author: WISE, Judge.

text:
    Jeremiah JACKSON v. STATE of Alabama.
    CR-04-2566.
    Court of Criminal Appeals of Alabama.
    Sept. 28, 2006.

      John Fleming Brasfield, Tuscaloosa; Bruce D. Manning, Minneapolis, Minnesota; and Kelly K. Pierce and Brooke B. Tassoni, Minneapolis, Minnesota, for appellant.
    Troy King, atty. gen., and Jeremy W. Mclntire, asst. atty. gen. for appellee.
   WISE, Judge.

Jeremiah Jackson appeals from the circuit court’s denial of his petition for post-conviction relief, filed pursuant to Rule 32, Ala.R.Crim.P. On February 5, 1997, Jackson was convicted of capital murder for the killing of Vicki Carroll. The murder was made capital because it was committed during the course of a first-degree robbery. See § 13A-5-40(a)(2), Ala.Code 1975. The jury recommended, by a vote of 10-2, that Jackson be sentenced to death. The trial court accepted the jury’s recommendation and sentenced Jackson to death. This Court affirmed Jackson’s conviction on direct appeal. See Jackson v. State, 791 So.2d 979 (Ala.Crim.App.2000).

Jackson petitioned the Alabama Supreme Court for certiorari review. The Supreme Court denied Jackson’s petition for the writ of certiorari, see Ex parte Jackson, 791 So.2d 1043 (Ala.2000), and this Court issued a certificate of judgment on November 3, 2000. Thereafter, Jackson petitioned the United States Supreme Court for certiorari review. On March 19, 2001, the United States Supreme Court denied Jackson’s petition for the writ of certiorari. See Jackson v. Alabama, 532 U.S. 934, 121 S.Ct. 1387, 149 L.Ed.2d 311 (2001).

On March 4, 2002, Jackson filed a Rule 32 petition, challenging his capital-murder conviction and death sentence. Jackson filed an amendment to his Rule 32 petition on July 2, 2002, and on July 19, 2002, filed a second amendment to his petition. One of the grounds for relief alleged in Jackson’s initial Rule 32 petition was his assertion that he was mentally retarded and that execution of the mentally retarded was unconstitutional. Jackson’s first and second amendments to his Rule 32 petition reiterated this claim, citing the then newly released decision by the United States Supreme Court in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), prohibiting the execution of a mentally retarded defendant.

On January 9, 2004, the parties advised the circuit court that they had reached a stipulation regarding Jackson’s claims. The parties advised the court that they were stipulating that Jackson met the definition of mentally retarded set out in Atkins v. Virginia, and, therefore, that Jackson’s death sentence was due to be vacated and a sentence of life imprisonment without the possibility of parole imposed. The parties further agreed that in exchange for the State’s stipulation that Jackson was mentally retarded, Jackson would forgo any additional appeals of his conviction and sentence.

On March 9, 2005, the circuit court rejected the parties’ stipulation and found that the parties had failed to demonstrate that Jackson was mentally retarded under Atkins v. Virginia. The court entered a final order denying Jackson’s mental-retardation claim so that the parties could pursue appellate review of the rejected stipulation agreement.

This is an appeal from the denial of a collateral petition attacking Jackson’s death sentence. In reviewing Jackson’s conviction on direct appeal, this Court applied a plain-error standard of review. See Rule 45A, Ala.R.App.P. However, we do not apply the plain-error standard when reviewing the denial of a Rule 32 petition in a death case. Hill v. State, 695 So.2d 1223, (Ala.Crim.App.1997). Instead, we apply an abuse-of-discretion standard. Elliott v. State, 601 So.2d 1118, 1119 (Ala.Crim.App.1992).

Jackson filed this petition in the circuit court. According to Rule 32.3, Ala.R.Crim.P., he has the “burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.” Moreover, the procedural default grounds contained in Rule 32, Ala.R.Crim.P., apply to all cases — even those in which the death penalty has been imposed. See, e.g., Hooks v. State, 822 So.2d 476, 479-81 (Ala.Crim.App.2000).

The State’s evidence at Jackson’s trial tended to show that on the afternoon of April 15, 1996, Jackson and Alfred Reed robbed the Hillview Grocery Store. Vicki Carroll, who owned the store with her husband Jerry, was talking on the telephone with her husband when Jackson and Reed entered the store. Jackson was armed with a 12-gauge shotgun. During their conversation, Mr. Carroll heard his wife scream, “Take it. Take it all. Take all of it,” and concluded that something was amiss. He asked his wife if she was being robbed, to which she replied, “yes.” Mr. Carroll then hung up and telephoned 911 to report the robbery.

When law-enforcement officials arrived, they found Mrs. Carroll’s body inside the grocery store; she had been shot in the head. A postmortem examination confirmed Mrs. Carroll’s cause of death as a close-range shotgun blast to the forehead.

Testimony established that earlier that day John Martin and Alfred Reed went to Chris Dobyne’s home in Brent. Martin attempted to persuade him to take part in a robbery; Dobyne refused, and the pair left. While driving away from Dobyne’s house, Martin and Reed came across Jackson, who was walking along the road. They stopped the car and Jackson got inside. The three men drove around and smoked some marijuana. Martin suggested that they rob a store. Reed produced a 12-gauge shotgun, which he handed to Jackson. The trio drove by the Hillview Grocery Store five or six times “to case it” stopping to buy beer at one point — before robbing it. The final time they drove by the store there were no other cars in sight; Martin stopped, let Jackson and Reed out of the car, and arranged to pick them up at a cemetery “down the road” after the robbery. When Martin did not meet Jackson and Reed at the cemetery as planned, they got a ride to Dobyne’s house.

According to Angela Smith, who lived with Dobyne, Martin arrived at her house around 4:00 p.m. Martin appeared upset and nervous, stating that a woman had been murdered. Approximately 15 minutes later, Reed and Jackson arrived. The four men — Martin, Reed, Jackson, and Do-byne — began talking. Smith heard Jackson say that he had killed a woman, that he had “blowed her brains out.” She heard someone else state that he had thrown the gun used to kill the woman into the river. The four men left the house in Reed’s vehicle, split the approximately $200 taken from the grocery store, bought a case of beer, and drove back to Brent. The following day, Jackson again came over to Dobyne’s house. He had a newspaper, containing an article about the robbery and murder that had taken place at the Hillview Grocery Store. According to Smith, Jackson stated that he had made the news.

I.

The dispositive issue in this case is whether the circuit court erred in rejecting Jackson’s request that his death sentence be set aside, because, he said, he is mentally retarded.

After we affirmed Jackson’s conviction and sentence and after both the Alabama Supreme Court and the United States Supreme Court denied certiorari review in Jackson’s case, the United States Supreme Court released its decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). In Atkins, the Supreme Court held:

“We are not persuaded that the execution of mentally retarded criminals will measurable advance the deterrent or the retributive purpose of the death penalty. Construing and applying the Eighth Amendment in the light of our ‘evolving standards of decency,’ we therefore conclude that such punishment is excessive and that the Constitution ‘places a substantive restriction on the State’s power to take the life’ of a mentally retarded offender. Ford [v. Wainwright], 477 U.S. [399,] 405 [(1986)].”

536 U.S. at 321, 122 S.Ct. 2242.

In Atkins, the United States Supreme Court discussed two definitions of mental retardation, the one established by the American Association on Mental Retardation and the one used by the American Psychiatric Association. Atkins, 536 U.S. at 309 n. 3, 122 S.Ct. 2242. However, that Court declined to establish a “bright-line” test to be applied by the States. Instead, the Court noted: “ ‘we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.’ [Ford v. Wainwright, 477 U.S. 399,] 405 [ (1986) ].” 536 U.S. at 317, 122 S.Ct. 2242.

To date, the Alabama Legislature has not established a bright-line test for deciding whether a capital defendant is mentally retarded — as contemplated by Atkins— and therefore, ineligible for the death penalty. As we noted in Smith v. State, [Ms. CR-97-1258, September 29, 2006] — So.2d -, - (Ala.Crim.App.2000) (opinion on return to remand after remand by the Alabama Supreme Court), Alabama has only the “Retarded Defendant Act,” as codified at § 15-24-1 et seq., Ala.Code 1975, which defines a mentally retarded person as “[a] person with significant sub-average general intellectual functioning resulting in or associated with concurrent impairments in adaptive behavior and manifested during the developmental period, as measured by appropriate standardized testing instruments.” § 15-24-2(3), Ala.Code 1975. However, the Alabama Supreme Court, in applying Atkins, has held:

“[A] defendant, to be considered mentally retarded, must have significantly sub-average intellectual functioning (an IQ of 70 or below), and significant or substantial deficits in adaptive behavior. Additionally, these problems must have manifested themselves during the developmental period (i.e., before the defendant reached age 18).”

