author: SHAW, Judge.

text:
    Charles TINKER v. STATE of Alabama.
    CR-04-0126.
    Court of Criminal Appeals of Alabama.
    Aug. 26, 2005.

      Edward D. Tumlin, Birmingham, for appellant.
    Troy King, atty. gen., and Daniel W. Madison, asst. atty. gen., for appellee.
   SHAW, Judge.

Charles Tinker was indicted for conspiracy to traffic in cocaine, a violation of § 13A-12-204, Aa.Code 1975 (count 1); attempted murder of Andre Thomas, a violation of §§ 13A-6-2 and 13A-4-2, Aa. Code 1975 (count 2); two counts of capital murder — murder for hire in the killing of Jimmy “Tiger” Taylor and Ronald Thomas, violations of § 13A-5-40(a)(7), Aa. Code 1975 (counts 3 and 4); and trafficking in cannabis/marijuana, a violation of § 13A-12-231, Aa.Code 1975 (count 5). The jury found Tinker guilty as charged in counts 2-5. With respect to count 1, the jury returned a verdict form indicating that it had found Tinker guilty of trafficking in cocaine. (See discussion in Part I.A. of this opinion.) Tinker was sentenced to life imprisonment without the possibility of parole on the two capital convictions and to life imprisonment on the three remaining convictions.

I.

Tinker contends that the trial court improperly overruled his motion for a judgment of acquittal. Specifically, Tinker contends that the State did not present sufficient evidence to convict him of each of the charged offenses. (Issue TV in Tinker’s appellate brief.)

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

Any “inconsistencies and contradictions in the State’s evidence, as well as [any] conflict between the State’s evidence and that offered by the appellant, [goes] to the weight of the evidence and [creates a question] of fact to be resolved by the jury.” Rowell v. State, 647 So.2d 67, 69-70 (Ala.Crim.App.1994). “ ‘ “[T]he credibility of witnesses and the weight or probative force of testimony is for the jury to judge and determine.” ’ ” Johnson v. State, 555 So.2d 818, 820 (Ala.Crim.App.1989), quoting Harris v. State, 513 So.2d 79, 81 (Ala.Crim.App.1987), quoting in turn Byrd v. State, 24 Ala.App. 451, 451, 136 So. 431, 431 (1931). “We have repeatedly held that it is not the province of this court to reweigh the evidence presented at trial.” Johnson, 555 So.2d at 820. “ ‘When the jury has passed on the credibility of evidence tending to establish the defendant’s guilt, this Court cannot disturb its finding.’ ” Rowell, 647 So.2d at 69, quoting Collins v. State, 412 So.2d 845, 846 (Ala.Crim.App.1982). Furthermore, “ ‘[t]his Court must view the evidence in the light most favorable to the State, and “draw all reasonable inferences and resolve all credibility choices in favor of the trier of fact.”’” D.L. v. State, 625 So.2d 1201, 1204 (Ala.Crim.App.1993), quoting Woodberry v. State, 497 So.2d 587, 590 (Ala.Crim.App.1986). “Any issues regarding the weight and credibility of the evidence are not reviewable on appeal once the state has made a prima facie case.” Jones v. State, 719 So.2d 249, 255 (Ala.Crim.App.1996).

A.

Tinker was charged with conspiracy to traffic in cocaine in count 1 of the indictment, which stated that Tinker

“did between January 1994 and November 1999, agree with other persons including but not limited to David Phillips, Femark Dewayne Robinson, Edward Long and Glenis Latham to knowingly sell or deliver a quantity of cocaine, a controlled substance, in excess of 28 grams, and in furtherance of this conspiracy did attempt to kill Andra Thomas and hire the killing of Jimmy ‘Tiger’ Taylor while within the Bessemer Division, Jefferson County, Alabama, said conduct occurring after July 23, 1987, in violation of Section 20-2-80 of the Code of Alabama, 1975.”

(C. 2.) Tinker argues on appeal that the State did not make a prima facie case— that there was no corroboration of the testimony of his accomplices; that no cocaine was found or analyzed; that there was no evidence presented as to a conspiracy involving Andre Thomas; that the conspiracy charge was based on speculation and hearsay; and that there was insufficient evidence indicating a conspiracy or an overt act. Specifically, Tinker contends that “[e]ven though various people testified to dealing with [Tinker] in marijuana and cocaine, no independent evidence tended to connect [Tinker] with these transaction^.” (Tinker’s brief at p. 23.)

Our review of the record reveals that the following evidence was presented at trial regarding this charge: Edward Long testified that sometime “around 1988” he and Tinker began doing “drug deals” together and that Tinker was “the boss.” (R. 339-40.) He stated that Tinker “would give [him] drugs and [he] would sell them and pay [Tinker] for [the drugs].” (R. 340.) Edward Long also testified that during and after January 1994, he, along with David Phillips and Femark Robinson, would get cocaine from Tinker and sell it and that the cocaine was housed at “Glenis Latham’s place.” (R. 348^49.)

Edward Long also testified that Andre Thomas had “been selling cocaine for Charles Tinker” (R. 354) and that in 1994 Andre Thomas owed Tinker approximately $2,800, and Andre Thomas “had started to dodge [Edward Long] because he wasn’t going to pay the money.” (R. 349.) He also testified that there had been “a couple [of] nights [when they had] assembled and rode out looking for [Andre], but [they] never found him” (R. 349) and then one morning, Tinker telephoned Edward Long and told him that “he had gotten him” at Charlie’s Service Station on Dartmouth. (R. 353.)

Edward Long also testified that after Tinker shot Andre Thomas, Jimmy “Tiger” Taylor sent word to Tinker that Andre Thomas was his friend and that “it wasn’t over” (R. 355), and Jimmy Taylor threatened to “snatch” Tinker’s family. (R. 355.) Edward Long testified that this angered Tinker and he “assembled a party of people” to find and kill Jimmy Taylor. (R. 356.) When they received word that Jimmy Taylor was at a barbershop in Bessemer, they went to the barbershop and David Phillips and Femark Robinson killed Jimmy Taylor and were paid for their part in Jimmy Taylor’s death. Edward Long’s testimony was corroborated by that of Ronald Eaton, Corey Hall, Officer Paul Williams, and Det. William Byess.

Ronald Eaton, whose only connection with this case is that he was one of Tinker’s cellmates at the Jefferson County jail, testified that Tinker had told him that Andre Thomas owed him some money and that when he saw Andre Thomas, he shot him. Ronald Eaton also testified that Tinker had told him that he had paid David Phillips and Femark Robinson to kill Jimmy Taylor.

Officer Paul Williams of the Bessemer Police Department testified that on May 26, 1994, he was dispatched to a shooting at a gasoline service station located at 2806 Dartmouth Avenue in Bessemer. Officer Williams testified that when he arrived at the scene, he found the victim lying just outside the first bay door on the southside of the service station, that the victim had sustained wounds to his head and his abdomen, and that the victim identified himself as Andre Thomas. Officer Williams stated that Andre Thomas told him that “Charles Tinker shot him.” (R. 217.)

William Byess was a detective with the criminal division of the Bessemer Police Department in 1994 when Andre Thomas was shot, and he was the detective who was initially in charge of the investigation into Andre Thomas’s shooting. Det. Byess testified that he knew that Andre Thomas was a drug trafficker in the Bessemer area and that during his investigation of Andre Thomas’s shooting he learned that there was a drug connection between Andre Thomas and Tinker.

Corey Hall, Jimmy Taylor’s half brother, testified that Jimmy Taylor was a drug dealer and an enforcer; that Jimmy Taylor dealt cocaine; and that Jimmy Taylor and Andre Thomas were friends. Corey Hall also testified that he was present when David Phillips entered the barbershop, placed a gun to Jimmy Taylor’s head and began shooting, and that there was another man with David Phillips, but that he did not get a good look at the second man’s face.

Section 12-21-222, Ala.Code 1975, provides:

“A conviction of felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient.”

It is well settled that the corroborating evidence need only be slight and can be circumstantial — it does not have to be strong enough by itself to warrant a conviction — but it must tend to connect the accused with the commission of the crime. See Arthur v. State, 711 So.2d 1031, 1059-60 (Ala.Crim.App.1996).

As previously noted, Tinker was charged with conspiracy to traffic in cocaine. The indictment alleged that Tinker and others agreed to sell cocaine. There were no factual allegations that Tinker actually trafficked in cocaine. Tinker’s argument that there was no cocaine found or analyzed is without merit because the State did not have to prove trafficking, only conspiracy to traffic. Thus, it was not necessary that the State actually present any cocaine in support of the allegations in count 1 of the indictment.

