author: WELCH, Judge.

text:
    Michael SALE v. STATE of Alabama.
    CR-05-1447.
    Court of Criminal Appeals of Alabama.
    April 4, 2008.
    Rehearing Denied June 13, 2008.

      M. Hampton Baxley, Dothan, for appellant.
    Troy King, atty. gen., and Michael A. Nunnelley, asst. atty. gen., for appellee.
   WELCH, Judge.

Michael Sale was convicted of the murder of his wife, Lynn Sale, made capital because it occurred during the course of kidnapping in the first degree, a violation of § 13A-5-41(l), Ala.Code 1975. After the penalty phase of Sale’s trial, the jury unanimously recommended that he be sentenced to death. The trial court then ordered a presentence report. A sentencing hearing was held, after which the trial court accepted the jury’s recommendation and sentenced Sale to death.

The evidence adduced at trial tended to show the following. On the night of May 2, 2004, Michael Sale placed a telephone call to 911 and requested help for his -wife, Lynn, at their home in Webb, Alabama. Daniel Mercer, one of the paramedics who responded to the call, said they were told the patient’s extremities were turning black.

Mercer said that when paramedics arrived at the Sales’ home, they found Lynn lying in a twin bed covered with stained, dirty linens. He said that when he pulled down the bed covers to examine Lynn, the odor of urine, feces and decubiti, or dead flesh, “came up on me.” (R. 396.) Lynn’s hands and feet were black, and she was having trouble breathing. Mercer said that in his opinion, Lynn was going to die if she did not receive treatment immediately. Despite her poor condition, Mercer said, Lynn reacted to pain stimuli.

Mercer said he was concerned about how Lynn had reached such a poor condition and questioned Sale as to whether Lynn had seen a doctor recently. He said that Sale told him that she had seen a doctor two weeks earlier but that the doctor did not know what was wrong with her, it may have been blood poisoning or it may have been cancer. Mercer was still puzzled, so, he said, he asked Sale three times whether Lynn had recently seen a doctor and each time Sale told him she had seen the doctor two weeks earlier. (R. 787.)

Lynn was transported by ambulance to Southeast Alabama Medical Center in Do-than. Dr. Allen Purvis, one of Lynn’s treating physicians, testified that Lynn, who was 48 years old, was dehydrated and in renal failure and respiratory failure when she arrived at the hospital. Her extremities, as well as her nose, were turning black because she was suffering from gangrene caused by sepsis, a bacterial infection that enters the blood stream, generally through a cut or break in the skin. The infection can be the result of poor hygiene. Dr. Purvis said that if Lynn had lived, her fingers, nose, and legs below the knees would have had to have been amputated.

Dr. Purvis was concerned about how bad Lynn’s condition was before she was brought into the hospital. He testified that she had to have been extremely ill for a number of days to be in as poor a condition as she was when she was first brought in. He added that he had been a physician for 16 years and he had

“never had anybody bring anybody and say they stopped talking three days ago. I mean, if somebody stops talking, that is as basic as it gets. People bring them in right then. If something turns dark or black, people bring them in right then. They don’t say their foot turned black three days ago. They don’t say they stopped talking three days ago, and we decided to bring mama in today. They just don’t do that. We have never in all my time have people come in and delay that. And that is people of any low educational status, maybe somebody who is maybe mentally handicapped. You just know there is something extremely, seriously wrong when someone stops talking.”

(R. 685.)

Dr. Purvis said after examining Lynn, he was “fairly convinced” she had been the victim of domestic abuse. (R. 687.) She had a broken rib, black eyes and “cauliflower ear,” a term meaning her ear was swollen and misshapen from a blow. Lynn was covered in bruises, human bite marks, scratches and cuts, some of which were fresh and some of which had been healing. Lynn also had significant swelling in her genitalia and pubis region, and there were scratches on her vagina. Given Lynn’s condition, hospital personnel did not believe she was capable of having scratched herself.

In addition, medical tests showed that Lynn had suffered a heart attack and several small strokes. Dr. Purvis’s opinion was that the heart attack occurred before Lynn was brought into the hospital. Based upon the results of a CAT scan, Dr. Purvis said the strokes had occurred several days before Lynn was brought to the hospital. A CAT scan also showed that Lynn had a tampon in her vagina that had been left there for a number of weeks. She was unable to move her arms and legs. He said that to be in such poor condition, she had to have been ill for some time.

Dr. Purvis said that when they discovered the tampon, doctors immediately suspected that she had toxic-shock syndrome. After running tests, however, they ruled out toxic shock as a cause of Lynn’s sepsis, because blood tests revealed that the infection she had was not consistent with toxic shock.

Lisa Nixon, a nurse who treated Lynn, testified that Lynn’s toes and fingers were hard and “crispy.” (R. 832 and 833.) She said that Lynn’s nose was “just like a piece of charcoal sitting up there. It wasn’t soft and mushy like a normal nose. It was hard and crispy. We were very afraid to do anything with that [feeding] tube, because we were afraid that part of the nose would fall off.” (R. 830-31.) Also, large patches of hair were missing from Lynn’s head.

Nixon also testified as to the bruising and cuts Lynn had suffered. According to Nixon, Lynn was feeling pain and would often moan. Nixon said that although Lynn’s condition was terminal, she did improve somewhat when she was being treated at the hospital. Three days before Lynn’s death on May 17, 2004, Nixon said she was talking to Lynn as she usually did, not expecting an answer. Lynn verbally responded, which “kind of shocked” Nixon. (R. 828.) Nixon asked Lynn a series of questions such as her age, where she was, and whether she had children, all of which Lynn answered correctly. Nixon said she then asked Lynn whether she knew who had hurt her. Lynn said yes, then said, “Michael hurt me, he did this to me.” (R. 828.) Shortly afterwards, Nixon said, Lynn stopped being able to move her mouth or to open her eyes. She died three days later.

Nixon also testified as to Sale’s demean- or and the inconsistent statements he made when he was at the hospital. When Lynn was first brought into the hospital, Nixon asked Sale how long Lynn had been sick. He told her it had been a couple of days. Nixon asked Sale whether Lynn had been to see a doctor. Sale said that she had and that the doctor thought she had a kidney infection. He also told Nixon that the reason he did not take her to a doctor before was that she refused to go. He then said Lynn had not been able to talk for several days. When Nixon asked him how she had refused to go to the doctor when she could not talk, Sale changed the subject.

On May 3, 2004, the day after Lynn was admitted to the hospital, the hospital notified police of the possibility that she had been the victim of domestic violence. Investigator Bill Rafferty with the Houston County Sheriffs Department testified that he went to the Sales home in Webb to execute a search warrant to determine whether there was any evidence of domestic abuse at the home. In the garbage can outside of the house, they found filthy clothes belonging to Lynn. They also found wads of hair matching Lynn’s, and a handwritten note asking, “Do you hurt, yes or no.” A long strip of torn sheet, about five feet long and three inches wide was found in the shed outside the house.

Inside the house, law-enforcement officials found a stained mattress on a twin bed that had been covered in baking soda, battered walls, damage to cabinets in the house, weather stripping on an interior bedroom door, blood toward the bottom of that door, and nail holes above the windows and the door framing in that bedroom. The room smelled of urine and feces. Law-enforcement officials found a pair of broken, twisted eyeglasses, and a calendar that had been torn up.

Ryan Sale, Lynn and Sale’s oldest son, was 23 years old at the time of the offense. At trial, he testified as to the cause of Lynn’s critical condition and eventual death. He said that Sale often physically abused Lynn and that Sale had also hit him. He said he was so afraid of Sale that when Sale hit Lynn, he had wet his pants. He described Sale as controlling the family and said that Sale would not allow Lynn to see her sisters or her parents, all of whom lived in Michigan. Sale, who had his own floor-tiling business, also made Lynn quit her job.

Ryan said that in 2000 or 2001, Lynn finally called the police to report Sale’s abuse. On April 17, 2001, Sale was convicted and sentenced to two years in prison, to be followed by five years’ probation. Sale served 11 months and then was released from prison to begin serving his probation. As a condition of his probation, Sale was subject to a restraining order that prohibited him from having any contact with Lynn, and he was not to go near her.

Ryan said that when Sale got out of prison, he returned to their home, despite the restraining order. Ryan testified that he was more afraid of his father when he got out of prison. Ryan said that he heard Sale tell Lynn that he wanted to “punish her due to all the money that he lost while he was locked up and the downfall the business had taken while he was locked up.” (R. 457.) Ryan described Lynn from that point on as being “terrorized.” (R. 457.) He described the atmosphere at home as “very scared, fearful.” (R. 463.) Although Ryan knew his mother was suffering beatings at the hands of his father, he did not report his father out of fear of what Sale would do to Lynn, Ryan, and his younger brother.

In late March or early April 2004, Ryan said Sale had him remove all of the telephones from the house. The first week of April, Sale moved Lynn out of their bedroom and made her stay in the recreational vehicle (“RV”) parked in their backyard. Ryan said the RV was old and had been “gutted.” (R. 467.) Lynn slept in a twin bed that had been placed in the RV. At that time, Sale never left Lynn. He even stopped working. Ryan said at that time, he was earning all of the money the family was using. When Ryan asked Sale why Lynn and Sale were staying in the RV, Sale told him they were working on their taxes.

On or about April 10, 2004, Sale moved Lynn from the RV into the shop the Sales had in their backyard. Ryan did not go out to the shop to check on Lynn, and he did not know whether she was being given food or water during that time.

On or about April 15 or 16, 2004, Ryan said, Sale moved Lynn back into the house, but by then, she could no longer walk. She had also lost the ability to raise her arms. Throughout the time Lynn was made to stay in the RV and the shop, Sale made Ryan keep a diary of sorts on the calendar describing Lynn’s deteriorating condition. Ryan said after his mother went to the hospital, he could not find the page of the calendar where he had kept track of her condition. When law-enforcement officials searched the house, they found a torn calendar, but they did not find the page for the month of April, which is when Ryan kept the notes.

Ryan said that about eight days before Sale finally called 911, Lynn lost the ability to carry on a conversation, although she was able to moan. She eventually began to have trouble urinating. If she was moved to another room of the house, Ryan said, he and Sale had to pick her up and move her. On the occasions when he saw Sale attempt to feed Lynn, Ryan said, she was unable to keep the food down. She wore only a nightgown that was never washed.

