author: CRAWLEY, Judge. YATES, Presiding Judge,

text:
    Leon LANEY v. Sarah Ann LANEY.
    2001143.
    Court of Civil Appeals of Alabama.
    April 26, 2002.
    Martha E. Williams, Cullman; and Pamela E. Nail, Cullman, for appellant.
    T.J. Carnes of Carnes & Carnes, Attorneys, P.C., Albertville, for appellee.
   CRAWLEY, Judge.

Leon Laney (the “husband”) and Sarah Ann Laney (the “wife”) were married in December 1998. Before the marriage, the parties executed an antenuptial agreement, which both parties agree is valid and enforceable. The parties separated in November 1999.

During the marriage, the parties jointly purchased a piece of real estate (the “Whitaker property”). Each party paid one-half of the $17,000 down payment. The remainder of the $35,000 purchase price was financed. The husband made all subsequent payments on the mortgage.

The wife owned a Pontiac automobile when the parties married. She sold the Pontiac early in the marriage. After the sale of the Pontiac, she drove automobiles provided for her use by the husband. The husband provided for the wife’s use a Buick automobile, a station wagon, and a Cadillac automobile. The wife was driving the Cadillac at the time the parties separated.

After a trial, the court divorced the parties. Among other things, the court ordered the Whitaker property sold and the proceeds of sale divided equally; it also awarded the wife the Cadillac, determining that it was a gift to the wife. The husband appeals.

The parties’ antenuptial agreement contains the following pertinent provisions:

“3. ... In the event of separation or dissolution of our marriage, we agree that:
“b. The net equity value of any marital property held jointly by the parties and existing at the time of separation or marital dissolution shall be equally divided behueen us; and
“11. Notwithstanding any other provision of this Agreement, but only by appropriate instrument, either of us may voluntarily transfer any of such person’s separate property or his or her share of any marital property to the other, whether during lifetime or at death. Neither of us intends by the Agreement to limit or restrict in any way the right of the other to receive any such voluntary transfer, but there is no Agreement or understanding between us that either of us shall provide for the other by will or in any other manner.
“13. We, the parties to this Agreement, contemplate that during the marriage we may acquire property which we intend to be jointly owned by husband and wife. In order to evidence this intent we will cause the title or other document or instrument which evidences ownership of the jointly owned property to include both names and, unless the ownership is to be an equal one-half interest, we shall also designate the percentage of ownership of [the husband] and [the wife]. We will also maintain records on jointly acquired property for which there is not title or documents evidencing ownership. In recognition that it may be difficult for an administrator, executor, judge, or other individual to make a determination as to whether property acquired after the marriage was intended to be joint or separate, we agree that unless there is a written title, document, or other instrument evidencing ownership in our joint names or unless there are records available evidencing ownership in our joint names, then such property shall be conclusively presumed to be the separate property of the party named in the title, document, or on any receipt, bill of sale, or other writing which indicate for whom, or by whom the property was acquired.”

Although the ore tenus presumption applies to the trial court’s findings of fact, no such presumption adheres to the trial court’s application of the law to those facts. Ex parte Agee, 669 So.2d 102, 104 (Ala.1995). The husband’s arguments are based upon the interpretation of certain provisions and terms in the parties’ ante-nuptial agreement; such interpretations, like the interpretation of unambiguous contracts, are questions of law. See Agee, 669 So.2d at 105; Stacey v. Saunders, 437 So.2d 1230, 1233 (Ala.1983).

The husband argues that the trial court erred by awarding the wife the Cadillac, which he says, was, as evidenced by the bill of sale, owned by his business. The trial court found that the husband had made a gift of the Cadillac to the wife. In support of the trial court’s judgment, the wife relies on paragraph 11 of the antenup-tial agreement, which says that neither party intends to restrict the right of either party to accept voluntary transfers of property from the other. The trial court indicated that it awarded the wife the Cadillac despite the fact that it was owned by the husband’s business because the husband had dealt with other items of personal property in a manner inconsistent with the antenuptial agreement. Specifically, the trial court appeared to be concerned about the sale of the wife’s Pontiac through her husband’s business.

The parties did allow the husband’s business to finance a third-party’s purchase of the Pontiac through an installment-sales contract requiring payments be made to the business. The husband had paid some, but apparently not all, of the proceeds of the sales contract for the Pontiac to the wife. In the divorce judgment, however, the trial court, enforcing the antenuptial agreement’s clear mandate that each party be entitled to the proceeds of the sale of his or her own separate property, ordered that the husband pay all remaining proceeds of the sale of the Pontiac to the wife within 30 days.

After considering paragraph 11, we conclude that the wife and the trial court failed to give effect to the first sentence of that paragraph, which states that either party may voluntarily transfer property to the other “only by appropriate instrument.” The documentary evidence, a bill of sale, clearly established that the car was, in fact, owned by the husband’s business and not by the parties jointly or by the wife alone. The determination that the Cadillac was a gift was based upon only the wife’s testimony that the husband told her that the car was to be hers. There was no evidence that the husband had, by any appropriate instrument, voluntarily transferred the Cadillac to the wife. The trial court failed to give effect to the plain language of the antenuptial agreement, and it erred by awarding the wife the Cadillac.

The husband also argues that the trial court erred in awarding the wife half of the equity in the Whitaker property upon its sale. He says that the antenuptial agreement’s use of the term “net equity,” in light of Agee, 669 So.2d at 105, requires that he be given credit for all payments he made on the mortgage on the property. We disagree. Although the Agee court did indicate that the husband in that case should be given credit for “expenditures on repairs and improvements” he made during the 10 years between the divorce and the sale of the marital residence, the court was concerned with whether a second mortgage taken out by the husband should be included in the computation of “net equity.” Id. at 105. Because nearly all of the funds realized from the mortgage transaction had been used to make repairs or improvements to the marital residence, the supreme court concluded that net equity should be based on the amount of equity after both mortgages were satisfied. Id. at 106.

The term “net equity” is not defined in the agreement. Generally, however, equity is “ ‘[t]he difference between the fair market value and [the] debt in property.’ ” Id. at 103 (quoting Black’s Law Dictionary 540(6th ed.1990)). The parties in the present case clearly knew how to protect their property from a claim by the other. The choice to purchase the Whitaker property jointly placed that property within the purview of paragraph 3.b. upon dissolution of the marriage. Had the husband intended to protect his pro rata investment in joint property, he could have drafted the antenuptial agreement to so reflect, or, as contemplated by paragraph 13, he could have designated his percentage of ownership in the Whitaker property. He did neither. The agreement is clear that the net equity value of jointly held property should be divided equally between the parties. We see no error in that portion of the trial court’s judgment ordering that the parties share equally in the profits from the sale of the Whitaker property.

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

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

PITTMAN, J., concurs.

THOMPSON and MURDOCK, JJ., concur in the result.

YATES, P.J., concurs in part and dissents in part.

YATES, Presiding Judge,

concurring in part and dissenting in part.

Although I agree that the trial court was correct in ordering that the parties share equally in the profits from the sale of the Whitaker property, I also believe the trial court was correct in awarding the wife the Cadillac automobile.

The husband is in the business of buying and selling real estate and automobiles. The wife sold the Pontiac automobile she owned before the marriage to a friend and former customer of husband’s. The payments on the Pontiac were made to the husband. After the wife sold the car, she drove a Buick automobile owned by the husband or his company. She later drove an older model station wagon. The wife testified that the husband brought the used 1996 Cadillac automobile to the courthouse where she worked and told her that the car was hers. The husband purchased the Cadillac on October 27, 1999, for $16,500, from Country Auto Sales, L.L.C. The bill of sale lists the husband’s corporation as the purchaser. There is a handwritten notation on the bill of sale indicating that Community Bank is the lien-holder.

The trial court stated in its order:

“The Court finds that the Plaintiff owned a Pontiac before the parties married. The Pontiac was financed. Plaintiff did not want to sell the Pontiac but testified she had trouble making the payments. Defendant sold Plaintiffs Pontiac at his place of business for a total purchase price (including interest) of $11,388.36. Defendant financed $10,638.36 on terms whereby the purchaser would pay his business $70.00 per week until the purchase price was paid. The Pontiac was financed and Defendant paid the funds (received from the purchaser) from his business account into Plaintiffs Redstone Federal Credit Union account and Plaintiff continued to make the monthly loan payments on the vehicle as they came due. After [the parties separated,] Plaintiff, with a credit card, paid off the indebtedness due on the Pontiac and Defendant continued to pay Plaintiff in monthly payments. There is still an outstanding amount owed to Plaintiff for said vehicle. The evidence disclosed that Defendant, at the time of trial, had paid a total of $4,540.00 (which consisted of [$4,380.00] Plaintiff gave Defendant credit for depositing in her account and $210.00 in additional payments brought out on cross examination she had missed). Defendant owes Plaintiff the sum of $6,848.36 for the remaining principal and interest he has collected or is due to be collected by him. A judgment is entered in favor of the Plaintiff and against the Defendant for [$4,380.00]. Said sum shall be paid within thirty (30) days of the entry of this judgment.
“Plaintiff did not like driving the Buick and made it well known to the Defendant. She drove an old station wagon for a while, then Defendant brought her a 1996 Cadillac Eldorado in October, 1999. The evidence was then conflicting as to what happened next. Defendant testified he only allowed her to have possession of the car to drive and they had discussed her buying the car from him for $16,500.00 (which was the original purchase price). Plaintiff testified that Defendant bought the car for her and gave her the car as a gift. The fact is, Plaintiffs original car had been sold by Defendant. Defendant did not like her driving the old station wagon and provided her the Cadillac (which was in the name of the business) after Plaintiff would not drive the Buick (which was also in the name of his business). It is interesting to note this was several months after the separation. The prenuptial agreement states in part that it is conclusively presumed that personal property titled in only one party’s name is the property of that party. The Plaintiff and Defendant actually dealt with personal property matters contrary to the antenuptial agreement. That is, he sold her automobile through his business in his business name. He now requests this Court strictly enforce the provision concerning the Cadillac because it is titled in his business. For the reasons stated above, to do so would not be equitable and finds the automobile was a gift. The Plaintiff is awarded the 1996 Eldorado Cadillac.”

