author: PER CURIAM. LYONS, Justice

text:
    Ex parte Hayden Jerome JACKSON. (In re Hayden Jerome Jackson v. State of Alabama).
    1021472.
    Supreme Court of Alabama.
    Feb. 20, 2004.

      Glenn L. Davidson of Collins, Davidson, L.L.C., Mobile, for petitioner.
    William H. Pryor, Jr., atty. gen., and Nathan A. Forrester, deputy atty. gen., and Michael B. Billingsley, asst. atty. gen., for respondent.

       Although Justice Harwood was not present at oral argument, he has listened to the audiotapes of oral argument. •

   PER CURIAM.

On March 13, 2002, a Mobile County jury convicted Hayden Jerome Jackson of first-degree unlawful possession of marijuana, a violation of Ala.Code 1975, § 13A-12-213(a)(1). The trial court sentenced him, as a habitual offender, to 15 years in prison. Ala.Code 1975, § 13A-5-9(b)(l). It then split the sentence and ordered him to serve three years; the balance of the sentence was suspended and he was placed on supervised probation for five years. The trial court also imposed a $2,000 fine pursuant to the Demand Reduction Assessment Act, § 13A-12-280 et seq., Ala. Code 1975. The Court of Criminal Appeals affirmed Jackson’s conviction and sentence without an opinion. Jackson v. State, 886 So.2d 153 (Ala.Crim.App.2003). Jackson petitioned this Court for certiorari review. We granted the petition to review whether the roadblock-type stop conducted by the Mobile County Sheriffs Department, which resulted in Jackson’s arrest, was a valid stop or an invalid seizure that violated the Fourth Amendment. We hold that the roadblock-type stop was a valid stop that did not violate the United States Constitution, and we affirm.

Facts

The Mobile Housing Authority entered into a contract with the Mobile County Sheriffs Department pursuant to which the sheriffs department is permitted to enter housing areas governed by the housing authority at the request of the housing authority and performs such policing activities as rolling patrols, foot patrols, community policing, and safety checkpoints to establish some sort of “police presence.” Pursuant to that contract, the Mobile County Sheriffs Department entered the R..V. Taylor housing project in Mobile on the evening of May 10, 2001, to set up what they called a “safety checkpoint” at a major intersection in the housing community. The housing authority had made no particular request for a roadblock-type stop in this instance; a captain in the sheriffs department made the decision to set up the roadblock-type stop. The officers checked driver’s licenses, automobile insurance documentation, and vehicle “safety devices,” e.g., seat belts, child restraints, etc., at the roadblock-type stop. They put in place seven marked sheriffs department vehicles at the intersection and stopped every vehicle that came through the intersection. They followed guidelines established by the sheriffs department while conducting the roadblock-type stop; those guidelines required that they perform no random searches and that the officers’ activities be supervised by superior officers in the sheriffs department.

An officer stopped Jackson’s vehicle at the roadblock. The officer discovered marijuana and two rolls of cash on Jackson’s person; a larger quantity of marijuana in the console between the driver’s seat and the passenger’s seat; hidden under the tire cover in the trunk of Jackson’s vehicle was an “Old Navy” store shopping bag that contained more marijuana, scales, and numerous plastic sandwich bags.

At trial, Jackson filed a motion to suppress the marijuana found on his person and in his vehicle on the basis that the roadblock-type stop was an unreasonable seizure that violated the Fourth Amendment to the United States Constitution. After his conviction for first-degree unlawful possession of marijuana, Jackson filed a motion for a new trial, which the trial court denied. The trial court sentenced Jackson, as a habitual offender, to 15 years in prison; that sentence was split, and Jackson was ordered to serve 3 years in prison and 5 years’ supervised probation. In his appeal to the Alabama Court of Criminal Appeals, Jackson argued that the trial court erred on the basis that the roadblock-style stop was an unreasonable seizure that violated the Fourth Amendment to the United States Constitution. The Alabama Court of Criminal Appeals affirmed without an opinion. We affirm.

Standard of Revieio

The trial court held the suppression hearing outside the hearing of the jury; therefore, we review the evidentiary findings of the trial court at that hearing under the ore tenus standard.

“ ‘Where evidence is presented to the trial court ore tenus in a nonjury case, a presumption of correctness exists as to the court’s conclusions on issues of fact; its determination will not be disturbed unless clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. Odom v. Hull, 658 So.2d 442 (Ala.1995). However, when the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court’s judgment. Ex parte Board of Zoning Adjustment of the City of Mobile, 636 So.2d 415 (Ala.1994).’
“[Ex parte Agee,] 669 So.2d [102,] at 104 [(Ala.1995)]. ‘Where the evidence before the trial court was undisputed the ore tenus rule is inapplicable, and the Supreme Court will sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court’s application of the law to those facts.’ Stiles v. Brown, 380 So.2d 792, 794 (Ala.1980) (citations omitted).”

State v. Hill, 690 So.2d 1201, 1203 (Ala.1996).

Jackson contends that the trial court, in determining not to grant his motion to suppress, misapplied the law to the facts, which were undisputed; therefore, we review de novo the trial court’s decision to not suppress the evidence. However, Jackson also contends that the evidence, specifically an officer’s testimony with regard to both the purpose of the roadblock-type stop and the contract between the housing authority and the Mobile County Sheriffs Department, proves that the officers’ intent was to use the roadblock-type stop not just to check driver’s licenses and safety devices but to perform a general law-enforcement roadblock-type stop, thus making the stop an unreasonable seizure under the Fourth Amendment. The State contended, and the trial court agreed, that the roadblock-type stop was conducted solely to check driver’s licenses and safety devices.

Analysis

Jackson contends that the Alabama Court of Criminal Appeals’ unpublished memorandum conflicts with its decisions in Hagood v. Town of Town Creek, 628 So.2d 1057 (Ala.Crim.App.1993), and Cains v. State, 555 So.2d 290 (Ala.Crim.App.1989). In Jackson’s case, the Court of Criminal Appeals found in its unpublished memorandum that.the roadblock-type stop was valid because

“its primary purpose was to check for driver’s licenses and safety equipment; that purpose could reasonably be advanced by a roadblock; the officers conducted the roadblock pursuant to department guidelines that allowed for very little discretion on the part of the officers conducting the roadblock; the roadblock was set up at a four-way stop in a highly visible area; there were seven marked vehicles parked around that location; and a typical stop lasted approximately one minute.”

Based on that finding, the Court of Criminal Appeals concluded that the stop was reasonable and valid, and it affirmed the trial court’s judgment. Jackson argues that the roadblock failed the “purpose” prong for determining whether such a stop is constitutional.

The United States Supreme Court has established criteria for determining whether a roadblock-type stop is constitutional. “The Fourth Amendment imposes limits on search-and-seizure powers in order to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.” United States v. Martinez-Fuerte, 428 U.S. 543, 554, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). In circumstances like the seizure here, courts must “weight] the public interest against the Fourth Amendment interest of the individual.” 428 U.S. at 554, 96 S.Ct. 3074. “[S]ome quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure.” 428 U.S. at 560, 96 S.Ct. 3074. A suspi-cionless roadblock-type stop is a seizure.

