author: LYONS, Justice. JOHNSTONE, Justice

text:
    Ex parte Melvin G. HODGES. (In re Melvin Gene Hodges v. State of Alabama).
    1010619.
    Supreme Court of Alabama.
    March 14, 2003.

      Floyd Likins, Jr., Opelika, for petitioner.
    William H. Pryor, Jr., atty. gen., and Anne C. Adams and A. Vernon Barnett IV, asst, attys. gen., for respondent.
    Bryan A. Stevenson, Angela L. Setzer, and Charlotte R. Morrison, Montgomery, for amicus curiae Equal Justice Initiative of Alabama, in support of the petitioner.
   LYONS, Justice.

Melvin G. Hodges was convicted in June 1999 of murder made capital because the murder was committed during the course of a robbery in the first degree. See § 13A-5-40(a)(2), Ala.Code 1975. Hodges and others robbed a Golden Corral Restaurant in Opelika on January 4, 1998. After the robbery, Elizabeth “Beth” Sea-ton, a supervisor at the restaurant, was taken from the restaurant at gunpoint and later was beaten and run over by a vehicle. She died as a result of her injuries. The jury, by a vote of 8-4, recommended that Hodges be sentenced to life imprisonment without the possibility of parole, but the trial court overrode the jury’s recommendation and sentenced Hodges to death.

The Court of Criminal Appeals initially remanded the case for the trial court to correct specified errors and deficiencies in its sentencing order. Hodges v. State, 856 So.2d 875 (Ala.Crim.App.2001) (“Hodges I ”). On remand, the trial court complied with the Court of Criminal Appeals’ directives, entered a new sentencing order, and again sentenced Hodges to death. The Court of Criminal Appeals then affirmed Hodges’s conviction and sentence. Hodges v. State, 856 So.2d 875, 894 (Ala.Crim.App.2001) (“Hodges II”). This Court granted certiorari review only as to the following two issues regarding Hodges’s sentence:

1. Whether the judicial override provision in Alabama’s capital sentencing scheme violates the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment, in light of the United States Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428 (2002).
2. Whether the trial court’s error in restricting mitigating evidence during the penalty phase was harmless because the jurors recommended life imprisonment without parole by a vote of 8-4. In other words, should we consider whether the error caused the number of votes in favor of life imprisonment to be reduced and thereby reduced the persuasiveness of the jury’s recommendation to the trial court and accordingly increased the likelihood of an override in favor of death?

The Court of Criminal Appeals stated the facts of this case as follows:

“The State’s evidence tended to show the following. On January 5, 1998, two hunters discovered the nude body of Beth Seaton on the side of County Road 26 in Macon County. The coroner testified that Seaton died as a result of a combination of blunt-force injuries to her head, neck, chest, and abdomen, the most significant being the crushing injuries to her chest and abdomen, which resulted from having been run over by a vehicle. Tire marks ran vertically up and down Seaton’s back. A name tag from the Golden Corral Restaurant with Hodges’s name on it was found near Seaton’s body.
“Hodges and Seaton were coworkers at the Golden Corral Restaurant in Ope-lika. Seaton was a supervisor, and one of her duties was to close the restaurant. Hodges was a crew leader at the restaurant. On January 5, 1998, Trina Eady, another employee at Golden Corral, and Hodges arrived to open the restaurant. The alarm system was deactivated and the safe was open. There was no evidence of a forced entry. They telephoned police.
“An investigation led police to Mario Murph. Murph testified at trial that Hodges suggested robbing the Golden Corral. He said that Hodges told him that Sunday night was the best time because there would be a lot of money in the safe. Murph said that Hodges got the pistol used to murder Seaton from Greg Holstick. The two planned to get to the restaurant while Seaton was closing up. According to Murph, their plans went awry. When they arrived at the restaurant they saw Seaton driving away in her van. They followed the van and were able to get Seaton to pull over. While Hodges was talking to her, Murph said, he entered the van and pointed a gun at her. The two then forced her to drive back to the Golden Corral and open the safe. Murph and Hodges then forced Seaton to drive her van around the area. Murph testified that Seaton sensed that something was going to happen; he stated that she started taking off her clothes and saying that she would have sex with them if they did not hurt her. They eventually made her pull the vehicle over. Murph testified that Hodges said that Seaton knew too much. Hodges then pulled Seaton out of the van and began hitting and choking her. Murph said that while Hodges was holding her, he hit Seaton with a pistol. Murph testified that when he realized what Hodges was going to do he walked away. He said that Hodges got into the driver’s seat in Seaton’s van and ran over Seaton about four times, back and forth. The two then left in Seaton’s van. Murph said that they drove around for several minutes and Hodges realized that his Golden Corral name tag was missing. The two tried to return to where they had left the body, but they were lost and running out of gas. Murph said that he threw Seaton’s purse out of the window near the rest area in Tuskegee and that they parked Seaton’s van at Mount Olive Baptist Church. Hodges’s clothes were covered in blood so he gave them to Murph to dispose of. Murph led police to where he had disposed of Hodges’s clothes. Murph testified that Hodges gave him $2,500 for his part in the robbery/murder. (Murph had $1,427 in his possession at the time of his arrest.)
“Kitt Porter, Hodges’s aunt, testified that, on January 5, 1998, she drove Hodges to Tuskegee. She said that he told her that police had discovered his Golden Corral name tag at the murder scene. Porter testified that Hodges admitted to her that he had robbed and killed Seaton. He told her about the murder — an account that corroborated Murph’s account in almost all respects. Porter testified that Hodges told her that he gave $5,000 to Murph for his part in the robbery/murder.
“Several witnesses also testified that the day after the robbery/murder Hodges had a large quantity of money. Hodges himself testified that he gave his girlfriend $600. Forensic evidence connected Hodges to the robbery/murder. A cigarette butt recovered from Seaton’s van contained saliva, the DNA of which matched Hodges’s. Also, at the time of Hodges’s arrest he had blood on his watch and ring. Furthermore, blood found on the clothes that Murph had discarded for Hodges matched Seaton’s DNA.
“Hodges testified in his own defense and offered his own version of the facts surrounding Seaton’s murder. Hodges testified that he orchestrated the robbery and enlisted the help of Craig Hicks, Greg Holstick, and Mario Murph. Hodges testified that, on the night of the intended robbery, Hicks did not show up and they had to revise their plans. He said that he planned to be at his apartment so that he would not be implicated in the robbery. He said that he wondered what was taking so long and went across the street from the Golden Corral to see what was happening. Hodges further testified that after about one hour Greg Holstick returned and said that they had to get rid of Seaton because she knew them. (Hodges had previously introduced Holstick to Sea-ton.) Hodges said that Holstick gave him $600. Hodges said that he was not present at the time of the robbery or the murder and that he knew nothing about the murder. He said that the State’s witnesses were all lying.”

Hodges II, 856 So.2d at 895-96 (footnote omitted).

Concerning the trial court’s sentencing order, the Court of Criminal Appeals stated:

“The trial court found that the aggravating circumstances outweighed the mitigating circumstances. The trial court found, as aggravating circumstances, that the murder was committed during a robbery and during a kidnapping, and that the murder was especially heinous, atrocious, or cruel as compared to other capital offenses. The trial court stated:
“ ‘The Court finds, from the evidence, as follows: The victim’s nude body was found beside a rural road in Macon County. Medical and other testimony revealed that she had been beaten and choked after being abducted from the location of the robbery in her van. Blood matching her type was found inside the van and on clothing of [Hodges]. The accomplice testified that she pleaded for her life as she was being driven around naked inside the van. It is unclear as to how long she was ... driven around naked and how long she was beaten and choked before finally being dumped on the side of the road. In the view of this Court, that was extraordinarily cruel and likely generated great fear and terror in her during her last hours on this earth. She was then dumped on the ground and run over repeatedly with her own van. Blood matching her type was found on the underside of the vehicle.’
“(May 2, 2001, Amended Sentencing Order.)
“Here, the facts support the trial court’s finding that the murder was especially heinous, atrocious, or cruel as compared to other capital murders. See Ex parte Hutcherson, 727 So.2d 861 (Ala.1998) (murder especially heinous, atrocious, or cruel when victim was beaten to death), cert. denied, 527 U.S. 1024, 119 S.Ct. 2371, 144 L.Ed.2d 775 (1999). The evidence demonstrated that Seaton pleaded for her life for some time before she was beaten with fists and a pistol and was ultimately run over with her own vehicle. Murph testified that she even took off her clothes and offered to have sex with Hodges and Murph if they would not kill her. The evidence further demonstrated that Seaton had been physically and psychologically tortured. ‘The torture element of the circumstance may involve both physical and psychological torture.’ Wilson v. State, 777 So.2d 856, 881 (Ala.Crim.App.1999), aff'd, 777 So.2d 935 (Ala.2000), cert. denied, 531 U.S. 1097, 121 S.Ct. 826, 148 L.Ed.2d 709 (2001). There was sufficient evidence to show that Seaton’s murder was ‘especially heinous, atrocious, or cruel’ as compared to other capital murders.
“The trial court found no statutory mitigating evidence present. Hodges argues that the trial court erred in failing to find as statutory mitigating evidence that Hodges could not conform his conduct to the requirements of the law. § 13A-5-51(6). He contends that there was evidence that he had been drinking at the time of the robbery/murder. The trial court stated the following:
“‘The capacity of [Hodges] to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was not impaired. There was evidence that [Hodges] and [Murph] were drinking, but no evidence they were under the influence of alcohol or drugs at the time of the commission of this offense, nor otherwise physically or mentally impaired or affected.’
“(May 2, 2001, Amended Sentencing Order.)
“The trial court’s finding is supported by the record. There was absolutely no evidence presented indicating that Hodges was so drunk he was unable to appreciate the criminality of his conduct. Evidence of alcohol consumption, alone, does not indicate that an individual was so intoxicated that he was unable to form an intent. See Windsor v. State, 683 So.2d 1027, 1037 (Ala.Crim.App.1994), aff'd, 683 So.2d 1042 (Ala.1996), cert. denied, 520 U.S. 1171, 117 S.Ct. 1438, 137 L.Ed.2d 545 (1997).
“The trial court stated the following about the nonstatutory mitigating evidence:
“‘Testimony was given by [Hodges’s] mother as to a difficult family history during [Hodges’s] childhood. She testified that [Hodges’s] father abused her. However, she left [Hodges’s] father when [Hodges] was two years old. She remarried a man who was verbally abusive to the family but left him when [Hodges] was seven years old. At the time of this offense, [Hodges] was 27-years-old. In the opinion of this Court, this testimony is entitled to little, if any, weight.’
“(May 2, 2001, Amended Sentencing Order.)
“Hodges argues that the trial court erred in failing to find certain nonstatu-tory mitigating evidence. We have often stated that ‘ “[although the trial court is required to consider all mitigating circumstances, the decision of whether a particular mitigating circumstance is proven and the weight to be given it rests with the sentencer.’” Boyd v. State, 715 So.2d 825, 840 (Ala.Crim.App.1997), aff'd, 715 So.2d 852 (Aa.1998), quoting Williams v. State, 710 So.2d 1276, 1347 (Aa.Crim.App.1996), aff'd, 710 So.2d 1350 (Ala.1997), cert. denied, 524 U.S. 929, 118 S.Ct. 2325, 141 L.Ed.2d 699 (1998). Hodges argues that the trial court erred in not considering as mitigating that his codefendant received a sentence of life imprisonment without parole. We have stated that a trial court is not bound to find as a mitigating circumstance that a codefen-dant received a lesser sentence than death. See Johnson v. State, 820 So.2d 842 (Ala.Crim.App.2000), aff'd, 820 So.2d 883 (Ala.2001).
“The trial court weighed the aggravating circumstances and the mitigating circumstances and elected not to follow the jury’s recommendation. The trial court explained its decision:
“ ‘It is the opinion of this Court that, given the facts of this case, that the advisory verdict of the jury should not be followed.
“‘This was an especially cruel and torturous murder. The victim, after being abducted at gunpoint by the two perpetrators, cooperated by giving access to the building and safe at the Golden Corral Restaurant. They got the money they sought without resistance from the victim.
“ ‘It would have been humane for them to release the victim at that point. Instead, they continued to hold her against her will. She was driven around, naked, and beaten and choked as she pled for her life. It would be reasonable to assume that she was conscious and terrified as the torture continued over an extended period of time.
“ ‘She was then dumped on the ground and run over repeatedly. It is unclear whether she was still alive at the time this was done but that conclusion could be drawn, thus magnifying the terror and anguish inflicted on the victim by [Hodges].
“ ‘While this Court has given great deference to the verdict and sentence recommendations of this jury, still the depravity of [Hodges], the callousness of his acts toward the victim (as recounted above), and comparing his acts with similar cases, it is the opinion of this Court that a greater measurement of punishment is proper than life [imprisonment] without parole.’
“(May 2, 2001, Amended Sentencing Order.)”

