text:
    C.E.T. v. K.M.T.
    2011139.
    Court of Civil Appeals of Alabama.
    Nov. 7, 2003.
    Paul R. Cooper of Cooper & Cooper, Montgomery, for appellant.
    Stephen M. Langham, Prattville, for ap-pellee.
   MURDOCK, Judge.

This is a child-custody-modification case. C.E.T., the father, appeals from a judgment of the Elmore Circuit Court awarding custody of one of the parties’ two children to K.M.T., the mother, and ordering the father to pay child support to the mother.

The parties were divorced pursuant to a divorce judgment entered by the trial court in March 1997. At the time the divorce judgment was entered, the parties had a minor son, T.M.T., and the mother was pregnant. Pursuant to the divorce judgment, the father was awarded primary physical custody of T.M.T. Thereafter, the mother filed a petition to modify custody of T.M.T. and to establish the father’s paternity as to the child she had been pregnant with at the time of the parties’ divorce. The father alleged that the mother had “been with another man” and that he was not the father of the second child.

In April 1999, pursuant to a settlement agreement reached by the parties, the trial court awarded the mother additional visitation with T.M.T., adjudicated the father to be the father of the parties’ second child, awarded the mother custody of the parties’ second child, and awarded the father visitation with the second child.

In August 2000, the mother filed another petition to modify custody of T.M.T. In her petition, the mother alleged that there had been a material change of circumstances since the April 1999 custody judgment. She requested that she be awarded custody of T.M.T. and that the trial court order the father to pay her child support in accordance with Rule 32, Ala. R. Jud. Admin. The father filed an answer denying the mother’s allegations and counterclaims requesting that the mother be held in contempt for allegedly interfering with the father’s visitation with the parties’ second child and that he be awarded damages, attorney fees, and costs under the Alabama Litigation Accountability Act.

The trial court conducted a two-day trial, at which it received ore tenus and documentary evidence. T.M.T. was eight years old at the time of trial. The trial court entered a judgment awarding the mother custody of T.M.T. and ordering the father to pay child support to the mother. The trial court denied the father’s counterclaims and awarded him visitation with both of his children. The father filed a postjudgment motion requesting a new trial, in part because the trial court had conducted an in camera interview with T.M.T. despite the father’s objection to the interview. The father also requested, in the alternative, that the trial court alter, amend, or vacate its judgment based upon what, he says, was an erroneous calculation of his child-support obligation. At the hearing on the father’s postjudgment motion, the trial court received additional ore tenus evidence. After an unfavorable ruling on his postjudgment motion, the father appeals.

The father makes three arguments on appeal, two of which relate to the trial court’s modification of custody and one of which relates to child support. Because we have determined that the father is entitled to a new trial based upon the first of his custody-modification arguments, i.e., that the trial court erred by conducting an in camera interview with T.M.T., we pre-termit any discussion of his remaining arguments.

During the trial, the mother requested that the trial court conduct an in camera interview with T.M.T. When the trial court stated that it intended to interview the child in camera, the father’s counsel stated, “[M]y client would like his attorney to be present and would like the opportunity to also ask questions.” The trial court denied the father’s request. Thereafter, the trial court interviewed T.M.T. in the presence of a court reporter. However, the court reporter did not record the interview. After the trial court conducted the in camera interview, the father renewed his objection, specifically stating that he “ha[d] a constitutional right to confront ... and cross-examine all witnesses.” The court responded, ‘Tour record is made.”

In Ex parte Berryhill, 410 So.2d 416 (Ala.1982), our Supreme Court stated:

“We are aware that the practice exists among certain trial courts to conduct private conversations with minors in chambers with the consent of opposing counsel. In the absence of waiver or consent, however, the private interview by the trial court cannot be condoned. To sanction such a procedure would fly squarely in the face of the constitutional right of litigants to a public trial. Nothing in American law allows ‘private’ trials.... The fundamental principal is that the decision of a court must be based on evidence produced in open court lest the guaranty of due process be infringed.
“Rule 43, [Ala. R. Civ. P.], provides that ‘[i]n all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided in these rules.’ There is no exception in the rules for in camera examination of witnesses without the presence or consent of attorneys and the right of cross-examination.
“In Raper v. Berrier, 246 N.C. 198, 97 S.E.2d [782] (1957), a proceeding was instituted by a natural father for the purpose of having the court award him custody of his thirteen-year-old daughter. During the course of the trial, the judge conferred alone in his chambers with the minor in question. Custody was awarded to the respondents, and the father claimed the court committed error in conferring with the child privately. On review, the appellate court held that it was error to receive testimony from witnesses without affording the petitioner an opportunity to be present and know what evidence was offered. While the court recognized that in many instances it may be helpful to talk to the child whose welfare is so vitally affected by the decision, it stated that traditionally court hearings are open. This was cited as one of the sources of our courts’ greatest strength. Carefully noting that there was no suggestion that the able trial judge was improperly influenced by the private interview and no such suggestion is made here, it was ruled nevertheless that the petitioner’s right to hear all the evidence offered in his case must not be denied him.”

Ex parte Berryhill, 410 So.2d at 418; see also Bamburg v. Morse, 686 So.2d 327, 328 (Ala.Civ.App.1996) (reversing a trial court’s decision to modify custody where the father had objected to the trial court’s in camera examination of the minor child). Our Supreme Court has also stated:

“Some jurisdictions hold that it is not necessarily improper for a trial court to conduct a private interview off the record, even in the absence of consent or waiver, when the court either states for the record a summary of the child’s testimony, or the court does not make that testimony the primary basis for the custody decision. See, e.g., Seniuta v. Seniuta, 31 Ill.App.3d 408, 334 N.E.2d 261 (1975); Jenkins v. Jenkins, 125 Cal.App.2d 109, 269 P.2d 908 (1954). However, the decisions from jurisdictions such as these are not persuasive in view of our decision in Berryhill that absent consent, waiver, or acquiescence, a private interview is not proper.”

Ex parte Wilson, 450 So.2d 104, 106 (Ala.1984).

As noted in Ex parte Berryhill, we make no suggestion that the trial court was improperly influenced by the in camera interview with T.M.T. However, without the father’s consent to the interview or a waiver by the father of his right to have his counsel present during the interview, the trial court committed prejudicial error by conducting the interview and violated the father’s right to due process. Based on the foregoing, the judgment of the trial court is due to be reversed. This cause is remanded for a new trial as to the mother’s petition for modification of custody.

REVERSED AND REMANDED.

YATES, P.J., and CRAWLEY and PITTMAN, JJ„ concur.

THOMPSON, J., concurs in the result.

      . We note that one of the arguments that the mother made at trial to support her petition for a change of custody was that the father had “ignored” the possibility that T.M.T. had attention deficit disorder based upon a physician's observation in April 1999 that T.M.T. was "fidgety, interrupts, distractible, and nervous,” and the physician’s conclusion that T.M.T. might have attention deficit disorder.

      . The mother argues in her brief to this court that "the record does not indicate that any ... private interview took place.” However, during the trial the mother’s counsel admitted that the interview had occurred and that she had requested that the trial court conduct the interview.


source: Caselaw Access Project

author: YATES, Presiding Judge. CRAWLEY, Judge, PITTMAN, Judge, MURDOCK, Judge,

license: Public Domain

text:
    Angela VINSON v. William M. VINSON.
    2020082.
    Court of Civil Appeals of Alabama.
    Nov. 14, 2003.

      Jay E. Stover of Callis, Stover & Stewart, Rainbow City, for appellant.
    Wendy Ghee Draper of Doug Ghee & Associates, Anniston, for appellee.
   YATES, Presiding Judge.

Angela Vinson (“the mother”) and William M. Vinson (“the father”) were married in December 1995. Three children were born of the marriage — a daughter in 1997 and twin sons in 1998. On June 11, 2001, the mother sued the father for a divorce, alleging incompatibility of temperament and that she had reason to believe that the parties’ four-year-old daughter had been sexually abused while in the father’s care. The mother sought, among other things, custody of the children, alimony, child support, health insurance, a division of the marital assets, a portion of the father’s retirement benefits, and an attorney fee. She also moved for temporary custody of the children, alleging that she feared for their safety. Specifically, she alleged sexual abuse of the daughter by the father and that the father had stated that he would flee the state with the children. On June 11, 2001, the court awarded the mother temporary control and custody of the children. On July 18, 2001, the father answered the divorce complaint, alleging that the mother had committed adultery and that she bore the fault for the breakdown of the marriage. He denied that he had ever threatened to permanently prevent the mother from seeing the children. Further, the father admitted that the parties’ daughter had been sexually abused, but he alleged that the mother was making false and misleading statements concerning his involvement in the abuse in order to obtain temporary custody and to deny him access to the children. He also alleged that he was the best and proper person to have custody. On July 20, 2001, the parties agreed that the father could have custody of the children for a weekend visit.

