LaJeromeny Latez Brown v. State of Alabama

Rel: August 21, 2026

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter.

Alabama Court of Criminal Appeals

OCTOBER TERM, 2025-2026

CR-2024-0040

LaJeromeny Latez Brown

v.

State of Alabama

Appeal from Madison Circuit Court

(CC-21-2762)

MINOR, Judge.

LaJeromeny Latez Brown went to a vacant house in Huntsville in

December 2019 planning to sell 100 pounds of marijuana for $65,000.

Unknown to Brown, the sale was a set up—law-enforcement officers had

surrounded the house, and officers were waiting inside to arrest Brown.

CR-2024-0040

Brown knocked on the door and, hearing a voice telling him to come in,

opened it. Huntsville Police Department Agent Billy Clardy III, whose

weapon was holstered and who was wearing a vest with "POLICE" on the

front and back, began moving from a room adjacent to the room into

which the front door opened. Brown, armed with a Glock pistol equipped

with a switch making it fully automatic, shot a burst of gunfire

immediately upon seeing Agent Clardy, gunning him down and killing

him. Law-enforcement officers pursued Brown and caught him.

A jury convicted Brown of capital murder for killing Agent Clardy.

That same jury, by a vote of 10 to 2, sentenced Brown to death. After

careful review, and with the benefit of oral argument,1 we affirm.

Facts and Procedural History

In Fall 2019, Fred Alexander, a confidential informant, contacted

Agent Blake Dean with the Huntsville Police Department and told him

that a man he knew as "Tennessee" was bringing large amounts of

marijuana from either Chattanooga or Knoxville and selling it in

Huntsville. (R. 1419-20.) Alexander told Agent Dean that they could first

1This Court held oral argument on December 9, 2025.

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buy 3 pounds of marijuana from Tennessee and later buy 100 pounds of

marijuana from him. (R. 1419-21.) Agent Dean, who was also a member

of the North Alabama Drug Task Force,2 and Alexander set up a

controlled buy with Tennessee for November 20, 2019. (R. 1421.)

On November 20, Agent Dean met with Alexander at the drug-taskforce office to discuss the controlled buy. Alexander told Agent Dean that

"it was going to be $1,900 for the three pounds of marijuana." (R. 1421.)

They called Tennessee, and he agreed to meet Alexander at the Parkway

Place Mall in Huntsville. (R. 1421.) Because the deal Alexander had set

up with Tennessee included a third party, Agent Thomas Morris agreed

to pose as the third party. (R. 1422.) Agent Dean gave Agent Morris

$1,900 to buy the marijuana from Tennessee and outfitted him with a

recording device. (R. 1422.) Agent Morris and Alexander then drove

separately to the Parkway Place Mall.

Agent Dean and the drug-task-force team followed them to the mall

2The North Alabama Drug Task Force is "a multi-jurisdictional

drug task force with the goal of disrupting and dismantling drug

trafficking organizations." (R. 1416.) The task force consists of "mostly

Huntsville Police Officers" but also includes members from the Madison

County Sheriff's Department and the Madison City Police Department

and partners with the Federal Bureau of Investigation and the Drug

Enforcement Administration. (R. 1416.)

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"and kept surveillance the whole time." (R. 1422.) At the mall, Agent

Morris and Alexander "parked on the parking deck in front of the food

court at the mall towards the back of the parking lot." (R. 1422.) Once

parked, Agent Morris got out of his car and got into Alexander's car as

they waited for Tennessee. (R. 1422-23.) After about half an hour,

Tennessee called Alexander and told him that he was at the mall, and

Alexander told him where he and Agent Morris were parked. Soon after,

"a gray Chevy Malibu with a Tennessee tag back[ed] in next to where

Agent Morris [and Alexander were] parked." (R. 1423.) Alexander and

Agent Morris then got into Tennessee's car. In Tennessee's car, Agent

Morris gave Tennessee the $1,900, and, in return, Tennessee gave Agent

Morris "three Ziploc bags, each containing about a pound of marijuana."

(R. 1423.) They then went their separate ways, leaving the Parkway

Place Mall. (R. 1423.)

When Tennessee left, Agent Dean "followed him long enough to get

the tag [number] off the vehicle." (R. 1423.) Later, Agent Dean ran

Tennessee's tag number, "and it came back to Alma Applebet of

Chattanooga." (R. 1423-24.) Another drug-task-force agent found a

connection between Applebet and LaJeromeny Brown. (R. 1424.) Agent

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Dean found a picture of Brown and showed it to Agent Morris, who

"identified LaJeromeny Brown as the person he had just bought the

marijuana from at Parkway Place." (R. 1424.) Agent Dean also showed

Brown's picture to Alexander, who "confirmed that LaJeromeny Brown

was the same subject he knew as Tennessee." (R. 1425.)

On December 4, 2019, Alexander called Agent Dean and told him

that Brown had told him that he would be in Huntsville two days later

"to bring the hundred pounds of marijuana and that it would be $60,000."

(R. 1425.) Brown told Alexander that they needed to meet at a house to

do the transaction. (R. 1425.) Agent Billy Clardy, whose wife worked in

real estate, found a vacant house on Levert Street "that [they] could use

for the deal." (R. 1426.)

Two days later, Alexander met with the drug-task-force team at the

drug-task-force office around 2:00 p.m. (R. 1426.) Alexander told the team

that Brown had said that he would get to Huntsville between 7 p.m. and

9 p.m. that night. Alexander then called Brown, and Brown told him that

he was already in Huntsville and "that he was ready," but the price for

the marijuana had increased to $65,000. (R. 1426.) Alexander told Brown

that "he would ask the third party if the $5,000 increase was something

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he could do or not." (R. 1427.) After letting a little time pass, Alexander

"made a recorded phone call to Mr. Brown … to let him know that the

deal was still good; that we would still pay the $65,000. And also that we

would send him a—text him an address of where we wanted to meet at."

(R. 1427.)

Because Brown was already in Huntsville and ready to meet with

Alexander and Agent Morris, the drug-task-force team had "to move

quicker." (R. 1428.) Agent Clardy "left the office to go get the [house] key

and to go to make sure the house was—was okay," and Agent Dean sent

Alexander to wait in a nearby department-store parking lot while the rest

of the drug-task-force team met to discuss the operation. (R. 1428-29.)

The transaction with Brown was not a controlled buy; the drug-task-force

team was instead "going to conduct a takedown and recover the drugs."

(R. 1429.) The team then planned the takedown operation.

Because, in their experience, it was common for anyone with a lot

of drugs to run from law enforcement and because they were meeting

Brown between 4:00 p.m. and 5:00 p.m. during "work hour traffic," the

team planned to wait until Brown got out of his car to take him down.

"The plan [was Brown was] going to pull up and [the drugtask-force team was] going to let him get as far away from

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that truck—get out of the truck and as far away from it as

possible so he [couldn't] jump back into it and run from

[them].

"[Agent Dean], [Agent Clardy], and Agent Morris were

going to be in the house. And [Agent Dean] and [Agent Clardy]

were kind of just cover for Agent Morris in case Agent Morris

had to make contact with Mr. Brown. But the plan was to let

him get away from that truck, up on the porch, and then

attempt to take him down."

(R. 1430-31.) The plan for the "takedown team" was to stay "on the

perimeter." (R. 1432.) Once Agent Dean signaled for them to "move," the

takedown team would take Brown into custody before he entered the

house.

After the plan was approved, Agents Dean, Clardy, and Morris

drove to a nearby department store. There, the agents got into a

"surveillance vehicle[]," which did not "look like a police vehicle," and

drove to the house on Levert Street to prepare it for Brown's arrival. (R.

1432.) Agents Dean and Clardy, like the agents stationed outside the

house, wore "vests that were clearly marked on the front and back" with

the word "POLICE." (R. 1433.) But because Agent Morris was working

undercover as the third party, he did not wear a vest.

While Agents Dean, Clardy, and Morris were preparing the house,

Agent Bradley Snipes, who was working on the perimeter as part of the

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takedown team, radioed that a "tan Dodge Ram" had turned down Levert

Street. (R. 1434.) Agent Clardy, who was looking out of the living-room

window toward Levert Street, told Agent Dean that the truck was

"occupied by one black male." (R. 1434.) The truck first parked in front of

the house, but the person inside it did not get out. After a few minutes,

the truck pulled into an open field across the street from the house and

parked. The person continued to sit inside the truck. Agent Dean then

called Alexander and told him to call Brown. Alexander did so. Alexander

told Agent Dean that Brown was at the house and to have Agent Morris

come out of the house "just to wave at him to let him know that he is

there." (R. 1435.)

Before Agent Morris went outside to wave at Brown, Agents Dean

and Clardy moved to a front bedroom, which was near the front door, that

had a window "facing out towards the road." (R. 1435.) From that

window, Agent Dean could see Brown in the truck. (R. 1435.) Agent

Morris then went outside, waved at Brown, and came back inside and

closed the front door. Brown still did not get out of the truck.

Instead, Brown "move[d] his truck almost up into the kind of front

yard sideways where his passenger door is facing the front door of the

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house." (R. 1435-36.) Although Agent Dean was supposed to tell the

takedown team to apprehend Brown as soon as he got out of the truck,

Agent Dean "went from having a good eye to being able to see him 'til

[Brown] pull[ed] in front of the house and [he could] see the truck but [he

couldn't] see [Brown] anymore." (R. 1436.) Agent Dean did not know that

Brown "was out of the truck until [Brown] knocked on the front door." (R.

1436.) As soon as Brown knocked on the door, Agent Dean told the

takedown team to move.

But after Brown knocked, Agent Morris told him to "come on in."

(R. 1437.) As soon as Brown opened the front door, Agent Clardy, whose

weapon was holstered, started to move out of the front bedroom to

apprehend Brown. Before he left the threshold of the front bedroom, he

was hit by a burst of automatic gunfire. Agent Clardy "immediately

[went] down," and Brown fled on foot. Agent Dean and Sergeant Doug

Pennington, who was stationed nearby, began attending to Agent Clardy.

(R. 1439.) Within minutes, drug-task-force agents loaded Agent Clardy

into the back of Agent Snipes's truck and drove him to the hospital, where

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he was later pronounced dead.3

While some agents attended to Agent Clardy, other agents pursued

Brown. Agent John Daly was about "thirty yards" away from Brown

when Brown fled from the house. (R. 1509.) Agent Daly could see that

Brown "had a pistol in his hand," and, as Agent Snipes drove up, Brown

turned back and "[p]ointed the weapon at Agent Snipes's vehicle." (R.

1509-10.) Brown threw his firearm—a 9-millimeter Glock model 17 Gen

5 with an aftermarket "select fire sear" that converts a semiautomatic

3An autopsy performed by Dr. Valerie Green showed that Agent

Clardy suffered three gunshot wounds. (R. 1612.) One gunshot wound

was "an abrasion down on the area of the abdomen." (R. 1612.) The second

gunshot wound

"went through the third intercostal muscle, which is a muscle

between the second and third ribs. The upper lobe of the right

lung, the right atrium, atrial septum, and left atrium of the

heart. The inferior lobe of the left lung, the diaphragm, which

is the muscle that separates the chest from the abdomen and

aids in respiration. It then hit the spleen, the diaphragm once

again, and then exited the left posterior intercostal muscle

basically meaning that muscle after the left rib in the back of

the body."

(R. 1613.) The third gunshot wound was "located in the upper right back"

and "went through soft tissues of the trapezius area of the torso and soft

tissues of the interior right chest wall." (R. 1614-15.) The second gunshot

wound was fatal.

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firearm into a fully automatic firearm4 (R. 1633-36)—and Agent Daly

pursued Brown on foot. (R. 1510.) Soon after, Brown was taken into

custody. While the agents were trying to handcuff Brown, they asked

each other if Brown had shot someone; Brown offered that he "didn't see

nobody." (State's Ex. 971; 17:14:37-39.)5 After Brown was in custody,

Agent Daly returned to where he saw Brown throw his firearm and

"called on the radio for a patrol unit to come stand guard over it." (R.

1511.)

Later that night, Investigator Christopher Hines with the

Huntsville Police Department interviewed Brown. Investigator Hines

4Brandon Best, a forensic scientist with the Firearm and Tool

Marks Section of the Alabama Department of Forensic Sciences, testified

that the aftermarket sear on the Glock pistol meant that "once you pull

the trigger it will continue to fire until you either encounter a misfire,

run out of ammunition, or you let go of that trigger." (R. 1636.)

5At Brown's trial, the State offered into evidence the body-camera

footage from Agent Dean (State's Ex. 969), Agent Snipes (State's Ex. 970),

Agent Daly (State's Ex. 971), and Sergeant Pennington (State's Ex. 972).

The body-camera footage, which this Court has watched, shows in realtime Brown's shooting Agent Clardy, the agents' pursuit of Brown and

taking him into custody, and the agents' tending to Agent Clardy. The

State also admitted as State's Exhibit 974 the video of Brown's interview

with Investigator Christopher Hines. Any references to these exhibits are

noted by the exhibit number and the time stamp on the video.

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read Brown his Miranda6 warnings, which Brown waived, and Brown

agreed to speak with Investigator Hines. During that interview, Brown

told Investigator Hines that he was on Levert Street because he was

looking "at some houses over there for sale." (State's Ex. 974; 19:54:15-25.) Brown said that, when he got to the house, he was "not sure what

happened." (State's Ex. 974; 19:54:40-46.) Later, Brown said that there

were three people in the house, but he really did not know what

happened. (State's Ex. 974; 20:01:30-50.) When Investigator Hines asked

Brown why he ran from the house, Brown told him that he was "running

from gunshots." (State's Ex. 974; 20:02:00-12.) Brown claimed that he did

not shoot at anyone. (State's Ex. 974; 20:02:30-39.) Brown also claimed

that he did not have a gun. (State's Ex. 974; 20:01:00 – 20:03:40.)

When Investigator Hines asked Brown if he ever owned a gun,

Brown told him "no." (State's Ex. 974; 20:07:10-15.) When Brown asked

Investigator Hines what he could be charged with, Investigator Hines

told him either murder or capital murder because the person Brown shot

is dead. (State's Ex. 974; 20:08:00-30.) Brown responded that he

murdered no one. (Id.) When Brown asked Hines who was murdered,

6Miranda v. Arizona, 384 U.S. 436 (1966).

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Hines told him that it was a Huntsville Police Officer. Brown responded

that that was "terrible" and that he was "heartbroke to know that an

officer lost his life." (State's Ex. 974; 20:13:25-35.) Investigator Hines

then left the interview room.

When he came back nearly an hour later, Investigator Hines asked

Brown about the things that the agents took off him when he was taken

into custody, including a gun holster. (State's Ex. 974; 21:03.) Brown

denied that it was his holster. (Id.) Investigator Hines then told Brown

that he was being charged with capital murder, and Brown asked him

why he was being charged with capital murder when he killed no one.

(State's Ex. 974; 21:04.)

A grand jury indicted Brown in August 2021 for capital murder for

killing Agent Clardy while Agent Clardy was on duty. See § 13A-5-40(a)(5), Ala. Code 1975. (C. 14-15.) In November 2021, the State notified

Brown that it would seek the death penalty. (C. 26.)

Brown's trial began on October 16, 2023, in the Madison Circuit

Court. (R. 142.) The jury found Brown guilty of capital murder as charged

in his indictment. (C. 99; R. 1859.) At the penalty phase of his trial, the

jury did not find that the State had proven beyond a reasonable doubt

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the aggravating circumstances that Brown had knowingly created a

great risk of death to many persons, see § 13A-5-49(3), Ala. Code 1975;

that the capital offense was committed for the purpose of avoiding or

preventing a lawful arrest or effecting an escape from custody, see § 13A5-49(5); or that the capital offense was committed to disrupt or hinder

the lawful exercise of any governmental function or the enforcement of

laws, see § 13A-5-49(7). (C. 100-02; R. 2110.) But by its guilt-phase

verdict, the jury unanimously found the aggravating circumstance to

exist that the victim of the capital offense was an on-duty police officer,

see § 13A-5-40(a)(5) and § 13A-5-49(13). The jury, by a vote of 10 to 2,

sentenced Brown to death. (C. 103; R. 2109.) Based on the jury's binding

decision, the trial court sentenced Brown to death. (C. 104, 113.) This

appeal follows.

Standard of Review

Many of the issues Brown raises on appeal seek plain-error review

under Rule 45A, Ala. R. App. P.

In 2023, the Alabama Supreme Court amended Rule 45A, making

plain-error review in death-penalty cases discretionary. See Henderson

v. State, [Ms. CR-21-0044, May 3, 2024] ___ So. 3d ___, ___ (Ala. Crim.

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App. 2024) (explaining that Rule 45A now provides that plain-error

review is discretionary in all cases in which the death penalty has been

imposed (citing Iervolino v. State, 402 So. 3d 845, 861-62 (Ala. Crim. App.

2023)), cert. denied (No. SC-2024-0555, June 20, 2025). Although this

Court "continue[s] to review the entire record for plain error" in deathpenalty cases, it does not "address in its opinions every issue that is

subject only to plain-error review and, even if [this Court] choose[s] to

address those issues, [it is] not required to engage in the type of in-depth

analyses as [it has] in the past." Iervolino, 402 So. 3d at 862. This Court

also has exercised its discretion not to engage in plain-error review of

Batson7 claims "when those claims are raised for the first time on

appeal." Henderson, ____ So. 3d at ____.

"The standard this Court employs in conducting plainerror review is well settled:

" ' " 'The standard of review in reviewing a

claim under the plain-error doctrine is stricter

than the standard used in reviewing an issue that

was properly raised in the trial court or on appeal.'

Hall v. State, 820 So. 2d 113, 121 (Ala. Crim. App.

1999), aff'd, 820 So. 2d 152 (Ala. 2001). Plain error

is 'error that is so obvious that the failure to notice

it would seriously affect the fairness or integrity of

the judicial proceedings.' Ex parte Trawick, 698

7Batson v. Kentucky, 476 U.S. 79 (1986).

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So. 2d 162, 167 (Ala. 1997), modified on other

grounds, Ex parte Wood, 715 So. 2d 819 (Ala.

1998). 'To rise to the level of plain error, the

claimed error must not only seriously affect a

defendant's "substantial rights," but it must also

have an unfair prejudicial impact on the jury's

deliberations.' Hyde v. State, 778 So. 2d 199, 209

(Ala. Crim. App. 1998), aff'd, 778 So. 2d 237 (Ala.

2000). 'The plain error standard applies only

where a particularly egregious error occurred at

trial and that error has or probably has

substantially prejudiced the defendant.' Ex parte

Trawick, 698 So. 2d at 167. '[P]lain error must be

obvious on the face of the record. A silent record,

that is a record that on its face contains no

evidence to support the alleged error, does not

establish an obvious error.' Ex parte Walker, 972

So. 2d 737, 753 (Ala. 2007). Thus, '[u]nder the

plain-error standard, the appellant must establish

that an obvious, indisputable error occurred, and

he must establish that the error adversely affected

the outcome of the trial.' Wilson v. State, 142 So.

3d 732, 751 (Ala. Crim. App. 2010). '[T]he plain

error exception to the contemporaneous-objection

rule is to be "used sparingly, solely in those

circumstances in which a miscarriage of justice

would otherwise result." ' United States v. Young,

470 U.S. 1, 15, 105 S. Ct. 1038, 84 L. Ed. 2d 1

(1985) (quoting United States v. Frady, 456 U.S.

