author: BRYAN, Judge.

text:
    Gerry D. HUMMEL v. BALDWIN COUNTY et al.
    2030902.
    Court of Civil Appeals of Alabama.
    Oct. 21, 2005.

      Thomas R. McAlpine of Whitfield & McAlpine, P.C., Mobile, for appellant.
    M. Kathryn Knight of Vickers, Riis, Murray & Curran, L.L.C., Mobile, for ap-pellees.
   BRYAN, Judge.

Gerry D. Hummel appeals a summary judgment in favor of Baldwin County (“the County”) and the individual, members of the Baldwin County Commission, who are Jonathan H. Armstrong, Frank H. Burt, Jr., George Price, Mary Frances Stewart, Charles A. Browdy, David A. Bishop, and Allen B. Perdue (“the Commissioners”). We affirm in part, reverse in part, and remand the case for further proceedings consistent with this opinion.

Hummel worked as a court security officer at the Baldwin County courthouse from November 7, 1995, through October 15, 2000. After he received a notice, in September 2000, that his employment would be terminated effective October 15, 2000, Hummel made demand upon the County for: (1) the difference between the wages due a full-time employee of the County and the wages he had actually received during his employment; and (2) the retirement benefits due a full-time employee. In response, the County filed a declaratory-judgment action in the Baldwin Circuit Court on September 4, 2001. The County sought a judgment declaring that Hummel had been a contractual, non-merit-system employee who was not entitled to the wages and benefits due a full-time, merit-system employee. The County did not demand a jury trial.

Hummel filed an answer and a counterclaim. In his counterclaim, Hummel alleged that, although his employment contract designated him as a part-time employee, he was required to work the hours of a full-time employee and, therefore, he was entitled to the wages and benefits due a full-time employee. He sought a judgment declaring that he was entitled to: (1) the difference between the wages due a full-time employee and the wages he had actually received; (2) the retirement benefits due a full-time employee; and (3) prejudgment interest, costs, and an attorney’s fee. Hummel demanded a jury trial.

On August 5, 2003, Hummel filed an amended counterclaim. In his amended counterclaim, Hummel named the Commissioners as additional defendants and alleged four claims against the County and the Commissioners. First, he reasserted his claim seeking a judgment declaring that he was entitled to the wages and benefits due a full-time employee plus prejudgment interest, costs, and an attorney’s fee. Second, he asserted a claim seeking a writ of mandamus ordering the County and the Commissioners to perform their ministerial duties regarding paying him the wages and retirement benefits he claimed he was due. Third, Hummel asserted a claim alleging conspiracy to violate the law and to suppress material facts relating to his wages and benefits. Finally, Hummel asserted a claim alleging deprivation of his property rights without due process.

After all of the judges of the Baldwin Circuit Court recused themselves, the chief justice of the supreme court assigned a retired circuit judge from another county to hear the case. On January 13, 2004, the County and the Commissioners moved for a summary judgment. The County sought a summary judgment on its claim for a declaratory judgment and on Hummel’s claims against it. The Commissioners sought a summary judgment on Hummel’s claims against them. The County and the Commissioners supported their summary-judgment motion with evidentiary submissions and a brief. The County and the Commissioners argued: (1) that Hummel was a deputy sheriff employed by the Sheriff of Baldwin County (“the Sheriff’) rather than a court security officer employed by the County; (2) that Act No. 95-581, Ala. Acts 1995, the act establishing the County’s personnel merit system, exempted the Sheriff from providing deputy sheriffs with the wages and benefits due a full-time, merit-system employee of the County; (3) that Hummel had introduced no evidence tending to prove that he was an employee of the County or the Commissioners; (4) that Hummel had introduced no evidence of an essential element of his claim of conspiracy, i.e., an agreement by the County and the Commissioners to deprive Hummel of wages and benefits to which he was entitled by law; and (5) that Hummel had introduced no evidence of an essential element of his claim of deprivation of property rights without due process, i.e., an employment contract between him, on the one hand, and the County or the Commissioners, on the other.

Hummel filed a response to the summary-judgment motion of the County and the Commissioners, a cross-motion for a summary judgment, and evidentiary submissions. Hummel argued: (1) that he was a court security officer employed by the County rather than a deputy sheriff employed by the Sheriff; (2) that he was a full-time employee of the County and, therefore, was entitled to the wages and benefits of a full-time employee of the County under Act No. 95-581; (3) that he had introduced evidence of a conspiracy by the County and the Commissioners to suppress material facts regarding his wages and benefits; and (4) that he was entitled to recover an attorney’s fee under his claims seeking a declaratory judgment and a writ of mandamus. The County and the Commissioners then moved to strike Hum-mel’s cross-motion for a summary judgment on the ground that it was unsupported by a narrative statement of undisputed facts as required by Rule 56(c), Ala. R. Civ. P.

On April 23, 2004, the trial court entered a memorandum opinion and order in which it granted the summary-judgment motion of the County and the Commissioners, struck Hummel’s summary-judgment motion, and, in the alternative, denied Hum-mel’s summary-judgment motion. The trial court rejected Hummel’s claim that he was a court security officer employed by the County. Instead, the trial court found that “Hummel worked for the Sheriff of Baldwin County as a deputy sheriff assigned to the position of court security officer.... ” The trial court then explained:

“The Sheriff ... may work an employee for forty (40) hours a week without providing a benefit package offered to all county employees. Ala. Atty. Gen. Op. 2001-215.... The Legislature passed a local act establishing the Baldwin County Personnel System in 1995. See Ala. Act No. 95-581. The Sheriff ..., as well as deputy sheriffs appointed by him are exempt from the Baldwin County Personnel System, under Section 4 of Ala. Act No. 95-581.
“Pursuant to Ala. Const. Art. V, § 112, the Sheriff ... is an executive officer of the State, and is not [an employee of the County], In other words, the Sheriff ... and his deputies are not policymakers for [the County] and thus [the County] cannot be held liable for the activities of the Sheriff. See McMillian v. Monroe County, 520 U.S. 781 (1997).
“Since Hummel admits that he was paid in full for all hours that he recorded on his time sheets at the rate of pay set forth in his contract, and he admits that his contract specifically provided that he was not entitled to vacation, sick, annual, subsistence, retirement or other benefits, there is no genuine issue of material fact and [the County], as well as [the Commissioners], are entitled to a summary judgment as a matter of law on these claims. Accordingly, the Court grants [the County’s motion for summary judgment on its claim seeking a declaratory judgment] and declares that [the County] is not liable to Hummel with respect to the contract between Hummel and the Sheriff ... and that Hummel was not a merit system employee of [the County]. Likewise, [the County and the Commissioners] are entitled to a summary judgment on Counts One and Two of the counterclaim [alleging claims for a declaratory judgment and a writ of mandamus] because Hum-mel was not an employee of [the County] and thus [the County and the Commissioners] do not owe him the monies he claims [in those counts].
“... In order to prove a conspiracy claim, Hummel must allege and prove that [the County and the Commissioners] agreed to accomplish an unlawful end and intended to have that unlawful end accomplished. See First Bank of Childersburg v. Florey, 676 So.2d 324, 327 (Ala.Civ.App.1996). ‘The essence of a conspiracy is an agreement, a meeting of the minds between co-conspirators.’ Id. ... Hummel has no knowledge of any conversations, much less any agreement, by [the Commissioners] to withhold the payment of any sums due to him. Hummel Depo. at 98-102. Accordingly, the Court grants the motion by [the County and the Commissioners] for [a] summary judgment as to Count Three of the Counterclaim [alleging a claim of conspiracy].
“Hummel has no due process claim against [the County and the Commissioners] unless he had a property interest in continued employment with [the County], See Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972)....
“In this case, Hummel had no contract with [the County], and the Baldwin County Personnel Systems Act, Ala. Act No. 95-581 simply did not apply to Hummel, a deputy sheriff employed by [the Sheriff]. Since Hummel, as a matter of law, had no contract of employment with [the County], his due process claim fails to state a claim against [the County and the Commissioners]. The Court hereby grants the motion for [a] summary judgment filed by [the County and the Commissioners] as to Count Four of the Counterclaim [alleging a claim of deprivation of property rights without due process].”

On May 19, 2004, Hummel, pursuant to Rule 59(e), Ala. R. Civ. P., moved the trial court to alter, amend, or vacate the summary judgment in favor of the County and the Commissioners. On June 9, 2004, the trial court entered an order denying Hum-mel’s Rule 59(e) motion. Hummel timely appealed to the supreme court. Pursuant to § 12-2-7(6), Ala.Code 1975, the supreme court transferred the appeal to this court on July 6, 2004.

On appeal, Hummel first argues that he established the existence of a genuine issue of material fact regarding whether he was entitled to the wages and benefits due a full-time employee of the County.

“Appellate review of a summary judgment is de novo. Ex parte Ballew, 771 So.2d 1040 (Ala.2000). A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing ‘that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.’ Rule 56(c); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, ‘the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by “substantial evidence.”’ Lee, 592 So.2d at 1038 (footnote omitted). ‘[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d [870,] 871 [ (Ala.1989) ]; see Ala.Code 1975, § 12-21-12(d).”

Kohler Co. v. Miller, 921 So.2d 436, 444 (Ala.Civ.App.2005).