“[S]topping an automobile and detaining its occupants constitute a ‘seizure’ within the meaning of [the Fourth and Fourteenth] Amendments, even though the purpose of the stop is limited and the resulting detention quite brief.”

Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979).

However, the Supreme Court has made an exception to the suspicion requirement with respect to the routine roadblock-type stop:

“The [routine roadblock-type] stop does intrude to a limited extent on motorists’ right to ‘free passage without interruption,’ Carroll v. United States, 267 U.S. 132, 154 (1925), and arguably on their right to personal security. But it involves only a brief detention of travelers during which
“ ‘ “[a]ll that is required of the vehicle’s occupants is a response to a brief question or two and possibly the production of a document....” ’ United States v. Brignoni-Ponce, [422 U.S. 873], at 880 [(1975)].”

Martinez-Fuerte, 428 U.S. at 557-58, 96 S.Ct. 3074. The Court reasoned:

“[T]his objective intrusion — the stop itself, the questioning, and the visual inspection — also existed in roving-patrol stops. But we view checkpoint stops in a different light because the subjective intrusion — the generating of concern or even fright on the part of lawful travelers — is appreciably less in the case of a checkpoint stop. In [United States v. Ortiz, [422 U.S. 891 (1975),] we noted:
“ ‘[T]he circumstances surrounding a checkpoint stop and search are far less intrusive than those attending a roving-patrol stop. Roving patrols often operate at night on seldom-traveled roads, and their approach may frighten motorists. At traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers’ authority, and he is much less likely to be frightened or annoyed by the intrusion.’ 422 U.S., at 894-895[, 95 S.Ct. 2585].”

428 U.S. at 558, 96 S.Ct. 3074 (emphasis added).

In Delaware v. Prouse, supra, the Supreme Court conditioned such stops of automobiles on the existence of an objective standard to check the arbitrary discretion of the officer in the field:

“[T]he reasonableness standard usually requires, at a minimum, that the facts upon which an intrusion is based be capable of measurement against ‘an objective standard,’ whether this be probable cause or a less stringent test. In those situations in which the balance of interests precludes insistence upon ‘some quantum of individualized suspicion,’ other safeguards are generally relied upon to assure that the individual’s reasonable expectation of privacy is not ‘subject to the discretion of the official in the field,’ Camara v. Municipal Court, 387 U.S. [523], at 532 [(1967)]

440 U.S. at 654-55, 99 S.Ct. 1391 (footnotes omitted). In Prouse a police officer conducting a “roving-patrol stop” stopped a ear at random to check the driver’s license and the vehicle registration, without suspecting any improper driving on the driver’s part. The United States Supreme Court determined that, unless the police officer has “at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered,” such stops are unreasonable under the Fourth Amendment. 440 U.S. at 663, 99 S.Ct. 1391. However, that Court also said:

“This holding does not preclude the State of Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative. We hold only that persons in automobiles on public roadways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of police officers.”

440 U.S. at 663, 99 S.Ct. 1391 (footnote omitted; emphasis added). Therefore, the Supreme Court has distinguished between the “roving-patrol stop” and the roadblock-type stop, holding that under certain conditions the latter can be reasonable and, therefore, not unconstitutional.

In Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), the Supreme Court created a three-prong balancing test for determining whether a seizure is considered reasonable. In that case, the question was whether the officers’ detention of a pedestrian, who, in violation of a Texas statute, refused to identify himself, was an unreasonable “seizure.”

“Consideration of the constitutionality of such seizures involves a weighing of [1] the gravity of the public concerns served by the seizure, [2] the degree to which the seizure advances the public interest, and [3] the severity of the interference with individual liberty.”

443 U.S. at 50-51, 99 S.Ct. 2637. In Michigan Department of State Police v. Sitz, 496 U.S. 444, 448-49, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990), the Supreme Court extended the application of' these three conditions beyond the traditional arrest situation to roadblock-type stops, specifically to “sobriety checkpoints.” The United States Supreme Court has explicitly upheld roadblock-type stops against constitutional challenges in four situations— stops gathering information concerning a recent crime in the area when the questions asked during the stop did not seek self-incriminating information; stops checking driver’s licenses; drivers’ sobriety; and the presence of illegal aliens. See Illinois v. Lidster, 540 U.S. 419, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004); Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983); Sitz, supra; and Martinez-Fuerte, supra. The Alabama Court of Criminal Appeals ably summarized the United States Supreme Court precedent as to this issue in Cains v. State, 555 So.2d 290 (1989):

“Generally, a seizure less intrusive than a traditional arrest is reasonable if based on individualized suspicion, gathered from specific and articulate facts, that the individual is, or is about to be, engaged in criminal activity, Terry v. Ohio [, 392 U.S. 1 (1968)]; see also United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621 (1981), or if the seizure is ‘carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers,’ Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979).
“The nature of a roadblock requires the stopping of cars without individualized suspicion of wrongdoing. Thus, if a roadblock stop is to be upheld, it must be on the second basis, ie., because it is ‘carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.’ In a series of decisions stemming from the immigration control cases, the United States Supreme Court has rejected the individualized suspicion requirement for fixed, non-random automobile checkpoints or roadblock stops, and instead has established some criteria for ‘a plan embodying explicit, neutral limitations on the conduct of individual officers.’
“Four years [after the Supreme Court’s decision in Delaware v. Prouse, 440 U.S. 648 (1979)], the Court specifically approved drivers’ license checkpoints in Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983)....
“When read together, [United States v.] Brignoni-Ponce[, 422 U.S. 873 (1975)], [United States v.] Martinez-Fuerte[, 428 U.S. 543 (1976)], Prouse, and Texas v. Brownl, 460 U.S. 730 (1983),] stand for the proposition that random stops or spot checks are unreasonable in the absence of individualized suspicion of wrongdoing; on the other hand, stops at fixed checkpoints or roadblocks are reasonable if they are carried out pursuant to a neutral and objective plan, are supported by a strong public interest, and are only minimally intrusive to the individual motorist.”

555 So.2d at 292-93 (emphasis added).

The United States Supreme Court has held that driver’s license checkpoints satisfy the first factor' — 'that “the gravity of the public concerns served by the seizure” outweigh the Fourth Amendment interest of individuals. See Brown v. Texas, 443 U.S. at 51, 99 S.Ct. 2637; Texas v. Brown, supra. As for the second factor' — “the degree to which the seizure advances the public interest” — there is no question that the public has an interest in making sure that drivers of vehicles are properly licensed and that the vehicles they are driving are registered and equipped with safety devices. The Court of Criminal Appeals stated in Hagood:

‘The states’ interest in enforcing its registration and licensing laws and the difficulty in enforcing the laws by any other method’ ... [has] been held sufficient to outweigh a minor intrusion upon persons stopped at roadblocks conducted for [that] purposeQ.”

