text:
    Anthony SHORT, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-02767-COA.
    Court of Appeals of Mississippi.
    May 23, 2006.

      Boyd P. Atkinson, Cleveland, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   CHANDLER, J., for the Court.

¶ 1. On December 4, 2003, a Bolivar County jury convicted Anthony Short of possession of a firearm by a convicted felon. The Circuit Court of Bolivar County sentenced him to three years in the custody of the Mississippi Department of Corrections as a habitual offender and ordered him to pay a $5,000 fine. Short appeals, arguing (1) that the State was collaterally estopped from trying him for possession of a firearm by a convicted felon because a city court had found him not guilty of possession of stolen property regarding the same firearm; (2) the court improperly sentenced him as a habitual offender; and (3) there was insufficient evidence to support a guilty verdict and the verdict was against the overwhelming weight of the evidence.

¶ 2. We affirm in part and reverse, render and remand in part. We affirm Short’s conviction. We reverse and render Short’s sentence and remand for resen-tencing because the record reveals that there was insufficient evidence before the trial court to establish Short’s habitual offender status.

FACTS

¶ 3. In the early morning hours of February 10, 2003, Patrolman Charles White of the Cleveland Police Department responded to a dispatch call to investigate a disturbance at 928 Church Street, the home of Short’s girlfriend, Patricia Jones. Jones had called the police saying that Short had left her house and threatened to return with a gun. As Patrolman White proceeded north on Church Street, he observed a parked car facing southwest in the yard of 928 Church Street. The driver’s side door was opened and a man, Short, was stooped over and reaching under the driver’s seat. The car was later determined to belong to Short’s other girlfriend, Shirley Ramsey.

¶ 4. Officer Ronald Levingston arrived. The officers approached the car and asked Short if he had a gun. Short denied having a gun and the officers told Short to leave. At first, Short said he had no keys to the car and declined to leave. Then, Short departed on foot but returned momentarily. At some point, Officer Douglas Tribble arrived. Short began cursing at the officers, who placed him under arrest for public profanity. The officers searched Short incident to his arrest and discovered the car keys in Short’s pocket. Jones requested that the car be towed from her property. Officer Tribble and Patrolman White performed an inventory search of the car incident to the towing. Officer Tribble found a .380 Bryco handgun under the driver’s seat. No ammunition for the gun was located.

¶ 5. Short was indicted for possession of a firearm by a convicted felon. At the trial on December 4, 2003, Short and the State stipulated that as of February 10, 2003, Short previously had been convicted of “a felony or felonies.” Jones testified that, on February 10, 2003, she and Short were in the midst of an argument when Short left to get a gun from his car. Jones stated that, when Short left the house, she looked outside and saw him putting a clip into the gun, prompting her to call the police. Jones also stated that, previously, she had seen Short with the gun and that Short always stored the gun under the driver’s seat of the car. Jones testified that, when he visited her, Short usually drove Ramsey’s car.

¶ 6. Investigator Robert Graham interviewed Short. In his statement, Short told Graham that he had obtained the handgun through a pawn arrangement. The previous month, Daryl Hawkins had pawned the gun to Short in exchange for $45. Short had expected to return the gun to Hawkins when Hawkins repaid the $45. Short told Graham that he had been aware that, as a convicted felon, he was not supposed to be in possession of a firearm but stated that he had not planned on being caught with the handgun. Short told Graham that Jones had placed the gun under the driver’s seat.

¶ 7. Short’s trial testimony differed from his prior statement. At the trial, Short admitted that Hawkins had pawned the gun to Short in exchange for $45. However, Short maintained that he had never touched the gun. Short testified that he instructed his friend, Tyrone Walker, to bring the gun to Jones’s house for storage since Ramsey would not tolerate having a gun in her house. Short said that Walker brought the gun to Jones’s house and, on February 10, Short went to Jones’s house to retrieve it in order to return it to Hawkins and get his money back. Short testified that Jones had not wanted to give him the gun, that they argued, and that Jones told him she had placed the gun under the driver’s seat. Short stated that he went outside and was about to retrieve the gun when the police arrived. However, he said he was surprised when the police found the gun under the driver’s seat.

¶ 8. The jury returned a verdict of guilty.

LAW AND ANALYSIS

I. THE COURT COMMITTED ERROR IN ALLOWING THE PROSECUTION TO PROCEED WHEN THE STATE SHOULD HAVE BEEN COLLATERALLY ESTOPPED BECAUSE .OF THE QUESTION OF DOUBLE JEOPARDY AND THAT SHORT HAD BEEN FOUND NOT GUILTY OF POSSESSING THE SAME FIREARM IN THE CITY COURT FOR THE CITY OF CLEVELAND, MISSISSIPPI WHEN THE WEAPON WAS BELIEVED TO HAVE BEEN STOLEN.

¶ 9. Prior to the trial, Short filed a motion to suppress. He argued that because he had been found not guilty of possession of stolen property in a city court proceeding concerning the .380 Bryeo handgun, the State was collaterally estopped from retrying the issue of Short’s possession of the gun. Concerning the possession of stolen property charge, Short attached the affidavit of Officer Reneal B. Little averring that, on or about February 8, 2003, Short: “did willfully, intentionally, and unlawfully receive or possess stolen property a 380 Bryeo hand gun knowing or having reasonable grounds to believe same to have been stolen wherein such property has a value of $100.00 to wit 928 Church Street Cleveland, MS.” Short also attached a mittimus stating he had been found not guilty of possessing or receiving stolen property.

¶ 10. The trial court denied Short’s motion. The court observed that the crimes of possession of stolen property and possession of a firearm by a convicted felon have different elements. The court found that the city court’s acquittal might have rested upon a finding that Short possessed the handgun without having known that it was stolen property. Therefore, the court concluded, the city court proceeding had not necessarily resolved the question of possession in Short’s favor.

¶ 11. On appeal, Short argues that the trial court should have granted his motion. Though styled as a motion to suppress, Short’s collateral estoppel argument, if accepted by the trial court, would have resulted in a dismissal of the charge against him. Therefore, we treat the motion as one to dismiss the indictment. In ruling on a motion to dismiss, “the trial court should consider the evidence fairly and should dismiss the case only if it would find for the defendant.” State v. Oliver, 856 So.2d 328, 331(¶ 5) (Miss.2003). This Court applies the “substantial evidence/manifest error” standard to an appeal of a grant or denial of a motion to dismiss. Id.

¶ 12. Under the doctrine of collateral estoppel, an issue of ultimate fact determined by a former judgment cannot be relitigated between the same parties in a later action. Id. at (¶ 7) (citing Ashe v. Swenson, 397 U.S. 436, 442, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970)). Though collateral estoppel, as named, is inapplicable in criminal cases, the collateral estoppel analysis is identical to double jeopardy analysis. Griffin v. State, 545 So.2d 729, 734 n. 1 (Miss.1989). The issue of double jeopardy is raised whenever a prosecution is foreclosed by a prior acquittal, since the Fifth Amendment guarantee against double jeopardy protects a person having been acquitted from having to stand trial a second time. Id. at 733.

Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.

Id. at 734 (quoting Ashe, 397 U.S. at 444, 90 S.Ct. 1189).