When Lynn was moved back into the house, Ryan said, Sale nailed blankets over the windows of the master bedroom, where she was staying, even though the windows already had blinds. Sale also put weather stripping on the bedroom door, an interior door, making the room even darker. Ryan and his brother were not to go into the room.

Ryan also described the general condition of the house. There were holes in the walls throughout the house; Sale had ripped the oven door off; he had kicked in cabinet doors and “busted up” kitchen drawers; and he had “busted up” furniture, and a door frame. (R. 499-501.)

Ryan said that Sale did not take Lynn to the doctor during this time. When Ryan saw that her nose and fingertips were turning black, he grew concerned that she might have gangrene and did research on the Internet to try to determine what was wrong with her. He told Sale that he believed Lynn had gangrene. When he did, Ryan said, Sale became “very erratic and scared, and that was the night he called the paramedics.” (R. 555.)

Ryan also testified that Sale told him that if anyone ever questioned him about Lynn’s condition, he was to say that she fell getting out of the RV and bruised her legs, and that she got scratched when Sale tried to catch her as she fell.

I.

Sale contends that the State failed to present sufficient evidence to support either his conviction for capital murder or for the sentence of death imposed. Specifically, Sale says, the State failed to prove kidnapping and that he had the intent to kill or hurt Lynn. This issue was preserved for appellate review by Sale’s motions for a judgment of acquittal and for a new trial.

“ ‘ “In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.” ’ Ballenger v. State, 720 So.2d 1038, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985). ‘“The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.” ’ Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting O’Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). ‘ “When there is legal evidence from which the jury could, by fair inference, find the defendant guilty the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court’s decision.” ’ Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). ‘The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.’ Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).
“ ‘The trial court’s denial of a motion for judgment of acquittal must be reviewed by determining whether there was legal evidence before the jury at the time the motion was made from which the jury by fair inference could find the defendant guilty. Thomas v. State, 363 So.2d 1020 (Ala.Crim.App.1978). In applying this standard, this court will determine only if legal evidence was presented from which the jury could have found the defendant guilty beyond a reasonable doubt. Willis v. State, 447 So.2d 199 (Ala.Crim.App.1983). When the evidence raises questions of fact for the jury and such evidence, if believed, is sufficient to sustain a conviction, the denial of a motion for acquittal does not constitute error. McConnell v. State, 429 So.2d 662 (Ala.Crim.App.1983).’ ”

Gavin v. State, 891 So.2d 907, 974 (Ala.Crim.App.2003) (quoting Ward v. State, 610 So.2d 1190, 1191 (Ala.Crim.App.1992)). See also Ward v. State, 814 So.2d 899, 908-10 (Ala.Crim.App.2000). In addition, it is not the place of an appellate court to invade the province of the jury and to reweigh evidence presented at trial. See Zumbado v. State, 615 So.2d 1223, 1240-1241 (Ala.Crim.App.1993).

“To sustain a conviction under § 13A-5-40(a)(l), Ala.Code 1975, for the capital offense of murder during a kidnapping, the State must prove beyond a reasonable doubt: (1) a kidnapping in the first degree, as defined by § 13A-6-43(a), or an attempt thereof; (2) an intentional murder, as defined by § 13A — 6—2(a) (1); and (3) that the murder was committed ‘during’ the course of the ‘kidnapping or attempted kidnapping.’

Butler v. State, 781 So.2d 994, 997 (Ala.Crim.App.2000).

A person commits the crime of kidnapping in the first degree if he abducts another person with intent to inflict physical injury upon that person or to terrorize him, among other things not pertinent here. § 13A-6-43(4) and (5), Ala.Code 1975.

“ ‘ “The abduction element of kidnapping in the first degree is defined at § 13A-6^10(2), [Ala.Code 1975], as follows:
“ ‘ “ ‘(2) Abduct. To restrain a person with intent to prevent his liberation by either:
“ ‘ “ ‘(a) Secreting or holding him in a place where he is not likely to be found, or
“ ‘ “ ‘(b) Using or threatening to use deadly physical force.’
“ ‘ “Proof of intent, necessary to convict under § 13A-6-43 [first-degree kidnapping], ‘must be found by the jury and may be inferred from the facts and circumstances attending the whole transaction.’ Doss v. State, 23 Ala.App. 168, 180, 123 So. 237, 248 (1929)
‘Owens v. State, 531 So.2d 2, 13-14 (Ala.Crim.App.1986).’
“Broadnax v. State, 825 So.2d 134, 203 (Ala.Crim.App.2000), aff'd, 825 So.2d 233 (Ala.2001).”

Kabat v. State, 867 So.2d 1153, 1158 n. 5 (Ala.Crim.App.2003).

“A person acts intentionally with respect to a result or to conduct described by a statute defining an offense, when his purpose is to cause that result or to engage in that conduct.” § 13A-2-2(l), Ala.Code 1975. Furthermore,

“ ‘[t]he question of a defendant’s intent at the time of the commission of the crime is usually an issue for the jury to resolve.’ Rowell v. State, 570 So.2d 848, 850 (Ala.Crim.App.1990), citing Crowe v. State, 435 So.2d 1371, 1379 (Ala.Crim.App.1983). Intent may be ‘“inferred from the character of the assault, the use of a deadly weapon and other attendant circumstances.” ’ Jones v. State, 591 So.2d 569, 574 (Ala.Crim.App.1991), quoting Johnson v. State, 390 So.2d 1160, 1167 (Ala.Crim.App.), cert. denied, 390 So.2d 1168 (Ala.1980).”

Butler, 781 So.2d at 997.

In this case, the State presented evidence that Sale sequestered Lynn in a gutted RV, in a shed, and finally in a bedroom in their house, with weather stripping on the interior door to the room and blinds and blankets over the windows. No one could see Lynn in any of the locations. Sale stayed with her 24 hours a day, seven days a week. He had his son Ryan remove all of the telephones from the house. There were times when even Ryan and his brother were not allowed to see Lynn.

When Lynn arrived at the hospital, she was covered in injuries that were healing and in fresh injuries, indicating that her abuse had occurred over a period of time. Medical testimony demonstrated that the detrimental effects of the injuries she sustained were compounded not only by Lynn’s inability to clean herself or her surroundings — at the hands of Sale, but also by her weakening condition — the result of not only the abuse she was taking but also because of her lack of proper nutrition and hydration, once again at the hands of Sale.

Dr. Purvis, Nixon, and Mercer, the health-care providers who treated Lynn, each testified that in their opinions, Lynn had to have been in noticeably poor condition long before Sale called 911 and Lynn was brought to the hospital. Dr. Purvis said he had never seen anyone enter the hospital in Lynn’s condition during 16 years of practicing medicine. Nonetheless, Sale did not seek medical help for Lynn until there was nothing left for doctors to do to save her life. The testimony was undisputed that Lynn was able to feel pain throughout her ordeal.

The State also presented evidence indicating that the reason for Sale’s exceedingly cruel treatment of Lynn was that she had had him prosecuted for abusing her in the past. Rather than taking responsibility for his wrongful conduct, Sale blamed Lynn for causing him to lose money and business during the time he was incarcerated. Therefore, according to Sale’s son, Sale determined that Lynn had to be punished.

The State presented sufficient evidence from which a jury could have reasonably determined that Sale restrained Lynn by keeping her in such a place that she was not likely to be found and that he also used force or the threat of force to keep her from getting away from him to seek help. From the horrific nature of Lynn’s condition and the evidence of Sale’s conduct, inflicting extreme injury and pain on Lynn and refusing to seek help for her until it was apparent that she was near death, the jury reasonably could have found that Sale intended not only to injure Lynn but that he also intended for her to die.

There is no merit to Sale’s contention that the State failed to present sufficient evidence to sustain his conviction. We will address the sufficiency of the evidence to sustain his sentence of death as part of our review of the propriety of that sentence in the discussion in Part Y, below.

II.

Sale contends that the trial court erred in failing to declare a mistrial when his lead counsel fell ill during the trial. The record of the trial proceedings does not reflect the absence of Sale’s lead counsel, and the issue was not raised until Sale’s motion for new trial.

To be timely, a motion for a mistrial must be made immediately after the ground for the motion becomes apparent. See Butler v. State, 659 So.2d 1021 (Ala.Crim.App.1995). Sale did not move for a mistrial, and he raised the issue of whether the trial court should have declared a mistrial only after the judgment had been entered in this case. Therefore, generally we would hold that this issue was not preserved for appellate review. However, that general rule does not apply in cases involving the imposition of the death penalty. Id. Because this is such a case, we review this issue for plain error. Rule 39(a)(2)(D), Ala. R.App. P.

“The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal. As the United States Supreme Court stated in United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the plain-error doctrine applies only if the error is ‘particularly egregious’ and if it ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ See Ex parte Price, 725 So.2d 1063 (Ala.1998), cert. denied, 526 U.S. 1133, 119 S.Ct. 1809, 143 L.Ed.2d 1012 (1999); Burgess v. State, 723 So.2d 742 (Ala.Crim.App.1997), aff'd, 723 So.2d 770 (Ala.1998), cert. denied, 526 U.S. 1052, 119 S.Ct. 1360, 143 L.Ed.2d 621 (1999); Johnson v. State, 620 So.2d 679, 701 (Ala.Crim.App.1992), rev’d on other grounds, 620 So.2d 709 (Ala.1993), on remand, 620 So.2d 714 (Ala.Crim.App.), cert. denied, 510 U.S. 905, 114 S.Ct. 285, 126 L.Ed.2d 235 (1993).”

Hall v. State, 820 So.2d 113, 121-22 (Ala.Crim.App.1999), aff'd, 820 So.2d 152 (Ala.2001).

Alabama law requires that “[e]ach person indicted for [a capital offense punishable by death] who is not able to afford legal counsel must be provided with one court appointed counsel having no less than five years’ prior experience in the active practice of criminal law.” § 13A-5-54, Ala.Code 1975.