152, 163 n.14, 102 S. Ct. 1584, 71 L. Ed. 2d 816

(1982))." '

"Iervolino, 402 So. 3d at 861-63 (quoting DeBlase v. State, 294

So. 3d 154, 182-83 (Ala. Crim. App. 2018))."

Henderson, ___ So. 3d at ___.

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Analysis

I. Brown is due no relief based on the trial court's jury instructions

about capital murder and heat-of-passion manslaughter.

Brown argues that the trial court "failed to properly charge the jury

regarding capital murder and heat-of-passion provocation." (Brown's

brief, p. 26.) Specifically, Brown argues that, "although the trial court

agreed to instruct the jury on provocation manslaughter, the court did so

improperly, failing to instruct the jury that lack of provocation was an

element of the capital charge against Mr. Brown." (Brown's brief, pp. 26-27.)

During the guilt-phase charge conference, the trial court and the

parties discussed whether Brown had a right to instructions on any

lesser-included offenses. Brown's counsel argued that Brown should get

a jury instruction on heat-of-passion manslaughter, asserting that Brown

had met his burden "of injecting heat of passion" because he had testified

that he was "faced with an imminent assault." (R. 1739.) The State, in

response, argued that there was no evidentiary basis for a jury

instruction on heat-of-passion manslaughter and questioned what the

jury could "find as evidence" to support finding him guilty of heat-ofpassion manslaughter. (R. 1740.) Brown answered that the jury "could

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find that he had the mere appearance of an imminent assault, and that

was enough to arouse the heat of passion," which would be based on his

testimony that "he's being approached by a silhouette, and he perceives

a gun coming at him." (R. 1741.) Although the State maintained that this

"doesn't seem like a heat of passion case," it told the trial court that it did

not "want to try it twice. No objections." (R. 1741.)

During the guilt-phase instructions, the trial court instructed the

jury on capital murder as follows:

"Ladies and gentlemen, the defendant is currently

charged with one Count of capital murder as well as the lesser

included offenses of felony murder and manslaughter. This is

admittedly a lot to organize within one's thoughts. To help you

do that, there are different ways to approach it, but I'm going

to organize it by the—initially by the charge in the indictment

and then I'll move down through the lesser included charges.

I'll remind you, although I've organized my charge similar to

this—or in this fashion, that the fact that there's an

indictment against the defendant is not to be considered as

evidence of his guilt. This is simply the way that I've

organized the charge in an attempt to explain them clearly to

you.

"Count 1 of the indictment charges the defendant with

intentional murder of an on-duty police officer. The defendant

is charged with capital murder. The law states that an

intentional murder of any police officer or any other state or

federal peace officer of any kind, while the officer's on duty,

regardless of whether the defendant knew or should have

known the victim was an officer on duty, or because of some

official or job related act or performance of the officer.

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"A person commits an intentional murder if he causes

the death of another person, and in performing the act or acts

that caused the death of that person, he intends to kill that

person.

"To convict the State must prove beyond a reasonable

doubt each of the following elements of an intentional murder

of an on-duty police officer. And there's four elements, and so

I'll go slow for each one of those.

"Element one, that Billy Clardy III is dead.

"Second, that the defendant caused the death of Billy

Clardy by shooting him.

"Third, that in committing the acts that cause the death

of Billy Clardy, the defendant intended to kill the deceased or

another person.

"And, fourth, that at the time of his shooting, Billy

Clardy was a police officer and was on duty."

(R. 1808-10.) The trial court then instructed the jury: "If you find that the

State has failed to prove beyond a reasonable doubt any one or more of

the elements of the offense of intentional murder of an on-duty police

officer, then you cannot find the defendant guilty of capital murder." (R.

1812.) The trial court then began instructing the jury on the lesserincluded offenses of felony murder and heat-of-passion manslaughter. As

to heat-of-passion manslaughter, the trial court explained:

"Again, you only consider the lesser included offense of

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manslaughter if you find the defendant not guilty of capital

murder and not guilty of felony murder.

"A person commits the crime of manslaughter if he

causes the death of another person under circumstances that

would constitute murder except that he causes the death due

to a sudden heat of passion caused by provocation recognized

by law and before a reasonable time for the passion to cool and

for reason to reassert itself.

"To convict the State must provide beyond a reasonable

doubt each of the following elements.

"Number one, a person, Billy Clardy, is dead.

"Number two, the defendant caused the death of Billy

Clardy by shooting him.

"Three. The defendant did so intentionally.

"And, lastly, the defendant caused the death due to a

sudden heat of passion caused by provocation recognized by

law and before a reasonable time for the passion to cool and

for reason to reassert itself.

"A person acts intentionally when it is his purpose to

cause the death of another person. A person acts intentionally

when it is his purpose to cause the death of a specific person

regardless of whether the deceased person is actually the

person whose death the defendant allegedly wished to cause.

"The burden of injecting the issue of killing under legal

provocation is on the defendant, but this does not shift the

burden of proof. Once the defendant has injected the issue, the

State must prove beyond a reasonable doubt that the

defendant was not lawfully provoked to do the act which

caused death by a sudden heat of passion. Legal provocation

does not apply to a prosecution for or preclude a conviction of

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manslaughter or other crime.

"The provocation can in no case be less than an assault,

either actually committed or menaced. The assault must be of

such a nature as to reasonably convince the mind that the

defendant had cause for believing and did believe that he

would be presently assaulted and that he struck not in

consequence of a previously formed design, general or specific,

but in consequence of the passion suddenly aroused by the

blow given or apparently about to be given."

(R. 1814-16.)

Brown argues that the trial court erred when it failed to include in

its capital-murder instructions the negative element that the State had

to prove beyond a reasonable doubt " '[t]hat the defendant was not

lawfully provoked to do the act which caused the death of the deceased

by a sudden heat of passion,' " Ex parte McGriff, 908 So. 2d 1024, 1033

(Ala. 2004) (quoting Alabama Pattern Jury Instructions—Criminal, pp.

6-8 (3d ed. 1994)) (emphasis omitted), and when it "told the jury that it

could only consider provocation after first deciding to acquit Mr. Brown

of capital murder." (Brown's brief, p. 27.) Because Brown did not object

to the trial court's instructions (R. 1826-27), we review Brown's argument

only for plain error. See Rule 45A, Ala. R. App. P.

In Riggs v. State, this Court explained the interplay between a jury

instruction on capital murder and a defendant's injecting the issue of

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heat of passion in a capital-murder case:

" ' " '[T]he Due Process Clause requires the prosecution to

prove beyond a reasonable doubt all of the elements included

in the definition of the offense of which the defendant is

charged.' " ' Ex parte McGriff, 908 So. 2d [1024,] 1035 [(Ala.

2004)] (quoting McMillan v. Pennsylvania, 477 U.S. 79, 85,

106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986), quoting in turn

Patterson v. New York, 432 U.S. 197, 210, 97 S. Ct. 2319, 53

L. Ed. 2d 281 (1977) (emphasis omitted)). Consequently, ' "it

is the mandatory duty of a trial judge to instruct the jury

orally on the different and distinguishing elements of the

offense charged and that in the absence of such instructions

from the court, the jury could not intelligently comply with

their duty as jurors. Miller v. State, Ala. Cr. App., 405 So. 2d

41, 48 (1981)." ' Ex parte McGriff, 908 So. 2d at 1035 (quoting

Ainsworth v. State, 465 So. 2d 467, 471 (Ala. Crim. App.

1984)). Further, ' "[i]t is a basic tenet of Alabama law that 'a

party is entitled to have his theory of the case, made by the

pleadings and issues, presented to the jury by proper

instruction, ... and the [trial] court's failure to give those

instructions is reversible error.' " ' Winner Int'l Corp. v.

Common Sense, Inc., 863 So. 2d 1088, 1091 (Ala. 2003)

(quoting Volkswagen of America, Inc. v. Marinelli, 628 So. 2d

378, 384-85 (Ala. 1993), quoting in turn Alabama Farm

Bureau Mut. Ins. Serv., Inc. v. Jericho Plantation, Inc., 481

So. 2d 343, 344 (Ala.1985)).

"Under the law in this State:

" 'A person does not commit murder ... [and

by extension capital murder] if he was moved to

act by a sudden heat of passion caused by a

provocation recognized by law, and before there

had been a reasonable time for the passion to cool

and for reason to reassert itself. The burden of

injecting the issue of killing under legal

provocation is on the defendant, but this does not

22

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shift the burden of proof. This subsection does not

apply to a prosecution for, or preclude a conviction

of, manslaughter or other crime.'

"Section 13A-6-2(b), Ala. Code 1975. In Ex parte McGriff, 908

So. 2d at 1033-34, the Alabama Supreme Court explained that

once a defendant on trial for capital murder has 'injected the

issue of provoked heat of passion,' the circuit court must

instruct the jury that ' "[t]o convict, the state must prove

beyond a reasonable doubt [that] the defendant was not

lawfully provoked to do the act which caused the death of the

deceased by a sudden heat of passion." ' (quoting Alabama

Pattern Jury Instructions—Criminal, pp. 6-8, emphasis

omitted).

"Further, it is well settled that ' "[a] killing in sudden

passion excited by sufficient provocation, without malice, is

manslaughter." ' Roberson v. State, 217 Ala. 696, 699, 117 So.

412, 415 (1928) (quoting Vaughan v. State, 201 Ala. 472, 474,

78 So. 378, 380 (1918)). Specifically, § 13A-6-3(a)(2), Ala. Code

1975, provides that a person commits the crime of

manslaughter if

" '[h]e causes the death of another person under

circumstances that would constitute [intentional

murder]; except, that he causes the death due to a

sudden heat of passion caused by provocation

recognized by law, and before a reasonable time for

the passion to cool and for reason to assert itself.'

"Although courts have reached different conclusions as to

what constitutes adequate legal provocation, in Rogers v.

State, 819 So. 2d 643, 662 (Ala. Crim. App. 2001), this Court

recognized the following three situations in which murder

may be reduced to manslaughter on the basis that there

existed legal provocation: '(1) when the accused witnesses his

or her spouse in the act of adultery; (2) when the accused is

assaulted or faced with an imminent assault on himself; and

23

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(3) when the accused witnesses an assault on a family

member or close relative.' See also Cox v. State, 500 So. 2d

1296, 1298 (Ala. Crim. App. 1986) (holding that 'the mere

appearance of imminent assault may be sufficient to arouse

heat of passion'). Thus, once a defendant has injected into the

trial the issue of provocation related to one or more of those

three situations, the defendant is entitled to have the circuit

court instruct the jury that the State bears the burden of

disproving that the defendant acted out of the heat of passion

brought about by adequate provocation. McGriff, 908 So. 2d

at 1033-34."

Riggs v. State, 138 So. 3d 1014, 1023-24 (Ala. Crim. App. 2013).

In Riggs, this Court found plain error when the trial court failed to

give the "negative element" instruction in its jury instructions on capital

murder. 138 So. 3d at 1024-25. And, to be sure, the trial court's jury

instructions on capital murder in this case, just like the instructions in

Riggs, did not include the negative element that the State must disprove

beyond a reasonable doubt " '[t]hat the defendant was not lawfully

provoked to do the act which caused the death of the deceased by a

sudden heat of passion.' " Ex parte McGriff, 908 So. 2d at 1033 (quoting

Alabama Pattern Jury Instructions—Criminal, pp. 6-8 (3d ed. 1994))

(emphasis omitted). But the trial court's failure to include the "negative

element" instruction in this case does not amount to plain error because,

unlike the defendant in Riggs, Brown had no right to a jury instruction

24

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on heat-of-passion manslaughter.

As discussed above, a defendant bears the burden of injecting the

issue of having killed someone in response to an adequate legal

provocation that would reduce an intentional murder to manslaughter.

See Varnado v. State, 352 So. 3d 777, 781 (Ala. Crim. App. 2021) (citing

Ex parte McGriff, 908 So. 2d at 1033-34). Alabama recognizes only three

types of legal provocation: "(1) when the accused witnesses his or her

spouse in the act of adultery; (2) when the accused is assaulted or faced

with an imminent assault on himself; and (3) when the accused witnesses

an assault on a family member or close relative." Rogers v. State, 819 So.

2d 643, 662 (Ala. Crim. App. 2001).

Here, Brown argued that he was entitled to a jury instruction on

heat-of-passion manslaughter based on the second type of adequate legal

provocation—i.e., "that he had the mere appearance of an imminent

assault, and that was enough to arouse the heat of passion"—based solely

on his trial testimony. (R. 1741.)

At trial, Brown testified on his own behalf, elaborating on and in

many respects changing the story he had told Investigator Hines. In his

testimony, Brown admitted that he had agreed to meet Alexander and

25

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Agent Morris—who he identified as "Moe"—on December 6, 2019, at a

house in Huntsville. Brown said that when he "got on the street, it was

more deserted; like all the houses was abandoned." (R. 1677.) Brown said

that he walked up to the house with the marijuana and with his gun

holstered on his right side. (R. 1682.) When he knocked on the door,

Brown said, someone yelled for him to "come in." (R. 1683.) Brown

claimed that, at that point, he switched the luggage containing the

marijuana to his left hand, opened the door, and walked into the house

with the "[t]he luggage … in [his] hand."8 (R. 1684, 1718.) Brown testified

that the house was "silhouette dark" with "trash everywhere" and his

"senses [became] very heightened." (R. 1684.) Brown then claimed that,

as he was "looking through the home," "there was a silhouette in the

crease of the door" and "he comes around the back of the door with a

weapon that's in his hand." (R. 1685.) Brown made it clear that it was the

person in front—i.e., Agent Billy Clardy—who "led with a weapon." (R.

1712.) Although he claimed to see a weapon, Brown said that he could

neither see the person's face nor see Agent Clardy's vest with the word

8Videos show that the bags containing marijuana were placed

outside and to the left of the front door of the house. See State's Ex. 970,

16:40; State's Ex. 972, 16:37.

26

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"POLICE" on it. (R. 1686.) And Brown said that "no one ever gave [him]

any indication" that they were police officers. (R. 1687.) He said that

there were "no markings on any automobiles outside that said that

someone was in the house like that that would have been law

enforcement," and, he said, no one said the word "police" either "before

the shooting, while the shooting, or after the shooting." (R. 1687.)

Brown explained:

"It startled me. It really startled me. Because not only

did I see the firearm, he was moving, I mean, really fast and

aggressive, as we seen on the video.

"So once I seen it, it's like, Oh, shit. You know what I

mean? So I automatically back up. And I'm trying to back up

and catch my composure. But then he breaks the—breaks the

other plane of the threshold and still a silhouette. And at that

particular time, that's when I reacted."

(R. 1686-87.) Brown said that he thought "they was about to kill [him]

and rob [him] for the cannabis." (R. 1688.)

Brown argues that this trial testimony was enough to inject the

issue of adequate legal provocation into his case and thus warrant a jury

instruction on heat-of-passion manslaughter. We disagree.

To start, even if we credit Brown's self-serving trial testimony,

Brown did not articulate any adequate legal provocation that would

27

CR-2024-0040

justify his shooting Agent Clardy. To be sure, this Court has recognized

that "the mere appearance of imminent assault may be sufficient to

arouse heat of passion." Cox v. State, 500 So. 2d 1296, 1298 (Ala. Crim.

App. 1986). Although Brown testified that he thought an armed

"silhouette" was approaching him, Brown did not face an imminent

assault by any ordinary citizen. See, e.g., Riggs, supra (holding that Riggs

was entitled to provocation-manslaughter instruction where Riggs

believed that his girlfriend was about to stab him with a knife that was

actually a fork before he reached for the gun and began shooting); and

Varnado v. State, 352 So. 3d 777, 781-82 (Ala. Crim. App. 2021)

("Varnado testified that Legarian's 'homeboy Shaq' started the fight by

punching him in the face. Varnado also testified that he fired the

gunshots because he feared for his brother's life, who was lying

unconscious on the ground, getting 'stomped' and 'kicked.' (R. 476.) For

those reasons, Varnado said he grabbed a gun and fired gunshots 'to get

them off my brother.' "). Rather, it is undisputed that what Brown alleges

was adequate legal provocation was a law-enforcement officer's

attempting to exercise his lawful duty to arrest Brown for trafficking 100

pounds of marijuana.

28

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The general rule and the view held by nearly every American

jurisdiction that has addressed the question is that "[a] lawful arrest or

detention in a lawful manner by an officer … will not constitute an

adequate provocation for heat of passion reducing the grade of the

homicide to manslaughter, and the same is true of other lawful acts of

officers while in the discharge of their duties." 40 C.J.S. Homicide § 120

(2025) (footnotes omitted). See, e.g., State v. Madden, 61 N.J. 377, 398,

294 A.2d 609, 620 (1972) (upholding the trial court's refusal to instruct

the jury on heat-of-passion manslaughter because "neither a lawful

arrest nor the use of necessary force to accomplish the arrest can

constitute provocation justifying a finding of manslaughter"); State v.

Martinez, 97 N.M. 540, 541, 641 P.2d 1087, 1088 (Ct. App. 1982) (holding

that "because Gomez was a police officer, his actions 'exercising his duties

in a lawful manner cannot rise to the level of sufficient provocation' "

(quoting State v. Manus, 93 N.M. 95, 597 P.2d 280 (1979))); State v.

Linder, 276 S.C. 304, 307-08, 278 S.E.2d 335, 337 (1981) (setting out the

general rule, but concluding that a manslaughter instruction is

warranted if the jury could conclude that the officer used unnecessary

force under the circumstances); Gutierrez v. State, 681 S.W.2d 698, 705

29

CR-2024-0040

(Tex. App. 1984) ("Officer McGuire attempted to make a routine DWI

arrest, after which the suspect made several attempts to flee. It is

ludicrous to suggest that any type of physical force by a lone police officer

at this point constituted adequate cause to retaliate with a violent,

unrestrained attack and murder. Appellants were not entitled to an

instruction on voluntary manslaughter …."). This is because the second

type of adequate provocation to reduce murder to manslaughter requires

that the deceased either engaged in unlawful behavior or was imminently

about to act unlawfully, and "[t]he exercise of a legal right, no matter how

offensive to another, is never in law deemed a provocation sufficient to

justify or mitigate an act of violence." State v. Ivey, 325 S.C. 137, 142,

481 S.E.2d 125, 127 (1997) (citing State v. Norris, 253 S.C. 31, 168 S.E.2d

564 (1969)). Because, here, it is undisputed that Brown shot and killed

Agent Clardy when Agent Clardy was carrying out his lawful duties as a

police officer, there was no wrong or unlawful behavior that could be

attributed to Agent Clardy to justify Brown's shooting him. In short, even

crediting Brown's trial testimony, Brown cannot establish that there was

30

CR-2024-0040

an adequate legal provocation here to reduce murder to manslaughter.9

Even so, Brown also was not entitled to an instruction on heat-ofpassion manslaughter because the objective evidence presented at his

trial refuted Brown's self-serving trial testimony. Although this Court

had held that "[a]n accused has the right to have the jury charged on

' "any material hypothesis which the evidence in his favor tends to

establish," ' " Clark v. State, 896 So. 2d 584, 641 (Ala. Crim. App. 2000)

(quoting Ex parte Stork, 475 So. 2d 623, 624 (Ala. 1985)), this Court and

9This view is buttressed by the fact that the legislature has elevated

the killing of an on-duty law-enforcement officer to capital murder. To

find Brown guilty of capital murder, the jury had to conclude that Agent

Clardy was on-duty when he was killed. This statutory protection of onduty law-enforcement officers would be nullified if every assaultive

confrontation between an officer and a defendant could reduce the

defendant's killing the officer during that confrontation from capital

murder to manslaughter. See State v. Madden, 61 N.J. 377, 398, 294 A.2d

609, 620 (1972) ("As already noted, the trial court charged the State had

to prove the officer was killed in the execution of his duty as an element

of murder. In this connection the jury was told the deceased was not in

the execution of his duty if he did not have probable cause to arrest

Williams or if he employed excessive force to accomplish an arrest. But

the charge barred a verdict of voluntary manslaughter if the jury found

the officer was in the execution of his duty when he was killed. Otherwise

stated, the trial court ruled that neither a lawful arrest nor the use of

necessary force to accomplish the arrest can constitute provocation

justifying a finding of manslaughter. This was undoubtedly correct; the

protection intended an officer who is thus in the execution of his duty

would be nullified if the lawful execution of his duty were held to be an

affront competent to reduce the crime to manslaughter.").

