author: PER CURIAM. COBB, Judge,

text:
    Farrell BEDSOLE v. STATE of Alabama.
    CR-04-2140.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 2006.
    Rehearing Denied June 29, 2007.

      A. Riley Powell IV, Andalusia, for appellant.
    Troy King, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.
   On Return to Remand

PER CURIAM.

The appellant, Farrell Bedsole, was convicted of first-degree sodomy and first-degree sexual abuse, for offenses committed against K.W., and second-degree sodomy and second-degree sexual abuse, for offenses committed against A.W. Bedsole was sentenced to life imprisonment on the first-degree-sodomy charge, 10 years’ imprisonment on the first-degree-sexual-abuse charge, 20 years’ imprisonment for the second-degree-sodomy charge, and 1 year of imprisonment for the second-degree-sexual-abuse charge. Bedsole was also ordered to pay $500 to the Victims’ Compensation Fund, in accordance with § 15-23-17(b), Ala.Code 1975, and $100 to the Alabama Forensic Services Trust Fund, in accordance with § 36-18-7, Ala. Code 1975.

Bedsole does not challenge the sufficiency of the State’s evidence; therefore we will give only a brief rendition of the facts presented by the State at Bedsole’s trial.

A.W. testified that she first met Bedsole when she and her mother lived across the street from him. She was friends with Bedsole’s daughter. A.W. said that when she was 12 years old Bedsole started touching her inappropriately. Bedsole would come up behind her, she said, when she was working at a computer and would put his hands down the front of her blouse and touch her. She said that she moved in with Bedsole for a short period when she was 15 years old because she was having difficulties at school. He started touching her more frequently, she said, almost every night. Bedsole would come to her bed in the middle of the night, A.W. said, and would push away her clothes and touch her breasts and vagina with his hands and mouth. She said that she asked him to stop; she said he told her that she brought his actions on herself and that it did not matter because she was not a virgin.

The second victim, K.W., testified that at one point she lived with her mother and Bedsole and that she later moved in with Bedsole when she began having difficulties with her mother. K.W. said that when she was 16 years old Bedsole would touch her breasts and vagina, put his mouth on her breasts and vagina, and put his fingers in her vagina. She said that when she was living with him he awakened her in the middle of the night, pushed her pants down, and put his penis in her vagina. She said that he had sexual intercourse with her against her will on one other occasion while she was living with him.

I.

Bedsole argues that the trial judge erred by allowing Eugenia Loggins, the former district attorney for the Twenty-Second Judicial Circuit, to testify regarding K.W.’s demeanor during her grand-jury testimony. Loggins was the district attorney for Covington County when Bed-sole’s case was presented to the grand jury. At the time of Bedsole’s trial Log-gins was no longer the district attorney and was engaged in the private practice of law.

The record shows that K.W. testified that she first told police that Bedsole had not done anything to her but when she was testifying before the grand jury she broke down after being repeatedly told to tell the truth, and she stated that Bedsole had sexually abused her. During K.W.’s cross-examination, the following occurred:

“Q. [Defense counsel]: What about the district attorney’s investigator, Gary Hutcheson? Did he ever speak with you before your — First off, do you know who I’m talking about? Gary Hutcheson?
“A. [KW.]: I thinks o.
“Q. The one whose office is right over here?
“A. Yes, sir.
“Q. Now, did you have conversations with him before your grand jury testimony?
“A. No, sir.
“Q. You didn’t have anything like that?
“A. Not that I remember.
“Q. Who was it that kept telling you to — remember, you’re under oath, remember, you’re under oath?
“A. It was the lady.
“Q. Ms. Loggins?
“A. Yes, sir.
“Q. And that’s the first time you decided to say anything about Farrell [Bedsole]?
“A. Yes, sir.
“Q. And that’s when Ms. Loggins was there and there were eighteen people in the jury box?
“A. Yes, sir.”

(R. 324-25.)

The State then called Loggins to testify. Before allowing her testimony, the circuit court held an in-depth discussion outside the jury’s presence. It is clear that the State intended to limit Loggins’s testimony to KW.’s demeanor during her grand-jury testimony and that is why the circuit court allowed Loggins’s testimony.

Loggins testified that K.W. was initially reserved but that she broke down near the end of her grand-jury testimony. Loggins said that K.W. was

“Very emotional. It was very sudden. All of a sudden her entire demeanor changed. She just suddenly began to cry. And I realized that the facade was gone. And then she told us what had happened to her. And she continued to be emotional, continued to — not cry profusely but gathered herself, but she continued to be very distraught and very upset.”

(R. 447.)

During defense counsel’s cross-examination of Loggins, counsel elicited the following testimony:

“Q. [Defense counsel]: Are you still— Let me ask this: Do you know Farrell Bedsole?
“A. [Loggins]: Not personally. No.
“Q. Do you know him through your office?
“A. All I know him is through this case.
“Q. And you don’t like him, do you?
“A. I don’t like what he did.
“Q. You don’t like what he is accused of doing; isn’t that correct?
“A. That’s correct.”

(R. 454.)

Bedsole argues that the circuit court committed reversible error by allowing Loggins’s testimony for several reasons. Specifically, Bedsole argues that her testimony should have been excluded because of Loggins’s position as the district attorney, that Loggins should not have been allowed to express a personal opinion concerning Bedsole’s guilt, and that Loggins’s testimony improperly bolstered the State’s case against Bedsole.

Initially, we note that Loggins’s direct testimony consisted of merely six pages of the trial transcript and was in large part cumulative to KW.’s own testimony.

“Testimony that is inadmissible may be rendered harmless by prior or subsequent lawful testimony to the same effect or from which the same facts can be inferred. McFarley v. State, 608 So.2d 430, 433 (Ala.Crim.App.1992). ‘The erroneous admission of evidence that is merely cumulative is harmless error.’ Dawson v. State, 675 So.2d 897, 900 (Ala.Crim.App.1995).”