Edward Long’s testimony established the following: That Tinker and several others were involved in selling cocaine; that Andre Thomas was one of the individuals who sold cocaine for Tinker; that Andre Thomas owed Tinker $2,800 for the cocaine; that when it did not appear that Andre Thomas planned to pay Tinker the money he owed him, Tinker shot Andre Thomas; and that Tinker paid to have Jimmy Taylor killed when Jimmy Taylor threatened Tinker after Jimmy Taylor’s friend, Andre Thomas, had been shot. Tinker’s arguments — that there was no evidence presented as to a conspiracy involving Andre Thomas; that the conspiracy charge was based on speculation and hearsay; and that there was insufficient evidence indicating a conspiracy or overt act — are meritless in light of Edward Long’s testimony.

Additionally, Tinker’s argument that there was no corroboration of Edward Long’s testimony is meritless. Ronald Eaton corroborated Edward Long’s testimony when he testified that Tinker had told him that he shot Andre Thomas because Andre Thomas owed Tinker money and that Tinker said he paid David Phillips and Femark Robinson to kill Jimmy Taylor. Officer Williams corroborated Edward Long’s testimony when he testified that when he responded to the scene of the shooting, the victim, Andre Thomas, told him that “Charles Tinker shot him.” (R. 217.) Det. Byess corroborated Edward Long’s testimony when he testified that he knew that Andre Thomas was a drug trafficker and he learned that there was a drug connection between Tinker and Andre Thomas. Corey Hall corroborated Edward Long’s testimony when he testified that Jimmy Taylor dealt cocaine; that Andre Thomas and Jimmy Taylor were friends; and that he witnessed David Phillips enter the barbershop and shoot Jimmy Taylor.

In light of the foregoing, we conclude that there was sufficient evidence to support a conviction for conspiracy to traffic in cocaine — Tinker, Edward Long, Andre Thomas, and others were involved in the sale of cocaine, and both Tinker’s attempt to kill Andre Thomas because Andre Thomas owed Tinker money for cocaine and the murder-for-hire of Jimmy Taylor were in furtherance of this conspiracy to traffic in cocaine.

Although we find that there was sufficient evidence indicating that Tinker conspired to traffic in cocaine, our review of the record reveals that this was not the crime for which he was convicted.

As previously noted, count 1 of the indictment charged Tinker with conspiracy to traffic in cocaine, stating that Tinker

“did between January 1994 and November 1999, agree with other persons including but not limited to David Phillips, Femark Dewayne Robinson, Edward Long and Glenis Latham to knowingly sell or deliver a quantity of cocaine, a controlled substance, in excess of 28 grams, and in furtherance of this conspiracy did attempt to kill Andra [sic] Thomas and hire the lulling of Jimmy ‘Tiger’ Taylor while within the Bessemer Division, Jefferson County, Alabama, said conduct occurring after July 23, 1987, in violation of Section 20-2-80 of the Code of Alabama, 1975.”

(C. 2.)

At trial, the trial court properly charged the jury on conspiracy to traffic in cocaine. The trial court’s charge to the jury stated, in pertinent part:

“The defendant is charged with criminal conspiracy. A person commits the crime of criminal conspiracy if with the intent that conduct constituting an offense be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one or more of such persons does an overt act to effect an objective of the agreement.
“To convict, the State must prove beyond a reasonable doubt each of the following elements of criminal conspiracy: One, that the defendant Charles Tinker agreed with David Phillips, Fe-mark Robinson, Edward Long, and Glenis Latham to engage [in] or cause to be performed conduct constituting the offense of trafficking cocaine — excuse me. That the defendant entered into the agreement with David Phillips, Fe-mark Robinson, Edward Long, Glenis Latham with the intent that conduct constituting the offense of trafficking in cocaine would be engaged in or would be caused to be performed, and three, that the defendant or the co-conspirators did an overt act to affect an object of the agreement.
“The person commits the crime of trafficking in cocaine if he knowingly either sells, manufactures, delivers, brings into the State or is in actual or constructive possession of cocaine in excess of 28 grams. If you find from the evidence that the State has proven beyond a reasonable doubt each of the above elements of the offense of conspiracy to traffic in cocaine, then you should find the defendant guilty of said offense.
“If you find the State has failed to prove beyond a reasonable doubt each of the above elements of the offense of conspiracy to traffic in cocaine, then you should find the defendant not guilty of the offense.”

(R. 964-65.)

However, the verdict form provided to the jury for count 1 stated:

“We, the jury, find the defendant, Charles Tinker, guilty of trafficking cocaine, as charged in count one of the indictment.
“FOREPERSON
“DATE
“We, the jury, find the defendant, Charles Tinker, not guilty of trafficking cocaine, as charged in count one of the indictment.
“FOREPERSON
“DATE”

(C. 183, R. 975.) When the jury delivered its verdict, the foreperson of the jury stated:

“Count one. We, the jury, find the defendant, Charles Tinker, guilty of trafficking cocaine, as charged in count one of the indictment.”

(R. 986.) Thereafter, the trial court adjudged Tinker guilty of “trafficking cocaine” and sentenced him to life imprisonment for this conviction. (C. 230.)

Although the issue of the discrepancy between the offense charged in count 1 of the indictment and the verdict the jury returned on Count 1 was not raised on appeal, we will address this issue ex mero motu because it implicates the jurisdiction of the trial court to pronounce judgment on the verdict returned on count 1.

In Pittman v. State, 621 So.2d 351, 352 (Ala.Crim.App.1992), Pittman was indicted for attempted murder, and “he was erroneously convicted of ‘intent to commit murder.’ ” The trial court had instructed the jury on “intent to commit murder” and “attempted murder” and “[t]he verdict form submitted to the jury contained a charge of ‘intent to commit murder’ rather than ‘attempted murder.’ ” Pittman, 621 So.2d at 352. In reversing Pittman’s conviction, this Court stated:

“Although ‘intent’ to commit a crime is a necessary element within any ‘attempt’ statute, it is not, in and of itself, a crime to possess intent; hence, the court was without jurisdiction to pronounce judgment on the verdict finding the defendant guilty of ‘intent to commit murder.’ Accordingly, the trial court’s judgment on the ‘intent to commit murder’ conviction is null and void and will not support an appeal.”

Pittman, 621 So.2d at 352-53.

In Edwards v. State, 570 So.2d 252 (Ala.Crim.App.1990), Edwards was indicted for unlawful sale of a controlled substance (marijuana), and the trial court instructed the jury on the offense of illegal sale of marijuana, but the verdict form submitted to the jury listed the offense as “possession of marijuana” and the jury returned a verdict finding Edwards guilty of “possession of marijuana.” Edwards, 570 So.2d at 253. In reversing Edwards’s conviction, this Court stated:

“ ‘The verdict in a criminal case must be responsive to the offense charged in the indictment, but surplusage can be disregarded if the intent of the jury is clear. A jury verdict will be held to be sufficient if its meaning can be reasonably ascertained from the words used. Where the error in the charge is in the form of the verdict and there is not prejudice to the rights of the accused the error is harmless.’
“Peterson v. State, 508 S.W.2d 844, 849 (Tex.Cr.App.1974). See also Rodgers v. State, 649 S.W.2d 371, 373-376 (Tex. App. 3 Dist.1983).
“In the present case, the jury’s verdict was not responsive to the offense charged in the indictment and the jury’s intent is not clear; therefore, the language stating that the appellant was found guilty of the ‘possession of marijuana’ cannot be held to be surplusage.

“In State v. Whiting, 41 Ohio App.3d 107, 534 N.E.2d 904 (1987), the defendant argued on appeal that the jury verdict was insufficient to sustain his sentence for a second or third degree felony. The defendant in Whiting, supra, was indicted for aggravated trafficking, wherein the drug is a Schedule I or II controlled substance, but the jury verdict form stated that the defendant was guilty of simple trafficking in drugs, wherein the drug is a Schedule III, IV, or V controlled substance. The court found that ‘[t]he discrepancy between the indictment and the verdict form is sufficient to cast doubt upon the jury’s verdict and create the need for a new trial because, under the facts of the case on review, trafficking in drugs cannot be a lesser-included offense of aggravated trafficking.’

“ ‘As Chief Justice Marshall stated:
“ ‘ “The rule that a man shall not be charged with one crime and convicted of another, may sometimes cover real guilt, but its observance is essential to the preservation of innocence. It is only a modification of this rule, that the accusation on which the prosecution is founded, should state the crime which is to be proved, and state such a crime as will justify the judgment to be pronounced.”
‘The Hoppet v. United States, 7 Crunch (11 U.S.) 389, 394, 3 L.Ed. 380, 382 (1813).’
“Clements v. State, 370 So.2d 723, 728 (Ala.1979), overruled, Beck v. State, 396 So.2d 645 (Ala.1980). See also Ex parte Tomlin, 443 So.2d 59, 64-65 (Ala.1983), cert. denied, 466 U.S. 954, 104 S.Ct. 2160, 80 L.Ed.2d 545 (1984), Johnson v. State, 399 So.2d 859, 865 (Ala.Cr.App.1979), affirmed in part, reversed in part on other grounds, 399 So.2d 873 (Ala.1979).
“Because the appellant was charged with the unlawful sale of a controlled substance but was convicted, pursuant to the jury verdict forms, of the possession of marijuana, where the latter could not be a lesser included offense of the former, the judgment is due to be reversed and the cause remanded for a new trial.”