On November 1, 2001, the mother requested that the court award her temporary child support and “back pay” of child support, alleging that she had maintained custody of the children since June 2001. In February 2002, the mother moved to dismiss her November 1 motion, contending that the parties had reconciled; however, in March 2002, she moved to withdraw her motion to dismiss.

After conducting an ore tenus proceeding, the court, on July 29, 2002, entered a divorce judgment. The judgment, among other things, found that the mother had committed adultery and granted the divorce on the grounds of adultery and incompatibility; the parties were awarded joint custody of the minor children, with the father having primary custody and the mother having the right to visitation. The mother was ordered to pay $625 per month as child support. On August 12, 2002, the mother moved to alter, amend, or vacate the judgment or, in the alternative, for a new trial, contending that she should have been granted primary custody of the children or more visitation time, as well as past-due child support. On September 17, 2002, following a hearing, the trial court denied the mother’s motion.

The mother appeals, contending that the trial court erred in awarding the father primary custody, in restricting her visitation schedule, in failing to award her temporary child support while the case was pending, in finding that her adulterous conduct caused the divorce, and in refusing to allow testimony concerning the father’s cohabitation with his alleged girlfriend in the posttrial hearing.

On appeal, the mother first argues that the trial court erred in awarding primary custody to the father. Specifically, she argues that she had been the children’s primary caretaker throughout their lives and that she should continue in that role. She also alleges in her brief to this court that the trial court’s decision was not based on the children’s best interests, but was done to “spite and [with a] desire to punish.”

At the time of the hearing, the parties’ daughter was five years old and the twin sons were three years old. The mother stated that the parties had moved to Warner Robins, Georgia, in 1999. She further stated that she had been unable to secure a teaching job in Georgia; therefore, she accepted a teaching position in Clay County, Alabama, for the 2000-2001 school year. The father had a position with the military in Georgia. The mother said that she had not wanted to take the teaching job in Alabama, but, she stated, the father instructed her that she had to. The mother testified that during the 2001-2002 school year she rented an apartment in Clay County and that the children resided with her. The father came to Alabama every weekend to spend time with the mother and the children, and on occasion he took the parties’ daughter back to Georgia.

The mother admitted that she had had an affair with the manager of the apartment complex where she and the children resided. She maintained that the affair lasted one month. She also admitted that the parties’ daughter had been molested by a friend of a “nanny” she had hired while the parties lived in Georgia. The mother acknowledged that the father had had nothing to do with that incident.

The mother testified that she had moved from the apartment in Clay County to an apartment in Etowah County that is located three miles from her parents’ residence and that her parents assisted her in caring for the children. She expressed concern that if the father was awarded custody, he would have no family nearby to help him care for the children. She also expressed concern that the parties’ sons had lived with the father for only one and one-half years and that they call other men “daddy.” The mother alleged that the father had paid no child support; however, she admitted that she had used his bank debit card for gasoline and “to get stuff for the kids.”

The mother’s Clay County neighbor testified that he felt that the children were in danger because, he said, he had witnessed them, unsupervised, outside in an unfenced area on many occasions. In fact, he alleged that other neighbors “kept an eye” on the children. The neighbor also testified that he saw the maintenance man at the apartment complex go in and out of the mother’s apartment. He alleged that the mother’s relationship with the maintenance man was “open” and “blatant.”

The father testified that he lived in Georgia and that he was employed by Boeing Aerospace, teaching military personnel how to fly surveillance aircraft. He stated that in March 2001 he retired from the military and took the job with Boeing. He said that, at that time, he had asked the mother to “come home.” He testified that, until June 2001, he made the mother’s monthly van payments and that she used his debit card “as freely as she wanted to.” He stated that he called every day that the parties were living apart to check on the children and that he was concerned about the movies the mother allowed them to watch. One such movie concerned divorced parents where the father was having an affair and was no longer interested in the children’s lives. He testified that the parties’ then four-year-old daughter had watched this movie over and over and had begun to believe that her father no longer wanted her. He alleged that during the parties’ 13-month separation, he repeatedly tried to reconcile.

“ ‘A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong.Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994), quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993) (internal citations omitted). This presumption is based on the trial court’s unique position to directly observe the witnesses and to assess their demeanor and credibility. This opportunity to observe the witnesses is especially important in child-custody cases. “In child custody cases especially, the perception of an attentive trial judge is of great importance.” Williams v. Williams, 402 So.2d 1029, 1032 (Ala.Civ.App.1981). In regard to custody determinations, the Alabama Supreme Court has also stated: “It is also well established that in the absence of specific findings of fact, appellate courts will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.” Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996).

In an initial award of custody, the trial court must decide the custody issue based on the best-interest-of-the-child standard. See Ex parte Couch, 521 So.2d 987 (Ala.1988). The parties stand on equal footing; neither party enjoys a favorable presumption. See Smith v. Smith, 727 So.2d 113 (Ala.Civ.App.1998).

In considering the best interests and welfare of the child, the court must consider the individual facts of each case:

“The sex and age of the children are indeed very important considerations; however, the court must go beyond these to consider the characteristics and needs of each child, including their emotional, social, moral, material and educational needs; the respective home environments offered by the parties; the characteristics of those seeking custody, including age, character, stability, mental and physical health; the capacity and interest of each parent to provide for the emotional, social, moral, material and educational needs of the children; the interpersonal relationship between each child and each parent; the interpersonal relationship between the children; the effect on the child of disrupting or continuing an existing custodial status; the preference of each child, if the child is of sufficient age and maturity; the report and recommendation of any expert witnesses or other independent investigator; available alternatives; and any other relevant matter the evidence may disclose.”

Ex parte Devine, 398 So.2d 686, 696-97 (Ala.1981).

The trial court had the advantage of observing the witnesses, and it made a custody decision based upon a credibility determination. The court’s custody decision was supported by the evidence. The judgment as to this issue is affirmed.

Next, the mother contends that the court erred in restricting her visitation schedule. Specifically, she argues that the order does not provide for birthday visits or visitation on Mother’s Day.

The trial court awarded the mother the following visitation with the children:

“a) Every first and third weekend of each month from Friday at 5:00 P.M. until [Sunday at] 6:00 P.M.
“b) One-half QE) of the minor children’s break from school for the summer.
“c) One (1) week during the Christmas holidays....
“d) The [mother] shall have the children for one-half of spring break....
“e) At all other reasonable and convenient times as the [p]arties may agree upon.”

The order also stated that the parties should “share decision-making authority as to major decisions affecting the welfare and upbringing of the said children.” The court also ordered each party to “insure that the children are allowed unhampered contact and free access with the other [p]arty.”

Matters of visitation rest soundly within the broad discretion of the trial court, and a trial court’s determination regarding visitation must be affirmed absent a finding that the judgment is unsupported by any credible evidence and that the judgment, therefore, is plainly and palpably wrong. Andrews v. Andrews, 520 So.2d 512 (Ala.Civ.App.1987). Here, we believe that the trial court attempted to ensure that both parties could maintain a close relationship with their children, and, therefore, we find no abuse of discretion. The judgment as to this issue is affirmed.

Next, the mother contends that the trial court erred in failing to award her temporary child support while the case was pending. Although the mother had filed a motion requesting temporary child support, the court never ruled on that motion. On June 11, 2001, the same day the mother sued for a divorce, the mother filed a “motion for temporary custody pending hearing” wherein she asked for “such other, further and different relief [as] she may be entitled.” Then, on November 1, 2001, the mother filed a “motion to set temporary child support and motion for final hearing.” The trial court never entered a pendente lite child-support order in this case. The mother argues in her brief to this court that it was “inequitable” to allow the father to escape providing support for his children. The father testified that after the divorce action was filed, “[the mother] wouldn’t accept anything from me.... I mean, I wanted the kids — I still provided for them when I had them. I sent them home with things. I offered to go buy their groceries.” During the 13 months that the case was pending, the trial court did not enter an order providing for the minor children’s support. We stated in Brown v. Brown, 719 So.2d 228, 232 (Ala.Civ.App.1998):

“This court will not allow the trial court’s oversight in this regard to accrue to the benefit of the noncustodial parent. To do so would reward the noncustodial parent for the failure or refusal to support his or her child; it might also serve to encourage a noncustodial parent to withhold needed support during the pen-dency of the divorce action. Alabama law does not support such a result.”

Accordingly, we reverse the judgment as to this issue and remand the case for the trial court to calculate a retroactive child-support award from June 2001 through July 2002.

Next, the mother argues that the trial court erred in divorcing the parties on the ground of adultery. Specifically, she argues that the trial court cannot make such a finding after the parties have reconciled. She states that, during the pending divorce action, the parties lived together for several weeks and the case was placed on the administrative docket. She contends that these facts indicate that the parties had reconciled.

