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Capote v. State

Alabama Court of Criminal Appeals

January 10, 2020

Peter Capote
v.
State of Alabama

          Appeal from Colbert Circuit Court (CC-16-340)

          WINDOM, PRESIDING JUDGE.

         Peter Capote appeals his convictions for one count of capital murder and one count of first-degree assault.[1] Capote was convicted of one count of murder made capital for taking the life of Ki-Jana Freeman through the use of a deadly weapon while Freeman was in a vehicle, see § 13A-5-40(a)(17), Ala. Code 1975, and one count of first-degree assault for causing serious physical injury to Tyler Blythe, see § 13A-6-20, Ala. Code 1975. The jury recommended, by a vote of 10-2, that Capote be sentenced to death for his capital-murder conviction. The circuit court accepted the jury's recommendation and sentenced Capote to death. Capote was sentenced to 20 years in prison for his assault conviction.

         In early 2016 Thomas Hubbard was the leader of the gang Almighty Imperial Gangsters. That gang consisted of Hubbard, Capote, Benjamin Young, De'Vontae Bates, Austin Hammonds, Michael Blackburn, and Trey Hamm. On February 28, 2016, Hubbard's residence was burglarized. Several items were taken during the burglary, including Hamm's Xbox video-game console. Hubbard informed the gang that he was going to find out who had burglarized his house and kill him or her.

         Hammonds and Bates learned that Ki-Jana Freeman was selling an Xbox in an online marketplace. They suggested to Hubbard that Freeman might have been the person that had stolen Hamm's Xbox. The gang held a meeting and decided to kill Freeman if he was responsible for the burglary. The gang formulated a plan in which Hammonds would meet with Freeman to determine if the Xbox Freeman was selling was the one that had been stolen during the burglary. Hammonds contacted Freeman via an instant message on the social-media Web site Facebook, asking if Freeman had a green, Halo Edition Xbox for sale. Freeman and Hammonds exchanged several messages about the Xbox, but they never met to conduct a transaction. Hammonds, though, represented to Hubbard that he had met with Freeman, telling Hubbard that he thought the Xbox Freeman was selling was the one stolen during the burglary.[2]

         On March 1, 2016, Bates contacted Freeman, purportedly seeking to purchase acid, a hallucinogenic drug. Bates and Freeman agreed to meet at 10:00 p.m. at the Spring Creek Apartments. Bates did not go to the apartment complex; instead, Capote, Young, Hubbard, and Hamm went to the complex in a white truck and waited for Freeman to arrive. Bates sent a text message to Freeman asking him for his location and what kind of vehicle he was driving. Freeman responded that he was about to arrive at the apartment complex and that he was driving a blue Ford Mustang automobile. Bates relayed Freeman's response to his fellow gang members in the truck. When he arrived at the apartment complex, Freeman parked his Mustang in the back parking lot near a dumpster. The white truck pulled behind Freeman. Young and Capote got out of the truck and began firing their weapons at the Mustang. After firing multiple rounds, Young and Capote got back in the truck and left. Freeman was shot multiple times and was pronounced dead shortly after arriving at the hospital. Tyler Blythe, Freeman's friend who had ridden with Freeman to the apartment complex, was shot 13 times but survived his injuries.

         During the investigation, law-enforcement officers obtained a video from surveillance cameras at the apartment complex that had recorded the shooting. Hammonds and Bates identified Capote as one of the shooters in the video. Shawn Settles, Hubbard's cellmate at the county jail, gained Hubbard's trust and learned the location of an assault rifle used in the shooting. Settles told law-enforcement officers where they could find the rifle, which led to its recovery. Testing of the rifle and the bullets established that the rifle had been used in the shooting.

         Standard of Review

         This Court has explained:

"'When evidence is presented ore tenus to the trial court, the court's findings of fact based on that evidence are presumed to be correct,' Ex parte Perkins, 646 So.2d 46, 47 (Ala. 1994); '[w]e indulge a presumption that the trial court properly ruled on the weight and probative force of the evidence,' Bradley v. State, 494 So.2d 750, 761 (Ala.Crim.App.1985), aff'd, 494 So.2d 772 (Ala. 1986); and we make '"all the reasonable inferences and credibility choices supportive of the decision of the trial court."' Kennedy v. State, 640 So.2d 22, 26 (Ala.Crim.App.1993), quoting Bradley, 494 So.2d at 761."

State v. Hargett, 935 So.2d 1200, 1203 (Ala.Crim.App.2005). A circuit court's "ruling on a question of law[, however, ] carries no presumption of correctness, and this Court's review is de novo." Ex parte Graham, 702 So.2d 1215, 1221 (Ala. 1997). Thus, "'"[w]hen the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court's judgment."'" Ex parte Jackson, 886 So.2d 155, 159 (Ala. 2004) (quoting State v. Hill, 690 So.2d 1202, 1203 (Ala. 1996), quoting in turn Ex parte Agee, 669 So.2d 102, 104 (Ala. 1995)).

         Further, because Capote has been sentenced to death, according to Rule 45A, Ala. R. App. P., this Court must search the record for "plain error." Rule 45A states:

"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."

(Emphasis added.)

         In Ex parte Brown, 11 So.3d 933 (Ala. 2008), the Alabama Supreme Court explained:

"'"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."' Ex parte Bryant, 951 So.2d 724, 727 (Ala. 2002) (quoting Hyde v. State, 778 So.2d 199, 209 (Ala.Crim.App.1998)). In United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the United States Supreme Court, construing the federal plain-error rule, stated:
"'The Rule authorizes the Courts of Appeals to correct only "particularly egregious errors," United States v. Frady, 456 U.S. 152, 163 (1982), those errors that "seriously affect the fairness, integrity or public reputation of judicial proceedings," United States v. Atkinson, 297 U.S. [157], at 160 [(1936)]. In other words, the plain-error exception to the contemporaneous-objection rule is to be "used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result." United States v. Frady, 456 U.S., at 163, n. 14.'
"See also Ex parte Hodges, 856 So.2d 936, 947-48 (Ala. 2003) (recognizing that plain error exists only if failure to recognize the error would 'seriously affect the fairness or integrity of the judicial proceedings,' and that the plain-error doctrine is to be 'used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result' (internal quotation marks omitted))."

11 So.3d at 938. "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). Although Capote's failure to object at trial will not bar this Court from reviewing any issue, it will weigh against any claim of prejudice. See Dill v. State, 600 So.2d 343 (Ala.Crim.App.1991), aff'd, 600 So.2d 372 (Ala. 1992).