Edwards, 570 So.2d at 253-54.

Here, although the trial court’s charge to the jury properly contained an instruction regarding trafficking in cocaine in order to assist the jury in determining whether Tinker was guilty of conspiracy to traffic in cocaine, it is conceivable that a layperson on the jury could have easily construed the instructions as requiring the jury to determine whether Tinker was guilty of trafficking in cocaine, especially since the verdict form provided to the jury gave the jury two choices on count 1 — that the jury could find Tinker either guilty or not guilty of “trafficking cocaine, as charged in count one of the indictment.” (C. 183, R. 975.) Thus, under the facts of this case, the jury’s intent is unclear.

Moreover, trafficking in cocaine is not, under the circumstances in this case, a lesser-included offense of conspiracy to traffic in cocaine. Section 13A-12-205, Ala.Code 1975, “specifically designates criminal conspiracy as a lesser included offense of any controlled substance crime.” Powell v. State, 596 So.2d 652, 654 (Ala.Crim.App.1992). We recognize that in Scott v. State, 742 So.2d 799, 801 (Ala.Crim.App.1998), this Court held that “nothing in [§ 13A-12-205] prohibits a substantive offense, under the appropriate facts, from being a lesser included offense of a conspiracy charge,” and that the facts in Scott are very similar to the facts in the present case. Scott was charged with conspiracy to distribute a controlled substance; the indictment was amended, by agreement, to charge unlawful distribution of a controlled substance; and Scott entered a guilty plea to unlawful distribution of cocaine. On appeal, this Court considered the question whether the offense of unlawful distribution of cocaine was encompassed by the charge contained in the original indictment — it was Scott’s contention on appeal that “unlawful distribution of a controlled substance cannot be a lesser included offense of conspiracy to distribute a controlled substance.” Scott, 742 So.2d at 800. In Scott, this Court remanded the case for the trial court to determine whether unlawful distribution of a controlled substance was an included offense under the indictment or a separate offense.

However, we do not find it necessary to remand the present case for such a determination because under the current trend of recent Alabama decisions regarding whether one offense is included in another, it is clear that, under the facts of this case, the offense of trafficking in cocaine was not encompassed in the offense charged in count 1 of the indictment. In Johnson v. State, 922 So.2d 137, 141 (Ala.Crim.App.2005), this Court explained:

“[I]n determining whether one offense is included in another, the trend of recent Alabama decisions is to focus on the statutory elements of the offenses and the factual allegations actually included in the indictment, rather than on the evidence or factual basis the State presents at trial or during the guilty-plea colloquy. See Ex parte Cole, 842 So.2d 605 (Ala.2002); Wright v. State, 902 So.2d 720 (Ala.Crim.App.), aff'd, 902 So.2d 738 (Ala.2004); Childers v. State, 899 So.2d 1023 (Ala.Crim.App.2003), writ quashed, 899 So.2d 1025 (Ala.2004); Bradley v. State, 925 So.2d 221 (Ala. Crim.App.2004); and Toliver v. State, 881 So.2d 1070 (Ala.Crim.App.2003).”

See also Moss v. State, 929 So.2d 486 (Ala.Crim.App.2005).

Count 1 of the indictment alleged that Tinker and others agreed to sell or deliver cocaine; however, the indictment does not contain any factual allegations that Tinker actually trafficked in cocaine. Therefore, we cannot conclude that the offense for which Tinker was convicted— trafficking in cocaine — was encompassed in the offense charged in count 1 of the indictment, and we have no alternative but to reverse Tinker’s conviction under count 1 of the indictment. We note that Tinker’s original indictment charging conspiracy to traffic in cocaine remains valid, and the State may try Tinker on this charge. See Ex parte Cole, 842 So.2d 605, 609 (Ala.2002).

B.

Count 2 of the indictment stated that Tinker

“did on or about May 20, 1994, with the intent to commit the crime of murder (Section 13A-6-2 of the Alabama Criminal Code) attempt to intentionally cause the death of another person, Andra [sic] Thomas, by committing an overt act towards the commission of the crime of murder, to-wit: by shooting him in the head and abdomen, in violation of Section 13A-4-2 of the Alabama Criminal Code.”

(C. 2.) Tinker argues that there is insufficient evidence to sustain a conviction for attempted murder because, he says, the State failed to present a prima facie case; the State’s case is based on speculation, conjecture, and hearsay; and although Andre told the police officer responding to the scene that “Charles Tinker shot him” (R. 217), the evidence at trial showed that there is another Charles Tinker.

Our review of the record reveals that the following evidence was presented at trial regarding the attempted-murder charge: Officer Williams testified that on May 26, 1994, he was dispatched to a shooting at a service station located at 2806 Dartmouth Avenue in Bessemer; that when he arrived at the scene, he found the victim lying just outside the first bay door on the southside of the service station; that the victim, who had sustained wounds to his head and his abdomen, identified himself as Andre Thomas; and that Andre Thomas told him that “Charles Tinker shot him.” (R. 217.)

Tinker’s attorney focused on the fact that the police report prepared by Officer Williams (Defendant’s Exhibit 2) names a “Charles Cecil Tinker, Jr.” (R. 221) as the perpetrator, and the report contained a specific address, Social Security number, and physical description. Det. Byess, the detective who was initially in charge of this investigation, testified that “when Officer Williams radioed dispatch and asked them to run [the name Charles Tinker], that’s what kicked up on the [National Crime Information Center computer].” (R. 256.) Det. Byess also stated that he “eliminated Charles Cecil Tinker [as a suspect] through photospreads and from the witness statements at ... Charlie Smith’s Garage.” (R. 255.) Additionally, Det. Byess testified that during the course of his investigation, he learned that there was a history involving narcotics between Andre Thomas and Tinker, but that he did not have enough evidence at that time to allow him to go forward with the prosecution of Tinker.

Edward Long testified that “[o]n occasion[]” he had acted as an enforcer for Tinker and that an enforcer would make sure that the individuals who had received drugs paid Tinker for those drugs. (R. 345.) Edward Long stated that Andre Thomas had “been selling cocaine for Charles Tinker” (R. 354) and that in 1994 Andre Thomas owed Tinker approximately $2,800 and Andre Thomas “had started to dodge [Edward Long] because he wasn’t going to pay the money.” (R. 349.) Edward Long testified that there were “a couple [of] nights [when they] assembled and rode out looking for [Andre Thomas], but [they] never found him” (R. 349) and then one morning, Tinker telephoned Edward Long and told him that “he had gotten him” at Charlie’s Service Station on Dartmouth. (R. 353.) Clearly, the evidence was sufficient to establish Tinker as the shooter.

Tinker further contends that Edward Long is the only witness that connected Tinker to Andre Thomas’s shooting. We disagree. As previously noted, Andre Thomas told the police officer responding to the scene that Tinker had shot him. Additionally, Ronald Eaton testified that Tinker had told him that he had shot Andre Thomas because Andre Thomas owed him some money.

Based on the foregoing, we conclude that there was sufficient evidence to support Tinker’s conviction for attempted murder.

C.

Count 3 of the indictment stated that Tinker

“did on or about MAY 31, 1994, intentionally cause the death of Jimmy ‘Tiger’ Taylor, by shooting him to death, for hire, to-wit: Charles Tinker hired David Phillips and Femark Robinson to kill Jimmy ‘Tiger’ Taylor for a sum of money and cocaine, in violation of Section 23A-5-40(a)(7) [sic] of the Alabama Criminal Code.”

(C. 2.) On appeal, Tinker argues that there was insufficient evidence — fingerprints or other physical evidence — to link him to this murder and that the only testimony at trial to connect him to this murder was given by Edward Long and there was nothing to corroborate Edward Long’s testimony.