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

On March 9, 2005, the circuit court entered a written order, rejecting the parties’ stipulation that Jackson was mentally retarded. (C. 1686-89.) The court’s findings regarding Jackson’s claim of mental retardation are set out in that March 9, 2005, order:

“This Court has reviewed all of the reports and supporting documentation provided by the parties. It appears to the Court that Jackson has an IQ in the 70 range. Some tests show a level slightly below 70 and some show a level slightly above 70. This Court, in its sentencing order, found as a fact that, based on the evidence presented at trial, Jackson’s TQ level is between 69 and 72.’ The subsequent testing by experts for both the State of Alabama and Jackson show consistent results. His adaptive behavior skills testing show varying results. Some show him significantly higher with a suggestion of no adaptive skills deficits. Others show him significantly lower which indicate significant deficits consistent with mental retardation.
“Based on the foregoing and the evidence presented at trial, the Court finds that [Jackson’s] adaptive behavior is higher than his IQ tests show. The Court is reluctant to accept the stipulation after having heard the evidence at trial and the subsequent sentencing hearing.”

(Footnotes omitted.) (Vol. IX, C. 1688.)

As previously noted, this Court applies an abuse-of-discretion standard in reviewing appeals from the denial of a Rule 32 petition. Elliott v. State, 601 So.2d at 1119. Moreover, “[i]f the circuit court is correct for any reason, even though it may not be the stated reason, we will not reverse its denial of the petition.” Reed v. State, 748 So.2d 231, 233 (Ala.Crim.App.1999) (citing Roberts v. State, 516 So.2d 936 (Ala.Crim.App.1987)). We will reverse a circuit court’s findings only if they are “clearly erroneous.” Barbour v. State, 903 So.2d 858, 861 (Ala.Crim.App.2004).

“ ‘ “[A] finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948).... If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 179, 94 L.Ed. 150 (1949); see also Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982).’ [Anderson v. City of Bessemer City, N.C.], 470 U.S. [564] at 573-74, 105 S.Ct. [1504] at 1511 [ (1985) ].”

Morrison v. State, 551 So.2d 435, 436-37 (Ala.Crim.App.1989); see also Barbour v. State, 903 So.2d at 862.

Jackson’s appeal comes before this Court in a relatively unusual procedural posture. Both sides agree that Jackson is mentally retarded and that, therefore, based on the holding in Atkins v. Virginia, a sentence of death cannot be imposed in his case. As the State noted in its brief to this Court:

“Although the State may disagree with the decision in Atkins, it is bound by its holding. During these Rule 32 proceedings, the State retained two mental health experts, Dr. Harry McClaren and Dr. Gregory Prichard. Both Dr. McClaren and Dr. Prichard concluded that Jackson is, in fact, mentally retarded. (Vol. VII at 1317-1321, 1326-1336) Therefore, the State concedes that Jackson is mentally retarded, and under Atkins v. Virginia cannot be executed for the capital murder of [Vicki] Carroll. As such, this Court should remand this case back to the Rule, 32 trial court and order the court to vacate Jackson’s sentence of death and impose a sentence of life in prison without the possibility of parole.”

(State’s brief at 8-9.)

This Court must now determine whether the circuit court abused its discretion when it rejected the parties’ stipulation that Jackson was mentally retarded. The record before us in this case consists of 17 volumes, including the complete appellate record of Jackson’s 1997 capital-murder trial, as well as all of the pleadings and other evidence submitted in support of his Rule 32 petition. We have reviewed the entire appellate record, paying particular attention to the evidence and reports submitted by the State and Jackson regarding his claim of mental retardation. (C. 1312— 1675.) Based on the evidence before us, it is readily apparent that Jackson falls within the definition of mentally retarded as set out in Ex parte Perkins: (1) he has significantly subaverage intellectual functioning (indicated by an IQ of 70 or below); (2) he has significant or substantial deficits in adaptive behavior; and (3) his problems manifested themselves before he reached the age of 18.

Although the circuit court’s order suggests that evidence of. Jackson’s mental retardation is conflicting, that finding is not supported by the record. The evidence submitted by the State from its experts, Dr. Harry McClaren and Dr. Gregory Prichard, indicate that Jackson meets all three standards set out in Ex parte Perkins. Jackson’s 2003 evaluation indicated a full-scale IQ of 65. (Vol. VII, C. 1319.) This finding was consistent with evaluations conducted in 1988, when Jackson was in the 4th grade, and 1991, when Jackson was in the 7th grade. On both occasions, Jackson’s full-scale IQ was-69. (Vol. VII, C. 1319.) The test results all support a diagnosis of mild mental retardation. The only evidence supporting a full-scale IQ above 70 was the evaluation performed by Dr. John Goff in 1997. (Vol. VIII, C. 1451.) We note, however, that despite Jackson’s test score, Dr. Goff nevertheless categorized Jackson as mildly mentally retarded, in light of his adaptive-behavior deficits. (Vol. VIII, C. 1448-53.) Moreover, the findings in Dr. Goffs report appear to suggest that although Jackson was diagnosed as mildly mentally retarded, the evaluation focused on Jackson’s competency to stand trial, noting “[w]e would tend to concur ... that the patient did have the capacity to distinguish right from wrong at the time of the alleged offense.” (Vol. VIII, C. 1452.) Evidence submitted by Jackson’s expert witnesses— Dr. Daniel Marson and Joanne Terrell, M.S.W. — were consistent with the findings of Drs. McClaren and Prichard, concluding that Jackson’s full-scale IQ scores supported a diagnosis of mildly mentally retarded. (Vol. IX, C. 1668-78; 1679-85.)

The State’s experts also conducted adaptive-behavior testing. Jackson’s own adaptive-behavior test results indicated “borderline” abilities in adaptive skills. (Vol. VII, C. 1320.) However, interviews of individuals who came in contact with Jackson indicated significant adaptive-behavior deficits consistent with mental retardation. Three of Jackson’s teachers were located and interviewed. Billy Wallace, a 10th grade math and English teacher recalled Jackson very well. Wallace stated that Jackson was “definitely” mentally retarded, rating his learning ability at a third- or fourth-grade level. (Vol. VIII, C. 1445.) Steve Bowman, an 11th grade math and history teacher, also clearly recalled Jackson. Bowman rated Jackson very low with regard to adaptive behavior functioning and stated that “without a doubt” Jackson was mentally retarded. (Vol. VIII, C. 1446.) The only teacher who did not classify Jackson as mentally retarded or having adaptive behavior deficits was Roger Brothers, a vocational teacher. Brothers, who taught Jackson for one semester in a forestry class, did not recall anything unusual about Jackson. However, he noted that the class was outdoor oriented and the students spent a lot of time walking around in the woods looking at trees and shrubbery. (Vol. VIII, C. 1442.)

Eugene Rowland, who supervised Jackson while he was employed at Seaman Timber Company, was also interviewed. Rowland stated that he did not have a lot of direct contact with Jackson, but described Jackson’s job responsibilities as “very simple” and/or “menial.” Rowland indicated that Jackson “often did not show up for work,” had problems getting along with his coworkers, and was employed at Seaman Timber for only three months. (Vol. VIH, C. 1444-45.) Jackson’s brother Saul was interviewed, providing a historical basis for Jackson’s adaptive behavior deficits. (Vol. VII, C. 1320.) Saul, Jackson’s older brother, spent a lot of time playing and working with his brother. (Vol. VII, C. 1320.) Jackson appears to have needed fairly close supervision so that he would not “wander off’ and “get in trouble.” (Vol. VIII, C. 1450.) David Craft, a corrections officer at Holman Prison, was also interviewed regarding Jackson’s adaptive behavior. Craft, who became acquainted with Jackson when Jackson was placed on death row, recognized a number of deficits in Jackson’s adaptive behavior, despite the “limited demands in adaptive behavior placed on individuals within Death Row.” (Vol. VII, C. 1320.) Dr. Goffs 1997 report also concluded that Jackson had significant adaptive-behavior deficits. Dr. Goffs report noted that family members reported that Jackson required “fairly constant supervision,” or Jackson would “get in trouble.” (Vol. VIII, C. 1450.) Dr. Goffs report also indicated Jackson’s inability to maintain employment, noting that Jackson’s “vocational history is very sparse,” having worked for “a couple of lumber mills in the Bibb County area,” but that he had “never been employed for more than three months at a time.” (Vol. VIII, C. 1449.) The reports of Dr. Marson and Ms. Terrell likewise support, in some detail, Jackson’s history of significant adaptive-behavior deficits. (Vol. IX, C. 1668-78; 1679-85.) Finally, all of the evidence indicated that Jackson’s problems manifested themselves well before the age of 18.