31

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the Alabama Supreme Court have also held that "an accused's selfserving statement may not be sufficient, by itself, to warrant an

instruction on a lesser-included offense." Clark, 896 So. 2d at 641 (citing

Ex parte McWhorter, 781 So. 2d 330 (Ala. 2000)). "This is especially true

in a case in which the objective evidence is contradictory to the

defendant's self-serving statements." Johnson v. State, [Ms. CR-2023-0911, Dec. 19, 2025] ___ So. 3d ___, ___ (Ala. Crim. App. 2025). See also

Clark, 896 So. 2d at 642 ("Clark's self-serving statement to the police …

was directly refuted by undisputed physical evidence from the crime

scene.").

Here, as the State correctly argues in its brief on appeal, "the

evidence disproved [Brown's] version of events." (State's brief, p. 28

(emphasis in original).) As explained above, Brown's argument for the

lesser-included offense of heat-of-passion manslaughter was based on

two aspects of his trial testimony: (1) that, when he entered the house,

"he [was] being approached by a silhouette" and (2) his "perceiv[ing] a

gun coming at him." (R. 1741.)

As discussed above, Brown testified that, when he entered the

house, it was "silhouette dark" and that, as he was "looking through the

32

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home," "there was a silhouette in the crease of the door" and "he comes

around the back of the door with a weapon that's in his hand." (R. 1685.)

Brown made it clear that it was the person in front—i.e., Agent Billy

Clardy—who "led with a weapon." (R. 1712.) Yet the State presented

objective evidence that refuted Brown's version of what happened when

he shot Agent Clardy.

Indeed, Agent Dean's body-camera footage, which this Court has

viewed, shows that, at the time Brown entered the house, it was light

outside and that the house was well lit. In fact, in watching Agent Dean's

body-camera footage, one can see that the house was lit well enough to

see Agent Clardy, what he was wearing (his tactical vest with the word

"POLICE" emblazoned across the chest and back), and that Agent

Clardy's weapon was holstered throughout the entire interaction.10

10During cross-examination of Brown, this exchange occurred:

"Q. Did you know that Agent Clardy wasn't holding a

gun?

"A. It looked like a weapon to me.

"Q. Do you want to watch the video again? You can see

both of his hands.

"A. Well, we can watch it.

33

CR-2024-0040

Simply put, as the State correctly notes, "Brown's story was incredible,

especially when considered in conjunction with the videos and physical

evidence."11 (State's brief, p. 29.)

Because Brown was not entitled to a jury instruction on heat-ofpassion manslaughter, the trial court did not commit any error, plain or

otherwise, when it failed to include in its capital-murder instructions the

negative element that the State had to disprove beyond a reasonable

doubt that Brown was lawfully provoked to do the act that caused the

"Q. Did you know, in fact, Investigator Hines had to

recover his gun from his holster on his back at the hospital

where it was the entire time?

"….

"A. No. I didn't know that Mr. Hines had said he

recovered a weapon from behind him or in his holster. From

what I seen, he had it in his hand. Or someone in there had it

in his hand, whoever was with him."

(R. 1717-18.)

11The objective and physical evidence presented at Brown's trial

refuted other details in Brown's version of events. But because Brown's

request for a jury instruction on heat-of-passion manslaughter turned on

only two assertions by Brown—that it was "silhouette dark" and that

Agent Clardy was armed—it is unnecessary to recount each time the

objective and physical evidence refuted Brown's version of events.

34

CR-2024-0040

death of Agent Clardy by a sudden heat of passion.

II. The trial court's refusal to instruct the jury on self-defense gives

Brown no right to relief.

Brown argues that the trial court erred when it refused to instruct

the jury on self-defense. (Brown's brief, p. 38.) Brown is due no relief on

this claim.

To start, Brown invited any error in the trial court's failing to

instruct the jury on self-defense. " ' " 'Under the doctrine of invited error,

a defendant cannot by his own voluntary conduct invite error and then

seek to profit thereby.' " ' " Johnson v. State, [Ms. CR-2023-0911, Dec. 19,

2025] ___ So. 3d ___, ___ (Ala. Crim. App. 2025) (quoting Sharifi v. State,

993 So. 2d 907, 936 (Ala. Crim. App. 2008), quoting in turn Robitaille v.

State, 971 So. 2d 43, 59 (Ala. Crim. App. 2005), quoting in turn Phillips

v. State, 527 So. 2d 154, 156 (Ala. 1988)). Here, during the jury-charge

conference, the parties discussed whether the trial court should instruct

the jury on self-defense. (R. 1752-53.) During that discussion, Brown's

counsel told the trial court that, "in all candor, I don't want to—I muddy

up my cocounsel here. But as I understand it, if you're doing an

underlying illegal act, you don't get self-defense." (R. 1753.) Brown's

counsel continued: "I shot ourselves in the foot. Right? But it's the law."

35

CR-2024-0040

(R. 1753.) The trial court told Brown's counsel that the court agreed with

him and that, regardless, it "wouldn't give it anyway." (R. 1753.)

On appeal, Brown makes much of the fact that his counsel and the

trial court misinterpreted the law on self-defense. (Brown's brief, pp. 42-47.) But still, Brown's counsel agreed with the court's assertion that

Brown had no right to an instruction on self-defense. Thus, any error was

invited by Brown. And invited error " 'operates to waive any error unless

the error rises to the level of plain error.' " Robitaille, 971 So. 2d at 59

(quoting Snyder v. State, 893 So. 2d 488, 518 (Ala. Crim. App. 2003)).

There is no plain error here.

This Court has explained:

"It has long been the law in Alabama that '[a] trial court

has broad discretion when formulating its jury instructions.'

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

(citing Williams v. State, 611 So. 2d 1119, 1123 (Ala. Crim.

App. 1992)). That discretion, however, is not unlimited.

" ' " 'The general rule is that "every accused is

entitled to have charges given, which would not be

misleading, which correctly state the law of his

case, and which are supported by any evidence,

however weak, insufficient, or doubtful in

credibility." Chavers v. State, 361 So. 2d 1106,

1107 (Ala. 1978). If there is "any evidence, however

slight, tending to support" that the defendant

acted in self-defense, the issue should be

submitted to the jury. King v. State, 71 Ala. 1, 4

36

CR-2024-0040

(1881). In most cases, the issue of self-defense is

one of ultimate fact solely for determination by the

jury, Domingus v. State, 94 Ala. 9, 11 So. 190

(1892), however "unsatisfactory and inconclusive

to the judicial mind" the evidence of self-defense

may appear. Burns v. State, 229 Ala. 68, 70, 155

So. 561, 562 (1934).

" ' " 'However, the court should not instruct on

the law of self-defense where there is no evidence

to sustain the plea. Raines v. State, 455 So. 2d 967,

974 (Ala. Cr. App. 1984); Tarver v. State, 137 Ala.

29, 34 So. 627 (1903); C. Gamble, McElroy's

Alabama Evidence, 457.02(5) (3d ed. 1977). "[I]n

the absence of all evidence having a tendency to

show that at the time of the killing the accused was

in imminent peril of life, or grievous bodily harm,

or of the existence of circumstances creating in his

mind a reasonable belief of such peril, ... these

instructions [are] abstract." King, 71 Ala. at 4-5. A

trial judge may properly refuse to charge the jury

on self-defense where he determines that "the

defendant could not set up self-defense under the

facts." Consford v. State, 15 Ala. App. 627, 634, 74

So. 740, 743, cert. denied, 200 Ala. 23, 75 So. 335

(1917).' " '

"Diggs v. State, 168 So. 3d 156, 160-61 (Ala. Crim. App. 2014)

(quoting King v. State, 478 So. 2d 318, 319 (Ala. Crim. App.

1985) (emphasis added in King))."

Thornton v. State, 375 So. 3d 1282, 1283-84 (Ala. Crim. App. 2022).

In Alabama,

"[a] person is justified in using physical force upon another

person in order to defend himself … from what he …

reasonably believes to be the use or imminent use of unlawful

37

CR-2024-0040

physical force by that other person, and he … may use a

degree of force which he … reasonably believes to be necessary

for the purpose. A person may use deadly physical force … if

the person reasonably believes that another person is:

"(1) Using or about to use unlawful deadly physical

force."

§ 13A-3-23(a)(1), Ala. Code 1975. And because Brown was admittedly

engaged in unlawful activity at the time he shot Agent Clardy, he also

had to establish that he satisfied the common-law duty to retreat. See

Malone v. State, 221 So. 3d 1153, 1156 (Ala. Crim. App. 2016) (holding

that "an accused who claims to have been justified in using deadly force

under § 13A-3-23 must have complied with the common-law rules

regarding the duty to retreat unless he or she meets the requirements of

§ 13A-3-23(b)").

Here, the trial court could have properly refused a jury instruction

on self-defense for two reasons. First, the evidence that Brown claims

supports his self-defense theory is the same evidence that he based his

request for a jury instruction on heat-of-passion manslaughter. As

explained above, Brown's evidence is based on his self-serving testimony

at trial that contradicts the objective evidence presented at trial. Second,

Brown presented no evidence showing that he satisfied his duty to retreat

38

CR-2024-0040

either by retreating or showing that there was not " 'a reasonably safe

mode' " of retreat. See Ex parte Johnson, 393 So. 3d 479, 486 (Ala. 2023)

(quoting Oldacre v. State, 196 Ala. 690, 693, 72 So. 303, 304 (1916)). The

trial court did not commit any error, plain or otherwise, when it did not

instruct the jury on self-defense.

III. The body-camera footage was not victim-impact evidence, and the

trial court properly admitted it.

Brown argues that the trial court erred during the guilt phase of

his trial when it allowed the State to present "nearly eighteen minutes of

inflammatory video footage—consisting of body-camera footage from

several law-enforcement witnesses—which had no relevance to any of the

charges against [him]." (Brown's brief, p. 49.) According to Brown, the

body-camera evidence "served only to inflame the jury and garner

sympathy for Officer Clardy and his colleagues by showing the immediate

impact of Officer Clardy's shooting on law enforcement officers and other

first responders." (Brown's brief, pp. 49-50.) Brown theorizes that the

video footage was "clear victim-impact evidence." (Brown's brief, p. 48.)

Because Brown raises this argument for the first time on appeal, we

review it only for plain error. See Rule 45A, Ala. R. App. P.

" 'It is well settled that victim-impact

39

CR-2024-0040

statements " 'are admissible during the guilt phase

of a criminal trial only if the statements are

relevant to a material issue of the guilt phase.

Testimony that has no probative value on any

material question of fact or inquiry is

inadmissible.' " Ex parte Crymes, 630 So. 2d 125,

126 (Ala. 1993) (emphasis in original).'

"McCray v. State, 88 So. 3d 1, 37 (Ala. Crim. App. 2010)."

"….

" '[T]o be victim-impact evidence, the evidence

must " ' "typically 'describe the effect of the crime

on the victim and his family.' " ' " Russell v. State,

272 So. 3d 1134, 1162 (Ala. Crim. App. 2017)

(quoting Townes v. State, 253 So. 3d 447, 474 (Ala.

Crim. App. 2015) (opinion on return to remand),

quoting in turn Turner v. State, 924 So. 2d 737,

770 (Ala. Crim. App. 2002), quoting in turn Payne

v. Tennessee, 501 U.S. 808, 821, 111 S. Ct. 2597,

115 L. Ed. 2d 720 (1991)) (emphasis added). If it

does not describe the effect of the crime on the

victim or the victim's family, then it is not victimimpact evidence.'

"Brooks v. State, 340 So. 3d 410, 463 (Ala. Crim. App. 2020)."

Perez v. State, [Ms. CR-2024-0206, May 1, 2026] ___ So. 3d ___, ___ (Ala.

Crim. App. 2026).

As the State correctly argues in its brief on appeal, none of the bodycamera footage admitted into evidence during Brown's trial is victimimpact evidence. Neither the video footage nor the statements the officers

40

CR-2024-0040

made in the videos "describe the effect that Agent Clardy's death had on

them."12 (State's brief, p. 40 (emphasis omitted).) Although the videos

certainly capture the emotions that the law-enforcement officers

experienced before, during, and immediately after Brown shot Agent

Clardy, none of those emotions describe the effect that Clardy's death had

on them. In fact, during the "eighteen minutes" of footage, none of the

law-enforcement officers knew that Agent Clardy had died. Rather than

describing the effect that Agent Clardy's death had on the officers, the

videos show the shooting and the real-time responses and efforts of lawenforcement officers to that shooting.

The trial court did not commit any error, plain or otherwise, when

it admitted the body-camera footage from Agent Dean, Agent Snipes,

Agent Daly, and Sergeant Pennington.

IV. Under Duren,13 the jury venire represented a fair cross-section of

the community.

Next, Brown contends that "the jury venire did not represent a fair

cross-section of the community in violation of state and federal law."

12This

Court has reviewed the body-camera footage admitted

during Brown's trial.

13Duren v. Missouri, 439 U.S. 357 (1979).

41

CR-2024-0040

(Brown's brief, p. 55.) Brown's argument lacks merit.

On September 18, 2023, both Brown and the State received a jurystrike list consisting of 600 potential jurors. (C. 47.) Then, on October 2,

2023, Brown filed a "Motion Challenging the Composition of the Venire

Due to Systematic Underrepresentation of Cognizable Groups." (C. 57-60.) In his motion, Brown argued that the jury-strike list he received "and

from which [his] petit jury will be chosen is unconstitutionally composed

because it systematically underrepresents African Americans, Asians,

Hispanics, and other constitutionally cognizable groups that make up

Madison County." (C. 57.) Brown noted that the "most recent Census of

Madison County shows that the percentage of Black or African

Americans alone is 25.2%, the percent of Asians alone is 2.7%, and the

percentage of Hispanic or Latino is 5.6%."14 (C. 57.)

Brown also argued that "[t]he percentage of the jury pool made up

14Brown attached to his motion as "Exhibit A" statistics from the

United States Census Bureau that show that the total "Black or African

American" population of Madison County is 25.2%. (C. 61.) Although

Brown's argument also included references to the underrepresentation of

Asians and Hispanics or Latinos on the venire, Brown does not argue on

appeal that those groups were underrepresented on the jury venire.

Thus, he has abandoned that argument, and this Court will not consider

it.

42

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of these groups after juries were being selected after the pandemic has

overwhelmingly been white, including juries that are entirely white." (C.

57-58.) To support his claim that, in the wake of the COVID-19 pandemic,

juries have become "overwhelmingly" white, Brown attached, as an

exhibit, an affidavit from John A. Brinkley, Jr., "a licensed attorney in

the State of Alabama since September 30, 2005," who claimed that,

"[s]ince the pandemic, the racial composition of jury members is

significantly out of proportion from the composition of Madison County

as a whole." (C. 62.)

Eight days later, the trial court held a hearing on Brown's motion.

(R. 119.) At the hearing, Kimberly McKoy, the Court Administrator for

the Madison County Courts, testified. (R. 121.) McKoy explained that, as

part of her duties as Court Administrator, she is required to supervise

the process of jurors coming to serve on juries in Madison County. McKoy

said that she initiates the jury-summons process by requesting "a certain

number of jurors for a certain term" from the Administrative Office of

Courts ("AOC") in Montgomery and that AOC randomly selects those

potential jurors "from the voter's registration list." (R. 122.) McKoy

further explained that, to her knowledge, there is nothing that

43

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systematically excludes people from jury service based on race. (R. 128.)

McKoy admitted that not everyone who is summoned for jury

service reports for jury service. (R. 124.) According to McKoy, "about 35

percent" of the potential jurors who are summoned for jury service report.

(R. 124.) But, McKoy said, the response rate for jury service after the

COVID-19 pandemic is higher than it was before the pandemic, and she

has noticed no changes in certain demographic groups responding to a

juror summons after the pandemic. (R. 125.) McKoy conceded that

"African Americans respond to juror summons at a lower rate than other

groups." (R. 126.)

Speaking about the potential jurors summoned for Brown's trial

term, McKoy did not disagree with Brown's counsel that 131 of the 600

potential jurors who were summoned are black. (R. 123.) In other words,

blacks composed 21.83% of the potential jurors summoned for Brown's

trial term. McKoy explained that, based on a response rate of about 35%,

they "anticipate somewhere north of 200 people to respond," and that, out

of the number of potential jurors who respond, 135 potential jurors would

be used in Brown's case. (R. 124.) McKoy said that those 135 potential

jurors would be randomly selected by "the SJIS Juror Program through"

44

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AOC. (R. 125.) And, McKoy said, there was no "way you could use this

AOC software to pull a racially proportionate juror grouping out of those

people that respond to [a] juror summons." (R. 126.) McKoy made it clear

that there is no "process either by human or computer, that

systematically excludes people from a certain race" for jury service. (R.

128.) In fact, McKoy explained, "[s]ex and race do[] not go into play in

selecting jurors." (R. 127.)

At the close of the hearing, Brown's counsel argued that Brown had

met his

"prima facie burden in this case … through the affidavit that

we presented and the testimony we've elicited that we have a

distinctive group in the community. That representation of

that group is not fair or reasonable percentage-wise. And that

underrepresentation is due to systematic mechanical

procedures that we're relying upon that are incapable of

producing a jury that looks like this county. And, under the

Sixth Amendment, Judge, that's not something that can be

rebutted by a lack of discriminatory intent.

"So it's our position that we have met our burden

traveling under both Alabama law and the Sixth Amendment.

We also believe that we've met our burden under the

Fourteenth Amendment. That we have met our prima facie

showing of a group that's a cognizable—excuse me, class. We

have significant underrepresentation, it's over a period of

time, and that the selection procedure is subject to abuse or is

not class neutral.

"We believe we've met our burden, Judge. We have a

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venire list that is less than the county in question. And we

have a substantial possibility that the jurors summoned will

be even less representative. We would ask that you leave this

motion open to see who we get for our 135."

(R. 131-32.) In response, the State argued that Brown had not satisfied

his three-part burden under Duren v. Missouri, 439 U.S. 357 (1979). (R.

132-34.) The trial court denied Brown's motion. (R. 135.)

Section 12-16-55, Ala. Code 1975, establishes the State's policy

"that all persons selected for jury service be selected at random from a

fair cross section of the population of the area served by the court, and

that all qualified citizens have the opportunity … to be considered for

jury service in this state." And § 12-16-56, Ala. Code 1975, provides that

"[a] citizen shall not be excluded from jury service in this state on account

of race, color, religion, sex, national origin or economic status."