Hodges II, 856 So.2d at 930-33.

I. The Judicial Override

In Ex parte Waldrop, [Ms. 1001194, November 22, 2002] - So.2d - (Ala.2002), we addressed the same arguments Hodges makes here concerning the constitutionality of the judicial-override provision in Alabama’s capital sentencing scheme in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). We upheld the judicial-override in Waldrop.

In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348. In Ring, the defendant was convicted of a murder committed during the course of a robbery. However, under Arizona’s statutory scheme, unlike Alabama’s, only the trial court heard the evidence submitted at the sentencing hearing. The trial court determined which aggravating circumstances and mitigating circumstances existed, weighed those circumstances, and sentenced Ring to death. The Supreme Court concluded that because “Arizona’s enumerated aggravating factors operate as ‘the functional equivalent of an element of a greater offense,’ ” those factors must be found by a jury. 536 U.S. at 609, 122 S.Ct. at 2443 (quoting Apprendi, 530 U.S. at 494 n. 19, 120 S.Ct. 2348). Because the trial judge and not the jury made the factual findings required to sentence Ring to death, the Supreme Court reversed the judgment of the Supreme Court of Arizona. Id.

In Waldrop, we first addressed Waldrop’s argument that a defendant cannot be sentenced to death in Alabama unless a jury finds both that a defendant is guilty of a capital offense and that at least one statutory aggravating circumstance exists. We concluded:

“Because the jury convicted Waldrop of two counts of murder during a robbery in the first degree, a violation of Ala.Code 1975, § 13A-5-40(a)(2), the statutory aggravating circumstance of committing a capital offense while engaged in the commission of a robbery, Ala.Code 1975, § 13A-5-49(4), was ‘proven beyond a reasonable doubt.’ Ala.Code 1975, § 13A-5-45(e); Ala.Code 1975, § 13A-5-50. Only one aggravating circumstance must exist in order to impose a sentence of death. Ala.Code 1975, § 13A-5-45(f). Thus, in Wal-drop’s case, the jury, and not the trial judge, determined the existence of the ‘aggravating circumstance necessary for imposition of the death penalty.’ Ring, 536 U.S. at 609, 122 S.Ct. at 2443. Therefore, the findings reflected in the jury’s verdict alone exposed Waldrop to a range of punishment that had as its maximum the death penalty. This is all Ring and Apprendi require.”

— So.2d at -. Likewise, in Hodges’s case, because the jury convicted him of murder made capital because it was committed during a first-degree robbery, the jury, not the trial court, determined the existence of at least one aggravating circumstance that exposed Hodges “to a range of punishment that had as its maximum the death penalty.” — So.2d at

We next addressed in Waldrop his argument that the process of deciding whether the aggravating circumstances outweigh the mitigating circumstances is a factual finding that must be made by the jury and not the trial court. We concluded:

“[T]he determination whether the aggravating circumstances outweigh the mitigating circumstances is not a finding of fact or an element of the offense. Consequently, Ring and Apprendi do not require that a jury weigh the aggravating circumstances and the mitigating circumstances.”

— So.2d at -. That conclusion applies to Hodges as well.

Finally, we addressed Waldrop’s argument that the existence of the aggravating circumstance that a murder is “especially heinous, atrocious or cruel compared to other capital offenses,” § 13A-5-49(8), Ala.Code 1975, is a factual finding that must be made by the jury, not the trial court. We concluded:

"... Ring and Apprendi do not require that the jury make every factual determination; instead, those cases require the jury to find beyond a reasonable doubt only those facts that result in ‘an increase in a defendant’s authorized punishment ... ’ or ‘ “expose[ ] [a defendant] to a greater punishment....”’ Ring, 536 U.S. at 602, 122 S.Ct. at 2439, 2440 (quoting Apprendi, 530 U.S. at 494, 120 S.Ct. 2348). Alabama law requires the existence of only one aggravating circumstance in order for a defendant to be sentenced to death. Ala.Code 1975, § 13A-5-45(f). The jury in this case found the existence of that one aggravating circumstance: that the murders were committed while Waldrop was engaged in the commission of a robbery. At that point, Waldrop became ‘exposed’ to, or eligible for, the death penalty. The trial court’s subsequent determination that the murders were especially heinous, atrocious, or cruel is a factor that has application only in weighing the mitigating circumstances and the aggravating circumstances, a process that we held earlier is not an ‘element’ of the offense.”

— So.2d at -. Likewise, Hodges became eligible for the death penalty when the jury found that he committed the murder while he was engaged in a robbery in the first degree, and the trial court’s subsequent finding that the murder was “especially heinous, atrocious or cruel” is implicated only in the process of weighing the aggravating and mitigating circumstances.

Furthermore, the United States Supreme Court in Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), released the same day as Ring, stated: “Basing a 2-year increase in the defendant’s minimum sentence on a judicial finding of brandishing does not evade the requirements of the Fifth and Sixth Amendments.” 536 U.S. at 568, 122 S.Ct. at 2420.

A dissenting opinion, joined by three other Justices, observed:

“According to the plurality, the historical practices underlying the Court’s decision in Apprendi with respect to penalties that exceed the statutory maximum do not support extension of Apprendi’s rule to facts that increase a defendant’s mandatory minimum sentence. Such fine distinctions with regard to vital constitutional liberties cannot withstand close scrutiny.”

536 U.S. at 574, 122 S.Ct. at 2423 (Thomas, J., dissenting). At a later point the dissenting opinion states:

“Thus, it is ultimately beside the point whether as a matter of statutory interpretation brandishing is a sentencing factor, because as a constitutional matter brandishing must be deemed an element of an aggravated offense. See Apprendi, supra, at 483, n. 10, 530 U.S. 466, 120 S.Ct. 2348 (‘[F]acts that expose a defendant to a punishment greater than that otherwise legally prescribed were by definition “elements” of a separate legal offense’).”

536 U.S. at 576, 122 S.Ct. at 2424. Until the dissenting opinion in Harris becomes the law of the land, we reject Hodges’s argument that the trial court’s finding that the offenses were “especially heinous, atrocious or cruel compared to other capital offenses” is a finding of fact that must be determined by a jury.

II. Restricted Mitigating Evidence

Hodges argues that the trial court improperly restricted the presentation of mitigating evidence on his behalf provided by his mother during the penalty phase of his trial, and that the trial court improperly commented in the presence of the jury that certain of that evidence was irrelevant. Hodges’s mother, Cora Cobb, was the only witness who testified at the penalty phase of his trial. She testified as to the abuse she endured from Hodges’s father and from subsequent husbands, the poverty the family endured, Hodges’s emotionally abusive treatment by a mentally ill stepfather, frequent moves by the family as a result of poverty and spousal abuse, and Hodges’s search as a teenager for his father and his disappointment upon locating his father. At one point during her testimony, the following occurred:

“Q. Ms. Cobb, where did you and the children go after you left Folkston [where Hodges was bornj?
“A. Well, at the time I had talked at length with the pastor of the church that I went — I went to.
“MR. ABBETT [the prosecutor]: Your Honor, could I interpose an objection on the grounds of relevancy, Your Honor? If we could get to the life of the defendant.
“THE COURT: Sustain the objection.
“MR. ABBETT: Her prior life doesn’t have any relevance—
“THE COURT: Sustain the objection.
“Q. Just tell me where you went.
“A. Went to — I came — moved to Auburn. [The witness then answered several questions from Hodges’s counsel as to the various places the family had lived.]
“Q. Where did you go after that?
“MR. ABBETT: Your Honor, again, I object—
“THE COURT: Mr. Ray [defense counsel], we need to get something that—
“MR. ABBETT: — on the grounds of relevant—
“THE COURT: — is relevant to this phase of the trial. And I don’t believe this is.
“MR. RAY [defense counsel]: Judge, I — if I may present some authority, that the instability of the family life is certainly relevant to mitigation. I have authority on that, I will be glad to submit it.
“THE COURT: Well, the fact that you have moved from one place to the other I don’t believe has any relevancy to that?
“MR. RAY: Yes, sir, it does, and I — I mean, it’s—
“THE COURT: Mr. Ray, please don’t argue with me.
“MR. RAY: I am not arguing with you, Judge. I am just giving you—
“THE COURT: Come up.
“MR. RAY: — my opinions.
“THE COURT: Come up here.”

