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Kenneth Loggins was charged with two counts of capital murder. Count I of the indictment charged Loggins with the murder of Vicki Deblieux, a murder made capital because it occurred during a kidnapping in the first degree or an attempt thereof, Ala. Code 1975, §
With regard to Loggins's conviction for capital murder, the jury recommended the death pеnalty, by a vote of 10 to 2. The trial court accepted the jury's recommendation and sentenced Loggins to death by electrocution. The trial court sentenced Loggins to life in prison for his conviction of intentional murder.
On April 30, 1999, the Court of Criminal Appeals affirmed Loggins's conviction for capital murder and his sentence of death. Loggins v.State,
This Court granted Loggins's petition for certiorari review, to review the opinion of the Cоurt of Criminal Appeals and to search the record for plain error, pursuant to Rule 39(k), Ala.R.App.P. Loggins raised 10 issues in his petition; each of them was adequately addressed and properly decided by the Court of Criminal Appeals. However, we will address three of those issues — whether the prosecutor impermissibly commented on Loggins's failure to testify at trial; whether the trial court erred in admitting into evidence approximately 50 autopsy photographs of the victim; and whether, in light of the trial court's findings as to aggravating and mitigating circumstances, that court erred in sentencing Loggins to death. For the reasons we will discuss in detail in Parts I through III of this opinion, we affirm the judgment of the Court of Criminal Appeals.
The facts relating to this case аre set out in considerable detail in the opinion of the Court of Criminal Appeals,
"On the night of [February 21, 1994,] Vicki Deblieux, age 37, was dropped off by a friend on [Highway] I-59 near Chattanooga, Tennessee, to hitchhike to her mother's home in Louisiana.
"Four teenagers — the defendant [Loggins], Carey Dale Grayson, Trace Duncan and Louis Mangione — all [of whom] had been drinking alcohol and using drugs, saw her hitchhiking on I-59 at the Trussville exit in Jefferson County, Alabama. They offered to take her to Louisiana; instead they took her to a wooded area, on the pretense of picking up another vehicle.
"After arriving in this area, they all got out of the vehicle, and began to drink. [Loggins, along with the others, threw bottles at Ms. Deblieux, who began to run from them.] They tackled her to the ground and began to kick her *1097 repeatedly all over her body. When they noticed that she was still alive, the defendant stood on her throat, until she gurgled blood and said `Okay, I'll party,' then died.
"They then put her body in the back of a pickup truck and took her and her luggage to Bald Rock Mountain, after removing her clothing [and a ring,] and they played with her body and then threw her off a cliff.
"They then went to a car wash in Pell City to wash the blood out of the truck. [After rummaging through her luggage, they hid the luggage in the woods.]
"On their return to Birmingham they took Mangione home and then returned to Bald Rock Mountain, where they began to mutilate the body by stabbing and cutting her 180 times, removing part of a lung and removing her fingers and thumbs.
"The next morning, the defendant's girlfriend found the three of them in Birmingham asleep in the truck all covered in mud and blood. The defendant told her they got blood on them from a dog.
"On [February 26, 1994,] three rock climbers found the victim's body and called the police. Her body was taken to the medical examiner's office.
"The medical examiner found the following injuries: almost every bone in her skull was fractured, every bone in her face was fractured at least once, lacerations on the face over these fractures, a missing tooth, left eye was collapsed, right eye was hemorrhaged, tongue discolored, 180 stab wounds (postmortem), two large incisions in her chest, her left lung had been removed and all her fingers and both thumbs were cut off.
"The medical examiner opined that the cause of death was blunt force trauma to the head and possible asphyxiation.
"All defendants were later arrested after Mangione began showing one of the victim's fingers to friends."
(Supplemental Record, C. 12-13.) See Loggins v. State,
Several of Loggins's friends and acquaintances testified during the State's case-in-chief that Loggins had bragged and even joked with them about killing a hitchhiker. Sonja Gray met Loggins while she was working at a Hardee's restauarant, and Gray was a friend of Amy White, who was Loggins's girlfriend. Gray also knew Duncan, Grayson, and Mangione, Loggins's cоdefendants. Gray testified about a morning in late February 1994, when she and Amy White went looking for Loggins. Gray testified that, as she and White were driving past the Hardee's restaurant at Chalkville, where she and Dale Grayson worked, they noticed Loggins's white pickup truck in the parking lot. The two girls stopped and looked inside the truck and saw Loggins, Grayson, and Duncan asleep. Gray testified that the three men were covered with mud and blood. When Gray asked the men about their appearance, one of them told her that they had killed a dog that was chasing the truck.
