author: THOMAS, Judge. BRYAN,

text:
    L.R. v. C.G. and M.G. D.E.R. v. C.G. and M.G.
    2100215, 2100216, 2100217, 2100218, 2100219, and 2100220.
    Court of Civil Appeals of Alabama.
    Aug. 12, 2011.

      Amber Yerkey James of James Family Law Firm, P.C., Huntsville, for appellant L.R.
    George W. Miller, Hartselle, for appellant D.E.R.
    Paul R. Holland, Decatur, for appellees.
   THOMAS, Judge.

In 2006, K.H., Ke.R., and Ka.R. (referred to collectively as “the children”) were removed from the custody of L.R. (“the mother”) by the Morgan County Department of Human Resources after the two older children were subjected to sexual abuse at the hands of neighbors with whom the mother had left those children. The children had been in the custody of the mother pursuant to a divorce judgment; D.E.R. (“the father”) was incarcerated at the time the children were removed from the mother’s custody. The children were placed with C.G. (“the maternal grandfather”) and M.G. (“the maternal grandmother”) (sometimes referred to collectively as “the maternal grandparents”) as part of a safety plan in April 2006; at that time, the mother came to live with the maternal grandparents in Decatur.

The maternal grandparents ordered the mother to leave their home at some point after the maternal grandmother discovered the mother using drugs in the home. The maternal grandparents were awarded permanent legal and physical custody of the children in June 2008. Although that custody judgment does not appear in the record, the parties agree that it awarded the mother visitation and ordered the mother to pay $75 per month in child support; it apparently did not address any rights or responsibilities of the father.

In June 2010, the maternal grandparents filed a petition seeking to terminate the parental rights of the mother and the father to the children. In their petition, the maternal grandparents alleged that the mother and the father had abandoned the children, that the mother had exercised only limited visitation in the months before the filing of the petition, that the mother and the father had left the children without necessary care, that the mother and the father had not improved their circumstances in order to be able to adequately care for the children, and that the father was presently incarcerated. After a trial on September 23, 2010, the juvenile court entered judgments on November 18, 2010, terminating the parental rights of the mother and the father to each of the three children. ’ Both the mother and the father appeal from those judgments. We have consolidated the appeals.

“A juvenile court is required to apply a two-pronged test in determining whether to terminate parental rights: (1) clear and convincing evidence must support a finding that the child is dependent; and (2) the court must properly consider and reject all viable alternatives to a termination of parental rights. Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990).”

B.M. v. State, 895 So.2d 319, 331 (Ala.Civ.App.2004). A juvenile court’s judgment terminating parental rights must be supported by clear and convincing evidence. Bowman v. State Dep’t of Human Res., 534 So.2d 304, 305 (Ala.Civ.App.1988). “Clear and convincing evidence” is “ ‘[e]vi-dence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.’ ”, L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002) (quoting Ala.Code 1975, § 6-11-20(b)(4)). The juvenile court’s factual findings in a judgment terminating parental rights based on evidence presented ore tenus are presumed correct. R.B. v. State Dep’t of Human Res., 669 So.2d 187 (Ala.Civ.App.1995). Furthermore, when the juvenile court has not made specific factual findings in support of its judgment, we must presume that the juvenile court made those findings necessary to support its judgment, provided that those findings are supported by the evidence. D.M. v. Walker Cnty. Dep’t of Human Res., 919 So.2d 1197, 1210 (Ala.Civ.App.2005).

The termination of parental rights is governed by Ala.Code 1975, § 12-15-319. That statute provides, in part:

“(a) If the juvenile court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents renders them unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child and to terminate the parental rights, the juvenile court shall consider the following factors including, but not limited to, the following:
“(2) Emotional illness, mental illness, or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of a duration or nature as to render the parent unable to care for needs of the child.
“(4) Conviction of and imprisonment for a felony.
“(7) That reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parents have failed.
“(9) Failure by the parents to provide for the material needs of the child or to pay a reasonable portion of support of the child, where the parent is able to do so.
“(12) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review.”

§ 12-15-319(a).

The mother was incarcerated in 2008, after she was charged with manufacturing a controlled substance. She pleaded guilty to the charge and was sentenced to a 10-year period of incarceration, which was suspended, and 3 years of probation. The mother had remained in jail while her criminal case was pending, and she was released from incarceration on October 29, 2009. After her release from incarceration, the mother said, the mother and her fíancé, C.M., lived with his family for a short time and then began renting a mobile home in Falkville where they have lived since December 2009. The mother, who was 41 at the time of trial, testified that C.M., who was 52 at the time of trial, is disabled and had criminal charges pending against him at that time. Although the mother was not aware of the exact character of C.M.’s criminal charges, she said that she thought that C.M.’s criminal charges related to drug offenses and noted that he had been to court on the charges and was currently required to take drug screens. She also testified that C.M. was a good man and that his grandchildren visited “all the time.” She further testified that he loved the children. The mother testified that she became employed at Huddle House in December 2009 and that she was still working there full time at the time of trial.

The mother testified that she has been in contact with the children regularly since her release from prison, and she testified that, since April 2010, she had spoken to the children every day by telephone. She admitted that she did not manage to visit the children every week, but she said that she did visit them about every other week; she said that her work schedule and the distance between Falkville and Decatur sometimes interfered with her ability to visit the children as often as she would like. The mother testified that she had paid the maternal grandparents $93 in February 2010 and $80 in March 2010; however, she admitted that she had paid no other child support since the entry of the 2008 judgment. The mother admitted that she was unable to take custody of the children at the time of the trial; she said that she would need a few months, and perhaps as many as six, before she would be in a position to provide for the children.

The father testified that in 2008 he had been incarcerated for 19 months on 2 drug-manufacturing charges. He said that he had been “clean” for two and a half years. He also said that he had taken and passed four or five drug screens since his release from incarceration in July 2010. The father confirmed that he would be released from “community corrections,” a form of probation, in July 2012.

The father said that he had been placed on work release in May 2010, after which, he said, he had exercised the opportunity to make telephone calls to the children every week. He said that he had continued weekly telephone visitations, in accordance with the maternal grandmother’s restrictions, since that time. According to the father, he spoke with all three children during telephone visitation. Since his release from incarceration in July 2010, said the father, he had visited the children three times in the home of the maternal grandparents. In addition, however, he said that he had attended a few football games at which the oldest child cheered, some school events, and some gymnastics events; he said that he was permitted by the maternal grandparents to visit with the children at those events.

The father testified that he had been injured in a work-related accident and that he had had back surgery in 2006. He testified that his doctors had told him that he was unable to work. He said that he thought that there was something he could do despite his work-related back injury; at the time of trial, he was pursuing a work rehabilitation or retraining program at Calhoun State Community College. In addition, the father testified that he was participating in a program called the Fatherhood Program or the Parenthood Program to help him learn to be a better father.