¶ 13. Short argues that his city court acquittal of receipt of stolen property foreclosed consideration of the issue of whether he possessed the handgun. Mississippi Code Annotated section 97-17-70(1) (Supp.2005) provides the elements of receipt of stolen property:

A person commits the crime of receiving stolen property if he intentionally possesses, receives, retains or disposes of stolen property knowing that it has been stolen or having reasonable grounds to believe it has been stolen, unless the property is possessed, received, retained or disposed of with intent to restore it to the owner.

Under section 97-17-70(1), the State must not only prove the defendant’s possession, receipt, retention or disposition of stolen property, but must also show that the defendant knew or had reasonable grounds to believe the property had been stolen. See Washington v. State, 726 So.2d 209(¶ 10) (Miss.Ct.App.1998). Therefore, a general verdict of “not guilty” of receipt of stolen property might rest upon a finding that the defendant did not possess the property or upon a finding that the defendant did not know or have reasonable grounds to believe that the property had been stolen. Consequently, the “not guilty” verdict was not necessarily grounded upon a finding that Short did not possess the handgun and double jeopardy did not foreclose litigation of Short’s possession of the handgun.

¶ 14. Notwithstanding that the two possession crimes had different elements, we observe that the city court acquittal concerned Short’s possession of the stolen handgun on February 8, 2003. The instant conviction concerned Short’s possession of the handgun two days later, on February 10, 2003. Even if the city court acquittal had foreclosed relitigation of Short’s February 8, 2003 possession of the handgun, that acquittal would not have impeded litigation concerning Short’s February 10, 2003 possession of the handgun. The trial court did not manifestly err in denying Short’s motion.

II. THE TRIAL COURT COMMITTED ERROR IN IMPROPERLY SENTENCING SHORT AS A HABITUAL OFFENDER UNDER SECTION 99-19-81, RULE 11.03 UCCR, BECAUSE A BIFURCATED HEARING WAS NOT CONDUCTED IN ORDER TO CONCLUSIVELY AND PROPERLY PROVE THAT SHORT WAS, IN FACT, A TWICE CONVICTED FELON.

¶ 15. Short contends that the trial court erred by sentencing him as a habitual offender because no hearing was held to determine whether Short had the two pri- or felony convictions required to establish his status as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2000). That statute provides:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

¶ 16. The State has the burden to prove the defendant’s habitual offender status beyond a reasonable doubt by producing sufficient evidence that the defendant was “convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times” and for which the defendant was sentenced to separate terms of at least one year’s imprisonment. Vince v. State, 844 So.2d 510, 517(¶ 22) (Miss.Ct.App.2003). The best evidence of a conviction is a certified copy of the judgment of conviction. Id. at 518(¶ 25). However, the State is not limited to that form of proof of prior convictions. For example, we have previously held that certified copies of pen-packs showing the defendant’s prior sentences were sufficient to enable the trial court to impose enhanced sentencing under section 99-19-81. Frazier v. State, 907 So.2d 985, 991(¶ 16) (Miss.Ct.App.2005). Further, the defendant’s in-court admission of prior felony convictions has been found sufficient to permit a finding of habitual offender status. Sanders v. State, 786 So.2d 1078, 1082(¶ 14) (Miss.Ct.App.2001).

¶ 17. For this Court to affirm an enhanced sentence under 99-19-81, the trial court’s basis for imposing the sentence must appear in the record on appeal. Vince, 844 So.2d at 517(¶ 22). In Vince, the sole evidence of Vince’s habitual offender status apparent from the appellate record was a transcript excerpt in which the prosecutor informed the trial court of an NCIC report listing Vince’s various convictions and sentences. Id. at (¶ 21). The NCIC report itself was not admitted as an exhibit at trial or made a part of the appellate record. Id. at (¶ 22). Finding that the State failed to sustain its burden of proof of the prior convictions beyond a reasonable doubt, this Court affirmed Vince’s conviction but vacated his sentence and remanded for resentencing. Id. We quoted the supreme court’s warning in Seely v. State, 451 So.2d 213, 215 (Miss.1984), “against the ‘tendency to routinely allow the state to produce some documentation of prior offenses and for the trial court to perfunctorily find the defendant an habitual offender.’ ” Id. at (¶ 21).

¶ 18. The record in the instant case reveals error in sentencing Short even more pronounced than that at issue in Vince. Short was indicted as a habitual offender. The indictment indicated that Short had four prior felony convictions in Copiah County with sentences of over one year’s imprisonment. The record shows that no proof of any of these convictions was introduced as an exhibit or even mentioned during Short’s trial or at sentencing. The sole evidence that Short had previously been convicted of a felony was his stipulation to an element of the offense of possession of a firearm by a convicted felon in which he admitted to having been convicted of “a felony or felonies.” This admission fell far short of proof sufficient to permit a finding beyond a reasonable doubt that Short had been “convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times” and for which he was sentenced to separate terms of at least one year’s imprisonment. Miss.Code Ann. § 99-19-81 (Rev.2000). Therefore, we vacate Short’s sentence “insofar as it purported to sentence him as a habitual offender” and remand for the sole purpose of resentencing Short. Vince, 844 So.2d at 517(¶ 22), 519(¶ 30). Pursuant to Ellis v. State, 520 So.2d 495, 495 (Miss.1988), the double jeopardy clause of the Mississippi Constitution of 1890 prohibits the introduction of any new evidence on remand to establish Short’s habitual offender status.

III. THE TRIAL COURT COMMITTED ERROR IN DENYING SHORT’S MOTION FOR A DIRECTED VERDICT BECAUSE THE PROSECUTION FAILED TO PROVE ITS CASE AGAINST SHORT BEYOND A REASONABLE DOUBT, AND THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE, AND EVIDENCED BIAS AND PREJUDICE AGAINST SHORT, AND WAS BASED SOLELY ON SUSPICION AND SPECULATION.

¶ 19. Short argues that he was entitled to a JNOV because the evidence was legally insufficient, or, alternatively, that he was entitled to a new trial because the verdict was against the overwhelming weight of the evidence. Short rests both these arguments upon his contention that there was a lack of proof that he actually or constructively possessed the .380 Bryco handgun. Short asserts that Jones vindictively lied to the police about Short’s possession of the gun and avers that this Court must view Jones’s testimony with suspicion. Short argues that the jury was bound to accept his own testimony that he never touched the gun. He further avers that the State could not prove that he ever possessed the gun because the gun was not dusted for fingerprints.

¶ 20. The sufficiency of the evidence is challenged by a motion for a JNOV. In reviewing the denial of a motion for a JNOV, this Court views the evidence in the light most favorable to the verdict. Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005). We will affirm if any reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. “Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury.” Harveston v. State, 493 So.2d 365, 370 (Miss.1986).

¶21. Short’s crime has two elements (1) possession of a firearm; (2) by one who has been convicted of a felony. Miss.Code Ann. § 97-37-5(1) (Rev.2000). The possession element may be shown by proof that the defendant actually or constructively possessed the firearm. For constructive possession, “ ‘there must have been sufficient facts to warrant a finding that [the] defendant was aware of the presence and character of the particular [item] and was intentionally and consciously in possession of it.’ ” Gavin v. State, 785 So.2d 1088, 1093(1116) (Miss.Ct.App.2001) (quoting Curry v. State, 249 So.2d 414, 416 (Miss.1971)). Constructive possession may be established with proof that the item was under the defendant’s dominion or control. Id.

