WINDOM, Judge.

Brandon Deon Mitchell appeals his four capital-murder convictions and his sentences of death. Mitchell was convicted of three counts of capital murder for taking the lives of Kim Olney, John Aylesworth, and Dorothy Smith during the course of a robbery. § 13A-5-40(a)(2), Ala.Code 1975. He was also convicted of an additional count of capital murder because two or more people were murdered by one act or pursuant to one scheme or course of conduct. § 13A-5-40(a)(10), Ala.Code 1975. After the penalty phase of Mitchell's trial, the jury recommended, by a vote of 10-2, that he be sentenced to life in prison without the possibility of parole. The circuit court then ordered and received a presentence report. After holding a sentencing hearing, the circuit court overrode the jury's recommendation and sentenced Mitchell to death on all four counts.

At trial, the State presented evidence indicating that on November 24, 2005, Thanksgiving Day, Mitchell went to Jonathan Floyd's apartment where Roderick Byrd and his sister, Hellena, were staying. Mitchell entered the apartment to discuss his plan to rob the Airport Inn in Birmingham (hereinafter "the Inn") with Byrd. After Byrd agreed to help with the robbery, Mitchell asked Floyd to take them to the Inn. Floyd drove Mitchell and Byrd to the Inn around 2:50 p.m. When Floyd let them out of the car, Mitchell was wearing a white sweatshirt and jeans and Byrd was dressed in all black. After letting Mitchell and Byrd out of the car, Floyd left to visit his "god-sister."

Mitchell and Byrd entered the Inn where they encountered Kim Olney, the desk clerk, and John Aylesworth, a truck driver who was waiting in the lobby for a ride to Texas where he lived. Both Mitchell and Byrd were armed with pistols. Mitchell immediately focused his attention on Olney, who was behind the front desk, while Byrd used his gun to subdue Aylesworth, a former Marine. At some point during the robbery, Dorothy Smith, who was traveling back to New York after visiting her son in Alabama for Thanksgiving, entered the hotel lobby and was also held at gunpoint. During the robbery, Mitchell took money from a cash drawer and unsuccessfully attempted to open a safe located behind the front desk. Mitchell and Byrd also took various items from the three victims, including duffel bags, clothing, and money, before shooting each of them behind the ear at close range with .38-caliber pistols.

A video from the lobby security camera shows Mitchell shooting Olney twice, once in the arm and once in the head. Forensic testing of the projectiles recovered from the scene and from the victims' bodies established that Olney and Smith were shot with the same .38-caliber pistol and that Aylesworth was shot with a different.38-caliber pistol. The Jefferson County Medical Examiner testified that all three victims died as a result of a gunshot wound to the head.

After the robbery, Mitchell and Byrd fled the scene on foot. They traveled around the Inn and jumped over a fence located behind the Inn, which separated the Inn from a neighborhood. Clifford James and James Jackson, who were sitting on the back porch of one of the houses behind the Inn, saw Mitchell and Byrd, who were carrying several bags, climb the fence and walk off in different directions. James and Jackson were not able to positively identify the individuals they saw climbing the fence, but they testified that one of the men was wearing all black and was carrying a book bag and the other man had lighter skin and was wearing light-colored clothing.

After Mitchell and Byrd separated, Mitchell telephoned Floyd and asked Floyd to pick him up on First Avenue. Floyd met Mitchell on First Avenue and took Mitchell to Mitchell's "god-sister's" house, which was three blocks from Floyd's apartment. During the ride, Mitchell, who was carrying a blue tote bag, told Floyd that he had "just hit a lick." (R. 891.) After dropping Mitchell off, Floyd went back to look for Byrd. Floyd later returned to his apartment where he found Byrd and Mitchell. Byrd appeared nervous and was shaking and crying. At some point, Mitchell removed his clothing and placed the clothing in the dumpster behind Floyd's apartment. Mitchell later told Floyd that he had killed three people by shooting them behind the ear.

Later that evening, Mitchell contacted his friend Warika Gunn and asked her for a ride to the bus station in Huntsville. Gunn, who had seen Mitchell's photograph on the news in connection with the shootings at the Inn, telephoned "Crimestoppers," an anonymous tip hotline. Mitchell later admitted that he was wanted by the police in connection with a robbery. While in contact with the authorities, Gunn agreed to meet Mitchell in Fairfield at 10:00 p.m. However, Mitchell was subsequently arrested before he could meet Gunn at the arranged location.

At trial, Robert Baxton, a friend of Mitchell's, and James Floyd III, Jonathan Floyd's nephew, testified that they had recognized Mitchell's photograph on a news report and that Mitchell had told them that he had been involved in the hotel shootings.

Standard of Review

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

(Emphasis added.)

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

11 So.3d at 938. "The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal." Hall v. State, 820 So.2d 113, 121 (Ala.Crim. App.1999). Although Mitchell's failure to object at trial will not bar this Court from reviewing any issue, it will weigh against any claim of prejudice. See Dill v. State, 600 So.2d 343 (Ala.Crim.App.1991).

I.

Mitchell first argues that numerous instances of prosecutorial misconduct occurred during the State's guilt-phase closing arguments and that he was thereby deprived of a fair trial. Specifically, he contends that the prosecutor, during the guilt-phase closing arguments, improperly commented on Mitchell's failure to testify, injected victim-impact evidence, and invoked religion. (Mitchell's brief, at 7.) Mitchell, however, failed to first present these arguments to the circuit court. Therefore, this Court will review them for plain error. See Rule 45A, Ala. R.App. P.

"In judging a prosecutor's closing argument, the standard is whether the argument `"`so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"'" Sneed v. State, 1 So.3d 104, 138 (Ala.Crim.App.2007) (quoting Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986), quoting in turn Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974)). In Ex parte Windsor, the Alabama Supreme Court held:

683 So.2d 1042, 1061 (Ala.1996) (quoting Kuenzel v. State, 577 So.2d 474, 489 (Ala. Crim.App.1990)).

A.

Mitchell initially argues that the prosecutor repeatedly commented on his failure to testify during the guilt phase. During the State's rebuttal to the defense's closing arguments, the prosecutor made the following statement: "No gun. We don't have a gun. Where is the gun? I don't know. He knows. He knows were the gun is." (R. 1014.) According to Mitchell, the prosecutor's comment referenced Mitchell's failure to testify. Mitchell also asserts that the prosecutor commented on his failure to testify when, after playing a recording of a conversation Mitchell had had on the jail telephone system, the prosecutor stated that "[h]e just told you who was the driver." (Mitchell's brief, at 11.) Finally, Mitchell argues that the prosecutor commented on his failure to testify when he stated that "[t]here's some things that [the defense counsel] can't even try to explain to you and try to come up with a reason for it." (Mitchell's brief, at 10.) Mitchell did not object to these comments; therefore, they are reviewed for plain error only. Rule 45A, Ala. R.App. P.

In Ex parte Brooks, the Alabama Supreme Court explained:

Gavin v. State, 891 So.2d 907, 981 (Ala. Crim.App.2003) (quoting Ex parte Brooks, 695 So.2d 184, 188).

To the extent Mitchell asserts that the prosecutor commented on his failure to testify when the prosecutor stated that Mitchell knew where the murder weapon was located, this argument is without merit. Contrary to Mitchell's assertion, the prosecutor's comments were not made in an attempt to draw attention to the fact that Mitchell had not testified. Instead, the prosecutor was simply responding to defense counsel's argument that the State had failed to meet its burden of proof because it had not produced the murder weapons. Cf. Ballard v. State, 767 So.2d 1123, 1135 (Ala.Crim.App.1999) ("A prosecutor has a right to reply in kind to the argument of defense counsel. This `reply-in-kind' doctrine is based on fundamental fairness."); Harris v. State, 2 So.3d 880, 920 (Ala.Crim.App.2007) (same); Brown v. State, 11 So.3d 866, 903 (Ala.Crim.App. 2007) ("Where a matter has been gone into by one party to a cause, the other party has the right to explain away anything, if he can, that may have been brought out to his detriment.") (citations and quotations omitted). Reviewed in context, this statement was "not manifestly intended or was of such a character that a jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." Gavin, 891 So.2d at 981. On the contrary, this comment simply relayed the message that law enforcement had not recovered the murder weapons because Mitchell had disposed of them. Consequently, the prosecutor did not improperly comment on Mitchell's failure to testify.

Similarly, the prosecutor's statement that "[t]here's some things that [the defense counsel] can't even try to explain to you and try to come up with a reason for it," was not a comment on Mitchell's failure to testify. (Mitchell's brief, at 10.) It is well settled that "it is not error `to comment on the failure of the defense, as opposed to the defendant, to counter or explain the evidence.'" United States v. Griggs, 735 F.2d 1318, 1321 (11th Cir.1984) (quoting United States v. Bright, 630 F.2d 804, 825 (5th Cir.1980)) (emphasis in original). Here, the prosecutor was merely commenting, in rebuttal, that defense counsel had failed to explain away evidence that clearly implicated Mitchell in the crime. See Belisle v. State, 11 So.3d 256, 305 (Ala.Crim.App.2007) (holding that a prosecutor may argue that the State's evidence is uncontroverted). Because the comment was directed at defense counsel's failure during closing arguments to address several key pieces of evidence that tended to suggest that their client was guilty, it was not a reference to Mitchell's failure to testify.