Sale was represented by two attorneys, both of whom, he concedes, met the requirements set forth in § 13A-5-54. Sale contends, without citing any supporting evidence, that one of his two appointed attorneys was “only counsel in a support capacity and therefore, unable to provide the counsel necessary” when the other attorney representing him was ill and unable to attend trial one day. (Sale’s brief at p. 17.) Sale fails to present evidence to support his conclusion. As mentioned, the record does not indicate when the attorney who became ill was not present, and Sale does not allege any way in which remaining counsel failed to adequately represent him.

“We have held that § 13A-5-54, Ala.Code 1975, requires only that one attorney meet the statutory requirements. ‘In Parker v. State, 587 So.2d 1072 (Ala.Crim.App.1991), we held that when a person accused of a capital offense has one attorney whose experience meets that required in § 13A-5-54, the requirements of that section have been satisfied.’ Hodges v. State, 856 So.2d 875, 899 (Ala.Crim.App.2001).” Belisle v. State, 11 So.3d 256, 279 (Ala.Crim.App.2007). Furthermore, a defendant in a capital case is entitled to only one attorney with five years’ experience. See Robitaille v. State, 971 So.2d 43, 51-52 (Ala.Crim.App.2005); and Whitehead v. State, 777 So.2d 781, 851 (Ala.Crim.App.1999).

We note that “a mistrial is a drastic remedy, to be used only sparingly and only to prevent manifest injustice.” Ex parte Thomas, 625 So.2d 1156, 1157 (Ala.1993). Sale was represented throughout his trial by counsel who met the requirements of § 13A-5-54. Therefore, he was at all times represented by the counsel to which he was entitled, see Whitehead and Robitaille, supra; thus, there was no basis upon which to declare a mistrial. Accordingly, there was no error, much less plain error, in the trial court’s decision to proceed with the trial of this case on the day one of Sale’s attorneys was ill and unable to attend the trial.

III.

Sales contends that the trial court erred when it denied his motion for a change of venue on the ground of what Sale characterized as “prejudicial press coverage.” (Sale’s brief at p. 17.)

When reviewing a ruling on a motion for a change of venue, we consider the following:

“ ‘ “ ‘A trial court is in a better position than an appellate court to determine what effect, if any, pretrial publicity might have in a particular case. The trial court has the best opportunity to evaluate the effects of any pretrial publicity on the community as a whole and on the individual members of the jury venire. The trial court’s ruling on a motion for a change of venue will be reversed only when there is a showing that the trial court has abused its discretion. Nelson v. State, 440 So.2d 1130 (Ala.Crim.App.1983).’
“ ‘ “Joiner v. State, 651 So.2d 1155, 1156 (Ala.Crim.App.1994).”
‘Clemons v. State, 720 So.2d 961, 977 (Ala.Crim.App.1996), aff'd, 720 So.2d 985 (Ala.1998), cert. denied, 525 U.S. 1124, 119 S.Ct. 907, 142 L.Ed.2d 906 (1999). “The mere fact that publicity and media attention were widespread is not sufficient to warrant a change of venue. Rather, Ex parte Grayson[, 479 So.2d 76 (Ala.1985),] held that the appellant must show that he suffered actual prejudice or that the community was saturated with prejudicial publicity.” Slagle v. State, 606 So.2d 193, 195 (Ala.Crim.App.1992). “ ‘Moreover, the passage of time cannot be ignored as a factor in bringing objectivity to trial.’ ” Whisenhant v. State, 555 So.2d 219, 224 (Ala.Crim.App.1988), aff'd, 555 So.2d 235 (Ala.1989), cert. denied, 496 U.S. 943, 110 S.Ct. 3230, 110 L.Ed.2d 676 (1990) (citations omitted) (quoting Dannelly v. State, 47 Ala.App. 363, 254 So.2d 434, cert. denied, 287 Ala. 729, 254 So.2d 443 (1971)).’ ”

Hyde v. State, [Ms. CR-04-1390, September 28, 2007] — So.3d —, — (Ala.Crim.App.2007), quoting Samra v. State, 771 So.2d 1108, 1113 (Ala.Crim.App.1999); see also Jones v. State, [Ms. CR-05-0527, August 31, 2007] — So.3d — (Ala.Crim.App.2007).

“ ‘ “In connection with pretrial publicity, there are two situations which mandate a change of venue: 1) when the accused has demonstrated ‘actual prejudice’ against him on the part of the jurors; 2) when there is ‘presumed prejudice’ resulting from community saturation with such prejudicial pretrial publicity that no impartial jury can be selected. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Rideau [v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963) ]; Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Ex parte Grayson, 479 So.2d 76, 80 (Ala.), cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d 157 (1985); Coleman v. Zant, 708 F.2d 541 (11th. Cir.1983).”
‘Hunt v. State, 642 So.2d 999, 1042-43 (Ala.Crim.App.1993), aff'd, 642 So.2d 1060 (Ala.1994).’
“Samra v. State, 771 So.2d 1108, 1113 (Ala.Crim.App.1999).”

Hyde, — So.3d at —.

A claim of actual prejudicial pretrial publicity requires an initial showing that at least one of the jurors who heard the case entertained an opinion that the defendant was guilty before hearing the evidence. Jones, — So.3d at —, citing Irvin v. Dowd, 366 U.S. 717, 727, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Sale makes no such claim in this case, and our review of the record found no evidence of actual prejudice on the part of any juror who was chosen to hear Sale’s case. Instead, Sale asserts a claim of presumed prejudice, contending that information concerning this case, not all of which was accurate, was so widely publicized in the Houston County area that it made it virtually impossible to draw an impartial jury from the Houston County community.

To prove presumed prejudice, Sale had the burden of establishing that prejudicial pretrial publicity so saturated Houston County

“as to have a probable prejudicial impact on the prospective jurors there, thus rendering the trial setting inherently suspect. This required a showing that a feeling of deep and bitter prejudice exists in [Houston] County as a result of the publicity. Holladay v. State, 549 So.2d 122 (Ala.Crim.App.1988), aff'd, Ex parte Holladay, 549 So.2d 135 (Ala.1989), cert. denied, [498] U.S. [1012], 110 S.Ct. 575, 107 L.Ed.2d 569 (1989).’
“Ex parte Fowler, 574 So.2d 745, 747-48 (Ala.1990).”

Hyde, — So.3d at —.

In Hunt v. State, 642 So.2d 999, 1042-43 (Ala.Crim.App.1993), aff'd, 642 So.2d 1060 (Ala.1994), this Court held that for pretrial publicity to be presumptively prejudicial, the defendant must show: 1) that the pretrial publicity was prejudicial and inflammatory and 2) that the prejudicial pretrial publicity saturated the community where the trial was held. See Coleman v. Kemp, 778 F.2d 1487 (11th Cir.1985). This Court adopted the Coleman definition of the “presumptive prejudice” standard as follows:

“ ‘ “Prejudice is presumed from pretrial publicity when pretrial publicity is sufficiently prejudicial and inflammatory and the prejudicial pretrial publicity saturated the community where the trials were held.” 778 F.2d at 1490 (emphasis added [in Hunt ]). See also Holladay v. State, 549 So.2d 122, 125 (Ala.Crim.App.1988), affirmed, 549 So.2d 135 (Ala.), cert. denied, 493 U.S. 1012, 110 S.Ct. 575, 107 L.Ed.2d 569 (1989).
“ ‘In determining whether the “presumed prejudice” standard exists the trial court should look at “the totality of the surrounding facts.” Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984); Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). The presumptive prejudice standard is “rarely” applicable, and is reserved for only “extreme situations.” Coleman v. Kemp, 778 F.2d at 1537. “In fact, our research has uncovered only a very few ... cases in which relief was granted on the basis of presumed prejudice.” Coleman v. Kemp, 778 F.2d at 1490.
“ ‘. “[T]he burden placed upon the petitioner to show that pretrial publicity deprived him of his right to a fair trial before an impartial jury is an extremely heavy one.” Coleman v. Kemp, 778 F.2d at 1537. “Prejudicial” publicity usually must consist of much more than stating the charge, and of reportage of the pretrial and trial processes. “Publicity” and “prejudice” are not the same thing. Excess publicity does not automatically or necessarily mean that the publicity was prejudicial.
“ ‘. In order to meet the burden of showing the necessity for a change of venue due to pretrial publicity on the grounds of community saturation, “the appellant must show more than the fact ‘that a case generates even widespread publicity.’ ” Oryang v. State, 642 So.2d 979, 983 (Ala.Crim.App.1993), quoting, Thompson v. State, 581 So.2d 1216, 1233 (Ala.Crim.App.1991), cert. denied, [502] U.S. [1030], 112 S.Ct. 868, 116 L.Ed.2d 774 (1992).
“ ‘ “ ‘Newspaper articles alone would not necessitate a change in venue unless it was shown that the articles so affected the general citizenry through the insertion of such sensational, accu-sational or denunciatory statements, that a fair and impartial trial was impossible. Patton v. State, 246 Ala. 639, 21 So.2d 844 [1945].’ ”
‘Thompson, 581 So.2d at 1233, quoting McLaren v. State, 353 So.2d 24, 31 (Ala.Crim.App.), cert. denied, 353 So.2d 35 (Ala.1977).
. To justify a presumption of prejudice under this standard, the publicity must be both extensive and sensational in nature. If the media coverage is factual as opposed to inflammatory or sensational, this undermines any claim for a presumption of prejudice.’ United States v. Angiulo, 897 F.2d 1169, 1181 (1st Cir.1990).”

Jones, — So.3d at —.

In support of his motion for a change of venue, Sale presented evidence regarding the nature and extent of the news coverage of the crime, including footage and scripts of the television news broadcasts and newspaper articles, and the dates and number of times of those broadcasts and publications.

The record shows that news coverage connected with Lynn’s hospitalization, subsequent death, Sale’s arrest, and his pretrial court appearances occurred on about 20 days spanning the two years between the crime and the trial of the case. Even if that coverage constituted widespread publicity, widespread publicity alone does not require a change of venue. McGahee v. State, 885 So.2d 191, 211 (Ala.Crim.App.2003). Sale did not present evidence regarding the effect, if any, the news broadcasts and publication of the news articles had on members of the Houston County community as far as any opinions they may have formed based upon that coverage or whether Sale was prejudiced by the information. For instance, he presented no evidence regarding how many people in the community actually followed the coverage. There was no evidence as to how many people in the coverage area may have formed an opinion as to Sale’s innocence or guilt or whether members of the community who had followed the coverage would be able to put aside any knowledge they may have had of the case from media sources to give Sale a fair trial. Sale presented no evidence indicating that the media attention given his case so inflamed or saturated the Houston County community that there was an emotional tide against him.