The trial court then held a bench discussion with the lawyers out of the jury’s presence regarding the mitigating evidence being offered through the mother’s testimony. The trial court expressed chagrin over testimony it characterized as “a narrative of this lady and her travels without any reference to what effect, if any, it has on this defendant,” and stated to defense counsel that the court would “give [him] a lot of leeway, ... but I don’t think we ought to be wasting a juror’s time on things that don’t seem to have much relevance at all.” The following then occurred:

“MR. RAY: [T]his is a serious situation and — and I would refer the Court to the Supreme Court case of Eddings v. Oklahoma, [455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982),] also McGauth[a] v. California, [402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971),] which say that the family’s instability, lack of a father, and that sort of thing is a mitigating circumstance, as well as the rules in — in the Code of Alabama about the evidence that is relevant to a sentencing phase. Which says that anything pertaining to the — the defendant would be relevant. And I would like to refer you to those Code sections that talk about relevance of — in the sentencing phase.
“THE COURT: I know those Code sections, but you are asking this lady if she moved from one place and then she moved two blocks over. And this sort of thing. [The trial court is referring to Mrs. Cobb’s testimony that the family lived at an Auburn address for approximately a year and then moved ‘to a bigger place which was on the next road over.’]
“MR. RAY: Yes, sir.
“THE COURT: That — that doesn’t seem to me to have any relevance at all.
“MR. RAY: Well, as I said—
“THE COURT: Are you going to get to something else very shortly?
“MR. RAY: There is going to be some history of moving around, Judge, and the stepfathers that come in and the stepfathers that are alcoholics, and the stepfathers—
“THE COURT: Okay. Well, why don’t we get to that.”

Thereafter, defense counsel had the opportunity to go into evidence concerning the instability of Hodges’s family during his childhood. Although defense counsel did not specifically question the witness further about the frequency of the family’s moves, he did ask general questions, without objection from the State, about various stepfathers who came and went from the home, from which the jury could have inferred that moves took place. Obviously, the bench discussion persuaded the trial court to reconsider its view as to the relevance of testimony about the family’s moves. Nevertheless, defense counsel did not object to the trial court’s previous remarks in the presence of the jury concerning the lack of relevance of evidence indicating that the family had moved from place to place and he did not request a curative instruction on that issue.

In discussing the testimony of Hodges’s mother, the Court of Criminal Appeals stated:

“[Cora Cobb] was repeatedly interrupted during her testimony by the prosecution and the trial court. The trial court attempted to limit her discussion about the number of moves the family had made when Hodges was growing up. We agree with defense counsel’s characterization of this evidence — it was admissible to show the instability of Hodges’s home environment. However, this evidence was introduced during her testimony; thus, there is no reversible error.”

Hodges I, 856 So.2d at 892 n. 4. The Court of Criminal Appeals pointed out that a difficult family history is a mitigating circumstance, but that the weight to be accorded that circumstance depends upon the facts of the case and the defendant’s age. Id. We note that Hodges was 27 years old at the time this murder was committed.

Hodges argues that even though he was eventually able to present most, if not all, of the mitigating evidence he wanted the jury to hear, the trial court erred in stating in the presence of the jury, while ruling on an objection during the testimony, that the evidence regarding the family’s many moves was not relevant. That error, Hodges argues, might have affected the number of jurors who voted for life imprisonment without the possibility of parole instead of death. Had more jurors voted for life imprisonment, Hodges reasons, the trial court might have been more reluctant to override the jury’s verdict.

Hodges is correct that the number of jurors voting for life imprisonment is a factor this Court now requires a trial court to consider in weighing the aggravating circumstances against the mitigating circumstances in a case in which a sentence of death is a possibility. In Ex parte Carroll, 852 So.2d 833 (Ala.2002), this Court held:

“We take this opportunity to further explain the effect of a jury’s recommendation of life imprisonment without the possibility of parole. Such a recommendation is to be treated as a mitigating circumstance. The weight to be given that mitigating circumstance should depend upon the number of jurors recommending a sentence of life imprisonment without parole, and also upon the strength of the factual basis for such a recommendation in the form of information known to the jury, such as conflicting evidence concerning the identity of the ‘triggerman’ or a recommendation of leniency by the victim’s family; the jury’s recommendation may be overridden based upon information known only to the trial court and not to the jury, when such information can properly be used to undermine a mitigating circumstance.”

852 So.2d at 886 (footnote omitted).

After reviewing the record, we conclude that Hodges was able to present to the jury the evidence regarding his difficult, unstable, and impoverished childhood. The trial court initially sustained the prosecutor’s objections as to the family’s frequent moves and commented in the presence of the jury that such evidence was not relevant. The evidence was, however, relevant. See, e.g., Hall v. State, 820 So.2d 113 (Ala.Crim.App.1999), aff'd, 820 So.2d 152 (Ala.2001), cert. denied, 535 U.S. 1080, 122 S.Ct. 1966, 152 L.Ed.2d 1025 (2002); Powell v. State, 796 So.2d 404 (Ala.Crim.App.1999), aff'd, 796 So.2d 434 (Ala.), cert. denied, 534 U.S. 904, 122 S.Ct. 236, 151 L.Ed.2d 170 (2001); Williams v. State, 783 So.2d 108 (Ala.Crim.App.2000); Smith v. State, 756 So.2d 892, 954 (Ala.Crim.App.1997), aff'd, 756 So.2d 957 (Ala.2000). Nevertheless, as the Court of Criminal Appeals correctly noted, the evidence of the Hodges family’s frequent moves was ultimately admitted. The question before us, then, is whether the trial court’s erroneous comments about the relevancy of the evidence require us to reverse Hodges’s sentence and remand the case for a new sentencing hearing.

Because Hodges’s defense counsel did not object to the trial court’s comments or request a curative jury instruction, we review this issue pursuant to the plain-error rule. Because Hodges was sentenced to death, the failure to object at trial does not bar appellate review of this issue, but it does weigh against any claim of prejudice he makes on appeal. This Court recently addressed the application of the plain-error rule in capital cases in Ex parte Bryant, [Ms. 1990901, June 21, 2002] — So.2d - (Ala.2002), where we stated:

“ * “ ‘Plain error’ arises only if the error is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings.’” Ex parte Womack, 435 So.2d 766, 769 (Ala.1983) (quoting United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir.1981)). See also Ex parte Woodall, 730 So.2d 652 (Ala.1998). ‘ “In other words, the plain-error exception to the contemporaneous objection rule is to be ‘used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.’ ” ’ Ex parte Land, 678 So.2d 224, 232 (Ala.1996) (quoting United States v. Young, 470 U.S. 1, 15 (1985)) (quoting in turn United States v. Frady, 456 U.S. 152, 163 n. 14 (1982)). ‘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), cert. denied, 532 U.S. 907 (2001). This Court may take appropriate action when the error ‘has or probably has adversely affected the substantial rights of the appellant.’ Rule 45A, Ala. R.App. P. ‘[A] failure to object at trial, while not precluding our review, will weigh against any claim of prejudice.’ Ex parte Woodall, 730 So.2d at 657 (citing Kuenzel v. State, 577 So.2d 474 (Ala.Crim.App.1990), aff'd, 577 So.2d 531 (Ala.1991)).”

— So.2d at - (emphasis added).

Hodges contends that without the trial court’s comment that evidence of the family’s frequent moves was irrelevant, the jury might have returned a recommendation in favor of life imprisonment without the possibility of parole by a vote of greater than 8-4. As previously stated, the evidence regarding the frequent moves Hodges’s family made when he was a child was relevant, and the trial court should not have commented in the presence of the jury on the relevancy of the evidence of the frequency of the moves. However, the assumption that had those comments not been made the jury might have returned a vote more favorable to Hodges and, thereafter, that the trial court might have declined to override the jury’s recommendation, is too tenuous a foundation upon which to base plain error. After reviewing all of the evidence in this case, especially the manner in which the 27-year-old Hodges murdered the victim, we conclude that the trial court’s comments concerning the lack of relevance of the evidence of the frequency of moves made in the midst of the testimony from Hodges’s mother to which there was no objection, followed by a bench conference that led to permission to pursue this avenue of inquiry, do not rise to the level of “plain error.” We confine the operation of the plain-error rule to those cases where the error “has or probably has adversely affected the substantial rights of the appellant.” Rule 39(a)(2)(D), Ala. R.App. P. (emphasis added). We use it “sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.” United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Speculation as to what would have happened absent the unobjected-to remarks concerning the relevancy of the evidence of the frequency of the family’s moves after which general testimony about the instability of Hodges’s family life was permitted does not rise to the level of error that had or probably had adversely affected Hodges’s substantial rights so as to permit the conclusion that a miscarriage of justice occurred.

III. Conclusion

Based on our independent weighing of the aggravating circumstances and the mitigating circumstances in this case, and treating the jury’s recommendation as a mitigating circumstance in this case, we conclude that the trial court’s override of the jury’s recommended sentence of life imprisonment without the possibility of parole and that court’s subsequent sentence of death were proper under the circumstances presented here. See § 13A-5-53(a) and (b), Ala.Code 1975. We therefore affirm the judgment of the Court of Criminal Appeals as to Hodges’s sentence.

AFFIRMED.

MOORE, C.J., and HOUSTON, SEE, BROWN, HARWOOD, WOODALL, and STUART, JJ., concur.

JOHNSTONE, J., concurs specially.

JOHNSTONE, Justice

(concurring specially).

