The appellant, Michael Brandon Samra, was convicted of capital murder for the killings of Randy Gerald Duke, Dedra Mims Hunt, Chelisa Nicole Hunt, and Chelsea Marie Hunt. The murders were made capital because the appellant committed them by one act or pursuant to one scheme or course of conduct. See § 13A-5-40(a)(10), Ala.Code 1975. After a sentencing hearing, the jury recommended, by a vote of 12-0, that the appellant be sentenced to death. The trial court accepted the jury’s recommendation and sentenced the appellant to death by electrocution.
Because the appellаnt does not challenge the sufficiency of the evidence to support his conviction, a lengthy recitation of the facts of the case is not necessary. However, we have reviewed the evidence, and we find that it is sufficient to support the appellant’s conviction. The evidence showed that the appellant, along with three codefendants, planned to kill Randy Gerald Duke. To conceal the murder of Randy Gerald Duke, they also killed Dedra Mims Hunt, Chelisa Nicole Hunt, and Chelsea Marie Hunt, who were present at the scene. The four codefendants obtained two handguns to carry out the plan. The аppellant and one codefendant then went to the home of Randy Gerald Duke, and the codefendant shot Randy Gerald Duke. The appellant shot Dedra Mims Hunt in the face, but the shot did not immediately kill her. Dedra Mims Hunt and her two minor children, Chelisa Nicole Hunt and Chelsea Marie Hunt, ran upstairs, and the appellant and his codefend-ant followed them and killed them. After shooting Dedra Mims Hunt several times,
I.
The appellant first challenges the. validity of §§ 15-12-21 and 15-12-22, Ala. Code 1975, as applied to attorneys who represent indigent defendants.
These limitations on compensation have withstood repeated challenges that they violate the separation of powers doctrine, constitute a taking without just compensation, deprive indigent capital defendants of the effective assistance of counsel, and deny equal protection in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, the Alabama Constitution, and Alabama state law. See Ex parte Smith,
“The decisions of the Supreme Court shall govern the holdings and decisions of the courts of appeals, and the decisions and proceedings of such courts of appeals shall be subject to the general superintendence and control of the Supreme Court as provided by Constitutional Amendment No. 328.”
§ 12-3-16, Ala.Code 1975. See also Barbour, supra.
Furthermore, in addition to the $1,000 for out-of-court work, § 15-12-21(d) provides that counsel shall be paid $40 per hour for all hours spent in court and shall be reimbursed for any expenses reasonably incurred, as long as the trial court approves them in advance. With regard to
In this case, the trial court approved approximately $11,800 in expenses for expert assistance for the defense — $5,300 for Dr. Natalie Davis to conduct a statistical investigation regarding pretrial publicity; $5,000 for an investigator; and $1,500 for Dr. George Twente, who provided expert testimony about gangs. At the appellant’s request, the trial court also approved the payment of expenses for an MRI examination to help evaluate the appellant’s mental condition. (C.R.462.) For these reasons, the appellant’s argument is not well taken.
II.
The appellant’s second argument is that the trial court erroneously denied his motion for a change of venue due to allegedly prejudicial pretrial publicity.
“ A trial court is in a better position than an appellate court to determine what effect, if any, pretrial publicity might have in a particular case. The trial court has the best opportunity to evaluate the effects of any pretrial publicity on the community as a whole and on the individual members of the jury venire. The trial court’s ruling on a motion for a change of venue will be reversed only when there is a showing that the triаl court has abused its discretion. Nelson v. State,440 So.2d 1130 (Ala.Cr.App.1983).’
“Joiner v. State,651 So.2d 1155 , 1156 (Ala.Cr.App.1994).”
