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Smith v. State12/22/2000
ant unintentionally endangers persons other than the homicide victims, but disallows enhancement where the defendant intentionally threatens the lives of others.") (emphasis in original); Wilson v. State, [Ms. CR-97-2569, November 19, 1999] __ So. 2d __ (Ala. Crim. App. 1999) (Part XV, infra). Thus, the prosecution presented some evidence that the appellant knowingly created a great risk of death to at least six people: in addition to the three victims killed, the appellant attempted to kill Gross; he put his girlfriend's life in danger as he struggled with Gross over a gun and attempted to obtain a knife from her, this struggle occurring in a backyard in a residential area; he discontinued his deadly rampage only when the driver of a car pulled up to the residence; and this crime occurred in a "crack house," which was visited frequently.
Thus, § 13A-5-49(3) was not vague and overbroad as applied to the facts of this case. See Wilson v. State, __ So. 2d at __ (application not arbitrary or inconsistent with prior law where the appellant's conduct created a risk to seven people who were in one room and for one other person who was in another part of the residence); Wesley v. State, 575 So. 2d 108, 121 (Ala. Crim. App. 1989) (agreement with the trial court's finding that "` he number of victims who were murdered, shot, and shot at by the defendant -- seven -- is undeniable proof that the defendant created a great risk of death to many persons'"), rev'd on other grounds, 575 So. 2d 127 (Ala. 1990). See also Wilson v. State, __ So. 2d at __ (§ 13A-5-49(3) is not vague); Giles v. State, 632 So. 2d 568, 573 (Ala. Crim. App. 1992) (the evidence of the appellant's attack on six members of a family in the family's residence clearly established the existence of § 13A-5-49(3)), aff'd, 632 So. 2d 577, 583 (Ala. 1993).
XII.
The appellant contends that the trial court erred in allowing the prosecution, in its presentation of evidence supporting the aggravating circumstance that the appellant had previously been convicted of a violent felony, § 13A-5-49(2), to elicit from Probation Officer Robert McCullough the details of that prior felony. McCullough testified that the appellant had been previously convicted of first-degree assault and that his report was based on what the victim or the appellant had told him. He further testified that he had stated in his report that the appellant and the victim argued had over money the victim allegedly owed the appellant; that, during the altercation, the appellant stated that he was tired of people using him; that the appellant pointed a shotgun at the victim and said, "I'm going to kill the son of a bitch; I'm going to go to the penitentiary" (R. 1981); that, although his mother asked him not to shoot, he shot the victim in the arm and "almost blew his arm off" (R. 1981); and that the victim is not able to use his arm.
The appellant contends that McCullough's detailed description of the facts leading to his prior conviction was based on unreliable, prejudicial, and irrebuttable hearsay from McCullough's report. The appellant did not object on this basis at the sentencing hearing. Thus, we review this claim for plain error.
While the relevancy of a few of the details is questionable, we agree with the attorney general that this claim does not present plain error under Dill v. State, 600 So. 2d 343, 364 (Ala. Crim. App. 1991), aff'd, 600 So. 2d 372 (Ala. 1992). In Dill, the court, in addressing the appellant's contention that the prosecution had improperly elicited details about a prior conviction for a violent felony, by relying on hearsay evidence, explained:
"`Any evidence which has probative value and is relevant to
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