This Court granted the writ of certiorari to review only the two issues addressed by the main opinion. Because the main opinion has correctly addressed both of those issues, I concur fully.

I do not want my concurrence to be misconstrued, however, as any expression of approval of what I regard as some dicta in the opinion by the Court of Criminal Appeals in this case, Hodges v. State, 856 So.2d 875, 894 (Aa.Crim.App.2001) (opinion on return to remand) — a number of statements to the effect that any error by the trial court in denying the defendant’s challenges of venirepersons for cause was later rendered harmless by the defendant’s exercising peremptory challenges to keep these same venirepersons off the jury. I adhere to the views I expressed, and I insist on the authorities I cited, in my special writing in Bethea v. Springhill Memorial Hospital, 833 So.2d 1, 9-11 (Ala.2002), for the proposition that the erroneous denial of a valid challenge for cause is reversible error. The reason that the denials of defendant’s challenges for cause in the case now before us are not reversible is that those denials were not erroneous.

      . The United States Supreme Court issued its decision in Ring on June 24, 2002. As we explained in Waldrop, even though Hodges was convicted before the Supreme Court decided Ring, it applies to Hodges’s case.
      " '[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final.' Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). ‘By "final,” we mean a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied.’ Griffith, 479 U.S. at 321 n. 6, 107 S.Ct. 708.”

        - So.2d at - n. 1. Because Hodges's case was pending on certiorari review when the Supreme Court decided Ring, the new rule announced in that case is applicable to Hodges.

      . We have addressed only those issues relating to Hodges's sentence, because his petition for certiorari review does not raise questions relating to his conviction.


source: Caselaw Access Project

author: COBB, Judge. WISE, Judge,

license: Public Domain

text:
    Michael Nelson MURPHY v. STATE of Alabama.
    CR-01-1961.
    Court of Criminal Appeals of Alabama.
    Jan. 7, 2003.

      James M. Byrd, Mobile, for appellant.
    William H. Pryor, Jr., atty. gen., and Jack W. Willis, asst. atty. gen., for appel-lee.
   COBB, Judge.

On November 8, 2001, Michael Nelson Murphy pleaded guilty to possession of marijuana and was sentenced to five years in prison. The trial court, however, suspended the sentence and placed Murphy on supervised probation for five years.

On May 20, 2002, a delinquency report was filed against Murphy, alleging generally that he had “violated the terms and conditions of the probationary sentence heretofore imposed upon him.” (C. 6.) On June 25, 2002, the trial court conducted a hearing, at the end of which it revoked Murphy’s probation. On July 2, 2002, it issued an order of revocation that stated, in pertinent part:

“Included among those terms and conditions [of probation] was that [Murphy] must report to his probation officer as directed and that he not violate the criminal laws of any jurisdiction. While on probation, the Defendant failed to abide by the terms and conditions of his probation. On June 25, 2002, a hearing was held. After hearing testimony from Probation Officer Eugene Perry and Officer Paul Meynard[, the Court revoked] the Defendant’s probation.... The Court is, therefore, reasonably satisfied that the Defendant violated the terms and conditions of his probation by failing to comply with the terms as ordered by the Court.”

(C. 10.)

On appeal, Murphy argues that this cause is due to be remanded for the trial court to identify the specific grounds of the revocation and the evidence it relied upon.

“The general rules of preservation apply to probation revocation hearings. Puckett v. State, 680 So.2d 980, 983 (Ala.Cr.App.1996), citing Taylor v. State, 600 So.2d 1080, 1081 (Ala.Cr.App.1992). This Court ‘has recognized, in probation revocation proceedings, only two exceptions to the general rule that issues not presented to the trial court are waived on appeal: (1) the requirement that there be an adequate written order of revocation ..., and (2) the requirement that a revocation hearing actually be held.’ Puckett, 680 So.2d at 988.”

Owens v. State, 728 So.2d 673, 680 (Ala.Crim.App.1998). This Court has also held that a defendant can raise for the first time on appeal the allegation that the trial court erroneously failed to advise him of his right to request counsel during probation-revocation proceedings. Law v. State, 778 So.2d 249 (Ala.Crim.App.2000).

“This court has consistently held that general recitations by the trial court that it considered the ‘testimony and arguments of counsel,’ ‘testimony of the defendant,’ ‘sworn testimony,’ [or] ‘testimony in open court,’ are insufficient to satisfy the due process requirements of Armstrong [v. State, 294 Ala. 100, 312 So.2d 620 (1975) ].”

McIntosh v. State, 762 So.2d 388, 390-91 (Ala.Crim.App.1999) (citing James v. State, 729 So.2d 364 (Ala.Crim.App.1998); Rutledge v. State, 689 So.2d 1002 (Ala.Crim.App.1996); Rivers v. State, 689 So.2d 990 (Ala.Crim.App.1996); and Jones v. State, 671 So.2d 770 (Ala.Crim.App.1995)).

Although in its order revoking Murphy’s probation the circuit court named the people who testified at the probation-revocation hearing, it did not state to any extent the substance of that testimony. Additionally, it did not state the conditions of probation it found Murphy to have violated. Therefore, the order is insufficient, and we must remand this cause so that the circuit court can specify the evidence, if any, on which it relied to revoke Murphy’s probation. Due return shall be made to this Court within 42 days of the release of this opinion.

REMANDED WITH DIRECTIONS

McMILLAN, P.J., concurs; BASCHAB and SHAW, JJ., concur in the result; WISE, J., dissents, with opinion.

WISE, Judge,

dissenting.

I dissent from the main opinion remanding this case for the Mobile Circuit Court to enter a new probation-revocation order. In my opinion, the court’s order contains the reasons for revoking Murphy’s probation (he violated a condition of his probation) and a statement of the evidence relied upon (the testimony of Murphy’s probation officer and Officer Paul Meynard), as mandated by Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), and Wyatt v. State, 608 So.2d 762 (Ala.1992). Accordingly, I would affirm the court’s revocation of Murphy’s probation. Therefore, I must dissent.

      . In Trice v. State, 707 So.2d 294, 299 (Ala.Crim.App.1997), this Court urged the Alabama Supreme Court "to modify its present requirement that a separate written order be entered when a transcript of the revocation hearing is available.” We again urge the Alabama Supreme Court to reconsider its holding in Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975).


author: WISE, Judge.

text:
    Rufus BASKIN v. STATE of Alabama.
    CR-02-0039.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 2003.
    Rehearing Denied March 7, 2003.

      Rufus Baskin, pro se.
    Andrew W. Redd, gen. counsel, and William F. Addison, asst. gen. counsel, Department of Corrections.
   WISE, Judge.

Rufus Baskin appeals from the circuit court’s summary denial of his petition for a writ of habeas corpus. Baskin’s petition challenged a prison disciplinary proceeding in which he was found guilty of violating Rule 91 in Annex A to Administrative Regulation 403 of the Alabama Department of Corrections, conspiracy to commit a violation of a departmental or institutional rule, and of violating Rule 92 in Annex A, aiding and abetting another to commit a violation of a departmental or institutional rule.

The evidence presented at the disciplinary hearing established that while Baskin was at his assigned work-release job at the Gold Kist poultry-processing plant in Rus-sellville, he conspired with another inmate to steal money from an individual servicing the vending machines at the plant. Correctional Officer Thomas Black testified that about 9:30 p.m. on May 19, 2002, $600 in cash was taken from Jamie Poston, who was servicing the vending machines at the Gold Kist plant. After interviewing Po-ston and several other witnesses, Officer Black determined that Baskin had distracted Poston while another inmate took Poston’s money bag. The hearing officer found Baskin guilty of the offenses, based on Officer Black’s testimony. As a result of the officer’s findings, Baskin was removed from work release, lost all privileges for 60 days, and was assigned three hours of extra duty for 30 days.

On July 24, 2002, Baskin filed a petition for a writ of habeas corpus with the El-more Circuit Court, alleging that the disciplinary proceeding failed to comport with due-process requirements because, he argued, the finding of guilt was based solely on hearsay testimony. The State moved to dismiss the petition, denying the allegations. The State further asserted that Baskin’s punishment did not involve the loss of a liberty interest; therefore, it asserted, the protections described in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), were not triggered. On September 16, 2002, the circuit court dismissed the petition and ordered Baskin to pay a $157 filing fee. This appeal followed.

On appeal, Baskin restates his argument that he was denied the minimum due-process requirements established in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), when, he says, the disciplinary hearing officer made a decision based solely on hearsay testimony. The loss of good time constitutes a denial of a liberty interest that triggers the due-process requirements established in Wolff v. McDonnell. Hearin v. State, 741 So.2d 1122, 1123 (Ala.Crim.App.1999); Summerford v. State, 466 So.2d 182, 183 (Ala.Crim.App.1985). We note that as part of his punishment, Baskin was removed from work release. In Ex parte Berry, 794 So.2d 307 (Ala.2000), the Alabama Supreme Court held that an inmate has a liberty interest in remaining on work release. Thus, the protections set out in Wolff v. McDonnell apply.

Under Wolff v. McDonnell, an inmate facing a disciplinary proceeding is entitled to notice of the claimed violation, and the inmate has the right to call witnesses and to present documentary evidence in his behalf and to receive a written statement by the fact-finders as to the evidence relied on and the reasons for the disciplinary action. 418 U.S. at 563, 94 S.Ct. 2963; Brown v. State, 592 So.2d 621, 623 (Ala.1991); Hearin v. State, 741 So.2d at 1123; Young v. State, 584 So.2d 553, 554 (Ala.Crim.App.1991). Our review of the record indicates that Baskin received notice of the alleged violations, that he apparently elected not to call witnesses, and that the hearing officer provided written findings of fact.

However, in order for the requirements of due process to be satisfied, the record must also show that there is “some evidence” to support the decision to remove Baskin from work release. See Superintendent, Massachusetts Correctional Inst., Walpole v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985). See also Headley v. State, 720 So.2d 996, 997 (Ala.Crim.App.1998). As this Court has recognized on numerous occasions, hearsay evidence alone is insufficient to satisfy the “some-evidence” standard. See, e.g., Griffin v. State, 636 So.2d 1285, 1286 (Ala.Crim.App.1994).