The subject of how the men came to be covered in mud and blood came up again in late March 1994, in Duncan's apartment. Gray and another girl, Danielle Boso, were listening to music with Duncаn, Loggins, and Mangione, when Gray asked whether they had killed a dog or a hitchhiker. Mangione told her they had killed a hitchhiker. Mangione asked Gray who told her about the hitchhiker: Boso said that Amy White had told them. Loggins then told the girls that "Amy was dead, and if [they] breathed a word of it, [they] would be next." Loggins told the girls that they had picked up a hitchhiker, and that he had put his foot on her throat and said "hurry up and die."1 Loggins told the girls that the hitchhiker "choked up blood" *1098 and that the men cut off the victim's fingers to prevent her from being identified. Then the men took her body to Bald Mountain and threw the body over a cliff.
Danielle Boso's testimony was essentially the same as the testimony given by Gray. Boso testified that she was with Gray in Duncan's apartment. She testified that Loggins was the person who related the story about the hitchhiker. Boso testified that Loggins said he and the others picked the victim up on the Trussville exit on I-59 and that they took her to Loggins's truck and then took her into the woods, where they killed her, and then threw her body over a cliff. Boso testified that Loggins said the men returned to Bald Mountain that night and that they "cut off her fingers, took out her teeth, took out her brain, her eye, and took out her heart and took a bite if it." (R. 473.) (The results of this mutilation are depicted in many of the crime-scene and autopsy photographs that Loggins would have preferred the jury not see.) Boso testified that one of the men said that they performed the postmortem mutilations to hinder identification of the victim.
Hope Hanson knew Loggins and the othеr codefendants because, she said, they "hung around" with Duncan, who was her brother's friend. Hanson testified that in late February 1994, she overheard Loggins and Grayson talking about "fingers behind Bruno's" (an apparent reference to a supermarket). Hanson testified that either Grayson or Loggins was talking about "fingers being thrown" and that one of the men joked about throwing someone's fingers in the front yard of her apartment complex. Finally, Hanson testified that she occasionally heard Loggins and the other men joke about picking up a hitchhiker.
Before trial, Loggins entered a plea of not guilty by reason of mental disease or defect. Dr. Samuel E. Fleming III, Ph.D., a clinical psychologist, testified for the defense during the guilt phase of the trial. He testified thаt he gave Loggins two Minnesota Multiphasic Personality Inventory ("MMPI") tests during his evaluation. Fleming testified that Loggins scored high on the scale used to indicate the presence of schizophrenia and antisocial behavior. Fleming did not "think there was any question" that when he killed Ms. Deblieux Loggins was suffering from a severe mental illness that caused him to be unable to appreciate the wrongfulness of his acts. Fleming testified that "there was a possibility" that Loggins was insane at that time and that there was "no question" that Loggins suffered from a diminished capacity.
The State offered the testimony of Dr. C.J. Rosecrans, a clinical psychologist, in rebuttal to the testimony of Dr. Fleming.
Dr. Rosecrans testified that he interviewed Loggins on two occasions and that he gave Loggins an MMPI test, as well as a Rorschach inkblot test. Dr. Rosecrans testified that he also obtained information about Loggins from other sources, including investigative reports and Dr. Fleming's report. In Dr. Rosecrans's opinion, Loggins was not suffering from a severe mental disease or defect when he killed Ms. Deblieux. Furthermore, in Dr. Rosecrans's opinion, at the time of the killing Loggins was able to distinguish right from wrong and to appreciate the wrongfulness of his conduct. Finally, Dr. Rosecrans testified that, while the effect of drugs and alcohol may have reduced Loggins's inhibitions, it would not have prevented him from distinguishing between right and wrong.
The defense also called several of Loggins's former school counselors and teachers to testify about Loggins's emotional prоblems in general. They described "rages" they said Loggins went into on a nearly daily basis and stated that when these rages occurred Loggins was not aware of what he was doing.