On July 5, 2001, the Alabama Attorney General issued opinion number 2001-215 in response to five questions submitted by the Commissioners regarding the employment of jailers and court security officers by the Sheriff. The County and the Commissioners included a copy of that opinion in support of their summary-judgment motion. In response to a question asking whether the Sheriff could “work an employee for forty hours a week and not provide, to that employee, a benefit package offered all county employees,” the Attorney General opined:

“FACTS, LAW, AND ANALYSIS
“The Sheriff of Baldwin County may work an employee for forty (40) hours a week without providing a benefit package offered to all county employees. Act No. 95-581 establishes the Baldwin County personnel merit system for all county employees. The Sheriff of Baldwin County, as an elected official, is exempt from the requirements of the personnel system under section 4 of Act No. 95-581. Furthermore, the Constitution of Alabama clearly denominates the sheriff as a member of the state’s executive board and thus not a county employee subject to Act No. 95-581. ALA. CONST. Art. V, § 112.
“In Whitten v. Lowe, 677 So.2d 778, 780 (Ala.Civ.App.1995), the Alabama Court of Civil Appeals concluded that an exemption provided for the sheriff in MarshaU County’s personnel system extended to deputies hired by the sheriff. The Court established that the deputies acted as the alter ego of the sheriff because the sheriff could be held civilly liable for their actions. See Id. at 779. Since the deputies merely acted as a legal extension of the sheriff, the sheriffs exemption from the county personnel system extended to cover their employment.
“As noted in the opinion request, the Sheriff of Baldwin County hired county jailers and court security officers. Under section 14-6-1 of the Code of Alabama, a sheriff ‘may appoint a jailer for whose acts he is civilly responsible.’ ALA. CODE § 14-6-1 (1995). Because the sheriff is civilly responsible for the acts of the jailers he appoints, the jailers act as a legal extension of the sheriff and are exempted from the county personnel system under Whitten v. Lowe. Opinion to Honorable Thomas W. Hall, Sheriff of Conecuh County, dated February 13, 1996, A.G. No. 96-00136. Therefore, county jailers would be given benefits only as provided in their contracts with the Sheriff of Baldwin County.
“While the exemption of the sheriff as an elected official under section 4 of Act No. 95-581 extends to jailers, the exemption does not extend to court security officers. No section of the Code of Alabama makes sheriffs civilly responsible for the actions of court security officers. Furthermore, this position involves a very limited objective and defines duties that do not require such employees to act as an alter ego of the sheriff. See Terry v. Cook, 866 F.2d 373, 378 (11th Cir.1989) (stating in dicta that employees such as clerks and dispatchers with positions involving limited objectives do not act as the alter ego of the sheriff). Therefore, court security officers, as county employees, are entitled to a benefit package offered all other employees.
“CONCLUSION
“The Sheriff of Baldwin County may work an employee, such as a deputy or jailer, for forty hours a week without giving him a benefit package provided to all county employees. A deputy or jailer acts as a legal extension of the sheriff as the sheriff is civilly responsible for their actions. The sheriffs exemption from the Baldwin County personnel system under the Constitution of Alabama and under the language of Act No. 95-581 extends to deputies and jailers. This exception does not extend to court security officers because those employees do not function as an alter eqo of the sheriff.”

(Emphasis added.)

In response to a question asking whether “the Baldwin County Commission [was] legally liable for employees of the Sheriff of Baldwin County who are offered employment contracts neither approved by the Baldwin County Commission nor to which the Baldwin County Commission is a party,” the Attorney General, in pertinent part, opined:

“FACTS, LAW, AND ANALYSIS
“Baldwin County is liable for services rendered under contract by court security officers hired by the sheriff without the authorization of the county commission. The county commission may ratify the contract between the court security officers and the sheriff, even though the sheriff acts without the authority of the county commission. See Terrell v. Kay, 235 Ala. 54, 176 So. 823 (1937). If the county commission chooses not to ratify the contracts between the court security officers and the sheriff, the county commission must pay the court security officers at least the reasonable value of their services to the county under the doctrine of quantum meruit. See State v. American Tobacco Co., 772 So.2d 417, 422 (Ala.2000).
“CONCLUSION
“Baldwin County is legally liable for employment contracts between the jailers and court security officers and the sheriff.”

(Emphasis added.) The result reached in this opinion is based on the reasoning and the conclusions contained in the quoted portions of Op. Att’y Gen. No. 2001-215.

The record before the trial court contained a memorandum dated November 2, 1995, from the Baldwin County Sheriffs Office (“the Sheriffs Office”) to the County’s personnel director. In pertinent part, that memorandum states:

“The Sheriffs Office selects the following candidates to fill the positions as indicated....
“Court Security Officer Gerry D. Hummel
“Please present these candidates for commission approval. ...”

(Emphasis added.)

The record before the trial court also contained a copy of the employment contract Hummel signed on November 7, 1995. In pertinent part, that contract states:

“SUBJECT: POSITION — Court Security Officer
“You have been appointed to the position of Court Security Officer. You will be commissioned as a Deputy Sheriff with powers of arrest and enforcement of all state laws. These powers are restricted to the area in and around the courthouse or as otherwise directed by the Sheriff or his designee. You will be required to wear a Deputy Sheriffs uniform while performing your duties as a Court Security Officer. Uniforms, sidearm, ammunition and other appropriate, approved equipment will be issued to you as needed. Your employment is on a contractual, non-merit-status basis. You may be terminated from this employment status, with or without cause.
“The financial elements of the position are:
“-Pay rate $9.00 per hour
“-No holiday pay
“-No sick leave or annual leave accumulation.
“Federal income tax and social security will be withheld. Social security will be matched by the county. Worker’s compensation insurance will be provided by the county. No other benefits (health insurance, retirement, etc.) will be provided.
“I accept the terms and conditions of employment as a Court Security Officer as set forth in this memorandum.
“11-7-95 /s/ Gerry D. Hummel ”

(Emphasis added.)

These documents establish the existence of a genuine issue of material fact regarding whether Hummel was a court security officer who, although he was commissioned as a deputy sheriff in order to confer upon him the power to arrest and enforce state law in the courthouse, nonetheless did not act as an alter ego of the Sheriff, or a deputy sheriff who, although he was assigned the duties of a court security officer, nonetheless acted as an alter ego of the Sheriff. Consequently, we must reverse the summary judgment in favor of the County and Commissioners on the County’s claim seeking a declaratory judgment and on Hummel’s claim seeking a declaratory judgment and a writ of mandamus.

Furthermore, the genuine issue of material fact regarding Hummel’s status established by the record also precluded summary judgment in favor of the County and the Commissioners on Hummel’s claim alleging deprivation of property rights without due process. The property interests protected by the Fourteenth Amendment “are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Since the evidence regarding Hummel’s status is in conflict, a fact-finder could find either: (1) that Hummel was a court security officer who, although he was commissioned as a deputy sheriff, did not act as an alter ego of the Sheriff, or (2) that Hummel was a deputy sheriff who, although he was assigned the duties of a court security officer, did act as the alter ego of the Sheriff. Should a fact-finder find that Hummel was a court security officer who, despite his commission as a deputy sheriff, did not act as the alter ego of the Sheriff, Act No. 95-581 would secure Hummel’s right to the benefits of a full-time County employee and, therefore, support his claim that he was allegedly deprived of his rights without due process. Consequently, we must also reverse the summary judgment in favor of the County and the Commissioners on Hummel’s claim alleging deprivation of his property rights without due process of law.

Hummel next argues that the record established the existence of a genuine issue of material fact regarding his claim alleging conspiracy. We disagree. The record contains no evidence of an agreement by the County or the Commissioners to violate the law or to suppress material facts. Consequently, we affirm the summary judgment in favor of the County and the Commissioners on Hummel’s claim alleging conspiracy.

We need not reach the remaining issues raised by Hummel. We remand the case for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

CRAWLEY, P.J., and THOMPSON, PITTMAN, and MURDOCK, JJ., concur in the result, without writing.

      . This appeal was previously assigned to another judge of this court. It was reassigned to Judge Bryan on January 18, 2005.

      . Upon Hummel’s motion, the trial court joined the Retirement Systems of Alabama ("RSA”) as a party defendant, and Hummel alleged a claim against RSA in his amended counterclaim. However, upon the motion of RSA, the trial court subsequently dismissed Hummel’s claim against RSA and dismissed RSA as a party. Hummel has not appealed those rulings of the trial court. Therefore, RSA is not a party to this appeal.

      . That opinion does not purport to address the specific facts of Hummel’s case.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Lester L. DAVIS v. Governor Bob RILEY et al.
    2040692.
    Court of Civil Appeals of Alabama.
    Oct. 21, 2005.

      Lester Davis, pro se.
    Submitted on appellant’s brief only.
   PER CURIAM.

Lester L. Davis appeals from the Montgomery Circuit Court’s dismissal of his complaint, which alleged violations of inmate Michael E. Thatch’s civil rights. See 42 U.S.C. § 1983. We reverse the circuit court’s judgment and remand the case with instructions.

Davis filed a complaint requesting that the circuit court issue a declaratory judgment and grant injunctive relief against the named defendants — Governor Bob Riley, Department of Corrections Commissioner Donal Campbell, and Attorney General Troy King — for allegedly conspiring to deprive Thatch (Davis’s brother), who was incarcerated at Holman Correctional Facility (“Holman”), of his “life, liberty, and property” in denying Thatch proper medical care for a terminal illness. Davis also sought compensatory and punitive damages.

In his complaint, Davis, who is himself incarcerated, asserted that Thatch had been previously diagnosed with cancer at Holman. Davis further averred that the medical staff and hospital ward at Holman were ill-equipped to offer proper medical attention to Thatch and that Davis had requested that his brother be moved to a different prison facility that could offer “proper” treatment for Thatch’s cancer. Davis further requested that the circuit court issue a declaratory judgment finding that Holman’s lack of proper medical facilities constituted “cruel and unusual punishment” pursuant to the Eighth Amendment to the United States Constitution. On April 21, 2005, before service had been perfected on the named defendants, the circuit court, on its own motion, dismissed Davis’s complaint with prejudice, stating, in pertinent part:

“The Court has also reviewed the complaint in this case and, ex mero motu, finds that it fails to state a claim upon which relief can be granted. Plaintiff seeks substantial damages because his brother, an inmate, has been denied adequate medical care. Plaintiff lacks standing to pursue the claim. See Robinson v. Hadden, 537 So.2d 931 (Ala.Civ.App.1988).”

