author: SHAW, Judge.

text:
    James Duke HEFLIN v. STATE of Alabama.
    CR-00-1270.
    Court of Criminal Appeals of Alabama.
    March 1, 2002.
    Rehearing Denied April 19, 2002.
    John T. Kirk, Montgomery, for appellant.

      William H. Pryor, Jr., atty. gen., and Joseph G.L. Marston III, asst. atty. gen., for appellee.
   SHAW, Judge.

James Duke Heflin was eonvicted of driving under the influence of alcohol, a violation of § 32-5A-191, Ala.Code 1975. He was sentenced to one year’s imprisonment; the sentence was suspended, and he was placed on unsupervised probation.

The evidence adduced at trial indicated the following. On the night of October 30, 1997, while on patrol, Montgomery County Sheriffs Deputy Theresa Donohoo observed a vehicle being driven by the appellant Heflin weaving in and out of traffic, passing other vehicles in an unsafe manner, and speeding. Deputy Donohoo executed a traffic stop; when she approached Heflin’s vehicle, she smelled the odor of alcohol emanating from the vehicle and she saw several beer cans on the front passenger-side floorboard of the vehicle. Deputy Donohoo also noticed that Heflin’s speech was “somewhat slurred” and that he was unsteady when walking. (R. 73.) After Heflin failed three field-sobriety tests, Deputy Donohoo arrested him for driving under the influence and transported him to the Montgomery County Sheriffs Office, where an Intoxilyzer 5000 test was administered. The results showed that Heflin had a blood-alcohol level of .14%.

On appeal, Heflin contends that the trial court erred in admitting into evidence the results of the Intoxilyzer 5000 test. He makes three arguments in this regard; we address each in turn.

First, Heflin contends that the In-toxilyzer 5000 results were inadmissible because, he says, there was no evidence establishing the admissibility of those results pursuant to Frye v. United States, 293 F. 1013 (D.C.Cir.1923). We disagree.

In Seewar v. Town of Summerdale, 601 So.2d 198 (Ala.Crim.App.1992), this Court addressed an identical issue and stated:

“ ‘Tests conducted to determine the alcohol ... content in a ... breath sample have been recognized as having attained sufficient scientific acceptance to satisfy the ... Frye test.’ [C. Gamble,] McElroy’s [Alabama Evidence ] § 490.01(2) [ (4th ed.1991) ] (footnote omitted). See also § 32-5A-194, Code of Alabama 1975. See, e.g., Mayes v. City of Irondale, 577 So.2d 556 (Ala.Cr.App.1990); Stubstad v. City of Orange Beach, 575 So.2d 1240 (Ala.Cr.App.1991); Vizzina v. City of Birmingham, 533 So.2d 652 (Ala.Cr.App.1987), aff'd, 533 So.2d 658 (Ala.1988).
“Because the Intoxilyzer 5000 has been generally accepted as a valid test under § 32-5A-19I and the cases cited above, no Frye predicate is required for the admissibility of its results.”

601 So.2d at 200 (emphasis added). Contrary to Heflin’s contention, the State was not required to lay a Frye predicate for admission of the Intoxilyzer 5000 results.

Second, Heflin contends that the Intoxilyzer 5000 results were inadmissible because, he says, the State did not introduce into evidence the inspection logbook that is kept for each device. Contrary to Heflin’s contention, the logbook does not have to be introduced into evidence in order to admit the results of the Intoxilyzer 5000 test. In Steiner v. State, 706 So.2d 1308 (Ala.Crim.App.1997), this Court recognized that the results of an Intoxilyzer 5000 test may be admitted into evidence only if a proper predicate is laid either under Ex parte Mayo, 652 So.2d 201 (Ala.1994), or under § 32-5A-194(a)(l), Ala. Code 1975. We noted:

“Under either method of establishing the predicate for the introduction of test results, the State is required to show that the device was in proper working condition when the test was administered. This showing can be made in one of two ways. The officer who performed the inspection of the device can give direct testimony that it was in proper working condition, or the State may introduce a certified copy of the inspection logbook that reflects that the device passed inspection before and after the test was administered. See Gwarjanski v. State, 700 So.2d 357 (Ala.Cr.App.1996).”

706 So.2d at 1310 (emphasis added). Here, State Trooper Robert Lee Dettmar, who was a member of the implied-consent unit of the Department of Public Safety in October 1997 when Heflin was arrested, testified that he inspected the Intoxilyzer 5000 device that was used to test Heflin both before and after Heflin’s blood-alcohol test and that the device was working properly. In addition, the inspection sheets Trooper Dettmar filled out regarding those inspections were introduced into evidence; those sheets reveal that the device was in proper working condition when it was inspected. Therefore, the logbook did not have to be introduced into evidence.

Finally, Heflin contends that the results of the Intoxilyzer 5000 test were inadmissible because, he says, the Department of Forensic Sciences has a policy of not recording any malfunctions or problems with the Intoxilyzer 5000 device in the inspection logbook in order to “wilfully circumvent [the] credibility of the program.” (Heflin’s brief at p. 9) (emphasis in original).

