Summary:

Jack Harrison Trawick abducted Stephanie Gach from the parking lot of her apartment complex in Birmingham on October 9, 1992, after following her home from a local shopping mall. Trawick took Stephanie to an isolated area, where he beat her with a hammer, strangled her, stabbed her through the heart, and tossed her body off an embankment. Her body was found on October 10, 1992.

On October 26, 1996, while investigating reports of several attempted abductions of women, the Jefferson County Sheriff's Department interviewed Trawick as a suspect in relation to those reports. During a second interview, the police asked Trawick whether he had had any involvement with the murder of Stephanie Gach.

In a third interview, conducted on October 29, 1996, Trawick indicated that he knew something about the murder and, in a fourth interview conducted on the same day, Trawick confessed to the crime; he was then arrested for it.

The grand jury indicted Trawick for the capital offense of murder committed during a first-degree kidnapping. After arraignment, he pleaded not guilty and not guilty by reason of mental disease or defect. After a trial, the jury found Trawick guilty of capital murder and by a vote of 10-2 recommended a sentence of death; the trial court sentenced him to death in accordance with this recommendation. In 1995 a jury also found him guilty of killing 27-year-old Aileen Pruitt and sentenced him to life in prison.

Citations:

Ex Parte Trawick, 698 So.2d 162 (Ala.Cr.App. 1997) (Direct Appeal).
Trawick v. Allen, 520 F.3d 1264 (11th Cir. 2008) (Habeas).

Final/Special Meal:

Fried chicken, French fries, onion soup and a roll.

Final Words:

"I wish to apologize to the people who I have hurt and I ask for their forgiveness. I don't deserve it, but I do ask for it."

DOC#: Z561
Inmate: Trawick, Jack W
Gender: M
Race: W
DOB: 02-18-1947
Prison Holman
Received: 05-11-1994
Charge: MURDER
County: Jefferson

Alabama Death Row inmate Jack Trawick apologizes before execution

By Tom Gordon Birmingham News

Friday, June 12, 2009

ATMORE - Twice-convicted murderer Jack Trawick died by lethal injection tonight, as relatives of the two murder victims watched. Trawick, 62, who also had claimed to have committed another Birmingham area murder and two in the Pacific northwest, was executed at 6:17 p.m. for abducting, stabbing and strangling Stephanie Gach, 21, of Irondale on the night of Oct. 9, 1992. He had been on Death Row at Holman Correctional Facility since 1994, and no legal efforts were made to stop his execution.

In his final statement, Trawick said: "I wish to apologize to the people whom I have hurt and I ask for their forgiveness. I don't deserve it but I do ask for it."

Stephanie Gach's sister Heather watched Trawick die. So did Donna Middlebrooks, sister of Aileen Pruitt, 26, whom Trawick was convicted of stabbing to death a few months before Gach's death. Trawick had been sentenced to life without parole for that killing.

Trawick's witnesses were two of his cousins, Rebecca and Norman Sudduth; James Slack, a UAB faculty member who has been a spiritual adviser to Trawick, Randy Susskind, an attorney with the Equal Justice Initiative, Ben Sherrod of the Kairos prison ministry, and Tod Bohannon, the operator of a Web site that auctions memorabilia from notorious criminals.

Stephanie Gach's mother, Mary Kate, who had planned to give a statement after Trawick's execution, chose not to come to Atmore after hearing that Trawick was planning to give his possessions to Bohannon. "That sort of threw her for a loop," said Janette Carr, victims advocate for Atty. Gen. Troy King.

Prison officials said Trawick had decided to give Bohannon a Bible, a dictionary, a wallet, a television, and assorted photos and cosmetics. He also planned to give pictures and a Bible to a cousin, Mary Anne Pearson. Department of Corrections spokesman Brian Corbett said authorities were going to examine all of the items before releasing them. Essays attributed to Trawick that detail the Gach murder, and a drawing, also attributed to him, that shows the mutilated body of a young woman, have been for sale on the Web. An envelope signed by Trawick is listed on Bohannon's Web site, with a starting bid of $15.

Prison officials said Trawick was in a good mood throughout the day, receiving visitors and eating a last meal of fried chicken, French fries, onion soup and a roll. Though Trawick was sentenced to life without parole for Pruitt's murder, a new state law allowed up to two of Pruitt's family members to witness Trawick's execution because only Heather Gach was on hand for the Gach family.

A provision in that law basically states that if an inmate has another murder conviction on his record, two immediate family members of the victim of that crime can witness his death. That only applies if the six available family witness spaces are not taken by those with immediate family ties to the crime for which the inmate is being executed. Joshua Pruitt, Aileen Pruitt's son, had been planning to come and witness Trawick's death, but chose not to.

Eliot Kew, a British filmmaker who plans to make a movie about people who collect items from serial killers was in the Atmore area. Prison officials said he was not allowed to be near the execution site or around relatives of Trawick's victims while they were on state property.

Trawick's execution ended a life that his defense attorney said was plagued by mental illness, and decades of crime that included burglaries he said he committed to terrify women he found attractive. In an interview after the Gach and Pruitt murders, Trawick said he cut up women's undergarments and left menacing lipstick messages on mirrors.

After he was convicted of Gach's murder in 1994, Trawick wrote Circuit Judge James Hard, who presided in his trial. In the letter, Trawick told Hard that if he did not sentence him to death but to time in the prison system, he would kill a prison system employee. Hard sentenced him to death.

Trawick's execution was the fifth this year in Alabama. He was the 196th inmate to be put to death by the state since 1927, the 43rd since executions resumed in 1983 after an 18-year pause, and the 19th to die by lethal injection.

"Is Jack Trawick Still A ... Menace To Society?

by Taylor Bright - Birmingham Post-Herald

January 15, 2004

Jack Trawick has been locked up on death row in Holman Prison in south Alabama for eight years. Yet through the Internet, the man who has been convicted of killing two Alabama women and who says he has killed more is tormenting his victims' families and, with a helper, preaching his murderous gospel to the world.

A Web site devoted to Trawick has left families enraged, authorities seething and the site's caretaker smug under the free speech protections of the FirstAmendment. "I'm going to turn him into an international superstar now. I'll make sure of that," wrote the maker of the site, Neil O'Connor, 23, of Mount Laurel, N.J. to a critic of the site. "Try and stop me; I look forward to it."

Alabama prison authorities vow they will prevent Trawick from sending any more of his disturbing writings to O'Connor. But they and everyone else appear powerless to shut down the Web site. Unlike many sites set up for death row inmates, which often are used for claims of innocence or denouncing the death penalty, the Trawick site allows him to revel in his killings. "It's disgusting," said Laura Petro, the prosecutor who sent Trawick to death row. "Just sickening."

On the site, Trawick has an imaginary conversation with his last victim, Stephanie Gach, a college student whom he abducted from Eastwood Mall and killed in 1992: "Was it really worth it? It was for me (a smiley face is included). I would do the whole thing again knowing death row was waiting for me. Watching you die was (is) worth it all."

On the second page of the Web site, Trawick writes, "Trawick philosophy 101: Never rape a woman without killing her. Never kill a woman without raping her. Eventually a raped female will tell someone." Under the heading, "Jack Gives a Female Fan Rape/Murder Advice," Trawick says, "Murder is deliciously, deliciously delightful." Trawick tells Britney Spears, "no security is absolute," and then asks her to write him "ASAP." "Please send some lingerie photos," he asks.

On one link, he says he saw the movie "Enough" with Jennifer Lopez, who plays an abused wife in the movie who gets revenge on her ex-husband. Trawick says he would like to tie her up and "do the nasty" with her. He tells O'Connor, "You may enjoy seeing her slapped around." Trawick also describes, in detail, killing his victims.

Trawick was sentenced to die in 1994 for Gach's killing and was convicted of killing Frances Aileen Pruitt in eastern Birmingham in 1995. He also made a credible confession in the 1972 killing of Betty Jo Richards, 17, of Quinton, but he was not prosecuted because he already had been sentenced to die. O'Connor, who said he is fascinated with serial killers, said he began writing Trawick in November 2001. O'Connor took the letters he received from Trawick and put them on the Internet in September. Three months and 12,000 hits to the site later, O'Connor continues to write Trawick and post the letters.

Most of what is on the site cannot be printed in the newspaper. "It's horrid," said Brian Corbett, spokesman for the Alabama Department of Corrections. O'Connor is unapologetic for the site. "I like Jack. I think Jack is a literary genius," O'Connor said in a telephone interview from his home in Mount Laurel, a small suburb near Philadelphia. "I think he is a Marquis de Sade of the 21st Century."

O'Connor said he is not responsible for what Trawick writes or whether it affects someone else. "If someone sick reads the Web site and goes out and acts on something they read, it's their fault," he said. "They would have done it one way or the other. It's not up to me to hide what Jack has to say to those people."

The site has incensed Mary Kate Gach, the mother of Stephanie Gach. "I don't want this monster to have publicity anyhow or anywhere until the day he is executed," Gach said. Gach said she wouldn't look at the Web site. "He can't hurt her anymore; he can't hurt me anymore," Gach said. Gach's lawyer was more direct about the Web site. "He's riding a rocket to hell," said David Cromwell Johnson. "If that's where he wants to go, more power to him."

Johnson died from natural causes last week. Petro said the site is "criminal or sure as hell ought to be criminal." But there appears to be little the authorities can do about the site. Don Pember, an expert on the First Amendment, said there is little people can do to restrict what is on the Internet.

Pember, author of "Mass Media Law" (William C. Brown Publishers), which includes chapters on the First Amendment and obscenity, said people can post "pretty much anything" on the Web. More than likely, Pember said, the site, even though it details rape and murder, would not be considered obscene, according to the law.