Edward Long testified at trial that after Andre Thomas was shot, Jimmy “Tiger” Taylor, who dealt cocaine with Andre Thomas, sent a message to Tinker that Andre Thomas was his friend and that “it wasn’t over.” (R. 355.) Jimmy Taylor’s message to Tinker indicated that he had seen Tinker’s family in the mall and that he could have “snatched” them. (R. 355.) Jimmy Taylor’s threat made Tinker angry, so Tinker “assembled a party of people”— Edward Long, David Phillips, and Femark Robinson — and they “commenced to ride [around] looking for [Jimmy Taylor] to kill [him].” (R. 356-57.) Although they did not locate Jimmy Taylor the first night, they learned the next day that Jimmy Taylor could be found at a barbershop on the northside of Bessemer. As Edward Long approached the barbershop in his automobile, he saw an automobile being driven by Femark Robinson and that David Phillips was a passenger in that car. He testified that “they were in a hurry” (R. 363), and that as they passed by Edward Long’s car, David Phillips gave Edward Long “a thumbs-up sign.” (R. 364.) Thereafter, they met at Glenis Latham’s body shop. Tinker told Femark Robinson and David Phillips to give their weapons to Glenis Latham and Tinker told Glenis La-tham “to get rid of them.” (R. 367.) Then Tinker pulled some money from his pocket and gave it to Femark Robinson and Tinker told David Phillips that “he would give it to him later.” (R. 367-68.)

Edward Long’s testimony was corroborated by that of Ronald Eaton, who testified at trial that Tinker told him that he had hired David Phillips and Femark Robinson to go to a barbershop and kill Jimmy “Tiger” Taylor and that after the shooting, they met at Glenis Latham’s shop for payment, where Tinker gave Femark Robinson some money and two ounces of “dope,” but that he did not pay David Phillips right then because Tinker and David Phillips were close and Tinker did not want Femark Robinson to know what David Phillips received for his part in the murder. (R. 787.)

Edward Long’s testimony was also corroborated by Corey Hall, who testified that Jimmy Taylor dealt cocaine; that Andre Thomas and Jimmy Taylor were friends; and that he witnessed David Phillips enter the barbershop and shoot Jimmy Taylor.

Edward Long, an accomplice, testified regarding the details of the murder-for-hire scheme and his testimony was sufficiently corroborated by the testimony of Ronald Eaton and Corey Hall. See Arthur, 711 So.2d at 1059-60. In light of the foregoing, we conclude that there was sufficient evidence presented to support Tinker’s capital-murder conviction for the death of Jimmy “Tiger” Taylor.

D.

Count 4 of the indictment stated that Tinker

“did on or about JULY 14, 1996, intentionally cause the death of Ronald Thomas, by shooting him to death, for hire, to-wit: Charles Tinker hired Ben Lofton to kill Ronald Thomas for a sum of money, in violation of Section 23A-5-40(a)(7) [sic] of the Alabama Criminal Code.”

(C. 2.) Tinker argues on appeal that there was insufficient evidence — fingerprints or other physical evidence — to link him to this murder, that the only testimony at trial to connect him to this murder was given by Edward Long, and that there was nothing to corroborate Edward Long’s testimony.

Edward Long testified at trial that Ronald Thomas was Andre Thomas’s brother and that there was a time that Tinker hired Ben Lofton to rob Ronald Thomas, and Edward Long showed Ben Lofton where Ronald Thomas’s house was located. However, when Tinker heard that Ronald Thomas was going to testify against him before a grand jury, he decided to have Ronald Thomas killed. Edward Long heard Tinker tell Ben Lofton that Tinker would pay Ben Lofton $5,000 if Ronald Thomas were dead. After Ronald Thomas was dead, Ben Lofton told Edward Long that Anthony Retie had posed as a police detective so that they could gain entrance to Ronald Thomas’s house.

Belinda Thomas, Ronald Thomas’s widow, testified that on July 14, 1996, a “detective” came to her front door around 12:00 midnight or 1:00 a.m. (R. 475.) She also testified that the “detective” had an accomplice and that this accomplice shot and killed Ronald Thomas.

Anthony Retie testified that his specialty was “home invasions” and that around 11:00 p.m. or 12:00 midnight on July 14, 1996, he posed as a police detective to gain entrance to Ronald Thomas’s house. Anthony Retie stated that Ben Lofton approached him about being involved in this “home invasion” and that he did not know that Ben Lofton planned to kill Ronald Thomas during the robbery. Anthony Retie testified that after the incident occurred, Ben Lofton told him that “Charles was going to pay him” for killing Ronald Thomas (R. 520) and that Ben Lofton did not tell Anthony Retie beforehand that he was going there to commit murder because he did not think that Anthony Retie would have gone with him.

Gennorra Ridgel, an associate of Ben Lofton’s, testified that he was with Ben Lofton when Edward Long showed them where a particular house was located in Bessemer and that when he saw Ben Lof-ton at a later date, Ben Lofton showed him his bulging pocket and told Gennorra Rid-gel that “he [had] done it,” that “little thing [he] was telling [Ridgel] about” when they were looking for that house. (R. 766.)

Ronald Eaton testified that Tinker told him that he had paid Ben Lofton to kill Ronald Thomas after Tinker had learned that Ronald Thomas had testified against him.

Edward Long’s testimony regarding the details of the murder-for-hire scheme was sufficiently corroborated by the testimony of Belinda Thomas, Anthony Retie, Gen-norra Ridgel, and Ronald Eaton. See Arthur, 711 So.2d at 1059-60. In light of the foregoing, we conclude that there was sufficient evidence presented to support Tinker’s capital-murder conviction for the death of Ronald Thomas.

E.

Count 5 of the indictment stated that Tinker

“did on or about May 31, 1999, ... knowingly manufacture, or bring into this state, or knowingly have in actual or constructive possession in excess of one kilo or 2.2 pounds but less than 100 pounds of cannabis, a controlled substance, to-wit: 14 pounds of cannabis and that such manufacturing, or bringing into this state or actual or construe-tive possession took place subsequent to May 28, 1980, in violation of Section 13A-12-231 of the Code of Alabama, 1975.”

(C. 2.) Tinker contends that although there was testimony indicating that Tinker dealt in marijuana, there was “no independent evidence [that] tended to connect [Tinker] with these transaction[s]” (Tinker’s brief at p. 23); that the State did not have any marijuana or even a certificate of analysis from the Department of Forensic Sciences to show the jury; and that the State relied solely on the recital of facts in Tinker’s federal plea agreement to support a conviction for trafficking in marijuana.

First, we note that Tinker does not argue that a double-jeopardy violation has occurred — that he could not be tried for the same offense in both federal and state court. See Barnett v. State, 373 So.2d 1226, 1227 (Ala.Crim.App.1979) (“[A] prior conviction in federal court is no bar to a subsequent prosecution in State court for the same offense.”); and Luke v. State, 373 So.2d 1228, 1229 (Ala.Crim.App.1979) (same). See also Clemons v. State, 720 So.2d 961, 966-68 (Ala.Crim.App.1996), for a discussion of the dual sovereignty doctrine.

Instead, Tinker contends that “trafficking marijuana was not conclusively shown by the State” because, he says, “[t]here has been no marijuana recovered or tested” and “[t]he State depends on the recitation of facts in [Tinker’s] federal court plea.” (Tinker’s brief at pp. 21-22.) Other than his argument before the trial court that State’s Exhibit 30 (a certified copy of his federal conviction) was inadmissible because, he said, it was inadmissible character evidence pursuant to Rule 404(b), Ala. R.Evid., and that he admitted to distribution of marijuana in his federal plea, which, he argued, is not trafficking (see discussion in Part II.B. of this opinion), and his argument to this Court that State’s Exhibit 30 was admitted in violation of the Confrontation Clause (see discussion in Part II.B. of this opinion), which he did not make to the trial court, Tinker does not challenge the admissibility of the recitation of facts in connection with the federal plea agreement.

It would appear that Tinker is arguing that the State failed to establish the corpus delicti of trafficking in eannabis/marijuana independent of the recitation of facts in his federal plea agreement. In Maxwell v. State, 828 So.2d 347 (Ala.Crim.App.2000), this Court stated the following regarding the State’s burden of proving the corpus delicti of a crime independent of an accused’s confession:

“It has been the rule in Alabama that the State must offer independent proof of the corpus delicti of the charged offense to authorize the admission of a defendant’s confession or inculpatory-statement. Robinson v. State, 560 So.2d 1130, 1135-36 (Ala.Cr.App.1989); see C. Gamble, McElroy’s Alabama Evidence, 200.13 (5th ed. 1996). ‘ “The corpus de-licti consists of two elements: ‘(1) That a certain result has been produced, ... and (2) that some person is criminally responsible for the act.’ ” Johnson [v. State, 473 So.2d 607, 608 (Ala.Cr.App.1985),] (quoting C. Gamble, McElroy’s Alabama Evidence § 304.01 (3d ed. 1977)).’ Spear v. State, 508 So.2d 306, 308 (Ala.Cr.App.1987). ‘“Positive, direct evidence of the corpus delicti is not indispensable to the admissions of confessions.” ’ Bracewell v. State, 506 So.2d 354, 360 (Ala.Cr.App.1986), quoting Ryan v. State, 100 Ala. 94, 14 So. 868 (1894). ‘The corpus delicti may be established by circumstantial evidence.’ Sockwell v. State, 675 So.2d 4, 21 (Ala.Cr.App.1993), aff'd, 675 So.2d 38 (Ala.1995), cert. denied, 519 U.S. 838, 117 S.Ct. 115, 136 L.Ed.2d 67 (1996).”

