author: KING, P.J.,

text:
    Irvin FORREST, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-00206-COA.
    Court of Appeals of Mississippi.
    Jan. 20, 2004.

      William E. Phillips, David M. Ratcliff, Laurel, attorneys for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

KING, P.J.,

for the Court.

¶ 1. This cause has returned to this Court upon the State’s motion for rehearing. That motion is denied, the prior opinion withdrawn and this modified opinion substituted in its stead.

¶ 2. Irvin Forrest was convicted in the Circuit Court of Jones County of two counts of rape and one count of auto theft. He appeals, asserting that the circuit court erred in: (1) denying his motion to suppress DNA evidence obtained in violation of his rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, (2) denying his motion for funds for an expert witness to interpret DNA testing, (3) denying his motion to dismiss for failure to provide a speedy trial, (4) denying his motion to declare a mistrial after a witness mentioned the word “rape” despite a pre-trial order prohibiting the use of the word, (5) refusing to declare a mistrial after witnesses stated that he was charged with kidnapping while no such charge was brought, (6) allowing testimony of his attempt to flee when taken into custody, and (7) restricting full cross-examination of the state’s DNA expert witness.

¶ 3. We find that while the Jones County Sheriffs Department should have obtained a search warrant prior to collecting a DNA sample from Forrest, under the unique facts of this case the failure does not require reversal and suppression of the evidence. All other assignments of error are without merit. Therefore, we affirm the conviction and sentence.

FACTS

¶ 4. On April 24, 2000, at approximately 1:00 a.m., a man with a handgun accosted H.C. and N.S. in the parking lot of the Hattiesburg restaurant where they worked. The man forced H.C. to drive him and N.S. to a secluded area near the Laurel-Hattiesburg airport, where he raped both of them. He stole H.C.’s vehicle and left them. The two women walked to the airport where they summoned assistance. They gave a description of their attacker as an African American male in his mid-twenties, with frizzy hair pulled back, a stubble of a beard, and wearing black jeans and a dark shirt. This information was sent out on the National Crime Information Center’s computer. The Laurel Police located the vehicle, parked and unoccupied, inside the Laurel, Mississippi city limits. Jones County Sheriffs Investigator Wayne Black responded to the location, and saw a motel room key on the driver’s seat. The car was towed, and Black retrieved the key. Officer Black determined that the key belonged to the El Patio Motel in Laurel.

¶ 5. Black and a deputy went to the motel, entered the motel room and ascertained that no one was inside, then left the room and placed it under surveillance. Later that day, Black observed Forrest enter the motel room. Officer Black placed Forrest in custody and transported him to the Jones County Sheriffs jail. A search of the motel room yielded a pair of black jeans and a nine millimeter pistol.

¶ 6. The next day, April 25, 2000, H.C. and N.S. came to the jail, and from separate line-ups identified Forrest. Black testified that after the line-ups, he and Detective Rusty Keyes, of the Hattiesburg Police Department, gave Miranda warnings to Forrest, and attempted to question him. However, Forrest refused to waive his rights and refused to answer questions without the presence of an attorney. Black testified that Forrest was then “isolated” and denied any opportunity to contact a lawyer, until the following day when he was initially brought before a magistrate.

¶ 7. Black testified that following Forrest’s invocation of his right to counsel and his refusal to answer questions, but before his initial appearance and the' appointment of counsel, Black again initiated questioning by asking Forrest to consent to a bodily search to procure pubic hairs for DNA testing. Black testified that he did not advise Forrest of the right to refuse to provide the samples. Black and Janet Booth, a nurse, testified that Forrest consented to the bodily search and seizure. The State’s DNA expert, Amrita Lai, testified that Forrest’s DNA matched DNA samples taken from the rape kit provided by N.S.

DISCUSSION

1. MOTION TO SUPPRESS

¶ 8. Forrest contends that the collection of his DNA samples was an illegal search and seizure, and that the circuit court erred in denying his pretrial motion to suppress DNA evidence. The written motion was premised upon the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. However, in arguing the motion before the circuit court, Forrest also made clear that the substance of his argument went to his right to be free from unreasonable search and seizure under the Fourth Amendment to the United States Constitution, as well as Article 3, Section 23 of the Mississippi Constitution.

¶ 9. Warrantless searches are illegal, even when supported by probable cause, unless the search is conducted pursuant to one of the exceptions to the warrant requirement. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576, (1967) (citation omitted) (quoting Wong Sun v. United States, 371 U.S. 471, 481-482, 83 S.Ct. 407, 9 L.Ed.2d 441, (1963)). “Searches conducted without warrants have been held unlawful ‘notwithstanding facts unquestionably showing probable cause’, for the constitution requires ‘that the deliberate, impartial judgment of a judicial officer ... be interposed between the citizen and the police.’ ” Id. The question in this case is whether Forrest’s consent to the collection of DNA evidence was obtained consistent with his rights under the Fourth Amendment to the United States Constitution.

¶ 10. A valid search may be conducted without a warrant, where the defendant gives his consent Watts v. State, 828 So.2d 835 (¶¶ 27-28) (Miss.Ct.App.2002). Whether a valid consent to a search has been given must be determined by an examination of the totality of the circumstances. Jackson v. State, 418 So.2d 827, 830 (Miss.1982). While one of the factors to be considered in making that determination is whether the defendant was aware that he could refuse to give his consent, it is not the controlling factor, Logan v. State, 773 So.2d 338 (¶¶ 12, 14)(Miss.2000), since “consent may be established without a showing that the police warned the consenting party of his Fourth Amendment rights or that he was otherwise aware of those rights.” Jones v. State ex rel. Miss. Dept. of Public Safety, 607 So.2d 23, 27 (Miss.1991).

¶ 11. The record establishes that Forrest had previously been given that warning commonly referred to as the Miranda rights. At that time Forrest declined to waive those rights, and indicated his desire to speak with an attorney.

¶ 12. Subsequent to this refusal, Forrest was approached by Black and asked to give hair samples. The testimony is that Forrest indicated his consent and cooperated in the collection of the hair samples. Based upon this evidence, the trial judge found Forrest’s consent to be sufficiently voluntary to make the search lawful. This is an issue, which is committed to the broad discretion of the trial court. Logan, 773 So.2d 338 at (¶ 13). Unless that discretion is abused, this Court is obligated to affirm that decision. Id. Given the record before this Court, we cannot say that the trial court’s determination that Forrest’s consent was voluntary was an abuse of discretion.

¶ 13. Forrest asserts that after he invoked his right to counsel and declined questioning, Black re-initiated questioning to obtain consent to collect the DNA evidence, without again advising him that he could refuse to cooperate, and his consent was thereby obtained through a violation of his rights under the Fifth Amendment to the United States Constitution.

¶ 14. Forrest’s assertion that Black’s re-initiating questioning was improper is clearly meritorious.

[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.

Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378, (1981) (footnote omitted). See also Beckum v. State, 786 So.2d 1060(¶ 7) (Miss.2001). We hold that Black’s contact with Forrest was improper. However, the seizure of evidence that is of a scientific nature, and that is not of a communicative nature, is not protected by the right against self-incrimination guaranteed by the Fifth Amendment to the United States Constitution. See, e.g., Schmerber v. California, 384 U.S. 757, 765-770, 86 S.Ct. 1826, 16 L.Ed.2d 908, (1966); Baylor v. State, 246 So.2d 516, 518 (Miss.1971). Because the evidence obtained is not protected by the Fifth Amendment, Black’s improper contact does not render involuntary Forrest’s consent to collect the hair samples.

¶ 15. This Court, like the trial court, must express its concern at the admission by the sheriffs department, that detainees, who requested an attorney, were routinely jailed and no effort made to promptly obtain counsel for them.

2. INDEPENDENT EXPERT WITNESS

¶ 16. Forrest asserts the circuit court erred in denying his motion for funds with which to hire an independent expert to analyze the DNA evidence. An appellate court applies an abuse of discretion standard to a trial court’s denial of expert assistance, focusing on whether “the defendant was denied due process whereby, the trial was fundamentally unfair.” Richardson v. State, 767 So.2d 195(¶ 7) (Miss.2000).

¶ 17. In this case, Forrest obtained results from the DNA analysis which the State intended to introduce at trial on October 25, 2001. Trial was set for-December 4, 2001. Forrest filed a motion for funds' to hire an independent expert on November 27, 2001, and the motion was heard two days later. During the hearing, the circuit court asked whether Forrest was seeking independent testing, and his counsel replied, “no sir.... I’ve got a report with a bunch of stuff on it. I might can guess what it says, but it doesn’t say in plain English language.” Additionally, Forrest’s counsel had not contacted, and could not identify, any expert he wished to use. The report itself was eight pages long. The pertinent part was eighteen “conclusions” as to genetic comparisons of whether Forrest’s DNA matched DNA material found both in vaginal swabs provided by the victims as well as on cuttings of material from the victim’s undergarments. The conclusions did not reference scientific terms, but stated that the DNA found in the vaginal swabs and on the clothing of N.S. were consistent with Forrest’s to the exclusion of 1 person in 10 billion, and that no seminal fluid or sperm cells were recovered from the vaginal swab and clothing of H.C.