628 So.2d at 1060. Because the United States Supreme Court in Texas v. Brown, supra, has specifically upheld driver’s license checkpoints as advancing the public interest, thus satisfying the second factor, we must ensure that in Jackson’s case the State satisfied the third factor.

To analyze the third factor — “the severity of the interference with individual liberty” — we must determine whether the officers conducted the roadblock-type stop in a neutral and objective manner. As the Court of Criminal Appeals stated in Cains: “[S]tops [of vehicles] at fixed checkpoints or roadblocks are reasonable if they are carried out pursuant to a neutral and objective plan, are supported by a strong public interest, and are only minimally intrusive to the individual motorist.” 555 So.2d at 293. We must determine if the stop in Jackson’s case was “minimally intrusive to the individual motorist.” The Court of Criminal Appeals stated in Cains that “the manner of operation and the physical characteristics of a roadblock,” 555 So.2d at 296, affect the intrusiveness of the stop. The Court of Criminal Appeals then quoted a 13-factor analysis adopted by the Kansas Supreme Court:

“ ‘(1) The degree of discretion, if any, left to the officer in the field; (2) the location designated for the roadblock; (3) the time and duration of the roadblock; (4) standards set by superior officers; (5) advance notice to the public at large; (6) advance warning to the individual approaching motorist; (7) maintenance of safety conditions; (8) degree of fear or anxiety generated by the mode of operation; (9) average length of time each motorist is detained; (10) physical factors surrounding the location, type and method of operation; (11) the availability of less intrusive methods for combating the problem; (12) the degree of effectiveness of the procedure; and (13) any other relevant circumstances which might bear upon the test.’ ”

555 So.2d at 296 (quoting State v. Deskins, 234 Kan. 529, 541, 673 P.2d 1174, 1185 (1983)). We agree with the Court of Criminal Appeals that we should not exalt form over substance and that some of the 13 factors outlined above are not pivotal to determining whether a particular roadblock-type stop is “minimally intrusive.” However, those factors are helpful considerations to take into account when determining whether the officers conducted the stop pursuant to an “objective standard.”

We also agree with the Court of Criminal Appeals that because a roadblock-type stop to examine driver’s licenses is warrantless and not based on an “articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered,” Prouse, 440 U.S. at 663, 99 S.Ct. 1391, the State has the burden of proving that it was reasonable under the Fourth Amendment. Hagood, 628 So.2d at 1062.

In the case of the stop and seizure of Jackson, Sgt. Frank Cassidy authorized the “safety checkpoint” to be conducted on the evening of May 10, 2001, in a heavily traveled area in the R.V. Taylor Housing Project; the roadblock-type stop was to be conducted in accordance with guidelines for such stops established by the Mobile County Sheriffs Department. For example, in compliance with the guidelines, the officers checked the driver of every vehicle for a driver’s license, proof of automobile liability insurance, and safety equipment; there were no random checks. Therefore, the officers in the field had no discretion in deciding whom to stop. Each stop lasted approximately one minute, unless the officers found problems with the paperwork or safety equipment. “Superior officers” were involved in the planning, placement, and timing of the roadblock; Cpt. Crosby, of the criminal section of the sheriffs department, had instructed Sgt. Cassidy to set up the stop at the R.V. Taylor Housing Project. The contract between the housing authority and the sheriffs department mentions “safety checkpoints,” but it does hot instruct the sheriffs department as to how to set up such checkpoints.

Based on the facts presented at the suppression hearing, the trial court did not err in determining that the roadblock-type stop was a valid and constitutional means of protecting the public from unlicensed drivers and unsafe vehicles. The officers’ discretion was limited by the guidelines established by the sheriffs department for conducting such stops, thereby creating a neutral and objective plan, which limited the officers’ discretion. A “superior” officer was involved in planning and authorizing the stop. The intrusion upon the drivers was minimal because it involved only checking to determine whether the driver had the paperwork drivers are required to carry in their vehicles, and the stops lasted only about one minute. There was no evidence to indicate what safety precautions the officers took; however, that is not a controlling factor. The presence of seven marked law-enforcement vehicles gave adequate warning to oncoming drivers that the stop was authorized and organized by law-enforcement personnel.

Jackson essentially alleges that the roadblock-type stop was unconstitutional because, he argues, it was in reality a subterfuge for a general law-enforcement-type checkpoint. If a trial court determines that the roadblock-type stop is valid, the burden is on the defendant to prove that the expressed reason for the stop is a subterfuge and that the stop was actually conducted for an invalid purpose.

Jackson focuses on the testimony of Sgt. Cassidy and the contract between the housing authority and the Mobile County Sheriffs Department to support his claim. He quotes the following excerpts from the trial transcript:

“Q. All right. So your testimony is the Mobile Housing [Authority] was concerned about the traffic violations in the projects and wanted you guys to go in and check on people’s driver’s licenses? “A. Housing projects — housing board authorities did not specify what they wanted us to do. We were asked to put a presence inside R.V. Taylor and we arrived. I took a six-man unit into R.V. Taylor.
“Q. Is there anything in writing from the Housing [Authority] that you received showing what type of presence you were supposed to be doing?
“A. We have a contract with them that specifies that we will go into an area that they govern at their request. It states that we will do rolling patrol, foot patrol, community policing, safety checkpoints.
“Q. And it’s your testimony that the Housing [Authority] has given a contract with the Sheriffs Department to check the safety equipment?
“A. That’s not what I said. The Housing [Authority] has a contract with the Sheriffs Department to put units patrolling inside different housing projects at dates at their request. They did not ask us specifically to check for safety equipment. They asked for us to provide patrol unit in the presence in there [sic].
“Q. And the Housing [Authority] was — I guess you said they have some kind of contract with the County Sheriffs Department where they want you to come in and check for problems they have?
“A. They come in and ask us to make a presence and then patrol the area, yes, sir.
“Q. Okay. To prevent crime from happening?
“A. I don’t know. That’s not stated in there. I was just told to go in and put in a presence into R.V. Taylor.
“Q. Why do you think they would want a presence of law enforcement officers?
“A. I would assume that crime determent [sic] — deterrence would be one.
“Q. Okay.
“A. R.V. Taylor is used as a crossover street between Michigan Avenue and stuff. There’s a lot of pedestrians. I would think the traffic would be a severe problem there. We have a lot of people that speed. A lot of people use it as a cut-through. We have a lot of people on bicycles and stuff, so I would think traffic, crime deterrent.
“Q. So they wanted y’all to enforce the traffic laws on Michigan Avenue for pedestrians?
“A. You asked me what I thought they would want us for, and I would think traffic control, deter crime, or any type of crime, just a high presence.”