Maxwell, 828 So.2d at 357. Additionally, this Court stated:

“Further, it is well settled that
“ ‘ “inconclusive facts and circumstances tending prima facie to show the corpus delicti may be aided by the admissions or confession of the accused so as to satisfy the jury beyond a reasonable doubt, and so to support a conviction, although such facts and circumstances, standing alone, would not thus satisfy the jury of the existence of the corpus delicti.” ’
“Bush [v. State], 695 So.2d [70,] 117-18 [(Ala.Crim.App.1995), aff'd, 695 So.2d 138 (Ala.1997) ], quoting Bridges v. State, 284 Ala. 412, 417, 225 So.2d 821, 826 (1969); see also Bracewell, 506 So.2d at 360; Spear, 508 So.2d at 308. ‘While a confession is inadmissible as prima facie proof of the corpus delicti, it can be used along with other evidence to satisfy the jury of the existence of the corpus delicti.’ Bracewell, supra at 360; see also Howell [v. State], 571 So.2d [396,] 397 [ (Ala.Crim.App.1990) ].”

Maxwell, 828 So.2d at 357-58. See also Lewis v. State, 889 So.2d 623, 675-76 (Ala.Crim.App.2003).

In this case, we find that the State presented sufficient evidence to raise “ ‘a reasonable inference of the existence of the corpus delicti of the charged crime’ ”•— trafficking in cannabis/marijuana. Bush v. State, 695 So.2d 70, 117 (Ala.Crim.App.1995), aff'd, 695 So.2d 138 (Ala.1997), quoting C. Gamble, McElroy’s Alabama Evidence § 304.01 (4th ed. 1991). Edward Long testified at trial that he sold drugs for Tinker on consignment. He stated that Tinker would give him drugs — specifically, cocaine and marijuana — and that he would sell the drugs and then pay Tinker. Edward Long also testified that they dealt with people outside the State of Alabama to obtain the marijuana and that there was an “FBI investigation” that resulted in both Tinker and Edward Long’s being charged with conspiracy to distribute marijuana, but that no federal charges had been brought in connection with cocaine. (R. 341.)

The rule in Alabama is that while the uncorroborated testimony of an accomplice is not sufficient to support a felony conviction, the corpus delicti may be proved by the uncorroborated testimony of an accomplice. Stated differently, an accomplice’s testimony requires no corroboration to be considered as evidence that a crime was committed by someone. See C. Gamble, McElroy’s Alabama Evidence, § 300.01(4) (5th ed. 1996), citing Smith v. State, 59 Ala. 104 (1877). In Smith, the Alabama Supreme Court construed § 4895 of the 1876 Code, the predecessor to § 12-21-222, as requiring corroboration of only that part of the accomplice’s testimony that incriminates the defendant. The Court stated:

“The evidence of the witness, Nicholson, [which consisted mainly of the defendant’s confession,] did tend to connect the prisoner with the commission of the offence, and thus fairly presented to the jury the credibility of the accomplice. The statute does not specify any other fact, testified to by an accomplice, which requires corroboration before it will authorize conviction, and we are not authorized to add other clauses to it. The corroboration, extending to this essential, the question of guilt or innocence should be allowed to be passed on by the jury.”

59 Ala. at 105 (emphasis added). See also Dykes v. State, 30 Ala.App. 129, 1 So.2d 754 (1941). Therefore, we conclude that Edward Long’s testimony, standing alone, was sufficient to establish the corpus de-licti — that someone was bringing marijuana into this state and/or that someone was delivering and selling marijuana in this state. See Webster v. State, 900 So.2d 460, 469 n. 8 (Ala.Crim.App.), rev’d on other grounds sub nom. Ex parte Stewart, 900 So.2d 475 (Ala.2004).

Tinker admitted in the factual basis portion of his federal plea agreement that he had distributed approximately 64 pounds of marijuana. (State’s Exhibit 30, “Plea Agreement and Conditions,” p. 2.) In light of the foregoing, we conclude that there was sufficient evidence to support Tinker’s conviction for trafficking in marijuana.

II.

Tinker contends that the trial court improperly admitted State’s Exhibits 28 and 29 (audiotape of Det. Michael Wood’s February 7, 2001, interview of Femark Robinson and a transcript of Femark Robinson’s recorded statement) and State’s Exhibit 30 (a certified copy of Tinker’s federal convictions) because, he says, the admission of those items into evidence was a violation of the Confrontation Clause and Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). (Issue I in Tinker’s brief.)

A.

Tinker argues that the admission of State’s Exhibits 28 and 29 (Femark Robinson’s recorded statement to authorities and the transcript of that statement) violated the Confrontation Clause and Crawford v. Washington. Specifically, he argues on appeal that when he was not given the opportunity to cross-examine Femark Robinson, he was not afforded his Sixth Amendment right to confront his accusers.

Before trial, the State subpoenaed Fe-mark Robinson to testify as a witness for the prosecution. When Femark Robinson appeared at trial, the State granted him judicial immunity for whatever offenses he might testify to — “whether it’s drug dealing, or crimes of violence, whatever it is.” (R. 326). However, when the State began to question Femark Robinson about his relationship with Tinker, Femark Robinson invoked his Fifth Amendment rights and refused to testify. (R. 337.)

Michael Wood, a detective with the criminal investigation division of the Bessemer Police Department, testified at trial that he became the officer in charge of the investigation of these offenses when the federal government declined to prosecute these offenses and returned the files to the Bessemer Police Department. Det. Wood stated that shortly after he was placed in charge of the investigation, he received word that Edward Long wanted to speak with a representative from the Bessemer Police Department, so he reviewed the case file and met with Edward Long. Det. Wood testified that during this interview, Edward Long gave him the name of the second person involved in the shooting at the Bessemer barbershop that had resulted in the death of Jimmy “Tiger” Taylor. He said that Edward Long told him that the second shooter was an individual that Edward Long referred to as “Flemart.” (R. 601.) Det. Wood stated that further investigation revealed that “Flemart” was Femark Robinson.

Det. Wood testified that he and Lt. Ransom Miller interviewed Femark Robinson on February 7, 2001. During his direct examination, Det. Wood testified that while he did not discover any new physical evidence, he was able to obtain several indictments — David Phillips and Femark Robinson were indicted for the murder of Jimmy Taylor and the attempted murder of three other individuals who were in the barbershop when Jimmy Taylor was killed; Ben Lofton was indicted for the murder of Ronald Thomas; and Tinker was indicted on the charges that were the subject of the September 2004 trial and the present appeal — based upon the information received during the interviews with Edward Long and Femark Robinson. Although Det. Wood did not testify during direct examination as to any details regarding what was said during his interview with Femark Robinson, details regarding what was said during Det. Wood’s interview with Femark Robinson began to emerge during Det. Wood’s cross-examination. Specifically, Tinker’s attorney questioned Det. Wood during cross-examination about why he interviewed Tony Carl Bennett — who had identified David Phillips as the first shooter and Edward Long as the second shooter in the barbershop shooting — on two different occasions in February 2001. The following exchange occurred during Tinker’s cross-examination of Det. Wood:

“[Tinker’s attorney]: Why did you call [Tony Carl Bennett] back the second time?
“[Det. Wood]: Because I had a confession from the second shooter.
“[Tinker’s attorney]: Okay.
“[Det. Wood]: And it puzzled me why Mr. Bennett identified Edward Long.
“[Tinker’s attorney]: Well, you didn’t really have a confession, did you?
“[Det. Wood]: Yes, sir, I did have a confession.
“[Tinker’s attorney]: And that was the basis that brought Femark [Robinson] to trial, wasn’t it, in effect?
“[Det. Wood]: His confession.
“[Tinker’s attorney]: Is that who you’re talking about?
“[Det. Wood]: Yes, sir. He confessed to being the second shooter.”

(R. 647.) The following exchange also occurred during Det. Wood’s cross-examination:

“[Tinker’s attorney]: Okay. And in that interview, either you or Miller said, ‘Femark Robinson,’ paraphrasing, ‘we have got somebody identifying you to a tee at the barbershop killing, don’t we,’ in effect?
“[Det. Wood]: I believe that was said during the actual interview.
“[Tinker’s attorney]: Right.
“[Det. Wood]: Yes, sir.
“[Tinker’s attorney]: But that wasn’t true, was it?
“[Det. Wood]: It was true to a point. There was a description. But actually identifying him, no. To say him, no.
“[Tinker’s attorney]: Okay. Please disagree with me if you disagree when somebody refers to ‘has got you to tee,’ that’s pretty darn exact, isn’t it?
“[Det. Wood]: Yes, sir.
“[Tinker’s attorney]: In other words, pretty darn sure. But that just wasn’t true, was it?
“[Det. Wood]: No, sir.
“[Tinker’s attorney]: In fact, in that interview, and in that — in relation to that interview in Femark [Robinson’s] trial, you admitted to deceiving him, didn’t you?
“[Det. Wood]: I did, yes, sir.”

