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Petersen v. State

Alabama Court of Criminal Appeals

January 11, 2019

Ryan Clark Petersen
v.
State of Alabama

          Appeal from Houston Circuit Court (CC-12-878; CC-12-879; CC-12-880; CC-12-881; and CC-12-882)

          JOINER, JUDGE.

         Ryan Clark Petersen was convicted of one count of murder made capital because two or more persons were murdered by one act, scheme, or course of conduct, see § 13A-5-40(a)(10), Ala. Code 1975; three counts of murder made capital because three people were killed during the course of a burglary, see § 13A-5-40(a)(4) Ala. Code 1975; and one count of attempted murder, see §§ 13A-6-2 and 13A-4-2, Ala. Code 1975. During the penalty phase of Petersen's trial, the jury recommended by a vote of 10 to 2 that Peterson be sentenced to death on the capital-murder convictions. The circuit court then sentenced Petersen to death for his capital-murder convictions and to life imprisonment for his attempted-murder conviction. This appeal, which is automatic in a case involving the death penalty, followed.[1] See § 13A-5-53, Ala. Code 1975.

         Facts and Procedural History

         In its sentencing order, the circuit court recited the following facts underlying Petersen's convictions and sentences:

"On August 9, 2012, Ryan Clark Petersen shot and killed Cameron Paul Eubanks, Tiffany Paige Grissett and Thomas Robins, and seriously wounded Scotty Russell at Teasers nightclub in rural Houston County. Petersen used a Glock [brand] 9mm pistol he purchased approximately one month earlier, and had been issued a concealed carry pistol permit by the Coffee County sheriff's department a few days before the shootings.
"Teasers is a lawfully operated nightclub, licensed to sell alcoholic beverages, and features scantily clothed women dancers, also referred to as performers, as entertainers for patrons. Teasers is located on U.S. highway 84 in the rural unincorporated area of Wicksburg in western Houston County. Typically, Teasers requires a 'coverage charge' for entry. But, the evening of August 9, 2012, the nightclub offered a special discount it called 'Tattoo Thursday.' Customers could show their personal tattoo and gain entry for free without paying a cover charge. Teasers and the dancers typically make money by either the customers paying the dancers for dances or customers purchasing drinks for the dancers. Either way, the proceeds are shared between the club and the dancers. Teasers does not accept any form of payment other than cash, and an ATM machine is on the premises. The building is divided into two areas for customers: a larger room that holds a bar, a DJ booth, numerous tables and chairs and dance stages for the dancers, and a smaller room with couches for 'private dances,' also referred to as 'lap dances.' During normal business operation the public areas are dimly lit and feature recorded music and strobe lighting. Teasers has a 'no touch' policy, meaning patrons are not permitted any physical contact with the dancers. Also, state licensing regulations require the dancers to have at least minimal coverage of the breasts [and] pelvic areas. Firearms are not permitted inside the nightclub. Teasers is operated as a private membership club under Alabama law.
"Petersen, an Enterprise resident, traveled alone in his car to Teasers, about fifteen miles east of Enterprise, the evening of August 9, 2012. Petersen entered the club by showing his tattoo and was not charged a fee. He had approximately three-hundred dollars in United States currency with him. Holly Lowery was a waitress who served Petersen. She testified Petersen was served beer and other drinks, and he purchased drinks for the dancers. Petersen remained in the larger dance room. Lowery stated that Petersen was not intoxicated, but that he was 'buzzed.' She also described Petersen as 'rude.' Crystal Sellers was a dancer that night and testified that Petersen was 'drunk' and was talking to everyone and touching other people. She stated he was stumbling, he was referring to himself as 'Clark Kent' and people were laughing at him.
"Bruce Middleton is a co-owner of Teasers (along with Paul Eubanks, Cameron's father). Middleton was working at Teasers on the night of August 9, 2012. An employee came to Middleton in his office and reported that Paige, one of the dancers, was having problems with Petersen. Middleton had Petersen brought to his office. Middleton testified that Petersen did not appear intoxicated, but he was upset over a dispute with a dancer about a 'dollar dance.' Middleton stated that Petersen told him he gave Paige a twenty dollar bill and he was being 'ripped off.' Middleton offered to refund twenty dollars to Petersen, who became belligerent. At this point, Middleton told Petersen he had to leave the club since he had been warned twice earlier in the evening about 'groping' dancers. Middleton stated Petersen began cursing and refused to leave.
"When Petersen refused to leave the office, Middleton and Joe Glow (an employee) grabbed Petersen's wrists and arms and began to forcibly remove him. Cameron Eubanks, also an employee, who was working the entry area, aided the physical removal of Petersen. James Williams, the DJ, came and followed the men removing Petersen. William Gaines, the bartender, testified that Petersen was resisting the men and was 'flailing' and grabbing the door frame in resistance. However, Petersen [was] successfully physically removed with no injury to anyone, including Petersen. A portion of Petersen's removal [was] recorded on video by the nightclub's video surveillance system.
"Lorainne Peacock was in her vehicle in the Teasers parking lot and saw Petersen being forcibly removed through the front door. She testified that she witnessed Petersen calmly walk to his Ford Taurus automobile in the parking lot, and enter the front passenger door. Petersen then got out of the car with a pistol and walked back to the front door of Teasers. Cameron Eubanks was still standing just outside the front door. Petersen approached Eubanks and shot him with the pistol six times: twice in the chest, twice in the abdomen, once in the pelvic region and once in the head.
"Petersen then entered the front door by either stepping over Eubanks's body or around him. As Petersen made entry, a patron, Scotty Russell, was in the club and proceeding towards the front door exit. Russell was not aware of the murder that just occurred. Russell was suddenly and unexpectedly confronted by Petersen in the narrow hallway just inside the front door. Upon seeing ... Petersen with a handgun Russell instinctively threw his right arm up towards his head and Petersen shot him in the arm. Russell testified that he 'played dead' and heard Petersen say to someone else 'alright bitch it's your turn now' and he heard more shooting. Russell was able to exit the club. Russell spent three days in the hospital for his injury. The gunshot shattered the bone in his right arm, requiring the installation of a rod, plate and three pins in surgery, along with one hundred and thirty (130) stitches and physical therapy. Russell spent five months undergoing physical rehabilitation, and testified his right arm is eighty-eight (88) percent functional and shrapnel remains in his arm. Russell subsequently filed a lawsuit against Teasers in which he alleged, through his attorney, that Petersen was 'visibly intoxicated.'
"Petersen, in the main room of the club, then shot Tiffany Paige Grissett, a dancer, twice in the back, causing her death. Both bullets passed through Grissett's body and at least one lodged in a wall. Petersen then entered the smaller private dance room and fatally shot Thomas Robins, a customer, in the chest. Petersen's gun had ten bullets, and at this point he has used each one in a deadly manner on another human being (eight in the torso, one in the head, one in an arm blocking the head).
"Petersen then left Teasers through the front door into the parking lot. He went around to the rear of the building. By this time, Paul Eubanks, who lived in a home immediately behind Teasers was aware of the shooting in the club. Paul Eubanks [saw] Petersen fleeing to the west behind the club and fire[d] three shots with his own pistol at Petersen, but [did] not hit him. Petersen successfully scale[d] a fence into an adjoining field in the darkness.
"The Houston County sheriff and deputies responded to the club, but [were] unable to locate Petersen during the night. In the early dawn of August 10, 2012, Petersen voluntarily [came] out of the field and [was] arrested. Petersen had visible scrapes and scratches from fleeing into the field. Petersen [was] immediately taken to the Houston County jail. As part of the booking process the jail's physician's assistant, Jason Smoak, examine[d] Petersen for physical injuries and [found] none, other than the scrapes and scratches from the field where he fled after the murders. When Smoak ask[ed] Petersen how he fe[lt], Petersen answer[ed] by saying 'I feel like I just shot three people.' Smoak further stated that Petersen did not appear to be under the influence of any substance, his speech was not slurred, and he responded appropriately to questions.
"Thereafter, on August 10, 2012, Bill Rafferty, an investigator with the Houston County sheriff's department interview[ed] Petersen. Petersen [told] Rafferty that he [was] bipolar and [was] prescribed Seroquel, Klonopin and Zoloft for his mental health condition. Petersen state[d] he was drinking at Teasers and ran out of money, but the dancer nevertheless ordered a drink and wanted him to pay. Petersen also state[d] he was taken to an office and was 'manhandled' out the front door by three men. Petersen [told] Rafferty he then did something 'crazy' and 'without thinking I did something I can't take back' out of anger. Petersen [got] the gun from his car's glove box and admit[ted] to shooting someone, and having gunshots fired at him. He discusse[d] the circumstances of his purchase of the pistol and obtaining a pistol permit. Petersen state[d] he [did] not remember shooting in the club and describe[d] his conduct as 'like an out of body experience.' At one point, Petersen ask[ed] Investigator Rafferty if he shot a girl. Petersen state[d] that it 'drives me crazy' to be touched the way he was by the owner and employees and that he was 'disrespected.' He [went] on to make statements to Rafferty that 'I can't believe I did this shit over that' and 'I don't remember firing in the building' or going to the smaller private dance room. Petersen state[d] that he 'blacked out' and denie[d] wanting or intend[ing] to kill anyone. He state[d] he only remember[ed] killing Eubanks, but not the shooting of Russell, Grissett, and Robins.
"Dr. Alfredo Parades, a state medical examiner of the Alabama Department of Forensic Sciences, performed the postmortem examination of Tiffany Paige Grissett. She was shot twice in the back, with one shot entering her left lower back and exiting through her left side below her breast and the other entering her right middle back and existing through her right upper abdomen. Both gunshots were fatal and struck internally the bottom of her lung, her thoracic aorta and her stomach. Grissett suffered massive internal hemorrhaging. Dr. Parades found gunpowder stippling on her skin, which indicate[d] Petersen was at close range when he shot her, approximately eighteen or twenty-four inches away. Dr. Parades stated Grissett survived long enough to feel pain from her injuries.
"Dr. Steven Denton, a state medical examiner of the Alabama Department of Forensic Sciences, performed a postmortem examination of Thomas Robins and Cameron Eubanks. Robins was shot once in the lower left chest. The bullet struck Robins's ribs, diaphragm, colon, thoracic aorta and spine, and he lost over half of his body's blood. Dr. Denton recovered the bullet just under the skin of Robins's back. Dr. Denton stated Robins survived for a few minutes before dying.
"Dr. Denton found six bullet wounds in his postmortem examination of Cameron Eubanks. Dr. Denton [could] state the order of the wounds. The gunshots [were] as follows: (1) left chest; no damage to internal organs; bullet exited the body (2) upper abdomen/lower chest; internal wounds to diaphragm, liver, ribs, lower lung, with a large amount of blood loss; no exit wound (3) outer right side of the abdomen; exit right back (4) lower right abdomen; small intestine wounded; bullet penetrated and stopped in the lumbar spine (5) right pelvic-thigh area; exit left buttocks (6) head wound; top of head, with a sharp downward trajectory into and through the brain; immediate loss of consciousness.
"Adam Zeh, an investigator with the Houston County sheriff's department, testified regarding the crime scene at Teasers. Petersen's car was found with the glove box open and the keys were recovered in the front passenger floor. The gun case for the Glock pistol and another clip with ten bullets for the pistol were also found in Petersen's car. A receipt from Publix grocery store in Enterprise for two bottles of cough syrup containing DXM [('dextromethorphan'] was recovered. Zeh testified he recovered a video surveillance system from Teasers nightclub which recorded portions of the events. His investigation determined that Petersen was in Teasers for about three hours and forty-five minutes before he was removed. Petersen began shooting between 11:30 p.m. and 11:35 p.m. Zeh determined Petersen bought the pistol on July 5, 2012, at the Ordnance Depot (a licensed gun dealer) in Daleville, Alabama, for $499.00. Petersen only had some coins and foreign currency in his possession when he was arrested. Also, Petersen's pistol permit expired on August 6, 2013. Zeh also found that Petersen was treated by South Central Mental Health on August 8, 2012, the day before the shooting, and he had mental-health appointments scheduled for September 5, 2012, and September 13, 2012.
"The evidence at trial establishe[d] that Petersen had a variety of mental health issues. At various times prior to the homicides, he was diagnosed with bipolar disorder, depression, anxiety, and mood disorder. On September 30, 2011, Petersen was diagnosed by the South Central Mental Health Board as meeting the criteria of 'seriously mentally ill' and consequently disabled due to mental illness. In March 2012, the Social Security Administration approved Petersen for disability benefits due to his mental-health disability. Evidence at trial indicate[d] Petersen may have used lump sum back payment from the Social Security Administration to purchase his automobile and the Glock 9 mm pistol. Petersen volunteered and was inducted into the United States Navy, but later was involuntarily discharged based on his failure to disclose his mental health condition.
"Petersen was arrested in 2012 for misdemeanor theft of property third degree and placed in the Coffee County sheriff's jail. While in the jail he appeared suicidal and homicidal to jail officers and the commander on February 1, 2012, filed a petition in the Coffee County probate court against Petersen for involuntary commitment. The probate court ordered Petersen committed to the in-patient behavioral medicine unit (BMU) at the Southeast Alabama Medical Center (SAMC) in Dothan for evaluation.
"During his hospitalization at the SAMC a psychiatrist, Dr. Waggoner, diagnosed Petersen as bipolar with psychotic features and polysubstance abuse. Dr. Waggoner found Petersen to pose a danger to himself and to others and recommended to the probate court that Petersen be involuntarily committed to the State of Alabama for long-term psychiatric treatment at Searcy State Hospital. At the final hearing before the Coffee County probate court, with all parties represented by lawyers, an employee of the South Central Mental health Board opposed Dr. Waggoner's recommendation, and instead recommended to the court that Petersen be released to the care of his mother and receive outpatient treatment for his mental illness. The probate court entered judgment denying long-term involuntary commitment to the State of Alabama and released Petersen to his mother with orders that he receive out-patient treatment for his mental illness. On the morning of August 9, 2012, Petersen attended a mental health group meeting, where he was described as irritable, having difficulty with anger control and impulse control, that he 'will snap easily' and has limited family support. Petersen also indicated that he needed more Klonopin. Patricia Huckabee, a therapy group member, testified Petersen was crying at the meeting and stated that he needed to see a doctor.
"Dr. Mark Cunningham is a clinical and forensic psychologist who testified for the defense. He conducted a thorough and exhaustive review of Petersen's mental health history. Dr. Cunningham gave his opinion that at the time of the shootings Petersen was experiencing Klonopin withdrawal and he was abusing DXM (cough medicine), which can create euphoria, hallucination and a 'high' experience. Dr. Cunningham also gave his opinion that Petersen suffers from a mood disorder with autism spectrum features. Dr. Cunningham testified that at the time of the crimes Petersen was intoxicated. The evidence also showed that Petersen received a psychiatric evaluation of social phobia from Dr. Handal on December 14, 2006, a psychological evaluation from Dr. Fred George on December 29, 2006, diagnosis of social isolation and alienation from Dr. Melanie Cotter on February 5, 2007, and a psychological assessment from Bradford Mental Health on January 12, 2009.
"Dr. Doug McKeown is a clinical and forensic psychologist who conducted an examination of Petersen pursuant to Rule 11.3, Alabama Rules of Criminal Procedure, to render an opinion regarding Petersen's mental state at the time of the crimes and his competency to stand trial. Dr. McKeown testified that Petersen suffers from mood disorder, substance abuse and he is bi-polar. Dr. McKeown also testified that in his opinion there is no evidence Petersen was suffering from severe mental disease or defect at the time of the crimes or any mental disease or defect that would render him unable to appreciate the wrongfulness of his acts. Dr. McKeown stated that Petersen admitted to consuming 'six drinks' at Teasers prior to the murders."