         I.

         Capote argues that the circuit court improperly admitted lay-opinion testimony from Capote's codefendants on the ultimate issue in the case -- the identity of the shooter. Bates and Hammonds identified Capote as the shooter when they watched the surveillance video from the apartment complex, and they both testified at trial that Capote was the shooter in the video. Capote claims that neither codefendant was present at the apartment complex during the shooting and that they lacked personal knowledge of the shooting as required under Rule 701, Ala. R. Evid. Capote also contends that this evidence was improperly admitted through the hearsay testimony of Investigator Wes Holland. Capote did not raise these claims below. Consequently, they will be reviewed for plain error only. See Rule 45A, Ala. R. App. P.

         Rule 704, Ala. R. Evid., states that "[t]estimony in the form of an opinion or inference otherwise admissible is to be excluded if it embraces an ultimate issue to be decided by the trier of fact." "An ultimate issue has been defined as the last question that must be determined by the jury. See Black's Law Dictionary (5th ed. 1991)." Tims v. State, 711 So.2d 1118, 1125 (Ala.Crim.App.1997). Rule 701, Ala. R. Evid., states that "[i]f the witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue."

         This Court was confronted with a similar situation in Hardy v. State, 804 So.2d 247 (Ala.Crim.App.1999), wherein this Court addressed the admissibility of testimony from several witnesses who identified the defendant as the gunman shown in the store's surveillance videotape. This Court in Hardy stated the following:

"In Ex parte Rieber, 663 So.2d 999 (Ala.), cert. denied, 516 U.S. 995, 116 S.Ct. 531, 133 L.Ed.2d 437 (1995), the Alabama Supreme Court addressed the question whether the identification by witness Wayne Gentle of Rieber as the gunman in the surveillance videotape showing the capital murder of a convenience store clerk was reversible error. The court disposed of this issue, as follows:
"'[W]e note that we are aware of no rule (and Rieber does not cite us to one) preventing a lay witness from testifying to facts that are within his personal knowledge. See J. Colquitt, Alabama Law of Evidence, §§ 7.0, 7.1 (1990), and the cases cited therein; C. Gamble, McElroy's Alabama Evidence, § 127.01 (4th ed. 1991), and the cases cited therein. Gentle testified that he had been a high school classmate of Rieber; that he knew Rieber when he saw him; and that he had seen and spoken to Rieber at the store at approximately 5:00 p.m. on the day of the murder. The record indicates that Gentle's identification of Rieber as the gunman shown on the videotape was based on his personal knowledge of Rieber's physical characteristics and on his appearance on the day of the murder.
"'We also note Rieber's contention[] that Gentle's identification testimony ... constituted a nonexpert opinion that usurped the function of the jury in evaluating the videotape .... [E]ven if we were to agree with Rieber's characterization of Gentle's testimony as an opinion, and we do not, our conclusion as to the admissibility of Gentle's testimony would not be different. Gentle personally observed Rieber on the day of the murder. At that time, according to Gentle, Rieber was wearing a light colored T-shirt and a ball cap, and he had darker hair than he had at the trial. The record indicates that Rieber had cut his hair before the trial commenced; he wore a gray suit in court. It is well settled that if a lay witness is better qualified or in a better position than the jury to draw inferences from the facts, then it is permissible for that witness to express an opinion or to draw a conclusion from those facts personally observed by or known to the witness. Colquitt, Alabama Law of Evidence, supra; McElroy's, supra; Wright v. Rowland, 406 So.2d 830 (Ala. 1981).'

"663 So.2d at 1011-12.