(R. 627-28.) Additionally, during Det. Wood’s cross-examination, Tinker’s attorney read a portion of the questions that David Phillips’s trial counsel had asked Det. Wood during cross-examination at David Phillips’s trial:

“[Tinker’s attorney]: Okay. I’m going to read you right before that regarding Femark Robinson. His question. ‘All right. Let me ask you if you said this: “If you want me to take you as credible, I’ve got all these people saying one thing and you saying something totally different.” That’s your words, isn’t it? That’s your question to Femark.’ Do you recall that?
“[Det. Wood]: I think you’re reading out of the transcript of the earlier [trial].
“[Tinker’s attorney]: Right. And the answer is, Yes, sir’?
“[Det. Wood]: I assume it is.
“[Tinker’s attorney]: And question: ‘And he never did change his story. He kept saying he didn’t go in.’ Talking about Femark as to the barbershop. I will read that again. ‘And he never did change his story period. He kept saying he didn’t go in, comma, didn’t he?’ Your answer, Yes, sir’?
“[Det. Wood]: Right.”

(R. 677-78.)

We find the following in the transcript of Femark Robinson’s February 7, 2001, statement to Det. Wood:

“Q. Let’s get that straight. I’m not saying you shot a gun, OK? But, what I can show you right here is several people’s statements. Said two people came to the door, OK?
“A. Well, I don’t ... I ...
“Q. They described you to a ‘t.’
“A. I would ... I understand that. But, I ... I didn’t ...
“Q. They say you come up to the door. OK?
“A. Yes, sir.
“Q. Not on the side of the house, they say you come to the door.
“A. Yes, sir.
“Q. If you want me to take you as credible ... I got all these people saying one thing, and you’re saying something totally different.
“A. Yes, sir.”

(State’s Exhibit 29, pp. 23-24.) Clearly Tinker’s attorney was seeking during his cross-examination of Det. Wood to elicit details regarding what was said during Femark Robinson’s statement in an attempt to discredit Femark Robinson’s statement to Det. Wood. It was Tinker, not the State, who asked Det. Wood specific questions about what was said during Fe-mark Robinson’s recorded statement.

Prior to the State’s redirect examination of Det. Wood, the following exchange occurred:

“[Prosecutor]: Judge, in the taking of the statement from Femark Robinson at the Elmore facility, and they’ve been questioned — he’s been questioned about specifics from that statement of Femark Robinson. Asked about statements that were made in Femark’s statement as to whether or not he was credible or not. And it was quoted from Femark’s statement.
“Pursuant to the doctrine of completeness at this time, the State would like to proffer that after laying the proper foundation, the State will be offering into evidence State’s Exhibit 28, which is a tape of that interrogation and the statement given by Femark Robinson on February 7th, 2001. And offering with that, the State will be offering State’s Exhibit Number 29, after laying the proper foundation with this witness, which is a transcript of State’s Exhibit Number 28.
“[Tinker’s attorney]: Your Honor, we are going to object. First, it is hearsay. We weren’t able to cross-examine it. The defense never offered it into ... evidence. The questions were if he recalled. As we all know some of this is a new issue as to Mr. Robinson are on appeal. But ... the main thing is that it is hearsay, an out-of-court statement.
The tape and the transcript — and that they [should] not be admitted.
“THE COURT: Anything further?
“[Prosecutor]: No, Your Honor.
“THE COURT: Overruled.”

(R. 699-700.) When the State moved to admit State’s Exhibit 28 and State’s Exhibit 29, Tinker’s attorney, once again, objected on the grounds that “[i]t’s hearsay [and w]e couldn’t cross-examine him.” (R. 705.) The trial court overruled the objection, and State’s Exhibit 28 was played for the jury and a transcript of this recorded statement was admitted into evidence.

We need not decide whether the trial court’s admission of State’s Exhibits 28 and 29 into evidence violated the Confrontation Clause and Crawford because, as the State points out in its brief:

‘When one party opens the door to otherwise inadmissible evidence, the doctrine of ‘curative admissibility’ provides the opposing party with ‘the right to rebut such evidence with other illegal evidence.’ McElroy’s Alabama Evidence, § 14.01, p. 49 (5th ed. 1996). ‘[T]he law [is] that even though a party introduces evidence that may be immaterial or illegal, his opponent has the right to rebut such evidence and this right is unconditional.’ Clark v. State, 54 Ala.App. 183, 186, 306 So.2d 51, 54 (1974). ‘ “A party who has brought out evidence on a certain subject has no valid complaint as to the trial court’s action in allowing his opponent or adversary to introduce evidence on the same subject.” ’ Hubbard v. State, 471 So.2d 497, 499 (Ala.Crim.App.1984) (quoting Brown v. State, 392 So.2d 1248, 1260 (Ala.Crim.App.1980), cert. denied, 392 So.2d 1266 (Ala.1981)).”

Ex parte D.L.H., 806 So.2d 1190, 1193 (Ala.2001). Thus, because Tinker opened the door as to the details of Femark Robinson’s statement to Det. Wood, he cannot now complain that the State’s introduction of Femark Robinson’s entire statement into evidence violated the Confrontation Clause and Crawford.

However, even if the admission of State’s Exhibits 28 and 29 into evidence did violate the Confrontation Clause and Crawford, it would be harmless error. Testimony that is inadmissible may be rendered harmless by prior or subsequent lawful testimony to the same effect or from which the same facts can be inferred. McFarley v. State, 608 So.2d 430, 433 (Ala.Crim.App.1992). “The erroneous admission of evidence that is merely cumulative is harmless error.” Dawson v. State, 675 So.2d 897, 900 (Ala.Crim.App.1995).

In his statement to Det. Wood, Femark Robinson stated that he had had a conversation with Tinker about him and David Phillips going to a barbershop and shooting a guy who would be at the barbershop in order to make a little money; that he and David Phillips drove to a barbershop in Bessemer; that each of them had a gun; that David Phillips, who was walking ahead of him, entered the barbershop and fired 10 or more shots with an automatic weapon; that he “freaked out” (State’s Exhibit 29, p. 10) and ran back to the car; and that after they left the barbershop, they met with Tinker, who gave him “about $2,500” in cash (State’s Exhibit 29, p. 16) and two to two and one-half ounces of “dope.” (State’s Exhibit 29, p. 11.)

Edward Long testified that after Tinker shot Andre Thomas, Jimmy Taylor sent word to Tinker that “it wasn’t over” (R. 355), and Jimmy Taylor threatened to “snatch” Tinker’s family. (R. 355.) This made Tinker mad, and Tinker “assembled a party of people” (R. 356) — Edward Long, David Phillips, and Femark Robinson— who began to look for Jimmy Taylor in order to kill him. After Jimmy Taylor was killed at the barbershop, they met at Glen-is Latham’s body shop and Tinker gave Femark Robinson some money and told David Phillips that “he would give it to him later.” (R. 367-68.)

Ronald Eaton, whose only connection to this case is that he was one of Tinker’s cellmates from the Jefferson County jail, testified that Tinker had told him that he had paid David Phillips and Femark Robinson to go to a barbershop and kill Jimmy “Tiger” Taylor and that after David Phillips and Femark Robinson killed Jimmy Taylor in a barbershop, they met Tinker at Glenis Latham’s shop and Tinker gave Fe-mark Robinson some money and two ounces of “dope,” but that Tinker did not pay David Phillips in front of Femark Robinson because, as Tinker told Ronald Eaton, Tinker and David Phillips were close and Tinker did not want Femark Robinson to know what he had given David Phillips for his part in killing Jimmy Taylor. (R. 787.)

Corey Hall is a barber who was cutting a young boy’s hair at the barbershop in Bessemer where the shooting occurred on the afternoon of May 31, 1994, when he witnessed Jimmy Taylor being shot. Corey Hall testified that David Phillips entered the barbershop, placed a gun to Jimmy Taylor’s head, and began shooting. Corey Hall stated that there was another man with David Phillips, but that he did not get a good look at the second man’s face and he did not see the second man shoot a gun.

Thus, if the admission of State’s Exhibits 28 and 29 was error, it was harmless error because it was merely cumulative of other evidence presented during the trial.

B.

Tinker also contends that the admission of State’s Exhibit 30 (a certified copy of Tinker’s federal convictions) is a violation of the Confrontation Clause and Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177. Specifically, Tinker contends that he “was not able to cross-examine ... the person or persons who put the facts in the federal court plea.” (Tinker’s brief at p. 10.) However, that was not the objection Tinker raised at trial.