Pember said the Internet has the same freedoms as printed matter. The difference, he said, is newspapers and book publishers exercise more standards on themselves than most Internet operators. "It's not that they couldn't publish these things, it's that they wouldn't publish these things," Pember said. Arizona legislators made it illegal for inmates to write to anyone who publishes their letters on the Internet, but the American Civil Liberties Union has challenged the law as an infringement of free speech. John Hagerty, spokesman for the New Jersey Division of Criminal Justice, said while the O'Connor's site may be unappealing, there would be no reason for them to act, especially since the Web site host is in Florida. Florida officials said they had looked at the site and decided there was nothing illegal about it.

"We do not see a criminal violation in that Web site," said Bob Breeden, a special agent supervisor with the Florida Department of Law Enforcement. "As distasteful as it is, it's protected under the First Amendment." But Hagerty said the division would advise Spears' management and Jennifer Lopez's management of the threats being made to them by Trawick.

O'Connor said he runs the site because he has had a fascination with serial killers since he was a boy. He said the site also helps alleviate sometimes violent thoughts that go through his head that come with his obsessive-compulsive disorder. "I've always been an animal lover," O'Connor said in the telephone interview. "I have four very cute cats. The cutest of the cats a lot of times I just think about stomping on it until her eyes pop out of her head. It (the Web site) alleviates it a bit."

Officials with the Alabama Department of Corrections said they would prevent Trawick from writing any more graphic letters to O'Connor, who runs the site from his home. Trawick has agreed not to send O'Connor any more of his graphic letters after he was called into a meeting with Holman Warden Grantt Culliver, said Brian Corbett, spokesman for the Alabama Department of Corrections.

Corbett said the correspondence could be prohibited if it disclosed a breach in security or did not fall in line with Trawick's "rehabilitation goals." "We are going to put a stop to it somehow, some way because it's nothing but trash," Corbett said.

Police Probe Trawick Claims Of More Victims

The Birmingham Police Department plans to interview Jack Trawick, already convicted of killing two Birmingham women, about new claims he has made that he killed several other women. The claims were made on a Web site run by New Jersey resident Neil O'Connor. The site is filled with writings sent to O'Connor by Trawick from death row in Holman Correctional Facility in south Alabama. "We'll definitely look into that. We'll go down to the prison," said Sgt. Scott Praytor in the Birmingham police homicide department. "We're going to follow up on it and see if we can clear some homicides."

Trawick was convicted in 1994 of killing Stephanie Gach, 21, and in 1995 of killing Aileen Pruitt, 27. Both were from Birmingham. He also confessed to the 1972 killing of Betty Jo Richards of Quinton, located just over the Jefferson County line in Walker County. On the Web site, Trawick said he had killed Dr. Virginia Bryant, Michelle Thomas and Susan Hill. He also claims to have killed another woman by the name of Kim and a nameless mother and daughter.

The Birmingham Post-Herald tried to find any record of the women through its archives, Internet searches and talks with law enforcement officials, but could find no information about them. Laura Petro, the Jefferson County deputy district attorney who prosecuted Trawick, said Trawick's new confessions are "complete and utter garbage. He always wants to make Jack Trawick bigger and better."

Petro said Trawick made similar claims while he was awaiting trial for Gach's murder, but, outside of the Richards case, authorities found nothing to substantiate his claims. "He does a lot of ranting and raving," Coppage said.

Praytor said the only way to find out if Trawick is telling the truth is to try and match details from his stories with what the police know about the cases. "Sometimes they (suspects) try and confess crimes they did not commit," Praytor said.

Petro said Trawick's confession in the Richards case was credible enough that she believes he committed the murder, even though he was never tried in the case. On the two murders for which he was convicted, Trawick was given the death penalty and a sentence of life without parole. In his new claims, Trawick provides the most detailed description in his depiction of the murder of Bryant, who Trawick said was on Highland Avenue in Birmingham when he abducted, raped and murdered her.

He is vague about the rape and murder of the mother and daughter, and the only detail given about Michelle Thomas is that she was pregnant when he murdered her. Trawick has told O'Connor he has killed as many as 14 people, but has not given names or details of all of those killings.

Letter from Jack Trawick to Brittney Spears

My Dear Britney Spears,Seldom does a talent like yours come along. Your voice could make the angels cry and the devil become pure and sweet. People like Charles Manson would melt his ice-cold heart if he would just let your music flow over him. You truly are a role model and an idol to most adolescent females. You not only touch their hearts but you give them a reason to celebrate.However, I am a sexually motivated serial killer and if it were up to me – I would strip you nude, tie you to a bed and taste all of your femininity. Once I had ripped your girl thingy almost out of its hiding place, and while you were still conscious and aware of your surroundings, I would hack your grape sized nipples and your finger sized clit from your then – non – virgin body and make you eat them.Next I would slowly and methodically strangle you – just to the point of unconsciousness – let you revive and start the whole process again. Eventually you would become a blonde, brain dead zombie. You would beg for death but I would deny you of that relief. Eventually your once sensual body would shake in your final death spasms. I would – with the artistry of a skilled surgeon – disembowel, dismember and behead your now useless body. I would scatter your individual body parts in the four corners of the earth. You would leave this earth totally unceremoniously and without any earthly markers. One day you are Britney Spears rock and roll singer – the next day you would be little more than road kill.You were born a thingy sucking, girl thingy licking, cum drunk common gutter very *friendly* person. You live as a thingy sucking, girl thingy licking, cum drunk common gutter very *friendly* person – and you will die a thingy sucking, girl thingy licking, cum drunk gutter very *friendly* person.You are on T.V. as I write this. And as I watch, I can think of no greater joy than to ravish and mutilate your selective surgery, silicon, body. You say that you are a virgin. Most likely you have been hopping on thingys since you were wearing juvenile diapers. Regardless of what you may think – sucking thingy and taking a hard wanger in your butt is sexual.Well – good luck in your career. If the singing gig runs a bit stale – you can always be a porn queen. Just think – the next time you go anywhere – I could be there waiting on you. Before you get carried away about all your security and body guards and blah blah blah – no security is absolute.Looking forwardTo our first meeting,JP.S. Write ASAP. Please send some lingerie photos.

ProDeathPenalty.com

Jack Harrison Trawick abducted Stephanie Gach from the parking lot of her apartment complex in Birmingham on October 9, 1992, after following her home from a local shopping mall. Trawick took Stephanie to an isolated area, where he beat her with a hammer, strangled her, stabbed her through the heart, and tossed her body off an embankment. Her body was found on October 10, 1992. On October 26, 1996, while investigating reports of several attempted abductions of women, the Jefferson County Sheriff's Department interviewed Trawick as a suspect in relation to those reports. During a second interview, the police asked Trawick whether he had had any involvement with the murder of Stephanie Gach. In a third interview, conducted on October 29, 1996, Trawick indicated that he knew something about the murder and, in a fourth interview conducted on the same day, Trawick confessed to the crime; he was then arrested for it. The grand jury indicted Trawick for the capital offense of murder committed during a first-degree kidnapping. After arraignment, he pleaded not guilty and not guilty by reason of mental disease or defect. After a trial, the jury found Trawick guilty of capital murder and by a vote of 10-2 recommended a sentence of death; the trial court sentenced him to death in accordance with this recommendation. In 1995 a jury also found him guilty of killing 27-year-old Aileen Pruitt and sentenced him to life in prison.

Jack Trawick (Alabama)

Trawick was sentenced to death for killing Stephanie Alexis Gach in 1992. The 21-year-old community college student was kidnapped, driven to a remote spot, choked, hit on the head with a ball peen hammer and stabbed.

Trawick's history of violence against women dated back to age 10, when he forced a neighbor girl to take off her clothes. Before he received the death penalty for Gach's murder, he had already killed four other women.

He blamed the criminal justice system, which had three times released him from prison, for failing to give him the help that could have prevented him from becoming a serial killer.

Death row inmates posting their crimes in cyberspace

BIRMINGHAM, Alabama (AP) -- Mary Kate Gach thought she had heard the last of Jack Trawick when he went to death row for murdering her daughter in 1992.

Instead, Trawick's twisted writings about how he beat, strangled and stabbed Stephanie Gach and killed other women are available to anyone who wants to read them on the Internet. Many of the writings were put there by a one-time pen pal and admirer of Trawick's.

The killer even taunts Mary Kate Gach by name.

"I'm mad as hell," she said. "Those people don't even have a right to speak my name or my child's name. There's got to be a way to keep them from funneling this stuff out of prisons."

Around the country, dozens of U.S. death row inmates have gotten their letters and artwork posted on the Internet, a practice that torments the victims' grieving friends and relatives.

"It's going on all over," said Nancy Ruhe, executive director of Parents of Murdered Children in Cincinnati. "People say to me all the time, 'When are these (victims) going to get over it?' They can't."

Experts say little can be done about Web sites featuring the writings of killers.

"It's the First Amendment," Ruhe acknowledged.

Typically, material from inmates makes it onto the Internet through an intermediary. Prisoners send letters to people or companies on the outside, where it is then posted online.

Alabama prison officials say it appears Trawick stopped sending out new stories about murder after Gach's mother and others complained last year. But Trawick's old writings are still on the Web, along with gruesome drawings of murdered women.

In one letter posted on the Internet, Trawick reveled in the Gach slaying.

"I would do the whole thing again knowing death row was waiting for me," Trawick, 56, wrote from Holman Prison.

Trawick confessed to kidnapping Gach, 21, from a Birmingham-area shopping mall in 1992. He took her to an isolated area where he beat her with a hammer, strangled her and stabbed her through the heart.

Gach's body was thrown off an embankment, where it was found the next day. Trawick was convicted in 1994, and he was convicted the next year in the slaying of Aileen Pruitt, 27, killed about four months before Gach.