Davis appealed; the Alabama Supreme Court transferred this appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

“ ‘On review of a judgment of dismissal [for failure to state a claim], the judgment is not entitled to a presumption of correctness. The appropriate standard of review is whether the plaintiff could prove any set of circumstances that would entitle the plaintiff to relief. In reviewing a dismissal, [an appellate court] does not consider whether the plaintiff will ultimately prevail, but only whether the plaintiff may possibly prevail. A dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.’ ”

Access Capital, Inc. v. Uptown, Inc., 863 So.2d 1127, 1128 (Ala.Civ.App.2003) (quoting Green v. Nemish, 652 So.2d 243, 244 (Ala.1994)).

Davis argues on appeal that the circuit court abused its discretion in dismissing his claim sua sponte, on the basis of a lack of standing, before service of process had been perfected upon the named defendants and without allowing him to amend his complaint. We agree.

It is uncertain from the circuit court’s judgment whether the dismissal is based upon a lack of standing or upon a failure of Davis to demonstrate that he is the real party in interest to litigate claims arising from the treatment of Thatch’s cancer. Our Supreme Court distinguished the principles of “real party in interest” and “standing” in State v. Property at 2018 Rainbow Drive, 740 So.2d 1025 (Ala.1999):

“There are fundamental differences between the principles of ‘real party in interest’ and ‘standing.’ ‘“[T]he real party in interest principle is a means to identify the person who possesses the right sought to be enforced. Therefore, the term directs attention to whether [the] plaintiff has a significant interest in the particular action he has instituted.”’ Dennis v. Magic City Dodge, Inc., 524 So.2d 616, 618 (Ala.1988) (quoting 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1542 (1971)).
“Standing, on the other hand, turns on ‘whether the party has been injured in fact and whether the injury is to a legally protected right.’ Romer v. Board of County Comm’rs of the County of Pueblo, 956 P.2d 566, 581 (Colo.1998) (Kourlis, J., dissenting)(emphasis added). See also NAACP v. Town of East Haven, 892 F.Supp. 46 (D.Conn.1995). ‘One has standing to bring his complaint into court “if his stake in the resolution of that complaint assumes the proportions necessary to ensure that he ivill vigorously present his case.”’ Smith v. Potts, 293 Ala. 419, 422, 304 So.2d 578, 580 (1974)(emphasis added).”

740 So.2d at 1027-28.

We cannot conclude from the abbreviated record in this case that Davis can prove “no set of facts” entitling him to relief based upon his allegations regarding Thatch’s treatment. With respect to standing, 42 U.S.C. § 1983 has been construed by our Supreme Court to permit survivorship, under Alabama law governing wrongful-death claims, of claims brought under that statute. See Carter v. City of Birmingham, 444 So.2d 373, 380 (Ala.1983). Although Davis has not alleged in his complaint that he is the personal representative of his brother’s estate so as to empower him to bring a wrongful-death action under Alabama law, Davis is not required to prove his capacity to sue in the absence of a defendant’s specific denial, under Rule 9(a), Ala. R. Civ. P., of his capacity to sue. See Alabama Power Co. v. White, 377 So.2d 930, 934 (Ala.1979). Thus, to the extent that the circuit court’s judgment is based upon Davis’s lack of standing to sue, that judgment is premature.

With respect to the issue whether Davis is the real party in interest, we note that Rule 17(a), Ala. R. Civ. P., provides, in pertinent part:

“Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian, bail-ee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in that person’s own name without joining the party for whose benefit the action is brought. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.”

(Emphasis added.)

The record reveals that Davis filed his complaint on April 18, 2005, and that the circuit court dismissed Davis’s complaint three days later. Because the circuit court did not allow Davis a “reasonable time” to amend his complaint to assert that he was the real party in interest, we must remand this case to the circuit court with directions to reinstate Davis’s action, to allow Davis an opportunity to amend his complaint, and to direct that service be perfected on the named defendants. In making this determination, we do not address the merits of Davis’s claims or whether any or all the defendants may be entitled to immunity from suit or liability.

REVERSED AND REMANDED.

CRAWLEY, P.J., and PITTMAN, J., concur.

THOMPSON, MURDOCK, and BRYAN, JJ., concur in the result, without writing.

      . The record on appeal does not indicate whether Thatch was living or deceased at the time that Davis filed his complaint.


author: WISE, Judge. COBB, Judge, SHAW, Judge,

text:
    Jonathan LaPOINTE v. STATE of Alabama.
    CR-03-1245.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 2004.
    Rehearing Denied Nov. 19, 2004.
    Robert Aaron Gartlan, Dothan, for appellant.
    Troy King, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
   WISE, Judge.

APPEAL DISMISSED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J., and BASCHAB, J., concur. COBB and SHAW, JJ., dissent, each with opinion.

COBB, Judge,

dissenting.

In its unpublished memorandum, the majority relies on caselaw from this Court holding that a defendant must make clear his intent to preserve an issue for appeal before he enters his guilty plea, rather than as he enters his guilty plea. Based on my belief that we should reexamine our caselaw and its applications to cases such as this one in which the trial court has assured the defendant that his argument has been preserved for appellate review, I dissent and adopt the reasoning in my special writings in Mullins v. State, 920 So.2d 584 (Ala.Crim.App.2004) (Cobb, J., dissenting); Ginn v. State, 894 So.2d 793 (Ala.Crim.App.2004) (Cobb, J., dissenting); and Lewis v. State, 890 So.2d 214 (Ala.Crim.App.2003) (Cobb, J., dissenting).

SHAW, Judge,

dissenting.

The plea colloquy quoted in this Court’s unpublished memorandum dismissing Jonathan LaPointe’s appeal indicates that the parties may have agreed before the plea was entered that LaPointe was reserving the right to appeal the trial court’s denial of his application for youthful-offender status. Based on Smith v. State, 884 So.2d 3 (Ala.Crim.App.2003), and Rivers v. State, 666 So.2d 38 (Ala.Crim.App.1994), I would remand this case for the trial court to supplement the record to clarify whether there was a preexisting agreement between the parties that LaPointe was reserving the right to appeal the youthful-offender issue.


author: HARWOOD, Justice.

text:
    Ex parte Jonathan LaPOINTE. (In re Jonathan LaPointe v. State of Alabama).
    1040324.
    Supreme Court of Alabama.
    June 24, 2005.
    R. Aaron Gartlan of Capps & Gartlan, P.C., Dothan, for petitioner.
    Troy King, atty. gen., and Stephanie N. Morman and Jack W. Willis, asst, attys. gen., for respondent.
   HARWOOD, Justice.

We granted the petition of Jonathan La-Pointe for a writ of certiorari to review the Court of Criminal Appeals’ dismissal, by an unpublished memorandum, of La-Pointe’s attempted appeal from the Henry Circuit Court’s denial of his application for youthful-offender status, followed by his plea of guilty to the offense of first-degree sexual abuse, pursuant to a plea agreement. LaPointe v. State, 926 So.2d 1054 (Ala.Crim.App.2004) (Cobb and Shaw, JJ., dissenting). The pivotal issue is whether LaPointe preserved for appellate review, in connection with the guilty-plea proceedings, the issue of the denial of youthful-offender status.

LaPointe, who was 19 years old at the time the offense giving rise to his guilty-plea conviction of first-degree sexual abuse, a violation of § 13A-6-66, Ala.Code 1975, was committed, applied for youthful-offender treatment. Initially, the trial court granted LaPointe youthful-offender status, but, a week later, after the State had filed a motion asking the court to reconsider- its decision, the trial court rescinded its previous order and denied La-Pointe’s application for youthful-offender status. After LaPointe unsuccessfully moved the court to reconsider its denial of his application, he entered into a plea-bargain agreement with the State, which the Henry Circuit Court approved and implemented when the agreement was subsequently presented to it.

“Before entering his guilty plea, a defendant must reserve any issue as to which he wishes to appeal. Smith v. State, 884 So.2d 3, 6 (Ala.Crim.App.2003). See also Ala. R.Crim. P. 26.9(b)(4)(‘before entering the plea of guilty [the defendant must have] expressly reserved his or her right to appeal with respect to a particular issue or issues’).”

Ex parte Mullins, 920 So.2d 589 (Ala.2005). Rule 26.9(b)(4), Ala. R.Crim. P„ in pertinent part, reads as follows:

“(b) Pronouncement of Sentence. In pronouncing sentence, the court shall:
“(4) Inform the defendant as to the defendant’s right to appeal; provided, however, in cases in which the defendant has entered a plea of guilty, the court shall advise the defendant of his or her right to appeal only in those cases in which the defendant (i) has entered a plea of guilty, but before entering the plea of guilty has expressly reserved his or her right to appeal with respect to a particular issue or issues, or (ii) has timely filed a motion to withdraw the plea of guilty and the motion has been denied, either by order of the court or by operation of law....”