When the State offered State’s Exhibit 30 at trial, Tinker’s attorney stated that his objection was based on Rule 404(b), Ala.R.Evid. — he argued that evidence of Tinker’s federal convictions was inadmissible because “[s]uch acts are a form of character evidence.” (R. 715.) Tinker’s attorney also pointed out that in the factual basis for Tinker’s guilty plea to the federal charges Tinker admitted to distribution of marijuana and that “count five in the State government’s indictment is trafficking, which is not distribution.” (R. 716.)

“The statement of specific grounds of objection waives all grounds not specified, and the trial court will not be put in error on grounds not assigned at trial.” Ex parte Frith, 526 So.2d 880, 882 (Ala.1987). Thus, this issue is not properly before this Court for review.

III.

Tinker argues that the trial court improperly denied his Batson motion. (Issue II in Tinker’s brief.) After the jury was struck, Tinker’s attorney challenged four jurors. Tinker alleged that the jury pool consisted of 48 veniremembers, that 16 of the 48 veniremembers were black, and that the State struck 11 of the 16 blacks. It was the defense’s contention that a disproportionate number of black veniremembers were struck and that the only reason these four jurors were struck was because they were black and had been victims of crime. Tinker contends that he made out a prima facie case of discrimination and that the State should have been required to give the reasons for its strikes. However, Tinker did not articulate how the State’s strikes of these four jurors revealed discriminatory intent on the State’s part. He did not offer any evidence indicating that the State did not strike white jurors who were victims of crime, which would have created an inference that the State was engaging in a possible discriminatory motive in striking these four black jurors. In Moss v. State, 834 So.2d 135, 142-43 (Ala.Crim.App.2002), this Court stated:

“While it is true the striking of one person for a racial reason is a violation of the principles of Batson, and grounds for reversal, see Williams v. State, 548 So.2d 501, 507 (Ala.Crim.App.1988), it is equally true that ‘Merely showing that the challenged party struck one or more members of a particular race is not sufficient to establish a prima facie case.’ Edwards [v. State], 628 So.2d [1021,] 1024 [ (Ala.Crim.App.1993) ]. See also Ex parte Trawick, 698 So.2d 162 (Ala.1997) (holding that without more, the mere fact that the prosecutor used a high number of strikes to remove women from the venire is insufficient to establish a prima facie case).
“ ‘A defendant fails to establish a pri-ma facie case of discrimination under Batson and Ex parte Branch, 526 So.2d 609 (Ala.1987), where the defendant fails to show any evidence of discrimination other than the number of African-American veniremembers who were struck. Young v. State, 730 So.2d 1251, 1253-54 (Ala.Cr.App.1998); Moore v. State, 677 So.2d [828,] 829 [(Ala.Crim.App.1996)]. “‘It is within the sound discretion of the trial court to determine if the State’s peremptory challenges of black jurors are motivated by intentional racial discrimination.’ ” Taylor v. State, 666 So.2d 36, 43 (Ala.Cr.App.1994), aff'd, 666 So.2d 73 (Ala.1995), cert. denied, 516 U.S. 1120, 116 S.Ct. 928, 133 L.Ed.2d 856 (1996), quoting Ex parte Lynn, 543 So.2d 709, 712 (Ala.1988), cert. denied, 493 U.S. 945, 110 S.Ct. 351, 107 L.Ed.2d 338 (1989). “A circuit court’s ruling on a Batson objection is entitled to great deference, and we will reverse a circuit court’s Bat-son findings only if they are clearly erroneous.” Stokes v. State, 648 So.2d 1179, 1181 (Ala.Cr.App.1994) (citations omitted).’
“Powell v. State, 796 So.2d 404, 431 (Ala.Crim.App.1999), aff'd 796 So.2d 434 (Ala.2001).”

The trial court did not abuse its discretion when it denied Tinker’s Batson challenge to four black jurors.

rv.

Tinker also contends that counts 3 and 4 of the indictment should have been dismissed because, he says, the Code section listed in Counts 3 and 4 of the indictment — § 23A-5^10(a)(7) — is nonexistent and that when the trial court allowed the State to amend the indictment to state the correct Code section — § 13A-5-40(a)(7) — a new offense was charged. (Issue III in Tinker’s brief.)

In his motion to dismiss counts 3 and 4 of the indictment, Tinker argued that he was prejudiced because the State was attempting to deprive him of his liberty, and perhaps his life, under an indictment that cited a nonexistent Code section. (C. 141-42.) At the pretrial hearing on this motion, Tinker stated that he was “prejudiced here because count three and four are the capital-murder charges” and that “as soon as we discovered [that these counts cited a nonexistent Code section], we filed this motion.” (R. 65-66.) The State argued at the pretrial hearing that Tinker “knows what he is charged with” because it is “[o]bvious[] in the indictment [that] he’s charged with murder-for-hire on both these capital-murder counts” even though the State had “miscited a Code section, cited 23 instead of 13” in counts 3 and 4. (R. 66-67.) The State requested that the trial court correct the indictment and move forward. The trial court granted the State’s request to amend the Code section cited in counts 3 and 4 to read § 13A-5-40(a)(7) instead of § 23A-5^tO(a)(7).

“Miscitation of a code section does not void an indictment which otherwise states an offense; and, in the absence of a showing of actual prejudice to the defendant, reference to the erroneous code section will be treated as mere surplusage.” Ex parte Bush, 431 So.2d 563, 564 (Ala.1983).

It is clear from the statement made by Tinker’s attorney at the hearing that Tinker knew that he had been charged with capital murder. Counts 3 and 4 of the indictment clearly charged Tinker with murder-for-hire. Thus, Tinker was not prejudiced when the trial court allowed counts 3 and 4 of the indictment to be amended to reflect the correct Code section.

V.

Based on the foregoing, we affirm Tinker’s convictions and sentences for attempted murder as to Andre Thomas (count 2), trafficking in cannabis/marijuana (count 5), and capital murder for the killing of Jimmy “Tiger” Taylor and Ronald Thomas (counts 3 and 4). However, we reverse Tinker’s conviction under count 1 and remand the case to the trial court for further proceedings as to that count consistent with this opinion.

Additionally, we note that although, Tinker was convicted of trafficking in cannabis/marijuana (count 5), the trial court failed to impose the fine mandated in § 13A-12-231(1)(a), Ala.Code 1975, or to assess the additional penalties mandated by §§ 13A-12-281 and 36-18-7(a), Ala. Code 1975. (See R. 1025-26, C. 229-30.) On remand, the trial court is directed to take such action as may be necessary to see that the mandatory penalties prescribed in §§ 13A-12-231(l)(a), 13A-12-281, and 36-18-7(a) are imposed. Due return shall be filed with this Court no later than 28 days from 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.

      . Although the indictment spells the victim's name in Counts 1 and 2 as "Andra Thomas” (C. 2), the police report of June 27, 1994— which is a supplement to case number 052640822, the police report prepared on May 26, 1994 (State’s Exhibit 1 and Defendant’s Exhibit 1) — spells his name as "Andre Thomas." Additionally, we note that he signed his name on the June 27, 1994, police report as "Andre Thomas.”

      . Tinker is "Charles L. Tinker” and his middle name is "Lakeith.” (C. 259-60; State's Exhibit 30.) Edward Long testified at trial that he did not know a "Charles Cecil Tinker” (R. 364) and that the man sitting in the courtroom was the only "Charles Tinker” he knew. (R. 364-65.)

      . This Court's reversal of the convictions in Barnett, 373 So.2d 1226, and Luke, 373 So.2d 1228, was controlled by § 20-2-77, Ala.Code 1975, which stated:
      "If a violation of this chapter [the Alabama Uniform Controlled Substances Act] is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state.”
      However, § 20-2-77 was repealed by Act No. 87-603, § 12, Ala. Acts 1987, effective October 21, 1987. In Clemons, this Court noted that Wisconsin had a statute that stated:
      " 'Bar to prosecution: If a violation of this chapter is a violation of a federal law or the law of smother state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state.’
      "Wis. Stat. § 161.45.”
      720 So.2d at 968. This Court further noted that this "Wisconsin statute ... limited dual prosecutions by state and federal authorities” and it stated that "[i]f the legislature of this state had intended to limit dual prosecutions by federal and state courts it could have enacted a statute similar to the Wisconsin statute.” Clemons, 720 So.2d at 968.

      . Det. Wood testified that “the FBI had originally taken over all these Bessemer cases" (R. 595) and that when it was decided that the murders would not be part of the federal prosecution, the files were returned to the Bessemer Police Department. Det. Wood stated that in either December 2000 or January 2001 he was present at a meeting between officials from Bessemer and representatives from the FBI and the United States Attorney's Office concerning these cases. (R. 609-10, 612.)