Jackson argues that this testimony, considered in conjunction with the contract between the housing authority and the sheriffs department, which uses the words police “presence,” indicates that the primary purpose of the safety checkpoint in this case was general law enforcement, a purpose that invalidates a “checkpoint stop.” “The Supreme Court has never upheld ... a police roadblock designed to promote general law enforcement purposes.” Galberth v. United States, 590 A.2d 990, 998 (D.C.Ct.App.1991). He analogizes his case to Hagood, supra, in which the Alabama Court of Criminal Appeals determined that, based on the testimony of the chief of police that he had ordered the driver’s license checkpoint because of “ ‘trouble’ — ‘fighting, [public] drunkenness] and disorderly [conduct]’ — at the Town Creek Apartments,” 628 So.2d at 1060, the checkpoint was for the purpose of “preventing criminal activity in general.” 628 So.2d at 1060. The Court of Criminal Appeals stated that “this general interest in law enforcement simply does not outweigh the liberty interests of those seized,” 628 So.2d at 1060, and that the “goal of preventing ‘trouble’ in the Town Creek Apartments could have been accomplished without intruding on the liberty rights of individual motorists simply by stationing a police officer in the parking lot of the apartments.” 628 So.2d at 1061. The Court of Criminal Appeals, therefore, held that the roadblock-type stop in Town Creek was an unconstitutional seizure.

There were other problems with the Ha-good checkpoint. When the officers waited “a couple of hours” at one location and found no traffic, 628 So.2d at 1058, they moved to another location. Two of the four officers testified that the “roadblocks were conducted upon the ‘mutual agreement’ of the four officers.” 628 So.2d at 1058. There were no formal guidelines, very few safety precautions at the location of the stop, and the officers had not been trained in how to conduct the stops. Therefore, in Hagood the evidence supporting the existence of an “objective and neutral plan” was lacking.

We have a very different situation in this case. Other than the inferential suspicion based on the word “presence” in Sgt. Cassidy’s testimony and the contract between the sheriffs department and the housing authority, Jackson presented no evidence to prove that this particular roadblock-type stop was for a general law-enforcement purpose. Therefore, we hold that Jackson has not sufficiently proven that the license checkpoint was a subterfuge for a general law-enforcement “checkpoint stop.”

Conclusion

We adopt the rationale used by the Alabama Court of Criminal Appeals in Cains, supra, for determining whether a roadblock-type stop is constitutional. Jackson has failed to show that the stop by the Mobile County Sheriffs Department in his case was for an invalid purpose, i.e., general law enforcement, as was the license checkpoint in Hagood, supra. Therefore, we affirm the judgment of the Court of Criminal Appeals.

AFFIRMED.

HOUSTON, SEE, BROWN, HARWOOD, WOODALL, and STUART, JJ., concur.

LYONS, J., concurs specially.

JOHNSTONE, J., dissents.

LYONS, Justice

(concurring specially).

I concur in the main -opinion. I write specially to state that I am not persuaded that Jackson overcame the presumption of correctness that attaches to the trial court’s finding based on-ore tenus evidence that the roadblock-type stop conducted to check driver’s licenses was not a -subterfuge for a stop conducted for general law-enforcement purposes.

      . Section 13A-12-213, Ala.Code 1975, provides:
      "(a) A person commits the crime of unlawful possession of marihuana in the first degree if, except as otherwise authorized:
      "(1) He possesses marihuana for other than personal use; or
      "(2) He possesses marihuana for his personal use only after having been previously convicted of unlawful possession of marihuana in the second degree or unlawful possession of marihuana for his personal use only.
      "(b) Unlawful possession of marihuana in the first degree is a Class C felony.”

      . The Fourth Amendment to the United States Constitution states:
      "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
      The United States Supreme Court has held that the protections of the Fourth Amendment extend to the states through the operation of the Due Process Clause of the Fourteenth Amendment. Wolf v. People of State of Colorado, 338 U.S. 25 (1949); Mapp v. Ohio, 367 U.S. 643 (1961).

      . Neither the State nor Jackson ever offered the contract into evidence at trial.


source: Caselaw Access Project

author: McMILLAN, Presiding Judge. COBB, Judge,

license: Public Domain

text:
    Everett CLANCY v. STATE.
    CR-00-1689.
    Court of Criminal Appeals of Alabama.
    June 27, 2003.
    Rehearing Denied Aug. 22, 2003.
    Certiorari Denied Feb. 27, 2004 Alabama Supreme Court 1022016.

      Kathryn L. Lippert, Birmingham, for appellant.
    William H. Pryor, Jr., atty. gen., and Sandra J. Stewart, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

The appellant, Everett Clancy, was indicted for capital murder in connection with the shooting deaths of Curtis Jones and Jarrod Craig. See § 13A-5-40(a)(10), Ala.Code 1975 (making the murder of two or more persons by one act or pursuant to one scheme or course of conduct a capital offense). The jury returned a verdict finding Clancy guilty of manslaughter for the killing of Curtis Jones, as a lesser-included offense to the charged offense of capital murder. See § 13A-6-3, Ala.Code 1975. The trial court sentenced Clancy to 15 years’ imprisonment. The sentence was split, and Clancy was ordered to serve three years in prison. This appeal followed.

I.

Clancy contends that the prosecution against him for these killings was barred on double-jeopardy grounds. (Issues I and II in Clancy’s brief.)

Clancy’s conviction was the result of a second trial, conducted in April 2001. His first trial was conducted in August 1999 and ended after the State, near the conclusion of the defense’s case, moved for and was granted a mistrial. In granting the mistrial, the trial court agreed with the State that the court had earlier improperly allowed several defense witnesses, over the State’s objections, to give inadmissible hearsay testimony regarding unrelated specific bad acts of the victims. The mistrial was declared over Clancy’s objection.

After the mistrial, Clancy’s case was set for retrial. On September 8, 1999, Clancy filed a motion to dismiss the indictment, arguing that a retrial was barred on double-jeopardy grounds. Specifically, Clancy contended that jeopardy had attached during his first trial and that no “manifest necessity” had existed to warrant the trial court’s declaration of a mistrial and that, consequently, he could not be retried without violating the protection against double jeopardy. Clancy further contended that the State’s motion for a mistrial- — -made the day after the improper evidence at issue was received — was untimely and that the trial court,' instead of declaring a mistrial, should have polled the jury to determine the prejudicial effect of the improperly admitted evidence, if any, and issued curative instructions to alleviate any prejudice. On September 29, 1999, a hearing was held on Clancy’s motion to dismiss. However, the trial court’s ruling on that motion remained pending for the next 18 months, during which time Clancy’s case was continued numerous times.

On March 23, 2001, the day for argument on motions pending in Clancy’s case, Clancy filed another motion to dismiss; in that motion, Clancy reasserted the double-jeopardy arguments he had made in support of the still-pending motion to dismiss filed in September 1999. On April 5, 2001, the trial court entered an order, finding as follows:

“This matter came before the Court on defendant’s Motion to Dismiss. After oral argument and careful consideration, the Court finds that due to the receipt of inadmissible evidence, the mistrial declared August 27, 1999, was proper.
“Therefore, it is the Order of the Court that defendant’s Motion to Dismiss is hereby Denied.”

(C. 83.)