"... [W]e have also considered the pertinent discussion by the United States Court of Appeals for the Eleventh Circuit in United States v. Pierce, 136 F.3d 770 (11th Cir.), cert. denied, 525 U.S. 974, 119 S.Ct. 430, 142 L.Ed.2d 350 (1998). In that case, the court addressed the propriety, under Fed.R.Evid. 701, of the admission of lay opinion testimony from [Pierce]'s probation officer and his employer, identifying him as the individual depicted in a still photograph taken from a surveillance videotape of a bank robbery. We recognize that Alabama's counterpart to Fed.R.Evid. 701 -- Ala. R. Evid. 701, which is identical to the federal rule -- was not in effect at the time of Hardy's trial and, on its face, is different from the preexisting Alabama practice. However, we nevertheless find the analysis in United States v. Pierce pertinent, for it also uses the inquiry used in Ex parte Rieber. (Ex parte Rieber casts the pertinent determination as whether the lay witness is better qualified or in a better position than the jury to draw the conclusion of identity from those facts personally observed by or known to him. In its discussion in United States v. Pierce, the court replaces the pertinent inquiry of whether there is some basis for concluding that the witness is more likely to correctly identify the defendant from the surveillance photograph than is the jury with the focus of whether a witness is better able than the jury to make a correct determination.) The court in United States v. Pierce stated:
"'Although this court has not previously addressed whether lay opinion testimony identifying a defendant in surveillance photographs is admissible under Rule 701, several other circuits have held such testimony admissible in some circumstances. Because we find, as have most of those circuits, that lay opinion identification testimony may be helpful to the jury where, as here, "there is some basis for concluding that the witness is more likely to correctly identify the defendant from the photograph than is the jury," we hold that the district court acted within its discretion in admitting identification testimony from Hammond and Hammonds. United States v. Farnsworth, 729 F.2d 1158, 1160 (8th Cir. 1984); see also United States v. Jackman, 48 F.3d 1, 4-5 (1st Cir. 1995) (holding lay opinion identification testimony admissible "at least when the witness possesses sufficiently relevant familiarity with the defendant that the jury cannot also possess, and when the photographs are not either so unmistakably clear or so hopelessly obscure that the witness is no better-suited than the jury to make the identification"); United States v. Robinson, 804 F.2d 280, 282 (4th Cir. 1986) ("A lay witness may give an opinion concerning the identity of a person depicted in a surveillance photograph if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the photograph than is the jury."); United States v. Towns, 913 F.2d 434, 445 (7th Cir. 1990) (same); United States v. LaPierre, 998 F.2d 1460, 1465 (9th Cir. 1993) (holding lay opinion identification testimony admissible where "there is reason to believe that the witness is more likely to identify correctly the person than is the jury"); United States v. Borrelli, 621 F.2d 1092, 1095 (10th Cir. 1980) (upholding the admission of lay opinion testimony regarding defendant's resemblance to the subject of a bank surveillance photograph where the witness "was in a much better position than the jury to give an opinion as to the resemblance between [defendant] at the approximate date of the robbery and the man in the surveillance photograph").
"'We agree with our sister courts that whether a particular witness is better suited than the jury correctly to identify a defendant as the individual depicted in surveillance photographs turns on a number of factors. Perhaps most critical to this determination is the witness's level of familiarity with the defendant's appearance. As the Fourth Circuit observed in United States v. Allen, 787 F.2d 933, 936 (4th Cir. 1986), vacated on other grounds, 479 U.S. 1077, 107 S.Ct. 1271, 94 L.Ed.2d 132 (1987):
"'"[T]estimony by those who knew defendants over a period of time and in a variety of circumstances offers to the jury a perspective it could not acquire in its limited exposure to defendants. Human features develop in the mind's eye over time. These witnesses had interacted with defendants in a way the jury could not, and in natural settings that gave them a greater appreciation of defendants' normal appearance. Thus, their testimony provided the jury with the opinion of those whose exposure was not limited to three days in a sterile courtroom setting."
"'Accordingly, while familiarity derived from a witness's close relationship to, or substantial and sustained contact with, the defendant weighs heavily in favor of admitting the witness's identification testimony, knowledge of the defendant's appearance based entirely on the witness's "review of photographs of [the defendant] and witnesses' descriptions of him" does not, as it is not based on anything more than the evidence the jury would have before it at trial. See LaPierre, 998 F.2d at 1465.
"'Similarly, factors such as the witness's familiarity with the defendant's appearance at the time the surveillance photographs were taken or dressed in a manner similar to the individual depicted in the photographs, and whether the defendant had either disguised his appearance at the time of the offense or altered his appearance prior to trial, would also have some bearing on whether the witness is better able than the jury to make a correct identification. See United States v. Ellis, 121 F.3d 908, 926 (4th Cir. 1997), cert. denied, 522 U.S. 1068, 118 S.Ct. 738, 139 L.Ed.2d 674 (1998) (upholding the admission of lay opinion identification testimony by a witness who had known defendant for approximately five years, where defendant had disguised himself with a mask and a hooded sweatshirt at the time of the offense); Towns, 913 F.2d at 445 (upholding identification testimony from defendant's former girlfriend, who had observed defendant's appearance on the day of the bank robbery, where the surveillance photograph depicted the robber "wearing a stocking cap, sunglasses, and a sweatsuit that potentially made him appear heavier than he really was" and where defendant had shaved his moustache off prior to trial); Borrelli, 621 F.2d at 1095 (finding lay opinion identification testimony helpful where witness, defendant's stepfather, "had independent knowledge of [defendant's] appearance both before and at the time of the robbery" and defendant "had significantly altered his appearance by changing his hairstyle and growing a moustache").'
"136 F.3d at 774-75. See also People v. Morgan, 214 A.D.2d 809, 625 N.Y.S.2d 673, 674 (1995) ('It is now accepted that a lay witness may give an opinion concerning the identity of a person depicted in a surveillance photograph if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the photograph than is the jury.'), appeal denied, 86 N.Y.2d 783, 655 N.E.2d 726, 631 N.Y.S.2d 629 (1995).
"In considering the above principles, we note that [Sergeant Dwight] Hale's identification rests upon the weakest foundation of the identifications introduced (the others being the identifications by Partridge, Townsend, and Hines). Hale, the chief investigator for this case, testified that he spent a total of about 15 hours around Hardy after Hardy's apprehension, which included interviewing Hardy in Louisville and transporting him to Alabama. [Officer Eric] Partridge testified that he has known Hardy for 15 years; that they had gone to school together; that they rode the same school bus daily for five or six years; that he has also 'known him through the police department' (R. 3134), and that, while he was a police officer, he saw Hardy two to three times a week; and that the last time he had seen him before the commission of the September 7, 1993, robbery-murder was around August 20, 1993. [Investigator Thomas] Townsend testified that he has known Hardy all of Hardy's life; that he knows Hardy's family; that they live in the same community; and that, during the year preceding the capital offense, he saw Hardy an average of three times a week. [Christopher] Hines testified that, when he viewed the videotape several days after the offense, he identified the gunman in the videotape as Hardy. He further testified that he had been with Hardy on several occasions during the days preceding the crime and that he was with Hardy during the hours around the crime except between approximately 10:30 p.m., when he gave Hardy the keys to his automobile, and around 3:00 or 4:00 a.m. the following morning, when Hardy returned; and that after Hardy returned, they were going to go get breakfast, but instead Hardy took him to where the cash register was.
"The above qualifications of each of these latter three witnesses constitute a clearly sufficient basis for concluding that each was better qualified or in a better position than the jury to correctly identify Hardy. Weighing heavily in favor of admitting their identifications is their 'familiarity derived from a ... close relationship to, or substantial and sustained contact with' Hardy. United States v. Pierce, 136 F.3d at 774. For example, they had far more opportunity than the jurors to see Hardy from a variety of angles and distances and under different lighting conditions. In addition, they were more familiar with Hardy's carriage and posture. Because the depiction of the gunman was in fact a moving picture, the three, having seen Hardy in motion and being familiar with his mannerisms and body movements, were certainly in a better position to identify him than the jury, who had primarily seen Hardy motionless in a sterile courtroom. See State v. Hardy, 76 Wash.App. 188, 884 P.2d 8, 10 (1994). Moreover, all three witnesses were familiar with Hardy's appearance at the time the surveillance videotape was made --Hines more than the two law enforcement officers because he had seen Hardy hours before and hours after the capital offense. We have also taken into consideration the fact that Hardy obscured his face from view at the time of the offense, thus altering his appearance in an attempt to avoid being identified. See United States v. Stormer, 938 F.2d 759, 762 (7th Cir. 1991) ('Because the police officers who identified Stormer had worked with him for several years and were familiar with his appearance, they were in a better position to properly identify Stormer as the robber [depicted in the surveillance photographs] than the jury, especially in light of the fact that poor picture quality of the surveillance photographs in conjunction with Stormer's efforts to alter his appearance served to hinder the jury in making the crucial decision of whether Stormer was the man depicted in the surveillance photographs.'). See also People v. Robinson, 908 P.2d 1152, 1155 (Colo.App. 1995) (in rejecting the contention that the jury would not be less able to make a comparison than would the police detective, the court noted that the surveillance videotape is 'less than clear'; that it shows, 'for the most part, only a profile view of the robber'; that it distorts 'to some extent the viewer's perspective concerning the robber's height'; and that it is 'quite brief, and the opportunity to make a comparison is therefore limited'), aff'd, 927 P.2d 381 (Colo. 1996). Particularly in regard to Hines's identification of Hardy as the gunman in the videotape, see Ex parte Rieber, 663 So.2d at 1011 (after observing that '[t]he record indicates that [the witness's] identification of Rieber as the gunman shown on the videotape was based on his personal knowledge of Rieber's physical characteristics and on his appearance on the day of the murder,' the Court stated that 'even if we were to agree with Rieber's characterization of [the witness's] testimony as an opinion, and we do not, our conclusion as to the admissibility of [the witness's] testimony would not be different'); State v. Winston, 959 S.W.2d 874, 878 (Mo.Ct.App. 1997) (where the defendant's girlfriend's sister 'had spent time with defendant in the time immediately surrounding the burglaries and was familiar with his features,' and where 'the person in the printout of the video tape was moving quickly and is somewhat difficult to see,' there was a basis for concluding that the sister was more likely to correctly identify the defendant than was the jury in a print generated from a videotape of the surveillance camera, i.e., she was in possession of knowledge that the jury did not have and thus was helpful to the jury). We conclude that the trial court's admission of the identifications of Hardy by Partridge, Townsend, and Hines was within its sound discretion. See United States v. Pierce, 136 F.3d at 773 ('"The ultimate decision as to the admissibility of lay opinion testimony is committed to the sound discretion of the district court and will not be overturned on appeal unless there is a clear abuse of discretion." United States v. Myers, 972 F.2d 1566, 1576-77 (11th Cir. 1992).').
"....
"In finding that the admission of the identification testimony presents no reversible error, we have rejected Hardy's specific contention that the identifications of Hardy constituted incompetent opinion evidence from lay witnesses because, he argues, the witnesses were not actually at the store at the time of the robbery-murder and thus they did not actually observe the facts as to which they testified. Contrary to Hardy's assertion, it was not outside the knowledge of these witnesses to address in their testimony the question whether Hardy, whom they had sufficient basis to recognize, was the gunman in the videotape. Because they knew Hardy at the time of the crime, their conclusions that the person depicted in the videotape was Hardy were based on their perceptions. See Ex parte Rieber (even though the witness did not witness the crime, his identification was properly admitted because it was based, in part, on the witness's personal knowledge of Rieber's physical characteristics). We also reject Hardy's contention that, by testifying that they recognized Hardy as the gunman in the videotape, all identification witnesses gave impermissible opinions as to the ultimate fact in issue. 'Although identification testimony embraces an issue of fact -- the identity of the perpetrator, and perhaps evidence of guilt --the persons providing the identifications are not providing opinions of defendant's guilt or innocence or telling the jury how it should decide the case.' State v. King, 180 Ariz. 268, 883 P.2d 1024, 1036 (1994), cert. denied, 516 U.S. 880, 116 S.Ct. 215, 133 L.Ed.2d 146 (1995)."