¶ 18. Given these facts, the circuit court’s denial of Forrest’s motion for defense expert was not an abuse of discretion. There is no merit to this assignment of error.

3. SPEEDY TRIAL

¶ 19. Forrest raises a constitutional speedy trial issue under the Sixth Amendment to the United States Constitution and Article 3, Section 26 of the Mississippi Constitution. Forrest was held in jail for 325 days before being indicted, and was held in jail for 589 days between his arrest and trial.

¶ 20. The right to a speedy trial attaches at the time of arrest, and for both state and federal constitutional claims, an appellate court applies the four-part balancing test found in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101, (1972) and Jefferson v. State, 818 So.2d 1099(¶ 11) (Miss.2002). The four Barker factors are (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant. Barker, 407 U.S. 514 at 530, 92 S.Ct. 2182.

¶ 21. In this case, the length of delay triggers analysis of the other three factors. The State asserts the reason for the delay was a delay in analyzing the DNA evidence, caused by the prosecution’s sending the samples to the Mississippi State Crime Lab, which at that time was not performing DNA testing, and .the subsequent necessity to obtain private- testing. Forrest did not assert his right to a speedy trial outside of his motion to dismiss with prejudice. While Forrest was not required to bring himself to trial, this factor does not weigh as heavily against the State as it would had he brought a motion to compel a speedy trial. See Jaco v. State, 574 So.2d 625, 632 (Miss.1990). Lastly, while Forrest was certainly prejudiced by the lengthy incarceration without trial, his only contention as to prejudice is to the evidence, and his defense to the charges, was that he was unable to obtain his own expert to assist him in understanding the results of the testing. As discussed in the previous assignment of error, this argument is without merit, because Forrest failed to show how the denial prejudiced his defense. While the length of delay was great, the State’s failure to obtain timely testing was not done to purposefully disadvantage Forrest, and Forrest’s ability to defend against the charges was not affected. On these facts, there is no showing of a constitutional deprivation of a speedy trial. This issue is without merit.

4. DENIAL OF A MISTRIAL DUE TO THE USE OF THE WORD “RAPE”

¶ 22. The circuit court granted a pre-trial motion by Forrest, to order the State to advise its witnesses not to make statements going to the factual conclusion that a rape occurred. The motion itself broadly requested that all State witnesses refrain from using the word “rape.” The circuit court stated that if a witness used the word “rape,” it would take necessary corrective action, including dismissal, if that was required.

¶ 23. Forrest asserts that two separate statements by Lome Phillips, a deputy with the Jones County Sheriffs Department, involving the word “rape” mandated the case be dismissed. First, Phillips stated that when he initially responded to the report of a crime, a security guard at the Laurel-Hattiesburg airport told him two girls approached the building he was working in and “were beating on the window and the door, and he heard them and came and opened the door, and they told them they had been raped. He took them inside and put them in the waiting room.” Forrest objected “to the use of that word” asserting that it violated the pre-trial order. The circuit court overruled the objection, without comment. Forrest did not make further argument. The victims had previously testified that Forrest had raped them. The security guard was not asserting that Forrest had raped the victims, but merely telling what happened when he observed the victims.

¶ 24. The second mention of the word “rape” occurred when Phillips was asked what investigation he performed at the airport, and he recounted what the two victims had said to him, and then added “[m]y dispatcher, before she dispatched me to the double rape, was trying to get in touch with — .” At which point, Forrest again objected, and asked for a mistrial. The circuit court instructed the witness to continue testifying without using the word “rape.” Forrest did not request a cautionary instruction. Trial courts are granted discretion in determining if testimony is so prejudicial as to require a mistrial. Johnson v. State, 477 So.2d 196, 209 (Miss. 1985). In this case, nothing suggests such irreparable prejudice that could have denied Forrest a fair trial arose from learning that Phillips was dispatched to “the double rape.” The admissibility of testimony is subject to an abuse of discretion standard. Byars v. State, 835 So.2d 965(¶ 6) (Miss.Ct.App.2003). There is no showing of an abuse of discretion in denying the motion for a mistrial. This assertion of error is without merit.

5.DENIAL OF A MISTRIAL DUE TO THE USE OF THE WORD “KIDNAPPING”

¶ 25. In testifying about the line-ups at which the victims identified Forrest, Black stated that the victims came to the jail “to see if they could pick out the individual who had kidnaped and sexually assaulted them.” Forrest was not charged with kidnaping. Forrest objected, and the trial court sustained the objection. Forrest neither requested a cautionary instruction nor moved for a mistrial. Where a trial court sustains an objection, the failure to both request a cautionary instruction and move for a mistrial generally waives the issue. Lockridge v. State, 768 So.2d 331(¶ 23) (Miss.Ct.App.2001). Moreover, even if the issue was not barred, Black’s misstatement was an isolated occurrence. Nothing indicates that Forrest was so prejudiced that the jury could not reach a verdict solely on the evidence. See Sanders v. State, 586 So.2d 792, 797 (Miss. 1991). This issue is without merit.

6.TESTIMONY CONCERNING FORREST’S ATTEMPT TO FLEE

¶ 26. When Forrest was apprehended at the El Patio Motel, he initially attempted to flee, but was quickly re-apprehended. While testifying, Black stated that Forrest “did bolt and run-away. Lt. Hutchinson had to chase him down and re-apprehend him.” Forrest objected that the testimony was irrelevant and prejudicial, and moved for a mistrial. The circuit court overruled the objection, but instructed the State to move to another line of questioning. The admissibility of testimony is subject to an abuse of discretion standard. Byars, 835 So.2d 965 at (¶ 6). Forrest asserts that the trial court erred in not granting a mistrial and that the fact that Forrest’s motel room contained evidence of drug use, gave him a reason to flee without indicating his guilt of the charges. Given the overall testimony in this case, that isolated remark could not have been so prejudicial as to require a mistrial. See, e.g., Johnson, 477 So.2d 196 at 209. This issue is without merit.

7.RESTRICTING THE SCOPE OF CROSS-EXAMINATION OF THE STATE’S EXPERT WITNESS

¶ 27. When N.S. gave the samples for the rape kit, she answered a routine question as to recent sexual contact, and acknowledged consensual sex with her boyfriend sometime during the previous evening before the rape took place in the early morning hours of April 24, 2000. At trial, the circuit court admonished the State, during the defense’s cross-examination of the nurse who assisted in collecting the rape kit, for not making timely objections to Forrest’s line of questioning, because the circuit court found that the evidence was prohibited by Mississippi Rule of Evidence 412, as evidence of a victim’s prior sexual behavior. Both the State and Forrest were of the opinion that the questioning was appropriate, because in their opinion the evidence did not go to prior sexual behavior, but rather the probative value of what scientific conclusions could be drawn from the rape kits and DNA analysis.

¶ 28. The trial Court heard testimony on this issue in chambers. The DNA expert stated that she was unable to state whether N.S. had earlier engaged in sexual intercourse. That relevant testimony is as follows:

The Court: You can’t say then that this woman had sex previously?
A. No.
Q. The only thing you found that would indicate that she just had sex with this man? Is that what you are saying?
A. The major contributor, yes.

¶ 29. The determination of admissibility of evidence is largely left to the discretion of a trial court. Peterson v. State, 671 So.2d 647, 657-58 (Miss.1996). Having received this testimony from the DNA expert the trial court determined the evidence inadmissible.

¶ 30. Under these facts, this Court cannot say that was an abuse of discretion.

¶ 31. This issue is without merit.

¶ 32. THE JUDGMENT OF THE JONES COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I — RAPE AND SENTENCE OF LIFE; COUNT II — RAPE AND SENTENCE OF LIFE; AND COUNT III — AUTO THEFT AND SENTENCE OF FIVE YEARS, WITH ALL SENTENCES TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THE APPEAL ARE ASSESSED TO JONES COUNTY.

McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


source: Caselaw Access Project

author: WOODALL, Justice. STUART, Justice

license: Public Domain

text:
    Ex parte N.L.R. (In re N.L.R. v. C.A.D. and F.G.).
    1012330.
    Supreme Court of Alabama.
    March 14, 2003.
    John D. McCord of McCord & Martin, Gadsden, for petitioner.
    Shannon L. Millican, Gadsden, for respondent F.G.
   WOODALL, Justice.