We point out that jeopardy attached in this case when the jury was empaneled and sworn during Clancy’s first trial. See, e.g., Ex parte Sullivan, 779 So.2d 1157, 1162 (Ala.2000); Ex parte McKenna, 655 So.2d 989, 990 (Ala.1995). Where, as here, a mistrial terminates a trial over the objection of the defendant, a retrial of the defendant is barred unless it is shown that the initial proceeding was aborted because of a “manifest necessity.” Ex parte Sullivan, 779 So.2d at 1162; see Oregon v. Kennedy, 456 U.S. 667, 672, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). “ ‘[T]he “manifest necessity” standard provides sufficient protection to the defendant’s interests in having his case finally decided by the jury first selected while at the same time maintaining “the public’s interest in fair trials designed to end in just judgments.” ’ ” Ex parte Sullivan, 779 So.2d at 1162 (quoting Kennedy, 456 U.S. at 672, 102 S.Ct. 2083, quoting in turn Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949)).

“The trial court’s ruling as to whether there was a manifest necessity for granting a mistrial should always be afforded great deference.” Ex parte Sullivan, 779 So.2d at 1162, citing Ex parte McCall, 541 So.2d 1075, 1076 (Ala.1989). See also, e.g., Woods v. State, 367 So.2d 982, 983-84 (Ala.1978). “This [deference afforded to the trial court] is because the trial judge ‘heard what transpired and has seen the scenario unfold. He is in a far better position to determine whether a jury should be discharged and a mistrial granted.’ Duncan v. City of Birmingham, 384 So.2d 1232, 1240 (Ala.Cr.App.1980).” Boyd v. State, 590 So.2d 344, 348 (Ala.Crim.App.1989) (quoting Wadsworth v. State, 439 So.2d 790, 792 (Ala.Crim.App.1983)).

Here, it is clear that the trial court declared the mistrial because the defense presented inadmissible evidence and that evidence had a bearing on the issues of fundamental fairness to both the State and the defendant. Cf. Dulaney v. State, 410 So.2d 122, 125 (Ala.1981) (there is no constitutional requirement that the trial court’s finding of manifest necessity be explicit). Clancy argued at both his trials that he shot the victims in self-defense. At his first trial, during the defense’s presentation of its case, four consecutive defense witnesses were allowed, over the objections of the prosecutor, to give hearsay testimony regarding unrelated specific bad acts of the victims. In that testimony, the witnesses indicated that they had “heard,” among other things, that Curtis Jones had “shot somebody before”; that Jones had been involved in instances of “shooting people and things like that”; that Jones and Craig had shot at one of the witnesses’ son “32 times” and had struck him in the leg with one of the shots; that Jones had once tied up someone and allowed pit bulldogs to attack that person; that Craig had once shot someone in the hand for taking a car; that Jones had once threatened to rape one of the witnesses’ cousins; that Jones had “shot a couple of people in the past”; and that Jones had shot someone in the leg in a drug-related incident.

Although Rule 405(b), Ala. R. Evid., authorizes the admission of testimony concerning specific instances of a victim’s violent conduct in a case where the victim’s violent character is essential to a defendant’s claim of self-defense, nothing in that rule or in any other Alabama Rule of Evidence or in Alabama caselaw authorizes a defendant claiming self-defense to introduce hearsay testimony concerning alleged specific instances of the victim’s violent conduct in order to bolster his self-defense theory. The testimony in question here was clearly hearsay, in that it was offered for the truth of the matter asserted. What is more, Clancy’s counsel made no attempt to link the hearsay evidence to Clancy’s self-defense claim by, for instance, establishing that the acts of violence by the victims testified to were within Clancy’s knowledge or that Clancy had heard of such acts of violence, whether or not they had in fact occurred. That is, there was no attempt to show how the specific instances of the victims’ conduct might have affected Clancy’s state of mind as he purportedly acted in self-defense. Thus, the evidence was also irrelevant.

Elsewhere in presenting his defense, Clancy was allowed, properly, to present evidence of previous run-ins between him and the victims, as well as testimony that, at the time of the shootings, the victims were armed and appeared to be on the verge of attacking Clancy. In addition, the four character witnesses offered by Clancy were allowed, properly, to testify concerning Jones’s and Craig’s general reputations for violence and concerning their opinions that Jones and Craig were violent. See Rules 404(a)(2)(A) and 405(a), Ala. R. Evid. However, as the State asserts, the improperly admitted hearsay testimony regarding the numerous unrelated bad acts of Jones and Craig was used by Clancy to paint the two as “bad men” who “deserved” to be killed. (State’s brief at p. 15.)

Affording the trial court the deference that is due under such circumstances, we do not find that it abused its discretion in determining that the trial process had been tainted by the admission of the improper evidence and that there was a manifest necessity for granting a mistrial. The trial court was also in the best position to assess whether the effect of the admission of the improper evidence could be rectified by curative instructions. We cannot say the trial court erred in determining that the bell could not be “unrung” by instructing the jury to disregard what it had heard about the victims.

“The Supreme Court [has] cautioned that the phrase ‘manifest necessity’ cannot be interpreted literally; only a ‘high degree’ of necessity is required before concluding that a mistrial is appropriate. Arizona v. Washington, 434 U.S. [497,] at 506, 98 S.Ct. [824,] at 831 [ (1978) ]. ‘Manifest necessity for a mistrial is not determined by whether in fact the event precipitating the mistrial did influence the juror, but whether it might have unlawfully influenced the juror.’ Woods v. State, 367 So.2d 982, 984 (Ala.1978).”

Cox v. State, 585 So.2d 182, 196 (Ala.Crim.App.1991).

Clancy argues that the granting of the mistrial was improper — and was thus not a manifest necessity — because the State’s motion for a mistrial was untimely. We reject Clancy’s argument for several reasons. First, the record reflects that the prosecutor strenuously objected to defense counsel’s attempts to introduce the hearsay testimony of the four witnesses regarding the unrelated specific bad acts of Jones and Craig. The trial court, however, overruled the prosecutor’s objections and allowed the testimony. Under the circumstances, where his objections had been overruled, the prosecutor could be excused for not immediately asking for the more drastic remedy of a mistrial. Further, the prosecutor objected to the improper testimony of each witness, as each witness was testifying; the full deleterious effect of the improperly admitted evidence did not accrue until all four witnesses had been allowed to testify. The record reflects that, following the hearsay testimony, the jury was recessed for the day without the defense having rested its case. The following morning, before any further testimony was taken, the prosecutor moved for the mistrial based on the admission of the improper testimony. After a recess, the trial court returned and made its ruling that it had erred in allowing the testimony, that consequently the parties could not receive a fair trial, and that a mistrial should be granted.

