Jimmy ONeal Spencer v. State of Alabama (Appeal from Marshall Circuit Court: CC-18-465)

• Court: Court of Criminal Appeals of Alabama
• Decided: December 20, 2024
• Docket: CR-2022-1280
• Status: Published

Opinion

Rel: December 20, 2024

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-2022-1280 _________________________

Jimmy ONeal Spencer

v.

State of Alabama

Appeal from Marshall Circuit Court (CC-18-465)

McCOOL, Judge.

Jimmy ONeal Spencer was convicted of seven counts of capital

murder for intentionally causing the deaths of Marie Kitchens Martin

("Martin"), Colton Ryan Lee ("Colton"), and Martha Dell Reliford

("Reliford"). The murders of Martin and Reliford were made capital CR-2022-1280

because the murders were committed by the defendant during a robbery

in the first degree or an attempt thereof, in violation of § 13A-5-40(a)(2),

Ala. Code 1975. The murder of Colton was made capital because the

victim was less than 14 years of age, in violation of § 13A-5-40(a)(15), Ala.

Code 1975. Additionally, the murders of Martin and Colton were also

made capital because two or more persons were murdered by the

defendant by one act or pursuant to one scheme or course of conduct. See

§ 13A-5-40(a)(10), Ala. Code 1975. Each of the murders were further

made capital because they were committed while the defendant was

under a sentence of life imprisonment. See § 13A-5-40(a)(6), Ala. Code

1975. The jury recommended by a vote of 12-0 that Spencer be sentenced

to death, and the Marshall Circuit Court followed the jury's

recommendation and imposed that sentence.

Facts

On January 22, 2018, Spencer was paroled from a life sentence,

which he was serving for his convictions of first-degree escape and third-

degree burglary. (Supp. R. 1264.)1 Testimony revealed that, following

1Citations to the court documents contained in the record on appeal

will be indicated as "C. __." Additionally, we note that the record on appeal contains duplicate copies of the transcripts from the trial 2 CR-2022-1280

Spencer's parole, Spencer had resided at the Jimmy Hale Mission, a

halfway house, in Birmingham. Spencer subsequently left Birmingham

and made his way to Marshall County. At some point, Spencer, Spencer's

girlfriend, and Jeremy and Misty Buckelew lived together in a trailer.

However, Spencer and his girlfriend later became homeless.

Amanda Patterson, Martin's granddaughter, testified that on the

evening of July 12, 2018, she and Martin planned for Martin to pick up

Patterson's son from Patterson's home at approximately 10:30 a.m. the

following day. The next day, on July 13, 2018, Martin failed to show up

to pick up Patterson's son and Patterson became concerned. After

numerous failed attempts to reach Martin on her cellular telephone,

Patterson drove to Martin's house during Patterson's lunch break. When

Patterson arrived at Martin's house, she noticed that Martin's car was

not at the house. Patterson "assumed [Martin] was out with family or

something," and, thus, Patterson returned to work. (Supp. R. at 694.)

However, when Patterson still had not heard from Martin by the time

proceedings in this case; however, because the supplemental record contains the correct pagination of the trial transcripts, this Court shall reference the transcripts from the trial proceedings in this case as "Supp. R. ___." 3 CR-2022-1280

Patterson got off work at 3:00 p.m., Patterson called her father, Paul

Young, to meet her at Martin's house because she "knew something was

wrong." (Supp. R. 695.)

Patterson and Young met at Martin's house around 4:30 p.m.

Martin's car was still not at her house. Patterson then noticed that the

screen door to Martin's house was cracked. Patterson called Martin

again, and Patterson heard Martin's cellular telephone ringing inside the

house. She also heard Martin's dog barking and whining inside the house.

Patterson used a key that she possessed to enter Martin's house.

Patterson testified that the state of the house was unusual and not in the

general condition that Martin kept the house, noting that the television

was on, cabinet doors were open, and Martin's jewelry was spread out on

her bed. Patterson then found Martin in the guest bedroom, lying face

down on the floor with her hands tied behind her back. Patterson ran

back outside to tell Young what she had observed.

Young, who was Martin's son-in-law, then entered the house.

Young observed Martin lying face down on the floor with a cord wrapped

around her arms, which were tied behind her back. According to Young,

Martin's head was bloody and there was a "dog collar" around her neck.

4 CR-2022-1280

(Supp. R. 736.) Young could also see a "good bit" of blood under Martin's

head and body. (Supp. R. 736.) Young began looking for Colton and found

him lying on the floor of Martin's bedroom. Colton was lying on his back

with one of his legs in an "awkward position like it had been broken," and

Colton's head was bloody and lying in a pool of blood. (Supp. R. 739.)

Young went back outside with Patterson and waited on the police to

arrive. After the police arrived, Young told an investigator that Reliford,

Martin's neighbor who lived across the street, was "usually looking out

the windows and stuff and sometimes even had a camera, and that [the

police] might check with her." (Supp. R. 744.)

Officer Jonathan Harris with the Guntersville Police Department

("the GPD") was the first officer to arrive at Martin's house after a call

was dispatched concerning the scene at Martin's house. He went inside

the house and observed that Martin and Colton were deceased. Officer

Harris returned outside and started a "crime scene lock," and

investigators were called to the scene. (Supp. R. 757.) Lieutenant Ted

Spooner, who had arrived at the scene at approximately the same time

as Officer Harris, testified that he had followed Officer Harris inside

Martin's residence. Lt. Spooner also observed Martin and Colton

5 CR-2022-1280

deceased on the floors in separate bedrooms. Lt. Spooner also testified

that the house "had been ransacked." (Supp. R. 778.) Lt. Spooner

immediately issued a "be on the lookout" alert through the GPD with a

description of Martin's vehicle. (Supp. R. 780.)

According to Captain John East, the chief investigator with the

GPD, a search of Martin's house revealed a hammer and a hanger close

to the body of Colton, both of which had blood on them. Colton had an

apparent trauma to his head, and his hands were tied with a black cord

consistent with what was missing from a [nearby] backpack." (Supp. R.

915.) In the bedroom where Martin's body was found, investigators found

the room to be in "disarray," noting jewelry boxes "thrown across the bed"

and an "open drawer to a chest and clothes pulled out of it." (Supp. R.

921.) Investigators also noted that the kitchen cabinet doors were left

open, that there was a paper towel on the kitchen floor, and that a grocery

bag had blood on the outside of the bag. When Martin's car was recovered

and processed by investigators, investigators discovered a significant

amount of cigarette ash on the front floorboards of the driver and

passenger sides of the vehicle, as well as cellophane from a cigarette box.

The cigarette evidence in the car seemed strange to investigators

6 CR-2022-1280

because, according to the family or items found inside Martin's house,

Martin did not smoke.

During the initial investigation at Martin's house, officers learned

that Martin's neighbor, Reliford, who lived across the street from Martin,

had not been seen in 10 days. Lt. Spooner walked to Reliford's house and

walked toward the back door. When he "made it around the west corner"

of Reliford's house, he "immediately smelled decomposition," as if

someone had been deceased "for some period of time." (Supp. R. 787.) Lt.

Spooner and another officer entered the house and discovered Reliford,

deceased on the floor of the front bedroom, lying beside the bed. Lt.

Spooner saw some type of "bodily fluid or substance" on the wall beside

the bed near where Reliford was found. (Supp. R. 792.) According to Lt.

Spooner, based on the state of Reliford's decomposing body, she appeared

to have been deceased for several days.

Officer Joe Parrish, an investigator with the State Bureau of

Investigation ("the SBI"), also testified that, when he observed the scene

at Reliford's house, Reliford's body was lying beside a medical bed and

there was "a lot of fluid by the bed." (Supp. R. 843.) He also testified that

Reliford's body was in a "bloated condition" and that there were "a lot of

7 CR-2022-1280

insects in the house." (Supp. R. 843.) Officer Parrish testified that

Reliford's body appeared to be in an "advanced" state of decomposition

(Supp. R. 850.) In another room in Reliford's house, officers found two

trash bags full of clothing and shoes, as well as a piece of furniture that

had been overturned. Other items found at the scene included a blue hat

and a Camel cigarette.

At approximately 10:00 p.m. on the evening of July 13, 2018, Officer

Jeff Hall with the GPD was patrolling the area near the crime scene and

discovered Martin's car parked in the Publix grocery-store parking lot.

Officer Hall notified his supervisor of the discovery and stayed with the

car until another officer arrived. While Officer Hall canvassed the area

in search of the keys to Martin's car, he discovered a bottle of OxiClean

and a rag nearby. Officer Hall later obtained a photograph of Martin’s

car taken from surveillance footage from a nearby Texaco gas station,

and he recognized Spencer as the person that was in Martin's car. Officer

Hall knew Spencer from a previous interaction with him weeks before

the murders.

Tony Johnson testified that he manages several local businesses in

Guntersville for the owners, including Premium Spirits and Imports

8 CR-2022-1280

("Premium Spirits") and the Texaco gas station on Highway 431. He

explained that he had installed surveillance systems at Premium Spirits

and the Texaco station, which continuously record at those businesses.

Premium Spirits is located next door to the Publix where Martin's car

was discovered. The Texaco gas station is also located nearby. Johnson

testified that he was in charge of maintenance on the surveillance

systems of the businesses. Johnson confirmed that there had been "many

occasions" in the course of his employment with the businesses in which

he had been able to "go back and review incidents that have happened in

the past" and, during those instances, he found that the cameras "work

in the manner in which they're intended." (Supp. R. 1009.) Officers with

the GPD contacted Johnson and asked Johnson to determine whether he

could see a vehicle matching the description of Martin's car in any of the

video-surveillance footage taken at Premium Spirits on the evening of

July 12, 2018. Johnson reviewed the surveillance footage, which revealed

a vehicle matching the description provided to him by the GPD driving

backward through the parking lot of Premium Spirits. He provided a

copy of the surveillance footage taken from Premium Spirits, as well as

9 CR-2022-1280

still-frame photographs taken from the video-surveillance footage to the

GPD.

Johnson also reviewed video-surveillance footage from the Texaco

gas station at the request of the GPD. In the Texaco surveillance footage,

Johnson observed what appeared to be the same individual and vehicle

that had been seen in the Premium Spirits surveillance footage. Johnson

was able to find two or three instances of surveillance footage of the

individual in the Texaco station from the evening of June 12, 2018, which

Johnson turned over to the GPD. Although Johnson did not know the

identity of the individual on the surveillance footage from the Texaco

station, he recognized him as someone who frequently visited the Texaco

station during the few weeks leading up to July 13, 2018, and with whom

Johnson had spoken to before. The surveillance videos were admitted into

evidence and played for the jury. (Supp. R. 1022.)

The following Sunday, July 15, 2018, Officer Harris heard other

officers discussing possible suspects of the crime, and he recognized

Spencer's name as a possible suspect. Officer Harris testified that he

knew Spencer from Officer's Harris's time volunteering with a homeless

ministry at his church. While reviewing a photograph that officers had

10 CR-2022-1280

obtained from surveillance footage of someone driving Martin's car at a

nearby business, Officer Harris identified Spencer as the person driving

the car. Officer Harris was directed to find Spencer. Officer Harris later

found Spencer walking between the Texaco station and the Wyndham

Garden Inn in Guntersville. Spencer told Officer Harris that he was

headed to "get some clothes at Ms. Reliford's house." (Supp. R. 765.)

Following their conversation, Spencer voluntarily rode with Officer

Harris to the police station.

Investigator Mike Turner with the GPD was also involved in the

investigation and collection of evidence in this case. Among other items

of evidence found, investigators found in a trash can under the sink in

the kitchen of Martin's house a local newspaper, that had Reliford's name

and address on it. According to Investigator Turner, after Spencer had

been identified by officers and located on July 15, 2018, Spencer willingly

agreed to go to the police station to talk to the officers. Investigator

Turner testified that Spencer was not under arrest at that time.

Investigator Turner stated that he spoke with Spencer "for a while" in

his office and then went over Spencer's Miranda2 rights with him before

2Miranda v. Arizona, 384 U.S. 436, 444 (1966).

11 CR-2022-1280

speaking with him further. (Supp. R. 1059.) Investigator Turner testified

that he read "each and every one" of Spencer's Miranda rights to him.

(Supp. R. 1060.) Spencer told Investigator Turner that he was familiar

with his Miranda rights. A copy of the Miranda waiver form that was

signed by Spencer was admitted into evidence.