I find Klyce v. Klyce, 429 So.2d 1081 (Ala.Civ.App.1983), to be persuasive. In that case, the parties had entered into a prenuptial agreement that provided that property acquired during the marriage and “ ‘held in the sole name of either party shall likewise be and remain the sole property of such party....’” Id. at 1082. The husband argued that the trial court abused its discretion in awarding the automobile to the wife. The husband gave the dealership from which the car was purchased a personal check. He then told the dealer to hold the check until he could send the dealer a check from his closely-held corporation. The husband sent the dealer the corporate check, and title to the car was placed in the corporation’s name. During the marriage, the wife was furnished several automobiles, all of which the corporation owned. Although the husband originally intended the car to be a gift, he argued that because title was in his corporation’s name the court had no authority to award the car to the wife. This court held that the trial court did not abuse its discretion in awarding the wife the car, despite the husband’s argument that title to the car was in his corporation’s name.

I would affirm the judgment of the trial court; therefore, I concur in part and dissent in part.

      . The complaint indicates that the parties were married in December 1998. The wife testified that they married in December 1997. However, she later agreed with counsel that the parties had been married only 11 months before their separation.

      . As a general rule, antenuptial agreements are valid and enforceable under Alabama law.
        Barnhill v. Barnhill, 386 So.2d 749, 751 (Ala.Civ.App.1980). However, "[bjecause of the confidential relationship of the two parties, such contracts are scrutinized by the courts to determine their justice and reasonableness.” Allison v. Stevens, 269 Ala. 288, 291, 112 So.2d 451, 453 (1959).


source: Caselaw Access Project

author: MURDOCK, Judge. YATES, Presiding Judge,

license: Public Domain

text:
    Rickey Lynn CLOUD v. Glenda Sue CLOUD.
    2001274.
    Court of Civil Appeals of Alabama.
    April 26, 2002.
    Rickey Lynn Cloud, pro se.
   MURDOCK, Judge.

On November 20, 1986, the trial court divorced Rickey Lynn Cloud and Glenda Sue Cloud, incorporating an agreement between the parties that, among other things, ordered the father to pay $374.40 per month in child support for the parties’ three minor children. The father petitioned for a modification in March 1997, because, he said, the oldest child had become self-supporting; after conducting an ore tenus proceeding, the trial court reduced the father’s child-support payment to $225 per month in September 1997.

In September 2000, the father filed a petition to modify his child-support obligation based upon a change in circumstances, namely, his incarceration in a state correctional facility. He simultaneously filed an affidavit of substantial hardship and a request to waive prepayment of the filing fee. The trial court denied the father’s request to waive prepayment of the filing fee, and the father appealed that ruling to this court. We treated that appeal as a petition for a writ of mandamus and directed the trial court in June 2001 to hear the petition without prepayment of the filing fee. Ex parte Cloud, No. 2000504, — So.2d — (Ala.Civ.App.2001) (table).

On April 10, 2001, the father filed a motion for the appointment of a commissioner to take his deposition. The trial court denied that motion. Thereafter, in compliance with this court’s writ of mandamus, the trial court accepted the father’s petition and set the case for trial to be held on September 12, 2001. The father filed a “Motion to Transport” on August 10, 2001, seeking to be transported to and present at the hearing; the trial court also denied that motion. On September 5, 2001, the father moved that the hearing be transcribed by a court reporter, stating, in part, that he “is incarcerated and will not be able to attend his hearing to have his child-support payments lowered.” The trial court entered an order on September 7, 2001, stating “[the father’s] motion to modify child support payments will be considered at trial on September 12, 2001.” On September 12, 2001, the trial court entered an order, stating, “at the call of the Docket, [the father] failing to appear, case is dismissed for failure to prosecute. Costs taxed to [the father].”

Our Supreme Court has stated that “a prisoner has no right to be removed from his place of confinement in order that he might appear and testify in his own behalf in a civil suit unrelated to his confinement.” Clements v. Moncrief, 549 So.2d 479, 481 (Ala.1989). However, that court has also said that a prisoner’s “proper course is to take his own oral or written deposition under Rule 30 or 31, [Ala. R. Civ. P.], to be used at trial as specifically provided in Rule 32(a)(3)(c), [Ala. R. Civ. P.].” Id. In order for a deposition of a prisoner to be taken in a civil action, whether upon oral examination or upon written questions, the trial court must grant leave. Rule 30(a) and 31(a), Ala. R. Civ. P. In this case, the trial court has prevented the father from following the “proper course” that the Supreme Court has specifically recognized a prisoner may take to present evidence on his behalf.

The father’s brief is admittedly not perfect nor “polished”; nevertheless, we conclude that it does not “substantially fail[] to comply with the requirements of Rule 28, [Ala. R.App. P.]” Compare McAliley v. McAliley, 638 So.2d 10, 10 (Ala.Civ.App.1994), and Braxton v. Stewart, 539 So.2d 284 (Ala.Civ.App.1988), with Propst v. Brown, 250 Ala. 282, 34 So.2d 497 (1948), and Thoman Engineers, Inc. v. McDonald, 57 Ala.App. 287, 328 So.2d 293 (Ala.Civ.App.1976); See also Rule 1, Ala. R.App. P. (providing that the Rules of Appellate Procedure “shall be construed so as to assure the just, speedy, and inexpensive determination of every appellate proceeding on its merits”).

We reverse the judgment of the trial court and remand the cause for the trial court either to permit the taking of the father’s deposition or to permit his attendance at a hearing on the merits of his petition.

REVERSED AND REMANDED.

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

YATES, P.J., dissents.

YATES, Presiding Judge,

dissenting.

Although Rickey Cloud petitioned the court for the appointment of a commissioner to take his deposition during his incarceration in order to preserve his testimony, his pro se brief fails to comply with Rule 28, Ala. R.App. P. The Alabama Rules of Appellate Procedure apply equally to members of the bar and to parties proceeding pro se. Jones v. Seibert, 624 So.2d 639 (Ala.Civ.App.1993). Although the result may sometimes seem harsh, this court has consistently held that when an appellant fails to comply with Rule 28, this court will affirm the judgment of the trial court. Black v. Allen, 587 So.2d 349 (Ala.Civ.App.1991). Therefore, I dissent.


author:
YATES, Presiding Judge.
     PITTMAN, Judge,

text:
    Reba PROCISE v. Larry Wayne MARLER.
    2000749.
    Court of Civil Appeals of Alabama.
    April 26, 2002.

      Judy H. Barganier, Montgomery, for appellant.
   YATES, Presiding Judge.

This is an appeal from a postdivorce order regarding the payment of postminority support for college education expenses. Reba Procise (“the mother”) and Larry Wayne Marler (“the father”) were divorced on November 25, 1986; the divorce judgment established the custody of, visitation rights as to, and support obligations for, the parties’ two daughters. Over the years, modifications to those provisions were made. In 1996, the mother filed a petition to modify, requesting, among other things, that the father pay college expenses for the parties’ older child. The father counter-petitioned to modify. The parties reached an agreement on all the issues raised in the petitions. They also reached an agreement as to college expenses for the second child. At the hearing on the agreement, the following discussion occurred:

“THE COURT: Okay. Anything else?
“[COUNSEL FOR THE FATHER]: And, Judge, for the child support my client has also agreed to continue to pay the [$275] a month to [R.M.] once she begins college as his contribution to her college.
“THE COURT: That’s the second child?
“[COUNSEL FOR THE FATHER]: The second child.
“THE COURT: So, the college education obligation for the second child with the same requirements from that child and that the contribution of the father shall be X dollars and the mother shall be responsible for the remainder?
“[COUNSEL FOR THE FATHER]: Yes, sir.”

The trial court was to incorporate the terms of the agreement into the judgment. However, instead, the judgment contained the following statement: “[Responsibility of the parties to provide for the college education of the youngest child of the parties, [R.M.], is hereby reserved for review until the minor child attains the age of 19 years.”

On October 3, 2000, the father filed a request to terminate the income withholding for child support. The mother filed an “Objection to Termination of Child Support,” arguing that the father in 1996 had agreed to pay postminority support. On November 20, 2000, the father moved for a summary judgment, arguing that because R.M. had reached the age of majority without an order entered by the trial court regarding college education expenses, he was under no obligation to pay those expenses. On December 8, 2000, the trial court set the matter for a hearing on February 26, 2001. Also on December 8, 2000, the trial court entered an order terminating the existing income-withholding order on the father’s wages. On January 9, 2001, the trial court cancelled the upcoming summary-judgment hearing and entered the following order:

“Prior to the date of the hearing, the Former Wife was to have filed for college [expenses] for the younger child, if she deemed it necessary, within a specified period of time. This was not done.
“It is contemplated that the Former Husband will aid the youngest child toward her college career, especially taking into consideration the fact that the youngest child is in college at this time.
“It is hoped that both parents will work with this child to obtain the college degree desired, but from the standpoint of the law this Court has no authority to make either parent contribute.”

The mother filed a motion to alter, amend, or vacate the judgment; with her motion she filed an affidavit and exhibits. One of the exhibits was the transcription of the portion of the hearing held in November 1996 regarding the parties’ agreement. The mother also requested a hearing on her motion to alter, amend, or vacate the judgment. Following a status conference at which counsel for both parties were present, the trial court denied the mother’s motion without a hearing. The mother appeals.