Here, the sole evidence upon which the finding of guilt was based was the hearsay testimony of Officer Black, the arresting officer, regarding what persons who were not incarcerated told him about the incident. As this Court noted in Bridges v. State, 636 So.2d 696 (Ala.Crim.App.1993):

“Due process requires that the decision of a state disciplinary board or a hearing officer not be made arbitrarily or capriciously, but be based upon some evidence. Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985); Heidelburg v. State [, 522 So.2d 337 (Ala.Crim.App.1988)]. Hearsay testimony may be admissible in prison disciplinary hearings; however, it may not alone be sufficient to support a finding of guilt. Pearsall v. State, 564 So.2d 1014 (Ala.Cr.App.1989), rev’d in part on other grounds, 564 So.2d 1017 (Ala.1990). See also Ex parte Floyd, 457 So.2d 961 (Ala.1984). Situations arise where findings of guilt based entirely on hearsay are proper and necessary; however, in those cases certain measures must be taken to ensure minimum due process. Pearsall v. State.”

636 So.2d at 697.

Taking into consideration all the circumstances, we do not find that the hearsay testimony of Officer Black constitutes “some evidence” so as to satisfy the requirements of due process. No reason was given for the State’s failure to produce the unidentified “free-world persons” who had direct knowledge of the incident. The State presented nothing to indicate the reliability of the hearsay testimony. We cannot say that this constitutes “some evidence” so as to satisfy the requirements of due process.

Based on the foregoing, we hold that the hearing officer’s finding of guilt was not supported by sufficient evidence and that the officer’s finding was, therefore, arbitrary and capricious. See Oliver v. State, 770 So.2d 1116, 1118 (Ala.Crim.App.2000); Bridges v. State, 636 So.2d at 697. The judgment of the circuit court dismissing the habeas corpus petition is hereby reversed, and this cause is remanded to that court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

McMILLAN, P.J„ and COBB, BASCHAB, and SHAW, JJ., concur.

      . This offense occurred while Baskin was assigned to the Hamilton Work Release Center in Marion County.

      . Although the judge who authored this opinion disagrees with the holding in Ex parte Berry, see Neal v. State, 803 So.2d 586 (Ala.Crim.App.2001) (Wise, J„ concurring specially), this Court is nevertheless required to follow its holding. See § 12-3-16, Ala.Code 1975.

      . Although Baskin argues in his brief to this Court that he was denied the right to call witnesses, our review of the record does not indicate that Baskin requested the presence of any witnesses, or that he prepared any questions to be asked of these witnesses, other than the proposed questions to be asked of Officer Black. (C. 58-59.)


author: SHAW, Judge.

text:
    Reginald BYERS v. STATE of Alabama.
    CR-02-0135.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 2003.
    Rehearing Denied March 14, 2003.

      Reginald J. Byers, pro se.
    Andrew W. Redd, gen. counsel, and William F. Addison, asst. gen. counsel, Department of Corrections.
   SHAW, Judge.

Reginald Byers appeals the circuit court’s summary denial of his petition for a writ of habeas corpus, wherein he alleged that he was denied due process in a prison disciplinary proceeding. He was found guilty in the disciplinary proceeding of violating Rule No. 41 in Annex A to the Alabama Department of Corrections, Administrative Regulation No. 403 (making false statements or charges), and Rule No. 91 in Annex A to the Alabama Department of Corrections, Administrative Regulation No. 403 (conspiracy to commit a violation of departmental or institutional rules). Byers was sanctioned with removal from work release, 30 days’ extra duty, and 45 days’ loss of all privileges. Byers did not lose any good time.

In his petition, Byers contended that he was denied due process in the prison disciplinary proceeding because, according to him, the hearing officer’s decision was based solely on hearsay, none of the witnesses to the incident testified, and the hearing officer did not make an inquiry into the reliability of the informant who provided the information used to find him guilty of the violations. Thus, he claimed, the evidence against him failed to meet the “some-evidence” standard and the hearing officer’s finding was arbitrary and capricious. Byers attached to his petition copies of the disciplinary reports. The Department of Corrections (“DOC”) filed a motion to dismiss, arguing (1) that the petition failed to state a claim upon which relief could be granted; (2) that Byers’s punishment did not involve the loss of a liberty interest; and (3) that, notwithstanding its position that Byers’s punishment did not involve the loss of a liberty interest, Byers had, in fact, been afforded due process. The DOC attached to its motion to dismiss partial copies of the disciplinary reports from Byers’s disciplinary hearings and a copy of the institutional incident report completed by the arresting officer, on which the hearing officer relied. Byers filed a response to the DOC’s motion to dismiss. The circuit court granted the State’s motion to dismiss the petition, stating, “The above-styled Petition For Writ of Habeas Corpus having been considered by the Court along with the Respondent’s Motion to Dismiss, the Court is of the opinion that the Motion is well taken and the above-styled Petition is due to be dismissed and denied.” (C. 30.)

The DOC, in its brief on appeal, cites established caselaw holding that confinement in segregation for disciplinary reasons, security or custody classifications, or the loss of privileges does not create a liberty interest or trigger the due-process protections under Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). However, the DOC acknowledges that Byers’s removal from work release did involve a liberty interest, see Ex parte Berry, 794 So.2d 307 (Ala.2000), but it maintains that Byers was afforded due process in compliance with Wolff.

In Wolff, 418 U.S. at 541-42, 94 S.Ct. 2963, the United States Supreme Court held that due process requires that a prisoner in a disciplinary proceeding where a liberty interest is implicated must be afforded advance (no less than 24 hours) notice of the charge against him; the right to be present at the disciplinary hearing; the right to present documentary evidence on his behalf; a qualified right to have a representative present on his behalf; a qualified right to call witnesses; and a written statement of the evidence relied on and the reasons for the decision of the disciplinary body. See Brown v. State, 592 So.2d 621, 623 (Ala.1991); and Zamudio v. State, 615 So.2d 156, 157 (Ala.Crim.App.1993). In Thompson v. State, 504 So.2d 747, 748 (Ala.Crim.App.1987), this Court, relying on Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985), stated that in order to satisfy due process, there must be “some evidence” to support the decision by the prison disciplinary board that the inmate is guilty of the alleged violation. The relevant question is then whether there is some evidence in the record that could support the conclusions reached by the hearing officer. See Thompson, 504 So.2d at 748; see also Heidelburg v. State, 522 So.2d 337, 339 (Ala.Crim.App.1988).

“Due process requires that the decision of a state disciplinary board or a hearing officer not be made arbitrarily or capriciously, but be based upon some evidence. Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985); Heidelburg v. State [, 522 So.2d 337 (Ala.Crim.App.1988)]. Hearsay testimony may be admissible in prison disciplinary hearings; however, it may not alone be sufficient to support a finding of guilt. Pearsall v. State, 564 So.2d 1014 (Ala.Cr.App.1989), rev’d in part on other grounds, 564 So.2d 1017 (Ala.1990). See also Ex parte Floyd, 457 So.2d 961 (Ala.1984). Situations arise where findings of guilt based entirely on hearsay are proper and necessary; however, in those cases certain measures must be taken to ensure minimum due process. Pearsall v. State.”

Bridges v. State, 636 So.2d 696, 697 (Ala.Crim.App.1993). See also Oliver v. State, 770 So.2d 1116, 1117-18 (Ala.Crim.App.2000); and Gowers v. State, 766 So.2d 986 (Ala.Crim.App.2000).

The disciplinary reports in the record indicate that the hearing officer’s finding of guilt was based on “the arresting officer’s incident report, the statements given by Ms. Pruitt, and other statements [given by individuals] who wished not to be named.” (C. 7, 10.) Each of the disciplinary reports contains the following findings of fact by the hearing officer:

“On May 20, 2002, Inmate Byers did conspire to commit violations of departmental or institutional rules by trying to get Lisa Pruitt to exchange some $1.00 bills for $50.00 or $100’s and did state to Ms. Pruitt that O.E. (Lawrence Buford) had [stolen money from] the vending man and he was trying to help him get rid of it so he wouldn’t get in trouble, making him an accessory. Inmate Byers stated he knew nothing when questioned.”

(C. 7, 10.) The record reflects that the arresting officer testified during the hearing as follows:

“On May 20, 2002, at approximately 12:24 a.m., Supervisor George Hughes from Gold Kist phoned Officer Thomas Black at Hamilton Work Release and informed [him] that approximately $600.00 in cash had been stolen from the vending man, Jamie Poston. Officer Black departed Hamilton Work Release to Gold Kist in Russellville, Alabama. Officer Black arrived and was told by Plant Supervisor that at approximately 9:30 p.m. on May 10, 2002, $600.00 in cash ($500.00 in ones and $100.00 in fives) had been stolen. Officer Black questioned the vending man. Mr. Po-ston stated that [Inmate] Rufus Baskin had approached him wanting change. Baskin was told to wait until Poston got to the vending area. During the investigation it was revealed [that] Inmate Baskin distracted the vending man while [Inmate] Lawrence Buford stole the money. It was also revealed that Reginald Byers had approached Lisa Pruitt to get the one’s exchanged for $50.00 or $100.00 bills. When I questioned Inmate Byers, he stated [that] he knew nothing about any money.”

