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Key v. State3/1/2002
bout her marriage to Key, their child, their divorce, and her efforts to move on with her life after the divorce. Testimony from another person was necessary to establish that the victim and the defendant had had a long relationship, that that relationship had ended, and that the victim had received custody of their daughter and possession of the marital home. Hurst also testified that her sister had established a relationship with Robbie Doyle, the woman who was driving the car on the day Key chased the women and shot them. This evidence was relevant to establish the sequence of events leading up to the murder and as evidence of Key's motive for the murder. Key could not have established plain error as to this issue.
Admission of the photograph of the victim was also not plain error. Alabama courts have often held that a photograph of the victim, taken while the victim was living, is admissible for purposes of identification. E.g., Living v. State, 796 So. 2d 121, 143 (Ala. Crim. App. 2000). The State was entitled to prove the identity of the victim, even if her identity was not disputed. Accordingly, we would have found no plain error, even if the claim had not been waived.
Testimony about the victim and the admission of the photograph of the victim while she was living were proper, and would not have entitled Key to a finding of plain error, even if the claims had not been waived by Key's guilty plea. Because this non-jurisdictional claim was waived, Key is not entitled to any relief.
V.
In Issue VI of his brief to this Court, Key argues that § 13A-5-40(a)(7), Ala. Code 1975, the section of Alabama's capital-murder statute under which he was indicted, is unconstitutionally vague and arbitrary and that it violates principles of equal protection. He argues to this Court, as he argued to the court below in a Motion to Dismiss Capital Count (C. 106) and in a hearing on that motion (R. 212-13), that the statute was intended to make capital offenses drive-by shootings and carjackings that resulted in death. He argues further that, to punish a defendant whose victim was sitting in a car differently from a defendant whose victim stumbled away from a car violated equal-protection principles. This non-jurisdictional claim was waived by Key's guilty plea to the capital murder. We note, moreover, that the trial court correctly denied Key's motion to dismiss because Key was not entitled to relief on his claim. Alabama law does not support Key's allegations, and he would not be entitled to any relief on appeal, even if the claim had not been waived.
This Court has considered and rejected the constitutional arguments Key makes here. E.g., McGriff v. State, [Ms. CR-97-0179, Aug. 31, 2001] ___ So. 2d ___ (Ala. Crim. App. 2001); Farrior v. State, 728 So. 2d 691, 701-03 (Ala. Crim. App. 1998). Based on the foregoing, Key would not have been entitled to any relief on this claim, even if it had not been waived by the guilty plea.
VI.
In Issue VII of his brief to this Court, Key argues that the trial court erred when it denied his motion to recuse. Specifically, he claims that the judge made public comments that reflected his personal remorse about his "possible role" in the failure of the judicial system to protect the victim and that further inflamed the public's opinion toward Key and, he says, prejudiced his case. He claims also that the court's ex mero motu order that Key receive a pretrial psychological evaluation might have indicated the court's personal bias or prejudice against him. Key's guilty plea waived all non-jurisdictional defects in the proceedings leading up to the guilty verdict. Because the trial judge presided over the penalt
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