Rule 59(g), Ala. R. Civ. P., provides that a posttrial motion “shall not be ruled upon until the parties have had an opportunity to be heard thereon.” “ ‘Denial of a Rule 59 motion without a hearing is reversible error if the movant requested a hearing and harmful error is found.’ ” Long v. Long, 752 So.2d 512, 513 (Ala.Civ.App.1999), quoting Lowe v. Lowe, 631 So.2d 1040, 1041 (Ala.Civ.App.1993). The question is whether there was probable merit to the mother’s Rule 59 motion. We hold that there was, based on the parties agreement, made in open court, regarding postminority support.

In Floyd v. Abercrombie, 816 So.2d 1051, 1054 (Ala.Civ.App.2001), this court stated:

“In Ex parte Bayliss, 550 So.2d 986 (Ala.1989), the Supreme Court of Alabama considered the issue whether a trial court has jurisdiction to require parents to provide postminority support for college education to children of a marriage terminated by divorce. The court held that because § 30-3-1 [Ala. Code 1975,] does not use the qualifier ‘minor’ to modify ‘children,’ trial courts have jurisdiction to assure ‘that the children of divorced parents, who are minors at the time of the divorce, are given the same right to a college education before and after they reach the age of 19 years that they probably would have had if their parents had not divorced.’ Ex parte Bayliss, 550 So.2d at 995. In so holding, however, the Bayliss • court placed an important fundamental qualification on postminority-support jurisdiction:
“ ‘In a proceeding for dissolution of marriage or a modification of a divorce judgment, a trial court may award sums of money out of the property and income of either or both parents for the post-minority education of a child of that dissolved marriage, when application is made therefore, as in the case at issue, before the child attains the age of majority’
“Ex parte Bayliss, 550 So.2d at 987.”

As this court noted in Floyd, the power of the trial court to award postminority support is contingent upon a parent’s applying for such support during the period of the child’s minority.

“However, it has long been recognized that parties may agree between themselves to pay support beyond a child’s minority, and that such agreements are enforceable. Despite the father’s assertion that [Ex parte] Bayliss[, 550 So.2d 986 (Ala.1989),] unconditionally requires the filing of a petition prior to the child’s majority, and, therefore, precluded the trial court from properly ordering post-minority support in this case, we see no logical reason for extending that rule to the situation in which a prior agreement between the parties is sought to be enforced. Nor do we believe that such an agreement, voluntarily entered into by the father, may be legally enforced only when filed with a court before the child’s majority.”

Jackson v. Nelson, 686 So.2d 338, 339 (Ala.Civ.App.1996) (citations omitted).

In Jackson, this court held that the failure to file a petition for postminority support during the child’s minority did not defeat a parent’s agreement to pay support beyond the child’s minority. In the present case, the mother did not file a petition for postminority support before the child turned 19. However, the record indicates that the parties agreed in 1996, at the hearing on the parties’ agreement as to the modification, that the father would pay $275 per month “to [R.M.] once she begins college as his contribution to her college.” Section 34-3-21, Ala.Code 1975, provides that “[a]n attorney has authority to bind his client, in any action or proceeding, by any agreement in relation to such case, made in writing, or by an entry to be made on the minutes of the court.” See also Skipper v. Skipper, 628 So.2d 656 (Ala.Civ.App.1993)(the trial court did not abuse its discretion in enforcing the agreement as to custody and visitation made in open court).

In Campbell v. Campbell, 827 So.2d 111 (Ala.Civ.App.2002), this court held that the father’s child-support obligation did not automatically terminate when the parties’ youngest child reached the age of majority, where the original divorce judgment provided that the parties had agreed that the father would pay child support to the mother “ ‘so long as the minor children born of the marriage are enrolled in college’ ” and “ ‘for a period of 4 years from the date the youngest child graduates from High School.’ ” 827 So.2d at 112 (footnote omitted).

Accordingly, the judgment of the trial court is reversed, and the ease is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

THOMPSON and MURDOCK, JJ., concur.

CRAWLEY, J., concurs in the result.

PITTMAN, J., dissents.

PITTMAN, Judge,

dissenting.

Because I would affirm the trial court’s judgment, I must respectfully dissent. Although a trial court errs by not granting a hearing on a Rule 59, Ala. R. Civ. P., motion, our supreme court has held that such error is not necessarily reversible error. See Kitchens v. Maye, 623 So.2d 1082, 1088 (Ala.1993). Harmless error occurs, within this context,

“ ‘where there is either no probable merit in the grounds asserted in the motion, or where the appellate court resolves the issues presented therein, as a matter of law, adversely to the movant, by application of the same objective standard of review as that applied in the trial court.’ ”

Kitchens v. Maye, 623 So.2d at 1088-89, quoting Greene v. Thompson, 554 So.2d 376, 381 (Ala.1989). Failure to grant a hearing is reversible error only if it “has probably injuriously affected substantial rights of the parties.” Rule 45, Ala. R.App. P.

A thorough review of the record reveals that the trial court did not commit reversible error when it denied the wife’s hearing request contained in her Rule 59(e) motion. Although the wife’s motion to alter, amend, or vacate the judgment contained exhibits that would indicate that an oral agreement to pay for the younger child’s college education was reached during the November 1996 hearing, that agreement was not contained in the subsequent court order. While the wife may have an enforceable oral contract, see Abbott v. Hurst, 643 So.2d 589 (Ala.1994), she cannot attempt to enforce it in the domestic court. The trial court correctly read Ex parte Bayliss, 550 So.2d 986 (Ala.1989), to determine that it had no jurisdiction over the parties after the younger child reached the age of 19. A trial court may award postminority educational support of a child of a dissolved marriage when application is made before the child “attains the age of majority.” Ex parte Bayliss, 550 So.2d at 987.

This court has recently reiterated the state of the law on applications for postmi-nority educational support: “the trial court retains jurisdiction over the children of divorced parents only ‘during the children’s infancy.’ ” Floyd v. Abercrombie, 816 So.2d 1051 (Ala.Civ.App.2001), quoting Ex parte Barnard, 581 So.2d 489, 490 (Ala.1991). Furthermore, “[i]f the person for whom support is sought becomes an adult, and loses the status of a ‘child,’ that status cannot be restored, and the jurisdiction of the trial court cannot be resurrected.” Floyd v. Abercrombie, 816 So.2d at 1055. The evidence clearly indicates that the younger child turned 19 years old before the husband’s request for termination of support, which request preceded the wife’s filing of any motions concerning the younger child’s college education. Because I would conclude that the trial court did not have jurisdiction to award postminority educational support, I would also conclude that the failure to hold a hearing on the mother’s motion is not reversible error.

      . This case was originally assigned to another judge on the Court of Civil Appeals. It was reassigned to Presiding Judge Yates on March 11, 2002.


author: PITTMAN, Judge.

text:
    William H. OATES and Lura A. Oates v. STATE DEPARTMENT OF TRANSPORTATION.
    2010058.
    Court of Civil Appeals of Alabama.
    April 26, 2002.

      Yon G. Memory and James L. Day of Von G. Memory, P.A., Montgomery, for appellants.
    Jimmy Jacobs, Montgomery, for appel-lee.
   PITTMAN, Judge.

This is an appeal of a judgment entered on a jury verdict in a condemnation case. Both the Department of Transportation (“DOT”) and William Oates and Lura Oates appealed to the circuit court an award of damages by the Montgomery County Probate Judge for property condemned for a road project known as the “outer loop.” In accordance with § 18-1A-151, Ala.Code 1975, certain issues— specifically property identification, the highest and best use of the property, and damages — were reserved for the jury to determine. DOT and the Oateses previously stipulated that DOT was entitled to an order of condemnation.

Following their appeal to the circuit court, the Oateses and DOT conducted discovery and proceeded to a jury trial on October 18-20, 2000. Counsel for DOT requested that witnesses be excluded from the courtroom during the testimony of other witnesses. See Rule 615, Ala. R. Evid. The trial court granted this request; however, on the afternoon of the first day of trial, two of the Oateses’ witnesses entered the courtroom during the cross-examination of one of DOT’s witnesses. Neither of the Oateses’ attorneys noticed the presence of the excluded witnesses until court recessed for the day. The following day, upon an objection by DOT’s counsel, the trial court ruled that Oateses’ two expert witnesses, who had violated the rule the previous day, would not be allowed to testify.

During the second day of trial, the Oateses offered a four and one-half minute videotape of the condition of their property prior to its condemnation. The tape contained various views of the Oates’s property, including the mobile homes on the property, the outlying buildings, and the landscaping; these items were the subject of the condemnation action and the focal point of the damages issue.

The jury began deliberations on October 20, 2000. Although the videocassette was taken into the jury room, there was no videotape player or television in the jury room. Upon objection by the Oateses’ attorneys, the trial court stated that a videotape player and a television would be provided if the jury specifically requested them. Neither the objection nor the trial court’s response is contained in the record on appeal. At the conclusion of the presentation of evidence, the trial court charged the jury from instructions submitted by DOT’s counsel.

The jury returned a verdict for the Oateses and assessed damages in the amount of $171,147; the trial court entered a final judgment against DOT in that amount on October 26, 2000. The Oateses filed a postjudgment motion, which the trial court denied on November 22, 2000. The Oateses filed a timely appeal to the supreme court; that court transferred the case to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

The Oateses argue three issues on appeal: (1) did the trial court improperly prohibit two of the Oateses’ expert witnesses from testifying; (2) did the trial court err by not supplying the jury, during its deliberations, with a videotape player and a television to play the videotape placed in evidence; and (3) did the trial court improperly charge the jury regarding damages. The standard of review in condemnation cases is highly deferential. See Brothers v. Holloway, 692 So.2d 845, 848 (Ala.Civ.App.1997). “ ‘In condemnation cases, the trial court’s judgment is to be affirmed unless the verdict is not supported by competent evidence, is against the preponderance of the evidence, or is palpably wrong or manifestly unjust.’ ” Moss v. Jefferson County, 674 So.2d 569, 571 (Ala.Civ.App.1995), quoting State Highway Dep’t v. Lawford, 611 So.2d 285, 287 (Ala.1992).