We have carefully examined the evidence Sale presented in support of his motion for change of venue. Sale is correct in his assertion that the media reports ed a statement attributed to Houston County Sheriff Lamar Glover and to investigators in the case that Lynn “had apparently been tied up so tightly for so long that gangrene had developed in her hands and feet.” (CR. 421-24, see also, 425^46, 448-50.) Whether Lynn’s gangrene was the result of being tightly bound was not proven at trial. Despite the reporting of what may have been an incorrect conclusion drawn by law-enforcement officials as to the cause of Lynn’s development of gangrene, the fact remains that she did develop the condition as a result of Sale’s conduct toward her.

A review of the substance of the news reports related to Lynn’s injuries and death and Sale’s arrest and the subsequent proceedings against him show that those reports were essentially factual and objective rather than accusatory, inflammatory, or sensational. Thus, Sale has not shown that the pretrial publicity in this case was so inherently or presumptively prejudicial as to constitute one of those “extreme situations” that warrant a presumption of prejudice from pretrial publicity.

TV.

Because Sale has been sentenced to death, this Court must review the underlying proceedings for plain error. Rule 45A, Ala. R.App. P., states:

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

As mentioned above, when discussing the application of the plain-error standard of review, this Court has stated:

“The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal. As the United States Supreme Court stated in United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the plain-error doctrine applies only if the error is ‘particularly egregious’ and if it ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ See Ex parte Price, 725 So.2d 1068 (Ala.1998), cert. denied, 526 U.S. 1133, 119 S.Ct. 1809, 143 L.Ed.2d 1012 (1999); Burgess v. State, 723 So.2d 742 (Ala.Crim.App.1997), aff'd, 723 So.2d 770 (Ala.1998), cert. denied, 526 U.S. 1052, 119 S.Ct. 1360, 143 L.Ed.2d 521 (1999); Johnson v. State, 620 So.2d 679, 701 (Ala.Crim.App.1992), rev’d on other grounds, 620 So.2d 709 (Ala.1993), on remand, 620 So.2d 714 (Ala.Crim.App.), cert. denied, 510 U.S. 905, 114 S.Ct. 285, 126 L.Ed.2d 235 (1993).”

Hall v. State, 820 So.2d 113, 121-22 (Ala.Crim.App.1999), aff'd, 820 So.2d 152 (Ala.2001). Although the failure to object will not preclude our review, it will weigh against any claim of prejudice. See Dill v. State, 600 So.2d 343 (Ala.Crim.App.1991), aff'd, 600 So.2d 372 (Ala.1992).

Our review of the record revealed two errors made during the trial court’s charge to the jury — one during the guilt phase and the other during the penalty phase— that must be addressed.

A.

During the trial court’s charge during the guilt phase of Sale’s trial, the trial court instructed the jury on the lesser-included offense of felony murder, § 13A-6-2(a)(3), Ala.Code (1975), as follows:

“The lesser-included under capital murder is murder, and these are the elements: A person commits the crime of murder if he or she commits kidnapping in the first or second degree: number one, in the course of the crime; number two, in the furtherance of the crime; or, number three, in the immediate flight from the crime he is committing, he or another participant caused the death of any person.
“To convict, the State must prove beyond a reasonable doubt each of the following elements of murder: number one, that Lynn Michelle Sale is dead; number two, that Michael Lynn Sale caused the death of Lynn Michelle Sale by recklessly depriving her of medical attention when she was in need of it due to sepsis; number three, in committing the acts which caused the death of Lynn Michelle Sale, Michael Lynn Sale acted in the course of and in furtherance of the crime of kidnapping in the first degree, or in immediate flight from it; and, number four, in doing the acts which constituted the commission of kidnapping in the first degree, (a) during the course of which, (b) in furtherance of which, or, (c) in immediate flight from which the death of Lynn Michelle Sale was caused by Michael Lynn Sale.”

(R. 953-54; emphasis added.)

The trial court initially correctly stated the law regarding the elements of felony murder, as that offense is defined by § 13A-6-2(a)(3). In instructing the jury that, to find Sale guilty of felony murder, it must find that Sale “recklessly” caused Lynn’s death by depriving her of needed medical attention, the trial court not only incorrectly inserted a mens rea element into what must be proven to sustain a conviction for felony murder, but it also appeared to confuse the offense of reckless murder with the offense of manslaughter.

Felony murder does not require the specific intent to kill; it requires only the intent to commit the underlying felony. § 13A-6-2(a)(3), Ala.Code 1975; Heard v. State, 999 So.2d 992 (Ala.2007); and Mitchell v. State, 706 So.2d 787 (Ala.Crim.App.1997).

“The absence of an intent to kill, however, is not necessarily an element of felony murder, as contrasted with the intent to kill, which is an element of capital murder. In other words, a felony-murder conviction does not require proof that the defendant unintentionally killed the victim, only that the defendant intended to commit the underlying felony.”

Heard, 999 So.2d at 1005 (emphasis in original).

In setting forth the elements of the lesser-included offense of felony murder, the trial court instructed the jury that, to convict Sale of felony murder, it must find that he recklessly caused Lynn’s death, plus kidnapping. Reckless murder is not the same offense as felony murder.

“A person commits the offense of reckless murder if, ‘[ujnder circumstances manifesting extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to a person other than himself, and thereby causes the death of another person.’ § 13A-6-2(a)(2), Ala. Code (1975). A charge on reckless murder is not appropriate where the acts resulting in death are directed toward one or more particular people, as was the case here, rather than toward human life in general. Parker v. State, 587 So.2d 1072 (Ala.Crim.App.1991); McLaughlin v. State, 586 So.2d 267 (Ala.Crim.App.1991); Walker v. State, 523 So.2d 528 (Ala.Crim.App.1988); Ex parte McCormack, 431 So.2d 1340 (Ala.1983); Northington v. State, 413 So.2d 1169 (Ala.Crim.App.1981), writ quashed, 413 So.2d 1172 (Ala.1982).”

Dunaway v. State, 746 So.2d 1021,1034-35 (Ala.Crim.App.1998). Because Sale’s conduct was directed solely toward Lynn, the lesser-included offense of reckless murder would not apply in this case, and the trial court erred in instructing jurors that, to find Sale guilty of murder, they had to find that he acted recklessly.

If the jury determined that Sale caused Lynn’s death because he acted recklessly, then the appropriate offense with which to convict him would have been the lesser-included offense of manslaughter. A person commits manslaughter if he recklessly causes the death of another. § 13A-6-3(a)(1). The trial court did instruct the jury on manslaughter.

We find that the trial court erred in instructing the jury that, to convict Sale of felony murder it had to find that he recklessly caused Lynn’s death. In fact, the trial court’s instruction on murder appeared to erroneously meld elements of three separate offenses—felony murder, reckless murder, and manslaughter. However, our analysis does not end here.

Rule 45, Ala. RApp. P., provides:

“No judgment may be reversed or set aside, nor new trial granted in any civil or criminal case on the ground of misdirection of the jury, the giving or refusal of special charges or the improper admission or rejection of evidence, nor for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”

In addition, this court has stated:

“ ‘After finding error, an appellate court may still affirm a conviction on the ground that the error was harmless, if indeed it was.’ Guthrie v. State, 616 So.2d 914, 931 (Ala.Crim.App.1993), citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). ‘The harmless error rule applies in capital cases.’ Knotts v. State, 686 So.2d 431, 469 (Ala.Crim.App.1995), opinion after remand, 686 So.2d 484 (Ala.Crim.App.1995), aff'd, 686 So.2d 486 (Ala.1996), cert. denied, 520 U.S. 1199, 117 S.Ct. 1559, 137 L.Ed.2d 706 (1997), citing Ex parte Whisenhant, 482 So.2d 1241 (Ala.1983). ‘In order for a constitutional error to be deemed harmless under Chapman, the state must prove beyond a reasonable doubt that the error did not contribute to the verdict. In order for the error to be deemed harmless under Rule 45, the state must establish that the error did not injuriously affect the appellant’s substantial rights.’ Coral v. State, 628 So.2d 954, 973 (Ala.Crim.App.1992), opinion after remand, 628 So.2d 988 (Ala.Crim.App.1992), aff'd, 628 So.2d 1004 (Ala.1993), cert. denied, 511 U.S. 1012, 114 S.Ct. 1387, 128 L.Ed.2d 61 (1994). ‘The purpose of the harmless error rule is to avoid setting aside a conviction or sentence for small errors or defects that have little, if any, likelihood of changing the result of the trial or sentencing.’ Davis v. State, 718 So.2d 1148, 1164 (Ala.Crim.App.1997), aff'd, 718 So.2d 1166 (Ala.1998), cert. denied, 525 U.S. 1179, 119 S.Ct. 1117, 143 L.Ed.2d 112 (1999).”

McNabb v. State, 887 So.2d 929, 976-77 (Ala.Crim.App.2001).

Here, the trial court began by instructing the jury on the offense of murder made capital because it occurred during the course of kidnapping in the first or second degree. The court told jurors that if they did not find that Sale intentionally murdered Lynn during a kidnapping, they could not find him guilty of capital murder, but that they could then consider lesser-included offenses. In addition to the instruction, albeit erroneous, on the lesser-included offense of felony murder, the trial court properly instructed the jury on intentional murder, manslaughter, criminally negligent homicide, and, if jurors did not believe Sale was culpable for Lynn’s death but was culpable for kidnapping only, kidnapping in the first degree.