¶ 22. Short stipulated that on February 10, 2003, he was a prior convicted felon. As recognized by the trial court, there was sufficient evidence of at least three bases for the finding that Short possessed the handgun. Firstly, a reasonable jury could have found actual possession from Jones’s testimony that she saw Short holding and loading the gun before the police arrived. Secondly, the jury reasonably could have found that Short was in constructive possession of the handgun from Jones’s testimony that Short had previously shown her the gun and that he always kept it under the driver’s seat, along with Patrolman White’s testimony that he saw Short reaching under the driver’s seat. Thirdly, a reasonable jury could have found that Short exercised dominion and control over the handgun from Short’s own testimony that he paid $45 for the gun and directed another person as to what to do with the gun. The credibility of Jones’s testimony was a matter for the jury to resolve. Harveston, 493 So.2d at 370. There was certainly sufficient evidence to support Short’s conviction of possession of a firearm by a convicted felon.

¶ 23. The weight of the evidence is challenged by a motion for a new trial. In reviewing the denial of a motion for a new trial, we “must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Collins v. State, 757 So.2d 335, 337(¶ 5) (Miss.Ct.App.2000). We give the State the benefit of all favorable inferences that may reasonably be drawn from the evidence. Id. We will reverse only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would condone an unconscionable injustice. Id.

¶ 24. Accepting the evidence supporting the verdict as true and giving the State all favorable inferences that may reasonably be drawn from the evidence, the verdict was not against the overwhelming weight of the evidence. As noted in our discussion of the sufficiency of the evidence, Short’s own version of events established his constructive possession of the handgun. This issue is without merit.

¶ 25. THE JUDGMENT OF THE CIRCUIT COURT OF BOLIVAR COUNTY OF CONVICTION OF POSSESSION OF A FIREARM BY A CONVICTED FELON AND SENTENCE OF THREE YEARS AS A HABITUAL OFFENDER AND TO PAY A $5,000 FINE IS AFFIRMED IN PART AND REVERSED, RENDERED AND REMANDED IN PART FOR THE LIMITED PURPOSE OF RESENTENCING SHORT CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.


source: Caselaw Access Project

author: SMITH, Justice.

license: Public Domain

text:
    Vincent FADALLA and Fadalla’s Auto Air and Detail, Inc. v. George FADALLA and Elouise Fadalla. George Fadalla and Elouise Fadalla v. Vincent Fadalla and Fadalla’s Auto Air and Detail, Inc.
    1030695 and 1030696.
    Supreme Court of Alabama.
    Nov. 18, 2005.

      Deborah B. Hembree of Adams & Reese/Lange Simpson, LLP, Mobile, for appellants/cross-appellees Vincent Fadalla and Fadalla’s Auto Air and Detail, Inc.
    Clifford C. Sharpe and Maury Friedlan-der, Mobile, for appellees/cross-appellants George Fadalla and Elouise Fadalla.
   SMITH, Justice.

This appeal and cross-appeal arise out of a dispute between a father and son concerning the ownership of real property on which the son operates a business. Both parties challenge the judgment of the trial court entered after a bench trial. The appellants, Vincent Fadalla and Fadalla’s Auto Air and Detail, Inc., appeal from the trial court’s order reforming a deed on the grounds of mutual mistake and awarding back rent to George Fadalla. The cross-appellants, George Fadalla and Elouise Fadalla, appeal from the trial court’s order insofar as it holds that a lease on the property had not been terminated. As to the appeal, we affirm in part, reverse in part, and remand. As to the cross-appeal, we affirm.

Facts and Procedural History

Before 1993, Vincent Fadalla (“Vince”) owned and operated an automobile air conditioning and detailing business in Mobile. His father, George Fadalla (“George”), maintained the financial books for the business. In 1993, Vince negotiated an agreement to purchase real property for his business (“the Airport Boulevard property”). Vince agreed to purchase the Airport Boulevard property for $100,000; the purchase agreement was subject to the condition that Vince obtain financing within 60 days. Vince asked his father to help him obtain financing for the Airport Boulevard property, and George agreed to allow his credit to be used for the purchase. George and Vince secured a loan from SouthTrust Bank for the purchase, and on October 4, 1993, George and Vince purchased the Airport Boulevard property. Vince provided $25,000 for the down payment, and the rest of the purchase price was paid through the loan from South-Trust Bank. SouthTrust Bank insisted that both George and Vince become co-owners of the property; therefore, George and Vince signed the installment note for the property, and the deed was conveyed to George and Vince, as joint owners.

The deed to the property stated that George and Vince would take title to the property “as tenants in common with equal rights and interest, for the period or term that said Grantees shall both survive, and unto the survivor of the said Grantees at the death of the other.” James Brooks, the attorney who prepared the deed, testified that it was his practice to use this language in all deeds conveyed to multiple grantees unless the person requesting the deed specified otherwise.

After George and Vince purchased the Airport Boulevard property, Vince formed a corporation, Fadalla’s Auto Air and Detail, Inc. (“Auto Air”), that would operate on the newly acquired property. Auto Air made all of the mortgage payments on the property as they became due.

In April 1994, Auto Air constructed a metal building for the price of $165,000 to house its business operations on the Airport Boulevard property. The cost of constructing the building was financed through Southland Bank, and the financing for the building construction accompanied a refinancing of the loan secured by the mortgage on the real property. Vince, George, and George’s wife, Elouise Fadalla (“Elouise”), executed an agreement with the Small Business Administration (“SBA”) to guarantee the loan from South-land Bank. The SBA loan agreement required a guarantee from Vince, a mortgage on the Airport Boulevard property, a guarantee from George and Elouise, and security from George and Elouise. George and Elouise offered another parcel of real property, also located in Mobile, as security for the refinancing loan. In addition, under the terms of the SBA loan agreement, Southland Bank and the SBA required George and Vince to lease the property to Auto Air. The lease period began on April 1, 1994, with George and Vince as lessors and Auto Air as lessee. The term of the lease was 25 years and the annual rent was $3,000 payable by Auto Air in monthly installments of $250 per month.

After the construction of the metal building and the start of the lease, Auto Air continued to pay the mortgage payments on the refinanced loan. Vince worked full-time for Auto Ah’ and George continued to do the bookkeeping for the business.

In September or October 1996, George and Vince had a dispute over the proportion of stock each of them owned in Auto Air. George quit keeping the books for Auto Air; he alleges that Vince had “fired” him and had banned him from the Airport Boulevard property. George sent Auto Air a letter on October 16, 1996, stating that because it was in default in the rent due under the lease, the lease agreement was “null and void.” George also demanded possession of the premises and instructed Auto Air to vacate the premises immediately.

On May 23, 1997, George and Elouise filed an action against Vince and Auto Air seeking a declaration of the ownership rights in Auto Air, claiming that they had an agreement with Vince pursuant to which George owned 50% of Auto Air. George and Elouise also alleged that Auto Air had not been making the rental payments required under the lease agreement between Auto Air, as lessee, and George and Vince, as lessors. Lastly, George and Elouise sought possession of the Airport Boulevard property.

George and Elouise filed a motion to bifurcate the issues for trial. They requested that the trial court hold one trial to determine the parties’ ownership interests in Auto Air and a second trial to resolve the issues surrounding the Airport Boulevard property, including issues related to the lease. The trial court granted the motion to bifurcate. The first trial was held on February 21, 2002, and a jury found that Vince was the sole owner of Auto Air.