Rule 14.4, Ala. R.Crim. P., addresses that same subject, explaining what information concerning the defendant’s right to appeal the trial court must impart to a defendant during a guilty-plea proceeding. It reads, in pertinent part:

“(a) Colloquy With Defendant. In all minor misdemeanor cases, the execution of a form similar to Form C^14B [Explanation of Rights and Plea of Guilty] will be sufficient and no colloquy shall be required. In all other cases, except where the defendant is a corporation or an association, the court shall not accept a plea of guilty without first addressing the defendant personally in the presence of counsel in open court for the purposes of:
“(1) Ascertaining that the defendant has a full understanding of what a plea of guilty means and its consequences, by informing the defendant of and determining that the defendant understands:
“(viii) The fact that there is no right to appeal unless the defendant has, before entering the plea of guilty, expressly reserved the right to appeal with respect to a particular issue or issues, in which event appellate review shall be limited to a determination of the issue or issues so reserved.... ”

The trial court undertook a guilty-plea colloquy with LaPointe, accepted his plea, and pronounced judgment and sentence at a proceeding conducted on April 21, 2004. After obtaining certain basic information from LaPointe and confirming his competency, the court had the following exchange with LaPointe, LaPointe’s attorney Aaron Gartlan, and Assistant District Attorney Nereida Bundy:

“THE COURT: Have you had enough time to discuss this case with your attorney, for him to advise you of your rights and for you to tell him your version of the facts?
“[LaPOINTE]: Yes, sir.
“THE COURT: Have you had explained to you the rights that you will give up by entering a plea of guilty as set out on the Explanation of Rights form?
“[LaPOINTE]: Yes, sir.
“THE COURT: Have you signed the form voluntarily, and do you understand it?
“[LaPOINTE]: Yes, sir, I do.
“THE COURT: Based on what you have told me here today, I find that your offer to plea (sic) guilty is willingly, knowingly and intelligently made, and I will accept your plea if the offer [is] given.
“[LaPOINTE]: All right.
“(Factual basis for the plea recited.)
“THE COURT: To the indictment in this case, how do you plead, guilty or not guilty?
“[LaPOINTE]: Guilty.
“THE COURT: Upon your plea of guilty, it is the judgment of the Court that you are guilty. Do you have anything to say as to why a sentence of law should not be pronounced upon you at this time?
“[LaPOINTE]: No, sir.
“THE COURT: What is the State’s recommendation?
“MS. BUNDY: Your Honor, the State would recommend a sentence of five years, with him being given credit for time served, and one year of supervised probation, a fine of $1,500, [Crime] Victims Compensation Assessment of $750, and $100 to the Headland Police Department.
“THE COURT: And is that the recommendation as you understood it would be, Mr. LaPointe?
“[LaPOINTE]: Yes, sir.
“THE COURT: And your understanding, Mr. Gartlan?
“MR. GARTLAN: Judge, it is, with one additional fact, that Mr. [Douglas Albert] Valeska [District Attorney for Henry County] and I both agreed that Mr. LaPointe would be able to preserve for appellate review the denial of youthful-offender status in this case. And he intends to give notice of appeal at this time of that. And we wanted to reserve the right to do that.
“THE COURT: So, the guilty plea is made on the basis of reserving the right to appeal the youthful-offender issue?
“MR. GARTLAN: Yes, sir.
“THE COURT: Okay. Well, I sentence you, then, to five years in the penitentiary — and I believe that is one year supervised probation?
“MS. BUNDY: Yes, Your Honor.
“THE COURT: A fine of $1,500, $750 to the Victims Compensation Fund and costs. And how much to the Headland Police Department?
“MS. BUNDY: $100, Your Honor.
“THE COURT: $100 restitution to the Headland Police Department. And on that basis, I guess he goes on probation.
“MR. GARTLAN: Yes.
“THE COURT: Then, he will be processed on out today.
“MR. GARTLAN: Yes, sir. Thank you, sir.
“THE COURT: That is all subject to the reservation of the right to appeal the youthful-offender [issue].
“MR. GARTLAN: Yes, sir. Thank you.”

In its unpublished memorandum dismissing LaPointe’s appeal, the three-judge majority reasoned and held as follows:

“LaPointe did not specifically reserve the right to appeal the denial of his request for youthful offender status before he entered his guilty plea. Instead, LaPointe waited until after he entered his plea and the trial court had adjudged him guilty of the offense before he noted his request to reserve the right to appeal the youthful-offender issue. Because LaPointe failed to properly reserve any issue for appellate review pri- or to entering his guilty plea and because he did not move to withdraw his guilty plea, he cannot proceed with this appeal. If LaPointe is entitled to any review of his guilty-plea proceedings that review would be through a postcon-viction proceeding pursuant to Rule 32, Ala. R.Crim. P.
“For the above stated reason, this appeal is due to be dismissed.”

Judge Cobb issued a dissenting opinion, recommending that the Court of Criminal Appeals reexamine its caselaw holding that a defendant must make clear his intent to preserve an issue for appeal before he enters a guilty plea, rather than as he enters it, particularly as applied to cases such as LaPointe’s “in which the trial court has assured the defendant that his argument has been preserved for appellate review.” 926 So.2d at 1054. Judge Shaw also dissented and wrote separately, based on his view that the plea colloquy indicated “that the parties may have agreed before the plea was entered that LaPointe was reserving the right to appeal the trial court’s denial of his application for youthful-offender status” and that, on the authority of Smith v. State, 884 So.2d 3 (Ala.Crim.App.2003), and Rivers v. State, 666 So.2d 33 (Ala.Crim.App.1994), a remand was in order “for the trial court to supplement the record to clarify whether there was a preexisting agreement between the parties that LaPointe was reserving the right to appeal the youthful-offender issue.” 926 So.2d at 1055.

As noted, when the trial court inquired of defense counsel whether the sentence recommendation by the State comported with counsel’s understanding of the plea agreement, counsel confirmed that it did, “with one additional fact”: that previously the district attorney and defense counsel had “both agreed that Mr. La-Pointe would be able to preserve for appellate review the denial of youthful-offender status in this case.” When defense counsel went on to explain that LaPointe intended to give notice of appeal at that time “of that” and stated that “we wanted to reserve the right to do that,” the trial judge expressed his understanding that “the guilty plea is made on the basis of reserving the right to appeal the youthful-offender issue?” (Emphasis added.) Upon defense counsel’s confirming that fact, the trial judge expressed his acceptance of the arrangement by stating “[ojkay” and then proceeding to announce sentence. Furthermore, after sentencing LaPointe, the trial judge concluded the proceeding by confirming, “That is all subject to the reservations of the right to appeal the youthful-offender [issue].”

Douglas Valeska, the district attorney, was not present for the plea colloquy and pronouncement of sentence, but Gartlan, representing LaPointe, advised the trial court that he and Valeska had both agreed that LaPointe would be able to preserve the denial of youthful-offender status for appellate review; it is obvious that Gartlan understood that the parties had such an agreement. Assistant District Attorney Bundy, representing the State at the proceeding, had obviously been apprised of that agreement because she acquiesced in Gartlan’s statement of the nature of the agreement, taking no exception to the existence or accuracy of it. Although the trial judge did not expressly acknowledge that he had been aware of that feature of the plea bargain, he clearly evidenced his willingness to condition the guilty plea on the right to reserve the issue for appeal by stating, using the present tense, “So, the guilty plea is made on the base of reserving the right to appeal the youthful-offender issue?” and then responding “[o]kay” upon defense counsel’s confirming that fact. This reasonably represents the trial judge’s retroactive acceptance, while the guilty-plea proceeding was still ongoing, of the condition. That the trial judge either was already aware of the fact that the plea bargain was conditioned on LaPointe’s reserving the right to appeal the denial of youthful-offender status or agreed while the proceeding was still underway that the condition could be inserted retroactively is strongly suggested by the fact that the trial judge did not advise LaPointe that he would have no right of appeal as to that issue.

As noted, Rule 14.4(a)(l)(vii) mandates that the court shall not accept a plea of guilty without first addressing the defendant personally in the presence of counsel in open court for the purpose of, among other things, informing the defendant of, and determining his understanding of, the fact that there is no right of appeal unless the defendant has, before entering the plea of guilty, expressly reserved the right to appeal with respect to a particular issue. Likewise, as noted, Rule 26.9(b)(4) obliges the trial judge, in connection with pronouncing sentence upon a defendant who has entered a plea of guilty, to inform the defendant of his right to appeal only in those situations where the defendant before entering the plea of guilty has expressly reserved his right to appeal with respect to a particular issue or has filed a motion to withdraw a guilty plea, which motion has been denied. Because the trial judge undertook on his own initiative to conclude the proceedings with the explanation, “[t]hat is all subject to the reservation of the right to appeal the youthful-offender [issue],” it is obvious that he considered that LaPointe had timely reserved the right to appeal the denial of youth-offender status in conformity with the procedure provided in the Alabama Rules of Criminal Procedure.

A guilty-plea proceeding is a fluid process, subject to revision and restructuring as matters develop. The trial judge was procedurally at liberty, even if he had not previously been apprised of the reservation feature of the plea bargain, to allow that feature to relate back to the time of the entry of the plea, as a condition to it, so long as this was done before the conclusion of the guilty-plea proceeding. By stating that the guilty plea “is made” on that basis, rather than observing that it “was made,” and expressing his acceptance of that status by commenting “[o]kay,” the trial judge appropriately allowed the necessary reordering of things, with the result that he was able to advise LaPointe that his guilty-plea conviction and sentence were “all subject to the reservation of the right to appeal the youthful-offender [issue].”

Rule 1.2, Ala. R.Crim. P., admonishes that the rules “shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unnecessary delay and expense, and to protect the rights of the individual while preserving the public welfare.” The State, in connection with its argument that LaPointe’s counsel did not'properly preserve the issue of the denial of youthful-offender status for appellate review, also argues that La-Pointe has a remedy through Rule 32, Ala. R.Crim. P., because “[i]f the reservation of the issue served as a condition of his guilty plea, a defendant would be able to challenge the voluntariness of his guilty plea in the post-conviction proceeding.” We see no reason to require such procedural circuity and uncertainty of outcome in the face of a record evidencing the trial judge’s understanding that LaPointe had properly and timely preserved his right to appeal the youthful-offender issue.