(C. 6, 8; 9,11; 20-21; 22-23.) There is no indication in the disciplinary reports that any other witnesses testified at the disciplinary hearing. In addition, in his incident report, the arresting officer stated:

“At approximately 12:24 a.m., on May 20, 2002, Officer Thomas Black received a phone call from George Hughes at Gold Kist stating that $600.00 had been stolen from the vending man, Jamie Po-ston. At approximately 12:27 a.m., Officer Black notified Sgt. Gary Willingham of the situation. At approximately 12:53 a.m., Officer Black departed Hamilton Work Release Center to Gold Kist in Russellville, Alabama. Upon arriving at Gold Kist, Officer Black spoke with supervisor Hughes about the incident. Supervisor Hughes stated that ... the vending man said he had $600.00 stolen from him. Officer Black then questioned the vending man about the incident. The vending man stated that $500.00 in ones and $100.00 in fives was stolen. The vending man stated that Inmate Rufus Baskin, BM, AIS # 155555 approached him and asked for change. The vending man told Inmate Baskin to let him get into the breakroom first, and then he would make change. The vending man entered the break-room and turned to get his money bag from the cart, but the money bag was gone. The vending man told Officer Black that he thought Inmate Baskin asking for change was a distraction. Supervisor Hughes stated to Officer Black that a confidential informant had come to him explaining that he knew who took the money. The informant told Officer [Black] that he saw Inmate Buford, BM, AIS # 213486 and Inmate Reginald Byers, BM, AIS # 166951 with the money. Also, Lisa Pruitt told Officer Black that Inmate Buford had come to her trying to exchange the money for larger bills. Officer Black then proceeded to question and search Inmates Buford, Byers, and Baskin, and the confidential informant. Inmates Buford and Byers told Officer Black that they did not know anything about any money being stole[n]. Inmate Baskin told Officer Black that he thought a free-world male and female had stolen the money. Officer Black then found a $20.00 bill on Inmate Baskin. Officer Black phoned Sgt. Willingham and informed him about the $20.00. Sgt. Willingham informed Officer Black that Inmate Baskin had only drawn $2.00 from his account the past week. Sgt. Willingham then told Officer Black to bring Inmate Baskin back to the camp. Inmates Baskin, Byers, and Buford are being housed in the Marion County Jail pending further investigation and possible disciplinary action.”

(C. 24-25.)

Here, the sole evidence upon which the hearing officer’s finding of guilt was based was the hearsay testimony of the arresting officer regarding what he had been “told” by various people during his investigation. Taking into consideration all of the evidence in the record, we cannot say that the hearsay testimony of the arresting officer fulfills the “some evidence” requirement of due process. There is no evidence in the record as to why Ms. Pruitt or any of the other persons who apparently gave statements did not testify, and nothing in the record tends to lend any particular reliability to the hearsay testimony.

Based on the foregoing, we hold that the hearing officer’s finding of guilt was not supported by some evidence and, therefore, that the hearing officer’s finding was arbitrary and capricious. See, e.g., McFadden v. State, 854 So.2d 160 (Ala.Crim.App.2002); Oliver v. State, 770 So.2d 1116, 1118 (Ala.Crim.App.2000); and Bridges v. State, 636 So.2d 696, 697 (Ala.Crim.App.1993). The judgment of the circuit court dismissing the petition for writ of habeas corpus is reversed, and this cause is remanded to that court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ., concur.

      . The reports were each three pages in length. The DOC’s exhibits did not contain page two of either report. However, the copies of the reports Byers attached to his petition did contain page two.

      . It appears from the incident report that the confidential informant was an inmate, as evidenced by the officer's statement that he questioned and searched Inmates Buford, Byers, and Baskin, and the confidential informant. We are not oblivious to the fact that an inmate would likely desire to remain unnamed, for fear that he would be somehow retaliated against for cooperating with authorities in an investigation.


author: PER CURIAM. PARIENTE, J., ANSTEAD, C.J.,

text:
    Richard M. COOPER, Appellant, v. STATE of Florida, Appellee. Richard M. Cooper, Petitioner, v. James V. Crosby, Jr., Respondent.
    Nos. SC01-2285, SC02-623.
    Supreme Court of Florida.
    June 26, 2003.
    Rehearing Denied Sept. 25, 2003.

      Stephen F. Hanlon, Robin L. Rosenberg, and Rachel E. Fugate of Holland & Knight LLP, Tallahassee, FL; and Mark S. Gruber, Office of the Capital Collateral, Regional Counsel — Middle, Tampa, FL, for Appellani/Petitioner.
    Charles J. Crist, Jr., Attorney General, and Carol M. Dittmar, Senior Assistant Attorney General, Tampa, FL, for Appel-lee/Respondent.
   PER CURIAM.

Richard M. Cooper appeals a circuit court order denying his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. Additionally, he petitions this Court for a writ of habeas corpus. We have jurisdiction under article V, section 3(b)(1) and (9), of the Florida Constitution. For the reasons expressed below, we conclude that all of Cooper’s claims are barred or meritless, and thus deny relief.

Facts and Procedural History

Cooper is currently under sentence of death for the 1982 murder of three men in Pinellas County, Florida. The facts surrounding Cooper’s crimes were fully detailed in our opinion affirming his eonviction and sentence on direct appeal. See Cooper v. State, 492 So.2d 1059, 1060 (Fla.1986). Essentially, Cooper and two other individuals concealed their identities with gloves and ski masks, entered a residence at night, gathered the three adult occupants in the living room of the home, and bound their hands with tape. See id. As the group proceeded to rob the men and remove property from their dwelling, one of the victims recognized one of the assailants, and, therefore, Cooper and his accomplices executed the men with shotguns. See id. Cooper was found guilty of three counts of first-degree murder as charged, and the jury recommended the death penalty on all three counts. The trial court followed the jury’s recommendations, finding the existence of six aggravating circumstances and no mitigating factors, and this Court affirmed on direct appeal. See id.

Cooper now appeals the circuit court’s denial of his postconviction motion under rule 8.850, raising five comprehensive claims, some of which contain distinguishable alternative arguments. Additionally, he has invoked the original jurisdiction of this Court by filing a petition for a writ of habeas corpus in which he asserts twelve claims.

Rule S.850 Appeal

Cooper’s first claim is centered upon the testimony and conduct of Paul Skalnik, a witness for the State. During Cooper’s trial, Skalnik related to the jury a conversation in which he and Cooper, cellmates at the time, discussed the circumstances surrounding Cooper’s crime, as well as Cooper’s feelings regarding the victims’ deaths. Prior to the commencement of trial proceedings, the defense sought to preclude the testimony of Skal-nik, asserting that he was operating as an agent of the State when he obtained the incriminating statements from Cooper. Thus, according to Cooper, the conversation constituted improper interrogation in violation of his Sixth Amendment right to counsel. The trial court denied Cooper’s motion in limine, and allowed Skalnik to testify.

As an initial matter, Cooper’s contention that Skalnik was a de facto state agent at the time of their conversation in jail is refuted by the record. Under this Court’s decision in Rolling v. State, 695 So.2d 278 (Fla.1997), the Sixth Amendment to the United States Constitution prohibits law enforcement officers from prearranging the questioning of defendants by incarcerated informants. See id. at 290. The principle is self-evident: the police may not sidestep constitutional protections by employing jail residents as independent contractors to interrogate defendants without the presence of an attorney. See United States v. Henry, 447 U.S. 264, 100 S.Ct. 2188, 65 L.Ed.2d 115 (1980). However, a violation of the dictates of Rolling is only shown where the defendant establishes that the informant and the authorities had a preexisting plan for the informing witness to obtain a confession.

In the instant case, the record refutes Cooper’s contention that the State recruited Skalnik as an informant. Indeed, the entirety of the evidence before this Court supports the State’s contention that Skal-nik was upset by Cooper’s bragging regarding the murders, and he subsequently contacted the authorities of his own accord. Skalnik had, at one time, been employed as a police officer in Texas, and this also motivated him to report what Cooper had told him. Because Cooper’s claim that Skalnik was an agent of the State at the time of their jailhouse conversation is refuted by the record, we deny relief based thereon.

Cooper also contends that the State deliberately presented false statements by Skalnik to the trial court in violation of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). To prove a Giglio violation, “a defendant must show: (1) that the testimony was false; (2) that the prosecutor knew the testimony was false; and (3) that the statement was material.” Spencer v. State, 842 So.2d 52, 70 (Fla.2003). In the instant case, Cooper asserts that Skalnik’s testimony that Cooper’s case was one of the first cases in which he had testified as an informant was completely false, and the State was obligated under Giglio to correct this misrepresentation. Our review of the trial transcript, however, reveals that the scope of Skalnik’s comment that this case “was the first occasion that [he] provided information to law enforcement” is properly limited by preceding questions. As is clear from the hearing record, defense counsel introduced this line of questioning by asking, “Mr. Skalnik, on how many instances and in how many different cases have you provided information to law enforcement agents since your incarceration in November 1982? ” (Emphasis supplied.) When taken in conjunction with this time parameter, Skalnik’s subsequent testimony was neither false nor misleading. Thus, Cooper has failed to show the existence of the first Giglio element, and his claim must fail.

Finally, in connection with his other claims regarding Skalnik’s testimony for the State, Cooper contends that the State failed to provide the defense with information it could have used to impeach Skalnik, in violation of the precepts of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, Cooper contends that the State withheld evidence that Skalnik received benefits in exchange for his testimony at trial. We have reviewed the record, and conclude that the trial court below was correct in its conclusion that “there is a dearth of evidence in the record to suggest that Skalnik ever received anything of value from the State. The only indication that Skalnik ever received anything of value is offered in the form of pure speculation.” Cooper’s Brady claim is meritless, and we therefore deny relief.

In his second postconviction claim, Cooper contends that despite repeated requests pursuant to chapter 119 of the Florida Statutes, the State has failed to provide him with public records relating to the various instances in which Skalnik has testified for the State. Because the State has neither furnished the documents to him nor stated specific reasons why the material is exempted from disclosure, Cooper requests that this Court order the State to comply. Our examination of the record on appeal belies Cooper’s assertions. As mandated by chapter 119, the State detailed the statutory exemptions it relied upon to shield certain documents, and provided the entirety of the materials to the court below for in-camera review. The trial court reviewed the records, and concluded that the State’s assertions regarding the exempt status of the documents were well founded. The trial court did not err. Indeed, Cooper makes no claim that he has not been fully and exhaustively informed regarding Skalnik’s background as a State’s witness. Because the sole purpose for which Cooper seeks examination of these records is to research Skalnik’s background, we can discern no scenario in which the limitation upon Cooper’s access to these documents hampered his attorneys’ postconviction discovery efforts.

In his third claim, Cooper asserts that his trial attorneys were unable to adequately represent him, due to significant conflicts of interest. To establish an ineffectiveness claim premised on an alleged conflict of interest, Cooper must establish

that an actual conflict of interest adversely affected his lawyer’s performance. A lawyer suffers from an actual conflict of interest when he or she actively represents conflicting interests. To demonstrate an actual conflict, the defendant must identify specific evidence in the record that suggests that his or her interests were compromised. A possible, speculative, or merely hypothetical conflict is insufficient to impugn a criminal conviction.