Clemons v. State,
“In connection with pretrial publicity, there are two situations which mandate a change of venue: 1) when the accused has demonstrated ‘actual prejudice’ against him on the part of the jurors; 2) when there is ‘presumed рrejudice’ resulting from community saturation with such prejudicial pretrial publicity that no impartial jury can be selected. Sheppard v. Maxwell,384 U.S. 333 ,86 S.Ct. 1507 ,16 L.Ed.2d 600 (1966); Rideau [v. Louisiana,373 U.S. 723 ,83 S.Ct. 1417 ,10 L.Ed.2d 663 (1963) ]; Estes v. Texas,381 U.S. 532 ,85 S.Ct. 1628 ,14 L.Ed.2d 543 (1965); Ex parte Grayson,479 So.2d 76 , 80 (Ala.), cert. denied,474 U.S. 865 ,106 S.Ct. 189 ,88 L.Ed.2d 157 (1985); Coleman v. Zant,708 F.2d 541 (11th. Cir.1983).”
Hunt v. State,
The appellant first contends that there was prejudicial pretrial publicity that resulted in “presumptive prejudice,” thus
“Hunt relies on the ‘presumed prejudice’ standard announcеd in Rideau, and applied by the United States Supreme Court in Estes and Sheppard [v. Maxwell,384 U.S. 333 ,86 S.Ct. 1507 ,16 L.Ed.2d 600 (1966) ]. This standard was defined by the Eleventh Federal Circuit Court of Appeals in Coleman v. Kemp,778 F.2d 1487 (11th Cir.1985), cert. denied,476 U.S. 1164 ,106 S.Ct. 2289 ,90 L.Ed.2d 730 (1986). The court stated: ‘Prejudice is presumed from pretrial publicity when pretñal publicity is sufficiently prejudicial and inflammatory and the prejudicial pretrial publicity saturated the community where the trials were held.’778 F.2d at 1490 (emphasis added [in Hunt ]). See also Holladay v. State,549 So.2d 122 , 125 (Ala.Cr.App.1988), affirmed,549 So.2d 135 (Ala.), cert. denied,493 U.S. 1012 ,110 S.Ct. 575 ,107 L.Ed.2d 569 (1989).
“In determining whether the ‘presumed prejudice’ standard exists the trial court should look at ‘the totality of the surrounding facts.’ Patton v. Yount,467 U.S. 1025 ,104 S.Ct. 2885 ,81 L.Ed.2d 847 (1984); Murphy v. Florida,421 U.S. 794 ,95 S.Ct. 2031 ,44 L.Ed.2d 589 (1975); Irvin v. Dowd,366 U.S. 717 ,81 S.Ct. 1639 ,6 L.Ed.2d 751 (1961). The presumptive prejudice standard is ‘rarely’ applicable, and is reserved for only ‘extreme situations’. Coleman v. Kemp,778 F.2d at 1537 . ‘In fact, our research has uncovered only a very few ... cases in which relief was granted on the basis of presumed prejudice.’ Coleman v. Kemp,778 F.2d at 1490 .
“Hunt had the burden of showing that ‘prejudicial pretrial publicity’ saturated the community. Sheppard, supra. ‘[T]he burden placed upon the petitioner to show that pretrial publicity deprived him of his right to a fair trial before an impartial jury is an extremely heavy one.’ Coleman v. Kemp,778 F.2d at 1537 . ‘Prejudicial’ publicity usually must consist of much more than stating the charge, and of reportage of the pretrial and trial processes. ‘Publicity’ and ‘prejudice’ are not the same thing. Excess publicity does not automatically or necessarily mean that the publicity was prejudicial.
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“... In order to meet the burden of showing the necessity for a change of venue due to pretrial publicity on the grounds of community saturation, ‘the appellant must show more than the fact “that a case generates even widespread publicity.” ’ Oryang v. State,642 So.2d 979 , 983 (Ala.Cr.App.1993), quoting, Thompson v. State,581 So.2d 1216 , 1233 (Ala.Cr.App.1991), cert. denied,502 U.S. 1030 ,112 S.Ct. 868 ,116 L.Ed.2d 774 (1992).
