll and the fact that there was a similar case in Mobile County involving a father killing his children that had also received widespread publicity, see Luong v. State, 199 So.3d 98 (Ala.Crim.App. 2013), rev'd, 199 So.3d 139 (Ala. 2014), opinion after remand, 199 So.3d 173 (Ala.Crim.App. 2015), Ingram had overstated the percentage of people who believed DeBlase was guilty. Kennedy estimated that roughly 40% of those who had heard about the case had formed an opinion that DeBlase was guilty of killing his children, a substantially smaller percentage, Kennedy said, than in the Luong case, in which 71% of those who had heard about the case had formed an opinion that the defendant was guilty.

"`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

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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)."

Floyd v. State, 289 So.3d 337, 372-73 (Ala.Crim.App. 2017).


         DeBlase argues that he suffered actual prejudice because, he says, several jurors who sat on his jury had read or heard something about the case through the media, three of those jurors had heard what he describes as "highly prejudicial media reports" that referenced abuse, starvation, and poisoning, and one of those jurors "never indicated she was capable of setting this prejudicial information aside." (DeBlase's brief, pp. 70-71.)

"`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, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961)).

Floyd, 289 So.3d at 373.

         The record reflects that seven jurors who served on DeBlase's jury had heard something about the case through the media. However, none of those jurors indicated, either on the juror questionnaire or during individual voir dire, that he or she had a fixed opinion as to DeBlase's guilt or innocence. Three of those jurors were asked during individual voir dire if they could set aside what they had heard and try the case fairly, and all three indicated that they could. The other four jurors were not asked by either party if they could set aside what they had heard, even though both parties had ample opportunity to do so. As noted above, the burden is on the defendant to prove that a change of venue is warranted. The fact that four jurors were never asked whether they could set aside what they had heard about the case does not establish that those jurors could not do so, much less that they had fixed opinions as to DeBlase's guilt. DeBlase failed to prove that he was actually prejudiced by pretrial publicity so as to warrant a change of venue.


         DeBlase also argues that prejudice should be presumed in this case because, he says, the media coverage was sensational and inflammatory and contained information not admitted at trial. Specifically, DeBlase argues that one media report stated that Natalie and Chase may have been poisoned with antifreeze, another stated that DeBlase and Keaton had tested the antifreeze on the family dog to determine how long it would take to poison the children (information that was not presented to the jury), and yet another included an interview with a law-enforcement officer who had stated that "hell is not hot enough for the Defendant in his opinion." (R. 493.)

"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)

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(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, 83 S.Ct. 1417, 10 L.Ed.2d 663 (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, 130 S.Ct. 2896, 177 L.Ed.2d 619 (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))."

Floyd, 289 So.3d at 374.

         "Mobile County has a large and diverse population" and "[a]ccording to the 2010 census, ... was Alabama's second largest county with a population of over 400,000 citizens," thus "reduc[ing] the likelihood of prejudice" and making "this Court ... reluctant to conclude that 12 impartial jurors could not be empaneled." Luong v. State, 199 So.3d 139, 147 (Ala. 2014). Moreover, although DeBlase presented evidence indicating that roughly two-thirds of Mobile County residents had read or heard something about the case, a percentage consistent with the number of prospective jurors who had read or heard about the case, "`[p]ublicity' and `prejudice' are not the same thing. Excess publicity does not automatically or necessarily mean that the publicity was prejudicial." Hunt v. State, 642 So.2d 999, 1043 (Ala.Crim.App. 1993), aff'd, 642 So.2d 1060 (Ala. 1994). As noted above, DeBlase presented no evidence of the content, timing, or extent of the media coverage in this case and, although DeBlase references in his brief on appeal three media reports, he admits that two of those reports occurred in February 2011, almost three years before his trial, and the record does not reflect when the other report occurred. Finally, nothing in the record indicates that the media interfered with the trial or influenced the jury's verdict.

         DeBlase failed to establish that the media coverage in this case so pervasively saturated the community as to create an emotional tide against DeBlase that rendered

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the court proceedings nothing more than a hollow formality or that the publicity in this case was 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 DeBlase's motion for a change of venue.


         DeBlase contends that the trial court erred in allowing the venire to be death-qualified. (Issue XXI in DeBlase's brief.) Specifically, DeBlase 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, 253 So.3d 447, 503 (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.


         DeBlase contends that the trial court erred in its rulings on several challenges for cause. (Issues XIII and XIV in DeBlase's brief.)