(C. 538-46.)[2]

         On December 22, 2016, the jury found Petersen guilty as charged in the indictment. During the penalty phase, the jury found by special verdict forms that the State had established three aggravating factors beyond a reasonable doubt: (1) that Petersen created a great risk of death to many persons; (2) that the capital offense was committed while Petersen was engaged in the commission of, or an attempt to commit, a burglary; and (3) that Petersen intentionally caused the deaths of two or more persons by one act, scheme, or course of conduct. On January 5, 2017, the jury recommended by a vote of 10 to 2 that Petersen be sentenced to death.[3]

         On March 24, 2017, the circuit court sentenced Petersen to death for his capital-murder convictions and to life imprisonment for his attempted-murder conviction. In sentencing Petersen to death, the court found that the mitigating circumstances[4] in Petersen's case were substantially outweighed by the aggravating circumstances. Thereafter, Petersen filed a timely notice of appeal.

         Standard of Review

         On appeal from his convictions and sentence, Petersen raises numerous issues, including some not raised in the circuit court. Because Petersen has been sentenced to death, however, this Court must review the circuit court proceedings under the plain-error doctrine. See Rule 45A, Ala. R. App. P.

"'"Plain error is defined as error that 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. As the United States Supreme Court stated in United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the plain-error doctrine applies only if the error is 'particularly egregious' and if it 'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.' See Ex parte Price, 725 So.2d 1063 (Ala. 1998), cert. denied, 526 U.S. 1133, 119 S.Ct. 1809, 143 L.Ed.2d 1012 (1999)."'
"Ex parte Brown, 11 So.3d 933, 935-36 (Ala. 2008)(quoting Hall v. State, 820 So.2d 113, 121-22 (Ala.Crim.App.1999)). See also Ex parte Walker, 972 So.2d 737, 742 (Ala. 2007); Ex parte Trawick, 698 So.2d 162, 167 (Ala. 1997); Harris v. State, 2 So.3d 880, 896 (Ala.Crim.App.2007); and Hyde v. State, 778 So.2d 199, 209 (Ala.Crim.App.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.'). Although the failure to object in the trial court will not preclude this Court from reviewing an issue under Rule 45A, Ala. R. App. P., it will weigh against any claim of prejudice made on appeal. See Dotch v. State, 67 So.3d 936, 965 (Ala.Crim.App.2010)(citing Dill v. State, 600 So.2d 343 (Ala.Crim.App.1991)). Additionally, application of the plain-error rule
"'"'is to be "used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result."'" Whitehead v. State, [777 So.2d 781], at 794 [(Ala.Crim.App.1999], quoting Burton v. State, 651 So.2d 641, 645 (Ala.Crim.App.1993), aff'd, 651 So.2d 659 (Ala. 1994), cert. denied, 514 U.S. 1115, 115 S.Ct. 1973, 131 L.Ed.2d 862 (1995).'
"Centobie v. State, 861 So.2d 1111, 1118 (Ala.Crim.App.2001)."

Phillips v. State, [Ms. CR-12-0197, December 18, 2015]___ So. 3d___, ___ (Ala.Crim.App.2015), aff'd, [Ms. 1160403, October 19, 2018] ___ So.3d ___ (Ala. 2018). With these principles in mind, we address Petersen's claims on appeal.