Accordingly, the judgment of the Court of Criminal Appeals is reversed, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

NABERS, C.J., and SEE, LYONS, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

       Note from the reporter of decisions: On August 12, 2005, on remand from the Alabama Supreme Court, the Court of Criminal Appeals affirmed, without opinion. On Septem-her 2, 2005, that court denied rehearing, without opinion. On October 14, 2005, the Supreme Court denied a second certiorari petition, without opinion (1041908).


author: SHAW, Judge.

text:
    Richard L. HODGES v. STATE of Alabama.
    CR-03-1461.
    Court of Criminal Appeals of Alabama.
    April 29, 2005.

      Booker T. Forte, Jr., Tuscaloosa, for appellant.
    Troy King, atty. gen., and Michael B. Billingsley and Marc A. Starrett, asst, at-tys. gen., for appellee.
   SHAW, Judge.

Richard L. Hodges was convicted of murder made capital because it was committed during the course of a robbery, a violation of § 13A-5^10(a)(2), Ala.Code 1975, and of robbery in the first degree, a violation of § 13A-8-41, Ala.Code 1975. He was sentenced to life imprisonment without the possibility of parole for the capital-murder conviction and to 25 years’ imprisonment for the robbery conviction; the sentences were to run concurrently.

The evidence adduced at trial indicated the following. Between 10:00 a.m. and 11:00 a.m. on the morning of September 1, 2000, Hodges and his codefendant, Kendrick Thomas, were at Hodges’s residence in Nicholsville. Thomas had a pistol with him, and the two discussed committing a robbery. Hodges stated that he knew someone they could rob. Hodges then took Thomas’s pistol and walked across the street to the home of his neighbor, 67-year-old Edward Phillips. Thomas followed. Hodges was apparently angry with Phillips for allegedly making derogatory comments about his mother. Hodges knocked on Phillips’s front door and, after a brief conversation, shot Phillips three times. Thomas then took Phillips’s wallet from his pants pocket and the two returned to Hodges’s residence, where they split $200 in cash they found in the wallet. Thomas then threw the pistol and the wallet into the woods behind Hodges’s residence.

Phillips’s body was discovered by his son late in the afternoon on September 1, 2000, and the Marengo County Sheriffs Department as well as the Alabama Bureau of Investigation (“ABI”) were notified and began investigating. ABI Agent Johnny Tubbs was one of the officers at the scene. During his investigation at the scene, Agent Tubbs learned that Hodges lived across the street from Phillips, and he told Hodges that he wanted to speak with him. According to Agent Tubbs, Hodges stated that he did not want to stay in the area near the dead body, but that he would speak with Agent Tubbs at another location. Agent Tubbs and Hodges then agreed to meet at the Marengo County Sheriffs Department later that night. A Marengo County sheriffs deputy transported Hodges to the sheriffs department later that evening, but Agent Tubbs was still at the scene investigating and was unable to speak with Hodges. Hodges was then taken home by another deputy, but was asked to return to the sheriffs department the following day. The following afternoon, on September 2, 2000, Hodges returned to the sheriffs department and spoke with Agent Tubbs, at which time Hodges confessed to the crime. Following Hodges’s confession, law-enforcement officials arrested Thomas, who also gave a full confession. After his confession, Thomas took law-enforcement officials to the woods behind Hodges’s residence and showed them where he had disposed of the wallet and the pistol.

I.

Hodges contends that the record on appeal is incomplete and that, therefore, he is entitled to a new trial. He argues that the record does not contain a transcript of the preliminary hearing conducted on February 9, 2001, and does not contain a discussion between his attorney and the trial court that occurred during the trial regarding the failure of two of Hodges’s witnesses, Dr. Catherine Boyer and Inez McDaniel, to appear for trial. According to Hodges, absent a transcript of these proceedings, this Court cannot adequately review his claims on appeal.

After the record was submitted on appeal, Hodges filed a motion to supplement the record with the transcripts of hearings he said had been conducted on February 9, 2001, August 8, 2002, October 3, 2003, October 16, 2003, January 27, 2004, and February 13, 2004. The trial court denied the motion, stating that the court reporter had stated that she had nothing with which to supplement the record. Hodges then filed a motion requesting that this Court order the record to be supplemented with the transcripts of the above-listed hearings; this Court denied the motion.

Initially, we note that although Hodges makes a general reference in his brief to the fact that the record does not contain “all of the proceedings held by the trial court” (Hodges’s brief at p. 21), he makes an argument about only the February 9, 2001, preliminary hearing and the discussion between his attorney and the trial court regarding two of his witnesses. Hodges mentions in his brief that proceedings conducted on October 3, 2003, and June 7, 2004, are not included in the record; however, he does so only in passing. He makes no argument with respect to these proceedings. Hodges does not even mention in his brief the proceedings conducted on August 8, 2002, October 16, 2003, January 27, 2004, and February 13, 2004, which were included in his motion to supplement the record. Therefore, to the extent that Hodges intended to argue on appeal that the alleged absence from the record of the proceedings conducted on August 8, 2002, October 3, 2003, October 16, 2003, January 27, 2004, February 13, 2004, and June 7, 2004, entitles him to a new trial, he has failed to comply with Rule 28(a)(10), Ala.R.App.P., and any argument in that regard is deemed to be waived.

With respect to the proceedings about which Hodges does make an argument, i.e., the February 9, 2001, preliminary hearing and the discussion between his attorney and the trial court regarding two of his witnesses, he has failed to show that he was prejudiced by the omission of these proceedings from the record.

“Where the transcript or record is incomplete, two rules have evolved. The first applies to the situation where the appellant is represented on appeal by the same counsel that represented him at trial. In that case, the failure to supply a complete record is not error per se and will not work a reversal absent a specific showing of prejudice. In other words, in such a case, the appellant must show that failure to record and preserve the specific portion of the trial proceedings complained of visits a hardship upon him and prejudices his appeal. The second applies to the situation where the appellant is represented by new counsel on appeal. When he is represented on appeal by counsel other than the attorney at trial, the absence of a substantial and significant portion of the record, even absent any showing of specific prejudice or error, is sufficient to warrant reversal. Ex parte Godbolt, [546 So.2d 991 (Ala.1987),] adopting the rule established in United States v. Selva, 559 F.2d 1303 (5th Cir.1977). We do not advocate a mechanistic approach to situations involving the absence of a complete transcript of the trial proceedings. We must, however, be able to conclude affirmatively that no substantial rights of the appellant have been adversely affected by the omissions from the transcript.’ Ex parte Godbolt, 546 So.2d at 997, quoting with approval, United States v. Selva, 559 F.2d at 1305-06.”

Ingram v. State, 779 So.2d 1225, 1280-81 (Ala.Crim.App.1999), aff'd, 779 So.2d 1283 (Ala.2000). Here, Hodges is represented on appeal by the same counsel who represented him at trial. Therefore, Hodges must make a specific showing of prejudice resulting from the failure to record and preserve the proceedings he claims should have been included the record on appeal.

With respect to the preliminary hearing conducted on February 9, 2001, Hodges has failed to make a specific showing of prejudice. He makes only a broad and general allegation that that hearing included testimony “that bears on whether Hodges’[s] confession was voluntary.” (Hodges’s brief at p. 21.) However, he does not allege what testimony was presented at the preliminary hearing that was relevant to the issue whether his confession was voluntary. Therefore, Hodges has failed to satisfy his burden of showing that the absence from the record of the transcript of the preliminary hearing conducted on February 9, 2001, prejudiced him.

With respect to the alleged discussion between Hodges’s attorney and the trial court regarding the absence of Dr. Boyer and Inez McDaniel, Hodges has again failed to make a specific showing of prejudice. He makes a broad and general allegation that the discussion is “mandatory for the efficacy of Hodges’s appeal” (Hodges’s brief at p. 21), specifically, as to his argument that the absence of Dr. Boyer and McDaniel denied him a fair trial. He also makes a general allegation that the discussion with the trial court included his attorney’s informing the trial court that Dr. Boyer was “on call” and that his attorney had attempted to contact Dr. Boyer by telephone with no success, and his attorney’s telling the trial court that he was leaving his cellular telephone on during the trial so that Dr. Boyer could return his call; however, Hodges fails to set forth in his brief any specific details regarding the discussion between his attorney and the trial court that could have aided him in his argument regarding the absence of Dr. Boyer and McDaniel. Therefore, Hodges failed to satisfy his burden of showing that the absence from the record of a transcript of the discussion regarding two of his witnesses prejudiced him.

In addition, we note that Hodges never moved to supplement the record with this discussion. As noted above, Hodges’s motions to supplement filed in the trial court and in this Court.included various pretrial hearings; however, he did not mention in his motions the alleged discussions during trial regarding Dr. Boyer and McDaniel. “It is the appellant’s duty to point out deficiencies in the record within the time allowed by the Rules of Appellate Procedure. Rule 10(g), Ala.R.App.P.” McGriff v. State, 908 So.2d 961, 992 (Ala.Crim.App.2000), rev’d on other grounds, 908 So.2d 1024 (Ala.2004). Because Hodges never moved to supplement the record with the alleged discussions regarding Dr. Boyer and McDaniel, he cannot now complain that the record is incomplete in this regard.

Because Hodges has failed to show that he has been prejudiced by the omission from the record of the transcripts of the preliminary hearing conducted on February 9, 2001, and the discussion between his counsel and the trial court regarding two of his witnesses, he is not entitled to a new trial on the ground that the record on appeal is incomplete.

II.

