WISE, Presiding Judge.
The appellant, Jodey Wayne Waldrop, was convicted of capital murder for the killing of his infant son, Jodey Chance Waldrop. The murder was made capital because the victim was less than fourteen years of age, a violation of §
13A-5-40(a)(15), Ala. Code 1975. After a sentencing hearing, by a vote of 11-1, the jury recommended that Waldrop be sentenced to death. The trial court followed the jury's recommendation and sentenced him to death. This appeal followed.
Because this is a case in which the death penalty has been imposed, we have reviewed the record for plain error. See Rule 45A, Ala. R. App. P. Although the lack of an objection at trial will not bar our review of an issue in a case involving the death penalty, it will weigh against any claim of prejudice Waldrop may raise. See Ex parte Kennedy, 472 So. 2d 1106 (Ala. 1985). Rule 45A, Ala. R. App. P., provides:
"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review ... whenever such error has or probably has adversely affected the substantial right of the appellant."
"[This] plain-error exception to the contemporaneous-objection rule is to be `used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.'" United States v. Young, 470 U.S. 1, 15, 105 S. Ct. 1038, 1046, 84 L. Ed. 2d 1 (1985) (quoting United States v. Frady, 456
U.S. 152, 163 n.14, 102 S. Ct. 1584, 1592 n.14, 71 L. Ed. 2d 816 n.14 (1982)).
The following summary of the relevant facts, as prepared by the trial court, may be helpful to an understanding of this case:
"Evidence indicated that the Defendant was at home on September 22, 2005. The Defendant and his wife planned to go to the North Alabama State Fair that night. The Defendant's wife, Starlette [Tiffany] Waldrop, arranged for babysitters for their children, including the victim, Jodey Chance Waldrop, who was approximately three and a half weeks old at the time. Witnesses testified that they saw the victim, Jodey Chance Waldrop, the afternoon of September 22, 2005. The child appeared to be normal and in good health at that time.
"Starlette Waldrop left the house with her grandmother to make a phone call and get her grandmother's car so they could go to the fair. The Defendant was left alone with the victim and another small child of the Defendant's. Starlette Waldrop arrived back at her residence. The Defendant motioned for her to come in the house. He told her that Jodey Chance Waldrop was not breathing. She picked him up and rushed him to Red Bay Hospital. The child was lifeless and blue. The emergency room staff worked with the child. The child was transported to Children's Hospital in Birmingham, Alabama by helicopter.
"The child was treated at Children's Hospital by Dr. [Jeffrey] Alten. Dr. Alten testified at trial that the child was placed on life support. Dr. Alten testified that diagnostic testing was done, and it was determined that the child was brain dead.
The child was taken off life support a couple of days later, and the child died.
"Dr. Alten testified that the type of head trauma that the victim suffered could only be the result of child abuse or an automobile accident. The Department of Human Resources was notified and an investigation began.
"Dr. Alten testified that the child died of being severely shaken and potentially being placed back down on some type of surface. Dr. Alten testified that dropping a child would not cause this type of injury. Dr. Alten testified that only a severe shaking could cause this type of injury.
"An autopsy was performed on the victim after his death. Dr. Emily Ward performed the autopsy. Dr. Ward testified that the child's death was caused by blunt force trauma to the head. Dr. Ward testified that the victim could have been shaken for several minutes.
"The testimony of Dr. Alten and Dr. Ward refuted the testimony and statements of the Defendant."
(C.R. 5-6.)
In addition to the testimony set forth above, Starlette Waldrop testified that Waldrop had questioned whether the victim and another of her four children were actually his children.1 She also testified that, while they were at the hospital with the victim, Waldrop said something about jumping
out of a fourth-floor window and killing himself. Starlette further testified that Waldrop wanted to keep the victim on life support, even though the doctors had determined that he was brain dead. Finally, she testified that, after the victim died, Waldrop said that the victim had been choking, that he tried to perform CPR, and that he tried to do everything he could for the victim.
Peggy Williams Logan, a social worker in the intensive care unit at Children's Hospital, testified that she spoke to Starlette and Waldrop about what had happened to the victim. She summarized Waldrop's response as follows:
"He said that he was ironing his clothes in one room and the oldest child was in the room with him and the young child was in a carriage in another room, in the living room. And when he walked in the room, he noticed the child had blue lips and milk coming from the mouth and that's when he screamed out, and the mother had just driven up."