Tinker v. State, 932 So.2d 168, 188 (Ala.Crim.App.2005).

Bedsole argues that Loggins’s remark that she did not like what Bedsole was accused of doing amounted to improper vouching on the part of the district attorney. The United States Supreme Court in United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), specifically condemned a prosecutor’s vouching for the credibility of a witness or expressing a personal opinion concerning a defendant’s guilt. The United States Supreme Court stated:

“The prosecutor’s vouching for the credibility of witnesses and expressing his personal opinion concerning the guilt of the accused pose two dangers: such comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant’s right to be tried solely on the basis of the evidence presented to the jury; and the prosecutor’s opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government’s judgment rather than its own view of the evidence.”

470 U.S. at 18-19, 105 S.Ct. 1038. See also United States v. Sims, 719 F.2d 375, 377 (11th Cir.1983) (“ ‘Attempts to bolster a witness by vouching for his credibility are normally improper and error.’ ” (quoting United States v. Ellis, 547 F.2d 863, 869 (5th Cir.1977))). Bedsole argues that based on the holdings in Young and Sims, his conviction should be reversed.

We note that the challenged testimony was elicited during defense counsel’s cross-examination of Loggins. Accordingly, if any error did occur, it was invited by defense counsel’s own actions. “ ‘Under the doctrine of invited error, an appellant cannot voluntarily invite error by his own conduct and then seek to profit thereby.’ Kirkland [v. State], 581 So.2d [1207,] at 1210 [ (Ala.Crim.App.1990) ] (citing Timmons v. State, 487 So.2d 975 (Ala.Cr.App.1986)).” Mack v. State, 736 So.2d 664, 671 (Ala.Crim.App.1998).

Moreover, we cannot agree with Bed-sole’s characterization of the above testimony as “improper vouching” on the part of the district attorney. Loggins was not the district attorney at the time of trial but was called as a witness to describe K.W.’s demeanor during her grand-jury testimony when she first revealed the abuse she said she suffered from Bedsole. The fact that Loggins related to the jury that K.W. cried during her grand-jury testimony and that Loggins did not like what Bedsole was accused of doing in no way suggests that Loggins was vouching for the State’s evidence or expressing an opinion concerning Bedsole’s guilt. The cases relied on by Bedsole have no application here.

Lastly, if error did occur it was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

“In holding that the harmless-error rule governs even constitutional violations under some circumstances, the Court recognized that, given the myriad safeguards provided to assure a fair trial, and taking into account the reality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial, and that the Constitution does not guarantee such a trial.”

United States v. Hasting, 461 U.S. 499, 508-09, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983) (footnote omitted). For the reasons stated, we find no reversible error.

II.

Bedsole also argues that the trial court erred by allowing the testimony of L.D. to be received into evidence. Specifically, L.D. testified that when she was about 15 years old she lived with Bedsole and she awoke one night to find Bedsole standing over her bed with his hands inside her underwear. Bedsole argues that L.D.’s testimony was not admissible under Rule 404(b), Ala. R. Evid., and that its probative value was greatly outweighed by its prejudicial impact.

Rule 404(b), Ala.R.Evid., states:

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.”

The State specifically argued at trial that L.D.’s testimony was admissible to show Bedsole’s motive. In addressing the admissibility of collateral acts of sexual abuse in the trial of a defendant charged with rape and sexual abuse, this Court in Estes v. State, 776 So.2d 206 (Ala.Crim.App.1999), stated:

“Ordinarily, a prior act of sexual abuse would be inadmissible under Rule 404(b). However, in this case, the alleged prior bad act was offered for the specific purpose of proving motive.
“‘“Motive is defined as ‘an inducement, or that which leads or tempts the mind to do or commit the crime charged.’ Spicer v. State, 188 Ala. 9, 11, 65 So. 972, 977 (1914). Motive has been described as ‘that state of mind which works to “supply the reason that nudges the will and prods the mind to indulge the criminal intent.” ’ [Charles Gamble, Character Evidence: A Comprehensive Approach 42 (1987).]
“ ‘ “Furthermore, testimony offered for the purpose of showing motive is always admissible. McClendon v. State, 243 Ala. 218, 8 So.2d 883 (1942). Accord, Donahoo v. State, 505 So.2d 1067 (Ala.Cr.App.1986). ‘ “It is permissible in every criminal case to show that there was an influence, an inducement, operating on the accused, which may have led or tempted him to commit the offense.” McAdory v. State, 62 Ala. 154 [ (1878) ].’ Nickerson v. State, 205 Ala. 684, 685, 88 So. 905, 907 (1921).” ’
“Hatcher v. State, 646 So.2d 676, 679 (Ala.1994) (emphasis added).
“In determining whether evidence concerning a collateral act of sexual abuse is admissible to prove motive, we must consider the following factors: ‘ “(1) the offense(s) charged; (2) the circumstances surrounding the offense(s) charged and the collateral offense(s); (3) the other collateral evidence offered at trial; and (4) the other purpose(s) for which it is offered.’ ” Campbell v. State, 718 So.2d 123, 130 (Ala.Cr.App.1997), quoting Bowden v. State, 538 So.2d 1226, 1237 (Ala.1988).
“First, Estes was charged with rape and sexual abuse in the first degree as to M.K.B. Second, the circumstances surrounding the charged offenses and the collateral sexual offense are virtually identical, i.e., both victims are female and in the same age category, and both the charged offense and the collateral offense occurred in Estes’s pickup truck in an identical manner. Estes placed his right arm around M.K.B. and L.L. Then, he placed his right hand down their shirts and rubbed their breasts while he rubbed their thighs with his left hand. Third, no other collateral evidence was offered at the trial. Fourth, the State did not offer the collateral offense in order to establish that Estes acted in conformity on this particular occasion. Rather, the State offered the evidence to establish Estes’s motive in committing the charged offense.
“In this case, the offenses committed by Estes are so similar that a jury could have concluded that Estes is motivated by an unnatural sexual desire for young girls. See Worthy v. State, 724 So.2d 55 (Ala.Cr.App.1998); Hatcher. We find that the probative value of the evidence of the collateral offense outweighed its prejudicial effect. Therefore, we cannot say that the trial court abused its discretion in admitting the collateral evidence. Allen v. State, 624 So.2d 650, 653-54 (Ala.Cr.App.1993); see also Worthy v. State, 724 So.2d 55 (Ala.Cr.App.1998) (holding that collateral sexual offense was similar to the present offense, and therefore, that evidence of that collateral offense was relevant to show motive); Campbell v. State, 718 So.2d 123 (Ala.Cr.App.1997); Ex parte Register, 680 So.2d 225 (Ala.1994) (holding that collateral evidence was admissible because the evidence tended to show that the appellant had a propensity for unusual sexual relations); Hatcher.”

