author: PITTMAN, Judge. CRAWLEY, Judge,

text:
    A.W.G. v. JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2010800.
    Court of Civil Appeals of Alabama.
    April 18, 2003.

      W. Davis Lawley, Jr., Birmingham, for appellant.
    William H. Pryor, Jr., atty. gen., and J. Coleman Campbell, deputy atty. gen., and Lynn S. Merrill, asst. atty.. gen., Department of Human Resources, for appellee.
   PITTMAN, Judge.

A.W.G. (“the mother”) appeals a juvenile court’s judgment terminating her parental rights as to A.B.G. (“the child”).

The genesis of this case is very convoluted. In September 1999, when the child was just six months old, the mother and R.G. (“the father”) had an argument that culminated in the father’s threatening the mother with a machete. ' The Jefferson County Department of Human Resources (“DHR”) took custody of the child on September 7, 1999. The dependency action filed by DHR on September 9, 1999, alleged that the child’s parents were separated and involved in an ongoing custody dispute and that neither parent had established a place for the chiid to live. At a shelter-care hearing in September 1999, the juvenile court declared the child dependent and awarded DHR temporary custody of the child. On September 16, 1999, the trial court issued an order stating that the mother could regain custody of her child if she moved into a domestic-abuse shelter, began attending parenting classes, and agreed to undergo random drug testing. :

On July 31, 2000, over the objection of counsel and without the mother’s being present, the juvenile court entered a default judgment of dependency against the mother and directed her to pay child support to DHR. The court noted in its order that at that time the case had been pending 11 months; it directed DHR to comply with the federal permanency statutes requiring that a plan be presented to the trial court within 12 months of taking custody of a child. See Adoption and Safe Families Act, 42 U.S.C. § 671 and § 675 (“ASFA”). The juvenile court set the case for a dispositional review hearing to be held on October 4, 2000.

At the October 4, 2000, hearing, after DHR had submitted a report concerning the case, the juvenile court continued DHR’s custody of the child and found that reunification was contrary to the best interest of the child. At that time, the juvenile court did not approve the case plan submitted by DHR pursuant to the ASFA. The juvenile court set the case for another review hearing on January 10, 2001. Following that hearing, the juvenile court held that DHR had failed to comply with the ASFA and with the court’s order of October 4, 2000, and noted that the child remained in foster care and that no permanency plan was being pursued. The juvenile court noted that all parties were present at that time, but that before the hearing the court had been unable to locate either the mother or the father for lengthy periods of time. The juvenile court ordered the father to undergo drug screening and set the case for trial on February 22, 2001.

On January 31, 2001, DHR filed a petition to terminate the parental rights of the mother and the father based upon their having failed to comply with certain provisions of the July 31, 2000, default dependency judgment. On February 20, 2001, the child’s maternal grandmother, R.A., filed a motion to intervene; arguments concerning her motion were heard at the trial previously set for February 22, 2001. Following that hearing, the juvenile court entered an order conditionally granting the maternal grandmother’s petition to intervene. Because the mother had not been served with the petition to terminate her parental rights, she was served on February 22, 2001, and the juvenile court reset the trial for April 26, 2001; however, on April 26, 2001, the juvenile court continued the trial to August 14, 2001.

At the end of July 2001, the mother’s attorney sent the juvenile court a letter regarding counsel’s potential scheduling conflicts. On August 7, 2001, the mother’s attorney filed a motion in limine to suppress all court reports filed before the trial. Also filed at that time was a motion requesting the guardian ad litem and DHR to produce all documents pertinent to the proceedings. Numerous reports were placed in the court file during the pen-dency of this action, some stamped “filed in court” and some neither stamped nor marked as filed in court (such as DHR’s court reports dated November 10, 1999; July 31, 2000; January 10, 2001; February 22, 2001; and August 14, 2001). The DHR reports dated February 22, 2001, and August 14, 2001, were filed in court during the trial held on August 14 and 15, 2001.

Vivian Hunter, a DHR child-abuse-and-neglect investigator, and Tikiella Sanders, the DHR caseworker who had been assigned to the child’s case since January 2001, testified at trial. Although these DHR employees had prepared some of the reports appearing in the record, certain reports were offered into evidence that had been prepared by persons other than the two DHR witnesses. The mother’s attorney and the father’s attorney objected to the introduction of the reports not prepared by Hunter or Sanders, and the juvenile court allowed counsel a “continuing” objection throughout the trial. Both the father and the mother also testified.

Hunter testified that she had been assigned to this case from September 1999 through January 2000. She stated that she had personally prepared the DHR reports dated November 10, 1999, December 1, 1999, and January 7, 2000. The juvenile court admitted those three reports into evidence at the trial. Hunter stated that during the time she was handling the case, the mother did not comply with the court’s September 16, 1999, order in that she did not move into a domestic-abuse shelter, did not take any domestic-abuse or parenting classes, and did not undergo any of the court-ordered random drug testing. Hunter also testified that she completed a home evaluation for the mother and for D.L., a cousin of the father. Those evaluations concluded that D.L. would be an acceptable placement except for the fact that the father was then living in that residence. Because of the threat of future violence, it was determined that D.L.’s home was not an acceptable placement for the child at the time of Hunter’s evaluations.

Sanders testified that she had been the social worker assigned to the case since January 2001. She authenticated a DHR court report dated March 29, 2000; she stated that she did not write that report but that she had seen it in the DHR files of the case. The juvenile court admitted the report (DHR Exhibit 5) over the objection of the mother’s attorney.

Sanders testified that she had prepared two court reports: one dated February 22, 2001, and one dated August 14, 2001. Those reports were admitted over objections by both the mother’s and the father’s attorneys. Sanders stated that she had talked to the father only once during the months that she had been the caseworker; that the father had never given DHR an address or telephone number by which he could be reached; 'that the father had never paid any child support; and that the father had not complied with any of the juvenile court’s previous orders.

On cross-examination, Sanders testified that she had not visited the home where the mother currently lives. She also reiterated that none of the father’s or the mother’s relatives were reviewed before the hearing to determine if any of them would qualify as an alternative placement. Sanders testified that since January 2001, the mother had consistently visited with the child. On the other hand, Sanders testified that the mother had not submitted to random drug screening, had not provided any child support, had not maintained steady employment, and had not provided proof of attendance at parenting or anger-management classes.

Sanders also testified that although DHR could help the mother obtain public housing and could provide transportation to all of the court-ordered classes, she had not discussed those services with the mother. Sanders testified that she had written only one of three court reports marked DHR Exhibits 13, 14, and 15. The juvenile court admitted all three exhibits over the objections of the mother’s and the father’s attorneys. Sanders also testified that DHR is required by the federal ASFA to file a petition to terminate parental rights if a child has been in DHR’s custody more than 13 months with no improvement on the part of the parents. See 42 U.S.C. § 671 and § 675.

The father testified that he had learning disabilities and that he had been “dismissed” from school in the ninth grade. He remembered having appeared in court in July 2000, but did not remember signing an agreement to undergo random drug screening, to attend parenting classes, or to pay child support every month. He admitted that he had not taken any affirmative action to regain custody of his child and that he had not obeyed any of the previous court orders. He stated that at the time of the hearing he was incarcerated in the Bessemer jail because he had been arrested and charged with third-degree domestic violence, assault and resisting arrest.

The mother testified that immediately after the child had been taken into DHR custody she had tried to enter a domestic-violence shelter. The mother stated that at the time of the shelter-care hearing in September 1999 all of the area shelters were full and could not accommodate the mother and the child. Approximately three weeks later, the mother learned that “floor space” was available in a shelter, but she told the DHR caseworker that she would not move into a shelter only to have the child sleep on the floor. The mother admitted that a DHR caseworker had then performed an evaluation of a house belonging to a friend of the mother in Springville, with whom the mother was staying, and determined it to be inadequate. The mother testified that because she did not have a driver’s license, she continued to rely on friends to provide her with transportation to work and to meetings with DHR.