         Discussion

         Pre-Trial Issues

         I.[5]

         Petersen argues that he was deprived of his right to an impartial jury as a result of the circuit court's failure to remove certain jurors who, he says, were "unfit to serve." (Petersen's brief, p. 24.) It is well settled that

"'[t]o 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.'" Clark v. State, 621 So.2d 309, 321 (Ala. Cr. App. 1992) (quoting Nettles v. State, 435 So.2d 146, 149 (Ala. Cr. App. 1983)). This Court has held that "once a juror indicates initially that he or she is biased or prejudiced or has deep-seated impressions" about a case, the juror should be removed for cause. Knop v. McCain, 561 So.2d 229, 234 (Ala. 1989). The test to be applied in determining whether a juror should be removed for cause is whether the juror can eliminate the influence of his previous feelings and render a verdict according to the evidence and the law. Ex parte Taylor, 666 So.2d 73, 82 (Ala. 1995). A juror "need not be excused merely because [the juror] knows something of the case to be tried or because [the juror] has formed some opinions regarding it." Kinder v. State, 515 So.2d 55, 61 (Ala. Cr. App. 1986). Even in cases where a potential juror has expressed some preconceived opinion as to the guilt of the accused, the juror is sufficiently impartial if he or she can set aside that opinion and render a verdict based upon the evidence in the case. Kinder, at 60-61. In order to justify disqualification, a juror "'must have more than a bias, or fixed opinion, as to the guilt or innocence of the accused'"; "'[s]uch opinion must be so fixed ... that it would bias the verdict a juror would be required to render.'" Oryang v. State, 642 So.2d 979, 987 (Ala. Cr. App. 1993) (quoting Siebert v. State, 562 So.2d 586, 595 (Ala. Cr. App. 1989)).'

"Ex parte Davis, 718 So.2d 1166, 1171-72 (Ala. 1998).

"'"The qualification of prospective jurors rests within the sound discretion of the trial judge." Morrison v. State, 601 So.2d 165, 168 (Ala.Crim.App.1992); Ex parte Cochran, 500 So.2d 1179, 1183 (Ala. 1985). This Court will not disturb the trial court's decision "unless there is a clear showing of an abuse of discretion." Ex parte Rutledge, 523 So.2d 1118, 1120 (Ala.1988). "This court must look to the questions propounded to, and the answers given by, the prospective juror to see if this discretion was properly exercised." Knop [v. McCain], 561 So.2d [229] at 232 [(Ala. 1989)]. We must consider the entire voir dire examination of the juror "in full context and as a whole." Ex parte Beam, 512 So.2d 723, 724 (Ala. 1987); Ex parte Rutledge, 523 So.2d at 1120.'

"Ex parte Burgess, 827 So.2d 193, 198 (Ala. 2000).

"'Even though a prospective juror may initially admit to a potential for bias, the trial court's denial of a motion to strike that person for cause will not be considered error by an appellate court if, upon further questioning, it is ultimately determined that the person can set aside his or her opinions and try the case fairly and impartially, based on the evidence and the law.'

"Ex parte Land, 678 So.2d 224, 240 (Ala. 1996).

"'A trial judge is in a decidedly better position than an appellate court to assess the credibility of the jurors during voir dire questioning. See Ford v. State, 628 So.2d 1068 (Ala.Crim.App.1993). For that reason, we give great deference to a trial judge's ruling on challenges for cause. Baker v. State, 906 So.2d 210 (Ala.Crim.App.2001).'
"Turner v. State, 924 So.2d 737, 754 (Ala.Crim.App.2002)."

Bohannon v. State, 222 So.3d 457, 473-74 (Ala.Crim.App.2015).

         A.

         First, Petersen argues that prospective juror R.D., a former sheriff's deputy, should have been removed for cause because, he says, it was revealed that R.D.: (1) was a convicted felon; (2) "would prefer the defendant to testify"; (3) was "pro death sentence" and believed in a "life for a life"; (4) believed that a person that killed another "should forfeit his life upon conviction"; (5) indicated that he would credit law-enforcement testimony with more importance than other testimony; and (6) did not disclose during voir dire that he had "discussed the case" and "seen local news coverage" before reporting for jury duty. (Petersen's brief, pp. 24-25.) Petersen did not move to remove R.D. for cause; therefore, we review this claim for plain error. See Rule 45A, Ala. R. App. P.

         During voir dire examination, R.D. was asked to appear before the circuit court separately to answer questions about the responses he had given on his juror questionnaire. During that time, the following occurred:

"[R.D.:] Yesterday, when the defense attorney asked do you know anybody, I didn't raise my hand because I would have had to keep it up.
"THE COURT: Right. Yeah.
"[R.D.:] I know everybody.
"THE COURT: You probably know all the sheriff's employees.
"[R.D.:] I know them all.
"THE COURT: Let me ask you this. The fact that you know them, could you still give both sides a fair trial, or do you think it would be a problem for you?
"[R.D.:] No. I would listen to the evidence.
"THE COURT: So, again, if you think the State has proven guilt beyond a reasonable doubt, would you have any problem voting guilty?
"[R.D.:] No.
"THE COURT: And then, likewise, if you think the State has not proven guilt beyond a reasonable doubt, would you have any problem voting not guilty?
"[R.D.:] No.
"THE COURT: And if you are on the jury and the jury does find him guilty of a capital offense, based on your knowledge of the sheriff's employees as well as your background in law enforcement, could you still follow the law in determining whether to vote for death or life without parole?
"[R.D.:] Yes.
"THE COURT: In other words, you wouldn't--it wouldn't influence you to be more likely to vote for death because the State, through the D.A., through the sheriff and his deputies, are seeking the death penalty? You wouldn't be more likely to lean for death in that circumstance?
"[R.D.:] No.
"THE COURT: And if the evidence and the law supports a verdict of life without parole, you would have no problem returning a verdict of life without parole?
"[R.D.:] No.
"THE COURT: Any questions, [prosecutor]?
"[PROSECUTOR:] No. I saw his response in his thing. I'm satisfied.
"THE COURT: [Defense counsel, ] briefly?
"[DEFENSE COUNSEL:] [R.D.], in reference to a couple of things in your questionnaire, first of all, you're a retired police officer?
"[R.D.:] Uh-huh.
"[DEFENSE COUNSEL:] For, I'm assuming, a number of years, a good long time.
"[R.D.:] Yeah.
"[DEFENSE COUNSEL:] I mean, you have a working knowledge of criminal laws.
"[R.D.:] Yes.
"[DEFENSE COUNSEL:] Do you understand that some deaths, depending on the circumstances, aren't capital murder?
"[R.D.:] Yeah.
"[DEFENSE COUNSEL:] There are other charges like manslaughter and things like that.
"[R.D.:] Uh-huh.
"[DEFENSE COUNSEL:] And so, just because someone dies, there's not a capital offense that we could put someone to death for. You already know that? Right?
"[R.D.:] Yes.
"[DEFENSE COUNSEL:] But, in your questionnaire--you know, we were talking about the death penalty--you put in here a life for a life. That kind of implies, you know, if you kill somebody, you must be put to death. Is that your personal feeling on it?
"[R.D.:] I'll listen to the evidence. But, you know, I'm pro death sentence. I mean, I believe in the death sentence.
"[DEFENSE COUNSEL:] But, do you also--are you able to follow the law and consider the mitigating circumstances, the reasons that we get to where we are, and if those mitigating reasons outweigh death, could you vote for life without?
"[R.D.] Yes.
"[DEFENSE COUNSEL:] Even if convicted of capital murder, can you vote for life without?
"[R.D.:] Yes.
"[DEFENSE COUNSEL:] Okay. In another answer, you said when a person takes the life of another and he's found guilty of capital murder, he should forfeit his life upon conviction. And I guess that's what I'm asking. You can amend--are you saying you can amend that belief--
"[R.D.:] I mean, I'll listen to--
"[DEFENSE COUNSEL:] --and consider--
"[R.D.:] I'll consider it and listen to the evidence. But I believe in the death penalty. I'm not going to stand here and tell you I don't.
"[DEFENSE COUNSEL:] Right. And I'm not going to sit here and tell you that I don't, necessarily. But you must agree there are some cases that it's appropriate and some that are not.
"[R.D.:] Yeah.
"[DEFENSE COUNSEL:] You understand that?
"[R.D.:] Yes.
"[DEFENSE COUNSEL:] And I guess that's all I'm asking, is that you would consider the facts of the case and determine whether it's appropriate, not just blanket rule--
"[R.D.:] Yeah.
"[DEFENSE COUNSEL:] --got to have it.
"[R.D.:] Uh-huh. "THE COURT: That's fine. Thanks."
(R. 860-65.)

         R.D. could have been removed for cause under § 12-16-150(5), Ala. Code 1975, because, according to his juror questionnaire, he was convicted of a felony--theft of property; nothing in the excerpts from his voir dire examination quoted above, however, indicate that the court should have sua sponte removed him for cause. Although R.D. did state that he supported the death penalty, he did not indicate that he would automatically vote to impose the death penalty in every capital case. Rather, he indicated that he would consider and would be able to impose a sentence of imprisonment for life without the possibility of parole in an appropriate case. Regardless, because Petersen used one of his peremptory strikes to remove R.D. from the venire, any error in the failure of the court to sua sponte remove R.D. is harmless. See McMillan v. State, 139 So.3d 184, 258 (Ala.Crim.App.2010)(citing Bethea v. Springhill Mem'l Hosp., 833 So.2d 1 (Ala. 2002))(noting that the "the Alabama Supreme Court has held that the failure to remove a juror for cause is harmless when that juror is removed by the use of a peremptory strike"). To the extent that Petersen is arguing that he should not have been forced to use one of his peremptory strikes to remove R.D. from the venire, this Court has found that the failure of a court to sua sponte remove a juror from the venire does not rise to the level of plain error where there is no indication in the record that the juror could not be fair and impartial. See Lee v. State, 898 So.2d 790, 845 n.11 (Ala.Crim.App.2001) (finding that, where there was no indication in the record that the prospective juror could not be fair and impartial, no plain error occurs when a defendant uses a peremptory strike to remove that prospective juror from the venire). Thus, Petersen is due no relief on this claim.

         B.

         Next, Petersen contends that the circuit court erred in failing to sua sponte remove certain veniremembers--S.D., G.D., and D.G.--who, he says, had "personal and professional relationships with the prosecution." (Petersen's brief, p. 26.) Although it appears from the record that Petersen moved to remove S.D. for cause (R. 952), Petersen did not move to remove either G.D. or D.G. for cause; thus, we review this claim as to G.D. and D.G. for plain error. See Rule 45A, Ala. R. App. P.

