author: COBB, Judge.

text:
    Antywan Develle WILSON v. STATE of Alabama.
    CR-00-1003.
    Court of Criminal Appeals of Alabama.
    Oct. 31, 2003.

      Henry L. Penick, Birmingham, for appellant.
    William H. Pryor, Jr., atty. gen., and Sandra J. Stewart and Michael B. Billings-ley, asst, attys. gen., for appellee.
   On Remand from the Alabama Supreme Court

COBB, Judge.

Antywan Develle Wilson was convicted of robbery in the first degree, a violation of § 13A-8-41, Ala.Code 1975, and attempted murder, a violation of §§ 13A-4-2 and 13A-6-2, Ala.Code 1975. He was sentenced to 30 years’ imprisonment on each conviction. His codefendant, Trumaine Arrington, was also convicted of both charges and was also sentenced to 30 years’ imprisonment on each conviction. On original submission of this appeal, this Court reversed Wilson’s convictions, addressing only one of the four grounds raised in Wilson’s appeal. Wilson v. State, 874 So.2d 1131 (Ala.Crim.App.2002). The Alabama Supreme Court reversed our decision. Wilson v. State, 874 So.2d 1145 (Ala.2003). In this opinion on remand from the Alabama Supreme Court, we address the remaining issues Wilson raised in his original submission. The facts of the case were fully set out in our original opinion; we need not repeat them here.

In Wilson’s original appeal, he raised four grounds for reversal. First, Wilson argued that the trial judge committed reversible error when he denied his motion for a mistrial based upon the suppression of certain witness statements. We agreed with Wilson and reversed the trial court’s judgment and remanded the case for a new trial. The Alabama Supreme Court then reversed our judgment and remanded the case for this Court to address the remaining three grounds. Wilson’s second argument is that he was denied a fair trial because of prosecutorial misconduct. Wilson’s third argument is that the judge allowed inadmissible evidence, which was prejudicial, and that the admission of that evidence denied him due process of the law. Wilson’s fourth argument is that the State failed to present sufficient evidence by which a jury could reasonably convict him.

I.

Wilson alleges that misconduct on the part of the assistant district attorney trying the case denied him a fair trial. He claims that the district attorney withheld eyewitness statements that were exculpatory and that the district attorney made inflammatory and prejudicial statements during his closing argument.

A.

Wilson alleges that the prosecutor’s withholding of possibly exculpatory material during his two trials denied him a fair trial. Specifically, Wilson claims that the district attorney did not disclose statements made to Det. Corey Hardiman by three witnesses who could have exonerated Wilson and Arrington. Although Wilson was given the names of the witnesses during the discovery phase, he did not know the full extent of their statements to Det. Hardiman, an investigating officer for the case. Wilson tried to contact the witnesses, but succeeded only in contacting one of the witnesses, Dalanda Smith. She testified at his second trial.

On this issue, the Supreme Court stated in Wilson v. State, 874 So.2d 1145, 1154 (Ala.2003):

“Considering that the nondisclosed evidence was presented to the jury even before the contents of Det. Hardiman’s notes were revealed to the defense; that the contents of the notes were presented to the jury in their entirety despite their hearsay nature; that live testimony of one of the three witnesses was also presented to the jury; that Wilson’s counsel expended a great deal of effort to find those witnesses even without Det. Har-diman’s notes; and that the defense was unable to locate those witnesses even after possessing the notes, this Court finds that there was not a ‘reasonable probability that, had [Det. Hardiman’s notes] been disclosed to the defense [earlier], the result of the proceeding would have been different.’ [United States v.] Bagley, 473 U.S. [667] at 682, 105 S.Ct. 3375, 87 L.Ed.2d 481. Consequently, there was no Brady [v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),] violation, and Wilson’s convictions should not have been overturned on this basis. The judgment of the Court of Criminal Appeals is reversed and the cause is remanded for further proceedings consistent with this opinion.”

Wilson, 874 So.2d at 1154.

The Supreme. Court found no Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), violation because through the corrective actions of the trial court ‘Wilson was able to present to the jury the information that three witnesses had named two other men as the perpetrators of the crime, and the witnesses who were not located were not subject to cross-examination by the State.” Wilson, 874 So.2d at 1151.

“[C]laims of prosecutorial misconduct are subject to a harmless error analysis. Smith v. State, 698 So.2d 189, 203 (Ala.Cr.App.1996), aff'd, 698 So.2d 219 (Ala.1997); Bush v. State, 695 So.2d 70, 131 (Ala.Cr.App.1995), aff'd, 695 So.2d 138 (Ala.1997). ‘In order for a constitutional error to be deemed harmless under Chapman [v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)], the state must prove beyond a reasonable doubt that the error did not contribute to the verdict. In order for the error to be deemed harmless under Rule 45 [Ala. R.App. PJ the state must establish that the error did not injuriously affect the appellant’s substantial rights.’ Coral v. State, 628 So.2d 954, 973 (Ala.Cr.App.1992), aff'd, 628 So.2d 1004 (Ala.1993), cert. denied, 511 U.S. 1012, 114 S.Ct. 1387, 128 L.Ed.2d 61 (1994).”

Bryant v. State, 727 So.2d 870, 876 (Ala.Crim.App.1998).

The Supreme Court held that because Wilson had presented the testimony of one of the witnesses, he was able to present testimony regarding the existence of two other possible perpetrators. Also, the Court stated that “the difficulty in locating [the three witnesses] and getting them to testify was precisely the reason the trial court chose to fashion the remedy it did.” Wilson, 874 So.2d at 1152. The jury had an opportunity to weigh the evidence of possible other perpetrators through the testimony of Det. Hardiman and Dalanda Smith. Therefore, the prosecutor’s failure to produce certain statements was harmless error that did not “injuriously affect the appellant’s substantial rights.” Coral v. State, 628 So.2d 954, 973 (Ala.Crim.App.1992), aff'd, 628 So.2d 1004 (Ala.1993).