         "To justify a challenge for cause, there must be a proper statutory ground or `"some matter which imports absolute bias or favor, and leaves nothing to the discretion of the trial court."'" Ex parte Davis, 718 So.2d 1166, 1171 (Ala. 1998) (quoting Clark v. State, 621 So.2d 309, 321 (Ala.Crim.App. 1992), quoting in turn, Nettles v. State, 435 So.2d 146, 149 (Ala. Crim. App.), aff'd, 435 So.2d 151 (Ala. 1983)). "A trial judge's finding on whether or not a particular juror is biased `is based upon determinations of demeanor and credibility that are peculiarly within the trial judge's province.'" Martin v. State, 548 So.2d 488, 490 (Ala.Crim.App. 1988), aff'd, 548 So.2d 496 (Ala. 1989) (quoting Wainwright v. Witt, 469 U.S. 412, 429, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985)). Thus, "[b]road discretion is vested with the trial court in determining whether or not to sustain challenges for cause." Ex parte Nettles, 435 So.2d 151, 154 (Ala. 1983).


         First, DeBlase contends that the trial court erred in denying his challenges for cause as to four prospective jurors — Jurors no. 29, 43, 95, and 102 — who, he argues, indicated during voir dire that they would automatically vote to impose the death penalty if DeBlase was convicted of capital murder. Although DeBlase admits that Jurors no. 29, 43, 95, and 102 vacillated in their responses to questioning about their views on the death penalty, he argues that their vacillating responses were "not sufficient to overcome probable prejudice" and should be "given little weight" because, he says, the jurors indicated they could follow the law and the trial court's instructions only in response to "leading questions" by the prosecutor. (DeBlase's brief, pp. 83-85.) We disagree.

         The record reflects that each prospective juror filled out a questionnaire, agreed upon by the parties, which included several questions regarding their views on the death penalty, and that each prospective juror was questioned individually regarding their views on the death penalty. Many prospective jurors were confused about the process in a capital trial and provided answers during individual voir dire that contradicted their responses on the questionnaire. Adding to the confusion were the leading and ambiguous questions posed by both parties that often resulted in prospective

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jurors providing contradictory answers during individual voir dire, as if they were trying to answer questions in such a way as to please whichever party's attorney was asking the questions. Much of the questioning by the parties was geared toward eliciting certain responses from certain prospective jurors based on those jurors' responses on the questionnaire.

         For example, when questioning a prospective juror who had indicated on the questionnaire that he or she was in favor of the death penalty, defense counsel would phrase their questions in such a manner as to elicit a response indicating that the prospective juror would automatically vote to impose the death penalty in all capital-murder cases or a response indicating that certain mitigating circumstances did not "matter" to the prospective juror, without providing an adequate explanation regarding the law the juror would be required to follow in making a sentencing determination. Likewise, when questioning a prospective juror who had indicated on the questionnaire that he or she was not in favor of the death penalty, the State would phrase its questions in such a manner as to elicit a response indicating that the prospective juror would never vote for the death penalty, again without providing an adequate explanation regarding the law the juror would be required to follow in making a sentencing determination. Recognizing this, the trial court, as individual voir dire progressed, began cautioning prospective jurors to not simply agree with whatever question was asked and to ask for clarification of any question they found confusing and, in many instances, the trial court stepped in and questioned prospective jurors in a more neutral manner after providing an explanation of the law and a juror's duty to follow the law.

         Juror no. 29 indicated on his questionnaire that he was in favor of the death penalty and that the death penalty should be imposed in all capital-murder cases. When questioned by the State during individual voir dire, Juror no. 29 indicated that he would listen to both sides during the penalty phase of the trial before determining a sentence and that he would not automatically vote for the death penalty, but when questioned by defense counsel, Juror no. 29 indicated that he would "[p]robably" automatically vote for the death penalty if DeBlase were convicted of capital murder and that mitigating circumstances, such as a defendant's childhood or lack of criminal history, would not "matter" to him in determining the appropriate sentence. (R. 1696.) However, the trial court then questioned Juror no. 29 as follows:

"THE COURT: So, are you saying that if there's a conviction, if there's a conviction by all the jurors beyond a reasonable doubt voting for a conviction of capital murder, intentional murder and then we go to the second phase and I'm going — you're going to hear more evidence. Some would indicate why the death penalty should be imposed. Other evidence may indicate or try to indicate why it should not be imposed. It will go both ways.

"[Juror no. 29]: Right.

"THE COURT: And I'll give you more instructions on the law about how you should consider those factors in your deliberations. You feel that you could — with an open mind, even after you voted to convict, with an open mind, you could listen to both sides of that question and you could listen to my instructions, follow those instructions like your oath will tell you that you must do, and arrive at a fair — a fair decision about the death penalty or life without parole?

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"[Juror no. 29]: Yes, sir.