The Oateses planned to call four expert witnesses to testify on the fair market value of their property that was condemned by DOT. On appeal, they argue that the trial court erred when it excluded two of the witnesses who violated Rule 615 regarding the sequestration of witnesses. Whether to exclude witnesses is a matter generally left to the trial court’s discretion. See Faulkner v. Walters, 661 So.2d 227, 230 (Ala.1995). This decision will not be disturbed on appeal absent an abuse of discretion by the trial court. See Camp v. General Motors Corp., 454 So.2d 958, 959 (Ala.1984).

The Oateses assert that, if a witness violates the exclusionary rule, a trial court is required to sanction trial counsel or to give remedial instructions to the jury rather than to completely prohibit the witnesses from testifying. We disagree. In most cases involving the exclusion of witnesses during trial, the appealing party is arguing that the court should have excluded witnesses who violated Rule 615. In this case, however, the Oateses argue that the trial court should not have prohibited their two experts from testifying. One excluded witness, Glenda Montiel, a master gardener, would have testified to the value of the various trees, plants, and shrubs on the Oateses property. The other witness, Houghton Smith, who is in the mobile home business, would have given an estimate of the fair market value of the two mobile homes used by the Oateses as their primary residence.

The record reveals that the testimony of these two witnesses would have been largely cumulative to the other testimony offered by the Oateses. Both the Oateses testified to the amount they paid for the land and the cost of the improvements they had made. Mrs. Oates testified on the value of using the land as a mobile home park, which the Oateses argued was the highest and best use of their land. Mr. Oates testified concerning the value of the mobile homes and the overall value of the property at the time it was condemned. One of the other two expert witnesses called by the Oateses testified as to the appraised value of the land. The other expert witness gave testimony regarding the design and permits needed for a mobile home park, which the Oateses maintained was the best and highest use of their property. Because the Oateses either testified themselves or used the other expert witnesses to testify to the same issues of property valuation, we cannot say that the excluded witnesses’ testimony was so essential to their case that excluding them was an abuse of discretion. Based on the foregoing, we conclude that there was no abuse of discretion by the trial court in prohibiting the witnesses who violated the exclusionary rule from testifying. See Rule 615, Ala. R. Evid.

The second argument on appeal is that the trial court erred by failing to place a videotape player and a television in the jury-deliberation room. Historically, our supreme court has upheld the use of visual aids to assist the jury in reaching its decision. See Southern Energy Homes, Inc. v. Washington, 774 So.2d 505, 515 (Ala.2000). In condemnation cases, § 18-1A-191, Ala. Code 1975, provides an opportunity for jurors personally to view the subject property. Instead of taking the jury to the site, the Oateses properly introduced a videotape of the property before it was condemned by DOT and altered. When the jury retired to deliberate, a videotape player and a television were not provided for them. Off the record, the trial court stated that this equipment would be provided upon request by the jury. The Oateses cite no authority, and we could find none, requiring a trial court to provide such equipment during a jury’s deliberations. Therefore, we conclude that the trial court did not err in failing to provide that equipment solely at the request of the Oateses and in the absence of a request to do so by the jury.

The final argument on appeal is that the trial court misled the jury by failing to give correct instructions on the issue of damages. The trial court gave numerous instructions taken from the Alabama Pattern Jury Instructions: Civil. In chambers before the trial court finished charging the jury, counsel for the Oateses objected to two specific charges: one regarding the value to be placed on expert testimony and the second regarding the words “if any” in the charge relating to awarding damages. The trial court then went back into open court with the jury, the parties, and the attorneys present and stated:

“Now, during the charge, I charged you on expert witnesses. I will charge you now that you are not bound by the testimony of the expert witnesses or the testimony or the contentions of the Department of Transportation or the [Oateses]. Your job is to find the fair market value of the property based on using the standard that I charged you on.
“I also stated to you during the charge ‘in awarding damages, if any.’ Well, this is a condemnation, and there is not any question in this case. Damages are a question. So you are to decide — strike ‘if any.’ Decide what the true damages are in this case. All right. And what the value of the property is to be assessed as.
“Ladies and gentlemen of the jury, you may retire to the jury room.”

The trial court cured any error that had occurred during its instructions to the jury by instructing the jury to strike its previous qualifying phrase “if any.” Therefore, the trial court committed no error in instructing the jury.

The trial court’s judgment is due to be affirmed.

AFFIRMED.

CRAWLEY, J., concurs.

YATES, P.J., and THOMPSON and MURDOCK, JJ., concur in the result.


text:
    Nancy Lou GAMBLE et al. v. Melissa L. SEGERS et al.
    2001215.
    Court of Civil Appeals of Alabama.
    May 3, 2002.

      John D. Coggin, Centre, for appellants.
   PITTMAN, Judge.

Nancy Lou Gamble appeals the trial court’s order placing custody of her grandchild with Melissa L. Segers. In May 1999 the trial court determined that Arthur Steven Rich (“the father”) and Melissa L. Segers (“the mother”), although unmarried, were th§ natural parents of M.B.R. (“the child”), born in December 1998. The trial court awarded joint custody of the child to the parents and awarded primary physical custody to the mother. The court also allowed Gamble (“the paternal grandmother”) two days per week visitation, including overnight visitation. In November 1999, in response to a petition to modify custody, the trial court awarded “temporary primary physical custody” to the paternal grandmother. On July 18, 2000, the trial court entered an order placing custody with the paternal grandmother and giving the mother and the maternal grandmother overnight visitation every other weekend from 6:00 p.m. on Friday until 4:00 p.m. on Sunday.

On January 29, 2001, the mother filed a petition requesting that custody of the child be returned to her. In her petition she alleged there had been a material change in circumstances; that she could provide a loving, stable home for the child; and that to return custody to her would be in the child’s best interest. The paternal grandmother answered; she also filed a counter-petition alleging that she had custody of the child for more than a year preceding the filing of the mother’s petition; that the mother is a habitual drug user who is not fit to have care, custody, and control of the child; and that the mother should be ordered to pay child support in accordance with the child-support guidelines.

The case was heard ore tenus on June 20 and June 29, 2001. During the hearing, the following facts were adduced by the evidence. The father had been either incarcerated or under house arrest for various drug-related offenses for 31 months preceding the hearing. The evidence also indicates that he last tested positive for drugs - in April 2000. In April 2000 the wife was placed on probation for five years as a result of a drug-related conviction. Since June 2000, the mother had completed a drug-rehabilitation program and had been randomly screened for drugs with no positive readings. Immediately preceding the court hearing, she had signed a lease for a two-bedroom residence in order to move out of her mother’s home and to care for her child. A month or two earlier, the mother had taken a position as a waitress at “Fibber’s,” and was making an average of $250 per week, including salary and tips. On cross-examination, the mother admitted that she had been arraigned on a felony drug-possession charge two months before the custody hearing. She also stated that on those weekends when she picked up the child for visitation, she often left the child with the maternal grandmother.

The maternal grandmother’s neighbor, Katheryn McDonald, stated that since the child’s birth, she had seen the maternal grandmother taking care of the child, but had not seen the mother caring for the child. She also noted that a number of young men came to visit the mother and at least one man spent the night on numerous occasions over a period of two or three months. McDonald stated that the mother and one male visitor took the child on a trip to Florida with them at least six months before the hearing. She also testified that on one occasion the maternal grandmother and the mother had a very loud, verbally abusive argument that became physical and that the child was between them during the altercation. On another occasion the mother had cursed McDonald, using profanity in the child’s presence.

McDonald’s son, Gary Barrett, had moved into a trailer behind his mother’s house in September or October 2000. He testified that he had witnessed several fights between the mother and the maternal grandmother that took place outdoors. He once saw the mother snatch the child out of the paternal grandmother’s arms and hit the child for not going inside to use the bathroom.

Linda Otis, a Department of Human Resources (“DHR”) case worker, testified that she knew all the parties involved in the proceeding. Her file indicated that the mother had tested positive for drugs in November 1999 and that she had counseled the paternal grandmother not to let the mother take the child for visitation if the mother continued to use drugs. In October 2000, Otis had a report that the police had been called to stop an argument between the mother and her mother, who were cursing and arguing outside the maternal grandmother’s home. In January 2001, the police were called to stop a physical fight between the mother and the paternal grandmother. The incident was at the maternal grandmother’s home, where the mother hit the paternal grandmother, who was holding the child. The file also contained an April 2001 report stating that the mother and her mother were arguing, yelling, and cursing at each other outside the family home; because the child was not present during the argument, DHR took no action. The final report in the DHR file, dated May 3, 2001, indicated that the mother and her mother had had another loud argument — cursing and yelling; this time the child was present and was reported to be upset and crying. That investigation was pending at the time of the hearing. Based on the evidence in the DHR file, Otis stated that if DHR had custody of the child, it would not return the child to the mother yet; the mother would have to prove that she could keep a job and establish her own residence for some time before DHR would consider returning custody of the child to her.

Whit Latham, a probation and parole officer who monitors the mother, testified that he knew she was seeing an undesirable character and that he warned her to stay away from him. Latham stated that during the time the mother has been on parole, she has had several jobs, most lasting only a few months. Latham compared the paternal grandmother’s stable home environment with the mother’s situation. He concluded that the mother did not presently have a stable home environment in which to raise a child.

Kay Gamble, the paternal grandmother’s sister-in-law, testified that the child was loved by the entire extended family. She stated that the child has been happy and well adjusted living with the paternal grandmother. She testified that the mother had a temper and that she had on one occasion cut the tires on the paternal grandmother’s automobile.

The paternal grandmother testified that she works a 12-hour shift 15 days each month. This means that when she works, her workday runs either from 8 a.m. to 8 p.m. or from 8 p.m. to 8 a.m. When she is working, the child is not put in day care, but is kept by the paternal grandmother’s sister-in-law or by her daughter. During the last six months, the mother had been exercising her visitation rights about 12 days per month. The paternal grandmother stated that she believed that the mother had stopped using drugs, but that she was still seeing the same people who had gotten her into trouble previously. The paternal grandmother testified she told the mother that if she could clean up her lifestyle and provide a stable home for the child, the paternal grandmother would not object to the mother’s getting custody. The paternal grandmother stated that she had not seen any lasting changes in the mother sufficient to justify her regaining custody. The paternal grandmother said the fact that the mother might be sentenced to another jail term led her to believe that the mother is not yet a fit person to be the custodian of the child.