This is a child-custody case. The trial court awarded temporary custody of two minor children to F.G., the children’s maternal grandmother. N.L.R., the children’s natural father, appealed to the Court of Civil Appeals, which affirmed the judgment of the trial court, without an opinion. N.L.R. v. C.A.D., (No. 2001292, July 12, 2002) — So.2d - (Ala.Civ.App.2002) (table). N.L.R. petitioned this Court for certiorari review. We granted his petition to consider whether the decision of the Court of Civil Appeals conflicts with Ex parte Terry, 494 So.2d 628 (Ala.1986), and its progeny. We reverse and remand.

I.

C.A.D. and N.L.R. are the natural mother and natural father, respectively, of two teenage sons, W.D.D. and B.H.D. The parents have litigated concerning child support, visitation, and related matters since 1991, when N.L.R. filed a notice of declaration of legitimation of the children. However, this appeal does not involve a dispute between C.A.D. and N.L.R. Instead, it involves a dispute between F.G., C.A.D.’s mother, and N.L.R. over the custody of the children.

On May 22, 2001, the trial court allowed F.G. to intervene in the litigation and to file a petition for custody of W.D.D. and B.H.D. On May 30, 2001, N.L.R. filed a petition for custody, alleging that “he is the father of the minor children ... and is the most fit and suitable person to have ... custody of [them].” On May 31, 2001, a custody hearing was held, where the trial court considered ore tenus evidence.

On May 31, 2001, the trial court entered a temporary order; that order stated, in part:

“The maternal grandmother, as a non-parent, has the burden of proof to demonstrate by competent evidence that both parents are unfit and unsuited to have custody. The children were born out of wedlock. Therefore, the mother is prima facie entitled to have custody, until she is proven to be unfit or unsuited. The maternal grandmother presented abundant, clear, convincing and competent evidence that the mother is unfit and unsuited to have custody.... Having successfully proven that the mother is unfit and unsuited to have custody, the maternal grandmother must still prove by competent evidence that the father is also unfit or unsuited to have custody. The father is prima facie entitled to custody against any non-parent except the mother. The maternal grandmother’s evidence against the father falls ivoefully short of proving that he is unfit. In fact, this father has never been given a chance to be a real father. The hearing was not finished, and the Court will re-set another hearing to allow the father to refute the allegations of the maternal grandmother, but frankly, he has no affirmative burden to prove anything. The dilemma for the Court is that the boys need some time to adjust to the father. The purpose of this Order is to allow the defendant/father an opportunity to establish a better relationship with the boys during the summer months while they are out of school.”

(Emphasis added.) The trial court designated F.G., the maternal grandmother, as the “temporary foster parent” of the children. Recognizing that F.G.’s and N.L.R.’s petitions for custody remained pending, the trial court scheduled a “review hearing” on August 13, 2001.

The hearing was held as scheduled on August 13, and the trial court considered further ore tenus evidence. The court entered another order on August 23, 2001, again concluding that C.A.D. was “unfit and unsuited to have custody.” With regard to N.L.R., the trial court stated, in pertinent part:

“The maternal grandmother has produced no evidence whatsoever that the father is unfit to have custody. The only basis upon which this Court can determine that the father is ‘unsuited’ to have custody is the fact that the boys do not want to live with him in Scottsboro and the fact that he has failed to adjust his situation to accommodate their needs. If this is legally insufficient, then this Court welcomes an appeal by the father. This Court hoped that the father would adjust his circumstances to live and work where the boys want to attend school, so that he could be a bigger part of their lives.”

(Emphasis in original.) The trial court denied N.L.R.’s petition for custody, finding him “to be fit to have custody, but ... to be unsuited to have the care, custody and control of [his] children.” (Emphasis added.) The court awarded temporary custody of the children to F.G., and certified its judgment as final pursuant to Ala. R. Civ. P. 54(b).

On September 5, 2001, N.L.R. filed a motion to alter, amend, or vacate the judgment entered on August 23, 2001. The trial court denied that motion on September 13, 2001, and N.L.R. appealed to the Court of Civil Appeals.

On July 12, 2002, the Court of Civil Appeals affirmed the judgment of the trial court, without an opinion. N.L.R. filed an application for rehearing, which the Court of Civil Appeals overruled without an opinion on September 6, 2002. N.L.R. then petitioned this Court for certiorari review, which was granted on December 10, 2002.

II.

The trial court made findings of fact based upon oral testimony and other evidence, and then awarded custody to F.G. based upon its application of the law to the facts.

“ ‘[W]e will not disturb the trial court’s findings of fact unless those findings are plainly and palpably wrong and not supported by the evidence.’ Williams v. Lide, 628 So.2d 531, 534 (Ala.1993), citing Mitchell v. Kinney, 242 Ala. 196, 200, 5 So.2d 788, 797 (1942). However, the ore tenus rule does not extend to cloak a trial judge’s conclusions of law, or incorrect application of law to the facts, with a presumption of correctness. As this Court has held, ‘when the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court’s judgment.’ Griggs v. Driftwood Landing, Inc., 620 So.2d 582, 586 (Ala.1993).”

Eubanks v. Hale, 752 So.2d 1113, 1144-45 (Ala.1999)(opinion on return to second remand).

III.

The central issue in this case is legal, as opposed to factual, in nature. Stated simply, the issue is whether the trial court’s finding N.L.R. fit to have custody of his children precluded it, as a matter of law, from awarding custody to F.G., the maternal grandmother. We hold that it did. Therefore, the trial court erred in awarding temporary custody to F.G., and the Court of Civil Appeals erred in affirming the trial court’s judgment.

This Court recently stated the standard a trial court must apply in a custody dispute between a parent and a nonparent:

“This Court, in Ex parte Terry, [494 So.2d 628 (Ala.1986)], established the standard a trial court must apply in a custody dispute between a parent and a nonparent:
“ ‘ “The prima facie right of a natural parent to the custody of his or her child, as against the right of custody in a nonparent, is grounded in the common law concept that the primary parental right of custody is in the best interest and welfare of the child as a matter of law. So strong is this presumption, absent a showing of voluntary forfeiture of that right, that it can be overcome only by a finding, supported by competent evidence, that the parent seeking custody is guilty of ... misconduct or neglect to a degree which renders that parent an unfit and improper person to be entrusted with the care and upbringing of the child in question.” ’
494 So.2d at 632 (quoting Ex parte Mathews, 428 So.2d [58] at 59 [(Ala.1983)].) A child’s being born to unmarried parents does not affect the Terry presumption in favor of the biological parent.
“ ‘[I]n a custody contest between a nonparent and one who has been adjudicated to be the natural father of a child born out of wedlock, the father is entitled to the presumption that the child’s best interests will best be served by an award of custody to him, subject to the absence of a finding that he is unfit and subject to [certain] exceptions.... ’
“Ex parte D.J., 645 So.2d [303] at 306 [(Ala.1994)]. The Terry presumption in favor of the parent in a custody dispute with a nonparent does not apply if the parent has voluntarily relinquished custody or if the court has entered a prior judgment removing custody from the parent.... Id.”

Ex parte S.T.S., 806 So.2d 336, 341 (Ala.2001) (emphasis added). Neither of the exceptions to the Ex parte Terry, 494 So.2d 628 (Ala.1986), presumption is applicable here. Therefore, before the trial court could properly award custody to the maternal grandmother, the trial court had to find N.L.R. “unfit” to be entrusted with the custody of his children. However, the trial court instead found N.L.R. “to be fit to have custody.” This finding clearly precluded, as a matter of law, the award of custody to the maternal grandmother.

The trial court grounded its award of custody upon its conclusion that N.L.R., though fit for custody, was “unsuited” to have custody of his children. Thus, the trial court allowed the strong Tory presumption in favor of the parent to be overcome, despite the fact, as noted in its custody order, that there was “no evidence whatsoever that [N.L.R.] is unfit to have custody.” However, in a custody case between a parent and a nonparent this Court has never recognized that proof falling short of proof sufficient to support a finding of the parent’s unfitness was sufficient to support an award of custody to the nonparent.

F.G. argues that the trial court applied the appropriate legal standard. The essence of her argument is that the terms “unfit” and “unsuited” have different meanings, and that a finding of either will support an award of custody to a nonpar-ent. In support of her argument, F.G. relies upon the use of the term “unsuited” in prior decisions. For example, the Court of Civil Appeals has stated:

“Absent a prior order removing custody from a parent, a nonparent seeking custody may overcome the strong presumptive superior right of that parent to have custody of his or her child only by presenting ‘clear and convincing evidence that the parent is so unfit or unsuited for custody that the best interest of the child will be served by granting custody to the third person.’ [Ex parte] Terry, 494 So.2d [628] at 630 [(Ala.1986)].”