At a pretrial suppression hearing, Trooper Dettmar testified that his responsibilities with the implied-consent unit included performing monthly calibration checks on Intoxilyzer 5000 machines in Montgomery County and also responding to calls regarding malfunctions and problems with Intoxilyzer 5000 machines. Trooper Dettmar testified that when he was assigned to the implied-consent unit he was taught, and he taught others (including members of the Montgomery County Sheriffs Department), not to record any malfunctions or problems with the Intoxilyzer 5000 devices in the inspection logbooks. During Trooper Dettmar’s testimony at the suppression hearing, Heflin introduced into evidence a handwritten note that Trooper Dettmar had placed on one of the Intoxilyzer 5000 machines in Elmore County. That note read:

“Please do not log any malfunction, errors, or problems with the instrument in the log book. (Ex.- — ‘out of order.’) This could cause other officers to lose cases in court, if the logbook is presented. Any problems with the instrument should be brought to my attention by phone or by leaving a note by the instrument.”

(C. 80.) Trooper Dettmar testified that although he did not place a similar note on the Intoxilyzer 5000 machine used in this case, the note reflected the standard practice and procedure in Montgomery County.

Trooper Dettmar further testified that if any device malfunctioned, the proper procedure was either to leave a note near the device or to telephone him. He stated that he kept no records of the telephone calls he received regarding malfunctions and that he did not keep any of the notes left on the machines. Trooper Dettmar stated that when he was informed of a malfunction on an Intoxilyzer 5000 device, either through a note or a telephone call, he would inspect the device as soon as possible and recalibrate it if necessary. According to Trooper Dettmar, if there was a malfunction or problem with the device, the device would “lock up” so that no tests could be run until he arrived and recalibrated the machine. (R. 37.) Each time he calibrated a device (whether it was because a malfunction had been reported or as part of his monthly inspections), Trooper Dettmar said, he filled out an inspection sheet, which, although not part of the logbook, was also kept with the Intoxilyzer 5000 device. Trooper Dett-mar stated that if he was specifically asked to inspect a device outside of his normal monthly check and he was aware of why he had been asked to inspect the device, such as a specific malfunction or problem, he would note that on the inspection sheet. The inspection sheets relating to the In-toxilyzer 5000 machine used in this case were introduced into evidence at the suppression hearing and, as noted above, at trial. The sheets, one dated October 27, 1997, and one dated November 21, 1997, contained two columns, one for the testing that occurred when Trooper Dettmar first arrived for the check and one for the testing that occurred when Trooper Dett-mar departed after calibrating the machine. In each column, Trooper Dettmar indicated whether the device passed or failed the numerous calibration tests that he performed. Trooper Dettmar testified that if the device failed one or more of the tests performed upon his arrival, he would attempt to repair the device. If he was successful, he would note that the device had passed all of the tests in the departure column, and he would write in the logbook that the device had been inspected and was working properly. If he was unsuccessful, Trooper Dettmar said, he would write that in the departure column of the inspection sheet and he would pull the device out of service and replace it with another device if another device was available. However, he would not write in the logbook that the device had malfunctioned and been pulled out of service. Essentially, Trooper Dettmar said, only those devices that were in good working condition were allowed to be used. The inspection sheets in this case showed that the machine used to test Heflin passed all but one of the calibration tests in both October and November. In October, the machine failed the “time check” test on arrival and Trooper Dettmar reset the clock on the machine to reflect daylight savings time — the machine passed the “time check” test on Trooper Dettmar’s departure. In November, the machine failed the “standard operational test” upon Trooper Dettmar’s arrival and the sheet indicates that Trooper Dettmar cleaned the printer on the machine — the machine passed the “standard operational test” on Trooper Dettmar’s departure.

Heflin argues that the practice of not recording any malfunctions or problems with the Intoxilyzer 5000 machines in the logbooks rendered it impossible for the State to establish that the machine used in his case was “operating properly on any given day” and, therefore, that the results of the Intoxilyzer 5000 test were not admissible. The State argues that the results were properly admitted and that the practice of not recording malfunctions or problems in the logbooks is necessary and justified. Specifically, the State argues that training the people who operate the Intoxilyzer 5000 machines not to log any malfunction in the logbooks is necessary because the operators of the machines “are not trained to diagnose malfunctions and because they commonly mistake failures to produce the results they expect and their own errors for malfunctions of the instrument” and because training operators to enter a problem in the logbook, rather than reporting it to the implied-consent unit, would result in delays and problems in diagnosing and correcting any problems with the machines because an inspector may not be made aware of any problem until he or she arrives to perform monthly calibration checks and, by that time, “it is often impossible to discover who made the logbook entry or what occasioned it.” (State’s brief at p. 12.) The State further argues that although defense attorneys “would want logbooks to reflect erroneous and confusing entries by unidentifiable persons[,] ... [s]uch would do much to undermine the effect of properly administered chemical tests for intoxication.” (State’s brief at p. 18.)

We agree with the State that there are probably many good reasons for not recording malfunctions or problems with In-toxilyzer 5000 machines in the logbooks, including the confusion that may result from unidentified entries relating to unidentified problems. However, the issue before this Court is not whether there is a good reason for the practice — the issue is whether the practice affects the admissibility of the results of Intoxilyzer 5000 tests. We hold that it does not.