The mother stated that she had worked at a McDonald’s restaurant near the friend’s house for about six months, but that she had moved because DHR had determined that the friend’s house was not an appropriate place for the child to live. She eventually moved back into her mother’s house, which is where she and the father were living when the child was originally removed by DHR. The mother stated that she was able to obtain public housing during a period in which she was working at a Burger King restaurant in Gardendale; she stated that she had had a miscarriage and that because of health problems resulting from the miscarriage, she became unemployed. The mother testified that she had been living in a house with Kevin Harris and his parents in Traf-ford immediately before trial. The mother stated that she had taken some domestic-violence classes and some parenting classes through the YWCA in Blount County. The juvenile court accepted into evidence a certificate showing that the mother had completed a domestic-violence class.

The mother also testified that she recently had undergone a drug-dependency assessment performed by professionals at the Bradford Assessment Center in Warri- or. She stated that Bradford did not give her any written assessment and that she could not afford to pay to remain in programs at the facility. The mother stated that she believed her biggest problem in fulfilling the juvenile court’s orders was the lack of transportation to attend random drug screening, counseling, DHR meetings, parenting classes, and visits with the child.

The mother also testified that she had not used illicit drugs for two years and that she had attempted to find a steady job and a stable home in which to raise the child. The mother testified that she had been abused by her mother when she was a child and that she was removed from her mother by DHR after having been sexually abused by her stepfather’s father. The mother offered results of a drug test she had taken in February 2000 that indicated that she was drug-free at that time; the juvenile court admitted those test results into evidence. The mother stated that during the week of the hearing she had moved into the house of relatives of her boyfriend in Center Point in order to be on a bus route, so that she would have a transportation option.

Nine days after the hearing, but before the juvenile court had entered a judgment in the case, the mother’s attorney filed a motion alleging that the August 14, 2001, hearing should be declared a mistrial based on a conflict of interest on the part of the guardian ad litem. The motion stated that two days after the trial had ended, the guardian ad litem had informed the mother’s and the father’s attorneys that an attorney from Legal Aid had represented the mother as a guardian ad li-tem in a dependency case some years before the trial in this case, when the mother was a minor. The mother’s attorney argued that that fact created a presumption of conflict that required a mistrial or retrial. On August 23, 2001, the guardian ad litem filed with the juvenile court a notice of potential conflict. The juvenile court issued an order reserving its ruling on the motion until the Alabama State Bar could respond to the judge’s request for an opinion. The Alabama State Bar responded on August 29, 2001, in a letter outlining two criteria required for disqualification. The letter stated that for a conflict to exist (1) the two matters must be substantially related and (2) a lawyer remaining in the office must have confidential information concerning the matter that could be used to the detriment of the former client. Based on the facts of this case, the letter concluded that the matters were not substantially related and, therefore, no conflict of interest existed.

The mother’s motion was initially set for hearing on September 4, 2001, but was reset several times and was scheduled for a hearing on February 11, 2002. On December 6, 2001, the juvenile court set the maternal grandmother’s petition to intervene for hearing on February 11, 2002, as well. DHR submitted a report to the juvenile court on February 11, 2002; however, the juvenile court continued the hearing from February 11 to March 4, 2002, at which time DHR filed yet another report on the case. The mother’s attorney filed an objection to that DHR report. The juvenile court set a final hearing on all pending matters for April 22, 2002; this hearing was later reset to May 3, 2002.

However, on April 26, 2002, the juvenile court entered a judgment terminating the parental rights of both the mother and the father. In its judgment, the juvenile court found that the child was dependent, and it concluded that DHR had “investigated all relative resources and none [we]re found to be suitable.” While the juvenile court found that the child had been moved into an adoptive-placement foster home only one week before trial, that court also specifically found that “it is in the best'interest and welfare of the child and the least restrictive alternative that the mother and the father be relieved of custody” of the child. Only the mother has appealed from the juvenile court’s judgment.

“The juvenile court’s decision to terminate parental rights, which is based on evidence presented ore tenus, is presumed correct and will be reversed only if the record demonstrates that the decision is unsupported by the evidence and is plainly and palpably wrong.”

M.H. v. Calhoun County Department of Human Resources, 848 So.2d 1011, 1013 (Ala.Civ.App.2002). The mother argues that the juvenile court erred in terminating her parental rights based primarily on hearsay contained in court reports admitted during the trial.

While the trial in the juvenile court occurred before Y.M. v. Jefferson County Dep’t of Human Res., [Ms. 2010755, January 24, 2003] — So.2d -(Ala.Civ.App.2003), was decided, the mother’s main contention is similar to that raised by the appellant in Y.M. The main opinion in Y.M., the opinion of two judges of this court, discusses differences between adjudicatory and dispositional phases in a termination-of-parental-rights ■ proceeding. The main opinion in Y.M. carefully reviewed the provisions of Ala.Code 1975, § 12 — 15—65(f) and (h), as well as § 12-15-71(a), and concluded “that a parental-rights-termination hearing is an adjudicatory proceeding at which hearsay evidence, which is permitted by § 12-15-65(h) in a dispositional proceeding, is inadmissible.” Y.M., —So.2d at-,

Assuming, without deciding, that the distinction drawn in the main opinion in Y.M. is binding in this case, the juvenile court could and did accept reports written by the two DHR employees who authored several of the reports objected to by the mother’s counsel. The testimony establishes that the court reports dated November 10, 1999, December 1, 1999, and January 7, 2000 (Hunter’s reports), as well as February 22, 2001, and August 14, 2001 (Sanders’s reports) were properly authenticated and admitted.

In addition to that admissible evidence, a trial court may take judicial notice of its own prior orders in a pending case. See 2 Charles W. Gamble, McElroy’s Alabama Evidence § 484.02(2) (5th ed.1996); Richardson v. Richardson, 531 So.2d 1241 (Ala.Civ.App.1988). In this case, when the trial court stated that it would take judicial notice- of its prior orders — requiring the mother to submit to random drug testing, to attend certain classes in parenting and anger management, and to pay child support — neither of the parent’s attorneys objected, thereby waiving any objection on appeal. See Vaughan v. Oliver, 822 So.2d 1163, 1169 (Ala.2001).

Finally, it has long been the rule that any consideration of inadmissible written evidence constitutes harmless error whenever properly admitted testimony substantially duplicates the evidence contained in the inadmissible writings. See Rule 45, Ala. R.App. P.; Worley v. Jinks, 361 So.2d 1082 (Ala.Civ.App.1978); see also R.M. v. State Dep’t of Human Res., 735 So.2d 1218 (Ala.Civ.App.1998) (Craw-ley, J., concurring specially). Thus, while the juvenile court may technically have erred in allowing certain DHR documents to be admitted, a number of the records and orders were properly admitted during the adjudicatory phase of the parental-rights-termination proceeding. Conversely, to determine whether the improper admission of certain other DHR reports was reversible error, we must review the juvenile court’s judgment in light of the testimony and admissible evidence in order to ascertain whether the error in admitting certain records was harmless.