The mother admitted that she committed adultery. She testified that the affair lasted one month, ending in May 2001. In June 2001, she sued for a divorce. She testified that the parties attempted to reconcile and resumed marital relations from Thanksgiving 2001 through March 2002. The father also testified that the parties repeatedly tried to reconcile. He testified that he told the wife that, “if she would come home, ... she would not take all the blame.”

“ ‘Condonation means the willing continuance of cohabitation, a living together in the same place from which fact sexual intercourse may in general be presumed.’ ” Rush v. Rush, 551 So.2d 1075, 1076 (Ala.Civ.App.1989), quoting Latham v. Latham, 54 Ala.App. 305, 307, 307 So.2d 703, 707 (Ala.Civ.App.1975). “Condonation” in the context of a divorce case means forgiveness by the offended spouse. Id. Where there has been a condonation of adultery, a divorce may not be granted on the ground of adultery. Id.

Here, the mother committed adultery; however, in light of the evidence regarding condonation, we conclude that the trial court erred in finding adultery as a ground for divorce. The judgment as to this issue is reversed and the case is remanded for the trial court to grant a divorce solely on the ground of incompatibility.

Finally, the mother argues that the trial court erred in refusing to allow certain testimony during the posttrial hearing. She claims that she sought to introduce evidence revealing that the father had moved his girlfriend into his home with him and the children. The mother cites no authority in support of this argument. Therefore, she has waived this issue for appeal. See Rule 28, Ala. R.App. P., and Messer v. Messer, 621 So.2d 1343 (Ala.Civ.App.1993).

The father’s request for an attorney fee on appeal is denied.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

THOMPSON, J., concurs in the result, without writing.

CRAWLEY, J., concurs in part and dissents in part, with writing.

PITTMAN, J., concurs in part and dissents in part, with writing.

MURDOCK, J., concurs in part, concurs in the result in part, and dissents in part, with writing.

CRAWLEY, Judge,

concurring in part and dissenting in part.

I dissent as to the reversal on the issue of retroactive child support. During the separation, the mother paid her bills from her salary, and she used the father’s debit card to pay for gas and medical expenses for the children and to purchase things for the children. The mother testified that since she filed for divorce the father had given her some money and had purchased diapers, most of the children’s clothing, toys, and Christmas presents for the children. He also provided health insurance for the children. The father paid all the payments on the van she drove. The father and mother both paid the children’s day-care costs. The mother issued a check on insufficient funds, and the father paid the check and penalties for her. In April 2002, the mother and the father agreed to file separate income-tax returns with the mother claiming the children. She received a $4,000 tax refund, and he had to pay state and federal taxes. The mother testified that she agreed to give the father $1,400 of the refund and to apply the rest of the refund to their van lease payment. At first, the mother testified that she forgot to send the father the $1,400, then she admitted that she did not forget. Her intentions were to use $2,600 of the refund to pay a mileage penalty on the van lease. Instead, she stated that she used $3,000 of the tax refund to purchase a vehicle for her personal use. After the mother purchased herself the new vehicle, she returned the van to the father with over 71,000 miles on it, double what the lease agreement allowed. She further testified that she should not be responsible for the over-the-limit mileage penalty for the leased van.

“[A] trial court may, in its discretion, award child support retroactive to the filing of the complaint for divorce where the trial court has failed to enter a pen-dente lite child support order for the period in which the parent had a duty to support the child but failed to provide that support.”

Brown v. Brown, 719 So.2d 228, 232 (Ala.Civ.App.1998) (emphasis added).

In view of the father’s support of the children, the trial court did not abuse its discretion in not awarding retroactive support.

I concur in the main opinion as to the other issues.

PITTMAN, Judge,

concurring in part and dissenting in part.

I concur in the main opinion in all respects except one: although the evidence does support a finding of incompatibility, I do not believe that the trial court’s finding of adultery in its divorce judgment is incorrect. The trial court could have concluded from the father’s testimony that the mother did not actually resume “living together in the same place” with the father in Georgia after her affair so as to mandate a conclusion that the father condoned the mother’s adultery. Under our law, something more than a “mere temporary cohabitive relationship,” such as occasionally spending weekends together, must occur to warrant a conclusion that a party has condoned his or her spouse’s adultery; “[tjhere must be an intention to forgive and to resume the marital relationship.” Rush v. Rush, 551 So.2d 1075, 1077 (Ala. Civ.App.1989), Because the main opinion recognizes the propriety of the trial court’s divorce judgment based on the evidence presented but unnecessarily directs the trial court to base its divorce judgment solely on the ground of incompatibility, despite substantial evidence supporting the ground of adultery, I dissent as to that issue.

MURDOCK, Judge,

concurring in part, concurring in the result in part, and dissenting in part.

I concur in those portions of the main opinion regarding custody and the trial court’s refusal to hear testimony during the postjudgment hearing; I concur in the result in that part of the main opinion that addresses visitation. As to that part of the main opinion addressing the trial court’s failure to award retroactive child support, I dissent and join Judge Crawley’s special writing as to that issue. Based on the rationale in Judge Pittman’s special writing, I also dissent from the main opinion’s reversal of the trial court’s grant of the divorce on the ground of adultery.

      . This case was filed in the Etowah Circuit Court and was later transferred to the Clay Circuit Court upon the father's request.


author: WISE, Judge.

text:
    Travian DeBois RAY v. STATE of Alabama.
    CR-01-1794.
    Court of Criminal Appeals of Alabama.
    Nov. 22, 2002.

      Travian Ray, pro se.
    William H. Pryor, Jr., atty. gen., and Stephen N. Dodd, asst. atty. gen., for ap-pellee.
   WISE, Judge.

The appellant, Travian DeBois Ray, appeals from the circuit court’s denial of his petition for posteonvietion relief filed pursuant to Rule 32, Ala.R.Crim.P., in which he attacked his 2000 conviction for unlawful distribution of a controlled substance (cocaine) and the resulting sentence of 45 years’ imprisonment. We affirmed Ray’s conviction on direct appeal, by an unpublished memorandum, Ray v. State, 819 So.2d 122 (Ala.Crim.App.2001) (table), and we issued a certificate of final judgment on November 13, 2001.

On April 4, 2002, Ray filed a Rule 32 petition, challenging his conviction. The petition sought relief on numerous grounds. On May 20, 2002, the State filed an answer and a motion to dismiss Ray’s petition. On May 23, 2002, the circuit court summarily denied Ray’s petition. The order stated, in pertinent part:

“Upon consideration of Petitioner’s petition, the State’s response, and the record in this case, the Court finds as follows:
“1. All allegations are precluded by Rule 32.2(a)(3) and (a)(5) because they could have been [raised] at trial or on appeal.
“2. The petition fails to state a claim upon which relief could be granted.
“3. No material issue of fact or law exists which would entitle Petitioner to relief.
“4. Petitioner has failed to meet the burden of proof in his petition.
“5. No purpose would be served by any further proceeding.
“Accordingly, it is hereby ORDERED that the petition of Travian DeBois Ray for post-conviction relief filed pursuant to Rule 32 of the Alabama Rules of Criminal Procedure is hereby denied and dismissed pursuant to Rule 32.7(d).”

(C. 29-30.) This appeal followed.

On appeal, Ray argues that the trial court erred in summarily denying his Rule 32 petition because, he says, his petition presented claims of ineffective assistance of counsel that were facially meritorious.

Rule 32, Ala.R.Crim.P., requires the circuit court judge to conduct an evi-dentiary hearing on a Rule 32 petition that appears meritorious on its face. However, the Alabama Supreme Court has held that a circuit court judge who presided over a petitioner’s trial and who observed the conduct of the petitioner’s attorneys at trial need not hold a hearing on the effectiveness of those attorneys. Ex parte Hill, 591 So.2d 462, 463 (Ala.1991). The fact that a circuit court judge is not required to conduct an evidentiary hearing on a petitioner’s claims of ineffective assistance of trial counsel if that judge personally observed the conduct of counsel does not, however, relieve that judge of the responsibility of entering a sufficiently specific order addressing each of the petitioner’s claims of ineffective assistance of trial counsel. See Alvis v. State, 762 So.2d 380 (Ala.Crim.App.1999); Benefield v. State, 583 So.2d 1370 (Ala.Crim.App.1991) (wherein this Court noted in both cases that meritorious allegations “warrant either an evidentiary hearing or an adequate explanation for their denial”).

Here, Ray raised a number of claims of ineffective assistance of counsel against both his trial counsel and his appellate counsel. Of particular concern to this Court are Ray’s Apprendi claims. Ray claims that his trial counsel failed to object to the State’s failure to prove that he sold cocaine within three miles of both a school campus and a public housing project, despite the fact that the United States Supreme Court had recently released a decision mandating such proof. Moreover, he claimed that his appellate counsel was ineffective in that he failed to ensure that a motion for a new trial raising this claim was filed, or, if one was filed, that it was included in the record, so that this Court could review the merits of his ineffective-assistance-of-trial-counsel claim. Therefore, it appears that this Rule 32 petition was the first opportunity Ray had to raise his claims of ineffective assistance of counsel against his trial counsel and his appellate counsel. See Andersch v. State, 716 So.2d 242, 245 (Ala.Crim.App.1997). Thus, the circuit court incorrectly determined that Ray’s claims were precluded from review.