The practice of not recording malfunctions or problems in the logbooks, but of maintaining separate records for malfunctions, does not render the results from Intoxilyzer 5000 tests inadmissible. Rather, as Heflin essentially concedes in his argument, that practice affects only the weight and credibility of the test results. See, e.g., Faust v. City of Gadsden, 639 So.2d 536, 538 (Ala.Crim.App.1993) (holding that the fact the appellant’s breath sample was deficient did not affect the admissibility of the test results but affected only the weight to be accorded those results); and Harris v. State, 601 So.2d 1099 (Ala.Crim.App.1991) (same), overruled on other grounds, Ex parte Mayo, 652 So.2d 201 (Ala.1994). The history of malfunctions of any given Intoxilyzer 5000 machine is recorded on the inspection sheets; those sheets are kept with the machine and are available through discovery; and defendants are free to present evidence of malfunctions on a machine to the jury and to argue to the jury that it should give little or no weight to the Intox-ilyzer 5000 results because of the history of malfunctions on a particular machine. However, as long as the State lays the proper predicate either under § 32-5A-194(a)(1) or under Ex parte Mayo, 652 So.2d 201 (Ala.1994), the results of Intoxilyzer 5000 tests are admissible.

In this case, Heflin’s counsel cross-examined Trooper Dettmar extensively about the practice of not recording in the logbook any malfunctions or problems with the Intoxilyzer 5000 devices; about Trooper Dettmar’s specific instructions to local police not to record any malfunctions or problems with the device that was used on Heflin in the logbook, but to notify him instead; and about Trooper Dettmar’s practice of not maintaining records of the telephone calls he received regarding malfunctions. As noted above, the inspection sheets Trooper Dettmar filled out when he inspected the device used on Heflin were admitted into evidence. These sheets reflect that the device passed inspection both before and after Heflin’s blood-alcohol test. In addition, Trooper Dettmar testified that he could not remember ever being notified of a malfunction on the device used on Heflin, but that it was possible that he had been. The weight to be accorded Heflin’s tests results was a question for the jury, not for the court. Therefore, the trial court did not err in admitting into evidence the Intoxilyzer 5000 test results.

Based on the foregoing, the judgment of the trial court is affirmed.

AFFIRMED.

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

      . Heflin does not argue that the State failed to lay one of these predicates.

      . These sheets must be filled out pursuant to a rule established by the Alabama Department of Forensic Sciences. See Ala. Admin. Code, Rule 370-1-1 (Department of Forensic Sciences).


source: Caselaw Access Project

author: PER CURIAM. JOHNSTONE, Justice STUART, Justice

license: Public Domain

text:
    Ex parte James Duke HEFLIN. (In re James Duke Heflin v. State of Alabama).
    1011506.
    Supreme Court of Alabama.
    March 21, 2003.
    John T. Kirk, Montgomery, for petitioner.
    William H. Pryor, Jr., atty. gen., and P. David Bjurberg and Joseph G.L. Marston III, asst, attys. gen., for respondent.
    Mary A. Rhodes, Birmingham, for ami-cus curiae Alabama Department of Forensic Sciences.
   PER CURIAM.

WRIT QUASHED.

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

JOHNSTONE and STUART, JJ., concur specially.

JOHNSTONE, Justice

(concurring specially).

My reason for concurring in the decision of this Court to quash the writ of certiorari we have previously issued in this case is that, in my opinion, the defendant James Duke Heflin did not preserve before the trial court the dispositive ground that oth-. erwise would require a reversal of the defendant’s conviction. Other reasons for quashing are that the petition does not comply with Rule 39(d)(3), Ala. R.App. P., and the substance of the accompanying brief does not comply sufficiently with Rule 39(f)(1) and Rule 28(a)(10), Ala. RApp. P. My review of the record while this Court has had it, however, prompts some observations.

The Intoxilyzer 5000 test was administered to the defendant on October 30, 1997. Trooper Robert Lee Dettmar was the only witness qualified to testify whether the Intoxilyzer 5000 “device was in proper working condition when the test was administered” as required by Steiner v. State, 706 So.2d 1308, 1310 (Ala.Crim.App.1997). Trooper Dettmar testified that he conducted monthly inspections on I-5000 devices in Alabama and responded to service calls about malfunctions or errors in those devices. He stated that each time he performed an inspection on a device he filled out an inspection form called an IC-12 form. He identified only two IC-12 forms that he had filled out for his inspections of the device used to test Heflin. One IC-12 form was dated October 27, 1997, three days before Heflin’s October 30, 1997 test, and the other form was dated November 21, 1997, 22 days after Heflin’s test. The October 27 inspection form showed that the device had initially failed the “time check” test, and that, after Trooper Dettmar reset the time back one hour, the device had passed that test as well as others. The November 21 inspection form showed that the device had initially failed the “standard operational test,” and that, after Trooper Dettmar cleaned the printer, the device had passed that test as well as others. In other words, while the device was in proper working condition as Trooper Dettmar last left it before the defendant’s test, the device was not in proper working condition as Trooper Dettmar first found it after the defendant’s test. No personal observation by Trooper Dettmar and no documentation on the device supplied any basis for Trooper Dettmar or any fact-finder to conclude that the malfunctioning condition of the device revealed by the November 21 inspection had not commenced before the defendant’s October 30 test although after the October 27 inspection. Therefore, a timely objection to this effect would have required the trial court to exclude Trooper Dettmar’s conclusory answer that the device was in proper working condition when the defendant’s test was administered and likewise would have required the trial court to exclude the results of the test itself. The defendant, however, did not object on this particular ground.