Although the court’s findings suggest that there is conflicting evidence with regard to Jackson’s mental retardation, the circuit court’s account of the evidence is not plausible. The evidence overwhelmingly supports a finding that Jackson is mentally retarded and that he is therefore not eligible for the death penalty. In reaching this conclusion, we find the evidence submitted by the State, together with the report of Dr. McClaren and Dr. Prichard to be particularly compelling. It is not unusual for defense evidence to support setting aside a death sentence. However, when the State’s evidence likewise supports such a finding, this Court is inclined to give deference to that evidence. Indeed, the only evidence that does not unquestionably support a finding of mental retardation are (1) Jackson’s 1997 IQ test results indicating a full-scale IQ of 72 and (2) the interview of a vocational teacher whose recall of Jackson was limited. Further evidence of Jackson’s mental retardation is found in the circuit court’s own 1997 sentencing order, noting that Jackson’s “IQ level is between 69 and 72, [and] that he would be classified as suffering from mild mental retardation.” (Vol. XV, C. 1086.) Although this finding would not have prevented the circuit court from sentencing Jackson to death in 1997, such a finding weighs heavily against the court’s subsequent conclusion that Jackson was not mentally retarded and rejecting the stipulation entered into by the parties. See, e.g., Smith v. State, — So.2d at — (setting aside a death sentence imposed by the trial court when its sentencing order found that the appellant was “borderline mentally retarded” and/or “mildly mentally retarded”). Based on these circumstances, we are left with the “definite and firm conviction that a mistake has been committed,” Morrison, 551 So.2d at 436-87, and that the circuit court’s findings were clearly erroneous with regard to the question of Jackson’s mental retardation.

Because Jackson is mentally retarded, he is ineligible for the death penalty. Atkins v. Virginia, 536 U.S. at 321, 122 S.Ct. 2242. Accordingly, this case must be remanded for the circuit court to set aside Jackson’s sentence of death and resen-tence him to life imprisonment without the possibility of parole.

II.

Jackson raised a number of other claims for relief in his Rule 32 petition and the two amendments to that petition. Jackson states, however, that “[i]n the event that this Court finds Mr. Jackson mentally retarded and orders the lower court to vacate Mr. Jackson’s death sentence and impose a sentence of life without possibility of parole, by agreement between the State and Mr. Jackson, the remainder of Mr. Jackson’s Rule 32 petition will be abandoned and the rest of this appeal is entirely moot.” (Jackson’s brief at 58-59.) Because of our disposition of Jackson’s mental-retardation claim, we need not address the remaining arguments raised in Jackson’s brief to this Court.

Conclusion

For the reasons set forth in Part I of this opinion, Jackson is not eligible for the sentence of death. Accordingly, we remand this case to the circuit court with instructions that it set aside Jackson’s sentence of death and resentence him to imprisonment for life without the possibility of parole. On remand the court shall take all necessary action to see that the circuit court makes due return to this Court at the earliest possible time and within 42 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

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

      . Atkins v. Virginia was released on June 24, 2002.


source: Caselaw Access Project

author: McMILLAN, Presiding Judge.

license: Public Domain

text:
    Robert Dale GILMORE v. STATE.
    CR-05-0358.
    Court of Criminal Appeals of Alabama.
    Sept. 29, 2006.
    Kelly Booker, Alexander City, for appellant.
    Troy King, atty. gen., and Kevin W. Blackburn, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

The appellant, Robert Dale Gilmore, appeals from his conviction of robbery in the third degree, a violation of § 13A-8-43(a)(2), and sentence of 25 years, upon application of the Habitual Felony Offender Act; the State proved six prior convictions.

Gilmore was arrested for theft of property in the second degree; he was subsequently indicted and convicted of robbery in the third degree based on the following set of circumstances. Gilmore and a female companion were observed by the loss-prevention security agent at the Alexander City Super Wal-Mart discount store taking ail* tools from the shelves, opening them, and placing them inside his pants and jacket pockets. Gilmore then walked to another area of the store, where he removed a set of six-by-nine inch Pioneer brand speakers from the shelf. He took the speakers to the hardware department, where he opened the packaging and concealed the speakers in his pants. Gilmore was then followed to the garden center of the store by the loss-prevention agent who instructed the assistant manager to pursue Gilmore, as he separated from the female; she was stopped in the parking lot by the loss-prevention agent and another employee. Gilmore then left the garden center, but upon seeing his female companion and the Wal-Mart employees in the parking lot, he turned and reentered the store. The assistant manager followed him back into the store. He observed Gilmore “dumping stuff into a buggy out from under his coat.” The assistant manager and another employee approached Gilmore and told him that they needed to speak with him in the back of the store. The assistant manager then walked on one side of Gilmore while the other employee walked on the other side, and a female employee followed with the shopping cart containing the merchandise. En route, the assistant manager testified that he instructed Gilmore several times to keep his hands out of his pockets. Gilmore asked why and the assistant manager responded that he did not know if Gilmore might be carrying a knife or a gun. Gilmore responded, “If you want to see a knife,” and reached for his pockets. The two employees grabbed his hands and walked him to the back office. One of these employees testified as follows:

“A. He said, ‘If you want to see a knife,’ and he started toward his pockets. He started to stick his hands in his pockets and that’s when I grabbed one arm and Jeremy grabbed one arm.
“Q. So, he actually told you, ‘If you want to see a knife,’ and he went for his pockets.
“A. Yes.
“Q. So at this point, you said you had one arm and Jeremy had the other arm.
“A. Yes.
“Q. Are these arms all twisted up behind Mr. Gilmore’s back?
“A. No. I had his left arm with my left hand and his jacket with this hand, and we walked to the back like that
“Q. Okay. And tell us what happened next.
“A. I mean, there wasn’t really — we walked to the back like that. He didn’t really struggle and we didn’t really force him to the back. After we grabbed him, walked from there to the Ad office in the back. One of the offices. When we got toward the door back there to go into the office, there is a fire exit door and the door to the office right here, and when we got there in that little corner he said, ‘Man, /all can let me go. I’m not going nowhere.’ I let him go at that point. We were at the office. Jeremy was trying to get in the door, opened the door to get in. He broke toward the fire exit door. Jeremy grabbed him. He started jumping around out there in the hallway up against the wall. I finally got him. At that point, that’s when we grabbed his arm and put it up behind his back and put him on the floor at that point.”

Thereafter, another struggle ensued as Gilmore tried to escape; however, he was again pinned to the floor by two employees. The assistant manager testified that the female employee with the shopping cart came in the office following the struggle and placed the items on the desk so that reports could be written. On cross-examination, the assistant manager affirmed that no merchandise was removed from Gilmore or his clothing.

Following this testimony, the State rested and the defense moved for a judgment of acquittal because the struggle occurred after Gilmore had discarded the merchandise and after the theft was complete. Thus, the defense argued that force was not used to acquire or to escape with the property and that thus no robbery occurred. The State responded that because Gilmore implied that he had a knife as he was walked back to the office and because he struggled to escape, force was used and Gilmore committed a robbery. The trial court denied the motion but charged the jury on robbery in the third degree and theft in the third degree.

In Franklin v. State, 854 So.2d 153 (Ala.Crim.App.2002), this court addressed a factual situation almost identical to the factual situation in the present case. A security officer in a J.C. Penney department store observed Jamie Franklin take items of clothing and put them in her bag. He began following Franklin and her companion, who soon began walking in different directions. Franklin headed for the exit and, after passing the checkout, she dropped her bag and left the store. The officer picked up the bag and followed her outside; he asked her to return to the store. Once inside, she attempted to escape and struggled. They fell to the floor and she bit his arm. “It took several people considerable time to subdue her and pry his arm from her mouth.” 854 So.2d at 154. She also told him that she had given him AIDS.- Franklin was convicted of robbery in the third degree; however, her jury was also instructed on theft of property in the third degree, as a lesser-included offense. She argued, like Gilmore, that because the altercation occurred well after the abandoned property had been recovered, the State had failed to prove robbery.