Trawick has yet to exhaust his appeals, and no date for his execution has been set.

Gach's mother avoids listening to anything about Trawick. But it hurts her to know Trawick has a worldwide platform for his sadistic prose.

Free-speech protections prevent prison officials from blocking inmates' outgoing mail unless it presents a security risk or involves a crime in progress, said Amy Fettig, an attorney in Washington with the American Civil Liberties Union's National Prison Project.

"Certainly I would understand victims being upset, and prison officials have a right to read mail," she said. But "just saying nasty things or having bad opinions is not a crime."

In one test of inmates' rights, a federal judge in May struck down as unconstitutional an Arizona law that made it illegal for state inmates to send out material to be posted on Web sites. The judge ruled the law was not "rationally related to legitimate penological objectives."

In Alabama, Gach and other victims' relatives met with the state prisoner commissioner last year to protest inmate Web sites. Corrections spokesman Brian Corbett said Trawick's mail was screened extra closely for a time, but his writings have reappeared in new postings in recent weeks.

"I'm in shock. I feel like I have been here before," said Stephanie Gach's mother.

By Dale James - The Selma Times Journal

January 17, 2004

Stephanie was choked, hit on the head with a ball-peen hammer and stabbed the night of Oct. 9, 1992.

Now, in a bizarre example of technology gone awry, Mary Kate Grach has filed a lawsuit accusing Trawick of using the Internet to post graphic details about the murder of her daughter and to market drawings of the crime and other "souvenirs" to the highest bidder.

Gach's attorney, George Jones III of Selma, is scheduled to discuss the case tonight on Fox News Channel's "The O'Reilly Factor." The show airs on Charter Cable channel 52 at 7 p.m.

Gach alleges that Trawick, with the help of New Jersey Web site designer Neil Arthur O'Connor, has somehow established his own Web site. In addition to Trawick, the suit names Alabama Department of Corrections Commissioner Donal Campbell and Holman Warden Grantt Culliver among others.

Campbell has denied having any knowledge of how Trawick managed to get access to the Internet.

"Prison officials claim they don't know how he's getting this stuff out," Jones said Thursday. "They claim he doesn't have access to a computer, but we're not 100 percent certain about that."

Jones said prison officials have also told him they are monitoring Trawick's phone calls and censoring his outgoing and incoming mail. "But apparently that hasn't worked," he added.

Jones labeled the Web site postings, which were first discovered in December 2002, as "beyond repugnant." They include graphic descriptions of the crime, drawings and taunts directed at Stephanie's mother.

"He's written such things as 'I enjoyed killing your daughter and this is what I did' -- just really atrocious stuff," Jones said. "We believe he is doing this to inflict emotional distress on my client. It's causing my client to have to go through the whole process again and to relive her daughter's death all over again."

While the original Web site no longer exists, Jones said he believes that much of the material has been posted to other sites.

The lawsuit alleges that Trawick's ramblings go beyond being merely a sick joke and actually constitute "a how-to guide for committing murder."

Explained Jones, "We contemplate that if the man in New Jersey chooses to contest the suit his defense would be that this is protected speech under the First Amendment. But that's just not true. Our position is that this material unlawfully invades my client's privacy and inflicts emotional pain."

This will be Jones' second appearance on "The O'Reilly Factor." The first appearance came in the summer of 2002, when he acted as the attorney for two Selma High School students who contended they had been illegally removed from the cheerleading squad. That case was settled and the two girls reinstated.

Police Probe Trawick Claims Of More Victims

By Taylor Bright - Birmingham Post-Herald

The Birmingham Police Department plans to interview Jack Trawick, already convicted of killing two Birmingham women, about new claims he has made that he killed several other women.

The claims were made on a Web site run by New Jersey resident Neil O'Connor. The site is filled with writings sent to O'Connor by Trawick from death row in Holman Correctional Facility in south Alabama.

"We'll definitely look into that. We'll go down to the prison," said Sgt. Scott Praytor in the Birmingham police homicide department. "We're going to follow up on it and see if we can clear some homicides."

Trawick was convicted in 1994 of killing Stephanie Gach, 21, and in 1995 of killing Aileen Pruitt, 27. Both were from Birmingham. He also confessed to the 1972 killing of Betty Jo Richards of Quinton, located just over the Jefferson County line in Walker County.

On the Web site, Trawick said he had killed Dr. Virginia Bryant, Michelle Thomas and Susan Hill. He also claims to have killed another woman by the name of Kim and a nameless mother and daughter.

The Birmingham Post-Herald tried to find any record of the women through its archives, Internet searches and talks with law enforcement officials, but could find no information about them.

Laura Petro, the Jefferson County deputy district attorney who prosecuted Trawick, said Trawick's new confessions are "complete and utter garbage. He always wants to make Jack Trawick bigger and better."

Petro said Trawick made similar claims while he was awaiting trial for Gach's murder, but, outside of the Richards case, authorities found nothing to substantiate his claims.

"He does a lot of ranting and raving," Coppage said.

Praytor said the only way to find out if Trawick is telling the truth is to try and match details from his stories with what the police know about the cases.

"Sometimes they (suspects) try and confess crimes they did not commit," Praytor said.

Petro said Trawick's confession in the Richards case was credible enough that she believes he committed the murder, even though he was never tried in the case. On the two murders for which he was convicted, Trawick was given the death penalty and a sentence of life without parole.

In his new claims, Trawick provides the most detailed description in his depiction of the murder of Bryant, who Trawick said was on Highland Avenue in Birmingham when he abducted, raped and murdered her.

He is vague about the rape and murder of the mother and daughter, and the only detail given about Michelle Thomas is that she was pregnant when he murdered her.

Trawick has told O'Connor he has killed as many as 14 people, but has not given names or details of all of those killings.

SEX: M RACE: W TYPE: N MOTIVE: Sex./Sad.

MO: Rape-strangler of women, including one thrown overboard on cruise ship sailing from Seattle to Alaska.

DISPOSITION: Condemned in Ala., 1994.

Ex Parte Trawick, 698 So.2d 162 (Ala.Cr.App. 1997) (Direct Appeal).

Defendant was convicted in the Jefferson Circuit Court, No. CC-93-1373, James H. Hard IV, J., of capital offense of murder committed during first-degree kidnapping and was sentenced to death. Defendant appealed. The Court of Criminal Appeals, 698 So.2d 151, affirmed conviction and sentence. Petition for writ of certiorari was granted. The Supreme Court, Butts, J., held that: (1) defendant failed to show that state used its peremptory challenges to discriminate against female jurors; (2) defendant failed to show that two jurors should have been struck from venire for cause; (3) no plain error arose from exclusion of juror who indicated that his opposition to death penalty would outweigh his obligation to any oath to consider recommending it; (4) jury was correctly instructed with respect to burden of proof on defense of not guilty by reason of mental disease or defect; (5) jury was correctly instructed on definitions of reasonable doubt standard and state's burden of proof; (6) there was no plain error in instruction concerning weighing of aggravating and mitigating circumstances; (7) jury was not precluded from determining voluntariness of defendant's confession; (8) defendant's confession was not taken in violation of his right to counsel or in response to improper promises made by police; (9) defendant was not entitled to instruction on lesser included offense of noncapital intentional murder; and (10) jury was not required to specify aggravating circumstances that it apparently found to exist. Affirmed.

BUTTS, Justice.

Jack Harrison Trawick was convicted of the capital offense of murder committed during a first-degree kidnapping and was sentenced to death. See Ala.Code 1975, § 13A-5-40(a)(1). The Court of Criminal Appeals affirmed his conviction and sentence in Trawick v. State, 698 So.2d 151 (Ala.Cr.App.1995). This Court has granted his petition for the writ of certiorari; see Rule 39(c), Ala.R.App.P. We affirm.

I.

The Court of Criminal Appeals stated the facts of this case in its opinion, and we will repeat only these pertinent details: Trawick abducted Stephanie GachFN* from the parking lot of her apartment complex in Birmingham on October 9, 1992, after following her home from a local shopping mall. Trawick took Gach to an isolated area, where he beat her with a hammer, strangled her, stabbed her through the heart, and tossed her body off an embankment. Her body was found on October 10, 1992.

FN* Note from the reporter of decisions: In its opinion, the Alabama Court of Criminal Appeals spelled the victim's name “Gash.” 698 So.2d 151 (Ala.Crim.App.1995). Both the “Gach” and “Gash” spellings appear at various points in the record. On October 26, 1996, while investigating reports of several attempted abductions of women, the Jefferson County Sheriff's Department interviewed Trawick as a suspect in relation to those reports. During a second interview, the police asked Trawick whether he had had any involvement with the murder of Stephanie Gach. In a third interview, conducted on October 29, 1996, Trawick indicated that he knew something about the murder and, in a fourth interview conducted on the same day, Trawick confessed to the crime; he was then arrested for it.

The grand jury indicted Trawick for the capital offense of murder committed during a first-degree kidnapping. After arraignment, he pleaded not guilty and not guilty by reason of mental disease or defect. After a trial, the jury found Trawick guilty of capital murder and by a vote of 10-2 recommended a sentence of death; the trial court sentenced him to death in accordance with this recommendation.

Although we have carefully reviewed the many issues Trawick raises in his brief, we will address only the primary issues and those issues that were not discussed in the opinion of the Court of Criminal Appeals.

II.

Trawick first argues that the trial court committed several reversible errors during the process of jury selection. We note from the outset that Trawick did not object to these alleged errors at trial. We therefore review these issues only for plain error, i.e., error that is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings. Ex parte Taylor, 666 So.2d 73 (Ala.1995). The plain error standard applies only where a particularly egregious error occurred at trial and that error has or probably has substantially prejudiced the defendant. Taylor.