" 'The Sixth Amendment requires that petit

juries "be drawn from a source fairly

representative of the community." Taylor v.

Louisiana, 419 U.S. 522, 538, 95 S. Ct. 692, 702, 42

L. Ed. 2d 690 (1975). When raising a claim under

this requirement, a defendant "has the burden of

establishing a prima facie case of a 'fair cross

section' violation. Rayburn v. State, 495 So. 2d 733

(Ala. Crim. App. 1986)." Pierce v. State, 576 So. 2d

236, 241 (Ala. Cr. App. 1990), cert. denied, 576 So.

2d 258 (Ala. 1991). In Duren v. Missouri, 439 U.S.

357, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979), the

United States Supreme Court held that a

46

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defendant seeking to establish a prima facie case

of a violation of the fair cross-section requirement

must demonstrate the following three elements:

" ' "(1) that the group alleged to be

excluded is a 'distinctive' group in the

community; (2) that the representation

of this group in venires from which

juries are selected is not fair and

reasonable in relation to the number of

such persons in the community; and (3)

that this underrepresentation is due to

systematic exclusion of the group in the

jury-selection process."

" '439 U.S. at 364, 99 S. Ct. at 668.'

"Sistrunk v. State, 630 So. 2d 147, 149 (Ala. Crim. App. 1993).

See also Young v. State, 375 So. 3d 813, 831 (Ala. Crim. App.

2021)."

Perez, ___ So. 3d at ___. See also Berghuis v. Smith, 559 U.S. 314, 327

(2010) ("To establish a prima facie violation of the fair-cross-section

requirement, this Court's pathmarking decision in Duren instructs, a

defendant must prove that: (1) a group qualifying as 'distinctive' (2) is not

fairly and reasonably represented in jury venires, and (3) 'systematic

exclusion' in the jury-selection process accounts for the

underrepresentation.").

Here, Brown satisfied the first Duren element—that the group

alleged to have been excluded is a distinctive group in the community.

47

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But Brown did not show that the underrepresentation of this distinctive

group was due to systematic exclusion in the jury-selection process—the

third Duren element. Indeed, as McKoy testified, the 600 potential jurors

who were summoned for Brown's jury-trial term were chosen at random

by AOC from a voter-registration list. This Court has consistently held

that "this method of selection does not violate the fair-cross-section

requirement of Duren." Knight v. State, 300 So. 3d 76, 125 (Ala. Crim.

App. 2018) (citing Wesley v. State, 424 So. 2d 648, 649 (Ala. Crim. App.

1982)).

To the extent that Brown argued in the trial court (and maintains

on appeal) that, under Duren, the State not only has an obligation not to

exclude anyone from jury service on the basis of race but also must

develop a venire-selection process that singles people out for jury service

based on race to ensure a particular racial makeup of the venire, that

argument lacks merit. This Court has held that Duren's "fair crosssection requirement 'ensures only a venire of randomness, one free of

systematic exclusion. It does not ensure any particular venire.' " Sistrunk

v. State, 630 So. 2d 147, 149 (Ala. Crim. App. 1993) (quoting Note, United

States v. Gelb: The Second Circuit's Disappointing Treatment of the Fair

48

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Cross-Section Guarantee, 57 Brook. L. Rev. 341, 343 n.7 (1991)).

Brown also failed to satisfy the second Duren element—that the

representation of blacks in his venire was not fair and reasonable in

relation to the number of such persons in the community. The United

States Court of Appeals for the Eleventh Circuit has explained: " 'To

analyze whether African Americans were fairly and reasonably

represented in the jury pool, we compare the difference between the

percentage of African Americans in the population eligible for jury

service and the percentage of African Americans in the pool.' " United

States v. Davis, 854 F.3d 1276, 1295 (11th Cir. 2017) (quoting United

States v. Carmichael, 560 F.3d 1270, 1280 (11th Cir. 2009)). " '[I]f the

absolute disparity between these two percentages is ten percent or less,

the second [Duren] element is not satisfied.' " Id. (quoting Carmichael,

560 F.3d at 1280, quoting in turn United States v. Grisham, 63 F.3d 1074,

1078-79 (11th Cir. 1995)). Here, the absolute disparity is far below 10%.

Again, to support his fair-cross-section argument, Brown attached

to his motion census data showing that the percentage of the total black

population of Madison County is 25.2%. (C. 61.) At the hearing on his

motion, McKoy acknowledged that 131 (or 21.83%) of the 600 potential

49

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jurors summoned for jury service for Brown's trial term are black. (R.

123.) In other words, there was an absolute disparity of 3.37%. Because

the absolute disparity between the percentage of all blacks in Madison

County and the percent of blacks summoned for Brown's jury term is less

than 10%, Brown failed to establish the second Duren element.15

Because Brown failed to satisfy the Duren test, he is due no relief

on this claim.

V. The trial court did not abuse its discretion in denying Brown's

motions to remove five prospective jurors for cause.

Brown argues that the trial court erred when it did not remove for

cause prospective jurors S.A. (no. 4), T.D. (no. 24), P.L. (no. 53), S.S. (no.

81), and J.R. (no. 124). According to Brown, those potential jurors gave

15To be clear, to overcome the absolute-disparity test, Brown had to

establish that the disparity between the percentage of blacks who are

eligible for jury service and the percentage of blacks summoned for jury

service exceeded 10%. He failed to do so.

Here, Brown's census data showed the percentage of the population

of all blacks in Madison County, not the percentage of the population who

are eligible for jury service. Although the absolute-disparity test relies on

the percentage of the black population who are eligible for jury service,

that number, logically, cannot exceed the total population percentage.

And because Brown could not satisfy the absolute-disparity test based on

the total population percentage of blacks in Madison County, he cannot

satisfy the second Duren element.

50

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"biased answers" both during voir dire and in their juror questionnaires.

(Brown's brief, p. 63.) Brown used peremptory strikes to remove all five

prospective jurors.16 He argues: "In denying these challenges, the trial

court forced [him] to utilize crucial peremptory strikes—strikes [he]

would have otherwise used to strike problematic individuals who ended

up on [his] jury—to remove them." (Brown's brief, p. 63.) Brown's

arguments lack merit.

" 'To justify a challenge for cause, there must

be a proper statutory ground or " 'some matter

which imports absolute bias or favor, and leaves

nothing to the discretion of the trial court.' " Clark

v. State, 621 So. 2d 309, 321 (Ala. Cr. App. 1992)

(quoting Nettles v. State, 435 So. 2d 146, 149 (Ala.

16Although we hold that the trial court did not abuse its discretion

in denying Brown's motions to remove those potential jurors for cause,

we also note that

" 'any error in failing to remove these jurors for cause was

harmless beyond a reasonable doubt. "[T]he Alabama

Supreme Court has held that the failure to remove a juror for

cause is harmless when that juror is removed by the use of a

peremptory strike. Bethea v. Springhill Mem'l Hosp., 833 So.

2d 1 (Ala. 2002)." Pace v. State, 904 So. 2d 331, 341 (Ala. Crim.

App. 2003). Cf. Ex parte Colby, 41 So. 3d 1 (Ala. 2009) (may

not be harmless when multiple challenges for cause are

involved).' "

Abernathy v. State, [Ms. CR-21-0275, June 27, 2025] ___ So. 3d ___, ___

n.6 (quoting Thompson v. State, 153 So. 3d 84, 115 (Ala. Crim. App.

2012)).

51

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Cr. App. 1983)). This Court has held that "once a

juror indicates initially that he or she is biased or

prejudiced or has deep-seated impressions" about

a case, the juror should be removed for cause. Knop

v. McCain, 561 So. 2d 229, 234 (Ala. 1989). The

test to be applied in determining whether a juror

should be removed for cause is whether the juror

can eliminate the influence of his previous feelings

and render a verdict according to the evidence and

the law. Ex parte Taylor, 666 So. 2d 73, 82 (Ala.

1995). A juror "need not be excused merely because

[the juror] knows something of the case to be tried

or because [the juror] has formed some opinions

regarding it." Kinder v. State, 515 So. 2d 55, 61

(Ala. Cr. App. 1986). Even in cases where a

potential juror has expressed some preconceived

opinion as to the guilt of the accused, the juror is

sufficiently impartial if he or she can set aside that

opinion and render a verdict based upon the

evidence in the case. Kinder, [515 So. 2d] at 60-61.

In order to justify disqualification, a juror " 'must

have more than a bias, or fixed opinion, as to the

guilt or innocence of the accused' "; " '[s]uch opinion

must be so fixed ... that it would bias the verdict a

juror would be required to render.' " Oryang v.

State, 642 So. 2d 979, 987 (Ala. Cr. App. 1993)

(quoting Siebert v. State, 562 So. 2d 586, 595 (Ala.

Cr. App. 1989)).'

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

Further,

" ' "[t]he qualification of prospective jurors rests

within the sound discretion of the trial judge."

Morrison v. State, 601 So. 2d 165, 168 (Ala. Crim.

App. 1992); Ex parte Cochran, 500 So. 2d 1179,

1183 (Ala. 1985). This Court will not disturb the

trial court's decision "unless there is a clear

52

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showing of an abuse of discretion." Ex parte

Rutledge, 523 So. 2d 1118, 1120 (Ala. 1988). "This

court must look to the questions propounded to,

and the answers given by, the prospective juror to

see if this discretion was properly exercised." Knop

[v. McCain], 561 So. 2d [229] at 232 [(Ala. 1989)].

We must consider the entire voir dire examination

of the juror "in full context and as a whole." Ex

parte Beam, 512 So. 2d 723, 724 (Ala. 1987); Ex

parte Rutledge, 523 So. 2d at 1120.'

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

Mulkey v. State, [Ms. CR-2023-0304, May 2, 2025] ___ So. 3d ___, ___

(Ala. Crim. App. 2025). Also,

" '[a] trial judge's finding on whether or not a

particular juror is biased "is based upon

determinations of demeanor and credibility that

are peculiarly within a trial judge's province."

[Wainwright v.] Witt, 469 U.S. [412] at 429, 105 S.

Ct. [844] at 855, 83 L. Ed. 2d 841 [(1985)]. That

finding must be accorded proper deference on

appeal. Id. "A trial court's rulings on challenges for

cause based on bias [are] entitled to great weight

and will not be disturbed on appeal unless clearly

shown to be an abuse of discretion." Nobis v. State,

401 So. 2d 191, 198 (Ala. Cr. App.), cert. denied, Ex

parte Nobis, 401 So. 2d 204 (Ala. 1981).'

"Martin v. State, 548 So. 2d 488, 490-91 (Ala. Crim. App.

1988).

"Furthermore, the Alabama Supreme Court has held

that a circuit court's failure to remove a prospective juror for

cause may be harmless error. See Bethea v. Springhill

Memorial Hospital, 833 So. 2d 1 (Ala. 2002).

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" '[T]his Court has returned to the "harmlesserror" analysis articulated in the Ross v.

Oklahoma, 487 U.S. 81, 108 S. Ct. 2273, 101 L. Ed.

2d 80 (1988), and United States v. MartinezSalazar, 528 U.S. 304, 120 S. Ct. 774, 145 L. Ed.

2d 792 (2000), decisions. Because a defendant has

no right to a perfect jury or a jury of his or her

choice, but rather only to an "impartial" jury, see

Ala. Const. 1901 § 6, we find the harmless-error

analysis to be the proper method of assuring the

recognition of that right.

" 'In this instance, even if the Betheas could

demonstrate that the trial court erred in not

granting their request that L.A.C. be removed

from the venire for cause (an issue we do not

reach), they would need to show that its ruling

somehow injured them by leaving them with a

less-than-impartial jury. The Betheas do not

proffer any evidence indicating that the jury that

was eventually impaneled to hear this action was

biased or partial. Therefore, the Betheas are not

entitled to a new trial on this basis.”

"Bethea, 833 So. 2d at 7."

Thomas v. State, 399 So. 3d 1073, 1077-78 (Ala. Crim. App. 2023). To be

sure,

"[a]fter Bethea, the Alabama Supreme Court in Ex parte

Colby, 41 So. 3d 1 (Ala. 2009), held that the failure to remove

three jurors for cause was not harmless error. In discussing

Colby, this Court has stated:

" 'In Ex parte Colby, 41 So. 3d 1 (Ala. 2009),

the defendant argued that the trial court erred in

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denying her challenges for cause as to several

jurors, forcing her to use 9 of her 17 peremptory

strikes to remove those jurors from the venire. 41

So. 3d at 4. The Alabama Supreme Court reversed

the judgment after finding that, under its

precedent in General Motors v. Jernigan, 883 So.

2d 646 (Ala. 2003), multiple errors by the trial

court in denying Colby's challenges for cause were

not harmless. 41 So. 3d at 5. Specifically, the

Alabama Supreme Court found that the jury in

that case included " 'jurors who would likely have

been the subject of peremptory challenge[s] had

such challenges been available' " to Colby. Id.'

"Petersen v. State, 326 So. 3d 535, 559 (Ala. Crim. App. 2019).

" 'A trial court's refusal to excuse a

prospective juror for cause is not an abuse of

discretion, notwithstanding that the juror has

voiced a seemingly biased opinion, when after

further examination and instruction, the juror

demonstrates a willingness and ability to decide

the case impartially according to the law and

evidence.'

"State v. Juniors, 915 So. 2d 291, 309-310 (La. 2005).

" 'It is well to remember that the lay persons

on the panel may never have been subjected to the

type of leading questions and cross-examination

techniques that frequently are employed ... [during

voir dire].... Also, unlike witnesses, prospective

jurors have had no briefing by lawyers prior to

taking the stand. Jurors thus cannot be expected

invariably to express themselves carefully or even

consistently. Every trial judge understands this,

and under our system it is that judge who is best

situated to determine competency to serve

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impartially. The trial judge may properly choose to

believe those statements that were the most fully

articulated or that appeared to have been least

influenced by leading.'

"Patton v. Yount, 467 U.S. 1025, 1039, 104 S. Ct. 2885, 81 L.

Ed. 2d 847 (1984)."

Thomas, 399 So. 3d at 1078-79. With these principles in mind, we turn to

Brown's arguments on appeal.

Prospective Juror S.A. (No. 4)

Brown argues that prospective juror S.A. should have been removed

for cause because, in her juror questionnaire, S.A. indicated "strong

agreement" with the statement that " '[a] criminal defendant should be

required to produce evidence to prove that he or she is not guilty' " and

stated that, " 'if I could rewrite the law, I think that a defendant should

have to testify and give their side of the story.' " (Brown's brief, pp. 63-64.) According to Brown, S.A.'s responses "made clear that [she] would

hold the defense to a higher standard of proof than required or permitted

under law, and would improperly consider Mr. Brown's right to remain

silent as evidence of guilt." (Brown's brief, p. 66.) Brown also argues that

S.A. said that she " 'support[s] the death penalty' because '[i]f someone

takes another person's life, unless it was in self-defense why should they

56

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be allowed to live.' " (Brown's brief, pp. 66-67 (quoting R. 492-93).)

During voir dire, the following exchange occurred with S.A.:

"[Prosecutor]: All right. We mentioned this earlier, just

a couple of principles of law that we were talking about.

Specifically about the burden of proof. And the judge will tell

you that we have the burden of proof. We have to prove it. He

doesn't have to prove that he's innocent. He doesn't have to

testify in his defense, anything like that.

"A couple of your answers here said that you think that

he should have to prove his innocence, or he should have

responsibility to prove something. Do you understand that's

not the law?

"[S.A.]: I do understand that.

"[Prosecutor]: Okay. And people are allowed to disagree

about what the law should be. But understanding what the

law is, when the judge tells you that, and he tells you that he

doesn't have to prove it, he doesn't have to testify and you

cannot hold any of that against him, are you capable of

following the law when the judge tells you that?

"[S.A.]: Yes, I am.

"[Prosecutor]: It's not going to be sitting in the back of

your mind, Well, I know the judge said that, but I am kind of

holding it against him a little bit?

"[S.A.]: No."

(R. 489-90.) Brown's counsel then questioned S.A.:

"[Brown's counsel]: There was a section of your

questionnaire … where you were asked whether you strongly

agreed or strongly disagreed. And it was on a 1 to 10 scale. Do

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you recall that series of questions?

"[S.A.]: I do.

"[Brown's counsel]: Well, you wrote the following

statement: A criminal defendant should be required to

produce evidence to prove that he or she is not guilty. And you

said, I strongly agree with that. Is that your position?

"[S.A.]: Yes.

"[Brown's counsel]: So if Mr. Brown presents no evidence

at all in his defense, you would say he's guilty?

"[S.A.]: No.

"[Brown's counsel]: Explain the difference.

"[S.A.]: I would have to base my decision on what has

been presented.

"….

"[Brown's counsel]: Well, I'm just trying to understand

why you gave a 10 there.

"[S.A.]: It was asking my opinion, though. Like, if I could

rewrite the law, I think that a defendant should have to testify

and give their side of the story.

"[Brown's counsel]: I see. And a defendant who does not

do that is what?

"[S.A.]: Innocent until proven guilty."

(R. 491-92.) Brown's counsel also asked S.A. about her views on the death

penalty:

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"[Brown's counsel]: Okay. Now there was another

question on here regarding the death penalty. It was Question

Number 47. I'll read it to you.

"….

"Well, 46 leads into it. It says, What are your views on

the death penalty? And you said, I support the death penalty.

Is that okay?

"[S.A.]: Correct.

"[Brown's counsel]: And then 47 is, Why do you feel the

way that you do? And your answer was, If someone takes

another person's life, unless it was in self-defense, why should

they be allowed to live?

"[S.A.]: Correct.

"….

"[Brown's counsel]: So the only way, in your view, you

can get—take someone's life is in self-defense, and everything

else to you is murder and death, correct?

"[S.A.]: Correct."

(R. 492-94.)

The State then explained to S.A. the process of weighing

aggravating and mitigating circumstances and that "you're not allowed

to say automatically no death or automatically all death. You have to look

at them and you have to weigh them and decide whether or not he really

deserves death or not." (R. 494.) The State then asked S.A.: "Is that you?

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Or are you able to follow what the judge says and actually weigh things?

And there's no wrong answer." (R. 495.) S.A. responded: "That is difficult

to answer, to be honest. Because I haven't heard the evidence." (R. 495.)

S.A. then assured the parties that she "believe[d] that [she] would be able

to listen to what the judge says and weigh and consider all the, you know,

evidence presented." (R. 495.)

To clarify, the State asked S.A.: "And, cards on the table, is it

possible that you could weigh that and find somebody that had committed

a capital murder did not deserve death?" (R. 495.) S.A. answered: "If the

other option was life in prison without parole. … I mean, to me, it would

have to be those two options." (R. 495-96.) S.A. again told the parties that

she believed that she could find someone guilty of capital murder but not

deserving of a death sentence. (R. 496.) After that, Brown moved to have

S.A. removed for cause. The trial court denied Brown's motion.

Although S.A. told the parties that she strongly supported the

death penalty and that, if she was writing on a blank slate, she would

require a defendant to testify at trial, she also told the parties that she

could impose a sentence less than death and that she understood that,

under the law, a person does not have to testify in his defense and is

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innocent until proven guilty. As the trial court found: "I can understand

why you wouldn't want her on the panel. But at this point she's been

rehabilitated." (R. 498.)

