¶2Samuel Lee Felder was indicted for the intentional killing of Elbert Lee Jackson during the course of a robbery in the first degree, in violation of § 13A-5-40 (a)(2), Code of Alabama 1975. The jury found the *1323 appellant "guilty as charged in the indictment" and recommended the appellant be sentenced to death. After independently weighing the aggravating and mitigating circumstances of this case, the trial judge accepted the jury's recommendation and sentenced the appellant to death. See Appendix A, hereto attached and made a part hereof.
¶3On the night of April 28, 1982, Elbert Lee Jackson was employed by the Yellow Cab Company and was driving cab No. 7. At approximately 10:15 p.m., Jackson radioed the night dispatcher and wanted to know the fare from Trailways Bus Station to Madison Park. A few minutes later, the dispatcher called Jackson and told him the fare would be $7.50 or $8.00. Jackson stated he was en route to Madison Park. Later that night, the dispatcher attempted several times to reach Jackson by the radio but was unsuccessful.
¶4At 2:20 a.m. on April 29, 1982, Yellow Cab No. 7 was found on I-65 in Lowndes County near the Fort Deposit exit. Blood was found on the trunk, the antenna and the sign on the top of the cab. The trip lever arm of the meter had been broken off and the microphone cord had been torn loose. The cab was out of gas. An identification card with Jackson's name and photograph were found inside the cab as well as a belt buckle. The appellant's fingerprints and palm prints were found on the cab as well as the victim's fingerprints.
¶5On the same day around 6:00 a.m., Jackson's body was found lying face down on Dagger Hole Road in the Madison Park area. A rope was tied around Jackson's neck and the rope was tied to a limb of a bush. The body had sustained numerous lacerations and abrasions. An autopsy revealed the cause of death to be ligature strangulation.
¶6A belt, a cap, a wallet and a meter flag were found around the area where the body was found.
¶7Franklin Ellis testified that on the night of April 28, 1982, he, Tommy Floyd, Gregory Acres and the appellant went to the Trailways Bus Station to use the restroom. After they left the restroom, the foursome went outside and got into Yellow Cab No. 7 and directed Jackson to take them to Madison Park. Once the cab was en route, they learned the fare would be $8.00. Ellis, realizing he did not have any money, asked to return to the bus station. Jackson took Ellis back to the bus station where he got out. The other three stayed in the cab and it left again.
¶8The next day, Floyd told Ellis that he, Acres and the appellant had killed Jackson.
¶9On October 8, 1982, at approximately 10:00 p.m., the Montgomery Police Department received an anonymous phone call concerning the murder of Jackson. After the call, Officer R.T. Ward went to Jackson Hospital and talked with Ellis. When Ward left the hospital, he went to the Montgomery City Jail and got the appellant and took him to the robbery homicide office of the Montgomery Police Department.
¶10At this point, the appellant was given his Miranda rights and he stated he understood them. The appellant then signed a waiver of rights form and gave a taped statement. The following morning the appellant read the typed transcript of his statement and signed it. The statement the appellant made contained basically the same facts as those to which he testified at trial.
¶11The appellant stated that on the night of April 28, 1982, he, Acres and Floyd had been together drinking and smoking pot. At some point, they met up with Ellis and the four went to the Trailways Bus Station. Once at the bus station, Acres suggested that they "trick" the cab.
¶12All four of them got in the cab and told Jackson to go to Madison Park. Once they heard the fare would be $8.00, Ellis was returned to the bus station and the other three remained. Once the cab arrived in Madison Park, Jackson was told to drive down Dagger Hole Road. At some point, Floyd told Jackson to stop the cab and Acres grabbed him from behind while Floyd put the car in park and pulled the radio wires out. Next, the appellant and *1324 Floyd pulled Jackson out of the cab and the three began to beat and stomp him. Acres attempted to tie up Jackson with his belt but it broke so the appellant got a rope out of the trunk of the cab. Acres put the rope around Jackson's neck and began to choke him.
¶13At some point the appellant told the others not to kill Jackson but Acres said it was necessary to kill him so he would not be able to identify them.
¶14Floyd then told the appellant to run over Jackson with the cab. According to the appellant, he could not get the car in gear so Floyd got in the cab and ran over Jackson. Floyd testified that the appellant ran over Jackson with the cab.
¶15The threesome then dragged Jackson over to a bush and tied the rope around his neck and to the bush. They took some money out of Jackson's pocket and wallet and got in the cab and drove it until it ran out of gas on I-65.
¶16The appellant presented several witnesses who testified that the appellant was a fine person and a good worker and not a violent person. Some of those witnesses stated he had gotten in with the wrong crowd and was easily led.
¶18 "Q. Now, you're saying somebody told you to run over the man?
¶19"A. Yes, sir.
¶20"Q. Who told you that?