Finally, the prosecutor's comment that "[Mitchell] just told you who was the driver," was not a comment on his failure to testify. (Mitchell's brief, at 11.) During his closing argument, the prosecutor played a recording of Mitchell that was recorded while Mitchell was in jail, and then stated, "[Mitchell] just told you who was the driver." (Mitchell's brief, at 11.) The record establishes that the prosecutor was commenting on Mitchell's recorded conversation, not on his failure to testify. Therefore, this argument is without merit.

B.

Mitchell next argues that during the guilt phase of the trial, the prosecutor improperly argued victim-impact evidence and improperly compared the victims' rights to Mitchell's rights. Mitchell did not object to the prosecutor's comments at trial; therefore, this issue is reviewed for plain error only. Rule 45A, Ala. R.App. P.

During his closing arguments, the prosecutor made the following arguments:

(R. 1011-12, 1018-19.)

In Ex parte Rieber, the Alabama Supreme Court addressed a similar situation holding:

663 So.2d 999, 1006 (Ala.1995) (paraphrasing a portion of Justice Souter's opinion concurring in the judgment in Payne v. Tennessee, 501 U.S. 808, 838, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991)).

In Frazier v. State, 758 So.2d 577, 602-04 (Ala.Crim.App.1999), this Court addressed an argument nearly identical to Mitchell's and held that the prosecutor's comments did not constitute plain error. In Frazier, the prosecutor made the following statements in argument: 1) the murders occurred during the week of Thanksgiving; 2) the 40 year-old victim was in the prime of her life; 3) the victim had successfully raised 2 daughters; 4) the victim was about to become a grandmother for the first time; and 5) the victim would never get to see her grandbaby because the defendant "got tired of listening to [her] beg." Id. This Court determined that the prosecutor's comments did not rise to the level of plain error because there was overwhelming evidence of guilt and because the jurors were instructed that the arguments of counsel were not to be considered as evidence, their verdict must be based strictly on the evidence, and they could not find the appellant guilty unless the prosecution proved its case beyond a reasonable doubt. Id. at 604.

Similarly, the State presented overwhelming evidence of Mitchell's guilt, including a video showing Mitchell murdering Olney. The circuit court instructed the jurors that in "deciding the guilt or innocence of the defendant, you are confined to the evidence" and should not consider "prejudice, sympathy, compassion, or any other emotion." (R. 1029.) See Frazier, 758 So.2d at 604 ("The jurors were instructed several times that the arguments of counsel were not to be considered as evidence. In addition, they were instructed that they should base their verdict strictly on the evidence, and that they could not find the appellant guilty unless the prosecution proved its case beyond a reasonable doubt. `The jury is presumed to follow the instructions given by the trial court.'" (quoting Hutcherson v. State, 727 So.2d 846, 854 (Ala.Crim.App.1997), citing in turn Taylor v. State, 666 So.2d 36 (Ala. Crim.App.), opinion extended on remand, 666 So.2d 71 (Ala.Crim.App.1994))). Based on these circumstances, any error in the prosecutor's argument did not rise to the level of plain error. See Ex parte Rieber, 663 So.2d at 1006; Frazier, 758 So.2d at 602-04. Therefore, this issue does not entitle Mitchell to any relief.

C.

Finally, Mitchell contends that the prosecutor "improperly wove a religious theme into its Thanksgiving argument." (Mitchell's brief, at 16.) During the final portion of the State's guilt-phase closing arguments, the prosecutor stated: "On the very day that should be a day that we should be giving thanks for God's bountiful blessings to all of us, that families ought to be together, he wants to do a lick." (R. 998-99.) According to Mitchell, this comment improperly invoked religion in violation of the First, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. Mitchell did not object to this comment; therefore, this Court will review it for plain error only. Rule 45A, Ala. R.App. P.

Not all references in a criminal prosecution to God, religion, or the Bible are impermissible. See Ivery v. State, 686 So.2d 495, 511 (Ala.Crim.App.1996) (holding that the prosecutor's reference to God's law was not improper); Poole v. State, 292 Ala. 590, 591, 298 So.2d 89, 90 (Ala.1974) (holding that the prosecutor's comment—"I want you to think about this and use your common sense. Judas was a man of good reputation immediately before betraying Christ"—was not improper). "Argument of counsel should not be so restricted as to prevent reference, by way of illustration, to historical facts and public characters, or to principles of divine law or biblical teachings." Wright v. State, 279 Ala. 543, 550-551, 188 So.2d 272, 279 (Ala. 1966) (citation omitted). Generally, a prosecutor's reference to religion, God, or the Bible is improper if that reference urges the jury to abandon its duty to follow the law or to decide the case on an improper basis. Compare Williams v. State, 710 So.2d 1276, 1301 (Ala.Crim.App. 1996) (holding that references to religion that illustrate a point as opposed to urging the jury to abandon its duty to follow the law are not improper), with Romine v. Head, 253 F.3d 1349, 1358 (11th Cir.2001) (holding that the "prosecutor [improperly] argued Biblical law to the jury as a basis for urging it to eschew any consideration of mercy and sentence Romine to death"). On the other hand, a prosecutor's reference to God or Biblical figures that is merely descriptive or illustrative is not improper. See Poole, 292 Ala. at 591, 298 So.2d at 90 (holding that the prosecutor's comment—"I want you to think about this and use your common sense. Judas was a man of good reputation immediately before betraying Christ,"—was not improper); Wright v. State, 279 Ala. at 550-551, 188 So.2d at 279; Williams v. State, 710 So.2d at 1301.

Here, the prosecutor's reference to "a day that we should be giving thanks for God's bountiful blessings" merely described the day the murders occurred, Thanksgiving. Contrary to Mitchell's assertion, the prosecutor's comment was isolated, and it did not urge the jury to "abandon its duty to follow the law." Williams, 710 So.2d at 1301. Nor did the State's reference to Thanksgiving as "a day that we should be giving thanks for God's bountiful blessings" intimate to the jury that "the Bible ... command[s] that [Mitchell] be put to death." (Mitchell's brief, at 16.) Instead, the prosecutor's reference merely illustrated the day the murders occurred and thus was not improper. Wright, 279 Ala. at 550-551, 188 So.2d at 279.

Moreover, even if the prosecutor's comment was improper, it would not rise to the level of plain error. "Isolated, or ambiguous or unintentional remarks must be viewed with lenity, and a brief remark is less likely to cause prejudice." Romine, 253 F.3d at 1369 (citations and quotations omitted). See also Johnson v. State, [Ms. CR-99-1349, Oct. 2, 2009] ____ So.3d ____, ____ (Ala.Crim.App.2005) (opinion on remand from the Alabama Supreme Court) (recognizing that an isolated, improper comment is less likely to be prejudicial). Here, the prosecutor's comment was isolated and thus less likely to result in prejudice. Further, as described above, the State presented overwhelming evidence of Mitchell's guilt, and the circuit court properly instructed the jurors that in "deciding the guilt or innocence of the defendant, you are confined to the evidence" and should not consider "prejudice, sympathy, compassion, or any other emotion." (R. 1029.) With overwhelming evidence of guilt and proper instructions from the court, the prosecutor's comment, "when viewed in the context of the entire closing argument and in the context of the entire trial, [did not] undermine[] the fundamental fairness of the trial," Ex parte Parker, 610 So.2d 1181, 1183 (Ala.1992), and therefore did not rise to the level of plain error. Rule 45A, Ala. R.App. P.

II.

Mitchell next argues that the circuit court erroneously failed to instruct the jury on lesser-included offenses. Specifically, he contends that because the jury was not afforded the option of convicting him on a lesser-included offense, the imposition of the death penalty in this case is both arbitrary and capricious. Mitchell did not raise this argument to the circuit court; therefore, this Court will review it for plain error only. See Rule 45A, Ala. R.App. P.

Relying on Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), Mitchell argues that the failure to instruct the jury on lesser-included offenses rendered his death sentence unconstitutional because it denied the jury a third option, i.e., convicting him of a non-capital offense. Rejecting a similar argument in Maples v. Allen, 586 F.3d 879, 893-94 (11th Cir. 2009), the United States Court of Appeals for the Eleventh Circuit held:

(emphasis added). Similarly, this Court has held that "`[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense.' Alabama Code 1975, § 13A-1-9(b) (emphasis added)." Bell v. State, 518 So.2d 840, 842 (Ala.Crim.App. 1987); see also Ex parte Myers, 699 So.2d 1285, 1291 (Ala.1997) ("A charge on a lesser, non-capital offense is required only when there is a basis in the evidence which provides a reasonable theory supportive of the charge.") (citations and internal quotations omitted).