Ray’s ineffective-assistance-of-counsel claims also appear to be facially meritorious. Ray claimed that had his counsel objected to the State’s failure to prove that he sold cocaine within three miles of both a school campus and a public housing project, this Court would have determined that the mandatory sentence enhancements provided in §§ 13A-12-250 and 13A-12-270, Aa.Code 1975, were improperly imposed. His claim is correct. See Poole v. State, 846 So.2d 370, 373 (Ala.Crim.App.2001). See also Ex parte Hale, 848 So.2d 224, 233 (Ala.2002) (adopting this Court’s holding and rationale in Poole). Given the fact that, had Ray’s trial counsel made an Apprendi objection or had his appellate counsel raised the issue on appeal, this Court would likely have remanded his case to the circuit court with instructions to vacate the mandatory statutory enhancements, we fail to see how counsel’s conduct did not prejudice Ray’s defense. Moreover, counsel’s errors were not harmless, given that Ray’s sentence would have been 35 years’ imprisonment rather than the 45-year sentence he received.

Based on the foregoing, we conclude that Ray’s claims of ineffective assistance of trial counsel and ineffective assistance of appellate counsel are not precluded from review. Moreover, because several of the claims are facially meritorious, we must remand this cause to the circuit court for that court to enter a new order addressing the merits of Ray’s claims of ineffective assistance of counsel. Should the trial court deem it necessary to hold an evidentiary hearing addressing Ray’s claims, the circuit court’s return to remand shall include a transcript of those proceedings. Rule 32.9(d), Ala.R.Crim.P., requires the circuit court to “make specific findings of fact relating to each material issue of fact presented.” See also Ex parte Walker, 652 So.2d 198 (Ala.1994); Smith v. State, 665 So.2d 954 (Ala.Crim.App.1994). In making these factual determinations, the circuit court may take judicial notice of the record in Ray’s 2000 trial. If the court’s findings are based on its personal knowledge of Ray’s trial, then the order should so state. See Sheats v. State, 556 So.2d 1094, 1095 (Ala.Crim.App.1989). As we have stated, “[a] statement of the basis of the [circuit] court’s decision is essential to afford the appellant due process.” Owens v. State, 666 So.2d 31, 32 (Ala.Crim.App.1994).

The circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 56 days of the release of this opinion. We pretermit discussion of Ray’s remaining claims.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and COBB, BASCHAB, and SHAW, JJ., concur.

      . Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

      . If such a motion was made, it was not included in the record on appeal, thus precluding appellate review of this claim.

      . The court may take evidence as provided in Rule 32.9(a), Ala.R.Crim.P.

       Note from the reporter of decisions: On August 22, 2003, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On September 12, 2003, that court denied rehearing, without opinion. On November 7, 2003, the Supreme Court denied certiorari review, without opinion (1022103).


author: McMILLAN, Presiding Judge.

text:
    James Edward MILLER v. STATE.
    CR-01-2432.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 2003.
    James Edward Miller, pro se.
    William H. Pryor, Jr., atty. gen., and Jack W. Willis, asst. atty. gen., for appel-lee.
   McMILLAN, Presiding Judge.

The appellant, James Edward Miller, filed a Rule 32, Ala. R.Crim. P., petition, attacking his conviction for manslaughter and his sentence of life imprisonment without parole. Without requiring a response from the State, the trial court summarily denied Miller’s petition on the ground that it was successive.

On appeal, Miller argues four claims:

“I. The trial court improperly denied Miller’s petition as being successive when this was the first petition filed. “II. The trial court denied Miller his constitutional rights to a fair trial and due process when the trial judge, by his own admission said he was going to charge the jury on an altercation [between Miller and the victim] when he admitted there was no evidence before the jury of one.
“III. The trial court violated Miller’s constitutional rights to due process at sentencing by using prior convictions that had already been declared void and invalid by the Circuit Court of Walker County, Alabama when the said prior convictions under plea bargain agreement had been declared' invalid which the State of Alabama agreed to on November 21,1990.
“IV. The trial court denied Miller his constitutional rights to due process by failing to send back with the jury before their deliberation in his case, the written requested jury charges he requested and the court gave.”

A review of the record indicates that Miller is correct in his claim that this is his first Rule 32 petition challenging his manslaughter conviction. The record does not indicate that a previous petition has been filed. Moreover, the State has requested that this Court remand this matter to the trial court for further proceedings.

Accordingly, this cause is remanded to the Jefferson Circuit Court for that court to make specific findings as to Miller’s claims and to conduct an evidentiary hearing if necessary. Due return shall be made to this Court within 56 days from the date of this opinion.

REMANDED WITH DIRECTIONS.

COBB, BASCHAB, SHAW, and WISE, JJ., concur.

      . This Court affirmed Miller's conviction and sentence, by unpublished memorandum. Miller v. State (No. CR-99-0119), 805 So.2d 793 (Ala.Crim.App.2000) (table).

       Note from the reporter of decisions: On April 18, 2003, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On May 23, 2003, that court denied rehearing, without opinion. On November 7, 2003, the Supreme Court denied certiorari review, without opinion (1021538).


author: SHAW, Judge. COBB, Judge,

text:
    James Paul SULLIVAN v. STATE of Alabama.
    CR-01-2320.
    Court of Criminal Appeals of Alabama.
    March 21, 2003.
    Rehearing Denied May 23, 2003.
    Certiorari Denied Nov. 7, 2003 Alabama Supreme Court 1021489.
    James W. Parkman III, Dothan, for appellant.
    William H. Pryor, Jr., atty. gen., and Stephen N. Dodd, asst. atty. gen., for ap-pellee.
   SHAW, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J., and BASCHAB and WISE, JJ., concur. COBB, J., dissents, with opinion.

COBB, Judge,

dissenting.

I disagree with the majority’s determination in Issue I of its unpublished memorandum that no error occurred in the trial court’s denial of Sullivan’s motion to suppress the inculpatory statement he allegedly made before he was arrested. Upon law enforcement’s discovery of a methamphetamine laboratory in the residence Sullivan shared with a roommate, Sullivan allegedly told officers, “It’s all mine,” but this statement was not disclosed to defense counsel until the day of trial, after Sullivan’s jury had been impaneled. The officer who would later testify before the jury about the statement claimed at the suppression hearing that he remembered Sullivan making the statement, but he “just forgot to put it in the report.” (R. 44.) The officer further stated that he had first informed the prosecutor about the statement 90 minutes to 2 hours earlier on the day of trial, and had not previously told the prosecutor about the inculpatory statement because he and the prosecutor had not met about the case before trial. Defense counsel argued that the statement should be suppressed, he argued, because it was not timely disclosed to him, and because the delayed disclosure was a violation of the court’s reciprocal discovery order and Rule 16.1, Ala. R.Crim. P.

The prosecution’s failure to disclose the existence of the statement until the day of trial, after the jury had been selected is, without question, a violation of Rule 16.1 and the trial court’s reciprocal discovery order, and the majority does not argue otherwise. The majority infers from the statements defense counsel made during the suppression hearing that the prosecutor informed him of the inculpatory statement as soon as the prosecution witness revealed it to him. Because “Alabama law imputes to a prosecutor knowledge of the information supplied by an investigating officer’s testimony,” Ex parte Hunter, 777 So.2d 60, 61 (Ala.2000), as the majority acknowledges, the police officer’s late disclosure of the statement does not excuse the State’s failure to comply with Rule 16.1 and the trial court’s discovery order.

Moreover, I am convinced that the trial court abused its discretion when it denied the motion to suppress. Sullivan was irreparably prejudiced by the late disclosure of the inculpatory statement. Certainly, Rule 16.5, Ala. R.Crim. P., provides the trial court with the discretion to impose sanctions, if any are deemed necessary, for the failure to comply with discovery rules. I am aware that Alabama’s appellate courts have often stated that suppression of belatedly disclosed material is not always required. In this case, however, suppression was the only reasonable alternative, and reversal is now, unfortunately, the only result that can remedy the violation and protect the appellant’s rights.

My review of Alabama Supreme Court cases addressing a prosecutor’s failure to timely disclose a defendant’s statement convinces me that, under the facts presented here, the statement should have been suppressed. In Ex parte Hunter, 777 So.2d 60 (Ala.2000), a police officer testified about a telephone call that contained information incriminating the defendant. The trial court denied the defendant’s motion for a mistrial, after the prosecutor told the trial court that he did not know that the officer would make that particular statement. The Alabama Supreme Court observed that the police officer’s testimony supported the codefendant’s version of events, which the defendant had attempted to rebut by presenting witnesses who testified that the codefendant claimed to have committed the crime. The Supreme Court then stated that the prosecutor’s failure to disclose the information contained in the officer’s statement prejudiced Hunter, and that the failure to disclose required the reversal of the murder conviction.