The November 10, 1999, report prepared by Hunter corroborated Hunter’s testimony that the mother refused to enter a shelter because she did not believe a shelter was an appropriate environment for the child. Home evaluations had.been performed on the father’s cousin, and the mother’s friend’s home. The report concluded that although the court order allowed the mother to regain custody if she entered a domestic-violence shelter, the mother refused to do so; thus, the child remained in DHR custody in foster care. The report also noted that the mother “refuses to go to a Domestic Violence Shelter; [is] unable to provide a stable home environment for [the] child; [and] has not enrolled in the UAB TASC program for random drug screening.” Hunter’s December 1, 1999, report noted that the mother’s parents had filed a petition seeking temporary custody of the child; however, a review of DHR records revealed that the mother’s mother had previous allegations of abuse of her own children between 1978 and 1992. DHR recommended not placing the child with the mother’s mother and keeping the child in foster care until the child could be reunited with her mother. The third report, dated January 7, 2000, prepared by Hunter, summarized the previous two reports and concluded that, although the mother still had not enrolled in a program for random drug screening, the “[w]orker believes th[e] child should remain in foster care until mother has stable housing, stable employment and is able to provide a safe home environment for the child.”

The February 22, 2001, court report prepared by Sanders summarized the situation that led to DHR’s gaining custody of the child in 1999, as outlined in Hunter’s three reports. The report stated that the child “continues to do well in her current foster home, continues to visit with her mother and maternal grandparents every other Tuesday at DHR, and continues to attend daycare where she is able to learn and interact with children her own age.” This report concluded for the first time that the case plan for the child was termination of parental rights and adoption of the child. Sanders prepared a court report dated August 14, 2001, in which the previous orders of the juvenile court were listed. Those orders required both parents to enroll in and successfully complete inpatient drug treatment, followed by aftercare with six months of random drug screening, to attend anger-management counseling and parenting classes until released by counselors, to have supervised visits with the child at DHR, to cooperate with DHR and service providers, to locate stable housing and stable employment, and each to pay $147 in monthly child support. The report noted that on August 6, 2001, the child had been moved from foster care into an adoptive home. The report contained the statement that “[t]here is no new information to provide regarding [the mother’s] compliance with the court orders.” The report concluded that the case plan for the child was termination of parental rights and adoption.

This court has consistently held that, in a proceeding to terminate parental rights, the juvenile court must first find from clear and convincing evidence that the child is dependent. See S.F. v. Dep’t of Human Res., 680 So.2d 346 (Ala.Civ.App.1996); K.M. v. Shelby County Dep’t of Human Res., 628 So.2d 812 (Ala.Civ.App.1993). Second, the juvenile court must determine that there exists no viable alternatives to terminating the parental rights. See P.W. v. Houston County Dep’t of Human Res., 771 So.2d 1057 (Ala.Civ.App. 2000); L.A.G. v. State Dep’t of Human Res., 681 So.2d 596 (Ala.Civ.App.1996). “Although a child’s parents have a prima facie right to custody, the paramount concern in these proceedings is the best interests of the child.” P.W., 771 So.2d at 1059. The principal statutes concerning actions to terminate parental rights are codified at §§ 26-18-1 through 26-18-11, Ala.Code 1975.

Section 26-18-7(a) provides, in pertinent part:

“If the court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child, the court shall consider, and in cases of voluntary relinquishment of parental rights may consider, but not be limited to, the following:
“(1) That the parents have abandoned the child, provided that in such cases, proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parents.
“(2). Emotional illness, mental illness or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of such duration or nature as to render the parent unable to care for needs of the child.
“(3) That the parent has tortured, abused, cruelly beaten, or otherwise maltreated the child....
“(4) Conviction of and imprisonment for a felony.
“(5) Unexplained serious physical injury to thé child under such circumstances as would indicate that such injuries resulted from the intentional conduct or willful neglect of the parent.
“(6) That reasonable efforts by the [DHR] ... leading toward the rehabilitation of the parents have failed.
“(8) That parental rights to a sibling of the child have been involuntarily terminated.”

Furthermore, § 26-18-7(b) provides that if, at the time of the termination hearing, the child is not in the custody of the parents, the juvenile court may consider whether the parents are providing monetary support for the child, whether they are regularly exercising visitation with the child, and whether they are adjusting their “circumstances to meet the needs of the child.”

We first address whether the child is dependent. The admissible evidence indicated that the child was removed from the mother in September 1999, as a result of a violent argument between the mother and the father. The mother sought a protection-from-abuse order and eventually moved out of the abusive environment. The mother stated that she had left the father as a result of his violent behavior and in order to get her child back from DHR. However, the mother testified that she had never paid child support and had not maintained steady employment to enable her to make court-ordered child-support payments. The mother admitted that she had lived in numerous locations between September 1999 and August 2001— with friends, with her mother, with the parents of her boyfriend, and most recently with other relatives of her boyfriend. The mother’s inability to maintain full-time employment and thereby acquire stable housing was evident from her own testimony. We conclude that the record contains clear and convincing evidence that the child is dependent.

We next review whether the juvenile court properly considered viable alternatives to a termination of the mother’s parental rights and whether it properly rejected those alternatives. The current case worker, Sanders, confirmed that the mother had consistently exercised visitation during the eight months immediately preceding the trial. However, the mother admitted that she had never paid child support. She testified that because she had never gotten a driver’s license nor owned a motor vehicle, she had not been able to maintain steady employment. She also stated that the lack of a means of reliable transportation had prevented her from following the previous court orders to attend an inpatient drug treatment program, to submit to random drug tests, and to take parenting and anger-management classes. The earliest reports prepared by Hunter, as well as the mother’s testimony, established that none of the mother’s relatives could be considered appropriate placements. Furthermore, none of the father’s relatives had expressed an interest in being considered as alternate placements after 1999.

The juvenile court’s judgment contained the following findings of fact regarding the mother:

“The mother has never completed drug assessments and random drug screens; has failed to maintain stable housing; has failed to adjust her circumstances in order to attend required services; has failed to attend parenting education; has provided no support for her child; [and] has failed to maintain employment. ...
“Based on the foregoing, this Courts [sic] finds that the parents have failed to provide for their child when able to do so, to adjust their circumstances as required by the court, after offers of services from [DHR].... ”

If this court completely ignores all the court reports and focuses solely on the testimony, the mother’s own testimony established that she had done nothing until the week of trial to adjust her circumstances to meet the needs of her child. The mother had had numerous opportunities to change her living conditions in order to regain custody of her child between the time the child was taken into custody by DHR and the time of trial. Even though the mother testified that for nearly a year she had had her own apartment and a steady job, at no' time did she ever pay child support. Similarly, although the mother blames her inability to comply with court orders to undergo drug screening and attend parenting classes on her lack of transportation, that lack could have been easily remedied at any time if the mother had' shown any initiative to change her circumstances and had moved to a location serviced by public transportation. The admissible evidence indicated that the mother loved the child, but also that she had taken no' affirmative steps to modify her lifestyle to meet the needs of the child. We conclude that visiting with the child is insufficient by itself to meet the statutory requirements of § 28-18-7(b) to regain custody of the child.

The admissible evidence contained in the five reports- summarized earlier, coupled with the mother’s own testimony that she had never paid child support, had failed to undergo random drug screening, had never taken anger-management classes, and had never acquired stable housing or employment constitutes clear and convincing evidence to support the trial court’s judgment terminating the mother’s parental rights. “ ‘ “The- trial court is given the authority to terminate parental rights if it finds from clear and convincing evidence that the parents are unable or unwilling to discharge their responsibilities to and for the child[].” ’ ” J.W. v. State Dep’t of Human Res., 855 So.2d 539, 543 (Ala.Civ.App.2003) (quoting ARE. v. E.S.W., 702 So.2d 138, 139 (Ala. Civ.App.1997), quoting in turn M.H.S. v. State Dep’t of Human Res., 636 So.2d 419, 421 (Ala.Civ.App.1994)).

