With no explanation, chose the best option from "A", "B", "C" or "D". in his sentence of death, see § 13A-5—53(b)(3), and that the trial court should have considered the fact that Meeks was not prosecuted as a mitigating circumstance. (Gavin’s brief at p. 131.) “Although Meeks was initially charged with the capital murder, that charge was dismissed because the prosecutor and the investigators believed that Meeks was not a participant in the murder. Meeks testified at trial that he did not participate in the murder, but that when Gavin got out of the car, he thought Gavin was going to ask the driver of the van for directions. Nothing in the record supports Gavin’s assertion that Meeks was a participant in the murder and that Meeks’s lack of prosecution should have been considered by the trial court. Compare Ex parte Burgess, 811 So.2d 617 (Ala.2000)(<HOLDING>). Thus, we find no error on the part of the

A: holding that the crime of rape is a lesser included offense of the crime of felony murder in the perpetration of rape and that since the latter crime included all of the elements of the former consecutive sentences were therefore improper
B: holding that firstdegree murder is one crime although the defendant can commit the crime in several ways
C: holding that the trial court should have considered in mitigation the fact that burgess was the only one of six participants in the crime two of whom admitted that they participated in the crime who was charged with and prosecuted for the murder
D: holding that a district court may not rely on a charging document without first establishing that the crime charged was the same crime for which the defendant was convicted
C.