The opinion of the Court of Criminal Appeals in this case, Heflin v. State, 857 So.2d 154 (Ala.Crim.App.2002), reveals that the policies and procedures of the Department of Public Safety (D.P.S.) and the Department of Forensic Sciences (D.F.S.) have eliminated any probative value from the logbooks kept on these devices on the issue of whether one was in proper working condition before an inspection or a service call:

“Trooper Dettmar testified that, if the device failed one or more of the tests performed upon his arrival, he would attempt to repair the device. If he was successful, he would note that the device had passed all of the tests in the departure column, and he would write in the logbook that the device had been inspected and was working properly.”

Heflin, 857 So.2d at 157 (emphasis added). Such a logbook would indicate facially that a device which was inspected or serviced on dates before and after a test was administered to a suspect was in proper working condition both before and after the test was administered to the suspect even in a case, like the one now before us, wherein the device was not in proper working condition at the beginning of the inspection following the date the test was administered to the suspect.

In the case now before us, the State relied, not on the logbook, which was lost before trial, but on Trooper Dettmar’s testimony based on the IC-12 inspection forms to establish the predicate for the admissibility of the result of the test administered to the defendant. This Court has not yet reviewed a properly preserved and briefed claim that a trial court erred by admitting test results which depend on a predicate consisting of a logbook kept as Trooper Dettmar’s testimony reveals the D.P.S. and the D.F.S. were requiring at the time of the case now before us, a logbook intentionally kept so as to omit references to the failures of the device to pass inspection tests of its functioning. Hopefully trial courts will recognize the fallacy of such a predicate.

The current limited role of logbooks is noteworthy. On the one hand, the Court of Criminal Appeals has held in a number of cases that logbooks are admissible pursuant to the business records exception to the hearsay rule. Gwarjanski v. State, 700 So.2d 357, 359 (Ala.Crim.App.1996). That court as well as the trial courts apparently assumed that, if a device failed a test of functioning upon inspection, that failure would be noted in the logbook. See id. If that assumption was ever accurate, it is not accurate now.

On the other hand, logbooks are not the records the D.F.S. uses to monitor the working condition of these devices. No statute, rule, regulation, or caselaw requires logbooks to be maintained at all. Rather, Rule 370-1-1-.02 of the Rules of the Alabama Department of Forensic Sciences, Chemical Test for Intoxication, promulgates the IC-12 inspection form as the record the D.F.S. uses to monitor the working condition of these devices. This form requires the inspector to enter a “pass” or “fail” for each of the different inspection tests of the functioning of the device conducted in two separate series at, respectively, two distinct stages of the inspection: first, when the inspector “arrive[s],” before he or she performs any maintenance or repair; and, second, when the inspector “depart[s],” after he or she has performed any maintenance or repair. Rule 370-1-1-.02 and the IC-12 form. Thus, an IC-12 form, if the “arrive” series of inspection tests have been properly conducted, and if the “pass” or “fail” results for the “arrive” series of inspection tests have been accurately entered, would tend to prove whether or not the device was in proper working condition as it existed before any maintenance or repairs were performed during the particular inspection visit.

Rule 370-1-1-.02 requires that a copy of each IC-12 form completed for a device be “file[d]” “with the logbook.” Two more copies are maintained at, respectively, the D.P.S. and the D.F.S., according to the D.F.S. amicus curiae brief filed with us in this case. The D.F.S. has promulgated Rule 370-1-1-.02 and form IC-12 pursuant to the authority granted by § 32-5A-194(a)(1), Ala.Code 1975, and pursuant to the recommendation in Ex parte Mayo, 652 So.2d 201, 209 (Ala.1994).

STUART, Justice

(concurring specially).

I concur with the majority’s decision to quash the writ of certiorari in this case. The Court of Criminal Appeals properly concluded that the State had established that the Intoxylizer 5000 (“1-5000”) was in proper working condition when the 1-5000 test was administered to Heflin. Specifically, Trooper Robert Dettmar, an officer in the implied-consent unit of the Department of Public Safety, testified that he had inspected the 1-5000 used to test Heflin both before and after Heflin was tested and that the device was in proper working order. Trooper Dettmar’s testimony satisfies the predicate requirements set forth in Ex parte Mayo, 652 So.2d 201 (Ala.1994), and Steiner v. State, 706 So.2d 1308 (Ala.Crim.App.1997). Indeed, the veracity of Trooper Dettmar’s testimony is bolstered by the admission into evidence of the two inspection forms completed by Trooper Dettmar before and after the administration of Heflin’s test. The lack of additional inspection forms during the period in question provides evidence that the 1-5000 was in proper working condition during that period. The State established the required predicate for the admission of the results of Heflin’s 1-5000 test.

Trooper Dettmar’s testimony that an inspection of the 1-5000 several weeks after Heflin’s test was administered revealed a printer error and the testimony of Officer Jennifer Taylor Whiddon, who operated the 1-5000 during Heflin’s test, about the operability of the machine on the night of Heflin’s test, were factors for the jury to consider and weigh.