776 So.2d at 210-211.

Similarly, in Ritchie v. State, 808 So.2d 71 (Ala.Crim.App.2001), two brothers, ages eight and nine, were sexually abused by a neighbor. The evidence showed that Rit-chie had the boys sit on his lap and he unzipped their pants and touched them. At trial, the State introduced the testimony of another individual, K.D.J., who testified that when she was eight years old Ritchie sat next to her, put his arm around her, and rubbed his hand between her legs. Another witness, K.B.W., testified that when she was 10 years old Ritchie put her on his lap and rubbed her legs and underneath her shirt. In affirming the trial court’s admission of evidence of the collateral acts of sexual abuse committed against K.D.J. and K.B.W., this Court stated:

“Although the victims in the present case were males and the victims of the prior acts were females, the acts of abuse shared many similarities. All of the victims were between eight and ten years of age. Furthermore, all of the victims testified that they were in a living room when the appellant touched them. K.D.J., J.S.S., and Z.A.S. testified that the appellant touched their genital areas, and K.D.J. and J.S.S. testified that there were other people in the same room watching television when the appellant touched them. Additionally, at the time of the offense, L.B.W., like J.S.S. and Z.A.S., lived in the same trailer park as the appellant and was at the appellant’s trailer playing with his sons when the abuse occurred. Finally, L.B.W., J.S.S., and Z.A.S. all testified that they were sitting in the appellant’s lap at the time the appellant touched them. Even though the prior acts of abuse were not identical to the acts of abuse in the present case, they were sufficiently similar to show that the appellant’s motive for sexually abusing J.S.S. and Z.A.S. was his unnatural desire for young children. See Ex parte Register, 680 So.2d 225 (Ala.1994); Estes [v. State, 776 So.2d 206 (Ala.Crim.App.1999) ]; Atkisson v. State, 640 So.2d 33 (Ala.Crim.App.1993). Therefore, the appellant’s argument is without merit.”

Ritchie, 808 So.2d at 75.

In this case, A.W. and K.W. both testified that Bedsole came to their beds in the middle of the night while they were asleep in Bedsole’s house and touched their breasts and vaginas. L.D. similarly testified that while she was staying at Bed-sole’s residence she awoke to find Bedsole next to her bed with his hand down her underwear. As we stated in Estes, “[T]he offenses committed by [Bedsole] are so similar that a jury could have concluded that [Bedsole] is motivated by an unnatural sexual desire for young girls.” 776 So.2d at 211.

Bedsole also argues that L.D.’s testimony should have been excluded because the incident was too remote — it occurred more than 10 years before the charged offenses. We do not agree.

“Neither the Alabama Rules of Evidence nor Alabama caselaw sets a specific time limit for when a collateral act is considered too remote, other than a conviction for impeachment purposes.” McClendon v. State, 813 So.2d 936, 944 (Ala.Crim.App.2001); see also C. Gamble, Gamble’s Alar bama Rules of Evidence, § 404(b) (2d ed.2002). Rule 609(b), Ala. R. Evid., specifically provides that a conviction that is more than 10 years old is not admissible for impeachment purposes unless the trial court determines “that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.” Rule 609(b) has no application to the admission of collateral acts to establish motive.

Moreover, the determination of whether a prior bad act is too remote is made on a case-by-case basis and is left to the sound discretion of the trial judge, and the judge’s determination will not be disturbed on appeal unless the judge has abused his discretion. McClendon, supra. The remoteness, if any, of L.D.’s testimony affected the weight and probative value the jury placed on it, not its admissibility. The circuit court correctly allowed L.D. to testify concerning collateral acts of sexual abuse committed by Bedsole.

For the foregoing reasons, Bedsole’s convictions and sentences are due to be, and are hereby, affirmed.

AFFIRMED.

McMILLAN, P.J., and BASCHAB, SHAW, and WISE, JJ., concur; COBB, J., concurs in part and dissents in part, with opinion.

COBB, Judge,

concurring in part and dissenting in part.

While I concur with the majority in Part II that the testimony of L.D. was properly received by the trial court, I respectfully dissent from the majority as to its holding in Part I relating to the testimony of Eugenia Loggins.

Over 70 years ago, the United States Supreme Court delivered these words of wisdom:

“The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”

Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). Because I am of the opinion that the testimony of Eugenia Loggins was a “foul blow” that could have created undue prejudice in the minds of jurors, I believe Bedsole’s convictions should be reversed and the case remanded for a new trial.

The majority opinion of this Court states that if it was error for the trial court to allow the testimony of Loggins, it was harmless error. The record clearly shows that the Loggins’s direct testimony was inadmissible hearsay that should have never been permitted by the trial judge. The State offered Loggins as a witness solely because on cross-examination Bedsole’s counsel had questioned K.W. regarding her initial assertion that Bedsole had not sexually abused her.