On July 18, 2001, the trial court entered an order awarding custody of the child to the mother and ordering the father to pay child support in the amount of $147 each month. The trial court noted that because the paternal grandmother had physical custody of the child since November 1999, all parties to the proceeding should ensure contact between the child and the paternal grandmother “during the period of the child’s adjustment to the change of custody.”

The paternal grandmother appeals, alleging three grounds of error. These grounds are actually sub-issues of the same basic question: when is a natural parent’s prima facie right to custody su-perceded by a third party? The law in Alabama is well settled that a natural parent has a prima facie right to custody of his or her child over a third party. See Gurley v. Kennemore, 668 So.2d 1 (Ala.Civ.App.1993); Ex parte Terry, 494 So.2d 628 (Ala.1986). However, the natural parent’s prima facie right to custody does not survive a voluntary forfeiture of custody or a prior judgment removing custody from the natural parent and awarding it to a non-parent. McLendon v. McLendon, 455 So.2d 863, 865 (Ala.1984). In returning custody of the child to the mother, the trial court may have applied the wrong standard. It is not enough that the parent show that the parent has reformed his or her lifestyle or improved his or her financial position; the parent must show both that he or she is fit and that the custody change materially promotes the best interests and welfare of the child. McLendon, 455 So.2d at 866.

The record is clear that the paternal grandmother was awarded temporary custody of the child in November 1999, as the mother was facing sentencing for her first drug conviction. By an order dated July 18, 2000, the trial court awarded the paternal grandmother custody of the child and awarded the mother specific visitation rights. Those orders, removing the child from her natural parent to place her with a third party, implicate the McLendon standard in any future child-custody determination. Thus, the mother needed to prove not only her fitness, but also the fact that the change in custody would materially promote the best interests of the child and would outweigh the inherent disruptive effects of the change in custody. See Gurley v. Kennemore, 668 So.2d at 2-3.

The mother offered testimony that she had taken a job in the last two months that provided enough income for her to rent a two-bedroom mobile home. She also introduced evidence indicating that she had completed a drug-rehabilitation program and that she was being regularly screened for drug use. However, a thorough review of the record reveals no evidence from which a court could conclude that a change in custody at this time will “materially promote the best interests and welfare of the child.”

The record verifies that the paternal grandmother has been the child’s custodian and primary caregiver since the child was 11 months old. We have carefully reviewed all the testimony during the two-day hearing and simply cannot find any ground on which to conclude that the mother met her burden of proof. The child is receiving excellent care from the paternal grandmother and is able to see both her parents at their convenience. Until the natural mother is able to illustrate how a change of custody will materially promote the best interests and welfare of the child so as to outweigh the disruption caused by such change of custody, the correct resolution is to leave the custody of the child with the paternal grandmother. Therefore, we reverse the trial court’s order awarding custody to the natural mother, and we remand this case to the trial court for an entry of an order consistent with this opinion.

REVERSED AND REMANDED.

YATES, P.J., and CRAWLEY, THOMPSON, and MURDOCK, JJ., concur.


author: McMILLAN, Presiding Judge. McMILLAN, Presiding Judge.

text:
    Darrell SPRATT v. STATE.
    CR-99-1957.
    Court of Criminal Appeals of Alabama.
    May 25, 2001.
    Opinion on Return to Remand Oct. 26, 2001.
    Rehearing Denied Jan. 25, 2002.
    Certiorari Denied April 19, 2002 Alabama Supreme Court 1010876.

      J. Tony Glenn, Hamilton, for appellant.
    Bill Pryor, atty. gen., and Andy Scott Poole, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

The appellant, Darrell Spratt, was found guilty of robbery in the third degree, and the trial court sentenced him as a habitual offender to life imprisonment.

The State’s evidence at trial tended to show the following. On the night of August 2, 1999, a man entered the Weston Quick Stop convenience store and asked the assistant manager, Ruth Abies, for change. As she was handing it to him, the man struck her in the mouth with his fist. He then began to remove money from the open cash register. James Abies, the victim’s husband, was seated at a table in the store when the man entered. While the man was leaned over removing the money, James Abies came up behind him, struck him with a chair, and chased him outside. James Abies stated that he saw the robber drive away in a red automobile with a Mississippi license tag, number “JPT681.” James and Ruth Abies both positively identified the appellant in court as the man who had robbed the Weston Quick Stop. Robert Harper, a Mississippi police officer, identified the appellant in court as the person to whom he issued two traffic citations on July 27,1999, in Tupelo, Mississippi. Harper stated that the appellant was driving a red Nissan automobile with Lee County, Mississippi, license tag “JTZ681.” The appellant testified in his own behalf that he was “out of town” when the Weston Quick Stop was robbed and that he did not commit the offense.

I.

The appellant contends that the State violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), by striking the only black member from the venire. He argues that the prosecutor’s reason for striking the member was not race neutral, because he failed to ask the veniremember about any prejudice she might harbor as a result of her son’s prior dealings with law-enforcement officials.

The prosecutor’s reason for striking a juror must be a “clear, specific, and legitimate” reason, which “relates to the particular case to be tried.” Ex parte Branch, 526 So.2d 609, 623 (Ala.1987). Here, the prosecutor stated that he struck the veniremember because her son had been tried on two occasions by the same judge and prosecutor who were trying the present case. He further stated that the son’s probation in another county had been revoked and the son had been sentenced to 13 years in the penitentiary as a result of the prosecution.

The appellant did not show that the prosecutor’s reason was insufficient or pretextual. Peremptory strikes of jurors because they have relatives who have been prosecuted by the district attorney’s office are not racially discriminatory. Head v. State, 610 So.2d 1202 (Ala.Crim.App.1992). The district attorney’s prosecution of a member of a veniremember’s family is a race-neutral reason for a peremptory strike. Holton v. State, 590 So.2d 914 (Ala.Crim.App.1990). Therefore, the trial court properly denied the appellant’s Bat-son motion.

II.

The appellant’s second contention is that he was denied due process. Specifically, he argues that the trial court refused to grant him a preliminary hearing before he was indicted, that the court failed to appoint counsel to represent him until one week before trial, and that nothing in the record indicates that he was granted an initial appearance within 72 hours after his arrest.

Rule 5.1(a), Ala.R.Crim.P., provides that, within 30 days of arrest, a defendant may demand a preliminary hearing and provides further that, if a hearing is demanded, it must be held within 21 days. The appellant was arrested on August 10,1999. He stated in a March 13, 2000, pro se motion that he requested a preliminary hearing on August 16, 1999. However, no such demand appears in the record on appeal. It is the duty of the appellant to provide a correct record to the appellate court. Jordan v. State, 607 So.2d 333 (Ala.Crim.App.1992). This court will not presume error from a silent record. Ex parte Robinson, 444 So.2d 884 (Ala.1983).

Moreover, even if the demand had been included in the record, the appellant failed to state a claim of reversible error. The appellant was indicted on September 14, 1999. In Duncan v. State, 369 So.2d 885, 887 (Ala.Crim.App.1979), this court stated the following with regard to the denial of a preliminary hearing:

“The appellant’s remedy in a preliminary hearing would have been dismissal of the charge if there is a lack of probable cause. The returning of an indictment is a finding that probable cause does exist. There is still no constitutional requirement in Alabama that there be two inquiries into probable cause. Constitutionally, a preliminary hearing is not necessary to satisfy the requirements of due process, and the fact that there was no preliminary hearing in cases prior to the enactment of the statute in question [§ 15-11-1] has had no bearing on the validity of an indictment or subsequent proceedings.
“While the appellant’s statutory right to a preliminary hearing may have been infringed in the instant case, we hold that no reversible error results when an indictment has been returned against the accused. It would be folly on the part of this court to reverse a case in order to require a repetitious inquiry into probable cause where such had already been determined by the grand jury. For this reason, we hold that any error committed by the trial court in not granting the appellant a preliminary hearing was harmless.”

(Citations omitted.)

With regard to the appellant’s claim that counsel was not timely appointed, the record is insufficient to review that claim. This issue will be considered after the trial court has developed the record as specified in Part III of this opinion and after that court has returned that record to this court for review.

The appellant’s third claim, that he was not granted an initial appearance within 72 hours, cannot be considered on appeal. Nothing in the record indicates that this issue was presented at the trial court level. “This court will not consider an argument raised for the first time on appeal; its review is limited to evidence and arguments considered by the trial court.” Eastland v. State, 677 So.2d 1275, 1276 (Ala.Crim.App.1996).

III.

The appellant contends that the trial court erred by allowing him to be tried “without first arraigning him” and by failing to appoint counsel to represent him “until one week prior to trial.” He argues that, although the arraignment docket listed his name, “nothing indicated that he was arraigned with counsel.”

The State asks this court to remand the case to the trial court, noting that the record on appeal is not clear with regard to either of the appellant’s claims. The clerk’s record includes two documents entitled “Case Action Summary,” which contain no relevant information. The trial court has provided this court with a third document entitled “Case Action Summary,” which also is insufficient to resolve the appellant’s claims.

With regard to the issue of arraignment, the appellant testified at trial that “October 29th I was given arrangement [sic].” He also filed, pro se, a document entitled “Rule 14.2[,] Proceeding At Arraignment; Pleas,” in which he stated that the trial court “fail[ed] to follow the above proceeding [sic] on [ ] October 29, 1999.” Nothing further regarding arraignment is included in the record on appeal.