The trial court did not abuse its discretion when it denied Brown's

motion to remove S.A. for cause. See Largin v. State, 233 So. 3d 374, 409

(Ala. Crim. App. 2015) (" 'A trial judge is in a decidedly better position

than an appellate court to assess the credibility of the jurors during voir

dire questioning. See Ford v. State, 628 So. 2d 1068 (Ala. Crim. App.

1993). For that reason, we give great deference to a trial judge's ruling

on challenges for cause. Baker v. State, 906 So. 2d 210 (Ala. Crim. App.

2001).' Turner v. State, 924 So. 2d 737, 754 (Ala. Crim. App. 2002).").

Prospective Juror T.D. (No. 24)

Brown argues that the trial court abused its discretion when it

denied his motion to remove prospective juror T.D. for cause because, in

his juror questionnaire, T.D. expressed strong agreement with the idea

that a defendant should have to testify in his own defense. Brown also

argues that T.D.

"responded on his questionnaire that he was 'for the death

penalty when there is a conviction bad enough to warrant it,'

and explained his views were based on his belief that '[i]t costs

too much to house a prisoner for a life sentence if a death

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penalty is an option and deserving.' "

(Brown's brief, pp.67-68.) According to Brown, T.D.'s biases warranted

his removal for cause. Brown's arguments lack merit.

During voir dire, Brown's counsel pressed T.D. on his responses in

his juror questionnaire:

"[Brown's counsel]: Question Number 46, What are your

views on the death penalty? And you answered, I am for the

death penalty when there is a conviction bad enough to

warrant it. Do you recall that?

"[T.D.]: Yeah.

"[Brown's counsel]: Okay. Is there something you want

to clarify about that answer?

"[T.D.]: Well, it don't sound to clear. But I'm talking

about when the evidence presents and it warrants the

conviction, then I can vote for the death penalty.

"[Brown's counsel]: All right. And the follow-up to that

was Question 47 is, Why do you feel the way that you do? And

your response was, It costs too much to house a prisoner for a

life sentence if the death penalty is an option and deserving.

"Do you stand by that answer?

"[T.D.]: I think what I was thinking of then was it

usually takes 20, 30 years for the death penalty to be carried

out. And it costs the taxpayers a lot of money.

"….

"[Brown's counsel]: It appears to be a very important

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factor, the cost to you, in arriving at the decision as to whether

or not you would vote—assuming a conviction has been

obtained, a huge factor for you would be that it costs too much

to house a prisoner for life.

"[T.D.]: Well, in this case I either got—I would be

determining whether it was a life sentence or—

"[Brown's counsel]: Or death.

"[T.D.]: Yes. So, you know, the costs are there."

(R. 586-89.) The trial court then explained to T.D. how death-penalty

cases are tried and explained to him the process of weighing aggravating

and mitigating circumstances. (R. 589-90.) The trial court asked T.D. if

he would "be able to go through that weighing process in an honest and

impartial way." (R. 590.) T.D. stated: "I think so." (R. 590.)

The trial court then asked T.D. about his views on whether a

defendant should be required to testify:

"The Court: Lastly, [on] one of your questions you

indicated that you felt that the defendant should be required

to prove their innocence or something to that effect. Do you

recall that?

"[T.D.]: I don't recall it. But I would say that, yes.

"The Court: Okay. So let me just tell you? Under the

Fifth Amendment we've all got the constitutional right to

avoid giving self-incriminating testimony. And in cases of any

criminal nature, we can't be compelled to potentially testify

and ultimately give evidence against ourselves.

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"You understand that it's also a provision of law that

jurors are not allowed to question that or to hold that against

a defendant in considering their guilt. You understand that?

"[T.D.]: Yes, sir.

"The Court: And I'll instruct you in a lot more flowery

language if you ultimately end up on this panel as to that

right. But would you follow that instruction?

"[T.D.]: I would follow the Court's instruction, and I

would like to serve."

(R. 593-94.)

Brown moved to have T.D. removed for cause. (R. 595.) The trial

court denied Brown's motion, finding that T.D. had been rehabilitated.

This Court cannot conclude that the trial court abused its discretion in

so doing. See Largin, 233 So. 3d at 409.

Prospective Juror P.L. (No. 53)

Brown contends that prospective juror P.L. "was due to be struck

for cause due to her stated prejudice against the defense and in favor of

the State and law enforcement witnesses." (Brown's brief, p. 69.) Brown's

argument lacks merit.

During voir dire, the State asked P.L. about the statement on her

questionnaire that she would give more weight to the testimony of a law64

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enforcement officer because "[t]hey usually witnessed it firsthand." (R.

809.) The State explained to P.L. that the trial court would "tell [her] that

[she is] not allowed to give law enforcement more—under the law, more

credibility than anyone else" and asked her if she had "any problem

following [the trial court's] instruction on that?" (R. 809.) P.L. responded:

"Absolutely not." (R. 809.)

Brown's counsel then asked P.L. about her rating criminal-defense

attorneys a "3" on her questionnaire, and she explained: "Well, just some

experiences I've had. I've just realized that, you know, they will say what

they need to win their case." (R. 810.) When Brown's counsel asked her if

that was also true "of the other side," P.L. responded: "That probably is,

but I'm not as familiar with the other side. I've never been arrested." (R.

810.) Brown's counsel pressed P.L.: "What experience have you had that

has led you to give me a three?" P.L. explained that it was "nothing

personal to y'all, I promise—that I just—I just know how they work as

just people." (R. 810.) P.L. then said that Brown's counsel could "certainly

change" her opinion of criminal-defense counsel. (R. 810.)

Brown's counsel also asked P.L. about whether she had ever posted

"support or a message of support for police" on social media. (R. 810.) P.L.

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admitted that she had "put, Support The Blue," but "[t]hat would be as

much as it is." (R. 810-11.) She explained that she posted it "probably a

couple of years" ago when she "felt like—that was when the police were

getting a bad []rap in society in general." (R. 811.) P.L. said that she has

"friends that are police that risk their lives every day. And I just don't

like the fact that we don't support them." (R. 811.) P.L. clarified that she

did not have friends who were police officers in Huntsville—they "live out

of town, like, Anniston," and there is "a friend of [her] son's that is a

Madison police. So that is local, but it's not Madison County." (R. 811-12.)

The trial court then followed up with P.L.:

"The Court: Are you going to be able to give both sides a

fair opportunity in this case?

"[P.L.]: I would take that very, very seriously and do

that; yes, sir."

(R. 812.)

Brown's counsel then confronted P.L. with a social-media post that

showed "the badge of the police officer, Huntsville." (R. 813.) According

to P.L., there were lines across the badge, but she could not remember

"what the lines are for. I think I just shared it from somebody else's." (R.

813-14.) Brown's counsel asked her: "Was that post made in response to

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the most recent killing of a police officer?" (R. 815.) P.L. answered: "I

honestly don't remember ever making that post. It appears to me that—

that some incidents happened—some incident happened that was sad to

me. And I was just, you know, posting an opinion on it." (R. 815-16.)

After that, Brown's counsel moved to remove P.L. for cause, arguing

that "she has nothing but contempt for defense lawyers and my side of

the room based on her rating. And I think she's hedging about that most

recent post what was posted this year in—March 29th." (R. 816.) The

State responded:

"Your Honor, I think her response was that she didn't

have anything personal against that group of lawyers, but she

knew defense attorneys that had—and had experience—

negative experience with defense attorneys. And that's what

the question asked. It's not necessarily those defense lawyers.

"And, even so, Your Honor, that's not for cause. And

supporting the police is not for cause either. She can—she can

post on her Facebook that she supports police officers all day

as long as she can be fair. And you asked her directly, Can you

be fair? And she said she could."

(R. 817.) The trial court then denied Brown's motion.

Although Brown correctly argues that P.L. indicated that she

trusted and supported law-enforcement officers and held a negative view

of certain defense counsel, P.L. also told the trial court that she could

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follow the trial court’s instructions and give both sides a fair opportunity.

The trial court did not abuse its discretion when it concluded that P.L.'s

responses did not warrant her removal for cause. See Largin, 233 So. 3d

at 409.

Prospective Juror S.S. (No. 81)

Brown argues that prospective juror S.S. should have been removed

for cause because he stated "strong agreement" with the statement that

" '[a] criminal defendant should be required to produce evidence to prove

that he or she is not guilty.' " (Brown's brief, p. 63.) Brown also contends

that S.S. should have been removed for cause because he "indicated his

belief that if he was on trial and not guilty, he would testify, and

confirmed that, should he make the jury and should Mr. Brown decide

not to testify, he might consider that silence in deciding Mr. Brown's

guilt." (Brown's brief, p. 65.)

During voir dire, in response to a question from Brown's counsel,

S.S. indicated that he had noted on his juror questionnaire that he agreed

with the "fundamental legal principle" that "[a] defendant has the

absolute right not to testify and his silence may not be used against that

person" and explained in his questionnaire that "[h]e or she has the right

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to not self-incriminate themselves but withholding evidence can alter the

jurors' decision." (R. 1019.) Brown's counsel asked S.S. what that

statement meant:

"[S.S.]: If they know to say—to give an answer that

would give credence to their innocence or guiltiness and they

withhold it.

"[Brown's counsel]: All right. Well, it sounds like you

kind of believe in his right to remain silent and kind of don't.

"[S.S.]: Yeah.

"[Brown's counsel]: Because if you're sitting on that

jury—let's say he doesn't testify. You're going to be sitting

there going, Is this where the withholding evidence can alter

the jurors' decision?

"[S.S.]: I don't know.

"[Brown's counsel]: Okay. Could it? In you—to you, not

to anyone else.

"[S.S.]: Yeah. If a person doesn't give any indication

then, you know, that's something he's going to have to live

with. If I'm not guilty—I feel like I'm on—

"[Brown's counsel]: You are.

"[S.S.]: I know. (Laughter)

"Yeah. I'm not sure.

"[Brown's counsel]: Okay. So I would thoroughly expect

at some point during [the trial court's] instructions, assuming

the defendant didn't testify, that he would tell you that's a fact

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that you not—cannot consider. But it seems like you might

consider it. It's okay. We just need to know.

"[S.S.]: Right."

(R. 1019-20.)

The State then asked S.S. whether, if the trial court "orders you, as

[it] will every juror out here, you cannot consider this, you feel like you

would still consider it and maybe hold it against him?" (R. 1021.) S.S.

clearly stated that he would not hold Brown's silence against him. (R.

1021.) Brown's counsel then asked S.S. about his conflicting positions on

the question of Brown's right to remain silent and asked him if it "would

be on your mind if you're in that box," and S.S. indicated that it would.

(R. 1022.) The trial court then asked S.S. to clarify his responses:

"The Court: So which is it, sir? (Laughter.)

"[S.S.]: Just the fact that whatever you say is what I

need to follow and I will follow.

"The Court: And they both told you accurately what I

charge my juries every time I have a criminal defendant who

chooses not to testify.

"[S.S.]: Right.

"The Court: Which is you are not allowed to consider

that in any form or fashion as evidence of the defendant's

guilt. Period.

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"[S.S.]: Uh-huh. (Affirmative.)

The Court: If I give that to you—

"[S.S.]: Right.

"The Court: —are you going to follow it?

"[S.S.]: If he has a right to not self-incriminate himself,

he has a right to it—that's what I'm saying that, yes, he has a

right to do that.

"The Court: Yes, sir. My question is that—because—and

I think it's a natural human feeling to want, you know, have

everybody who knows anything about any—but that's not the

way trials work, right? And so the—but the question is: Can

you take that personal feeling that potentially conflicts with

the law as I give it to you—

"[S.S.]: Right.

"The Court: —can you set that personal feeling aside

and follow the law as I give it to you?

"[S.S.]: And that—that's the answer I say, Yes."

(R. 1023-24.)

Based on what counsel described as S.S.'s "conflicting answers

about one of the most fundamental constitutional principles in our

system of justice," Brown's counsel moved to have S.S. removed for cause.

(R. 1025.) The State argued that S.S. "agreed that he will do as [the trial

court] ordered." (R. 1025.) The trial court denied Brown's motion to

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remove S.S. for cause because, "based on his responses, I find that he's

been rehabilitated." (R. 1025.)

Although S.S. stated that he held the opinion that a person should

"give an answer that would give credence to their innocence" (R. 1019),

S.S. also explained that he could set aside his personal feelings and follow

the law as the trial court instructed him (R. 1024).

Because S.S.'s responses to the voir dire questioning did not

indicate that he had a fixed bias, and because he "never indicated that he

would hold it against [Brown] if he presented no evidence to clear his

name," Thomas, 399 So. 3d at 1083, the trial court did not abuse its

discretion when it found that S.S. had been rehabilitated and denied

Brown's motion to remove S.S. for cause. See Largin, 233 So. 3d at 409.

Prospective Juror J.R. (No. 124)

Brown argues that prospective juror J.R. should have been removed

for cause because, he says, J.R. showed his bias "with respect to how [he]

would determine the appropriate sentence should Mr. Brown be found

guilty" because, among other things, he stated that he " 'would want the

facts that [were] presented by the prosecutors to take the most weight' in

determining the appropriate sentence." (Brown's brief, pp. 66, 68

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(quoting R. 1335).) Brown's argument lacks merit.

During voir dire, J.R. told the parties that he was in favor of the

death penalty (he rated himself "as a 6 out of 10 in favor of the death

penalty"), and he explained in his questionnaire that he "hold[s] to a

biblical world view that supports our legal system's right to serve justice

in the country." (R. 1333.) Brown's counsel then asked J.R.:

"[Brown's counsel]: If you have already found my client

guilty of murdering a police officer on duty beyond a

reasonable doubt, are you going to consider things like his

childhood? Or are you just going to vote for death?

"[J.R.]: That's a really good question. I would start by

saying I would take it very serious, the matter, right? I

wouldn't take it lightly, whenever someone's life weighs in the

balance. I want to consider all the facts and his past history.

However, I would want the facts that was presented by the

prosecutors to take the most weight.

"So I'm not saying that someone's childhood could not

affect the decision that they make. My childhood wasn't the

best. So I definitely would consider that. But the facts that

was presented clearly in the case would be what I would be

looking at more than anything.

"[Brown's counsel]: Let me ask the question this way: If

you sit through the first phase of the case and you hear all the

State's evidence and you're convinced that he's guilty beyond

a reasonable doubt of killing a police officer on duty, in the

second phase of the case are you ever going to put your name

on the life without box or are you always to put your name on

the death box?

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"[J.R.]: It's tough. Especially when you're put on the spot

and asked that question right here. I would want to

deliberate—deliberate that with the other jurors and want to,

prayerfully consider that before I just put a check in either

box.

"….

"[Brown's counsel]: If you sit through all the evidence

and you're convinced beyond a reasonable doubt that he killed

a police officer on duty, are you ever going to put your name

in the life without box?

"The Court: Well, would he contemplate that? And, look,

sometimes jurors feel like they're—that the attorneys are

trying to get some sort of promise that you're going to do so.

And that's not the case and [Brown's counsel is] not trying to

do that. He's just asking—he's asking you—and I don't want

to step on his toes here. This is his right to ask these

questions. But I just want to make sure that you know he's

not asking you to promise that you're going to do—going to

impose some specific sentence in this case. But just whether

you could, okay.

"And I'm sorry, [Brown's counsel]. Let me let you

rephrase that since I just muddied the water more. And I

apologize.

"….

"[Brown's counsel]: … Are you ever going to consider

things like childhood? Or are you always going to vote for

death if you found that he murdered a police officer on duty

beyond a reasonable doubt?

"[J.R.]: If I'm looking at you now and would tell you, like,

100 percent?

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"[Brown's counsel]: Yes, sir.

"[J.R.]: If I've considered all the facts, he's came back as

guilty, my vote would be death.

"[Brown's counsel]: And that's every time if it's a police

officer on duty?

"[J.R.]: Yes, sir."

(R. 1334-37.)

After that, the State explained to J.R. that the trial court would

instruct him that he would have to consider both aggravating and

mitigating circumstances and that "we're looking for … someone who can

consider both sides before making a decision. … Somebody that can look

at their side and weigh it and look at our side and weigh it and go through

that process of weighing before making a decision on which way you're

going to go." (R. 1338.) The State then asked J.R. if he was willing to do

that, and J.R. responded: "I think that's what I just said, a hundred

percent. But if I was put on the spot right now to make the decision? Yes,

I would be in favor of the death penalty if y'all presented all the facts and

they came back as guilty." (R. 1338.) The State then clarified that the

trial court would tell the jurors that they must "weigh both sides" and

then decide, and it asked J.R.: "Could you follow that under those

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circumstances." (R. 1339.) J.R. said that he could "100 percent." (R. 1339.)

Because J.R. had been "pulled both ways," the trial court had the

following exchange with him:

"The Court: … In order for a juror to be able to serve on

this case—and, again, the only way we get to where a juror's

even contemplating the death penalty is if the defendant's

found guilty of capital murder.

"[J.R.]: Right.

"The Court: But a juror at that point has to be able to—

once we move into the penalty phase, assess and weigh any

aggravating factors that the State puts on, which they argue

supports the death penalty, against any mitigating evidence

that the Defense puts on that they argue supports a nondeath

sentence, okay.

"[J.R.]: Uh-huh. (Affirmative.)

"The Court: And, basically, what that juror's going to

have do is weigh all that and figure out do the aggravating

factors outweigh the mitigating or vice versa?

"[J.R.]: Uh-huh. (Affirmative.)

"The Court: And if you can't go through that weighing

process in an honest and impartial way and give both sides a

fair shake—

"[J.R.]: Yeah.

"The Court: —they've both got a fair shake of you either

imposing a death sentence or of you imposing a life without

sentence, then this may not be the jury for you to sit on, sir.

So my question is: Can you go through that weighing process

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or not?

"[J.R.]: Yes, sir. Yes."

(R. 1339-40.)

Brown then moved to have J.R. removed for cause because he

"indicated that he would always vote for death with these specific facts."

(R. 1341.) The State opposed Brown's motion, arguing that J.R. "may

have been a little bit confused with the way the question was asked" and

that, when he was asked if he could consider both sides, "he said he

absolutely would consider both sides and go through the weighing

process." (R. 1341.) The Court agreed with the State, finding:

"I interpreted it he was—and that's why I kind of

jumped in. Because the way you phrased the question,

[Brown's counsel], I thought it could be construed by him and

it was construed by him as you almost asking him to prejudge

the thing. Which I know you're not asking him to do, but I

think that's what he interpreted it as. And that's why I drilled

down the way I did with him.

"I'm satisfied that he's rehabilitated at this point. I'm

going to deny the Defense's motion as to 124."

(R. 1342.)

Although J.R. initially told Brown's counsel that he would vote for

death in a case in which the jury found the defendant guilty beyond a

reasonable doubt, the trial court attributed J.R.'s response to being

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confused by Brown's counsel's question. As shown above, when the trial

court clarified the process of weighing the aggravating and mitigating

circumstances and explained that jurors must consider both sides, J.R.

assured the trial court that he could consider both sides during the

weighing process.

Because the trial court is in a far better position than this Court to

assess the credibility of J.R.'s responses during voir dire, we give great

deference to the trial court's findings. See Largin, 233 So. 3d at 409. In

so doing, we cannot conclude that the trial court abused its discretion

when it found that J.R. had been rehabilitated and denied Brown's

motion to remove him for cause.

VI. Brown abandoned his Batson17 claim in the trial court, and this

Court will not review it.

Brown argues that the State exercised its peremptory strikes in a

racially discriminatory manner in violation of Batson v. Kentucky, 476

U.S. 79 (1986). But Brown abandoned his Batson claim in the trial court.