G.H.W. v. A.W.C., 792 So.2d 1098, 1102 (Ala.Civ.App.2000) (emphasis added).

F.G.’s argument has no merit. The appellate courts of this state have never said that a finding that a parent is “unsuited” is a sufficient substitute for a finding that a parent is “unfit.” Instead, “unsuited” has been used merely as a synonym for “unfit.” See Black’s Law Dictionary 1448 (7th ed.1999) (defining “suitable” as “fit and appropriate for [an] intended purpose”) (emphasis added). See also Merriam-Webster’s Collegiate Dictionary 2286 (10th ed.2002) (identifying “fit” and “suitable” as synonyms). The trial court erred in ascribing different meanings to the terms, and in awarding custody to F.G., where, as the trial court recognized, there was no evidence indicating that N.L.R. is unfit to have custody of his children.

IV.

For the foregoing reasons, the judgment of the Court of Civil Appeals is reversed and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

MOORE, C.J., and SEE, LYONS, BROWN, JOHNSTONE, and HARWOOD, JJ., concur.

STUART, J., concurs specially.

HOUSTON, J., concurs in the result.

STUART, Justice

(concurring specially).

The trial judge in his final order stated:

“As previously noted in the June 20 Order, after the mother is proven to be unfit and unsuited to have custody, the father is entitled to custody against a non-parent (maternal grandmother) unless he is also proven to be unfit or unsuited. The maternal grandmother has produced no evidence whatsoever that the father is unfit to have custody. The only basis upon which this Court can determine that the father is ‘unsuited’ to have custody is the fact that the boys do not want to live with him in Scotts-boro and the fact that he has failed to adjust his situation to accommodate their needs. If this is legally insufficient, then this Court welcomes an appeal by the father.... ”

(Emphasis in the original.) There is ample evidence in the record from which the trial court could have determined that the father was an unfit parent: he was found in contempt of court on several occasions for failing to pay child support (he was at one point $7,240 in arrears and was found guilty of criminal nonsupport); he was convicted of assaulting the children’s maternal grandfather for which he served 6 months of a 12-month sentence; he attempted to abscond with the children during one visitation; he was unemployed and had been so for an extended period; he had no stable home to which to take the children; and he had failed to establish a relationship with the children so that they desired to live with him. For reasons that are not clear to me, the trial judge did not find him unfit.

Labeling a person as an “unfit parent” is a difficult thing for a juvenile or family court judge to do. Sometimes trial judges attempt to avoid it so as to spare a parent further mental anguish or in an attempt to mend a family split. The unpleasantness of labeling a parent unfit cannot be avoided where under the facts the natural parent is unfit and the best interest of the child requires that he or she be placed in the custody of a nonparent. While I do not understand why the trial court in this case did not find the father unfit, based upon the trial court’s findings I must reluctantly concur with the majority opinion.

I also make an additional observation. The filing of a notice of declaration for legitimation in the probate court is not the equivalent of filing a petition to establish paternity in the juvenile court. Section 26-11-2, Ala.Code 1975, provides:

“(a) A father of a bastard child may seek to legitimate it and render it capable of inheriting his estate by filing a notice of declaration of legitimation in writing attested by two witnesses, setting forth the name of the child proposed to be legitimated, its sex, supposed age and the name of mother and that he thereby recognizes it as his child and capable of inheriting his estate, real and personal, as if born in wedlock. The declaration, being acknowledged by the maker before the judge of probate of the county of the father’s residence or the child’s residence or its execution proved by the attesting witnesses, shall be filed in the office of the judge of probate of the father’s residence or the child’s residence.”

The legitimation statute, in addition to addressing the ability of a child born out of wedlock to inherit from his father, provides a mechanism for a possible name change to give the minor child his father’s surname if doing so is determined to be in the child’s best interest. Ala.Code 1975, § 26-11-2. Those are the two purposes of this statute. The probate court properly transferred this case to the juvenile court where paternity was adjudicated and child-support and visitation issues were decided.

      . C.A.D. did not appeal from the custody order.


author: YATES, Presiding Judge.

text:
    N.L.R. v. C.A.D. and F.G.
    2001292.
    Court of Civil Appeals of Alabama.
    May 2, 2003.
    John D. McCord of McCord & Martin, Gadsden, for appellant.
    Shannon L. Millican, Gadsden, for appel-lee F.G.
   On Remand from the Alabama Supreme Court

YATES, Presiding Judge.

This court, on July 12, 2002, affirmed the trial court’s judgment, without an opinion. N.L.R. v. C.A.D., (No. 2001292, July 12, 2002) - So.2d - (Ala.Civ.App.2002) (table). The Alabama Supreme Court has reversed this court’s judgment and has remanded the case to this court. Ex parte N.L.R., 863 So.2d 1066 (Ala.2003). The trial court’s judgment is reversed, in compliance with the supreme court’s opinion, and the case is remanded for further proceedings.

REVERSED AND REMANDED.

CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.


author: STUART, Justice.

text:
    STAR ELECTRICAL CONTRACTORS, INC. v. STONE BUILDING COMPANY, INC. Stone Building Company, Inc. v. Pennsylvania National Insurance Company.
    1012101 and 1012190.
    Supreme Court of Alabama.
    May 2, 2003.

      Carol Ann Smith, Joel S. Isenberg, and Candace L. Hudson of Smith & Ely, LLP, Birmingham, for appellant Star Electrical Contractors.
    Stephen D. Heninger and R. Edwin Lamberth of Heninger, Burge, Vargo & Davis, LLP, Birmingham; and K. Donald Simms of Austill, Lewis & Simms, P.C., Birmingham, for appellee/cross-appellant Stone Building Company, Inc.
    Charles D. Stewart and Steve R. Bur-ford of Spain & Gillon, L.L.C., Birmingham, for appellee Pennsylvania National Insurance Company.
    Robert A. Huffaker of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery; and Joana S. Ellis of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for amicus curiae Alabama Defense Lawyers Association.
    William J. Baxley and Joel E. Dillard of Baxley, Dillard, Dauphin & McKnight, Birmingham, for amicus curiae American Insurance Association.
    Jeffrey G. Tickal, Opelika, for amici curiae American Subcontractors Association, Inc., of America and Central Alabama Chapter of the American Subcontractors Association, Inc., t/a ASA of Alabama.
   STUART, Justice.

In case no. 1012101, Star Electrical Contractors, Inc., appeals from the trial court’s summary judgment in favor of Stone Building Company, Inc. We reverse and remand. In the cross-appeal, case no. 1012190, Stone Building Company, Inc., appeals from that portion of the trial court’s order dismissing this cause as to Pennsylvania National Insurance Company. We reverse and remand.

Background

This is the second time this case has been before us. See Stone Building Co. v. Star Elec. Contractors, Inc., 796 So.2d 1076 (Ala.2000) (“Stone I”). Because the facts and procedural history are adequately developed in Stone I, we see no need to restate here the facts or the tortured history of this 10-year-old litigation. We begin our statement of the facts and history by summarizing our opinion in Stone I.

Stone I

Stone, a contractor, asserted cross-claims against Star, its subcontractor, in an action filed against Stone by one of its employees, Dennis Cline, and his wife, for injuries Dennis suffered on the job site on August 6, 1991. Upon learning of the Clines’ claims, Stone notified Star and requested that Star provide Stone a defense, pursuant to an indemnity agreement contained in the parties’ contract. Star and its insurer, Pennsylvania National Insurance Company, refused to provide Stone a defense. Stone eventually entered into settlement negotiations with the Clines and notified Star of those negotiations; Star declined to participate in those negotiations. Stone settled the Clines’ claims for $495,000.

In its cross-claims, Stone contended that Star had breached three duties it undertook in its subcontract with Stone: the duty to obtain liability insurance covering Stone; the duty to indemnify Stone for sums it might pay (and, in fact, subsequently paid), in settlement of, or as damages for, claims for job-site injuries suffered by third parties like Cline; and the duty to indemnify Stone for the expenses of its defense of such claims.

While the Clines’ action against Stone was pending, the Clines sued Star directly, asserting claims of negligence and wantonness. Those claims were tried before a jury. At trial, the court granted Star a judgment as a matter of law on the wantonness claim and the jury returned a verdict in favor of Star on the negligence claim. Based on that verdict, the trial court entered a summary judgment for Star on Stone’s claims for indemnification. Stone appealed from the trial court’s summary judgment in favor of Star.

In Stone I, we affirmed in part and reversed in part the summary judgment entered in favor of Star on Stone’s cross-claims and remanded the case. The Stone I Court affirmed the summary judgment as to Stone’s claim that Star had breached its duty to obtain liability insurance covering Stone, finding that Stone had waived the contractual requirement that Star obtain such liability insurance. Stone I, 796 So.2d at 1089.