Based on the foregoing, we conclude that, although the juvenile court improperly admitted several DHR reports that should have been excluded on the grounds of hearsay, a careful review of the record — omitting those reports — reveals that admissible evidence supports the termination of the mother’s parental rights. Any error in admitting the other court records was harmless in the light of the properly admitted evidence and testimony that support the judgment. See. 2 McElroy’s Alabama Evidence, § 430.01 (5th ed.1996); Muncher v. Muncher, 509 So.2d 250, 252 (Ala.Civ.App.1987). The judgment of the juvenile, court is due to be affirmed.

AFFIRMED.

CRAWLEY, J., concurs specially.

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

CRAWLEY, Judge,

concurring specially.

I concur with the main opinion’s holding that if the trial court erred in this proceeding by admitting hearsay, the error was harmless. I write specially only to point out that, whilé a juvenile court may, of course, take notice of its own records, it may not “remove the documentary materials in the court files from the purview of the hearsay rule.” Y.M. v. Jefferson County Dep’t of Human Res., [Ms. 2010755, January 24, 2003] - So.2d -, - (Ala.Civ.App.2003) (citing In re A.B., 308 Ill.App.3d 227, 719 N.E.2d 348, 241 Ill.Dec. 487 (1999)) (holding that the trial court erroneously took judicial notice, in a parental-rights-termination proceeding, of the entire neglect file that led to the removal of the children from the mother).

‘“A court'may take judicial notice of matters generally known to the court and not subject to reasonable dispute. This includes matters of record in its own proceedings. However, taking judicial notice of matters of record in a court’s own proceedings cannot result in admitting hearsay evidence where it would otherwise be prohibited.’

“In re A.B., 308 Ill.App.3d at 237, 719 N.E.2d at 356-57, 241 Ill.Dec. at 495-96 (citations omitted).

“ ‘[DJuring a typical proceeding to terminate parental rights, a trial court will likely receive various service plans and reports that may contain information that is hearsay or otherwise inadmissible. Wholesale judicial notice of all matters occurring prior to the unfitness hearing is unnecessary and inappropriate, and a trial court should only take judicial notice of those portions of the underlying court files that have been proffered by the State and to which the respondent is given an opportunity to object.’

“In re J.P., 316 Ill.App.3d 652, 662-63, 737 N.E.2d 364, 372, 249 Ill.Dec. 974, 982 (2000) (citations omitted).”

Y.M., — So.2d at -.

      . A review of those exhibits reveals that none of those reports were actually prepared by Sanders.


source: Caselaw Access Project

author: YATES, Presiding Judge. CRAWLEY, Judge,

license: Public Domain

text:
    Rachel MOSLEY v. MONARCH TILE, INC.
    2970182.
    Court of Civil Appeals of Alabama.
    April 18, 2003.

      Stanley E. Munsey of Munsey & Associates, P.C., Tuscumbia, for appellant.
    Grant A. Wright and Reagan D. Wise of Ashe, Tanner & Wright, P.C., Tuscumbia, for appellee.
   YATES, Presiding Judge.

Rachel Mosley appeals from the trial court’s order denying her claim for death benefits on behalf of her deceased husband, Tommy Mosley (“Mosley”), under the Workers’ Compensation Act.

On February 22, 1996, Rachel Mosley sued Monarch Tile, Inc. (“Monarch”), seeking worker’s compensation benefits on behalf of Mosley. On September 24, 1997, the trial court conducted ore tenus proceedings, and on October 1, 1997, entered a judgment in favor of Monarch. The judgment states, in relevant part:

“The evidence showed that Tommy Mosley was classified as a boxcar un-loader at Monarch. Testimony of several co-workers and a supervisor showed that the job consisted of seeing that railroad boxcars were properly placed in position in order that the contents— dryable product — could be discharged through chutes placed beneath the boxcar into storage bins. The ‘mechanics’ of this job were testified to, at length, by other boxcar unloaders and a supervisor. The ‘mechanics’ consisted of climbing to the top of the boxcar, up a vertical ladder, in order to open top loading doors or covers to gain access to the interior of the car. It could include using an air hose to force the product to begin flowing out of the bottom of the car through chutes. It further included proper placement of the boxcars over the storage bin areas, placement of the chutes, and attachment of a vibrator, ranging in weight from 80 pounds to 150 pounds, to the side of the boxcar in order to cause the dry product to loosen and flow into the chutes.
“The testimony established that Tommy Mosley worked ten to twelve hour days in the months preceding his heart attack. Co-workers, and a supervisor for the Defendant, Monarch, testified that at most two freight cars would be positioned for ‘unloading’ in a ten-twelve hour shift. The testimony was further that there would be approximately 30 to 40 minutes of ‘exertional’ activity during the ten-twelve hour shift, and that the remainder of the time by Mr. Mosley would be spent sitting or standing around watching the clay product flow from the railroad cars into the storage bins.
“There was no testimony as to what activity Tommy Mosley was performing immediately preceding his heart attack.
“The evidence was undisputed that Mr. Mosley died on February 8, 1996, as a result of an acute myocardial ischemia, with previous (remote) myocardial infarction, secondary to severe coronary artery disease. The evidence was undisputed that Mr. Mosley first sought medical attention for chest pain in 1990. He was subsequently hospitalized in October of 1994, and an arteriogram revealed 40-50% blockage in one area, with 30% blockage in another artery. Expert testimony by Dr. Williams, a cardiologist, revealed that the deceased had most of the primary factors for heart disease, including smoking, high cholesterol, and a strong family history of heart disease. Testimony of Dr. Williams further indicated that Mr. Mosley had been advised to stop smoking, and to continue certain prescribed medication. Testimony revealed that Mr. Mosley did not stop smoking, and [that he] quit taking the prescribed medication. Upon autopsy, the undisputed evidence was that Mr. Mosley died as a result of severe coronary arteriosclerosis. At the time of the autopsy, the left main and right coronary arteries were 90%-95% occluded.
“This Court finds that the claimant has established legal causation in the case at bar.
“It was undisputed that the cause of death was acute myocardial ischemia, with sudden death having occurred as a result of cardiopulmonary arrest. The overwhelming medical evidence presented in this trial showed that [Mr. Mosley] had progressive coronary disease to the extent that major coronary vessels had progressed from 40% occlusion in 1994, to 90%-95% occlusion upon autopsy three years later.
“There was no testimony, by any coworker or supervisor, as to what Mr. Mosley was doing immediately preceding his heart attack. There were witnesses who did testify that he had complained of chest pains, or made motions of patting his chest and taking deep breaths, as if he was ‘short of breath’ on numerous occasions over the past five years.
“Therefore, the Court finds that there was no evidence to show that Mr. Mosley was involved in, or exposed to, any sort of activity immediately prior to or at the time of the attack, or on the onset of the attack, which would satisfy the legal test of medical causation. The Court finds that Mr. Mosley’s heart attack was caused by his progressive coronary artery disease, and not by his employment. The Court further finds that there was no testimony to find any exertion, or strain, or exposure, to said conditions of this employment, that would have been a cause or contributing cause to his heart attack or resulting death.
“In light of the evidence, and for the reasons set forth herein, the Court finds in favor of the Defendant.”

On November 10, 1997, Rachel Mosley filed her appeal to this court. On February 5, 1998, this appeal was stayed, because of Monarch’s then pending bankruptcy proceedings. The action remained stayed until October 23, 2002, when the stay was lifted and briefs were requested.

On appeal, Rachel Mosley argues that in applying the medical-causation test, the trial court made incorrect and insufficient findings of fact and, as a result, erroneously denied workers’ compensation benefits.