         First, with regard to S.D., Petersen contends that S.D.'s job as a software engineer for a company contracted by the district attorney's office meant that his "financial well being is associated with his job working" with that office and, thus, that the court should have removed him from the jury. (Petersen's brief, p. 26.) During voir dire, however, S.D. stated that he did not interact with the district attorney and affirmed that he could fair to both sides. (R. 852-55, 858.) He also stated that he did not believe his "financial well-being" would bias his verdict. (R. 857.)

         This Court has previously recognized that, where there is no proof that a veniremember would not render a fair, just, and impartial verdict, the fact that he or she was employed by the district attorney's office does not alone impute bias as a matter of law warranting removal. See, e.g., Lowe v. State, 384 So.2d 1164, 1171 (Ala.Crim.App.1980). Thus, the court committed no error in failing to remove prospective juror S.D. for cause.

         Next, Petersen argues that the court should have sua sponte removed prospective juror G.D. for cause because, during voir dire and on his questionnaire, G.D. indicated that he was related to Captain William Rafferty with the Houston County Sheriff's Department, the primary investigator in this case. (Petersen's brief, p. 27.) The record indicates that G.D.'s niece was married to Cpt. Rafferty. (R. 611.) G.D. was later called back into the courtroom along with a few other veniremembers and asked whether he could set aside any personal beliefs and follow Alabama law concerning the death penalty and whether he could consider recommending a life-imprisonment-without-parole sentence if the evidence supported such a finding. (R. 916-17.) G.D., along with the other veniremembers, indicated that he could. Id. When Petersen's defense counsel was given an opportunity to further question G.D. about his relationship with Cpt. Rafferty, counsel failed to do so. (R. 917-18.) Later on, however, Petersen used one of his peremptory strikes to remove G.D. from the venire; thus, any error in the failure of the court to sua sponte remove G.D. is harmless. See McMillan v. State, 139 So.3d 184, 258 (Ala.Crim.App.2010)(citing Bethea v. Springhill Mem'l Hosp., 833 So.2d 1 (Ala. 2002))(noting that the "the Alabama Supreme Court has held that the failure to remove a juror for cause is harmless when that juror is removed by the use of a peremptory strike"). Thus, Petersen is due no relief on this claim.

         Finally, Petersen contends that the court should have sua sponte dismissed prospective juror D.G. because, during voir dire, he admitted that he had a "personal and professional relationship" with one of the State's key witnesses--former Houston County Sheriff Andy Hughes. (Petersen's brief, pp. 27-28.) According to Petersen, although D.G. stated that he could be fair and impartial, that affirmation was not enough to absolve D.G. of what Petersen says was his "probable prejudice" against his case. (Petersen's brief, p. 28.) Because Petersen used one of his peremptory strikes to remove D.G. from the venire, however, any error in the failure of the court to sua sponte remove D.G. is harmless. See McMillan v. State, 139 So.3d 184, 258 (Ala.Crim.App.2010)(citing Bethea v. Springhill Mem'l Hosp., 833 So.2d 1 (Ala. 2002))(noting that the "the Alabama Supreme Court has held that the failure to remove a juror for cause is harmless when that juror is removed by the use of a peremptory strike"). Thus, Petersen is due no relief on this claim.

         C.

         Petersen also asserts that the circuit court erroneously failed to remove prospective jurors who, he says, were "disqualified from service" because they indicated that they would credit the testimony of law enforcement with "more importance than all other testimony." (Petersen's brief, p. 28.) Specifically, Petersen challenges seven veniremembers, each of whom, he says, indicated that he or she would give the testimony of law enforcement more weight than other testimony.[6] (Petersen's brief, p. 29.) Petersen did not move to remove those seven veniremembers for cause below; thus, we review this claim for plain error. See Rule 45A, Ala. R. App. P.[7]

         After reviewing the questionnaires of those seven prospective jurors, we note that Petersen is correct that they all indicated that they would give "more importance" to the testimony of a law-enforcement officer than any other witness. The record indicates that A.D. and W.H. served on Petersen's jury. This Court has previously stated, however, that, even when a juror responds that he or she would give more importance to the testimony of a law-enforcement officer, such a response does not indicate that a juror has "an opinion about law enforcement testimony so fixed that he [or she] could not fairly and impartially return a verdict based on the evidence" that would require that juror to be removed from the venire. See Living v. State, 796 So.2d 1121, 1135 (Ala.Crim.App.2000). Additionally, Petersen did not explore the alleged biases of A.D. and W.H. during voir dire. This Court does not find plain error to exist as to the circuit court's failure to sua sponte remove A.D. and W.H. for cause on the basis asserted by Petersen.

         As to the remaining five prospective jurors, Petersen used his peremptory strikes to remove R.D., J. Bas., R.E., R.G., and D.G., from the venire. The Alabama Supreme Court has previously recognized that forcing a defendant to use his or her peremptory strikes to remove multiple jurors might not be harmless error. In Ex parte Colby, 41 So.3d 1 (Ala. 2009), the defendant argued that the trial court erred in denying her challenges for cause as to several jurors, forcing her to use 9 of her 17 peremptory strikes to remove those jurors from the venire. 41 So.3d at 4. The Alabama Supreme Court reversed the judgment after finding that, under its precedent in General Motors v. Jernigan, 883 So.2d 646 (Ala. 2003), multiple errors by the trial court in denying Colby's challenges for case were not harmless. 41 So.3d at 5. Specifically, the Alabama Supreme Court found that the jury in that case included "'jurors who would likely have been the subject of peremptory challenge[s] had such challenges been available'" to Colby. Id. For example, according to the Court, the record indicated that the seated jury included "jurors who knew witnesses for the State, jurors who expressed strong support for the death penalty, and jurors who felt that it was defense counsel's job to prove the defendant's innocence." Id.

         When Colby made separate motions for the removal of three of those jurors from the jury, the trial court denied each motion separately. 41 So.3d at 7. The Alabama Supreme Court found that each of those denials was error based on responses given by those jurors during voir dire that clearly showed they should have been removed from the venire. Id. Although the State argued that those errors were harmless, the Court disagreed and stated "'[i]n each instance in which we have applied the harmless error rule, we have been presented with only one erroneous ruling on a challenge for cause.'" Id. (quoting General Motors, 883 So.2d at 672). Therefore, the Court held that the errors committed by the trial court were not harmless.

         The present case, however, is distinguishable from Colby. First, unlike the defendant in Colby, Petersen did not move to remove any of the jurors at issue. Second, none of the prospective jurors struck by Petersen was a juror who clearly should have been removed. Thus, we see no plain error in the circuit court's failure to sua sponte remove the challenged veniremembers. Petersen is due no relief on this claim.

         D.

         Petersen argues that the circuit court erred by failing to remove prospective jurors A.D. and D.H. from the venire and allowing them to serve on his jury. (Petersen's brief, pp. 29-30.) Petersen did not challenge either veniremember for cause; thus, his claim is reviewed for plain error. See Rule 45A, Ala. R. App. P.

         During voir dire, A.D. disclosed that the Houston County District Attorney's office prosecuted three men in connection with the murder of her brother. (R. 428.) She was not asked any follow-up questions. D.H. disclosed that she had been the victim in a sexual-harassment case when she was 15 years old and that the prosecutors in Petersen's case handled her case. (R. 835.) When asked if this would impact her ability to serve as a juror, D.H. stated that this experience would not prevent her from "giving both sides a fair trial." (R. 835.)

         This Court has previously stated:

"'To justify a challenge of a juror for cause there must be a statutory ground (Ala. Code Section 12-16-150 (1975)), or some matter which imports absolute bias or favor, and leaves nothing to the discretion of the trial court.' Nettles v. State, 435 So.2d 146, 149 (Ala. Crim. App.), aff'd, 435 So.2d 151 (Ala. 1983). Section 12-16-150 sets out the grounds for removal of veniremembers for cause in criminal cases .... In addition to the statutory grounds, there are other common-law grounds for challenging veniremembers for cause where those grounds are not inconsistent with the statute. Smith v. State, 213 So.3d 108 (Ala.Crim.App.2000), aff'd in pertinent part, rev'd in part, 213 So.3d 214 (Ala. 2003); Kinder v. State, 515 So.2d 55, 60 (Ala.Crim.App.1986). Here, we are dealing with the common-law ground for challenge of suspicion of bias or partiality. See discussion of the common-law grounds for challenge in Tomlin v. State, 909 So.2d 213 (Ala.Crim.App.2002), remanded for resentencing, 909 So.2d 283 (Ala. 2003). Ultimately, the test to be applied is whether the veniremember can set aside his or her opinions, prejudices, or biases, and try the case fairly and impartially, according to the law and the evidence. Smith v. State, supra. This determination of a veniremember's absolute bias or favor is based on the veniremember's answers and demeanor and is within the discretion of the trial court; however, that discretion is not unlimited. Rule 18.4(e), Ala. R. Crim. P., provides, in part: 'When a prospective juror is subject to challenge for cause or it reasonably appears that the prospective juror cannot or will not render a fair and impartial verdict, the court, on its own initiative or on motion of any party, shall excuse that juror from service in the case.' Even proof that a veniremember has a bias or fixed opinion is insufficient to support a challenge for cause. A prospective juror should not be disqualified for prejudice or bias if it appears from his or her answers and demeanor that the influence of that prejudice or bias can be eliminated and that, if chosen as a juror, the veniremember would render a verdict according to the law and the evidence. Mann v. State, 581 So.2d 22, 25 (Ala.Crim.App.1991); Minshew v. State, 542 So.2d 307 (Ala.Crim.App.1988)."

McGowan v. State, 990 So.2d 931, 951 (Ala.Crim.App.2003). After reviewing the voir dire proceedings in the present case, we conclude that the circuit court did not err in failing to sua sponte remove these jurors from the venire. Although we acknowledge that both A.D. and D.H. had past relationships with the Houston County District Attorney's office, nothing in the record before us indicates that this prevented either of them from serving as a fair and impartial juror. Thus, Petersen is not entitled to relief.