Hunter v. State, 817 So.2d 786, 791-92 (Fla.2002) (citations and quotation marks omitted). A review of the facts contained in the record before this Court reveals no actual conflict, and we conclude that Cooper’s assertions amount to no more than the speculation deemed insufficient in Hunter.

The first of Cooper’s trial attorneys, Ronnie Crider, had, prior to his representation of Cooper, been employed as a deputy sheriff and as a prosecutor with the Sixth Circuit State Attorney’s Office. Although Crider had some interaction with law enforcement officers who eventually participated in the investigation of Cooper’s crimes while a sheriffs deputy, and was an employee of the State Attorney’s Office during the investigation of the instant case, Crider never had any actual or substantive connection with the investigation or prosecution of Cooper. Nothing before this Court suggests that Crider’s interests were compromised at trial, and Cooper’s claim that Crider suffered from a conflict of interest is entirely hypothetical.

With regard to Cooper’s second trial counsel, Ky Koch, Cooper contends that Koch’s prior representation of Skalnik during a sentence reconsideration hearing constitutes a specific, prejudicial conflict of interest because Koch was dedicated to protecting Skalnik, and thus could not zealously represent Cooper at trial. The record reflects that Koch’s brief representation of Skalnik did not prejudice Cooper’s case. Koch aggressively cross-examined Skalnik, eliciting testimony which severely damaged the witness’s credibility. Additionally, Koch’s testimony during the proceeding below reveals that Cooper was informed of his attorney’s prior representation of Skalnik, and decided to proceed with Koch as his attorney without objection. Both of Cooper’s claims asserting that his trial attorneys were laboring under actionable conflicts of interest are without merit.

Next, Cooper claims that his trial attorneys failed to locate and present significant mitigating evidence to his penalty phase jury, thereby prejudicing his case and causing him to be sentenced to death. To prevail on this ineffective assistance of counsel claim, Cooper must meet both prongs of the following test:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Valle, 778 So.2d at 965 (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Because we conclude that the preparation of Cooper’s attorneys for the penalty phase and their decisions regarding what evidence to present at trial were entirely strategically reasonable, we decline to grant Cooper relief.

Cooper argues that his attorneys should have presented more evidence regarding the unfortunate circumstances in which he was raised. In support of this claim, Cooper presented the testimony of his elementary school principal, two siblings, and a childhood friend during the trial court proceedings. In sum, these witnesses detailed the repetitive physical abuse to which Cooper was subject during his formative years. Specifically, they described a home in which the family was under constant threat of physical violence from Cooper’s father, a man who often acted upon his threats in a frightful fashion. Additionally, these witnesses opined that Cooper’s negative home life drove him to abuse alcohol and drugs at a fairly young age.

We conclude that the introduction of Cooper’s additional proffered evidence regarding his unfortunate and abused background does not constitute a “clear, substantial deficiency [which] so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined.” Maxwell v. Waimwright, 490 So.2d 927, 982 (Fla.1986). First, a substantial part of the information regarding Cooper’s disadvantaged childhood was presented at Cooper’s trial. During Cooper’s penalty phase, Cooper’s mother testified that Cooper’s father was both violent and emotionally abusive to Cooper during his formative years. Thus, in large part, introduction of the evidence proffered below would have been repetitive. Also, the State persuasively established five significant aggravating factors at trial: (1) heinous, atrocious, or cruel; (2) cold, calculated, and premeditated; (3) murder committed to avoid arrest; (4) murder committed for pecuniary gain; and (5) commission of prior violent felonies. See Cooper, 492 So.2d 1059. Although the introduction of the mitigating evidence identified by Cooper might have provided his penalty phase jury with a more extensive picture of his upbringing, Cooper has not shown that this evidence would have caused the jury to conclude that “the balance of aggravating and mitigating circumstances did not warrant death.” Cherry v. State, 781 So.2d 1040, 1048 (Fla.2000) (quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052). Thus, Cooper’s claim of ineffective assistance of counsel fails.

Cooper also takes issue with his trial counsels’ failure to present evidence during the penalty phase regarding his mental state at the time of his crimes. In support of the claim that his counsels’ performance was constitutionally inadequate, Cooper presented the testimony of Dr. Brad Fisher below, who testified that Cooper suffered from a dependent personality disorder and organic brain damage which could have interfered with his ability to discern right from wrong. Cooper contends that presentation of this evidence at trial could have been very persuasive, and his attorneys’ failure to introduce the information constitutes ineffective assistance.

The record reflects that before Cooper’s trial, his attorneys arranged an examination and evaluation by Dr. Sidney Merin, who administered a battery of psychological tests and concluded that Cooper suffered from an antisocial personality disorder, a borderline personality disorder, a substance abuse disorder, and an isolated explosive disorder — none of which would have affected his ability to differentiate between right and wrong at the time of his crimes. Trial counsels’ decision not to present Dr. Merin as a mitigation witness, because his conclusions regarding Cooper’s culpability were potentially damaging, is precisely the type of strategic decision which Strickland protects from subsequent appellate scrutiny. The issue before us is not “what present counsel or this Court might now view as the best strategy, but rather whether the strategy was within the broad range of discretion afforded to counsel actually responsible for the defense,” Occhicone v. State, 768 So.2d 1037, 1049 (Fla.2000); therefore, the attack upon trial counsels’ performance on this basis fails.

Finally, our examination of the record leads us to conclude that the trial court properly denied a number of Cooper’s claims in a summary fashion. As these claims were all "without merit or insufficiently pled, we affirm the trial court’s decision to deny the claims without a hearing. Because we conclude that the entirety of the trial court’s order is supported by law and factual evidence contained in the record, we affirm the judgment below.

Habeas Petition

In the first of Cooper’s claims meriting discussion, he asserts that his appellate counsel performed in a constitutionally deficient manner because he did not raise the trial court’s refusal to grant Cooper a continuance as an issue on appeal. The record reveals that on the day of Cooper’s sentencing hearing, the State notified him that it had completed plea negotiations with Jeff McCoy, one of Cooper’s codefendants, and therefore, McCoy would be available to him as a penalty phase witness. When Cooper requested a continuance to depose McCoy, the trial court denied the request.

This Court has held that analysis of a claim of ineffectiveness of appellate counsel is bounded by the following considerations:

When analyzing the merits of the claim, the criteria for proving ineffective assistance of appellate counsel parallel the Strickland standard for ineffective trial counsel. Thus, this Court’s ability to grant habeas relief on the basis of appellate counsel’s ineffectiveness is limited to those situations where the petitioner establishes first, that appellate counsel’s performance was deficient because the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and second, that the petitioner was 'prejudiced because appellate counsel’s deficiency compromised the appellate process to such a degree as to undermine confidence in the correctness of the result. If a legal issue would in all probability have been found to be without merit had counsel raised the issue on direct appeal, failure of appellate counsel to raise the meritless issue will not render appellate counsel’s performance ineffective.

Rutherford v. Moore, 774 So.2d 687, 643 (Fla.2000) (footnote, citations, and internal quotation marks omitted). This Court would have found this claim meritless on direct appeal. Consequently, the failure of Cooper’s appellate counsel to raise the issue does not constitute ineffectiveness.

Because Cooper’s attorneys were in possession of McCoy’s confession to police regarding the respective roles of the three codefendants, the lack of time to depose McCoy did not harm Cooper’s case. When Cooper elicited the testimony of McCoy during the hearing, McCoy related during the proceedings precisely what Cooper desired — testimony by a witness that Cooper was acting under the domination of J.D. Walton (the third codefendant) at the time of the crimes, and that Cooper was outside the house when the second shots were fired into the victims. Because Cooper possessed McCoy’s confession prior to trial, and was able to present McCoy’s mitigating testimony, the trial court did not abuse its discretion in denying the motion for a continuance. See Lebron v. State, 799 So.2d 997, 1018 (Fla.2001) (“The denial of a motion for continuance is committed to the sound discretion of the trial judge.”). Cooper’s ineffectiveness claim is without merit because appellate counsel cannot be faulted for failing to raise a claim which would have been deemed meritless on appeal. See, e.g., Engle v. Dugger, 576 So.2d 696 (Fla.1991); Card v. State, 497 So.2d 1169 (Fla.1986).

Cooper’s second basis for asserting that his appellate counsel’s performance was constitutionally inadequate is that his counsel should have contended that the trial court erred in allowing the State to introduce evidence directed to Cooper’s lack of remorse for his crimes. The record reflects that the trial court did, over defense counsel’s objection, allow the State to present the testimony of Skalnik, who related that Cooper “laughed and thought it was funny” and “thought it was no big deal ... that he killed three people.” The trial court erred. See Walton v. State, 547 So.2d 622, 625 (Fla.1989) (“This Court has consistently held that lack-of-remorse evidence cannot be presented by the State as an aggravating circumstance in its case in chief.”).

While the failure of Cooper’s appellate counsel to assert this point on appeal may constitute less than proper performance, it is also clear that Cooper has not established the prejudice requirement with regard to his counsel’s inaction. Certainly, appellate counsel’s deficiency did not compromise “the appellate process to such a degree as to undermine confidence in the correctness of the result.” Rutherford, 774 So.2d at 643. It is apparent from our review of this case that the findings and result of the weighing process would not have been any different without the introduction of this lack of remorse evidence. Further, Cooper cannot demonstrate prejudice, because he introduced evidence during the penalty phase in an attempt to show his remorse for the killings, which would have opened the door to the State to introduce Skalnik’s testimony regarding Cooper’s lack of remorse. This claim of ineffectiveness does not warrant relief.

Cooper next contends that his appellate counsel performed inadequately by failing to assert on appeal that the State improperly commented on the absence of mitigating evidence before the jury in its penalty phase closing argument. The objectionable statements cited by Cooper are:

Don’t assume because you haven’t heard good or bad things that it is a mitigating circumstance to consider because it is not an issue. They have not raised that as something they feel is mitigating.
When their big chance came to establish mitigating circumstances what did you hear? One witness.

Because Cooper did not object to these statements at trial, appellate counsel will not be deemed ineffective unless the comments constitute fundamental error. As this Court has stated in the past, fundamental error “is defined as the type of error which reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Downs v. Moore, 801 So.2d 906, 910-11 (Fla.2001) (internal quotation marks omitted). Because these comments merely reflect the prosecutor’s view of the balance of the aggravating and mitigating circumstances, and were exceedingly brief, no fundamental error occurred. Therefore, this ineffectiveness claim is without merit.