The jury rejected each of the properly stated lesser-included charges to capital murder, which ran the gamut from an intentional killing that did not occur during the commission of a kidnapping to kidnapping alone. Given the range of possibilities the jury had before it, the jury’s verdict of capital murder makes clear that it determined that Sale intentionally caused Lynn’s death and that her death occurred during the course of a kidnapping in the first degree. Therefore, the court’s failure to charge the jury that felony murder does not require the defendant to intend to cause the victim’s death during the course of committing a separate felony did not injure Sale’s substantial rights. Accordingly, the error was harmless. See, e.g., Lewis v. State, 889 So.2d 623, 688 (Ala.Crim.App.2003) (any error in charges as to lesser-included offenses was harmless because the jury was charged on the lesser-included offenses of intentional murder, felony murder, and manslaughter, and the jury found Lewis guilty of the greater capital offenses); Baker v. State, 906 So.2d 210 (Ala.Crim.App.2001) (the trial court’s failure to charge the jury on reckless murder and felony murder was, at most, harmless error, where the jury was charged on capital murder, intentional murder, reckless manslaughter, and heat-of-passion manslaughter, and the jury found the defendant guilty of capital murder), rev’d on other grounds, 906 So.2d 277 (Ala.2004); Smith v. State, 756 So.2d 892 (Ala.Crim.App.1997), aff'd, 756 So.2d 957 (Ala.2000) (the trial court’s failure to charge the jury on reckless manslaughter was not error, but, even if it was, it was harmless error, where the jury was charged on capital murder, intentional murder, and robbery, and the jury found the defendant guilty of capital murder); and Brown v. State, 623 So.2d 416 (Ala.Crim.App.1993) (the trial court’s failure to charge the jury on lesser-included offenses was, at most, harmless error, where the jury was charged on capital murder and felony murder and the jury found the defendant guilty of capital murder).

B.

The trial court also gave an erroneous charge during the penalty phase of the trial. During the course of its instructions regarding the requirement that jurors weigh the aggravating circumstances that were proven against the mitigating circumstances when determining whether to recommend the death sentence or a sentence of life in prison without the possibility of parole, the trial court stated:

“The law also provides which of these two punishments [death or life imprisonment without the possibility of parole] should be imposed upon the defendant depends on whether any aggravating circumstance or circumstances exist, and, if so, whether these aggravating circumstance or circumstances outweigh the mitigating circumstances.
“However, if after a full and fair consideration of all the evidence in the case, you determine that the mitigating circumstances outweigh any aggravating circumstance that exists, your verdict would be punishment for life imprisonment without parole.”

(R. 1113-14.)

This instruction improperly states that the jury had to find that the mitigating circumstances had to outweigh the aggravating circumstances before it could return a verdict recommending a sentence of life in prison without the possibility of parole. It does not provide any guidance to jurors regarding what the verdict should be if they find that the mitigating circumstances and the aggravating circumstances are of equal weight.

Sale did not object to these instructions, and on appeal, he does not contend that the instructions as set forth above constituted error. Therefore, we review these instructions for plain error, that is, an error that “ ‘ “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” ’ ” Ex parte Davis, 718 So.2d 1166, 1174 (Ala.1998), quoting Kuenzel v. State, 577 So.2d 474, 489 (Ala.Crim.App.1990), quoting in turn United States v. Butler, 792 F.2d 1528, 1535 (11th Cir.1986).

Alabama’s death-penalty statutory scheme provides that “[i]f the jury determines that one or more aggravating circumstances as defined by Section 13A-5-49 exist but do not outweigh the mitigating circumstances, it shall return an advisory verdict recommending to the trial court that the penalty be life imprisonment without parole.” § 13A-5^16(e)(2), Ala. Code 1975 (emphasis added). By providing that if the aggravating circumstances do not outweigh the mitigating circumstances, the statute encompasses those situations in which the jury determines that the aggravating circumstances and the mitigating circumstances are equally balanced.

The trial court’s instruction to the jury in this case, however, stated only that a verdict recommending a punishment of life imprisonment without the possibility of parole would be appropriate if the mitigating circumstances outweighed the aggravating circumstances. The instructions did not provide the jury with any guidance as to the proper verdict if it found that the aggravating circumstances and the mitigating circumstances were equally balanced.

The Alabama Supreme Court addressed this issue in Ex parte McNabb, 887 So.2d 998 (Ala.2004). In that case, the trial court instructed the jury as follows during the sentencing phase of the trial:

“[I]f, after a full and fair consideration of all of the evidence in the case, you are convinced beyond a reasonable doubt that at least one aggravating circumstance does exist and you are convinced that the aggravating circumstance outweighs the mitigating circumstances, then your verdict would be: ‘We, the jury, recommend that the defendant be punished by death, and the vote is as follows .... ’ However, if after a full and fair consideration of all of the evidence in this case, you determine that the mitigating circumstances outweigh any aggravating circumstance or circumstances that exist, or you are not convinced beyond a reasonable doubt that at least one aggravating circumstance does exist, your verdict should be to recommend the punishment of life imprisonment without parole.... ”

McNabb, 887 So.2d at 1001. Thus, just as in this case, the language used in instruet-ing the jury in McNabb did not specifically instruct the jury on what to do if the aggravating circumstances and mitigating circumstances were in balance.

The Alabama Supreme Court held that although the trial court did not instruct the jury as to what to do when the mitigating circumstances and the aggravating circumstances were in balance, “the jury [in McNabb ] was not invited to recommend a sentence of death without finding any aggravating circumstance.” Id. at 1004. The Supreme Court then held that, in considering the jury charge in its entirety, it could not conclude that “the error ‘seriously affect[ed] the fairness, integrity or public reputation of [these] judicial proceedings,’ Ex parte Davis, 718 So.2d at 1173-74, so as to require a reversal of the sentence.” McNabb, 887 So.2d at 1004.

After reviewing the trial court’s charge to the jury during the penalty phase in this case, we likewise cannot conclude that the trial court’s failure to instruct the jury as to what to do if the aggravating circumstances and the mitigating circumstances were equally balanced seriously affected the fairness, integrity or public reputation of this trial. When charging the jury regarding mitigating circumstances and the weight to be given to them, the court should reiterate that the aggravating circumstances must outweigh the mitigating circumstances in order for a juror to vote to return a verdict recommending death, and that if the aggravating circumstances do not outweigh the mitigating circumstances, which would encompass a situation in which the weight of the aggravating circumstances are equal to the weight of the mitigating circumstances, then a vote recommending life without parole would result. This would make clear to the jury that, in those instances when the mitigating circumstances and the aggravating circumstances are equally balanced, a verdict recommending the death penalty would not be appropriate.

We have searched the record for any error that may have adversely affected Sale’s substantial rights and have found none. Therefore, we find no basis for reversal under the plain-error standard of review as to either the guilt or penalty phases of Sale’s trial. See Rule 45A, Ala.R.App. P.

V.

Pursuant to § 13A-5-53, Ala.Code 1975, we are required to address the propriety of Sale’s conviction and sentence of death. Section 13A-5-53, Ala.Code 1975, requires that we review the propriety of Sale’s death sentence to determine whether any error adversely affecting his rights occurred in the sentence proceedings; whether the trial court’s findings concerning the aggravating and mitigating circumstances were supported by the evidence; and whether death is the appropriate sentence in the case. In determining whether death is the proper sentence, we must determine whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; whether an independent weighing by this Court of the aggravating and mitigating circumstances indicates that death is the proper sentence; and whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

After evidence was presented to the jury during the penalty phase of Sale’s trial, the jury unanimously voted to recommend that Sale be sentenced to death. The jury returned a special verdict form indicating that the jurors had unanimously found the existence of three aggravating circumstances: (1) that the capital offense was especially heinous, atrocious, or cruel when compared to other capital offenses; (2) that the capital offense was committed by Sale under a sentence of imprisonment; and (3) Sale intentionally killed Lynn during a kidnapping in the first degree.

Pursuant to § 13A-5^47, Ala.Code 1975, the trial court held a subsequent sentencing hearing to aid it in determining whether it would sentence Sale to death or to life imprisonment. In its sentencing order, the trial court entered specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in § 13A-5-49, Ala.Code 1975, each mitigating circumstance enumerated in § 13A-5-51, Ala.Code 1975, and any nonstatutory mitigating circumstance found to exist under § 13A-5-52, Ala.Code 1975, as well as written findings of fact summarizing the offense and Sale’s participation in it.

In its findings, the trial court found the existence of the following statutory aggravating circumstances: (1) that Sale intentionally killed Lynn during a kidnapping in the first degree; (2) that the capital offense was especially heinous, atrocious, or cruel when compared to other capital offenses; and (3) that the capital offense was committed by Sale while he was under a sentence of imprisonment.

The trial court found that no statutory mitigating circumstances existed in this case. It did, however, find a number of nonstatutory mitigating circumstances, including the following:

(1) Sale’s father left the family when Sale was young.
(2) Sale was emotionally traumatized by his father’s departure.
(3) Because Sale’s father left the family, his mother had to take on a full-time job and cease being a full-time homemaker.
(4) Sale’s mother’s work outside the home “deprived Michael Sale and his brothers and sisters of their mother’s nurture.” (CR. 360.)
(5) Sale’s father rejected his attempt to reestablish an emotional bond.
(6) Sale was in special-education classes when he was in school.
(7) Sale has borderline intellectual function.
(8) Sale’s first stepfather was an alcoholic.
(9) Sale was traumatized by the death of his brother.
(10) Sale never received grief counseling over the death of his brother.
(11) Sale had had a long-term marriage.
(12) Sale helped to rear and support two sons.
(13) Sale ran two successful businesses.
(14) Sale made a good impression on customers.
(15) Sale became dependent upon methamphetamine.
(16) Sale attempted to give Lynn food and liquids when she needed during her final days at home.
(17) Sale gave up the right to be silent when questioned by law enforcement.
(18) Sale behaved appropriately during the trial.
(19) Society would be adequately protected by Sale’s serving a sentence of life imprisonment without the possibility of parole.
(20) Sale is a human being.
(21) Any other circumstances arising from the evidence.

The trial court’s sentencing order reflects that after considering the jury’s advisory verdict, and after weighing the aggravating circumstances against the mitigating circumstances, the trial court found that the aggravating circumstances outweighed the mitigating circumstances. Accordingly, the trial court sentenced Sale to death.

Sale was convicted of murder made capital because it occurred during the course of a kidnapping, a violation of § 13A-5-40(a)(1), Ala.Code 1975. He abused his wife, Lynn, and kept her sequestered for about a month, causing her physical condition to deteriorate so completely that she was near death when she was taken to the hospital on May 3, 2004. When she was admitted to the hospital, Lynn was in renal failure and respiratory failure. She died at the hospital about two weeks later, on May 17.