The father admitted that he had not paid the maternal grandparents any child support. He said that he had not been ordered to pay child support in the 2008 judgment. In addition, the father said, he had not been employed since 2006 and had been in prison for 19 months. The father said that he had received a $10,000 settlement as a result of his workers’ compensation claim; he said that he had used the money to pay bills that he had incurred after his work-related accident and to find a place to live. He stated that he had offered money to the maternal grandmother in the past but that she had told him the children had everything they needed.

The father testified that he would be able to take the children home and provide for them because his fiancée, J.D., earned sufficient income, i.e., $11 per hour, to provide for the children, even though she has two children of her own for whom she must provide. J.D. testified that she and the father had been engaged for four years and that he had lived with her for those four years when he was not incarcerated. She testified that the home in which she lives with the father and her own two children, a three-bedroom home, is sufficiently large to provide space for three more children. J.D., who testified that she was divorced, said that she had always had custody of her children. According to J.D., she paid all the bills with her employment earnings; the father had never been employed during the time she had known him.

The maternal grandmother testified that neither parent had paid child support at any time since the children were placed in her care other than when the mother had given her $90 one time. The maternal grandmother said that both the mother and the father had telephoned the children on a weekly basis; she testified that she had specifically told the father not to call more than once per week. According to the maternal grandmother, she did not allow the children to telephone either parent, despite the oldest child’s request that she be permitted to do so. Although both the parents had visited, explained the maternal grandmother, the father had done so only twice since his July 2010 release from incarceration and the mother’s visits were irregular.

According to the maternal grandmother, the mother had begun visiting with the children after her release from incarceration in late 2009; however, the maternal grandmother explained that the mother had “no clock timing” and that she would periodically call to set up a visit and that, sometimes, she would not show up for the visit she had arranged. The mother’s visits, said the maternal grandmother, lasted anywhere from 10-15 minutes to an hour. The mother had, however, spent the night at the maternal grandmother’s home the week before the trial when the maternal grandmother had had surgery; the mother had assisted the maternal grandfather with getting the children ready for and to school the next morning.

The maternal grandmother said she had allowed the mother to take the children on an overnight visit to the mother’s home on one occasion. The maternal grandmother said that the mother had given the maternal grandmother telephone numbers to reach the mother but that, when she had tried to contact the mother to check on the children that evening, no one answered. The maternal grandmother said that she had been very concerned about the children’s well-being all night and that she had tried again to contact the mother in the morning, to no avail. The maternal grandmother said that she did not know where the mother lived. According to the maternal grandmother, one of the children had contacted her to inform her that they were returning home, and the children were returned home safely from that visit. The mother testified, however, that the maternal grandmother had her address. She also testified that she had been unaware that the maternal grandmother had telephoned to check on the children; she said that she and the children had gone on walks in the woods near her home during the visit.

When questioned about why she wanted to terminate the parental rights of the mother and the father, the maternal grandmother testified that she did not want either parent to be able to get custody of the children. She explained that she knew that she had custody and that the children would remain in her custody until either the mother or the father proved to a court that he or she could take care of the children and convinced that court to return the children to his or her custody. The maternal grandmother also admitted that the 2008 judgment permitted her to exclude the mother and the father from the children’s lives if she thought it was necessary. The maternal grandmother said that she was also planning ahead for a time after which, she said, she would not be able to provide insurance for the children unless she had adopted them. The maternal grandmother said that the children had stability in a good environment and that she wanted to adopt the children. Furthermore, the maternal grandmother explained, both parents had been involved in drugs, which, the maternal grandmother said, concerned her because of the possibility that the parents would resume their drug use. She said that she might be more confident of their sobriety had they each been “clean” for five years instead of only two. The maternal grandmother said that she would possibly let the parents visit the children again at some later date after the termination of their parental rights.

The maternal grandmother admitted that the mother had changed and had been trying to improve her circumstances. According to the maternal grandmother, the mother had not used drugs since being released from incarceration. The maternal grandmother testified that she was very proud of the mother. The maternal grandmother said that she knew the mother loved her children; the maternal grandmother further stated that she wanted the children to love the mother.

When asked what plans she had for the children in the event of death of both maternal grandparents, the maternal grandmother testified that she and the maternal grandfather intended to make a will and set up a trust for the children’s education. She also said that the children’s uncle, who has no children of his own, would possibly be made the children’s guardian. According to the maternal grandmother, she would make sure that the children received an education and that they would stay “on the right track.”

The evidence concerning the children established that they are all well adjusted and well cared for by the maternal grandparents. The oldest child is in the seventh grade, is an A-B student taking advanced classes, and is involved in student council and cheerleading at her school. The middle child is also an A-B student in the fourth grade; she is involved in sports. The youngest child, who is a first grader, attends a magnet school and is very bright; the maternal grandmother said that she loves art and that she is learning to play chess. The maternal grandmother testified that she knew it would upset the oldest child if the parents’ rights were terminated and the parents could no longer contact her.

The parents described their visits with the children as good and positive. The mother explained that she loved the children and that they were her life. She said that her overnight visit with the children had gone well; she said that they had gone on walks in the woods near her home and had colored pictures.

According to the father, the two younger children were upset when he was unable to attend a football game because they had been looking forward to seeing him at that game. The father said that he spoke with all three of his children about their schoolwork and their activities when he spoke with them by telephone. He also said that he sometimes corresponded with the oldest child via an online social-networking Web site. Further, the father testified that he had made certain to stress to the oldest child that she was not to correspond with him via the Internet unless the maternal grandmother had expressly approved of the contact; the father said that he respected the maternal grandmother and that he worked within her boundaries while reestablishing his relationship with his children.

On appeal, the mother first argues that the juvenile court failed to reference the specific subparts of Ala.Code 1975, § 12-15 — 319(a), and to recite the facts underlying them, upon which it based its conclusion that the children were dependent and that termination of parental rights was warranted. The mother also argues that the evidence at trial did not support the termination of her parental rights because, she says, there was no egregious situation requiring termination in the present case and the maternal grandparents had not proved that no less drastic alternatives to termination existed. This second argument is premised on the fact that the maternal grandmother testified that the children were already in a stable placement in which they were thriving and on evidence indicating that the mother was improving her circumstances; based upon that evidence, the mother maintains that termination of her parental rights is not warranted at the present time and in the present circumstances. Essentially, the mother’s argument is that, in this situation, the status quo should be maintained. We agree with the mother and find this second argument dispositive of her appeals. Accordingly, we pretermit discussion of her first argument. See Favorite Market Store v. Waldrop, 924 So.2d 719, 723 (Ala.Civ.App.2005) (stating that this court would pretermit discussion of further issues in light of dispositive nature of another issue).