“Section 13A-8-43(a)(2), under which the appellant was indicted, defines one alternative of third-degree robbery as follows: £A person commits the crime of robbery in the third degree if in the course of committing a theft [she tjhreatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking-of or escaping with the property.’ Section 13A-8-2(l) defines ‘theft of property,’ in pertinent part, as follows: ‘A person commits the crime of theft of property if he [k]now-ingly obtains or exerts unauthorized control over the property of another, with intent to deprive the owner of his property.’ The phrase ‘in the course of committing a theft’ is defined by § 13A-8-40(b) as ‘embracing] acts which occur in an attempt to commit or [in] the commission of theft, or in immediate flight after the attempt or commission.’
“The rule in Alabama is that'the use of force or the threat of imminent use of force to merely effect an escape, after the property taken has been abandoned, does not supply the element of use of force or the threat of the imminent use of force necessary to make the taking of a robbery. See Ex parte Sapp, 497 So.2d 550 (Ala.1986); Banks v. State [575 So.2d 1244 (Ala.Crim.App.1991) ]; Casher v. State [469 So.2d 679 (Ala.Crim.App.1985) ]; Harris v. State [451 So.2d 406 (Ala.Crim.App.1984) ].
“Because the State failed to prove an essential element of the charge of third-degree robbery under § 13A-8-43(a)(2), i.e., the threat of imminent use of force that must have been used in the course of committing the theft, the appellant’s robbery conviction cannot stand. Although the State failed to prove an essential element of robbery, it clearly proved each and every element of theft of property (which embraces attempted theft) a lesser-included offense of robbery, the crime charged. See Ramsey v. State, 441 So.2d 1065 (Ala.Crim.App.1983); § 13A-1-9(a)(2).
“ ‘It is well established that if an appellate court holds the evidence insufficient to support a jury’s guilty verdict on a greater offense, but finds the evidence sufficient to support a conviction on a lesser included offense, it may enter a judgment on that lesser included offense, provided that the jury was charged on the lesser included offense.’ “Ex parte Roberts, 662 So.2d 229, 232 (Ala.1995). Accord Ex Parte Edwards, 452 So.2d 508 (Ala.1984). See, e.g., J.F.C. v. City of Daphne, 844 So.2d 608 (Ala.Crim.App.2002).
“The instant case presents a clear factual situation to which the doctrine expressed and approved in Edwards v. State, 452 So.2d 506 (Ala.Crim.App.1983), aff'd, 452 So.2d 508 (Ala.1984), and restated in Ex parte Roberts, supra, may be applied. See also Borden v. State, 523 So.2d 508 (Ala.Crim.App.1987); Pack v. State, 461 So.2d 910 (Ala.Crim.App.1984). (The attorney general states in his brief to this court that, if we should find the State’s evidence insufficient to support a third-degree robbery conviction, we should follow the Edwards procedure). The trial court correctly instructed the jury, at the appellant’s request, on the lesser-included offense of third-degree theft of property. son guilty of an attempt to commit a crime if, with the intent to commit a specific offense, he does any overt act towards the commission of such offense.’ ”

Franklin v. State, 854 So.2d at 154-55.

Based on the authority of Franklin v. State, supra, Gilmore’s conviction of robbery in the third degree is due to be vacated, and this cause remanded for entry of a judgment of guilty as to theft in the third degree. Gilmore should then be sentenced accordingly. A return should be filed with this court reflecting such judgment and sentence within 28 days of this opinion.

REMANDED WITH INSTRUCTIONS.

BASCHAB and WISE, JJ., concur.

COBB and SHAW, JJ., concur in the result.

      “An attempt is defined by § 13A-4-2(a), Ala.Code 1975, as follows: ‘A per-


author: BASCHAB, Judge.

text:
    Steven L. PREACHERS v. STATE of Alabama.
    CR-04-2544.
    Court of Criminal Appeals of Alabama.
    Sept. 29, 2006.
    Rehearing Denied Dec. 8, 2006.
    Certiorari Denied Feb. 9, 2007 Alabama Supreme Court 1060467.

      Charles Walter Blakeney, Geneva; and Jackie David Robinson, Daleville, for appellant.
    Troy King, atty. gen., and Tracy Daniel, asst. atty. gen., for appellee.
   BASCHAB, Judge.

The appellant, Steven L. Preachers, was convicted of capital murder for the killing of Angel Marie 'Whitley. The murder was made capital because the victim was less than fourteen years of age. See § 13A-5-40(a)(18), Ala.Code 1975. The trial court sentenced him to imprisonment for life without the possibility of parole. This appeal followed.

The appellant argues that the trial court improperly denied his motion pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), after the prosecutor allegedly used his peremptory challenges in a racially discriminatory manner. In his brief to this court, he specifically contends, as he did at trial, that the prosecutor’s reasons for striking Venire-members F.L., Q.R., and E.W. were pre-textual.

The record indicates that the prosecutor struck the following veniremembers in the following order:

1. C.S. — a 62 year old white female from Samson
2. A.V. — a 19 year old white male from Samson
3. B.D. — a 29 year old white female from Samson
4. F.L. — a 51 year old black male from Geneva
5. Q.R. — a 19 year old black male from Samson
6. M.S. — a 77 year old white female from Samson
7. R.M. — a 70 year old white female from Samson
8. C.S. — a 27 year old white male from Samson
9. S.H. — a 47 year old white female from Samson who had previously been arrested
10. R.A. — a 49 year old white male from Chancellor
11. R.F. — a 29 year old white male from Samson who had previously been arrested
12. R.D. — a 48 year old white female from Hartford
13. L.H. — a 23 year old white female from close to Samson
14. L.H. — a 62 year old white female from Chancellor
15. W.M. — a 33 year old white female from Samson who had previously been arrested
16. P.T. — a 49 year old white female from Hartford
17. J.H. — a 65 year old white male from Hartford
18. E.W. — a 20 year old black female from Hartford
19. L.W. — a 64 year old white female from Slocomb
20. C.D. — a 47 year old white female from Hartford

The record indicates that the defense struck the following veniremembers in the following order:

1. E.T. — a 58 year old black male from Geneva
2. D.H. — an 82 year old white male from Geneva
3. T.B. — a 33 year old white male from Geneva
4. O.C. — a 66 year old white male from Geneva
5. H.C. — a 39 year old white male from Hartford who had previously been arrested '
6. F.W. — a 65 year old white female from Slocomb
7. T.S. — a 60 year old white male from Geneva
8. R.R. — a 59 year old white male from Slocomb who had previously been arrested
9. B.D. — a 51 year old white female from Geneva who had previously been arrested
10. D.G. — a 36 year old white female from Chancellor
11. G.H. — a 61 year old white male from Coffee Springs
12. D.L. — a 31 year old white female from Slocomb who had previously been arrested
13. H.V.H. — a 19 year old white female from Slocomb
14. R.J. — a 78 year old white female from Geneva
15. C.J. — a 48 year old white female from Malvern
16. J.J. — a 61 year old white male from Slocomb who had previously been arrested
17. P.W. — a 42 year old white male from Black who had previously been arrested
18. K.H. — a 41 year old white female from Black
19. S.S. — a 51 year old white male from Slocomb

After the jury was struck but before it was sworn, the following occurred:

“[DEFENSE COUNSEL]: Judge, at this time the defendant makes a motion pursuant to Batson in that we believe the State has used a discriminatory practice in selection of jurors in this case. Specifically we would show there were four members of the venire that we struck from who were black. The defense struck juror Number 178, who was [E.T.] — He was struck because he was a retired state trooper. We would show that for their fourth strike the State struck juror number 117, [F.L.]. They struck juror number 147, [Q.R.] with their fifth strike. They struck number — juror number 192, [E.W.], with their 18th strike. There were four total — The defense struck one, the State struck all three other black members of the venire. We think that establishes a prima facie case of racial discrimination in the jury selection process in that the State struck all remaining black jurors.
“THE COURT: For the State?
“MR. SMITH: Your Honor, if the Court would like me to explain, give reasons for the strikes.
“THE COURT: That will be fine.
“MR. SMITH: [Q.R.], number 147, is 19 years old and from Samson. Those are the reasons why, the age and the fact that he’s from Samson, the town where the defendant resides, were the basis for that strike. Number 170 — 192, [E.W.], it was age, only 20 years old. That was the basis for that strike. And [F.L.], I believe that’s number 117, [F.L.] has been arrested before. And the State was advised of that from law enforcement, and that was the basis for that strike.
“THE COURT: Okay. The Court is going to find that the defendant has failed to make a prima facie case for a Batson motion, and the motion will be denied.
“[DEFENSE COUNSEL]: Judge, we would like an opportunity to respond to the State’s reasons. Number one, I believe [F.L.] did not respond in the questionnaire that he had been arrested. He answered no. Question is, did the State follow up in voir dire to determine whether hé was the actual person that they had heard may have been arrested; that if they didn’t, that it’s just a pretex-tual reason for striking him. They made no inquiry of him, of why he answered no. And I don’t know that they did any verification through any official sources that he, in fact, had been arrested before. Concerning the second one, Ms. — I mean, [Q.R.]. The fact that he was 19 is merely a pretextual reason for a jury strike in this case. Aso the fact that he’s from Samson. I’ll have to check the records, but I believe other jurors from Samson were left on the venire that were white. I’m not sure of that, I’ll have to check to verify. As far as [E.W.], just a simple fact of her age doesn’t establish any legitimate reason for a strike. There’s no reason to think that a person’s age is a factor to be able to serve on a jury in this case. The defendant is 34 years old. He’s not some teenager that they were gonna identify with particularly or anything. And for those reasons we think that the State has not established that the reasons for striking were race neutral.
“THE COURT: Okay.
“[SECOND DEFENSE COUNSEL]: And, Your Honor, additionally we would certainly be interested in the State’s assertion that they checked the criminal record of all of the individuals that were on this jury venire, and if so what the results were.
“THE COURT: Motion is denied.
“[DEFENSE COUNSEL]: And again, Your Honor, we would state that pursuant to Batson v. Kentucky violation of the Fourteenth Amendment right the defendant has to a fair and impartial jury.
“THE COURT: Okay. Your objection to the ruling is so noted.”