804 So.2d at 269-274 (footnotes omitted).

         In the present case, both Hammonds and Bates were members of the same gang as Capote and were familiar with his appearance at the time of the shooting. In fact, Bates saw Capote leave in the white truck shortly before the shooting. Hammonds's and Bates's familiarity with Capote derived from a "substantial or sustained contact with" Capote; therefore, they were in a better position to identify him than the jury, especially given the poor quality of the surveillance video. See Hardy, 804 So.2d at 272; United States v. Pierce, 136 F.3d 770, 774 (11th Cir. 1998); United States v. Stormer, 938 F.2d 759, 762 (7th Cir. 1991). Further, as this Court held in Hardy, "'[a]lthough identification testimony embraces an issue of fact -- the identity of the perpetrator, and perhaps evidence of guilt -- the persons providing the identifications are not providing opinions of defendant's guilt or innocence or telling the jury how it should decide the case.'" Hardy, 804 So.2d at 274 (quoting State v. King, 883 P.2d at 1036)). Thus, this Court rejects Capote's contention that Hammonds's and Bates's identification testimony amounted to impermissible opinions as to the ultimate fact in issue. See Hardy, 804 So.2d at 274. This Court finds no abuse of discretion in the circuit's admitting the testimony. Thus, this issue does not entitle Capote to any relief.

         Capote also argues that error occurred when Inv. Holland testified that Hammonds and Bates had identified Capote as the passenger in the white truck. Capote contends that this testimony was inadmissible hearsay. In Smith v. State, 246 So.3d 1086 (Ala.Crim.App.2017), the investigator testified that the nontestifying codefendants had given several names of others who might have been involved in the crime, including Smith's. This Court held that the investigator's testimony was not hearsay because it was not offered for the truth of the matter asserted but was offered to explain the course of the investigation. Likewise, Inv. Holland's references to the information he received from Bates and Hammonds were not hearsay because they were not offered to prove the identity of the shooters, because Bates and Hammonds had already testified about the identity of the shooters in the video; rather, the information was offered through the investigator to explain the course of the investigation and its focus on Capote as one of the participants in the shooting.

         Moreover, even if Inv. Holland's testimony is considered as hearsay, Capote is due no relief on this claim. "[Evidence] that may be inadmissible may be rendered harmless by prior or subsequent lawful testimony to the same effect or from which the same facts can be inferred." White v. State, 650 So.2d 538, 541 (Ala.Crim.App.1994), overruled on other grounds, Ex parte Rivers, 669 So.2d 239 (Ala.Crim.App.1995). Inv. Holland's testimony about the identifications was cumulative to the testimony of Hammonds and Bates; therefore, any error in the admission of Inv. Holland's testimony was harmless. Accordingly, Capote is not entitled to any relief on this claim.

         II.

         Capote argues that the circuit court erred when, over his objection, it allowed the State to admit into evidence letters he allegedly wrote and passed to Hubbard in jail. Capote contends that the letters were not properly authenticated. Specifically, Capote argues that, because no one testified that they had seen Capote's handwriting, other than in the letters in question, or actually witnessed Capote writing the letters, the letters were not shown to have been written by him.