My review of the record does not lead me to conclude that the logbooks, which were kept as required by the Department of Public Safety and the Department of Forensic Sciences at the time of Heflin’s I-5000 test, omitted references to the machine’s failure to pass inspection tests of its functioning. A distinction exists between an inspection test, which is performed by a trained member of the implied-consent unit of the Department of Public Safety, and an observation made by an operator when the 1-5000 conducts an internal check when a test is being administered. An inspector is trained to identify the source of malfunctions and to determine whether inaccurate test results are being recorded. Such information is properly contained in the logbook. However, an operator’s conclusion that a machine is not operational merely because the machine aborted a test, which could be the consequence of conditions in the room in which the test is being administered, does not indicate that the machine is not functioning properly. Such a conclusion by an operator who is not trained to determine malfunctions in the 1-5000 should not be reported in the logbook. For example, an operator may observe an 1-5000 shutdown and conclude that the machine is out of order. However, the 1-5000 is designed to shut down and err on the side of caution, not providing an inaccurate test result when the testing conditions are not proper for conducting a test. Such a shutdown does not indicate that the machine is not operational; it indicates that the machine is functioning properly and guarding against inaccurate test results. I reject the contention that logbooks were improperly maintained, which many would have this Court believe.

The trial court did not err in admitting into evidence the results of Heflin’s 1-5000 test. The additional evidence regarding the 1-5000 testing and inspection was properly submitted to the jury for its consideration.


text:
    Rickey BURGIN v. STATE of Alabama.
    CR-00-1645.
    Court of Criminal Appeals of Alabama.
    May 31, 2002.

      Rickey Burgin, pro se.
    William H. Pryor, Jr., atty. gen., and Sandra J. Stewart, asst. atty. gen., for appellee.
   SHAW, Judge.

Rickey Burgin appeals the circuit court’s summary denial of his Rule 32, Ala. R.Crim.P., petition for postconviction relief, in which he attacked his 1998 conviction for capital murder, see § 13A-5-40(a)(10), Ala.Code 1975, and his resulting sentence of life imprisonment without the possibility of parole. This Court affirmed Burgin’s conviction and sentence on direct appeal. See Burgin v. State, 747 So.2d 916 (Ala.Crim.App.1999). A certificate of judgment was issued in Burgin’s case on November 12, 1999.

Burgin filed the present petition on November 9, 2000. He filed amendments to his petition on February 1, 2001, and again on February 15, 2001. On March 5, 2001, the State filed a response and motion to dismiss Burgin’s petition. On March 7, 2001, Burgin filed another amendment to his petition. The circuit court summarily denied Burgin’s petition, as amended, on March 22, 2001.

On appeal, Burgin contends that the circuit court erred in summarily denying his petition without affording him an eviden-tiary hearing because, he says, his claims are meritorious on their face. In his petition and the amendments to that petition, Burgin presented over 30 claims, all of which were based on allegations that he was denied the effective assistance of counsel both at trial and on appeal.

After reviewing Burgin’s petition, we find that the majority of Burgin’s claims are either meritless or were not pleaded with sufficient specificity to warrant any further proceedings. See Rule 32.3, Ala. R.Crim.P. (“The petitioner shall have the burden of pleading ... the facts necessary to entitle the petitioner to relief.”); and Rule 32.6(b), Ala.R.Crim.P. (“The petition must contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings.”)- Therefore, summary denial of those claims was proper.

However, the State argues, and we agree, that a remand of this case to the circuit court is necessary for further proceedings as to two of Burgin’s claims, both of which were pleaded with sufficient specificity to satisfy the requirements in Rule 32.3 and Rule 32.6(b) and which, if true, may entitle Burgin to relief.

Burgin contends that his trial counsel was ineffective for not objecting to the trial court’s alleged failure to swear'in the jury venire before the voir dire examination. In its response and motion to dismiss, the State argued that the venire was sworn and that Burgin’s claim in this regard was meritless. However, the record from Burgin’s direct appeal is silent as to whether the venire was sworn. The circuit court had before it conflicting allegations regarding whether the venire was properly sworn. In its order summarily denying Burgin’s petition, the circuit court found that “the petition is without merit,” but it did not make specific findings of fact regarding whether the venire was sworn. (C. 233.) From the record before us, we simply cannot evaluate the merits of Bur-gin’s claim that his counsel was ineffective for not objecting to the alleged failure to swear the venire without knowing whether the venire was, in fact, sworn. See, e.g., Ex parte Hamlett, 815 So.2d 499 (Ala.2000), and Fortner v. State, 825 So.2d 876 (Ala.Crim.App.2001).

Burgin also contends, in two contradictory arguments, that his counsel was ineffective (1) for not presenting evidence to the trial court indicating that the prosecutor had called witness Pearlie Mae Reed, Burgin’s girlfriend and the mother of his child, for the sole purpose of impeaching her with a prior inconsistent statement, and (2) for not investigating Reed’s testimony in order to discover evidence indicating that she had recanted her statement to police before trial and that the prosecutor knew that she had recanted her statement. Shortly after the murders, Reed gave a statement to police in which she stated that Burgin had confessed to her that he had been involved in the murders. At trial, Reed testified that Burgin had never confessed to her. The State then impeached her using her prior inconsistent statement. Reed admitted that she had made the statement to police, but she testified that the statement to the police was a lie that she made up because she was mad at Burgin at the time she made the statement.