The evidence established that the mother has not been a parent to the children since 2006, when they were removed from her custody after she left two of them in the care of her neighbors, who apparently molested them. Although the mother’s use of drugs led to a 2008 conviction for manufacturing a controlled substance, for which she had spent time in jail awaiting the court’s acceptance of her plea and sentencing, she was fortunate enough to have had her 10-year sentence suspended; the mother was still on probation at the time of trial, and she was compliant with her probation in all respects. She had located and maintained employment and had established what appeared to be a stable residence since her release from incarceration. The mother’s failure to pay child support even after she became employed is troubling; however, in light of the maternal grandmother’s comments indicating that she did not need child support from the parents in order to provide for the children, we cannot see how that failure of the mother, considered together with the positive improvements the mother had made, is sufficient to warrant a termination of the mother’s parental rights in this particular situation.

The mother testified that she was not able, at the time of trial, to provide a home for the children; she said that she was not seeking custody of the children and that the children were well cared for by the maternal grandparents. The mother simply desired that she be allowed to continue to visit with the children and develop her relationship with them as she continued to improve her circumstances, which, she said, would take at least several months. The evidence at trial established that the mother loved the children and that the children loved the mother. In addition, the maternal grandparents were not adverse to the mother’s having a continued relationship with the children.

We realize that we have rejected the argument that maintaining the status quo would be a viable alternative in many cases.

“[W]e note that we have previously rejected [maintenance of the status quo as a viable alternative] when grounds for termination exist and the situation is such that, in the foreseeable future, reunification will not be possible. See KA.P. v. D.P., 11 So.3d 812, 820 (Ala.Civ.App.2008) (rejecting maintenance of the status quo when it appeared that potential reunification would be at least 10 years in the future and commenting that, in order to achieve stability and continuity for children, ‘appellate courts generally hold that maintaining an indefinite custody arrangement with a third party is not in the best interest of the child’); B.J.C. v. D.E., 874 So.2d 1109, 1118 (Ala.Civ.App.2003), overruled on other grounds, F.G. v. State Dep’t of Human Res., 988 So.2d 555 (Ala.Civ.App.2007) (rejecting the father’s argument that ‘maintaining the situation the children had been in for the six years before the termination hearing by leaving them to be raised by family members’ was a viable alternative to termination when the father had failed to consistently support or visit with the children and his situation was unlikely to change in the foreseeable future); A.N.S. v. K.C., 628 So.2d 734, 735 (Ala.Civ.App.1993) (rejecting the maintenance of the status quo as an alternative to termination and noting that the father was expecting to be released from prison in seven years but that ‘[t]he maternal aunt and uncle were willing to adopt the children to give them a feeling of permanency and security’).”

L.T. v. W.L., 47 So.3d 1241, 1249 (Ala.Civ.App.2009). In a case such at this one, where the children have been placed in the permanent custody of a relative, we are not concerned with “an indefinite custody-arrangement with a third party” or a lack of stability for the children. The children are in a stable and loving placement. However, the evidence is clear that the children and the mother have a relationship that both the children and the mother desire to preserve; the maternal grandmother said that the oldest child would be upset if she were told that she could no longer see or speak with her mother. In addition, the maternal grandmother herself testified that she might well let the mother have visitation with the children even after termination of the mother’s parental rights, indicating that she, too, desires to maintain for the children some connection to the mother.

We are especially mindful that the root of the maternal grandparents’ desire for termination in this case appears to be the desire to be able to adopt the children for purposes of providing insurance coverage to them in the future. Although we commend the maternal grandparents for their obvious love for the children and their careful planning for the future, we cannot agree that the parental rights of the mother should be terminated for such a reason. We therefore agree with the mother that maintaining the status quo is a viable alternative to termination of the mother’s parental rights in this particular case. Accordingly, we reverse the juvenile court’s judgments insofar as they terminate the parental rights of the mother.

The father first challenges the judgments terminating his parental rights by arguing, similarly to the mother, that the juvenile court committed reversible error when it failed make “articulable findings of fact necessary to support its judgment[s].” The father also makes a second challenge to the juvenile court’s judgments — that the evidence did not support a termination of parental rights because the only evidence concerning the ability to parent presented to the juvenile court centered on financial ability and the failure to pay child support. As was the case with the mother’s appeal, we find the father’s second argument dispositive, and we will pretermit discussion of his first argument on appeal. See Waldrop, 924 So.2d at 723.

One of the grounds that the juvenile court is to consider when making the difficult decision whether to terminate parental rights is whether the parents have financially supported the children. § 12-15-319(a)(9). The evidence at trial supported the conclusion that the father had not supported the children since 2006 and the conclusion that the father could not currently manage to support the children without assistance from his fiancée, J.D., who earns only $11 per hour and has two children of her own for whom she must provide. The father was unemployed and had yet to be awarded disability benefits based on a work-related injury that his doctors had told him rendered him unable to work; however, he was seeking training for a new trade, stating that he thought he could work at some trade despite his injury. The father may not have supported the children since 2006; however, the record discloses a basis for the father’s failure to support the children — his unemployment due to a debilitating work-related injury and his incarceration.

In addition, the failure of the father to pay support is, alone, insufficient in this particular case to warrant termination of the father’s parental rights. Like the evidence concerning the mother, the evidence concerning the father indicated that, after his release from incarceration, he has made and is continuing to make improvements to his circumstances. He has a stable residence with his fiancée of four years, he has visited with the children by telephone and in person as regularly as permitted and in compliance with the directives of the maternal grandmother, the children enjoy his visits and desire a relationship with the father, and the father loves his children and desires to maintain his relationship with them. Because we have concluded that maintaining the status quo is an appropriate and viable alternative to the termination of the rights of the mother in the present case, we further conclude that the termination of the father’s parental rights was unwarranted in these circumstances. Accordingly, we reverse the juvenile court’s judgments insofar as they terminated the parental rights of the father.

REVERSED AND REMANDED.

PITTMAN and MOORE, JJ., concur.

THOMPSON, P.J., concurs in the result, without writing.

BRYAN, J., concurs in the result, with writing.

BRYAN,

Judge, concurring in the result.