The relevant portions of the prоsecutor's rebuttal closing argument during the penalty phase of Loggins's trial were as follows:
"[T]he teachers said and told you he sometimes had uncontrollable outbursts where he didn't know what was going on. . . . This was not an uncontrollable outburst by any means. For reasons that you already know and have heard so many times, why did he cover it up? Why did he plan it? Why did he call [Vicki Deblieux] the perfect victim? And even if you give some credence to the theory that this emanated from some uncontrollable outburst that he might have demonstrated in a school setting, a temper tantrum if you will, . . . how do you account for the fact that all three of those teachers said when he had those uncontrollable outbursts and he didn't know what was going on, it was like he had no memory of it? He didn't brag about later on. But what did he do in this case? He was the leader of the pack in telling Sonja and Danielle about what had happened. And what did he say to them about Amy? Not to [his teacher], what did he say to [his friends] about Amy? Well, she's dead, too, for telling Why? Because he was going to get in trouble.
". . . .
". . . [H]e had a dual purpose not identifying her when he cut off her fingers [sic]. He was so proud of this. And what does this tell you about whether he enjoyed the degradation, the humiliation, the pain and suffering? He cut off her fingers to keep from being identified, and then was so proud of what he had done that he went to the one absent musketeer, and said, here, Lou [Mangione], here's a souvenir. It is beyond comprehension that there could be a case more especially heinous, atrocious and cruel than this.
"And [Loggins] deserves to pay the ultimate penalty for the ultimate crime. And if there's one smidgen of thought in your mind that he might have ever felt anything but a thrill out of this, look back to where he wrote — whether they're his words or lyrics that he liked, `I am free. I can kill without remorse.' And throughout every word you've heard from this witness stand in this courtroom this entire week has there been an iota of remorse? None. Absolutely none. What you got instead was much later on about the last thing we know of that he said to other people before he got arrested [sic] when he and [a codefendant] laughingly said to each other that Hope Hanson overheard, `let's go pick a hitchhiker.' And can't we all thank God on behalf of whoever was out on that interstate the next night that he got arrested before he did."
(R. 1061-65.) (Emphasis added.)
Initially, we note that Loggins did not object to the prosecutor's comment he now complains of and, thus, did not preserve this issue for review. However, because the death penalty has been imposed in this case, we are obliged, pursuant to Rule 39(k), Ala.R.App.P., to search the record for "plain error." Plain error is error that "has or probably has adversely affected the substantial rights of the [defendant]." Rule 39(k), Ala.R.App.P.; see Ex parte Myers,
In Alabama, the right to be free from compulsory self-incrimination is protected both by the constitution and by statute. "[I]n all criminal prosecutions, the accused . . . shall not be compelled to give evidence against himself. . . ." Alabama Constitution 1901, Art.
Id. (Emphasis added.)"On the trial of all indictments, complaints or other criminal proceedings, the person on trial shall, at his own request, but not otherwise, be a competent witness, and his failure to make such a request shall not create any presumption against him nor be the subject of comment by counsel. If the district attorney makes any comment concerning the defendant's failure to testify, a new trial must be granted on motion filed within 30 days from entry of the judgment."
Ex parte Purser,"A comment on the defendant's failure to testify is to be `scrupulously avoided.' Arthur v. State,
, 575 So.2d 1165 1186 (Ala.Crim.App. 1990), cert. denied,(Ala. 1991). Where there has been a direct comment on, or direct reference to, a defendant's failure to testify and the trial court does not act promptly to cure the comment, the defendant's conviction must be reversed. Ex parte Wilson, 575 So.2d 1191 (Ala. 1990). Where the comment is an indirect, rather than a direct, comment on the defendant's failure to testify, the conviction must be reversed if there is a close identification of the defendant as the person who did not become a witness. Wilson, 571 So.2d 1251 571 So.2d at 1261 ."