         Following their arrest, Hubbard and Capote were placed in the county jail. Hubbard was placed in a cell with Shawn Settles. While in jail, Hubbard and Capote conversed aloud back and forth between the cells about the case. Settles recommended that they refrain from discussing their case aloud but should, instead, write notes to one another. Settles taught Hubbard and Capote how to send written notes between their cells. Settles testified that, when an inmate wanted to send another inmate a note, the sender announced it to the hallway and sent the note down the hall and the recipient acknowledged receipt of the note. Settles testified that Hubbard and Capote used this method several times. Settles testified that State's Exhibit 88 was sent by Capote and that he saw Capote writing on paper shortly before he sent the note to Hubbard. The note stated, in pertinent part:

"Listen gee I killed that nigga But Fuck Ben I'll ask ta talk to Detective and ask For Immunity If I tell him who killed KJ and Tell him Ben did It Bookies uncle said his cousin Life at the Building where It happed and can point Ben out that he seen him Do It and will tell the Detectives That Ben killed him and help us cuz he Did see Ben for real But not the others But he'll say he seen Ben kill KJ and two black guys wit him ...."

(C. 443; R. 1219.) Settles also testified that he heard and saw Capote send additional letters, admitted as State's Exhibits 89, 90, and 92. Settles stated that he had pretended to flush the letters down the toilet in front of Hubbard but, instead, had kept them and turned them over to law-enforcement officers.

"'"The admission or exclusion of evidence is a matter within the sound discretion of the trial court." Taylor v. State, 808 So.2d 1148, 1191 (Ala.Crim.App.2000), aff'd, 808 So.2d 1215 (Ala. 2001). "The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court's determination on that question will not be reversed except upon a clear showing of abuse of discretion." Ex parte Loggins, 771 So.2d 1093, 1103 (Ala. 2000). In addition, "[t]rial courts are vested with considerable discretion in determining whether evidence is relevant, and such a determination will not be reversed absent plain error or an abuse of discretion." Hayes v. State, 717 So.2d 30, 36 (Ala.Crim.App.1997).'
"Gavin v. State, 891 So.2d 907, 963 (Ala.Crim.App.2003)."

Woods v. State, 13 So.3d 1, 23 (Ala.Crim.App.2007).

         Rule 901(a), Ala. R. Evid., provides: "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." "A writing may be authenticated by evidence of the contents or substance of the writing when taken in conjunction with the circumstances out of which it was written." Charles W. Gamble and Robert J. Goodwin, McElroy's Alabama Evidence § 111.01(1) (6th ed. 2009). See also Rule 901(b)(4), Ala. R. Evid. (providing that a piece of evidence may be properly authenticated by its "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances").

         In Washington v. State, 539 So.2d 1089 (Ala.Crim.App.1988), this Court held:

"'Before a letter is received in evidence, it is necessary to lay a foundation establishing its identity and authenticity, as by introducing proof as to the source of the letter or proof of the handwriting or signature of the sender.' Howard v. State, 347 So.2d 574, 575 (Ala.Crim.App.1977). Here, there was no proof regarding the defendant's handwriting and the letters bore no signature. Nevertheless, even 'unsigned letters may be received in evidence if properly connected with a person as being his actual letter, by the introduction of competent evidence showing it to be so.' Silva v. Exchange Nat'l Bank, 56 So.2d 332, 335-36 (Fla. 1951).
"The question before us is whether the letters were 'properly connected' with the defendant even though no witness saw him write the letters or place them in his truck for delivery. 'The authenticity of a letter may be established in more than one way. It may be established directly by proof of handwriting or by indirect or circumstantial evidence.' Casto v. Martin, 159 W.Va. 761, 230 S.E.2d 722, 727 (1976); Maynard v. Bailey, 85 W.Va. 679, 102 S.E. 480 (1920); Deaderick v. Deaderick, 182 Ga. 96, 185 S.E. 89 (1936).
"....
"Finally, although 'the mere contents of a written communication ... are of themselves usually not sufficient evidence of genuineness,' 7 Wigmore, Evidence § 2148 at 746, '[t]he contents of a writing may be critical in establishing admissibility. When the contents of a letter are of such nature that the letter could not have passed between any parties except the purported writer and the person to whom it was delivered, the letter is admissible.' Casto v. Martin, 230 S.E.2d at 727 (footnotes omitted). See also People v. Adams, 162 Mich. 371, 127 N.W. 354, 360 (1910) (letters purporting to come from defendant to witness, referring to a subject previously discussed by them, were admissible although it was not shown that he signed or sent them).
"....
"The sufficiency of the predicate required for the authentication of letters is largely within the discretion of the trial judge, and will be reviewed only for an abuse of discretion. Casto v. Martin, 230 S.E.2d at 727; State v. Huffman, [141 W.Va. 55');">141 W.Va. 55, ] 87 S.E.2d [541] at 554 [(1955)]. We find no abuse of discretion here. The letters were properly admitted for the jury to determine their actual authorship. Maynard v. Bailey, 102 S.E. at 482."

539 So.2d at 1097-99.

         Here, Settles testified that he heard Hubbard and Capote talking about the case while in jail. Settles advised the men that they should write to one another instead of talking aloud for others to hear. Settles testified that the inmates had a method for sending notes to one another in jail and that he instructed Hubbard and Capote on how to send notes. Utilizing the method described by Settles, Capote called out to Hubbard before sending him a note; Settles was familiar with Capote's voice and oftentimes saw Capote appear in the window of his cell's door before sending a note. Before Capote's sending the first note, which was State's Exhibit 88, Settles saw Capote writing on a piece of paper. Capote sent the notes down the catwalk of the jail, and Hubbard indicated that he had received them. Hubbard also sent notes to Capote using the same system. Further, the contents of some of the notes contained information only Capote would know. For instance, as a tactic to get Capote to confess to the crime, law-enforcement officers had told Capote that they had found some of his girlfriend's hair in the white truck. Capote then admitted to stealing the truck but did not confess to the murder. Capote referenced what the law-enforcement officers had told him in the letter. Capote also talked about the other codefendants in the letter.

         The State presented sufficient evidence tending to connect the letters to Capote. Actual authorship of the letters was for the jury to decide. Washington, supra. Therefore, this Court finds no abuse of the circuit court's discretion in admitting the letters. Accordingly, Capote is not entitled to any relief on this claim.

         III.