In Hendrix v. State, 589 So.2d 769 (Ala.Crim.App.1991), the appellant alleged that the prosecutor failed to provide him with the names of six other possible suspects in the incidents for which he was charged. Once the appellant learned of the other possible suspects, he “conducted a very thorough and sifting cross-examination of Investigator Lackey concerning these individuals.” 589 So.2d at 771. This Court held that the prosecutor did not withhold any evidence.

“We also note that even if the evidence had been suppressed, the appellant failed to show that the evidence was material to his case. ‘[Ejvidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ ”

589 So.2d at 771 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3875, 87 L.Ed.2d 481 (1985)).

Like the case at hand, the appellant in Hendrix had an opportunity to question the investigating officers about the other possible suspects. This sufficed to make the jury aware of the possibility of other suspects.

In the present case, Wilson was able to question Det. Hardiman in the same manner and without the restraints imposed by the rule against hearsay evidence. Wilson attempted to locate the three witnesses, but was only able to locate Smith. It is also important to note that Wilson knew the names of the witnesses before his first trial, and between then and his second trial he could locate only Smith. Therefore, “[o]ur review of the record leads us to conclude that even if the evidence of these other suspects was suppressed, there was no reasonable probability that the timely disclosure of this evidence would have affected the outcome of the trial.” Hendrix, 589 So.2d. at 771.

B.

Wilson also claims that the district attorney made several inflammatory and prejudicial remarks during his closing arguments.

“ ‘ “This court has stated that ‘[i]n reviewing allegedly improper prosecuto-rial comments, conduct, and questioning of witnesses, the task of this court is to consider their impact in the context of the particular trial, and not to view the allegedly improper acts in the abstract.’ Bankhead v. State, 585 So.2d 97, 106 (Ala.Crim.App.1989), remanded on other grounds, 585 So.2d 112 (Ala.1991), aff'd on return to remand, 625 So.2d 1141 (Ala.Crim.App.1992), rev’d on other grounds, 625 So.2d 1146 (Ala.1993). See also Henderson v. State, 583 So.2d 305 (Ala.1991), cert. denied, 503 U.S. 908, 112 S.Ct. 1268, 117 L.Ed.2d 496 (1992). ‘In judging a prosecutor’s closing argument, the standard is whether the argument “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Bankhead, 585 So.2d at 107, quoting Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). ‘A prosecutor’s statement must be viewed in the context of all of the evidence presented and in the context of the complete closing arguments to the jury.’ Roberts v. State, [735 So.2d 1244 (Ala.Crim.App.1997)], aff'd, [735 So.2d 1270 (Ala.), cert. denied, 538 U.S. 939, 120 S.Ct. 346, 145 L.Ed.2d 271 (1999)]. Moreover, ‘statements of counsel in argument to the jury must be viewed as delivered in the heat of debate; such statements are usually valued by the jury at their true worth and are not expected to become factors in the formation of the verdict.’ Bankhead, 585 So.2d at 106. ‘Questions of the propriety of argument of counsel are largely within the trial court’s discretion, McCullough v. State, 357 So.2d 397, 399 (Ala.Crim.App.1978), and that court is given broad discretion in determining what is permissible argument.’ Bankhead, 585 So.2d at 105. We will not reverse the judgment of the trial court unless there has been an abuse of that discretion. Id.” ’
“Taylor v. State, 808 So.2d 1148, 1185-86 (Ala.Crim.App.2000), aff'd, 808 So.2d 1215 (Ala.2001), quoting Freeman v. State, 776 So.2d 160, 184 (Ala.Crim.App.1999), aff'd, 776 So.2d 203 (Ala.2000), cert. denied, 531 U.S. 966, 121 S.Ct. 400, 148 L.Ed.2d 308 (2000). See also Reeves v. State, 807 So.2d 18, 45 (Ala.Crim.App.2000).”

McNabb v. State, [Ms. CR-98-0967, October 26, 2001] — So.2d -, (Ala.Crim.App.2001).

Because Wilson’s arguments concerning all the comments were properly preserved at the trial court level, we will address each in turn. •

1.

First, Wilson argues that the prosecutor made improper remarks concerning certain actions of his codefendant. During his closing argument, the district attorney stated that Wilson’s codefendant, Arrington, “sold drugs out there.” (R. 485). Wilson contends that this was said for the purpose of inflaming the jury, and, additionally, that the statement was improper as illegal character evidence under Rule 404(b), Ala. R. Evid.

Although we conclude that this comment overstated the evidence, we also conclude, in light of all the evidence, that this comment was not prejudicial to Wilson.

Wilson testified that he had personally bought marijuana from a street corner the day the shooting occurred. (R. 380). Wilson also testified that he was smoking marijuana on the night the incident occurred. (R. 380.) He further stated that he drove on the interstate from Birmingham to the Tuscaloosa exit while smoking the marijuana with Arrington and another witness. (R. 380.) A defense witness testified that she was with the defendants on the night in question. She stated that they were driving along the interstate smoking marijuana together. (R. 359.) Therefore, there was ample evidence presented from which the jury could infer that Wilson bought and used drugs. There was also evidence presented that Arrington used drugs. Therefore, the comment made by the prosecutor was not made to inflame the jury, but rather was his recounting the evidence presented. Furthermore, the trial judge reminded the jurors that they should rely on their independent recollection of the evidence in deciding the outcome of the case. Because we cannot find that this comment prejudiced Wilson, reversal is not proper.

2.