George and Elouise amended their complaint on April 18, 2002, seeking to have the original deed for the Airport Boulevard property reformed because of mutual mistake. On June 18, 2002, Vince and Auto Air filed an amended counterclaim. In the amended counterclaim, Vince and Auto Air sought to impose a constructive trust on the Airport Boulevard property. The amended counterclaim alleged that a constructive trust was appropriate because Auto Air had made all of the mortgage payments on the Airport Boulevard property and George had not made any of the mortgage payments.

George sent another letter to Auto Air on November 15, 2002, stating that Auto Air remained in default under the terms of the lease because of its failure to pay the rent. The letter also stated that “George Fadalla, as Lessor, has elected to terminate” the lease and that Auto Air had to vacate and deliver possession of the property to George within 10 days of the date of the letter.

A bench trial was held on October 14, 2003, to resolve the remaining issues in the case. The trial court held that a mutual mistake had occurred in the creation of the deed to the Airport Boulevard property and ordered that the deed be reformed. The trial court found that the true intent of the parties was to create a joint tenancy with a right of survivorship rather than concurrent life estates with cross-contingent remainders as Vince and Auto Air argued; therefore, the trial court ordered that the deed be reformed to reflect this intent. The trial court also found that the lease had not been terminated and ordered that Auto Air pay George $7,379 in back rent.

Vince and Auto Air filed a notice of appeal on January 15, 2004. On January 27, 2004, George and Elouise filed a notice of cross-appeal. On February 10, 2004, Vince and Auto Air filed a motion to dismiss George and Elouise’s cross-appeal.

Standard of Review

“[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.” Philpot v. State, 843 So.2d 122, 125 (Ala.2002). “ ‘The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.’ ” Wattman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985)). “Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.” Id.

Discussion

I. Vince and Auto Air’s Appeal (no. 1030695)

A.

Vince and Auto Air argue that the trial court erred in reforming the deed to change the joint ownership arrangement. Specifically, Vince and Auto Air argue that reforming the deed was improper because, they say, there was insufficient evidence of a mutual mistake of the parties.

The parties stipulated in the trial court that the original deed for the Airport Boulevard property created “concurrent life estates with cross-contingent remainders in fee; or a tenancy in common for life with a contingent remainder in favor of the survivor.” Durant v. Hamrick, 409 So.2d 731, 736 (Ala.1981). This type of property interest, recognized by this Court in Durant, creates a right of survivorship that is indestructible by the acts of one of the concurrent owners. 409 So.2d at 737 (“The power to defeat the survivorship interest does not extend to cotenants who hold concurrent life estates with contingent remainders. The contingent remainder held by a cotenant cannot be defeated by the other.”). George requested that the trial court reform the deed to create a joint tenancy with a right of survivorship. In contrast to the property interest created by the original deed in this case, a joint tenancy with a right of survivorship can be unilaterally destroyed by the acts of one of the owners, thereby defeating the survivorship interest in the property. Id. See also Nunn v. Keith, 289 Ala. 518, 524, 268 So.2d 792, 797 (1972) (holding that a tenancy in common is created and the joint tenancy is destroyed when one joint tenant sells his or her interest in the property). The trial court ruled in favor of George and Elouise and ordered the deed reformed to create a joint tenancy with a right of survivorship.

“The general rule in Alabama is that a court may exercise its equitable powers to reform a deed to make it conform to the intention of the parties.” Powell v. Evans, 496 So.2d 723, 725 (Ala.1986); Clemons v. Mallett, 445 So.2d 276, 278 (Ala.1984). One of the grounds for reformation of a deed is mutual mistake of the parties. Long v. Vielle, 549 So.2d 968, 970-71 (Ala.1989). A mutual mistake exists when the parties have entered into an agreement, but the deed does not express what the parties intended under the agreement. Daniels v. Johnson, 539 So.2d 259, 260 (Ala.1989). In determining whether a mutual mistake exists, “[t]he initial factual question is, of course, what the parties intended the instruments to express at the time they were executed.” Jim Walter Homes, Inc. v. Phifer, 432 So.2d 1241, 1242 (Ala.1983) (citing Behan v. Friedman, 218 Ala. 513, 119 So. 20 (1928)). However, the trial court “ ‘cannot make a new [instrument] for the parties, nor establish that as a[n] [instrument] between them, which it is supposed they would have made, if they had understood the facts.’ ” 432 So.2d at 1242 (quoting Holland Blow Stave Co. v. Barclay, 193 Ala. 200, 206, 69 So. 118, 120 (1915)). See also Beasley v. Mellon Fin. Servs. Corp., 569 So.2d 389, 393 (Ala.1990) (“The trial court cannot make the instrument express a new contract for the parties.”). The mistake must also be mutual as to all parties to the instrument. Palmer v. Palmer, 390 So.2d 1050, 1053 (Ala.1980) (“Where it appears that by a mutual mistake of all parties the instalment does not conform to or express their intention or agreement, ... relief may be had in equity....”). See also Marx v. Long, 631 So.2d 983, 988 (holding that the mutual mistake must be as to all parties to the instrument); Beasley, 569 So.2d at 394 (“[T]he mistake must be mutual as to all of the parties.... ”).

“ ‘[T]here is a presumption arising from the instrument itself supporting it as the true agreement.’ ” Marx, 631 So.2d at 988 (quoting Phifer, 432 So.2d at 1243). To rebut this presumption, the party seeking reformation must produce clear, convincing, and satisfactory evidence that the deed does not express the true intentions of the parties at the time the instrument was created. Hollis v. Cameron, 572 So.2d 439, 441 (Ala.1990); Daniels, 539 So.2d at 260; Powell, 496 So.2d at 726. In addition, the party seeking reformation must produce clear, convincing, and satisfactory evidence of what the parties actually intended the writing to express. See Powell, 496 So.2d at 726; Clemons, 445 So.2d at 279; Fields v. Phelps, 668 So.2d 856, 858 (Ala.Civ.App.1995). “‘“If the proof is uncertain in any material respect, it will be held insufficient; and, while the courts may feel a great wrong has been done, they cannot grant relief by reason of uncertainty.” ’ ” Phifer, 432 So.2d at 1243 (quoting Hammer v. Lange, 174 Ala. 337, 340, 56 So. 573, 573 (1911)) (citation omitted). See also Whittemore v. Varner, 607 So.2d 142, 145 (Ala.1992).

To reform a deed, Alabama caselaw requires evidence of the intent of all parties to the instrument. Palmer, 390 So.2d at 1053. Neither party in this case provided any evidence as to the intent of the grantor of the deed. However, even if the parties had provided evidence showing the intent of the grantor, there is no evidence indicating that both George and Vince intended to take title to the property as a joint tenancy with a right of survivor-ship. George alleged that he never intended to take title to a concurrent life estate with cross-contingent remainders because, he says, this type of property interest would not allow him to defeat the survivor-ship interest. However, Vince testified that at the time of the deed execution, he wanted the indestructible survivorship arrangement.

Although George testified to his intent at the time the deed was executed, George and Elouise did not produce any evidence at trial showing that George and Vince had a meeting of the minds or that they actually entered into an agreement prior to or at the time of. the deed execution as to what would happen to the property when one of them died. See Phifer, 432 So.2d at 1243 (“the agreement of the minds at the time of the writing is most important”). George and Vince did not have a written agreement stipulating how they were to own the Airport Boulevard property, and it is undisputed that George and Vince never had a conversation before the closing of the original loan as to how the Airport Boulevard property would be distributed if either of them died. It is also undisputed that neither George nor Vince requested that the deed contain particular survivorship rights or read the deed before or at the closing. See Phifer, 432 So.2d at 1243 (“It is equally likely, however, that such an intention was only unilateral, because of the fact that [the grantees] neither discussed nor read the instruments .... ”).