Evidence showed that as a combination of injuries Lynn received from Sale and the filthy conditions in which he kept her, Lynn developed the blood infection sepsis, which, in turn, caused her to develop gangrene in her extremities and her nose. As her condition deteriorated, Sale continued to administer beatings, as evidenced by the fresh bruises, cuts, bite marks and the broken rib Lynn had when she was brought to the hospital. Medical tests showed that, in addition to the beatings Sale had inflicted on Lynn while Sale was holding her captive, she had suffered strokes and a heart attack.

Despite Lynn’s poor condition, Sale did not seek medical help for her until it was apparent she would not live. Rather than help Lynn, Sale instructed his son to keep a diary of her deteriorating condition. Sale’s brutal treatment of Lynn was meant to punish her because she had had him prosecuted for abuse in the past and, while he was incarcerated, Sales had lost money and his flooring business had taken a downturn.

The record does not reflect that the sentence of death was imposed as the result of the influence of passion, prejudice, or any other arbitrary factor. See § 13A-5-53(b)(l), Ala.Code 1975. Furthermore, after weighing independently the aggravating circumstances and the mitigating circumstances, this Court finds that the aggravating circumstances outweigh the mitigating circumstance, and we are convinced that death was the appropriate punishment in this case.

As required by § 13A-5-53(b)(3), Ala. Code 1975, we must determine whether Sale’s sentence was disproportionate or excessive when compared to the penalty imposed in similar cases. Sale committed the murder of his wife during the course of a kidnapping. His sentence was not disproportionate or excessive when compared to penalties imposed in similar cases. See Lewis v. State, [Ms. CR-03-0480, November 2, 2007] — So.3d —, — (Ala.Crim.App.2007); Eatmon v. State, 992 So.2d 64 (Ala.Crim.App.2007); Flowers v. State, 922 So.2d 938 (Ala.Crim.App.2005); Eggers v. State, 914 So.2d 883 (Ala.Crim.App.2004); Ziegler v. State, 886 So.2d 127 (Ala.Crim.App.2003); Smith v. State, 838 So.2d 413 (Ala.Crim.App.2002); Ex parte Broadnax, 825 So.2d 233 (Ala.2001); Ex parte Grayson, 824 So.2d 844 (Ala.2001); Smith v. State, 797 So.2d 503 (Ala.Crim.App.2000); and Ingram v. State, 779 So.2d 1225 (Ala.Crim.App.1999).

For the reasons set forth above, Sale’s conviction and sentence of death by lethal injection are affirmed.

AFFIRMED.

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

SHAW, J., concurs in the result.


source: Caselaw Access Project

author: LYONS, Justice. COBB, Chief Justice

license: Public Domain

text:
    Ex parte Michael SALE. (In re Michael Sale v. State of Alabama).
    1071283.
    Supreme Court of Alabama.
    Oct. 31, 2008.
    Bryan A. Stevenson, Randall S. Suss-kind, and Robert A. Singagliese, Equal Justice Initiative, Montgomery, for petitioner.
   LYONS, Justice.

WRIT DENIED. NO OPINION.

SEE, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

COBB, C.J., and MURDOCK, J., dissent.

COBB, Chief Justice

(dissenting).

I respectfully dissent from the denial of this petition for a writ of certiorari. I believe that the petition is procedurally sufficient, particularly in the context of a death-penalty case reviewed under the plain-error standard, to assert grounds for review as to two issues. First, I believe that this Court should grant Sale’s petition to further examine the issue whether Sale was denied a fair trial and the protections afforded by Ala.Code 1975, § ISA-5-54, when the trial court failed to stop the proceedings for a day when Sale’s lead counsel — the only fully experienced counsel available to Sale — was ill and unable to attend court. Second, I believe that the Court should grant Sale’s petition in order to examine whether the trial court violated Rule 16.2(d), Ala. R.Crim. P., in ordering the forensic psychologist who had been appointed to assist the defense in trial preparation and to be a witness at trial to surrender his interview notes to the prosecution, and, if so, whether that error rose to the level of plain error.

      . See Rule 39(a)(2)(D), Ala. R.App. P.


author: SHAW, Judge.

text:
    STATE of Alabama v. Reco Jermaine MORRELL.
    CR-06-2258.
    Court of Criminal Appeals of Alabama.
    Oct. 31, 2008.

      Troy King, atty. gen., and Michael G. Dean, asst. atty. gen., for appellant.
    Tiffany Bullard McCord, Montgomery, for appellee.
   SHAW, Judge.

The State of Alabama appeals the trial court’s order granting Reco Jermaine Morrell’s motion to suppress cocaine that was found on his person during a patdown. See Rule 15.7, Ala.R.Crim.P.

The record reflects that in February 2007 Morrell was indicted by a Montgomery County grand jury for one count of possession of a controlled substance, a violation of § 13A-12-212(a)(l), Ala.Code 1975. Morrell filed a motion to suppress evidence of the cocaine on June 7, 2007. The case was scheduled to be tried on June 26, 2007. On June 25, 2007, the State filed a motion for a continuance. In that motion, the State alleged that the case was set for a suppression hearing and a trial the following day and that the State had just become aware that the arresting officer was unavailable to testify because he was on military duty out of state. The State further alleged that the officer had indicated that he would be available to testify in August 2007. On June 26, 2007, the parties appeared before the trial court, which noted that the case had been scheduled for trial on that day and that the State had filed a motion for a continuance. The State argued that the officer who had conducted the patdown search, which was at issue in Morrell’s motion to suppress, was unavailable to testify until August 2007. The’ trial court granted the State’s continuance and reset the case for trial on August 20, 2007. The trial court set a status conference for August 9, 2007.

The trial court entered what appears to be a form order setting the August status conference and trial date. (Supp. 10.) The order also stated that “[a]ny Motion to Suppress shall be filed on or before Thursday, August 9, 2007. Said motion shall cite legal authority and justify the need for an evidentiary hearing.” (Supp. 10; emphasis in original.) The record contains no transcript of any subsequent proceedings in this case, and the court reporter filed a letter with the trial court on January 15, 2008, stating that she did not report any proceedings in this case on August 9, 2007. (Supp. 18.) Therefore, the record contains no argument presented by the parties or any discussion with the trial court that might have occurred at the August 9, 2007, status conference. On August 10, 2007, the trial court entered the following order:

“THIS MATTER comes before the Court on the Defendant’s, Reco Mor-rell’s], Motion to Suppress. Based upon the State’s failure to present any evidence as to why the Defendant’s Motion to Suppress should not be granted and after a continuance in order for the State to locate its witnesses, the Court hereby grants the Defendant’s Motion to Suppress and the charges against the Defendant are hereby DISMISSED. The Defendant is to be immediately released from the custody of the Montgomery County Sheriffs Office.”

(C. 31.)

On appeal, the State argues that the trial court erred in granting Morrell’s motion to suppress because, it says, the court did not give the State notice that Morrell’s motion to suppress would be considered at the August 9, 2007, status conference. As a result of the lack of notice, the State argues, it was not prepared to go forward with a hearing on the motion to suppress and was effectively denied the opportunity to present evidence in opposition to the motion. The State further argues that because the trial court did not schedule a separate hearing on the motion to suppress before the August 20, 2007, trial, it was reasonable to assume that the trial court would have, consistent with its earlier practice, held the suppression hearing on the day of trial. The State contends that “the trial court deprived the State of its right to a fair judicial proceeding” and that the order dismissing the case must be reversed so that the State has an opportunity to respond to the motion to suppress. (State’s brief at p. 5.)

“Procedural due process, as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, § 6, of the Alabama Constitution of 1901, broadly speaking, contemplates the rudimentary requirements of fair play, which include a fair and open hearing before a legally constituted court or other authority, with notice and the opportunity to present evidence and argument, representation by counsel, if desired, and information as to the claims of the opposing party, with reasonable opportunity to controvert them. See Pike v. Southern Bell Telephone & Telegraph Co., 263 Ala. 59, 81 So.2d 254 (1955); Vernon v. State, 245 Ala. 633, 18 So.2d 388 (1944). It is generally understood that an opportunity for a hearing before a competent and impartial tribunal upon proper notice is one of the essential elements of due process.”

Ex parte Weeks, 611 So.2d 259, 261 (Ala.1992).

The record before us supports the State’s argument that it did not have notice that the trial court would conduct a hearing on Morrell’s motion to suppress on August 9, 2007, at the status conference. The trial court stated only that a status conference would be held on that date, and further ordered that any motions to suppress had to be filed by that date and had to justify the need for an evidentiary hearing. The State would have been entitled to respond to a motion to suppress if Mor-rell had filed a motion on that date, and it could not have been expected to respond to the motion and present evidence in opposition to the motion on the same day a motion was filed. Moreover, as the State argues, the trial court had initially intended to hold a hearing on Morrell’s motion to suppress on the day trial had been scheduled, June 26, 2007, but the court granted the State’s motion to continue and reset the case for trial. We agree with the State that, based on the trial court’s previous scheduling of the motion to suppress on the day of trial and because the trial court did not set another hearing date for the motion, it was reasonable for the State to believe, absent any contrary statement by the trial court, that a hearing on Mor-rell’s motion to suppress would not be conducted at the status conference but would be conducted on the rescheduled trial date, August 20, 2007. Thus, the State did not receive proper notice of the suppression hearing, and it was not afforded a reasonable opportunity to present evidence and argument on the motion. See, e.g., Ex parte Weeks, 611 So.2d at 261.