We cannot let our assessment of the correctness of the trial court’s ruling hinge, as Clancy urges, on the timing of the State’s motion for a mistrial, since there is no question that the trial court had the authority sua sponte, even without the prompting of the State’s motion, to declare a mistrial. Indeed, if the trial court had reconsidered the propriety of its evidentiary rulings from the previous day and had then declared the mistrial sua sponte in the absence of a mistrial motion from the State, our principal concern would be the correctness of the trial court’s declaration of the mistrial — and we cannot say that a mistrial under those hypothetical circumstances would have amounted to an abuse of discretion. That the State did, in fact, object when the improper evidence was offered and did move for a mistrial as soon as the proceedings were recommenced and before any further testimony was taken only bolsters our confidence in the correctness of the trial court’s ultimate determination that a mistrial was warranted. The timing of the State’s motion for a mistrial did not render the mistrial less manifestly necessary and does not undermine the correctness of the trial court’s ruling declaring a mistrial.

Finally, we reject Clancy’s argument that the trial court erred in refusing to grant Clancy permission to argue double jeopardy as a defense to the jury in his second trial. There were no factual issues in the trial court’s declaration of a mistrial; the trial court’s ruling in that regard involved only a question of law, which the trial court correctly decided. Where the issue presented by a double-jeopardy claim is a question of law only, the issue should not be submitted to a jury. Duncan v. City of Birmingham, 384 So.2d 1232 (Ala.Crim.App.1980); Billups v. City of Birmingham, 367 So.2d 518, 522-23 (Ala.Crim.App.1978). See also Washington v. State, 818 So.2d 411, 418 (Ala.Crim.App. 2000); Spears v. State, 647 So.2d 15, 24 (Ala.Crim.App.1994).

II.

Clancy contends that his right to a speedy trial was violated.

On March 23, 2001, about two weeks before his second trial began, Clancy filed a motion to dismiss the indictment on speedy-trial grounds. It appears that this was Clancy’s first assertion of his right to a speedy trial. From the record, it cannot be determined whether a hearing was held on the speedy-trial issue, and the record contains no express ruling by the tidal court with regard to Clancy’s motion. In any event, Clancy’s second trial began on April 9, 2001.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court set forth four factors to be weighed when assessing a speedy-trial claim. Those factors are (1) the length of the delay, (2) the reason for the delay, (3) the accused’s assertion of his right to a speedy trial, and (4) the degree of prejudice suffered by the accused due to the delay. Barker, 407 U.S. at 531, 92 S.Ct. 2182; see also, e.g., Ex parte Carrell, 565 So.2d 104, 105 (Ala.1990). Unless the delay is sufficiently lengthy to be “presumptively prejudicial,” it is unnecessary to consider the remaining Barker factors. Barker, 407 U.S. at 530, 92 S.Ct. 2182; see also Zumbado v. State, 615 So.2d 1223, 1234 (Ala.Crim.App.1993).

The mistrial was declared in Clancy’s first trial on August 27, 1999. “[F]or the purpose of determining whether a defendant has been denied a speedy trial in a retrial, the time period is measured from ‘the action occasioning the retrial.’ Nickerson v. State, 629 So.2d 60, 62-63 (Ala.Crim.App.1993).” Weaver v. State, 763 So.2d 972, 978 (Ala.Crim.App.1998). Clancy’s second trial commenced on April 7, 2001. For purposes of our speedy-trial analysis, then, we consider the approximately 19-month delay between the mistrial and the second trial.

This court has found no presumptive prejudice in a number of cases involving delays the same or longer than the 19 months at issue here. See, e.g., Weaver, supra, 763 So.2d at 978 (19 months); Campbell v. State, 709 So.2d 1329, 1334 (Ala.Crim.App.1997) (26 months); Arnett v. State, 551 So.2d 1158, 1159 (Ala.Crim.App.1989) (20 months). On the other hand, we have found presumptive prejudice to exist in cases in which the delays were the same or shorter than 19 months. See, e.g., Ingram v. State, 629 So.2d 800, 802 (Ala.Crim.App.1993) (19 months); Steeley v. City of Gadsden, 533 So.2d 671, 679-80 (Ala.Crim.App.1988) (14 months); Beaver v. State, 455 So.2d 253, 255 (Ala.Crim.App.1984) (16 months). Even though we cannot clearly conclude that the 19-month delay in Clancy’s case was presumptively prejudicial, we will, in an abundance of caution, review the record in light of the remaining three Barker factors.

As previously noted, it appears that Clancy first asserted his speedy trial right in a motion to dismiss filed on March 23, 2001' — about two weeks before the start of his second trial. This fact weighs against Clancy in a Barker analysis. See State v. Anderson, 640 So.2d 1061, 1064 (Ala.Crim.App.1994). “The fact that the appellant did not assert his right to a speedy trial sooner ‘tends to suggest that he either acquiesced in the delays or suffered only minimal prejudice prior to that date.’ ” Benefield v. State, 726 So.2d 286, 291 (Ala.Crim.App.1997) (quoting Archer v. State, 643 So.2d 597, 599 (Ala.Crim.App.1991), quoting in turn Lewis v. State, 469 So.2d 1291, 1294 (Ala.Crim.App.1984)). The “failure to assert the right ... make[s] it difficult for a defendant to prove that he was denied a speedy trial.” Barker, 407 U.S. at 532, 92 S.Ct. 2182.

In part because the record does not contain a transcript of a speedy-trial hearing (if one was even held), the precise reasons for the rescheduling of Clancy’s second trial are not apparent. The record does indicate that the trial court set aside a second trial date in 1999 pending the court’s ruling on Clancy’s motion to dismiss the indictment on double-jeopardy grounds, which Clancy filed on September 8, 1999. Thereafter, four continuances were granted before Clancy’s second trial was held. The record does not indicate that any delay in Clancy’s retrial was attributable to actions by the State. We find the record neutral regarding the reason-for-delay factor.

Finally, Clancy has failed to show that he was prejudiced by the delay. In support of his motion to dismiss on speedy-trial grounds, Clancy asserted only that “the incident allegedly occurred on or about July 31, 1996, which is almost five (5) years ago ... [and] to try the defendant on April 9, 2001, would violate his right to a speedy trial.” (C. 81.) In his appellate brief, Clancy merely asserts that he “had a strong interest in getting the nightmare of the deaths of Curtis Jones and Jax-rod Craig behind him.” (Clancy’s brief at p. 45.)

In Barker, the Supreme Court stated:

“Prejudice ... should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.”

407 U.S. at 532, 92 S.Ct. 2182 (footnote omitted).

The record reflects that Clancy put on the same two eyewitnesses at both of his trials, and at both trials those eyewitnesses testified that Clancy shot the victims in self-defense. Clancy makes only bare assertions of prejudice and has not shown how his defense was impaired by the passage of time between his first and second trials.

Applying the Barker factors to the facts of this ease, we are convinced that Clancy was not denied his right to a speedy trial.

hi.

Clancy contends that he was denied a fair trial because, he says, the prosecutor “consistently violated the rules of evidence.” (Clancy’s brief at p. 48.)

In his brief, Clancy points to an instance where the prosecutor asked a State’s witness an allegedly leading question concerning the lighting conditions around the scene of the shooting. After the witness had testified that the area was “fairly well lit,” the prosecutor asked the witness, “Would you characterize the lighting as well lit?” Clancy’s counsel objected to the leading nature of the question, and the trial court overruled the objection. However, the prosecutor then asked the witness how he would characterize the lighting, to which the witness answered (again), “It was fairly well lit.” (R. 143-44.) Thus, Clancy received the relief he sought by his objection to the allegedly leading question. See James v. State, 788 So.2d 185, 196 (Ala.Crim.App.2000). We find no prejudice here.