I am troubled by the mother’s failure to support the children, the mother’s failure to maintain contact with the maternal grandmother during time that she exercised overnight visitation with the children, the extended period that the maternal grandparents have been required to care for the children, and the cavalier attitude demonstrated by the mother by her failure to understand the nature and the extent of the drug-related criminal charges pending against her fiancé at the time of the termination-of-parental-rights hearing. Although I do not agree with everything in the main opinion, I agree that the maternal grandparents failed to prove that the parental rights of the mother and the father should be terminated at this time.


source: Caselaw Access Project

author: WINDOM, Judge.

license: Public Domain

text:
    Roderick BYRD v. STATE of Alabama.
    CR-07-0113.
    Court of Criminal Appeals of Alabama.
    May 1, 2009.
    Rehearing Denied June 19, 2009.
    Certiorari Denied Aug. 19, 2011 Alabama Supreme Court 1081250.

      Glennon F. Threatt, Jr., Birmingham, for appellant.
    Troy King, atty. gen., and Thomas Go-van, Jr., asst. atty. gen., for appellee.
   WINDOM, Judge.

Roderick Byrd appeals his four capital-murder convictions and sentences of death. Byrd was convicted of three counts of capital murder for taking the lives of Kim Olney, John Aylesworth, and Dorothy Smith during the course of a robbery. § 13A-5-40(a)(2), Ala.Code 1975. He was also convicted of an additional count of capital murder because two or more people were murdered by one act or pursuant to one scheme or course of conduct. § 13A-5-40(a)(10), Ala.Code 1975. After the penalty phase of Byrd’s trial, the jury recommended, by a vote of 11 to 1, that he be sentenced to death for counts one, two, and four. As to count three, the jury’s vote was 10 to 2 for death. The circuit court then ordered and received a presen-tence report. After holding a sentencing hearing, the circuit court accepted the jury’s recommendations and sentenced Byrd to death on all four counts.

At trial, the State’s evidence tended to show the following. On November 24, 2005, Thanksgiving Day, Brandon Mitchell went to Byrd’s sister, Hellena Byrd’s apartment in Birmingham, Alabama, where Roderick Byrd and Jonathan Floyd also lived. Mitchell woke Byrd and enlisted Byrd’s and Floyd’s aid in his plan to commit a robbery at the Airport Inn (hereinafter “the Inn”). After agreeing to help Mitchell commit the robbery, Byrd returned to his bedroom and put on a black shirt, black pants, and black shoes. Shortly thereafter, Floyd drove Mitchell and Byrd to the Inn in Floyd’s automobile.

According to Byrd’s statement, while they were in the parking lot of the Inn, Mitchell, Floyd, and Byrd discussed the robbery. At some point before entering the Inn, Byrd put on a pair of black gloves to prevent leaving physical evidence of his participation in the crime; however, neither he nor Mitchell, who had previously been employed at the Inn, made any attempt to conceal their facial identities. Thereafter, Mitchell and Byrd entered the Inn — each armed with one pistol — and encountered Kim Olney, the desk clerk, and John Aylesworth, a truck driver, who was waiting in the lobby for a ride to Texas.

Once in the Inn, Mitchell focused his attention on Olney while Byrd used his pistol to subdue Aylesworth, a former Marine. At some point during the robbery, Dorothy Smith, a traveler from New York who was in Alabama visiting family for Thanksgiving, entered the lobby of the Inn to rent a room for the night. After she entered the lobby, Smith, like Olney and Aylesworth, was held at gunpoint. During this time, Mitchell took approximately $300 from a cash drawer that was located behind the clerk’s desk and also tried unsuccessfully to open a safe. Mitchell and Byrd also took various items from the three victims, including a tote bag, a duffel bag, clothes, and money. During these events, Olney, Aylesworth, and Smith were each shot behind the ear at close range with .38 caliber pistols. Olney was also shot in the arm. All three victims died as result of a gunshot wound to the head. Forensic testing of the projectiles recovered from the crime scene and the victims’ bodies established that Olney and Smith were shot with the same .38 caliber pistol and that Aylesworth was shot with a different .38 caliber pistol.

After the robbery, Mitchell and Byrd left the Inn on foot. They traveled around to the back of the Inn and climbed a fence that separated the Inn from a neighborhood. Clifford Davis and James Jackson, who lived in one of the houses behind the Inn, saw two men, carrying various items, climb the fence and enter the neighborhood. Although Davis and Jackson could not make a positive identification, they testified that one of the two men they saw climb the fence was wearing all black, including black shoes. Davis and Jackson testified that after the two men climbed the fence and entered the neighborhood, they went in different directions.

Shortly after Mitchell and Byrd separated, Mitchell telephoned Floyd and asked Floyd to come pick him up. Floyd found Mitchell near First Avenue in Birmingham and drove Mitchell to Fifth Avenue South. Floyd dropped Mitchell off on Fifth Avenue and then drove around looking for Byrd. After unsuccessfully searching for Byrd, Floyd returned to Hellena Byrd’s apartment where he found Byrd crying and shaking. At that point, Byrd made a statement to Floyd indicating that Mitchell shot all three people at the Inn.

Floyd and Byrd remained at the apartment for approximately 30 minutes. Then they, along with Hellena Byrd and Byrd’s girlfriend, Lasundra Mosley, went to Byrd’s grandmother’s house, where they ate Thanksgiving dinner.

At some point after Thanksgiving, Byrd went to Georgia where he was apprehended. While in Georgia at the Henry County jail, Byrd gave a statement to two Birmingham police officers in which he confessed to participating in the robbery, but denied any involvement in the murders.

I.

Byrd first argues that “the trial court erred by denying [his] motion to remove the death penalty from consideration -” (Byrd’s Brief at 30.) Specifically, Byrd contends that he is mentally retarded; therefore, his sentence of death constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution as interpreted in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

In Atkins, the United States Supreme Court held that the execution of mentally retarded capital offenders violates the Eighth Amendment’s prohibition of cruel and unusual punishment. Id. at 321. The Court, however, declined to establish a national standard for determining whether a capital offender is mentally retarded and, instead, left to the states “the task of developing appropriate ways to enforce the constitutional restriction upon their execution of sentences.” Id. at 317.