In Clark, supra, this Court wrote:
"`Cоmments by a prosecutor on a defendant's failure to testify are highly prejudicial and harmful, and courts must carefully guard against a violation of a defendant's constitutional right not to testify. Whitt [v. State,
(Ala. 1979)], supra, at 739; Ex parte Williams, 370 So.2d 736 , 461 So.2d 852 853 (Ala. 1984); see Ex parte Purser,(Ala. 1992). This Court has held that comments by a prosecutor that a jury may possibly take as a reference to the defendant's failure to testify violate Art. 607 So.2d 301 I , §6 , of the Alabama Constitution of 1901. Ex parte Land,(Ala.), cert. denied, 678 So.2d 224 , 519 U.S. 933 , 117 S.Ct. 308 (1996); Ex parte McWilliams, 136 L.Ed.2d 224 (Ala. 1993); Ex parte Wilson, [ 640 So.2d 1015 , 571 So.2d 1251 1261 (Ala. 1990)]; Ex parte Tucker,(Ala. 1984); Beecher v. State, 454 So.2d 552 , 294 Ala. 674 (1975). Additionally, the 320 So.2d 727 Fifth andFourteenth Amendments of the United States Constitution may be violated if the prosecutor comments upon the accused's silence. Griffin v. California,, 380 U.S. 609 , 85 S.Ct. 1229 (1965); Ex parte Land, supra; Ex parte Wilson, supra. Under federal law, a comment is improper if it was "`"manifestly intended or was of such a character that a jury would naturally and necessarily take it to be a comment on the failure of the accused to testify."'" United States v. Herring, 14 L.Ed.2d 106 , 955 F.2d 703 709 (11th Cir.), *1101 cert. denied,, 506 U.S. 927 , 113 S.Ct. 353 (1992) (citations omitted); Marsden v. Moore, 121 L.Ed.2d 267 , 847 F.2d 1536 1547 (11th Cir.), cert. denied,, 488 U.S. 983 , 109 S.Ct. 534 (1988); United States v. Betancourt, 102 L.Ed.2d 566 , 734 F.2d 750 758 (11th Cir.), cert. denied,, 469 U.S. 1021 , 105 S.Ct. 440 (1984). The federal courts characterize comments as either direct or indirect, and, in either case, hold that an improper comment may not always mandate reversal.'" 83 L.Ed.2d 365
It is well settled that, in determining whether a prosecutor's comment is tantamount to an impermissible reference to the accused's failure to testify, the comment must be considered in the context in which it was made:
"`"[O]nce a defendant chooses not to testify at his trial the exercise of that choice is not subject to comment by the prosecution." Wherry v. State,
, 402 So.2d 1130 1133 (Ala.Cr.App. 1981). "In determining if a prosecutorial remark impairs the integrity of the defendant's right not to testify the test is whether the defense can show that the remark[, given the context in which it was made,] was intended to comment on the defendant's silence or was of such character that a jury would naturally and necessarily construe it as a comment on the defendant's silence." United States v. LeQuire,, 943 F.2d 1554 1565 (11th Cir. 1991), cert. denied,, 505 U.S. 1223 , 112 S.Ct. 3037 (1992).' 120 L.Ed.2d 906
"Ex parte Davis,
Maples v. State,
Not every comment that refers or alludes to a nontestifying defendant is an impermissible comment on his failure to testify; the prosecutor has a right to comment on reasonable inferences from the evidence:
Lloyd v. State,"`During closing argument, the prosecutor, as well as defense counsel, has a right to present his impressions from the evidence, if reasonable, and may argue every legitimate inference. Rutledge v. State,
(Ala.Crim.App. 1987), rev'd on other grounds, 523 So.2d 1087 (Ala. 1988). Wide discretion is allowed the trial court in regulating the arguments of counsel. Racine v. State, 523 So.2d 1118 , 290 Ala. 225 (1973). In evaluating allegedly prejudicial remarks by the prosecutor in closing argument, no fixed standard can be applied, and each case must be judged on its оwn merits. Hooks v. State, 275 So.2d 655 (Ala.Crim.App. 1987), aff'd, 534 So.2d 329 (Ala. 1989).' 534 So.2d 371 "McMillian v. State,
, 594 So.2d 1253 1262 (Ala.Crim.App. 1991), remanded on other grounds,(Ala. 1992). 594 So.2d 1288 "`"Counsel in making argument to the jury have a right to state their conception of what the evidence is." Hope v. State,
, 21 Ala. App. 491 492 ,, 109 So. 521 522 (1926). "Certainly, the State has as much right as the defendant to argue to the jury every matter of legitimate inference from the evidence, and . . . `the evidence may be examined, collated, sifted, and treated in [the solicitor's] own way.'" White v. State,, 41 Ala. App. 54 58 ,, 123 So.2d 179 181-82 , cert. denied,, 271 Ala. 702 (1960). "Whether an inference is reasonable is generally within the sound discretion of the trial judge." Hayes v. State, 123 So.2d 186 , 588 So.2d 502 505-06 (Ala.Crim.App. 1991).'"DeBruce v. State,