Based on the evidence presented at trial and on Mitchell's failure to offer any theories in support of a charge on a lesser-included offense, there was no rational basis to support such an instruction. See Welch v. State, 630 So.2d 145, 146 (Ala. Crim.App.1993) ("`When the evidence clearly shows that the appellant is either guilty of the offense charged, or innocent, the charge on a lesser-included offense is not necessary or proper.'" (quoting Hollins v. State, 415 So.2d 1249, 1253 (Ala. Crim.App.1982))). The evidence established that three murders were committed during the course of a robbery, and there was no evidence to indicate otherwise. Therefore, the circuit court properly refused to instruct the jury on lesser-included offenses.

III.

Mitchell next argues that the circuit court erroneously found that the murders were especially heinous, atrocious, or cruel when compared to other capital murders. See § 13A-5-49(8), Ala.Code 1975. Specifically, Mitchell argues that the State presented insufficient evidence to establish that the triple murder was especially heinous, atrocious, or cruel. Mitchell further argues that a comparative analysis of the facts of his crime with those in other cases establishes that the especially heinous, atrocious, or cruel aggravating circumstance is inapplicable.1 This Court disagrees.

"In deciding whether there is sufficient evidence to support the verdict of the jury and the judgment of the trial court, the evidence must be reviewed in the light most favorable to the prosecution." Breckenridge v. State, 628 So.2d 1012, 1018 (Ala.Crim.App.1993) (citing Cumbo v. State, 368 So.2d 871 (Ala.Crim. App.1978)). The especially heinous, atrocious, or cruel aggravating circumstance "appl[ies] to only those conscienceless or pitiless homicides which are unnecessarily torturous to the victim." Ex parte Kyzer, 399 So.2d 330, 334 (Ala.1981) (citing State v. Dixon, 283 So.2d 1 (Fla.1973)).

Saunders v. State, 10 So.3d 53, 108 (Ala. Crim.App.2007) (quoting Brooks v. State, 973 So.2d 380, 417-18 (Ala.Crim.App.2007), citing in turn Norris v. State, 793 So.2d 847 (Ala.Crim.App.1999)).

Under the first factor, "the time between at least some of the injurious acts must be an appreciable lapse of time, sufficient enough to cause prolonged suffering, and (2) the victim must be conscious or aware when at least some of the additional or repeated violence is inflicted." Norris, 793 So.2d at 854. This Court has held that "[w]hen a defendant deliberately shoots a victim in the head in a calculated fashion, after the victim has already been rendered helpless by [prior] gunshots ..., such `extremely wicked or shockingly evil' action may be characterized as especially heinous, atrocious, or cruel." Hardy v. State, 804 So.2d 247, 288 (Ala.Crim.App.1999) (citations and quotations omitted).

Further, "[p]sychological torture [under the third factor] can be inflicted by leaving the victim in his last moments aware of, but helpless to prevent, impending death." Norris, 793 So.2d at 859-60 (citations and quotations omitted). "[T]he factor of psychological torture must have been present for an appreciable lapse of time, sufficient enough to have caused prolonged or appreciable suffering, i.e., the period of suffering must be prolonged enough to separate the crime from `ordinary' murders for which the death penalty is not appropriate." Id. at 861 (holding that the murder of three individuals was not psychologically torturous because the three victims were shot in rapid succession; the "first three shots were sudden, without any warning or precipitating event[, and] [t]here was nothing preceding the first murder that would have evoked in the victims intense apprehension, fear, or anticipation of their deaths").

In finding that the especially heinous, atrocious, or cruel aggravating circumstance was applicable here, the circuit court stated:

(C.R. 24.) The circuit court's findings are supported by the record and support its finding that the especially heinous, atrocious, or cruel aggravating circumstance applied to this crime.

The record establishes that at least one victim suffered psychological torture. Olney and Smith were both shot behind the ear at close range with the same weapon. Olney and Smith were in different areas of the Inn's lobby when they were shot. Specifically, Olney was on the floor in the clerk's area behind the counter and Smith was in the visitor's area. Thus, the manner in which Olney and Smith were murdered indicates that Mitchell had to place the pistol behind one of the victim's ears and pull the trigger. After murdering that victim, Mitchell had to travel to a different area of the Inn's lobby, hold the gun to the next victim's head, and pull the trigger. "These murders were not accomplished in a rapid-fire manner; there was sufficient time between the ... murders for the next victim to be placed in significant fear for his or her life...." Taylor v. State, 808 So.2d 1148, 1169 (Ala.Crim.App. 2000). Therefore, the circuit court did not abuse its discretion in finding that at least one of the victims suffered psychological torture.

Moreover, the record establishes that while Olney lay on the floor, Mitchell first shot her in the arm, rendering her helpless. After being shot in the arm, Olney, obviously in pain and fearing for her life, continued to move. Some time thereafter, Mitchell placed the pistol behind Olney's ear and shot her in the head. "When [Mitchell] deliberately sho[t] [Olney] in the head in a calculated fashion, after [she] ha[d] already been rendered helpless by [prior] gunshots ..., such `extremely wicked or shockingly evil' action may be characterized as especially heinous, atrocious, or cruel." Hardy, 804 So.2d at 288 (citations and internal quotations omitted).

Because the State presented evidence indicating that appreciable time lapsed between the fatal shootings of at least two of the three victims and appreciable time lapsed between Mitchell's first shot wounding Olney and the second, fatal shot, the State met its burden of proof, and the circuit court correctly found that the offenses were especially heinous, atrocious, or cruel. See Ex parte Rieber, 663 So.2d at 1003 ("As the Court of Criminal Appeals pointed out, evidence as to the fear experienced by the victim before death is a significant factor in determining the existence of the aggravating circumstance that the murder was especially heinous, atrocious, or cruel."); Hardy, 804 So.2d at 288. Therefore, Mitchell is not entitled to any relief on this issue.

IV.

Mitchell next argues that the circuit court's override of the jury's recommendation of life in prison without the possibility of parole was unconstitutional under the Sixth Amendment pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Mitchell raises several sub-arguments in support of this issue. Because Mitchell failed to present these arguments to the circuit court, this Court will review them for plain error only. See Rule 45A, Ala. R.App. P.

Mitchell first makes a general argument that his death sentence violates Ring. In Ring, the United States Supreme Court applied its earlier holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to death-penalty cases and held that under the Sixth Amendment, capital defendants are "entitled to a jury determination of any fact [other than a prior conviction] on which the legislature conditions an increase in their maximum punishment." Ring, 536 U.S. at 600, 122 S.Ct. 2428. In Ex parte Waldrop, 859 So.2d 1181 (Ala. 2002), the Alabama Supreme Court applied Ring to a similar situation and held:

859 So.2d at 1188.

Like the appellant in Waldrop, Mitchell was convicted of capital offenses that have corresponding aggravating circumstances, i.e., murder committed during the course of a robbery, see §§ 13A-5-40(a)(2), 13A-5-49(4), Ala.Code 1975, and murder of "two or more persons ... by one act or pursuant to one scheme or course of conduct," see §§ 13A-5-40(a)(10), 13A-5-49(9), Ala.Code 1975. Accordingly, the jury's verdict finding Mitchell guilty of murder during the course of a robbery and of murder of two or more persons pursuant to one scheme or course of conduct established that the jury unanimously found that two aggravating circumstances existed.2 Because the jury's guilt-phase verdict established that the jury found a fact necessary to expose Mitchell to a sentence of death, Mitchell's Sixth Amendment right to a jury was not violated.

Mitchell next argues that the United States Supreme Court's holding in Ring was violated because the circuit court made the ultimate determination that the aggravating circumstances outweighed the mitigating circumstances. This argument is also without merit. In Waldrop, the Alabama Supreme Court addressed an identical issue and held:

Waldrop, 859 So.2d at 1190. Because the balance of the aggravating circumstances and the mitigating circumstances, i.e., the sentencing determination itself, is not a fact that was necessary to expose Mitchell to a sentence of death, his death sentence does not violate Ring. Consequently, Mitchell is not entitled to any relief on this issue.

Mitchell next argues that the United States Supreme Court's holding in Ring was violated because the circuit court made findings of fact regarding the existence of aggravating circumstances and because the circuit court found the aggravating circumstance that the murders were especially heinous, atrocious, or cruel as compared to other capital offenses. § 13A-5-49(8), Ala.Code 1975. These arguments are also without merit. In Waldrop, the Alabama Supreme Court rejected a similar argument as follows:

Ex parte Waldrop, 859 So.2d at 1190. See also Scott v. State, [Ms. CR-06-2233, Mar. 26, 2010] ____ So.3d ____, ____ (Ala.Crim. App.2010) (holding that "no error occurred when the trial court found the existence of an aggravating circumstance that was not first submitted to the jury").

Like the appellant in Waldrop, Mitchell became eligible for the death penalty when the jury convicted him of capital offenses that have corresponding aggravating circumstances. Consequently, the circuit court's consideration of additional facts "implicated only in the process of weighing the aggravating and mitigating circumstances" did not violate Ring. Ex parte Hodges, 856 So.2d 936, 944 (Ala.2003).

V.

Mitchell next argues that the circuit court's decision to override the jury's sentencing recommendation violates the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. Mitchell, however, failed to first present this argument to the circuit court. Therefore, this Court will review it for plain error only. See Rule 45A, Ala. R.App. P.