The Alabama Legislature has not yet established a method for determining whether a capital defendant is mentally retarded and, thus, ineligible for a sentence of death. “However, the Alabama Supreme Court, in Ex parte Perkins, 851 So.2d 453 (Ala.2002), adopted the most liberal definition of mental retardation as defined by those states that have legislation barring the execution of a mentally retarded individual.” Smith v. State, [Ms. CR-97-1258, Jan. 16, 2009]-So.3d-, - (Ala.Crim.App.2009) (opinion on return to fourth remand); see also Smith v. State, [Ms. 1060427, May 25, 2007] So.3d-,-(Ala.2007) (“Until the legislature defines mental retardation for purposes of applying Atkins, this Court is obligated to continue to operate under the criteria set forth in Ex parte Perkins.”). Pursuant to Ex parte Perkins, “to be considered mentally retarded, [a capital defendant] must have significantly subaverage intellectual functioning (an IQ of 70 or below), and significant or substantial deficits in adaptive behavior.” Ex parte Perkins, 851 So.2d at 456; see also Atkins, 536 U.S. at 321 n. 5. Further, “these [two deficits] must have manifested themselves during the developmental period (i.e., before the defendant reached age 18).” Ex parte Perkins, 851 So.2d at 456; Brownlee v. Haley, 306 F.3d 1043, 1073 (11th Cir. 2002) (recognizing that mental retardation generally requires a showing of an IQ of 70 or below, significant limitations in adaptive skills, and the manifestation of these two deficits during the developmental years). “Therefore, in order for an offender to be considered mentally retarded in the Atkins context, the offender must currently exhibit subaverage intellectual functioning, currently exhibit deficits in adaptive behavior, and these problems must have manifested themselves before the age of 18.” Smith v. State, [Ms. 1060427, May 25, 2007] — So.3d at-; see also Smith v. State, [Ms. CR-97-1258, Jan. 16, 2009] — So.3d at-(opinion on return to fourth remand) (same); cf. Ex parte Perkins, 851 So.2d at 456 (holding that Perkins was not mentally retarded because, among other reasons, Perkins’s full-score adult IQ was 76); Roper v. Simmons, 543 U.S. 551, 578-79, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (focusing on defendants’ culpability “when their crimes were committed”).

“In the context of an Atkins claim, the defendant has the burden of proving by a preponderance of the evidence that he or she is mentally retarded.” Smith v. State, [Ms. 1060427, May 25, 2007] — So.3d at -; see Smith v. State, [Ms. CR-97-1258, Jan. 16, 2009] — So.3d at-. “ ‘The question of [whether a capital defendant is mentally retarded] is a factual one, and as such, it is the function of the factfinder, not this Court, to determine the weight that should be accorded to expert testimony of that issue.’ ” Smith v. State, [Ms. CR-97-1258, Jan. 16, 2009] — So.3d at-(quoting Atkins v. Commonwealth, 266 Va. 73, 581 S.E.2d 514, 515 (2003)). As the Alabama Supreme Court has explained, questions regarding weight and credibility determinations are better left to the circuit courts, “which [have] the opportunity to personally observe the witnesses and assess their credibility.” Smith v. State, [Ms. 1060427, May 25, 2007] — So.3d at-(quoting Smith v. State, [Ms. CR-97-1258, Sept. 29, 2006] — So.3d-, -(Ala.Crim.App.2006) (Shaw, J., dissenting) (opinion on return to third remand)).

This court reviews the circuit court’s findings of fact for an abuse of discretion. Snowden v. State, 968 So.2d 1004, 1012 (Ala.Crim.App.2006). “ ‘ “A judge abuses his discretion only when his decision is based on an erroneous conclusion of law or where the record contains no evidence on which he rationally could have based his decision.” ’ ” Hodges v. State, 926 So.2d 1060, 1072 (Ala.Crim.App.2005) (quoting State v. Jude, 686 So.2d 528, 580 (Ala.Crim.App.1996) (quoting Dowdy v. Gilbert Eng’g Co., 372 So.2d 11, 12 (Ala.1979) (quoting Premium Service Corp. v. Sperry & Hutchinson, Co., 511 F.2d 225 (9th Cir. 1975)))).

Applying these principles, we conclude that the circuit court correctly determined that Byrd is not mentally retarded and, thus, eligible for a sentence of death. The circuit court conducted a hearing on Byrd’s motion to remove death as a possible sentence due to mental retardation (hereinafter “Atkins motion” or “Atkins hearing”). (R. 45-79.) During the Atkins hearing, Byrd presented the testimony of Dr. Kimberly Ackerson, a clinical psychologist with a specialty in forensic psychology. He also admitted into evidence his school records. Dr. Ackerson testified that she reviewed Byrd’s school records, which included, among other things, a confidential psychological evaluation, a behavioral assessment, and an intellectual assessment. Id. Dr. Ackerson also testified that Byrd was given two IQ tests while he was in school. When he was in the seventh grade, Byrd was administered the Wechsler Intelligence Scale for Children, and his score indicated that his full-scale IQ was 65. (R. 50.) Dr. Ackerson appears to testify that she believed that a 95 percent “confidence interval” regarding Byrd’s seventh-grade IQ score indicates that Byrd’s IQ “would fall somewhere between 59 and 71.” (R. 51.) Thereafter, in the 11th grade when he was 17 years old, Byrd was administered the Wechsler Intelligence Scale for Adults, and his score indicated that his full-scale IQ was 75. (R. 52-54.) According to Dr. Ackerson, “they referred to a 95 percent confidence interval” and that Byrd’s “true IQ is felt to fall anywhere between 71 and 80.” (R. 53.)

In preparation for Byrd’s Atkins hearing, Dr. Ackerson assessed Byrd’s IQ using the Wechsler Adult Intelligence Scale, Third Edition. Based on Byrd’s performance on that test, Dr. Ackerson testified that his full-scale IQ is 72 and that based on a 95 percent confidence interval, his “true IQ [is] between 68 and 77.” (R. 55.) Dr. Ackerson also testified that due to the circumstances at the time the test was administered — Byrd was tired and was in jail awaiting a capital-murder trial — she did not believe that he was able to provide his “best effort” or “to perform optimally” during the IQ examination. (R. 65-66.)

After considering the evidence presented during the Atkins hearing, the circuit court found that Byrd is not mentally retarded and denied his motion. (C.R. 29.) The circuit court grounded its findings “upon the last two tests that were conducted [indicating that Byrd’s IQ was] 72 and 75” and on the fact that Dr. Ackerson did not testify that Byrd is, in fact, mentally retarded. (R. 79; C.R. 29.) The circuit court’s findings are supported by the record.

Based on Dr. Ackerson’s evaluation just prior to trial that placed Byrd’s IQ at 72, Byrd cannot establish the first requirement under Ex parte Perkins, namely that he “currently exhibits] subaverage intellectual functioning....” Smith v. State, [Ms. 1060427, May 25, 2007] — So.3d at -. During oral argument before this court, Byrd argued that although Dr. Ack-erson’s testing showed that he had an IQ score of 72, she also testified that based on a “95 percent” confidence interval, Byrd’s “true IQ [is] between 68 and 77.” (R. 55.) Byrd then urged this court to presume that his true IQ falls at the low end of the confidence interval — between 68 and 70— and to find that he meets the first requirement under Ex parte Perkins.