However, the Stone I Court reversed the summary judgment as to Stone’s claim that Star had breached its duty to indemnify Stone for the sums it had paid in settlement of the Clines’ claims. The Stone I Court also reversed the summary judgment as to Stone’s claim that Star had breached its duty to indemnify Stone for the defense of the Clines’ claims. The Stone I Court found that genuine issues of material fact precluded a summary judgment on those claims. Although Stone argued that the Court should render a judgment in its favor on the indemnity claim, this Court in Stone I remanded the action to the trial court for further proceedings consistent with that opinion.

On Remand to the Trial Court

On remand Stone moved the trial court to enter a partial summary judgment in its favor on its claims for indemnity of the settlement amount and on its claims for indemnity of the costs and expenses of conducting its defense. In support of that motion, Stone submitted a copy of the opinion in Stone I, an order of this Court overruling Star’s application for a rehearing in Stone I, and an affidavit verifying the attorney fees and expenses incurred by Cincinnati Insurance Company, Stone’s insurer, after Stone demanded indemnification from Star. Stone’s counsel provided the trial court with a proposed order.

On June 25, 2002, the trial court entered a summary judgment in favor of Stone, awarding Stone the amount of its settlement with the Clines and the attorney fees and expenses incurred by Stone’s insurer as documented in the affidavit submitted by Stone. The trial court adopted the proposed order drafted by Stone’s counsel. The conclusions of law stated in that order purported to quote from and rely upon Stone I.

Star appeals from the June 25, 2002, order, raising the following issues:

“I. Whether Stone I’s holding that genuine issues of material fact exist precludes summary judgment for Stone.
“II. Whether the trial court’s order relies on a misstatement of law.
“III. Whether the trial court’s order violates Star’s right to due process under the law, its right to [a] trial by jury, and its right to freely contract.
“IV. Whether the trial court erred in awarding Stone damages because Stone suffered no financial loss and no damage as its defense costs and settlement were paid in full by its insurer, Cincinnati Insurance Company.”

Standard of Review

In American Liberty Insurance Co. v. AmSouth Bank, 825 So.2d 786 (Ala.2002), we recited the standard applicable to our review of a trial court’s ruling on a summary-judgment motion:

“We review this case de novo, applying the oft-stated principles governing appellate review of a trial court’s grant or denial of a summary-judgment motion:
“ ‘We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Once a party moving for a summary judgment establishes that no genuine issue of material fact exists, the burden shifts to the non-movant to present substantial evidence creating a genuine issue of material fact. “Substantial evidence” is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw.’ ”

825 So.2d at 790, quoting Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala.2000) (citations omitted).

Appeal (case no. 1012101)

I. Whether Stone I’s holding that genuine issues of material fact exist precludes summary judgment for Stone.

Star argues that the trial court erred in entering a summary judgment for Stone. We agree.

In Stone I, this Court reversed the summary judgment for Star on Stone’s claims for indemnification. The trial court had entered a summary judgment for Star because a jury returned a verdict for Star on the Clines’ claims of negligence and wantonness. The trial court interpreted this jury verdict to signify that, “ ‘[therefore, there was no evidence that Star, or someone acting “by [or] for and on behalf of’ Star, including Stone, negligently committed any acts complained of by Cline for which Stone paid damages and now seeks indemnification.’ ” 796 So.2d at 1086. Based on this reasoning, the trial court granted Star’s motion for a summary judgment, denied Stone’s motion for a summary judgment, and certified the judgment as final for purposes of appeal.

The Stone I Court reversed the summary judgment, holding that the jury verdict, and the judgment entered on that verdict, in favor of Star on Cline’s claims of negligence and wantonness did not defeat Stone’s right to indemnification. See Stone I, 796 So.2d at 1089-90. Although Stone I did not elaborate, this holding was based on the law of indemnity, discussed further in this opinion, to the following effect:

“[I]f the indemnitor has been given notice of the action against the indemnitee and has been given an opportunity to defend or to settle the action, then the indemnitor ‘is precluded from contesting the indemnitee’s liability in a subsequent indemnity or third-party action.’ ...
“ ‘... [W]hen the indemnitor has notice of the claim and refuses to defend, the indemnitor is bound by any good faith reasonable settlement, and the in-demnitee need only show potential liability.’ ”

Stone I, 796 So.2d at 1090 (emphasis omitted). The Stone I Court implicitly held that, because the indemnitor — Star—had notice of the Clines’ claims and refused to defend the indemnitee — Stone—against the Clines’ claims, Star was bound by any good-faith reasonable settlement between Stone and the Clines; that Stone, in its claim against Star for indemnification, “need only show potential liability” to the Clines, which was not eliminated by the jury verdict against the Clines on their related and similar claims rendered after the date of the settlement between Stone and the Clines; ánd that Star was “precluded from contesting the indemnitee’s [Stone’s] liability” to the Clines even though, after the date of the settlement, the Clines suffered an adverse jury verdict on their related and similar claims.

Accordingly, the jury’s finding that Star was not liable to the Clines under a theory of negligence could not resolve the issue whether Star was liable under the indemnity agreement, as the trial court had held in its original summary-judgment order. Thus, the Stone I Court found that the trial court’s summary judgment for Star on Stone’s claims for indemnification and based upon the jury’s verdict in favor of Star was premature.

It is significant that, although requested to do so, the Stone I Court did not render a judgment for Stone on its claim for indemnification nor did the Court remand the action for the trial court to enter a judgment in favor of Stone on that claim. The Stone I Court expressly found that genuine issues of material fact existed on the indemnification claim. It is also significant that, on remand, the only evidence Stone submitted in support of its motion for a partial summary judgment was a copy of the Stone I opinion and an affidavit documenting the amount of legal fees incurred by Stone’s insurer after making a demand on Star for indemnification. This evidence does not address whether Star is liable under the indemnity agreement.

Because the trial court has not addressed whether Star’s duty to indemnify Stone, under the language of the indemnity agreement and the facts of this case, has been triggered, genuine issues of material fact remain as to that issue. The trial court’s summary judgment in favor of Stone, entered in reliance upon Stone I, must be reversed.

II. Whether the trial court’s order relies on a misstatement of law.

Star also contends that the trial court erroneously relied upon a misstatement of the law in entering a summary judgment in favor of Stone. We agree.

In its order, the trial court quoted language from the Stone I opinion and then applied that language to the facts of this case. The trial court’s order provided, in pertinent part:

“In its opinion, the Alabama Supreme Court stated the following rule regarding indemnity claims:
... [I]f the indemnitor has been given notice of the action against the indemnitee and has been given an opportunity to defend or to settle the action, then the indemnitor “is precluded from contesting the indemni-tee’s liability in a subsequent indemnity or third-party action.” ’
“[796 So.2d at 1090]. Thus, the Alabama Supreme Court clearly indicated that if Stone (the indemnitee) gave Star (the indemnitor) notice of the action and an opportunity to defend or settle the action, then it would be Star — and not Stone as the Court previously concluded — that would be precluded from contesting its liability under the indemnification contract.
“The crux of this case is Stone’s indemnity claim. In essence, Stone claims that Star is precluded from contesting its liability under the indemnity agreement, according to the rule established by the Alabama Supreme Court in the prior appeal. Thus, Stone contends that it is entitled to a summary judgment. Star, however, contends that a genuine issue of material fact exists as to whether it performed any work under its contract with Stone that caused the Clines’ injuries. It also contends that Stone’s ‘loan agreement’ with Cincinnati [Insurance Company] is a ‘sham’; thus, Star contends this Court cannot enter a summary judgment in favor of Stone. Star has not claimed that it was prejudiced by any allegedly tardy notice from Stone regarding the indemnity claim. Star has not contested the reasonableness of Stone’s settlement with the Clines. In fact, in open court, Star represented to this Court that it was not contesting the reasonableness of this settlement.
“As stated above, the relevant facts in this case are undisputed. Star contends that the facts are not undisputed, because, it says, there is evidence that Star is not liable under the indemnity contract. Specifically, Star says that the evidence is conflicting as to whether it caused the Clines’ injuries. However, the Court finds that these facts are simply irrelevant under the rule established by the Alabama Supreme Court in this case. In essence, the Alabama Supreme Court has stated that where an indemni-tee gives notice to an indemnitor and the indemnitor refuses to defend, the indem-nitor cannot later contest its liability under the indemnity agreement. Thus, Star’s attempt to relitigate this issue is without merit. Moreover, Star has not contended that Stone settled the Clines’ claims in bad faith, that Stone’s notice caused it prejudice, or that Stone’s settlement was unreasonable. Therefore, this Court concludes that Star is precluded from contesting its liability under its indemnity agreement with Stone and that Stone is entitled to a summary judgment on its indemnity claims.”