Both George and Vince testified that at the time the deed was executed, they did not understand the meaning of survivorship as it pertains to property interests or the meaning of the language in the deed that created the concurrent life estates with cross-contingent remainders. If anything, this shows only that George and Vince did not understand the language in the deed and the nature of the property interests being conveyed. George and Vince’s lack of understanding of the language in the deed does not amount to clear, convincing, and satisfactory evidence that George and Vince agreed to take title to the Airport Boulevard property in the form of a joint tenancy with a destructible right of survivorship as opposed to concurrent life estates with cross-contingent remainders. In addition, the trial court cannot reform a deed based upon what it believed George and Vince would have agreed to had they “understood the facts.” Phifer, 432 So.2d at 1242.

George and Elouise also argue that because it was only “fortuitous” — not intentional' — that the survivorship interest eon-veyed by the deed was indestructible, reformation is proper. More specifically, George and Elouise argue that “it is completely fortuitous that Jim Brooks, the preparer of the deed, chose an indestructible survivorship clause as opposed to a destructible clause.” However, evidence indicating that neither party selected the type of interest that would be conveyed in the deed does not show an intent to take title under a different type of property interest than that actually conveyed. The evidence indicating that James Brooks chose the type of deed that was conveyed does not amount to clear and convincing evidence that the parties actually intended to take title to the Airport Boulevard property in the form of a joint tenancy with a right of survivorship rather than concurrent life estates with cross-contingent remainders.

George and Elouise also argue that Vince’s testimony at the close of the trial provided sufficient evidence to support a finding of mutual mistake. After direct examination and cross-examination, the trial court repeatedly asked Vince if he understood how the property would be distributed if he died before his father. Vince responded that he understood that if he died before his father, the property would go to his father. He also repeatedly testified that he opposed reforming of the deed. However, Vince gave some conflicting testimony when he stated, “[Sjince I started the business and [have] been there, if I did die, I would like my son to have it.” George and Elouise argue that this testimony is clear and convincing evidence that Vince did not intend the deed to convey a concurrent life estate with cross-contingent remainders because, they say, such an intent would not permit Vince to leave the property to his son if he predeceased George. However, this testimony does not provide any evidence as to what Vince intended when the deed was executed. Phifer, 432 So.2d at 1243 (holding that there must be clear and convincing evidence of what the parties intended “at the time of the writing ”). In addition, immediately after Vince gave this testimony, he twice reaffirmed his position that he wanted the deed to remain in its current form. See Phifer, 432 So.2d at 1243 (quoting Hammer, 174 Ala. at 340, 56 So. at 573) (“ ‘ “If the proof is uncertain in any material respect, it will be held insufficient. ..

Although there is a presumption of correctness in favor of the trial court’s findings, there was no evidence showing that Vince intended to take title to the property in the form of a joint tenancy with a right of survivorship, and reformation is proper only when the mistake is mutual as to all parties. A trial court’s findings based on ore tenus evidence “will not be disturbed on appeal unless there is a clear showing that the findings are plainly and palpably wrong, with no evidence to support them.” Adams v. Robertson, 676 So.2d 1265, 1270 (Ala.1995). “The Court has further declared that where there is insufficient evidence presented to the trial court to sustain its judgment, the presumption of correctness may be rebutted and overcome.” Green v. Eastwood Baptist Church, Inc., 496 So.2d 718, 721 (Ala.1986). See also Cahaba Veneer, Inc. v. Vickery Auto Supply, 516 So.2d 670, 674 (Ala.Civ.App.1987) (holding that the ore tenus rule does not shield a trial court’s judgment when no evidence exists to support the judgment). Because there was no evidence showing that Vince intended the deed to convey a joint tenancy with a right of survivorship, the ore tenus presumption of correctness has been overcome. Green, 496 So.2d at 721; Cahaba Veneer, 516 So.2d at 674. Therefore, the finding of the trial court that there was a mutual mistake of fact is not supported by the evidence and, therefore, its judgment based on that finding was plainly and palpably erroneous.

B.

Finally, Vince and Auto Air appeal from the trial court’s award of back rent to George. The trial court ruled that under the terms of the lease agreement between George and Vince, as lessors, and Auto Air, as lessee, Auto Air owed George $7,379 in back rent. Vince and Auto Air contend that the trial court improperly calculated the amount of back rent awarded to George because, they say, the trial court erred in refusing to admit certain testimony and evidence demonstrating the amount of rental payments under the lease agreement. At trial, the court sustained George and Elouise’s objection to the introduction of this evidence because it violated provisions of a “General Pre-Trial Order” issued by the trial court.

“Agreements and stipulations made in a pre-trial order are binding on the parties and control the subsequent course of the action.” Osborne Truck Lines, Inc. v. Langston, 454 So.2d 1317, 1330 (Ala.1984). “Under Rule 16, Ala. R. Civ. P., [a pretrial] order controls the subsequent course of the action. The parties are bound by the pretrial order.... ” USA Petroleum Corp. v. Hines, 770 So.2d 589, 595 (Ala.1999). A trial court’s decision to allow or disallow evidence based on a party’s noncompliance with a pretrial order will not be reversed unless in making that decision the trial court has exceeded its discretion. Vesta Fire Ins. Corp. v. Milam & Co. Constr., 901 So.2d 84, 105 (Ala.2004); USA Petroleum Corp., 770 So.2d at 595.

The parties in this case were bound by a pretrial order requiring each party to make all exhibits to be used at trial available to the opposing party no less than 21 days before the trial. The order also stipulated that any exhibits not made available as required under the order would not be admitted into evidence. At trial, Vince and Auto Air sought to introduce some of Auto Air’s ledger books into evidence. However, the trial court ruled that these ledger books had not been made available or identified as evidence that would be used as exhibits during trial; thus, they were barred by the pretrial order. Because Vince and Auto Air’s attempt to introduce the ledgers was a violation of the terms of the pretrial order, the trial court did not exceed its discretion in refusing to allow the introduction of the ledger books.

II. George and Elouise’s Cross-Appeal (no. 1030696)

George and Elouise argue that the trial court erred in declaring that the lease on the Airport Boulevard property had not been terminated and in failing to award George and Elouise the fair-market rental value of the property from the date of the alleged default in rental payments.

The lease agreement in this case contained a termination provision giving the “Lessor” — George and Vince — the option to “declare the entire contract null and void, and to demand and retake possession of the premises” upon the lessee’s “non-payment of rent.” George attempted unilaterally to exercise the option to terminate the lease by sending two letters to Auto Air stating that he was terminating the lease because of Auto Air’s failure to make rental payments. Vince and Auto Air argue that under this Court’s holding in Sun Oil Co. v. Oswell, 258 Ala. 326, 62 So.2d 783 (1953), George could not unilaterally terminate the lease entered into by both George and Vince as lessors. George and Elouise, however, argue that the facts in Sun Oil are distinguishable from the facts of this case. We do not need to address these arguments because it was not error for the trial court to find that the terms of the lease itself express the intention of the parties as to termination of the lease.