There are two fatal flaws in Byrd’s argument. First, Byrd bears the burden of establishing by a preponderance of the evidence that he meets the Alabama Supreme Court’s criteria for mental retardation. Smith v. State, [Ms. 1060427, May 25, 2007] — So.3d at-. By relying on the mere possibility that his true IQ falls at the low end of the confidence interval or, as he described it, the “margin of error,” Byrd has not met his burden to establish that it is more likely than not that his IQ is 70 or below. Second, based on Dr. Ackerson’s testimony that Byrd did not perform optimally on the test she administered (R. 65-66), it is possible that his true IQ is above rather than below 72. In any event, this court rejects Byrd’s request that we presume that a capital defendant’s IQ falls at the bottom range of the confidence interval or “margin of error” (Byrd’s Brief at 30-38), and we hold that Byrd did not establish that he currently exhibits subaverage intellectual functioning.

Additionally, after reviewing Byrd’s two juvenile IQ scores, their confidence intervals, Byrd’s school records, and Dr. Acker-son’s testimony, we hold that Byrd failed to meet his burden to prove by a preponderance of the evidence that “subaverage intellectual functioning manifested itself during the developmental period (i.e., before the defendant reached age 18).” Ex parte Perkins, 851 So.2d at 456. The only evidence Byrd presented during the Atkins hearing that related to his IQ during his developmental years were two IQ scores he received during school evaluations. (R. 50-55; C.R. 365-83.) In the seventh grade, Byrd scored a full-scale IQ of 65, with a confidence interval indicating that Byrd’s actual IQ “would fall somewhere between 59 and 71.” (R. 50-54.) Then, when he was 17, Byrd received a full-scale IQ score of 75, with a confidence interval indicating that his actual IQ would fall somewhere “between 71 and 80.” (R. 53; C.R. 365-83.)

Based, in part, on Byrd’s full-scale IQ score of 75 at age 17, the circuit court found that Byrd had not met his burden to establish that he is mentally retarded. (R. 75.) Cf. Jackson v. State, 589 So.2d 781, 784 (Ala.Crim.App.1991) (citing Bradley v. State, 494 So.2d 750, 760-61 (Ala.Cr.App.1985) (“[A] trial court’s ruling based upon conflicting evidence ... is binding on this Court....”)). With nothing more than two conflicting juvenile IQ scores, one of which has a confidence interval that indicated that Byrd’s true IQ would fall between 71 and 80, the circuit court correctly determined that Byrd failed to meet his burden to establish that he is mentally retarded, i.e., that “subaverage intellectual functioning manifested itself during the developmental period.... ” Ex parte Perkins, 851 So.2d at 456. Consequently, Byrd has not established that the circuit court abused its discretion by denying his Atkins motion.

For the foregoing reasons, this court holds that Byrd has not established the first and third requirements under Ex parte Perkins; therefore, the circuit court properly determined that Byrd is not mentally retarded. Consequently, Byrd’s execution does not offend the Eighth Amendment. See Atkins, 536 U.S. 304.

ii.

Byrd next argues that the circuit court erroneously allowed the State to introduce into evidence a statement he gave to law-enforcement officers. Specifically, Byrd argues that due to his mental deficiencies (i.e., his alleged mental retardation and/or his low IQ), he was incapable of knowingly waiving his Miranda rights. Byrd bases his argument on his school records and Dr. Ackerson’s testimony that his low IQ could have affected his ability to understand his Miranda rights. The State asserts that Byrd’s argument is without merit because Byrd is not mentally retarded and because the totality of the circumstances establishes that his waiver of his Miranda rights was knowing and voluntary. We agree.

“It has long been the law that a confession is prima facie involuntary and inadmissible, and that before a confession may be admitted into evidence, the burden is upon the State to establish voluntariness and a Miranda predicate.” Waldrop v. State, 859 So.2d 1188, 1155 (Ala.Crim.App.2000) (citing Jackson v. State, 562 So.2d 1873, 1380 (Ala.Crim.App.1990)). “The trial court’s finding that a statement was voluntary need only be supported by a preponderance of the evidence.” Ex parte Jackson, 836 So.2d 979, 982 (Ala.2002) (citing Dixon v. State, 588 So.2d 903 (Ala.1991)). “ ‘Whether a waiver is voluntary, knowing, and intelligent depends on the particular facts and underlying circumstances of each case, including the background, experience, and conduct of the accused — i.e., the totality of the circumstances.’ ” Waldrop, 859 So.2d at 1156 (quoting Click v. State, 695 So.2d 209 (Ala.Crim.App.1996)); see also Ex parte Matthews, 601 So.2d 52, 54 (Ala.1992) (holding that a court must analyze the voluntariness of a confession by examining the totality of the circumstances).

A defendant’s low IQ is only one factor that must be considered when reviewing the totality of the circumstances. See Dohyne v. State, 672 So.2d 1319, 1337 (Ala.Crim.App.1994); Beckworth v. State, 946 So.2d 490, 517 (Ala.Crim.App.2005). “While an accused’s intelligence and literacy are important factors, ... weak intellect or illiteracy alone will not render a confession inadmissible.” Hobbs v. State, 401 So.2d 276, 282 (Ala.Crim.App.1981); see also Hodges v. State, 926 So.2d 1060, 1073 (Ala.Crim.App.2005) (same); cf Colorado v. Connelly, 479 U.S. 157, 165, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986) (holding that mental defects alone are insufficient to establish that a confession was involuntary under the Due Process Clause). As this court stated in Beckworth: “[A] defendant’s low IQ does not preclude a finding that a Miranda waiver was voluntary unless the defendant is so mentally impaired that he did not understand his Miranda rights.” 946 So.2d at 517 (citing Dobyne, 672 So.2d at 1337); see Moore v. Dugger, 856 F.2d 129, 132 (11th Cir.1988) (mental deficiencies, in the absence of police coercion, are not sufficient to establish involuntariness, and the fact that the defendant was generally calm and responsive during interrogation, that he did not appear confused, and that he understood the questions put to him established a valid waiver of Miranda rights, despite the defendant’s low IQ).

Contrary to Byrd’s assertions, Dr. Ack-erson’s testimony that his low IQ could have affected his ability to understand his rights is insufficient to show that he was “so mentally impaired that he [in fact] did not understand his Miranda, rights.” Beckworth, 946 So.2d at 517 (citing Dobyne, 672 So.2d at 1337). Dr. Ackerson did not testify that Byrd’s low IQ rendered him incapable of understanding his rights; instead, she merely stated that Byrd’s low IQ could have affected his understanding of his rights. Without more, this testimony is insufficient to preclude a finding that Byrd knowingly and voluntarily waived those rights.