Similarly, in this case, Sullivan contended that the methamphetamine and paraphernalia belonged to his roommate, who occupied a separate part of the residence they shared, and that he had no knowledge of his roommate’s illicit activities. Thus, like in Ex parte Hunter, the police officer’s testimony that Sullivan claimed ownership of the drugs and the drug-related supplies was fatal to his defense. Based on Ex parte Hunter, I believe that this Court has no alternative but to reverse Sullivan’s conviction.

The cases cited in the quotation in footnote 3 of the unpublished memorandum further support my assertion that reversal is required. Footnote 3 states:

“In McLemore v. State, 562 So.2d 639 (Ala.Crim.App.1989), this Court stated:
“ ‘This court is aware that the Alabama Supreme Court has, in two cases, held that the prosecutor’s failure to comply with a Rule 18 [Ala. R.Crim.P. (Temp.), now Rule 16, Ala. R.Crim.P.] discovery order mandated a reversal. Ex parte Motley, 534 So.2d 564 (Ala.1988); Ex parte Lambert, 519 So.2d 899 (Ala.1987). Both of these cases, however, involved the failure to provide extrajudicial statements of the defendant and apparently involved facts from which the Supreme Court concluded that a reversal was the only sanction which “would accomplish the goals of the discovery rules.” McCrory v. State, 505 So.2d [1272, 1279 (Ala.Crim.App.1986)]. We note that neither of those cases contained any discussion of the other sanctions for nondisclosure contained in Rule 18.5 [now Rule 16.5]. We, therefore, find those cases distinguishable from the case at bar.’

562 So.2d at 646.”

(Emphasis added in memorandum.)

Indeed, this Court distinguished McLemore v. State, 562 So.2d 639 (Ala.Crim.App.1989), from Ex parte Motley, 534 So.2d 564 (Ala.1988), and Ex parte Lambert, 519 So.2d 899 (Ala.1987), because McLemore involved the failure to disclose fingerprint evidence and the Supreme Court cases involved extrajudicial statements of the defendants, precisely the circumstance before us — an undisclosed extrajudicial statement from the defendant. In Ex parte Lambert, the Supreme Court determined that the defendant’s oral statement made to a confidential informant and overheard by the police should have been provided to him. The Court concluded, again, quite simply:

“Therefore, the [rule requiring disclosure] applies and the district attorney was bound by it. ‘These rules are the law. Therefore, it is the duty of the courts to enforce them and the duty of the bar to conform to them.’ Johnson v. State, 501 So.2d 568, 571 (Ala.Cr.App.1986).”

519 So .2d at 900.

I can only conclude, based on my review of our Supreme Court’s cases, that the Alabama Supreme Court does not hesitate to consider the State’s failure to disclose extrajudicial statements of the defendant to be extremely serious violations of the discovery rules. In fact, Justice Adams, writing for the majority in Ex part Lambert, stated:

“The rule [now Rule 16.1, Ala. R.Crim. P.] explicitly mandates that such statements be disclosed to the defendant upon his motion. As stated by our Court of Criminal Appeals, ‘Rule 18.1(a) [now Rule 16.1] is plain and unambiguous. These discovery provisions are the result of many years of painstaking drafting, revision, and redrafting by respected and learned jurists, lawyers, and academicians.... As the advisory committee noted in the comments to the 1983 draft, reciprocal discovery is not only more fair to the accused, but is also of more importance to the state since it serves to expedite those cases which are more properly resolved through negotiated pleas.’
“Hamilton v. State, 496 So.2d 100, 106 (Ala.Cr.App.1986).”

519 So.2d at 900.

The majority cites Perkins v. State, 808 So.2d 1041 (Ala.Crim.App.1999), aff'd, 808 So.2d 1143 (Ala.2001), in which this Court found no plain error after the State failed to timely disclose a statement to the defendant. Perkins is distinguishable from Sullivan for two significant reasons. First, the statement Perkins made to a police officer at the time of his arrest was disclosed to Perkins one week before trial, not on the day of trial and after the jury had been selected, as in this case. Second, Perkins’s counsel did not object at trial to the timeliness of the State’s disclosure or to the admission of the statement at trial, and the issue was reviewed by this Court only for plain error. Because Sullivan’s statement was disclosed after the trial had already begun and because defense counsel objected to the late disclosure and sought a mistrial, Perkins is distinguishable and lends little support for the majority’s conclusion.

The majority quotes from Pettway v. State, 607 So.2d 325 (Ala.Crim.App.1992), in which this Court upheld the trial court’s “somewhat unorthodox” sanction for the State’s failure to disclose the defendant’s statement. Significant to the Court’s analysis and holding in that case, however, was defense counsel’s failure to object until after the police officer testified about the statement and after the State had rested and two defense witnesses testified. This Court further observed that defense counsel’s failure to object until the trial was nearly concluded was indicative of a lack of prejudice to the defendant. Id. at 332. Sullivan objected as soon as he was informed of the statement and he moved immediately to have the statement excluded from evidence. Thus, Pettway is distinguishable from the case before us and does not support the majority’s determination that the trial court did not abuse its discretion here.

As Sullivan noted in his brief to this Court, a statement disclosed to defense counsel before trial can be considered as part of the preparation of the defense. Sullivan further noted in his brief to this Court that the rules of discovery must be enforced because they expedite cases that are “ ‘more properly resolved through negotiated pleas.’ ” (Sullivan’s brief at p. 15)(quoting Ex parte Lambert, 519 So.2d 899, 900 (Ala.1987).) If defense counsel in this case had been aware that the officer would testify that Sullivan had claimed ownership of the drugs and paraphernalia, defense preparation might well have included serious considerations of plea negotiations, and it certainly would have influenced Sullivan’s consideration of whether to testify at trial. Defense counsel was denied the opportunity to accurately evaluate his case, however, by the State’s failure to timely disclose the substance of the defendant’s statement.

Sullivan’s motion to exclude the statement should have been granted, and the trial court abused its discretion when it denied that motion. Accordingly, I believe that this Court has no alternative but to reverse Sullivan’s conviction and remand the cause for further proceedings.

For the foregoing reasons, I respectfully dissent.

      . The majority attempts to distinguish Ex parte Hunter on the ground that Sullivan was informed of the substance of the undisclosed statement outside the presence of the jury, while Hunter was informed of the statement only when the witness testified from the stand. I am not persuaded that this is a valid distinction because the Alabama Supreme Court in Ex parte Hunter stated, quite simply, “Hunter was prejudiced by the prosecutor's failure to disclose the information contained in Officer Washington's statement. The prejudicial effect of the failure to disclose requires that Hunter's conviction for intentional murder be reversed.” 777 So.2d at 61.


author: BASCHAB, Judge.

text:
    Rodreous BOYD v. STATE of Alabama.
    CR-02-1623.
    Court of Criminal Appeals of Alabama.
    Sept. 26, 2003.
    Rodreous Boyd, pro se.
    William H. Pryor, Jr., atty. gen., and Michael B. Billingsley, asst. atty. gen., for appellee.
   BASCHAB, Judge.

The appellant, Rodreous Boyd, alleges that, on September 30, 2002, he pled guilty to first-degree escape. He also alleges that the trial court sentenced him to serve a term of ten years in prison, but split the sentence and ordered him to serve two years followed by five years on probation. He did not appeal his conviction. On May 15, 2003, the appellant filed a Rule 32 petition, challenging his conviction. Without requiring a response from the State, the circuit court summarily dismissed the petition. This appeal followed.

The State asserts that the record before this court does not establish that the circuit court had jurisdiction to rule on the appellant’s petition because it does not show that the appellant paid a filing fee or that the circuit court granted the appellant’s request to proceed in forma pauper-is. Therefore, it requests that we remand this case to the circuit court for that court to determine whether the appellant paid a filing fee or whether the circuit court granted the appellant’s request to proceed informa pauperis.

The record supports the State’s contention that the record does not indicate that the circuit court granted the appellant’s request to proceed in forma pauperis or that the appellant paid the filing fee. Therefore, we cannot properly determine whether the circuit court had jurisdiction to rule on the appellant’s petition. See Broadway v. State, 881 So.2d 1068 (Ala.Crim.App.2003); Jackson v. State, 854 So.2d 157 (Ala.Crim.App.2002). Accordingly, we remand this case to the circuit court with instructions that that court make specific, written findings regarding whether the appellant paid the required filing fee and whether it actually granted his request to proceed in forma pauperis. On remand, the circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 42 days after the release of this opinion. The return to remand shall include the circuit court’s written findings.