Trawick first argues that the State used its peremptory challenges to discriminate against female jurors, in violation of J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), and that the trial court erred by not requiring the State to articulate its reasons for its strikes of females. He points out that the State used 11 of its 14 peremptory strikes to remove women from Trawick's jury, resulting in a petit jury that was composed of 7 men and 5 women. He also argues that the prosecutor had a history of striking veniremembers based upon race. He thus concludes that his case should be remanded for a hearing on the State's reasons for striking women.

In J.E.B. v. Alabama, the United States Supreme Court extended the principles of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to apply to gender discrimination in jury selection. A party making a Batson or J.E.B. challenge bears the burden of proving a prima facie case of discrimination and, in the absence of such proof, the prosecution is not required to state its reasons for its peremptory challenges. Ex parte Branch, 526 So.2d 609 (Ala.1987); Ex parte Bird, 594 So.2d 676 (Ala.1991). In Branch, this Court discussed a number of relevant factors a defendant could submit in attempting to establish a prima facie case of racial discrimination; those factors are likewise applicable in the case of a defendant seeking to establish gender discrimination in the jury selection process. Those factors, stated in a manner applicable to gender discrimination, are as follows: (1) evidence that the jurors in question shared only the characteristic of gender and were in all other respects as heterogenous as the community as a whole; (2) a pattern of strikes against jurors of one gender on the particular venire; (3) the past conduct of the state's attorney in using peremptory challenges to strike members of one gender; (4) the type and manner of the state's questions and statements during voir dire; (5) the type and manner of questions directed to the challenged juror, including a lack of questions; (6) disparate treatment of members of the jury venire who had the same characteristics or who answered a question in the same manner or in a similar manner; and (7) separate examination of members of the venire. Additionally, the court may consider whether the State used all or most of its strikes against members of one gender.

At trial, Trawick objected to the State's peremptory strikes, but objected solely on the basis of race, not gender. Trawick has offered no evidence that the female veniremembers shared only the characteristics of gender, that anything in the type or manner of the prosecutor's statements or questions during the extensive voir dire indicated an intent to discriminate against female jurors, that there was a lack of meaningful voir dire directed at the female jurors, or that female jurors and male jurors were treated differently. He has offered no evidence that the prosecutor had a history of using peremptory challenges in a manner that discriminated against veniremembers of either gender. Instead, Trawick has merely emphasized that the State used many of its strikes to remove women from the venire. Without more, we do not find that the number of strikes this prosecutor used to remove women from the venire is sufficient to establish a prima facie case of gender discrimination.

Trawick next argues that during voir dire, jurors W.M. and W.C. indicated they were prejudiced against Trawick and his case, and that they therefore should have been struck from the venire for cause. Trawick argues that both of these jurors had preconceived opinions based upon media accounts of the murder and that W.C. also indicated a bias against the insanity defense in general. During voir dire, Trawick moved to strike juror W.C., but did not object to juror W.M. He also failed to raise this issue as to either of the jurors before the Court of Criminal Appeals or in his certiorari petition. Trawick nevertheless argues that it was plain error for the trial court to deny his motion to strike W.C. for cause and for it not to strike juror W.M. sua sponte.

To justify a challenge for cause, there must be a proper statutory ground or some matter that imparts absolute bias or favor and leaves nothing to the discretion of the trial court. Clark v. State, 621 So.2d 309 (Ala.Cr.App.1992). This Court has held that once a juror indicates initially that he or she is biased or prejudiced, or has deep-seated impressions about a case, the juror should be removed for cause. Knop v. McCain, 561 So.2d 229 (Ala.1989). The test to be applied in determining whether a juror should be removed for cause is whether the juror can eliminate the influence of previous feelings and render a verdict according to the evidence and the law. Ex parte Taylor, supra. A juror need not be excused merely because he or she knows something of the case to be tried or has formed some opinions regarding the case. Kinder v. State, 515 So.2d 55 (Ala.Cr.App.1986). Even in cases where a potential juror has expressed some preconceived opinion as to the guilt of the accused, the juror is sufficiently impartial if he or she can set aside that opinion and render a verdict based upon the evidence in the case. Kinder. In order to justify disqualification, a juror must have more than a bias or an opinion as to the guilt or innocence of the accused; the bias or opinion must be so fixed that the juror cannot lay it aside and render a verdict based on the evidence presented in court. Oryang v. State, 642 So.2d 979 (Ala.Cr.App.1993).

Trawick bases his argument as to juror W.M. on statements W.M. made during individual voir dire, after he had indicated in general voir dire that he “knew something” about Trawick's case. The statements in question are as follows:

“ QUESTIONS BY THE COURT: “Q. [W.M.], you recall something about the litigation? ... “A. Yes. [I read] in the paper about the confession. “Q. Did you read the paper this morning? “A. Yes, sir. “Q. About the case? “A. That's the most recent memory of it. “Q. What details do you remember? You said the confession. Any other details? “A. Tape over the mouth, stabbing of the heart, how he followed his-he saw his victim at Eastwood Mall and followed her to her apartment and forced her into the van with the toy gun. “Q. Well, I asked everybody out there about the ultimate question to you, sir. Any verdict in the case, of course, cannot be tainted with what you might have read in the paper. That's not evidence, as you well know. The verdict should be the product and based only on the courtroom evidence and the law. Could you abide by those instructions and bring in a verdict based only on the in-court evidence?

“A. I guess I want to say I could but I am not really sure, you know. I don't know if I could or not. “Q. Do you have some misgivings about that? “A. Well, just that I have already formed an opinion. “Q. Well, can you set that opinion aside and base your verdict on the in-court evidence? “A. I think I could.” (Emphasis added.)

Although W.M. stated that he had learned about the case from the newspaper and had formed an opinion of the case based upon what he had read, he nevertheless stated that he thought he could set aside that opinion and base his verdict upon the evidence he heard in court. W.M.'s answers, taken as a whole, do not reveal a fixed opinion that would bias the juror's verdict; rather, they indicate a willingness and ability to put aside any preconceived ideas about Trawick's highly publicized case and to base a verdict upon the evidence that would be presented in the trial. We therefore find no plain error in the trial court's failure to remove W.M. from the jury sua sponte.

Trawick also argues that juror W.C.'s ability to act as an unbiased juror was tainted by a preconceived opinion as to his guilt. This argument is based upon the following statements W.C. made during individual voir dire:

“QUESTIONS BY THE COURT: “Q. Now, you remembered something about the case, like so many other jurors? “A. Right. “Q. Did you read the paper today? “A. No, not the past couple of days. “Q. Radio or T.V. today? “A. No. “Q. Good. So your information is somewhat dated, I take it? “A. Right. “Q. Any other details at all? I know the [lawyers] are interested in what details you recall. “A. Basically Trawick supposedly, you know, abducted that young girl and killed her and the body was found in Irondale. That's about all I know, just the general facts.” (Emphasis added.)

Nothing in this colloquy indicates that W.C. was biased or believed Trawick to be guilty; on the contrary, W.C.'s statement that he had heard that Trawick “supposedly” committed the crime clearly indicated that W.C. properly regarded the charges against Trawick to be allegations, not facts.

Trawick also argues that W.C. later indicated a bias against his defense of not guilty by reason of a mental disease or defect. Because we review this argument in accordance with the plain error rule, we are mindful that Trawick's failure to object at trial to this alleged error weighs against any claim of prejudice to him. Kuenzel v. State, 577 So.2d 474 (Ala.Cr.App.1990), affirmed, 577 So.2d 531 (Ala.), cert. denied, 502 U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991). During general voir dire, Trawick's counsel asked whether anyone considered a defense of not guilty by reason of insanity to be a “cop-out”; W.C. indicated that he did. During subsequent individual voir dire of W.C., the following occurred:

“Q. [THE COURT] Just to be sure, some of us kid about the psychiatrists, and so forth. You know we cannot treat capriciously the medical community, psychiatric, psychological community. There is a lot to say about the special defense of not guilty by reason of mental disease or defect and you told me a while ago by your silence that you would listen to my instruction in this important regard.

“A. Right. “Q. Let's see if they have any questions....” Trawick's counsel then asked W.C. if his indication that he thought the insanity defense is a “cop-out” was “kind of a knee-jerk reaction.” The following exchange took place: “A. [Juror W.C.]: No, I mean I just feel it's greatly overused. I feel there is a lot of cases in which maybe people for instance should have gotten the death penalty and might not really have a problem. I mean, I feel a lot of times it's hard to definitively prove that someone is, you know, really, really does have a problem [sic]. “Q. [Trawick's counsel]. But you do think it can be done? “A. Possibly. I would probably require more evidence than just one expert, for instance. “Q. So you would require someone to come in and say he is insane, more than one expert- “A. Probably so, definitely. I mean, I just feel it is something that is greatly overused, I mean- “Q. That is all I have. “.... “THE COURT: [W.C.], I have got to get involved here because of something you said.

“QUESTIONS BY THE COURT: “Q. ... You can't sit on the case if you have some standard of your own, so we go back to just listening to me and weighing all the evidence, expert, lay witnesses, the totality of the evidence has to be weighed and assessed, on the legal charge, whether or not one was suffering from a mental disease or defect and if the product of the actions [was] caused by that mental disease or defect. Can you abide by my instructions instead of setting up arbitrary standards? “A. I imagine so, it would just be tough. I mean, that's just something I feel strongly about. It seems like it's brought up in so many cases- “.... “Q. I know that.... Could you follow my instructions, versus setting up [your own] standards? “A. I could.”

While W.C.'s answer may indicate that he felt that the insanity defense is overused and that W.C. might therefore have difficulty believing it, he did not express an absolute bias against the defense. W.C. stated that he could follow the trial court's instructions on the defense, and the trial court had the opportunity to observe W.C.'s manner of speech, demeanor, body language, tone, and appearance as he said this. Based on W.C.'s overall responses to the questions concerning the insanity defense, and in deference to the trial court's discretion in gauging the veracity of these responses, we see no plain error in the trial court's not striking W.C. for cause.