(R. 567-71.) Shortly thereafter, the following also occurred:

“[DEFENSE COUNSEL]: Your Honor, further, if I could reopen the Batson issue, please. The State stated that juror number 117, [F.L.], was struck because they had information from law enforcement he had been arrested before. Can I inquire what he had been arrested for?
“[PROSECUTOR]: All I know is that he’s been in jail, and I maybe should clarify that, that he has been in the county jail for some purpose and some reason. And I believe he was arrested. I don’t know.
“[DEFENSE COUNSEL]: Do you know when?
“[PROSECUTOR]: I’m not — unless the Court wants me to answer that, and that I’ll be happy to do that.
“THE COURT: I’ll direct you disclose any information that you have.
“[PROSECUTOR]: Ml I know that I was advised by a law enforcement officer that he had been in jail, and that implied that he’s been arrested. But he’s been in the county jail.
“[DEFENSE COUNSEL]: You didn’t have any information about when or what or whether it was 20 years ago, last year?
“[PROSECUTOR]: I didn’t ask.
“[DEFENSE COUNSEL]: Judge, we would first state that the fact that the State didn’t inquire in any of those details and determine their relevance— certainly if he was arrested 20 years ago for disorderly conduct would be way less relevant than if he were arrested last year on some felony or something of that nature. That goes to show the pretextual nature of their strike and that it was not for a race-neutral reason.
“Further, white juror number 177, [J.E.T.], had been arrested before. The state also did not question [J.E.T.] concerning his views toward law enforcement and his ability to be fair and impartial in this case and did not strike him. And the appellate courts require that when we look at situations where jurors of similar backgrounds or histories and a black one is struck and a white one is left on the jury and there’s no apparent reason for that, that’s a prima facie showing of racial discrimination by the prosecution.
“We would further ask that you give us a few minutes to go back and check— and it won’t take very long — to see if there were any other jurors, white jurors from Samson area, who were, in fact, left on the jury, since that was their reason for — one of the reasons for striking the juror number 147, [Q.R.].
“THE COURT: Okay. That request is denied. The motion is denied.”

(R. 575-78.)

“In Batson the United States Supreme Court held that black veniremembers could not be struck from a black defendant’s jury because of their race. In Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), the court extended its decision in Batson to apply also to white defendants.... The United States Supreme Court in Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992), held that the protections of Batson were also available to defense counsel in criminal trials. The Alabama Supreme Court has held that the protections of Batson apply to the striking of white prospective jurors. White Consolidated Industries, Inc. v. American Liberty Insurance, Co., 617 So.2d 657 (Ala.1993).”

Grimsley v. State, 678 So.2d 1194, 1195 (Ala.Crim.App.1995).

“After the appellant makes a timely Bat-son motion and establishes a prima facie showing of discrimination, the burden shifts to the state to provide a race-neutral reason for each strike.... See, e.g., Ex parte Bird, 594 So.2d 676 (Ala.1991). We will reverse the circuit court’s ruling on the Batson motion only if it is ‘clearly erroneous.’ Jackson v. State, 549 So.2d 616 (Ala.Cr.App.1989).”

Cooper v. State, 611 So.2d 460, 463 (Ala.Crim.App.1992).

“Once the prosecutor has articulated a nondiscriminatory reason for challenging the black jurors, the other side can offer evidence showing that the reasons or explanations are merely a sham or pretext. [People v.] Wheeler, 22 Cal.3d [258] at 282, 583 P.2d [748] at 763-64, 148 Cal.Rptr. [890] at 906 [(1978)]. Other than reasons that are obviously contrived, the following are illustrative of the types of evidence that can be used to show sham or pretext:
“1. The reasons given are not related to the facts of the case.
“2. There was a lack of questioning to the challenged juror, or a lack of meaningful questions:
“3. Disparate treatment — persons with the same or similar characteristics as the challenged juror were not struck....
■ “4. Disparate examination of members of the venire; e.g., a question designed to provoke a certain response that is likely to disqualify the juror was asked to black jurors, but not to white jurors....
“5. The prosecutor, having 6 peremptory challenges, used 2 to remove the only 2 blacks remaining on the venire...:
“6. ‘[A]n explanation based on a group bias where the group trait is not shown to apply to the challenged juror specifically.’ Slappy [v. State], 503 So.2d [350] at 355 [ (Fla.Dist.Ct.App.1987) ]. For instance, an assumption that teachers as a class are too liberal, without any specific questions having been directed to the panel or the individual juror showing the potentially liberal nature of the challenged juror.”

Ex parte Branch, 526 So.2d 609, 624 (Ala.1987).

In this case, the defense based its Batson motion solely on the number of black veniremembers the prosecution struck.

“Alabama courts have recently held that even a showing that [a] party had ... a high percentage of strikes used against a minority was not alone enough. In Ex parte Trawick, 698 So.2d 162, 168 (Ala.1997), the Alabama Supreme Court held, ‘Without more, we do not find that the number of strikes this prosecutor used to remove women from the venire is sufficient to establish a prima facie case of gender discrimination.’ ”

Armstrong v. State, 710 So.2d 531, 533 (Ala.Crim.App.1997). Because the defense relied solely upon the number of blacks struck, we question whether it established a prima facie showing that the prosecutor exercised his peremptory challenges in a discriminatory manner. Nevertheless,

“[wjhere, as in this case, the trial court requires the opposing counsel to state reasons for the peremptory strikes without first requiring that a prima facie case of discrimination be established, this Court will review those reasons and the trial court’s ultimate decision on the Batson motion without determining whether the moving party met its burden of proving a prima facie case of discrimination.”

Harris v. State, 705 So.2d 542, 545 (Ala.Crim.App.1997).

The record supports the appellant’s assertions of disparate treatment with regard to Veniremember F.L. and Juror J.E.T. On his jury questionnaire, F.L. indicated that he had not been arrested, accused of a crime, or taken to jail for any reason. On his jury questionnaire, J.E.T. indicated that he had been arrested, accused of a crime, or taken to jail for driving under the influence of alcohol.

We addressed a similar situation in Yancey v. State, 813 So.2d 1, 7-9 (Ala.Crim.App.2001), as follows:

“Though we have held that striking a prospective juror because of a prior criminal history is a race-neutral reason, we have also held that the failure to strike both whites and blacks because of prior criminal records is evidence of disparate treatment, in violation of Batson. See Powell v. State, 548 So.2d 590 (Ala.Crim.App.1988), aff'd, 548 So.2d 605 (Ala.1989). ‘Such disparate treatment of otherwise similarly situated persons who happen to be of different racial backgrounds, would evidence discriminatory intent in the State’s use of its strikes.’ Bishop v. State, 690 So.2d 498, 500 (Ala.Crim.App.1995), on remand, 690 So.2d 502 (Ala.Crim.App.1996). See also Russell v. State, 739 So.2d 58 (Ala.Crim.App.1999); Wright v. State, 601 So.2d 1095 (Ala.Crim.App.1991); and Mitchell v. State, 579 So.2d 45 (Ala.Cr.App.1991), cert. denied, 596 So.2d 954 (Ala.1992). The prosecutor’s reasons for striking prospective jurors numbers 93, 118, and 151, evidence disparate treatment.
“As this Court stated in Powell, 548 So.2d at 593-94:
“ ‘In view of the fact that five members of the jury were in their twenties (the average age of the jury was only 31 years, 8 months) and seven members of the jury had had traffic offenses equally as serious as those of the black venirepersons who were struck by the State, we cannot escape the conclusion that the State engaged in the type of “disparate treatment” denounced in Branch. White “persons with the same or similar characteristics as the challenged [black] juror[s] were not struck.” Branch, 526 So.2d at 624. See Acres v. State, 548 So.2d 459 (Ala.Cr.App.1987) (on return to remand) (validity of prosecutor’s reasons for striking two black venireper-sons because they had had traffic citations did not “stand up under close .scrutiny” when record revealed that two white jurors who served on jury had similar traffic offenses). The State simply did not remove white persons for the same reasons given by the State for removing blacks. Compare Currin v. State, 535 So.2d 221 (Ala.Cr.App.1988) (“A reasonable conclusion ... is that [the prosecutor] applied the racially neutral criteria of education, employment, and demeanor to all jurors, whether black, [or] white -”) (quoting United States v. Allen, 666 F.Supp. 847, 854 (E.D.Va.1987)). See generally State v. Antwine, 743 S.W.2d 51, 65 (Mo.), cert. denied, Antwine v. Missouri, [486] U.S. [1017], 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988), wherein the court found it highly relevant to consider “whether similarly situated white veniremen escaped the State’s challenges.” ’
“In Carrick v. State, 580 So.2d 31, 32 (Ala.Crim.App.1990), we stated:
“ ‘In the instant case, the State engaged in the type of disparate treatment denounced in Branch. See also Acres v. State, 548 So.2d 459 (Ala.Cr.App.1987) (wherein this Court held that the validity of the prosecutor’s reasons for striking two black venire-persons because they had had traffic citations did not “stand up under close scrutiny” when the record revealed that two white jurors who served on the jury had similar traffic offenses, at 473). Here, as in Acres; the State simply did not remove white persons for the same reasons given by the State for removing blacks.’
“ ‘ “[Disparate treatment furnishes strong evidence of discriminatory intent.” ’ Freeman v. State, 651 So.2d 576 (Ala.Crim.App.1994), quoting Ex parte Bird, 594 So.2d 676, 681 (Ala.1991), on remand, 594 So.2d 689 (Ala.Crim.App.1992). See also Kynard v. State, 631 So.2d 257 (Ala.Crim.App.1993). ‘This court has condemned the failure to strike white venirepersons who share the same characteristics as black venire-persons who were struck.’ Bishop v. State, 690 So.2d at 500.”
“... The voir dire in this case covered portions of five volumes of the record. It appears that the jurors were questioned equally about their views concerning capital punishment; however, there is no discussion concerning any prospective jurors’ prior misdemeanor offenses or traffic offenses. Thus, the voir dire provides no support for some of the reasons advanced by the prosecution. From the record it appears that the prosecutor engaged in disparate treatment when striking Yancey’s jury.”