REMANDED WITH INSTRUCTIONS.

McMILLAN, P.J., and COBB, SHAW, and WISE, JJ., concur.

      . Although the circuit clerk’s notice of appeal  indicates that the appellant was granted indi-gency status in the circuit court and on appeal, the record on appeal does not support those assertions.

      . At this time, we pretermit discussion of the arguments the appellant raises in his brief to this court.

       Note from the reporter of decisions: On November 14, 2003, on return to remand, the Court of Criminal Appeals dismissed the appeal, without opinion.


text:
    Joe Michael BIVENS v. STATE of Alabama.
    CR-02-0675.
    Court of Criminal Appeals of Alabama.
    Sept. 26, 2003.
    Rehearing Denied Nov. 14, 2003.
    Aimee C. Smith, Montgomery, for appellant.
    William H. Pryor, Jr., atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   SHAW, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J., and BASCHAB and WISE, JJ., concur. COBB, J., dissents, with opinion.

COBB, Judge,

dissenting.

I respectfully dissent from the majority’s decision in an unpublished memorandum to affirm Bivens’s convictions and sentences.

Joe Michael Bivens pleaded guilty to trafficking in marijuana and one count of failing to affix an appropriate tax stamp, violations of §§ 13A-12-231(1) and 40-17A-9, Ala.Code 1975, respectively. The trial court sentenced him to serve coneur-rent 10-year sentences, split with three years to serve. Bivens reserved for appellate review the issues underlying his motion to suppress evidence of the marijuana in this case.

Facts

Officer Greg Dixon testified that, on August 17, 2001, at around 6 p.m., he received a call from the dispatcher regarding a suspicious vehicle parked behind an apparently vacant residence. Officer Dixon testified that he knew that, in general, drug deals could occur in abandoned houses. He did not testify as to having had any experience with the residence in question.

When Officer Dixon arrived at the scene, it was still daylight. Officer Dixon “ran the tag” on the automobile. (R. 8-9.) The automobile was not stolen, and the tag number matched the description of the vehicle. Office Dixon then turned his attention to the house.

Looking in the windows of the house, Officer Dixon noticed that there were no curtains or furniture in the house, but that a light was on in the hallway. Officer Dixon found the fact that there was a light on in the house to be suspicious, and he tried to turn the doorknobs and open the windows to see if they were unlocked. (R. 11.) Officer Dixon then decided to knock on the door. Officer Dixon waited a minute, and, after no one answered, decided to return to his vehicle.

Before Officer Dixon could return to his vehicle, Jonjuan Lewis, Joe Michael Bivens’s codefendant, answered the door. Officer Dixon testified at the hearing that there was nothing unusual about Lewis’s appearance, but, in his report regarding the incident, he wrote that Lewis “started acting nervously.” (R. 51.) Officer Dixon asked him if he lived there. Lewis said that he did and that he could prove it by getting the lease from within the house. Officer Dixon testified that, as Lewis turned to go get the lease, Officer Dixon unfastened the restraint on his firearm, entered the house, and followed Lewis. Officer Dixon testified that he entered the house

“[bjecause I didn’t believe he lived there. And when he advised that he was going to get a [lease], for my safety, because I didn’t believe he was actually coming back, if he did come back, I didn’t think he would come back with a [lease], with probably a weapon or something.”

(R. 40-41.) Officer Dixon testified that Lewis did not see him enter the house behind him, that Lewis did not invite him into the house, and that Officer Dixon did not ask to enter the house.

Officer Dixon testified that he smelled marijuana — plant marijuana, not burning marijuana — when Lewis opened the door, before he entered the house. (R. 34, 51.) However, Officer Dixon testified that, upon entering the house, he was not looking for marijuana. (R. 41, 55.)

Officer Dixon testified that, as he followed Lewis into the back of the house, Lewis walked down the hall “real slowly, which furthered [his] suspicion.” (R. 16.) Lewis reached a bedroom where a light was on, entered the bedroom, and tried to close the door behind him. Officer Dixon “pushed the door open, pushed the door back” to gain entry into the bedroom. (R. 18.) Officer Dixon testified that he pushed the door open “[f]or [his] safety, because [he] didn’t know what [Lewis] was — was he getting a gun or was he making break for the window or — I had no idea.” (R. 18.)

When Officer Dixon forced his way into the bedroom, he saw Bivens sitting on the floor chopping up marijuana with “a razor blade or something.” (R. 19.) He also saw a shoe box full of marijuana and packaged bags of marijuana. Officer Dixon “completely unholstered [his] weapon and pointed it at both of them and advised them not to move.” (R. 19.) Officer Dixon testified that he did this because Lewis “came toward him” when he saw Officer Dixon “reaching for [his] mic[rophone], [Lewis] knew [he] was about to call for backup.” (R. 20, 19.) Officer Dixon testified that, “[a]t that point, I felt my safety was in jeopardy.” (R. 20.)

After other officers arrived, the residence was searched. A gun was found inside a shoe box. Officer Dixon testified that, while he was ordering Bivens to “put his hands up,” the codefendant was “[r]ight over the shoe box.” (R. 22.) However, Officer Dixon did not see the weapon and did not know of its existence until the remainder of the residence was searched after other officers had arrived.

When asked if he had time to obtain a warrant, Officer Dixon testified that “[he] wouldn’t have gotten a warrant for that.” (R. 30.) When later asked if, at the time he entered the residence, he had sufficient evidence to secure a search warrant, Officer Dixon stated, “At that time as far as— no. No, sir.” (R. 40.)

Lewis testified that, on the day of the search, he owned the automobile and that he had rented the residence in question the day before the search. He testified that he was waiting for his furniture to be delivered on the afternoon in question. He testified that Officer Dixon demanded to see the lease. When he went to get the lease for Officer Dixon, Lewis closed the door, but Officer Dixon pushed the door open to gain entry into the house. Lewis testified that when Officer Dixon pushed his way into the bedroom, his gun was already drawn.

General Propositions of Search and Seizure Law

“[A] trial court’s ruling based upon conflicting evidence given at a suppression hearing is binding on this Court ... and is not to be reversed absent a clear abuse of discretion.” Jackson v. State, 589 So.2d 781, 784 (Ala.Crim.App.1991).

“ ‘ “This court has long held that warrantless searches are per se unreasonable, unless they fall within one of the recognized exceptions to the warrant requirement. See, e.g., Chév-ere v. State, 607 So.2d 361, 368 (Ala. Cr.App.1992). These exceptions are: (1) plain view; (2) consent; (3) incident to a lawful arrest; (4) hot pursuit or emergency; (5) probable cause coupled with exigent circumstances; (6) stop and frisk situations; and (7) inventory searches. Ex parte Hilley, 484 So.2d 485, 488 (Ala.1985); Chevere, supra, 607 So.2d at 368.” ’
“State v. Mitchell, 722 So.2d 814[, 820] (Ala.Cr.App.1998), quoting Rokitski v. State, 715 So.2d 859[, 861] (Ala.Cr.App.1997).”

State v. Otwell, 733 So.2d 950, 952 (Ala.Crim.App.1999). There was absolutely no evidence indicating that Officer Dixon entered the residence because the marijuana was in plain view, or that his entrance was the result of consent, incident to a lawful arrest, a product of a hot pursuit or an emergency, a product of a stop and frisk situation, or a product of an inventory search. The majority, therefore, evaluated the circumstances to determine whether the search and seizure was justified on the basis of the existence of probable cause paired with an exigent circumstance. The majority holds that there was sufficient evidence of probable cause, coupled with sufficient evidence of an exigent circumstance, to justify the warrantless entry in question. I disagree on both points.

Probable Cause Coupled with Exigent Circumstances

A. Probable Cause

My main concern is a clear insufficiency of evidence of probable cause. The majority holds that the State’s evidence that the officer smelled marijuana when Lewis opened the front door was sufficient to constitute probable cause.

“It is well settled that warrantless entries to and searches of a residence are presumptively unreasonable and that the burden is on the government to demonstrate exigent circumstances justifying a warrantless entry and search. Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984); Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); Landreth v. State, 600 So.2d 440 (Ala.Cr.App.1992). To justify a warrantless entry and search, the state needs to show both the existence of probable cause and exigent circumstances. United States v. Rodgers, 924 F.2d 219 (11th Cir.1991), cert. denied, 501 U.S. 1221, 111 S.Ct. 2834, 115 L.Ed.2d 1003 (1991), appeal after remand, 981 F.2d 497 (11th Cir.1993); Etheridge v. State, 414 So.2d 157 (Ala.Cr.App.1982).”

A.A.G. v. State, 668 So.2d 122, 126 (Ala.Crim.App.1995) (some internal citations altered). “The establishment of probable cause requires only that facts available to the officer at the moment of [entry] would warrant a person of reasonable caution to believe that the action taken by the officer was appropriate.” A.A.G., 668 So.2d at 127.