Second, Wilson claims that the prosecutor made several comments to inflame the jury into rendering a guilty verdict. During the prosecutor’s closing argument, the following exchange took place:

“[Prosecutor:].... If you want to let it go on, if you want to let it go on, you just cut them loose.
“[Wilson’s counsel:] Objection, • Your Honor, improper argument.
“The Court: Overruled.
“[Prosecutor:] You cut them loose. I’ll pick up the next case. But, I’m telling you, you’ve heard this evidence. If you want these thugs to keep killing people out there, you let them do it. I say you’re not going to stand for it. It’s your community. It is not Mr. Wilson’s community and it is not Mr. Arrington’s community when they break the law like they did. It’s your community. You want them to keep doing it, you let them keep doing it. I’ll just go on to the next case. I’ve got 600 cases sitting downstairs waiting to try.
“[Wilson’s counsel:] Objection, Your Honor. He’s arguing facts not in evidence.
“The Court: I’ll sustain as to that.”

(R. 482-83.)

Wilson claims that although the judge sustained his objection, the comment was not based upon legitimate inferences from the evidence. He claims that by referring to “killings,” the prosecutor intended to inflame the jury against the defendants even though they had not killed anyone.

The following colloquy also took place:

“[Prosecutor:] Like I said, Ms. Levert [an assistant district attorney] and I will go to the next case. If you want to turn him loose, you turn him loose. You are going to do an injustice to Mr. Hamilton [the victim], and you are going to do an injustice to Gate City [the housing project where the shooting took place], because unless somebody out there knows that these two men don’t rule Gate City out there, you do.
“[Wilson’s counsel:] Objection. Your Honor, there is no testimony that these guys rule Gate City. He’s just getting carried away.
“The Court: Overruled.
“[Arrington’s counsel:] Add my objection.
“[Prosecutor:] Unless you tell them that they don’t rule Gate City, they don’t rule it by fear, they don’t come in here and manipulate—
“[Wilson’s counsel:] Objection—
“[Arrington’s counsel:] Same objection.
“[Wilson’s counsel:] —prejudice the jury by saying they rule Gate City by fear.
“The Court: Overruled.
“[Wilson’s counsel:] Improper argument.
“The Court: Your time is up, Mr. Fel-ton.
“[Prosecutor:] Yes, sir. Unless you do that, it’s going to continue. I ask you to find these people guilty of attempted murder, shooting and trying to kill Mr. Hamilton, and robbery, because they took his clothes by force, not—
“The Court: Mr. Felton, your time is up.
“[Prosecutor:] Yes, sir. Thank you. Find him guilty.”

(R. 491-92.)

Wilson contends that the district attorney’s argument was made only to inflame the jury.

“[Statements of counsel in argument to the jury must be viewed as delivered in the heat of debate.... ” Bankhead v. State, 685 So.2d 97, 106 (Ala.Crim.App.1989), remanded on other grounds, 585 So.2d 112 (Ala.1991), aff'd on return to remand, 625 So.2d 1141 (Ala.Crim.App.1992), rev’d on other grounds, 625 So.2d 1146 (Ala.1993). By their nature, closing arguments are impassioned pleas for justice, no matter what side the delivery is from. The jurors were informed that everything said in a closing argument was not evidence, and that they should not substitute the judgment of the prosecutor or defense attorney for their own.

In the context of this particular case, the prosecutor’s comments were not made with the intention to inflame the jury. Rather, they were made in the heat of debate that surrounds every trial. The evidence showed that the defendant’s family had threatened testifying witnesses. There was also testimony that Wilson’s mother had telephoned witnesses and asked them to testify. Another identification witness at the trial changed his story from what he had told police earlier concerning Wilson. Therefore, the statements of the prosecutor do not form the basis for a misconduct claim that would warrant reversal; they were reasonable comments on the evidence presented during trial.

3.

Wilson contends that the prosecutor argued facts not in evidence when he insinuated during closing arguments that Wilson and his family had coerced witnesses into testifying or not testifying.

In the first instance Wilson alleges was improper, the district attorney stated that the only reason one particular witness was called was “to show you what happened out there in that community.” (R. 487.) This comment was referring to the defendant’s use of intimidation to change a witness’s testimony. In another instance, the prosecutor stated that another witness called to testify “got up here and she said just exactly what Mr. Wilson told her to say.” (R. 488.) In a third instance, the prosecutor questioned a witness by asking her “did you know that [Wilson’s] mother had been threatening the victims?” (R. 358.) During questioning of the victim, the prosecutor stated, “So, you also testified that his family had been threatening your family about you testifying; didn’t you?” (R. 151.)

“A prosecutor’s statement must be viewed in the context of all of the evidence presented and in the context of the complete closing arguments to the jury.” Roberts v. State, 735 So.2d 1244, 1253 (Ala.Crim.App.1997), aff'd, 735 So.2d 1270 (Ala.1999). “The prosecution, as well as defense counsel, has the right to present its impressions from the evidence, and may argue every legitimate inference that can be reasonably drawn from the evidence.” Smith v. State, 698 So.2d 189, 202 (Ala.Crim.App.1996), citing Sanders v. State, 423 So.2d 348 (Ala.Crim.App.1982).

The prosecutor’s comments, taken as a whole, do not deprive Wilson of his due process rights. Wilson’s first trial ended in a mistrial. This was his second trial. The victim testified that Wilson’s family was threatening him and his family, and that he was afraid to testify. Other witnesses testified that they had been telephoned by Wilson’s mother and asked to testify on Wilson’s behalf. Another witness changed his testimony from previous conversations he had had with police concerning the identity of Wilson and Arring-ton. The district attorney was simply restating what witnesses had testified to. Therefore, the prosecutor’s comments, when viewed in relation to the evidence, do not amount to misconduct.

4.