According to Investigator Turner, during his discussions with

Spencer on July 15, 2018, Spencer initially claimed that an individual

named Ferris Wooten, someone whom Spencer knew from the Jimmie

Hale Mission in Birmingham, had given him a ride in a gray car. Then,

Spencer claimed that Wooten wanted Spencer to drive because Wooten

was drunk. After he was confronted with the video-surveillance footage

from Premium Spirits, Spencer's story further evolved to state that he

had "put … Wooten out, and then [Wooten] told him to go park the car on

the other side of Publix," and that Wooten had instructed Spencer to put

the keys to the car in the seat of the car. (Supp. R. 1066-67.) Spencer also

claimed that he had been working at Lakeview Bait and Tackle

("Lakeview") and that he had been getting paid for his work in food and

a pair of jeans that Spencer had with him. Spencer later amended his

statement to say that both the food and jeans had been in the car with

12 CR-2022-1280

Wooten when Spencer got in the car with him. Spencer eventually

admitted to Investigator Turner that he had driven the car by himself for

some period before parking it at the Publix store, and Spencer stated that

he had reason to believe that the car may have been stolen. Investigator

Turner testified that Spencer claimed that Wooten had told him that he

had robbed a house but that Wooten had stated "that he didn't have to

hurt nobody." (Supp. R. 1072.) Investigator Turner stated that, at the end

of that conversation, Spencer was placed under arrest for receiving stolen

property with relation to Martin's car.

Investigator Turner testified that on the following day, July 16,

2018, Spencer requested to speak with him. Before speaking with

Spencer at that time, Investigator Turner again informed Spencer of his

Miranda rights. Spencer executed another written Miranda waiver form,

and a copy of that form dated July 16, 2018, at 12:30 p.m., was admitted

into evidence. Agent Frank Langdon with the Federal Bureau of

Investigation ("the FBI") and Detective Eric Farmer with the Albertville

Police Department were also present during the interview. During the

interview, Spencer indicated that he knew where Wooten had discarded

Martin's purse that he had found in her car. The officers and Spencer

13 CR-2022-1280

then traveled to the location where Spencer claimed the purse had been

discarded, but nothing was found. While the officers were in the car with

Spencer, Investigator Turner confronted Spencer about the fact that he

kept changing his story. On the way back to the police station, Spencer

told Investigator Turner that "he was tired" and that he "wanted his

lawyer or one of [the officers] to go with him to the district attorney's

office, and he would just tell [them] what happened." (Supp. R. 1079.)

According to Investigator Turner, when the officers and Spencer

returned to the police station, Investigator Turner again reviewed each

of Spencer's Miranda rights with him and Spencer signed a third

Miranda waiver form, which was executed at approximately 4:22 p.m. on

July 16, 2018. A copy of that Miranda waiver form was entered into

evidence. Investigator Turner testified that at no point during the

conversations that he and the other officers had with Spencer on July 15

or 16 did anyone threaten Spencer. Investigator Turner also claimed

that, during each conversation that he had with Spencer, Spencer never

appeared to be under the influence of any drugs, medicines, or alcohol

and that Spencer appeared to understand what Investigator Turner was

talking about and the nature of the investigators business with Spencer.

14 CR-2022-1280

Following Spencer's execution of the third Miranda waiver form, Spencer

gave an audio-recorded statement to Investigator Turner and Detective

Farmer, in which Spencer admitted to killing Martin, Colton, and

Reliford. A copy of the audio recording was admitted into evidence and

played for the jury.

This Court reviewed the statement that was played for the jury. In

his statement, Spencer explained that, before the murders, he had been

living on the street and had been stealing food from the Publix store to

be able to feed himself and his girlfriend. Spencer indicated that he had

been to Reliford's house previously because Reliford was related to a

friend of his, and Spencer and his friend would do some work for Reliford.

Spencer and his girlfriend would pick up bandages and food at the store

for Reliford and bring them to her. Spencer explained that he knew

Reliford had enough money to at least pay rent for a couple of weeks and

that, thus, he went to Reliford's house with a hatchet. Reliford let

Spencer inside the house. When Reliford was sitting on the edge of her

bed, Spencer told her he wanted the money that she had. When Reliford

attempted to stand up from the bed, Spencer hit Reliford in the head with

the wide part of a hatchet three times. Reliford fell to the floor. Spencer

15 CR-2022-1280

testified that he also cut Reliford across the throat because he was

worried that, if she was not dead, she would identify him later. According

to Spencer, he grabbed off her bed Reliford's "pocketbook" that contained

approximately $500-600. (Spencer's recorded statement, at 12:43.)

Spencer admitted that he had overturned a loveseat in Reliford's house

looking for a gun that Reliford had previously indicated that she had in

the house because he thought that he could get money for the gun.

Spencer indicated that he disposed of the hatchet in a bag in a garbage

can at the Texaco station. Spencer stated that he took the money he stole

from Reliford and went to rent a hotel room and bought cigarettes, beer,

food, and $100 worth of "ICE." (Spencer's recorded statement, at 1:29:03.)

According to Spencer, he had killed Reliford approximately two or three

weeks before he gave his statement to police.

In the recorded statement played for the jury, Spencer continued to

explain in his statement that he had seen Martin out in her yard and

around her house. Spencer stated that when he ran out of money on

Thursday, July 12, 2018, he went to Martin's house at approximately 8:30

p.m. Spencer got mail from a trash can and knocked on Martin's door in

an attempt to convince Martin to open the door so he could get in her

16 CR-2022-1280

house to get money. Spencer stated that when Martin opened the screen

door to get the mail from Spencer, he sprayed Martin with a deodorant

spray that he intended to burn her eyes. Spencer stated that he then

pulled out a toy pistol because Martin started screaming the name of

another person that Spencer believed to be inside the home. Spencer told

Martin to lay down on the floor. Martin told Spencer that no one was

there except her great-grandson. Spencer demanded that Martin tell

Colton to come into the kitchen. Spencer claimed that he then made

Martin and Colton go into the living room and sit on the couch. Spencer

then made Martin go in the bedroom to get her purse, and they all

returned to the living room. Martin told Spencer that she had only $13.

Spencer made Martin give Spencer her credit cards. According to

Spencer, he then tied Martin up with a phone-charger cord and tied

Colton up with some earbuds. At some point, Colton asked to use the

restroom and Spencer had to cut the earbuds off of Colton, which were

left lying on the restroom floor. After Colton went to the restroom,

Spencer tied Colton up again with a different cord on the living room

floor.

17 CR-2022-1280

Spencer stated that he made Martin go into her bedroom with him

while Spencer searched for money and while Colton remained in the

living room on the floor. Spencer stated that he found jewelry in a drawer

in Martin's room and that he dumped it on the bed in an attempt to find

valuable jewelry. Spencer then made Martin go back to the kitchen,

where Spencer searched the kitchen cabinets for money. Spencer stated

that he then took Martin into a different bedroom to go through drawers

in that bedroom. While Martin was standing against the bed in that

bedroom, Spencer placed some type of cord around Martin's neck to choke

her. Spencer stated that, after Martin fell to the floor, he stabbed Martin

in the neck and cut Martin's throat to make sure that she was dead.

Spencer claimed that he was going to leave Colton, who was still in the

living room, alone; however, he feared that Colton would later identify

him.

Spencer claimed that at that point, he made Colton go into the other

bedroom. Colton was facing away from Spencer, and Spencer hit Colton

twice with a hammer. Colton was still standing, so Spencer continued to

hit him about five or six more times with the claw end of the hammer

until Colton eventually fell. Spencer claimed that he washed his hands

18 CR-2022-1280

in the kitchen sink. He also stated that he went back in the bedroom and

got a pair of blue jeans to change into because he had blood on his pants.

Spencer found Martin's car keys and took Martin's car. Spencer parked

the car at the Publix store, tried to wipe the car down to remove

fingerprints, and threw the car keys out. He claimed that he slung the

knife he used on Martin into the creek. Spencer further directed the

officers to where he had disposed of Martin's purse, debit card, and other

belongings. Spencer claimed that he was under the influence of "ICE"

during the killings of Martin and Colton.

At the conclusion of Spencer's statement, Spencer confirmed to

Investigator Turner that no one had coerced, threatened or promised him

anything to speak to the officers. (Spencer's recorded statement, at

1:46:13.) Spencer acknowledged that, the first time he had spoken to

officers, Spencer had indicated that he might want to talk to an attorney

and that, at that time, the officers had ended the conversation and placed

Spencer in the jail. Spencer admitted that, while he was in the jail, he

approached the jailer two or three times and informed the jailer that he

wanted to talk to the officers again. Spencer acknowledged that, at that

point, the jailer brought him back to the jail and he agreed to speak to

19 CR-2022-1280

the officers without an attorney present. Spencer indicated that the

officers read Spencer his Miranda rights again before officers began the

conversation that resulted in his recorded statement.

Following the playing of Spencer's statement for the jury,

Investigator Turner further testified that, based on information provided

by Spencer during his interview, he, Agent Langdon, and Det. Farmer

took Spencer to look for some of the items that Spencer claimed to know

the location of. According to Investigator Turner, Spencer directed them

to Martin's "bank card," which was located in the hedge bushes behind

the local Walmart store, as Spencer had described to the officers in his

statement. (Supp. R. 1096). Investigator Turner also testified that

Spencer's account of the murders and his actions following the murders,

which Spencer had provided in his recorded statement to law

enforcement, matched evidence discovered at the crime scenes, video-

surveillance footage, and the state of the houses when the crimes were

discovered and investigated by law enforcement.

Over the course of several days following the murders, Spencer

requested to speak with Investigator Turner multiple times. Each time

Investigator Turner obtained a written Miranda waiver form, which

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Spencer signed. Based on information that officers obtained during those

interviews, officers recovered items located behind a local Waffle House

restaurant, which were relevant in the investigations of the murders of

Reliford, Martin, and Colton, including a bag with Reliford's mail, a bottle

of Axe body spray, a bottle of Aleve pain reliever, Reliford's cellular

telephone that was broken, and Spencer's t-shirt that he had been

wearing in the surveillance videos taken at the Texaco station.

Following the recovery of those items, on July 25, 2018, Spencer

again reached out to Investigator Turner requesting to speak with him.

During that discussion, which occurred after Spencer waived his

Miranda rights again, Spencer explained to the officers that the Axe body

spray was what he had used to spray in Martin's eyes and that the bottle

of Aleve came from Reliford's house. Spencer also indicated that he would

often go to the area behind the Waffle House to "hide and drink and do

crystal meth." (Supp. R. 1158.) On August 7, 2018, and August 15, 2018,

Spencer again requested to speak with Investigator Turner. During each

of the interviews conducted by law enforcement, Spencer maintained his

story and confession to the murders of Reliford, Martin, and Colton.

21 CR-2022-1280

Dr. Valerie Green, a medical examiner with the Alabama

Department of Forensic Sciences, testified that she performed an autopsy

on each of the victims. Dr. Green detailed the severity of the injuries

sustained by the victims, and autopsy photographs of each victim were

admitted into evidence. She testified that Reliford's cause of death was

blunt-force injuries of the head and neck. Dr. Green classified Martin's

cause of death as "asphyxiation due to ligature strangulation and blunt

force injuries of the neck." (Supp. R. 1215.) Dr. Green testified that

Colton's cause of death was blunt-force injuries of the head.

Standard of Review

This Court recently explained the following:

"Rule 45A, Ala. R. App. P., was amended on January 12, 2023, to state:

" 'In all cases in which the death penalty has been imposed, the Court of Criminal Appeals may, but shall not be obligated to, notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant.'

"Before Rule 45A was amended, this Court was required to conduct plain-error review in all cases in which the death penalty had been imposed. Although Rule 45A now provides

22 CR-2022-1280

that plain-error review is discretionary in such cases, this Court has explained that it will continue to conduct plain- error review in all cases in which the death penalty has been imposed. Iervolino v. State, [Ms. CR-21-0283, Aug. 18, 2023] ––– So. 3d ––––, ––––, (Ala. Crim. App. 2023). However, that does not mean that this Court will provide a detailed analysis, or even any analysis, of those claims that were not properly preserved for appellate review, as it historically did when plain-error review was mandatory. Id.

"The standard this Court employs in conducting plain- error 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 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

23 CR-2022-1280

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, ___ So. 3d at ___ (quoting DeBlase v. State, 294 So. 3d 154, 182-83 (Ala. Crim. App. 2018))."

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

(Ala. Crim. App. 2024).

Discussion

I.

Spencer alleges that his death sentence violates the Eighth and

Fourteenth Amendments to the United States Constitution because, he

says, he is "intellectually disabled" under Atkins v. Virginia, 536 U.S.

304, 321 (2002), and Ex parte Perkins, 851 So. 2d 453, 456 (Ala. 2002).

(Spencer's brief at 42.) Specifically, Spencer argues that he has

"substantially subaverage intellectual ability," that he displays

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significant or substantial deficits in adaptive behavior, and that his

intellectual disabilities manifested themselves before the age of 18. To

the contrary, the State argues that Spencer failed to meet his burden to

prove that he is intellectually disabled under Atkins.

