author: PER CURIAM.

text:
    Ex parte Hal Maxim ATCHLEY. (In re State of Alabama v. Hal Maxim Atchley).
    CR-05-0234.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 2006.
    Parker Edmiston, Scottsboro; and Robert T. Ray, Fort Payne, for petitioner.
    Troy King, atty. gen., and Marc A. Star-rett, asst. atty. gen., for respondent.
   PER CURIAM.

The petitioner, Hal Maxim Atchley, filed this petition for a writ of mandamus directing Judge Jenifer C. Holt to recuse herself from presiding over his trial for the offense of intentional murder. In June 2002, Atchley was indicted by a Jackson County grand jury for murder. He was arrested in May 2005. The case was assigned to Judge Holt. Atchley moved that Judge Holt recuse herself from the case because, he argued, when she was in private practice she represented Atchley on an escape charge and they had had a confrontation. Judge Holt entered a written order denying the motion. Atchley filed a second motion asking Judge Holt to recuse. Judge Holt denied that motion; this petition followed. We stayed all action in the circuit court pending the resolution of this mandamus petition and directed the respondents to answer the allegations contained in the petition.

A petition for a writ of mandamus is the proper method by which to review a circuit court’s ruling on a motion to recuse. See Ex parte Adams, 910 So.2d 827 (Ala.Crim.App.2005); Ex parte Eubank, 871 So.2d 862 (Ala.Crim.App.2003).

In Atehley’s affidavit attached to the motion to recuse, Atchley states the following:

“Judge Jenifer C. Holt represented me as a defense counsel on a previous charge of escape, case number CC-86-51.
“On or about April 1, 1986, a confrontation arose between me and Judge Holt outside the courtroom when she continued to insist that I plead guilty to the charge of escape, that I was not guilty of. We argued for several minutes which at times became very heated, with our voices raised.
“The argument became very heated when I informed her that I was not going to plead to the charge. She kept demanding that I plead guilty to the charge and that I should accept the charge. I told her to get her ‘damm ass’ back into the court and tell the prosecutor that I wanted to go to trial. I questioned her as to why she didn’t want to fight for me and my rights.
“Judge Jenifer C. Holt went back into the courtroom and talked to the Assistant District Attorney and then returned out into the hallway to tell me again that I needed to plead to a misdemeanor charge. Again, we argued loudly out in the hallway.
“I became enraged that Judge Holt had not followed my request. At that time, I called Judge Holt a ‘stupid bitch’ and told her that I wasn’t pleading to anything.
“Judge Holt went back into the courtroom. After several minutes, she returned to the hallway and advised me that I needed to leave, which I did. I later learned that my plea had not been accepted that day.”

Judge Holt stated the following in her order denying the motion:

“The defendant maintains that the Court represented the defendant in 1986 on an escape charge. The court has no independent recollection of representing the defendant. Upon a review of the 1986 court file, the court acknowledges that during private practice the court was appointed to represent the defendant on the charge of escape in the third degree. The file reflects that the court was appointed to represent the defendant on February 19, 1986, and that on April 1, 1986, the charge against the defendant was nol prossed. The defendant argues that there was a confrontation between the defendant and the court regarding a plea in the 1986 case. As stated previously, the court has no recollection of representing the defendant nor does the court recall a confrontation with the defendant about a plea. The court has no personal bias or prejudice for or against the defendant.
“The defendant was charged in 1986 with escape in the third degree. The defendant is charged in this pending case with murder. There is no evidence before this court that the facts in the 1986 case are in any way related to the facts in the pending proceeding. The court has no personal knowledge of disputed evidentiary facts concerning the pending murder case.
“The court finds that the court is not disqualified by law from presiding in this proceeding and that there is no reasonable bias for questioning the court’s impartiality that would justify the court’s recusal. Accordingly, the defendant’s motion to recuse is hereby denied.”

In his mandamus petition, Atchley makes the following argument:

“Judge Holt may have no independent recollection of the representation or the severe confrontation. Nonetheless, the objective standard bars trial by judges who have no actual bias and would do their very best to weigh the scales of justice equally.”

(Atchley’s petition at page 7.)

Canon 3.C.(1), Alabama Canons of Judicial Ethics, governs when a judge is required to recuse himself or herself from presiding over a case. The Canon states, in part:

“(1) A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned, including but not limited to instances where:
“(a) He has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
“(b) He served as a lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer in the matter, or the judge or such lawyer has been a material witness concerning it.”

In Ex parte Duncan, 638 So.2d 1332 (Ala.1994), the Alabama Supreme Court stated the following concerning this Canon 3.C.(1):

“Under Canon 3(C)(1), Alabama Canons of Judicial Ethics, recusal is required when ‘facts are shown which make it reasonable for members of the public or a party, or counsel opposed to question the impartiality of the judge.’ Acromag-Viking v. Blalock, 420 So.2d 60, 61 (Ala.1982). Specifically, the Canon 3(C) test is: ‘Would a person of ordinary prudence in the judge’s position knowing all of the facts known to the judge find that there is a reasonable basis for questioning the judge’s impartiality?’ Matter of Sheffield, 465 So.2d 350, 356 (Ala.1984). The question is not whether the judge was impartial in fact, but whether another person, knowing all of the circumstances, might reasonably question the judge’s impartiality— whether there is an appearance of impropriety. Id. see Ex parte Balogun, 516 So.2d 606 (Ala.1987); see, also, Hall v. Small Business Administration, 695 F.2d 175 (5th Cir.1983).”

638 So.2d at 1334.

In Ex parte Fowler, 863 So.2d 1136, 1140 (Ala.Crim.App.2001) (Shaw and Wise, JJ., dissenting), this Court addressed whether a trial judge had abused his discretion in denying a motion to recuse after the judge had told Fowler that if Fowler was convicted in circuit court, on his de novo appeal, he would impose a greater sentence than was imposed by the district court. In evaluating Canon 3.C., Alabama Canons of Judicial Ethics, and determining whether Fowler was required to show personal bias, we stated:

“The Canons of Judicial Ethics have the force and effect of law. Balogun v. Balogun, 516 So.2d 606 (Ala.1987). Subsections (a) through (d) in Canon 3.C.(1) of the Canons of Judicial Ethics are examples of situations where a trial court’s impartiality might reasonably be questioned. The list does not purport to be inclusive. As subdivision (1) states, ‘including but not limited to instances where.... ’
“The United States Code includes a statute similar to Canon 3.C.(1), which defines when a judge must recuse from a case. See 28 U.S.C. § 455. This section reads, in part, as follows:
“ ‘(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
“ ‘(b) He shall also disqualify himself in the following circumstances:
“ ‘(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evi-dentiary facts concerning the proceeding;
“ ‘(2) Where in private practice he served as lawyer in the'matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it...
“Interpreting this statute, the United States Supreme Court stated the following:
“ ‘Subsection (a), the provision at issue here, was an entirely new “catchall” recusal provision, covering both “interest or relationship” and “bias or prejudice” grounds, see Lilje-berg v. Health Services Acquisition Corp., 486 U.S. 847 (1988) — but requiring them all to be evaluated on an objective basis, so that what matters is not the reality of bias or prejudice but its appearance. Quite simply and quite universally, recusal was required whenever “impartiality might reasonably be questioned.” ’
“Liteky v. United States, 510 U.S. 540, 548, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). See also In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955).
“We have never had occasion to specifically address whether Canon 3.C.(1) — a situation where the impartiality of a judge might reasonably be questioned — and Canon 3.C.(l)(a) — a situation where there is a direct personal bias — are separate provisions of Canon 3.C. However, we believe that prior caselaw and the wording of the Canon [imply] that the two provisions are separate and distinct. See Crowell v. May, 676 So.2d 941 (Ala.Civ.App.1996) (actual bias is not necessary in order to mandate recusal but ‘only a reasonable appearance of bias or impropriety’)....
“The United States Supreme Court, when interpreting 28 U.S.C. § 455, stated that provisions similar to our Canon 3.C.(1) and Canon 3.C.(l)(a) are separate provisions that are to be evaluated under the facts presented in each case. We agree; we likewise hold that Canon 3.C.(1) and Canon 3.C.(l)(a) through 3.C.(l)(d) are separate and distinct provisions. Thus, a situation where the impartiality of a judge might reasonably be questioned may not always involve direct personal bias on the part of the judge.”
863 So.2d at 1138-40.

Alabama, like other states that have considered this issue, holds that a trial judge is not automatically required to recuse himself or herself from presiding over the criminal trial of a former client. See Grider v. State, 766 So.2d 189 (Ala.Crim.App.1999). See also In re Edwards, 694 N.E.2d 701 (Ind.1998); Carter v. State, 560 P.2d 994 (Okla.Crim.App.1977). Compare Davis v. Neshoba County Gen. Hosp., 611 So.2d 904 (Miss.1992).

In In re Edwards, the Indiana Supreme Court stated:

“[I]t is not improper per se for a judge to preside over a case involving a former client. Rather, the inquiry should focus on whether the facts are such that the judge’s impartiality might reasonably be questioned. Jud.Canon 3(E)(1). The test for determining whether a judge should recuse himself or herself under this particular Canon is whether an objective person, knowledgeable of all the circumstances, would have a reasonable basis for doubting the judge’s impartiality. Cf. Perkins v. Spivey, 911 F.2d 22 (8th Cir.1990), cert. denied, 499 U.S. 920, 111 S.Ct. 1309, 113 L.Ed.2d 243 (1991).”

694 N.E.2d at 710.

In Grider v. State, the defendant moved that the trial judge recuse himself before pronouncing sentence after Grider discovered that the judge had represented him in two assault cases and had also represented the parties who had filed a civil action against Grider. This Court, in affirming the trial court’s denial of the motion to recuse, noted that Grider was required to show bias. We also quoted from the court’s order: “ ‘The court has no personal bias or prejudice for or against [Gri-der].’ ” 766 So.2d at 193. Additionally, Grider made no allegation that any type of disagreement took place between him and the judge. Grider presented no evidence in support of his motion to recuse except the fact that while the judge was in private practice he had represented him and the parties opposing him in unrelated cases. There was nothing in Grider indicating an appearance of impropriety. The facts of Grider are distinguishable from the facts in this case.

Moreover, this Court’s subsequent decision in Fowler, modified our earlier decision in Grider, and casts doubt upon the continued validity of our holding. We based our decision in Grider on the fact that Grider had not shown or alleged any personal bias. However, in Fowler, we specifically held that “a situation where the impartiality of a judge might reasonably be questioned may not always involve direct personal bias on the part of the judge.” 863 So.2d at 1140. We recognized that there will be instances where a judge should recuse himself or herself from a case when the judge has no direct personal bias. Accordingly, to the extent that our decision in Grider is inconsistent with our holding in Fowler, it is hereby overruled.

In this case, Atchley stated in his affidavit that when Judge Holt represented him on an escape charge the two had a heated confrontation because, he says, Judge Holt tried to coerce Atchley into pleading guilty and she refused to follow his wishes concerning the resolution of the escape charge. Judge Holt does not dispute Atchley’s account of the confrontation or the fact that she did represent him. She merely states that she has no independent recollection of the confrontation. As the Alabama Supreme Court stated in Ex parte Turner, 840 So.2d 132 (Ala.2002), quoting Guaranty Funding Corp. v. Bolling, 288 Ala. 319, 327, 260 So.2d 589, 596 (1972):

“ ‘[T]he answer does not contain a denial of any of the facts stated in the petition for mandamus, nor does it contain aver-ments of other facts sufficient in law to defeat the petitioner’s application. It follows that the averments of fact in the petition for mandamus .... will be taken as true. State ex rel. St. Peter’s M. Baptist Church v. Smith, [215 Ala. 449, 111 So. 28 (Ala.1927) ]; Ex parte Cullinan, [224 Ala. 263, 139 So. 255 (Ala.1932) ].’ ”

As the United States Supreme Court stated in In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955):

“A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness .... Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way ‘justice must satisfy the appearance of justice.’ Offutt v. United States, 348 U.S. 11, 14 [ (1954) ].”

“ ‘An independent and honorable judiciary is indispensable to justice in our society,’ and this requires avoiding all appearance of impropriety, even to the point of resolving all reasonable doubt in favor of recu-sal.” In re Sheffield, 465 So.2d 350, 357 (Ala.1984) (quoting Canon 1, Alabama Canons of Judicial Ethics).

We do not question Judge Holt’s impartiality; indeed, we know that she is a fíne jurist; however, the question is not whether Atchley has shown that Judge Holt is biased, but whether there is an appearance of impropriety. See Fowler, supra. “The question is not whether the judge was impartial in fact, but whether another person, knowing all of the circumstances, might reasonably question the judge’s impartiality — whether there is an appearance of impropriety.” Duncan, 638 So.2d at 1334. Based on the undisputed assertions made in Atchley’s affidavit, we must answer this question in the affirmative.

For the foregoing reasons, this petition is due to be granted. Judge Holt is directed to recuse herself from presiding over Atchley’s murder trial.