¶21"A. Tommy Floyd.
¶22 "Q. And you got in the car to run over the man, right?
¶23"A. Yes, sir.
¶24"Q. You couldn't get the car in reverse?
¶25"A. Yes, sir.
¶26 "Q. But you could . . . If you had gotten it in reverse, you would have run over him?
¶27 "A. It was locked. It . . . I couldn't get it down in there.
¶28 "Q. No, sir. The question was . . . Tommy Floyd told you to run over him, and you said you did get in the car to run over him but you couldn't get it in reverse. The question to you, sir, was: If you had gotten it in reverse, you would have run over him?
¶29"MR. CARROLL: We're going to object to that question.
¶30"THE COURT: Overruled.
¶31"Q. Wouldn't you, sir?
¶32"A. Yes, sir." (R. 240-241).
¶33The basis of defense counsel's objection was that the question propounded by the district attorney was irrelevant and immaterial. We disagree with this appellant.
¶34It is a well-settled rule of law that a witness may be asked, during cross-examination, what his motive, reason, purpose or intent was in doing certain acts testified to by him on direct examination. Patton v. State, 197 Ala. 180, 72 So. 401 (1916); Gamble, McElroy's Alabama Evidence § 102.07 (2)(c) (3d ed. 1977).
¶35Intent is an essential element of the offense of capital murder. To be convicted of this offense, the accused must have had a particularized intent to kill. The State's question to the appellant was obviously asked for the purpose of ascertaining if the appellant had the intent to kill Jackson. Granted, Jackson's cause of death was not due to having been run over, but if the appellant had run over him, it is very likely that Jackson could have been killed as a result of this act or at least it could have contributed to his death. The appellant's testimony as to why he got in the cab and for what purpose was extremely relevant and material to this case.
¶36Furthermore, the appellant was not prejudiced by his answer to the question. He had already testified on direct examination that he got in the cab "to run over Jackson." *1325
¶37We must also point out that just because the appellant testified that he would have run over Jackson had he been able to get the cab in reverse is no reason to exclude this testimony. During the trial of Wayne Eugene Ritter, he was allowed to testify that he would have also shot Edward Nasser if his partner, John Louis Evans, had not been "in the line of fire." See Evans and Ritter v. State, 361 So.2d 666 (Ala. 1978). Merely because the accused is a defendant in a capital case and makes an incriminating statement is no reason to exclude the testimony. If the appellant had stated he would not have run over Jackson if he had been able to get the car in reverse, we seriously doubt defense counsel would have good grounds of complaint to this testimony.
¶38Therefore, we hold that the State's question and the appellant's answer were relevant and material and were properly admitted by the trial judge.
¶40During the voir dire of the venire, the following took place:
¶41 "THE COURT: Ladies and Gentlemen, as I mentioned to you at the beginning of the case, the charge here is a capital felony. The possible punishments on a capital felony carry the possibility of a possible death by electrocution sentence, if there is a conviction; therefore, I am required to ask you the following question: Is there any among you who would not be willing to consider all of the possible penalties as provided by State law? That is to say, is there anybody who would be irrevocably committed before the trial has begun, without any thought as to the facts that will emerge, to voting against a conviction and the imposition of the death penalt regardless of the facts and circumstances?
¶42 "I'm going to ask you all stand together and let me repeat it one more time and then I will talk to you. I'm going to read this again so that I can make it absolutely clear.
¶43 "Is there any among you who would not be willing to consider all of the possible penalties as provided by State law? That is to say: Is there any among you, is there anybody who would be irrevocably committed, irrevocably committed, before the trial has begun, without any thought as to the facts that will emerge, to voting against a conviction and the imposition of the penalty of death regardless of the facts and circumstances? If that is your position, would you please stand at this time." (R. 19-20).
¶44At this point, the trial judge individually questioned each of the jurors who were standing concerning their feelings about the death penalty. Before Juror Barnett was questioned the trial judge asked six other jurors if they were irrevocably committed against the death penalty. When Barnett was asked if he was committed against the death penalty, he replied that he was.
¶45As can be seen from the above-quoted portion of the record, the trial court clearly asked if there were any jurors who were irrevocably committed against the death penalty under any circumstances. Juror Barnett answered in the affirmative.
¶46We do not find Juror Barnett, or any other jurors, were improperly excluded from the venire. Therefore, there is no basis for reversal on this issue.
¶48The appellant now claims, citing Jackson v. Denno,378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), that the appellant was entitled to a hearing on the voluntariness of the confession outside the presence of the jury.