Moreover, this court’s review of the record and of Byrd’s statement convinces us that Byrd did, in fact, understand his rights and that he knowingly waived them. Prior to Byrd’s statement, law-enforcement officers identified themselves and clearly informed Byrd of his Miranda rights. (R. 84; C.R. 247.) Detective Cynthia Morrow testified that Byrd, after being read his Miranda rights, stated that he understood his rights and that he voluntarily chose to waive those rights. (R. 84-90.) Detective Morrow further testified that Byrd was not threatened or coerced in any manner. Id.

Detective Morrow’s testimony is corroborated by Byrd’s tape-recorded statement and a waiver-of-rights form that he signed. Prior to any questioning, Byrd clearly and articulately read aloud and then signed the statement on the waiver-of-rights form acknowledging, among other things, that: 1) he had been informed of and understood his rights; 2) he voluntarily chose to speak with law-enforcement officers; and 3) no force, threats, or promises had been used to induce him to waive his rights. (C.R. 247.) During the interview, Byrd was calm, responsive, and did not appear confused. His answers to the questions posed establishes that he understood those questions. The fact that Byrd altered his statement when he was confronted with evidence indicating that he was not being truthful establishes that he was lucid and thinking about his responses. Finally, the fact that Byrd required the officers to take a break and that he eventually invoked his right to remain silent establishes that he understood his Miranda rights and understood that he could invoke those rights at any time. See United States v. Dryde'n, 567 F.Supp.2d 643, 653 (D.Del.2008) (holding that a defendant’s invocation of his rights establishes that he understood those rights).

Based on the foregoing, this court is convinced that Byrd knowingly and voluntarily waived his Miranda, rights and that his mental deficiencies did not invalidate that waiver. Consequently, the circuit court correctly allowed Byrd’s statement to be introduced into evidence.

III.

In his brief on appeal, Byrd implies that law-enforcement officers violated his Fifth Amendment right to remain silent when, after he stated “I don’t want to answer no more questions right now” (State’s exhibit 41-B), the officers continued to question him. At the suppression hearing, Byrd argued that all statements he made after he allegedly invoked his right to remain silent should have been suppressed. We disagree.

It is well settled that suspects have a right pursuant to the Fifth Amendment of the United States Constitution to refuse to answer questions posed by law-enforcement officials. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). “Included in the right to remain silent is a right to cut off questioning.” Gamble v. State, 791 So.2d 409, 427-28 (Ala.Crim.App.2000) (quoting Slaton v. State, 680 So.2d 879, 886-87 (Ala.Crim.App.1995) (citing Miranda, 384 U.S. at 474)). “When a [suspect] invokes his right to remain silent, that request must be ‘scrupulously honored.’ ” Gamble, 791 So.2d at 427-28 (quoting Slaton, 680 So.2d at 886-87 (quoting Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975))). “When a purported invocation of a Fifth Amendment privilege is ambiguous, [however,] the police may question the accused for the narrow purpose of clarifying the equivocal request.” Ex parte Woods, 789 So.2d 941, 946 (Ala.2001) (quoting Beard v. State, 612 So.2d 1335, 1341 (Ala.Crim.App.1992) (citing Martin v. Wainwright, 770 F.2d 918 (11th Cir.1985); Thompson v. Wainwright, 601 F.2d 768 (5th Cir.1979); Stewart v. State, 562 So.2d 1365 (Ala.Crim.App.1989); and Bush v. State, 523 So.2d 538 (Ala.Crim.App.1988))).

This court’s review of the evidence presented at the suppression hearing and Byrd’s tape-recorded statement convinces us that the circuit court did not abuse its discretion by denying Byrd’s motion to suppress all statements he made after he allegedly asserted his right to remain silent. Byrd’s statement that he did not “want to answer no more questions right now” was ambiguous at best. (State’s exhibit 41-B) (emphasis added); see State v. Ganpat, 732 N.W.2d 232, 239 (Minn.2007) (holding that a suspect’s statement that he did not want to talk right now was ambiguous); State v. Holcomb, 213 Or.App. 168, 159 P.3d 1271, 1279 (2007) (same); People v. Caruso, 34 A.D.3d 860, 863, 822 N.Y.S.2d 825, 828 (2006) (holding that “right now” is a temporal qualifier and does not clearly communicate a desire to cease all questioning). In response to Byrd’s ambiguous statement, officers properly asked him limited questions designed to ascertain whether he wanted to stop questioning altogether or merely wanted to take a break. (State’s Exhibit 41-8; R. 114.) See Ex parte Woods, 789 So.2d at 946. Thereafter, Byrd clarified that he wanted to take a break, and the officers complied with his request.

Because Byrd’s statement that he did not “want to answer no more questions right now” was ambiguous and because the law-enforcement officers narrowly tailored their subsequent questions to clarify his ambiguous statement, Byrd’s Fifth Amendment right to remain silent was not violated. See Ex parte Woods, 789 So.2d at 946. Consequently, the circuit court did not abuse its discretion by denying Byrd’s motion.

IV.

Finally, Byrd argues that Alabama’s capital-sentencing scheme is unconstitutional pursuant to numerous provisions of the United States Constitution because § 13A-5-47(d), Ala.Code 1975 (hereinafter “Alabama’s judicial-override provision”), allows a judge to override a jury’s sentencing-phase recommendation. In response, the State argues that Byrd does not have standing to challenge the constitutionality of Alabama’s judicial-override provision because the judge followed the jury’s recommendation that Byrd be sentenced to death. We agree.

It is well settled that “ ‘[a] party has standing to challenge the constitutionality of a statute only insofar as it has an adverse impact on his own rights....’” Gavin v. State, 891 So.2d 907, 936 (Ala.Crim.App.2003) (quoting J.L.N. v. State, 894 So.2d 738 (Ala.Crim.App.2002) (quoting other cases)). “ ‘ “ ‘[A]s a general rule, if there is no constitutional defect in the application of a statute to a litigant, he does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations.’ ” ’ ” Id. In Gavin, this Court reaffirmed the principle that:

“ ‘ “ ‘ “[an] accused has the right to assert the invalidity of the law, regulation, or rule under which he is being prosecuted, but he must show that his rights are adversely affected by the statute or ordinance, and, more particularly, that his rights are thus affected by the particular feature of the statute alleged to be in conflict with the constitution.” ”” ”

891 So.2d at 936 (quoting J.L.N., 894 So.2d at 742 (quoting State v. Wilkerson, 54 Ala. App. 104, 305 So.2d 378, 380 (Ala.Crim.App.1974) (quoting other cases))); see also McCord v. Stephens, 295 Ala. 162, 325 So.2d 155 (1975) (holding that a defendant cannot challenge the constitutionality of a statute when he cannot show that the alleged unconstitutional feature of the statute adversely affected him); Beckworth v. State, 946 So.2d 490 (Ala.Crim.App.2005) (same).