Rule 801(d)(1)(B), Ala. R. Evid., states: “A statement is not hearsay if ... [t]he declarant testifies at trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.”

However, as this Court has noted, “to circumvent a hearsay objection and to obtain admissibility under Rule 801(d)(1)(B), the prior consistent statements must have been made before the witness is claimed to have acquired a motive to fabricate.” Freeman v. State, 722 So.2d 806, 812 (Ala.Crim.App.1998). In other words, the de-clarant would first make a statement, then make a fabricated statement, and then revert to his or her original account. The State, however, offered testimony regarding a statement made after K.W. gave a purported fabricated account and after K.W.’s encounter with Bedsole, which would have given her a motive to fabricate her story. As the State admits in its brief, Loggins’s testimony does not fall within the ambit of Rule 801(d)(1)(B) and thus it was error for the trial court to allow Log-gins to testify.

I disagree with the majority opinion of this Court that allowing Loggins’s testimony was harmless error. Rule 403, Ala. R. Evid., states:

“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

While the relevancy of Loggins’s testimony must be questioned, the prejudice and bias her testimony could have created in the minds of the jurors are grounds for reversal. For 18 years, Eugenia Loggins served as the district attorney for the Twenty-Second Judicial Circuit, a circuit consisting solely of Covington County. On three occasions the people of Covington County elected Loggins as their district attorney. To place Loggins’s longevity in perspective, the citizens of Covington County first elected Loggins their district attorney two years before the trial judge in this matter was even admitted to practice law in Alabama. The majority appears to place much credence on the fact that Loggins was no longer the district attorney and was in private practice at the time of the trial. However, Loggins is also a supernumerary district attorney. Furthermore, one’s esteem with the public does not always diminish upon retirement, as evidenced by such individuals as Bear Bryant, Shug Jordan, Gene Stallings, and Pat Dye.

Covington County is typical of rural Alabama where everyone knows each other and elected officials are typically held in high regard. To have the highly regarded retired district attorney testify, “I don’t like what he did,” obviously creates the danger of undue prejudice, which substantially outweighs any relevancy the testimony may have had.

The Alabama Supreme Court has previously held that testimony by an elected official closely associated with a case is grounds for reversal and remand for a new trial. In Chancellor v. State, 291 Ala. 413, 282 So.2d 242 (1973), the Cherokee County sheriff served as bailiff to the jury during a trial in which he testified. The Supreme Court held this to be reversible error that warranted a new trial. In reversing the judgment and remanding the case in Chancellor, the Supreme Court noted:

“ ‘It is established that in their deliberations the jury should be separated from and uninfluenced by the outside world. Any misconduct that might influence the jury, affect the verdict rendered or the punishment fixed, is a cause for a new trial. The test of vitiating influence upon a jury authorizing a new trial is not whether it did influence the jury to act without the evidence, but whether it might have unlawfully influenced the jury in the verdict returned, as to its nature, character, or degree, or the amount and extent of the punishment fixed by the jury within the statute.’ ”

291 Ala. at 415, 282 So.2d at 244, quoting Oliver v. State, 232 Ala. 5, 166 So. 615, 617 (1936).

At least one other court faced with an identical situation has concluded that the testimony of the former prosecutor constituted reversible error. In United States v. McKoy, 771 F.2d 1207 (9th Cir.1985), a codefendant of McKoy who testified against McKoy was cross-examined extensively regarding his plea agreement. In response, the prosecutor called the former prosecutor who handled the plea negotiations concerning the codefendants to clarify the circumstances surrounding the plea bargain. The former prosecutor’s testimony was characterized as follows:

“[The former prosecutor] began by explaining the terms of [a co-defendant’s] plea agreement to the jury. The trial prosecutor then asked [the former prosecutor] to describe his negotiations with [the codefendants]. [The former prosecutor] responded:
“ ‘In answering your question, I am going to have to tell you what my state of mind was with regard to this. I wanted to make sure that we had as good a case as we possibly could going into the courtroom. I felt that at that time the Government had an excellent case against— ’
“At that point, the defense objected to the former prosecutor’s discussion of his opinion of the evidence. The court sustained the objection, but permitted the witness to describe his ‘state of mind’ with respect to the negotiations. The former prosecutor then continued his testimony as follows: T felt the case was an extremely strong case against all defendants. It was stronger against some defendants than others, but nonetheless, I felt it was a strong case.’ [The former prosecutor] went on to tell the court that ‘[one of the codefendants], in my view, was least culpable of all — ’. Defense counsel asserted a continuing objection to this testimony, and moved for a mistrial. The motion was denied.”

771 F.2d at 1210 (footnote omitted). In determining that the former prosecutor’s testimony was improper, the Ninth Circuit observed:

“The rule that a prosecutor may not express his personal opinion of the defendant’s guilt or his belief in the credibility of witnesses is firmly established. E.g. United States v. Potter, 616 F.2d 384, 392 (9th Cir.1979), cert. denied 449 U.S. 832, 101 S.Ct. 101, 66 L.Ed.2d 37 (1980); United States v. Davis, 564 F.2d 840, 8[4]6 (9th Cir.1977), cert. denied, 434 U.S. 1015, 98 S.Ct. 733, 54 L.Ed.2d 760 (1978). Although the problem of prosecutorial vouching generally arises during arguments to the jury, it is equally objectionable where a prosecutor speaks to the jury as a witness. See People v. Arends, 155 Cal.App.2d 496, 318 P.2d 532 (1958).”