(Ala.Crim.App. 1993) [aff'd, 651 So.2d 599 (Ala. 1994)]." 651 So.2d 624
During the guilt phase of Loggins's trial, defense counsel presented evidence indicating that Loggins went into fits, which his former teachers described as "rages," almost daily. Loggins's defense attorneys referred to these fits in their closing arguments in both the guilt phase and the penalty phase of Loggins's trial. Loggins's teachers and his psychologist testified that when Loggins experienced one of these fits, he was unaware of what he was doing and was unable to control his conduct.2 Loggins's attorneys closed both phases of the trial by arguing that Loggins was emotionally troubled and unable to control himself under "normal" circumstances, and that Loggins's mental state at the time of the offense was impaired even more than usual because of the drugs and alcohol that he consumed prior to, and during, the time that he and his companions picked up Ms. Deblieux.
Considered in the context in which it was made, we conclude that the prosecutor merely stated an inference the prosecutor had reasonably drawn from the evidence: that Loggins not only knew what he was doing at the time of the offense, but helped to plan the crime and remembered the details of the murder long after it had taken place. Ex parte Davis,
The prosecutor's remark was a proper comment on the evidence. Throughout the trial, Loggins's friends, girlfriends, or acquaintances testified for the State about how Loggins had joked, and had even bragged to them about the killing of the hitchhiker. Thus, the phrase "And throughout every word you've heard from this witness stand in this courtroom this entire week" refers to the people Loggins told about the murder, and who testified at trial, and to those with whom Loggins joked about the killing for weeks after the crime had taken place. The prosecutor's comment was a statement of a proper inference, drawn from this trial testimony, that Loggins had shown no remorse for the killing.Harris v. State,
The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court's determination on that question will not be reversed except upon a clear showing of abuse of discretion:
"`"Generally, a determination of admissibility of evidence rests within the sound discretion of the trial court and will not be disturbed on appeal absent a clear showing of an abuse of discretion." [United States] v. Penn,[(11th Cir. 1983)]; [United States] v. Dothard, 721 F.2d 762 [(11th Cir. 1982)]; Ward v. State, 666 F.2d 498 (Ala.Crim.App. 1983); Wicker v. State, 440 So.2d 1227 (Ala.Crim.App. 1983). Evidence is relevant if it has "any tendency to throw light upon the matter in issue, even though such light may be weak and falls short of demonstration." McCain v. State, 433 So.2d 1190 , 46 Ala. App. 627 (1971); Austin v. State, 247 So.2d 383 (Ala.Crim.App. 1983). "Any fact which has causal connection or logical relation to another fact, so as to make the other fact either more or less probable, is comрetent or relevant." [Citations omitted.] Further, evidence is relevant if it has any probative value, however slight, upon a matter at issue in the case.' 434 So.2d 289
"Mitchell v. State,
"`The courts of this state have repeatedly held that photographs that accurately depict the crime scene and the nature of the victim's wounds are admissible despite the fact that they are gruesome or cumulative.' Land v. State,Woodall v. State,(Ala.Cr.App. 1995), aff'd, 678 So.2d 201 (Ala. 1996), cert. denied, 678 So.2d 224 , 519 U.S. 933 , 117 S.Ct. 308 (1996)." 136 L.Ed.2d 224
"`"Photographic evidence is admissible in a criminal prosecution if it tends to prove or disprove some disputed or material issue, to illustrate some relevant fact or evidence, or to corroborate or dispute other evidence in the case. Photographs that tend to shed light on, to strengthen, or to illustrate other testimony presented may be admitted into evidence. . . . Finally[,] photographic evidence, if relevant, is admissible even if it has a tendency to inflame the minds of the jurors."'