Spencer called one witness to testify at his Atkins hearing. Dr.

Randall Griffith, a clinical neuropsychologist, testified that he performed

a psychological evaluation of Spencer on December 10, 2021, at the Kilby

Correctional Facility. Dr. Griffith explained that he administered the

Wechsler Adult Intelligence Scale, Fourth Edition, IQ test, which

consists of 4 subcategories under IQ, and is made up of 10 separate

subtests. Dr. Griffith's evaluation lasted approximately 75 minutes. Dr.

Griffith testified that, during his evaluation, Spencer was "cooperative,"

that he spoke and answered questions about his background, and that he

had a "reasonable mood" without indication of any "mood disturbances."

(Supp. R. 178-79.) Dr. Griffith explained that he did not observe anything

from Spencer that would suggest any severe mental illness, such as

"responding to internal stimuli," "responding to voices," or paranoia, and

that Spencer had "marginal insight" by having the ability to explain

things about his background and his life and how those things affected

25 CR-2022-1280

him. (Supp. R. 179.) However, Dr. Griffith stated, he was unsure whether

Spencer had "full appreciation of all the meanings of why those things

might have affected him." (Supp. R. 179.) The only "confounding factors"

that Dr. Griffith thought "might" relate to Spencer's IQ was that Spencer

has a history of some drug use, which Dr. Griffith claims "can affect a

person's intellectual functioning." (Supp. R. 178.) Dr. Griffith testified

that Spencer was generally oriented to where he was and who he was;

however, Spencer did not know the date or aspects of time. Dr. Griffith

testified that "[o]verall I thought [Spencer's] testing was somewhat

inefficient" and that Spencer tended to make errors on tasks that

required transcription of numbers and symbols. (Supp. R. 179.)

Additionally, Dr. Griffith acknowledged that the test was

performed without Spencer's eyeglasses, although he did not believe

Spencer's lack of his eyeglasses substantially affected his test

performance. Dr. Griffith testified that it was "a little bit difficult to

completely extrapolate and say this is a completely accurate picture of

[Spencer's] performance," but, "given [Spencer's] background," he

thought that the testing "seemed to be a fair representation." (Supp. R.

180.) Dr. Griffith also acknowledged that "the lowest test [Spencer]

26 CR-2022-1280

performed on was the processing speed test" and that Spencer did have

handcuffs on during the evaluation, which "might have slowed him down

slightly." (Supp. R. 184.) However, Dr. Griffith testified, he considered

the testing to be "generally accurate." (Supp. R. 184.)

In regard to Spencer's educational background, Dr. Griffith

testified that Spencer informed him that the last grade he had completed

was the eighth grade, that he had had special-education services because

"he was identified as a slow learner," that he had not attended school

regularly because he had to stay home and help his mother, and that he

had repeated at least one grade. (Supp. R. 180.) Spencer informed Dr.

Griffith that his work history included working with a logging crew and

working at a sewing plant where he delivered materials from one location

to another. Dr. Griffith also stated that his understanding was that

Spencer had been in prison since he was 20 or 21 years old. Dr. Griffith

testified that he determined Spencer's IQ to be 56.

On cross-examination, Dr. Griffith testified that he was instructed

to perform an IQ test and that he did not perform any adaptive-

functioning testing during his evaluation. He also stated that, although

he did not say anything in his written report about the third requirement

27 CR-2022-1280

under Atkins, i.e., the onset of intellectual and adaptive-functioning

deficits before the age of 18, he thought that the educational history

provided to him by Spencer "would be suggestive" of Spencer’s having an

early onset of such deficits. (Supp. R. 191.) He testified that the amount

of time he had spent with Spencer was "sufficient" to administer the IQ

test; however, he was concerned about the lack of time that he had spent

with Spencer. (Supp. R. 193.) Dr. Griffith indicated that, although

Spencer was determined to be in the intellectual-functioning range of

someone with an IQ of 56, because Dr. Griffith did not assess the second

and third criteria under Atkins, "a larger evaluation or more typical

Atkins type evaluation" would be required for a full diagnosis. (Supp. R.

201.) He also acknowledged that it was "concerning" that he had to

perform the evaluations while Spencer was still manacled. (Supp. R.

205.) Dr. Griffith also noted that, in evaluating Spencer, he did not review

any of Spencer's mental-health or psychological history, including

records from the Department of Corrections or Spencer's school records.

Dr. Griffith testified that he did not have any information regarding

Spencer's abilities, such as whether he could use a debit or credit card, a

cellular telephone, or computers, whether he could provide housing for

28 CR-2022-1280

himself, whether he could maintain friendships with others, or whether

he could prepare food or clothe himself.

During the hearing, Dr. Griffith's report was admitted into

evidence. Dr. Griffith's written report stated that Spencer's intellectual

test results fell in the "extremely low range, representing an IQ score

falling within the range of 53-61." (C. 349.) Dr. Griffith's report also

concluded with the following statement:

"Lastly, Mr. Spencer's test findings could represent Intellectual Disability, although a more substantive evaluation focusing on his adaptive functioning and review of historical records (if available) would be required to investigate the possibility of an Intellectual Disability diagnosis."

(C. 340.)

At the conclusion of the Atkins hearing, the trial court found that

the defense had not meet its burden of proof to establish that Spencer

was intellectually disabled.

The Alabama Supreme Court has held that

"[i]ntellectual disability must be proven by a preponderance of the evidence, and the trial court's determination is entitled to deference on appeal. Ex parte Lane, 286 So. 3d 61, 66 (Ala. 2018)(citing Ex parte Smith, 213 So. 3d 313, 319 (Ala. 2010)). A trial judge exceeds his or her discretion when there is no evidence on which the judge could have rationally based his

29 CR-2022-1280

or her decision regarding the defendant's intellectual disability. Ex parte Lane, 286 So. 3d at 66."

Carroll v. State, 300 So. 3d 59, 61 (2019). Additionally, the United States

Supreme Court and the Alabama Supreme Court have recognized that

"it is unconstitutional to impose a death sentence upon a defendant with

an intellectual disability." Carroll, 300 So. 3d at 62 (citing Moore v. Texas,

581 U.S. 1 (2017), and Atkins v. Virginia, 536 U.S. 304 (2002)).

In Ex parte Perkins, the Alabama Supreme Court held that, in

order for a defendant to be considered intellectually disabled, a defendant

"must have significantly subaverage intellectual functioning (an IQ of 70

or below), and significant or substantial deficits in adaptive behavior."

851 So. 2d at 456. "Additionally, these problems must have manifested

themselves during the developmental period (i.e., before the defendant

reached age 18.)" Id. The Alabama Supreme Court has recognized that

that "[a]ll three factors must be met in order for a person to be classified

as mentally retarded for the purposes of an Atkins claim." 3 Ex parte

Smith, 213 So. 3d 313, 317 (Ala. 2010)(citing Smith v. State, 213 So. 3d

239, 248 (Ala. 2007)). "Implicit in the definition is that the subaverage

3Previous court decisions use the term "mentally retarded" to refer

to a person that is intellectually disabled. 30 CR-2022-1280

intellectual functioning and the deficits in adaptive behavior must be

present at the time the crime was committed as well as having

manifested themselves before age 18." Smith, 213 So. 3d at 248.

In the present case, we find that the trial court did not abuse its

discretion in finding that Spencer failed to meet his burden to prove that

he was intellectually disabled and ineligible for the death penalty.

Spencer, relying solely on Dr. Griffith's finding that he had a full-scale

IQ score of 56, argues that his IQ score is "nearly three standard

deviations below the mean for the general population" and that "the State

did not present any evidence to refute [his] score." (Spencer's brief at 45-

46.) We agree that a determination that Spencer's full-scale IQ score is

56 would suggest that he had a significant subaverage intellectual

functioning. However, we note that evidence was also presented during

the Atkins hearing that was sufficient to cause the reliability of Dr.

Griffith's test results to be called into question. 4 Specifically, at the

hearing, Dr. Griffith expressed his concern regarding the limited time

4We note that in the State's brief on appeal, the State also points to

portions of Dr. Glen King's testimony during the penalty phase of Spencer's trial to further support its position that Spencer had failed to adequately prove that he was intellectually disabled. 31 CR-2022-1280

constraints placed on his administration of Spencer's IQ test, which he

admitted could have affected the accuracy of the test. He also

acknowledged that the test was performed while Spencer was still in

handcuffs and that Spencer did not have his eyeglasses during the test,

which could also impact test results. Despite the admitted shortcomings

in the administration of Spencer's IQ test, according to Dr. Griffith's

report that was admitted into evidence, Dr. Griffith opined that the test

findings were an "accurate representation" of the intellectual functioning

of Spencer. (C. 338.)

Regardless, even assuming that Spencer's IQ does, in fact, put him

in the range of having significantly subaverage intellectual functioning,

Spencer failed to present sufficient evidence to prove the second and third

requirements necessary to render him intellectually disabled under

Atkins. At the hearing, Dr. Griffith acknowledged that any information

he had regarding Spencer's adaptive functioning and whether Spencer's

intellectual or adaptive deficits began before the age of 18 were based on

Spencer's own self-reporting to Dr. Griffith during their interview. Dr.

Griffith admittedly did not review any educational records or past

medical records during his evaluation of Spencer. Most importantly, Dr.

32 CR-2022-1280

Griffith testified at the hearing that he did not assess the second and

third criteria under Atkins and that, thus, "a larger evaluation or more

typical Atkins type evaluation" would be required for a full diagnosis.

Likewise, in Dr. Griffith's written report, he concluded that, although

Spencer's test findings "could represent Intellectual Disability," a "more

substantive evaluation focusing on his adaptive functioning and review

of historical records … would be required to investigate the possibility of

an Intellectual Disability diagnosis." (C. 340.) Accordingly, because

Spencer failed to present evidence establishing that he met the second

and third criteria that are required for a defendant to be classified as

intellectually disabled under Atkins, the trial court did not err in finding

that Spencer was not intellectually disabled. See Ex parte Smith, 213 So.

3d at 317.

II.

Next, Spencer claims that the trial court erred in failing to hold a

hearing on his motion to suppress his statements to law enforcement. In

Spencer's brief, he alleges that he first made a request for a suppression

hearing in his motion to suppress and that, during a pretrial conference,

he "reiterated his request" for the court to hold a " 'a separate hearing on

33 CR-2022-1280

the motion to suppress, once we have the results of [Spencer's] IQ test.' "

(Spencer's brief at 21.) He claims that, "[w]hile the trial court initially

indicated that it would hold a hearing on [Spencer's] motion to suppress,"

"the court ultimately denied the motion without holding a suppression

hearing, based solely on the court's own in camera review of the

statements." (Spencer's brief at 22.)

In a pretrial motion, Spencer moved to suppress the statements

that he made to law enforcement. In his motion to suppress, he argued:

"1. The statements were obtained in violation of [Spencer's] privilege against self-incrimination and the right to counsel as guaranteed by the Fifth, Sixth, and Fourteenth Amendment[s] to the United States Constitution.

"2. The statements constitute the fruit of an unlawful arrest and violation of [Spencer's] right to privacy as guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution.

"3. All statements, whether written or oral, were obtained from [Spencer] in violation of the rights afforded by the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, in that all these statements were made without counsel present, and without adequate warning of [Spencer's] rights, at the time during which they were undergoing great mental strain and physical strain.

"4. The statements were made prior to [Spencer's] presentment before a committing Judge and after a lapse of an unreasonable time from time of the arrest.

34 CR-2022-1280

"5. Further grounds for the suppression of this statement will be developed at the time of the hearing on the motion."

(C. 30.)

On December 7, 2021, the trial court held a pretrial-conference

hearing, at which Spencer was scheduled to appear via Zoom, a video-

conferencing application. Spencer was not initially present on Zoom.

While the court waited on Spencer to appear on the video, the court did

not hear substantive arguments, but the court and counsel for both the

State and the defense discussed whether there were any matters or

motions that the parties could agree on before they started the hearing.

After discussion on several other pretrial matters, the following occurred:

"[Prosecutor]: … Is there any other motions that we could possibly –

"[Defense Counsel]: We could discuss the motion to suppress the defendant's statements, Your Honor. We had certainly hoped that could have been resolved long before now. We did finally get the psychological evaluation completed and a report on that, which of course gave rise to some issues over the defendant's IQ.

"We have made arrangements to have him IQ tested. As you know, we had some difficulty getting the doctor in the prison to meet with him.

"THE COURT: Has that still not happened?