         Capote claims that the circuit court violated the Confrontation Clause of the Sixth Amendment to the United States Constitution and Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), when it allowed the State to introduce statements from his nontestifying codefendants, Hubbard and Young.

         A.

         Capote argues that the circuit court erred when it admitted into evidence State's Exhibit 92, a letter that Capote wrote in response to a letter that Hubbard had written, in which Hubbard had presented several numbered questions for Capote to answer. Initially, the circuit court ruled that State's Exhibit 91 -- the numbered questions -- was admissible, and the State asked Settles to read the questions at trial. The circuit court, however, immediately changed its ruling and did not allow Hubbard's questions to be admitted into evidence but did, over Capote's objection, allow Capote's answers to be admitted. Capote contends that, because Hubbard's questions were properly excluded, the numbered answers written in response should have also been excluded. According to Capote, the answers without reference to the related questions were not relevant, were more prejudicial than probative, and "forced [the jury] to speculate as to what the list of questions in State's Exhibit 91, that the State had discussed in front of them and began to have read, were, in order to make any sense of State's Exhibit 92." (Capote's brief, at 33.) Capote further contends that the admission of State's Exhibit 92 was unconstitutional under Bruton.

         In Bruton, the Supreme Court of the United States held that the receipt into evidence of a nontestifying codefendant's confession that implicates the accused violates the accused's right of cross-examination guaranteed by the Confrontation Clause. 391 U.S. at 132, 88 S.Ct. At 1625-26. In this case, the record reveals no such violation. Settles never testified to the contents of the questions written by Hubbard. Thus, there was no inadmissible statement by a nontestifying codefendant admitted into evidence. Further, State's Exhibit 92, the numbered response by Capote, did not constitute inadmissible hearsay.

         Under the Alabama Rules of Evidence, hearsay is defined as a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Rule 801(c), Ala. R. Evid. Hearsay is generally inadmissible. See Rule 802, Ala. R. Evid. Yet, not all out-of-court statements offered for the truth of the matter asserted constitute hearsay. A party-opponent admission, for example, includes, but is not limited to, a statement that is offered against a party that is "the party's own statement in either an individual or a representative capacity." Rule 801(d)(2), Ala. R. Evid. When a statement is offered against a defendant in this manner, it is not hearsay and is, therefore, not excluded under Rule 802, Ala. R. Evid. See Rule 801(d)(2), Ala. R. Evid.

         Here, the statements contained in State's Exhibit 92 were statements by Capote and were properly admitted as an admission by a party opponent. Contrary to Capote's arguments, the statements were relevant to show Capote's knowledge of and involvement in the murder. Further, the statements by Capote corroborated trial testimony, and the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. See Rule 403, Ala. R. Evid.

         Finally, Capote argues that the State admitted improper hearsay statements from Hubbard through Settles's testimony. The citations to the record in Capote's brief, however, do not support Capote's contention. The cited pages do not contain any testimony regarding statements made by Hubbard. Accordingly, Capote is not entitled to any relief on this claim.

         B.

         Capote argues that the State improperly admitted statements by codefendant Young. Capote claims that Hammonds was allowed to testify to statements Young had made to him following the murder.

         During trial, Hammonds testified that he met with Hubbard, Capote, and Young the day after the murder. When asked if the men had had a discussion regarding the shooting, Hammonds testified that they had told him to lay low and to keep quiet. The prosecutor then asked Hammonds if they had ever told him how many shots were fired. Hammonds testified: "15 or 17, something like that." (R. 931.) Defense counsel objected, and the circuit court sustained the objection, instructing Hammonds not to testify to what he was told. Because the circuit court immediately sustained the objection and indicated that the witness could not testify to what he was told, there is no adverse ruling from which to appeal. After the circuit court sustained the objection, Capote did not raise any further objections, request any curative instructions, or move for a mistrial. See Taylor v. State, 808 So.2d 1148, 1188 (Ala.Crim.App.2000) ("The trial court's sustaining of Taylor's objection was sufficient to eradicate any possible prejudice to Taylor."). Therefore, this issue will be reviewed for plain error only. See Rule 45A, Ala. R. App. P.

         This Court notes that the statements were attributed to the group rather than a specific person. This is significant because the analysis would vary depending on the attribution. If the statements were made by Capote himself, no Bruton violation occurred. On the other hand, if the statements were made by Young or Hubbard, the statements did not directly implicate Capote. Further, if Young or Hubbard did make the statements as related by Hammonds, they were plainly nontestimonial, see United States v. Williams, 506 F.3d 151, 156 (2d Cir. 2007) (statements to associates about crimes in which the declarant participated are not testimonial), and the Confrontation Clause does not apply to nontestimonial statements. United States v. Hano, 922 F.3d 1272 (11th. Cir. 2019). Thus, if the statements were made by Young or Hubbard, no Bruton violation occurred.

         Moreover, even if this Court were to find that a Bruton violation occurred, this Court has held that such a violation may be harmless. See Collins v. State, [Ms. CR-14-0753, Oct. 13, 2017] __So. 3d__ (Ala.Crim.App.2017). "[V]iolations of the Confrontation Clause are subject to harmless-error analysis." Smith v. State, 898 So.2d 907, 917 (Ala.Crim.App.2004).

"'A denial of the right of confrontation may, in some circumstances, result in harmless error.' James v. State, 723 So.2d 776, 781 (Ala.Crim.App.1998). '[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.' Ex parte Baker, 906 So.2d 277, 287 (Ala. 2004) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). '"'The question is whether there is a reasonable probability that the evidence complained of might have contributed to the conviction.'"' James, 723 So.2d at 781 (quoting Chapman, 386 at 23, quoting in turn Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963)). In determining whether such an error is harmless, this Court must look at 'the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.' Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)."

Floyd v. State, [Ms. CR-13-0623, July 7, 2017] __So. 3d__, __(Ala.Crim.App.2017).

         The statements at issue were by no means critical and were cumulative to, and corroborated by, other evidence. After thoroughly reviewing the record, this Court concludes that any error in the admission of the statements was harmless beyond a reasonable doubt. Accordingly, Capote is not entitled to any relief on this claim.

         IV.

         Capote argues that the circuit court erred in allowing the State to introduce gruesome autopsy photographs. Specifically, Capote contends that the autopsy photographs, including photographs of Freeman's lungs removed from his body and of Freeman's rib cage with the organs removed, were particularly gruesome, irrelevant, and inflammatory.