Trawick next argues that in granting one of the State's challenges for cause the trial court violated Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Trawick correctly states that, under Witherspoon, it is unconstitutional to exclude venirepersons for cause when they express general objections to the death penalty; the juror may be excluded only if his or her view on capital punishment would prevent or substantially impair the performance of his or her duties as a juror. Before deciding whether a juror is excludable under Witherspoon, the trial court must first determine whether the juror, given his or her stated objections to capital punishment, could nevertheless consider the evidence and instructions of the court and in an appropriate case return a verdict of guilty although that verdict could result in the imposition of the death penalty.

During voir dire, the trial court asked the veniremembers whether any of them, because of religious, moral, or philosophical scruples, were unalterably opposed to capital punishment-specifically whether anyone was so opposed to it “that you know now before you hear a stitch of testimony, before you have heard anything about the legal components, that you know right know to a certainty that you would not vote for the death penalty.” Juror N.P. answered in the affirmative. The trial court then conducted individual voir dire with N.P., wherein the following was said:

“QUESTIONS BY THE COURT: “Q. Could you impose the death penalty? “A. I don't know that I could. To be truthful, I don't know that I could. “Q. ... [I]s that to say you could not or you just don't know, you might could? You could hypothesize- “A. Theoretically you've got-truthfully, I don't think I would. I really don't think-I'm very strongly opposed to the death penalty. Personally, I don't-I don't think it-I don't think that it's constitutional, on my own-my own mind. And I have gone around and around and around on that subject with people as well. “.... “Q. ... Now, can you play the role of the conscientious juror, or are your feelings about the death penalty so hardened that you cannot conscientiously consider death by electrocution in spite of the law and what facts might emerge in the course of the trial? “A. Put ... to me that way, I would still have to come down that I would not. I do not think that I would. I know that's vague- “Q. You said two things. You said that you would not and then you qualified and said you didn't think you could. And because you are a lawyer I am going to pick on you. “A. I understand that. “Q. How could I read this? “A. I would not. I feel-I can tell you that my feelings on the death penalty are stronger than-that my feelings- my feelings on death in general and death penalty are stronger than my feelings of obligation perhaps to-to that oath.”

We conclude that N.P.'s statements regarding his feelings against the death penalty, and his statement of allegiance to his own feelings against it, were sufficient to justify granting the State's challenge for cause. Throughout repeated questioning, N.P. consistently indicated that his own feelings of conscience against the death penalty would outweigh his obligation to any oath to consider recommending it. We therefore find no plain error in the trial's court decision to exclude N.P. from the jury.

III.

Trawick next raises a series of issues challenging the propriety of several instructions the trial court gave the jury. We note from the outset that these issues are raised for the first time in Trawick's brief to this Court; they were not preserved before the trial court. We therefore review these issues only within the confines of the plain error rule, and we again note that this rule is to be applied to correct errors solely in those circumstances in which a miscarriage of justice would otherwise result. Ex parte Taylor, 666 So.2d 73 (Ala.1995), cert. denied, 516 U.S. 1120, 116 S.Ct. 928, 133 L.Ed.2d 856 (1996).

Trawick argues that the trial court failed to properly instruct the jurors that he was required to prove by “clear and convincing evidence” his defense of not guilty by reason of mental disease or defect. Trawick contends that this failure left the jury to believe that he had to meet the higher standard of proving his mental disease or defect beyond a reasonable doubt and thus sabotaged his defense.

The record shows that the trial court gave the following jury instruction as to Trawick's defense of not guilty by reason of mental disease or defect: “By entering his plea of not guilty by reason of severe mental disease or defect, the defendant does assume the burden of proving by clear and convincing evidence to the reasonable satisfaction of you jurors, one, that at the time of the commission of the alleged acts constituting all or essential elements of the crime for which he is charged, that he was suffering from a severe mental disease or defect. And two, that as a result of such severe mental disease or defect, he either was unable to appreciate the nature and quality of his acts or was unable to appreciate the wrongfulness of his acts.

“Whether or not the defendant was suffering from such severe mental disease or defect is for you people to determine from all of the evidence to your reasonable satisfaction. In making the determination of whether or not defendant Trawick here, at the time of the commission of the crime charged, was unable to appreciate the nature and quality or wrongfulness of this acts, the law provides some guidance to you in this respect. “The phrase ‘severe mental disease or defect’ does not include an abnormality of the mind which is manifested only by repeated criminal or otherwise antisocial conduct. That is to say this: any repeated criminal or other antisocial conduct of the defendant standing alone does not constitute sufficient evidence that he suffered from a severe mental disease or defect.”

We note that the instruction in the Alabama Pattern Jury Instructions: Criminal defining the defense of mental disease or defect does not contain any definition of the clear and convincing evidence standard to be applied in cases where the defendant asserts that defense. The instruction set out above is, in essence, the same as the pattern instruction as to the defense of mental disease or defect that is contained in the Alabama Pattern Jury Instructions. Taken as a whole, the instructions given by the trial court properly defined how the jury was to weigh the evidence of Trawick's alleged mental disease or defect. The trial court clearly stated that the jurors needed only to find to their “reasonable satisfaction” that such a disease or defect existed in order to find Trawick not guilty, and we find nothing in this that would have misled the jury as to the standard of proof that Trawick was required to meet in order to establish his defense.

Trawick also argues that the trial court improperly failed to instruct the jury as to what the consequences for him would be if they found him not guilty by reason of mental disease or defect. He states that the trial court should have told the jury that such a verdict would mean that he would be confined to a mental hospital, perhaps for the rest of his life. He speculates that, without this instruction, the jury “may well have believed” that a verdict of not guilty by reason of mental disease or defect, like a regular verdict of not guilty, would result in his complete freedom. He concludes that the instruction left the impression that he would be left to go free and unfettered if the jury found him not guilty by reason of mental disease or defect and thus impermissibly influenced the jury to find him guilty.

We find no error in the trial court's silence as to the consequences for Trawick if the jury returned a verdict of not guilty by reason of mental disease or defect. On the contrary, its silence was entirely proper; it was not within the jury's sphere of concern to determine what these consequences would be, and statements as to such consequences should not be thrown into a case to influence the verdict, Ivery v. State, 686 So.2d 495 (Ala.Cr.App.1996), citing Boyle v. State, 229 Ala. 212, 154 So. 575 (Ala.1934). The trial court correctly refrained from making statements regarding those consequences.

Trawick next argues that in instructing the jury the trial court erroneously defined “reasonable doubt,” as that term is used in regard to the standard of proof, as “an actual substantial doubt,” and that this violated Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990). In Cage, the United States Supreme Court reversed a criminal conviction because the Court concluded that the trial court's instruction impermissibly suggested a higher degree of doubt than is required for acquittal under the reasonable doubt standard established by In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Trawick likens the instruction given in this case to that at issue in Cage, and he concludes that his conviction likewise must be reversed.

In Cage, the trial court instructed, in pertinent part, that reasonable doubt “must be such doubt as would rise to a grave uncertainty [and that] it is an actual substantial doubt. It is a doubt that a reasonable man can entertain. What is required is not an absolute or mathematical certainty, but a moral certainty.” 498 U.S. at 40, 111 S.Ct. at 329. The United States Supreme Court held that the words “substantial” and “grave,” as they are commonly understood, suggest a higher degree of doubt than is required for an acquittal under the reasonable doubt standard. The Court determined that these words, when considered with the reference to “moral certainty” rather than evidentiary certainty, could have led a reasonable juror to believe that a finding of guilty could be based on a lesser degree of certainty.

The portion of the jury instruction to which Trawick now objects is as follows: “I am going to suggest to you that proof beyond a reasonable doubt would be proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own personal affairs.”

Trawick argues that this statement lowered the burden of proof because, he says, it “guid[ed] the jurors' understanding about the State's burden in terms of their own personal affairs.” We do not agree; on the contrary, we find that the statement effectively highlighted the high degree of proof that was necessary to prove Trawick's guilt, by describing it in a way that made it more personal for the jurors. Moreover, in the balance of its instruction, the trial court consistently emphasized the presumption of Trawick's innocence, the burden the State had in overcoming this presumption, and the definition of “reasonable doubt” as a product of the jury's common sense and reason. We find no error in the court's definitions of the reasonable doubt standard and the State's burden of proof.

Trawick next argues that during the penalty phase of the trial the court failed to instruct the jurors as to how they were to weigh the aggravating and mitigating circumstances of Trawick's case. The trial court instructed the jury that, if it found that the mitigating circumstances outweighed the aggravating circumstances, it was required to recommend a sentence of life imprisonment without parole. However, Trawick points out that the trial court did not further instruct the jury that if the aggravating and mitigating circumstances were equally balanced, the jury was likewise required to recommend a sentence of life imprisonment. Trawick concludes that, because Alabama law requires that aggravating circumstances must outweigh mitigating circumstances in order for a jury to recommend the death sentence, the trial court's instructions misstated Alabama law and improperly created an inference that the jury was required to recommend the death penalty if it found that the circumstances were equally balanced.