On direct appeal, Burgin argued that the State had called Reed to testify, knowing she was a hostile witness, for the sole purpose of getting before the jury evidence of her prior statement, which would otherwise have been inadmissible hearsay, and that the trial court had erred in allowing the State to impeach its own witness. This Court held that the State was properly allowed to impeach its own witness under Rule 607, Ala.R.Evid., and that, although the record showed that Reed was a reluctant witness, it did not support Bur-gin’s contention that the prosecutor had called Reed to testify solely to get before the jury evidence of her prior statement. In holding that the State was properly allowed to impeach Reed with her prior statement, however, this Court cautioned:

“We agree with those federal cases that hold that ‘the right to impeach one’s own witness is not absolute and may be held inapplicable due to abuse.’ C. Gamble, McElroy’s Alabama Evidence, § 165.01(6)(b) (5th ed.1996), citing United States v. Kane, 944 F.2d 1406, 1411 (7th Cir.1991).
“ ‘[Rule] 607 allows the government to impeach its own witness. See Fed.R.Evid. 607. However, “ ‘the government must not knowingly elicit testimony from a witness in order to impeach him with otherwise inadmissible testimony.’ ” United States v. Gomez-Gallardo, 915 F.2d 553, 555 (9th Cir.1990) (quoting United States v. Whitson, 587 F.2d 948, 952-58 (9th Cir.1978)). Impeachment is improper when employed as a guise to present substantive evidence to the jury that would be otherwise inadmissible. Id. A determination must be made as to whether the government examined the witness for the primary purpose of placing before the jury substantive evidence which is otherwise inadmissible. Id.’
“United States v. Gilbert, 57 F.3d 709, 711 (9th Cir.), cert. denied, 515 U.S. 1110, 115 S.Ct. 2264, 132 L.Ed.2d 269 (1995). ‘It would be an abuse of the rule ... for the prosecution to call a witness that it [knows mil] not give it useful evidence, just so it [can] introduce hearsay evidence against the defendant in the hope that the jury would miss the subtle distinction between impeachment and substantive evidence ....’ United States v. Webster, 734 F.2d 1191, 1192 (7th Cir.1984). However, a prosecutor may call a witness it knows may be hostile, and it may impeach that witness’s credibility. Surprise is not a necessary prerequisite to impeaching one’s own witness under Rule 607. United States v. Palacios, 556 F.2d 1359 (5th Cir.1977). Even if the prosecution had reason to believe that a witness would be reluctant to testify, it should not be bound by that knowledge when deciding to call a witness, because ‘an attorney is entitled to assume that a witness will testify truthfully’ once the witness is in a court of law and is under oath. United States v. Patterson, 23 F.3d 1239, 1245 (7th Cir.), cert. denied, 513 U.S. 1007, 115 S.Ct. 527, 130 L.Ed.2d 431 (1994). A prosecutor’s decision to call such a witness is subject to a good-faith standard, and it is ‘always open for the defendant to argue that the probative value of the evidence offered to impeach the witness is clearly outweighed by the prejudicial impact it might have on the jury, [pursuant to Rule 403, Ala. R.Evid.], because the jury would have difficulty confining use of the evidence to impeachment.’ United States v. Webster, 734 F.2d at 1193.”

Burgin, 747 So.2d at 918-19 (emphasis added).

Burgin argues that Reed had told the prosecutor before his trial that her statement to police was a lie and that, knowing that Reed would not give useful evidence, the prosecutor nevertheless called Reed as a witness, thus showing that the prosecutor’s sole purpose for calling Reed was to introduce Reed’s prior statement “in the hope that the jury would miss the subtle distinction between impeachment and substantive evidence.” Burgin maintains, in alternative arguments (1) that his counsel knew that Reed had told the prosecutor before trial that her prior statement was a lie and that his counsel should have presented evidence to that effect to the trial court when counsel objected to Reed’s testimony, and (2) that his counsel did not know that Reed had told the prosecutor before trial that her prior statement was a lie because his counsel did not properly investigate Reed as a witness in order to discover that she had recanted her statement. In each argument, Burgin maintains that had his counsel properly investigated and/or presented evidence indicating that the prosecutor knew before trial that Reed had recanted her statement to police, then his counsel could have shown that the prosecutor’s sole purpose for calling Reed as a witness was to get before the jury the substance of her prior statement, and Reed would have been prohibited from testifying.

In support of his claims, Burgin attached to his petition an affidavit from Reed, in which she stated that she had told the prosecutor on three different occasions before Burgin’s trial that her statement to police had been a lie and that she did not want to testify against Burgin, and an affidavit from his mother, Debra Burgin, in which she stated that she had told Bur-gin’s counsel that Reed had told the prosecutor that her prior statement to the police was a he. The State did not refute these claims in its motion to dismiss Burgin’s petition and, as noted above, the circuit court made no specific findings regarding any of Burgin’s claims.

As with the previous claim, we simply cannot determine the merits of Burgin’s claims in this regard without knowing whether the prosecutor knew, before Bur-gin’s trial, that Reed had recanted her statement to police and called Reed as a witness solely to get before the jury evidence of Reed’s prior statement; whether Burgin’s counsel had evidence to that effect that could have been, but was not, presented to the trial court; and whether, if Burgin’s counsel did not have evidence to that effect, such evidence could have been discovered had counsel properly investigated the matter.