(Emphasis added.)

However, as discussed below, the language emphasized above is not a correct application of Stone I nor is it a correct statement of the law.

In Stone I, the Court noted that Stone had provided Star notice of the Clines’ claims and an opportunity to participate in the negotiations that culminated in Stone’s settlement with the Clines, but that Star had refused to defend Stone against those claims or to participate in the settlement negotiations. The Court then cited the general rules applicable to indemnity:

“The general rule is that, ‘if indemnity is sought against an indemnitor without notice of either the original suit or of the settlement by the indemnitee,’ then the indemnitee has the burden of establishing that it was actually liable to the plaintiff and that the settlement was a reasonable one. However, if the indem-nitor has been given notice of the action against the indemnitee and has been given an opportunity to defend or to settle the action, then the indemnitor ‘is prechided from contesting the indemni-tee’s liability in a subsequent indemnity or third-party action.’
“ ‘Indemnity against losses does not cover losses for which the indemnitee is not liable to a third person, and which the indemnitee improperly pays. A person legally liable for damages who is entitled to indemnity may settle the claim and recover over against the indemnitor, even though he has not been compelled by judgment to pay the loss. In order to recover, the indemnitee settling the claim must show that the indemnitor was legally liable, and that the settlement was reasonable. In the event that an indemnitor is not afforded the alternative of participating in a settlement or conducting the defense against the original claim, an indemni-tee settling the claim will have the burden of establishing actual liability to the original plaintiff rather than the lesser burden of showing potential liability.
“ ‘However, when the indemnitor has notice of the claim and refuses to defend, the indemnitor is bound by any’ good faith reasonable settlement, and the indemnitee need only show potential liability.’ ”

Stone I, 796 So.2d at 1090 (quoting 41 Am.Jur.2d Indemnity § 46 (1995)) (citations omitted; emphasis omitted; emphasis added).

Although the Court in Stone I did not elaborate on this point, the language quoted above indicates that, when an indemnitor has refused to defend the claim and participate in the settlement of that claim, “the indemnitor [in this case, Star] is bound by any good faith reasonable settlement, and the indemnitee [in this case, Stone] need only show potential liability.” 796 So.2d at 1090. Thus, this Court in Stone I meant that, under the general rules of indemnity, Stone was not required to prove its actual liability to the Clines as part of its burden of proof in its indemnification claim and Star is precluded from contesting Stone’s liability to the Clines for that settlement. See Stone I, 796 So.2d at 1090, quoting Watts v. Talladega Fed. Sav. & Loan Ass’n, 445 So.2d 316, 320 (Ala.Civ.App.1984).

In its order, the trial court correctly quoted from the Stone I opinion; however, in applying the quoted language to this case, the trial court inadvertently changed the word “indemnitee’s” to “its.” Thus, where the trial court should have concluded that “Star [the indemnitor] [was] precluded from contesting [Stone’s, the in-demnitee’s] liability” for the claims settled with the Clines, the trial court improperly concluded that Star was precluded from contesting its own liability under the indemnification agreement. This is not the law of indemnity, nor is it the law of this case.

As Star asserts, the improper substitution of the pronoun “its” for the word “indemnitee’s” caused the trial court to inadvertently misstate the law of indemnity in its order and to improperly conclude that Star was precluded from challenging Stone’s claims for indemnification. This misstatement of law also led the trial court to improperly enter a summary judgment for Stone. We reverse the trial court’s summary judgment for Stone on its claims for indemnification, finding that genuine issues of material fact exist, which preclude a summary judgment at this time. We remand this cause to the trial court for further proceedings consistent with this opinion.

Because of our resolution of the first two issues, we pretermit any discussion of issues three and four.

Cross-Appeal (case no. 1012190)

Stone cross-appeals, asserting that in the June 25, 2002, order, in which the trial court entered a summary judgment for Stone on its indemnification claims, the trial court improperly dismissed Stone’s claims against Pennsylvania National Insurance Company. We note that in the June 25, 2002, order the trial court did not address any other pending claims or motions. However, on the case action summary, the trial court noted “[b]y said order [of June 25, 2002], this cause is hereby dismissed as to all parties, costs taxed as paid.” Stone asserts that the trial court dismissed Pennsylvania National based solely upon its summary judgment in favor of Stone. Pennsylvania National contends that the trial court simply granted Pennsylvania National’s motion for a summary judgment that had been pending for approximately two years.

We agree with Stone because we believe that, had the trial court intended to grant Pennsylvania National’s pending motion for a summary judgment, the trial court would have specifically referred to that motion and would have addressed the merits of that motion. Because the trial court dismissed the claims against Pennsylvania National based solely upon the summary judgment entered in favor of Stone, and because we have concluded that that summary judgment must be reversed, we also reverse that portion of the trial court’s June 25, 2002, order dismissing Stone’s claims against Pennsylvania National. We express no opinion on the merits of Stone’s claims asserted against Pennsylvania National because those claims and issues are not before us. As to those claims, we remand the case to the trial court for further proceedings consistent with this opinion.

Conclusion

In case no. 1012101, we find that genuine issues of material fact exist on Stone’s claims for indemnification; the existence of those genuine issues of material fact preclude a summary judgment at this time. We also find that the trial courts summary-judgment order relied upon a misstatement of the law of indemnity and misconstrued our opinion in Stone I. Therefore, in case no. 1012101, we reverse the trial court’s summary judgment on Stone’s claims for indemnification and we remand this action to the trial court for proceedings consistent with this opinion.

In the cross-appeal (case no. 1012190), we reverse the trial court’s order dismissing this cause as to Pennsylvania National Insurance Company and remand for proceedings consistent with this opinion.

1012101 — REVERSED AND REMANDED.

1012190 — REVERSED . AND REMANDED.

MOORE, C.J., and HOUSTON, LYONS, BROWN, JOHNSTONE, HARWOOD, and WOODALL, JJ., concur.

      . The indemnity agreement contained in the subcontract provided, in pertinent part:
      "The Subcontractor [Star] covenants to indemnify and save harmless and exonerate the Contractor [Stone] and the Owner of and from all liability, claims and demands for bodily injury and property damage arising out of the work undertaken by the Subcontractor, its employees, agents or its subcontractors, and arising out of any other operation no matter by whom performed for and on behalf of the Subcontractor, whether or not due in whole or in part to conditions, acts or omissions done or permitted by the Contractor or Owner.”

        Stone I, 796 So.2d at 1078.

      . On Star’s motion, this Court incorporated into the appeal the record and the briefs filed with this Court in Stone I. Therefore, we may properly consider the arguments presented to the Court in Stone I.

      . However, Stone must still meet its burden of proof or there must be no dispute as to the following: Stone's potential liability to the Clines; the reasonableness of the $495,000 settlement with the Clines; Stone’s good faith in entering into the settlement with the Clines. See Stone I, 796 So.2d at 1090-91, citing 41 Am.Jur.2d Indemnity § 46 (1995).


author: HOUSTON, Justice. LYONS, Justice

text:
    Ex parte Darryl Pierrie HALL. (In re Darryl Pierrie Hall v. State of Alabama).
    1020355.
    Supreme Court of Alabama.
    May 9, 2003.

      Thomas M. Goggans, Montgomery, for petitioner.
    William H. Pryor, Jr., atty. gen., and Andy S. Poole and Yvonne A.H. Saxon, asst, attys. gen., for respondent.
   HOUSTON, Justice.

Darryl Pierrie Hall was convicted of three counts of robbery in the first degree, violations of Ala.Code 1975, § 13A-8-41, and four counts of kidnapping in the second degree, violations of Ala.Code 1975, § 13A-6-44. Hall was sentenced to life imprisonment on each of the robbery convictions, and to 20 years’ imprisonment on each of the kidnapping convictions. The Court of Criminal Appeals affirmed Hall’s convictions, with an unpublished memorandum. (No. CR-00-1180, October 18, 2002) — So.2d - (Ala.Crim.App.2002) (table). We granted Hall’s petition for a writ of certiorari, and we now affirm the judgment of the Court of Criminal Appeals.

I.Procedural Histo'ry

After a transfer to the circuit court from the juvenile court, Hall was charged with three counts of first-degree robbery, four counts of second-degree kidnapping, one count of first-degree rape, and one count of first-degree sexual assault for events that allegedly occurred in connection with the robbery of a Montgomery day-care center. Hall entered a plea of not guilty to all the charges. He was subsequently tried on three separate occasions.

At Hall’s first trial, the jury found him not guilty of rape and sexual abuse, but was unable to reach a verdict on the robbery and kidnapping charges, and a mistrial was declared. In Hall’s second trial, the jury was again unable to reach a verdict on the robbery and kidnapping charges and another mistrial was declared. Hall’s third trial resulted in the jury finding Hall guilty of the robbery and kidnapping charges. (Unless otherwise indicated, hereinafter the term “trial” in this opinion refers to Hall’s third trial.)