In North Carolina v. Pearce, the Supreme Court of the United States held that the Double Jeopardy Clause of the Fifth Amendment contains three basic protections: "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). See also Schiro v. Farley, 510 U.S. 222, 229, 114 S.Ct. 783, 127 L.Ed.2d 47 (1994) (reaffirming the three protections of the Double Jeopardy Clause). "These protections stem from the underlying premise that a defendant should not be twice tried or punished for the same offense." Id. (citing United States v. Wilson, 420 U.S. 332, 339, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975)). The Alabama Supreme Court has held that the Double Jeopardy Clause of Art. I., § 9, Alabama Constitution of 1901 applies only to the specific protections set forth in Pearce. See Ex parte Wright, 477 So.2d 492, 493 (Ala.1985); Adams v. State, 955 So.2d 1037, 1098 (Ala.Crim.App.2003) (rev'd in part by Ex parte Adams, 955 So.2d 1106 (Ala.2005)).

Under these principles, the State of Alabama's bifurcated sentencing scheme, which vests the ultimate sentencing authority in the judge after the jury has made a sentencing recommendation, does not subject capital defendants to double jeopardy. The jury's sentencing recommendation is not binding on the circuit court and thus does not constitute a judgment. As the Supreme Court of the United States held in Spaziano v. Florida, 468 U.S. 447, 465, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984):

Accordingly, judicial sentencing after the jury has made a nonbinding recommendation does not constitute a "second prosecution for the same offense after acquittal[,] a second prosecution for the same offense after conviction[, or] multiple punishments for the same offense," Pearce, 395 U.S. at 717, 89 S.Ct. 2072, and does not violate the Double Jeopardy Clause of the Fifth Amendment. See Spaziano, 468 U.S. at 465, 104 S.Ct. 3154 (holding that judicial sentencing after a jury recommendation does not violate the Double Jeopardy Clause). Therefore, Mitchell is not entitled to any relief on this issue.

VI.

Mitchell next argues that the circuit court's judicial override of the jury's sentencing recommendation of life in prison without the possibility of parole violated the Alabama Supreme Court's holding in Ex parte Taylor, 808 So.2d 1215, 1219 (Ala.2001), because the circuit court's sentencing order failed to state its specific reasons for the override. Mitchell failed to first present this argument to the circuit court; therefore, this Court will review it for plain error only. See Rule 45A, Ala. R.App. P.

In Ex parte Taylor, the Alabama Supreme Court held:

808 So.2d at 1219 (citing McCausland v. Tide-Mayflower Moving & Storage, 499 So.2d 1378, 1382 (Ala.1986)). The Alabama Supreme Court subsequently revisited the issue in Ex parte Carroll, 852 So.2d 833 (Ala.2002), and added an additional requirement in cases involving the circuit court's override of a jury recommendation. In Carroll, the Alabama Supreme Court held that, in addition to providing the "specific reasons for giving the jury's recommendation the consideration he gave it," Taylor, 808 So.2d at 1219, the trial judge is also required to treat the jury's sentencing recommendation as a mitigating circumstance. Ex parte Carroll, 852 So.2d at 836.

Specifically, the Court stated:

852 So.2d at 836.

In this case, the jury recommended, by a vote of 10-2, that Mitchell be sentenced to life in prison without the possibility of parole. However, in sentencing Mitchell to death, the circuit court concluded that it was "strongly of the opinion" that the jury had incorrectly weighed the aggravating circumstances and the mitigating circumstances. In reaching its conclusion, the circuit court stated:

(C.R. 26.) Further, the circuit court noted that in arriving at its decision, it had,

(C.R. 26.) Because the circuit court clearly set forth its reasons for "giving the jury's recommendation the consideration he gave it," expressly stated that the jury's recommendation "weighted] heavily in favor of the defendant," and gave its reasons for overriding the jury's recommendation, this Court finds that the circuit court satisfied the requirements set forth in Taylor and Carroll. Carroll, 852 So.2d at 836; (C.R. 26-27.) Consequently, Mitchell is not entitled to relief on this issue.

VII.

Mitchell next argues that Alabama's capital-sentencing scheme is unconstitutional because § 13A-5-47(d), Ala. Code 1975 (hereinafter "Alabama's judicial-override provision"), provides no standards for a judge in overriding a jury's recommendation of life in prison without the possibility of parole. Specifically, Mitchell asserts that Alabama's judicial-override provision violates the Eighth and Fourteenth Amendments because it vests the final sentencing authority in the circuit court. Mitchell also contends that Alabama's judicial-override provision is "standardless" and thus violates Ring v. Arizona, 536 U.S. at 619, 122 S.Ct. 2428, and is unconstitutional under Bush v. Gore, 531 U.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000). Mitchell, however, failed to present these arguments to the circuit court; therefore, this Court will review them for plain error only. See Rule 45A, Ala. R.App. P.

Initially, this Court notes that the Constitution of the United States does not prohibit vesting the final sentencing authority in the circuit court. See Spaziano v. Florida, 468 U.S. at 465, 104 S.Ct. 3154. Further, in Harris v. Alabama, the Supreme Court of the United States held that Alabama's sentencing standard, which (at that time) required only that the judge consider the jury's advisory opinion, was "consistent with established constitutional law." 513 U.S. 504, 511, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995). The Court went on to explain that "the Eighth Amendment does not require the State to define the weight the sentencing judge must accord an advisory jury verdict." Id. at 512, 115 S.Ct. 1031. Therefore, Mitchell's argument that Alabama's judicial-override provision is unconstitutional is without merit.

Moreover, Alabama's judicial-override provision is not, as Mitchell asserts, standardless. In rejecting the argument that Alabama's judicial-override provision is standardless, the Alabama Supreme Court has held:

Ex parte Jackson, 836 So.2d 979, 989 (Ala. 2002). See also Ex parte Carroll, 852 So.2d 833, 836 (Ala.2002) (establishing standard under which the circuit court must weigh a jury's recommendation of life in prison without the possibility of parole). Accordingly, Mitchell's argument that Alabama's judicial-override provision is "standardless" and thus "unconstitutional" is without merit.3

To the extent that Mitchell argues that Alabama's sentencing scheme violates the Equal Protection Clause because it "fails to set forth uniform standards as to how much weight a jury's sentencing recommendation should be given by the trial judge" (Mitchell's brief, at 34), this Court rejected an identical argument in Lewis v. State, 24 So.3d 480, 536 (Ala.Crim.App. 2006). In Lewis, this Court explained:

24 So.3d 480, 536 (Ala.Crim.App.2006). Based on this Court's holding in Lewis, Mitchell's equal-protection argument is without merit. Therefore, this issue does not entitle Mitchell to relief.

VIII.

Mitchell next argues that evolving standards of decency have rendered Alabama's sentencing scheme cruel and unusual in violation of the Eighth Amendment. Mitchell failed to first present this argument to the circuit court; therefore, this Court will review it for plain error only. See Rule 45A, Ala. R.App. P.

This argument has been repeatedly considered and rejected by both this Court and the Alabama Supreme Court. As this Court noted in Flowers v. State,

922 So.2d 938, 958 (Ala.Crim.App.2005) (quoting Clark v. State, 896 So.2d 584, 642-43 (Ala.Crim.App.2003)). See also Spaziano v. Florida, 468 U.S. at 463-64, 104 S.Ct. 3154 (holding that judicial override of a jury's recommendation of life in prison without the possibility of parole is not cruel and unusual, despite the fact that the majority of States do not allow judicial override). Because Mitchell's argument has already been rejected and because he has failed to offer any compelling reason for this Court to revisit the issue, he is not entitled to relief as to this claim.

IX.

Mitchell next argues that Alabama's judicial-override provision is unconstitutional under Art. I, § 15, Alabama Constitution of 1901. Specifically, Mitchell argues that Art. I, § 15, provides greater protections against cruel or unusual punishment than does the Eighth Amendment of the United States Constitution. To support his argument, Mitchell explains that Art. I, § 15, proscribes "cruel or unusual" punishments and the Eighth Amendment proscribes "cruel and unusual" punishments. (Mitchell's brief, at 43-44.) (Emphasis in original.) According to Mitchell, the use of the disjunctive conjunction in Art. I, § 15, establishes that the cruel-orunusual-punishment clause of the Alabama Constitution affords more protection than does the Eighth Amendment. He then argues that Alabama's judicial-override provision violates Alabama's cruel-or-unusual-punishment clause. Mitchell failed to first present this argument to the circuit court; therefore, this Court will review it for plain error only. See Rule 45A, Ala. R.App. P.

This Court need not decide whether Art. I, § 15, affords broader protections than the Eighth Amendment because Mitchell has not met his burden of establishing that Alabama's judicial-override provision violates either. It is well settled that an individual challenging the constitutionality of a statute bears the burden of establishing that the challenged statute is unconstitutional. See Cole v. State, 721 So.2d 255, 260 (Ala.Crim.App.1998) (recognizing that the appellant bears the burden of establishing that a State statute is unconstitutional); Holmes v. Concord Fire Dist., 625 So.2d 811, 812 (Ala.Civ.App. 1993) ("The party mounting a constitutional challenge to a statute bears the burden of overcoming a presumption of constitutionality."). Although Mitchell argues—in general terms—that Art. I, § 15, is broader than the Eighth Amendment, he has not provided any argument regarding how the alleged difference between Art. I, § 15, and the Eighth Amendment affects Alabama's judicial-override provision. Because Mitchell has not presented any argument or evidence to support his assertion that Alabama's judicial-override provision violates Art. I, § 15, he has not met his burden and is not entitled to any relief.