Clancy also argues that the prosecutor, during cross-examination of a defense witness, was improperly allowed to develop a fact not in evidence. The record reflects that during direct examination by Clancy’s counsel, the defense witness gave testimony implying that, based on the witness’s observation of the victims’ car stopped in the roadway, a confrontation between Clancy and the victims was brewing before the shooting. On cross-examination, the prosecutor asked the witness if he knew whether the victims had stopped in the roadway because they had a flat tire. The witness answered that he was unaware of that fact, and Clancy’s counsel objected, arguing that no one had testified to the fact that there had been a flat tire. The objection was overruled.

Because it is permissible during cross-examination to asked leading questions in order to develop evidence, Clancy’s argument here fails. Rule 611(c), Ala. R. Evid.; see Evans v. State, 794 So.2d 415, 433-34 (Ala.Crim.App.2000).

IV.

Clancy contends that the trial court erred in instructing the jury on an accused’s flight as evidence of consciousness of guilt. He argues that the evidence did not warrant a flight instruction. However, Clancy failed to object to the flight instruction at the trial level; consequently, his argument was not preserved for appellate review. Rule 21.3, Ala. R.Crim. P.; see Neal v. State, 803 So.2d 586, 588 (Ala. Crim.App.2001).

Based on the foregoing, the trial court’s judgment is affirmed.

AFFIRMED.

BASCHAB and SHAW, JJ., concur. COBB, J., dissents, with opinion, which WISE, J., joins.

COBB, Judge,

dissenting.

In Everett Clancy’s appeal from his manslaughter conviction, § 13A-6-3, Ala. Code 1975, he contends that the prosecution was barred on double-jeopardy grounds and that the trial court erred when it denied his motion to dismiss the case. The majority holds that the prosecution was not barred. I believe that Clancy is entitled to relief on his claim; therefore, I dissent.

During Clancy’s first trial, near the end of the defense’s case, the State requested that a mistrial be declared. The prosecutor argued that its motion for a mistrial was due to be granted on grounds that several defense witnesses had given inadmissible hearsay testimony regarding unrelated specific bad acts on the part of the victims. The trial court granted the motion for a mistrial over defense counsel’s strenuous opposition. Defense counsel argued, among other things, that the motion for a mistrial was untimely because the prosecutor failed to make the motion until the day after all of the witnesses had testified. The trial court stated:

“Regarding the State’s motion, I have determined that there’s certain evidence that would be admissible under certain circumstances, but those circumstances have not been met. In an effort to ensure the State of Alabama and the Defendant a fair trial, I’m going to grant the motion for a mistrial.”

(R. 922.) Defense counsel vigorously objected.

The majority concludes that the State’s motion for a mistrial was timely presented to the trial court, even though it was made after all of the witnesses had testified, and on the day after the objectionable testimony was given. The majority states, “We cannot let our assessment of the' correctness of the trial court’s ruling hinge, as Clancy urges, on the timing of the State’s motion for a mistrial.... ” 886 So.2d at 170. The majority contends that, because the trial court could have declared a mistrial sua sponte, the timing of the State’s motion was somehow rendered irrelevant. Although this is an interesting legal proposition, it does not, in my opinion, represent the law in Alabama. The motion for a mistrial was not timely made because it was not made during each witness’s testimony, while the allegedly impermissible testimony was being given. The prosecutor did not move for a mistrial after each witness testified. The prosecutor failed to make the motion until the day after all of the witnesses had testified.

To be timely, a motion for a mistrial must be made immediately after the allegedly ■ improper question or questions are asked. Ex parte Marek, 556 So.2d 375, 379 (Ala.1989). See also Miles v. State, 715 So.2d 913, 917 (Ala.Crim.App.1997) (motion for mistrial made the day after the allegedly improper questions were asked is untimely).

My research has not revealed a single case in which a defendant’s motion for a mistrial, made at any time other than immediately after the allegedly improper question or questions were asked, was considered timely. See Smith v. State, 745 So.2d 284 (Ala.Crim.App.1998); Bryant v. State, 727 So.2d 870 (Ala.Crim.App.1998); Huffman v. State, 706 So.2d 808 (Ala.Crim.App.1997); LaFontaine v. State, 668 So.2d 119 (Ala.Crim.App.1995); Wilson v. State, 651 So.2d 1119 (Ala.Crim.App.1994); Allen v. State, 659 So.2d 135 (Ala.Crim.App.1994); Alford v. State, 623 So.2d 404 (Ala.Crim.App.1993); Craig v. State, 616 So.2d 364 (Ala.Crim.App.1992). To hold that the prosecutor’s motion was timely in this case is wholly inconsistent with established precedent and seems to suggest that the prosecution is not held to the same standards regarding timely objections to which defendants are held.

The majority also states that, because the trial court had determined, over the prosecutor’s objections, that the prior bad act testimony would be admitted, “the prosecutor could be excused for not immediately asking for the more drastic remedy of a mistrial.” 886 So.2d at 170. While a motion for a mistrial can, in certain circumstances, preserve for review lesser prayers for relief such as an objection to allegedly improper testimony, Ex parte Marek, 556 So.2d 375, 379 (Ala.1989), I know of no Alabama caselaw that holds that an objection to testimony somehow implicitly preserves for review the more drastic motion for mistrial. The majority also alleges that the delayed motion for a mistrial was justified because “the full deleterious effect of the improperly admitted evidence did not accrue until all four witnesses had been allowed to testify.” 886 So.2d at 170. The prosecutor did not raise this “cumulative error” argument in his motion for a mistrial. He merely argued that the court’s previous ruling on prior bad act testimony had been incorrect, and the court agreed. Thus, the Court’s reliance on this “cumulative error” argument is merely an unsuccessful attempt to bootstrap its faulty legal rationale. Finally, the majority alleges, “The timing of the State’s motion for a mistrial did not render the mistrial less manifestly necessary and does not undermine the correctness of the trial court’s ruling declaring a mistrial.” 886 So.2d at 171. The manifest necessity for a mistrial is not the issue here; the timing of the motion seeking the mistrial is the issue.

Because the State’s motion for a mistrial was untimely, the trial court’s declaration of a mistrial was improper. Clancy’s motion to dismiss the case against him based on the principles of double jeopardy should have been granted. Therefore, I dissent.

      . The jury could not agree upon a verdict as to the killing of Jarrod Craig, and the trial court declared a mistrial as to the charge involving Craig.

      . In the March 23, 2001, motion, Clancy also moved to dismiss the indictment on the ground that his right to a speedy trial had been violated. See Part II of this opinion.