Hodges contends that the trial court erred in determining that he was competent to stand trial. He maintains that because he was not taking his psychotropic medication during the trial, he was not competent, and that the testimony he gave at trial showed that he was not competent.

The record reflects that Hodges was indicted in November 2000. In January 2001, Hodges requested a psychiatric evaluation to determine his competency to stand trial and his mental state at the time of the offense, and he requested funds to hire his own psychiatric expert. The trial court granted both motions. Hodges was evaluated at Taylor Hardin Secure Medical Facility in October 2001; he was determined to be mildly mentally retarded and unable to understand the legal proceedings against him. In February 2003, the trial court found Hodges incompetent to stand trial and committed him to Taylor Hardin. In May 2003, after treatment at Taylor Hardin, Hodges was evaluated a second time. During this second evaluation, Hodges reported auditory and visual hallucinations, and his memory appeared to be impaired. However, testing indicated that Hodges was malingering, i.e., exaggerating and/or feigning symptoms, with respect to both his reported hallucinations and his memory impairment. Hodges was found to understand the charges against him and the possible penalties, to have “a good understanding of the roles of various courtroom personnel including the defense attorney, prosecuting attorney, judge, jury, and witnesses” (C. 203), and to be able to reason and testify relevantly on his own behalf. However, because of his intellectual deficits, the examiner, Dr. Brent Willis, noted that “Hodges would have a somewhat more difficult time during cross-examination” if he testified on his own behalf (C. 204), and recommended that “those [who] communicate with him should use easily understandable language and concrete examples when explaining information to him ... [and] should also have him repeat information back in his own words in order to ensure comprehension.” (C. 205.)

In October 2003, the trial court set the trial for February 24, 2004. In December 2003, Hodges again requested a psychiat-rie evaluation to determine his competency to stand trial. In January 2004, the trial court ordered Hodges to be evaluated to determine his competency to stand trial and his competency to waive his Miranda rights. Hodges was evaluated at Taylor Hardin a third time in February 2004, again by Dr. Willis. At that time, Hodges was no longer taking the medication that had been prescribed to him when he was released from Taylor Hardin in May 2003. At trial, Hodges testified that his medication had been discontinued in August 2003. During the February 2004 evaluation, Hodges denied experiencing any auditory or visual hallucinations. Hodges was found to understand the charges against him and possible penalties, as well as the role of his defense attorney, the prosecuting attorney, and witnesses, but he professed not to know the role of the judge or the jury. Dr. Willis stated in his report, however, that Hodges “did not put forth maximum effort while answering questions related to competency” and that he believed that despite Hodges’s claims to the contrary, Hodges had “the capacity to assume the role of defendant” and had “an adequate understanding of all areas related to competency.” (C. 314.)

In March 2002 and October 2003, Hodges was also evaluated by his own psychiatric expert, Dr. Catherine Boyer, to determine his competency to stand trial, his competency to waive his Miranda rights, and his mental state at the time of the offense. In her report, which was submitted to the court in January 2004, Dr. Boyer stated that Hodges was mildly mentally retarded and that he suffered from chronic depression “fueled by post-traumatic stress symptoms stemming from the death of his brother” when he was a child. (C. 259.) Dr. Boyer found that Hodges was competent to stand trial; she stated that Hodges understood the charges against him and the possible penalties and the role of various participants in the criminal process and that “[h]e was able to communicate about his case in a coherent manner.” (C. 261.) However, Dr. Boyer stated that she had learned since the last time she had interviewed Hodges that the medication prescribed to him while he was at Taylor Hardin had been discontinued, and that his competency may have changed because of the discontinuation of the medication. The last time Dr. Boyer interviewed Hodges before submitting her report was in October 2003; however, as noted above, Hodges testified at trial that his medication had been discontinued in August 2003, over two months before Dr. Boyer interviewed him in October 2003 and found him to be competent.

At a pretrial hearing on February 13, 2004, the trial court found, based on the reports by Dr. Willis and Dr. Boyer, that there was no reasonable or bona fide doubt as to Hodges’s competency to stand trial.

“A defendant is mentally incompetent to stand trial or to be sentenced for an offense if that defendant lacks sufficient present ability to assist in his or her defense by consulting with counsel with a reasonable degree of rational understanding of the facts and the legal proceedings against the defendant.” Rule 11.1, Ala. R.Crim.P. “The defendant bears the burden of persuading the court that a reasonable and bona fide doubt exists as to the defendant’s mental competency, and this is a matter within the discretion of the trial court.” Cliff v. State, 518 So.2d 786, 790 (Ala.Crim.App.1987). “In order to overturn the trial judge’s competency determination, we must find that the judge abused his or her discretion.” Tankersley v. State, 724 So.2d 557, 565 (Ala.Crim.App.1998). “ ‘In the absence of any evidence, the mere allegations by counsel that the defendant is incompetent to stand trial do not establish reasonable grounds to doubt the defendant’s sanity and warrant an inquiry into his competency.’” Id., quoting Cliff, 518 So.2d at 791.

“ ‘[Njot every manifestation of mental illness demonstrates incompetence to stand trial; rather, the evidence must indicate a present inability to assist counsel or understand the charges.’ [Card v. Singletary, 981 F.2d 481] at 487-88 [ (11th Cir.1992) ] (quoting United States ex rel. Foster v. DeRobertis, 741 F.2d 1007, 1012 (7th Cir.), cert. denied, 469 U.S. 1193, 105 S.Ct. 972, 83 L.Ed.2d 975 (1985)). Similarly, neither low intelligence, mental deficiency, nor bizarre, volatile, and irrational behavior can be equated with mental incompetence to stand trial. McCune v. Estelle, 534 F.2d 611, 612 (5th Cir.1976). The fact that a defendant has been treated with anti-psychotic drugs does not per se render him incompetent to stand trial. Fallada [v. Dugger], 819 F.2d [1564] at 1569 [(11th Cir.1987)].”

Medina v. Singletary, 59 F.3d 1095, 1107 (11th Cir.1995).

Nothing in the record indicates the existence of a reasonable or bona fide doubt as to Hodges’s competency to stand trial. Dr. Willis and Dr. Boyer both stated that Hodges understood the charges against him and the possible penalties, as well as the various participants in the criminal process, and they both were of the opinion that Hodges was competent to stand trial. Although Hodges was diagnosed as mildly mentally retarded, low intelligence is not the equivalent of incompetency. Likewise, the fact that Hodges had previously been on medication does not make him incompetent to stand trial, especially in light of the evaluations of Dr. Willis and Dr. Boyer, both of which were conducted after, according to Hodges’s own testimony, his medication had been discontinued. Moreover, although Hodges alleges on appeal that his testimony during trial suggests that he was incompetent, we have reviewed Hodges’s testimony and can find nothing suggesting that Hodges was incompetent.

We find no abuse of discretion on the part of the trial court in concluding that Hodges was competent to stand trial.

III.

Hodges contends that the trial court erred in denying his motion to suppress the confession he made to Agent Tubbs on September 2, 2000, because, he says, the confession was the product of a custodial interrogation and he had not been advised of his Miranda rights. He also argues that the circumstances surrounding his confession as well as his low intelligence rendered involuntary his subsequent waiver of his Miranda rights.

As noted above, Agent Tubbs first spoke with Hodges at the scene on the night of September 1, 2000. During that initial conversation, Agent Tubbs informed Hodges that he wanted to speak with him; Hodges stated that he did not want to remain at the scene; and Agent Tubbs and Hodges then agreed to meet later that evening at the Marengo County Sheriffs Department. A Marengo County sheriffs deputy transported Hodges to the sheriffs department later that evening, but because Agent Tubbs was not present, Hodges was taken home and asked to return the next day. The following afternoon, Hodges returned to the sheriffs department on his own, and Agent Tubbs interviewed him. Agent Tubbs testified that he wanted to interview Hodges because Hodges lived in the area and might have had information regarding the victim; that Hodges was not a suspect in the crime when he initially spoke with Hodges at the scene on the night of September 1, 2000, or when the interview began on the afternoon of September 2, 2000; and that because Hodges was not a suspect in the crime, he did not advise Hodges of his Miranda rights the night' of September 1, 2000, or at the beginning of the interview on September 2, 2000.

Agent Tubbs testified that, during the interview on September 2, 2000, he asked Hodges about the victim and what kind of person the victim was. According to Agent Tubbs, Hodges told him that the victim was a “nasty” person, that' he was “prejudiced,” that he was a “racist,” and that he had spoken “bad” about Hodges’s mother. (C. 281.) Agent Tubbs said that Hodges then began crying and stated, “That’s why I killed him.” (C. 281.) In contrast to Agent Tubbs’s testimony, Hodges testified at trial that when he was interviewed by Agent Tubbs on September 2, 2000, Agent Tubbs stated that the victim was a “nasty guy,” that he knew Hodges had committed the murder, and that Hodges should confess. Hodges stated that, at that point, he confessed.

Immediately after Hodges’s initial confession, Agent Tubbs said, he ceased questioning Hodges and advised Hodges of his Miranda rights; Hodges then signed a waiver-of-rights form and gave a full confession detailing the crime. Agent Tubbs testified that Hodges indicated that he understood his rights; that Hodges was coherent and did not appear to be “mentally slow” (C. 303), but appeared to understand what was being said throughout the interview; that he did not threaten Hodges; and that he did not make any promises to Hodges.