(R. 1136.)
Agent Charles Treslar of the Alabama Bureau of Investigation testified that he interviewed Waldrop and Starlette at Children's Hospital on September 23, 2005. He testified that, at that time, Waldrop stated as follows:
"After Tiffany left the house on Thursday, 9/22/05, Tiffany was going to drop off the
grandmother, Beverly Priest and Roy Wasson and [K.J.] Tiffany was gone 20 minutes. I plugged in the iron and cleaned it off. I got my shorts out of the dryer. I layed my shorts on the bed and went and got [the other child who was there]. I brought him in my bedroom and layed [the other child] on the bed. Jodey Jo was left in the living room in his bouncer. Jodey Jo was fed 3 oz. of food, and then put in his bouncer earlier. While I was ironing, Jodey Jo made a noise. I went to look and saw Similac coming out his nose, bubbling out. I wiped his nose. I wiped it off. I saw Tiffany in the driveway and yelled to please come here. Jodey Jo was not breathing, but I felt his heart beat. Tiffany came in, grabbed Jodey Jo and took off to the hospital. I feel like the doctors are accusing us of hurting him. We are good to our kids. It has mentally stressed me out. I've seen the other kids hit Jodey Jo, but not hard. The kids like to hit and play like Power Rangers. They are kids. If they did, they didn't mean to hurt him. I don't know if they did, but they didn't mean to hurt him."
(C.R. 378.)
Sally Clark testified that she was employed by the Franklin County Department of Human Resources and that she spoke to Waldrop at Children's Hospital on September 25, 2005. She also testified that she asked him about what happened while he was with the victim and another child, and she described his response as follows:
"And he told me he was ironing his clothes, they were getting ready to go out. He had Chance and [another child], they were in the den, and he was — or the living room, and he was ironing in the bedroom. And he went and got [the other child]. He
said that [the other child], you had to super — he was a year old and you had to supervise him around the baby, and Chance was in his bouncy seat.
"He went and got [the other child] and brought him back in the bedroom with him and continued ironing his clothes. A few minutes later he said he heard Chance make a whimper sound, and he described it as sounding like a cat. He said he waited a minute, and then went to check on the baby and that's when he noticed that Chance wasn't breathing, and at that very same time he noticed Starlette coming back to the house so he yelled for her to help."
(R. 916-17.) Finally, the following occurred during the State's redirect examination of Clark:
"[PROSECUTOR:] Just one or two other questions. Did you ask the defendant about doing any CPR on the child?
"[CLARK:] I asked what he did when he, you know, the second he realized that Chance wasn't breathing. I don't think I specifically asked CPR, but I just asked what he did when he noticed that the child wasn't breathing.
"[PROSECUTOR:] And what did he tell you?
"[CLARK:] Well, he said, you know, the very second that he noticed the child wasn't breathing that his wife pulled up in the driveway. So I specifically asked, you know, who got the child out of the bouncy seat, and he says that he waited for her to do that. He denied that he picked him up or did anything to get him to breathe.
"[PROSECUTOR:] Did he say he ever shook the child?
"[CLARK:] I specifically asked if he shook the child, and he denied that he did.
"[PROSECUTOR:] Did he say he ever touched the child in any way?
"[CLARK:] He said that he wiped the formula that was coming out of his nose and that was it, but he was still in the bouncy seat when that happened.
"[PROSECUTOR:] When that happened? And that the child's mother came and picked the child up out of the bouncy seat?
"[CLARK:] Correct.
"[PROSECUTOR:] Okay. He didn't say anything about trying to perform CPR on the child?
"[CLARK:] He did not say that to me.
"[PROSECUTOR:] And didn't say anything about trying to feed the child and dropping the child on the floor or anything like that?
"[CLARK:] No. He didn't say that to me.
"[PROSECUTOR:] Okay. But he did ask you if there were going to be any charges made?
"[CLARK:] Correct."
(R. 922-24.)
Agent Marc McCormick of the Alabama Bureau of Investigation testified that he was involved in the investigation of the victim's death and that he spoke to Waldrop on September 26, 2005, the day after the victim died.
He also testified that, at that time, Waldrop made the...