         The record reflects that, before trial, Capote filed a motion in limine to prohibit the State from introducing inflammatory and prejudicial autopsy photographs. The circuit court ruled that the photographs that had been admitted in codefendant's Young's trial would be admitted in Capote's trial. The circuit court's ruling was not absolute. At trial, Capote did not object to the admission of the autopsy photographs; therefore, this Court reviews Capote's challenge to the admission of the autopsy photographs for plain error only. See Ex parte Martin, 931 So.2d 759 (Ala 2004) (holding that, unless the trial court's ruling on a motion in limine is absolute or unconditional, proper objections at trial are necessary to preserve the issue); Rule 45, Ala. R. App. P.

"'Generally, photographs are admissible into evidence in a criminal prosecution "if they tend to prove or disprove some disputed or material issue, to illustrate or elucidate some other relevant fact or evidence, or to corroborate or disprove some other evidence offered or to be offered, and their admission is within the sound discretion of the trial judge."' Bankhead v. State, 585 So.2d 97, 109 (Ala.Crim.App.1989), remanded on other grounds, 585 So.2d 112 (Ala. 1991), aff'd on return to remand, 625 So.2d 1141 (Ala.Crim.App.1992), rev'd, 625 So.2d 1146 (Ala. 1993), quoting Magwood v. State, 494 So.2d 124, 141 (Ala.Crim.App.1985), aff'd, 494 So.2d 154 (Ala. 1986). 'Photographic exhibits are admissible even though they may be cumulative, demonstrative of undisputed facts, or gruesome.' Williams v. State, 506 So.2d 368, 371 (Ala.Crim.App.1986) (citations omitted). In addition, 'photographic evidence, if relevant, is admissible even if it has a tendency to inflame the minds of the jurors.' Ex parte Siebert, 555 So.2d 780, 784 (Ala. 1989). 'This court has held that autopsy photographs, although gruesome, are admissible to show the extent of a victim's injuries.' Ferguson v. State, 814 So.2d 925, 944 (Ala.Crim.App.2000), aff'd, 814 So.2d 970 (Ala. 2001). '"[A]utopsy photographs depicting the character and location of wounds on a victim's body are admissible even if they are gruesome, cumulative, or relate to an undisputed matter."' Jackson v. State, 791 So.2d 979, 1016 (Ala.Crim.App.2000), quoting Perkins v. State, 808 So.2d 1041, 1108 (Ala.Crim.App.1999), aff'd, 808 So.2d 1143 (Ala. 2001), judgment vacated on other grounds, 536 U.S. 953 (2002), on remand to, 851 So.2d 453 (Ala. 2002). 'The same rule applies for videotapes as for photographs: "The fact that a photograph is gruesome and ghastly is no reason for excluding it, if relevant, even if the photograph may tend to inflame the jury."' Siebert v. State, 562 So.2d 586, 599 (Ala.Crim.App.1989), aff'd, 562 So.2d 600 (Ala. 1990), quoting Walker v. State, 416 So.2d 1083, 1090 (Ala.Crim.App.1982). See also Ward v. State, 814 So.2d 899 (Ala.Crim.App.2000). Generally, '[a] properly authenticated video tape recording of the scene of the crime constitutes competent evidence' and 'is admissible over the defendant's objections that the tape was inflammatory, prejudicial, and cumulative.' Kuenzel v. State, 577 So.2d 474, 512-13 (Ala.Crim.App.1990), aff'd, 577 So.2d 531 (Ala. 1991). 'Provided that a proper foundation is laid, the admissibility of videotape evidence in a criminal trial is a matter within the sound discretion of the trial judge.' Donahoo v. State, 505 So.2d 1067, 1071 (Ala.Crim.App.1986)."

Brooks v. State, 973 So.2d 380, 393 (Ala.Crim.App.2007).

         This Court has thoroughly reviewed all the autopsy photographs. As Capote contends, photographs that depict distortions of the subject matter, such as massive mutilation or extreme magnification, are objectionable. See Malone v. State, 536 So.2d 123 (Ala.Crim.App.1988). Nonetheless, photographs that accurately depict the nature of a victim's wounds are admissible even if they are gruesome or cumulative. Ackling v. State, 790 So.2d 975 (Ala.Crim.App.2000). The autopsy photographs were relevant and admissible to show the extent of the wounds to Freeman's body. Each photograph was identified and explained to the jury. Although they are certainly unpleasant to view, they are not unduly gruesome, and this Court concludes that their prejudicial effect did not substantially outweigh their probative value. Therefore, this Court finds no error, much less plain error, in the admission of the autopsy photographs. Accordingly, Capote is not entitled to any relief on this claim.

         V.

         Capote argues that "the State repeatedly introduced inadmissible hearsay evidence through its witnesses and its exhibits at trial." (Capote's brief, at 41.) Capote points to numerous claims of error, including the alleged hearsay statements already addressed above. This Court will not readdress those claims here. In addition to those claims of error, Capote contends that the conversations through the Facebook social-media Web site between Freeman and his girlfriend, and between Freeman and Hammonds and Bates, were inadmissible hearsay. Capote also cites other alleged hearsay statements, including Hammonds's testimony that he told Hubbard that Freeman did not have the Xbox and the lead investigator's testimony that Settles gave them the location of the rifle used in the shooting.[3]

         "'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Rule 801(c), Ala. R. Evid. However, "'[a] statement offered for some other purpose other than to prove the truth of its factual assertion is not hearsay.'" Montgomery v. State, 781 So.2d 1007, 1019 (Ala.Crim.App.2000) (quoting Thomas v. State, 408 So.2d 562, 564 (Ala.Crim.App.1981)).