35 CR-2022-1280

"[Defense Counsel]: It has happened. He's scheduled to get that done on Friday. Of course, the issue becomes we don't know how long it's going to take him to complete that, and we don't know how long it's going to take him to get a report back to us. So we really can't move forward on that motion until we have that.

"THE COURT: Okay. That issue will remain open, then."

(Supp. R. 59-60.) The trial court further questioned the attorneys

regarding the amount of statements and the length of the recorded

statements in question. The attorneys explained that there were "seven

or eight" statements that "took place at separate times with different

people present." (Supp. R. 60-61.) The following then occurred:

"[Defense Counsel:] Judge, the defense would not object to you listening to those prior to hearing.

"THE COURT: Prior to trial?

"[Defense Counsel:] Or the trial.

"THE COURT: Talking about a lot of time there.

"[Defense Counsel:] Yes, sir. It would save time as far as in- court time in front of the jury not having to break to let the Court listen to that."

(Supp. R. 61.) After more discussion regarding the length of time it might

take the court to listen to all the recordings of Spencer's statements, the

following transpired:

36 CR-2022-1280

"THE COURT: On the motion to suppress the Court will do an in camera hearing, meaning I'll have to listen to them individually before the trial starts and stop/start or whatever. And are these all audiotapes or are some of them videotapes?

"[Prosecutor:] One video, and the rest are audio.

"[Prosecutor 2:] And, I don't know if I understand what [defense counsel] is saying, Judge. I have no idea what the results of the evaluation will be, but there may be some sort of modification to his motion to suppress, is what I think I've heard [defense counsel] say, that may also necessitate another proceeding. I don't know.

"[Defense Counsel:] I think we would need to have a separate hearing on the motion to suppress, Your Honor, once we have the results of the IQ test.

"THE COURT: So you believe we're going to need to revisit the issue after the completion of his IQ test?

"[Defense Counsel:] Yes, Your Honor"

(Supp. R. 63-64.) After more discussion, the court concluded:

"THE COURT: All right. Very well. We'll have to get that done. We can't speculate what that's going to be until the psychological IQ test is finished."

(Supp. R. 64.)

After Spencer joined the hearing via Zoom, the court held a

substantive hearing on other matters. At the conclusion of the hearing,

the court stated the following:

37 CR-2022-1280

"THE COURT: … I also am on notice now that I'm going to have to go through an extensive amount of audiotapes, so I'll have to go through all those tapes before I can give an opinion as to whether they're admissible or not.

"We still have the open question that may require a second hearing on pretrial regarding this expert interviewing – going to interview [Spencer] on Friday, starting Friday. I don't know if he's going to be finished by then or not. Then I have to have get [sic] that report."

(Supp. R. 98)(emphasis added).

On December 16, 2021, the trial court issued a written order noting

that the "Motion to Suppress Statements is held open" and that all audio

and video recordings, or written statements, were to be turned over to

the court to review for the defense's motion to suppress. (C. 202.)

On August 31, 2022, the trial court entered an order, stating that

the court had reviewed all of Spencer's statements and found that all of

Spencer's statements given to law-enforcement officers were admissible.

(C. 218.)

During trial, the only instance in which Spencer's counsel brought

up the suppression matter was when the State sought to introduce

State's Exhibit 81, which was a Miranda waiver form executed by

Spencer before giving one of his statements, during Investigator Turner's

testimony. The following transpired:

38 CR-2022-1280

"[Prosecutor:] I'll offer State's Exhibit 81, Your Honor.

"THE COURT: Any objection to 81?

"[Defense Counsel:] Your Honor, the defense would reassert the motions and arguments previously asserted at the suppression hearing, pretrial.

"THE COURT: All right. So noted. 81 is admitted."

(Supp. R. 1083.)

Rule 104(c), Ala. R. Evid., states:

"In criminal cases, hearings on the admissibility of confessions or evidence alleged to have been obtained unlawfully shall be conducted out of the hearing and presence of the jury. Hearings on other preliminary matters shall be conducted out of the hearing and presence of the jury when the interests of justice require."

Therefore, as this Court recently explained, "[t]he current law in

Alabama is that if a defendant files a motion to suppress a statement, he

does not have to request that a hearing be held outside the presence of

the jury because such a hearing is mandatory." Ketchum v. State, [Ms.

CR-2023-0611, May 3, 2024] ___ So. 3d ___, ___ (Ala. Crim. App. 2024).

See also Lewis v. State, 27 So. 3d 600, 602 n.1 (Ala. Crim. App.

2008)(noting that the adoption of Rule 104, Ala. R. Evid., made

mandatory a hearing on a motion to suppress outside the presence of the

jury).

39 CR-2022-1280

In the present case, Spencer filed a pretrial motion to suppress,

raising several allegations of a violation of his constitutional rights. (C.

30.) On December 7, 2021, the trial court purported to hold a hearing on

all pretrial motions. During that pretrial hearing, the record is clear that

both parties agreed to have the trial court listen in camera to the

recordings of Spencer's confessions and statements to law enforcement,

due to the "extensive amount" of recordings that the court was going to

have to review before making its decision on the admissibility of the

statements. " 'A party may not predicate an argument for reversal on

"invited error," that is, "error into which he has led or lulled the trial

court." ' " Smith v. State, 795 So. 2d 788, 813 (Ala. Crim. App.

2000)(quoting Atkins v. Lee, 603 So. 2d 937 (Ala. 1992)). "We have

applied the invited-error rule to capital cases. Smith, 795 So. 2d at 813.

"An invited error is waived, unless it rises to the level of plain error." Ex

parte Bankhead, 585 So. 2d 112, 126 (Ala. 1991). Consequently, because

the underlying basis for this argument concerns a stipulation by the

parties, Spencer's argument lacks merit.

Further, to the extent that Spencer is arguing that the court failed

to hold an additional hearing on the admission of the statements relating

40 CR-2022-1280

to additional grounds or new issues that could have possibly been

revealed following Spencer's mental evaluation, Spencer is also not

entitled to relief. "Rule 104(c), Ala. R. Evid., imposes no duty on a judge

to hold a hearing outside the presence of the jury when no motion to

suppress or challenge to the evidence has been made." Ketchum, ___ So.

3d at ___. At the December 7, 2021, hearing, Spencer's defense counsel

and the court acknowledged that the possible need for a second hearing

was dependent on the results of the mental evaluation. As the trial court

noted, neither the parties nor the court could speculate as to the findings

of that evaluation. The record indicates that, following the mental

evaluation, defense counsel did not file any additional motions requesting

that the court suppress Spencer’s statements on other grounds related to

the mental evaluation, nor did counsel request an additional hearing on

the matters of suppression already presented to the court in the original

motion to suppress. During the trial, Spencer objected to the admission

of his Miranda waiver form, and, apparently, his statement to law

enforcement, by merely stating that the defense would "reassert the

motions and arguments previously asserted at the suppression hearing,

pretrial." (Supp. R. 1083.) Therefore, based on the record before this

41 CR-2022-1280

Court, we conclude that the trial court did not commit reversible error by

failing to hold any further hearings on the suppression of Spencer's

statements.

III.

Spencer also claims that the trial court erred in admitting his

inculpatory statements to law enforcement because, he says, "the totality

of the circumstances surrounding [Spencer's] interrogation – including

both [Spencer's] personal characteristics and the conduct of the

interrogating officers – establishes that the waiver of rights and the

admitted statements were not freely and voluntarily given, but rather

were the result of a coercive interrogation that overbore [Spencer's] will."

(Spencer's brief at 28.) Spencer insists that his "intellectual deficits and

personal characteristics" rendered both his waiver of rights and his

subsequent statements involuntary. (Spencer's brief at 29.) He also

claims that the circumstances of his interrogations, including the length

of the interrogations over the course of two days and the alleged conduct

of the officers after Spencer allegedly invoked his constitutional rights,

establish that his statements were a product of coercion.

42 CR-2022-1280

First, the record reflects that, although Spencer provided eight

statements to law enforcement over the course of several weeks, only one

of those statements was offered by the State and admitted into evidence

at trial. (State's Exhibit 82; Supp. R. 1085.) In his brief, the majority of

Spencer's argument and citations to the record challenging the admission

of his statements to law enforcement relate to Spencer's first and second

statements that were given to law enforcement. Not only are these two

statements not included in the record on appeal, but the record reveals

that those statements were never presented by the State or admitted into

evidence during Spencer's trial. Therefore, the remaining seven

statements, aside from the one statement given by Spencer on July 16,

2018, and any challenges related to those statements cannot be

considered by this Court. See Morrow v. State, 928 So. 2d 315, 321 n.5

(Ala. Crim. App. 2004)("This Court is bound by the record on appeal and

cannot consider facts not contained in the record."). Thus, any challenge

to the admission of the statements that were not admitted into evidence

is moot.

Additionally, to the extent that Spencer challenges the trial court's

admission of Spencer's recorded statement that he gave to law

43 CR-2022-1280

enforcement on July 16, 2018, see State's Exhibit 82, wherein Spencer

confessed to the murders of Reliford, Martin, and Colton, Spencer is also

not entitled to relief.

In Ex parte Jackson, 836 So. 2d 979 (Ala. 2002), the Alabama

Supreme Court stated:

" ' "In reviewing the correctness of the trial court's ruling on a motion to suppress, this Court makes all the reasonable inferences and credibility choices supportive of the decision of the trial court." ' Kennedy v. State, 640 So. 2d 22, 26 (Ala. Crim. App. 1993), quoting Bradley v. State, 494 So. 2d 750, 760–61 (Ala. Crim. App. 1985), aff'd, 494 So. 2d 772 (Ala. 1986), cert. denied, 480 U.S. 923, 107 S.Ct. 1385, 94 L.Ed.2d 699 (1987). The trial court's ruling on a motion to suppress will not be disturbed unless it is palpably contrary to the great weight of the evidence. See Dixon v. State, 588 So. 2d 903 (Ala. 1991); Parker v. State, 587 So.2d 1072, 1088 (Ala. Crim. App. 1991); Rutledge v. State, 680 So. 2d 997, 1002 (Ala. Crim. App. 1996); and Maples v. State, 758 So. 2d 1 (Ala. Crim. App. 1999), aff'd, 758 So. 2d 81 (Ala. 1999), cert. denied, 531 U.S. 830, 121 S.Ct. 83, 148 L.Ed.2d 45 (2000).

"Extrajudicial statements are prima facie involuntary and inadmissible; the duty rests on the trial court to determine whether the statement is voluntary, and unless it appears that it is voluntary it should not be admitted. See Farrior v. State, 728 So. 2d 691 (Ala. Crim. App. 1998). The burden is on the State to show voluntariness and a Miranda predicate before such a statement can be admitted into evidence. See Lewis v. State, 535 So. 2d 228 (Ala. Crim. App. 1988). 'Whether a waiver is voluntary, knowing, and intelligent depends on the particular facts and underlying circumstances of each case, including the background, experience, and conduct of the accused—i.e., the totality of the

44 CR-2022-1280

circumstances.' Click v. State, 695 So. 2d 209, 218 (Ala. Crim. App. 1996). The voluntariness of an inculpatory statement remains undetermined until the trial court has examined the totality of the circumstances surrounding the statement. See Ex parte Hill, 557 So. 2d 838, 841 (Ala.1989).

"The trial court's finding that a statement was voluntary need only be supported by a preponderance of the evidence. Dixon[,] supra. The test for the voluntariness of an extrajudicial confession or an inculpatory statement is whether, in light of all the surrounding circumstances, the statement was free from inducement, threat, or promise, either expressed or implied, that would have produced in the mind of the accused any fear of harm or hope of favor. Ex parte Price, 725 So. 2d 1063 (Ala.1998), cert. denied, 526 U.S. 1133, 119 S.Ct. 1809, 143 L.Ed.2d 1012 (1999)."

836 So. 2d at 982-82.

Additionally, this Court has further explained:

" 'To determine if a defendant's will has been overborne, [a court] must assess "the conduct of the law enforcement officials in creating pressure and the suspect's capacity to resist that pressure"; "[t]he defendant's personal characteristics as well as his prior experience with the criminal justice system are factors to be considered in determining [the defendant's] susceptibility to police pressures." Jackson [v. State], 562 So. 2d [1373,] 1380–81 [(Ala. Crim. App. 1990)] (citations omitted).'

"McLeod [v. State], 718 So. 2d [727,] at 730 [(Ala. 1998)]. The Alabama Supreme Court has explained:

" '[An] [a]ccused's intelligence, character and situation at the time of the confession of the crime

45 CR-2022-1280

charged are important considerations in determining whether the confession was voluntary, but the fact that accused was of tender age or weak intellect will not alone render the confession inadmissible in evidence as involuntary. State v. Ashdown, 5 Utah 2d 59, 296 P.2d 726 [(1956)]. Evidence tending to show a defendant's weak mentality, feeblemindedness, and mental stress does not affect the admissibility of the confessions, but rather is a matter that bears on the weight, credibility and effect to be given the confessions by the jury. State v. Stewart, 238 La. 1036, 117 So. 2d 583 [(1960)].'