“In Hooks v. State, 534 So.2d 329 (Ala.Cr.App.1987), aff'd, 534 So.2d 371 (Ala.1988), cert. denied, 488 U.S. 1050, 109 S.Ct. 883, 102 L.Ed.2d 1005 (1989), this Court stated:
Miranda warnings are not necessarily required to be given to everyone whom the police question. Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 713, 50 L.Ed.2d 714 (1977). Miranda is only applicable when an individual is subjected to custodial interrogation. Davis v. Allsbrooks, 778 F.2d 168, 170 (4th Cir.1985); Primm v. State, 473 So.2d 1149, 1158 (Ala.Crim.App.), cert. denied, 473 So.2d 1149 (Ala.1985). “By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in a significant way.” Miranda, supra, 384 U.S. at 444, 86 S.Ct. at 1612.
“ ‘There is a distinction which must be made between general interrogation and custodial interrogation since Miranda is inapplicable when interrogation is merely investigative rather than accusative. Kelley v. State, 366 So.2d 1145, 1148 (Ala.Crim.App.1979); Primm, supra, at 1158; Johnston v. State, 455 So.2d 152, 156 (Ala.Crim.App.), cert. denied, 455 So.2d 152 (Ala.1984). This distinction should be made on a case-by-case basis after examining all of the surrounding circumstances. United States v. Miller, 587 F.Supp. 1296, 1299 (W.D.Pa.1984); Johnston, supra, at 156; Warrick v. State, 460 So.2d 320, 323 (Ala.Crim.App.1984); Hall v. State, 399 So.2d 348, 351-52 (Ala.Crim.App.1981); Kelley, supra at 1149.’
“534 So.2d at 347-48 (Ala.Cr.App.1987). See State v. Smith, 715 So.2d 925 (Ala.Cr.App.1998).
“In deciding whether the questioning of a suspect is a custodial interrogation, the following factors should be considered:
“ ‘ “(1) the language used to summon the individual, (2) the extent to which the defendant is confronted with evidence of guilt, (3) the physical surroundings of the interrogation, (4) the duration of the detention, and (5) the degree of pressure applied to detain the individual. United States v. Crisco, 725 F.2d 1228, 1231 (9th Cir.), cert. denied, 466 U.S. 977, 104 S.Ct. 2360, 80 L.Ed.2d 832 (1984).”’
“Hooks v. State, 534 So.2d at 348 (some citations omitted), quoting United States v. Wauneka, 770 F.2d 1434, 1438 (9th Cir.1985). See also State v. Smith, 715 So.2d at 927.
“In Click v. State, 695 So.2d 209 (Ala.Cr.App.1996), cert. denied, 522 U.S. 1001, 118 S.Ct. 570, 139 L.Ed.2d 410 (1997), this Court stated:
“‘It is well established that “the prosecution may not use statements, whether exculpatory or inculpatory, of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). However, the safeguards required by Miranda are required only if the defendant is in custody when questioned. Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984); Landreth v. State, 600 So.2d 440, 444 (Ala.Cr.App.1992).
“ ‘... [T]he fact that the questioning occurred at the police station does not necessarily lead to a conclusion that appellant was in custody for Miranda purposes.
“ ‘ “[Pjolice officers are not required to administer Miranda warnings to everyone they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.”
‘Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977).’
695 So.2d at 216-17.”

Broadnax v. State, 825 So.2d 134, 165-66 (Ala.Crim.App.2000), aff'd, 825 So.2d 233 (Ala.2001). “The absence of Miranda warnings does not forbid the introduction in evidence of statements by a defendant that are not the product of custodial interrogation.” Seagroves v. State, 726 So.2d 738, 742 (Ala.Crim.App.1998). “An unsolicited remark, not in response to any interrogation, does not fall within the scope of the Miranda rule.” Ray v. State, 809 So.2d 875, 888 (Ala.Crim.App.2001).

“The question of whether a suspect has been subjected to custodial interrogation requiring Miranda warnings is ‘not an easy one,’ and the trial court’s findings on conflicting evidence must be given great weight. Harris v. State, 376 So.2d 773, 776 (Ala.Cr.App.), cert. denied, 376 So.2d 778 (Ala.1979). ‘The trial judge’s finding of admissibility “will not be disturbed on appeal unless it is evident that the determination was palpably contrary to the weight of the evidence.’” Watkins v. State, 497 So.2d 1153, 1154 (Ala.Cr.App.1986) (quoting Ex parte Singleton, 465 So.2d 443, 445 (Ala.1985)). The determination of the admissibility of the defendant’s confession was within the sound discretion of the trial court, which was in the best position to determine the credibility of the voir dire witnesses by observing their testimony and demeanor. See Lindsey v. State, 456 So.2d 383, 389 (Ala.Cr.App.1983), aff'd, 456 So.2d 393 (Ala.1984), cert. denied, 470 U.S. 1023, 105 S.Ct. 1384, 84 L.Ed.2d 403 (1985). This determination will not be disturbed on appeal if supported by a preponderance of the evidence. Lindsey; 1 La-Fave & Israel, [Criminal Procedure ], at § 10.4(b) [ (1984) ].”

Finch v. State, 518 So.2d 864, 871 (Ala.Crim.App.1987). See also Smolder v. State, 671 So.2d 757 (Ala.Crim.App.1995).

“ ‘[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.Cr.App.1991) (citations omitted). ‘ “A judge abuses his discretion only when his decision is based on an erroneous conclusion of law or where the record contains no evidence on which he rationally could have based his decision.”’ Dowdy v. Gilbert Engineering Co., 372 So.2d 11, 12 (Ala.1979) (quoting Premium Service Corp. v. Sperry & Hutchinson, Co., 511 F.2d 225 (9th Cir.1975)).”

State v. Jude, 686 So.2d 528, 530 (Ala.Crim.App.1996).

Hodges came to the sheriffs department voluntarily on September 2, 2000. He was not under arrest; he was never told that he was not free to leave; and nothing in the record indicates that he was not free to leave or that he was in custody when the interview began. Agent Tubbs testified that he was interviewing Hodges because Hodges lived in the area where the crime occurred and he thought Hodges might have information about the victim; at that time, Agent Tubbs believed that Hodges was a possible witness to the crime, not a suspect in the crime. Although Hodges testified that he confessed only after Agent Tubbs accused him of committing the murder, Agent Tubbs testified that he never accused Hodges of committing the murder, but merely asked Hodges what kind of person the victim was, at which point, Hodges spontaneously confessed. Resolving all credibility choices in favor of the trial court’s ruling, we conclude that Hodges’s initial confession was not the product of custodial interrogation and, thus, that he was not entitled to Miranda warnings at that time.

It was only after Hodges initially confessed that the interview became a custodial interrogation. At that point, however, Agent Tubbs advised Hodges of his Miranda rights and Hodges signed a waiver-of-rights form before making a full confession detailing the crime.

“Whether a waiver of Miranda rights is voluntarily, knowingly, and intelligently made depends on the facts of each case, considering the totality of the circumstances surrounding the interrogation, including the characteristics of the accused, the conditions of the interrogation, and the conduct of the law-enforcement officials conducting the interrogation. Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986); Houston v. State, 798 So.2d [704,] 706 [(Ala.Crim.App.2000)]; Click v. State, 695 So.2d 209 (Ala.Crim.App.1996). The trial court’s finding that a statement was voluntary need be supported only by a preponderance of the evidence; it is given great deference on appeal and will not be overturned unless it is palpably contrary to the weight of the evidence or is manifestly wrong. See Taylor v. State, 808 So.2d 1148 (Ala.Crim.App.), aff'd, 808 So.2d 1215 (Ala.2001); Dixon v. State, 588 So.2d 903 (Ala.1991); Marlowe v. State, 854 So.2d 1182 (Ala.Crim.App.2002); Magwood v. State, 494 So.2d 124 (Ala.Crim.App.1985), aff'd, 494 So.2d 154 (Ala.1986).”

Foldi v. State, 861 So.2d 414, 421-22 (Ala.Crim.App.2002).

“Having a low IQ will not render a waiver ineffective unless the individual’s IQ is so low that the person attempting to waive his rights absolutely cannot understand his Miranda rights. Arnold v. State, 448 So.2d 489 (Ala.Crim.App.1984).
“ “We have often held that “the fact that a defendant may suffer from a mental impairment or low intelligence will not, without other evidence, render a confession involuntary.” See Colorado v. Connelly, 479 U.S. 157, 163-65, 107 S.Ct. 515, 520, 93 L.Ed.2d 473 (1986); Baker v. State, 599 So.2d 60, 63 (Ala.Cr.App.1991), State v. Austin, [596 So.2d 598 (Ala.Cr.App.1991)] supra, Holladay v. State, 549 So.2d 122 (Ala.Cr.App.1988), aff'd, 549 So.2d 135 (Ala.1989), cert. denied, 493 U.S. 1012, 110 S.Ct. 575, 107 L.Ed.2d 569 (1989).’
“Youngblood v. State, 656 So.2d 385, 387 (Ala.Cr.App.1993).
“ ‘[A] defendant’s mental impairment, even if it exists, is merely one factor affecting the validity of his waiver of rights and the voluntariness of his confession. See generally Annot., 8 A.L.R.4th 16 (1981). “While an accused’s intelligence and literacy are important factors to be considered in determining whether he intelligently and voluntarily waived his constitutional rights and made a confession, weak intellect or illiteracy alone will not render a confession inadmissible.” Hobbs v. State, 401 So.2d 276, 282 (Ala.Cr.App.1981).’
“Whittle v. State, 518 So.2d 793, 796-97 (Ala.Cr.App.1987).”

Dobyne v. State, 672 So.2d 1319, 1337 (Ala.Crim.App.1994), aff'd, 672 So.2d 1354 (Ala.1995).