“[J]ustice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.” Snyder v. Massachusetts, 291 U.S. 97, 122, 54 S.Ct. 330, 78 L.Ed. 674 (1934), overruled in part on other grounds, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). The balance of justice was not kept true in this case because the State was denied proper notice of the hearing on the motion to suppress. The trial court erred when it granted Morrell’s motion to suppress and dismissed the case against him based on the State’s failure to present evidence at a hearing on a motion to suppress when the State had not been notified that the motion would be the subject of the hearing. Therefore, the trial court’s order granting the motion to suppress and dismissing the case against Morrell is reversed and this cause remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . The State filed a motion to supplement the record, which the trial court granted. Citations to the supplemental record filed with this Court will be designated “(Supp.)” and will be followed by relevant page numbers of that record.


author: PER CURIAM.

text:
    STATE of Alabama v. Chantnell Denis ROBERTSON.
    CR-06-2037.
    Court of Criminal Appeals of Alabama.
    Oct. 31, 2008.
    Troy King, atty. gen., and Cecil G. Bren-dle, Jr., asst. atty. gen., for appellant.
    Angela Colette Starr, Montgomery, for appellee.
   PER CURIAM.

The State of Alabama appeals the circuit court’s dismissal of two counts of a four-count indictment. See Rule 15.7, Ala. R.Crim.P. Chantnell Denis Robertson was indicted for resisting arrest, a violation of § 13A-10-41, Ala.Code 1975; disorderly conduct, a violation of § 13A-11-7, Ala.Code 1975; criminal mischief in the second degree, a violation of § 13A-7-22, Ala.Code 1975; and harassment, a violation of § 13A-ll-8(a), Ala.Code 1975. On August 9, 2007, the circuit court entertained Robertson’s guilty pleas to all four charges. During the plea colloquy the court found that there was no factual basis for the resisting-arrest and disorderly-conduct charges and refused to accept Robertson’s plea to those two counts of the indictment. The court then accepted Robertson’s guilty pleas to the criminal-mischief and harassment charges and dismissed the other two charges. The State appeals the court’s dismissal of two counts of the four-count indictment that was returned against Robertson.

The circuit court specifically found that there was no factual basis for accepting Robertson’s pleas to the resisting-arrest and disorderly-conduct charges. The court’s ruling was based on the sufficiency of the evidence to support the charges.

Rule 13.5(c)(1), Ala.R.Crim.P., lists the grounds that will support a pretrial motion to dismiss counts of an indictment:

“A motion to dismiss the indictment may be based upon objections to the venire, the lack of legal qualifications of an individual grand juror, the legal insufficiency of the indictment, or the failure of the indictment to charge an offense.”

In State v. Foster, 935 So.2d 1216 (Ala.Crim.App.2005), we stated:

“Rule 13.5(c)(1) does not provide for the dismissal of an indictment based on the insufficiency of the evidence or, as in this case, a possible lack of evidence. See State v. Edwards, 590 So.2d 379 (Ala.Crim.App.1991) (establishment of the corpus delicti requires proof of facts by the State so entwined with the merits of the case that a decision as to whether it had been proved should not be made before trial but should be postponed until trial); State v. McClain, 911 So.2d 54 (Ala.Crim.App.2005) (trial court cannot dismiss the indictment based on a lack of evidence).”

935 So.2d at 1216-17. See State v. Anderson, 8 So.3d 1033 (Ala.Crim.App.2008). See also United States v. Sharpe, 438 F.3d 1257, 1263 (11th Cir.2006) (“It is well-settled that ‘a court may not dismiss an indictment ... on a determination of facts that should have been developed at trial.’ United States v. Torkington, 812 F.2d 1347, 1354 (11th Cir.1987).”); United States v. Ferro, 252 F.3d 964, 968 (8th Cir.2001) (“[S]o long as the indictment contains a facially sufficient allegation of materiality, federal criminal procedure does not ‘provide for a pre-trial determination of sufficiency of the evidence.’ United States v. Critzer, 951 F.2d 306, 307-08 (11th Cir.1992).”); United States v. Alfonso, 143 F.3d 772, 777 (2d Cir.1998) (“The sufficiency of the evidence is not appropriately addressed on a pretrial motion to dismiss an indictment.”).

Instead of dismissing the charges, the court should have refused to accept Robertson’s pleas to the counts it found had no factual basis and then allowed the district attorney to determine his next course of action. By dismissing the charges the circuit court usurped the authority granted exclusively to the district attorney. See Anderson, supra.

Accordingly, the circuit court’s ruling dismissing the resisting-arrest and disorderly-conduct charges is reversed, and the court is directed to reinstate those counts of Robertson’s indictment.

REVERSED AND REMANDED.

BASCHAB, P.J., and McMILLAN, SHAW, WISE, and WELCH, JJ., concur.


author: MONACO, J.

text:
    Anthony LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-841.
    District Court of Appeal of Florida, Fifth District.
    Jan. 30, 2009.
    Rehearing Denied May 8, 2009.
    James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appel-lee.
   MONACO, J.

The appellant, Anthony Lewis, appeals separate judgments and sentences of the trial court sending him to prison after concluding that he violated probation and community control. The sole issue for our consideration is whether Mr. Lewis violated his community control and probation by possessing a 10 inch knife and pornographic DVDs, and in failing to keep his probation officer apprised of his employment status. We affirm the determination of the trial court to the effect that the appellant violated his probationary and community control placements.

In order to prove exclusive constructive possession, the State must prove both that the accused had dominion and control over the contraband and that he or she had knowledge that the contraband was in his or her presence. Where the premises on which the contraband is found is not in the exclusive possession of an accused, knowledge of the presence of the contraband on the premises and the ability of the accused to maintain control over it may not be inferred, and must be established by independent proof. Thus, the mere proximity to contraband is not sufficient to establish exclusive constructive possession. See J.J.N. v. State, 877 So.2d 806 (Fla. 5th DCA 2004). See also K.A.K v. State, 885 So.2d 405, 406 (Fla. 2d DCA 2004); Diaz v. State, 884 So.2d 387, 388 (Fla. 2d DCA 2004); State v. Bell, 882 So.2d 468, 470 (Fla. 5th DCA 2004); Lindsey v. State, 793 So.2d 1165, 1166 (Fla. 1st DCA 2001). Moreover, where possession of the contraband is joint, the State must present additional evidence to support the inference of knowledge and the ability to control. See Brown v. State, 428 So.2d 250, 252 (Fla.), cert. denied, 463 U.S. 1209, 103 S.Ct. 3541, 77 L.Ed.2d 1391 (1983); Frank v. State, 199 So.2d 117,120 (Fla. 1st DCA 1967). See also Lopez v. State, 711 So.2d 563 (Fla. 2d DCA 1997); Torres v. State, 520 So.2d 78 (Fla. 3d DCA 1988). We, therefore, agree with Mr. Lewis that the State failed to prove that he had dominion and control over the contraband found in a room in which he slept on some occasions, or that he had knowledge that the contraband was in his presence.

On the other hand, we disagree with his position regarding the other charged violation of probation. We conclude in this regard that the trial court did not abuse its discretion in determining that Mr. Lewis violated his probation by failing to abide by the explicit directions of his probation officer to keep her advised of his employment status. Mr. Lewis admitted as much in his testimony. This violation alone, while technical in nature, is sufficient to authorize a revocation of probation, and was in this case fully supported by the facts. See Aaron v. State, 400 So.2d 1033 (Fla. 3d DCA), review denied, 408 So.2d 1095 (Fla.1981) (discharge by employers may afford justification for not maintaining employment but does not justify failure to notify probation officer). Moreover, a fair reading of the testimony presented at the revocation hearing indicates that the trial court would have revoked Mr. Lewis’s probation for either of the violations listed. Accordingly, we affirm the judgments revoking probation as well as Mr. Lewis’s community control sentences. See Simmons v. State, 913 So.2d 19, 24 (Fla. 2d DCA 2005).

We note, however, that the written orders of revocation fail to specify the conditions that Mr. Lewis violated. Thus, while the judgments and sentences on appeal are affirmed, we remand to the trial court for correction of the written orders concerning revocation of probation in order for them to reflect the specific conditions violated. See Payne v. State, 920 So.2d 742 (Fla. 5th DCA 2006).

AFFIRMED and REMANDED with INSTRUCTIONS.

GRIFFIN and COHEN, JJ., concur.


author: SAWAYA, J.

text:
    J.H., Appellant, v. K.D.M. and E.N.M., Appellees.
    No. 5D07-3688.
    District Court of Appeal of Florida, Fifth District.
    Feb. 3, 2009.
    Edward P. Jordan, II, of Edward P. Jordan, II, P.A., Minneola, for Appellant.
    Patricia L. Strowbridge, of Patricia L. Strowbridge, P.A., Orlando, for Appellees.
   SAWAYA, J.

The issue we address is whether a putative father, who properly registers pursuant to section 63.054, Florida Statutes (2004), but fails to subsequently update his registration after he changed residences, necessarily waives the consent requirement of section 63.062(1), Florida Statutes (2004), and his right to notice of adoption and termination of parental rights proceedings when the petitioner has actual or constructive knowledge of the whereabouts of the putative father. We answer in the negative and reverse the final judgment, which terminates the parental rights of J.H., the putative father of A.N.M., and grants the petition for adoption filed by the child’s maternal grandparents, K.D.M. and E.N.M.

The mother, T.B., and J.H. were involved in an intimate romantic relationship beginning in July 2002 and ending sometime in January 2004. After J.H. learned that the mother was with child, he registered as a putative father on July 29, 2004, pursuant to section 63.054. In completing the putative father registry, J.H. provided all of the required information, including his full name and physical description, the mother’s full name and physical description, and the believed date of conception. J.H. listed his address and wrote his cell phone number in the space provided for an alternate mailing address. He subsequently moved but did not update his registration with a new address.

On August 25, 2004, the mother gave birth to A.N.M. Approximately five days later, the maternal grandmother and step-grandfather filed a petition to adopt the child that contained a request that the biological parents’ rights to the child be terminated. The mother consented to the adoption and to the termination of her parental rights, and in her affidavit in support of required inquiry, diligent search, and abandonment, she averred that the biological father of the child was unknown. The grandparents filed a notice of putative father registry claim in September 2004 that reflected that J.H. had previously registered. In October 2004, an affidavit of non-service as to J.H. was filed in the adoption case, and on November 2, 2004, the grandparents filed a certificate of updated diligent search of the putative father registry. The information in J.H.’s putative father registration, which was attached to the certificate, had not been updated to reflect a new address. Although J.H. did not update his registry address, he did file a petition to determine paternity on October 28, 2004, in a separate proceeding.