“General rules of contract interpretation require that the intent of the parties be derived from the words of the contract, unless an ambiguity exists.” Ryan Warranty Servs., Inc. v. Welch, 694 So.2d 1271, 1273 (Ala.1997). “Additionally, a contract is to be construed in its entirety and not solely on a single provision.” Id. The termination provision in the lease agreement gave the “Lessor” the option to terminate the lease if the lessee defaulted on the rent payments. The lease defined the “Lessor” of the property as both George and Vince, and the terms of the lease did not specify whether either George or Vince could act independently to terminate the lease. George and Elouise have not demonstrated that, in construing the termination provision in the context of the lease as a whole, the trial court erred in concluding that the provision allowing the “Lessor” to terminate the lease upon default because of a failure to make the rental payments required action by both George and Vince. Thus, George and El-ouise have not demonstrated that the trial court erred in declaring that George’s letters to Auto Air had not effected a termination of the lease.

Conclusion

We affirm the trial court’s ruling that the lease had not been terminated, and we affirm the trial court’s award of unpaid rent to George and Elouise. However, we conclude that George and Elouise did not meet their burden of showing that the deed should be reformed due to a mutual mistake; thus, the trial court erred in reforming the deed. We therefore reverse the portion of the trial court’s order reforming the deed and remand this case for proceedings consistent with this opinion.

1030695 — AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

1030696 — AFFIRMED.

NABERS, C.J., and LYONS, WOODALL, and PARKER, JJ., concur.

      . This case was originally assigned to another Justice; it was reassigned to Justice Smith.

      . Vince and Auto Air also argue that if this Court holds that the trial court did not err in reforming the deed, then we should hold that the trial court should have imposed a constructive trust upon the property. Because we find that the trial court erred in reforming the deed, we pretermit discussion of that issue.

      . In light of our holding that the trial court did not err in finding that the lease had not been terminated, Vince and Auto Air's motion to dismiss George and Elouise’s cross-appeal is moot.


author: SEE, Justice.

text:
    Ex parte Wylie YELVERTON. (In re Wylie Yelverton v. City of Dothan).
    1040339.
    Supreme Court of Alabama.
    Nov. 18, 2005.

      Charles D. Decker, Dothan, for petitioner.
    Ashton Holmes Ott, asst, city atty., City of Dothan, for respondent.
   SEE, Justice.

Wylie Yelverton appealed to the Court of Criminal Appeals from a judgment entered against him by the Houston Circuit Court. The Court of Criminal Appeals affirmed the trial court’s judgment without an opinion. Yelverton v. City of Dothan (CR-03-0724, Nov. 19, 2004), 923 So.2d 348 (Ala.Crim.App.2004) (table). We granted Yelverton’s petition for the writ of certio-rari. We affirm the judgment of the Court of Criminal Appeals.

Facts and Procedural History

On the evening of January 19, 1999, Officer Jeremy Collins of the City of Do-than Police Department observed an automobile moving extremely slowly in the right lane of Ross Clark Circle. Officer Collins stopped the automobile and told the driver, Wylie Yelverton, that he had pulled him over because he was driving erratically. He asked to see Yelverton’s driver’s license. When Officer Collins leaned down to take the license from Yel-verton, he detected a strong odor of alcohol. Officer Collins asked Yelverton whether he had been drinking, and Yelver-ton replied that he had consumed three beers.

Officer Collins administered several field-sobriety tests to Yelverton. The test results indicated that Yelverton was probably driving under the influence of alcohol. Officer Collins took Yelverton into custody and took him to the police station.

What happened at the police station was recorded on videotape; the videotape was submitted as part of the - record. Our review of the videotape shows that while Yelverton was in custody at the police station, Officer Collins asked him to submit to the Intoxilyzer 5000 breath test. Yelverton then asked the Officer questions about the breath test and about his legal rights. Officer Collins read Yel-verton the implied-consent law. Officer Collins explained to Yelverton that the implied-consent law meant that when a person receives an Alabama driver’s license, he consents to take a breath test to evaluate his blood-alcohol content if he is arrested on suspicion of driving under the. influence of alcohol. Officer Collins also explained that the person gives up the right to have an attorney present while the breath test is administered.

Yelverton asked Officer Collins whether he could have an attorney present before he performed the breath test. Officer Collins again informed Yelverton that he did not have a legal right to have an attorney present until after he had taken the breath test. Yelverton then asked Officer Collins other questions about his legal rights and made statements regarding “the Supreme Court” and the admissibility in legal proceedings of breath-test results. Officer Collins answered Yelverton’s questions and repeatedly informed Yelverton that his refusal to take the breath test would result in the automatic suspension of his driver’s license.

The videotape shows that shortly before submitting to the breath test, Yelverton asked: “Can I pay for a blood test at the hospital?” Officer Collins responded, “After you take this test, then we can— Breathalyzer first, then we take you for a blood test if you wish. But you can’t go take a blood test before” the breath test is administered. Yelverton asked a few more questions and then took the breath test.

After Yelverton took the breath test, a police officer escorted him out of the room to a counter where the jailer informed Yelverton that his bond had been set at $500. Yelverton asked the officer if he could sign a property bond. The officer replied that he could, but that that would have to be done through the magistrate. Yelverton asked, “If I call my friend for $500 cash, can he get me out?” The officer replied, “Yes.” Yelverton then asked if he could use the telephone. The officer informed him that there were officers waiting to book other detainees who had been brought to the police station. The officer told Yelverton that “as soon as we’re done booking the other folks, you can use the phone. But not now. There are officers waiting.” The videotape ends after that exchange.

The breath test indicated that Yelver-ton’s blood-alcohol content was .11 of one percent. Yelverton was charged with driving under the influence of alcohol in violation of § 32-5A-191(a)(2), Ala.Code 1975. A jury found Yelverton guilty of driving under the influence of alcohol. Yelverton was sentenced to 12 months’ imprisonment in the city jail. The trial court suspended the sentence and placed Yelverton on probation for 24 months. The Court of Criminal Appeals affirmed the trial court’s judgment, without an opinion. Yelverton, supra.

We granted Yelverton’s petition for the writ of certiorari to determine the following question of first impression: Whether Yelverton’s due-process rights were violated by his being denied the independent blood test authorized by § 32-5A-194(a)(3), Ala.Code 1975, when his request for such an independent blood test was made before, but not after, he submitted to the breath test administered by law-enforcement officials.

Standard of Review

The trial court entered its judgment after hearing oral testimony from the parties regarding the events that took place while Yelverton was in police custody. Therefore, the ore tenus rule applies to the trial court’s findings of fact. “Under the ore tenus rule, a trial court’s findings of fact are presumed correct and its judgment will be reversed only if plainly or palpably wrong or against the preponderance of the evidence.” Ex parte Cater, 772 So.2d 1117, 1119 (Ala.2000). However, we review de novo, without a presumption of correctness, the trial court’s conclusions as to whether Yelverton’s due-process rights were violated when he was denied the independent blood test authorized by § 32-5A-194(a)(3), Ala.Code 1975, which he had requested before, but not after, he submitted to a breath test. See Christian v. Murray, 915 So.2d 23 (Ala.2005); State v. American Tobacco Co., 772 So.2d 417, 419 (Ala.2000); and Ex parte Graham, 702 So.2d 1215, 1221 (Ala.1997).