         E.

         Finally, Petersen asserts that the circuit court erred in failing to remove 10 veniremembers[8] who, he says, indicated that they would automatically impose the death penalty without considering any mitigating circumstances or evidence. (Petersen's brief, p. 31.) According to Petersen, as a result of their responses, those veniremembers were not qualified to serve and should have been removed for cause. Id. Petersen did not move to remove those veniremembers for cause in the court below; thus, we review this claim for plain error. See Rule 45A, Ala. R. App. P.

         The record indicates that Petersen used his peremptory strikes to remove those 10 prospective jurors from the venire. To the extent that Petersen is arguing that he should not have been forced to use his peremptory strikes to remove those jurors, in light of our discussion of Ex parte Colby in Section I.B. of this opinion, supra, no error occurred in the present case. Thus, Petersen is due no relief on this claim.

         II.

         Petersen contends that the State used its peremptory strikes in a racially discriminatory manner in violation of Batson v. Kentucky, 476 U.S. 79');">476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).[9] (Petersen's brief, pp. 33-46.) Petersen also contends that the State used its peremptory strikes against women in violation of J.E.B. v. Alabama, 511 U.S. 127 (1994), and that this Court should remand the case for a hearing to determine whether the State can offer gender-neutral reasons for those strikes. (Petersen's brief, pp. 46-51.)

         This Court has previously stated:

"In evaluating a Batson or J.E.B. claim, a three-step process must be followed. As explained by the United States Supreme Court in Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003):
"'First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race [or gender]. [Batson v. Kentucky, ] 476 U.S. [79, ] 96-97[, 106 S.Ct. 1712, 1723 (1986)]. Second, if that showing has been made, the prosecution must offer a race-neutral [or gender-neutral] basis for striking the juror in question. Id., at 97-98. Third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination. Id., at 98.'

"537 U.S. at 328-29.

"With respect to the first step of the process ... '[t]he party alleging discriminatory use of a peremptory strike bears the burden of establishing a prima facie case of discrimination.' Ex parte Brooks, 695 So.2d 184, 190 (Ala. 1997)(citing Ex parte Branch, 526 So.2d 609, 622 (Ala. 1987)). 'A defendant makes out a prima facie case of discriminatory jury selection by "the totality of the relevant facts" surrounding a prosecutor's conduct during the defendant's trial.' Lewis v. State, 24 So.3d 480, 489 (Ala.Crim.App.2006)(quoting Batson, 476 U.S. at 94, aff'd, 24 So.3d 540 (Ala. 2009). 'In determining whether there is a prima facie case, the court is to consider "all relevant circumstances" which could lead to an inference of discrimination.' Ex parte Branch, 526 So.2d at 622 (citing Batson, 476 U.S. at 93, citing in turn Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976)). In Ex parte Branch, the Alabama Supreme Court specifically set forth a number of 'relevant circumstances' to consider in determining whether a prima facie case of race discrimination has been established:
"'The following are illustrative of the types of evidence that can be used to raise the inference of discrimination:
"'1. Evidence that the "jurors in question share[d] only this one characteristic--their membership in the group--and that in all other respects they [were] as heterogeneous as the community as a whole." [People v.] Wheeler, 22 Cal.3d [258] at 280, 583 P.2d [748] at 764, 148 Cal.Rptr. [890] at 905 [(1978)]. For instance, "it may be significant that the persons challenged, although all black, include both men and women and are a variety of ages, occupations, and social or economic conditions," Wheeler, 22 Cal.3d at 280, 583 P.2d at 764, 148 Cal.Rptr. At 905, n.27, indicating that race was the deciding factor.
"'2. A pattern of strikes against black [or female] jurors on the particular venire; e.g., 4 of 6 peremptory challenges were used to strike black jurors. Batson, 476 U.S. at 97, 106 S.Ct. At 1723.
"'3. The past conduct of the state's attorney in using peremptory challenges to strike all blacks [or females] from the jury venire. Swain [v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965)].
"'4. The type and manner of the state's attorney's questions and statements during voir dire, including nothing more than desultory voir dire. Batson, 476 U.S. at 97, 106 S.Ct. at 1723; Wheeler, 22 Cal.3d at 281, 583 P.2d at 764, 148 Cal.Rptr. at 905.
"'5. The type and manner of questions directed to the challenged juror, including a lack of questions, or a lack of meaningful questions. Slappy v. State, 503 So.2d 350, 355 (Fla. Dist. Ct. App. 1987); People v. Turner, 42 Cal.3d 711, 726 P.2d 102, 230 Cal.Rptr. 656 (1986); People v. Wheeler, 22 Cal.3d 258, 583 P.2d 748, 764, 148 Cal.Rptr. 890 (1978).
"'6. Disparate treatment of members of the jury venire with the same characteristics, or who answer a question in the same or similar manner; e.g., in Slappy, a black elementary school teacher was struck as being potentially too liberal because of his job, but a white elementary school teacher was not challenged. Slappy, 503 So.2d at 355.
"'7. Disparate examination of members of the venire; e.g., in Slappy, a question designed to provoke a certain response that is likely to disqualify a juror was asked to black jurors, but not to white jurors. Slappy, 503 So.2d at 355.
"'8. Circumstantial evidence of intent may be proven by disparate impact where all or most of the challenges were used to strike blacks [or females] from the jury. Batson, 476 U.S. at 93, 106 S.Ct. At 1721; Washington v. Davis, 426 U.S. [229] at 242, 96 S.Ct. [2040] at 2049 [(1976)].
"'9. The state used peremptory challenges to dismiss all or most black [or female] jurors. See Slappy, 503 So.2d at 354, Turner, supra.'

"Id. at 622-23." White v. State, 179 So.3d 170, 198-99 (Ala.Crim.App.2013).

         Additionally, this Court has previously recognized:

"'While disparate treatment is strong evidence of discriminatory intent, it is not necessarily dispositive of discriminatory treatment. Lynch [v. State], 877 So.2d [1254] at 1274 [(Miss. 2004)] (citing Berry v. State, 802 So.2d 1033, 1039 (Miss. 2001)); see also Chamberlin v. State, 55 So.3d 1046, 1050-51 (Miss. 2011). "Where multiple reasons lead to a peremptory strike, the fact that other jurors may have some of the individual characteristics of the challenged juror does not demonstrate that the reasons assigned are pretextual." Lynch, 877 So.2d at 1274 (quoting Berry [v. State], 802 So.2d [1033] at 1040 [(Miss. 2001)]).
Hughes v. State 90 So.3d 613
"'"As recently noted by the Court of Criminal Appeals, 'disparate treatment' cannot automatically be imputed in every situation where one of the State's bases for striking a venireperson would technically apply to another venireperson whom the State found acceptable. Cantu v. State, 842 S.W.2d 667, 689 (Tex. Crim. App. 1992). The State's use of its peremptory challenges is not subject to rigid quantification. Id. Potential jurors may possess the s a m e o b j ectionable characteristics, yet in varying degrees. Id. The fact that jurors remaining on the panel possess one of more of the same characteristics as a juror that was stricken, does not establish disparate treatment."
"'Barnes v. State, 855 S.W.2d 173, 174 (Tex. App. 1993).
"'"[W]e must also look to the entire record to determine if, despite a similarity, there are any significant differences between the characteristics and responses of the veniremembers that would, under the facts of this case, justify the prosecutor treating them differently as potential members of the jury. See Miller-El [v. Dretke], 545 U.S. [231] at 247, 125 S.Ct. [2317] at 2329 [162 L.Ed.2d 196 (2005) ]."
"'Leadon v. State, 332 S.W.3d 600, 612 (Tex. App. 2010).
"'"Potential jurors may possess the same objectionable characteristics, but in varying degrees. Additionally, prospective jurors may share a negative feature, but that feature may be outweighed by characteristics that are favorable from the State's perspective. Such distinctions may properly cause the State to challenge one potential juror and not another."
"'Johnson v. State, 959 S.W.2d 284, 292 (Tex. App. 1997). "This Court has recognized that for disparate treatment to exist, the persons being compared must be 'otherwise similarly situated.'" Sharp v. State, 151 So.3d 308, 342 (Ala.Crim.App.2013) (on rehearing).
"'"The prosecutor's failure to strike similarly situated jurors is not pretextual ... 'where there are relevant differences between the struck jurors and the comparator jurors.' United States v. Novaton, 271 F.3d 968, 1004 (11th Cir. 2001). The prosecutor's explanation 'does not demand an explanation that is persuasive, or even plausible; so long as the reason is not inherently discriminatory, it suffices.' Rice v. Collins, 546 U.S. 333, 338, 126 S.Ct. 969, 973-74, 163 L.Ed.2d 824 (2006) (quotation marks and citation omitted)."
"'Parker v. Allen, 565 F.3d 1258, 1271 (11th Cir. 2009).'"
"Wiggins v. State, 193 So.3d 765, 790 (Ala.Crim.App.2014)."

Luong v. State, 199 So.3d at 191-92. With these principles in mind, we will address each of Petersen's claims in turn.

         A.[10]

         First, Petersen argues that the State used its peremptory strikes in a racially discriminatory manner in violation of Batson v. Kentucky, 476 U.S. 79');">476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). (Petersen's brief, pp. 33-46.) Specifically, Petersen claims that the State's reasons for striking seven prospective African-American jurors were pretextual. Id.

         After several veniremembers were disqualified, excused, deferred, or stricken for cause, 47 qualified veniremembers remained--38 were Caucasian and 9 were African-American. The 9 African-American veniremembers constituted 19% of the venire.