Wilson also argues that the prosecutor’s comment that “there is nobody named ‘B’ or ‘Bouty Bouty’ ” was not based on facts in the evidence. (R. 490.) “ ‘[T]he prosecutor, as well as defense counsel, has a right to present his impressions from the evidence, if reasonable, and may argue every legitimate inference.’ ” Reeves v. State, 807 So.2d 18, 45 (Ala.Crim.App.2000), quoting Rutledge v. State, 523 So.2d 1087, 1100 (Ala.Crim.App.1987), rev’d on other grounds, 523 So.2d 1118 (Ala.1988).

The prosecutor was only making inferences from his view of the evidence presented. The witnesses stated that they did not know the real names of “B” and “Bouty Bouty.” They only knew that “B” and “Bouty Bouty” lived in Bessemer. Also, a police officer had testified that he could not find “B” or “Bouty Bouty,” the person the three witnesses had told him committed the crimes. Because the real names of these alleged men were not known, they could not be found by the investigating officers. The three witnesses were the only ones to implicate someone other that Wilson and Arrington. When officers tried to talk with the witnesses again, they would not answer the door. Some of the witnesses had not given the investigating officers their real names or addresses. Therefore, they could not be contacted in order to be questioned further. Also, the victim identified Wilson in a photographic lineup and at trial as one of the men who had robbed and shot him. Because there was adequate evidence presented that shows that “B” and “Bouty Bouty” could not be found or that they even existed, and because the three witnesses implicating “B” and “Bouty Bouty” could not be found, the comments by the prosecutor did not rest upon evidence not presented to the jury. Therefore, in light of the evidence presented, the prosecutor’s comments did not harm Wilson’s rights and do not rise to the level of misconduct.

5.

Wilson also alleges that the prosecutor made ad hominem arguments against trial counsel for both defendants. During his closing arguments, the prosecutor stated: “I don’t know what Mr. Spencer would do and I don’t know what Mr. Penick would do if they had five bullets in them [and] laying there on the ground. Would they be thinking about their own life and trying to live? Or would they be trying to tell — ” (R. 476-77.)

The statement of the prosecutor was a reply-in-kind to the closing argument’s of Wilson’s counsel. In Wilson’s closing argument, he made the statement, “And if he knew the person — don’t you think that’s the first thing the police are going to run up there and say, ‘Okay, who shot you?’ If you knew the person, you’re going to say, “Yes, Coon Dog shot me.’ ” (R. 468.) He also said, “That’s all he has to say. But he didn’t say anything — no such thing.” (R. 469.) In both comments, Wilson was noting that the victim did not tell police who had shot him and arguing that he should have even though he had been shot five times. Wilson made several statements during his closing argument regarding the victim’s failure to identify the perpetrators as he lay in the street being tended to by emergency medical personnel.

“ ‘[A] prosecutor has the right to “reply in kind” to statements made by defense counsel in the defense’s closing argument.’ Ex parte Musgrove, 638 So.2d 1360, 1369 (Ala.1993), cert. denied, Rogers v. Alabama, [513] U.S. [845], 115 S.Ct. 136, 130 L.Ed.2d 78 (1994).” Ex parte Taylor, 666 So.2d 73, 88 (Ala.1995). When the prosecutor made the statement Wilson alleges constitutes misconduct, he was replying to Wilson’s argument that the victim should have told the police more as he was being attended to by the paramedics. This argument is proper as a reply-in-kind statement made to rebut Wilson’s closing argument. Therefore, we find no misconduct on behalf of the prosecutor in making these statements.

6.

Wilson’s final argument is that the cumulative effect of the prosecutor’s statements and conduct denied him a fair trial. Viewing the statements and conduct of the prosecutor as a whole and in the context of the trial, we cannot find that Wilson has been denied any rights. Because we have held that the failure to produce certain statements by the prosecutor was harmless error, and that the statements of the prosecutor do not rise to the. level of misconduct, we find that there was no cumulative prejudicial effect that denied Wilson a fair trial.

“As we stated in Ferguson v. State, 814 So.2d 925, 950 (Ala.Crim.App.2000), aff'd, 814 So.2d 970 (Ala.2001):
“ ‘Because we find that no single instance of the prosecutor’s conduct was improper, any claim that the alleged improper conduct had a cumulative prejudicial effect on his trial is without merit and does not require a reversal.’ ”

Turner v. State, [Ms. CR-99-1568, November 22, 2002] — So.2d -, - (Ala.Crim.App.2002).

II.

Wilson’s third argument is that the trial judge allowed inadmissible evidence, which was prejudicial, to be presented. Specifically, Wilson argues 1) that the judge allowed several witnesses to testify that witnesses questioned after the shooting were uncooperative, 2) that the judge allowed the victim to testify as to hearsay, and 3) that the judge improperly sustained objections regarding his defense.

A

Wilson argues that an investigating officer should not have been permitted to testify about whether crime-scene witnesses were cooperative, because, he argues, the testimony was irrelevant.

“ ‘Relevancy remains a question over which the trial court has wide discretion. Eason v. Comfort, 561 So.2d 1068 (Ala. 1990); Roberson v. Ammons, 477 So.2d 957 (Ala.1985); Ott v. Fox, 362 So.2d 836 (Ala.1978) (observing that the trial judge has great discretion concerning the relevancy of evidence).’ ” Peralta v. State, [Ms. CR-01-0289, May 30, 2003] — So.2d -, - (Ala.Crim.App.2003) (quoting Advisory Committee’s Notes to Rule 401, Ala. R. Evid.). A trial court’s ruling on a relevancy issue will not be overturned absent an abuse of discretion by the trial court. Id.

Relevant evidence is evidence “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence.” Rule 401, Ala. R. Evid.

Wilson argues that the motive behind the line of questioning was to insinuate that he was coercing the community into not speaking with the police. However, the prosecutor’s questiqning was in response to a line of questioning by Wilson’s codefendant that suggested that the police had not done a thorough job of investigating the incident. In allowing the officer to testify that the police had difficulty getting witnesses to cooperate, the trial judge correctly decided that such testimony was relevant to rebut that line of questioning. Therefore, the judge did not abuse his discretion in allowing the testimony to be presented.