After the parties struck the jury, Brown's counsel told the trial

court that "[t]here were 13 qualified African Americans on this panel"

17Batson v. Kentucky, 476 U.S. 79 (1986).

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and that the State "had used 11 of their peremptory challenges to remove

African Americans." (R. 1383.) Brown's counsel claimed that the State's

strikes "fit[] a pattern … of purposeful discrimination" and that the State

could "either come forward with race neutral reasons or I'm going to ask

for additional time to cross-reference similarly situated jurors." (R. 1383.)

The following exchange then occurred:

"The Court: So I can't—I mean, I know y'all know—well,

let me let the State respond and then I'll see where we land.

Go ahead.

"[Prosecutor]: Respond to giving him more time? That's

entirely your purview, Your Honor, how much time you want

to give or not give.

"The Court: I mean, here's my deal. It's pushing 4:00.

We want to notify these folks as soon as we can.

"Thirty minutes. Y'all okay with that?

"[Prosecutor]: We're at the Court's pleasure.

"The Court: All right. I'll give you 30 minutes. And let's

be prepared because I need to notify these jurors ASAP, okay.

"[Brown's counsel]: All right."

(R. 1383-84.) When the parties returned to the courtroom, Brown's

counsel told the trial court that he was "unable to articulate a prima facie

Batson challenge"; instead, Brown's counsel said that "we would renew

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our previously lodged objection to the composition of the jury based on

Alabama law Section 12-16-55 et al and the Sixth Amendment to the U.S.

Constitution." (R. 1384.)

This Court will not

"attribute error to the trial court when the defendant did not

seek to address this particular claim for the same reasons the

preservation rules exist and for the same reasons that we no

longer engage in plain-error review of Batson claims. As

Justice Murdock explained, 'the most fundamental ... reason

for the proposition that plain-error review not be available to

initiate a Batson inquiry on appeal[] is the fact that the failure

of the trial court to initiate a Batson inquiry simply is not an

"error," plain or otherwise, by the trial court.' Ex parte Floyd,

190 So. 3d 972, 982 (Ala. 2012) (Murdock, J., concurring in the

result) (emphasis omitted). In short,

" '[t]he decision whether to take advantage of the

right to generate evidence for consideration by the

trial court pursuant to the Batson procedure is a

decision for the defendant, not for the trial court.

It is a voluntary decision as to whether to invoke a

procedural device that has been made available to

defendants in the trial context. ... Not requesting

it may be a strategic mistake by defense counsel,

but counsel's mistake is not the trial court's

"error." '

"Id. at 983 (some emphasis added; some emphasis omitted).

See also 24 C.J.S. Criminal Procedure and Rights of Accused

§ 2549 (2016) ('The purpose of the [preservation] rule[s], as

variously stated, is to give the trial court the opportunity to

correct any alleged error or defect called to its attention before

submission of the case to the jury, to prevent unlimited

litigation through the device of propounding new questions at

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each stage of an appeal, and to insure fairness for all the

parties to cases and to promote the orderly administration of

the law.')."

Hardy v. State, [Ms. CR-2022-1044, Feb. 6, 2026] ___ So. 3d ___, ___ (Ala.

Crim. App. 2026).

Because Brown abandoned his Batson claim in the trial court, and

because this Court "no longer review[s] Batson claims under our plainerror standard when those claims are raised for the first time on appeal,"

Henderson, ___ So. 3d at ___, we do not address Brown's Batson

argument on appeal.

VII. Because Brown injected the issue of his character during the

penalty phase, the trial court did not err in allowing evidence about

Brown's 2018 arrest in Tennessee.

Brown argues that the trial court erred during the penalty phase of

his trial when it allowed the State to introduce "highly prejudicial

evidence of [his] 2018 arrest in Hamilton County, Tennessee, for charges

that included aggravated carjacking, kidnapping, aggravated assault,

and aggravated burglary." (Brown's brief, p. 83.) Brown's argument lacks

merit.

During the penalty phase of his trial, Brown called several

witnesses, including Lauren Spacek and Angela Hayes.

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Spacek, Brown's mitigation specialist, testified that she met with

Brown and Brown's family and reviewed "a lot of records" about Brown.

(R. 1910.) Spacek detailed Brown's early life in the foster-care system and

when he was restored to the custody of his biological mother. (R. 1911-14). Spacek told the jury that Brown's younger brother, Patrick, viewed

Brown "more like a dad" who was "kind, but he'll push you to do better

and to be better." (R. 1917.) Spacek said that Brown "started getting into

trouble" when he was younger "just by people he was hanging out with."

(R. 1918.) But, she said, when he became a young father at 16 years old,

Brown made "noticeable improvements in his life." (R. 1919.) Yet, she

said, Brown pleaded guilty to federal drug charges in 2013 and served

time in federal prison. (R. 1920.) Spacek testified that, after Brown got

out of federal prison, he went to Chattanooga State and got his

commercial truck-driving license. (R. 1921.)

After Spacek testified on direct examination, the State argued that

Brown had opened the door to "the [Rule] 404[, Ala. R. Evid.,] stuff at this

point when their witness testified that she investigated his entire life

history …. Specifically, when she said that after he had his kid, he started

really trying to get in line right before he got arrested for a number of

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other prior convictions." (R. 1925.) Brown's counsel argued that the "2018

stuff is extremely prejudicial. Whatever probative value it had would be

substantially outweighed by this immense prejudicial effect." (R. 1926.)

The State countered that, because Brown injected his good character into

the penalty phase as mitigation, the "burden is now on [the State] to

disprove their mitigator." (R. 1926.) The trial court concluded that the

door had not yet been opened as to Brown's 2018 offenses. (R. 1927.)

Hayes testified that she met Brown when they were in middle

school in Chattanooga, Tennessee, and that they became friends. (R.

1934-35.) Their friendship drifted, however, when Brown had a child

when he was in high school. (R. 1935-36.) Hayes said that she left

Chattanooga and moved to California, and she stayed in California for 15

years. (R. 1936.) Hayes said that she returned to Chattanooga in

November 2017 after she had gone "through a bad divorce." (R. 1936.)

Upon returning to Chattanooga, Hayes ran into Brown, who "made [her]

feel better." (R. 1936-37.) Hayes described Brown as a "gentleman," and

they soon started a romantic relationship. (R. 1937.) Hayes said that

Brown "opened the car doors" and that he "was pleasant" and always

polite. (R. 1938-39.) Hayes explained to the jury how Brown's time in jail

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had affected her and Brown's family, and she told the jury that Brown "is

not a horrible person" and to "reconsider his life." (R. 1942.)

After Hayes testified on direct examination, the State asked the

trial court for a sidebar and argued that, because Hayes had testified that

Brown is "not a horrible person and just consider his life, now she's a

character witness. And the law is clear … that his priors can come in. We

can ask her if she knows about those." (R. 1943.) The State explained

that, during the penalty phase of a capital case, "[u]nder Jackson v. State

you can inquire from cross-examination … [of a] character witness

whether they are aware of not only prior crimes but prior suspensions,

prior bad acts, and other arrests." (R. 1944.) Brown argued that asking

Hayes whether she knows about Brown's prior arrests is "so prejudicial"

and has "extremely limited probative value." (R. 1945.) Brown argued

that Hayes "might not even know the vast majority of this. And what [the

prosecutor is] going to do is say, Did you know he was arrested for this,

this? He will essentially testify to things she has no personal knowledge

about and it's extremely prejudicial in a death penalty case at this

juncture." (R. 1945.) The trial court agreed with the State that Hayes's

testimony had opened the door to ask about her knowledge of Brown's

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bad character, but it cautioned the State not to "overplay[] the hand." (R.

1945.)

On cross-examination, the State asked Hayes:

"[Prosecutor]: I just got a couple of questions. You talked

about the kind of person that Mr. Brown was. Did you know

that in 1998 he was convicted for theft of property, two counts

of sale of cocaine, and possession of cocaine for distribution?

"[Hayes]: No, sir.

"[Prosecutor]: Did you know that in 2018 when he

committed this offense, he was on bond for, among other

things, four counts of aggravated kidnapping, three counts of

aggravated robbery, carjacking, two counts of home invasion,

a number of firearm charges, and aggravated assault on a

police officer?

"[Hayes]: No, sir."

(R. 1946-47.)

After Brown rested his penalty-phase presentation, the following

exchange occurred outside the presence of the jury:

"[Prosecutor]: Your Honor, we plan to recall Investigator

Hines and just have him testify during his investigation if he

discovered [Brown] had any priors, list them, and discover if

he was out on bond for any charges and list those. And that

basically covers what we covered on cross-examination.

"[Brown's counsel]: Judge, I understand the priors that

are convictions, What we have here, they're trying to elicit

evidence of an arrest that he hasn't been convicted of. We

would strenuously object to that. It is extremely prejudicial.

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We're not talking about convictions that have been had in a

court of law. These are incredibly prejudicial statements in a

case like this that would—would serve no valid purpose at

this point. The probative value is extremely limited. The

prejudicial effect is extremely high.

"[Prosecutor]: Your Honor, he was out on bond for those

charges when he committed this crime. We have heard over

and over from the Defense what a good man he was, how he

has changed his life, how he's turned it around. They're

relevant to this proceeding. His prior bad actions are more

than just convictions.

"[Brown's counsel]: Judge, we're talking about cases

that have been dismissed.

"The Court: All right. So here's—I'm going to kind of

split the baby here after considering kind of the totality here.

And really the argument from the Defense is centered on the

cases that he was charged with but was out on bond for.

"Addressing those, let's limit it to the fact that he was

out on bond. Don't go into the specifics of what those charges

are; just that he was out on bond at the time and not the

underlying offenses. All right?

"….

"[Brown's counsel]: With respect to the 2018

nonconvictions, we have this litany of cases that have been

dismissed that he was arrested for, and now we're in a

juncture where the State is going to offer testimony to bring

that into evidence. We are objecting to that strenuously and

requesting a ruling that it's extremely prejudicial. It's of

limited probative value. And we would request a ruling at this

juncture.

"The Court: Which charges are those?

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"[Prosecutor]: I think these are the ones we just talked

about. We're not going to talk specifics. We're just going to

talk that he was out on bond.

"The Court: Yeah. Just that he's out on bond. I'm not

going to—he's not going to offer testimony—

"….

"I think it's fair to go into the fact that he was out on

bond at the time, but I do agree that the prejudicial effect of

what those underlying charges were, which have since been

dismissed, outweigh any probative value; so ….

"[Brown's other counsel]: So it will only be testimony

that he was out on bond?

"The Court: Correct.

"[Brown's counsel]: That's the way I understood it.

"The Court: Correct.

"[Brown's other counsel]: I understand now, Judge.

"[Brown's counsel]: And that's good."

(R. 1989-92.)

Investigator Hines then testified that, during his investigation, he

learned that Brown had several prior criminal convictions, including:

"On September 22, 2015, there was a conviction for a

conspiracy to distribute five kilograms or more of mixtures

and substances containing a detectable amount of cocaine and

280 grams or more of cocaine base, in parentheses meaning

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crack.

"On July the 14th of 1998, there was a conviction for

theft of property.

"On October the 6th, 1998, there was a conviction for

sale of cocaine.

"On October the 6th, 1998, there was a second conviction

for sale of cocaine.

"And on October the 6th, 1998, there was a[n] additional

conviction for possession of cocaine for resale."

(R. 2003.) Investigator Hines also testified that he learned that Brown

"was out on bond during the time this event occurred." (R. 2003.)

Brown argues on appeal that the trial court erred when it allowed

the State to introduce evidence of his "2018 arrest in Hamilton County,

Tennessee, for charges that included aggravated carjacking, kidnapping,

aggravated assault, and aggravated burglary." (Brown's brief, p. 83.)

Brown's argument lacks merit.

Section 13A-5-45(c), Ala. Code 1975, provides: "At the sentence

hearing evidence may be presented as to any matter that the court deems

relevant to sentence and shall include any matters relating to the

aggravating and mitigating circumstances referred to in Sections 13A-5-49, 13A-5-51, and 13A-5-54[, Ala. Code 1975]." And § 13A-5-45(g), Ala.

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Code 1975, instructs that "[t]he defendant shall be allowed to offer any

mitigating circumstance defined in Sections 13A-5-51 and 13A-5-52[, Ala.

Code 1975,]" and that, "[w]hen the factual existence of an offered

mitigating circumstance is in dispute, the defendant shall have the

burden of interjecting the issue, but once it is interjected the state shall

have the burden of disproving the factual existence of that circumstance

by a preponderance of the evidence."

Here, Brown's mitigation case included putting on evidence of his

good character for the jury to consider as a mitigating circumstance

under § 13A-5-52, Ala. Code 1975. Once Brown injected his good

character into the penalty phase as mitigation, the State had the burden

of disproving it by a preponderance of the evidence, which allowed the

State not only to introduce evidence about Brown's prior convictions, but

also to introduce evidence about Brown's other prior bad acts, including

his 2018 arrests in Tennessee.

This Court has upheld the use of similar prior-bad-act evidence in

other death-penalty cases.

"In Jackson v. State, 791 So. 2d 979 (Ala. Crim. App.

2000), the appellant objected to the prosecutor's crossexamination of Jackson's character witnesses, claiming that

the evidence was improper because it introduced evidence of

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his prior bad conduct. We rejected that argument, stating:

" 'To rebut Jackson's claim of good character,

the State cross-examined one of Jackson's

character witnesses regarding Jackson's prior

misdemeanor assault conviction and his

suspension from school for carrying a gun. This

cross-examination was proper both to test the

witness's credibility as to his knowledge of

Jackson's character and to rebut the mitigating

evidence offered by Jackson.'

"791 So. 2d at 1026.

"We have also held that an appellant's disciplinary

problems in jail were admissible to rebut mitigation evidence

he offered regarding his good behavior in jail. In Clark v.

State, 896 So. 2d 584, 597 (Ala. Crim. App. 2000) (on return

to remand and on application for rehearing), we stated:

" 'Evidence of Clark's prison disciplinary

problems was clearly offered to rebut the evidence

he had offered in mitigation that he was a "model

inmate." (R. 1547.) The evidence was relevant and

probative to sentencing and was, thus, properly

admitted. See, e.g., Jackson v. State, 791 So. 2d

979 (Ala. Crim. App.), cert. denied, 791 So. 2d 1043

(Ala. 2000), cert. denied, 532 U.S. 934 (2001)

(evidence of the defendant's prior misdemeanor

conviction and his suspension from high school

was properly admitted to rebut the defendant's

mitigation evidence); and Hallford v. State, 548 So.

2d 526 (Ala. Crim. App. 1988), aff'd, 548 So. 2d 547

(Ala.), cert. denied, 493 U.S. 945 (1989) (evidence

that the defendant was having an incestuous

relationship with his daughter was properly

admitted to rebut the defendant's mitigation

evidence regarding his good character).' "

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Deardorff v. State, 6 So. 3d 1205, 1230 (Ala. Crim. App. 2004). See also

Revis v. State, 101 So. 3d 247, 298 (Ala. Crim. App. 2011) (holding that

"the State could properly disprove evidence offered by Revis as mitigation

at the penalty phase by offering evidence of Revis's reputation as a

violent prisoner and evidence of the other cited bad acts"); and Whatley

v. State, 146 So. 3d 437, 482 (Ala. Crim. App. 2010) (finding that

"Whatley's conduct in jail and the statements he made concerning

harming other inmates were relevant to rebut evidence that Whatley

presented in mitigation").

Here, when the State asked Hayes whether she knew that Brown

had been arrested in 2018 for several serious crimes, that evidence was

relevant both to an issue in sentencing—i.e., rebutting Hayes's claim of

Brown's good character—and, importantly, to test her credibility as to

her knowledge of Brown's character. Thus, the trial court did not err

when it allowed the State to ask Hayes about her knowledge of Brown's

2018 arrests.

Brown also argues that the trial court erred when it "fail[ed] to give

the jury any instruction regarding its consideration of the arrests."

(Brown's brief, p. 86.) Because Brown raises this argument for the first

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time on appeal, we review it only for plain error. See Rule 45A, Ala. R.

App. P.

At the end of the penalty phase, the trial court told the parties that

it did not

"give any sort of limiting instruction at the time that the—

during the penalty phase as far as the testimony about the

prior convictions. I'm going to give them a limiting instruction

that that is not an aggravator to be considered and that it can

only be considered for purposes of impeachment and for their

consideration of the character witness testimony."

(R. 2063.) Both parties agreed that the trial court's plan was appropriate.

(R. 2063.)

Then, during the penalty-phase instructions, the trial court

instructed the jury, in part:

"During the penalty phase there was limited evidence

presented of prior convictions of the defendant. You shall not

consider that evidence as aggravating evidence in this phase

of the trial. That evidence is solely to be considered for

purposes of weighing the evidence, credibility, and knowledge

presented by character testimony of the defendant's good

character."

(R. 2067.) Neither party objected to the trial court's instructions. (R.

2079.)

On appeal, Brown takes issue with the trial court's instructions

because it addressed only Brown's prior convictions, not his prior arrests,

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which were the subject of the State's cross-examination of Hayes and the

evidence used to rebut Brown's good character. (Brown's brief, p. 87.)

Although Brown correctly notes that there is a difference between

a conviction and an arrest, nothing in the record suggests that the jury

drew such a distinction when it was told to consider the State's

impeachment evidence, which included both his prior convictions and

prior arrests, as evidence going to credibility. " ' " '[A] mere verbal

inaccuracy in a charge, which results from a palpable slip of the tongue,

and clearly could not have misled or confused the jury is not reversible

error.' " ' " Johnson v. State, [Ms. CR-2023-0911, Dec. 19, 2025] ___ So. 3d

___, ___ (Ala. Crim. App. 2025) (quoting Lindsay v. State, 326 So. 3d 1,

47 (Ala. Crim. App. 2019), quoting in turn Graham v. State, 242 Ga. App.

361, 362, 529 S.E.2d 641, 644 (2000), quoting in turn Fruhling v. State,

233 Ga. App. 544, 545, 505 S.E.2d 47, 49 (1998)). Because nothing

suggests that the jury was misled by the court's instruction, there is no

error here, plain or otherwise.

VIII. Brown did not show actual or presumed prejudice, and the trial

court thus did not abuse its discretion in denying Brown's motion

to continue.

Brown argues that the trial court erred when it denied his pretrial

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motion to continue his trial, which he filed after "Huntsville police officer

Garrett Crumby was killed, and a second officer was critically injured in

the line of duty." (Brown's brief, p. 88.) Brown's argument lacks merit.

" '[A] motion for a continuance is addressed to the sound

discretion of the trial court and ..., absent a showing of abuse

of that discretion, the trial court's decision on the matter will

not be overturned on appeal.' Smith v. State, 698 So. 2d 189,

205 (Ala. Crim. App. 1996). See also Busby v. State, 412 So.

2d 837 (Ala. Crim. App. 1982). 'A defendant appealing the

denial of a continuance must demonstrate a clear abuse of the

trial judge's discretion and make a specific showing of

prejudice.' Tucker v. State, 429 So. 2d 1165, 1169 (Ala. Crim.

App. 1983). See also Dolvin v. State, 391 So. 2d 666, 674 (Ala.

Crim. App. 1979) ('actual jury prejudice' must be shown to

warrant a continuance)."