With regard to the appointment of counsel, the appellant stated in a pro se filing dated November 18 that he had not had counsel since his incarceration. However, he testified at trial that, when he was leaving the courtroom on October 29, 1999, he told a deputy, “I don’t know who the attorney is that the judge appointed [to] represent me.” He further testified that the deputy called the prosecutor to the door and the prosecutor told him that his attorney would come and talk to him at the jail. The only relevant document in the record is a notice of appearance filed on March 29 by the appellant’s trial counsel, who is also representing the appellant on appeal. That notice is dated March 28, one week before the appellant’s trial on April 4, 2000.

Due to the aforementioned deficiencies, we must remand this cause for the trial court to develop a record that is sufficient for appellate review. On remand, the trial court is authorized to conduct an evidentia-ry hearing or such other proceeding as is necessary to develop a record sufficient for this court’s review on appeal. The court should establish a record of the proceedings of October 29,1999, the apparent date of the appellant’s arraignment, including whether the appellant was present and whether he was represented by counsel. The court should document when counsel was appointed and when both the counsel and the appellant were notified of this appointment. The court also should document any changes in counsel and the dates of appointment and notification associated with such changes. Due return should be filed with this court within 42 days after the release of this opinion.

REMANDED WITH DIRECTIONS.

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

On Return to Remand

McMILLAN, Presiding Judge.

This cause was remanded for the circuit court to more fully develop the record with regard to the claims made by the appellant, Darrell Spratt. The court has now filed its return, stating that, on remand, the court was unable to locate any evidence from which to reconstruct the record.

The appellant contended that he was arrested on August 10, 1999, but that counsel was not appointed to represent him until March 28, 2000. He also contended that he was not arraigned and that he was not represented by counsel when he was arraigned on October 29, 1999.

A “record proper” in a criminal case consists of the caption of the case, stating the time and place of holding the court; the indictment, or information, with endorsement; arraignment; plea of defendant; empaneling of jury, if any; the verdict; and the judgment. Haun v. State, 44 Ala.App. 585, 217 So.2d 249 (1968). In Ingram v. State, 779 So.2d 1225, 1280-81 (Ala.Cr.App.1999), this court explained the rules to be applied when the record is incomplete:

“Where the transcript or record is incomplete, two rules have evolved. The first applies to the situation where the appellant is represented on appeal by the same counsel that represented him at trial. In that case, the failure to supply a complete record is not error per se and will not work a reversal absent a specific showing of prejudice. In other words, in such a case, the appellant must show that failure to record and preserve the specific portion of the trial proceedings complained of visits a hardship upon him and prejudices his appeal. The second applies to the situation where the appellant is represented by new counsel on appeal. When he is represented on appeal by counsel other than the attorney at trial, the absence of a substantial and significant portion of the record, even absent any showing of prejudice or error, is sufficient to warrant reversal.”

Here, the appellant was represented by the same counsel at trial and on appeal. The court’s failure to supply a complete record therefore was not error per se. Ingram v. State, supra. The appellant’s claim that he was not arraigned was not supported by an affidavit or by any other evidence, and it was contradicted by his trial testimony that he was arraigned on October 29.

The appellant’s claim that counsel was not timely appointed was contained in a pro se filing in which he stated that he had not had counsel since his incarceration. However, his trial testimony appeared to indicate that counsel had been appointed, but the appellant did not know the attorney’s name. The appellant offered no affidavit or other evidence indicating whether counsel was not appointed by the court or whether a properly appointed counsel had failed to appear.

Rule 45, Ala.R.App.P., states that a judgment may not be reversed for error as to any matter of pleading or procedure unless the error has probably injuriously affected a party’s substantial rights. Here, the appellant failed to meet his burden of proving either that an error had occurred or that, because of the error, he had suffered substantial hardship and prejudice. The judgment of the trial court, therefore, is affirmed.

AFFIRMED.

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


author: McMILLAN, Presiding Judge. BASCHAB, Judge,

text:
    Jimmy Leo BUTLER v. STATE.
    CR-00-0066.
    Court of Criminal Appeals of Alabama.
    May 25, 2001.
    Rehearing Denied Aug. 10, 2001.
    Certiorari Denied April 19, 2002 Alabama Supreme Court 1002042.
    Robert T. Ray, Fort Payne, for appellant.
    Bill Pryor, atty. gen., and Kristi L. Dea-son, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

AFFIRMED BY MEMORANDUM.

SHAW and WISE, JJ., concur.

BASCHAB, J., concurs in part and dissents in part, with opinion, in which COBB, J., joins.

BASCHAB, Judge,

concurring in part and dissenting in part.

I concur with that portion of this court’s unpublished memorandum that affirms the appellant’s conviction. However, I must respectfully dissent from that portion that affirms his sentence. During the sentencing hearing, the appellant proceeded without counsel. However, the trial court did not advise him about the dangers and disadvantages of self-representation, as required by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and that he had the right to withdraw his waiver of his right to counsel at any time during the hearing, as required by Rule 6.1(b), Ala. R.Crim. P. Therefore, this court should remand this case for a new sentencing hearing. See Farid v. State, 720 So.2d 998 (Ala.Crim.App.1998); Hairgrove v. State, 680 So.2d 946 (Ala.Crim.App.1995), cert. denied, 680 So.2d 947 (Ala.1996).


author:
PER CURIAM.
      COBB, Judge

text:
    Andrea Raquel TUCKER v. STATE of Alabama.
    CR-00-2223.
    Court of Criminal Appeals of Alabama.
    Nov. 30, 2001.
    George W. Andrews III, Birmingham, for appellant.
    Bill Pryor, atty. gen., and Jean A. Ther-kelsen, asst. atty. gen., for appellee.
   PER CURIAM.

On January 8, 1999, Andrea Raquel Tucker was indicted for two counts of unlawful distribution of a controlled substance (marijuana). On January 10, 2001, the State filed a motion to amend the indictment to include the fact that Tucker had distributed the marijuana within three miles of a school. See § 13A-12-250, Ala. Code 1975. The trial court granted the State’s motion, over Tucker’s objection. (C.R. 12.)

On March 13, 2001, Tucker was convicted of two counts of unlawful distribution of a controlled substance. On June 8, 2001, the trial court sentenced Tucker to serve two years in prison on each charge, followed by one year of probation. The trial court enhanced each sentence by five years pursuant to § 13A-12-250 and ordered that the sentences were to run concurrently. Tucker filed a motion for a new trial and for reconsideration of the sentences, which the trial court summarily denied. This appeal follows.

First, Tucker argues that the trial court erroneously allowed the State to amend the indictment to allege that the sales had occurred within three miles of a school. Specifically, Tucker contends that the amendment “resulted in the charge of a different offense, adding an additional element to defend against....” In Poole v. State, [Ms. CR-99-1200, August 31, 2001] •— So.2d —, — (Ala. Crim App.2001), this Court held as follows:

“Based on the language in Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)] and on the prior holdings of that Court, we do not believe that the Supreme Court intended to impose presentment and indictment requirements on the individual states’ rights to define criminal activity.
“The Alabama Legislature did not intend to create new offenses, distinct and separate from § 13A-12-211, when it enacted §§ 13A-12-250 and 13A-12-270; it intended instead to provide harsher penalties, i.e., each statute is prefaced with the following language, ‘In addition to any penalties heretofore or hereafter provided by law for any person convicted of an unlawful sale of a controlled substance.... ’ We have stated that the intent was to make a drug-free zone around schools and housing projects. Qualls v. State, 555 So.2d 1158 (Ala. Crim.App.1989).
“Our Legislature has defined the offense of distributing a controlled substance — that definition does not include the location of the crime. However, under Apprendi, because this fact may result in the increase of Poole’s sentence above the statutory maximum, this fact must be presented to the jury and proven beyond a reasonable doubt. The location of the crime is relevant only to the sentence Poole may receive and not to whether, in fact, Poole committed the offense of distributing a controlled substance as charged in the indictment. 530 U.S. at 484, 120 S.Ct. 2348.
“To require an indictment to include any applicable enhancements would also elevate the fact that made the enhancement applicable to the exalted status of an ‘essential element’ of the crime charged and would invite challenges to the validity of the underlying convictions in every court in this state. Our refusal to endorse the indictment requirement is also consistent with the views expressed by the Alabama Supreme Court in Ex parte Parker, 740 So.2d 432 (Ala.1999). In Parker, that Court held that the fact that the defendant had prior DUI convictions that would elevate a fourth conviction for DUI to a felony conviction should not be alleged in the indictment.
“The implications of finding that any fact that may increase a punishment above the statutory maximum must be charged in an indictment are too enormous to mention in this opinion. Any defendant who has ever been sentenced under these statutory provisions could argue that his or her conviction was void because a ‘material or essential element’ of the offense was not included in the indictment. When a material element is omitted from an indictment a conviction is due to be vacated and jurisdictional issues are not subject to waiver and may be raised at any time. See Ex parte Harper, 594 So.2d 1181 (Ala.1991). Neither are jurisdictional issues subject to a harmless error analysis. We also believe that the Apprendi holding implies that the failure to allege in the indictment the location of the crime does not affect the validity of the indictment, i.e., does not rise to the level of a jurisdictional defect. Had the defect in Apprendi amounted to a jurisdictional defect that would invalidate the indictment, a reviewing court would, ex mero motu, be charged with noticing the defect. See Ex parte Hargett, 772 So.2d 481 (Ala.Crim.App.1999). The Supreme Court did not hold in Appren-di that the underlying conviction was due to be vacated.”

(Footnotes omitted; emphasis added.) The amendment to Tucker’s indictment merely added the location of the crime, which was surplusage; it need not have been alleged in the indictment at all, and it did not add a material element to the crime with which she was charged. Therefore, Tucker’s argument is without merit, and the trial court correctly granted the State’s motion to amend the indictment over Tucker’s objection.