"Elrod v. State, 281 Ala. 331, 334, 202 So. 2d 539, 542 (1967); see also Jones v. State, 43 So. 3d 1258, 1273 (Ala. Crim. App. 2007) (same). Thus, '[w]hile an accused's intelligence and literacy are important factors, ... weak intellect or illiteracy alone will not render a confession inadmissible.' Hobbs v. State, 401 So. 2d 276, 282 (Ala. Crim. App. 1981) (citations omitted); see also Hodges v. State, 926 So. 2d 1060, 1073 (Ala. Crim. App. 2005) (same); cf. Colorado v. Connelly, 479 U.S. 157, 165, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986) (holding that mental defects alone are insufficient to establish that a confession was involuntary under the Due Process Clause). Further, 'trickery or deception by the police ... have not been considered sufficiently coercive, standing alone, to render a confession or incriminating statement involuntary.' Ex parte Jackson, 836 So. 2d 979, 983 (Ala. 2002)(quoting Ex parte Hill, 557 So. 2d 838, 841 (Ala. 1989)). See also United States v. Velasquez, 885 F.2d 1076, 1088 (3d Cir. 1989)(false statement that co-actor had made statement against defendant and was being set free did not render confession involuntary)."

Townes v. State, 253 So. 3d 447, 498 (Ala. Crim. App. 2015).

46 CR-2022-1280

Considering the totality of the circumstances in this case, the State

presented sufficient evidence to establish that Spencer's statement was

voluntarily given. Spencer claims in his brief that his intellectual deficits,

such as his low IQ and his failure to complete past the eighth grade,

render his statement involuntary. While the court may consider such

factors in determining the validity of his waiver, those factors alone are

not determinative of the voluntariness of the waiver of his rights. See

Dobyne v. State, 672 So. 2d 1319, 1337 (Ala. Crim. App. 1994)(holding

that having a low IQ, by itself, does not render a waiver of Miranda rights

ineffective, but is merely one factor affecting the validity of a waiver of

rights and the voluntariness of a confession); see also Colorado v.

Connelly, 479 U.S. 157, 163-65 (1986) ("[T]he fact that a defendant may

suffer from a mental impairment or low intelligence will not, without

other evidence, render a confession involuntary."). Thus, despite

Spencer’s purportedly having a low IQ, a low IQ alone does not render

his confession involuntary. Additionally, we note that, as this Court

previously determined in Section I of this opinion, the trial court properly

determined that Spencer had failed to prove that he was intellectually

disabled.

47 CR-2022-1280

Spencer also claims that the voluntariness of his statement was

affected because, at the time he was brought in for questioning, he "told

investigators that he had not slept for days because he was high on

methamphetamines." (Spencer's brief at 30.) However, even if Spencer's

contention regarding his mental state at the time he was initially brought

in for questioning is taken as true, the evidence presented indicates that

Spencer was initially brought in for questioning on July 15, 2018, a day

before when Spencer provided the statement in question to law

enforcement. On July 16, 2018, the day that the statement in question

occurred, Spencer had spent the prior night in jail and then he requested

to speak with the officers the following day. While there was no evidence

regarding Spencer's ability to sleep the night before his statement was

given, Investigator Turner testified that, at the time Spencer gave this

statement, Spencer did not appear to be under the influence of drugs,

alcohol, or medicines. Immediately before Spencer's confession,

Investigator Turner read each of Spencer's Miranda rights to him, just as

he had done the day prior. Spencer, once again, indicated that he was

aware of his Miranda rights and executed the Miranda waiver form,

waiving his rights. A copy of the Miranda waiver form was entered into

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evidence. Notably, each of the instances of coercion that Spencer proffers

in his brief involve conversations that allegedly took place during

Spencer's first two statements given to police on July 15, 2018, which

were not admitted into evidence and, thus, are not before this Court for

consideration. There is no indication in the record that Spencer's

recorded statement was the product of any threats, inducements,

promises, or coercion. In fact, in his recorded statement, Spencer

affirmatively confirms that he was not threatened or promised anything

in exchange for his statement. Therefore, after reviewing the totality of

the circumstances in this case, we conclude that the trial court did not

abuse its discretion in finding that Spencer's confession was voluntarily

given. Accordingly, this issue is without merit and does not entitle

Spencer to any relief.

IV.

Next, Spencer argues that the trial court erroneously denied his

motion for a change of venue. Before trial, Spencer filed a motion for a

change of venue alleging that trying the case in Marshall County would

violate his right to a fair trial by an impartial jury guaranteed by the

Sixth and Fourteenth Amendments to the United States Constitution. In

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his motion, he claimed that all the major newspapers, radio stations, and

television stations in Marshall County and the surrounding counties had

described "the acts with which the defendant [was] charged." (C. 155.) He

also claimed that the newspapers "included significant portions of

documentary and hearsay evidence relative to the defendant," which

"severely prejudiced" Spencer. (C. 155.)

The trial court held a pretrial hearing to address Spencer's motion

to change venue. At the hearing, Steve Raby, with a communication

company that does statistical research on behalf of its clients, testified as

an expert in statistics. Raby testified that, after reviewing the media

coverage involving Spencer's case, the extent of the news coverage was

"in the upper 80 percentile." (Supp. R. 69.) He noted that his company

considered statements made, such as "this is a gruesome situation," and

comments that had been made by the Attorney General, such as "[t]his

is a career criminal" or "[s]ome of our investigators here say this is one of

the worst cases they've seen in history." (Supp. R. 69.) Raby testified that

his company performed a survey of registered voters in Marshall County

that are eligible for participation in the jury pool. According to Raby, of

the people polled, "[o]ver 70 percent" had a "substantial recall of the

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events alleged in the indictment" against Spencer. (Supp. R. 71-72.) He

also claimed that "73 percent" felt that Spencer was guilty of murder, "27

percent" were unsure, and 0 said that Spencer was "not guilty." (Supp. R.

71-72.)

The State argued that Spencer had failed to meet his burden to

establish that a fair and impartial trial could not be had if the trial were

to be held in Marshall County. After accepting arguments from both the

State and defense counsel, the trial court took the matter under

advisement. The trial court ultimately denied Spencer's motion for a

change of venue in a written order issued on December 16, 2021.

This Court has explained:

" ' "When requesting a change of venue, '[t]he burden of proof is on the defendant to "show to the reasonable satisfaction of the court that a fair and impartial trial and an unbiased verdict cannot be reasonably expected in the county in which the defendant is to be tried." ' " Jackson v. State, 791 So. 2d 979, 995 (Ala. Crim. App. 2000) (quoting Hardy v. State, 804 So. 2d 247, 293 (Ala. Crim. App. 1999), aff'd, 804 So. 2d 298 (Ala. 2000), quoting in turn Rule 10.1(b), Ala. R. Crim. P.).

" ' "[T]he determination of whether or not to grant a motion for change of venue is generally left to the sound discretion of the trial judge because he has the best opportunity to assess any

51 CR-2022-1280

prejudicial publicity against the defendant and any prejudicial feeling against the defendant in the community which would make it difficult for the defendant to receive a fair and impartial trial." '

" ' Nelson v. State, 440 So. 2d 1130, 1132 (Ala. Crim. App. 1983). Therefore, "[a] trial court's ruling on a motion for a change of venue is reviewed for an abuse of discretion." Woodward v. State, 123 So. 3d 989, 1049 (Ala. Crim. App. 2011).

" ' "In connection with pretrial publicity, there are two situations which mandate a change of venue: 1) when the accused has demonstrated 'actual prejudice' against him on the part of the jurors; 2) when there is 'presumed prejudice' resulting from community saturation with such prejudicial pretrial publicity that no impartial jury can be selected."

" 'Hunt v. State, 642 So. 2d 999, 1042-43 (Ala. Crim. App. 1993), aff'd, 642 So. 2d 1060 (Ala. 1994).

" '....

" ' "Actual prejudice exists when one or more jurors indicated before trial that they believed the defendant was guilty, and they could not set aside their opinions and decide the case based on the evidence presented at trial." Hosch v. State, 155 So. 3d 1048, 1118 (Ala. Crim. App. 2013). "The standard of fairness does not require jurors to be

52 CR-2022-1280

totally ignorant of the facts and issues involved." Ex parte Grayson, 479 So. 2d 76, 80 (Ala. 1985). " 'It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court....' " Id. (quoting Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961)).

" 'Prejudice is presumed " 'when pretrial publicity is sufficiently prejudicial and inflammatory and the prejudicial pretrial publicity saturated the community where the trials were held.' " Hunt[ v. State], 642 So. 2d [999,] 1043 [(Ala. Crim. App. 1993)] (emphasis omitted) (quoting Coleman v. Kemp, 778 F.2d 1487, 1490 (11th Cir. 1985)). " 'To justify a presumption of prejudice under this standard, the publicity must be both extensive and sensational in nature. If the media coverage is factual as opposed to inflammatory or sensational, this undermines any claim for a presumption of prejudice.' " Jones v. State, 43 So. 3d 1258, 1267 (Ala. Crim. App. 2007) (quoting United States v. Angiulo, 897 F.2d 1169, 1181 (1st Cir. 1990)). "In order to show community saturation, the appellant must show more than the fact 'that a case generates even widespread publicity.' " Oryang v. State, 642 So. 2d 979, 983 (Ala. Crim. App. 1993) (quoting Thompson v. State, 581 So. 2d 1216, 1233 (Ala. Crim. App. 1991)). Only when "the pretrial publicity has so 'pervasively saturated' the community as to make the 'court proceedings nothing more than a "hollow formality" ' " will presumed prejudice be found to exist. Oryang, 642 So. 2d at 983 (quoting Hart v. State, 612 So. 2d 520, 526-27 (Ala. Crim. App.), aff'd, 612 So. 2d 536 (Ala. 1992), quoting in turn,

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Rideau v. Louisiana, 373 U.S. 723, 726, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963)). "This require[s] a showing that a feeling of deep and bitter prejudice exists in [the county] as a result of the publicity." Ex parte Fowler, 574 So. 2d 745, 747 (Ala. 1990).

" 'In determining whether presumed prejudice exists, we look at the totality of the circumstances, including the size and characteristics of the community where the offense occurred; the content of the media coverage; the timing of the media coverage in relation to the trial; the extent of the media coverage; and the media interference with the trial or its influence on the verdict. See, e.g., Skilling v. United States, 561 U.S. 358, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010), and Luong v. State, 199 So. 3d 139, 146 (Ala. 2014). "[T]he 'presumptive prejudice' standard is ' "rarely" ' applicable, and is reserved for only "extreme situations." ' " Whitehead v. State, 777 So. 2d 781, 801 (Ala. Crim. App. 1999), aff'd, 777 So. 2d 854 (Ala. 2000) (quoting Hunt, 642 So. 2d at 1043, quoting in turn, Coleman, 778 F.2d at 1537).'

"Floyd v. State, 289 So. 3d 337, 372-74 (Ala. Crim. App. 2017).

" '[T]he Alabama Supreme Court in Luong v. State, 199 So. 3d 139 (Ala. 2014), recognized the difficulty of establishing that a motion for a change of venue is warranted based on a claim of prejudicial pretrial publicity.' Thompson v. State, 310 So. 3d 850, 865 (Ala. Crim. App. 2018). In Luong, the defendant was convicted of killing his four children by throwing them off a bridge. The Alabama Supreme Court, in declining to find that the extensive media coverage of the case warranted a change of venue, stated:

54 CR-2022-1280

" ' "If, in this age of instant, mass communication, we were to automatically disqualify persons who have heard about an alleged crime from serving as a juror, the inevitable result would be that truly heinous or notorious acts will go unpunished. The law does not prohibit the informed citizen from participating in the affairs of justice. In prominent cases of national concern, we cannot allow widespread publicity concerning these matters to paralyze our system." '

"Luong, 199 So. 3d at 150 (quoting Calley v. Callaway, 519 F.2d 184, 210 (5th Cir. 1975))."

Iervolino v. State, [Ms. CR-21-0283, Aug. 18, 2023] ___ So. 3d ___, ___

(Ala. Crim. App. 2023).

Spencer contends on appeal that the trial court erred in denying his

motion to change venue because "there was extensive pretrial publicity

about this case," including widespread news stories about "the graphic

details of the crime and the victims" and "facts relating to [Spencer's]

prior criminal history." (Spencer's brief at 55.) He also relies on the fact

that the Alabama Attorney General publicly referred to him as a "career

criminal" and "an example of a badly broken parole system." Id.