This case is governed by the ore tenus rule. When a trial court hears ore tenus evidence, its judgment is presumed correct and will not be disturbed on appeal unless it is so unsupported by the evidence as to be plainly and palpably wrong. Bishop v. Pierce, 726 So.2d 663 (Ala.Civ.App.1998).

In order to establish causation in a workers’ compensation case where the injury is nonaccidental, just as here, the claimant must satisfy a two-part causation test by producing substantial evidence establishing both: (1) legal causation and (2) medical causation. Ex parte Trinity Indus., Inc., 680 So.2d 262 (Ala.1996). In order to prove legal causation, the claimant needs to establish that the performance of his or her duties as an employee exposed him or her to a danger or risk materially in excess of that to which people are normally exposed to in their everyday lives. To establish medical causation, the claimant must produce substantial evidence showing that the particular exposure to risk or danger established in step one was in fact a contributing cause of the injury for which the benefits are sought. Id.

The evidence presented in this case shows that Mosley possessed most of the primary risk factors for heart disease, including the fact that he smoked, suffered from high cholesterol, had a strong family history of heart disease, had occasional episodes of chest pains, and refused to take preventive steps as advocated by his doctors. The evidence also indicates that Mosley died of a heart attack while at his place of work. In addition, the record shows that Mosley’s occupation exposed him to a higher amount of exertion or strain than that to which the average person might be exposed. However, the record also shows that the majority of his time at work was spent sitting or watching the storage cars release their cargo. Further, the record contains no evidence showing that the exertion sometimes present in Mosley’s work was, in fact, a contributing cause of his death. Thus, the medical-causation test was not satisfied, and we conclude that the evidence contained in the record supports the trial court’s judgment. Ex parte Staggs, 825 So.2d 820 (Ala.2001). Therefore, the trial court correctly entered a judgment for Monarch.

AFFIRMED.

THOMPSON and PITTMAN, JJ., concur.

CRAWLEY, J., concurs specially.

MURDOCK, J., concurs in the result.

CRAWLEY, Judge,

concurring specially.

I agree that the worker failed to satisfy the medical-causation test, especially in light of the testimony of Dr. Jerry Williams, a cardiologist. Dr. Williams testified that the worker had all the major risk factors for a heart attack: smoking, high cholesterol, and a strong family history of coronary disease. Moreover, Dr. Williams stated that exertion is not a risk factor “at all” for a heart attack.


author: PATTERSON, Retired Appellate Judge.

text:
    Gabor FOLDI v. STATE.
    CR-01-0554.
    Court of Criminal Appeals of Alabama.
    Nov. 22, 2002.
    Rehearing Denied Jan. 24, 2003.
    Certiorari Denied April 25, 2003 Aabama Supreme Court 1020711.

      Kathleen M. Nemish, Dothan, for appellant.
    William H. Pryor, Jr., atty. gen., and Elizabeth Ray Butler, asst. atty. gen., for appellee.
   PATTERSON, Retired Appellate Judge.

The appellant, Gabor Foldi, was indicted February 5, 2001, by the Houston County grand jury for first-degree rape (CC-01-295), a violation of § 13A-6-61(a)(2), Ala. Code 1975 (“engaging] in sexual intercourse with a member of the opposite sex who is incapable of consent by reason of being physically helpless or mentally incapacitated”), and for first-degree sodomy (CC-01-296), a violation of § 13A-6-63(a)(2) (“engaging] in deviate sexual intercourse with a person who is incapable of consent by reason of being physically helpless or mentally incapacitated”). After a jury trial, Foldi was convicted of first-degree rape but was acquitted of first-degree sodomy. For the rape conviction, he was sentenced, on December 3, 2001, to 99 years’ imprisonment, was fined $5,000, and was ordered to pay $750 to the Alabama Crime Victims Compensation Fund and to pay court costs. He appeals his conviction, raising four issues. Although he does not question the sufficiency of the evidence to support his conviction, a recitation of the facts is helpful in understanding the issues raised.

The State’s evidence showed that B.A., the victim, and two of her girlfriends went to Jake’s, a local Dothan nightclub, shortly before 8:00 p.m. on January 19, 2001; that, as they were leaving Jake’s about 10:30 p.m. to go to Grand Central Station, another Dothan nightclub, a stranger asked B.A. where she was going, and she told him; that, around midnight, this same man approached her at Grand Central Station and told her that “his friend” would like to buy her a drink; that, after B.A. drank the drink delivered to her, she was aware of very little until she awoke in an unfamiliar apartment about 8:30 the next morning; and that she vaguely remembered, from the previous evening, hearing people in the apartment speaking in “broken English” and having “a bunch of people pulling on [her].” B.A. testified that, when she awoke the next morning, she was lying on a couch and she did not know where she was; that her clothing was in disarray and her panties, which were on the floor, were covered in blood; that her cellular telephone, purse, and keys were missing; and that she felt “light-headed” and “confused,” unlike any alcohol hangover she had previously experienced. She further testified that she asked a man in the apartment, who was later identified as Foldi, to drive her in his automobile to a friend’s apartment and that another man, later identified as Foldi’s brother Victor, accompanied them; and that, after her friend drove her home, she went to the hospital.

The examination at the hospital disclosed that B.A.’s vagina and rectal area were red and very tender; that her cervix had an abrasion or bruise that appeared to have been caused by trauma; and that she had bruises and was generally sore over her entire body, including her hands. The medical examiner testified that the results of a “drug-rape screen” were negative; however, she explained that “rape drugs” metabolize in the bloodstream within four to six hours after ingestion and are secreted in the urine and that if the first urine voided after ingestion was not tested, which was the case here, the test results would probably be negative.

One of her friends testified that when she approached B.A. and the three men standing with her at the nightclub, at approximately 12:45 a.m., about wanting to leave, she noted that there was something wrong with B.A. She said that B.A.’s eyes were darting around and not focusing; that B.A. told her to go to B.A.’s automobile and she would immediately follow'; that she took B.A.’s purse, keys, and cellular telephone and went to the car; that, after waiting an hour, she drove the car to the front door of the nightclub and went inside to look for B.A.; that, when she found her, B.A. was “out of it” and the three men who had been with her earlier were holding her up because she was unable to stand; and that the three men, who were speaking a foreign language, led B.A. outside, where they put B.A. into their vehicle and drove away.

Michael Cirulli, an investigator with the Dothan Police Department, testified that he went with B;A. to the Camelot Apartments where she identified the apartment she had been in the night before and the automobile parked nearby in which Foldi had driven her to her friend’s place that morning; that, as they were watching the apartment, Foldi came out and B.A. identified him as one having been in the apartment earlier that morning and as the one who had driven her to her Mend’s apartment; that, after observing Foldi drive away in the vehicle B.A. had identified, he had officers stop the vehicle; that he joined the officers at the vehicle; that he advised Foldi of his Miranda rights and asked him if he had a girl in his apartment the night before; that Foldi gave him permission to search his apartment; that, after they returned to Foldi’s apartment, Atillah Papp, who was identified by B.A. as having been in the apartment earlier that morning, admitted them into the apartment; that he read Foldi and Papp their Miranda rights from a standard card and they agreed to talk; and that he obtained an oral consent from Foldi and Papp to search the apartment and, also, Foldi’s written consent to search. Cirulli further testified that, during the search, he discovered a video camera, a videotape, used condoms, and other incriminating evidence; that Papp told him that they had videotaped the activities with B.A.; that, when he viewed the tape briefly with Foldi at the apartment, Foldi admitted that it was him in the tape having vaginal intercourse with B.A.; and that Foldi was then transported to the police station, where he was advised of his Miranda rights again, signed a waiver of those rights, and agreed to talk to Cirulli.