Because Trawick did not raise this issue at trial, we must consider it in accordance with the plain error rule. We note that the jury instructions as to the weighing of aggravating circumstances and mitigating circumstances were materially the same as those set out in the Alabama Pattern Jury Instructions: Criminal for use in the sentencing stage of a capital murder trial in this state, and this Court has held that no reversible error will be found when the trial court follows the pattern jury instructions adopted by this Court. Kuenzel v. State, supra. The trial court correctly instructed the jury to recommend the death penalty only if it found that the aggravating circumstances outweighed the mitigating circumstances, obviously implying that in all other circumstances the jury was required to recommend a sentence of life imprisonment without parole. We do not agree with Trawick that this instruction could have misguided the jury as to its responsibility and function in weighing the aggravating and mitigating circumstances; on the contrary, the instruction clearly explained that the jury could recommend the death penalty under only one circumstance. Haney v. State, 603 So.2d 368 (Ala.Cr.App.1991), affirmed, 603 So.2d 412 (Ala.1992), cert. denied, 507 U.S. 925, 113 S.Ct. 1297, 122 L.Ed.2d 687 (1993). We therefore find no plain error in the instruction as given.

Trawick next argues that the trial court erred to reversal by failing to instruct that the jury, and not the trial court, was to make the ultimate decision regarding the voluntariness of Trawick's confession. After a pre-trial hearing on the voluntariness of the confession, the trial court ruled that it was admissible, and the confession then became central to the State's case against Trawick. Trawick contends that, by allowing the confession into evidence over his objection, the trial court implied to the jury that the confession was voluntary and proper. Trawick concludes that the trial court was required to instruct the jury that there was still an issue of fact as to the voluntariness of the confession, and he contends that its failure to do so was reversible error.

This Court has recognized that a trial court cannot lawfully prevent a jury from making a determination of voluntariness as affecting the weight and credibility to be given a defendant's statements. Ex parte Singleton, 465 So.2d 443 (Ala.1985). In Singleton, the trial judge specifically told the jury that he had already determined that the defendant's statement was voluntary and therefore admissible; however, the judge also clearly instructed that it was the jury that was to ultimately determine whether the confession was voluntary. This Court ruled that these comments did not imply that the jury should accept or believe the defendant's confession merely because it had been ruled admissible.

In this case, there is even less to indicate that the trial court in any way implied to the jury that Trawick's confession was voluntary merely because it was admissible. In admitting Trawick's confession into evidence, the trial court did not tell the jury that it had previously ruled upon the voluntariness of Trawick's confession. The trial court properly instructed the jury that the court would rule only as to whether evidence could be admitted into the case and that the jury would be the sole and exclusive judge of the truth of the evidence that was admitted. The trial court specifically stated that it did not get involved in the jury's “job” as the finder of fact. We find no plain error in the trial court's instruction.

IV.

Trawick next argues that his confession to Gach's murder was elicited after he had requested an attorney and in response to improper promises made to him by the police; thus, he argues that the confession should have been suppressed at trial, relying on Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

To address these issues, we must note the following sequence of events from the record: Trawick gave several interviews to the Jefferson County Sheriff's Department personnel in October 1992. The first interview was not in direct relation to Gach's murder; rather, Trawick was brought in for questioning as part of the Department's investigation of several reported attempts by an unknown man to abduct women or to lure them into his vehicle. The police did not ask Trawick about Gach's murder, and no statements from the first interview were admitted at his trial.

In a second interview, on October 26, 1992, Lt. Steven S. Green specifically asked Trawick whether he had had any involvement in Gach's abduction and murder; however, Trawick did not admit guilt at that time. During that interview, Lt. Green asked Trawick if he would take a polygraph test; Trawick replied, in part, “[I]f I'm either being charged with or, you know highly suspected of a murder, I need to get legal assistance all the same.” The interview stopped, although a police officer did ask Trawick if he or his mother would object to a search of his residence.

A third interview occurred on October 29, 1992, after Lt. Green received a telephone call from Trawick's mother, who told him that Trawick wanted to speak with him. Lt. Green went to the jail and asked if Trawick wanted to see him. Lt. Green again advised Trawick of his Miranda rights; Trawick then stated that he understood those rights, and he signed a waiver form. Trawick gave an oral statement; he did not indicate that he wished to speak with an attorney before giving his statement.

During the third interview, Trawick told Lt. Green that he knew about Gach's murder and that he could tell Lt. Green what he needed to know to finish his investigation of the case. Trawick indicated that he wanted to minimize the publicity about the case, for his mother's sake, but that he wanted to make sure that the case would be tried as a capital murder and that he would be sentenced to death. Trawick did not ask to speak with an attorney. Lt. Green told Trawick that he would set up a meeting between Trawick and an assistant district attorney, and the interview ended.

A fourth interview occurred later that day, when Trawick met with Lt. Green and another police officer, along with Deputy District Attorney Roger Brown. After being advised of his Miranda rights, which he again waived, Trawick gave an oral statement, which was audiotaped, confessing to the abduction and murder of Stephanie Gach. While giving the statement, Trawick reiterated that he wanted the case to be tried as a capital murder and that he wanted the death penalty. Brown told Trawick that he would have to know the circumstances of the case before he could know whether Trawick could be tried for capital murder.

Trawick argues that, after he requested an attorney during the second interview, all questioning should have stopped until he was provided one. Thus, because he was not provided with an attorney before giving the oral statements in the third and fourth interview, he argues that evidence of those statements should have been suppressed.

When a suspect expresses a desire to deal with the police only through counsel, the suspect should not be subject to further interrogation by the authorities until counsel has been made available, unless the suspect himself initiates further communication, exchanges, or conversations with the police. Edwards v. Arizona, supra. The record shows that the second interview effectively ended after Lt. Green asked Trawick if he would take a polygraph test and Trawick indicated that he would want legal counsel before he would do so. According to Trawick's own testimony in the pre-trial suppression hearing, he asked his mother the next day to tell Lt. Green that he wanted to make a statement. When Lt. Green arrived at the jail, Trawick wanted to talk to him and, after being properly read his Miranda rights, he waived those rights and gave the statement. The evidence clearly shows that Trawick himself initiated further communication with Lt. Green, after indicating in the second interview that he might want legal counsel; thus, the statements that he gave in the third and fourth interviews were not given in violation of Edwards v. Arizona.

Trawick also argues that the assistant district attorney and the police promised him that, in return for his statement, they would assure that he would be expeditiously tried for capital murder, that he would be sentenced to death, and that they would keep news media coverage of the case to a minimum out of respect for Trawick's mother. He contends that he gave his statement only after he was promised that these conditions would be met, and that his statements were thus coerced, in violation of his due process rights.

At the pre-trial suppression hearing, Lt. Green confirmed that, before giving his statement at the fourth interview, Trawick told the distract attorney and police officers that he wanted to be tried for capital murder and to receive the death penalty. Lt. Green testified that Brown responded merely by saying that he would not know whether the case could be made capital until he knew the circumstances of it. Brown also testified that he only told Trawick, in effect, that he did not know whether the case was a capital case because he did not know the facts. At the pre-trial hearing on his motion to suppress the confession, Trawick himself testified that Brown and the police officers only “promised that they would listen” to his statement and that if the facts they heard in the statement fit the facts necessary for a capital case, then his case would be tried as such.

The kinds of promises that may make a defendant's statement involuntary are promises of leniency, promises to bring the defendant's cooperation to the attention of the prosecutor, and the disclosure of incriminating evidence to the accused and silence in response to the defendant's offer to talk if his statement would not be used against him. Siebert v. State, 562 So.2d 586 (Ala.Cr.App.1989), affirmed, 562 So.2d 600 (Ala.), cert. denied, 498 U.S. 963, 111 S.Ct. 398, 112 L.Ed.2d 408 (1990). There is no evidence that the police or the deputy district attorney made any promises of this sort to Trawick. The deputy district attorney's mere promise to listen to Trawick's statement of the facts of the case and to then to take whatever action was appropriate under the law as applied to those facts was merely a promise that he would do his job; certainly, it was no special privilege or favor for Trawick.

The true test for determining whether extrajudicial confessions are voluntary is whether the defendant's will was overborne at the time he confessed so that the confession was not the product of a rational intellect and free will. Ex parte Weeks, 531 So.2d 643 (Ala.1988). The evidence, including Trawick's own testimony, shows that Trawick himself initiated the contact that led to his confession, that he legitimately waived his right to an attorney before confessing, and that he did so without the inducement of special promises of the sort described in Siebert. We therefore find no merit in his argument that his confession was not voluntary.

Trawick next argues that, in sentencing him, the trial court improperly placed on him the burden of proving mitigating circumstances and erred in failing to find the existence of mitigating circumstances. He first points out that, under Ala.Code 1975, § 13A-5-45(g), a defendant has only the burden of interjecting the issue of mitigating circumstances, and the burden then shifts to the State to disprove the existence of the mitigating circumstances, by a preponderance of the evidence. He argues that the trial court improperly required him to prove the existence of mitigating circumstances, rather than requiring the State to disprove their existence.

In considering what Trawick offered as a mitigating circumstance-his contention that he had an impaired capacity to appreciate the criminality of this conduct or to conform his conduct to the requirements of law-the trial court stated: “[It] does not apply. Dr. Rosencrans finds that the defendant has serious characterologic and personality defects and paraphilia or sexual sadism to an extreme degree NOR [sic] Dr. Ronan's findings summarized at page 25 of her 28-page report nor do any of the other evidences (written or testimonial) persuade me that the defendant did not appreciate the wrongfulness of his actions or that his capacity to conform his conduct to the requirements of the law was substantially impaired.” (Emphasis added.)

Trawick argues that this indicates that the trial court placed the burden of persuasion upon him, rather than upon the State. We disagree. The trial court did not state that Trawick had failed to persuade it of the existence of the sixth statutory mitigating circumstance (set out at § 13A-5-51); rather, it indicated that the evidence rebutted Trawick's contention regarding the mitigating circumstance and that it was therefore not persuaded to find the existence of that mitigating circumstance. Moreover, the record shows that the trial court properly instructed the jury as to the burden of proof on mitigating circumstances, and it is presumed to follow its own correct instructions. Ex parte Harrell, 470 So.2d 1309 (Ala.), cert. denied, 474 U.S. 935, 106 S.Ct. 269, 88 L.Ed.2d 276 (1985). We therefore find no plain error in the trial court's finding as to this mitigating factor.