         Here, the claims of error cited by Capote primarily involve statements that were not offered for the truth of the matter asserted. Instead, the statements explained the actions of the participants leading up to the shooting. Furthermore, the statements through Facebook between Freeman and Hammonds and between Freeman and Bates were cumulative to Hammonds's and Bates's testimony regarding their involvement in the plan to lure Freeman to a meeting. The statements that Settles told Capote and Hubbard not to discuss the case aloud in the jail and that Settles told Hubbard he was flushing the letters in the toilet were not statements offered to prove the truth of the matter asserted. Likewise, the specific directions given by Settles to locate the rifle were not offered to prove the truth of the matter asserted but to demonstrate how law-enforcement officers arrived at the location of the rifle. See, e.g., Smith v. State, 795 So.2d 788 (Ala.Crim.App.2000); Miller v. State, 687 So.2d 1281 (Ala.Crim.App.1996); D.R.H. v. State, 615 So.2d 1327 (Ala.Crim.App.1993); Sawyer v. State, 598 So.2d 1035 (Ala.Crim.App.1992); and Thomas v. State, 520 So.2d 223 (Ala.Crim.App.1987) (all recognizing that a statement is admissible when it is not offered to prove the truth of its content but to establish the reason for action or conduct by the witness). See also Stallworth v. State, 868 So.2d 1128, 1153 (Ala.Crim.App.2001) (quoting Ashford v. State, 472 So.2d 717, 719 (Ala.Crim.App.1985), quoting in turn 22A C.J.S. Criminal Law § 718 (1961)) ("'"[The hearsay rule] does not exclude extrajudicial utterances offered merely to prove the fact of the making or delivery thereof, or to explain subsequent conduct of a hearer."'"), and Grayson v. State, 824 So.2d 804, 813 (Ala.Crim.App.1999), aff'd, 824 So.2d 844 (Ala. 2001) (quoting Tucker v. State, 474 So.2d 131, 132 (Ala.Crim.App.1984), rev'd on other grounds, 474 So.2d 134 (Ala. 1985)) ("'[A] statement may be admissible where it is not offered to prove the truth of whatever facts might be stated, "but rather to establish the reason for action or conduct by the witness."'"). Because the statements were not offered to prove the truth of the matter asserted, they were, by definition, not hearsay, and there was no error in their admission. Accordingly, Capote is not entitled to any relief on this claim.

         VI.

         Capote argues that the State erred when it referred to and relied upon evidence that was never formally admitted at trial, specifically, the five projectiles that were removed from Freeman's body. Three witnesses testified at trial identifying the exhibits, establishing a chain of custody, and linking three of the projectiles to the recovered rifle. Capote did not object during the witnesses' testimony or at any point during the trial; therefore, this claim is reviewed for plain error only.

"'"Demonstrative or real evidence, or evidence by inspection, is such evidence as is addressed directly to the senses of the court or jury without the intervention of the testimony of witnesses, as where various things are exhibited in open court." Kabase v. State, 31 Ala.App. 77, 83, 12 So.2d 758, 764 (1943) and authority cited therein. Where the jury has had an adequate view of real evidence it is not strictly needful to make a formal introduction of it in evidence. Smith v. State, 344 So.2d 1239, 1241 (Ala. Cr. App.), cert. denied, 344 So.2d 1243 (Ala. 1977); Rainey v. State, 48 Ala.App. 530, 266 So.2d 335 (1972). "The tenor or its proffer is immaterial. It becomes evidence -- the fact it imports -- when it is properly identified and exhibited before the jury in open court for their inspection." Kabase, 31 Ala.App. at 83, 12 So.2d at 764. Although the towel had not been formally introduced, the fact that it had been used in connection with the giving of testimony made it evidence in the case which properly remained before the jury. Smith, supra.'
"Murrell v. State, 377 So.2d 1102, 1107 (Ala.Crim.App.1979). See also Berard v. State, 402 So.2d 1044, 1047 n.1 (Ala.Crim.App.1981) ('Although the slides were not formally admitted, the fact that they were used in connection with the giving of testimony made them evidence in this case.')."

Thompson v. State, 153 So.3d 84, 173 (Ala.Crim.App.2012).

         Although the projectiles were not formally admitted into evidence, the projectiles were adequately presented to the jury and therefore properly before the jury for its consideration. Therefore, there was no error, plain or otherwise, in the State's use of the projectile evidence.

         VII.

         Capote contends that the circuit court erred in its instructions defining capital murder and then compounded the mistake by giving an instruction regarding accomplice liability. Specifically, Capote argues that the circuit court failed to instruct the jury that capital murder requires a real and specific intent to kill. Capote claims that the error was compounded when the court gave a general accomplice-liability instruction without describing its application to capital murder.

         When reviewing a trial court's jury instructions, this Court keeps in mind the following principles:

"A trial court has broad discretion when formulating its jury instructions. See Williams v. State, 611 So.2d 1119, 1123 (Ala. Cr. App. 1992). When reviewing a trial court's instructions, '"the court's charge must be taken as a whole, and the portions challenged are not to be isolated therefrom or taken out of context, but rather considered together."' Self v. State, 620 So.2d 110, 113 (Ala. Cr. App. 1992) (quoting Porter v. State, 520 So.2d 235, 237 (Ala. Cr. App. 1987)); see also Beard v. State, 612 So.2d 1335 (Ala. Cr. App. 1992); Alexander v. State, 601 So.2d 1130 (Ala. Cr. App. 1992)."

Williams v. State, 795 So.2d 753, 780 (Ala.Crim.App.1999), aff'd, 795 So.2d 785 (Ala. 2001).

"In the context of challenged jury instructions, the plain-error doctrine has been applied as follows.
"'"'In setting out the standard for plain error review of jury instructions, the court in United States v. Chandler, 996 F.2d 1073, 1085, 1097 (11th Cir. 1993), cited Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990), for the proposition that "an error occurs only when there is a reasonable likelihood that the jury applied the instruction in an improper manner." Williams v. State, 710 So.2d 1276, 1306 (Ala.Crim.App.1996), aff'd, 710 So.2d 1350 (Ala. 1997), cert. denied, 524 U.S. 929, 118 S.Ct. 2325, 141 L.Ed.2d 699 (1998).'"
"'Broadnax v. State, 825 So.2d 134, 196 (Ala.Crim.App.2000), quoting Pilley v. State, 789 So.2d 870, 882-83 (Ala.Crim.App.1998).'"

Harris v. State, 2 So.3d 880, 910 (Ala.Crim.App.2007)(quoting Snyder v. State, 893 So.2d 488, 548 (Ala.Crim.App.2003)). See also Belisle v. State, 11 So.3d 256, 308 (Ala.Crim.App.2007); Gobble v. State, 104 So.3d 920, 973 (Ala.Crim.App.2010) (quoting Johnson v. State, 820 So.2d 842, 874 (Ala.Crim.App.2000), quoting in turn Ex parteBoyd, 715 So.2d 852 (Ala. 1998)) ("'"The absence of an objection in a case involving the death penalty does not preclude review of the issue; however, the defendant's failure to object does weigh[] against his claim of prejudice."'"). Because Capote did not object to the circuit ...


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