Discussion

The Court of Criminal Appeals concluded in its unpublished memorandum that Yelverton requested a blood test before he had completed the Intoxilyzer 5000 breath test, but “he did not even mention a blood test after he had completed the In-toxilyzer 5000 breath test.” In reaching its conclusion, the Court of Criminal Appeals quoted the following: “ ‘[W]hen a motorist who has been charged with an alcohol-related traffic offense has cooperated fully with the police and subsequently makes telephone arrangements for the administration of a private sobriety test, he is entitled to police transportation to the test site so that the test may be administered.’ ” (quoting Lockard v. Killen, 565 So.2d 679, 682 (Ala.Crim.App.1990)). Accordingly, the Court of Criminal Appeals held that one is entitled to an independent blood-alcohol test only if he requests and pursues such a test after he has complied with the implied-consent law and taken the blood-alcohol test administered by law-enforcement officials; a request made before the arresting officer administers a blood-alcohol test is not sufficient.

Yelverton argues that the Court of Criminal Appeals’ interpretation of § 32-5A-194(a)(3), Ala.Code 1975, violates his due-process rights. Yelverton contends that his request for an independent blood-alcohol test should have been honored regardless of whether he made the request before or after the blood-alcohol test had been administered by law-enforcement officials. He argues that the police denied him due process of law by depriving him of a reasonable opportunity to obtain an independent blood-alcohol test by making him wait to use the telephone until after the officer had finished processing other detainees. Therefore, he contends, the results of the breath test must be suppressed and his conviction reversed.

Section 32-5A-194(a)(3), Ala.Code 1975, provides that a person involved in a proceeding arising from the alleged operation of a vehicle under the influence of alcohol:

“[M]ay at his own expense have a physician, or a qualified technician, registered nurse or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the discretion of a law enforcement officer. The failure or inability to obtain an additional test by a person shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer.”

Law-enforcement officers do not have a positive duty to inform those charged with driving under the influence of their statutory right to an additional blood-alcohol test under § 32-5A-194(a)(3), Ala.Code 1975:

“There is ... no obligation on the part of anyone to advise the defendant of the existence of [Ala.Code 1975, § 32-5A-194] or of his right to alternative testing at his own expense. The Legislature does require the testing officers to inform the person being tested of the consequences of his refusal to submit to the test. The Legislature could have made a law requiring that the testing officer discuss alternative testing. They did not. We will certainly not add something which the Legislature has not required to the already complicated responsibilities of these officers.”

Bush v. City of Troy, 474 So.2d 164, 166 (Ala.Crim.App.1984), aff'd, 474 So.2d 168 (Ala.1985). See also O’Connor v. City of Montgomery, 462 So.2d 756, 757 (Ala.Crim.App.1984) (“The officer is not required to notify the accused that he may have an independent blood-alcohol test performed.”) (citing Parker v. State, 397 So.2d 199 (Ala.Crim.App.1981)). However, when an accused requests an independent blood-alcohol test, law-enforcement officials must give him a reasonable opportunity to procure a timely independent blood-alcohol test at his own expense. Bilbrey v. State, 531 So.2d 27, 29 (Ala.Crim.App.1988). Moreover, law-enforcement officials cannot frustrate or interfere with these reasonable efforts. Bilbrey, 531 So.2d at 29. “To refuse an accused this reasonable opportunity, upon request, constitutes a violation of due process and results in the suppression of the test conducted by the police authorities.” Bilbrey, 531 So,2d at 29 (citing Brown, v. Municipal Court of Los Angeles Judicial Dist., 86 Cal.App.3d 357, 150 Cal.Rptr. 216 (1978)). However, Yelverton’s case is not one in which he was denied a reasonable opportunity to procure an independent blood-alcohol test to which he was entitled under § 32-5A-194(a)(3), Ala.Code 1975. Nor did the police frustrate or interfere with any reasonable effort by Yelverton to obtain an independent blood-alcohol test.

I.

At the time he requested an independent blood-alcohol test, Yelverton was not entitled to it. Yelverton argues that “[t]he timing of the request [for an independent blood-alcohol test] is immaterial to the entitlement to the test.” Yelver-ton’s brief, at 33. We disagree.

Section 32-5A-194(a)(3), Ala.Code 1975, provides that independent blood-alcohol tests are permissible “in addition to any administered at the discretion of a law enforcement officer.” Therefore, “a defendant in a DUI case is required to submit to a blood alcohol content chemical test at the arresting officer’s direction before that defendant is entitled to an additional blood alcohol content test at his own request.” Lockard, 565 So.2d at 680 (citing Gibson v. City of Troy, 481 So.2d 463, 467 (Ala.Crim.App.1985)). Because § 32-5A-194(a)(3), Ala.Code 1975, refers to “any [tests] administered at the discretion of a law enforcement officer,” the holding in Lockard also applies when the law-enforcement officer administers a breath test instead of a blood-alcohol chemical-content test. Thus, Yelverton did have a statutory right to an independent blood-alcohol test, but not until after he had submitted to the breath test at the direction of the law-enforcement officer.

Our review of the videotape submitted to this Court as part of the record reveals the following exchange took place between Yelverton and the law-enforcement officer before Yelverton took the breath test:

Yelverton: “Can I pay for a blood test at the hospital?”
Officer Collins: “After you take the test then you can — Breathalyzer first, then we take you for a blood test if you wish. But you can’t go take a blood test before.”

Yelverton had not yet submitted to the breath test; therefore, he was not entitled to an independent blood-alcohol test at that time. Officer Collins’s response was that Yelverton could have one, “if [he] wish[ed],” after he had taken the breath test. Officer Collins did not know whether Yelverton was going to submit to the breath test or if, after Yelverton did submit to one, he would wish then to have an additional independent test.

Yelverton’s question, “Can I pay for a blood test at the hospital?” cannot be construed as a request for an independent blood-alcohol test; it was one in a long string of questions he posed to Officer Collins concerning his legal rights in regard to the breath test. However, even if we assume that Yelverton’s question was a request for an independent blood-alcohol test, he had no right to such a test because he had not met the condition precedent to the creation of such a right — he had not taken the breath test that Officer Collins was directing him to take. Yelverton cannot claim that Officer Collins violated his due-process rights by failing to honor a request for a statutory right that he did not have.

II.

Later, after Yelverton had submitted to the breath test, he became entitled under § 32-5A-194(a)(3), Ala.Code 1975, to an independent blood-alcohol test, but he did request one at this time; he did not even mention an independent blood-alcohol test after he took the breath test. The Court of Criminal Appeals stated in its unpublished memorandum: “It appears from our review of the videotape ... that after he took the Intoxilyzer 5000 breath test Yelverton asked to make a telephone call in order to arrange bail, but he did not ask to make a telephone call in order to make arrangements for a blood test.”

Our independent review of the videotape reveals that after Yelverton took the breath test, the jailer informed Yelverton that his bond was set at $500. Yelverton asked whether he could use a property bond, and the jailer replied that the magistrate’s office would have to handle that request. Yelverton then asked, “If I call my friend for $500 cash, can he get me out?” To which the jailer answered, ‘Yes.” Yelverton then asked if he could use the telephone. The jailer told Yelverton: “[A]s soon as we’re done booking the other folks, you can use the phone. But not now. There are officers waiting.” We agree with the Court of Criminal Appeals that after Yelverton underwent the breath test, he did not ask for or mention an independent blood test, nor did he indicate that he wanted to make a telephone call to arrange for such an independent blood test.

III.