B.

Wilson also argues that the judge allowed inadmissible hearsay to be presented when the victim testified that his sister told him that “they [Wilson and his mother] had threatened her.” (R. 102.) During the State’s questioning of the victim, the following occurred:

“[Prosecutor:] And did you pick somebody out of those photos?
“[Victim:] Yeah. The first time I picked Arrington out. I didn’t pick the shooter out the first time.
“[Prosecutor:] Why is that?
“[Victim:] Because my sister had said he had—
“[Wilson’s counsel:] Objection to what the sister said.
“[Arrington’s counsel:] Objection.
“[Wilson’s counsel:] Hearsay.
“The Court: That would be hearsay, wouldn’t it, Mr. Felton?
“[Prosecutor:] Your Honor, it only goes to — as we talked about in a previous hearing, it only goes to the victim’s state of mind at the time as to why there was no identification.
“The Court: I’m going to overrule the objection. Ladies and gentlemen, this is not necessarily offered for the truth of the matter, but to show or to explain the defendant’s actions on this particular occasion. It’s up to you to determine whether or not it actually in fact occurred.”

(R. 100-01.)

Hearsay is defined as “a statement, other than one made by the declar-ant while testifying at the trial or hearing, offered, in evidence to prove the truth of the matter asserted.” Rule 801(c), Ala. R. Evid. The trial judge was correct in ruling that the testimony was not hearsay. The victim’s testimony was not used to prove that Wilson was threatening the victim or his family, but rather to show why the victim did not identify his shooters. “ ‘[A] statement may be admissible where it is not offered to prove the truth of whatever facts might be stated, “but rather to establish the reason for action or conduct by the witness.” ’ ” Grayson v. State, 824 So.2d 804, 818 (Ala.Crim.App.1999), quoting Edwards v. State, 502 So.2d 846, 849 (Ala.Crim.App.1986), quoting in turn Tucker v. State, 474 So.2d 131, 132 (Ala.Crim.App.1984), rev’d on other grounds, 474 So.2d 134 (Ala.1985).

The trial court did not err in allowing the victim to testify as to what his sister said. Because it was offered to explain the conduct of the victim, and not for the truth of the matter asserted, the testimony was proper. Therefore, the trial court judge did not err in allowing the testimony to be presented.

C.

Wilson also alleges that the trial court judge improperly sustained a hearsay objection by the State when Wilson questioned Det. Hardiman as to whether “either of the three female eyewitnesses [could] identify Wilson?” (R. 296.)

The State’s objection was properly sustained. The statement by Det. Hardiman would have been hearsay, as that term is defined in Rule 801(c), Ala. R. Evid. In other words, it was “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801(c), Ala. R. Evid. Also, the essence of the sustained testimony was later allowed by the judge, without the hearsay constraints, in order to correct the discovery violation. Therefore, Wilson suffered no harm when the judge sustained the hearsay objection.

D.

The trial court judge did not err in his rulings on the various matters raised by Wilson in his brief. Therefore, the judgment of the trial court is due to be affirmed.

III.

In his fourth argument, Wilson alleges that the State presented insufficient evidence to sustain his conviction.

“ ‘In reviewing a conviction based on circumstantial evidence, this court must view that evidence in a light most favorable to' the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude.’
“Cumbo v. State, 368 So.2d 871, 874 (Ala.Cr.App.), cert. denied, 368 So.2d 877 (Ala.1979), citing United States v. Black, 497 F.2d 1039 (5th Cir.1974). Additionally, circumstantial evidence may form the proof of the corpus delicti; ‘ “[i]f facts are presented from which a jury may reasonably infer that the crime has been committed, the question must be submitted to the jury.” ’ . Breeding v. State, 523 So.2d 496, 500 (Ala.Cr.App.1987), quoting Suggs v. State, 403 So.2d 309, 313 (Ala.Cr.App.1981).”

Woods v. State, 724 So.2d 40, 48 (Ala.Crim.App.1997).

In the present case, there was adequate evidence from which a jury could render a guilty verdict. The victim identified 'Wilson and Arrington as the ones who robbed and shot him. He not only saw who shot him, but he also spoke with them before they shot him. Therefore, his recollection of the incident was very important for the trier of fact. Wilson was driving a car that matched the description of the one in which the assailants were described as driving. Wilson was in the neighborhood during a time that coincided with the incident. In fact, a witness told police at the scene of the incident that a car coming out of the alley was the one involved in the shooting. Wilson was driving the car, and subsequently the police stopped him.

The State also presented evidence indicating that Wilson’s mother had been talking with witnesses and pressuring them to testify. Although this does not prove guilt, it is another factor that the jury could have used in deciding the outcome of the case.

Reviewing the facts of the case in a light most favorable to the prosecution, we conclude that there was sufficient evidence by which a jury could have convicted Wilson. The jury was presented with sufficient facts from which it could have excluded every inference but that of guilt.

Based upon the foregoing reasons, the judgment of the trial court is due to be, and hereby is, affirmed.

AFFIRMED.

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

      . Wilson's first trial ended in a mistrial.

      . "B” and "Bouty Bouty” are names the three witnesses gave to police officers as the men who shot the victim.

      . "Coon Dog" is Arrington's street name.


source: Caselaw Access Project

author: SHAW, Judge.

license: Public Domain

text:
    Herbert James REEVES v. STATE of Alabama.
    CR-01-1102.
    Court of Criminal Appeals of Alabama.
    Nov. 22, 2002.
    Rehearing Denied Jan. 24, 2003.
    Certiorari Denied Sept. 19, 2003 Alabama Supreme Court 1020706.