Additionally, Tucker argues that, pursuant to § 15-18-8, Ala.Code 1975, as amended, the trial judge had the authority to suspend the five-year sentence imposed pursuant to § 13A-12-250. The State agrees. While Tucker’s appeal was pending, this Court decided the case of Soles v. State, 820 So.2d 163, 165 (Ala.Crim.App.2001), in which we held “that the newly amended § 15-18-8 allows a trial judge to suspend a sentence imposed upon application of the school/housing enhancements.”

During Tucker’s sentencing hearing, the trial judge, like the trial judge in Soles, maintained that he would have split Tucker’s five-year sentence imposed pursuant to § 13A-12-250 if he could have, stating:

“[Prosecutor, defense counsel,] and Ms. Tucker, were I convinced that Title 15-18-8 as amended last summer, were I convinced that it authorized me to impose a split sentence in your case, a split sentence if you will on the school enhancement portion of your case, I would do so. I would do that.... [If t]he circumstances change in the future you let me know and I will reconsider sentence. I hope you will give a look at it and they will give us discretion in these matters. Many of the folks that have been convicted in here I would sentence to the penitentiary for selling drugs. But there have been a number of cases where I would like to have had discretion in this matter. And this is certainly that type of case.”

(R. 212-23.)

We remand this cause as we did in Soles because, although the trial judge imposed a sentence within the statutory range for Tucker’s convictions for unlawful distribution of a controlled substance, the trial judge unequivocally stated on the record that he would have imposed a different sentence if he had had the authority to do so. We remand this cause to allow the trial judge to resentence Tucker in accordance with the appropriate statutory provisions and with this opinion. Due return shall be made to this court within 42 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

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

COBB, Judge

(dissenting).

Although I agree that the trial court should be allowed to resentence Tucker in accordance with our opinion in Soles v. State, I believe a remand is unnecessary because I would reverse her convictions and sentences for unlawful distribution of a controlled substance. I believe that the trial court erred when it permitted the State to amend the indictment for distributing marijuana to include the enhancement under § 13A-12-250, Ala.Code 1975, because the amendment resulted in Tucker’s being charged with a greater offense. See Rule 13.5(a), Ala. R.Crim. P. Therefore, I would reverse Tucker’s convictions and sentences for distribution of a controlled substance. See my special writing in Poole v. State, [Ms. CR-99-1200, August 31, 2001] — So.2d —, — (Ala.Crim.App.2001), in which I concur with Judge Shaw’s special writing as to this point.

      . Unlawful distribution of a controlled substance is a Class B felony. See § 13A-12-211 (b), Ala.Code 1975. The sentencing range for a Class B felony is "not more than 20 years or less than 2 years.” § 13A-5-6(a)(2), Ala.Code 1975.


author: SHAW, Judge,

text:
    James West LIGON v. STATE of Alabama.
    CR-00-2423.
    Court of Criminal Appeals of Alabama.
    Nov. 30, 2001.
    James West Ligón, pro se.
    Bill Pryor, atty. gen., and Jean A. Ther-kelsen, asst. atty. gen., for appellee.
   SHAW, Judge,

James West Ligón appeals the circuit court’s summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked his August 24, 1999, conviction for murder and his resulting sentence of life imprisonment. Ligón did not appeal his conviction.

On June 12, 2001, Ligón filed the present Rule 32 petition. In his petition, Li-gón contended that his failure to appeal his conviction was through no fault of his own. Specifically, he maintained that he was never informed of his right to appeal his conviction and that his trial counsel failed to perfect an appeal on his behalf. On July 2, 2001, the State filed a motion requesting a transcript of Ligon’s sentencing hearing in order to address Ligon’s claim that he had not been advised of his right to appeal. It appears that the circuit court never ruled on the State’s motion. However, on August 3, 2001, the circuit court issued an order summarily denying Li-gon’s petition. In that order, the circuit court stated, in pertinent part:

“This matter is before the Court on Petition for Relief from Conviction or Sentence pursuant to Rule 32. The thrust of the petition is an allegation of ineffective assistance of counsel.
“The Court has independent recollection of the trial of this case. The defendant was charged with murder. He was represented by retained counsel. The evidence of defendant’s guilt was overwhelming. The efforts of retained defense counsel far exceeded those required of criminal defense attorneys.
“The petition is dismissed and the Court finds that no purpose would be served by further proceedings.”

(C. 26.)

The State has requested that we remand this cause to the circuit court for that court to address the merits of Ligon’s claim that his failure to appeal his conviction was through no fault of his own because he was never informed of his right to appeal and because his trial counsel failed to perfect an appeal. We agree that a remand is necessary. Although the circuit court’s order purportedly denied Ligon’s petition on the merits, as the State correctly points out in its brief to this Court, the circuit court never actually addressed the claim that Ligón presented in his petition. In addition, the State did not have an opportunity to respond to Ligon’s petition. As noted above, the State filed a motion requesting a transcript of the sentencing hearing in order to properly address Ligon’s claim that he was not advised of his right to appeal; however, the circuit court summarily denied Ligon’s petition without ruling on the State’s motion or giving the State the opportunity to respond to Ligon’s claim. Because the State was not able to respond to Ligon’s petition, the allegations in his petition must be accepted as true. See, e.g., Davis v. State, 737 So.2d 1054 (Ala.Crim.App.1998); Rice v. State, 682 So.2d 484 (Ala.Crim.App.1995); and Kolmetz v. State, 623 So.2d 453 (Ala.Crim.App.1993).

Therefore, we remand this cause to the circuit court for that court to address the merits of Ligon’s claim that he failed to appeal his conviction through no fault of his own and to make specific findings of fact regarding that issue. On remand, the circuit court may either conduct an eviden-tiary hearing or take evidence in the form of affidavits, written interrogatories, or depositions. See Rule 32.9(a), Ala.R.Crim.P. In addition, we encourage the circuit court to rule on the State’s request for a transcript of the sentencing hearing because that transcript could, as the State correctly recognizes, refute Ligon’s claim that he was never advised of his right to appeal. Due return shall be filed with this Court no later than 42 days from the date of this opinion. The return to remand shall include the circuit court’s written findings, along with a transcript of the evidentiary hearing, if any, or other evidence received by the court.

REMANDED WITH DIRECTIONS.

McMILLAN, PH., and COBB, BASCHAB, and WISE, JJ., concur.


author: COBB, Judge.

text:
    Roy Lee McCALL v. STATE.
    CR-00-0147.
    Court of Criminal Appeals of Alabama.
    Nov. 30, 2001.
    Rehearing Denied Feb. 22, 2002.

      David K. Hogg, Dothan, for appellant.
    Bill Pryor, atty. gen., and Frances R. Clement, asst. atty. gen., for appellee.
   COBB, Judge.

On September 14, 2000, Roy Lee McCall was convicted of first-degree robbery, a violation of 13A-8-41, Ala.Code 1975. On October 10, 2000, the trial court sentenced McCall to life in prison. On October 16, 2000, McCall filed a written notice of appeal and a motion for a new trial. The trial court denied the motion for a new trial on October 31, 2000.

The record showed that on October 20, 1998, Mr. Ngo, the owner of Ken’s Food Store in Dothan, reported that he had been robbed. Ngo testified that the robber shot at him with a gun. Ngo identified McCall in open court as the robber.

I.

First, McCall contends that the trial court erred in permitting, over McCall’s objection, Ngo’s daughter to act as interpreter when Ngo testified. We disagree.

Teresa McDaniel, Ngo’s daughter, testified that, if the need occurred, she could translate for her father the attorneys’ exact questions in Vietnamese, and then translate his answer into English. McDaniel stated that her relationship with her father was good and that the robbery “affected [her] personally for [her] father.” (R. 41.) McCall objected to the State’s motion that McDaniel be allowed to interpret, if necessary, during Ngo’s testimony on the grounds that “the interpreter is the daughter, the blood relative of the victim. And as stated in her response to my questions, she has a personal feeling about the case. And that’s not an unbiased interpreter.” (R. 41.) The trial court overruled McCall’s objection.

“The selection and qualification of an interpreter is within the sound discretion of the trial judge and his decision on this matter should not be overturned absent an abuse of his discretion.” Hooks v. State, 534 So.2d 329, 356 (Ala.Crim.App.1987). The trial judge is in the best position to observe the interpreter and to determine the interpreter’s qualifications. See Robinson v. State, 444 So.2d 902, 904 (Ala.Crim.App.1984). It is well-settled law in Alabama that the interpreter does not have to be the “least interested person available.” Hooks v. State, 534 So.2d at 356 (employee of the district attorney’s office acted as interpreter). See also Robinson v. State, 444 So.2d at 904 (interpreter was the teacher and friend of the victim-witness); Almon v. State, 21 Ala.App. 466, 109 So. 371 (1926)(interpreter was the mother of the victim-witness); Burgess v. State, 256 Ala. 5, 58 So.2d 568 (1951)(inter-preter was brother of witness). We find no abuse of discretion.

In his brief to the Court, McCall cites Prince v. Beto, 426 F.2d 875 (5th Cir.1970). McCall’s reliance on Prince, however, is misplaced. The facts of this ease are easily distinguished from Prince. In Prince, (1) the victim was a rape victim, (2) the interpreter was her husband, (3) the victim’s testimony was the only testimony presented against the defendant, and (4) the husband had offered to stop the prosecution in exchange for money.

Moreover, even if the trial court abused its discretion in allowing McDaniel to act as interpreter for her father, the only time McDaniel was actually used as an interpreter was at McCall’s request. Ngo testified on direct examination without an interpreter. During cross-examination, McCall asked McDaniel to read from a transcript of a prior hearing to refresh Ngo’s recollection about statements he had made to the police regarding whether he said there had been an eyewitness on a pay phone outside the store at the time of the robbery.