¶49An accused is entitled to a hearing on the voluntariness of his confession and a proper hearing was held when defense counsel examined Ward on voir dire. However, an accused is not entitled to a hearing outside the presence of the jury unless he specifically requests that it be held outside the presence of the jury. A trial judge is not required to remove the jury for the hearing absent a request by the accused. Harris v.State, 406 So.2d 1074 (Ala.Crim.App. 1981); Gamble, McElroy'sAlabama Evidence, § 200.02 (5)(6) (3d ed. 1977). Defense counsel did not request a hearing outside the presence of thejury in his request for an evidentiary hearing or when he asked to examine Ward on voir dire.
¶50Therefore, we hold the appellant did receive a full and fair hearing on the voluntariness of his confession and cannot now complain that such hearing was not held outside the presence of the jury.
¶51Even had we held that it was error to not hold the hearing outside the presence of the jury, defense counsel certainly waived this error by failing to object to the admission of the statement into evidence. Moreover, the appellant was not harmed by the admission of his confession since it was substantially the same as his own testimony during trial. Jones v. State,50 Ala. App. 36, 276 So.2d 621 (1973).
¶52After a review of the record, it is clear that the appellant's confession was voluntarily made and properly admitted into evidence. Hegman v. State, 50 Ala. App. 486,280 So.2d 192 (1973).
¶53Therefore, we find no error occurred on this issue.
Dewhart v. State, 455 So.2d 167 (Ala.Crim.App. 1984); Brooksv. State, 471 So.2d 507 (Ala.Crim.App. 1984).¶55 "In Swain v. Alabama, 380 U.S. 202, [85 S.Ct. 824, 13 L.Ed.2d 759] (1965), the Supreme Court recognized that a defendant's constitutional rights might be violated if there existed a pattern of deliberate and continued exclusion of blacks from juries by the State. However, the court also observed that a defendant bears a heavy burden in attempting to demonstrate systematic discrimination of constitutionally significant magnitude."
¶56There is no requirement that a prosecutor be examined about his reasons for the use of his challenges in a case. Swain v.Alabama, supra; Walker v. State, 428 So.2d 139 (Ala.Crim.App. 1982); Smith v. State, [Ms. 6 Div. 415, July 24, 1984] (Ala.Crim.App. 1984).
¶57However, in the case at bar, the prosecutor was questioned on this matter and the pertinent portion of the record is quoted below:
¶58"THE COURT: What did you use to strike the jury?
¶59 "THE WITNESS: Your Honor, I took materials that . . . Well, first of all, the strike list is furnished by the court and certain other information gathered by our office. I struck those that I thought *1327 would acquit and did not strike those that I thought would tend to convict. That is the basis on which I struck this jury.
¶60"THE COURT: Did you base it totally on color?
¶61"THE WITNESS: No, sir." (R. 60).
¶62Since the prosecutor told the trial court that he did not use his strikes to exclude blacks from the jury and the appellant did not present any evidence of the systematic exclusion of blacks from the jury, it is clear that the appellant failed to meet the required burden of proof on this issue. Therefore, we find no error occurred in this instance.
¶64 "In any case in which the death penalty is imposed, in addition to reviewing the case for any error involving the conviction, the Alabama court of criminal appeals, subject to review by the Alabama supreme court, shall also review the propriety of the death sentence. This review shall include the determination of whether any error adversely affecting the rights of the defendant was made in the sentence proceedings, whether the trial court's findings concerning the aggravating and mitigating circumstances were supported by the evidence, and whether death was the proper sentence in this case."
¶65First of all, there is no error contained in the record which would adversely affect the rights of the appellant.
¶66Secondly, the trial judge's findings concerning the aggravating and mitigating circumstances in this case are fully supported by the evidence presented at trial.
¶67Thirdly, to determine if death was the proper sentence in this particular case, this court must decide:
¶68 "(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor;
¶69 "(2) Whether an independent weighing of the aggravating and mitigating circumstances at the appellant level indicates that death was the proper sentence; and
¶70 "(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant."
¶71Ala. Code, § 13A-5-53 (b) (1975).
¶72This court cannot find anything in this record which indicates that this sentence was imposed under the influence of passion, prejudice or in any arbitrary manner.
¶73After an independent examination of the aggravating and mitigating circumstances in this case, we find that the four statutory aggravating circumstances of this case clearly outweigh the mitigating circumstances.
¶74Finally, the appellant's sentence of death is not excessive or disproportionate in relation to the sentence imposed upon other defendants in similar cases. See Womack v. State,435 So.2d 754 (Ala.Crim.App), affirmed, 435 So.2d 766 (Ala. 1983);Ritter v. State, supra; Luke v. State, 444 So.2d 393 (Ala.Crim.App), affirmed, 444 So.2d 400 (Ala. 1983); Baldwin v.State, 456 So.2d 117 (Ala.Crim.App. 1983).
¶75After a thorough examination of this record, we find it free of error. This appellant's conviction and sentence of death is due to be and is hereby affirmed.
¶76AFFIRMED.
¶77All the Judges concur.