Applying these principles to a similar situation, this court, in Woods v. State, 13 So.3d 1, 39 (Ala.Crim.App.2007), held that the appellant did not have standing to challenge the constitutionality of Alabama’s judicial-override provision because that provision was not applied in his case (i.e., the judge followed the jury’s recommendation of death). Indistinguishably, Alabama’s judicial-override provision was not applied during Byrd’s sentencing. The jury recommended that Byrd be sentenced to death, and the judge followed that recommendation.

Because Alabama’s judicial-override provision was not applied to Byrd, he does not have standing to challenge its constitutionality. Consequently, Byrd is neither entitled to review of, nor entitled to relief on, this alleged constitutional infraction.

V.

Pursuant to § 13A-5-53, Ala.Code 1975, we are required to address the propriety of Byrd’s convictions and his sentence of death. Byrd was indicted for, and convicted of, four counts of capital murder — three counts of murder during the course of a robbery, see § 13A-5^0(a)(2), Ala.Code 1975, and one count of murder of two or more people pursuant to one act or pursuant to one scheme or course of conduct, see § 13A-5-40(a)(10), Ala.Code 1975.

The record does not reflect that Byrd’s 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.

The circuit court correctly found that the aggravating circumstances outweighed the mitigating circumstances. In making this determination, the circuit court found that the State proved the existence of the following three aggravating circumstances: 1) Byrd committed the capital offense while he was engaged in or was an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit, a robbery; 2) Byrd intentionally caused the death of two or more persons by one act or pursuant to one scheme or course of conduct; and 3) the capital offenses were especially heinous, atrocious, or cruel compared to other capital offenses. See § 13A-5-49, Ala. Code 1975. It also found that the defense established the existence of the following two statutory mitigating circumstances: 1) Byrd did not have a significant history of prior criminal activity; and 2) he was only 22 years of age at the time he committed the offenses. See § 13A-5-51, Ala.Code 1975. With regard to nonstatutory mitigating circumstances, the trial court made the following findings:

“The Court also considered any non-statutory mitigating circumstances pursuant to § 13A-5-52, Code of Alabama (1975). The Court recognizes that this includes ‘any aspect of the defendant’s character or record and any of the circumstances of the offense that the defendant offers as a basis for a sentence of life imprisonment without parole instead of death, and any other relevant mitigating circumstance which the defendant offers.’ The Court finds that the following non-statutory mitigating circumstances do apply:
“1. The childhood trauma of witnessing his mother being killed. Although [Byrd’s] testimony did not include information regarding this incident, [Byrd’s] aunt testified that when she arrived at the scene of her sister’s death Roderick Byrd and the other children were at the scene holding each other. Latonja McDonald’s testimony indicated that [Byrd] was eight or nine years old at the time of the incident, and the record reflects that [Byrd] may have been ten years old when his mother was killed. This was clearly a very traumatic incident which would have adversely affected any child. This also caused [Byrd] to be raised by someone other than his natural parents.
“2. Roderick Byrd’s mental condition during his youth and at the time of the offense should also be regarded as a mitigating circumstance. The Court finds [Byrd] had a low IQ as a child, and this made it more difficult for him to learn in school and socialize. He also had an apparent reading disability. [Byrd’s] below average intelligence continued into adulthood, and it could have caused Byrd to be a ‘follower,’ as his sister indicated. Roderick Byrd may not have been a leader throughout his lifetime or even on the date when the murders occurred, but he was certainly capable of making his own decisions. [Byrd’s] IQ is approximately 72. This low IQ and the other testimony presented regarding Roderick Byrd’s mental condition is sufficient to qualify as a mitigating circumstance under § 13A-5-52, Code of Alabama (1975). This is true even though the record reflects that [Byrd] was not in the mental retardation range.”

(C.R. 36); see also (R. 1191-93) (finding, in part, that Byrd’s low IQ is a significant mitigating circumstance). The sentencing order shows that the circuit court properly weighed the aggravating circumstances and the mitigating circumstances and correctly sentenced Byrd to death. The record supports its decision, and we agree with its findings.

Section 13A-5-53(b)(2), Ala.Code 1975, requires this court to reweigh the aggravating circumstances and the mitigating circumstances in order to determine whether Byrd’s sentence of death was proper. After independently weighing the aggravating and mitigating circumstances, this Court finds that Byrd’s death sentence is appropriate.

As required by § 13A-5-53(b)(3), Ala.Code 1975, this Court must now determine whether Byrd’s sentence is excessive or disproportionate when compared to the penalty imposed in similar eases. Byrd was convicted of three counts of murder during a robbery and one count of murder of two or more people. A sentence of death has been imposed for similar crimes throughout this State. See Melson v. State, 775 So.2d 857, 863 (Ala.Crim.App.1999); Washington v. State, 922 So.2d 145 (Ala.Crim.App.2005); Robitaille v. State, 971 So.2d 43, 76 (Ala.Crim.App.2005). Therefore, we find that the sentence was neither excessive nor disproportionate.

Finally, this Court has searched the entire record for any error that may have adversely affected Byrd’s substantial rights, and we have not found any. See Rule 45A, Ala. R.App. P.

Accordingly, we affirm Byrd’s convictions and sentences of death.

AFFIRMED.

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

      . The video of the crime recorded by a security camera shows that Mitchell had a knit cap or ski mask on his head; however, the cap was not covering his face, and he eventually removed it from his head.

      . The security video from the lobby of the Inn shows Mitchell shooting Olney.

      . The school report indicates that “the probability is 90% out of 100 that [Byrd's] true IQ score is between 59 and 71.” (C.R. 372.)

      . While Byrd’s 11th grade school records indicate that he had “deficits hinder[ing his academic] success,” this court notes that mental retardation was ruled out as a primary cause of his academic impairment. (C.R. 377.)

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . As an initial matter, the State argues that this issue should be reviewed for plain error because Byrd never specifically argued that his waiver was invalid due to his mental deficiencies. See Rule 45A, Ala. R.App. P. During oral argument before this court, Byrd argued that his motion to suppress and Dr. Ackerson’s testimony were sufficient to preserve this issue for appellate review; therefore, the issue should be reviewed for an abuse of discretion. Snowden v. State, 968 So.2d 1004, 1012 (Ala.Crim.App.2006). This court need not address these arguments because, regardless of which standard of review is employed, based on the law and the evidence presented during the suppression hearing, no error resulted from the admission of Byrd’s statement.

      . The circuit court suppressed all statements Byrd made after he stated that he no longer wanted to answer questions that day. (R. 189-90.)