In his next ineffective assistance of appellate counsel claim, Cooper contends that his counsel failed to provide adequate representation by not asserting that the trial court’s sentencing order failed to comply with section 921.141(3) of the Florida Statutes in three ways. First, Cooper argues that the trial court’s failure to issue a written sentencing order contemporaneously with its oral pronouncement of sentence constitutes reversible error. While the record reflects that the trial court did wait an extended period of time after it issued its oral sentence on the record to promulgate a written order memorializing its decision, the written findings were issued prior to certification of the record to this Court for direct appeal. Therefore, any error was harmless. See Grossman v. State, 525 So.2d 833, 841 (Fla.1988).

Cooper’s second and third claims regarding appellate review of the propriety of the trial court’s sentencing order may be addressed in a summary fashion. The record reveals absolutely no substantive basis for Cooper’s claim that the trial court improperly delegated the drafting of his sentencing order to the State. Thus, Cooper has not presented this Court with a justiciable habeas corpus claim. See Cave v. State, 529 So.2d 293, 297 (Fla.1988). Finally, Cooper’s claim that the trial court failed to independently weigh the mitigating and aggravating circumstances of each victim’s murder individually is contradicted by the face of the court’s sentencing order itself. These claims do not warrant relief.

Likewise, Cooper’s claim that his appellate counsel rendered constitutionally deficient assistance by not asserting before this Court that the instructions given to the penalty phase jury regarding the HAC and CCP aggravators were unconstitutionally vague fails. “Because [Cooper] did not object to these instructions or request legally sufficient alternative instructions, these claims are procedurally barred. Further, ... counsel cannot be deemed ineffective under the test set out in Strickland for failing to object to these instructions when this Court had previously upheld the validity of these instructions.” Harvey v. Dugger, 656 So.2d 1253, 1258 (Fla.1995). The jury instructions in this case did not amount to fundamental error, and therefore appellate counsel’s failure to raise the issue was entirely proper.

Next, Cooper asserts that his appellate counsel’s performance was defective, because he failed to argue on appeal that the trial court’s instructions misinformed the jury regarding the number of juror votes sufficient to recommend life imprisonment. Specifically, Cooper argues that the jury was led to believe that a vote of six to six would result in a recommendation of death, when in fact, this vote recommends life imprisonment. The trial court did, in two instances during his instructions, state that when a “majority of you” or “seven or more” of the jury members agreed, the panel could render its advisory verdict. However, these instructions were not objected to, and the trial court specifically instructed the jury as follows:

[I]f by six or more votes, the jury recommends that Richard Cooper should not be sentenced to death, your advisory sentence should be, quote, the jury advises and recommends to the Court that it impose a sentence of life imprisonment upon Richard Cooper without the possibility of parole for 25 years.

We conclude that no fundamental error occurred, and therefore Cooper’s present ineffectiveness claim is meritless.

Likewise, Cooper’s final two contentions are without merit. The admission of the audiotape recording of young Christopher Fridella calling 911 the night of Cooper’s crimes did not constitute improper victim impact evidence, because it was independently relevant to a host of facts regarding the time and circumstances of the murders. Thus, appellate counsel did not render ineffective assistance by failing to raise this meritless claim. See Engle, 576 So.2d at 696; Card, 497 So.2d at 1169. Also, the length of Cooper’s stay on death row does not constitute cruel and unusual punishment. See Rose v. State, 787 So.2d 786, 805 (Fla.2001).

Conclusion

Based upon the preceding examination and analysis of Cooper’s rule 3.850 appeal and petition for habeas corpus claims, we find no basis upon which to base justifiable relief. The judgment of the circuit court is affirmed, and Cooper’s habeas petition is denied.

It is so ordered.

WELLS, PARIENTE, LEWIS, and CANTERO, JJ., and SHAW, Senior Justice, concur.

PARIENTE, J., concurs specially with an opinion.

ANSTEAD, C.J., concurs in part and dissents in part with an opinion.

QUINCE, J., recused.

PARIENTE, J.,

specially concurring.

I concur in the majority opinion and write separately only to specify the reason for my conclusion that Cooper is not entitled to relief under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). In my view, Ring’s Sixth Amendment foundation does not mandate jury sentencing. As I have previously stated, in my view the aggravating factor of the previous conviction of a violent or capital felony, based in this case on contemporaneous murders on which the defendant was also found guilty beyond a reasonable doubt by a unanimous jury, satisfies the requirements of Ring and Apprendi v. New Jersey, 580 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See Lawrence v. State, 846 So.2d 440, 456 (Fla.2003) (Par-iente, J., concurring in result only); Doorbal v. State, 837 So.2d 940, 964 (Fla.2003) (Pariente, J., concurring as to the conviction and concurring in result only as to the sentence).

ANSTEAD, C.J.,

concurring in part and dissenting in part.

I concur in the majority opinion in all respects except for its discussion of the Ring issue.

      . The trial court concluded that the murders were (1) heinous, atrocious, or cruel (HAC); (2) cold, calculated, and premeditated (CCP); (3) committed to avoid arrest; and (4) committed for pecuniary gain. Additionally, (5) Cooper had previously been convicted of violent felonies. While the trial court concluded that (6) the murders were committed during the course of a kidnapping, this Court struck this aggravator on appeal. See Cooper, 492 So.2d at 1061.

      . Cooper contends that (1) the State’s misconduct before and during trial with regard to Paul Skalnik, a "jailhouse informant,’’ unconstitutionally prejudiced his case; (2) the State did not properly comply with his public records requests under section 119.07 of the Florida Statutes; (3) his attorneys rendered constitutionally deficient representation at trial due to an actual conflict of interest or incompetence; (4) his attorneys provided him ineffective assistance of counsel by failing to present substantive evidence in mitigation; and (5) the circuit court erred in summarily denying various claims raised in his original rule 3.850 motion.

      . Cooper avers that his appellate counsel's performance was constitutionally deficient because he failed to submit to this Court that (1) the trial court erroneously denied Cooper’s motion for a continuance during the sentencing proceeding; (2) the trial proceedings were tainted by the State’s introduction of testimony regarding Cooper’s lack of remorse for the killings; (3) the State tainted the proceedings when it made comments during its penalty phase closing argument regarding Cooper's failure to submit evidence in mitigation; (4) the trial court’s failure to promulgate a timely written order constituted reversible error; (5) the penalty phase jury instructions were unconstitutionally vague; (6) prosecutorial statements improperly limited the scope of the jury's deliberations, and prejudicially inflamed the passions of the jury; (7) the trial court improperly allowed the submission of victim impact testimony to the jury; (8) Florida’s death penalty scheme is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its progeny; (9) comments by the State and trial court to the jury unconstitutionally degraded the juty’s perception of its role; (10) the jury was improperly instructed regarding the number of votes necessary to recommend life imprisonment; (11) the penalty phase jury instructions unconstitutionally shifted the burden of proof to Cooper to show that life was appropriate; and (12) the duration of Cooper’s wait for the imposition of his death sentence constitutes cruel and unusual punishment in violation of the United States Constitution and various international agreements.

      . As our review of the record on appeal causes us to conclude that Koch's pretrial investigation and cross-examination of Skal-nik at trial were both adequate and effective, Cooper's allegations of ineffective assistance of counsel impugning his attorney's method of addressing Skalnik’s testimony must fail. See Valle v. State, 778 So.2d 960, 965 (Fla.2001) (noting that to prevail on an ineffectiveness claim, a defendant must show "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment”).

      . In connection with this ineffectiveness claim, it should be noted that this Court continues to hold that the presentation of testimony during postconviction proceedings of more favorable mental health experts does not automatically establish that the original evaluations were insufficient. See Carroll v. State, 815 So.2d 601, 618 (Fla.2002); see also Gaskin v. State, 822 So.2d 1243, 1250 (Fla.2002) (holding that "counsel’s mental health investigation is not rendered incompetent merely because the defendant has now secured the testimony of a more favorable mental health expert”).

      . Cooper contends that Florida’s capital sentencing scheme violates the United States and Florida Constitutions under the United States Supreme Court’s holding in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). This Court addressed a similar contention in Bottoson v. Moore, 833 So.2d 693 (Fla.), cert. denied, 537 U.S. 1070, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002), and King v. Moore, 831 So.2d 143 (Fla.), cert. denied, 537 U.S. 1067, 123 S.Ct. 657, 154 L.Ed.2d 556 (2002) and denied relief. We conclude that Cooper is likewise not entitled to relief on this claim.

      . Cooper has chosen to contest the trial court’s summary denial of various claims, by contending, without specific reference or supportive argument, that the “lower court erred in its summary denial of these claims.” We find speculative, unsupported argument of this type to be improper, and deny relief based thereon. See Duest v. Dugger, 555 So.2d 849, 852 (Fla.1990) ("The purpose of an appellate brief is to present arguments in support of the points on appeal. Merely making reference to arguments below without further elucidation does not suffice to preserve issues.... ”).

      .As noted in our discussion of Cooper’s 3.850 appeal, the claim that Florida’s death penalty scheme is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its progeny provides no relief here. See Bottoson v. Moore, 833 So.2d at 695; King v. Moore, 831 So.2d at 144-45. Likewise, Cooper’s claim that the trial court's jury instructions unconstitutionally denigrated the advisory role of the jury during the penalty phase is meritless. This Court has also rejected Cooper’s burden-shifting claim numerous times. See, e.g., Freeman v. State, 761 So.2d 1055, 1072 (Fla.2000). Thus we deny relief based thereon.

      . For the same reason, the isolated statements Cooper has identified regarding the jury placing themselves in the victims’ shoes, and the proper level of sympathy and mercy for Cooper in sentencing, do not rise to the level of fundamental error. Thus, appellate counsel was not ineffective for failing to argue that these unobjected-to comments vitiated the entire trial.

      . Cooper’s claim that the trial court improperly utilized the same set of facts to serve as a basis for instructing the jury regarding the HAC and prior commission of a violent felony aggravators is also without merit. While the multiple murders justified instruction on the prior violent felony aggravating circumstance, it was the manner of the commission of the murders which was the basis for the HAC instruction.