771 F.2d at 1210-11.

After determining that the prosecution had engaged in improper conduct, the Ninth Circuit then analyzed whether the improper conduct amounted to prejudice. The court first noted that the prosecution’s ease depended on the credibility of its two chief witnesses. The court then noted:

“The fact that the improper statements here were presented to the jury as sworn testimony reinforces our conclusion that those statements probably affected the jury’s ability to judge the evidence fairly. We have often noted that the trial court may be able to ‘neutralize’ the effect of improper prosecuto-rial remarks by admonishing counsel to refrain from such remarks or by giving appropriate curative instructions to the jury. E.g. United States v. Mikka, 586 F.2d 152, 156 (9th Cir.1978), cert. denied 440 U.S. 921, 99 S.Ct. 1247, 59 L.Ed.2d 474 (1979). But prejudicial statements by the prosecution usually come before the jury during opening or closing argument. In such cases, the prosecutor’s remarks are not evidence, and the jury is so instructed. The jury is further instructed to consider only the evidence in reaching its verdict. In the present case, the prosecutor’s remarks were evidence, presented to the jury as sworn testimony.”

771 F.2d at 1212-13.

Likewise, the State’s case against Bed-sole hinged exclusively on the credibility of A.W. and K.W. No physical evidence was presented connecting Bedsole to the alleged sexual abuse. As in McKoy, the former prosecutor’s statement regarding her opinion about Bedsole’s guilt was evidence, presented as sworn testimony. Thus, it would have been extremely difficult, if not impossible, for the trial court to “neutralize” the effect of this improper prosecutorial comment with a curative instruction.

The majority attempts to diminish the severity of Loggins’s statement, “I don’t like what he did,” by contending that because the statement was made during cross-examination it was invited error. An invited error is one that is invited by the defendant or was a natural consequence of the defendant’s actions. Moody v. State, 888 So.2d 582 (Ala.Crim.App.2003). To say that Loggins’s statement was invited error is disingenuous. In an attempt to show any bias on the part of Loggins, Bedsole’s attorney asked her if it was not true that she did not like his client. Instead of answering yes or no, Loggins expressed her opinion as to Bedsole’s guilt by stating “I don’t like what he did.” Obviously Bedsole’s attorney was not expecting such a response, and the response was not a natural consequence of his attorney’s question. Plainly, this is not invited error.

“ 'The test of vitiating influence upon a jury authorizing a new trial is not whether it did influence the jury to act without the evidence, but whether it might have unlawfully influenced the jury in the verdict returned, as to its nature, character, or degree....’” Chancellor v. State, 291 Ala. at 415, 282 So.2d at 244. It is my opinion that in a case that depended solely on the credibility of the two victims, the testimony of the popular former district attorney regarding the circumstances surrounding when one of the victims changed her story so as to accuse Bedsole of sexually abusing her and the former district attorney’s statement implying that she believed that Bedsole was guilty of the crimes charged, “ ‘might have unlawfully influenced the jury in the verdict returned.’” Id. Therefore, I believe the proper course of action by this Court would be to reverse the judgment of the trial court and remand this case for a new trial. I therefore dissent from that portion of the majority’s opinion.

       Note from the reporter of decisions: On July 13, 2006, the Court of Criminal Appeals remanded the case by order; the case was resubmitted on return to remand on August 2, 2006.

      . To protect the anonymity of the juvenile victims, we have used their initials. See Rule 52, Ala.R.App.P.

      . On July 13, 2006, we remanded this case for the circuit court to vacate that portion of its sentencing order assessing a $100 fine to the Alabama Forensic Services Trust Fund because Bedsole was not convicted of any offenses enumerated in §§ 13A-12-211 through 13A-12-260, Ala.Code 1975.

      .Although both victims share the same last initial there is no indication that they are related; both have different last names.

      . While I do not always agree with the decisions of the United States Court of Appeals for the Ninth Circuit, e.g., Newdow v. U.S. Congress, 328 F.3d 466 (9th Cir.2003), rev’d Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004) (declaring recitation of the Pledge of Allegiance in public classrooms a violation of the Establishment Clause), I believe the holding and reasoning of the Ninth Circuit in McKoy is correct.


source: Caselaw Access Project

author:
WISE, Judge.
      BASCHAB, Judge, SHAW, Judge,

license: Public Domain

text:
    James Anthony BALL v. STATE of Alabama.
    CR-05-0941.
    Court of Criminal Appeals of Alabama.
    Jan. 12, 2007.
    Rehearing Denied April 13, 2007.
    Certiorari Denied June 15, 2007 Alabama Supreme Court 1061081.
    Anthony J. Bishop, Evergreen, for appellant.
    Troy King, atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for appellee.
   WISE, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J., and COBB, J., concur. BASCHAB and SHAW, JJ., concur in the result, each with opinion.

BASCHAB, Judge,

concurring in the result.

In Britt v. North Carolina, 404 U.S. 226, 227-30, 92 S.Ct. 431, 433-35, 30 L.Ed.2d 400 (1971), the United States Supreme Court held:

“Griffin v. Illinois and its progeny establish the principle that the State must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense or appeal, when those tools are available for a price to other prisoners. While the outer limits of that principle are not clear, there can be no doubt that the State must provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense or appeal. The question here is whether the state court properly determined that the transcript requested in this case was not needed for an effective defense.
“In prior cases involving an indigent defendant’s claim of right to a free transcript, this Court has identified two factors that are relevant to the determination of need: (1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought, and (2) the availability of alternative devices that would fulfill the same functions as a transcript....
“We agree with the dissenters that there would be serious doubts about the decision below if it rested on petitioner’s failure to specify how the transcript might have been useful to him. Our cases have consistently recognized the value to a defendant of a transcript of prior proceedings, without requiring a showing of need tailored to the facts of the particular case. As Mr. Justice Douglas makes clear, even in the absence of specific allegations it can ordinarily be assumed that a transcript of a prior mistrial would be valuable to the defendant in at least two ways: as a discovery device in preparation for trial, and as a tool at the trial itself for the impeachment of prosecution witnesses.
“A defendant who claims the right to a free transcript does not, under our cases, bear the burden of proving inadequate such alternatives as may be suggested by the State or conjured up by a court in hindsight. In this case, however, petitioner has conceded that he had available an informal alternative' which appears to be substantially equivalent to a transcript. Accordingly, we cannot conclude that the court below was in error in rejecting his claim.”