PETITION GRANTED; WRIT ISSUED.

McMILLAN, P.J., and COBB and BASCHAB, JJ., concur; SHAW, J„ concurs in the result; WISE, J., dissents.


source: Caselaw Access Project

author: NABERS, Chief Justice. SEE, Justice

license: Public Domain

text:
    Ex parte State of Alabama. (In re Ex parte Hal Maxim ATCHLEY (In re State of Alabama v. Hal Maxim Atchley)).
    1050629.
    Supreme Court of Alabama.
    Aug. 18, 2006.
    Troy King, atty. gen., and Kevin C. Newsom, deputy atty. gen., and Marc A. Starrett, asst. atty. gen., for petitioner.
    Parker Edmiston, Scottsboro; and Robert T. Ray, Fort Payne, for respondent Hal Maxim Atchley.
    H.W. “Bucky” McMillan, presiding judge, and Sue Bell Cobb, Pamela W. Bas-chab, Greg Shaw, and A. Kelli Wise, judges, for respondent Alabama Court of Criminal Appeals.
   NABERS, Chief Justice.

PETITION DENIED. NO OPINION.

LYONS, HARWOOD, WOODALL, BOLIN, and PARKER, JJ., concur.

SEE, STUART, and SMITH, JJ., dissent.

SEE, Justice

(dissenting).

I dissent from the decision not to issue the writ and order the Court of Criminal Appeals to vacate its judgment compelling Judge Jenifer C. Holt to recuse herself from this case.

The Court of Criminal Appeals granted Hal Maxim Atchley’s mandamus petition premised on the ground that Canon 3.C. of the Alabama Canons of Judicial Ethics compels Judge Jenifer C. Holt, the trial judge in his murder trial, to recuse herself. Judge Holt’s recusal is being required, it appears, because Atchley, the criminal defendant in this murder case, alleges that some 20 years before he appeared in Judge Holt’s courtroom, Judge Holt, then a practicing attorney, was appointed to represent him in an unrelated proceeding, and, Atchley alleges, he and Judge Holt were involved in a “confrontation” while she was representing Atchley. The Court of Criminal Appeals concluded that “based on the undisputed assertions made in Atchley’s affidavit,” it must answer in the affirmative the question “ ‘whether another person, knowing all of the circumstances, might reasonably question the judge’s impartiality.’ ” Ex parte Atchley, 951 So.2d 764, 766 (Ala.Crim.App.2006) (quoting Ex parte Duncan, 638 So.2d 1332, 1334 (Ala. 1994)). See also Ex parte City of Dothan Pers. Bd., 831 So.2d 1, 6 (Ala.2002) (stating that a judge’s recusal is necessary when another person “knowing all of the circumstances, might reasonably question the judge’s impartiality”).

Canon 3.C.(1) of the Canons of Judicial Ethics provides, in relevant part:

“(1) A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned, in-eluding but not limited to instances where:
“(a) He has personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding....”

This Court has added that recusal is necessary when “ ‘facts are shown which make it reasonable for members of the public, or a party, or counsel opposed to question the impartiality of the judge.’ ” In re Sheffield, 465 So.2d 350, 355-56 (Ala.1985) (quoting Acromag-Viking v. Blalock, 420 So.2d 60, 61 (Ala.1982)).

“The test that remains applicable at all times, the answer to which always depends upon the ‘totality of circumstances’ of each case, is whether a person of ordinary prudence in the judge’s position, knowing all of the facts known to the judge, would find that there is a reasonable basis for questioning the judge’s impartiality.”

Ex parte City of Dothan Pers. Bd., 831 So.2d at 11 (citing In re Sheffield, 465 So.2d at 356).

Canon 3.C. of the Alabama Canons of Judicial Ethics should be applied in a manner that balances the policy requiring a judge to decide cases and the policy requiring a judge to be a neutral decision-maker. See Dunlop Tire Corp. v. Allen, 725 So.2d 960, 977 (Ala.1998) (See, J., statement of nonrecusal). The Constitution of the United States and the Constitution of Alabama of 1901 impose upon judges the duty to decide cases. A rule requiring a judge to recuse himself or herself in the face of an allegation of an attorney-client confrontation sometime before the judge’s ascension to the bench— one that occurred in an unrelated matter— has the potential to seriously interfere with the judge’s ability to fulfill that duty.

In light of a judge’s duty to decide cases, I believe that mandatory recusal requires more than the allegation here that 20 years before this proceeding Judge Holt had urged Atchley to accept a plea bargain and that he had insisted that he would not accept it (and that, apparently, she not accept it on his behalf), and that during this debate he had — according to his recollection — called her a “stupid bitch” and demanded that she get her “damn ass” back into court to tell the trial court that he did not want to accept a plea bargain and that he wanted to go to trial. Atch-ley’s response to the State’s mandamus petition, p. 1.

In his mandamus petition to the Court of Criminal Appeals, Atchley made the conclusory allegation that “a person of ordinary prudence, knowing of the severity of the prior confrontation between Atchley and Judge Holt, might reasonably question the judge’s impartiality.” Atchley’s mandamus petition to the Court of Criminal Appeals, pp. 5-6; see also Atchley’s response to the State’s mandamus petition, p. 7. Atchley characterizes the event as a confrontation, alleging that “we argued for several minutes which at times became very heated, with [our] voices raised.” Atchley’s affidavit, p. 1. Atchley outlines conduct on his part that, had Judge Holt engaged in such conduct, might have raised some question; however, Atchley does not allege any behavior on the part of Judge Holt during this alleged confrontation that would support a finding of bias on her part. He presents no evidence indicating nor does he assert that Judge Holt said or did anything beyond raising her voice during their disagreement — something done by virtually everyone who has been in a serious and heartfelt discussion, and without resulting in any personal animus toward the friend, relative, attorney, client, or litigant to whom the argument was directed. Atchley does not allege that Judge Holt called him names or made any statements that would indicate bias or that she acted in a manner such that her “impartiality might reasonably be questioned.”

We presume that a judge is unbiased. Gary v. Crouch, 867 So.2d 310, 320 (Ala. 2003) (“We presume that a judge is qualified and unbiased; one who alleges otherwise and seeks a judge’s recusal has the burden of proving the grounds for the recusal.”); Ex parte Balogun, 516 So.2d 606, 609 (Ala.1987) (“ ‘For the law will not suppose a possibility of bias or favor in a judge who is already sworn to administer impartial justice and whose authority greatly depends upon that presumption and idea.’ ” (quoting Fulton v. Longshore, 156 Ala. 611, 46 So. 989 (1908))). Even if everything Atchley says about Judge Holt in her capacity as his then attorney is true, surely this Court does not suggest that a judge may not decide any case involving a criminal defendant — or other person — who has heatedly disagreed with the judge and called the judge a name, simply because the criminal defendant would characterize the response from the judge as having been made in a “raised” voice.