         The State used 7 of its 18 peremptory strikes to remove African-American veniremembers from the jury panel. Petersen used 1 of his 17 peremptory strikes to remove an African-American veniremember from the panel. As best we can discern, Petersen's jury consisted of 11 Caucasians and 1 African-American. Before the jury was struck, the State made the following statement to the court:

"[PROSECUTOR:] Can I just ask a question for the record? I'm telling the Court right now, if they put 'no' on the death penalty on their questionnaire, this is my position. It doesn't matter what they say. I'm striking them. If they come in here--
"THE COURT: So, you don't want to make a challenge for cause on them?
"[PROSECUTOR:] Well, I would. I'm just making, for the record, protection. If they sit in the box--and I'm not talking about these, but the ones I want in--and they sit there and don't say, 'I can do the death penalty,' I'm not going to ask the Court, but I'm going to say, 'You put on your questionnaire you can't do it. So, when are you telling the truth?' I'm not going to put them--but I'm going to strike them. And I don't care what color, what race, man, woman.
"And if there's a Batson challenge, then the question I'm asking the Court, you're going to bring them down, do like you said. So, if they raise that, you're going to say there's enough for them to strike race neutral. Would you agree? I just want to be sure.
"THE COURT: I don't like to prejudge issues.
"[PROSECUTOR:] I'm not asking you to prejudge.
"THE COURT: I tend to think that anything anybody wrote on a questionnaire would support a peremptory challenge by either side--
"[PROSECUTOR:] That's good. Thank you."

(R. 919-20.)

         Later, prior to the jury being sworn, Petersen's counsel made a motion indicating that a Batson violation had occurred. (R. 967.) After hearing the defense's reasons in support of its motion, the circuit court determined that there was a prima facie case of discrimination and asked the State to give its reasons for striking certain African-American jurors from the venire. (R. 970.)[11]

         The following exchange then occurred:

"[PROSECUTOR:] Yes, Your Honor. If you would remember in reference to juror number 28, Ms. [K. Ca.], she came up and spoke on two main points. First, that she's on bond pending action of the grand jury in Henry County, Alabama, our corresponding county within the 20th Judicial Circuit, our jurisdiction, for unlawful possession of a controlled substance. She also gave a response that she suffers from bipolar, which is one mental illness that we expect will be raised by the defense in this case.
"THE COURT: Anything else on 28?
"....
"[PROSECUTOR:] No. And then, going to--the next State strike was 107. 107, [Ms. T.H.], which is marked out and her new last name is [M.], number 107. She also gave a response about mental illness.
"....
"[PROSECUTOR:] That she's also bipolar ... or knew somebody who was bipolar. So, corresponding with juror number 28. His mental illness is at issue in this case. Specifically, the defense has affirmatively pled not guilty and not guilty by mental disease or defect. Given the closeness of her relationship to bipolar disorder, which, based off the information obtained through voir dire, she stated that her ... sister in law's husband suffers from bipolar.
"THE COURT: Anything else?
"....
"[PROSECUTOR:] Also, on question number 53 in the juror questionnaire, she stated that--she further referenced the mental illness.
"THE COURT: Next juror.
"[PROSECUTOR:] The next is number 47, [K. Cr.] She was one of the four jurors brought up and addressed by the Court about her position on the death penalty. On the questionnaire, she stated that life without parole was a severe enough penalty. And given the consideration that the death--if the jury comes back guilty, that death will be on the table for that, her response indicated that she's pro life without parole, because imprisonment and loss of freedom forever is punishment enough. That's on question 52. Also, she stated that her cousin was violent when not taking medicines and that her family has been untreated--has been treated unfairly by the cops.
"THE COURT: Is that from the questionnaire?
"[PROSECUTOR:] Yes, sir.
"....
"[PROSECUTOR:] [She wrote:] 'The way the officers chose to engage with the citizens in minor issues. Example, an officer made my mother cry by talking to her harshly during a minor traffic stop. It was completely unnecessary.'
"....
"THE COURT: Next juror.
"[PROSECUTOR:] The next juror is number 4, Your Honor, [J. Bar.] He initially, on his questionnaire, or raised his hand on voir dire, stated that he was not for the death penalty. And he was in the group that we asked the court to individually bring up of the four jurors that sat in the box. So, based off of his initial responses, that led us to request that of the Court.
"And on question number 42 of the Court, in reference to how he feels about the death penalty, he said, 'Well, I feel I didn't give a life, so I don't have the authority to judge for no one--for one to be taken.'
"....
"Also, on question number 52, he stated that there is no punishment by taking a life.
"....
"THE COURT: Okay. Next strike that's at issue.
"[PROSECUTOR:] The next one is number 49, which is Ms. [M.C.]. And if the Court will remember, that on individual voir dire, she came up. And she's actually been at a different nightclub on a previous occasion, many years ago, where there was a shooting. Two individuals were shot. She didn't see who the shooter was. But it was very traumatizing to ... her. She got very upset at your bench describing the details of that.
"She received psychiatric treatment for a number of years thereafter and was on medication. She stated it would be on her mind if she sat through the trial and it would cause her to be emotional.
"....
"She also said, in reference to number four, if answered 'yes,' to explain your relationship to the person or circumstances that led to seeking help, whether the help was successful, 'Myself. Help was successful until today.' Remember she related to the Court, because of the pressure of this case--
"THE COURT: Right.
"[PROSECUTOR:] We need someone that can keep their mind on the case.
"....
"THE COURT: I will note for the record, as well, on my notes from--I guess it was Monday, maybe, when we initially talked with her, I made the notations in my own handwriting on my personal notes, 'Sobbing, crying, Wicksburg shooting, hyperventilating as she spoke with us.' All right. Next strike at issue.
"[PROSECUTOR:] The next one was the State's eleventh strike, which was number 37, J.C.
"THE COURT: She was in the group, also, that came up.
"....
"[PROSECUTOR:] She was. Based off her initial response regarding the death penalty on her questionnaire or with the general voir dire.
"....
"Question number 53, she answered--this is what she says. She disagreed when it comes to whether a person should be sentenced to death for intentionally committing a capital murder, their background and circumstances of the crime do not matter. We understand the jury has a right to consider those things. But her response is, 'Some people are mentally ill. Mental illness is real and debilitating. Mental illness can play a role in some instances. So, I believe mental illnesses should be considered in'--I can't tell you what that says.
"....
"She's also employed in the medical field. And we also struck [people] in the medical field ... [white people, too].
"....
"THE COURT: Okay. Last one, number 5.
"[PROSECUTOR:] Number 5. ... Number 5 has served on a previous jury and rendered a verdict of not guilty. He's a black male. We also struck, in removing persons who had rendered verdicts of not guilty before, number 31, [R.C.], who was a white male.
"....
"If I could point out, Judge, on number 5, that on 25, his answers, previous experiences [as a juror], [he said] yes, and the case was a Houston County assault, not guilty. Clearly, these kind of cases are shootings, once again. And we struck another white male for the same reason."

(R. 970-78, 980-81.) After hearing the above from the State, the circuit court determined that the State's reasons for striking the above veniremembers were sufficiently race-neutral. (R. 981.)

         On appeal, Petersen argues that the State's reasons for striking seven African-American veniremembers were pretextual and resulted in only one African-American veniremember serving on his final jury. (Petersen's brief, p. 37-46.) Specifically, he argues (1) that the Houston County District Attorney's office has a history of removing African-American veniremembers from death-penalty cases and that the same is true in this case, thereby establishing a prima facie case of racial discrimination; (2) that similarly situated African-American and Caucasian veniremembers were treated differently; and (3) that the State's request to remove J. Bar., an African-American, was based on racial discrimination. Id. We address each in turn.

         1.

         First, Petersen contends that the statistical evidence concerning removal by the Houston County District Attorney's office of African-American veniremembers in death-penalty cases shows a history of discrimination and supports such a finding in the present case. As noted above, African-American veniremembers constituted 19% of the venire. After the State and Petersen exercised their peremptory strikes, 1 African-American juror remained, constituting 8% of the final jury. Finally, the State used 7 of its 18 peremptory strikes to remove 7 of the 9 African-Americans remaining on the venire after excusals and challenges for cause. We note that numbers and statistics do not, alone, establish a prima facie case of racial discrimination. See Johnson v. State, 823 So.2d 1 (Ala.Crim.App.2001)(holding State's use of six peremptory strikes to remove six of nine African-American veniremembers insufficient to establish a prima facie case of racial discrimination); Scheuing v. State, 161 So.2d 245, 260 (Ala.Crim.App.2003)("Here, the State's use of peremptory strikes to remove 8 of 12 African-American veniremembers does not raise an inference of racial discrimination."). Even so, the circuit court acted within its discretion in determining that a prima facie case of racial discrimination existed, thereby shifting the burden to the State to offer race-neutral reasons for the strikes.

         2.

         Petersen next argues that similarly situated African-American and Caucasian veniremembers were treated differently by the State. Specifically, he argues that the State struck prospective jurors M.B., K. Cr., M.C., J.C., T.M., and K. Ca., all of whom were African-American, but did not strike Caucasian prospective jurors who he alleges were similarly situated in a variety of ways. As demonstrated by the excerpts of the State's reasons quoted above, however--and as the circuit court found--those veniremembers were struck for race-neutral reasons. Additionally, review of the juror questionnaires and the transcript of voir dire examination does not demonstrate that the prosecutor engaged in disparate treatment when he struck those African-American veniremembers.

         For example, the State struck M.B., an African-American male, because he had served on a previous jury that rendered a verdict of not guilty. (R. 980.) The State also struck R.C., a Caucasian male, for the same reason. (R. 980.) This Court has previously stated that "a black veniremember's prior service on a jury in which a not guilty verdict was rendered is a facially race-neutral reason for striking the veniremember." Lyde v. State, 605 So.2d 1255, 1257 (Ala.Crim.App.1992).

         3.

         Finally, Petersen argues that the State's request for J. Bar., an African-American, to be removed was made for racially discriminatory purposes. The record in this case indicates that J. Bar. was among a group of four veniremembers who were brought back into the courtroom for further questioning based on their opposition to the death penalty. (R. 934-37.) The circuit court asked whether they could follow the law as to sentencing, and each of them, including J. Bar., responded in the affirmative. (R. 936-37.)