In the present case, the record indicates that there were some

potential jurors who indicated during voir dire that they had heard of the

case before trial, and some of those potential jurors admitted that they

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had preconceived ideas of Spencer's guilt. However, there is nothing in

the record to suggest that any of the jurors that actually served on the

jury during Spencer's trial had a belief before trial that Spencer was

guilty, or that they could not set aside their opinions and decide the case

based on the evidence presented at trial. Therefore, the record is devoid

of any actual prejudice that existed that would mandate a change in

venue.

Further, viewing the totality of the circumstances in this case, we

also cannot say that Spencer met his burden to show that the media

coverage of his case was sufficient to show presumed prejudice. On

appeal, Spencer contends that Marshall County has approximately

99,423 residents based on the United States Census Bureau's population

estimates as of July 1, 2022; however, there was no information provided

by Spencer regarding the characteristics of the community where the

offenses occurred or how that related to the pretrial publicity of his case.

At the pretrial hearing on the matter, Spencer relied on Raby's testimony

that the poll Raby had conducted revealed that approximately 70% of the

people he surveyed in Marshall County had heard of the case in the

media and that, of those 70% of people who had heard of the case, 73%

56 CR-2022-1280

thought that Spencer was guilty. We note that the percentages offered by

Raby, however, included individuals who were only 18 years old and,

thus, were unable to serve on a jury. Spencer failed to make any

argument concerning the timing of the media coverage of the case.

Additionally, Spencer failed to provide documentary evidence of

any of the media coverage surrounding his case or provide specific

statements that were given in the media reports.

Raby testified at the hearing that the news reports claimed that "it was

a gruesome situation" and that reports were made that the Attorney

General had commented on the case. (Supp. R. 69.) Spencer also made

allegations in his brief that "graphic details of the crime were shared."

However, those allegations alone do not provide sufficient evidence to

show that the media saturation was such that he could not receive a fair

trial. "Bare allegations, without more, are insufficient to prove

community saturation." Hubbard v. State, 324 So. 3d 855, 863 (Ala. Crim.

App. 2019)(citing Lee v. State, 898 So. 3d 790, 967 (Ala. Crim. App.

2001))(holding that evidence was insufficient to show media saturation

when the defendant did not attach copies of the newspaper articles or

transcripts of the broadcasts that he referenced in his motion to change

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of venue). Considering all of these factors, prejudice was not presumed in

the instant case, and the trial court did not abuse its discretion by

denying Spencer's motion for a change of venue. See Hunt, 642 So. 2d at

1042-43.

Spencer alleges that there were numerous instances of

prosecutorial misconduct that denied him a right to a fair trial and, thus,

require reversal of his convictions and sentence. Because Spencer did not

raise these claims in the trial court, his claims of prosecutorial conduct

will be reviewed for plain error only. See Rule 45A, Ala. R. App. P.; see

also Mitchell v. State, 913 So. 2d 501, 505 (Ala. Crim. App. 2005)("To

preserve an issue for appellate review, the issue must be timely raised

and specifically presented to the trial court and an adverse ruling

obtained." (emphasis omitted)).

This Court has held:

" ' "While the failure to object will not bar our review of [an appellant's] claims of prosecutorial misconduct, it will weigh against any claim of prejudice that [an appellant] makes on appeal ' " 'because of its suggestion that the defense did not consider the comments in question to be particularly harmful.' " ' Ferguson v. State, 814 So. 2d 925, 945 (Ala. Crim. App. 2000), aff'd, 814 So.

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2d 970 (Ala. 2001), cert. denied, 535 U.S. 907, 122 S. Ct. 1208, 152 L. Ed. 2d 145 (2002), quoting Kuenzel v. State, 577 So. 2d 474, 489 (Ala. Crim. App. 1990), aff'd, 577 So. 2d 531 (Ala. 1991)."

" 'Calhoun v. State, 932 So. 2d 923, 962 (Ala. Crim. App. 2005).

" 'Also, many of the instances involve challenges to arguments made by the prosecutor in his opening or closing statements.

" ' " 'In reviewing allegedly improper prosecutorial argument, we must first determine if the argument was, in fact, improper. If we determine that the argument was improper, the test for review is not whether the comments influenced the jury, but whether they might have influenced the jury in arriving at its verdict.' Smith v. State, 698 So. 2d 189, 202–03 (Ala. Crim. App. 1996), aff'd, 698 So. 2d 219 (Ala. 1997), cert. denied, 522 U.S. 957, 118 S. Ct. 385, 139 L. Ed. 2d 300 (1997) (citations omitted); Bush v. State, 695 So. 2d 70, 131 (Ala. Crim. App. 1995), aff'd, 695 So. 2d 138 (Ala. 1997), cert. denied, 522 U.S. 969, 118 S. Ct. 418, 139 L. Ed. 2d 320 (1997) (citations omitted). 'The relevant question is whether the prosecutor's comments "so infected the trial with unfairness as to make the resulting conviction a denial of due process." ' Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 2471, 91 L. Ed. 2d 144 (1986), quoting Donnelly v. DeChristoforo, 416 U.S. 637, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974). Comments made by the prosecutor must be evaluated in the context of the whole trial. Duren v. State, 590 So. 2d 360, 364 (Ala. Crim. App. 1990), aff'd, 590 So. 2d 369 (Ala. 1991), cert. denied, 503 U.S. 974, 112 S. Ct. 1594, 118 L. Ed. 2d 310 (1992). 'Prosecutorial misconduct is subject

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to a harmless error analysis.' Bush v. State, 695 So. 2d at 131 (citations omitted); Smith v. State, 698 So. 2d at 203 (citations omitted)."

" 'Simmons v. State, 797 So. 2d 1134, 1161–62 (Ala. Crim. App. 1999) (opinion on return to remand). We must view the challenged arguments in the context of the entire trial and not in the abstract. See Duren v. State, 590 So. 2d 360 (Ala. Crim. App. 1990); Whitlow v. State, 509 So. 2d 252 (Ala. Crim. App. 1987). It is proper for a prosecutor to argue any legitimate inference that may be drawn from the evidence. See Snyder v. State, 893 So. 2d 488 (Ala. Crim. App. 2003).' "

Phillips v. State, 287 So. 3d 1083, 1115-16 (Ala. Crim. App. 2015)(quoting

Belisle v. State, 11 So. 3d 256, 302-03 (Ala. Crim. App. 2007)). We address

each alleged instance of misconduct in turn.

A.

Spencer claims that "during the State's guilt-phase closing

argument, the prosecutor improperly compared this case to other cases."

(Spencer's brief at 69.) Spencer claims in his brief that a prosecutor

" 'cannot imply that he or his office had already made the judgment that

this case, above most other cases, warrants the death penalty.' "

(Spencer's brief at 70)(citing Arthur v. State, 575 So. 2d 1165, 1185 (Ala.

Crim. App. 1990)).

During the prosecutor's closing arguments during the guilt-phase

of Spencer's trial, the prosecutor thanked the jury for their attentiveness

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during the eight-day trial and recognized that the jurors put their own

lives "on hold" to do their "civic duty" to serve on a jury. (Supp. R. 1315.)

The prosecutor continued, stating:

"So it's important that you know that we recognize that, and with that out of the way, I'll try to proceed with some brief remarks. Quite frankly, this has been one of the hardest cases I have ever tried to sit down and plan out remarks for the jury. Because quite frankly, folks, I submit to you the evidence in this case has been so overwhelming, I almost hesitate to have to get up and repeat some of it.

"But nonetheless, I want to comment on a few things I don't think have quite been touched on enough and point out some things that I really want to underscore that you've heard in the past few days.

"You folks have sat here, I guess we took evidence for four days, took testimony and evidence for four days. And y'all have heard some of the most incredible, disgusting, offensive and disturbing testimony that I would argue has ever been heard in a courtroom in Marshall County."

(Supp. R. 1315-16)(emphasis added). The prosecutor continued his

argument and began to review the evidence that had been presented to

the jury.

Spencer argues that the emphasized portion of the prosecutor's

closing argument above was an improper comparison to other cases and

an improper implication to the jury that his office has made a judgment

that this case warrants the death penalty. The cases cited by Spencer

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involve cases wherein the Court found plain error when the prosecutor

had commented that "the State of Alabama, the law enforcement

agencies and everyone agreed that this was a death penalty case," see

Guthrie v. State, 616 So. 2d 914, 931-32 (Ala. Crim. App. 1993), and in

which this Court noted that "the prosecutor … cannot imply to the jury

that he or his office has already made the judgment that this case, above

most other capital cases, warrants the death penalty." Id. Contrary to

Spencer's contention, the prosecutor's comments above did not involve

any statement regarding the sentence that Spencer should receive, much

less a statement that he should receive the death penalty.

In the present case, the prosecutor's statements were a comment on

the nature of the evidence presented and the prosecutor's assessment

that the evidence was "overwhelming." In Price v. State, 725 So. 2d 1003,

1028 (Ala. Crim. App. 1997), this Court explained:

" ' " 'Certainly the State's attorney should be permitted to comment on the character of the evidence presented by the State and its strength. That certain evidence is uncontradicted tends to show its strength. Our statute does not abrogate the right of the State's counsel to comment on legitimate inferences in this regard.' " ' Taylor v. State, 279 Ala. 390, 391, 185 So. 2d 414, 415, (1966), quoting Welch v. State, 263 Ala. 57, 81 So.2d 901 (1955)."

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In Hunt v. State, 659 So. 2d 933, 940-41 (Ala. Crim. App. 1994), this

Court rejected the defendant's argument that a prosecutor's comment

was reversible error, where the prosecutor stated in guilt-phase closing

arguments that the State's evidence was "overwhelming" and that, "if

this isn't capital murder, then there has never been capital murder in

Walker County." Therefore, Spencer is not entitled to relief on this claim.

B.

Spencer also alleges that the prosecutor improperly "involved

arguments based on sympathy for the victims … on at least three

occasions." (Spencer's brief at 70.)

First, Spencer contends that the prosecutor made improper

comments related to Colton, stating:

"A child, seven years old, who had his whole life ahead of him before it was taken from him. A little boy who was visiting his great-grandmother where of all places he should feel safe and happy and protected. That little boy won't ever know what it's like to grow up, go to high school, maybe go to college, get married and have a family of his own. He won't ever know."

(Supp. R. 1318.)

Second, he contends that, while showing the jury a photograph of

Reliford, the prosecutor improperly stated:

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"State's Exhibit 3, Martha Reliford. Martha Reliford, that's what she looked like. You can see Ms. Reliford there sick, in firm, had cancer, and she was blind. Legally blind. She's there on crutches and she's got her sunglasses on, and that's the way I want you to remember Martha Reliford. I think that's how her family would want you to remember her as opposed to the body you saw laying on the floor that had decomposed over a period of a week to two weeks laying there in the living room, and certainly the autopsy photographs."

(Supp. R. 1317.)

Lastly, Spencer argues that the prosecutor improperly commented

on the testimony given by Patterson, Martin's granddaughter, "who

testified that her son often spent the night at Ms. Martin's house but was

not there the night of the crime." (Spencer's brief at 71.) That portion of

the record indicates that the prosecutor stated the following:

"Let's talk a little bit about some of the testimony and move on. Amanda Patterson testified first, and she told ya'll about Ms. Martin. … And she told you on July 12th that she was going to take her son Brandon over to stay also at Ms. Martin's house because Colton was over there, and he liked to play with Colton, and she was going to take Colton [sic] over there so he could spend the night, too. And don't you know that woman has thanked God many days that she got to feeling bad and decided not to take her son over there that night?"

(Supp. R. 1319-20)(emphasis added). We note that, in his brief, Spencer

merely included, and complained about, the emphasized portion of the

prosecutor's comment seen above, in which the prosecutor reviewed

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Patterson's testimony. Additionally, although included only as a

parenthetical citation to one of the other comments by the prosecutor,

Spencer apparently takes issue with two other isolated comments by the

prosecutor, wherein the prosecutor stated: 1) "They all deserved to live,

especially Colton. And none of them deserved to die, certainly to die in

the manner in which they did," and 2) "It's time for justice to be done."

(Supp. R. 1347; 1349); see also (Spencer's brief at 71).

Contrary to Spencer's assertions, these comments do not constitute

reversible error. The prosecutor's comments were legitimate inferences

that could have been drawn from the evidence and did not so infect the

trial with unfairness that Spencer was denied due process. See Phillips,

287 So. 3d at 1115-16. See also Scott v. State, 163 So. 3d 389, 454 (Ala.

Crim. App. 2012)(holding that the prosecutor's statements during a guilt-

phase closing argument wherein the prosecutor speculated about

potential life experiences that a six-year-old victim would no longer get

to have was not error); Woodward v. State, 123 So. 3d 989, 1078 (Ala.