Cirulli testified that Foldi stated that three of his friends had gone to a nightclub while he and three others had remained at the apartment; that, when his friends returned, he was sleeping; that they had a girl with them and they woke him up, saying, “We got a party girl.”; and that, although the girl was “passed out drunk” on the couch, he had vaginal intercourse with her. Cirulli further noted that Foldi specifically admitted that he did not have the girl’s permission because she was “passed out”; and that, although Foldi did not explicitly state that he had anal intercourse with B.A., he in effect admitted it.

The videotape was admitted into evidence and shown to the jury. It depicts as many as seven men, including Foldi, performing sexual acts on B.A. in each other’s presence. It clearly shows Foldi having vaginal intercourse and possibly anal intercourse with her, all the while his companions are watching, masturbating, and sexually abusing B.A. It is clear from the videotape that B.A. was unaware of what was happening, that she was incapable of consenting, and that she was physically helpless.

Foldi testified in his defense that he had vaginal intercourse with B.A., but not anal intercourse, and that the vaginal intercourse was consensual.

I. & II.

Foldi contends that the trial court committed reversible error in denying his pretrial motion to suppress several inculpato-ry statements and physical evidence seized in the search of his apartment. After a hearing on the motion, the trial court entered the following order: “Motion to suppress denied as to all statements made by the Defendant and all evidence relevant thereto, except for the first statement made at the traffic stop. . That would be excluded.” (R. 267.)

Foldi’s “first statement,” which the trial court excluded, was made while he was in the custody' of the officers who stopped him in his vehicle. After the stop, Cirulli asked Foldi whether he had a girl in his apartment the previous evening, and Foldi' stated that he had and that he had driven her home. This incriminating statement was preceded by Cirulli’s incomplete and arguably ambiguous paraphrasing of Miranda rights. Cirulli apparently thought that because English was not Foldi’s native language, Foldi would better understand a paraphrased version of the Miranda warnings. We note, however, that we do not believe that Cirulli’s failure to fully comply with Miranda was an intentional or gross violation of Miranda.

A.

Foldi first asserts that the incul-patory statements he made after his initial faultily Mirandized statement and the evidence seized in his apartment were “tainted” by the first-statement Miranda violation and that, therefore, as “fruit of the poisonous tree,” his subsequent statements and the evidence should have been suppressed.

“The exclusionary rule requires that evidence obtained directly or indirectly through government violations of the Fourth, Fifth, or Sixth Amendments may not be introduced by the prosecution at trial, at least for the purpose of providing direct proof of the defendant’s guilt. When a court improperly admits evidence in violation of the exclusionary rule, reversal is required unless the error was harmless beyond a reasonable doubt.”

Miles Clark, Project, Thirty-first Annual Review of Criminal Procedure, The Exclusionary Rule, 90 Geo. L.J. 1087, 1264 (2002) (footnotes omitted).

“As an adjunct of the. exclusionary rule, the ‘fruit of the poisonous tree’ doctrine holds that the use of derivative evidence can be barred if the evidence is discovered by the exploitation of a prior police illegality, if the primary taint has not been purged by some intervening act or event.”

1 John Wesley Hall, Jr., Search and Seizure § 7.1 (3d ed.2000).

“The roots of the doctrine requiring courts to suppress evidence as the tainted ‘fruit’ of unlawful governmental conduct can be traced to Silverthome Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 ... (1920). In that case, the Supreme Court extended the exclusionary rule to apply not only to evidence obtained as a result of illegal conduct, but also to other incriminating evidence derived from the primary evidence. See id. at 392, 40 S.Ct. 182 ... (‘The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.’) (emphasis added). The Court recast this holding in its more enduring form, the ‘fruit of the poisonous tree’ doctrine, in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 ... (1963). There, the Court explained that when examining the admissibility of evidence obtained subsequent to illegal government conduct, courts must examine ‘whether, granting establishment of the primary illegality’ (i.e., the ‘poisonous tree’), the evidence has been discovered ‘by exploitation of that illegality’ (i.e., the ‘fruit’ of the tree), or instead ‘by means sufficiently distinguishable to be purged of the primary taint.’ Id. at 488, 83 S.Ct. 407 ... (citation omitted). If evidence is found to be the ‘fruit of the poisonous tree’ it must be suppressed. See id.”

United States v. Orso, 266 F.3d 1080, 1034 n. 2 (9th Cir.2001), cert. denied, 537 U.S. 828, 123 S.Ct. 125, 154 L.Ed.2d 42 (2002).

“The exclusionary rule is not a personal constitutional right, but rather a judicially created remedy to deter government violations of the Constitution. Because the goal of deterrence will not always be advanced by excluding relevant, though illegally obtained, evidence, the Supreme Court has identified several exceptions to the exclusionary rule....”

Clark, supra, 90 Geo. L.J. at 1264 (footnotes omitted).

One exception to the exclusionary rule is the “independent source” exception.

“Independent Source Exception. Even if police engage in illegal investigatory activity, evidence will be admissible if it is discovered through a source independent of the illegality. The independent source doctrine reflects the idea that although the government ought not profit from its misconduct, it also should not be made worse off than it would have been had the misconduct not occurred.”

Id. at 1274 (footnotes omitted). See, e.g., Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988).

We find that the exclusionary rule and the “fruit of the poisonous tree” doctrine do not apply here. Foldi’s incriminating statement that there had been a girl in his apartment the previous night and that he drove her home falls within the “independent source” exception. When Foldi made this statement, the police already knew that he had been in his apartment with B.A. and that he had driven her home, having obtained this information from B.A. Therefore, those facts were obtained independently of the initial illegality, i.e., the faulty Miranda warnings, and that illegality did not taint Foldi’s subsequent statements and the evidence seized from his apartment. No evidence was obtained or discovered by the exploitation of the officer’s failure to properly advise Foldi of his Miranda rights when he initially questioned Foldi. We find no merit in Foldi’s argument in this regard.

B.

Foldi further contends (1) that he was also not properly advised of his Miranda rights before making the inculpato-ry statements at his apartment and at the police station, and (2) that he was incapable of voluntarily and knowingly waiving those rights and consenting to a search of his apartment because, he argues, at the time of his statements and consent to search, he did not understand the English language and the laws and culture of the United States, he was 26 years’ old, and he was intimidated by the police officers.

During the suppression hearing, Cirulli testified that, when Foldi first began speaking to him in “broken English,” he asked him if he understood English, and Foldi stated that he did; that, in first advising Foldi of his Miranda rights at Foldi’s vehicle, Cirulli paraphrased (inaccurately) those rights in what he believed were simple terms; that, after he paraphrased each right, he asked Foldi if he understood the right, and each time Foldi acknowledged that he did understand and that he would talk with Cirulli; that he then asked Foldi if the police could search his apartment, explaining that “the girl said that she was assaulted in his apartment,” but that Foldi did not have to consent and that he could get in trouble if “they looked”; and that he also asked Foldi if anyone was at his apartment at that time, and he said two people were.

Cirulli further testified that, after Foldi consented to a search of his apartment, they returned to the apartment where they were admitted by Papp; that, before asking any questions or undertaking any search, he read to Foldi and Papp their Miranda rights from a standard card (which was admitted into evidence); that, after reading and then explaining each right, he inquired if they understood and they stated that they did; that he used an English-Hungarian dictionary from the apartment to make sure they understood the meaning of the word “lawyer”; that they then agreed to talk to him; and that he made them no promises and did not threaten them in any manner.

Cirulli testified that he then told Foldi and Papp that a girl claimed that she had been raped in their apartment the night before and he asked if they would consent to a search of the apartment; that he advised them that they had a right to refuse; and that they orally consented to the search, and Foldi also read and signed a written consent to search (which was admitted into evidence); that thereafter a search was conducted and evidence implicating Foldi in the crime was found, including the videotape of Foldi’s sexual assault of B.A.; and that he briefly questioned Foldi and obtained incriminating statements from him before he was transported to the police station.