         Petersen contends that since the State failed to ask J. Bar. any additional questions on the matter, it must have struck him for racially discriminatory purposes. We note, however, that, in addressing its reasons for striking J. Bar., the State noted his response on his questionnaire not only that he did not support the death penalty, but also that he was not sure there was a punishment for taking a life. (R. 974.) Under these circumstances, Petersen has failed to demonstrate that the State acted with racially discriminatory purposes when it moved to remove J. Bar. See Mashburn v. State, 7 So.3d 453, 461-62 (Ala.Crim.App.2007)(holding that striking African-American veniremember for his opposition to the death penalty and hesitation to consider it a proper punishment at all was not pretextual).

         Based on our review of the voir dire examination and the juror questionnaires, we find no evidence that the prosecutor engaged in purposeful discrimination toward African-American veniremembers. Therefore, Petersen is not entitled to relief on this Batson claim.

         B.[12]

         Petersen next argues that the State used its peremptory strikes against women in violation of J.E.B. v. Alabama, 511 U.S. 127 (1994), and that this Court should remand the case for a hearing to determine whether the State can offer gender-neutral reasons for those strikes. (Petersen's brief, pp. 46-51.) Because Petersen did not raise this claim at trial, we question whether it is properly before this Court.

         Initially, we note that a plurality of the Alabama Supreme Court has recently stated that Alabama appellate courts should no longer include such claims in plain-error review under circumstances like those present in Petersen's case. See Ex parte Phillips, [Ms. 1160403, October 19, 2018] ____ So.3d ____, ____ (Ala. 2018) (Stuart, C.J., concurring specially, joined by Main and Wise, JJ.) ("Simply, (1) plain error should not be available for a Batson [or J.E.B.] issue raised for the first time on appeal because the failure to timely make a Batson inquiry is not an error of the trial court; (2) the defendant should be required to timely request a Batson hearing to determine whether there was purposeful discrimination because, under the plain-error rule, the circumstances giving rise to purposeful discrimination must be so obvious that failure to notice them seriously affects the integrity of the judicial proceeding ...."); see also id. at___ (Sellers, J., concurring specially) ("I also concur with Justice Stuart's discussion of the Batson v. Kentucky, 476 U.S. 79');">476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), issue, which aligns our jurisprudence with what I believe is persuasive jurisprudence from federal courts. A Batson claim is a unique type of constitutional claim that, for the reasons set out in Justice Stuart's opinion, should be deemed waived even in capital cases if not timely made. Batson claims are forfeited if there is no objection to the composition of the jury before the commencement of a trial."). For the reasons stated in that opinion, plain-error review should likewise no longer apply to J.E.B. claims in circumstances like Petersen's.

         Even if, however, the J.E.B. issue raised by Petersen was subject to plain-error review, Petersen is not entitled to relief. Here, as noted in Part III.A., supra, after a number of veniremembers were disqualified, excused, or stricken for cause, 47 veniremembers remained. Of those 47 veniremembers, 22 were female and 25 were male. Therefore, the 22 female veniremembers constituted 47% of the venire. The State used 14 of its 18 peremptory strikes to remove female veniremembers. Petersen used 3 of his 17 peremptory strikes to remove female veniremembers. Females constituted 42% of Petersen's final jury. At the conclusion of the jury-selection process, neither Petersen's defense counsel nor the circuit court indicated that a J.E.B. violation had occurred.

         On appeal, Petersen argues that the State's use of 14 of its 18 peremptory strikes to remove women from the venire along with the prosecutor's comment that he "wanted to keep men on the jury" and that he "[d]idn't want a jury of all women" supports an inference of discrimination. (Petersen's brief, p. 48.) He further argues that the female veniremembers the State struck were a variety of ages and gave various answers during voir dire and, thus, that the only common characteristic among them was their gender. (Petersen's brief, p. 49.) Finally, Petersen argues that similarly situated male and female veniremembers were treated differently. (Petersen's brief, pp. 50-51.) We address each argument in turn.

         1.

         First, we disagree with Petersen's contention that the State's use of 14 of its 18 peremptory strikes to remove women from the venire supports an inference of discrimination. As noted above, the female veniremembers constituted 47% of the venire, and, after the State and Petersen exercised their peremptory strikes, women constituted 42% of Petersen's final jury. Although the State used 14 of its 18 peremptory strikes to remove 14 of the 22 women remaining on the venire after excuses and challenges for cause, this fact does not establish a prima facie case of gender discrimination, and we do not think a prima facie case has been established in this case. See Largin v. State, 233 So.3d 374, 403 (Ala.Crim.App.2015) (holding that State's use of 22 of 29 strikes against female veniremembers did not raise an inference of discrimination). Even so, we will nevertheless consider Petersen's remaining arguments.

         2.

         Second, Petersen argues that, because the female veniremembers the State struck were a variety of ages and gave various answers during voir dire, the only common characteristic among them was their gender. (Petersen's brief, p. 49.) This Court recognized in McCray v. State, 88 So.3d 1, 20 (Ala.Crim.App.2010), that

"there is almost always going to be some variance among prospective jurors who are struck; therefore, this alone does not establish heterogeneity of the struck veniremembers so as to support an inference of discrimination. The question, as noted in both Ex parte Branch[, 526 So.2d 609 (Ala. 1997)] and Ex parte Trawick[, 698 So.2d 162 (Ala. 1997)], is whether the struck jurors shared only the characteristic at issue, in this case, gender."

         Review of the juror questionnaires and the transcript of voir dire examination reflects that many of the women struck shared characteristics other than gender.

         For example, Petersen identifies K. Cr. and E.E. as being improperly struck even though they both answered that they have purchased weapons. (Petersen's brief, p. 49.) The record reveals that K. Cr. indicated that she was opposed to the death penalty. (R. 972-73.) This Court has noted that, at the very least, opposition to the death penalty is a valid reason for the State to strike veniremembers. See Scheuing v. State, 161 So.3d 245, 286 (Ala.Crim.App.2013). Additionally, the record shows that E.E. revealed that her son had been in prison but she indicated that she could be fair and impartial. (R. 913.) We note, however, that, in her juror questionnaire, E.E. indicated that "[a]ttorneys and the [district attorney] manipulate the system." Because E.E. demonstrated a potential bias toward the State in her juror questionnaire, the State's decision to remove her from the jury does not demonstrate purposeful discrimination.

         3.

         Finally, we disagree with Petersen's argument that similarly situated male and female veniremembers were treated differently to an extent that indicates that discrimination occurred. Petersen argues that the State struck certain female prospective jurors but did not strike male jury members who provided similar answers to certain questions either during voir dire or on the jury questionnaires. Based on our review of the voir dire examination and the juror questionnaires, however, we find no evidence that the prosecutor engaged in purposeful discrimination toward female veniremembers.

         For example, the record indicates that the State struck female veniremember K.E. who, like male jury member B.E., had never purchased a firearm. (R. 484.) During voir dire, however, K.E. indicated that she did not believe that someone's background should be considered mitigating and she indicated that she would not accept mitigating factors of someone's social background. (R. 711-12.) This Court has previously recognized that a juror may not arbitrarily ignore any applicable mitigating or aggravating circumstance. See Whisenhant v. State, 482 So.2d 1225 (Ala.Crim.App.1982), affirmed in part and remanded, 482 So.2d 1241 (Ala. 1985). Based on K.E.'s response, it appears that her removal from the venire was in Petersen's best interest because she may not have followed the law. See generally Tomlin v. State, 909 So.2d 213 (Ala.Crim.App.2002)(holding that the challenged jurors were stricken for nondiscriminatory reasons, including a stated inability to follow the law), rev'd on other grounds, 909 So.2d 283 (Ala. 2003). Thus, we find no plain error, and Petersen is not entitled to relief.

         III.[13]

         Petersen contends that the circuit court erroneously limited voir dire by refusing to let his defense counsel further question nine veniremembers about their views on the death penalty after, he says, they indicated that they would automatically impose the death penalty without considering mitigating evidence. (Petersen's brief, pp. 85-87.) Although he acknowledges that the court questioned those nine veniremembers individually, Petersen argues that he should have been permitted to question those veniremembers about their contradictory responses on the issue. (Petersen's brief, pp. 85-86.) Petersen did not raise this issue in the circuit court; thus, it will be reviewed for plain error. See Rule 45A, Ala. R. App. P.

         The record on appeal reveals that, after questioning the full venire during voir dire, Petersen's defense counsel identified nine veniremembers for further questioning who, he says, indicated on their juror questionnaires that they would automatically impose the death penalty without considering any mitigating evidence. Those veniremembers were J. Bas., B. El., T.B., C.D., G.D., K.E., E.G., C.G., and J.G. (R. 896, 898-908.)[14] The circuit court then brought in those nine veniremembers for further questioning. (R. 915.) The following exchange occurred:

"THE COURT: Let the record reflect that we've called down in a group--I'll call the names out one more time. Let me know if I don't call your name. [J. Bas.], [T.B.], [C.D.], [G.D.], [K.E.], [B. El.], [E.G.], [C.G.], and [J.G.]. Is that everybody?
"(No response.)
"THE COURT: This is, again, the death penalty question. I know that a lot of question[s] have been asked and the questionnaires, as well. And, certainly, all of us, as Americans, are entitled to our beliefs--we can call them political, religious, whatever--over any multitude of issues. And you don't surrender those beliefs because you serve on a jury.
"But always when you serve on a jury or if you serve as a judge, your first obligation has to be able to, when necessary, set aside political, religious or other such beliefs and go by what the law says, whether you may otherwise agree or disagree with it. Okay?
"So, in regard to the death penalty, is there any of you that cannot follow the law of Alabama regarding the death penalty, whatever that law may be? I won't spend 30 minutes going over it with you. But, is there anyone who could not follow the law of Alabama on the death penalty?
"(No response.)
"THE COURT: Yes? No? I guess what I'll do, I'll point to each of you. And tell me, yes, you can follow the evidence and the law, or, no, you cannot. And I'll start down there at the end.