In Cameron v. State, 861 So.2d 1145 (Ala.Crim.App.2003), an officer stopped to investigate an improperly parked vehicle in front of a house. The State presented the following evidence during the hearing on the pretrial motion to suppress marijuana seized from the appellant’s residence:

“Officer Watkins testified that, when Cameron opened the door to the residence, a strong and overwhelming odor of marijuana emanated from the apartment. He also testified that he saw a large amount of smoke in the house. He testified that he recognized the smell as marijuana based on his experience and training as a police officer and based on the fact that he had previously encountered the smell. This testimony was uncontroverted.”

861 So.2d at 1150. In upholding the trial court’s denial of the motion to suppress, we relied on the following language from Johnson v. United States, 338 U.S. 10, 13, 68 S.Ct. 367, 92 L.Ed. 436 (1948):

“‘At the time entry was demanded the officers were possessed of evidence which a magistrate might have found to be probable cause for issuing a search warrant. We cannot sustain defendant’s contention, erroneously made, on the strength of Taylor v. United States, 286 U.S. 1 [ (1932) ], that odors cannot be evidence sufficient to constitute probable grounds for any search. That decision held only that odors alone do not authorize a search without [a] warrant. If the presence of odors is testified to before a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant. Indeed it might very well be found to be evidence of most persuasive character.’ ”

861 So.2d at 1150. We held:

“[T]he strong and overwhelming smell of marijuana emanating from the house, combined with Officer Watkins’s testimony regarding his ability to identify the distinctive odor of marijuana, established the existence of Officer Watkins’s probable cause to believe that contraband was present inside the residence.”

Cameron, 861 So.2d at 1150 (emphasis added).

Initially, I note that, in this case, Officer Dixon did not testify that the odor was strong and overwhelming; he claimed to smell plant marijuana, rather than burning marijuana and, thus, there was no smoke.

Additionally, although Officer Dixon testified that he had been a member of the police department for five years, he did not testify that he had ever smelled marijuana — in plant form or burning — during his experience and training as a police officer, or that he could recognize the distinctive smell of marijuana from his experience and training as a police officer. See Cameron, 861 So.2d at 1150. Had Officer Dixon testified in front of a magistrate in an attempt to obtain a search warrant for the premises, and had he testified to the same information that he presented to the trial court during the pretrial hearing, he would have testified only to “the presence of odors,” not that he was “qualified to know the odor.” Johnson, 333 U.S. at 13, 68 S.Ct. 367. I doubt that a magistrate familiar with the law of probable cause would have issued a search warrant on such sparse testimony.

Therefore, although Officer Dixon testified that he smelled marijuana, there was no foundation for the fact that he could indeed recognize such a smell. Because there was no evidence of Officer Dixon’s qualification for recognizing the smell of marijuana, I would hold that, under the facts of this case, there was insufficient evidence of probable cause to secure a warrant or, when combined with exigent circumstances, to justify a warrantless entry.

B. Exigent Circumstances

I am equally concerned with the quality and quantity of the evidence of the existence of exigent circumstances. The majority held that Officer Dixon’s testimony that he feared for his own safety and that he feared that Lewis was going to retrieve a weapon constituted sufficient evidence of an exigent circumstance. Even if there were sufficient evidence of probable cause, and I believe there was not, I would find there to be insufficient evidence of the existence of an exigent circumstance to justify the warrantless entry into Lewis’s house.

“The burden rests on the State to prove the existence of an exigent circumstance to overcome the presumption of unreasonableness that attaches to warrantless residential entries and searches. McCammon v. State, 499 So.2d 811 (Ala.Crim.App.1986) (citing Welsh v. Wisconsin, 466 U.S. 740 (1984)). See also Vale v. Louisiana, 899 U.S. 30, 34 (1970) (‘The burden rests on the State to show the existence of such an exceptional situation.’).
“ ‘ “[N]o exigency is created simply because there is probable cause to believe that a serious crime has been committed.” Welsh [v. Wisconsin, 466 U.S. 740, 753 (1984) ]; Mincey [v. Arizona, 437 U.S. 385, 393 (1978)]. “[T]he mere presence of narcotics, without more, is not such an exigent circumstance as would permit entry into private premises without a proper warrant.” People v. Lee, 83 A.D.2d 311, 444 N.Y.S.2d 100, 102-103 (1981), cert. denied, 460 U.S. 1044, 103 S.Ct. 1443, 75 L.Ed.2d 798 (1983). See also People v. Ouellette, 78 Ill.2d 511, 36 Ill.Dec. 666, 669-70, 401 N.E.2d 507, 510-11 (1979). “The presence of contraband without more does not give rise to exigent circumstances.” United States v. Torres, 705 F.2d 1287, 1297 (11th Cir.1983).
“ ‘There have been various attempts to formulate an all encompassing definition of exigent circumstances. See Harbaugh and Faust, “Knock on Any Door” — Home Arrests After Payton and Steagald, 86 Dick.L.Rev. 191 (1982); Donnino and Girese, Exigent Circumstances For A Warrantless Home Arrest, 45 Alb.L.Rev. 90 (1980); Comment, Warrantless Arrests: Justification By Exigent Circumstances, 6 Hamline L.Rev. 191 (1983); W. La-Pave, 2 Search and Seizure § 6.5 (1978). However, “[t]he exigent circumstances doctrine applies only when the inevitable delay incident to obtaining a warrant must give way to an urgent need for immediate action.” United States v. Satterfield, 743 F.2d [827, 844 (11th Cir.1984)]. The possibility that evidence will be destroyed is an exigent circumstance widely recognized by the courts. Note, Exigent Circumstances for Warrantless Home Arrests, 23 Ariz. L.Rev. 1171, 1177 (1981). “[W]hen police officers have probable cause to search a residence for evidence, and they reasonably believe that such evidence is threatened with loss from any source, they may make a warrantless search of the premises in order to preserve and protect that evidence.” Case note, Residential Searches to Prevent the Destruction of Evidence: An Emerging Exception to the Warrant Requirement, 47 U.Colo. L.Rev. 517, 532 (1976); Comment, Residential Searches to Prevent Destruction of Evidence: A Need for Strict Standards, 70 J.Crim. L. & Crim. 255 (1979); 2 Search § 6.5(b).
“ ‘In finding the existence of exigent circumstances due to the threatened destruction of evidence, the courts have applied such broad tests as the “ ‘great likelihood that the evidence will be destroyed or removed before a warrant can be obtained,’ that the evidence is ‘threatened with imminent removal or destruction,’ or that the police ‘reasonably conclude that the evidence will be destroyed or removed before they can secure a search warrant.’ ” 2 Search at p. 438, § 6.5(b).
“ ‘ “When Government agents, however, have probable cause to believe contraband is present and, in addition, based on the surrounding circumstances or the information at hand, they reasonably conclude that the evidence will be destroyed or removed before they can secure a search warrant, a warrantless search is justified. The emergency circumstances will vary from case to case, and the inherent necessities of the situation at the time must be scrutinized. Circumstances which have seemed relevant to courts include (1) the degree of urgency involved and the amount of time necessary to obtain a warrant, ...; (2) reasonable belief that the contraband is about to be removed, ... ; (3) the possibility of danger to police officers guarding the site of the contraband while a search warrant is sought, ...; (4) information indicating the possessors of the contraband are aware that the police are on their trail, ...; and (5) the ready destructibility of the contraband and the knowledge ‘that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic.’ ...” United States v. Rubin, 474 F.2d 262, 268-69 (3rd Cir.1973) (citations omitted). See also 2 Search at pp. 439-450.’
“Youtz v. State, 494 So.2d 189, 193-94 (Ala.Crim.App.1986).”

Cameron, 861 So.2d at 1150-52. Additionally,

“ ‘ “[T]he ultimate test for determining whether exigent circumstances exist justifying a warrantless entry ‘is whether there is such a compelling necessity for immediate action as will not brook the delay of obtaining a warrant.’” United States v. Cresta, 592 F.Supp. 889, 901 (D.Maine 1984).... “The exigent circumstances doctrine recognizes several common situations where the time consuming resort to a neutral magistrate for an arrest or search warrant is unnecessary, for example: hot pursuit, ... fleeing suspect, ... danger to arresting officer or the public from the suspect .” United States v. Kreimes, 649 F.2d 1185, 1192 (5th Cir.1981) (citations omitted).’
“Musgrove [v. State], 519 So.2d [565,] 572 [(Ala.Crim.App.), aff'd, 519 So.2d 586 (Ala.1986) ]. See also Bush v. State, 523 So.2d 538 (Ala.Cr.App.1988).”

C.M.B. v. State, 594 So.2d 695, 699 (Ala.Crim.App.1991) (emphasis added). Furthermore, an officer’s belief that a suspect is carrying a weapon is a factor that may be considered in determining whether exigent circumstances exist for the purpose of making a warrantless entry. Id.