Trawick also claims that although the trial court did find a nonstatutory mitigating circumstance, based upon Trawick's “characterological defects,” it should have found as a statutory mitigating circumstance that his capacity to appreciate the criminality of his actions was impaired. While the trial court was required by the United States Constitution to consider all the evidence Trawick presented in mitigation, Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), it was not required to determine that mitigating circumstances existed. Ex parte Harrell, supra. The record contains sufficient evidence, presented by the various experts who testified at the guilt and sentencing stages of the trial, from which the trial court could conclude that, while Trawick may have suffered from a mental illness, his ability to appreciate the wrongfulness of his actions was not impaired by that illness. In view of this, we find that the trial court did not abuse its discretion in failing to find the existence of the sixth mitigating circumstance.

Trawick next argues that the trial court improperly failed to instruct the jury on the lesser included offense of noncapital intentional murder. He summarily states that the evidence presented at trial could have supported a finding that he killed Stephanie Gach before he placed her in his van; thus, he concludes, the jury could have believed that no kidnapping took place and could have convicted him of the noncapital charge of intentional murder.

Trawick did not request an instruction on intentional murder, nor did he challenge the lack of such a charge before the Court of Criminal Appeals or in his certiorari petition to this Court; thus, our review of this issue is for plain error only. A capital murder defendant is entitled to a charge on a lesser included offense only where there is a reasonable theory from the evidence that would support such a charge. Anderson v. State, 507 So.2d 580 (Ala.Cr.App.1987). Trawick confessed that he first kidnapped, then murdered, his victim; this confession was properly admitted into evidence at trial. No reasonable interpretation of the evidence contained in the record would contradict Trawick's confession and support an inference that he killed Gach before he put her into his van; thus, there is no merit in Trawick's argument on this issue.

Trawick next argues that in regard to two pre-trial hearings he was improperly denied his constitutional right to be present. He points out that in Ex parte Jackson, 674 So.2d 1365 (Ala.1994), this Court held that state law and federal law secure the right of a defendant accused of a capital crime to be present during all stages of the trial. According to Trawick, he was excluded from two hearings wherein the parties outlined the case against him and discussed the admissibility of parts of his oral statements to the police. He therefore concludes that his conviction must be reversed and a new trial ordered, under Jackson.

In Jackson, the defendant was allowed to leave the courtroom twice during the sentencing portion of his trial, without having displayed a level of misconduct that would have constituted a forfeiture of his right to be present at the proceeding. This Court has not held, however, that a defendant has the right to be present at all pre-trial proceedings without regard to whether the defendant's absence will prejudice the defendant.

The record does not support Trawick's contention that he was denied the right to be present at a pre-trial hearing; rather, it shows merely that Trawick arrived late at one such proceeding and that, when he did arrive, the trial court fully apprised him of what had occurred in his absence. Trawick has not demonstrated how he was prejudiced by this, or how his presence at the entire proceeding might have changed the outcome of the trial. Because Trawick did not raise this issue before the trial court, the Court of Criminal Appeals, or before this Court in his certiorari petition, we review it only for plain error. We find none.

Trawick next argues that the trial court erred in admitting into evidence photographs of the victim and the crime scene and autopsy slides. He argues that the admission of these pictures was unnecessary to the prosecution of the case and was meant only to inflame the jury and undermine his defense. Trawick did not raise this issue at trial or before the Court of Criminal Appeals, and he has not provided this Court with the exhibits at issue; there is therefore nothing in the record for this Court to review. We do note that the record indicates that the exhibits were properly authenticated and appear to have been introduced in order to establish evidentiary elements of the case. Photographs that show the wounds of a deceased victim are generally admissible as evidence even though the evidence is gruesome and cumulative and relates to undisputed matters. Ex parte Siebert, 555 So.2d 780 (Ala.1989), cert. denied, 497 U.S. 1032, 110 S.Ct. 3297, 111 L.Ed.2d 806 (1990). Moreover, it is within the trial court's discretion to determine whether such evidence should be admitted, Siebert, and we see nothing to indicate that the trial court abused its discretion in admitting the exhibits at issue.

Trawick next argues that the jury's general verdict recommending the death penalty improperly failed to specify which, if any, statutory aggravating circumstances were found. He points out that, because death is the ultimate punishment, the Eighth Amendment requires capital sentencing procedures that “minimize the risk of wholly arbitrary and capricious action.” Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). He also points out that statutory aggravating circumstances that genuinely narrow the class of persons eligible for the death sentence are the most important safeguards against the arbitrary infliction of capital punishment. Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), and that the jury's finding of the statutory aggravating circumstances must be rationally reviewable. Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). He thus concludes that the jury should have been required to indicate in some fashion what criteria it relied upon in finding him eligible for the death sentence, and that its failure to do so is reversible error.

Because Trawick did not raise this issue before the trial court, the Court of Criminal Appeals, or before this Court in his petition for certiorari review, it will be reviewed only under the plain error rule. Beyond this, we note that there is no established Federal constitutional requirement or state law requirement that a jury specify the aggravating circumstances that it finds to exist. Haney v. State, supra. The jurors in this case were properly instructed on the aggravating and mitigating circumstances and on the process to be used in weighing these circumstances. We therefore find no error in the jury's failure to specify the aggravating circumstances that it apparently found to exist.

Trawick next argues that the jury impermissibly “double-counted” the kidnapping charge against Trawick as both an element of the capital offense and as an aggravating circumstance. We have previously addressed this issue in other cases and have held that the fact that a particular capital offense necessarily includes one or more aggravating circumstances as specified in Ala.Code 1975, § 13A-5-49, shall not preclude the finding and consideration of that relevant circumstance or those circumstances in determining the sentence. Ex parte Kennedy, 472 So.2d 1106 (Ala.), cert. denied, 474 U.S. 975, 106 S.Ct. 340, 88 L.Ed.2d 325 (1985); Smith v. State, 698 So.2d 189 (Ala.Cr.App.1996). Furthermore, Alabama courts have repeatedly upheld death sentences where the only aggravating circumstance supporting the death sentence overlaps with an element of the capital offense. Smith v. State, supra; Heath v. State, 455 So.2d 898 (Ala.Cr.App.1983), affirmed, 455 So.2d 905 (Ala.1984), affirmed, 474 U.S. 82, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985); Jenkins v. State, 627 So.2d 1034 (Ala.Cr.App.1992), affirmed, 627 So.2d 1054 (Ala.1993), cert. denied, 511 U.S. 1012, 114 S.Ct. 1388, 128 L.Ed.2d 63 (1994). We find no merit in Trawick's arguments as to this issue.

V. Conclusion

This Court has reviewed the record and the briefs, considered the arguments made before the Court on oral argument, and examined the writing and rulings of the Court of Criminal Appeals in regard to all the issues raised by Trawick, not just those specifically addressed above. Moreover, in compliance with Rule 39(k), Ala.R.App.P., we have searched the record of both the guilt phase and the sentencing phase of Trawick's trial for any plain error or defect that may have adversely affected his substantive rights. We find no error, “plain” or otherwise, that requires us to reverse the Court of Criminal Appeals' judgment affirming Trawick's conviction and sentence. That judgment is therefore affirmed.

HOOPER, C.J., and MADDOX, SHORES, HOUSTON, and COOK, JJ., concur.

Trawick v. Allen, 520 F.3d 1264 (11th Cir. 2008) (Habeas).

Background: Following affirmance of state capital murder conviction and death sentence, 698 So.2d 162, petition for writ of habeas corpus was filed. The United States District Court for the Northern District of Alabama, No. 02-01511-CV-CLS-TMP, C. Lynwood Smith, Jr., J., denied the petition. Petitioner appealed.

Holding: The Court of Appeals held that state court's determination that petitioner had not established prima facie case of gender-based discrimination during jury selection was not contrary to federal law. Affirmed.

PER CURIAM:

Jack Trawick appeals from the denial of his habeas corpus petition filed pursuant to 28 U.S.C. § 2254. Trawick was convicted of capital murder in Alabama in 1994 and sentenced to death. Both the Alabama Court of Criminal Appeals and the Alabama Supreme Court affirmed Trawick's conviction and death sentence for the kidnaping and murder of Stephanie Gash, and the U.S. Supreme Court denied Trawick's petition for a writ of certiorari. Trawick v. State, 698 So.2d 151 (Ala.Crim.App.1995); Ex parte Trawick, 698 So.2d 162 (Ala.1997); Trawick v. Alabama, 522 U.S. 1000, 118 S.Ct. 568, 139 L.Ed.2d 408 (1997). His Alabama Rule 32 petition was denied, and that denial was summarily affirmed on appeal. Trawick v. State, 854 So.2d 1215 (Ala.Crim.App.2002); Ex parte Trawick, 856 So.2d 963 (Ala.2002). Trawick then filed this federal habeas corpus petition, which the district court denied. This appeal followed.

The only issue before us on appeal is whether Trawick is entitled to federal habeas relief on his claim that the State of Alabama exercised its peremptory strikes in a discriminatory manner by using eleven of its fourteen strikes to remove women from the venire in violation of J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), which prohibits gender discrimination in jury selection.FN1 Although Trawick did not raise any objection to gender-biased striking during trial, he did argue that claim on direct appeal to the Alabama Supreme Court on the basis of J.E.B., which the U.S. Supreme Court decided several weeks after Trawick's conviction.FN2 The Alabama Supreme Court held that Trawick failed to establish a prima facie case of gender discrimination.

FN1. This is the sole issue upon which a Certificate of Appealability was granted. FN2. Trawick was convicted by a petit jury on March 23, 1994. The U.S. Supreme Court issued J.E.B. on April 14, 1994.