Nevertheless, on December 15, 2004, the trial judge entered a final judgment granting the grandparents’ petition for adoption and terminating the mother and putative father’s parental rights, ruling that although service of the petition for adoption on J.H. was attempted at the address provided by J.H. in his putative father registration, service was not accomplished because J.H. had relocated his address without updating the address on his registration. No mention was made in the ruling of the fact that J.H. had listed a telephone number in the space provided for an alternate address. Instead, the trial judge emphasized that “[pjursuant to Florida Statute 63.054(6), it is the responsibility of the Registrant to update his address with the Florida Putative Registry, and failure to do so is at his own risk.”

A flurry of motions were filed in the adoption and paternity actions by J.H., the mother, and the grandparents. It is not necessary to list them all here. Suffice it to say that on August 31, 2006, J.H. properly filed a petition for habeas corpus in an independent action that was assigned to a different trial judge. In that petition, he asserted that he was not given proper notice of the adoption and termination proceedings and he requested a belated appeal of the December 15, 2004, order granting the adoption and terminating his parental rights. An evidentiary hearing was held on the petition. After hearing all of the testimony and considering all of the evidence presented, the trial court granted the petition in an order dated October 9, 2007, which included extensive findings of fact that clearly reveal that the grandparents and the mother had actual or constructive knowledge of the whereabouts of J.H. In that order, the trial court concluded:

Although [J.H.] failed to update the Florida Putative Father Registry with his new address, the Court finds that his lack of notice of the December 15, 2004, order terminating his parental rights is a valid defense because the [maternal grandparents, K.D.M. and E.N.M.,] had constructive knowledge of his address and whereabouts from another source. Specifically, the [grandparents] had actual or constructive knowledge of [J.H.’s] address and whereabouts through [K.D.M.’s] direct communications with [J.H.] during the time of the adoption and termination of parental rights proceeding. In addition, [T.B.] told [K.D.M.] that [J.H.] could be the father of the minor child. [T.B.] knew [J.H.’s] mother was building a new house and had been to the construction site.

The finding in the last sentence is of significance because the trial court in the habeas proceedings found that on October 2, 2004, J.H. moved from the address listed in his putative father registration to the new house to live with his mother.

This court subsequently affirmed the October 9, 2007, order in K.D.M. v. J.H., 985 So.2d 548 (Fla. 5th DCA 2008). Thus, this is a belated direct appeal of the trial court’s December 15, 2004, order terminating the parental rights of J.H. and granting the maternal grandparents’ petition for adoption. J.H. contends that the final judgment terminating his parental rights and granting the grandparents’ petition for adoption must be reversed because he was not notified of the proceedings, and he did not consent to the termination or adoption.

Section 68.054, Florida Statutes, establishes the Florida Putative Father Registry (hereinafter “Registry”) and requires an unmarried biological father to timely file a claim of paternity with the Registry in order to preserve the right to notice and consent to an adoption. See § 63.054, Fla. Stat. (2004); see also Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 196 (Fla.2007). Section 63.062 contains additional requirements the putative father must meet in order to preserve the necessity of his consent to the adoption. Section 63.062 applies where, as in the instant case, grounds for termination of parental rights have not been established. If the putative father complies with section 63.062, “a petition to terminate parental rights pending adoption may be granted only if written consent has been executed as provided in s. 63.082 after the birth of the minor or notice has been served under s. 63.088.... ” § 63.062(1), Fla. Stat. (2004).

In order to preserve the necessity of his consent, J.H. was required to comply with section 63.062(2)(b), which provides:

With regard to a child who is younger than 6 months of age at the time the child is placed with the adoptive parents, an unmarried biological father must have demonstrated a full commitment to his parental responsibility by having performed all of the following acts prior to the time the mother executes her consent for adoption:
1. Filed a notarized claim of paternity form with the Florida Putative Father Registry within the Office of Vital Statistics of the Department of Health, which form shall be maintained in the confidential registry established for that purpose and shall be considered filed when the notice is entered in the registry of notices from unmarried biological fathers.
2. Upon service of a notice of an intended adoption plan or a petition for termination of parental rights pending adoption, executed and filed an affidavit in that proceeding stating that he is personally fully able and 'willing to take responsibility for the child, setting forth his plans for care of the child, and agreeing to a court order of child support and a contribution to the payment of living and medical expenses incurred for the mother’s pregnancy and the child’s birth in accordance with his ability to pay.
3. If he had knowledge of the pregnancy, paid a fair and reasonable amount of the expenses incurred in connection with the mother’s pregnancy and the child’s birth, in accordance with his financial ability and when not prevented from doing so by the birth mother or person or authorized agency having lawful custody of the child.

§ 63.062(2)(b), Fla. Stat. (2004).

Significantly, section 63.062(6) provides that the party petitioning for adoption “must make good faith and diligent efforts as provided under s. 63.088 to notify, and obtain written consent from, the persons required to consent to adoption under this section.” § 63.062(6), Fla. Stat. (2004). Similarly, section 63.054(13) states:

The filing of a claim of paternity with the Florida Putative Father Registry does not excuse or waive the obligation of a petitioner to comply with the requirements for conducting a diligent search and inquiry with respect to the identity of an unmarried biological father or legal father which are set forth in this chapter.

§ 63.054(13), Fla. Stat. (2004).

It is undisputed that J.H. timely filed his claim of paternity with the Registry in July 2004, prior to the child’s birth in August 2004. The trial court in the adoption and termination proceedings did not consider whether J.H. was in compliance with section 63.062(2)(b) because he determined that J.H.’s failure to update his address with the Registry conclusively established that he was not entitled to notice and that his consent was not necessary. Apparently for the same reason, the trial court also did not consider whether the grandparents had made a diligent search for J.H. in accordance with section 63.054(13) or whether they had made good faith and diligent efforts to obtain written consent from J.H. pursuant to section 63.062(6). This was error.

Although the trial court correctly observed that section 63.054(6) requires the putative father “to notify and update the Office of Vital Statistics of any change of address” and that the failure “to report any such change is at the registrant’s own risk and shall not serve as a valid defense based upon lack of notice,” the provision concludes with an exception that the court did not consider. § 63.054(6), Fla. Stat. (2004). Specifically, section 63.054(6) states that the failure of a putative father to update his address “shall not serve as a valid defense based upon lack of notice, unless the person petitioning for termination of parental rights or adoption has actual or constructive notice of the registrant’s address and whereabouts from another source.” Id. (emphasis added). Therefore, the trial judge in the adoption and termination proceedings erroneously concluded that notice and consent were not required based solely on J.H.’s failure to update his Registry address when the grandparents had actual or constructive notice of J.H.’s new address and whereabouts and failed to make a good faith, diligent effort to notify J.H. of the proceedings or obtain his consent to the adoption or the termination of his parental rights.

The conclusion we reach is supported by the relevant case law. In M.C. v. A.H., 745 So.2d 396 (Fla. 4th DCA 1999), review denied, 760 So.2d 945 (Fla.2000), for example, the court held that “[pjarties petitioning for adoption must reasonably employ the knowledge available to them so that, if possible, a parent whose consent is necessary will have actual notice of the suit.” Id. at 397. There, the court reversed a final order denying relief from a final judgment of adoption where the record conclusively demonstrated that the parties petitioning for adoption did not exercise due diligence in attempting service of process on the child’s natural father. See also Dep’t of Children & Families v. J.J.E., 953 So.2d 659 (Fla. 5th DCA 2007); J.M. v. Dep’t of Children & Families, 938 So.2d 620 (Fla. 5th DCA 2006) (reversing denial of motion to set aside default judgment terminating mother’s parental rights and remanding for further proceedings where constructive service of process was improper due to Department’s failure to conduct a diligent search in an effort to effect actual service); M.E. v. N.P.S., 804 So.2d 548 (Fla. 2d DCA 2002) (holding that trial court lacked authority to enter judgment of adoption because service of process by publication was improper where the underlying facts did not show due diligence was used in attempting personal service).

Accordingly, we vacate the final judgment granting the adoption and terminating the parental rights of J.H. and remand for further proceedings.

REVERSED and REMANDED.

PALMER, C.J. and ORFINGER, J., concur.

      . Other issues were raised, which include whether the statute of repose applies and whether J.H. was required to show support for the minor child or the birth mother in accordance with sections 63.062(2)(b)2. and 3., Florida Statutes (2004), as a condition precedent to notice of the adoption and termination proceedings when the maternal grandparents and the mother allegedly prevented him from providing support. We do not address these issues because they are matters to be resolved by the trial court on remand.

      . The grounds for termination of parental rights pending adoption are contained in section 63.089(3), Florida Statutes. A trial court’s determination that there are grounds for termination must be made by clear and convincing evidence, supported by written findings of fact. § 63.089(3), Fla. Stat. (2004). Here, the trial court in the adoption and termination proceedings did not determine whether there were grounds for terminating J.H.’s parental rights. Instead, the court determined that J.H.’s failure to update his Registry address conclusively established that he was not entitled to notice and that his consent was not required.


text:
    Michael R. WALTERS, Appellant, v. CLAY ELECTRIC COOPERATIVE, INC., and Liberty Mutual Group, Appellees.
    No. 1D08-4418.
    District Court of Appeal of Florida, First District.
    Feb. 17, 2009.
    Rehearing Denied April 24, 2009.
    Mark N. Tipton of Daniel L. Hightower, P.A., Ocala, for Appellant.
    Tara L. Sa’id of Law Office of Amy L. Warpinski, Jacksonville, for Appellees.
   PER CURIAM.

Claimant appeals the Judge of Compensation Claims’ (JCC) award of attorney’s fees in the amount of $3,815, arguing that the JCC erred in rejecting the parties’ stipulation to an attorney’s fee of $5,000. The Employer/Carrier (E/C) concedes error. Because Claimant did not raise his argument before the JCC, however, this issue was not preserved for review and will not be addressed by this court. See Jellison v. Dixie S. Indus., Inc., 857 So.2d 365, 366 (Fla. 1st DCA 2003); Hamilton v. R.L. Best Int’l, 996 So.2d 233 (Fla. 1st DCA 2008). We reject the E/C’s concession of error. The JCC’s order is AFFIRMED.

WEBSTER, VAN NORTWICK, and THOMAS, JJ., concur.