In addition, the evidence is even weaker than the Court of Criminal Appeals characterizes it. The Court of Criminal Appeals states that “Judge Holt does not dispute Atchley’s account of the confrontation or the fact that she did represent him. She merely states that she has no independent recollection of the confrontation.” Ex parte Atchley, 951 So.2d at 768. The Court of Criminal Appeals concludes that, because Judge Holt did not deny any of the facts stated in Atchley’s petition, it had to accept as true all of the allegations in Atchley’s petition. Ex parte Atchley, 951 So.2d at 768 (quoting Ex parte Turner, 840 So.2d 132 (Ala.2002)).

I find the Court of Criminal Appeals’ reasoning unpersuasive.

“The test [of the appearance of bias] that remains applicable at all times, the answer to which always depends upon the ‘totality of circumstances’ of each case, is whether a person of ordinary prudence in the judge’s position, knowing all of the facts known to the judge, would find that there is a reasonable basis for questioning the judge’s impartiality.”

Ex parte City of Dothan Pers. Bd., 831 So.2d at 11. Judge Holt stated in her order denying Atchley’s first motion seeking her recusal that “the court has no recollection of representing the defendant nor does the court recall a confrontation with the defendant about a plea.” She does not deny the fact that she was appointed by the court to represent Atchley, stating that “ ‘[u]pon a review of the 1986 court file, the court acknowledges that during private practice the court was appointed to represent the defendant on the charge of escape in the third degree.’ ” State’s mandamus petition, p. 4 (quoting Judge Holt’s order denying Atchley’s first motion to recuse). As to the alleged confrontation, Judge Holt could hardly deny that the confrontation occurred and state that something she does not recall did not happen. That she had no recollection at all of the “confrontation” is itself evidence either that it did not happen or that, if it did happen, it was not an out-of-the-ordinary “confrontation” between an attorney and a client; it is the strongest evidence that she could give to that effect.

A person “knowing all of the facts known to the judge” would know (1) that Atchley alleges that he had a “confrontation” with Judge Holt during her court-appointed representation of him some 20 years before he appeared as a defendant in her courtroom, and (2) that Judge Holt does not have any recollection either of representing Atchley or of the events that Atchley alleges occurred. The fact that Judge Holt does not remember any confrontation with Atchley necessarily implies that she cannot hold any personal bias or prejudice against him on the basis of that alleged confrontation. The fact that she does not even remember representing Atchley further buttresses the conclusion that she cannot reasonably be believed to harbor bias against him. The Court of Criminal Appeals’ conclusion that it was required to accept Atchley’s allegations as true is incorrect to the extent that the Court of Criminal Appeals felt compelled to accept as true the implication that it draws that there was a confrontation of such severity that a reasonable person knowing all that Judge Holt knows would believe that Judge Holt must remember it and must be biased by it, even though we presume that a judge is unbiased. I do not believe that the facts alleged by Atch-ley, even accepted as true — that he called Judge Holt two names and that they both raised their voices during the confrontation — would cause a reasonable person who knows all the facts alleged to believe that Judge Holt must be lying.

For the foregoing reasons, I respectfully dissent from the decision to deny the State’s petition for the writ of mandamus.

      . See U.S. Const, art. Ill, § 1 (vesting the "judicial power of the United States ... in one supreme court, and in such inferior courts as the congress may from time to time ordain and establish”); Plant v. Spendthrift Farm, Inc., 514 U.S. 211, 218-19, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995) ("Article III establishes a 'judicial department’ with the ‘province and duty’ ” to decide cases, (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803))); Ala. Const.1901, Amend. No. 328, § 6.01(a) ("[T]he judicial power of the state shall be vested exclusively in a unified judicial system which shall consist of a supreme court, a court of criminal appeals, a court of civil appeals....”); Federated Guar. Life Ins. Co. v. Bragg, 393 So.2d 1386, 1389 (Ala.1981) (" '[I]t is the duty of the judge to adjudicate the decisive issues involved in the controversy ... and to make binding declarations concerning such issues, thus putting the controversy to rest ....'” (quoting 26 C.J.S. Declaratory ludgments 161 (1956))); see also Dunlop Tire Corp. v. Allen, 725 So.2d 960, 976 (Ala. 1998) (See, J., statement of nonrecusal) ("The law of recusal reflects two fundamental judicial policies: First, it is the duty of a judge to decide cases. Second, a judge should be a neutral, or impartial, decision-maker. The Constitution of the United States and the Constitution of Alabama of 1901 impose on judges the duty to decide cases.”).

      . I note no principled distinction between a prior "confrontation” with defense counsel who later becomes a judge and one with a prosecutor who later becomes a judge, or, for that matter, a prior confrontation with a judge who 20 years after the confrontation is assigned another case involving the same defendant.

      . I note that Judge Holt sits in Jackson County, the only county in the Thirty-Eighth Judicial Circuit. She practiced law in Jackson County before becoming a judge, and while she was in the private practice of law in 1986 she represented Atchley in the Jackson Circuit Court. Attorneys in more sparsely populated rural counties are more likely to maintain general practices than are attorneys in urban counties and may be appointed by the court to represent criminal defendants. In denying the State’s challenge of the Court of Criminal Appeals’ issuance of the writ of mandamus compelling Judge Holt's recusal in Atchley's murder trial, this Court creates a situation in which judges in rural counties who come to the bench from private practice may be unable to sit in any case in which a former client alleges that there was a heated disagreement and that voices were raised during that disagreement.

      .Atchley neglects to include in his restatement of the test that a determination on a judge's impartiality depends on the “totality of the circumstances” and on the premise that the person of ordinary prudence is “in the judge’s position, knowing all of the facts known to the judge.” Ex parte City of Dothan Pers. Bd., 831 So.2d at 7 (quoting In re Sheffield, 465 So.2d at 356).

      .Atchley contended in his mandamus petition that
      "[djuring plea negotiations, Atchley and then attorney Holt had a severe confrontation. Specifically, a heated argument ensued between Atchley and then attorney Holt after Holt insisted Atchley enter a guilty plea to escape. During the argument, Atchley called Holt a ‘stupid bitch.' ”
      Atchley's mandamus petition to the Court of Criminal Appeals, p. 1. In his affidavit to the trial court, he described this "severe confrontation” and "heated argument:”
      "3. On or about April 1, 1986, a confrontation arose between me and Judge Holt outside the courtroom when she continued to insist that I plead guilty to the charge of escape that I was not guiltfy] of. We argued for several minutes which at times became very heated, with [our] voices raised.