         "(Whereupon, the prospective jurors were polled and gave affirmative responses.)

"THE COURT: And if you believe, after hearing the case, that the evidence and the law supports a verdict of life without parole, can all of you impose a sentence of life without parole?
"PROSPECTIVE JURORS: Yes.
"THE COURT: Yes? Tell me 'no' if you cannot, anyone cannot.
"(No response.)
"....
"THE COURT: Anything else from the defense for these jurors?
"....
"[DEFENSE COUNSEL:] Other than just--aside from asking them about the questionnaire, why did you put on here that you're not open to these things.
"THE COURT: Well, that would be an issue for a peremptory strike, in my opinion. And they've answered it on their questionnaire."

(R. 915-18.) Thereafter, Petersen did not move to question the veniremembers individually.

         This Court has previously recognized that

"Rule 18.4(c), Ala. R. Crim. P., provides that '[t]he court shall permit the parties or their attorneys to conduct a reasonable examination of prospective jurors.' In Morgan [v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992)], ... the United States Supreme Court held that a capital defendant is entitled to question prospective jurors about their views on the death penalty and to strike for cause those prospective jurors who would automatically impose the death penalty if the defendant is found guilty of the capital charge. However, '[t]he right to question veniremembers regarding their qualifications to serve on the jury or their interest or bias is limited by propriety and pertinence and is to be exercised within the sound discretion of the trial court, and the questions must be reasonable under the circumstances of the case.' Smith v. State, 698 So.2d 189, 198 (Ala.Crim.App.1996), aff'd, 698 So.2d 219 (Ala. 1997). See also Rule 18.4(d), Ala. R. Crim. P. ('Voir dire examination of prospective jurors shall be limited to inquiries directed to basis for challenge for cause or for obtaining information enabling the parties to knowledgeably exercise their strikes.'). 'In selecting a jury for a particular case, "the nature, variety, and extent of the questions that should be asked prospective jurors" must be left largely within the sound discretion of the trial court.' Bracewell v. State, 447 So.2d 815, 821 (Ala.Crim.App.1983), aff'd, 447 So.2d 827 (Ala. 1984) (quoting Peoples v. State, 375 So.2d 561, 562 (Ala.Crim.App.1979)). 'A trial court is vested with great discretion in determining how voir dire examination will be conducted, and the court's decision as to the extent of voir dire examination required will not be overturned except for an abuse of that discretion.' Travis v. State, 776 So.2d 819, 835 (Ala.Crim.App.1997), aff'd, 776 So.2d 874 (Ala. 2000)."

Floyd v. State, [Ms. CR-13-0623, July 7, 2017) ____ So.3d ____, ____ (Ala.Crim.App.2017). Here, defense counsel was given an opportunity through a written questionnaire to ask the nine identified veniremembers about their views on the death penalty. Based on their responses to a question on the juror questionnaire, Petersen's defense counsel told the court that they believed that those nine veniremembers should be questioned further about their views on the death penalty and mitigating evidence. The court agreed and, without hesitation, called those prospective jurors back and asked them additional questions based on those concerns. Under those circumstances, contrary to Petersen's argument, the court did not "limit voir dire" in any meaningful way. The fact that the court did not seek to allow Petersen's defense counsel to ask those veniremembers even more questions does not constitute an abuse of discretion under Floyd, supra. Thus, Petersen is not entitled to relief on this claim.

         IV.[15]

         Petersen argues that the circuit court erred by removing veniremember B.C. from the venire. (Petersen's brief, pp. 87-88.) According to Petersen, although B.C. initially indicated during voir dire that she might not be able to vote in favor of sentencing Petersen to death, because she later indicated that she would be able to do so in response to further questioning from the State and defense counsel, the court should not have removed her. Id.

         The following is well settled law:

"'"A trial judge's finding on whether or not a particular juror is biased 'is based upon determination of demeanor and credibility that are peculiarly within a trial judge's province.' [Wainwright v.] Witt, 469 U.S. [412] 429, 105 S.Ct. [844] 855 [(1985)]. That finding must be accorded proper deference on appeal. Id. 'A trial court's rulings on challenges for cause based on bias [are] entitled to great weight and will not be disturbed on appeal unless clearly shown to be an abuse of discretion.' Nobis v. State, 401 So.2d 191, 198 (Ala. Cr. App.), cert. denied, Ex parte Nobis, 401 So.2d 204 (Ala. 1981)."'
"Boyle v. State, 154 So.3d 171, 196 (Ala.Crim.App.2013) (quoting Martin v. State, 548 So.2d 488, 490-91 (Ala.Crim.App.1988)).
"'"'In a capital case, a prospective juror may not be excluded for cause unless the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath.' Drew v. Collins, 964 F.2d 411, 416 (5th Cir. 1992), cert. denied, 509 U.S. 925, 113 S.Ct. 3044, 125 L.Ed.2d 730 (1993) (quotations omitted). '[T]his standard likewise does not require that a juror's bias be proved with unmistakable clarity. This is because determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism.' [Wainwright v.] Witt, 469 U.S. [412, ] 425-26, 105 S.Ct. [844, ] 852-53 [(1985)]."'
"Boyle, 154 So.3d at 196-97 (quoting Parr v. Thaler, 481 Fed.Appx. 872, 876 (5th Cir. 2012))."

Townes v. State, 253 So.3d 447, 471 (Ala.Crim.App.2015).

         The record on appeal indicates that, during voir dire, veniremember B.C. initially indicated that she may have difficulty imposing the death penalty because she did not believe in the death penalty. (R. 255.) The following exchange then occurred:

"THE COURT: Okay. I want to ask you about that. Are there any other issues that you need to discuss with me or just that one?
"[B.C.:] No. Just that.
"THE COURT: Okay. I need to ask you this way. The law of Alabama permits the death penalty in certain circumstances. Okay. So, the first issue, if you sit on the jury, will be whether he's guilty or not guilty of the crime. It has nothing to do with punishment--
"[B.C.:] Okay.
"THE COURT: --because he's presumed innocent of the charge. So, we don't even think about punishment unless or until a jury tells us that he's guilty. So, the lawyers, myself, no one will talk about the death penalty when they present their cases to you. If he's found not guilty, then he's free to go. The
jury is discharged. The case is over. We never get to penalty.
"[B.C.:] Right.
"THE COURT: If he is found guilty of a capital offense, a jury nor a judge is free to then simply impose the death penalty. Our law has laws and procedures that would then have to be followed to determine whether the death penalty is appropriate or life without parole. There will only be two options if he's found guilty, death penalty or life without parole.
"And probably everybody has an opinion about the death penalty. It's just one of those issues, like a few others, that everyone has some opinion, one way or the other about. And it's okay to have those opinions. But the issue becomes, in the case, is whether you could follow the law or is your opinion of such a nature that you could not follow the law. Okay?
"So, if you were to sit on the jury, the jury finds him guilty beyond a reasonable doubt, we go through the sentencing part of the case, you hear the evidence, I give you the law, and you do believe, based on the evidence and the law, that the death penalty is appropriate, would you be able to set aside your personal belief and consider and impose the death penalty or would you--
"[B.C.:] To be honest with you, I don't know. Because I know that, you know, a person can be guilty and, you know, he has taken another life, but, you know, I just don't believe that he could--you know, you could take--that we have--even though it's law, that we could choose to terminate that person's life. You know. I mean, he should get the punishment that he deserves.
"But, in my own personal opinion and my belief, you know, I don't think that we get to choose to terminate someone's life, even if he had taken someone else's life.
"THE COURT: Right. And I don't want to put words in your mouth.
"[B.C.:] Right.
"THE COURT: So, you tell me. Do I understand that you're telling me that even if you think, under the law and the evidence, the death penalty would be appropriate, that you still would not be able to vote for the death penalty?
"[B.C.:] I don't--I wouldn't--like, I would be undecided to choose that. I don't know.
"THE COURT: But, if you do think the evidence and the law warrants the death penalty, would you be able to vote for death?
"[B.C.:] Of course. Yeah.
"THE COURT: Any questions, [prosecutor]?
"[PROSECUTOR:] Yes. Ms. [B.C.], I appreciate your honesty. I just want to discuss two things. I heard what you said, even though if I found him guilty--and I'll ask it this way--I could consider the death penalty. But, is it your opinion that the State, the jury, as no right to terminate his life? I can vote life without parole, but I can't vote death.
"[B.C.:] Yeah.
"[PROSECUTOR:] Okay. And I respect that.
"[B.C.:] Yeah.
"[PROSECUTOR:] And my question--I need to ask you this way. Your opinion and your belief is what I heard you were talking about. No matter what, your opinion and your belief is you won't vote death no matter what? You'll automatically do life without parole under any circumstance? Is that fair?
"[B.C.:] Yeah.
"[PROSECUTOR:] Okay. Well, like the judge says, we have to prove he's guilty at the guilt phase. And then, at the penalty phase, the burden is still on the State. So, my question, are you telling the judge I can listen to the evidence, and if the State convinces me, then I can vote to put him to death, or, no, my belief--I don't believe we have a right to terminate a man's life or woman? I can send him to prison for life without parole to die there, but I don't believe I can ever vote to terminate his life, no matter what.
"[B.C.:] I wouldn't be able to.
"[PROSECUTOR:] 100 percent, you could not do that?
"[B.C.:] 100 percent, I wouldn't be able to.
"[PROSECUTOR:] Thank you for your honesty.
"THE COURT: [Defense counsel]?
"[DEFENSE COUNSEL:] Yes. Now, you seem to have given this issue some thought--
"[B.C.:] Uh-huh.
"[DEFENSE COUNSEL:] --obviously.
"[B.C.:] That's why I stayed. I was going to just walk out, but then I ...

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