from Colbert Circuit Court (CC-16-340)
WINDOM, PRESIDING JUDGE.
Capote appeals his convictions for one count of capital
murder and one count of first-degree assault. 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.
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.
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.
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
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.
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
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)).
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."
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. , 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).
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.
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."
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
"'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.
"'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
"'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
"'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
"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.
"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).
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
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.
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.
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
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
"'"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
"Gavin v. State, 891 So.2d 907, 963
Woods v. State, 13 So.3d 1, 23 (Ala.Crim.App.2007).
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").
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 
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.
539 So.2d at 1097-99.
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
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.
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.
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.
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.
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.
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.
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
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
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.
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
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
Floyd v. State, [Ms. CR-13-0623, July 7, 2017] __So.
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.
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.
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
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.
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.
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
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.
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.
"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
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.
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
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.
Williams v. State, 795 So.2d 753, 780
(Ala.Crim.App.1999), aff'd, 795 So.2d 785 (Ala.
"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 ...