Hall filed a motion for a judgment of acquittal or, in the alternative, a motion for a new trial. After a hearing, the trial court denied Hall’s motion.

The Alabama Court of Criminal Appeals affirmed Hall’s convictions and sentences in an unpublished memorandum.

II.Issues on Appeal

There are two issues before this Court: Whether the trial court’s denial of Hall’s motion for a judgment of acquittal or for a new trial, which was based on claims of 1) perjured testimony and 2) ineffective assistance of trial counsel, was proper; and whether Hall’s confession was voluntary and thus properly admitted into evidence.

III.Analysis

A. The denial of Hall’s postverdict motion

Hall’s motion for a judgment of acquittal or for a new trial was based on claims of perjured testimony and ineffective assistance of trial counsel. “ ‘ “It is well established that a ruling on a motion for a new trial rests within the sound discretion of the trial judge. The exercise of that discretion carries with it a presumption of correctness, which will not be disturbed by this Court unless some legal right is abused and the record plainly and palpably shows the trial judge to be in error.” ’ ” Hosea O. Weaver & Sons, Inc. v. Towner, 663 So.2d 892, 895 (Ala.1995)(quoting Kane v. Edward J. Woerner & Sons, Inc., 543 So.2d 693, 694 (Ala.1989), quoting in turn Hill v. Sherwood, 488 So.2d 1357 (Ala.1986)).

1. Perjured testimony

During his trial, Hall asserted an alibi defense; he contended that at the time of the robbery and kidnapping, he was at home making telephone calls to friends. The State countered Hall’s alibi defense with the testimony of Charles Chambers, an employee of BellSouth Telephone Company. Chambers testified that had Hall made the outgoing calls he claimed to have made at the time of the robbery BellSouth’s records would have revealed those calls; Chambers further testified that the records did not indicate that any such calls had been made.

After the trial, it was discovered that Chambers’s testimony was incorrect. Chambers had testified that records of outgoing telephone calls from BellSouth customers were kept for 18 months; however, the records were kept for only 60 days and the data was then erased. Chambers testified as follows in a subsequent affidavit:

“At the time I testified on January 26, 2001, it was my understanding that local outgoing call information was kept for a period of eighteen months.
“I have since learned that my testimony on January 26, 2001, was erroneous. In fact, local outgoing call information is not kept for eighteen months ... information for flat rate subscribers has a retention period of sixty (60) days, like the incoming call records. All of the accounts about which I testified were flat rate subscribers.
“The time period that was being reviewed with regard to the above referenced telephone accounts was beyond [BellSouth’s] retention period.”

Therefore, after 60 days, there would have been no records to indicate whether Hall had or had not made the telephone calls he claimed to have made at the time of the incident forming the basis for the charges against him.

Hall contends that, because of this false testimony, the trial court should have granted him a new trial.

In Ex parte Frazier, 562 So.2d 560, 569-70 (Ala.1990), this Court adopted the following standard:

“In order to grant a motion for new tidal alleging perjured testimony, the trial court must be reasonably well satisfied 1) that testimony given by a witness at trial is false; 2) that there is a significant chance that had the jury heard the truth, it would have reached a different result; 3) that the evidence tending to prove the witness’s perjury has been discovered since the trial; and 4) that that evidence could not have been discovered before or during trial by the exercise of due diligence.”

The first requirement established in Frazier is “that testimony given by a witness at trial is false.” The record clearly indicates that Chambers’s testimony was false. In fact, Chambers himself states in his affidavit that the testimony he gave during Hall’s trial “was erroneous.”

The second requirement established in Frazier is “that there is a significant chance that had the jury heard the truth, it would have reached a different verdict.” In the present case, this requirement has not been met.

During the hearing on Hall’s motion for a new trial, a juror (“Juror L.”) testified, among other things, that Chambers’s testimony concerning the telephone records was not given a great deal of weight by a majority of the jurors in reaching the verdict. In its order denying Hall’s motion for a new trial, the trial court stated:

“[Hall] contends that the jury was left with a false impression of the existence of phone records of BellSouth. This evidence was offered to rebut the defense of alibi by [Hall], Testimony and affidavits of the two witnesses at trial were considered at the hearing. The witnesses testified that their original testimony as to the length of time the records of BellSouth are retained was in error. In fact, testimony from the trial did not indicate that there were no calls, but ‘we have no record of those — any calls for those days.’ ... Furthermore, [Juror L.] made it clear that in the deliberations of the jury, the jury ignored the evidence of the phone records. [Hall’s] claim that these records left a false impression with the jury is not an issue and is therefore moot.”

We agree with the trial court’s ruling that had the jury heard the facts concerning the telephone records the outcome of the trial would not have been altered. The telephone records, like the other evidence, merely presented a conflict the jury was required to resolve in assessing Hall’s guilt.

The third requirement established in Frazier is “that [the] evidence tending to prove the witness’s perjury has been discovered since the trial.” This requirement has been met; the confusion over the telephone records was not discovered until after the trial and was not resolved until Chambers gave his affidavit following the trial.

The fourth and final requirement established in Frazier is “that [the] evidence could not have been discovered before or during trial by the exercise of due diligence.” This requirement goes squarely against Hall. Hall’s motion for a judgment of acquittal or for a new trial followed his third trial. The evidence concerning the telephone records had already been presented at the two previous trials. Hall had every opportunity to evaluate Chambers’s testimony before the start of the third trial, and he failed to exercise “due diligence” in finding the falsity of that testimony.

Therefore, because the second and fourth requirements of Frazier have not been established, the trial court’s denial of Hall’s motion for a new trial based on Hall’s perjured-testimony claim was not plain and palpable error; thus, the Court of Criminal Appeals’ affirmance of that denial was proper.

2. Ineffective assistance of trial counsel

Hall’s next argument is that his motion for a new trial should have been granted because, he says, his trial counsel rendered ineffective assistance. In his briefs to this Court, Hall asserts several specific ways in which, he argues, his trial counsel was ineffective. However, we granted his petition for a writ of certiorari to consider only one aspect of this argument: whether a defendant who is not entitled to a new trial under Frazier because his trial counsel failed to exercise due diligence in finding false testimony is entitled to a new trial because trial counsel was ineffective.

In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court established the standard for a claim of ineffective assistance of trial counsel:

“First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”

Therefore, to obtain postconviction relief on a claim of ineffective assistance of counsel under Strickland, Hall was required to prove “(1) that counsel did not provide reasonably effective assistance and (2) that counsel’s deficient performance prejudiced the petitioner.” Ex parte Land, 775 So.2d 847, 850 (Ala.2000).

We are presented with the issue whether Hall’s counsel’s failure to establish the fourth requirement of Frazier (i.e., her failure to use due diligence in discovering the falsity of Chambers’s testimony before or during the trial) is the equivalent of a showing under the first prong of Strickland that her performance was deficient. In other words, does counsel’s failure to identify Chambers’s testimony as false amount to the deficient performance contemplated in Strickland. However, it is not necessary to resolve this issue because we find that the second prong of the Strickland standard has not been satisfied.

In discussing the second prong of the Strickland standard, the United States Supreme Court stated:

“An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.
“... The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”

466 U.S. at 691-94,104 S.Ct. 2052.

It is reasonable to assume that if the second requirement of Frazier is established (“that there is a significant chance that had the jury heard the truth, it would have reached a different result”), then the second prong of Strickland (“there is a reasonable probability that ... the result of the proceeding would have been different”) is also satisfied. Conversely, as in this case, when the second requirement of Frazier has not been established, then the second prong of Strickland is likewise not satisfied.

We cannot say that Hall was prejudiced by his counsel’s failure to discover Chambers’s false testimony because we have already determined that truthful testimony as to the telephone records would not have altered the outcome of the trial. “An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” 466 U.S. at 691, 104 S.Ct. 2052. Consequently, Hall has failed to establish a claim of ineffective assistance of counsel because the second prong of the Strickland standard has not been satisfied.

Therefore, we find that the trial court’s denial of Hall’s motion for a new trial based on ineffective assistance of counsel was not plainly and palpably wrong, and we affirm the judgment of the Court of Criminal Appeals as to this issue.