In Cameron, a case involving exigent circumstances based on the possibility that the contraband would be destroyed, this Court held that exigent circumstances existed to justify the warrantless entry into the appellant’s house, and the subsequent search and seizure of marijuana, based on evidence presented by the State that, upon seeing a policeman at the door asking for the leaseholder, Cameron ran from the front door back into the house to the kitchen. The police officer testified that, upon reaching the kitchen, Cameron immediately began to hide things in the kitchen that had, until that point, been in plain view. Furthermore, the officer testified that “in his experience, if a person in possession of illegal drugs becomes aware that a police officer is in the vicinity, that person will destroy the contraband at the first opportunity.” 861 So.2d at 1152. We held:

“Taking all of this into consideration, Officer Watkins could have reasonably concluded from Cameron’s suspicious actions that he would likely destroy or remove some portion of the marijuana. Therefore, there existed an exigent circumstance that, when coupled with probable cause, justified Officer Watkins’s warrantless entry of the premises. See, e.g., United States v. Tobin, 928 F.2d 1506 (11th Cir.1991) (holding that agents could reasonably conclude from the defendants’ hurried actions and furtive looks that the defendants were either aware or afraid that someone was watching them; destruction or removal of some portion of the narcotics was therefore a possibility). See also United States v. Miravalles, 280 F.3d 1328 (11th Cir.2002) (holding that a reasonable belief that relevant evidence in the apartment, including paper cigar labels, was in imminent danger of destruction and, therefore, exigent circumstances existed).”

Cameron, 861 So.2d at 1152.

In a case involving exigent circumstances based on possible danger from the suspect to arresting officers or to the public, the appellant was arrested in his home without an arrest warrant and as a result of a warrantless entry for a violent murder. The Court held that exigent circumstances existed to justify the warrant-less entry based on evidence that, when police knocked, the appellant opened the door and attempted to slam it in the officers’ faces and that the officers were aware that the appellant was known to carry a weapon.

I do not believe that the facts of this case indicate that an exigent circumstance was created either by any evidence indicating that there was contraband in danger of immediate destruction or by any evidence indicating any danger to Officer Dixon or to the public.

In this case, none of Officer Dixon’s testimony indicated that he thought Lewis was about to destroy contraband. In fact, Officer Dixon testified that he was not at all concerned about the marijuana at the time he entered the home. Officer Dixon testified that Lewis was moving slowly, not running about in an attempt to hide something. Thus, there was no evidence of an immediate threat to the presence of the contraband; there was no evidence of any threat to the contraband.

Additionally, there was insufficient evidence of any danger to the officer or to the public at the moment Officer Dixon decided to effect a warrantless entry on Lewis’s residence. The automobile parked behind the residence was perfectly legal. Officer Dixon testified that there was nothing unusual about Lewis’s appearance when he opened the door during daylight hours that afternoon, although he appeared to be nervous. Although he found the fact that the house, although without furniture, had electricity to be suspicious, Officer Dixon did not testify that Lewis’s behavior was suspicious. Lewis did not attempt to slam the door after seeing Officer Dixon standing at his threshold. Rather, Lewis offered to get proof that-he was residing at that address. Officer Dixon testified that, although Lewis stated that he was going to get the lease to the house, Officer Dixon did not believe him and thought Lewis “was about to make a — either about to make a break for it.” (R. 15.) Officer Dixon did not testify to the basis of his opinion that Lewis was about “to make a break for it,” and no other evidence suggests that Lewis was preparing to flee or to get a weapon. Officer Dixon testified that this slow walking “furthered [his] suspicion,” but I do not find this belief reasonable. (R. 16.) Officer Dixon also testified that, because Lewis was walking slowly, he “was wondering ... if he was planning on doing anything because he didn’t walk as if he was really going to get the deed.” (R. 16.)

The majority states that it finds exigent circumstances in the fact that Officer Dixon testified that he feared for his personal safety and thought Lewis may have been going to retrieve a weapon, rather than documentation concerning the occupancy of the house. Officer Dixon did testify on redirect examination that, before he entered the house, when Lewis turned to retrieve the lease, walking slowly, Officer Dixon “didn’t believe that he lived there. And when he advised that he was going to get [the lease], for my safety, because I didn’t believe he was actually coming back, if he did come back, I didn’t think he would come back with [a lease], with probably a weapon or something.” (R. 41.) However, there was no evidence indicating that Officer Dixon thought that Lewis might actually be carrying a weapon or that he was preparing to destroy contraband. Any danger to Officer Dixon based on the supposition that Lewis was going to retrieve a weapon was created when Officer Dixon entered the house, rather than retreating and calling for backup. Again, there was no evidence indicating that any member of the public was in danger.

Additionally, I am not at all certain that Officer Dixon’s belief was reasonable under the circumstances presented in this case. At the time of the search, it was daylight. The car in the back was not stolen. The dispatcher had reported that the house was vacant, but there was no “for rent” or “for sale” sign. The electricity was on in the residence. Officer Dixon had not been alerted that Lewis was wanted for a violent crime or that Lewis was known to carry a gun. Lewis did not react violently to the appearance of a police officer at his door. There was no evidence indicating that there were numerous innocent bystanders standing about who could have been injured by Lewis’s actions. There was no basis for Officer Dixon’s opinion that Lewis was going to get a gun, not a copy of the lease. There was no reason why, if Officer Lewis harbored such doubts as to his personal safety, without the existence of any other exigent circumstances, he could not have sought a search warrant; there was no reason in this case to forgo the required search warrant.

Officer Dixon did testify that, after he had entered the house, he thought Lewis may have been “getting a gun or ... making a break for the window” when Lewis entered the bedroom of the house and tried to close the bedroom door on Officer Lewis. (R. 18.) Additionally, Officer Dixon testified that he did not know of the presence of a weapon until after the premises had been secured and the search had been conducted and that he did not fear for his safety until after he had crossed the threshold into the residence, that is, until after he pushed his way into the bedroom. Thus, it was not his fear of a potential danger that led him to enter the home; the fear of potential danger came after he had entered the home and discovered the marijuana inside. This danger is after-the-fact and irrelevant in an inquiry into whether a warrantless search was proper.

In conclusion, I believe there was no evidence indicating that there was an immediate threat that Lewis would destroy contraband, and neither was there any evidence indicating a danger to Officer Dixon or the public. Therefore, I believe there were no exigent circumstances to justify the warrantless entry into Lewis’s home.

A warrantless search is an action of last resort; such searches are inherently unconstitutional. I do not believe that, in this case, the State fulfilled its burden to overcome the inherent unconstitutionality of this warrantless search.

Under the facts of this case and for the reasons stated above, I believe that the trial court abused its discretion by denying Bivens’s motion to suppress evidence of the marijuana seized from the unconstitutional search of Lewis’s home. Therefore, I respectfully dissent.

      . Officer Dixon testified that Lewis said he would get the "deed,” and Lewis testified that he turned to retrieve the "deed” for the officer, but apparently the two misspoke. This was a rental property, not property Lewis owned. Therefore, in speaking of the paper Lewis was trying to retrieve when Officer Dixon entered the residence, although the testimony mentions a deed, I use the term "lease” in my writing so as not to cause confusion as to whether Lewis owned or rented the house.

      . Officer Dixon's report, written immediately following the incident, stated: "Upon entering the house, I smelled the strong odor of marijuana inside.” (R. 51.) Officer Dixon testified that, at the time he wrote the report, his memory about the events was “a little bit better on that particular date than it [was on the date of the hearing].” (R. 50.)
      During the preliminary hearing in this case, Officer Dixon testified that he smelled marijuana after he entered the house.
      During the pretrial hearing on the motion to suppress, Officer Dixon initially testified that, when he entered the residence, he "was beginning to smell an odor of marijuana in the building,” (R. 15), and that he did not smell the marijuana prior to entering the residence (R. 17).
      Later in the pretrial hearing, Officer Dixon testified that he smelled the plant marijuana in the back bedroom when Lewis opened the door, rather than upon entering the residence.
      Apparently, because it denied Lewis's motion to suppress, the trial court must have believed Officer Dixon’s statement that he smelled the marijuana before he entered the residence. We resolve all credibility choices in favor of the trier of fact. D.L. v. State, 625 So.2d 1201, 1204 (Ala.Crim.App.1993).

      . The majority does not speak to this issue, but I nonetheless address the lack of evidence of exigent circumstances regarding the impending destruction of contraband.

      . In Cameron, we held that moving too quickly was cause for suspicion. If anything, slow movement by a suspect or someone under suspicion should be encouraged, rather than held to be suspicious. I am not stating that unusually slow movements by someone might never be suspicious, but there is no evidence in this case that Lewis was walking unusually slowly.