Moreover, the gist of Mitchell's argument appears to be that Alabama's judicial-override provision violates the proscription of cruel or unusual punishment contained in Art. I, § 15, because it results in the arbitrary imposition of the death penalty. Mitchell appears to reason that because the jury is not required to unanimously agree on the sentencing determination and because there are no standards for the exercise of judicial override, Alabama's judicial-override provision results in judges arbitrarily imposing the death penalty. This argument has been rejected by both this Court and the Alabama Supreme Court. See Ex parte Waldrop, 859 So.2d at 1191 (holding that "[a]lthough not required by Harris, ... Alabama's statutory procedures d[o] guard against an arbitrary and capricious [imposition of a sentence of death] by a trial court...."); Ex parte Taylor, 808 So.2d at 1219 (holding "that Alabama's capital-sentencing procedure does not result in the imposition of the death sentence in an arbitrary and capricious manner...."); Harris v. State, 2 So.3d at 902 (same). Because Alabama's judicial-override provision does not result in the arbitrary imposition of the death penalty, Mitchell's argument is without merit.

X.

Mitchell next argues that the circuit court erred in failing to consider two relevant nonstatutory mitigating circumstances. Specifically, Mitchell asserts that the circuit court failed to consider that his brother, sister, and foster mother "all testified that they loved him" and that "Mitchell's life still has purpose and value, and should not be taken." (Mitchell's brief, at 48.) Mitchell's argument appears to be based solely on the fact that the circuit court's sentencing order does not list these two alleged mitigating circumstances as circumstances that the circuit court weighed in sentencing Mitchell to death. Because Mitchell failed to present this argument to the circuit court, it will be reviewed for plain error only. See Rule 45A, Ala. R.App. P.

It is well settled that "`[a] sentencer in a capital case may not refuse to consider or be "precluded from considering" mitigating factors.'" Lewis v. State, 24 So.3d 480, 530 (Ala.Crim.App.2006) (quoting Williams v. State, 710 So.2d at 1347, quoting in turn Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), quoting in turn Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978)). "`It is not required that the evidence submitted by the accused as a nonstatutory mitigating circumstance be weighed as a mitigating circumstance by the sentencer, in this case, the trial court; although consideration of all mitigating circumstances is required, the decision of whether a particular mitigating circumstance is proven and the weight to be given it rests with the sentencer.'" Ex parte Land, 678 So.2d 224, 241 (Ala.1996) (quoting Haney v. State, 603 So.2d 368, 389 (Ala.Crim.App.1991)). See also Gavin v. State, 891 So.2d at 990 ("Although the trial court is required to consider all mitigating circumstances, the decision of whether a particular mitigating circumstance is proven and the weight to be given it rests with the sentencer." (internal citations and quotations omitted)). Further, it is "settled law that `the trial court is not required to specify in its sentencing order each item of proposed nonstatutory mitigating evidence offered that it considered and found not to be mitigating.'" Ex parte Ferguson, 814 So.2d 970, 979 (Ala.2001) (quoting Williams v. State, 710 So.2d at 1347). See also McWhorter v. State, 781 So.2d 257, 309 (Ala.Crim.App.1999)("`Although the trial court is required to consider all mitigating circumstances, the decision of whether a particular mitigating circumstance is proven and the weight to be given it rests with the sentencer. Moreover, the trial court is not required to specify in its sentencing order each item of proposed nonstatutory mitigating evidence offered that it considered and found not to be mitigating.' Further, `"the decision as to whether a particular mitigating circumstance is sufficiently proven by the evidence and the weight to be accorded to it rests with the trial court."'" (internal citations omitted)).

Neither the record nor the circuit court's sentencing order supports Mitchell's argument that the circuit court failed to consider two mitigating circumstances. Instead, it appears that the circuit court did not restrict Mitchell's presentation of evidence in mitigation and considered all the evidence Mitchell presented. After finding that no statutory mitigating circumstances existed and detailing the nonstatutory mitigating circumstances it found to exist, the circuit court stated:

(C.R. 26). It is clear that the circuit court considered all the mitigating circumstances presented to it. "[T]he trial court is not required to specify in its sentencing order each item of proposed nonstatutory mitigating evidence offered that it considered and found not to be mitigating." Williams v. State, 710 So.2d at 1347.

Because the circuit court clearly considered all mitigating circumstances presented to it, this Court finds that no error, much less plain error, occurred. See Reeves v. State, 807 So.2d 18, 48-49 (Ala. Crim.App.2000) (holding that the circuit court "fully complied with Lockett and its progeny" where "[t]he sentencing order in this case shows that the trial court considered all of the mitigating evidence offered by the appellant"). Therefore, Mitchell is not entitled to relief as to this claim.

XI.

Mitchell next argues that the prosecutor's sentencing-phase closing arguments violated his Fifth, Sixth, Eighth, and Fourteenth Amendment rights by:

(Mitchell's brief, at 53-54) (citing Ex parte Tomlin, 909 So.2d 283, 287 (Ala.2003)). Mitchell then surmises that if these alleged errors had not occurred, he might have received a unanimous sentencing recommendation for life in prison without the possibility of parole, which would have required the circuit court to afford the jury's recommendation greater weight. (Mitchell's brief, at 54.)

"In judging a prosecutor's closing argument, the standard is whether the argument `"`so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"'" Sneed v. State, 1 So.3d at 138 (quoting Darden v. Wainwright, 477 U.S. at 181, 106 S.Ct. 2464, quoting in turn Donnelly v. DeChristoforo, 416 U.S. at 643, 94 S.Ct. 1868). With this standard in mind, this Court now turns to Mitchell's arguments.

A.

Mitchell contends that the prosecutor improperly commented on his failure to testify and that the circuit court's curative instruction was insufficient to remove the harm caused by the comment. According to Mitchell, this error violated his constitutional rights and requires reversal.

During the State's penalty-phase closing arguments, the prosecutor stated that "[Mitchell] didn't ask for mercy.... He let his family members come up here and cry for him. You never heard out of his mouth, I'm sorry." (R. 1156-57.) Defense counsel objected to the prosecutor's comment. The circuit court sustained the objection and gave the following curative instruction:

(R. 1157.)

Later, defense counsel moved for a mistrial, arguing that the prosecutor's comment was improper and that the circuit court's curative instruction was insufficient. (R. 1197-98.) The circuit court denied Mitchell's motion for a mistrial. Specifically, the circuit court ruled that the limiting instruction it gave was sufficient.

On appeal, Mitchell reasserts his argument that the circuit court's curative instruction was insufficient. Specifically, Mitchell argues that the circuit court's curative instruction was insufficient because the court did not inform the jury that: 1) "the remarks were `improper'"; 2) the "statements of counsel are not evidence"; 3) "Mitchell `cannot be compelled' to testify `against himself'"; and 4) "`no presumption of guilt' should be drawn from his failure to testify." (Mitchell's brief, at 51.) This Court disagrees.

It is well settled that "[a] defendant has the right not to take the witness stand and testify in his own behalf and, if he exercises that right, not to be the subject of comment by the prosecuting attorney." Bush v. State, 695 So.2d 70, 132 (Ala.Crim.App. 1995) (citations omitted).

Bush, 695 So.2d at 133. In Whitt v. State, the Alabama Supreme Court explained that when a prosecutor comments on a defendant's failure to testify:

370 So.2d 736, 739 (Ala.1979). See also Ex parte Wilson, 571 So.2d 1251, 1265 (Ala. 1990). Although the circuit court's instruction must adequately inform the jury that the defendant's failure to testify must not be considered and that no unfavorable inference may be drawn therefrom, there is no particular verbiage that must be used to convey this message. See Whitt, 370 So.2d at 739 (recognizing that trial court's instructions, in order to remove any possible prejudice from improper comments by the prosecutor as to the failure of the defendant to take the witness stand, need not contain any particular "verbiage," and courts will "consider the circumstances of each case on its own, considering the type of remark, whether reply in kind or not, whether promptly objected to, and the appropriateness of the trial judge's instructions."); Pettibone v. State, 891 So.2d 280, 283 (Ala.Crim.App.2003).

This Court has thoroughly reviewed the prosecutor's comment and the proceedings that followed and holds "that the trial court's curative instruction to the jury adequately cured any prejudice." Simmons v. State, 797 So.2d 1134, 1164 (Ala.Crim.App. 1999). The circuit court sustained defense counsel's objection immediately after the comment. The circuit court then promptly instructed the jury that Mitchell has an absolute right not to testify and that the jury could not draw an adverse inference from Mitchell's decision not to testify. The circuit court then instructed the jury to disregard the comment and asked the jurors if they could comply with that instruction. The record indicates that the jurors nodded their heads to signal that they could disregard the comment. Cf. Peraita v. State, 897 So.2d 1161, 1204 (Ala. Crim.App.2003) ("`Jurors are presumed to follow the trial court's instructions.'") (quoting Bryant v. State, 727 So.2d 870, 874-75 (Ala.Crim.App.1998)); Burgess v. State, 827 So.2d 134, 162 (Ala.Crim.App. 1998) ("Jurors are presumed to follow the court's instructions.").