¶79In a separate sentencing phase, the same jury returned its advisory verdict that the defendant be sentenced to death.
¶80The Court in accord with the statutory directives set forth in Section 13A-5-47 (d), Code of Alabama, has ordered and received a written pre-sentence report which has been made part of the record in this case. No part of this pre-sentence report has been, or shall be, kept confidential.
¶81The State and Defendant have been given the right to present evidence to the Court about any part of the report. The Court has considered the Pre-sentence report as to the background of the Defendant and as to other information in the report which is prescribed by law or Court rule for felony cases generally. The Court, however, has made its own independent analysis of the existence or nonexistence of aggravating and mitigating circumstances. The Court has made its own special application of the facts which the Court has heard and carefully reviewed to the enumerated aggravating circumstances (Section 13A-5-49, Code of Alabama) and to mitigating circumstances whether enumerated in the Code or not (Section 13A-5-51 and Section13A-5-52, Code of Alabama).
¶82The parties have been given full and ample opportunity to present arguments concerning the existence of aggravating and mitigating circumstances.
¶83The Court now, in accord with the Alabama Code Section13A-5-47 (d), proceeds to enter written findings of fact summarizing the crime and the Defendant's participation in it. The Court also proceeds to enter specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in Section 13A-5-49, each mitigating circumstance enumerated in Section 13A-5-51, and as to any additional mitigating circumstances offered pursuant to Section13A-5-52.
¶85After a six months investigation, Montgomery police talked with Frank Ellis, who had been beaten by Gregory Acres and was in the emergency room at Baptist Hospital. Ellis stated that Acres had beaten him because Acres was afraid Ellis was going to report what had happened to the police. Felder, Floyd and Acres were arrested shortly thereafter and charged with capital murder.
¶86SPECIFIC FINDINGS CONCERNING THE EXISTENCE OR NONEXISTENCE OF EACH AGGRAVATING CIRCUMSTANCE ENUMERATED IN SECTION 13A-5-49; EACH MITIGATING CIRCUMSTANCE ENUMERATED IN SECTION 13A-5-51; AND ANY ADDITIONAL MITIGATING CIRCUMSTANCES OFFERED PURSUANT TO SECTION 13A-5-52.
¶88The Defendant has not been previously convicted of another capital offense nor of a felony involving the use of a threat of violence to the person.
¶89This offense is not considered by the Court to involve the aggrevating circumstance of "knowingly creating a great risk of death to many persons".
¶90The offense was committed while the defendant was engaged in or was an accomplice in the commission of a robbery.
¶91The evidence does not indicate the crime was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.
¶92Under the evidence presented, the Court does not find or consider that the capital offense was committed for pecuniary gain.
¶93The Court does not find or consider under the evidence presented that the capital offense was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.
¶94The Court does find from the evidence presented at trial that the capital offense was especially heinous, atrocious and cruel compared to other capital offenses. This finding is based upon the evidence that the victim was repeatedly kicked, stomped, beaten, tied to a tree with the rope around his neck, and run over by his own taxi cab. The evidence indicates that at no time did the victim ever resist or fight back. The conclusion of the Court as to the heinous, atrocious or cruel nature of the offense is made after a careful review of all the evidence and after considering the totality of the circumstances of this case.
¶96The preponderance of the evidence does not show that Defendant was under the influence of extreme mental or emotional disturbance at the time of the capital offense. *1330
¶97The preponderance of the evidence establishes that the victim, Elbert Lee Jackson, was not a participant in the Defendant's conduct, and the preponderance of the evidence further establishes that the victim did not consent to the Defendant's conduct.
¶98The evidence establishes that the Defendant was a major participant in the capital offense.
¶99The preponderance of the evidence establishes that the Defendant was not under extreme duress at the time of the capital offense.
¶100The preponderance of the evidence further establishes that the Defendant was not under the substantial domination of another person.
¶101The Court determines from a preponderance of the evidence presented that Samuel Felder did have the capacity to appreciate the criminality of his conduct and finds no indication that this capacity was impaired.
¶102The evidence indicates that the Defendant was twenty-four years of age at the time of the capital offense.
¶103In addition to the above enumerated mitigating circumstances, the Defendant was given an opportunity to present any other evidence of mitigating circumstances. The Defendant, through Counsel, asked the Court to consider that Samuel Felder suggested to the co-defendants that they should stop and that they should carry the victim to a hospital.
¶105It is the conclusion of this Court that the aggravating circumstances overwhelmingly outweigh the mitigating circumstances. Accordingly, the Court accepts the recommendation of the jury that the penalty of death be imposed upon Samuel Felder.
¶106Formal sentencing be and is hereby set for June 2, 1983, at 9:00 a.m.
¶107DONE this the 1st day of June, 1983.
/s/ Randall Thomas H. RANDALL THOMAS Circuit Judge