Crim. App. 2011)("A prosecutor may argue every legitimate inference

from the evidence 'and may examine, collate, [sift] and treat the evidence

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in his own way.' " (citation omitted)). Therefore, Spencer is not entitled to

relief on this claim.

C.

Spencer further argues that, during his questioning of Investigator

Turner, the prosecutor "repeatedly injected his own descriptions and

characterizations of video surveillance evidence taken at the Texaco gas

station." (Spencer's brief at 72-73.) Spencer complains about three

questions in particular, which were asked by the prosecutor during his

questioning of Investigator Turner. Each of the questions arose during

the following portion of the prosecutor's direct examination of

Investigator Turner:

"[Prosecutor:] Now of course you talked with Spencer, and certainly a large part of the statement consisted of going over the details of the homicide again. But I'll ask you, we saw the – some of the State's exhibits that were admitted into evidence and viewed yesterday had to do with some surveillance videos that were taken from the Texaco station the evening that Ms. Martin and Colton were killed. Did you talk to Mr. Spencer about those in order to gain some idea of what he was doing, what had taken place and what he was doing and what he had in each of those clips from the Texaco that we saw?

"[Turner:] Yes, sir.

"[Prosecutor:] I think the first one we saw, Mike, consisted of Mr. Spencer apparently or appearing to walk to the Texaco

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across the road clad in a T-shirt and carrying a bag. Did you talk with him about that?

"[Prosecutor:] Did you ask him or did he tell you what was in the bag that he had at that time?

"[Prosecutor:] What did he tell you?

"[Turner:] I don't remember if he said the spray was in the bag at that particular time or maybe the spray and two beers. I don't remember.

"[Prosecutor:] Did he tell you where he had gotten the stuff that was in the bag?

"[Prosecutor:] Where was that?

"[Turner:] Publix.

"[Prosecutor:] Now, if you'll recall, when we look at the videos in sequence after that, Mr. Spencer returns to the Texaco probably 9 or 10 minutes later no longer wearing the T-shirt that he had on, wearing a tank top and he doesn't have anything in his hands at that time. Did you speak with him about that or talk about that, as well?

"[Turner:] Yes, sir. [Spencer] said it was hot, he took his T- shirt off and the bag and put it in some bushes behind the Waffle House and then walked back to the Texaco.

"[Prosecutor:] Now Mike, I wanted to ask you in regards to the manner in which Mr. Spencer was dressed in the first clip

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where he's seen walking with the bag to Texaco, did you have occasion later – and I'll get into it later, but did you have occasion to find or see what you believe to be the T-shirt that he had on in that first segment of video?

[Turner:] Yes, sir."

(Supp. R. 1122-1124)(emphasis added). Spencer alleges that the

emphasized portions of the prosecutor's questioning, quoted above,

improperly " 'induced the jury to trust the Government's judgment rather

than its own view of the evidence.' " (Spencer's brief at 73)(citing United

States v. Young, 470 U.S. 1, 18-19 (1985)).

We initially note that the United States Supreme Court's decision

in United States v. Young, which is the only legal authority cited by

Spencer in support of the instant claim, is not dispositive of the present

issue and does not offer support to Spencer's argument. In Young, defense

counsel made comments during its closing arguments that questioned

the prosecutor's integrity and alleged that the prosecutor did not believe

the Government's case. Id. at 3-6. In response, during the prosecutor's

rebuttal argument, the prosecutor stated that his opinion was that the

respondent was guilty of fraud. Id. The United States Supreme Court

stated:

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"The concerns underlying our reactions against improper prosecutorial arguments to the jury are implicated here, but not to the extent that we conclude that the jury's deliberations were compromised. The prosecutor's vouching for the credibility of witnesses and expressing his personal opinion concerning the guilt of the accused pose two dangers: such comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant's right to be tried solely on the basis of the evidence presented to the jury; and the prosecutor's opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government's judgment rather than its own view of the evidence. See Berger v. United States, 295 U.S. [78,] at 88–89, [(1935)]”

470 U.S. at 18-19. However, the United States Supreme Court ultimately

found that, because there was no suggestion that the prosecutor's

statement of his belief was based on information outside the evidence

presented at trial and given the overwhelming evidence of the

respondent's guilt presented at trial, any lingering doubt that the

prosecutor's comment "unfairly prejudiced the jury's deliberations or

exploited the Government's prestige in the eyes of the jury" was

eliminated. Id. at 19.

"In reviewing allegedly improper prosecutorial comments, conduct,

and questioning of witnesses, the task of this Court is to consider their

impact in the context of the particular trial, and not to view the allegedly

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improper acts in the abstract." Bankhead v. State, 585 So. 2d 97, 106

(Ala. Crim. App. 1989). "The absence of an objection in a case involving

the death penalty does not preclude review of the issue; however, the

defendant's failure to object does weigh against his claim of prejudice.”

Ex parte Boyd, 715 So. 2d 852, 855 (Ala. 1998).

In the present case, the prosecutor's questions to Investigator

Turner were made after the videos in questions had been admitted into

evidence and played for the jury. Investigator Turner had already

testified that he had seen the videos in question during his investigation.

Reviewing all the questions made by the prosecutor, especially when

weighing Spencer's failure to object against his claim of prejudice, we

hold that the questions posed by the prosecutor did not so infect the trial

with unfairness that Spencer was denied due process. See Phillips, 287

So. 3d at 1115-16.

VI.

Spencer also claims that the trial court invaded the province of the

jury by commenting on evidence and testimony in violation of federal and

state law by, he says, becoming an "advocate for the prosecution by

communicating to the jury his view" of certain evidence. (Spencer's brief

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at 77.) There are two comments made by the trial court that Spencer now

challenges. Because Spencer did not object to the trial court's statements

at the trial level, this claim will be reviewed for plain error only. See Rule

45A, Ala. R. App. P.

The first comment made by the trial court that Spencer now

challenges occurred during the trial, immediately before the State played

Spencer's recorded statement for the jury, wherein the trial court gave

the following warning to individuals in the courtroom:

"THE COURT: There's going to be some very graphic detail about this. So there may be some people that may get upset in the courtroom. I'm just letting you know you might want to step out of the room for a while. But there will be some pretty graphic details going forward. There's already been some. Some of you are already upset, so if you think you might ought to go outside and get your composure and stay outside until the DAs or somebody sends for you, I'm just giving you a warning."

(Supp. R. 1088.) In his brief, Spencer alleges that, by making this

statement, the trial judge "became an advocate for the prosecution by

communicating to the jury his view that [Spencer's] own words were

'graphic,' likely to 'upset' people in the courtroom, and even worth of

leaving the courtroom." (Spencer's brief at 77.) We disagree.

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In McCovery v. State, 365 So. 2d 358, 362 (Ala. Crim. App. 1978),

this Court held that "[r]emarks by the trial judge may be open to

criticism, but they are not error unless they may have affected the result

of the trial." Additionally, this Court has also recognized that "[t]here is

no ironclad rule by which the prejudicial character of the improper

conduct and comments of a trial judge can be ascertained in all cases,

most depending on the issues, parties, and the general circumstances of

each particular case." Oglen v. State, 440 So. 2d 1172, 1175-76 (Ala. Crim.

App. 1983).

In the instant case, the comment in question was made by the trial

judge to everyone in the courtroom, not just to the jury, and was clearly

made as a warning regarding the nature of the evidence that was about

to be presented in an effort to allow for individuals in the courtroom to

exit, if necessary. The trial judge's comment did not suggest that he was

partial in any way to either the prosecution or the defense, nor did the

comment speak to an ultimate issue in Spencer's case. Merely stating

that there would be "graphic details" discussed that could be upsetting to

some did not render the trial judge's comments partial and did not

constitute conduct that strays from neutrality. Further, considering the

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totality of the circumstances in the present case, we do not find that the

trial court's comments affected the outcome of the trial. See McCovery,

365 So. 2d at 362. Therefore, we cannot conclude that the trial court's

warning to the individuals in the courtroom about the nature of the

evidence that was about to be presented denied Spencer a fair trial.

Additionally, Spencer alleges that the trial judge "improperly

bolstered the credibility and expertise of the police officers and other

witnesses presented by the State during the guilt-phase." (Spencer's brief

at 75.) Before closing arguments by the parties, the trial judge made

several statements to the jury. The judge acknowledged the attentiveness

and cooperation of the jury and explained that the court was now going

to move to the next part of the trial process, which was "closing

arguments by the lawyers," wherein the lawyers would present

arguments to the jury about what "their version of what the case [was]

about, or what the case has not been about." (Supp. R. 1311.) The court

then informed the jury of the following:

"THE COURT: … You should remember that the arguments of the lawyers is not evidence itself. The evidence came in through the witness stand, right, and through the exhibits that were marked and I said they were in evidence. That's what's in evidence. What I said was in evidence, what was sworn that was said on the witness stand. Anything else that

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happened somewhere else or outside of that is not in evidence. Anything I excluded was not in evidence.

"And the lawyers are given broad discretion in Alabama and in my courtroom, especially, if they believe – different versions of the facts, if everyone agreed on everything, you would not be sitting here today. So that's why a lot of cases settle, because people finally come to a conclusion that, here's what we need to do. But in a case of this nature it will go to the jury, and the jury has to go ahead and make the final decisions about what to do.

"So in this sort of case you find the facts. You're going to be the judges of what the true facts are, and I'm the judge of the law and procedure and how to move the case along. The attorneys have done an excellent job in the case. You've gotten to see some of the most experienced lawyers in North Alabama here. They've done a really good job, and so have all the officers that have testified, a lot of experience. A lot of experienced, different people have testified, doctors, different folks. It's been some really interesting testimony, been presented in very interesting ways from some very experienced lawyers, and these lawyers are going to have a chance to argue to you, not argue with you but to you, as to their version. Then I'm going to give you some jury charges, and that will take a while. Luckily we've already met with the lawyers."

(Supp. R. 1311-12)(emphasis added). The trial judge then continued

explaining the other stages of the trial process that were to follow.

Spencer complains only about the emphasized portion of the court's

comment above. However, "[t]he trial judge's statement to the jury must

be viewed within the context of the entire charge." McCovery, 365 So. 2d

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at 362. " '[I]solated statements which appear prejudicial when taken out

of context may be innocuous when viewed in light of the entire trial.' " Id.

(citing United States v. McCoy, 539 F.2d 1050, 1063 (5th Cir. 1976)).

Reading the judge's comment in the context of the court's entire

charge in this case, there is no indication that the court meant his

statement to bolster the State's case or the defendant's case. The trial

judge’s statement also did not appear to be an intentional comment on

the evidence that had been presented, nor was the judge speaking to the

issues presented at Spencer's trial. To the contrary, the record indicates

that the court was merely explaining the trial process to the jury and, in

doing so, commented on how the trial had been handled up until that

point by all the witnesses and attorneys involved. Additionally,

immediately before the statement to which Spencer now challenges, the

judge had explained to the jury that the arguments of counsel were not

to be considered evidence, and the judge also explained to the jury that

the jury would be the finders of fact in this case. Considering the entirety

of the trial judge's statement to the jury and the context with which the

statement was made, there is nothing in the record to suggest that the

statement affected the result of Spencer's trial, and, therefore, we find no

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error in the trial judge’s comment to the jury. See McCovery, 365 So. 2d

at 362.

VII.

Spencer further claims that the jury was incorrectly instructed by

the trial court that its penalty-phase verdict was merely a

recommendation. Specifically, he alleges that the court erred by telling

the jury that it would come back to "deal with the next phase, which will

be recommending life without parole or death." (Supp. R. 1429.) He

claims that the court’s erroneous statement "misled the jury as to its role

in the sentencing process in a way that allow[ed] the jury to feel less

responsible than it should for the sentencing decision." (Spencer’s brief

at 84)(citing Darden v. Wainwright, 477 U.S. 168, 183 n.15 (1986)).

Spencer raised no objections to the trial court's jury instructions, and,

thus, we review this claim for plain error only.

Immediately after the jury returned their verdict of guilty for each

of the counts of capital murder and the court acknowledged the guilty

verdicts, the court instructed the jury about what would happen next in

the trial proceedings. Because the allegedly erroneous statement "must

be viewed within the context of the entire charge," McCovery, 365 So. 2d

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at 362, we set forth a complete recitation of the trial court's jury

instruction that Spencer now challenges for the first time on appeal:

"THE COURT: Would you hand the verdict form to the bailiff. Thank you.

"Ladies and gentlemen, thank you. You've worked so hard up to this point. The Court finds that the verdicts are all in proper form and they've all been properly signed in Counts One through Seven. The defendant has been found guilty on all counts.