      Thomas J. Azar, Jr., Montgomery, for appellant.
    William H. Pryor, Jr., atty. gen., and Stephanie N. Morman, asst. atty. gen., for appellee.
   SHAW, Judge.

Herbert James Reeves appeals the circuit court’s summary denial of his second Rule 32, Ala.R.Crim.P., petition for post-conviction relief, in which he sought an out-of-time appeal from the summary denial of his first Rule 32, Ala.R.Crim.P., petition.

In the present petition, filed on November 15, 2001, Reeves alleged that the failure to properly perfect his appeal from the denial of his first petition was through no fault of his own. He claimed that he properly filed a written notice of appeal in compliance with Rule 3, Ala.R.App.P., specifically, the form entitled “Notice of Appeal to the Alabama Court of Criminal Appeals by the Trial Court Clerk,” but that this Court dismissed the appeal on the State’s motion for failure to file a written notice of appeal. After receiving a response from the State, the circuit court summarily denied the petition.

On appeal, Reeves contends that the circuit court erred in denying his petition because, he says, the filing of the form entitled “Notice of Appeal to the Alabama Court of Criminal Appeals by the Trial Court Clerk,” although not signed by an appellant or an appellant’s attorney, is sufficient to perfect an appeal and, therefore, the dismissal of the appeal from his first petition was improper and he is entitled to an out-of-time appeal. We agree.

Taking judicial notice of our own records, it appears that this Court dismissed Reeves’s appeal on the ground that the form he used as his written notice of appeal — the form entitled “Notice of Appeal to the Alabama Court of Criminal Appeals by the Trial Court Clerk” — did not contain the signature of Reeves or of his attorney and, thus, was not sufficient to perfect his appeal. However, this Court has since recognized that the form used by Reeves is, although inappropriate, technically sufficient to perfect an appeal. In McLin v. State, 840 So.2d 937 (Ala.Crim.App.2002), this Court stated:

“There is no express requirement in the Alabama Rules of Appellate Procedure that a notice of appeal filed in a criminal case be signed by the appealing party or by his or her counsel. Certainly Rules 3(a)(2) and 3(c) contain no such requirement. Both the rules and the caselaw interpreting the rules indicate that the only jurisdictional prerequisite to an appeal to this Court is the timely filing of the notice of appeal, and both state and federal caselaw suggest that appellate rules should be liberally construed so as not to ‘catch the unwary on technicalities.’ Edmondson [v. Blakey], 341 So.2d [481,] 483 [(Ala.1976)]. Based on the plain language of Rule 3(c) and the caselaw cited above, we hold that a notice of appeal does not have to be signed by an appellant or by his or her attorney. Jurisdiction vests with this Court when a notice of appeal that substantially complies with the requirements of Rule 3(c), Ala.R.App.P., is timely filed.
“In this case, McLin used the form entitled ‘Notice of Appeal to the Alabama Court of Criminal Appeals by the Trial Court Clerk’ as his written notice of appeal. McLin’s use of this form was improper. This particular form was specifically designed for use by circuit court clerks to transmit notice to this Court that someone has filed an appeal; by signing the signature line provided on the form, the clerk of the circuit court certifies to this Court that all the information contained in the form is accurate. This certification is required because it is from the information contained on the form that this Court dockets every appeal. Use of this court form or any other court form in a manner or for a purpose other than that for which it was designed is inappropriate and cannot help but lead to confusion, as has happened in this case. Because the form used in this case was not designed for use by appellants or their attorneys, and to better ensure the accuracy of the information upon which all appeals are docketed, this Court strongly discourages the local practice by some circuit court clerks of requesting and/or allowing appellants or their attorneys to complete this form whenever an appeal is taken to this Court. We likewise strongly encourage appellants and their attorneys to use Sample Form 11 in the Appendix to the Alabama Rules of Appellate Procedure, or something similar thereto, when filing their written notices of appeal. Although neither approved nor adopted by the Alabama Supreme Court, that sample form is an appropriate form for filing notices of appeal; it satisfies the requirements of Rule 3(c), and it includes an area for the signature of the appellant’s attorney. Moreover, use of this sample form will not result in confusion or complications in perfecting appeals that may result from the use of an inappropriate form.
“Although we find that McLin’s use of the form entitled ‘Notice of Appeal to the Alabama Court of Criminal Appeals by the Trial Court Clerk’ as his written notice of appeal was improper, we nevertheless conclude that it was sufficient to perfect his appeal. The form designated the party taking the appeal, the judgment appealed from, and the name of the court to which the appeal was being taken; we can reasonably infer McLin’s intent to appeal from the text of the document; and the document was timely filed. Therefore, we find that this form was sufficient to perfect McLin’s appeal.”

840 So.2d at 941^12 (footnotes omitted).

Based on our holding in McLin, we should not have dismissed Reeves’s appeal from the denial of his first Rule 32 petition; therefore, Reeves is now entitled to an out-of-time appeal.

Accordingly, the judgment of the circuit court summarily denying Reeves’s second Rule 32 petition is reversed and this case is remanded for that court to grant Reeves an out-of-time appeal from the denial of his first Rule 32 petition.

REVERSED AND REMANDED.

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

      . See, e.g., Nettles v. State, 731 So.2d 626 (Ala.Crim.App.1998) (recognizing that this Court may take judicial notice of its own records).


author: WELLS, J. CANTERO, J.,

text:
    Martin Matthew DOBRIN, Petitioner, v. FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. SC02-2540.
    Supreme Court of Florida.
    Feb. 19, 2004.
    Rehearing Denied May 27, 2004.
    Flem K. Whited, III, David D. Fuller, Jr., and David H. Foxman of Whited, Fuller, Miller & Foxman, Daytona Beach, FL, for Petitioner.
    Enoch J. Whitney, General Counsel and Judson M. Chapman, Assistant General Counsel, Tallahassee, FL; and Heather Rose Cramer, Assistant General Counsel, Lake Worth, FL, for Respondent.
   WELLS, J.