Therefore, we remand this case for the circuit court to address the merits of those ineffective-assistance-of-counsel claims discussed above and to make specific findings of fact regarding each claim. On remand, the circuit court may either conduct an evidentiary hearing or take evidence in the form of affidavits, written interrogatories, or depositions. See Rule 32.9(a), Ala. R.Crim.P. 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 taken by the court.

REMANDED WITH DIRECTIONS.

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

      . Burgin filed another amendment to his petition on March 26, 2001. However, because the circuit court had already denied Burgin's petition, that amendment was untimely. See Allen v. State, 825 So.2d 264 (Ala.Crim.App.2001).

      . Burgin was represented by the same counsel at trial and on appeal.


author: COBB, Judge.

text:
    Timothy Lee SUNDAY v. STATE of Alabama.
    CR-01-0207.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 2002.

      Timothy Lee Sunday, pro se.

      William H. Pryor, Jr., atty. gen., and Sandra J. Stewart, asst. atty. gen., for appellee.
   COBB, Judge.

On December 2,1999, Timothy Lee Sunday was convicted of first-degree sexual abuse. The trial court sentenced him, as an habitual felony offender, to life in prison. See § 18A-5-9(c)(l), Ala.Code 1975. Sunday appeals his conviction and sentence, and this Court affirmed in an unpublished memorandum. Sunday v. State, (No. CR-99-1045) 814 So.2d 1015 (Ala.Crim.App.2000) (table). The certificate of judgment was issued on January 5, 2001. On July 24, 2001, Sunday filed a Rule 32, Ala. R.Crim. P., petition. After the State responded, the circuit court summarily denied the petition on September 26, 2001.

In his petition, Sunday claimed 1) that his trial counsel rendered ineffective assistance by failing to object to and to preserve for appellate review the argument that the prosecutor knowingly elicited perjured testimony from the victim; 2) that his trial counsel rendered ineffective assistance by failing to adequately cross-examine the victim; 3) that the prosecutor committed prosecutorial misconduct during her closing argument; 4) that his trial counsel rendered ineffective assistance by failing to object to the alleged prosecutorial misconduct; 5) that his trial counsel rendered ineffective assistance by failing to object to the trial court’s jury instruction on reasonable doubt; 6) that appellate counsel rendered ineffective assistance by failing to present for appellate review the issue whether the search of Sunday’s room and the seizure of evidence from the room were illegal; 7) that appellate counsel rendered ineffective assistance by failing to present for appellate review the issue whether the trial court erroneously instructed the jury on forcible compulsion; and 8) that his sentence exceeds the maximum authorized by law because his prior offenses in Oklahoma do not constitute felonies in Alabama.

The circuit court entered an order denying Sunday’s petition as precluded, stating, in pertinent part: “The Court is of the opinion that [trial counsel] did an extremely diligent job of representing the Defendant throughout the course of the proceedings .... [Appellate counsel] also has the reputation of being diligent in his representation of clients.” (C.R.172-73.)

On appeal, Sunday reasserts the claims from his petition.

“[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, that court’s review in a Rule 32 proceeding is de novo.” Ex parte White, 792 So.2d 1097, 1098 (Ala.2001).

Rule 32.7(d), Ala. R.Crim. P., provides for the summary disposition of a Rule 32 petition only

“[i]f the court determines that the petition is not sufficiently specific [in violation of Rule 32.6(b), Ala. R.Crim. P.], or is precluded [under Rule 32.2, Ala. R.Crim. P.], or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings.... ”

The record does not support the circuit court’s ruling on the merits regarding ineffective assistance of trial counsel. The circuit court did not provide findings of fact in support of its ruling. However, “[i]f the circuit court is correct for any reason, even though it may not be the stated reason, we will not reverse its denial of the petition. See Roberts v. State, 516 So.2d 936 (Ala.Cr.App.1987).” Reed v. State, 748 So.2d 231, 233 (Ala.Crim.App.1999).

In order to prevail on a claim of ineffective assistance of counsel, a defendant must show (1) that his counsel’s performance was deficient, and (2) that he was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Though Sunday presented lengthy arguments in support of his claims, his pleadings failed to establish that counsel’s performance was deficient. His failure to plead facts fulfilling the Strickland requirements regarding his claims of ineffective assistance of trial counsel—claims 1, 2, 4, and 5—render those claims procedurally precluded under Rule 32.3, Ala.R.Crim.P., because they have not been sufficiently pleaded to indicate that Sunday is entitled to relief.

Claim 3 is precluded because it could have been, but was not, raised at trial or on appeal. Rule 32.2(a)(3) and (5), Ala. R.Crim. P. Therefore, because this claim was precluded, the circuit court properly summarily denied it.