      "4. The argument became very heated when I informed her that I was not going to plead to the charge. She kept demanding that I plead guilty to the charge and that I should accept the charge. I told her to get her 'damn ass' back into the court and tell the prosecutor that I wanted to go to trial. I questioned her as to why she didn't want to fight for me and my rights.
      "5. Judge Jenifer C. Holt went back into the courtroom and talked to the Assistant District Attorney and then returned out into the hallway to tell me again that I needed to plead to a misdemeanor charge. Again, we argued loudly in the hallway.
      "6. I became enraged that Judge Holt had not followed my request. At that time, I called Judge Holt a ‘stupid bitch’ and told her that I wasn’t pleading to anything.”
      Atchley's affidavit to the trial court, p. 1 (emphasis added). Thus, the sum and substance of the description of Judge Holt’s conduct is that she repeatedly urged Atchley to accept a plea bargain and that in doing so she raised her voice, perhaps in response to his admittedly raised voice.

      . A rule that an allegation of a prior attorney-client confrontation requires the judge to re-cuse himself or herself particularly invites abuse if, once an allegation is made, in order to avoid recusal, the burden is on the judge to prove the negative.

      . In fact, Judge Holt said that she has "no recollection of representing” Atchley. Ex parte Atchley, 951 So.2d at 765. The Court of Criminal Appeals has added the qualifying adjective “independent.”


author: McMILLAN, Presiding Judge.

text:
    Larry Darnell COLE v. STATE of Alabama.
    CR-04-2227.
    Court of Criminal Appeals of Alabama.
    March 3, 2006.
    Larry Darnell Cole, pro se.
    Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

The appellant, Larry Darnell Cole, appeals from the summary dismissal of second Rule 32, Ala. R.Crim. P., postconviction petition challenging his 2001 guilty-plea conviction for first-degree assault and sentence of 30 years’ imprisonment, as a habitual offender with two prior convictions. This Court affirmed that conviction on direct appeal by an unpublished memorandum issued on August 24, 2001; the certificate of judgment was issued on July 16, 2002. Cole v. State (No. CR-00-1103), 837 So.2d 890 (Ala.Crim.App.2001)(table). This Court affirmed the denial of his first Rule 32 petition by an unpublished memorandum on October 24, 2003. Cole v. State (No. CR-02-1313), 897 So.2d 1248 (Ala.Crim.App.2003)(table).

Cole claims that the trial court was without jurisdiction to render judgment or to impose sentence because one of the prior felony convictions (CC-78-69) used to enhance his sentence under the Habitual Felony Offender Act had been dismissed. Cole asserts that because he has only one remaining felony conviction, the sentence imposed pursuant to § 13A-5-9(b)(2), Ala. Code 1975, must to be vacated, and he should be afforded a new sentencing hearing. Cole further argues that at a new sentencing hearing, the judge would have an opportunity to take into account that he “has continued to improve upon himself while incarcerated” and consider alternatives to long-term confinement “since he does not pose any serious danger to society at large.”

The State does not dispute that Cole’s conviction for unlawful possession of a controlled substance was dismissed by the Escambia Circuit Court. Cole has included as an exhibit to his Rule 32 petition a certified copy of the court order granting his petition for relief from conviction and sentence (CC-78-69) signed by Circuit Judge Bradley E. Byrne and dated April 6, 2005.

The trial court’s order denying Cole’s second Rule 32 petition reads, in pertinent part:

“Petitioner’s claim is without merit: under Ala.Code § 13A-5-9(a)(2), a defendant who has been previously convicted of a Class B felony must be punished for a Class A felony. The punishment for a Class A felony is a term of ten to 99 years or life in prison. Ala.Code 13A-5-6(a)(l). Petitioner’ sentence of 30 years falls within the permitted range of punishment.”

However, in McClintock v. State, 773 So.2d 1057, 1058-59 (Ala.Crim.App.2000), we addressed a similar situation:

“In his Rule 32 petition, which was filed on June 24, 1999, McClintock claimed that his life sentence for first-degree escape was illegal because, he said, one of the convictions that was used to enhance his sentence, specifically, his 1986 conviction in Jefferson County for the sale of a controlled substance, case no. CC-85-2744, had been set aside in January 1989. On October 12, 1999, the circuit court entered an order summarily dismissing McClintock’s petition, stating as grounds that McClintock had raised this same claim in a prior postconviction petition, filed in February 1989, and that, therefore, his present petition was successive under Rule 32.2(b), Ala. R.Crim. P.
“The record reflects th[at] McClin-tock’s first postconviction petition was summarily dismissed by an order of the circuit court entered in April 1989. In that order, the circuit [court] found that although McClintock’s conviction in case no. CC-85-2744 had been, as McClintock alleged, set aside in January 1989, it was unnecessary to resen-tence McClintock because, the circuit court reasoned, McClintock’s sentence of life imprisonment was within the range authorized under the Habitual Felony Offender Act for a defendant upon conviction of a Class B felony where the defendant has been previously convicted of any two felonies. See § 13A-5-9(b), Ala.Code 1975 (‘In all cases when it is shown that a criminal defendant has been previously convicted of any two felonies and after such convictions has committed another felony, he must be punished as follows: ... (2) On conviction of a Class B felony, he must be punished by imprisonment for life or for any term of not more than 99 years but not less than 15 years’).
“ ‘ “ ‘[A] conviction that has been set aside or reversed may not be used to enhance [a] penalty.’” Prock v. State, 471 So.2d 519, 521 (Ala.Cr.App.1985)(quoting 24B C.J.S. Criminal Law § 1960(6) (1962)).’ Crenshaw v. State, 740 So.2d 478, 479 (Ala.Cr.App.1998). Because McClin-tock’s conviction in case no. CC-85-2744 was set aside in January 1989, McClintock was entitled to be resen-tenced for his first-degree escape conviction, with the circuit court considering only two prior felony convictions (i.e., the 1976 conviction in Shelby County for second-degree burglary and the 1980 conviction in Washington for first-degree robbery) for enhancement purposes under the Habitual Felony Offender Act. However, the circuit court’s April 1989 order, which indicated merely that McClintock’s life sentence was within the authorized statutory range, fails to establish that McClintock was properly resentenced using two prior felony convictions, rather than three, for enhancement. Because McClintock has not received a sentencing hearing at which only two prior felony convictions were considered for enhancement purposes, his sentence is illegal. Therefore, the claim in his present Rule 32 petition is not (as the circuit court found in its October 12, 1999, order of dismissal) subject to the procedural bar of Rule 32.2(b), Ala. R.Crim. P. See Jones v. State, 724 So.2d 75, 76 (Ala.Cr.App.1998).
“Under § 13A-5-9(c)(2), Ala.Code 1975, a sentence of life imprisonment is mandatory upon conviction of a Class B felony where three prior felony convictions have been proven. However, under § 13A-5-9(b)(2), Ala.Code 1975, a broad range of possible sentences may be imposed upon conviction of a Class B felony where only two prior felony convictions have been proven. Notwithstanding the fact that, as the circuit court indicated in its April 1989 order, McClintock’s sentence of life imprisonment was within the range authorized under the Habitual Felony Offender Act for a defendant upon conviction of a Class B felony where the defendant has been previously convicted of any two felonies, fundamental fairness requires that this cause be remanded for a new sentencing hearing, so that it may be established with certainty that the circuit court has exercised the discretion allowed it under § 13A-5-9(b)(2) in imposing McClintock’s sentence. See Pickens v. State, 475 So.2d 637, 640 (Ala.Cr.App.1985). Accordingly, this cause is remanded with directions for the circuit court to conduct a new sentencing hearing in accordance with this opinion. The circuit court may impose a sentence within the statutory range set forth in § 13A-5-9(b)(2), Ala.Code 1975. The circuit court should specifically state that it is resentencing McClintock without considering his conviction in case no. CC-85-2744.”