We have for review Department of Highway Safety & Motor Vehicles v. Dobrin, 829 So.2d 922 (Fla. 5th DCA 2002), which expressly and directly conflicts with our decision in Holland v. State, 696 So.2d 757 (Fla.1997). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

FACTS

The evidence presented in this case consists only of the necessary paperwork reported by the officer as a result of the traffic stop. These documents reveal the following facts. An officer observed petitioner Martin Matthew Dobrin (Dobrin) driving his truck at a high rate of speed (estimated by the officer at fifty miles per hour) and drifting to the right and correcting himself in a quick manner on several occasions. The officer pulled Dobrin over and ticketed him for failure to maintain a single lane. During this procedure, the officer noticed that Dobrin’s eyes were bloodshot and that his breath smelled of alcohol. The officer conducted a field sobriety test, which Dobrin failed. The officer then arrested Dobrin for driving under the influence (DUI) and read Dobrin the implied consent warning. Dobrin refused to take a breath test, and as a result, respondent Department of Highway Safety and Motor Vehicles (Department) suspended Dobrin’s license.

At the formal administrative review of Dobrin’s license suspension, Dobrin challenged the validity of the traffic stop, arguing that the officer failed to specify in his arrest report that Dobrin had actually gone beyond a single lane. Dobrin claimed that the failure to include this information in the arrest report indicated that the officer did not have probable cause for the traffic stop. The hearing officer rejected without elaboration Dob-rin’s argument in respect to the probable cause for the traffic stop, concluding that the officer did have probable cause to believe that Dobrin was driving under the influence, that Dobrin was lawfully arrested, and that Dobrin refused the breath test after being informed that refusal to submit to the breath test would result in license suspension. Thus, the hearing officer suspended Dobrin’s license.

Dobrin thereafter filed a petition for writ of certiorari in the circuit court. The circuit court granted Dobrin’s petition and quashed the hearing officer’s order of license suspension, finding that the facts observed by the officer and contained in the officer’s arrest report did not provide probable cause to stop Dobrin’s vehicle for failure to maintain a single lane. The circuit court further rejected the Department’s argument that the officer would have been justified in stopping Dobrin for speeding, reasoning that it could not uphold the stop on the basis of what the officer could have done because the arrest report stated that the only reason for stopping Dobrin was the failure to maintain a single lane. The arrest report did not provide that the officer initiated the traffic stop because Dobrin was speeding, nor did it provide what the speed limit was for that section of road on which Dobrin was traveling. Finally, the court rejected the Department’s argument that the officer was justified in stopping Dobrin to determine whether he was ill, tired, or driving under the influence because the arrest report did not indicate that impairment was the reason for the stop. Dobrin v. Dep’t of Highway Safety & Motor Vehicles, No.2001-32341-CICI (Fla. 7th Cir. Ct. order filed Mar. 8, 2002).

The Department thereafter filed a petition for writ of certiorari in the Fifth District Court of Appeal. The Fifth District granted the petition and quashed the circuit court’s decision, providing as follows:

The reason given for the circuit trial court’s action was that the arrest affidavit did not specifically allege that Dobrin crossed either line of the traffic lane and farther failed to allege the posted speed limit of the street at the point where the officer observed the “fast” speed. The court refused to consider an alternative basis for the stop stating: “This court finds that it cannot uphold the stop on a basis of what the officer could have done, rather it must only analyze what in fact the officer did and why he did it.” Here, the court applied the wrong law. The issue is not why this particular officer conducted the traffic stop; the question should be whether the established facts would have caused a reasonable officer under the same circumstances to make the stop. See State v. Pollard, 625 So.2d 968 (Fla. 2d DCA 1993); see also State v. McNeal, 666 So.2d 229 (Fla. 2d DCA 1995). In other words, would it be unreasonable for an officer who observed one driving a truck at a high rate of speed and unable to maintain a straight course to pull a driver over to check the safety of the vehicle, the health of the driver or the capacity of the driver?
Because we believe the court below applied the wrong law, we grant certio-rari and quash the circuit trial court’s order quashing the suspension.

Dep’t of Highway Safety & Motor Vehicles v. Dobrin, 829 So.2d 922, 922-23 (Fla. 5th DCA 2002).

We granted review on the basis of conflict with our decision in Holland v. State, 696 So.2d 757 (Fla.1997).

ANALYSIS

The sole issue before this Court is whether the Fifth District, in its decision below, applied a standard that was in conflict with a decision from this Court. We hold that it did. We again expressly note that the factual record in this case was limited to the written arrest report. No witness testimony or other evidence was considered by the hearing officer. Our holding is simply that the standard to be applied to the facts reflected in the arrest report in determining whether there was a reasonable basis to stop Dobrin for the failure to maintain a single lane is the objective test set forth in Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), and Holland. For the following reasons, we quash the Fifth District’s decision in this case and direct reinstatement of the circuit court’s order.

It is well established that the Fourth Amendment’s prohibition of unreasonable searches and seizures includes investigatory stops of automobiles. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). An examination of the validity of a traffic stop under the Fourth Amendment thus requires courts to determine whether the stop was reasonable. Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), the United States Supreme Court held that the constitutional reasonableness of a traffic stop under the Fourth Amendment does not depend on the actual, subjective motivations of the individual officers involved in conducting the stop. The only concern under the Fourth Amendment is the validity of the basis asserted by the officer involved in the stop. The Court thus rejected a consideration of whether a reasonable officer under similar circumstances would have initiated the traffic stop, noting that it seems “easier to figure out the intent of an individual officer than to plumb the collective consciousness of law enforcement in order to determine whether a ‘reasonable officer’ would have been moved to act upon the traffic violation.” Id. at 815, 116 S.Ct. 1769.