“ ‘ “Newspaper articles alone would not necessitate a change in venue unless it was shown that the articles so affected the general citizenry through the insertion of such sensational, accu-sational or denunciatory statements, that a fair and impartial trial was impossible. Patton v. State,246 Ala. 639 ,21 So.2d 844 [1945].” ’
“Thompson,581 So.2d at 1233 , quoting McLaren v. State,353 So.2d 24 , 31 (Ala.Cr.App.), cert. denied,353 So.2d 35 (Ala.1977).
“A review of the media coverage contained in the record on appeal demonstrates that the majority of print media coverage was reasonably factual and more or less objeсtive. We find that the reportage by the news media did not result in the community being so ‘perva*1115 sively saturated’ with prejudicial publicity so as to make the court proceedings nothing more than a ‘hollow formality.’ Rideau, supra.”
Hunt,
In support of his motion for a change of venue, the appellant introduced testimony concerning a telephone poll of 305 Shelby County citizens about the сase. Of the people responding to the poll, 83.9 percent indicated that they had heard of the case. Of the 83.9 percent who had heard of the case, 20 percent indicated that they thought the appellant was guilty, 6.6 percent thought the appellant was probably guilty, 2.3 percent thought the appellant was probably not guilty, and 5.9 percent thought the appellant was not guilty. However, a majority, 65.2 percent, were uncertain as to the appellant’s guilt at that time. Also, the people conducting the poll did not ask the respondents whether they could set aside what they had heard about the case and decide it based solely on the evidence presented in court. The appellant also introduced numerous newspaper articles from local newspapers and portions of newscasts by local television stations covering the case from its inception through the trial, including information as to the area covered by the media.
Although the appellant presented evidence that indicated that many of the citizens of Shelby County had heard about the case through the media, he has not shown that the information presented by the media was prejudicial. We have examined the media materials presented to the trial court, and we find that most of the reports were factual and relatively objective rather than accusatory, inflammatory, or sensational. Therefore, we conclude that the materials did not contain prejudicial information. Further, the appellant did not prove that the media attention inflamed or saturated the community so that there was an emotional tide against him. Thus, he has not shown that the pretrial publicity in this case was so inherently or presumptively prejudicial as to constitute one of those “extreme situations” that warrant a presumption of prejudice frоm pretrial publicity.
The appellant also contends that the jury was actually prejudiced against him.
“The ‘actual prejudice’ standard is defined as follows:
“ ‘To find the existence of actual prejudice, two basic prerequisites must be satisfied. First, it must be shown that one or more jurors who decided the case entertained an opinion, before hearing the evidence adduced at trial, that the defendant was guilty. Irvin v. Dowd, 366 U.S. [717,] 727, 81 S.Ct. [1639,] 1645, [6 L.Ed.2d 751 , 758-59 (1961)]. Second, these jurors, it must be determined, could not have laid aside these preformed opinions and “rendered] a verdict based on the evidence presented in court.” Irvin v. Dowd,366 U.S. at 723 ,81 S.Ct. at 1643 [6 L.Ed.2d at 756 ].’
“Coleman v. Zant,708 F.2d at 544 .”
Hunt,
“Furthermore, in order for a defendant to show prejudice, the ‘ “proper manner for аscertaining whether adverse publicity may have biased the prospective jurors is through the voir dire examination.” Anderson v. State,362 So.2d 1296 , 1299 (Ala.Crim.App.1978).’ Ex parte Grayson,479 So.2d 76 , 80 (Ala. 1985), cert. denied,474 U.S. 865 ,106 S.Ct. 189 ,88 L.Ed.2d 157 (1985).”
Oryang v. State,
“With that said, the court will deny the motion for change of venue. Specifically, the court finds the best standard by which to measure that questiоn or that issue is the standard of the statement of the jurors. We have had 70 some-odd jurors who have told us that they can decide this without regard to what they may have seen or heard.
“There is no evidence from which the court can infer that any of those jurors are being anything other than completely truthful. And, in fact, the court finds that there is a basis to infer that they are being truthful.