See also Carter v. State, 603 So.2d 1137 (Ala.Crim.App.1992) (finding disparate treatment between black and white venire-members where two unemployed black veniremembers were struck but two unemployed white veniremembers were not struck); Sims v. State, 587 So.2d 1271, 1277 (Ala.Crim.App.1991) (noting that “many of the traits exhibited by the black veniremembers and given as reasons for challenging them were also exhibited by white members who went unchallenged by the state”). Finally, in Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 2325, 162 L.Ed.2d 196 (2005), the United States Supreme Court reiterated:

“If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step.”

We further find it relevant that the prosecutor did not ask any of the venire-members any questions about whether they had been arrested, accused of a crime, or taken to jail for any reason. Also, the prosecutor did not ask Venire-member F.L. to confirm or deny that he had been in the county jail before, even though he had indicated on his jury questionnaire that he had not previously been arrested, accused of a crime, or taken to jail for any reason. “[T]he failure of the State to engage in any meaningful voir dire on a subject of alleged concern is evidence that the explanation is a sham and a pretext for discrimination. Branch, 526 So.2d at 623.” Hemphill v. State, 610 So.2d 413, 416 (Ala.Crim.App.1992). See also Ex parte Bird, 594 So.2d 676 (Ala.1991); Guthrie v. State, 598 So.2d 1013 (Ala.Crim.App.1991); Madison v. State, 545 So.2d 94 (Ala.Crim.App.1987).

“It is well settled that the ruling of the trial court on a Batson hearing is entitled to substantial deference and will not be disturbed on review unless ⅜ is ‘clearly erroneous.’ Scales v. State, 539 So.2d 1074 (Ala.1988).” Ex parte Bankhead, 625 So.2d 1146, 1148 (Ala.1993). For the reasons set forth above, we are compelled to conclude that the prosecutor’s reason for striking Veniremember F.L. was no more than a pretext for racial discrimination. Moreover, the prosecutor’s reliance on age to strike Venire-members Q.R. and E.W. is also suspect. However, we need not determine the propriety of those remaining strikes because “the failure to articulate a sufficient race-neutral reason for excluding even a single black veniremember may entitle the defendant to a new trial. Harrell v. State, 555 So.2d 263 (Ala.1989).” Id.

“[W]hen illegitimate grounds like race are in issue, a prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives. A Batson challenge does not call for a mere exercise in thinking up any rational basis. If the stated reason does not hold up, its pre-textual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false.”

Miller-El, 545 U.S. at 252, 125 S.Ct. at 2332. Accordingly, we are compelled to reverse the trial court’s judgment and to remand this case-for a new trial.

REVERSED AND REMANDED.

McMILLAN, P.J., and COBB and WISE, JJ., concur; SHAW, J., concurs in the result.

      . The State did not seek the death penalty because there were not any aggravating dr-cumstances in this case.

      . Of the veniremembers who completed questionnaires, thirteen indicated that they had been arrested, accused of a crime, or taken to jail for any reason. Of those thirteen venire-members, three were excused for cause, the prosecutor struck three, the defense struck six, and one (J.E.T.) served on the jury.

      . "This Court has recognized that 'the age rationale is highly suspect because of its inherent susceptibility to abuse. Batson, 476 U.S. at 106, 106 S.Ct. at 1728 (Marshall, J., concurring).' Ex parte Bird, 594 So.2d 676, 683 (Ala.1991). In fact, ‘[a] mere summary declaration that age was a factor in the decision to strike is, therefore, constitutionally deficient and warrants reversal. Owens v. State, 531 So.2d 22, 26 (Ala.Crim.App.1987).’ Bird, 594 So.2d at 683. Despite its susceptibility to misuse, however, this Court has also noted:
      " ‘[W]e realize that in certain cases age may serve as a legitimate racially neutral reason for a peremptory strike. See Harrell, 555 So.2d at 268 n. 1.’

        “Bird, at 682-83."

        Ex parte Brown, 686 So.2d 409, 416-17 (Ala.1996). See also Avery v. State, 545 So.2d 123 (Ala.Crim.App.1988); Floyd v. State, 539 So.2d 357 (Ala.Crim.App.1987).


text:
    Raymond CARLISLE v. STATE of Alabama.
    CR-05-1191.
    Court of Criminal Appeals of Alabama.
    Nov. 3, 2006.
    Amber Lynn Ladner, Birmingham, for appellant.
    Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   BASCHAB, Judge.

The appellant, Raymond Carlisle, was indicted for two counts of capital murder for the killing of Sammie Speigner III. Count I charged him with murder made capital because he committed it during the course of a robbery, § 13A-5-40(a)(2), Ala. Code 1975, and Count II charged him with murder made capital because the victim was in a vehicle, § 13A-5-40(a)(17), Ala. Code 1975. He was convicted of two counts of the lesser included offense of felony-murder, a violation of § 13A-6-2(a)(3), Ala.Code 1975. The trial court sentenced him to serve concurrent terms of twenty-one years in prison on each conviction. In an unpublished memorandum that is being released today, we affirm as to the issues the appellant raises in his brief to this court. See Carlisle v. State, (CR-05-1191, November 3, 2006) — So.2d — (Ala.Crim.App.2006) (table). In this opinion, we address the propriety of his two convictions for felony-murder.

In Ex parte Rice, 766 So.2d 143 (Ala.1999), the Alabama Supreme Court held that § 13A-6-2(a)(3), Ala.Code 1975, creates a single offense, even though it provides alternative methods of proving the offense. The supreme court also held that double jeopardy principles prohibit multiple convictions and multiple sentences for felony-murder if the convictions and sentences arise from a single killing. In this case, the appellant was convicted of one count of felony-murder during a robbery and one count of felony-murder during the commission of a felony that was clearly dangerous to human life — discharging a firearm into an occupied vehicle. Both convictions arose from the murder of Speigner. Therefore, he could not properly be convicted of and sentenced for two counts of felony-murder. The trial court sentenced the appellant to serve concurrent terms of life in prison. However, in Rice, the supreme court held:

“We note that merely ordering that Rice’s sentences run concurrently is not a constitutionally acceptable option. The Supreme Court stated in Ball v. United States, 470 U.S. 856, 864-65, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985):
“ ‘The remedy of ordering one of the sentences to be served concurrently with the other cannot be squared with Congress’ intention. One of the convictions, as well as its concurrent sentence, is unauthorized punishment for a separate offense. See Missouri v. Hunter, 459 U.S. 359, 368 [, 103 S.Ct. 673, 74 L.Ed.2d 535] (1983).
“ ‘The second conviction, whose concomitant sentence is served concurrently, does not evaporate simply because of the concurrence of the sentence. The separate conviction, apart from the concurrent sentence, has potential adverse collateral consequences that may not be ignored. For example, the presence of two convictions on the record may delay the defendant’s eligibility for parole or result in an increased sentence under a recidivist statute for a future offense. Moreover, the second conviction may be used to impeach the defendant’s credibility and certainly carries the societal stigma accompanying any criminal conviction. See Benton v. Maryland, 395 U.S. 784, 790-91[, 89 S.Ct. 2056, 23 L.Ed.2d 707] (1969); Sibron v. New York, 392 U.S. 40, 54—56[, 88 S.Ct. 1889, 20 L.Ed.2d 917] (1968). Thus, the second conviction, even if it results in no greater sentence, is an impermissible punishment.’
“See, also, Rolling v. State, [673 So.2d 812 (Ala.Crim.App.1995) ].
“Neither is it an acceptable option to merely vacate one of Rice’s convictions and its corresponding sentence. The jury specifically found that Rice had violated § 13A-6-2(a)(3) in two different ways — by participating in a kidnapping and causing Taylor’s death and by participating in a robbery and causing Taylor’s death. Based on the record before us, an appellate court’s vacating one of Rice’s convictions and its corresponding sentence would have the effect, albeit unintended, of nullifying a part of the jury’s verdict. We think the better approach is for the Court of Criminal Appeals to remand the case to the trial court for the entry of a new order — an order that adjudges Rice guilty of Taylor’s murder and sentences him for that single offense.”