Based on the circumstances of this case, the circuit court's jury instruction cured any prejudice that might have resulted from the prosecutor's improper comment; therefore, this issue does not entitle Mitchell any relief. See Troup v. State, 32 Ala.App. 309, 319-20, 26 So.2d 611, 620 (Ala.App.1946) (holding that when "the trial court sustains the objection [to the prosecutor's improper comment on the defendant's failure to testify] and promptly and appropriately instructs the jury of the impropriety of such remarks, then such remarks should not cause a reversal of the case") (citations omitted).

B.

Mitchell next argues that the prosecutor's rebuttal closing argument in the penalty phase improperly inflamed the passions and prejudices of the jury, improperly urged the jury not to show Mitchell any mercy, and improperly argued that Mitchell's mitigation evidence offered only an excuse. The portion of the prosecutor's closing argument that Mitchell asserts was improper is as follows:

(R. 1171-73.) Mitchell failed to object to this portion of the prosecutor's argument; therefore, this Court will review it for plain error. See Rule 45A, Ala. R.App. P.

After reviewing the record and the arguments of counsel, this Court holds that the majority of the prosecutor's comments were actually pleas for justice. In addressing an analogous situation in Newton v. State, 78 So.3d 458 (Ala.Crim.App.2009), this Court stated:

Cf. Ingram v. State, 779 So.2d 1225, 1268-69 (Ala.Crim.App.1999) (upholding references to "drive-by shootings" and "drug wars").

Likewise, this Court cannot conclude that the prosecutor's closing argument `"`so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"' Sneed v. State, 1 So.3d at 138 (quoting Darden v. Wainwright, 477 U.S. at 181, 106 S.Ct. 2464, quoting in turn Donnelly v. DeChristoforo, 416 U.S. at 643, 94 S.Ct. 1868). The prosecutor's references to his brother's death appear to have been intended to illustrate the impact and gravity of murder, i.e., stolen property can be replaced but people cannot. Further, it is not improper for a prosecutor to urge the jury to set aside its sympathies in making its penalty-phase determination. Gobble v. State, [Ms. CR-05-0225, Feb. 5, 2010] ____ So.3d ____ (Ala. Crim App.2010); Boyd v. State, 715 So.2d 825, 846 (Ala.Crim.App.1997). Likewise, it is not improper for the prosecutor to inform the jury that the State seeks a death recommendation from it. See Brown v. State, 74 So.3d 984, 1020 (Ala.Crim.App. 2010) (upholding the prosecutor's statement: "I ask you to give his sympathy and the result of their begging the same way he gave it to Dotty Jemison and Cherea Jemison and sentence him to death or recommend the sentence of death as the law allows based on the proof to you"). Similarly, the prosecutor, as an advocate, may argue to the jury that it should give the defendant's mitigating evidence little or no weight. See State v. Storey, 40 S.W.3d 898, 910-11 (Mo.2001) (holding that no error resulted from the prosecutor's characterization of mitigation as excuses because the "State is not required to agree with the defendant that the evidence offered during the penalty phase is sufficiently mitigating to preclude imposition of the death sentence[, and] the State is free to argue that the evidence is not mitigating at all"). Finally, it is not improper for the prosecutor to argue that the defendant showed the victims no mercy. Melson v. State, 775 So.2d 857, 893 (Ala.Crim.App. 1999) (holding that the prosecutor's statement—"I want you to give some mercy to [Melson] just as he gave to the murder and robbery victims over there in that cooler"—not improper). Because the "prosecutor's remarks [were] an appropriate call for justice," Ingram, 779 So.2d at 1269, and within the bounds of an adversarial setting, this issue does not entitle Mitchell to any relief.

Moreover, even if part of the prosecutor's argument were improper, such impropriety would not rise to the level of plain error. Rule 45A, Ala. R.App. P. "[S]tatements of counsel in argument to the jury must be viewed as delivered in the heat of debate; such statements are usually valued by the jury at their true worth and are not expected to become factors in the formation of the verdict." Bankhead v. State, 585 So.2d 97, 106-07 (Ala.Cr.App.1989) (citing Orr v. State, 462 So.2d 1013, 1016 (Ala.Crim.App.1984)); and Sanders v. State, 426 So.2d 497, 509 (Ala.Crim.App.1982). See also Brown v. State, 74 So.3d at 1016.

Further, throughout the trial, the jurors were instructed that the arguments of counsel are not evidence and that they should not base their decision on passion or any other arbitrary factor. See Peraita v. State, 897 So.2d at 1204 ("`Jurors are presumed to follow the trial court's instructions.'" (quoting Bryant v. State, 727 So.2d at 874-75)); and Burgess v. State, 827 So.2d at 162 ("Jurors are presumed to follow the court's instructions."). Further, after the prosecutor's argument and the circuit court's instructions, the jury recommended that Mitchell be sentenced to life in prison without the possibility of parole; therefore, any erroneous comment was harmless. See Killingsworth v. State, 82 So.3d 716 (Ala.Crim.App.2009) (holding that errors in the penalty phase were harmless because the jury recommended a sentence of life in prison without the possibility of parole); Burgess v. State, 723 So.2d 742, 756 (Ala.Crim.App.1997) (holding that "[e]ven if any error had occurred during the sentence phase argument, it would have been harmless because the jury recommended that Burgess be sentenced to life imprisonment without parole").

Based on the foregoing, "[t]here is no indication that the prosecutor's comment[s] so infected the trial with unfairness that [Mitchell] was denied a fair trial." Brown v. State, 11 So.3d at 909. Accordingly, this Court does not find that the prosecutor's comments rose to the level of plain error.

XII.

Mitchell next argues that the circuit court's penalty-phase jury instructions were ambiguous. Without pointing to any specific deficiency in the circuit court's instruction, Mitchell argues, in general terms, that the circuit court's instruction failed to properly inform the jury of its role and responsibility in determining his sentence. Because Mitchell failed to object to the circuit court's instructions at trial, this issue will be reviewed for plain error only. See Rule 45A, Ala. R.App. P.

"When reviewing a trial court's jury instructions, [this Court] must view them as a whole, not in bits and pieces, and as a reasonable juror would have interpreted them." Johnson v. State, 820 So.2d 842, 874 (Ala.Crim.App.2000).

Williams v. State, 795 So.2d 753, 780 (Ala. Crim.App.1999). Further, "[w]hen allegedly ambiguous jury instructions have purportedly prejudiced a defendant's case, [this Court] must determine `"whether there is a reasonable likelihood that the jury has applied the challenged instructions in a way" that violates the constitution.'" Lewis v. State, 24 So.3d at 520 (citing Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), quoting in turn Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990)).

Initially, this Court notes that it appears that most of the language found in the circuit court's instructions was either taken from Alabama's pattern jury instructions or were requested by Mitchell himself. See Ex parte Wood, 715 So.2d 819, 824 (Ala.1998) (recognizing that in most instances use of the pattern jury instructions will not result in plain error; however, "there may be some instances when using those pattern charges would be misleading or erroneous").

Further, this Court has reviewed the circuit court's penalty-phase jury instructions and finds that the instructions were not ambiguous and that they did not mislead the jury regarding its penalty-phase role. The circuit court correctly instructed the jury regarding its role in the penalty phase. It thoroughly instructed the jury regarding aggravating circumstances and mitigating circumstances. The circuit court then properly instructed the jury regarding the burdens of proof for aggravating circumstances and mitigating circumstances. The circuit court correctly defined the aggravating circumstances. The circuit court then instructed the jury regarding statutory mitigation and informed the jury that it could consider any aspect of Mitchell's character or record or any of the circumstances of the offense that Mitchell had offered as a basis for a sentence of life without parole. Further, the circuit court thoroughly instructed the jury regarding the process by which it should consider the aggravating circumstances and mitigating circumstances in reaching its decision. Finally, the circuit court properly instructed the jury regarding the weighing process.

After thoroughly reviewing the circuit court's penalty-phase instructions, this Court finds that they were not ambiguous or misleading. Further, there was no indication in the record that the jury was confused by any of the circuit court's instructions and the jury recommended a sentence of life without the possibility of parole. See Lewis, 24 So.3d at 520 (upholding allegedly redundant and confusing jury instructions where there was "no evidence of any confusion on the part of the jury"); Killingsworth v. State, 82 So.3d 716, 754 (Ala.Crim.App.2009) (holding that errors in the penalty phase were harmless because the jury recommended a sentence of life in prison without the possibility of parole). Consequently, this issue does not entitle Mitchell to any relief.

XIII.

Mitchell next argues that the circuit court erred in failing to grant him a continuance based on the State's alleged discovery violations.