Kirksey v. State, 191 So. 3d 810, 824-25 (Ala. Crim. App. 2014).18

About four months before his trial was set to begin, Brown moved

to continue his trial. (2d Supp. C. 25-26.) In his motion, Brown alleged

that, almost three months earlier, another Huntsville Police Officer,

Garrett Crumby, "was killed in the line of duty, and Officer [Albert]

18In June 2016, the United States Supreme Court granted Kirksey's

petition for a writ of certiorari, vacated this Court's judgment, and

remanded Kirksey's case to this Court "for further consideration in light

of Hurst v. Florida, 577 U.S. 92, 136 S. Ct. 616, 193 L. Ed. 2d 504 (2016)."

Kirksey v. Alabama, 578 U.S. 1020 (2016). On remand, this Court again

affirmed Kirksey's capital-murder conviction and death sentence. See

Kirksey v. State, 243 So. 3d 849, 854 (Ala. Crim. App. 2016).

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Morin was critically injured," and that that "case has received, and is

likely to continue to receive extensive publicity at each stage of criminal

proceedings." (2d Supp. C. 25.) According to Brown, "[b]ecause of the

similarities between the two cases … and in light of the extensive media

coverage and the prejudicial atmosphere it has created, it is essential to

grant a motion to continue Mr. Brown's trial proceedings." (2d Supp. C.

25.) Brown argued that granting his motion would "allow the media

frenzy to subside and provide ample time for the defendant's legal team

to prepare an effective defense" and "will enable the court to select a jury

that has not been unduly influenced by media coverage and ensure a fair

trial for the defendant." (2d Supp. C. 25.)

The trial court held a status hearing in Brown's case in June 2023,

at which the parties discussed the motion to continue Brown had just

filed. (R. 50.) During that hearing, the State briefly offered its position on

continuing Brown's trial based on the case involving the murder of Officer

Crumby:

"I think we're honestly in an untenable spot in the sense

there was some media coverage in large of the fact that Officer

Crumby was killed. Who knows what the media landscape

will be like in October. He's not going to be indicted by then.

If we push it back another six months, a year, well, probably

the indictment will come out, and there will be a whole new

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mess of news about Officer Crumby's killer being indicted. At

some point we can poll the jury, we can ask them about

pretrial publicity, the fact that another officer was killed six

or eight months before this trial. That will continue it forever.

There are appropriate safeguards built into place checking for

pretrial publicity and bias, and we can do all of those."

(R. 51-52.)

The trial court explained that, if it needed to, it "could even draw

from a bigger pool," and, the trial court stated, "it's not like it was in the

old days when you counted on folks to read their newspapers every day.

There is a lot of our population that is just unplugged from media

coverage." (R. 52.)

Brown's counsel then argued that "they are plugged into … social

media" and that his "understanding of this new case is there is some

video that went around social media that is very inflammatory." (R. 52.)

Brown's counsel continued: "It's our position that it is impossible to

obtain a fair trial in this current media landscape, whereas we would be

looking at something totally different in, say, May of next year, especially

if the new case has not been indicted at that point." (R. 53.) The trial

court then asked the State when it "anticipated presentation of that other

case to the Madison County Grand Jury." (R. 53.) The State told the trial

court that it would, on average, take one year from the date Officer

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Crumby was killed—"[i]t may be shorter, it may be a little longer, but

that's generally just the way it runs." (R. 53.) The trial court concluded

that "we're going to be right back in the same spot because you would

anticipate there being some—some coverage upon returning of an

indictment," and it told the parties it would reset the hearing on Brown's

motion "to give [the State] sometime to maybe drill down on the status of

that other case in terms of an anticipated timeline." (R. 54.) The State

agreed to "take a look at it" but argued that there would "always … be

something like this floating in the news. If it's not here, it will be

somebody in Oregon that gets killed and now that is nationwide news,

maybe somebody in Dallas that got ambushed. We can't wait until we

have a perfect time to try this." (R. 55.)

One month later, the trial court reconvened the parties to address

Brown's motion to continue his trial. (R. 65.) At that hearing, Brown's

counsel reminded the trial court that, "[w]hen we were here last, we

spoke about the recent—most recent incident in which a police officer was

killed," and he explained that it was "still [Brown's] view that that is

fresh in the minds of the people who might ultimately sit as jurors in this

case, so we still assert the immediacy of that." (R. 65.) The State

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responded:

"Your Honor, I would just address the issue of Officer

Crumby's murder. Your Honor, if we get in a habit of

continuing cases because of factors that don't relate to those

particular cases—that was a random event. This could

happen tomorrow, it could happen the day before trial is set

and, really and truly, it has nothing to do with the facts that

we're dealing with. I think we have enough jurors coming that

we could sort that out. If it's going to be an issue, that's

something we can deal with in voir dire instead of perpetually

continuing this case until we’re sure nothing else bad is going

to happen to a law enforcement officer."

(R. 68.)

After these arguments from counsel, the trial court denied Brown's

motion, finding as follows:

"Look, I appreciate the sentiment of the motion, but I

can't be held hostage by what else is occurring out there in the

ether. We've got, I know—a pool of 130 [jurors] is our plan

here. That is going to be more than enough to drill down and—

look, I trust that [defense counsel] can—and the State can do

an adequate, better—I don't want to undersell you guys—

more than an adequate job of jury selection there and drilling

down on those issues, and we're going to have a big enough

panel to where I don't perceive there being any issues there.

If there is, then I'll continue it then, and we'll get a bigger pool

if that is an issue. But I don't foresee that happening."

(R. 68-69.)

Although Brown argues that "the trial court ignored compelling

reasons to grant [his] motion for a continuance" based on media coverage

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of the unrelated murder of Huntsville Police Officer Garrett Crumby,

(Brown's brief, p. 90), " '[n]ewspaper or other publicity does not, per se,

constitute grounds for a continuance,' " Kirksey, 191 So. 3d at 825

(quoting Busby v. State, 412 So. 2d 837, 842 (Ala. Crim. App. 1982)).

Rather, "[t]he granting or refusal of a continuance because of pretrial

publicity is a matter within the sound discretion of the trial court,"

Johnson v. State, 355 So. 2d 1160, 1164 (Ala. Crim. App. 1978) (citing

Nickerson v. State, 217 So. 2d 536, 539 (Ala. 1969), and Bosarge v. State,

139 So. 2d 302, 305 (Ala. 1961)), that will not be disturbed on appeal

"[a]bsent a showing of actual or presumed prejudice," Kirksey, 191 So. 3d

at 825. Because Brown failed to show either actual or presumed prejudice

from the media coverage of the murder of Officer Garrett Crumby, the

trial court did not abuse its discretion when it denied Brown's motion to

continue his trial. See Kirksey, 191 So. 3d at 825 ("As set forth above,

Kirksey did not establish prejudice, actual or presumed, based on pretrial

publicity regarding his or other trials. Absent a showing of actual or

presumed prejudice, we conclude that the trial court did not abuse its

discretion in denying Kirksey's motion for a continuance.").

IX. Brown waived his Miranda rights and never invoked his right to

remain silent.

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Brown, relying primarily on Doyle v. Ohio, 426 U.S. 610 (1976),

argues that the State "violated [his] due process rights when it …

introduced his silence as evidence against him at his capital trial."

(Brown's brief, p. 96.) Brown claims that, after he waived his Miranda

rights and spoke with Investigator Hines, the State, at trial, "attempted

to cast blame on Mr. Brown for his choice not to provide a comprehensive

recounting of the events of the crime to Investigator Hines when

interrogated." (Brown's brief, p. 98.) According to Brown, the State

"berat[ed]" him on cross-examination about his evasive answers to

Investigator Hines's questions and emphasized it during its closing

argument. (Brown's brief, p. 98.) Because Brown did not first make this

argument in the trial court, we review it only for plain error. See Rule

45A, Ala. R. App. P.

" 'The receipt into evidence of testimony concerning an

accused's post-Miranda exercise of the constitutional right to

remain silent is itself a violation of the accused's

constitutional right to remain silent.' Harris v. State, 611 So.

2d 1159, 1160-61 (Ala. Crim. App. 1992) (citing Doyle [v. Ohio,

426 U.S. 610 (1976)]). However, 'Doyle only prohibits the

prosecutor's making the defendant's silence the subject of

comment. "[A] defendant who voluntarily speaks after

receiving Miranda warnings has not been induced to remain

silent." ' Kidd v. State, 649 So. 2d 1304, 1307 (Ala. Crim. App.

1994) (quoting Anderson v. Charles, 447 U.S. 404, 408, 100 S.

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Ct. 2180, 65 L. Ed. 2d 222 (1980)).

"This Court in Pettibone v. State, 91 So. 3d 94 (Ala.

Crim. App. 2011), addressed the holding in Doyle and stated:

" ' "In Greer v. Miller, 483 U.S. 756, 107 S. Ct.

3102, 97 L. Ed. 2d 618 (1987), the United States

Supreme Court 'clarified that "the holding of

[Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L.

Ed. 2d 91 (1976),] is that the Due Process Clause

bars 'the use for impeachment purposes' of a

defendant's post-arrest silence." ' United States v.

Stubbs, 944 F.2d 828, 834 (11th Cir. 1991), quoting

Greer, 483 U.S. at 763, 107 S. Ct. at 3108, in turn

quoting Doyle, 426 U.S. at 619, 96 S. Ct. at 2245.

Furthermore, '[w]hile a single comment alone may

sometimes constitute a Doyle violation, the

Supreme Court's opinion in Greer makes clear

that a single mention does not automatically

suffice to violate defendant's rights when the

government does not specifically and expressly

attempt to use—as was attempted in Doyle and

Greer—the improper comment to impeach the

defendant. See Lindgren v. Lane, 925 F.2d 198,

201 (7th Cir. 1991).' Stubbs, 944 F.2d at 835.

(Emphasis in original.)" '

"91 So. 3d at 114-15 (quoting Wilkerson v. State, 686 So. 2d

1266, 1272 (Ala. Crim. App. 1996))."

Jackson v. State, 305 So. 3d 440, 469-70 (Ala. Crim. App. 2019).

Here, "[t]here is no indication in the record that [Brown] ever

invoked his right to remain silent during questioning by law enforcement

officers." Wilson v. State, 777 So. 2d 856, 890 (Ala. Crim. App. 1999)

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(citing Hardy v. State, 804 So. 2d 247, 267-68 (Ala. Crim. App. 1999)).

Rather, the evidence at trial showed that Brown waived his rights under

Miranda and agreed to speak with Investigator Hines (R. 1656), and

nothing in the record shows that Brown clearly and unequivocally

invoked his right to remain silent.

Although Brown correctly points out in his brief on appeal that,

after he waived his Miranda rights, he answered some of Investigator

Hines's questions with evasive responses, including: "I don't want to talk

about that right now," "I don't want to talk about it," and "[C]ertain

things, I don't want to speak on them." And, although Brown correctly

points out that the State asked Brown about those statements on crossexamination, the State's questions to Brown on cross-examination were

not references to Brown's post-Miranda silence. Rather, they were

"references to his waiver of his right to remain silent and the statements

he made after that waiver." Wilson, 777 So. 2d at 890. Accordingly, we

find no error here, plain or otherwise.

X. The evidence, viewed in a light most favorable to the State, was

sufficient to show Brown's "particularized intent" to kill.

Brown argues that the State's evidence was insufficient to support

his capital-murder conviction because, he says, "the State presented no

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direct evidence that [he] had a particularized intent to kill Officer Clardy

or anyone else" and that "the circumstances of the shooting show the

opposite of intent to kill." (Brown's brief, p. 102.) Brown's argument lacks

merit.19

" ' " 'In determining the sufficiency of the

evidence to sustain a conviction, a reviewing court

must accept as true all evidence introduced by the

State, accord the State all legitimate inferences

therefrom, and consider all evidence in a light

most favorable to the prosecution.' " Ballenger v.

State, 720 So. 2d 1033, 1034 (Ala. Crim. App.

1998), quoting Faircloth v. State, 471 So. 2d 485,

488 (Ala. Crim. App. 1984), aff'd, 471 So. 2d 493

(Ala. 1985). " 'The test used in determining the

sufficiency of evidence to sustain a conviction is

whether, viewing the evidence in the light most

favorable to the prosecution, a rational finder of

fact could have found the defendant guilty beyond

a reasonable doubt.' " Nunn v. State, 697 So. 2d

497, 498 (Ala. Crim. App. 1997), quoting O'Neal v.

State, 602 So. 2d 462, 464 (Ala. Crim. App. 1992).

" 'When there is legal evidence from which the jury

could, by fair inference, find the defendant guilty,

the trial court should submit [the case] to the jury,

and, in such a case, this court will not disturb the

trial court's decision.' " Farrior v. State, 728 So. 2d

691, 696 (Ala. Crim. App. 1998), quoting Ward v.

State, 557 So. 2d 848, 850 (Ala. Crim. App. 1990).

"The role of appellate courts is not to say what the

19Brown preserved this argument for appellate review when, after

the State rested its case-in-chief, Brown moved for a judgment of

acquittal arguing that the State had failed to show that Brown had a

"particularized intent" to kill. (R. 1661-62.)

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facts are. Our role ... is to judge whether the

evidence is legally sufficient to allow submission of

an issue for decision [by] the jury." Ex parte

Bankston, 358 So. 2d 1040, 1042 (Ala. 1978).'

"Gavin v. State, 891 So. 2d 907, 974 (Ala. Crim. App. 2003).

" ' "[T]he element of intent, being a state of mind or

mental purpose, is usually incapable of direct

proof, [and] it may be inferred from the character

of the assault, the use of a deadly weapon and

other attendant circumstances." Johnson v. State,

390 So. 2d 1160, 1167 (Ala. Cr. App.), cert. denied,

390 So. 2d 1168 (Ala. 1980). Accord Fears v. State,

451 So. 2d 385, 387 (Ala. Cr. App. 1984); Young v.

State, 428 So. 2d 155, 158 (Ala. Cr. App. 1982).'

"Jones v. State, 591 So. 2d 569, 574 (Ala. Crim. App. 1991).

Moreover:

" '[C]ircumstantial evidence alone may be

sufficient in conjunction with other facts and

circumstances which tend to connect the accused

with the commission of the crime to sustain a

conviction. Dolvin v. State, 391 So. 2d 133 (Ala.

1980) and cases there; Cumbo v. State, 368 So. 2d

871 (Ala. Crim. App. 1979), cert. denied, 368 So. 2d

877 (Ala. 1979).'

"Scanland v. State, 473 So. 2d 1182, 1185 (Ala. Crim. App.

1985)."

Iervolino, 402 So. 3d at 881.

The evidence presented at trial, when viewed in a light most

favorable to the State, was sufficient to establish that Brown had a

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"particularized intent" to kill Agent Clardy. Indeed, as set out above, the

State's evidence showed that the drug-task-force team led by Agent Dean

conducted a takedown operation at a house on Levert Street in Huntsville

and that Brown showed up to the takedown house with approximately

100 pounds of marijuana and armed with a Glock handgun equipped with

an aftermarket device that converted it into an automatic weapon. When

Brown entered the house, he immediately shot two bursts of automatic

gunfire at Agent Clardy, who was moving toward Brown to arrest him,

hitting him three times and killing him. Brown's shooting an automatic

weapon at Agent Clardy "was in and of itself sufficient evidence of [his]

intent to kill." Crayton v. State, 392 So. 3d 104, 112-13 (Ala. Crim. App.

2023) (citing Barnes v. State, 571 So. 2d 372, 375 (Ala. Crim. App. 1990);

Crews v. State, 616 So. 2d 392, 394 (Ala. Crim. App. 1993); Hinkle v.

State, 67 So. 3d 161, 164 (Ala. Crim. App. 2010); Horton v. State, 217 So.

3d 27, 52 (Ala. Crim. App. 2016); and Towles v. State, 263 So. 3d 1076,

1086 (Ala. Crim. App. 2018)). Thus, the evidence of his "particularized

intent" was sufficient to support Brown's capital-murder conviction.

Brown also argues in passing that the State impermissibly shifted

the burden to him to disprove intent by arguing to the jury that his

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"intent could be inferred from the act of shooting his weapon itself."

(Brown's brief, p. 103.) Brown did not make this argument in the trial

court. Thus, it is reviewed for plain error. See Rule 45A, Ala. R. App. P.

During its closing argument, the State told the jury that the

"Judge is going to tell you that he's been charged with

capital murder. Capital murder is an intentional crime. It's

not an accident. And you have to be intending to kill

somebody. But [J]udge is going to tell you, like we talked

about during jury selection with most of y'all, that intent can

be formed in an instant. He doesn't have to wake up that

morning going, I'm going to kill me a police officer today. In

fact, I don't think he did. I hope he woke up that morning

going, Man, I can sell these drugs and nobody's going to be the

wiser and we'll be done.

"But the moment he realized the gig was up, the moment

he takes that gun, fires first towards [Agent Morris] and then

turns it toward the human being next to him and pulls a

second pull on that fully automatic trigger, he has formed the

intent. He is sending lead at that man. He is ending a life.

"I didn't mean to. I didn't want to hurt nobody. The judge

is going to tell you you do not have to believe him. He's going

to tell you that you can infer intent from the nature of the

assault, from the character of the assault, from the way he

carried himself, from the way he pulled the trigger."

(R. 1768-69.) The State's argument reflects Alabama law and did not

impermissibly shift its burden of proof. See, e.g., Townes v. State, 253 So.

3d 447, 460 (Ala. Crim. App. 2015) (upholding the trial court's permissive

instruction that specific intent " 'may be inferred from the character of an

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assault, the use of a deadly weapon, or other attendant circumstances' "

(emphasis omitted)); and Whatley v. State, 146 So. 3d 437, 475 (Ala.

Crim. App. 2010) (noting that this Court has " 'upheld a court's jury

instructions in a capital case when the court instructed the jury that

intent may be formed in the "spur of the moment" ' " (quoting Gobble v.

State, 104 So. 3d 920, 975 (Ala. Crim. App. 2010))). Thus, we find no

error, plain or otherwise, in the State's comments to the jury about

Brown's intent.

XI. There was no error, plain or otherwise, with the trial court's jury

instructions on reasonable doubt.

Brown argues that the trial court erred in its jury instruction about

reasonable doubt because, Brown says, it "lessened the State's burden of

proof in [his] capital trial." (Brown's brief, p. 105.) Brown takes issue with

the trial court's instruction "that reasonable doubt is 'neither a forced

doubt nor a capricious doubt,' and 'not a mere fanciful, vague, conjectural,

or speculative doubt.' " (Brown's brief, p. 104 (quoting R. 1804).) Because

Brown did not object to the trial court's reasonable-doubt instruction, this

issue was not preserved for appellate review and is reviewed only for

plain error. See Iervolino, 402 So. 3d at 890-91. We find no error, plain or

otherwise, with the trial court's reasonable-doubt instruction. See, e.g.,

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Phillips v. State, 287 So. 3d 1063, 1132 (Ala. Crim. App. 2015) (upholding

a similar reasonable-doubt instruction because it was virtually identical

to the Alabama Pattern Jury Instruction on "Burden of Proof").

XII. Brown's one-sentence argument as to the trial court's deathqualifying the jury is waived under Rule 28(a)(10), Ala. R. App. P.