"The next – there is another part of the trial that we have to do. It's called the sentencing phase, where the jury must vote for life imprisonment or death on these cases. There are a couple of expert witnesses that are being lined up, but one of them cannot be here in the morning. The other testimony can be given.

"What I'm going to do is you're going to come back to deal with the next phase, which will be recommending life without parole or death. I'll have to give you some special instructions on that before you start your deliberations. And I'm going to give you some special instructions, how you'll look at it. You're going to hear from some expert witnesses about the defendant, what should be done and so forth. I'm not going to tell you who those are right now. I can't remember the names. But it's some testimony by experts from both the defense and the State that you'll have to hear and consider. You will then get some more short instructions from me, and you'll go back and deliberate and you'll return another verdict, and that verdict will be whether the defendant should receive a sentence of life without parole or death. I'm not stressing one over the other. It's what y'all have to vote on. Y'all understand?

"….

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"We'll start Friday morning bright and early at 9:00. It will take a few hours to go through this testimony on both sides. You'll hear argument again on both sides, sort of a closing argument. They're allowed to do opening and closing arguments. And then you’ll go back there and vote for life without parole or death. Y'all have to reach that decision. You understand?"

(Supp. R. 1429-31)(emphasis added). The trial court then explained more

procedures to the jury and cautioned them that they must not speak to

anyone about the case or allow themselves to be exposed to any

information about the case until they return for the sentencing phase.

Then, the trial court again stated: "I'm going to let you separate for the

night, but you have to come back together again and make that decision.

And like today, you'll bring back a verdict and I'll check it, then at that

point you'll be discharged." (Supp. R. 1432.)

" ' "A trial court has broad discretion in formulating its jury instructions, provided those instructions accurately reflect the law and the facts of the case." Pressley v. State, 770 So. 2d 115, 139 (Ala. Crim. App. 1999), aff'd, 770 So. 2d 143 (Ala. 2000). A " jury charge must be construed as a whole and the language must be construed reasonably." Ingram v. State, 779 So. 2d 1225, 1258 (Ala. Crim. App. 1999), aff'd, 779 So. 2d 1283 (Ala. 2000). " 'Hypercriticism should not be indulged in construing charges of the court ...; nor fanciful theories based on the vagaries of the imagination advanced in the construction of the court's charge.' " Pressley, 770 So. 2d at 139 (quoting Addington v. State, 16 Ala. App. 10, 19, 74 So. 846 (1916)). "[W]e must evaluate instructions like a

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reasonable juror may have interpreted them." Ingram, 779 So. 2d at 1258. A court's charge "must be given a reasonable -- not a strained -- construction," Williams v. State, 710 So. 2d 1276, 1305 (Ala. Crim. App. 1996), aff'd, 710 So. 2d 1350 (Ala. 1997), and " 'must be taken as a whole, and the portions challenged are not to be isolated therefrom or taken out of context, but rather considered together.' " Self v. State, 620 So. 2d 110, 113 (Ala. Crim. App. 1992) (quoting Porter v. State, 520 So. 2d 235, 237 (Ala. Crim. App. 1987)). "When reviewing a trial court's jury instructions, we 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), aff'd, 820 So. 2d 883 (Ala. 2001). Moreover, plain error in jury instructions " 'occurs only when there is a reasonable likelihood that the jury applied the instruction in an improper manner.' " Williams, 710 So. 2d at 1306 (quoting United States v. Chandler, 996 F.2d 1073, 1085 (11th Cir. 1993)).' "

Iervolino, ___ So. 3d at ___ (quoting Floyd v. State, 289 So. 3d 337, 439

(Ala. Crim. App. 2017)).

Reviewing the instruction as a whole, we cannot say that there was

a reasonable likelihood that the jury applied the challenged instruction

in an improper manner. In 2017, the Alabama Legislature amended

Alabama's capital-sentencing scheme, which was codified at §§ 13A-5-45

through 13A-5-47, Ala. Code 1975, to remove the option for judicial

override in capital sentencing and, thus, require the jury to return a

verdict of life imprisonment without the possibility of parole or a verdict

of death in cases where the defendant had been convicted of capital

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murder. Because the offenses in this case occurred after the new capital-

sentencing scheme became effective, the newly amended capital-

sentencing scheme applied in Spencer's case. However, under the facts of

this particular case, we cannot say that the trial court's use of the word

"recommending" in one portion of its instruction to the jury amounted to

plain error.

The statement in question was made to the jury as the court was

preparing the jury for dismissal for the day, which was immediately

following the return of the jury's guilt-phase verdicts. The court was

clearly trying to convey to the jury what the expectations were while the

court was in recess and to prepare the jury for what it should expect from

capital-trial process when the jury returned to court for the penalty

phase. Within the same instruction, merely a few sentences after the

statement that Spencer now challenges, the court correctly informed the

jury that they would "return another verdict, and that verdict will be

whether the defendant should receive a sentence of life without parole or

death." (Supp. R. 1430.) At least three more times during the same

dismissal instructions, the court explained to the jury that the jury would

be responsible for "reach[ing]" or "mak[ing]" the decision regarding the

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sentence that Spencer would receive and that the jury would have to

"reach a verdict" on whether Spencer would receive a life sentence

without the possibility of parole or the death penalty. Additionally, our

review of the instructions given to the jury during the penalty phase of

Spencer's trial indicate that the trial court properly informed the jury of

their role in sentencing. Interpreting the instruction in question as a

whole and as a reasonable juror would interpret the jury charge, we

cannot say that there was a reasonable likelihood that the court's

statement was applied by the jury in an improper manner. See Iervolino,

___ So. 3d at ___.

VIII.

Spencer also raised several other claims on appeal, which are listed

in his brief on appeal as Issues V, VI, VII, X, XI, XII, XIV, XV, XVI, and

XVII. Spencer did not raise any of those claims below, so we review them

for plain error only. This Court has thoroughly considered the arguments

that Spencer has raised in support of those claims, the authorities he has

cited, and the applicable parts of the record. Having done so, we are

convinced that no plain error occurred with respect to those claims, and

we do not find it necessary to provide analyses for them. In addition to

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reviewing those claims, this Court has painstakingly reviewed the entire

record for any instances of plain error that Spencer may have overlooked,

and we have found no such error.

IX.

Finally, pursuant to § 13A-5-53(a), Ala. Code 1975, this Court must

review the propriety of Spencer's death sentence.

Section 13A-5-53 provides, in pertinent part:

"(a) In any case in which the death penalty is imposed, in addition to reviewing the case for any error involving the conviction, the Alabama Court of Criminal Appeals, subject to review by the Alabama Supreme Court, shall also review the propriety of the death sentence. This review shall include the determination of whether any error adversely affecting the rights of the defendant was made in the sentence proceedings, whether the trial court's findings concerning the aggravating and mitigating circumstances were supported by the evidence, and whether death was the proper sentence in the case. If the court determines that an error adversely affecting the rights of the defendant was made in the sentence proceedings or that one or more of the trial court's findings concerning aggravating and mitigating circumstances were not supported by the evidence, it shall remand the case for new proceedings to the extent necessary to correct the error or errors. If the appellate court finds that no error adversely affecting the rights of the defendant was made in the sentence proceedings and that the trial court's findings concerning aggravating and mitigating circumstances were supported by the evidence, it shall proceed to review the propriety of the decision that death was the proper sentence.

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"(b) In determining whether death was the proper sentence in the case the Alabama Court of Criminal Appeals, subject to review by the Alabama Supreme Court, shall determine:

"(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor;

"(2) Whether an independent weighing of the aggravating and mitigating circumstances at the appellate level indicates that death was the proper sentence; and

"(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

"(c) The Court of Criminal Appeals shall explicitly address each of the three questions specified in subsection (b) of this section in every case it reviews in which a sentence of death has been imposed."

In Iervolino, this Court explained:

"Section 13A-5-53(a) requires this Court to determine 'whether any error adversely affecting the rights of the defendant was made in the sentence proceedings.' In effect, this Court is required by § 13A-5-53(a) to review the penalty phase of the trial for plain error. It is unclear whether the amendment to Rule 45A making plain-error review discretionary with this Court supersedes the mandatory plain-error review required by § 13A-5-53(a). However, it is not necessary for us to make that determination because, as explained earlier in this opinion, this Court chooses to exercise its discretion and to review the entire record for plain

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error in all cases in which the death penalty has been imposed."

___ So. 3d at ___. Like the Court in Iervolino, we have reviewed the record

in the instance case, and we find that no error adversely affected

Spencer's rights in the penalty phase of his trial.

Additionally, as this Court further explained in Iervolino,

"Section 13A-5-53(a) also requires this Court to determine 'whether the trial court's findings concerning the aggravating and mitigating circumstances were supported by the evidence.' When 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.… In addition, Alabama's capital-sentencing statutes do not require the jury to render verdicts on the mitigating circumstances it found to exist and the jury did not return special verdicts regarding mitigating circumstances."

In the present case, like in Iervolino, jury sentencing was not

waived, and, thus, the trial court was not required to make specific

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findings of fact regarding aggravating circumstances and mitigating

circumstances. "[B]ecause 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"

in the instant case. See id. at ___. By virtue of its guilt-phase verdicts,

the jury did render a unanimous finding of four aggravating

circumstances: 1) that the capital offense was committed by a person

under a sentence of imprisonment, see § 13A-5-49(1), Ala Code 1975; 2)

that the capital offense was committed while the defendant was engaged

in the commission of a robbery, see §13A-5-49(4); 3) that Spencer

"intentionally caused the death of two or more persons by one act or

pursuant to one scheme or course of conduct," see § 13A-5-49(9); and 4)

that the capital offense was committed when the victim was less than 14

years of age, see § 13A5-49(11). Those aggravating circumstances are

supported by the record.

Lastly, pursuant to § 13A-5-53(a), this Court must determine

"whether death was the proper sentence in this case." Section 13A-5-53(b)

provides three questions that this Court must address in determining

whether death was the proper sentence. First, as required by § 13A-5-

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53(b)(1), this Court must determine "whether the sentence of death was

imposed under the influence of passion, prejudice, or any other arbitrary

factor." This Court has thoroughly reviewed the entire record in this case,

and we conclude that Spencer's death sentence was not imposed under

the influence of passion, prejudice, or any other arbitrary factor.

Next, Section 13A-5-53(b)(2) provides that this Court shall

determine "[w]hether an independent weighing of aggravating and

mitigating circumstances at the appellate level indicates death was the

proper sentence." During the penalty-phase instructions, the trial court

pointed out several mitigating circumstances that the court had

recognized from the evidence that was presented during the penalty

phase that the jury might consider. However, the jury did not render

verdicts regarding mitigating circumstances. Because the trial court is

no longer required to make specific findings of fact regarding the

existence or nonexistence of aggravating circumstances and mitigating

circumstances, and because Alabama law does not require the jury to

render verdicts regarding mitigating circumstances, "it is impossible for

this Court to perform this part of our mandatory review of the death

sentence in this case." Iervolino, ___ So. 3d at ___.

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Lastly, § 13A-5-53(b)(3) provides that this Court shall 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." Spencer was convicted of two counts of murder made capital

because the murders were committed during the course of a robbery, one

count of murder made capital because the victim was under the age of 14,

one count of murder made capital because the murders were committed

pursuant to one scheme or course of conduct, and three counts of murder

made capital because the murders were committed while the defendant

was under a sentence of life imprisonment. Spencer's sentence of death

is not excessive or disproportionate to the sentence imposed in similar

cases. See Dearman v. State, [Ms. CR-18-0060, Mar. 24, 2023] ___ So. 3d

___ (Ala. Crim. App. 2023)(affirming death sentence for intentional

murders committed during a burglary and pursuant to one scheme or

course of conduct); Petersen v. State, 326 So. 3d 535 (Ala. Crim. App.

2019) (affirming death sentence for intentional murders committed

during a burglary and pursuant to one scheme or course of conduct);

Keaton v. State, 375 So. 3d 44 (Ala. Crim. App. 2021)(affirming death

sentence for intentional murders that were deemed heinous, atrocious, or

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cruel and involved victims who were less than 14 years of age); and

Callen v. State, 284 So. 3d 177 (Ala. Crim. App. 2017)(affirming death

sentence for intentional murders that were committed during the course

of committing arson, that were committed pursuant to one scheme or

course of conduct, and that involved a victim who was less than 14 years

of age).

Accordingly, we conclude that death was the proper sentence in this

case.

Conclusion

For the foregoing reasons, we affirm Spencer's seven capital-

murder convictions and his resulting sentence of death.

AFFIRMED.

Windom, P.J., and Cole and Minor, JJ., concur. Kellum, J., concurs

in the result.