“With that said, the motion for change of venue is denied.”
(R. 1391-92.) Thus, the appellant has not shown that any of the jurors were actually prejudiced against him.
For these reasons, the appellant did not show that the jurors were either presumptively or actually prejudiced against him. Therefore, the trial court did not abuse its discretion in denying the appellant’s motion for a change of venue.
III.
The appellant’s third argument is that, because the trial judge has the ultimate sentencing authority in capital cases in Alabama, the trial court erred in propounding Witherspoon questions to the veniremembers during voir dire examination. In Johnson v. State,
“The appellant also argues that because the trial court is the actual sentencing authority under the capital murder statute, the State has no interest in excluding venire members because of their inability to sentence a defendant to death. Under the Code of Alabama (1975), § 13A-5-46, in cases of capital оffenses, the jury shall return an advisory verdict recommending a sentence. Although this advisory verdict is not binding upon the court, it is nevertheless to be given consideration under § 13A-5-47(e) of the Code of Alabama (1975). Furthermore, this court has held that ‘Witherspoon jurors, those irrevocably committed to vote against the death penalty, are appropriately dismissed to insure a fair and impartial jury.’ Callahan v. State,471 So.2d 447 , 453 (Ala.Cr.App.1983), reversed on other grounds,471 So.2d 463 (Ala.1985). The jury plays a key role in the sentencing phase of a capital case, as is clear in the Alabama Supreme Court’s discussion of the jury’s role in such sentencing in Beck v. State,396 So.2d 645 , 662-63 (Ala.1980). The trial court’s exclusion from the jury panel of jurors opposed to the death penalty was proper.”
We further note that, during voir dire examination, the appellant submitted questions to the veniremembers about their feelings about the death penalty and challenged certain veniremembers based on their views about the death penalty. Even in capital cases, a party cannot assume inconsistent positions at trial and on appeal. Williams v. State,
For the above-stated reasons, we reject the appellant’s argument that the trial court erred in propounding Witherspoon questions to the veniremembers.
IV.
The appellant’s fourth argument is that the commutation of Judith Ann Neelley’s
V.
The appellant’s fifth argument is that the trial court erroneously admitted into evidence photographs of the victims and the crime scene and a videotape of the crime scene that allegedly served no purpose other than to inflame the passions of the jury. He specifically contends that it was not necessary to introduce these items into evidence because he had confessed to the crime and had described in that confession the injuries to the victims.
“ ‘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.... FinallyU 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.Cr.App.1985), affirmed,494 So.2d 154 (Ala.), cert. denied,479 U.S. 995 ,107 S.Ct. 599 ,93 L.Ed.2d 599 (1986) ]. The fact that a photograph is grue*1118 some is not grounds to exclude it as 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.’
“Ex parte Bankhead,585 So.2d 112 (Ala.1991). Accord, Ex parte Siebert,555 So.2d 780 , 783-84 (Ala.1989), cert. denied,497 U.S. 1032 ,110 S.Ct. 3297 ,111 L.Ed.2d 806 (1990); McElroy’s at § 207.01(2).”
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,585 So.2d at 109 . As we held in Jenkins v. State,627 So.2d 1034 [,1045] (Ala.Crim.App.1992), aff'd,627 So.2d 1054 (Ala.1993), ‘the state [has] the burden of proving that the victim [is] dead, and [photographs are] direct evidence on that point. Perpetrators of crimes that result in gruesome scenes have reason to expect that photographs of those gruesome scenes will be taken and admitted into evidence.’ ”
Sockwell v. State,
“ ‘ “photographic evidence, if relevant, is admissible even if it has a tendency to inflame the minds of the jurors.” Ex parte Siebert,555 So.2d 780 , 784 (Ala.1989), cert. denied,497 U.S. 1032 ,110 S.Ct. 3297 ,111 L.Ed.2d 806 (1990). See generally C. Gamble, McElroy’s Alabama Evidence, § 207.01(2) (4th ed.1991). “The photographs of the victim were properly admitted into evidence. Photographic exhibits are admissible even though they may be cumulative, ... demonstrative of undisputed facts, ... or gruesome.... ” Williams v. State,506 So.2d 368 , 371 (Ala.Cr.App.1986), cert. denied,506 So.2d 372 (Ala.1987).’