In one sentence, Brown, while acknowledging that "the United

States Supreme Court approved the death-qualifying procedure in Baze

v. Rees, 553 U.S. 35, 84 (2008)," argues that "death qualification in this

case violated [his] rights to an impartial jury drawn from a fair cross

section of the community, due process, a fair trial, and a reliable

conviction and sentence, as guaranteed by the Fifth, Sixth, Eighth, and

Fourteenth Amendments to the United States Constitution and Alabama

law." (Brown's brief, pp. 105-06.) Brown's claim does not satisfy Rule

28(a)(10), Ala. R. App. P.; thus, it is deemed waived and we will not

consider it. See Gaston v. State, [Ms. CR-2022-1383, Aug. 22, 2025] ___

So. 3d ___, ___ (Ala. Crim. App. 2025) (applying Rule 28(a)(10) to a

prosecutorial-misconduct claim on direct appeal in a death-penalty case

and concluding that it is not this Court's " 'duty ... to search the record for

evidence to support an appellant's contention of error' " (quoting Certain

Underwriters at Lloyd's, London v. Southern Nat. Gas. Co., 142 So. 3d

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436, 453 (Ala. 2013))).

XIII. There is no constitutional or statutory prohibition on "double

counting" Brown's capital-murder conviction as an aggravating

circumstance.

Brown argues that "the trial court's reliance on the jury's

culpability phase verdict both to render his conviction capital per

Alabama Code 13A-5-40(a)(5) and to provide aggravating circumstances

on which his death sentence was premised ... rendered [his] sentence

unconstitutional." (Brown's brief, p. 106.) Both this Court and the

Alabama Supreme Court have consistently rejected this argument. See,

e.g., Hicks v. State, 378 So. 3d 1071, 1127 (Ala. Crim. App. 2019)

(recognizing that there is no constitutional or statutory prohibition on

" 'double counting' circumstances both as an element of the offense and

as an aggravating circumstance"). Brown is thus not entitled to any relief

on this claim.

XIV. Brown waived his argument challenging the trial court's penaltyphase instructions on sympathy.

Brown argues that the "trial court reversibly erred by instructing

the jury it could not consider sympathy in the penalty phase." (Brown's

brief, p. 107.) The totality of Brown's argument on appeal is as follows:

"During its penalty phase instructions, the trial court

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improperly instructed the jury it could not consider sympathy

in rendering its sentencing verdict (R. 2106), in violation of

state and federal law, see Lockett v. Ohio, 438 U.S. 586, 605

(1978); Stallworth v. State, 868 So. 2d 1128, 1167 (Ala. Crim.

App. 2001), and Mr. Brown's rights to due process, a fair trial,

and a reliable sentencing determination as guaranteed by the

Fifth, Sixth, Eighth, and Fourteenth Amendments to the

United States Constitution and Alabama law."

(Brown's brief, pp. 107-08.) Brown's one-sentence argument does not

satisfy Rule 28(a)(10), Ala. R. App. P.; thus, it is deemed waived, and we

will not address it. See Gaston, ___ So. 3d at ___.

XV. Brown's death sentence is not disproportionate to the sentence

imposed on defendants committing similar offenses.

Brown argues that his "death sentence violates state and federal

law because it is grossly disproportionate." (Brown's brief, p. 108.)

Brown's argument lacks merit.

Brown was convicted of capital murder for intentionally killing

Agent Clardy, a police officer, while Agent Clardy was on duty, see § 13A5-40(a)(5), Ala. Code 1975. Brown cites two cases—Wilkes v. State (No.

CR-2023-0736, Dec. 12, 2025), ___ So. 3d ___ (Ala. Crim. App. 2025)

(table), and Webster v. State, [Ms. CR-2023-0721, Mar. 28, 2025] ___ So.

3d ___ (Ala. Crim. App. 2025)—that, he says, show that his death

sentence is "disproportionate in comparison to recent similar, or even

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more aggravated, cases involving murder of a law enforcement officer."

(Brown's brief, p. 108.) As the State points out in its brief on appeal,

however, neither case Brown cites is like his. For instance, Webster,

unlike Brown, was not even charged with capital murder for killing a

law-enforcement officer while that officer was on duty. See Webster, ___

So. 3d at ___ (noting that Webster was charged with two counts of capital

murder—one count "for killing Tanisha Pughsley while a valid protective

order was in place, in violation of § 13A-5-40(a)(19)," and one count "for

killing Pughsley during a first-degree burglary, a violation of § 13A-5-40(a)(4)").

Crimes bearing far more resemblance to Brown's, however, have

been punished capitally in Alabama. See, e.g., Perez v. State, [Ms. CR2024-0206, May 1, 2026] ___ So. 3d ___, ___ (Ala. Crim. App. 2026);

Woodward v. State, 123 So. 3d 989, 1059 (Ala. Crim. App. 2011); Centobie

v. State, 861 So. 2d 1111, 1144 (Ala. Crim. App. 2001); and Johnson v.

State, 823 So. 2d 1, 56-57 (Ala. Crim. App. 2001) (collecting cases). Thus,

Brown's death sentence in this case is not disproportionate to the

sentence imposed on defendants committing similar offenses.

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XVI. Brown's death sentence does not violate Ramos.20

Brown, relying on Ramos v. Louisiana, 590 U.S. 83 (2020), argues

that sentencing him "to death based on a non-unanimous jury verdict

violates state and federal law." (Brown's brief, p. 109.) According to

Brown, "Alabama's death penalty statute, which allows for nonunanimous death verdicts, Ala. Code § 13A-5-46(f) (2002), can no longer

stand in light of Ramos." (Brown's brief, pp. 109-10.) Brown's argument

lacks merit.21

"The United States Supreme Court in Ramos v.

Louisiana considered a Louisiana law that allowed for a

verdict of guilt without a unanimous finding. Ramos had been

convicted of second-degree murder based on a verdict where

two jurors had voted not guilty. The Court held that, under

the Sixth Amendment to the United States Constitution, '[a]

jury must reach a unanimous verdict in order to convict.' 590

U.S. at 90, 140 S. Ct. at 1395. The Court further held:

" 'There can be no question either that the Sixth

Amendment's unanimity requirement applies to

state and federal criminal trials equally. This

Court has long explained that the Sixth

Amendment right to a jury trial is "fundamental to

the American scheme of justice" and incorporated

20Ramos v. Louisiana, 590 U.S. 83 (2020).

21After the penalty phase of his trial, Brown filed a "Motion to

Prohibit Death Penalty in Absence of Unanimous Jury Verdict," in which

Brown raised the claim he now raises on appeal. (C. 106.) Thus, Brown's

argument is preserved for appellate review.

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against the States under the Fourteenth

Amendment. This Court has long explained, too,

that incorporated provisions of the Bill of Rights

bear the same content when asserted against

States as they do when asserted against the

federal government. So if the Sixth Amendment's

right to a jury trial requires a unanimous verdict

to support a conviction in federal court, it requires

no less in state court.'

"Ramos, 590 U.S. at 93, 140 S. Ct. at 1397 (footnotes omitted).

The issue in Ramos was whether a jury could convict a

defendant of a crime with a nonunanimous verdict, not

whether a jury could sentence a defendant with a

nonunanimous verdict. Indeed, the Court recognized in

Ramos that 'only two States are potentially affected by our

judgment,' specifically Louisiana and Oregon, because those

were the only two states that permitted a conviction with a

nonunanimous jury verdict. 590 U.S. at 108, 140 S. Ct. at

1406.

"As the United States Court of Appeals for the Fifth

Circuit has noted:

" 'The Supreme Court recently held "the Sixth

Amendment's unanimity requirement applies to

state and federal criminal trials equally." Ramos

v. Louisiana, 590 U.S. 83, 140 S. Ct. 1390, 1397,

206 L. Ed. 2d 583 (2020). But "the Sixth

Amendment's right to a jury trial requires a

unanimous verdict to support a conviction," not a

sentence. Id. (emphasis added). In other words, a

jury must be unanimous on the factfinding

underlying a sentence, but not on the sentence

actually imposed. See Ring v. Arizona, 536 U.S.

584, 609, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002)

(finding a jury vote required for the "factfinding

necessary" for a sentence but not the sentence

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itself). Here, Ruiz's jury was unanimous on the

factfinding underlying his conviction and

sentence, including the special fact issues at the

sentencing phase. Because Ruiz's conviction meets

the Sixth Amendment's unanimity requirement,

Ramos is of no moment.'

"Ruiz v. Davis, 819 F. App'x 238, 246 n.9 (5th Cir. 2020) (not

selected for publication in the Federal Reporter). Alabama's

capital statute requires the jury to unanimously find the

existence of an aggravating circumstance before a capital

defendant is eligible for the death penalty. In other words,

jury unanimity on the factfinding underlying a death sentence

is required, which complies with Ring v. Arizona, 536 U.S.

584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), and its progeny.

Jury unanimity as to the sentence actually imposed is not

required."

Iervolino, 402 So. 3d at 894-95.

Here, Brown's jury unanimously found him guilty of capital murder

for killing a law-enforcement officer and thus unanimously found an

aggravating circumstance to exist beyond a reasonable doubt, which

complies with Ring v. Arizona, 536 U.S. 584 (2002), and its progeny. The

jury's 10-to-2 verdict sentencing Brown to death after unanimously

finding an aggravating circumstance to exist beyond a reasonable doubt

does not violate Ramos.

XVII. The jury never asked the trial court a question about a hung jury,

and thus the trial court did not fail to respond to a jury question.

Brown contends that the trial court failed to address "the jury's

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inquiry regarding a hung jury" and, instead, "simply sent the jurors home

for the day." (Brown's brief, p. 113.) Specifically, Brown asserts that

"the jury indicated that 'it may have a question as it relates

to a hung jury.' (R. 1854.) That inquiry was relayed to the trial

court. (Id.) Instead of conducting any inquiry or providing the

jury with any instructions regarding a hung jury or continued

deliberations, the trial court simply sent the jurors home for

the day. (R. 1854-56.) The jury's inquiry regarding a hung jury

was never addressed."

(Brown's brief, p. 113.) Brown's argument misrepresents what occurred

during his trial.

During the guilt-phase jury deliberations, the following occurred:

"The Court: All right. It's a little bit before 4:00 p.m.

Today's date, Monday, October the 30th. Our jury started

deliberating—and let me make sure. Let's get our alternates

out of the courtroom, please.

"(Whereupon the alternates exited the courtroom after which

the following occurred.)

"The Court: We may need to bring them in, depending

on where we go here but ….

"All right. Our jury's been deliberating. They showed up

here at 10:00, deliberated until 11:30, 11:45, broke for lunch,

came back, and have been deliberating since 1:00.

"They just notified my law clerk that they want to break

for the day, and this was about 15, 20 minutes ago. And said

that they may have a question as it relates to a hung jury. But

that—[my law clerk] told them to reduce that to writing, if

that was a question of theirs. And when they hit the chime

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again they basically just said that they wanted to break for

the day. Okay.

"And so I wanted to—because of the nature of the case,

how long this has been going on, I thought it was a good time

to get the lawyers involved here, touch base with y'all, feel you

out, see where—what your thoughts, suggestions are, where

we go from here. Of course I haven't given an Allen charge at

this time. But, of course, that's on the radar.

"But let me hear from the State first.

"[Prosecutor]: Your Honor, the State is of the opinion as

long as they are working we're happy to let them keep

working.

"[Brown's counsel]: Judge, are you asking me about the

break for the day or?

"The Court: Well, just because we had the question

about—even though it wasn't reduced to writing, it may be on

the radar, a concern of a hung jury, whether y'all wanted me

to drill down further on that to feel them out if there is

movement still—still ongoing, you know, discussions,

deliberations, or how entrenched it was. Or, if you want to just

let it ride, then I'm okay with that. I just—I just wanted to

check y'all's pulse before I did anything.

"[Brown's counsel]: Judge, I just see it as them being

conscientious and doing what you've asked them to do. They

set their own schedule. If they want to break, I imagine they

think that may help them in some way. It's okay with us.

"The Court: Okay.

"State in agreement?

"[Prosecutor]: Yes, Judge.

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"The Court: All right. Y'all feel like there's anything I

need to say to them at this point or just have a good—

"[Brown's counsel]: Not at this point, Your Honor, no.

"[Prosecutor]: Same here, Judge.

"The Court: Well, tell them to enjoy their evening and

let's go ahead and vacate.

"Thank you.

"[Prosecutor]: Thank you, Your Honor.

"(Adjourned at 4:00 p.m.)"

(R. 1854-56.) The next morning, the jury returned to continue its

deliberations and, at 9:37 a.m., rendered a unanimous guilty verdict. (R.

1858.)

Although the jury may have had a question about a hung jury, it

was told to reduce any question it had to writing. But the jury never did

so. Instead, the jury asked the trial court to break for the day. It then

returned the following morning and quickly rendered a verdict.

In short, the record on appeal shows that the jury never asked the

trial court a question about a hung jury. Thus, contrary to Brown's

argument on appeal, the trial court did not fail to address a question

about a hung jury.

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Even so, assuming that the jury did have a question about a hung

jury that the trial court failed to address, error, if any, was invited by

Brown because he agreed with the trial court's assessment of how to

proceed with the jury after it suggested that it "may" have a question

about a hung jury.

" ' "Under the doctrine of invited error, a

defendant cannot by his own voluntary conduct

invite error and then seek to profit thereby."

Phillips v. State, 527 So. 2d 154, 156 (Ala. 1988).

"The doctrine of invited error applies to deathpenalty cases and operates to waive any error

unless the error rises to the level of plain error."

Snyder v. State, 893 So. 2d 488, 518 (Ala. Crim.

App. 2003).'

"Robitaille v. State, 971 So. 2d 43, 59 (Ala. Crim. App. 2005).

' "It would be a sad commentary upon the vitality of the

judicial process if an accused could render it impotent by his

own choice." ' Murrell v. State, 377 So. 2d 1102, 1105 (Ala.

Crim. App. 1979), quoting Aldridge v. State, 278 Ala. 470, 474,

179 So. 2d 51, 54 (1965)."

Gobble v. State, 104 So. 3d 920, 969 (Ala. Crim. App. 2010). Here, we

cannot say that any error, much less plain error, occurred.

XVIII. Under § 13A-5-53, Ala. Code 1975, Brown's capital-murder

conviction and death sentence were proper.

Under § 13A-5-53, Ala. Code 1975, this Court must address the

propriety of Brown's capital-murder conviction and death sentence by

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determining (1) "whether any error adversely affecting the rights of the

defendant was made in the sentence proceedings"; (2) "whether the trial

court's findings concerning the aggravating and mitigating

circumstances were supported by the evidence"; and (3) "whether death

was the proper sentence in the case."

To start, we have reviewed the record and find that there was no

error that adversely affected Brown's rights during the penalty phase of

his trial.

Next, although § 13A-5-53(a) requires this Court to determine

"whether the trial court's findings concerning the aggravating and

mitigating circumstances were supported by the evidence," this Court

explained in Iervolino that,

"[w]hen the legislature removed the final sentencing decision

from the trial court and placed it in the hands of the jury by

Act No. 2017-131, Ala. Acts 2017, it amended § 13A-5-47, Ala.

Code 1975, to remove subsection (d), which required the trial

court to make specific findings of fact regarding the existence

or nonexistence of each aggravating circumstance in § 13A-5-49, Ala. Code 1975, each mitigating circumstance in § 13A-5-51, Ala. Code 1975, and any additional mitigating

circumstances offered by the defendant pursuant to § 13A-5-52, Ala. Code 1975. Now, § 13A-5-47(b), Ala. Code 1975,

requires the trial court to make specific findings of fact

regarding the existence or nonexistence of aggravating

circumstances and mitigating circumstances only in cases in

which jury sentencing is waived. Because jury sentencing was

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not waived in this case, the trial court was not required to

make specific findings of fact regarding aggravating

circumstances and mitigating circumstances. In addition,

Alabama's capital-sentencing statutes do not require the jury

to render verdicts on the mitigating circumstances it found to

exist .... Because we do not know which mitigating

circumstances, if any, the jury found to exist, this Court

cannot determine whether those circumstances were

supported by the evidence."

402 So. 3d at 896.

Here, Brown did not waive jury sentencing. The trial court thus was

not required to make specific findings of fact regarding aggravating

circumstances and mitigating circumstances. And because the jury was

not required to render verdicts on the mitigating circumstances it found

to exist, this Court cannot determine whether those circumstances were

supported by the evidence. The jury did, however, find one statutory

aggravating circumstance to exist during the guilt phase of Brown's trial,

see § 13A-5-49(13), Ala. Code 1975, and that aggravating circumstance is

supported by the evidence.

Finally, this Court must determine "whether death was the proper

sentence" in this case, § 13A-5-53(a), "and § 13A-5-53(b) sets out three

questions this Court must answer to make that determination."

Iervolino, 402 So. 3d at 897.

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First, § 13A-5-53(b)(1) requires this Court to determine "[w]hether

the sentence of death was imposed under the influence of passion,

prejudice, or any other arbitrary factor." After careful review of the

record, we find that Brown's sentence was not imposed under the

influence of passion, prejudice, or any other arbitrary factor.

Second, § 13A-5-53(b)(2) requires this Court to determine

"[w]hether an independent weighing of the aggravating and mitigating

circumstances at the appellate level indicates that death was the proper

sentence." But "[t]his section has been interpreted as requiring this Court

to ' "reweigh the aggravating and mitigating circumstances as found by

the trial court." ' " Iervolino, 402 So. 3d at 897 (quoting Ex parte Lewis,

24 So. 3d 540, 546 (Ala. 2009), quoting in turn Roberts v. State, 735 So.

2d 1244, 1269 (Ala. Crim. App. 1997)) (emphasis added in Iervolino).

Because the trial court was not required to make specific findings of fact

as to the existence or nonexistence of aggravating and mitigating

circumstances here, and because Alabama's capital-sentencing statutes

do not require the jury to render verdicts concerning mitigating

circumstances, this Court cannot determine which mitigating

circumstances, if any, were found to exist in this case. "Without knowing

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which mitigating circumstances were found by the jury to exist, it is

impossible for this Court to perform this part of our mandatory review of

the death sentence in this case." Iervolino, 402 So. 3d at 897.

Third, § 13A-5-53(b)(3) requires this Court to determine "[w]hether

the sentence of death is excessive or disproportionate to the penalty

imposed in similar cases, considering both the crime and the defendant."

It is not. As explained above, Brown was convicted of capital murder for

intentionally killing Agent Clardy, a police officer, while Agent Clardy

was on duty, see § 13A-5-40(a)(5), Ala. Code 1975. Similar crimes have

been punished capitally in Alabama. See Perez, ___ So. 3d at ___;

Woodward, 123 So. 3d at 1059; Centobie, 861 So. 2d at 1144; and

Johnson, 823 So. 2d at 56-57.

After thoroughly reviewing the record, we conclude that death was

the proper sentence in this case.

Finally, although we are no longer required to do so by Rule 45A,

Ala. R. App. P., we have reviewed the record and have found no plain

error that may have adversely affected Brown's substantial rights.

CONCLUSION

The trial court’s judgment is affirmed.

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AFFIRMED.

Kellum, J., concurs. Cole, J., concurs in part and concurs in the

result, with opinion. Anderson, J., concurs in part and concurs in the

result, with opinion. Windom, P.J., concurs in the result.

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COLE, Judge, concurring in part and concurring in the result.

I concur in all parts of the main opinion, except for Parts I, II, and

V. As to Parts I, II, and V of the main opinion, I concur in the result.

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ANDERSON, Judge, concurring in part and concurring in the result.

I concur in all parts of the Court's opinion, except for Parts I and

III; as to Parts I and III, I concur in the result.

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