      . The majority asserts that the prosecutor objected to the allegedly improper testimony of each witness as the witness testified, but my review of the record reveals that objections were not made to all of the allegedly improper testimony.


author: COBB, Judge. BASCHAB, Judge,

text:
    D.K.T. v. STATE of Alabama.
    CR-02-1130.
    Court of Criminal Appeals of Alabama.
    June 27, 2003.

      Blake A. Payne, Jasper, for appellant.
    William H. Pryor, Jr., atty. gen., and Stephen N. Dodd, asst. atty. gen., for ap-pellee.
   COBB, Judge.

On March 4, 2003, after a bench trial, D.K.T. was adjudicated delinquent on the underlying charges of second-degree and third-degree theft of property, violations of §§ 13A-8-4 and 13A-8-5, Ala.Code 1975. On the same day, the trial court committed D.K.T. to the custody of the Alabama Department of Youth Services and ordered him detained until accepted into a boot camp program. This appeal followed.

The facts adduced at trial indicate the following: On or about January 19, 2003, D.K.T.’s second cousin, Lisa Herald, and her 13-year-old son were at home when there was a knock at the door. Herald looked out and saw D.K.T. and two of his friends at the door, but she chose not to open the door; she instead got into the shower. D.K.T. and his three friends sat on the doorstep of Herald’s house for approximately 20 minutes. When Herald looked out to find that the children had left, she noticed that two bicycles — a girl’s bicycle and a boy’s bicycle — were missing from the front yard and the backyard. Herald telephoned the police, who found the three children with the two bicycles. Herald identified the bicycles as belonging to her.

Herald also testified that, at least twice before the incident in question, D.K.T. had borrowed a bicycle from her home and that she had not told him that he could not do that. When asked if she had ever given D.K.T. permission to borrow the bicycles, Herald testified that “[he] took them, he thinks it’s okay because I’m his cousin.” (R. 8.) Herald testified that the bike D.K.T. had previously borrowed was old, that she had never had a problem with his borrowing the old bike, but that the two bikes in question were new. Herald testified that she never told D.K.T. not to use the old bike. She also testified that she never told D.K.T. not to use the new bikes.

D.KT.’s grandmother testified that Herald had told her that she did not want D.K.T. borrowing the new bikes; however, D.KT.’s grandmother testified that she never mentioned this fact to D.K.T. because he was out of town at the time Herald made the statement.

Herald testified that the value of the two bicycles, that is, the value of “both of them,” was between $300 and $350 (R. 6, 16), and that the boy’s bicycle cost more than the girl’s bicycle. She later testified that, although she could not remember how much each bicycle cost (R. 17), the values for the two bicycles listed in the complaints — $150 and $250 — were fair estimates of the values of the two bicycles. (R. 9.)

D.K.T. raises two issues on appeal. First; he argues that the State did not provide sufficient evidence showing that he intended to deprive Herald of the property in question. Second, he argues that the only evidence provided by the State in regard to the value of the property was the contradictory testimony of Herald.

The State argues that D.KT.’s argument regarding intent was not preserved for appellate review. At trial, the trial court interrupted when D.KT.’s counsel attempted to continue to question Herald about the fact that she had never instructed D.K.T. not to use the new bikes:

“THE COURT: That’s — it’s like somebody sticking up the bank, does the president have to ask him, ‘Please don’t stick up my bank,’ before—
“[Defense counsel]: Well, Your Hon- or—
“THE COURT: I’m not following where you’re going with this.
“[Defense counsel]: Well, Your Hon- or, we’re just trying to show that there has been a past pattern and practice that she had allowed him to use the bikes and there was never any knowledge given to him that he should not take the bikes.
“THE COURT: Well, you go ahead, that ain’t gonna weigh much.
“[Defense counsel]: Well, I think it goes to intent, Your Honor.
“THE COURT: Intent?
“[Defense counsel]: Intent. What was his intent, not to deprive her of her property, he was just using them.
“THE COURT: Don’t waste our time, let’s move on.
“[Defense counsel]: All right.”

(R. 14-15.) At the close of the State’s evidence, D.K.T. moved for a judgment of acquittal based on the State’s failure to prove the value of the property involved, not on the State’s failure to prove intent. Even if we construe the exchange between defense counsel and the trial court as an objection, which we do not, D.K.T. never obtained an adverse ruling; therefore, this issue was not preserved for appellate review. Sotto v. State 701 So.2d 309, 312 (Ala.Crim.App.1997).

As for D.KT.’s value argument, in order to establish a prima facie case of second-degree theft of property, the State must prove that the property in question “exceeds $250.00 in value but does not exceed $1,000.00....” § 13A-8-4(a), Ala.Code 1975. In order to establish a prima facie case of third-degree theft of property, the State must prove that the property in question “does not exceed $250.00 in value.” § 13A-8-5(a), Ala.Code 1975.

Although Herald’s testimony was not clear, she testified that the combined value of the bicycles was $300 to $350. The complaints valued the bicycles at $150 and $250, for a total of $400. However, there was no evidence whatsoever that the value of either bicycle exceeded $250.

The evidence at trial supported two charges of third-degree theft of property, rather than one charge of second-degree and one charge of third-degree. Accordingly, this cause is remanded with directions that the trial court set aside D.HT.’s adjudication as delinquent based on the underlying charge of second-degree theft of property. See M.T.R. v. State, 620 So.2d 753 (Ala.Crim.App.1993). The trial court is further instructed to enter an order adjudicating D.K.T. delinquent based on the underlying charge of third-degree theft of property, so that he is adjudicated delinquent on two charges of third-degree theft of property, and to sentence him accordingly, as he is no longer guilty of a felony. Due return shall be made within 28 days of this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

McMILLAN, P. J., and SHAW and WISE, JJ„ concur. BASCHAB, J., concurs in part and dissents in part, with opinion.

BASCHAB, Judge,

concurring in part and dissenting in part.

I concur with the majority’s conclusions that the evidence was not sufficient to establish second-degree theft of property and that it was sufficient to support delinquency adjudications based on two counts of third-degree theft of property. However, I disagree with the majority’s conclusion that it is necessary to remand this ease for the juvenile court to set aside the appellant’s adjudication based on the underlying offense of second-degree theft of property and to adjudicate the appellant delinquent based on the underlying offense of third-degree theft of property. As long as the evidence is sufficient to support an adjudication based on the underlying offense or a lesser included offense thereof, any error regarding the offense upon which the delinquency adjudication is based is harmless. See Rule 45, Ala. R.App. P. Because the appellant will still be adjudicated delinquent, a remand in this case will not serve any purpose. Therefore, I respectfully concur in part and dissent in part.

      . D.K.T. was 15 years old at the time of the incident.

      . The complaints alleged that D.K.T. "did knowingly obtain or exert unauthorized control over one MGX 21 speed bicycle ... of the value of $250.00” (C. 4), and "one Roadmas-ter bicycle ... of the value of $150.00” (C. 7).

       Note from the reporter of decisions: On August 15, 2003, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On September 19, 2003, that court denied rehearing, without opinion. On February 13, 2004, the Supreme Court denied certiorari review, without opinion (1030001).