"The guidelines for determining whether a trial court has abused its discretion in denying a continuance are set out in Ex parte Saranthus, 501 So.2d 1256, 1257 (Ala.1986)." Fortenberry v. State, 545 So.2d 129, 138 (Ala.Crim.App.1988). In Saranthus, the Alabama Supreme Court explained:

Ex parte Saranthus, 501 So.2d at 1257. See also Price v. State, 725 So.2d 1003, 1060-61 (Ala.Crim.App.1997).

In this case, Mitchell argues that a continuance was necessary because he did not have access to several key pieces of evidence until the week of trial. At trial, defense counsel argued that the defense needed a continuance to obtain and/or review the following: 1) a copy of the Department of Forensic Sciences' report regarding the inability to test stains on Mitchell's clothes for DNA because the sample was insufficient; 2) a copy of Detective Phillip Russell's supplemental report indicating that a witness identified Mitchell from the video of the crime that was aired on television; 3) the tapes of interviews relating to a subsequent, unrelated murder involving Mitchell; 4) a copy of Kevin Spradley's arrest report; and 5) copies of the photographic lineups used by Clifford Davis and James Jackson in identifying Mitchell.

During the hearing, the circuit court heard conflicting statements. The State argued that the Department of Forensic Sciences' report had not been provided to the State and that defense counsel had been given access to the State's entire file. The State argued that its entire file had been copied and that defense counsel waited two weeks to retrieve the file. The State further asserted that Detective Russell had only recently prepared the supplemental report and that it was immediately disclosed to counsel. Defense counsel denied that they waited two weeks to retrieve the file and denied that they had been given access to the State's entire file. Mitchell's counsel, however, conceded that they were in no way implying that the prosecution had "intentionally done anything" or that the prosecution was "tr[ying] to hold back" evidence. (R. 98-99.) Defense counsel also admitted that some of the items may have been disclosed and subsequently lost while in their possession.

To remedy any problem, the court ensured that defense counsel did or would have each of the items listed above. Further, the circuit court offered defense counsel additional funds to hire someone to listen to the tapes relating to the subsequent murder involving Mitchell. The circuit court also stated that it would take a long recess to allow defense counsel to interview the witness identified in Detective Russell's supplemental report.

Based on the conflicting statements regarding defense counsel's diligence and the circuit court's remedy, this Court cannot say that the circuit court abused its discretion by denying Mitchell's motion for a continuance. See Wimberly v. State, 934 So.2d 411, 424 (Ala.Crim.App.2005) ("Trial judges necessarily require a great deal of latitude in scheduling trials. Not the least of their problems is that of assembling the witnesses, lawyers, and jurors at the same place at the same time, and this burdens counsels against continuances except for compelling reasons. Consequently, broad discretion must be granted trial courts on matters of continuances." (citations and internal quotations omitted)). Moreover, this Court has searched the entire record and failed to find any indication that Mitchell suffered any prejudice as a result of the circuit court's denial of his motion for a continuance. See Wimberly, 934 So.2d at 425 (holding that the appellant had not established that the denial of his motion to continue was prejudicial); T.D.M. v. State, [Ms. CR-08-0355, June 25, 2010] ____ So.3d ____, ____ (Ala.Crim. App.2010) (affirming the circuit court's denial of a motion to continue because there was no "indication of prejudice suffered by T.D.M. on this ground."). This Court "find[s] it extremely improbable that the additional time for preparation requested by [Mitchell] would have changed the result of the trial." Price v. State, 725 So.2d at 1061 (citing Fortenberry v. State, 545 So.2d at 139). See also Beauregard v. State, 372 So.2d 37, 43 (Ala.Crim.App.1979) (citing Clayton v. State, 45 Ala.App. 127, 129, 226 So.2d 671, 672 (1969)("The reversal of a conviction because of the refusal of the trial judge to grant a continuance requires `a positive demonstration of abuse of judicial discretion.'")). Therefore, this issue does not entitle Mitchell to any relief.

XIV.

Mitchell next argues that the circuit court erred in admitting gruesome photographs of the victims' wounds and by allowing the prosecutor to use mannequin heads to show the angle and direction of the bullets as they entered and traveled through each of the victims.

To the extent Mitchell argues that the circuit court erroneously allowed the prosecutor to introduce photographs of the victims' wounds, this argument is without merit. Alabama courts have long recognized that photographs depicting the crime scene and the wounds of the victims are relevant and admissible. See Stallworth v. State, 868 So.2d 1128, 1151 (Ala.Crim.App. 2001) (quoting Land v. State, 678 So.2d 201, 207 (Ala.Crim.App.1995)) ("The courts of this state have repeatedly held that photographs that accurately depict the crime scene and the nature of the victim's wounds are admissible despite the fact that they may be gruesome or cumulative."); Ward v. State, 814 So.2d 899, 906 (Ala.Crim.App.2000) (quoting Siebert v. State, 562 So.2d 586, 599 (Ala.Crim.App. 1989) ("The same rule applies to videotapes [that applies to] photographs....")). In Brooks v. State, this Court explained:

973 So.2d at 393.

This Court has reviewed the photographs in question and holds that they were relevant and admissible to show the extent of the victims' injuries. Further, although unpleasant, the photographs were not unduly gruesome. Therefore, the circuit court did not commit any error in allowing the photographs to be admitted at trial.

To the extent Mitchell argues that the circuit court erroneously allowed the State to use mannequin heads to show the trajectory of the bullets through the victims on the grounds that this evidence was irrelevant, cumulative, and unduly prejudicial, his argument is likewise without merit.4

Whether to allow the prosecutor to use mannequins to aid the jury in understanding the trajectory of a bullet through a victim is within the sound discretion of the circuit court and a conviction "will not be reversed on appeal unless [that discretion] has been clearly and grossly abused." Ivey v. State, 369 So.2d 1276, 1278 (Ala.Crim.App.1979) (citations omitted). Further, this Court has held that the use of a mannequin to demonstrate a victim's injuries is relevant and admissible. Id.; see Minor v. State, 780 So.2d 707, 765 (Ala.Crim.App.1999), overruled on other grounds, 780 So.2d 796 (Ala.2000); See also Gobble v. State, ____ So.3d at ____ ("Demonstrations and experiments are permitted or prohibited in the trial court's discretion. Thus, Alabama appellate courts have affirmed trial court decisions permitting an experiment on cross-examination to test the defendant's ability to calculate interest as he said he had; a demonstration using a mannequin and the defendant herself to discredit her assertion that the prosecuted homicide happened accidentally; a demonstration of the defendant's version of how a fight occurred, the solicitor playing the deceased and the defendant playing himself; a demonstration wherein the defendant made prints of his bare feet in the sawdust on the courtroom floor; a demonstration by the defendant of the extent to which his injuries had impaired his ability to walk; and a demonstration between a brain damaged child and a special education therapist calculated to show the child's physical and mental abilities." (quoting William A. Schroeder and Jerome A. Hoffman, Alabama Evidence § 12:25 (3d ed. 2006) (footnotes omitted))).

Here, the use of the mannequin heads was relevant and admissible to illustrate the coroner's testimony regarding the trajectory of the bullets through the victims and to aid the jury in understanding the extent of the victims' injuries. Further, nothing in the record indicates that "the use of the mannequin was ... calculated to unfairly prejudice [Mitchell]." Ivey, 369 So.2d at 1279. Consequently, this Court cannot say that the circuit court "clearly and grossly abused" its discretion by allowing the prosecutor to use mannequin heads to show the trajectory of the bullets through the victims. Ivey, 369 So.2d at 1278.

XV.

Mitchell next argues that "the [circuit] court committed reversible error when it allowed two witnesses to testify as to what they thought the defendant meant [by] the word `lick.'" (Mitchell's brief, at 67.) Specifically, Mitchell contends that the witnesses were improperly allowed to testify as to Mitchell's mental operations.

Although Mitchell correctly states that "[a] witness may not testify to the uncommunicated intent or mental operation of another," Perry v. Brakefield, 534 So.2d 602, 608 (Ala.1988), this particular error did not occur in the instant case. On the contrary, LaSundra Mosley and Jonathan Floyd both testified as to their own personal opinions and knowledge regarding the word "lick." At trial, Mosley was asked, "Do you have any idea what a lick would mean ... ?" (R. 632.) After an objection by the defense, the circuit court told Mosley, "If you know what that means, I'll allow you to testify to that." (R. 632.) Mosley responded that a "lick" means a "robbery." (R. 632.) Similarly, Floyd was asked, "In your mind, what did hit a lick mean?" (R. 891.) Floyd responded that he and his buddies at work use the phrase "hit a lick" when they are "going to make a lot of money." (R. 892). Because both Mosley and Floyd testified to their personal understanding of the definition of the slang word "lick," the circuit court did not abuse its discretion by allowing them to define "lick."

XVI.

Mitchell next contends that the circuit court erroneously allowed the recording of a telephone conversation he had while incarcerated at the Jefferson County Jail to be admitted into evidence. Specifically, Mitchell contends that the recording was not properly authenticated and contained evidence of other crimes. Mitchell failed to present these specific arguments to the circuit court; therefore, this Court will review them for plain error only. See Rule 45A, Ala. R.App. P.