See also Capps v. State, 747 So.2d 358 (Ala.Crim.App.1999); Crenshaw v. State, 740 So.2d 478 (Ala.Crim.App.1998); Russaw v. State, 947 So.2d 429 (Ala.Crim.App.2006).

For the reasons set forth herein, we must remand this case to the circuit court with instructions that it make specific, written findings of fact as to whether Cole’s conviction in case no. CC-78-69 was dismissed and therefore could not be used to enhance his sentence in this case. On remand, the circuit court may require the State to respond more specifically to Cole’s claim and/or to take affidavits or conduct an evidentiary hearing on that claim. If the circuit court determines that Cole’s sentence was improperly enhanced using case no. CC-78-69, it shall resentence him as a habitual offender with one prior felony convictions pursuant to § 13A-5-9(b)(1), Ala.Code 1975. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 56 days after the release of this opinion. The return to remand shall include the circuit court’s specific, written findings of fact; any additional response by the State; affidavits or a transcript of the evidentiary hearing, if any; a new sentencing order, if any; and a transcript of the new sentencing hearing, if any.

REMANDED WITH DIRECTIONS.

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

      . Cole originally pleaded guilty to second-degree robbery in addition to assault; that conviction was reversed by the Alabama Supreme Court on June 28, 2002, because the indictment charging him with first-degree robbery had been improperly amended to charge him with second-degree robbery. See Ex parte Cole, 842 So.2d 605 (Ala.2002).

      . We note that Judge John R. Lockett was the trial judge in Cole’s original guilty-plea proceeding, as well as in both his Rule 32 petitions.


author: SHAW, Judge. BASCHAB, Judge,

text:
    Eric SAFFOLD v. STATE of Alabama.
    CR-04-2068.
    Court of Criminal Appeals of Alabama.
    April 28, 2006.
    Rehearing Denied June 16, 2006.
    Certiorari Denied Sept. 29, 2006 Alabama Supreme Court 1051393.
    Thomas K. Brantley, Jr., Dothan, for appellant.
    Troy King, atty. gen., and Audrey Jordan, asst. atty. gen., for appellee.
   SHAW, Judge.

Eric Saffold was convicted of first-degree robbery, a violation of § 13A-8-41, Ala.Code 1975, and was sentenced to 25 years’ imprisonment. On appeal, Saffold contends (1) that the trial court erred in denying his motion for a judgment of acquittal because, he says, the State failed to prove a prima facie case of first-degree robbery, and (2) that the trial court erred in denying his motion to suppress the statement he made to the police.

Our review of the record reveals the following pertinent facts: At approximately 10:00 p.m. on September 26, 2004, Phillip Gradic, the owner of the Dairy Queen restaurant on South Alice Street in Do-than, and Kevin Guerra, who was employed as a cook at the Dairy Queen, were heading home after they had locked up for the evening. They exited the side door of the restaurant and headed toward Gradic’s automobile. As they rounded the corner to the back of the building, Gradic, who testified that he had been robbed a few months earlier and tended to be more alert to his surroundings, saw someone standing in the area between where the walk-in cooler extended out of the back of the building and some bread racks, and this person was facing toward the back door of the building — the door that they had used several times that evening while they were changing the letters on the advertising sign. At trial, both Gradic and Guerra identified Saffold as the person they saw that evening. Gradic testified that he noticed that Saffold had a mask pulled over his face and that he was wearing a trench coat even though it was “T-shirt weather” that evening. (R. 45.)

Gradic had a 9mm. gun in his pocket, and he pulled it out and pointed it at Saffold. When Saffold turned around, he stated, “I see you’ve got a gun, I’m not going to rob you.” (R. 48.) Gradic asked Saffold if he was armed, and Saffold told him that he was not. Gradic told Saffold to take off his mask, to lie down on the ground, and to place his hands where Gradic could see them. Saffold complied. Then Gradic telephoned the police on his cellular telephone. While Saffold was lying on the ground on his stomach, he kept trying to pull his hands under his chest, but Gradic told him to put his hands back where he could see them. Guerra looked around the area to make sure that there were not any other people waiting to help Saffold rob them because Saffold “had stated that there [were] other people watching him from around the buildings behind [the Dairy Queen].” (R. 50.) Although both Gradic and Guerra testified that Saffold made no oral threats against them, Guerra testified that he was afraid during the encounter:

“Q. All right. So you’re behind — walking behind Phillip?
“A. Yes.
“Q. Do you notice anybody standing back there?
“A. Not at first, until Mr. Gradic pulled his gun out. Then that’s when I observed a man with a mask on.
“Q. Okay. So the first thing you know about it is when Phillip pulls out his gun?
“A. Yeah. Phillip pulls out his gun and he starts saying something. And then when I looked to the side, I saw a man with a mask on. So I’m like: Oh, my God, here we go again.
“Q. Did it scare you?
“A. Yeah, yeah. Because, I mean, somebody with a mask on, so—
“Q. Where do you see this man with the mask standing?
“A. There’s a bread rack and there’s a cooler. And he was standing like right there on the corner. So I told Phillip to go ahead and keep an eye on him and I’ll go ahead check the store and make sure there’s not more than one person.
“Q. All right. So you look around?
“A. Yeah.
“Q. Put it this way. You didn’t hear him threaten either one of you, did you?
“A. The only thing I can tell you, Mr. Gradic told him to lie down, to lie down. And I told Phillip, ‘I’ll watch your back, I’m going to check the store.’ Then Eric was up there, kept on saying something about, ‘I’m not going to rob you, I’m not going to rob you, I’m running from somebody, I’m trying to hide from somebody,’ you know. So what I was doing was going around the building to make sure there wasn’t nobody else.
“Q. So the answer to the question about whether he threatened you is no?
“A. Well, no, not really. But I was scared because I wasn’t sure if there was more than one person.
“Q. Right. But he didn’t threaten you? I’m not talking about anybody else anywhere on Alice Street or the blocks behind Fortner or anywhere else.
“A. He didn’t say nothing to me.”