Although Hodges was diagnosed as mildly mentally retarded, both Dr. Willis and Dr. Boyer, who evaluated Hodges to determine his competency to waive his Miranda rights, were of the opinion that Hodges’s mental retardation was not so extreme as to render him incapable of understanding his rights and voluntarily waiving them. Moreover, nothing in the circumstances surrounding Hodges’s confession indicates that Hodges did not understand his rights or voluntarily waive them. Resolving all credibility choices in favor of the trial court’s ruling, the evidence indicated that Hodges’s encounter with Agent Tubbs was initially consensual, with Hodges voluntarily coming to the sheriffs department for an interview. After Hodges spontaneously confessed to the murder, Agent Tubbs advised Hodges of his Miranda rights and Hodges signed a waiver-of-rights form. Agent Tubbs testified that he did not threaten Hodges or promise Hodges anything; that Hodges indicated that he understood each of his rights; and that Hodges did not appear to be mentally slow. Based on this evidence, we conclude that Hodges voluntarily waived his Miranda rights.

The trial court did not abuse its discretion in denying Hodges’s motion to suppress his confession.

IV.

Hodges contends that the trial court erred in not suppressing “[a]ll of the State’s evidence, including Kendrick Thomas’[s] confession, the recovery of Phillips’[s] wallet, and the recovery of Thomas’fe] gun” which, he says, were the fruit of his involuntary confession. (Hodges’s brief at pp. 23-24.)

Hodges’s argument in this regard does not comply with Rule 28(a)(10), Ala.R.App.P., which requires that an argument contain “the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on.” Hodges provides no citations to the parts of the record relied on in support of this claim; he does not cite to the portions of the record where Thomas’s confession, Phillips’s wallet, or Thomas’s gun were introduced into evidence or to any objection or motion he made with respect to these items of evidence. See, e.g., Hart v. State, 852 So.2d 839, 848 (Ala.Crim.App.2002) (“By failing to include any citations to the record on this issue, Hart has failed to comply with Rule 28(a)(10), Ala.R.App.P., and has waived this claim for purposes of appellate review.”). In addition, Hodges cites to only a single case for the general proposition that “[a]ll evidence that derives from, the poisonous tree (Hodges’fs] confession) must be excluded.” (Hodges’s brief at p. 24.) “Authority supporting only ‘general propositions of lav/ does not constitute a sufficient argument for reversal.” Beachcroft Props., LLP v. City of Alabaster, 901 So.2d 703, 708 (Ala.2004), quoting Geisenhoff v. Geisenhoff, 693 So.2d 489, 491 (Ala.Civ.App.1997). “It is not the job of the appellate courts to do a party’s legal research. Nor is it the function of the appellate courts to ‘make and address legal arguments for a party based on undeli-neated general propositions not supported by sufficient authority or argument.’” Pifen Indus., Inc. v. Consolidated Indus., Inc., 740 So.2d 1108, 1110 (Ala.Civ.App.1999) (citations omitted). See also Ellison v. Green, 775 So.2d 831 (Ala.Civ.App.2000) (citations to only general propositions of law not sufficient to satisfy Rule 28(a)(10), Ala.R.App.P.). Because Hodges’s argument fails to comply with Rule 28(a)(10), this issue is deemed to be waived.

Moreover, even if this issue was not waived, because we have already determined that Hodges’s confession was voluntary and properly admitted into evidence, see Part III of this opinion, all of the evidence flowing from that confession was likewise properly admitted into evidence.

V.

In his final two issues, Hodges contends (1) that the prosecutor’s cross-examination of him regarding Dr. Boyer’s written report “was violative of the hearsay rule and ... denied [him] due process and equal protection” (Hodges’s brief at p. 25); and (2) that he was denied due process, equal protection, and a fair trial when two witnesses he had subpoenaed, Dr. Boyer and Inez McDaniel, failed to appear for trial.

Hodges’s arguments do not comply with Rule 28(a)(10), AIa.R.App.P. In each of his claims, Hodges cites only a single case; however, he engages in no discussion whatsoever as to how those cases are relevant to the particular issues raised or supportive of his contentions. Merely citing a case with no discussion as to its relevance is insufficient to satisfy Rule 28(a)(10). See Spradlin v. Spradlin, 601 So.2d 76, 78-79 (Ala.1992) (holding that citation to a single case with no argument as to how that case supports the appellant’s contention on appeal was insufficient to satisfy Rule 28(a)(5), Ala.R.App.P., now Rule 28(a)(10), Ala.R.App.P.). See also Water Works & Sewer Bd. of Selma v. Randolph, 838 So.2d 604, 605 (Ala.2002) (opinion on application for rehearing) (“Merely quoting a statute and emphasizing certain parts with bold type does not constitute a properly stated and supported contention.”).

“We have stated that it is not the function of this court to do a party’s legal research. See Henderson[ v. Alabama A & M University], 483 So.2d [392,] 392 [ (Ala.1986) ]. Similarly, we cannot create legal arguments for a party based on undelineated general propositions unsupported by authority or argument. Ala.R.App.P. 28(a)(5) [now Rule 28(a)(10), Ala.R.App.P.]; Brittain v. Ingram, 282 Ala. 158, 209 So.2d 653 (1968) (analyzing the predecessor to Ala.R.App.P. 28); Ex parte Riley, 464 So.2d 92 (Ala.1985).”

Spradlin, 601 So.2d at 78-79.

Because Hodges has failed to comply with Rule 28(a)(10),--his final two issues are deemed to be waived.

VI.

Although Hodges does not so argue on appeal, the State correctly points out in its brief to this Court that the robbery underlying Hodges’s capital-murder conviction is the same robbery underlying Hodges’s robbery conviction; thus, Hodges’s convictions for both capital murder and the lesser-included offense of robbery in the first degree violate the principles of double jeopardy. As this Court explained in Buford v. State, 891 So.2d 423 (Ala.Crim.App.2004):

“It is well settled that ‘[a] defendant cannot be convicted of both a capital offense and a lesser offense that is included in the capital charge.’ Adams v. State, [Ms. CR-98-0496, August 29, 2003] — So.2d -, - (Ala.Crim.App.2003). See also Turner v. State, 924 So.2d 737 (Ala.Crim.App.2002). Section 13A-1-8(b), Ala.Code 1975, provides, in pertinent part:
“ ‘(b) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
“ ‘(1) One offense is included in the other, as defined in Section 13A-1-9.’
“Such a double-jeopardy transgression implicates the jurisdiction of the trial court and must be noticed by this Court regardless of whether it was raised. See, e.g., Straughn v. State, 876 So.2d 492 (Ala.Crim.App.2003) (opinion on return to remand and on application for rehearing); Borden v. State, 711 So.2d 498 (Ala.Crim.App.1997), aff'd, 711 So.2d 506 (Ala.1998); and Rolling v. State, 673 So.2d 812 (Ala.Crim.App.1995).”

891 So.2d at 435-36.

Based on the foregoing, we affirm Hodges’s conviction and sentence for capital murder. However, we reverse Hodges’s conviction and sentence for first-degree robbery and remand this case for the trial court to vacate Hodges’s conviction and sentence for that offense. Due return shall be filed with this Court within 28 days of the date of this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH DIRECTIONS.

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

      . See Part III of this opinion.

      . In exchange for his testimony against Hodges, Thomas pleaded guilty to robbery in the first degree for his involvement in the crime.

      . The record indicates that the June 7, 2004, hearing referenced by Hodges in his brief was the sentencing hearing for Hodges's robbery conviction. However, because we must reverse Hodges’s robbery conviction, see Part VI of this opinion, any argument regarding the absence from the record of the transcript of the sentencing hearing for the robbery conviction is moot.

      . We note that transcripts of the proceedings conducted on October 16, 2003, and February 13, 2004, are, in fact, included in the record on appeal.

      .We note that Hodges did not originally request that the transcript of the preliminary hearing be included in the record. The record reflects that Hodges requested and received funds to pay for his own court reporter for the preliminary hearing; the court reporter was Debbie Randall. (C. 48.) However, on the Reporter's Transcript Order, Hodges requested only those hearings for which Brenda Packer was the court reporter.

      . See Part V of this opinion.

      . Moreover, as explained in Part V of this opinion, Hodges's argument in this regard fails to comply with Rule 28(a)(10), Ala. R.App.P.; thus, it is deemed to be waived for purposes of appellate review.

      . Hodges also states in his brief that ''[t]he trial court failed to conduct a competency hearing to determine Hodges'[s] competency.” (Hodges’s brief at p. 24.) However, Hodges makes no argument in support of this single sentence. Rather, his entire argument is centered on the propriety of the trial court's finding that he was competent. Therefore, to the extent that Hodges intended to argue on appeal that the trial court erred in not conducting a competency hearing, he has failed to comply with Rule 28(a)(10), Ala.R.App.P., and that argument is deemed to be waived.

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

      . See Part III of this opinion.

      .Dr. Boyer did not testify at trial. See Part V of this opinion.

      . The testimony at the suppression hearing was conflicting on this point. Deputy Tommy Reese testified that he transported Hodges to the sheriff's department the night of September 1, 2000, and that Agent Tubbs interviewed Hodges at that time. According to Deputy Reese, Agent Tubbs spoke with Hodges briefly, asking only whether Hodges, living across the street from the crime scene, had seen anything that day. However, Agent Tubbs testified that he did not interview Hodges at the sheriff's department that night. According to Agent Tubbs, by the time he arrived at the sheriff’s department, Hodges had already gone home.

      . Hodges did not testify at the suppression hearing.

      . With respect to the second claim, Hodges makes a passing reference to the Alabama Constitution, without any indication as to which part of the Constitution he is relying upon, and a passing reference to the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. However, as noted in Part IV of this opinion, citations to only general propositions of law are not sufficient to satisfy Rule 28(a)(10).

       Note from the reporter of decisions: On June 17, 2005, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On August 5, 2005, that court denied rehear-tag, without opinion. On October 14, 2005, the Supreme Court denied certiorari review, without opinion (1041749).