“MR. PARKER [defense counsel]: Judge, may I have the interpreter to read this for him?
“THE COURT: Okay. Go ahead.
“MR. MAXWELL [prosecutor]: May I ask what page we are referring to?
“MR. PARKER: One thirty-seven and [line] thirteen. Answer would be on [line] fifteen, and this would be from the reporter’s official transcript of a previous hearing.
“I’ll ask you to read line thirteen. And when you see a question, if you would state question. And then read the question? And when you see answer, read answer. Start there, if you would, please.
“MR. PARKER: Mr. [Ngo], let me ask you if this helps you to recall your previous testimony.
“INTERPRETER: Do you want me to read the question to the jury?
“MR. PARKER: To your father. Translate for us, please.
“INTERPRETER: I told him the question, that Roy McCall came into the store before the robbery. The answer I told my father, that he hasn’t came in yet. That he is walking around outside the store, and there is somebody on the phone saw him put the mask on.”

(R. 60-61.) McCall then questioned Ngo about the previous testimony. McCall, not the State, used McDaniel as an interpreter. Thus, if McCall suffered any harm from the use of McDaniel as interpreter, he invited it. “A party cannot assume inconsistent positions at trial and on appeal, and a party cannot allege as error proceedings in the trial court that were invited by him or that were a natural consequence of his own action.” Taylor v. State, 808 So.2d 1148, 1202 (Ala.Crim.App.2000)(internal citation omitted), aff'd, 808 So.2d 1215 (Ala.2001).

II.

Second, McCall argues that the trial court erred in denying his motions to allow an inmate defense witness to testify without shackles and wearing civilian clothes. The State contends that McCall failed to show that he was prejudiced by the trial court’s decision. We agree with the State.

McCall filed a motion seeking to have a defense witness who was an inmate testify without shackles and wearing street clothes. Though the record is silent, we presume that the trial court denied McCall’s motion, because McCall also filed a motion to reconsider his motion to allow the inmate defense witness to testify unshackled and wearing street clothes. The trial judge denied McCall’s motion to reconsider.

At trial, McCall called Brown, the inmate witness, to testify. McCall asked Brown, “And it is obvious, Mr. Brown, that you are in custody. You have handcuffs and shackles on; is that correct?” (R. 210.) Brown testified that he was in prison for third-degree burglary. On cross-examination, the State elicited testimony about Brown’s conviction and the fact that he was incarcerated.

Although it is well-settled that, absent certain circumstances, a defendant should not be restrained, the matter of restraining an inmate witness has not been decided in Alabama. Other states have held that it is not necessarily as prejudicial to shackle a witness as to shackle the accused. See Ohio v. Keenan, 81 Ohio St.3d 133, 689 N.E.2d 929 (1998)(less prejudice in handcuffing a witness than a defendant); Washington v. Rodriguez, 103 Wash.App. 693, 14 P.3d 157 (2000)(though there is some inherent prejudice, shackling a witness may not directly affect the presumption of innocence).

However, the Florida District Court of Appeals addressed this issue in Jackson v. Florida, 698 So.2d 1299 (Fla.Ct.App.1997), when that court held:

“Most courts use the same analysis to assess the propriety of physical restraints on defense witnesses as they use for criminal defendants themselves. The decision whether to shackle a defense witness is left to the discretion of the trial court, subject to the same considerations that would apply to the physical restraint of a defendant.”

Jackson v. Florida, 698 So.2d at 1303 (internal citations and quotation marks omitted).

“Bringing a prisoner before the bar of justice in handcuffs or shackles, where there is no pretense of necessity, is inconsistent with our notion of a fair trial.” Brock v. State, 555 So.2d 285, 288 (Ala.Crim.App.1989), on return to remand, 580 So.2d 1390 (Ala.Crim.App.1991). The decision to restrain a defendant rests with the trial judge, and, absent an abuse of discretion, this Court will not disturb his ruling on appeal. Id. at 289.^ “Ultimately, however, it is incumbent upon the defendant to show that less drastic alternatives were available and that the trial judge abused his discretion by not implementing them.” Id. (internal citation and quotation marks omitted). “It is not always reversible error for a defendant to be handcuffed or shackled in front of the jury.” Perkins v. State, 808 So.2d 1041, 1079 (Ala.Crim.App.1999), aff'd, 808 So.2d 1143, 1145 (Ala.2001).

Because McCall, in his brief, relies on Arthur v. State, 575 So.2d 1165 (Ala.Crim.App.1990), cert. denied, 575 So.2d 1191 (Ala.1991), it is important to distinguish this case from Arthur. In Arthur, the only mention of restraining an inmate witness was made in dictum:

“In regard to the issue concerning the handcuffing of a defense inmate witness during his testimony when none of the prosecution’s inmate witnesses were similarly restrained (although one had possibly more than 50 convictions and had been imprisoned since 1967, with the exception of a total of 2 years), in the event of a retrial, the trial court should note, in the record, the reason for restraining or not restraining each inmate witness. Moreover, efforts should be made to alleviate, or at least minimize, any opportunity for the jury to see the inmate witness’s restraints; for example, the trial court could order a recess before and after the witness’s testimony so that the witness can be seated and removed from the witness stand outside the jury’s presence.”

Arthur v. State, 575 So.2d at 1186. In Arthur, both the State and the defendant presented inmate witnesses, yet only the defense’s inmate witness was in restraints, despite the fact that at least one of the prosecution’s inmate witnesses had had more than 50 convictions. Though this Court noted the potential prejudice that might arise where an inmate witness is shackled during his testimony, we reversed the conviction and remanded that case on other grounds, and thus declined to address the issue in detail. Though this Court still believes the guidelines recommended in dictum in Arthur are proper for the trial court to follow, they were not intended to be inclusive or a final determination on the issue here.

Shackling a testifying defendant is not always reversible error, and the same is true with regard to shackling an inmate witness. Though the trial judge failed to state his reasons for requiring Brown to testify in shackles and prison clothing, McCall has failed to show that he suffered any prejudice by the trial judge’s denying his motions.

Moreover, McCall elicited testimony from Brown about his conviction and current residence, and the State was allowed to impeach Brown with evidence of his conviction. Thus, any error in the trial court’s ruling would have been harmless, as the jury learned through the testimony McCall elicited that Brown was incarcerated at the time of trial. Rule 45, Ala. R.App.P.

III.

Next, McCall contends the trial court erred by allowing the State to cross-examine a defense witness about collateral matters. McCall elicited evidence that Brown, a defense witness, was serving time for a conviction of burglary; he also elicited details of the offense. On cross-examination, the State asked Brown if he had denied committing the burglary. McCall objected on grounds that the question was not relevant and that it was outside the scope of direct examination. The trial judge overruled McCall’s objection, and stated that McCall had opened the door to questions about Brown’s conviction. The State introduced, without objection, an audiotape of Brown telling police that he did not commit the burglary and that he had alibi witnesses.

Although defense counsel objected to the State’s initial question to Brown about his statement to police, McCall did not request that further objections be unnecessary, or that the objection be considered continuing. Any error by the trial judge in overruling McCall’s initial objection was made harmless by the admission of the audiotape and the subsequent questioning without another objection or a continuing objection. See Baker v. State, [Ms. CR-95-0292, Jan. 12, 2001] — So.2d —, — (Ala.Crim.App.2001).

IV.

McCall argues that the trial court erred when, according to McCall, it refused to allow defense counsel to withdraw a question and then required a State witness to testify about conclusory and inadmissible matters. During McCall’s cross-examination of Officer Meredith, the following exchange occurred:

“Q: I’ll start from the most recent report. Why did [the informant] change her mind about not wanting to testify?
“Mr. Maxwell [prosecutor]: And I’m going to object for the record. That calls for a conclusion on his part as to her own mental operation.
“Mr. Parker [defense counsel]: I’ll rephrase the question.
“The Court: Okay.
“Mr. Maxwell: Okay. I withdraw it. Tell him why.
“The Court: If he knows, I mean—
“Mr. Maxwell: He knows.
“The Court: Go ahead.
“A: She stated to me that she knew that Mr. McCall did the robbery—
“Q: Let me just ask you if—
“A: I’m answering the question—
“Mr. Maxwell: Judge, I object. He asked him a question.
“The Court: Just a minute.
“Mr. Parker: I stated that I would rephrase the question.
“The Court: I understand. And I think Mr. Maxwell withdrew his objection, so the question stands. And, obviously, if you open the door to something, it comes in. So overruled. Go ahead.
“A: She stated that she—
“Mr. Parker: I’m not asking for hearsay, your Honor.
“The Court: Well, you asked why. And why can call for any number of reasons. Overruled.
“A: [The informant] told me that she knew that Roy McCall did the robbery, and that he got away with it in the first trial because it was a mistrial. And this time she wanted to get involved with it.”

(R. 111-12.)

McCall did not raise at trial the grounds he now argues on appeal. Thus, this issue has not been preserved for our review. Meadows v. State, 773 So.2d 1053, 1054 (Ala.Crim.App.2000).

Moreover, even had this issue been preserved, we would still find McCall’s argument to be without merit. It is well settled that lawyers may withdraw questions. See Hereford v. State, 608 So.2d 439, 440 (Ala.Crim.App.1992). However, McCall never attempted to withdraw the question. He merely offered to rephrase it. The State withdrew its objection, and the trial judge allowed the witness to answer the question. McCall, not the State, invited the error when he asked the question. “A party cannot assume inconsistent positions at trial and on appeal, and a party cannot allege as error proceedings in the trial court that were invited by him or that were a natural consequence of his own action.” Taylor v. State, 808 So.2d at 1202.

For the above-stated reasons, McCall’s conviction and sentence are due to be affirmed.

AFFIRMED.

McMILLAN, PH., and BASCHAB, SHAW, and WISE, JJ., concur.


author: LYONS, Justice.

text:
    Ex parte Roy Lee McCALL. (In re Roy Lee McCall v. State of Alabama).
    1011110.
    Supreme Court of Alabama.
    April 19, 2002.

      David K. Hogg, Dothan, for petitioner.
   LYONS, Justice.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

MOORE, C.J., and HOUSTON, JOHNSTONE, and WOODALL, JJ„ concur.