(Footnotes omitted.)

In this case, the appellant conceded that he committed the offense. However, he entered a plea of not guilty by reason of mental disease or defect, and he was required to prove that he suffered from a mental disease or defect. As defense counsel argued during his opening statement, the issue was not whether the appellant committed the offense, but whether he was guilty or not guilty by reason of mental disease or defect. Thus, this case differs from other cases because the burden of proof was on the appellant rather than on the State.

The pivotal issue in this case was whether the appellant suffered from a mental disease or defect, and the outcome of the case was almost entirely dependent on the testimony of the parties’ mental health experts and the jury’s determination of the credibility of those experts. Essentially, the case came down to a battle of the experts and the parties persuading the jury to believe their experts. The mistrials based on hung juries during the previous trials indicate that the issue of whether the appellant suffered from a mental disease or defect was a close one for each of those juries.

At first blush, based on Britt, it appears that the transcripts of the two previous trials would have been essential for the appellant to attempt to impeach the credibility of the State’s mental health experts and effectively present his mental disease or defect defense. However, during the third trial, the State relied on different experts than it did during the first two trials to rebut the appellant’s mental disease or defect defense. Therefore, because the State relied on different mental health expertp during the third trial, and because the defense had access to a transcript of Brown’s previous testimony, the entire transcripts of the two previous trials were not essential for the appellant to attempt to impeach the credibility of the State’s mental health experts and effectively present his mental disease or defect defense. In addition, there is not any indication that the transcripts of the two previous trials were necessary as discovery devices in preparation for trial. Although the trial court would have been justified in making the entire transcripts of the two previous trials available to the defense, under the specific circumstances of this case, the trial court properly concluded that the defense “had adequate alternative means ... of achieving the same information.” (R. 826.) Accordingly, although I do not agree with all of the majority’s analysis as to this issue, I respectfully concur in the result.

SHAW, Judge,

concurring in the result.

I disagree with the analysis in Part I of the unpublished memorandum regarding preservation and due diligence. I believe that the issue of the trial court’s denial of James Anthony Ball’s motion for a transcript of his two previous trials, which ended in mistrials, is properly before this Court, and that the trial court’s denial of the motion was error under Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 80 L.Ed.2d 400 (1971). However, under the circumstances in this case, I believe the error was harmless. See, e.g., United States v. Tyler, 943 F.2d 420 (4th Cir.1991) (recognizing that harmless-error analysis applies to Britt violations). The sole issue at trial was Ball’s sanity; Ball conceded that he committed the crime, and he stipulated to facts of the crime. Six of the state’s witnesses in the present trial testified in one or both of Ball’s previous trials. However, none of those witnesses offered any testimony in the present trial regarding Ball’s sanity and their testimony in the present trial was consistent with their testimony at the previous trials. Under these circumstances, I do not believe that Ball was prejudiced by not having the transcripts of the previous trials. Therefore, I concur in the result.

      . I agree with Parts II, III, and IV of the unpublished memorandum.

      . Indeed, Ball did not even cross-examine the majority of the witnesses the State called to establish the crime.

      .In the first trial, Charles McMullen, the law-enforcement officer who took Ball’s statement, testified that, in bis opinion, Ball was sane. However, McMullen was not questioned regarding his opinion of Ball’s sanity in the third trial.


author: PER CURIAM.

text:
    William H. KELLEY, Appellant, v. STATE of Florida, Appellee.
    No. SC06-1574.
    Supreme Court of Florida.
    Oct. 25, 2007.
    Rehearing Denied Feb. 4, 2008.

      Christine R. Davis, Sylvia H. Walbolt and James R. Wiley of Carlton Fields, P.A., Tallahassee, FL, and Kevin Jon Napper and Mac Richard McCoy of Carlton Fields, P.A., Tampa, FL, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, FL, and Carol M. Dittmar, Senior Assistant Attorney General, Tampa, FL, for Appellee.
    David Loftis, New York, NY, on behalf of The Innocence Project, Inc., as Amicus Curiae.
   PER CURIAM.

William H. Kelley appeals an order of the circuit court denying his motion for postconviction DNA testing under Florida Rule of Criminal Procedure 3.853. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. We affirm the circuit court’s denial of Kelley’s motion for postconviction DNA testing."

FACTS AND PROCEDURAL HISTORY

William Kelley was indicted for the October 3, 1966, contract murder of Charles Yon Maxcy, a wealthy citrus grower and rancher from Sebring, Florida. Kelley v. State, 486 So.2d 578, 579 (Fla.1986). John Sweet, a real estate broker with ties to Boston’s criminal underworld, commissioned Kelley and Andrew Von Etter to carry out the murder. Kelley v. Secretary for Dep’t of Corrections, 377 F.3d 1317, 1324 (11th Cir.2004). Originally, only Sweet was tried for the murder. After Sweet’s first trial ended in a mistrial, the conviction resulting from his second trial was reversed on appeal. See Kelley v. Singletary, 222 F.Supp.2d 1357, 1358 (S.D.Fla.2002), rev’d sub nom. Kelley v. Secretary for Dep’t of Corrections, 377 F.3d 1317 (11th Cir.2004); Sweet v. State, 235 So.2d 40 (Fla. 2d DCA 1970).

At that point, the case file, including the evidence involved, was transmitted to the clerk of the court for maintenance. Kelley, 486 So.2d at 579. The evidence remained there until April of 1976, nine and a half years after the murder, when the State, at the clerk’s request, moved for an order requesting the court’s permission to dispose of the evidence. The State’s motion was granted and the evidence destroyed. Kelley, 377 F.3d at 1325.