"THE COURT: You can do that?

"[Juror no. 29]: Yes, sir.

"THE COURT: You have no prior feelings about for or against the death penalty that would override your determination? You would listen to us and listen to the trial, is that right?

"[Juror no. 29]: Yes, sir."

(R. 1698-99.)

         Juror no. 43 indicated on her questionnaire that she was in favor of the death penalty; that "if there is evidence to support a person committed a killing then death should be the punishment"; and that she believed that the death penalty was appropriate in some capital-murder cases and she could vote to impose the death penalty. When questioned by the State during voir dire, Juror no. 43 indicated that she would not automatically vote to impose the death penalty but that she would be open-minded and would listen to both sides before making a sentencing decision. When questioned by defense counsel, Juror no. 43 indicated that she believed the death penalty is the appropriate punishment whenever a defendant is found guilty of capital murder and that mitigating circumstances, such as a defendant's childhood or lack of criminal history, would not "matter" to her in determining sentence. Upon further questioning by the State, Juror no. 43 again indicated that she would not automatically vote to impose the death penalty upon a conviction for capital murder but would be open-minded and listen to both sides and, when questioned further by defense counsel, Juror no. 43 clarified that if the defendant's background is "brought up during the sentence phase," she would consider it in making a sentencing decision. (R. 1813.) She also made clear that she did not believe that the death penalty was appropriate in every capital-murder case; that, although she believed in the death penalty, she would still need to be convinced that death is the appropriate punishment in any given case; and that, when she was answering defense counsel's questions previously, she did not mean that she would automatically vote for the death penalty upon a conviction for capital murder.

         Juror no. 95 indicated on his questionnaire that he was in favor of the death penalty as a deterrent and that the death penalty should be imposed in all capital-murder cases. When questioned by the State during voir dire, Juror no. 95 indicated that he could vote for the death penalty or for life imprisonment without the possibility of parole and stated that he did not have a fixed opinion that the death penalty should be imposed automatically upon a conviction for capital murder. In response to defense counsel's questioning, Juror no. 95 indicated that he believed the death penalty should be imposed once a defendant is convicted of capital murder and that mitigating circumstances, such as a defendant's childhood or lack of criminal history, would not "matter" to him. However, upon further questioning by the State, Juror no. 95 indicated that, although it would be difficult, he could vote for life imprisonment without the possibility of parole. The trial court then explained the process of a capital trial, after which the following occurred:

"THE COURT: ... So, the question I need to know is, is your feelings, as you understand your feelings to be concerning the imposition of the death penalty, that it would be so strong that you could not back away from those feelings and listen to the instructions on the law fairly, fairly. Give everybody their fair day in court and fairly consider all the evidence, pro death penalty and against death penalty, and then arrive at a fair and impartial determination. The question

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is can you do that or — or your sense about the death penalty, that it makes bad people think twice before they do bad in the future, those kind of thoughts, would they be so powerful in your mind that you think you could not be completely fair and impartial? Do you think you could be fair at that stage or do you think your personal feelings about the imposition of the death penalty would be so strong that you've got to tell me now I don't think I can really be fair?

"[Juror no. 95]: I think I could be fair.

"THE COURT: Okay. And your answer — they read it back to you several times, death penalty, you said, great, makes the bad person think twice before doing it. Well, the sentence in this case, whatever it is, whatever it is, is not about anything other than this case and these facts and John DeBlase. It's not about a public policy statement. It's not about how it's going to affect other people. It's about this case. It's particularized and customized, the sentence is, just to John DeBlase and this case. You understand that?

"[Juror no. 95]: Yes, sir."

(R. 2230-32.) In denying DeBlase's challenge for cause, the trial court stated:

"I believe that he is — I've observed him. I've looked him — as they say, I looked him in the eye when he listened to the questions and responded and I'm satisfied that he does not have an overwhelming or overriding predisposition concerning the imposition of the death penalty that would not make him fair in this case."

(R. 2232.)

         Juror no. 102 indicated on her questionnaire that she was in favor of the death penalty; that "if the person is guilty of a crime then he should die"; that she believed the death penalty is an appropriate penalty in some capital-murder cases and she could vote to impose the death penalty; and that the death penalty is appropriate "only if it requires it and [the defendant] is guilty." When questioned by the State during voir dire, Juror no. 102 first indicated that she could never vote for life imprisonment without the possibility of parole. We note that although the State briefly explained to Juror no. 102 the two-part process of a capital-murder trial and the difference between aggravating circumstances and mitigating circumstances, the State did not inform Juror no. 102 about the law, i.e., that if the aggravating circumstances did not outweigh the ...

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