"Gaddy v. State,
"`"[P]hotographs depicting the character and location of wounds on a deceased's body are admissible even though they are cumulative and are based on undisputed matters. Magwood [v. State], 494 So.2d [124, 141 (Ala.Crim.App. 1985), affirmed,(Ala.), cert. denied, 494 So.2d 154 , 479 U.S. 995 , 107 S.Ct. 599 (1986)]. The fact that a photograph *1104 is gruesome is not grounds to exclude it аs long as the photograph sheds light on issues being tried. Id. Also, a photograph may be gruesome and ghastly, but this is not a reason to exclude it as long as the photograph is relevant to the proceedings, even if it tends to inflame the jury. Id." 93 L.Ed.2d 599
`"Ex parte Bankhead,
"Parker v. State,
"`With regard to photographs of the victim taken after he had been shot, even though they are cumulative and pertain to undisputed matters, generally photographs that depict the external wounds on the body of the victim are admissible. Bankhead,
"Sockwell v. State,
"`"`[p]hotographic evidence, if relevant, is admissible even if it has a tendency to inflame the minds of the jurors.' Ex parte Siebert,
"`DeBruce v. State,
"Hutcherson v. State,
Each of the photographs offered into evidence by the prosecution is gruesome. Some photographs show parts of the victim's body as they were found at the crime scene; other photographs show the left side of the victim's face, with her features essentially erased by blunt-force trauma. Brain tissue is visible in this photograph, as is the victim's collapsed left eye. Other photographs depict the stumps *1105 of the victim's hands, with the fingers and thumbs amputated. Still other photographs depict the stab wounds to the victim's body, missing teeth, and fragments of the skull. A few photographs depict portions of the victim's remains that were recovered away from her body itself. Each of the photographs, however, offers some information about the fear, pain, and degradation the victim suffered, the hopelessness she must have felt before she died, and the slow and painful manner of her death. Finally, still other photographs depict the victim's amputated fingers and thumbs — fingers and thumbs amputated to prevent her identification and to be kept аs souvenirs. One of the victim's finger's ultimately played a role in identifying her murderers.
Each of these photographs was necessary to help communicate important and relevant facts to Loggins's jury. This Court must not lose sight of the fact that this issue is presently before us only because of Loggins's horrific conduct. Because the victim's body was so savagely mutilated, before investigators employed by State law-enforcement agencies and other law-enforcement agencies could photograph it, the only photographs available to the prosecution for use at Loggins's trial were hideous, at best.3 The trial court did not err in denying Loggins's motion in limine, and the Court of Criminal Appeals did not err in affirming the trial court's denial of that mоtion in limine.
"2. The capital offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.
"Does not exist.
"Having considered the testimony of Dr. Fleming [the psychological expert for the defense], Dr. Rosecrans [the State's expert, who testified in rebuttal to Dr. Fleming], and all the testimony at both the guilt and sentencing stages of this trial the Court finds that the circumstance does not exist."
(Supp. C. 16-17.) Loggins also asserts that the trial court erred in failing to find that, at the time of the capital offense, Loggins's capacity to appreciate the criminality of his acts or to conform his conduct to the requirements of law was substantially impaired. The trial court's sentencing order, as it pertains to this statutory mitigating circumstance, reads:
"6. The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired.
"Does not exist.
"Having considered the testimony of Dr. Fleming and Dr. Rosecrans and all the testimony at both the guilt and sentencing stages of this trial the Court finds that this circumstance does not exist."Id. at 17.
Having heard the testimony of Dr. Fleming and Loggins's former teachers and counselors on the one hand, and the testimony of Dr. Rosecrans and Loggins's acquaintances on the other hand, the trial judge believed the testimony of Rosecrans and Loggins's acquaintances. "The credibility of witnesses is for the trier of fact, whose finding is conclusive on appeal. [Alabama appellate courts] cannot pass judgment on the truthfulness or falsity of testimony or on the credibility of witnesses.Collins v. State,
The evidence supports the trial court's findings. Much of the testimony presented by Loggins related to the rages that he supposedly suffered and their effect on his behavior. However, this evidence was rebutted by other evidence that supported a conclusion that Loggins knew precisely what he was doing when he killed the victim; i.e., that other evidence indicated Loggins thought to clean himself up and to create an alibi the morning after the crime; that Loggins helped to plan the kidnapping of a hitchhiker and that he and the codefendants killed Ms. Deblieux because she resisted the sexual advances of one of the men; and that Loggins remembered small details of the murder for weeks and even months after it took place.