In Holland, this Court adopted the objective test as set forth by the United States Supreme Court in Whren. We found this to be required by article I, section 12 of the Florida Constitution. In so holding, we receded from our decision in State v. Daniel, 665 So.2d 1040 (Fla.1995), in which we rejected a strict objective test in favor of the reasonable officer test. In Daniel, we had characterized the reasonable officer test as “whether the usual police practice would be to effect a stop when confronted with a particular kind of minor infraction.” Id. at 1048. This was also the test applied by the Second District in Pollard and McNeal, the cases relied upon by the Fifth District in the instant case. See State v. Pollard, 625 So.2d 968, 969 (Fla. 2d DCA 1998) (relying on reasonable officer test as set forth in Kehoe v. State, 521 So.2d 1094 (Fla.1988), which was upheld by this Court in Daniel ); State v. McNeal, 666 So.2d 229, 230 (Fla. 2d DCA 1995) (applying reasonable officer test and considering whether usual police practice would be to effect a stop when confronted with the traffic infraction).

By considering whether a reasonable officer would have stopped Dobrin based upon what was set forth in the arrest report, the Fifth District in this case applied the principle of law from which this Court receded in Holland. The correct test to be applied is whether the particular officer who initiated the traffic stop had an objectively reasonable basis for making the stop. We direct reinstatement of the circuit court’s order because we read the circuit court’s order to have applied the objective test.

On certiorari review, the circuit court was charged with the duty of determining whether competent, substantial evidence existed to support the traffic stop in this case. See Educ. Dev. Ctr., Inc. v. City of W. Palm Beach Zoning Bd. of Appeals, 541 So.2d 106, 108 (Fla.1989); City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla.1982). The only record evidence from which to make this determination was the arrest report that the officer filed as a result of this traffic stop. From this limited evidence, the circuit court concluded that (1) the record did not competently or substantially support the officer’s stop of Dobrin’s vehicle on the basis of the failure to maintain a single lane because the facts contained in the arrest report did not state any evidence that Dobrin went beyond a single lane; (2) the record did not competently or substantially support the officer’s stop of Dobrin’s vehicle on the basis of speeding because there was no indication in the arrest report that Dobrin was driving in excess of the speed limit, or that the reason for the officer’s stop was speeding; and (3) the record did not competently or substantially support the officer’s stop of Dobrin’s vehicle to determine whether Dobrin was ill, tired, or driving under the influence because the arrest report did not indicate that the reason for the stop was that officer thought Dobrin was impaired.

As the United States Supreme Court held in Whren, the validity of a traffic stop is determined by considering whether the officer who stopped the vehicle had an objective basis to do so, not whether it would be standard police practice to stop the vehicle. Whren v. United States, 517 U.S. at 814, 116 S.Ct. 1769. The circuit court in this case applied the correct law by considering whether the facts contained in the arrest report provided an objective basis to stop Dobrin’s vehicle for failure to maintain a single lane.

Accordingly, we quash the district court’s decision in this case. Because the circuit court applied the proper test under Holland in reviewing the administrative agency’s decision, we direct the reinstatement of the circuit court’s order quashing Dobrin’s license suspension.

It is so ordered.

PARIENTE, LEWIS, QUINCE, and BELL, JJ., concur.

CANTERO, J., concurs in part and dissents in part with an opinion.

ANSTEAD, C.J., recused.

CANTERO, J.,

concurring in part and dissenting in part.

I agree with the majority that the district court, by failing to apply Holland v. State, 696 So.2d 757 (Fla.1997), applied the wrong law. Unlike the majority, however, I believe that the circuit court, too, applied the wrong law. I would remand to the district court to reconsider the case in light of Holland.

Our decision in Holland applied the then-recent decision of the United States Supreme Court in Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). In that case, the Supreme Court held that the constitutional reasonableness of a traffic stop does not depend on the motivations of the individual officers involved. Instead, the Court applied a simple objective test based on the common law rule that probable cause justifies a search and seizure. Id. at 813, 819, 116 S.Ct. 1769. The question is not what the officer did and why he did it, or even what a “reasonable officer” would have done. As we stated in Holland, applying Whren, “When applying the objective test, generally the only determination to be made is whether probable cause existed for the stop in question.” 696 So.2d at 759.

The majority is correct that the district court in this case failed to apply that standard. Instead, it analyzed “whether the established facts would have caused a reasonable officer under the same circumstances to make the stop.” Dep’t of Highway Safety & Motor Vehicles v. Dobrin, 829 So.2d 922, 922 (Fla. 5th DCA 2002). This Court articulated the reasonable officer standard in 1995, before the Supreme Court decided Whren. See State v. Daniel, 665 So.2d 1040, 1046 (Fla.1995). In Holland, we acknowledged that Whren rejected that standard in favor of a strict objective test.

Nevertheless, at least the district court attempted to apply some type of objective test, and I am not sure the test it applied differs much from the strict objective test. Whether a reasonable officer under the same circumstances would make the stop is not much different from whether probable cause existed for the stop: by definition, a reasonable officer would only stop a vehicle when probable cause exists. I can envision no circumstances where the result will depend on which objective test is used.

On the other hand, the circuit court rejected an objective test altogether. As the district court noted, the circuit court used a much different analysis. As quoted in the district court’s opinion, it stated the issue as follows: “This court finds that it cannot uphold the stop on a basis of what the officer could have done, rather it must only analyze what in fact the officer did and why he did it.” 829 So.2d at 922 (emphasis added). This is a subjective test.

Therefore, I do not agree that the circuit court applied the proper test and would not reinstate that order. Instead, I would remand to the district court for application of the correct standard as stated in Holland.

      . As amended in 1982, section 12 provides that ''[t]his right shall be construed in conformity with the 4th Amendment to the United States Constitution as interpreted by the United States Supreme Court.’'