“DeBruce v. State,651 So.2d 599 , 607 (Ala.Cr.App.1993). See also Ex parte Bankhead,585 So.2d 112 (Ala.1991).”
Hutcherson v. State,
In this case; the trial court thoroughly reviewed each of the photographs and the videotape before admitting them into evidence. It carefully examined each photograph the State intended to introduce and refused to admit several that it determined were duplicative or unduly prejudicial. We have reviewed the photographs and the videotape, and we find that they were
VI.
The appellant’s sixth argument is that his trial attorneys rendered ineffective assistance because they allegedly did not adequately prepare and present a defense that he was not guilty by reason of mental disease or defect, even though they allowed him to enter such a plea. In an amended motion for a new trial, which was not verified, appellate counsel
“The court is personally familiar with the actions taken by defense counsel not only generally but specifically with regard to the issue raised in this motion. I am familiar that the defendant’s family I think paid the initial expert witness in this case, retained them privately, which of course they had the right to do. From having heard discussions by [defense counsel] and the State’s counsel, I believe on the record, they all acknowledged that he did an outstanding job of evaluation and he did a good job.
“There is no evidence to support from the record defendant’s allegation that counsеl was ineffective with regard to these issues or any issue. And again I’m reflecting back upon my personal recollection and knowledge of that and the transactions that occurred on the record and all of those did occur on the record. I mean there is not anything I’m relying on that’s not part of the record because there was really none of those type discussions or issues or anything like that raised off the record.”
(R. 2246417.) Later, in its written order denying the motion, the trial court found:
“Defendant’s Amended Motion for New Trial alleging ineffective assistance of counsel at trial level is due to be denied. The court specifically finds that there is no evidence that Defendant’s counsel was ineffective. In fact, the court is personally familiar with the actions of Defendant’s counsel with regard to the specific issues raised in Defendant’s amended motion. Defendant’s amended motion for new trial is denied.”
(C.R.533.)
To prevail on an ineffective-assistance-of-counsel claim, the appellant must show that 1) his counsel’s performance was deficient and 2) he was prejudiced by the deficient performance. Strickland v. Washington,
“There is no error in a trial court’s denial of a motion for new trial whеre no evidence is offered in support of that motion. Tucker v. State,454 So.2d 541 , 547-48 (Ala.Cr.App.1983), reversed on other grounds,454 So.2d 552 (Ala.1984); McKinnis v. State,392 So.2d 1266 , 1269 (Ala.Cr.App.1980), cert. denied,392 So.2d 1270 (Ala.1981). The motion itself was unverified and was not accompanied*1120 by any supporting affidavits. Consequently, the assertions of counsel contained therein ‘are bare allegations and cannot be considered as evidence' or proof of the facts alleged.’ Thompson v. State,444 So.2d 899 , 902 (Ala.Cr.App.1984) (quoting Daniels v. State,416 So.2d 760 , 762 (Ala.Cr.App.1982)); Smith v. State,364 So.2d 1 , 14 (Ala.Cr.App.1978). Similarly, statements made by counsel during a hearing on a motion for new trial cannot be considered evidence in support of the motion. Vance v. City of Hoover,566 So.2d 1251 , 1254 (Ala.Cr.App.1990).”