The case was dormant until 1981 when Sweet approached law enforcement authorities seeking immunity regarding a separate criminal situation in return for his testimony pertaining to various crimes, including the Von Maxcy murder. Kelley, 486 So.2d at 579-80. It was Sweet’s testimony upon which Kelley’s indictment and prosecution were based.

Kelley’s first trial ended in a mistrial. Upon retrial, he was found guilty of first-degree murder and sentenced to death. Id. Kelley’s conviction and sentence were affirmed on direct appeal. Id. at 586. Denial of his first postconviction motion was also affirmed on appeal. Kelley v. State, 569 So.2d 754, 762 (Fla.1990). And, on March 12, 1992, this Court denied Kelley’s petition for writ of habeas corpus. Kelley v. Dugger, 597 So.2d 262 (Fla.1992).

After an unsuccessful attempt to secure relief at the federal level, see Kelley, 377 F.3d at 1369, Kelley filed a motion for postconviction DNA testing of certain physical evidence pursuant to Florida Rule of Criminal Procedure 3.853. He listed twenty-nine items on which he sought DNA testing. The motion also requested prehearing discovery to locate the items. In response, the State claimed that the items sought by Kelley were lost or destroyed. While Kelley acknowledged that some physical evidence was destroyed in 1976 pursuant to a court order, he maintained that the destroyed evidence was not the subject of his request for DNA testing. Kelley moved for a preliminary hearing to address these threshold issues, in particular his request for discovery. On April 19, 2006, the trial court entered an interim order setting a preliminary hearing for June 6, 2006.

The State moved to continue the June 6 hearing. At a May 10, 2006, telephonic hearing to address that request, the court sua sponte stated that the June 6 hearing would be a two-day final hearing, including the presentation of witnesses and evidence on the merits of Kelley’s motion for postconviction DNA testing, specifically whether the DNA evidence still existed. Two days later, the trial court entered two orders. The first denied the State’s motion for a continuance and cancelled the preliminary hearing. The second order set the case for a full evidentiary hearing on June 6-7, 2006.

In response, Kelley filed an emergency motion requesting that the court reconsider its discovery ruling and continue the final evidentiary hearing until after discovery on the existence of physical evidence could be completed. The trial court denied this motion during a May 26, 2006, telephonic hearing. This Court subsequently denied Kelley’s petition to review the trial court’s nonfinal order. Kelley v. State, 933 So.2d 521 (Fla.2006).

At the evidentiary hearing on June 6, 2006, ten witnesses testified. The first nine testified regarding their efforts to locate the evidence Kelley was seeking. These witnesses, after diligent searches, were unable to locate any of the requested items. First, Tina Barber, records custodian for the Highlands County Sheriffs Office, was unable to find any evidence in her office relating to Kelley’s case. She found only a letter stating that older receipts were turned over to the attorneys in Bartow. Cecilia High, supervisor of property and evidence at the Highlands County Sheriffs Office, searched the property storage facility but could not find anything. Dr. Marta Coburn, chief medical examiner for Collier County, found nothing. Sheli Wilson, the District 10 medical examiner’s office manager, and her staff searched but found nothing related to Von Maxcy’s death. Suzanne Livingston, forensic services director for the Florida Department of Law Enforcement (FDLE), found four disposition forms in the case files indicating that the evidence had been returned to the submitting agency, the Highlands County Sheriffs Office, but found none of the requested evidence. Judy Bachman, Director of Criminal Court Services for the Highlands County Clerk of Courts, found evidence relating to Kelley’s case, including a sealed envelope containing poster boards, photos, hotel receipts, and paper evidence introduced as exhibits in Kelley’s first trial. She also found an order releasing some evidence in a related ease, but she found none of the items requested. John King, special agent supervisor for the FDLE Sebring office, searched inventory and files but found nothing. Terry Wolfe, Tenth Judicial Circuit State Attorney investigator, searched both the Sebring and Bartow evidence lockers and found nothing. Sebring Assistant State Attorney Steve Houchin retrieved the boxes of case files for this case from the Sebring file room and delivered them to Wolfe to deliver to Assistant State Attorney Victoria Avalon, who represented the State in this proceeding. Houchin confirmed that there were no other files from this case in the file room. He noted that the state attorney does not keep items of evidence; items that are not admitted at trial are retained by the local investigating agency.

The final witness was Dr. Martin Tracey, professor of biological studies at Florida International University. He testified as Kelley’s expert witness in the area of population genetics. Dr. Tracey discussed the ability of DNA testing to identify an individual to nearly a one hundred percent degree of certainty.

On June 29, 2006, following the eviden-tiary hearing, the trial court entered its order denying Kelley’s motion for DNA testing pursuant to Florida Rule of Criminal Procedure 3.853. The trial court concluded that the evidence relating to Kelley’s case no longer exists. Kelley appeals the trial court’s denial of his motion.

ANALYSIS

Kelley raises three issues before this Court. First, Kelley claims that the trial court erred in denying his prehearing discovery request. Second, Kelley claims that he was denied due process due to inadequate notice of the evidentiary hearing. Third, he asserts that the trial court erred in finding that the DNA evidence no longer exists. We address each of these in turn.

A. Denial of Prehearing Discovery

The first issue is whether the trial court abused its discretion in denying Kelley’s request for prehearing discovery. “On a motion which sets forth good reason, [a postconviction trial] court may allow limited discovery into matters which are relevant and material, and where the discovery is permitted the court may place limitations on the sources and scope.” State v. Lewis, 656 So.2d 1248, 1250 (Fla.1994) (quoting Davis v. State, 624 So.2d 282, 284 (Fla. 3d DCA 1993)). This standard has been applied to rule 3.853 motions for postconviction DNA testing. See Spaziano v. State, 879 So.2d 51, 54-55 (Fla. 5th DCA 2004).