Loggins arguеs that the trial court's conclusion that he was aware of what he was doing when he murdered the victim necessarily meant that the trial court ignored Dr. Fleming's testimony. We do not agree. Initially, we note that Alabama law allows the finder of fact to reject the testimony of an expert witness:
"[Alabama appellate courts] have held [that] `[t]he opinions of expert witnesses as to insanity are not conclusive on the jury, but are weighed like other evidence, and the jury may reject all expert testimony, though it is without conflict.' Flenory v. State,, 588 So.2d 940 942 (Ala.Cr.App. 1991), quoting Smith v. Smith,, 254 Ala. 404 (1950). 48 So.2d 546
"`Moreover, the fact that all witnesses testified for the defense is not a reason to overturn the jury's verdict because "[a] factfinder is not bound by expert testimony `even if all of the witnesses are presented by only one side.'" Ellis v. State,
The trial court's sentencing order provided, in pertinent part:
"8. The capital offense was especially heinous, atrocious or [cruel] as compared to other capital offenses:
"The Court finds, based on the following facts, that this aggravating circumstance does exist.
"After Ms. Deblieux was hit in the head with a bottle, she was then tackled and brought to the ground where she was repeatedly kicked in the head and body by the defendant and his accomplices. At one point one of them stood on her throat until she gurgled and said `Okay, I'll party' and died.
"The medical examiner testified that among other injuries, she had every . . . bone in her face broken at least once, and multiple head and body injuries, including a swollen tongue which indicated multiple blows to the head and asphyxiation.
"And although the 180 stab and incise wounds were committed postmortem, which included removing the lung, these injuries do reflect the shockingly evil conscienceless and pitiless nature of the crime."
(Supp. C. 16.) It is clear, from the plain language in the sentencing order, that the trial court's finding that this offense was "especially heinous, atrocious or cruel" when compared to other capital crimes was based only upon the injuries inflicted on the victim's body before her death.
Furthermore, the trial court's oral charge to the jury during the penalty phase read, in pertinent part, as follows:
"For a capital offense to be especially heinous, atrocious or cruel, it must be a conscienceless or pitiless crime which is unnaturally torturous to the victim. All capital offenses are heinous, atrocious and cruel to some extent, but not all capital offenses are especially heinous, atrocious or cruel compared to other capital offenses.
"You should not find or сonsider the aggravating circumstance unless you find that this particular capital offense involved a conscienceless or pitiless crime which was unnaturally torturous to the victim. This, of course, would not include acts of mutilation of the body of the deceased after her death."
(R. 1014-15.) (Emphasis added.) Thus, the trial court properly instructed Loggins's jury not to consider the postmortem mutilation of Ms. Deblieux's body in determining whether the criteria for the "heinous, *1108
atrocious or cruel" aggravating circumstance had been met. "It is presumed that trial courts follow their own instructions. Harris v.Rivera,
We have carefully reviewed the record of this case, and we have found no error, plain or otherwise. We find no evidence indicating that the sentence of death was imposed as a result of passion, prejudice, or any other arbitrary factor. The trial court instructed the jury not to be influenced by such factors, and juries are presumed to have followed the trial court's instructions. United States v. Tipton,
This Court has independently weighed the aggravating circumstances and the mitigating circumstances, in accordance with Ala. Code 1975, §
As Ala. Code 1975, §
The judgment of the Court of Criminal Appeals is affirmed.
AFFIRMED.
Hooper, C.J., and Maddox, Houston, Cook, See, Lyons, Brown, and Johnstone, JJ., concur.
"`"`[P]hotographic evidence, if relevant, is admissible even it has tendency to inflame the minds of the jurors.'"'"771 So.2d at 1086 .
"As we have previously stated, `"`[p]erpetrators of crimes that result in gruesome scenes have reason to expect that photographs of those gruesome scenes will be taken and admitted into evidence.'"'"