Rice, 766 So.2d at 152-53. Therefore, we remand this case for the trial court to enter a new order that adjudges the appellant guilty of Speigner’s murder and sentences him for that single offense. The trial court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 42 days after the release of this opinion.

AFFIRMED BY UNPUBLISHED MEMORANDUM IN PART; REMANDED WITH INSTRUCTIONS.

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


author: PER CURIAM.

text:
    Omar BLANCO, Appellant, v. STATE of Florida, Appellee.
    No. SC03-1328.
    Supreme Court of Florida.
    April 12, 2007.
    Rehearing Denied Aug. 8, 2007.

      Ira W. Still, III, Coral Springs, FL, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, FL and Leslie T. Campbell, Assistant Attorney General, West Palm Beach, FL, for Appellee.
   PER CURIAM.

Omar Blanco, a prisoner sentenced to death, appeals the summary denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons explained below, we affirm the denial of Blanco’s motion.

I. FACTS AND PROCEDURAL HISTORY

On January 14, 1982, at about 11 p.m., Blanco entered the home of John Ryan. Ryan’s niece, fourteen-year-old Thalia Ve-zos, was in bed reading when she saw Blanco standing in the hallway holding a gun and carrying a brown purse under his arm. Blanco entered her room, told Thalia to stay quiet, and then cut the telephone wires in her room. As Blanco left Thalia’s room into the hallway, he immediately encountered John Ryan. A struggle ensued during which Blanco shot Ryan. Ryan fell on top of Thalia, who lay in her bed. Before fleeing, Blanco shot Ryan six more times.

Having seen the intruder for several minutes both in her room and in the adjacent hallway, Thalia provided police with a description of the assailant. A neighbor also informed police that he saw a man wearing a gray jogging suit leave the property. Shortly before midnight, an officer spotted Blanco riding a bicycle about one to one-and-a-half miles from the home. The officer determined that Blanco matched the description provided by Thalia and the neighbor. Blanco was taken to the Yezos home, where the neighbor identified Blanco “as having the same profile and jogging suit” as the person he saw. A brown men’s purse containing Blanco’s ID papers and Thalia’s watch was found near Thalia’s bedroom. The following morning Thalia identified Blanco in a lineup.

Blanco was tried and convicted of armed burglary and sentenced to death for the murder of John Ryan. On direct appeal, we affirmed the convictions and sentences. Blanco v. State, 452 So.2d 520 (Fla.1984), cert. denied, 469 U.S. 1181, 105 S.Ct. 940, 83 L.Ed.2d 953 (1985). We also affirmed Blanco’s subsequent appeal from denial of his first motion for postconviction relief, and denied his petition for writ of habeas corpus. Blanco v. Wainwright, 507 So.2d 1377 (Fla.1987). A federal court later vacated the death sentence based on ineffective assistance of penalty-phase counsel. Blanco v. Dugger, 691 F.Supp. 308 (S.D.Fla.1988), aff'd sub nom. Blanco v. Singletary, 943 F.2d 1477 (11th Cir.1991). During the pendency of the resentencing proceedings, Blanco filed his third motion for postconvietion relief, alleging newly discovered evidence. After holding an evidentiary hearing, the trial court denied relief, and we affirmed. Blanco v. State, 702 So.2d 1250 (Fla.1997).

After a second penalty phase, the jury recommended death by a ten-to-two vote, and the trial court sentenced Blanco to death, based on two aggravating circumstances: prior violent felony and pecuniary gain and commission during a burglary. Blanco v. State, 706 So.2d 7, 8 & n. 5 (Fla.1997), cert. denied, 525 U.S. 837, 119 S.Ct. 96, 142 L.Ed.2d 76 (1998). We affirmed. Id. at 8.

Following his resentencing, Blanco filed a rule 3.850 motion for postconvietion relief in which he raised twenty-two claims. After a Huff hearing, the trial court summarily denied each claim.

II. ANALYSIS

On appeal, Blanco raises the following issues, which we address in turn: that the trial court erred (A) in denying his motion to require law enforcement officers to run a latent fingerprint through the Automated Fingerprint Identification System (AFIS); (B) in failing to hold an evidentia-ry hearing regarding allegedly tainted evidence; and (C) in summarily denying most of his claims both individually and cumulatively.

A. THE AFIS SEARCH

During the postconvietion proceedings after resentencing, Blanco filed a motion to require state officials to run through a national database of fingerprints the latent fingerprint found on Thalia Vezos’s bedroom door at the time of the murder. He alleged that the print belonged to the “real” killer. After a hearing, the circuit court denied the motion. Blanco argues that (1) the trial court erred in denying his motion to require that an unidentified latent fingerprint found at the crime scene in 1982 be run through AFIS for identification; (2) that possible leads resulting from using AFIS would constitute newly discovered evidence; and (8) that the State’s failure to run the print through AFIS at this time violated Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). As we explain, we reject each of these contentions.

A trial court’s ruling denying posteonvietion discovery is subject to review for abuse of discretion. State v. Lewis, 656 So.2d 1248, 1250 (Fla.1994) (holding that the court has inherent authority, upon good cause shown, to permit limited discovery on postconviction claims into relevant and material matters and that denial of such a motion is subject to abuse of discretion review). The trial court did not abuse its discretion here. During the 1982 guilt phase, an expert testified that a latent fingerprint found on the door of Thalia Vezos’s room remained unidentified. He estimated that the print could have been left at least ten days before the murder. No fingerprint evidence was admitted against Blanco, and Thalia testified that the killer wore socks over his hands. Further, at trial Thalia identified Blanco, and another eyewitness identified him as matching the form he saw leaving the home shortly after the murder. Blanco’s wallet and identification papers were found at the murder scene, and Blanco, who does not live in the area of the victim’s home, was arrested shortly after the murder within one-and-a-half miles of the home. Finally, at the hearing on the motion, Blanco admitted that his expert had determined that the latent print also did not match Enrique Gonzalez, a defense witness at trial whom Blanco has long contended is the “real” murderer. In addition, in his brief, Blanco admits that his expert also determined that the latent print did not match the fingerprints of anyone he believed to be a suspect. Accordingly, Blan-co has not shown that his request would result in relevant or material evidence.

The remaining claims regarding this issue are not preserved. At the hearing on the AFIS motion, Blanco expressly disavowed that he was arguing newly discovered evidence, and he did not allege Brady or Giglio violations either. Accordingly, these claims are waived and we do not address them.

B. THE EVIDENCE BOX

At trial in 1982, the evidence showed that the killer wore socks on his hands and dropped them on the floor. During post-conviction proceedings, Blanco filed a motion to compel production of the socks, which he alleged were missing from the evidence box. He further claimed that because the items in the box were not separately packaged, the socks were probably tainted and DNA testing was likely impossible. The circuit court held a hearing, at which the court’s chief evidence clerk testified that the socks were in the box and were separately packaged. He suggested that defense counsel may have been confused by the difference between the number assigned the evidence at trial and the new number assigned at resen-tencing. With the socks thus produced, the circuit court granted the defense’s motion to compel.

On appeal, Blanco argues (1) that the trial court erred by not holding an eviden-tiary hearing on his claim that all of the evidence in the box was tainted; and (2) that the socks were not in the box when defense counsel originally examined it and that the socks probably could not be DNA tested.

Blanco’s first argument is not preserved for review. On appeal, Blanco contends that the bloody clothes of the victim were commingled with Blanco’s clothes. At the hearing on Blanco’s motion to compel, however, defense counsel did not argue due process was violated because the evidence in the box was contaminated. Nor did he present evidence or ask for a ruling on the issue.

Regarding the second claim, the record shows that the clerk determined that the socks were in the box and defense counsel agreed that the socks produced were the requested evidence. Further, at the hearing, defense counsel requested, and was granted permission, to review the feasibility of DNA testing. The record contains no evidence that Blanco took any further action.

On appeal, Blanco also contends that the socks cannot now be tested for gunshot residue. This claim was never presented to the circuit court and is not preserved for review. Accordingly, as to all of these claims, Blanco has failed to demonstrate trial court error.