(R. 61-62, 66-67.)

When the police officers arrived, Saffold told them, “Don’t shoot me, I’m laying on a gun.” (R. 51.) The police officers handcuffed Saffold and when they rolled him over, they discovered that Saffold had a loaded rifle concealed in his trench coat, which was somehow attached to him by a string.

Saffold was transported to the police station where Jason DeVane, a corporal with the Dothan Police Department, read Saffold his Miranda rights. Cpl. De-Vane testified that Saffold indicated that he understood his rights; that Saffold indicated that he had not been drinking alcohol and that he was not under the influence of drugs; that Saffold did not appear to be under the influence of drugs or alcohol; that no promises, inducements, or threats were made; and that Saffold signed the waiver-of-rights form and gave a statement regarding the incident at the Dairy Queen restaurant. Cpl. DeVane stated that Saffold told him that “he was there to scare the employees to get them to give him money.” (R. 93.) Cpl. DeVane further testified that Saffold identified the mask (State’s Exhibit 1) as the mask “he was wearing when he was standing in the corner awaiting the employees to exit the store” (R. 93); that Saffold also told him that the rifle (State’s Exhibit 2) “was the rifle that he had tied around his shoulder underneath his jacket” (R. 93); and that Saffold told him that he had been going to use the rifle to scare the employees so that they would give him money.

I.

Saffold argues that the trial court erred in denying his motion for a judgment of acquittal because, he says, the State failed to prove a prima facie case of first-degree robbery. Specifically, Saffold contends that “[t]he State offered no evidence that Mr. Saffold used any force or threatened the imminent use of force upon Mr. Gradic or Mr. Guerra; therefore, this element of the crime fails and Mr. Saffold should have been acquitted of Robbery in the First Degree.” (Saffold’s brief at p. 34.) In response, the State argues:

“Saffold does not argue in his brief that he was not armed with a weapon; rather, the crux of his argument is because the victim did not give him the opportunity to brandish his weapon or verbally demand money, the State failed to establish a prima facie case of first-degree robbery. The evidence proved otherwise.”

(State’s brief at p. 11.)

“ ‘In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.’ ” Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985). “ ‘The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.’ ” Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App. 1997), quoting O’Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). “ ‘When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court’s decision.’ ” Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App. 1990). “The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.” Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).

Section 13A-8-41, Ala.Code 1975, states:

“(a) A person commits the crime of robbery in the first degree if he violates Section 13A-8-43 and he:
“(1) Is armed with a deadly weapon or dangerous instrument.”

Section 13A-8-43, Ala.Code 1975, states:

“(a) A person commits the crime of robbery in the third degree if in the course of committing a theft he:
“(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance; or
“(2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property.”

(Emphasis added.)

Section 13A-8-40(b), Ala.Code 1975, states:

“ ‘In the course of committing a theft’ embraces acts which occur in an attempt to commit or the commission of theft, or in immediate flight after the attempt or commission.”

Section 13A-8-l(13), Ala.Code 1975, which is applicable to § 13A-8-43, see § 13A-8-40(a), Ala.Code 1975, defines “threat” in part as “[a] menace, however communicated, to ... [c]ause physical harm to the person threatened or to any other person.” (Emphasis added.) “Menace” is defined in the Compact Oxford English Dictionary 1062 (2d ed.1994) in part as “[a] declaration or indication of hostile intention, or of a probable evil or catastrophe” (emphasis added); Merriartu-Webster’s Collegiate Dictionary 774 (11th ed.2003) defines “menace” in part as “a show of intention to inflict harm.” (Emphasis added.)

In Cook v. State, 582 So.2d 592 (Ala. Crim.App.1991), this Court stated:

“Section 13A-8-41 does not require that actual force be used to commit the theft; evidence of threatened or imminent force is sufficient. The proper inquiry is how the victim reacted to and perceived the threat. Kent v. State, 504 So.2d 373 (Ala.Cr.App.1987). The statutory robbery provisions likewise do not require proof of an actual taking of property to support a conviction. Breedlove v. State, 482 So.2d 1277 (Ala. Cr.App.1985).”

582 So.2d at 593-94 (emphasis added). Likewise, consistent with § 13A-8-l(13), this Court has held that evidence of a verbal threat is not necessary to establish the “threat of force” element necessary to support a robbery conviction, see, e.g., Coleman v. State, 552 So.2d 156 (Ala.Crim.App.1988); the actions of the defendant, even when the defendant does not appear to possess a deadly weapon, may suffice to establish the threat of force if it appears to the victim that the defendant has the intention, ability, and means to inflict harm, see, e.g., Welch v. State, 630 So.2d 145 (Ala.Crim.App.1993).

The evidence presented in this case, viewed in the light most favorable to the State, indicated that Gradic saw Saffold hiding behind the building between the cooler and the bread racks; that even though it was a warm September evening, Saffold was wearing a mask and a trench coat; that Saffold was watching the back door of the Dairy Queen restaurant— which had been the door the employees had been using that evening while they were changing the letters on the advertising sign — waiting for the employees to leave after locking up for the evening; and that Gradic perceived at the time of his unexpected encounter with Saffold that, in light of Saffold’s furtive presence at that time of night and the way he was dressed, Saffold intended to rob him and could use force to take his money.

Contrary to Saffold’s contention, we do not think that it is relevant for purposes of our inquiry that Gradic and Guerra fortuitously saw Saffold before Saffold could expressly state his intentions or take any additional overt actions toward completion of the theft. Saffold’s attire and his actions signaled his obvious purpose — he was lying in ambush waiting for someone to exit the rear door of the restaurant so that he could commit a robbery — -and the potential and dangerous threat he posed was immediately apparent to both Guerra and Gradic, who felt the need to immediately pull his gun for protection. The threat posed by Saffold was in no way eliminated by the steps Gradic was able to take to apprehend Saffold and then to contact the police. It is also significant, we think, that even after Gradic had pulled his weapon and required Saffold to lie down on the ground on his stomach with his arms extended, there was still a threat of imminent force — Saffold attempted to pull his arms under his chest where Gradic could have reasonably (and, it turns out, correctly) believed he had concealed a loaded gun under the trench coat, and Saffold suggested to Gradic and Guerra that there were accomplices present at the scene who could have come to Saffold’s aid.