Cirulli further testified that, at the station, he again read Foldi his Miranda rights, this time from an explanation-of-rights-and-waiver form, and again explained each one; that a translator also read and explained those rights to Foldi in Hungarian; and that, after Foldi subsequently signed the waiver (which was admitted into evidence) and agreed to answer questions, he gave a detailed statement to Cirulli, further implicating himself in the crime.

Our review of the trial court’s ruling on the admission of Foldi’s inculpa-tory statements begins with the principles that a confession or inculpatory statement is prima facie involuntary and inadmissible, and that, before a confession may be admitted into evidence, the State must establish voluntariness and a Miranda predicate. Houston v. State, 798 So.2d 704 (Ala.Crim.App.2000); Jackson v. State, 562 So.2d 1373 (Ala.Crim.App.1990). Whether a waiver of Miranda rights is voluntarily, knowingly, and intelligently made depends on the facts of each case, considering the totality of the circumstances surrounding the interrogation, including the characteristics of the accused, the conditions of the interrogation, and the conduct of the law-enforcement officials conducting the interrogation. Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986); Houston v. State, 798 So.2d at 706; Click v. State, 695 So.2d 209 (Ala.Crim.App.1996). The trial court’s finding that a statement was voluntary need be supported only by a preponderance of the evidence; it is given great deference on appeal and will not be overturned unless it is palpably contrary to the weight of the evidence or is manifestly wrong. See Taylor v. State, 808 So.2d 1148 (Aa.Crim.App.), aff'd, 808 So.2d 1215 (Aa.2001); Dixon v. State, 588 So.2d 903 (Aa.1991); Marlowe v. State, 854 So.2d 1182 (Ala.Crim.App.2002); Magwood v. State, 494 So.2d 124 (Ala.Crim.App.1985), aff'd, 494 So.2d 154 (Ala.1986).

Our review of the trial court’s ruling admitting the evidence seized from Foldi’s apartment is governed by the following principles. One of the exceptions to the rule that a warrantless search is per se unreasonable is a search conducted with the consent of the owner. Rokitski v. State, 715 So.2d 859 (Ala.Crim.App.1997); Chevere v. State, 607 So.2d 361 (Ala.Crim. App.1992). The burden lies with the State to show that the search falls within an exception to the warrant requirement. Rokitski v. State, 715 So.2d at 861. Whether the defendant’s consent to search was voluntary is a question of fact for the trial court to determine, based upon the totality of the circumstances. Id. See also Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). However, “[n]o particular factor should be given undue weight in determining the issue of voluntariness.” Rokitski v. State, 715 So.2d at 861. The fact that the defendant was in police custody or that the officers made a showing of force does not, of itself, negate a finding of voluntariness. Id. at 861-62. See also United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); Hollander v. State, 418 So.2d 970 (Ala.Crim.App.1982). However, although not dispositive of the question of voluntariness, the fact that a defendant had been advised of his Miranda rights and of his right to refuse the request to search are significant factors in determining whether the consent was voluntary. Bradley v. State, 494 So.2d at 761; 3 Wayne R. LaFave, Search and Seizure § 8.2(i) and (j), 689-90, 692 (3d ed.1996).

Foldi’s contentions that he did not understand English or the customs and laws of the United States, that he was too young to voluntarily waive any right, and that he was intimidated by the uniformed armed police officers are clearly disputed by the evidence. At the time of the waivers, Foldi was 26 years old; he is a graduate of a high school in Hungary with 2 years’ training in a vocational school and 2 years’ service in the Hungarian army; he had been in the Dothan area for approximately 16 months; he had been employed at a local chicken processing plant most of that time; he owned an automobile and was renting an apartment; he had studied English at “Wallace College” in Dothan where he had the reputation for being a quick learner and for helping others for whom English is not their native language learn English; and he had little or no difficulty in conversing with Cirulli in English. B.A. testified that Foldi conversed with her in English when she was asking someone to drive her home and that, when he was driving her home, he understood her directions, which she gave in English. Furthermore, while he was incarcerated, Foldi wrote a comprehensible letter to Ci-rulli in English (which was admitted into evidence), giving Cirulli instructions as to the disposition of his vehicle while he was incarcerated. The most damning evidence refuting Foldi’s contention that he was ignorant of the English language was his own testimony that he asked B.A. in English to consent to have sexual relations with him and that he in fact understood the consent-to-search-and-waiver form. From the evidence, it is apparent that Foldi could understand English sufficiently to understand his rights and to knowingly and voluntarily waive them. See United States v. Amano, 229 F.3d 801, 804-05 (9th Cir.2000); United States v. Guay, 108 F.3d 545, 549 (4th Cir.1997).

We further note that nothing in the record supports an argument that Foldi did not comprehend the customs and culture of the United States. In fact, this argument is asserted for the first time on appeal.

Finally, Foldi’s testimony bearing on the question of whether he was intimidated by the officers is sharply disputed. He rests his ■ assertion on his testimony that three police vehicles were used to stop his automobile; that he was ultimately surrounded by four uniformed, armed officers; that the officers immediately cuffed his hands behind his back; that, immediately before entering his apartment,, two officers beat on the door and drew their weapons; and that an officer used Foldi’s apartment key to gain entry. In contrast, Cirulli testified that Foldi was not handcuffed until he was transported to the police station after the search; that the officers entered the apartment after Foldi knocked on the door and Papp opened it and after both Foldi and Papp had agreed that the officers could enter; and that he did not tell Foldi he was under arrest until .after they had arrived at the police station. Another officer testified that weapons were not drawn by any of the officers until they had entered and were searching the apartment to ascertain if anyone else was in the apartment. We find that, given their knowledge that more than one suspect could have been involved and given Foldi’s admission at his automobile that two people were at his apartment, the officers’ actions were more than justified for their protection while making a sweep of the apartment.

In conclusion, after considering the totality of the circumstances surrounding Foldi’s statements and consent to search, we find that the weight and -preponderance, of the evidence supported the trial court’s implicit findings that Foldi voluntarily and knowingly waived his Miranda rights before making the inculpato-ry statements to the police and consenting to the search and that he made the statements and gave his consent to search knowingly and- voluntarily. Although the trial court’s findings were made on conflicting, evidence, this court is bound by the. trial court’s credibility choices in a suppression hearing. Bradley v. State, 494 So.2d at 760-61. The trial court’s finding of voluntariness will not be disturbed on appeal unless the appellate court is convinced that the finding is palpably contrary to the great weight of the evidence. Ex parte Jackson, 836 So.2d 979 (Ala.2002) (opinion on application for rehearing and on return to remand). Based on the foregoing, we conclude that the trial court’s adverse ruling on Foldi’s motion to suppress was proper. •

III.

- Foldi contends that he was compelled -to testify because of the admission of the allegedly illegal evidence, i.e., his statements and the evidence seized from his apartment, and that he was thereby denied his constitutional right to remain silent. He argues that the admission of his allegedly wrongfully obtained statements ' and physical evidence ' from his apartment forced him to testify to explain that evidence. There is no merit in this contention. The statements and physical evidence he refers to were properly admitted, as we held in Parts I and II, supra.

IV.

Foldi contends that his 99-year sentence was so grossly disproportionate to his offense as to constitute cruel and unusual punishment in violation of the Eighth Amendment and require reversal. He relies on the holdings in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983); Harmelin y. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991); and Wilson v. State, 830 So.2d 765 (Ala.Crim.App.2001).