C. SUMMARY DENIAL OF BLANCO’S TWENTY-TWO CLAIMS

In his fourth motion for posteonvietion relief, Blanco raised twenty-two claims. After a Huff hearing, the trial court summarily denied all of them. Blanco appeals as to each claim and also argues that the trial court erred in failing to consider their cumulative impact.

A defendant is entitled to an evi-dentiary hearing on postconviction claims unless the motion and record conclusively show that the defendant is entitled to no relief. See Gaskin v. State, 737 So.2d 509, 516 (Fla.1999). A defendant is entitled to no relief when his postconviction motion claims are legally insufficient, procedurally barred, or otherwise meritless. Hodges v. State, 885 So.2d 338, 355 (Fla.2004). Based on this standard, we deny all of Blanco’s claims, as we explain below.

Procedurally Barred Claims

Claims that could have been raised in prior proceedings are procedurally barred. See Muhammad v. State, 603 So.2d 488, 489 (Fla.1992) (“Issues which either were or could have been litigated at trial and upon direct appeal are not cognizable through collateral attack.”). Because this is Blanco’s fourth postconviction motion — although his first after resentenc-ing — we reject the following claims as procedurally barred: that lingering questions about the crime scene investigation require an evidentiary hearing to reach a final resolution; that the State unlawfully procured the absence of Enrique Gonzalez and Fidel Romero, whom Blanco claims are the actual murderers; that the trial court prevented Blanco from testifying during the second penalty phase; that Blanco was prejudiced by his absence from the courtroom during certain portions of the guilt phase; that the State used false or misleading evidence during the guilt phase; all guilt phase ineffective assistance of counsel claims; issues concerning gunshot residue testing, which were previously raised at trial; a challenge to the reliability of eyewitness testimony during the guilt phase of the trial; and claims that Florida’s death penalty and sentencing laws are unconstitutional.

Meritless Claims

We find that the remainder of Blanco’s claims are meritless. First, we reject Blanco’s claim that counsel told him he was not permitted to testify on his own behalf during the second penalty phase. Ineffective assistance of counsel claims are governed by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). According to Strickland, to prevail on an ineffective assistance of counsel claim, the defendant must show (1) that counsel’s representation fell below an objective standard of reasonableness, and (2) that the deficient performance prejudiced the defendant to such a degree as to undermine confidence in the outcome. Id. The record makes cléar that counsel made Blanco aware, in open court, of his right to testify. Blanco’s claim therefore fails the first prong of the Strickland test.

We reject Blanco’s claim that penalty phase counsel failed to adequately investigate psychological and psychiatric mitigation evidence. The record clearly demonstrates that two mental health experts presented testimony on Blanco’s behalf during the second penalty phase. We also reject Blanco’s claim that counsel was ineffective for failing to present certain statutory and nonstatutory mitigators during the second penalty phase. The record reflects that the mitigators Blanco argues should have been presented at his penalty phase are inconsistent with his theory of the case: that he is innocent of Mr. Ryan’s murder. We therefore find that counsel’s performance was not deficient. Blanco also argues that his second penalty phase counsel was ineffective for failing to inform him of a plea deal the State offered, and that upon Blanco’s rejection of the deal the State acted vindictively in seeking the death penalty. These claims are meritless because the record clearly indicates the State never offered Blanco any plea deal.

Blanco’s claims that the trial court erred in failing to develop a record from which it could conduct a proportionality review and that, in affirming his conviction, this Court failed to include an in-depth study of its proportionality review, are also meritless. Proportionality is inherently reviewed on direct appeal, regardless of whether such review is mentioned in this Court’s published opinions. Patton v. State, 878 So.2d 368, 380 (Fla.2004). We conducted a proportionality review of Blanco’s case in Blanco v. State, 706 So.2d 7 (Fla.1997). We find no deficiency in the record that would have precluded an effective review at that time.

Blanco also argues that since the time of his trial DNA testing technology has undergone considerable development, but fails to claim what evidence should be submitted for further testing. To the extent that Blanco appears to present a newly discovered evidence claim, such claims are governed by Jones v. State, 709 So.2d 512, 521 (Fla.1998). According to Jones, in order to obtain relief on a claim of newly discovered evidence, a defendant must establish that (1) the evidence was not known at the time of trial and could not have been discovered through the use of due diligence, and (2) the newly discovered evidence is of such a nature that it would probably produce an acquittal on retrial. Blanco’s claim fails the second prong of the Jones test because he fails to demonstrate how improved DNA testing procedures would probably lead to an acquittal on retrial. This claim is therefore legally insufficient and merit-less. Id. We also reject Blanco’s claim that the trial court failed'to cite the record in addressing each of his claims. The trial court addressed each claim in its order by directly citing the record or by adopting portions of the State’s response. We find no error.

Because we affirm the trial court’s denial of Blanco’s twenty-two individual claims, his claim based on the cumulative effect of these errors must also fail. A claim of cumulative error is without merit where each of the underlying claims is without merit. Wright v. State, 857 So.2d 861, 871 (Fla.2003).

For the foregoing reasons we affirm the trial court’s summary denial of Blanco’s postconviction motion.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

      . Blanco raised nine issues on appeal: the trial court erred (1) in denying the motion to suppress evidence, (2) in denying admission of evidence of a prior armed robbery committed in the neighborhood, (3) in announcing its ruling on a previously argued motion in Blan-co’s absence, (4) in allowing Blanco to call witnesses against defense counsel's advice, (5) in denying Blanco’s motion to suppress witness identification testimony, (6) in allowing the State to impeach Blanco with statements that had been suppressed under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), (7) in instructing the jury on burglary, (8) in sentencing Blanco separately for burglary where the first-degree murder conviction was based on felony murder, and (9) in imposing the death penalty.

      . This Court found the following claims were procedurally barred: the trial court erred (1) in permitting appellant to call witnesses against the advice of defense counsel, (2) by conducting critical stages of the trial in the absence of Blanco or an interpreter, (3) in questioning Blanco concerning the presentation of his defense, (4) by improperly instructing the jury on the number of jurors required to return a life recommendation, (5) by improperly relying on the armed burglary conviction as an aggravating factor, and (6) by improperly relying on a prior armed robbery conviction as an aggravating factor; (7) the jury instructions unconstitutionally denigrated the jury’s role in recommending life or death; and (8) the prosecutor used inflammatory closing arguments. Blanco, 507 So.2d at 1380. The court also affirmed denial of relief on the following claims: that trial counsel was ineffective for (1) failing in voir dire to effectively deal with prejudice against Mariel refugees and (2) failing to investigate and present mitigating evidence, including failing to go to Cuba for evidence; (3) that a conflict of interest existed between him and defense counsel over presentation of witnesses; and (4) that he was incompetent to stand trial and counsel was ineffective for failing to raise this issue. Id. at 1381-83.
      In his habeas petition, Blanco alleged most of the claims raised in the postconvietion proceeding, claiming that appellate counsel failed to recognize fundamental error in trial counsel's ineffectiveness. Blanco, 507 So.2d at 1384. We rejected this argument because rule 3.850 provides the proper remedy for such claims. We also rejected Blanco's claim of entitlement to repatriation to Cuba.

      . In the federal habeas proceedings, Blanco raised both guilt phase and penalty phase issues. The court, however, remanded for a new sentencing, phase based only on trial court interference in the penalty phase and ineffective assistance of counsel in allowing trial court interference and failing to investigate and present mitigation.

      . In 1989, Blanco filed his second postconviction motion during the federal habeas proceedings, but it was dismissed as moot when the federal court ordered resentencing.

      . Blanco alleged newly discovered evidence based on the theory that Enrique Gonzales was the real killer. Two witnesses testified they saw Gonzales in a bloody shirt the night of the murder. Blanco also introduced letters of Julio Guerra and “Mamita” that Gonzales confessed to the crime in prison. On appeal, we denied Blanco's claim that this evidence entitled Blanco to a new trial and that the trial court erred in denying Blanco’s motion for disqualification. Blanco, 702 So.2d at 1251-52 &n. 4.

      . On appeal, Blanco raised seven issues: the trial court erred in (1) refusing him the mental health expert of his choice, (2) refusing to instruct on the statutory mitigator of extreme duress, (3) improperly giving weight to the previous jury's death recommendation; (4) giving insufficient weight to the mitigating circumstance of impoverished background; (5) that the death sentence lacked proportionality; (6) that the murder in the course of a felony aggravator is unconstitutional; and (7) that the death penalty constitutes cruel and unusual punishment. Blanco, 706 So.2d at 9 & n. 8.

      . Huff v. State, 622 So.2d 982, 983 (Fla.1993) (requiring a hearing upon the filing of a post-conviction motion and answer to determine whether an evidentiary hearing is needed and to hear argument on legal issues).