Arnold v. State,
Moreover,
“[a] distinction must be made between & failure to investigate the mental history of an accused and the rejection of insanity as a defense after proper investigátion. ‘[A]n attorney with considerable experience in criminal matters and, therefore, in dealing with a wide range of people ... may be presumed to have some ability to evaluate the mental capacity of his client.’ United States ex rel. Rivera v. Franzen,594 F.Supp. 198 , 202 (N.D.Ill.1984). ‘As a practical matter, when deciding whether to present an insanity defense, the criminal defendant’s lawyer is truly the final psychiatrist. It is not the role of a court to doubt his judgment.... Trial counsel may not reject the insanity defense ‘ “without pursuing the basic inquiries necessary to evaluate its merits intelligently.” ’ Rivera,594 F.Supp. at 203 . See also Martin v. Maggio,711 F.2d 1273 , 1280 (5th Cir.1983), rehearing denied,739 F.2d 184 (5th Cir.), cert. denied,469 U.S. 1028 ,105 S.Ct. 447 ,83 L.Ed.2d 373 (1984); Pickens v. Lockhart,714 F.2d 1455 , 1467 (8th Cir.1983) (‘[I]t is only after a full investigation of all the mitigating circumstances that counsel can make an informed, tactical decision about which information would be the most helpful to the client’s case’).”
Dill v. State,
VII.
Pursuant to § 13A-5-53, Ala.Code 1975, we must address the propriety of the appellant’s conviction and sentence of death. The appellant was indicted and convicted of capital murder because he killed two or more people by 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 the sentence of death was imposed as a result of the influence of passion, prejudice, or any other arbitrary factor. § 13A-5-53(b)(1), Ala.Code 1975.
The trial court found that the aggravating circumstances outweighed the mitigating circumstances. The trial court found that the State proved only one aggravating circumstance — the capital offense was especially hеinous, atrocious, or cruel compared to other capital offenses. See § 13A-5^9(8), Ala.Code 1975. The trial court found that two statutory mitigating circumstances existed: 1) the appellant had no significant history of prior criminal activity, § 13A-5-51(l), Ala.Code 1975, and 2) the age of the defendant at the time of the offense, § 13A-5-51(7), Ala.Code 1975. The trial court also found the following nonstatutory mitigating circumstances: 1) the age and maturity of the defendant; 2) the learning difficulties and disabilities of the defendant; 3) the family history and background and caring nature of the defendant; 4) the effect of gang or group involvement upon the defendant; 5) the immediate and continuing truthfulness and сooperation of the defendant with law enforcement officers; 6) the remorse the defendant expressed in statements to law enforcement officers; and 7) the fact that there are no aggravating circumstances other than that the offense was especially heinous, atrocious, or cruel when compared to other capital offenses. The sentencing order shows that the trial court weighed the aggravating and mitigating circumstances and correctly sentenced the appellant to death. Its decision is supported by the record, and we agree with its findings.
Section 13A-5-53(b)(2) requires us to weigh the aggravating and mitigating circumstances independently to determine the propriety of the appellant’s death sentence. After independently weighing the aggravating and mitigating circumstances, we find that the death sentence is appropriate.
As required by § 13A-5-53(b)(3), we must determine whether the appellant’s sentence was disproportionate or excessive when compared to the penalties imposed in similar cases. The appellant killed four people pursuant to one scheme or course of conduct. Similar crimes are being punished by death throughout this state. Taylor v. State,
Finally, we have searched the entire record for any error that may have adversely affected the appellant’s substantial rights, and we have not found any. Rule 45A, Ala. RApp. P.
AFFIRMED.
Notes
. The appellant also argues that “this'court's limitation of overhead hours to 25 hours should be declared unconstitutional.” (Appellant's brief at p. 9.) This claim is not ripe for review because appellate counsel has not yet filed a fee declaration form in this case and, thus, no suсh limitation has been imposed in this case. Moreover, this claim is without merit because this court has abolished any limitation on overhead hours in cases in which the death penalty has been imposed.
. In 1983, Judith Ann Neelley was convicted of capital murder and was sentenced to death. See Neelley v. State,
. The attorneys who represented the appellant at trial also represent him on appeal on all issues but his ineffective-assistance claim. However, at their request, the trial court appointed separate counsel to raise the appellant's ineffective-assistance-of-counsel claims in the trial court and to argue those claims on appeal.