This issue was not preserved for appellate review: it was not first presented to the trial court. See Jordan v. State, 574 So.2d 1024, 1025 (Ala.Crim.App.1990). Foldi failed to object to his sentence at the sentence hearing, in a motion for a new trial, or in a motion to reconsider his sentence. See Bishop v. State, 690 So.2d 502, 510 (Ala.Crim.App.1996).

Even if this issue had been preserved for review, it would have no merit. Foldi’s sentence is not grossly disproportionate to the crime, and the cases he relies on are factually distinguishable from this case.

For the above reasons, the judgment of the trial court is affirmed.

The foregoing opinion was prepared by Retired Appellate Judge John Patterson while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Ala.Code 1975.

AFFIRMED.

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

BASCHAB, J., concurs in the result.

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

      . This evidence was presented to the trial court in the suppression hearing.

      . Five men, including Foldi, depicted in the videotape performing various sexual acts on B.A., were ultimately identified. They are Foldi; Victor Foldi, the appellant’s brother; Atillah Papp; Atillah Vasari; and Atillah Kun. The men are Hungarian nationals who were in the United States on tourist visas, which had expired. Victor Foldi and Papp were indicted for first-degree sexual abuse and pleaded guilty to that offense. Victor Foldi was sentenced to four years’ imprisonment, and Papp was sentenced to five years' imprisonment. According to the Houston County Sheriff's Office, Vasari and Kun were indicted for sodomy and sexual abuse, but they returned to Hungary and have not been tried.

      . Foldi does not question the legality of his arrest. Clearly, the police officers had probable cause to stop his automobile and place him under arrest because they had credible information that made him a prime suspect in an alleged rape.


author: WISE, Judge.

text:
    Steve CAIN v. STATE of Alabama.
    CR-01-2264.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 2003.
    John A. McReynolds IV, Russellville, for appellant.
    William H. Pryor, Jr., atty. gen., and Cedric B. Colvin, asst. atty. gen., for appel-lee.
   WISE, Judge.

The appellant, Steve Cain, appeals from the circuit court’s revocation of his probation. The record reveals that on October 20, 1994, Cain was convicted of three counts of distribution of a controlled substance, a violation of § 13A-12-211, Ala. Code 1975. Cain was sentenced to 15 years’ imprisonment, split to serve 3 years’ imprisonment, and the balance on probation on each count. Those sentences were to be served concurrently. One of the terms of Cain’s probation was that he not violate any federal, state, or local law. On May 20, 2002, Cain was arrested and charged with possession of a controlled substance, a violation of § 13A-12-212, Ala.Code 1975.

On June 10, 2002, the circuit court held a probation revocation hearing, after which Cain’s probation was revoked. Cain filed a motion to reconsider, which the circuit court denied on August 5, 2002. This appeal followed.

On appeal, Cain contends that the circuit court (1) did not have sufficient evidence upon which to revoke his probation and (2) failed to make adequate written findings or to adequately state for the record the reasons for, and evidence relied upon in, revoking his probation.

This Court has long held that appellate review is limited to issues properly raised in the trial court. Beasley v. State, 408 So.2d 173, 178 (Ala.Crim.App.1981). “The general rules of preservation apply to probation revocation hearings.” Owens v. State, 728 So.2d 673, 680 (Ala.Crim.App.1998), citing Puckett v. State, 680 So.2d 980, 983 (Ala.Crim.App.1996). Because Cain failed to object to the sufficiency of the evidence, this issue is not preserved for review.

However, based on our review of the record, this Court agrees that the trial court’s written order is insufficient.

“ ‘In accordance with Gagnon v. Scarpelli 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 ... (1973), Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), and Wyatt v. State, 608 So.2d 762 (Ala.1992), before probation can be revoked, an Alabama trial court must provide a written order stating the evidence and the reasons relied upon to revoke probation.’ Trice v. State, 707 So.2d 294, 295 (Ala.Crim.App.1997). ‘These requirements offer the probationer some protection from an abuse of discretion by the trial court, aid an appellate court in reviewing a revocation, and prevent future revocations based on the same conduct.’ T.H.B. v. State, 649 So.2d 1323, 1324 (Ala.Cr.App.1994).”

Chenault v. State, 777 So.2d 314, 316-17 (Ala.Crim.App.2000). Here, the trial court’s order stated only that the cause came before the court “on the alleged violation by [Cain] of the terms of probation” and that “[f]ollowing a hearing on the matter it is the finding of the Court that [Cain’s] probation is due to be revoked.”

Based upon Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), and Wyatt v. State, 608 So.2d 762 (Ala.1992), we must remand this cause to the trial court for it to prepare a written statement of the reasons for revoking Cain’s probation and the evidence it relied upon in doing so. The trial court shall take the necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time within 35 days of this release.

REMANDED WITH DIRECTIONS.

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


author: BASCHAB, Judge.

text:
    Ronald HANNON v. STATE of Alabama.
    CR-01-2595.
    Court of Criminal Appeals of Alabama.
    Feb. 28, 2003.
    Rehearing Denied April 18, 2003.
    Ronald Hannon, pro se.
    William H. Pryor, Jr., atty. gen., and Robin Blevins Scales, asst. atty. gen., for appellee.
   BASCHAB, Judge.

On August 6,1998, the appellant, Ronald Hannon, pled guilty to unlawful distribution of a controlled substance. The trial court sentenced him to serve a term of life in prison. It also enhanced his sentence by five years because the sale occurred within three miles of a school and an additional five years because the sale occurred within three miles of a public housing project. See §§ 13A-12-250 and 13A-Í2-270, Ala.Code 1975. The appellant did not appeal his conviction. On January 16, 2002, he filed a Rule 32 petition, challenging his conviction. Without requiring a response from the State, the circuit court summarily denied the petition. This appeal followed.

The appellant argues that he is entitled to postconviction relief because his sentence allegedly exceeds the maximum authorized by law. Specifically, he contends that he was not sentenced as a habitual offender and that the record does not indicate that the provisions of the Habitual Felony Offender Act were properly applied in this case. The judge who presided over the guilty-plea proceedings also presided over the Rule 32 proceedings. In his order denying the petition, the judge found:

“Petitioner makes bland assertion that court was without authority to sentence petitioner to life plus ten years.
“The sentencing [and] colloquy in collateral case # CC-97-4250.60 is instructive and is attached (marked court’s # one); the three ‘priors’ are also attached and marked court’s ‘two.’
“As made abundantly clear petitioner was sentenced to the only possible sentence(s) available at the time.”

(C.R. 2-3.) Although it would not be appropriate in every case to consider a record in a collateral case to determine whether a defendant was sentenced as a habitual offender in a different case, such a consideration is appropriate in this particular case. The documents the circuit court referenced and attached to its order clearly indicate that the appellant was indicted for both first-degree robbery and unlawful distribution of a controlled substance; that the appellant was convicted after a jury trial of first-degree robbery; that, during the sentencing hearing for the robbery case, the parties discussed the fact that the appellant had three prior felony convictions, and the State introduced certified copies of those convictions; that, during that sentencing hearing, the court and the parties made references to the unlawful distribution charge that was still pending, to the fact that the appellant would decide whether to plead guilty to that charge or go to trial on that charge “in the next day or so,” and to the fact that the only possible sentence for that case would be life in prison plus two five-year enhancements. (C.R. 12.) Furthermore, the record shows that the same circuit judge presided over the proceedings in both cases. Therefore, the documents the circuit court referenced support that court’s conclusion that the appellant was sentenced as a habitual offender in this case. Accordingly, the circuit court properly summarily denied the appellant’s petition, see Rule 32.7(d), Ala. R.Crim. P., and we affirm that court’s judgment.

AFFIRMED.

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