B. Hall’s confession

A child who is taken into custody must be informed of his Miranda rights and, pursuant to Rule 11, Ala. R. Juv. P., he must be informed that he has the right to communicate with his parent or guardian and, if necessary, that reasonable means will be provided for him to do so. Smith v. State, 623 So.2d 369, 371 (Ala. Crim.App.1992). Concerning the custodial questioning of a child, Rule 11(B), Ala. R. Juv. P., states:

“Before the child is questioned about anything concerning the charge on which the child was arrested, the person asking the questions must inform the child of the following rights:
“(1) That the child has the right to counsel;
“(2) That if the child is unable to pay a lawyer and if the child’s parents or guardian have not provided a lawyer, one can be provided;
“(3) That the child is not required to say anything and anything the child says may be used against the child;
“(4) That if the child’s counsel, parent, or guardian is not present, then the child has the right to communicate with them, and that, if necessary, reasonable means will be provided to the child to do so.”

Thus, subsections (1), (2), and (3) of Rule 11(B) require that a child be informed of the same information as in the Miranda warning, and subsection (4) adds to the Miranda warning the requirement that a child must be informed that the child can communicate with his or her parent. E.C. v. State, 623 So.2d 364, 366 (Ala.Crim.App.1992). The rights afforded by this rule are commonly referred to as “juvenile Miranda” rights or “super-Miranda ” rights. Russell v. State, 739 So.2d 58, 66 (Ala.Crim.App.1999).

If, during custodial interrogation, a child makes an ambiguous request to communicate with his parent, the police have an affirmative duty to clarify that ambiguous request before they resume questioning the child. E.C., 623 So.2d at 367. In other words, when a child makes a statement during a custodial interrogation that may be construed as indicating a desire to communicate with his or her parent, the interrogation must be narrowed to one subject only: clarifying the child’s ambiguous request to speak with a parent. Id. Any statements taken after a child has made an ambiguous request to communicate with a parent, but before an effective waiver of that right has been clarified, are in violation of the child’s juvenile Miranda rights. Id. (citing Robinson v. State, 574 So.2d 910, 914 (Ala.Crim.App. 1990)).

In E.C., after the interrogating officer had given the accused 16-year-old his juvenile Miranda rights, the following exchange took place:

“ ‘Q.... Now do you understand what I’ve just told you?
“ A. Yes, sir.
“ ‘Q. All right, do you want [your mother] down here?
“ A. I can’t ... I ain’t got nobody to get her down here. I ain’t got no....
“ ‘Q. Well, have you got a lawyer?
“ A. I can get my ... yes, my mama got a lawyer.
“ ‘Q. Well, you want ... do you want to give me a statement?
“ A. What is that?
“ ‘Q. Huh?
“ A. What? I’m sorry?
“‘Q. Do you want to give me a statement now, after I’ve read you all these rights?
“ A. What a statement [sic]?
“ ‘Q. The taped statement I’m fixing to get from you.
“ A. Oh, yes, sir.
“ ‘Q. I had to read you all this.
“ A. Oh, yes, sir.
“ ‘Q. And, you ... you want to ... you want to talk about this incident.
“ A. Yes, sir.’ ”

623 So.2d at 366. The Court of Criminal Appeals held that this exchange amounted to an ambiguous request by the defendant to speak with his mother and that the failure of the interrogating officer to clarify that request before resuming questioning mandated the suppression of the child-defendant’s statements. Id. at 365. In response to the interrogating officer’s testimony as to how he had interpreted the child-defendant’s answer, the Court of Criminal Appeals stated: “The fact that the response was subject to ‘interpretation’ at all only underscores the fact that it was ambiguous to begin with.” Id. at 367.

In this case, Hall, who was 15 years old, was arrested at his home. At the time of the arrest, both Hall and Hall’s father told the police that they wanted Hall’s father to be present during any questioning. The police told them that the father could be present. ' The father went to the police station and waited outside the interrogation room.

When Hall was brought to the police station, he was taken into the interrogation room, handcuffed to the table in the room, and read his rights pursuant to Miranda and Rule 11, Ala. R. Juv. P. The parties dispute what occurred next.

According to Hall, before the police began questioning him, he asked, “Where is my daddy?” Hall told the police that he “thought [his] daddy was supposed to be [there] when [they were] questioning [him].” Hall testified that he was told not to worry about it, that his father was upstairs. Hall testified that he stood up to the police questioning at first, but he eventually told them “what they wanted to hear,” stating, ‘Tes, sir, keep them from attacking me, sir. I thought my dad was supposed to be in here.”

Additionally, Hall’s father testified that, at one point, a detective came out of the interrogation room complaining of a headache. Hall’s father testified that he asked the detective if they had begun questioning his son, and the detective replied, “He is lying but we will get it out of him.” Then the detective turned and went back into the interrogation room.

According to the police, after Hall was read his Miranda rights, he was specifically told, “You have the right to communicate with a parent or guardian before questioning, and if necessary, reasonable means will be provided to you to do so.” The State’s testimony indicated that Hall understood his rights, that he waived them, and that he freely spoke with the officers. The police officers testified that Hall never asked for his father to be present prior to confessing. Another of the interrogating officers testified that he knew that Hall’s father was at the police station and that he would have brought his father into the interrogation room if Hall had requested that he do so.

Therefore, Hall and the State presented conflicting evidence, which creates a question of fact to be resolved by the trial court:

“ ‘Where the evidence of voluntariness is conflicting, and even where there is credible testimony to the contrary, the trial judge’s finding of voluntariness must be upheld unless palpably contrary to the weight of the evidence. Ash v. State, 424 So.2d 1381, 1385 (Ala.Crim. App.1982).’ Whisenant v. State, 466 So.2d [995,] at 1001 [(Ala.Crim.App. 1984)]. The trial judge has a duty to resolve questions of fact regarding the voluntariness of a confession when presented with conflicting evidence on that issue. See Ex parte Johnson, [522 So.2d 234 (Ala.1988)]; Sales v. State, 432 So.2d 560 (Ala.Crim.App.1983). A finding of voluntariness need be supported only by a preponderance of the evidence. Jackson v. State, [516 So.2d 726 (Ala.Crim. App.1985)].”

Carr v. State, 545 So.2d 820, 824 (Ala. Crim.App.1989).

We find no reason to hold that the trial court’s determination that Hall’s statement was voluntary, based on the conflicting testimony of the police, on the one hand, and of Hall and his father, on the other, was contrary to the weight of the evidence. Therefore, we affirm the Court of Criminal Appeals’ judgment insofar as it holds that Hall’s confession was voluntary and that it was properly admitted into evidence at his trial.

For the aforementioned reasons, the judgment of the Court of Criminal Appeals is affirmed.

AFFIRMED.

MOORE, C.J., and BROWN, HARWOOD, WOODALL, and STUART, JJ., concur.

LYONS, J., concurs specially.

SEE and JOHNSTONE, JJ., dissent.

LYONS, Justice

(concurring specially).

Hall does not challenge the sufficiency of the evidence. On the other hand, the State does not argue that any error in the admission of the confession was harmless. Had the trial court erred in admitting the confession, we would reverse the judgment of the Court of Criminal Appeals and thereby not reach the question of the effect of the erroneous testimony offered in rebuttal to Hall’s alibi.

I concur with the conclusion in the main opinion that the trial court did not err in admitting the confession into evidence. The trial court resolved the diametrically conflicting evidence as to the administration of the juvenile Miranda warning and Hall’s willingness to proceed with the interrogation without a parent present against Hall and in favor of the State. This Court cannot overturn a trial court’s decision concerning conflicting evidence given at a suppression hearing “unless it is palpably contrary to the weight of the evidence.” State v. Smith, 715 So.2d 925, 928 (Ala.Crim.App.1998).

In determining the critical issue as to whether the absence of testimony contradicting Hall’s alibi would have led to a not-guilty verdict, we cannot disregard the fact of Hall’s confession. Nevertheless, I am troubled by the fact that on two prior occasions, two separate juries were unable to find Hall guilty of the same charges, presumably in face of the same confession and the same evidence contradicting Hall’s alibi. However, because Hall does not challenge the sufficiency of the evidence once the evidence contradicting the alibi is subtracted, I do not think he can be heard to say that there was a significant prospect of a not-guilty verdict had truthful evidence been presented.

      . The Court adopted this standard "to be used in those cases in which a sentence of death has not been imposed.” Frazier, 562 So.2d at 569. A separate standard was promulgated in Frazier for evaluating perjured testimony in death-penalty cases.

      . Most of Juror L.'s testimony at the hearing concerned her belief that Hall was innocent. However, pursuant to Rule 606(b), Ala. R. Evid., the trial court correctly considered only that part of Juror L.'s testimony that tended to support the verdict. Rule 606(b) states, in pertinent part:
      "Upon an inquiry into the validity of a verdict ..., a juror may not testify in impeachment of the verdict ... as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict ... or concerning the juror’s mental process in connection therewith.... Nothing herein precludes a juror from testifying in support of a verdict...."

      . Strickland spoke directly to counsel’s duty to investigate:
      ''[Cjounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.”
      466 U.S. at 691, 104 S.Ct. 2052.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).