However, as the State points out, Sunday’s claims of ineffective assistance of appellate counsel and of an illegal sentence are facially meritorious. Moreover, this petition represents Sunday’s first opportunity to challenge appellate counsel’s representation. See Ex parte Walker, 800 So.2d 135, 138 (Ala.2000) (trial court has no knowledge of counsel’s performance on appeal). Therefore, summary disposition of those claims was in error, and we remand this cause to the circuit court. The circuit court is, in its discretion, to hold an evidentiary hearing or to “take evidence by affidavits, written interrogatories, or depositions, in lieu of an evidentiary hearing, ... or the court may take some evidence by such means and other evidence in an evidentiary hearing.” Rule 32.9(a), Ala. R.Crim. P. The circuit court shall also make specific findings of fact relating to each of the ineffective-assistance-of-appellate-counsel claims and to the illegal-sentence claim. Rule 32.9(d), Ala. R.Crim. P. Due return shall be made to this Court within 42 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

McMillan, p.j„ and WISE, J., concur; BASCHAB and SHAW, JJ., concur in the result.

      . Sunday presents several additional bases for the alleged prosecutorial-misconduct claim. However, because those specific claims were not first raised in the circuit court, they are not properly before this Court for appellate review. Arrington v. State, 716 So.2d 237, 239 (Ala.Crim.App.1997) (“An appellant cannot raise an issue on appeal from the denial of a Rule 32 petition which was not raised in the Rule 32 petition.").


author: COBB, Judge

text:
    Ex parte State of Alabama. (In re STATE of Alabama v. Daniel Wade MOORE).
    CR-02-1205.
    Court of Criminal Appeals of Alabama.
    July 8, 2003.
   ORDER

Pursuant to the provisions of Rule 21(a), Alabama Rules of Appellate Procedure, the respondent is hereby granted twenty-one (21) days to respond to the allegations contained in this petition for writ of mandamus.

McMILLAN, P.J., and BASCHAB, SHAW, and WISE, JJ„ concur.

COBB, J., dissents, with opinion.

COBB, Judge

(dissenting).

I respectfully dissent from the majority’s decision in an unpublished memorandum to order the trial judge to respond.

In this case, after the defendant was convicted of capital murder, the trial court granted his motion for a new trial based on the State’s violations of the discovery order. The trial court stated in its order that “[ijnformation that was ordered produced to the defendant months prior to trial was produced at various and sundry time[s] ranging from six weeks prior to trial, just a few days prior to trial, on the day the trial began, and some discovery was even produced for the first time during the course of the trial.” (Emphasis added.) The trial court added that it was granting the motion

“without the benefit of a hearing being afforded to the State because the State has refused to consent in writing to an extension of the sixty days rule requiring the Court to rule on said motion. The Court has read the State’s response and finds no reason to deny the defendant’s motion.”

The majority’s order requiring the trial court to respond gives credence to the State’s claims in its petition that the trial court did not identify any particular item of evidence; that the trial court had previously denied a pretrial motion to dismiss based on discovery violation grounds; and that the trial court failed to identify “any legal standard” used to evaluate the discovery claims. I find it interesting that the State, which then refused to acquiesce to the extension of the time to rule on the motion for a new trial, now complains of the terseness of the order granting the motion.

I also note that the State has attached several exhibits, including the defendant’s motions concerning the discovery violations, the State’s response, and the trial court’s order.

A petition for a writ of mandamus shall contain

“a statement of the facts necessary to an understanding of the issues presented by the application; a statement of the issues presented and of the relief sought; a statement of the reasons why the writ should issue, with citations to the authorities and the statutes relied on; and copies of any order or opinion or parts of the record that would be essential to an understanding of the matters set forth in the petition.”

Rule 21(a), Ala. R.App. P. “If the court is of the opinion that the writ should not be granted, it shall deny the petition. Otherwise, it shall order that an answer to the petition be filed by the respondents within the time fixed by the order.” Rule 21(b), Ala. R.App. P.

The majority wants to force the trial court to respond to the petition. Neither the majority nor the State cites any legal authority, and I know of none, for the proposition that the trial court is required to respond in this case. I can say, without a doubt, that a trial court would never grant a motion for a new trial in a capital-murder case without giving the matter much thought and consideration. I do not believe that the State has fulfilled its burden of pleading facts sufficient to indicate that the trial court haphazardly and illegally granted the motion for a new trial in this case.

Furthermore, all that we need to render a decision is in the materials before us. I believe that ordering a response is not necessary and would be a waste of the trial court’s valuable time and resources.

Finally, as a related problem, I take issue with the State’s attempting now — in its petition for a writ of mandamus — to offer explanations for its alleged discovery violations that were the basis of the motion for a new trial. The State was allowed to respond to the allegations of discovery violations at trial; a copy of that response has been filed as an exhibit with this petition. The State would have been allowed to respond further at a hearing, but the State refused to allow the hearing to be continued. We should review the trial court’s decision based only on the information and arguments that were before that court at the time of its decision. We should review only those portions of the petition that deal with the State’s assertions regarding thé alleged discrepancies in the trial court’s order and the trial court’s denial of the pretrial motion to dismiss.

For these reasons, I do not believe the trial court should be ordered to waste yet more of its time and resources in responding to this petition; I believe that this Court should rule on the State’s assertions outright. Therefore, I respectfully dissent from the majority’s decision to force the trial judge to answer the mandamus petition.

      . I fail to see how this fact has any bearing on the current determinations; as the trial court pointed out, some of the discovery violations did not come to light until trial and, therefore, could not have been the subject of a pretrial motion to dismiss.