Kelley claims to have “good reason” for postconviction discovery because the State never accounted for certain evidence “relevant and material” to his case. See Lewis, 656 So.2d at 1250. To determine whether these items still exist, Kelley claims it is necessary to depose prior custodians of this evidence. The trial court found that Kelley met his initial burden under rule 3.853(b) by identifying the evidence he wished to be tested and making the required allegations. However, following the evidentiary hearing, the court found that the State met its burden by presenting witnesses from all possible locations where the evidence might be stored. The trial court determined that there was no basis to conclude that the witnesses who testified could have conducted more thorough searches of the materials in the possession of their respective agencies and that Kelley’s arguments were based on pure speculation and conjecture.

Indeed, given the evidence presented, it is clear that Kelley’s motion is no more than a fishing expedition, which is impermissible under rule 3.853. See Hitchcock v. State, 866 So.2d 23, 27 (Fla.2004); Cheshire v. State, 872 So.2d 427, 428-29 (Fla. 5th DCA 2004). As previously mentioned, evidence collected in the Sweet trials was destroyed by court order in 1976. Moreover, as testified to by the nine witnesses, none of the requested items were located despite a diligent search. Given these facts, the trial court did not abuse its discretion in denying Kelley further pre-hearing discovery.

B. Inadequate Notice of Final Eviden-tiary Hearing

Kelley next argues that he was denied due process because the trial court failed to grant him a continuance or otherwise provide adequate notice that the June 6, 2006, hearing would be the final evidentia-ry hearing on his rule 3.853 motion. This claim is procedurally barred and without merit.

This claim is procedurally barred because Kelley did not make a due process objection to the trial court. See Anderson v. State, 863 So.2d 169, 181 (Fla.2003); Bertolotti v. Dugger, 514 So.2d 1095, 1096 (Fla.1987) (“In order to preserve an issue for appellate review, the specific legal argument or ground upon which it is based must be presented to the trial court.”). Although Kelley moved for an emergency hearing and requested a ninety-day continuance, he did not raise a due process objection.

Further, this claim is without merit. The granting or denying of a continuance is within the sound discretion of the trial court. See, e.g., Geralds v. State, 674 So.2d 96 (Fla.1996). A court’s ruling will be sustained absent an abuse of discretion—it will be sustained unless no reasonable person would take the view adopted by the trial court. Huff v. State, 569 So.2d 1247 (Fla.1990). In the present case, Kelley has failed to show that no reasonable person would take the position of the trial court in denying his motion to continue. Kelley had ample opportunity to conduct prehearing discovery in the six months between the filing of his rule 3.853 motion and the evidentiary hearing. Also, at the hearing, the State presented nine relevant witnesses, and Kelley had a more than sufficient opportunity to cross-examine them. Kelley failed to demonstrate that further discovery would have been fruitful. Clearly, the trial court provided Kelley with meaningful access to the judicial process. See Kokal v. State, 901 So.2d 766, 778 (Fla.2005) (“In a postconviction proceeding, all that due process requires is that the defendant be provided meaningful access to the judicial process.”). We conclude that the trial court did not abuse its discretion based on the information that was available to it at the time.

C. The Trial Court’s Finding that DNA Evidence No Longer Exists

Finally, Kelley claims that the trial court erred in finding that the DNA evidence he seeks no longer exists. We disagree. The trial court’s finding was supported by competent, substantial evidence. See Stephens v. State, 748 So.2d 1028, 1031 (Fla.1999) (holding that the “competent substantial evidence” standard applies to the trial court’s factual findings). First, as discussed above, it is undisputed that physical evidence in Sweet’s case was destroyed by court order in April of 1976, nine and a half years after the murder. Kelley claims that the items he seeks were not included in the evidence that was destroyed but wholly fails to substantiate this assertion. Moreover, nine witnesses testified at the evidentiary hearing that despite diligent efforts to search evidence vaults at FDLE, the Highlands County Sheriffs Office, the Collier County medical examiner’s office, the District 10 medical examiner’s office, the Highlands County Clerk of Court’s office, and the Tenth Judicial Circuit State Attorney’s Office, no evidence could be found. We defer to the trial court’s factual finding that the State met its burden of proving that the evidence Kelley seeks no longer exists.

CONCLUSION

For the foregoing reasons, we affirm the circuit court’s order summarily denying Kelley’s motion for postconviction DNA testing.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, CANTERO, and BELL, JJ., concur.

QUINCE, J., recused.

      . Kelley sought to locate the following items and test them for DNA evidence: (1) the victim’s body hair; (2) the victim's pubic hair; (3) the victim’s head hair; (4) the victim's fingernail scrapings; (5) hair and scrapings from the wall of the victim's bedroom; (6) scrapings from a hole in the bedroom wall; (7) the victim’s blood; (8) the brake pedal from the victim’s car; (9) two hallway carpet runners; (10) a section of bedroom carpet; (11) the victim’s hair comb; (12) the victim’s handkerchief; (13) the victim’s clothing; (14) scrapings from the outside left door of the victim's car; (15) a floor mat from the victim's car; (16) metal fragments removed from the victim’s head; (17) the victim’s shoes; (18) the victim’s socks; (19) the victim’s belt; (20) keys to the victim’s car; (21) a metal door sill from the victim's car; (22) the left door window channel from the victim’s car; (23) the victim's watch; (24) a seven-inch black handle knife from the victim's household; (25) an eleven-inch knife found in the yard of Mrs. Greg Maxcy; (26) a blue steering wheel from the victim’s car; (27) a stainless steel pocket knife; (28) a sheet of paper containing handwritten inscription; and (29) a lead pencil.