In addition, Cpl. DeVane testified that Saffold admitted during the statement he gave to Cpl. DeVane that “he was wearing [a mask] when he was standing in the corner awaiting the employees to exit the store” (R. 93); that “he was there to scare the employees to get them to give him money” (R. 93); and that he had been going to use the loaded rifle concealed under his trench coat to scare the employees so that they would give him money. (R. 93.)

The State presented sufficient evidence from which the jury could have inferred that Saffold threatened the imminent use of force against Gradic and Guerra. Therefore, we find no error in the trial court’s denial of Saffold’s motion for a judgment of acquittal.

II.

Saffold also argues that the trial court erred in denying his motion to suppress his statement to the police. Specifically, Saffold argues that his statement to Cpl. DeVane should have been suppressed because, he says, he did not voluntarily and intelligently waive his rights. He argues that he was under the influence of crack cocaine at the time he signed the waiver-of-rights form and gave his statement and that he signed the waiver-of-rights form and gave a statement only because, he says, Cpl. DeVane said that the district attorney and the trial court would look more favorably on his case if he cooperated.

At the suppression hearing, Cpl. De-Vane testified that before he took Saffold’s statement, he asked Saffold if he was under the influence of drugs or alcohol and that Saffold told him that he was not. Cpl. DeVane further testified that, based upon his experience, Saffold did not appear to be under the influence of drugs or alcohol. Saffold testified at the suppression hearing that he had been smoking crack cocaine the entire day before he appeared at the Dairy Queen restaurant, but that he did not tell Cpl. DeVane that he was under the influence of crack cocaine because, he said, he wanted to cooperate with the authorities so that his bail would be set at a reasonable amount.

Saffold also testified at the suppression hearing that he signed the waiver-of-rights form and gave a statement because, he said, Cpl. DeVane told him that “it would look good ... [to] the judge and the D.A. if [he] cooperated” (R. 84), but Saffold admitted that Cpl. DeVane “never promised [him] anything as to bond or anything of that nature.” (R. 86.) Cpl. DeVane testified at the suppression hearing that he did not make any promises or offer any rewards or inducements to get Saffold to give a statement, but that he did tell Saf-fold “that if he cooperated and they asked, [he] would tell them whether [Saffold] was cooperative and gave a statement or uncooperative in not giving a statement.” (R. 80.)

In denying Saffold’s motion to suppress the statement, the trial court stated:

“You have a police officer who testified that there are no threats, no coercions, no offers, no promises. And then you’ve got Mr. Saffold who testified that he told [Cpl. DeVane] he was not on drugs at the time, but he really was on drugs. So it’s hard to put a lot of credibility into that.
“Said that the officer offered him a reward, but couldn’t really remember much about it. He identified State’s Exhibit 5 [the waiver-of-rights form] and remembers it; that was his signature on the form. He understood the rights form at the time and the officer never promised anything regarding bond.
“So, you know, weighing and considering all that evidence, the Court finds that the officer complied with Miranda, and that said statement was voluntary, overcoming any presumption to the contrary.”

(R. 87-88.)

In Eggers v. State, 914 So.2d 883 (Ala. Crim.App.2004), this Court stated:

“ ‘ “The question of whether a confession was voluntary is initially to be determined by the trial court.” ’ Minor v. State, 914 So.2d 372, 388 (Ala.Crim.App.2004), quoting Jackson v. State, 562 So.2d 1373, 1381 (Ala.Crim.App.1990). ‘[A]ny conflicts in the testimony or credibility of witnesses during a suppression hearing is a matter for resolution by the trial court. Absent a gross abuse of discretion, a trial court’s resolution of [such] conflict[s] should not be reversed on appeal.’ Sheely v. State, 629 So.2d 23, 29 (Ala.Crim.App.1993) (citations omitted). ‘[A] trial court’s ruling based upon conflicting evidence given at a suppression hearing is binding on this Court, ... and is not to be reversed absent a clear abuse of discretion.’ Jackson v. State, 589 So.2d 781, 784 (Ala.Crim.App.1991). ‘When there is conflicting evidence of the circumstances surrounding an incriminating statement or a confession, it is the duty of the trial judge to determine its admissibility, and if the trial judge decides it is admissible his decision will not be disturbed on appeal “unless found to be manifestly contrary to the great weight of the evidence.” ’ Ex parte Matthews, 601 So.2d 52, 53 (Ala.1992), quoting Williams v. State, 456 So.2d 852, 855 (Ala.Crim.App.1984). “ ‘In reviewing the correctness of the trial court’s ruling on a motion to suppress, this Court makes all the reasonable inferences and credibility choices supportive of the decision of the trial court.” ’ Kennedy v. State, 640 So.2d 22, 26 (Ala.Crim.App.1993), quoting Bradley v. State, 494 So.2d 750, 761 (Ala.Crim.App.1985), aff'd, 494 So.2d 772 (Ala.1986).”

914 So.2d at 899.

We find no error in the trial court’s denial of Saffold’s motion to suppress his statement to Cpl. DeVane.

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

AFFIRMED.

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

BASCHAB, J., dissents, with opinion.

BASCHAB, Judge,

dissenting.

To sustain a conviction for first-degree robbery pursuant to §§ 13A-8^fl(a)(l) and 13A-8-43(a)(2), Ala.Code 1975, the State must establish that the defendant was armed and threatened to use force in the course of committing a theft. In this case, the State did not present any evidence that the appellant performed any actions that would constitute a theft or an attempted theft. In fact, both Gradic and Guerra specifically stated that the appellant did not say anything to them; that the appellant did not use or threaten to use force against them; and that they did not see the rifle until after law enforcement officers arrived. Also, the appellant specifically told Gradic and Guerra he was not going to rob them. The majority relies on the appellant’s suspicious actions and his admission to officers that he intended to use the rifle to scare the employees so they would give him money to affirm the conviction. However, many conclusions as to intent — both criminal and noncriminal— could be drawn based on the appellant’s suspicious behavior. Accordingly, because the State did not establish that the appellant was armed and threatened to use force in the course of committing a theft, I must respectfully dissent.

      . Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).