Yelverton argues that the police “frustrated his efforts [to obtain a blood test] by not even allowing him a telephone call, stating that he would have to wait until they had finished processing others who had been arrested.” Yelver-ton’s brief, at 33. Yelverton contends that making him wait to use the telephone violated his due-process rights because, he argues, the police did not know, and indeed never will know, whether he was going to telephone a friend or use the telephone call to arrange for an independent blood-alcohol test. However, the mere possibility that he might have used the telephone call to arrange an independent blood-alcohol test does not establish that the police committed a due-process violation by telling him he had to wait to use the telephone. To establish a due-process violation based on the failure of the police to provide a reasonable opportunity to obtain an independent blood-alcohol test, “[the accused] must demonstrate that, based on the totality of the circumstances, the police conduct was unreasonable by clear and convincing evidence.” Bilbrey v. State, 531 So.2d at 30. Telling Yelverton to wait to make a telephone call that he said was to arrange bail, but that could possibly have been used to arrange for an independent blood-alcohol test, in the absence of any indication that he would use the telephone for that purpose, is not evidence of unreasonable police conduct that establishes a due-process violation. In addition, because Yelverton never indicated that he wanted to use the telephone to obtain an independent blood test, telling him to wait to use the telephone until after other arrested individuals had been processed does not constitute an attempt by the police to frustrate or to thwart his attempt to obtain an independent blood test.

The Court of Criminal Appeals concluded that after Yelverton took the breath test, he never again mentioned an independent blood-alcohol test. In support of his argument that the police thwarted his attempt to obtain an independent blood-alcohol test, Yelverton argues that the Court of Criminal Appeals’ decision conflicts with its decisions in Bilbrey, supra, and Lockard, supra. These two cases, however, are distinguishable from this one. In Bilbrey, the accused informed his arresting officer, Tim MeGlothlin, that he wanted to be taken to a local hospital to obtain an independent blood-alcohol test. 531 So.2d at 28. MeGlothlin provided Bilbrey access to a telephone so that Bilbrey could arrange such a test, but then he refused to take Bilbrey to the hospital because Bilbrey was under arrest. The Court of Criminal Appeals held:

“In the instant case, we find that [Bil-brey] was allowed a reasonable opportunity to arrange an independent test by being allowed access to a telephone....
[Bilbrey] was allowed access to a telephone and could have arranged to have an independent test conducted, at his own expense, at the place of incarceration. Based upon these facts, there is nothing to suggest that police authorities thwarted [Bilbrey’s] attempts to obtain an independent test and, thus, we find no due process violation.”

Bilbrey, 531 So.2d at 29. Bilbrey is distinguishable because Bilbrey made a request for an independent blood-alcohol test once he became entitled to an additional test pursuant to § 32-5A-194, Ala.Code 1975, that is, “subsequent to the administration of the [photoelectric intoximeter] test.” 531 So.2d at 28. In contrast, Yelverton made no request for an independent blood-alcohol test after he took the breath test. Moreover, the police were not thwarting Yelverton’s attempt to obtain an independent blood-alcohol test by making him wait to make a telephone call for what he represented was to arrange bail.

The Court of Criminal Appeals found a due-process deprivation under § 32-5A-194, Ala.Code 1975, in Lockard. Lockard had requested an independent blood test “both before and after taking the breath test.” 565 So.2d at 679. Lockard “had telephoned a local hospital and was told that the test could be administered, but only on the premises of the hospital.” 565 So.2d at 679. Lockard informed the jailer of this fact and, instead of transporting him to the hospital for a timely independent blood test, the jailer placed Lockard in the “drunk tank.” 565 So.2d at 679. The Court of Criminal Appeals held:

“[W]e do hold that when a motorist who has been charged with an alcohol-related traffic offense has cooperated fully with the police and subsequently makes telephone arrangements for the administration of a private sobriety test, he is entitled to police transportation to the test site so that the test may be administered.”

565 So.2d at 682. Not only did Lockard request an independent blood-alcohol test before and again after undergoing the breath test at the direction of the police, he had also arranged with a hospital to obtain the test. Yelverton merely inquired about an independent blood-alcohol test before taking the breath test; he did not request one afterward; and he did not arrange for taking such a test.

Conclusion

Yelverton’s due-process rights were not violated when he did not receive an independent blood test under § 32-5A-194(a)(3), Ala.Code 1975, when his request for such a test, if made at all, came before, but not after, he submitted to or agreed to submit to a breath test.

AFFIRMED.

NABERS, C.J., and HARWOOD, STUART, and BOLIN, JJ., concur.

      . The record uses "Breathalyzer” and "Intox-ilyzer 5000” interchangeably to refer to the machine used to administer a breath test for blood-alcohol content.

      . Section 32-5-192, Ala.Code 1975, states, in pertinent part:
      "Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given his consent ... to a chemical test or tests of his blood, breath or urine for the purpose of determining the alcoholic content of his blood if lawfully arrested for any offense arising out of acts alleged to have been committed while the person was driving a motor vehicle on the public highways of this state while under the influence of intoxicating liquor.”

      . Section 32-5A-191(a)(2), Ala.Code 1975, states: "A person shall not drive or be in actual physical control of any vehicle while ... [u]nder the influence of alcohol.”

      . Yelverton also argues in his brief to this Court that the results of the field-sobriety tests should have been suppressed by the trial court and that the Court of Criminal Appeals erred in affirming the trial court’s refusal to suppress the results. Yelverton did not petition for certiorari review as to this issue; therefore, we do not consider it. “It has long been settled that this Court can only address those issues that are set out in the petition as grounds for certiorari.” Ex parte Franklin, 502 So.2d 828, 828 n. 1 (Ala.1987) (citing Rule 39, Ala. R.App. P.; Nix v. State, 271 Ala. 628, 126 So.2d 123 (1960)); and Liberty Nat'l Life Ins. Co. v. Stringfellow, 265 Ala. 561, 92 So.2d 927 (1957). "In considering the petition for certiorari, we pass on only the grounds on which certiorari is sought.” Ex parte Thaggard, 276 Ala. 117, 119, 159 So.2d 820, 822 (1963) (citing City of Gadsden v. Elrod, 250 Ala. 148, 33 So.2d 270 (1947); Davenport-Harris Funeral Home v. Chandler, 264 Ala. 623, 88 So.2d 878 (1956); Kelley v. Osborn, 269 Ala. 392, 113 So.2d 192 (1959); and Harris v. State, 272 Ala. 146, 130 So.2d 231 (1961)).

      . Despite the last sentence of § 32-5A-194(a)(3), Ala.Code 1975, the Court of Criminal Appeals has held that, if the "failure” or "inability” to obtain an additional test is the result of unreasonable police conduct, then the results of tests administered by the law-enforcement officer may be suppressed and the defendant's conviction reversed on the basis of a failure to allow the defendant to obtain a private blood-alcohol test. See, e.g., Lockard, 565 So.2d at 682.

      . Yelverton argues that, even though he did not request an independent blood-alcohol test after he took the breath test, “the police were on notice of the request and could not simply reject the request because it was made prior to the breath test." Yelverton's brief, at 33. However, as we discuss, Yelverton had to agree.to the breath test in order to make an effective request for an independent test. He had not done so at the time he made the "request.” After he agreed to the breath test, he made no such request. Moreover, there is no evidence indicating that any such request was rejected. Officer Collins told Yelverton, "After you take the test then you can — Breathalyzer first, then we take you for a blood test if you wish. But you can't go take a blood test before.” Yelverton subsequently took the breath test, but expressed no desire for an independent blood test following that breath test; he expressed only that he wanted to telephone a friend to come bail him out.