"The proper foundation required for the admission of a sound recording into evidence depends on the circumstances of the case in which the admission is sought." Smith v. State, 727 So.2d 147, 167 (Ala. Crim.App.1998), overruled on other grounds, Ex parte Borden, 769 So.2d 950 (Ala.2000) (citing Ex parte Fuller, 620 So.2d 675 (Ala.1993)). In Fuller, the Alabama Supreme Court set forth the following method for laying the foundation for the admissibility of an audio recording:

620 So.2d at 678.

In this case, the prosecutor laid the proper predicate for the admissibility of Mitchell's November 8, 2006, telephone conversation from the Jefferson County jail. Deputy Carl Carpenter of the Jefferson County Sheriff's Department testified about the machine used to digitally record inmates' telephone calls from the jail and how the conversations are stored on an inmate-telephone server. Carpenter's testimony established that he was competent to operate the recording system. Additionally, Carpenter described how the system worked, described how he downloaded the conversation from the inmate-telephone server to a compact disc ("CD"), and stated that the CD accurately represented the telephone conversation that was stored on the server. Carpenter further testified that there were no changes to the recording. The testimony presented at trial further established the telephone call in question was traced to Mitchell's assigned pin number, Mitchell referred to himself as "Brandon" during the conversation, and Mitchell spoke of details known only by Mitchell. Finally, Carpenter testified that before placing the telephone call, Mitchell was adequately warned that his conversation might be recorded and that Mitchell's statements were voluntary and not part of a custodial statement to law-enforcement officers. (R. 815-23, 838-41.) As a result, the record establishes that the prosecution satisfied all of the Voudrie v. State, 387 So.2d 248 (Ala.Crim.1980), requirements and Mitchell is not entitled to relief.

With regard to Mitchell's argument that the audio recording should have been excluded because it contained evidence of other crimes, this argument is also without merit.

In Gamble v. State, 791 So.2d 409, 439-40 (Ala.Crim.App.2000), this Court held:

791 So.2d at 439-40.

During the telephone conversation at issue, Mitchell stated that he was caught with a knife in jail and that he needed the weapon to protect himself because his codefendant had some gang members trying to "jump" him. In this case, the circuit court properly admitted the portions of the recording regarding Mitchell's admission that he had been caught with a knife because it was relevant to show that he and his codefendant were feuding over the extent of their individual participation in the murders. Further, the danger of unfair prejudice does not substantially outweigh the probative value of the evidence. See Hocker v. State, 840 So.2d 197, 214-15 (Ala.Crim.App.2002) ("Evidence about the appellant's collateral bad act was very probative because it was one of several factors that the appellant stated caused him to commit the murder. Furthermore, the danger of unfair prejudice did not substantially outweigh the probative value of the evidence. There were very few references to the collateral bad act during the guilt phase of the trial, and there were not any references to the act during the penalty phase of the trial. Also, the collateral bad act in this case apparently involved a pending charge for theft of property rather than a prior conviction for that offense."). Accordingly, the circuit court did not err in allowing evidence of Mitchell's possession of the knife while in jail to be admitted.

Moreover, even if the circuit court's admission of the references to a knife was erroneous, any error was harmless. Here, Mitchell's possession of the knife while in jail was not emphasized. More importantly, the State presented overwhelming evidence of Mitchell's guilt including a video showing Mitchell committing the crime. See Ex parte Price, 725 So.2d 1063, 1072 (Ala.1998) (holding that the erroneous admission of evidence did not rise to the level of plain error because the State produced overwhelming evidence of guilt). Therefore, even if the circuit court erred in allowing evidence of Mitchell's possession of the knife to be admitted, that error did not have an adverse impact on the jury's deliberations and did not rise to the level of plain error. Ex parte Brown, 11 So.3d at 938; Rule 45A, Ala. R.App. P.

XVII.

Mitchell next argues that the circuit court's admission of his telephone conversations violated his right to privacy under the First, Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the Constitution of the United States and Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq, which "prohibits the interception of wire, oral, and electronic communications without a warrant." Johnson v. State, 823 So.2d 1, 32 (Ala.Crim.App. 2001). Specifically, Mitchell contends that because the telephone monitoring system at the Jefferson County jail was installed as a "phone management system" rather than a security measure, and because he did not consent to the recording of his personal telephone calls, he enjoyed a reasonable expectation of privacy as to all of his telephone calls made from the jail. This Court disagrees.

In Teat v. State, 636 So.2d 697, 699 (Ala.Crim.App.1993), this Court held that although inmates do not necessarily give up all constitutional rights during their incarceration, "there is no reasonable expectation of privacy in the telephone conversation of inmates at penal institutions." See also United States v. Van Poyck, 77 F.3d 285, 291 (9th Cir.1996) (holding that individuals who are incarcerated while awaiting trial do not have any expectation of privacy in outgoing telephone calls that are made on the jail telephones). Because Mitchell did not have a reasonable expectation of privacy during his telephone conversation, the admission of his telephone conversation did not violate any of his constitutional rights. Id. Consequently, this issue does not entitle Mitchell to relief.

XVIII.

Mitchell finally argues that the cumulative effect of all the errors requires reversal of his convictions and sentences of death. Specifically, he contends that "the accumulated errors have probably injuriously affected [his] substantial rights" and deprived him of a fair trial. (Mitchell's brief, at 62.)

Brownfield v. State, 44 So.3d 1, 33 (Ala. Crim.App.2007).

Applying the standard set forth in Ex parte Woods, 789 So.2d 941 (Ala.2001), this Court has reviewed the alleged errors Mitchell has raised on appeal and has scrupulously searched the record for errors not raised on appeal. Rule 45A, Ala. R.App. P. After a thorough review of the record, this Court is convinced that no error, individually or cumulatively, entitles Mitchell to relief.

XIX.

Pursuant to § 13A-5-53, Ala.Code 1975, this Court is required to address the propriety of Mitchell's convictions and sentences of death.5 Mitchell was indicted for, and convicted of, four counts of capital murder—three counts of murder during the course of a robbery, see § 13A-5-40(a)(2), Ala.Code 1975, and one count of murder of two or more people pursuant to one act or pursuant to one scheme or course of conduct, see § 13A-5-40(a)(10), Ala.Code 1975.

The record does not reflect that Mitchell's sentences of death were imposed as the result of the influence of passion, prejudice, or any other arbitrary factor. See § 13A-5-53(b)(1), Ala.Code 1975.

The circuit court correctly found that the aggravating circumstances outweighed the mitigating circumstances. In its February 7, 2007, sentencing order, the circuit court stated that it found five aggravating circumstances: 1) Mitchell committed the capital offense while under a sentence of imprisonment, § 13A-5-49(l), Ala.Code 1975; 2) Mitchell was previously convicted of another capital offense or felony involving the use or threat of violence, § 13A-5-49(2), Ala.Code 1975; 3) Mitchell committed the capital offense while he was engaged in or was an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit, a robbery, § 13A-5-49(4), Ala. Code 1975; 4) the capital offenses committed were especially heinous, atrocious, or cruel when compared to other capital offenses, § 13A-5-49(8), Ala.Code 1975; and 5) Mitchell intentionally caused the death of two or more persons by one act or pursuant to one scheme or course of conduct, § 13A-5-49(9), Ala.Code 1975. The circuit court then considered each of the statutory mitigating circumstances and found that none applied in this case. However, the circuit court did find that several nonstatutory mitigating circumstances were applicable, including that: 1) Mitchell had been taken from his mother and placed in foster care at a very young age; 2) Mitchell was abused throughout his childhood; 3) Mitchell experienced numerous difficulties in school, which eventually caused him to be removed from his foster mother's care; and 4) the jury recommended that Mitchell be sentenced to life in prison without the possibility of parole by a vote of 10-2. The circuit court's sentencing order shows that it properly weighed the aggravating and mitigating circumstances and correctly sentenced Mitchell to death. The record supports the circuit court's findings.

Section 13A-5-53(b)(2), Ala.Code 1975, requires this Court to reweigh the aggravating and mitigating circumstances in order to determine whether Mitchell's death sentences are proper. After independently weighing the aggravating and mitigating circumstances, this Court finds that Mitchell's sentences of death are appropriate.

As required by § 13A-5-53(b)(3), Ala.Code 1975, this Court must now determine whether Mitchell's sentences are excessive or disproportionate when compared to the penalty imposed in similar cases. In this case, Mitchell was convicted of three counts of murder during a robbery and one count of murder of two or more people pursuant to one act or pursuant to one scheme or course of conduct. Sentences of death have been imposed for similar crimes throughout the State. See Byrd v. State, 78 So.3d 445, 458 (Ala.Crim. App.2009); Melson, 775 So.2d at 863; Washington v. State, 922 So.2d 145 (Ala. Crim.App.2005); and Robitaille v. State, 971 So.2d 43, 76 (Ala.Crim.App.2005). Therefore, this Court finds that Mitchell's death sentences are neither excessive nor disproportionate.

Finally, this Court has searched the entire record for any error that may have adversely affected Mitchell's substantial rights and has found none.6 See Rule 45A, Ala. R.App. P.

Accordingly, Mitchell's convictions and sentences of death are affirmed.

AFFIRMED.

WISE, P.J., and WELCH, KELLUM, and MAIN, JJ., concur.