I. Standard of Review

This Court reviews a district court's legal findings de novo. Housel v. Head, 238 F.3d 1289, 1294 (11th Cir.2001). Because this case arises on habeas review, the district court correctly reviewed the state court's determination under the highly deferential standard of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under AEDPA, a federal court may not grant habeas relief unless the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). The state court's factual determinations are “presumed to be correct” and the petitioner has the “burden of rebutting the presumption of correctness by clear and convincing evidence.” Id. § 2254(e)(1).

II. Discussion

In J.E.B., the U.S. Supreme Court extended the prohibition against race-based discrimination in jury selection articulated in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to prohibit gender-based discrimination as well. In doing so, the Supreme Court held that “gender, like race, is an unconstitutional proxy for juror competence and impartiality.” J.E.B., 511 U.S. at 129, 114 S.Ct. 1419. As with a claim of racial discrimination, a party making a J.E.B. challenge bears the burden of proving a prima facie case of gender discrimination by showing “ ‘that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ ” Johnson v. California, 545 U.S. 162, 168, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005) (quoting Batson, 476 U.S. at 93-94, 106 S.Ct. 1712); see also *1267 J.E.B., 511 U.S. at 144-45, 114 S.Ct. 1419. Once a party establishes a prima facie case of gender discrimination, the burden shifts to the prosecutor to offer gender-neutral explanations which are not pretextual for the challenged strikes. J.E.B., 511 U.S. at 144-45, 114 S.Ct. 1419. The third step in the Batson/ J.E.B. framework then requires the trial judge to decide whether the opponent of the strike has proven purposeful discrimination. Johnson, 545 U.S. at 168, 125 S.Ct. 2410.

The Alabama Supreme Court determined that Trawick had not established a prima facie case of gender discrimination because the number and pattern of strikes did not suffice to establish a prima facie case. We must review that decision of the Alabama Supreme Court to determine if it was “contrary to” or involved “an unreasonable application of” established U.S. Supreme Court precedent.

During Trawick's jury selection, there were forty-two jurors on the venire, of which nineteen, or forty-five percent, were women. The prosecution used eleven out of its fourteen peremptory strikes to eliminate women from the jury, including the first seven.FN3 However, the final jury was composed of seven men and five women.

FN3. Fourteen peremptory strikes were exercised, as well as an additional strike of an alternate who was a white male.

During voir dire, Trawick did object to the prosecution's use of peremptory strikes, alleging that they were racially motivated and thus violated Batson. The trial judge required the prosecutor to articulate race-neutral reasons for striking the black members of the venire and, rejecting the prosecution's articulated race-neutral reasons for striking three black jurors, the court reinstated them to serve on the jury. Trawick did not, however, object on the basis of gender discrimination.

On appeal, Trawick argues that both the Alabama Supreme Court and the district court here erred in rejecting his gender discrimination claim, and that neither court gave adequate consideration to the arguments he made in addition to the number and pattern of gender-based strikes.FN4 He contends that the following additional factors support a finding of a prima facie case: 1) the history of discrimination in peremptory striking by the prosecutor's office; 2) the disparate treatment of men and women on the jury; 3) the lack of meaningful voir dire conducted by the prosecution; and 4) the fact that the only common factor among the women struck from the jury was their gender.

FN4. The State argues, and the district court agreed, that given the fact that the prosecutor and the victim in this case were women, there was no clear motivation to discriminate against women on the jury. As the Supreme Court has previously done, we reject this rationale altogether. See J.E.B., 511 U.S. at 138-39, 114 S.Ct. 1419 (rejecting gender-based stereotypes related to the facts of the case as a defense to gender-based discriminatory striking).

Initially, we are satisfied that the Alabama Supreme Court considered his arguments regarding these factors. The court's opinion specifically acknowledges his argument that the prosecutor's office had a history of racial discrimination in jury selection and although it does not specifically address each of the arguments advanced by Trawick, we cannot assume that the court failed to consider all of the arguments Trawick presented.

Although Trawick may be correct that J.E.B. recognized that “gender and race are overlapping categories,” 511 U.S. at 145, 114 S.Ct. 1419, and past racial discrimination may be considered as evidence that the prosecutor is willing and able to discriminate in jury selection, we cannot say without some evidence evincing a relationship to gender discrimination in this case that the Alabama Supreme Court erred in rejecting this factor.FN5

FN5. Trawick cites to a series of Batson cases to support his argument that the Jefferson County prosecutor's office has historically racially discriminated in the selection of juries. (Appellant's Br. at 12-13) (citing Cochran v. Herring, 43 F.3d 1404 (11th Cir.1995); United States v. Gordon, 817 F.2d 1538 (11th Cir.1987); Ex parte Bankhead, 625 So.2d 1146 (Ala.1993); Smith v. State, 620 So.2d 732 (Ala.Crim.App.1992); Ex parte Williams, 571 So.2d 987 (Ala.1990); McElemore v. State, 798 So.2d 693 (Ala.Crim.App.2000); Miesner v. State, 665 So.2d 978 (Ala.Crim.App.1995); Hodge v. State, 665 So.2d 959 (Ala.Crim.App.1995); Richmond v. State, 590 So.2d 384 (Ala.Crim.App.1991)).

Similarly, we cannot say that the trial record “provides clear evidence that the State treated male and female jurors who shared the same characteristics in a dramatically different manner.” (Appellant's Br. at 14.) In this complicated capital case, jurors were questioned about, among other things, their views on the death penalty, amenability to sequestration, personal experiences with mental health professionals, and previous involvement with the criminal justice system. The fact that two women stricken from the venire offered similar answers to men who were chosen for the jury in response to a single question regarding media exposure to the case is an isolated example in this record that simply does not amount to disparate treatment of men and women with “the same characteristics.” Without more, we cannot find that the Alabama Supreme Court erred in finding that Trawick failed to provide evidence that there was gender-based disparate treatment of similarly-situated individuals.

Nor can we say that the Alabama Supreme Court erred in rejecting the argument that there was a lack of meaningful voir dire of jurors whom the state struck. In Batson, the Supreme Court instructed that “the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose.” Batson, 476 U.S. at 97, 106 S.Ct. 1712. However, “the mere fact that ... counsel decided to exercise peremptory challenges against jurors who had not been extensively questioned during voir dire does not establish a discriminatory purpose.” Cent. Ala. Fair Hous. Ctr., Inc. v. Lowder Realty Co., Inc., 236 F.3d 629, 638 (11th Cir.2000) (citing United States v. Allison, 908 F.2d 1531, 1538 (11th Cir.1990)). Here, Trawick offers no explanation as to how the prosecutor's conduct is evidence of gender bias, particularly because Trawick does not allege that the prosecutor only failed to question members of either gender. Trawick's contentions amount to conclusory statements characterizing the prosecutor's performance. Thus, we cannot find that the Alabama Supreme Court unreasonably disregarded Trawick's argument that the lack of meaningful voir dire was evidence of gender discrimination.

Trawick also argues that the female jurors who were stricken from the venire “had in common only one characteristic-their gender.” (Appellant Br. at 16.) The Alabama Supreme Court explicitly recognized that a relevant factor in determining whether a prima facie case had been made was “evidence that the jurors in question shared only the characteristic of gender and were in all other respects as heterogenous as the community as a whole.” Ex parte Trawick, 698 So.2d at 168. To that end, Trawick lists several factors which distinguish the women stricken from the jury from one another-their marital status, employment status, and parental status.

While the cited biographical factors indicate that there was diversity among the women stricken from the venire, there were significant characteristics shared by various subsets of the women as well. For example, five of the women had been victims of violent crimes in the past. Seven of the women had previous experiences in the criminal justice system, either as witnesses or members of a jury. Three of the women had past experience with mental health professionals. Another three of the women expressed reluctance at being sequestered for the duration of the week. Given these substantial similarities among some of the women stricken from the jury, we cannot say that it was unreasonable to disregard Trawick's contention that the female venire members were “as heterogenous as the community as a whole.”

Finally, in light of this record, we cannot say that the Alabama Supreme Court erred in rejecting Trawick's argument that the number and pattern of strikes against female jurors in this case sufficed to establish a prima facie case. While Batson states that “a ‘pattern’ of strikes against black jurors ... might give rise to an inference of discrimination,” 476 U.S. at 97, 106 S.Ct. 1712, the Supreme Court did not explicitly determine whether a pattern of strikes alone is enough to permit a judge to draw the necessary inference. Rather, the Supreme Court instructed judges to consider “all relevant circumstances” relating to jury selection in determining whether a prima facie case of discrimination exists. Batson, 476 U.S. at 96, 106 S.Ct. 1712.

In this case, the prosecution used eleven of its peremptory strikes to remove approximately fifty-eight percent of the nineteen women on the venire. The original venire was forty-five percent women, and the final seated jury was forty-two percent women. The number of women struck is not so disparate from the number of women on the venire as to render the Alabama Supreme Court's determination clearly erroneous. Moreover, though it is not a dispositive factor, this Court has held “that the unchallenged presence of jurors of a particular [gender] on a jury substantially weakens the basis for a prima facie case of discrimination in the peremptory striking of jurors of that [gender].” Lowder, 236 F.3d at 638.

Given the facts of this case, we cannot find that the Alabama Supreme Court erred in concluding that Trawick's reliance on the number and pattern of strikes against women was, without more, insufficient to establish a prima facie case of gender discrimination in this case. We have reviewed the record and based thereupon cannot say that the Alabama Supreme Court's ultimate conclusion was “contrary to” or involved an “unreasonable application of” federal law. Accordingly, the district court opinion denying Trawick's petition for habeas relief is AFFIRMED.

Jack Harrison Trawick

Jack Trawick went to death row for abducting and murdering Stephanie Gach in 1992.