      . Det. Wood testified that when he learned that "Flemart” could possibly be Femark Robinson, he pulled a photograph of Robinson and faxed it to the facility where Long was being housed and that Long confirmed that the photograph "was the person he was talking about.” (R. 602.)

      . "[VJiolations of the Confrontation Clause are subject to harmless-error analysis.” Smith v. State, 898 So.2d 907, 917 (Ala.Crim. App.2004). See also Perkins v. State, 897 So.2d 457, 465 (Ala.Crim.App.2004).

      . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).


source: Caselaw Access Project

license: Public Domain

text:
    Carl W. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5097.
    District Court of Appeal of Florida, Second District.
    Oct. 20, 2004.
   Upon consideration of appellant’s notice of voluntary dismissal filed September 20, 2004, it is

ORDERED that the prior opinion filed September 3, 2004, is withdrawn. The court acknowledges the receipt of and accepts appellant’s notice of voluntary dismissal. Accordingly, this appeal is dismissed.


author: PER CURIAM.

text:
    Ever Nahon ORTIZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-78.
    District Court of Appeal of Florida, Third District.
    Dec. 15, 2004.
    Rehearing Denied July 25, 2006.
    Bennett H. Brummer, Public Defender, and Valerie Jonas, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and LEVY and SHEPHERD, JJ.
   PER CURIAM.

We affirm the trial court’s Order revoking Defendant’s probation. Moreover, contrary to Appellant’s suggestion that probation was not violated where he submitted to TASC evaluation despite the admission that he was discharged from the program for missing two consecutive appointments, we hold that when a court Orders anyone to submit to a program, it is inherent within the Order that the Defendant “successfully complete” the program. Appellant’s remaining points are without merit and/or moot in light of our holding.


author: STONE, J.

text:
    WESTSIDE EKG ASSOCIATES, Appellant/cross-appellee, v. FOUNDATION HEALTH; a Florida Health Plan, Inc.; Health Options, Inc.; Hip Health Plan of Florida, Inc. f/k/a PCA Family Health Plan, Inc.; and Health Options Connect, Inc. f/k/a Principal Health Care of Florida, Inc., Appellees, Humana Medical Plan, Inc. f/k/a PCA Health Plans of Florida, Inc., Appellee/cross-appellant.
    Nos. 4D03-3533, 4D03-4837.
    District Court of Appeal of Florida, Fourth District.
    May 4, 2005.

      Philip M. Burlington of Philip M. Burlington, P.A., Jeffrey M. Liggio and Jene Williams-Rhoads of Liggio, Benrubi & Williams, P.A., West Palm Beach, and Edward H. Zebersky of Zebersky & Payne, LLP, Hollywood, for appellant/cross-appel-lee.
    Nancy W. Gregoire, W. Edward McIntyre and Daniel Alter of Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, P.A., Fort Lauderdale, for Appellees-Health Options, Inc. and Health Options Connect, Inc.
    Andrew S. Berman of Young, Berman, Karpf & Gonzalez, P.A., North Miami Beach, for Appellee/cross-appellant-Hu-mana Medical Plan, Inc.
    Bradley Winston, Plantation, for amicus curiae-AARP.
   STONE, J.

Westside EKG Associates (Westside) sued seven health maintenance organizations (HMOs), claiming violations of the Health Maintenance Association Act (Act), chapter 641, Florida Statutes, for the improper processing of providers’ claims for medical services rendered to HMO subscribers. Westside claims HMOs failed to comply with the “prompt pay” provisions of the Act, primarily found in section 641.3155. Westside seeks damages for breach of HMO subscriber contracts and a declaratory judgment, based on its charge that HMOs have a practice of failing to pay claims within the time mandated by the Act. HMOs contend that subscribers and providers have no legal remedy other than to pursue administrative relief.

The trial court entered judgment on the pleadings in favor of HMOs, concluding that the supreme court’s opinion in Villazon v. Prudential Health Care Plan, Inc., 843 So.2d 842 (Fla.2003), has foreclosed all private causes of action arising out of HMO violations of, or failure to comply with, the Act. We reverse.

We do not deem Villazon applicable to an action founded on a theory of breach of contract. In Villazon, a deceased patient/subscriber’s estate was seeking to hold a HMO vicariously liable for medical malpractice by its member physicians. The supreme court, in holding the action was not preempted by federal law, also recognized that the Act does not provide a private right of action for damages. Id. at 852. After ruling on the federal preemption claims, the supreme court stated that the Act does not provide for a private right of action for damages for violation of the Act’s requirements. The court did, however, acknowledge the plaintiffs underlying right to bring a common law negligence claim based upon the same allegations. Id.

Westside’s claims are essentially founded on its assertions that providers are third party beneficiaries of HMO-subscriber contracts and that it is entitled to enforce applicable provisions of the Act by virtue of the common law principle that contracts governed by regulatory statutes are deemed to incorporate relevant portions of such statutes in their terms.

It is an accepted principle of law that when parties contract upon a matter which is the subject of statutory regulation, the parties are presumed to have entered into their agreement with reference to such statute, which becomes a part of the contract, unless the contract discloses a contrary intention. Northbrook Prop. & Cas. Ins. Co. v. R & J Crane Serv., Inc., 765 So.2d 836 (Fla. 4th DCA 2000); Grant v. State Farm Fire and Cas. Co., 638 So.2d 936 (Fla.1994); P.C. Lissenden Co. v. Bd. of Cty. Comm’rs of Palm Beach, 116 So.2d 632 (Fla.1960); Citizens Ins. Co. v. Barnes, 98 Fla. 933, 124 So. 722 (1929).

The Act requires that health maintenance organizations pay or deny a claim no later than 120 days after receipt. § 641.3155(2),(4), Fla. Stat. Failure to do so results in an uncontestable obligation that the health maintenance organization pay the claim to the health care provider. Id. See § 641.3155(4). See also § 641.185(e).

The Act provides that contracts with members be applied as if their terms are in full compliance with the Act. § 641.3105, Fla. Stat. (2000). The Act contains several provisions for the protection of HMO subscribers, covers many requirements concerning HMO contracts, contains certain provisions limiting the enforcement of the contract requirements, and integrates an administrative procedure for resolving disputes.

We recognize that section 641.185(2), after detailing certain subscribers’ rights in section 641.185(1), states that the section “shall not be construed as creating a civil cause of action by any subscriber or provider against any health maintenance organization.” However, we do not accept HMOs’ contention that section 641.185(2) goes beyond the section and requires that subscribers and providers be limited to the Act’s administrative remedy provisions for all failures to comply with the Act, and particularly as to its prompt pay provisions. To so hold would require that we disregard other provisions of the Act that recognize or anticipate the existence of parallel legal remedies.

Furthermore, section 641.3154(4) provides:

A provider ..., regardless of whether the provider is under contract with the health maintenance organization, may not collect or attempt to collect money from, maintain any action at law against or report to any credit agency a subscriber of an organization for payment of services for which the organizations is liable, if the provider in good faith knows or should know that the organization is liable. This prohibition applies during the pendency of any claim for payment made by the provider to the organization for payment of the services and any legal proceedings or dispute resolution process to determine whether the organization is liable for the services if the provider is informed that such proceedings are taking place. It is presumed that the provider does not know and should not know that an organization is liable unless:
(a) the provider is informed by the organization that it accepts liability;
(b) A court of competent jurisdiction determines that the organization is liable;
(c) Or the department or agency makes a final determination that the organization is required to pay for such services subsequent to a recommendation made by the Statewide Provider and Subscriber Assistance Panel pursuant to s. 408.7056.

(Emphasis added; footnote added)

The Act also contains provisions concerning civil remedies, civil liability, the validity of non-complying contracts, and the interpretation of contracts deviating from the statute. See §§ 641.28; 641.3917; 641.3105(1). We note that section 641.28 implicitly recognizes that civil actions are available to enforce the terms and conditions of a health maintenance organization contract. That section provides that in such a suit, the prevailing party is to recover attorney’s fees. The section specifically exempts certain affected government administrative offices, agencies, and personnel from its scope, but does not mention HMOs. Thus, its exemptions are not extended to HMOs.

Accordingly, we recognize West-side’s right to bring these claims, notwithstanding that the Act does not explicitly authorize private enforcement of its provisions. We do not read Villazon as receding from the well-established common law principle that contracts covering subjects regulated by statute are presumed to incorporate provisions of statutes regulating the subject of such contracts. Applying Villazon to bar breach of contract and declaratory judgment claims would essentially preclude any significant court action against HMOs. Application of Villazon in this manner would restrict unpaid service providers to relief by administrative proceedings to resolve violations of the Act, under sections 408.7056 and 408.7057, while leaving HMOs free to sue to determine by litigation if the HMO is liable for payment. See § 641.3154(4)(b), Fla. Stat. We note that if such was the legislative intent, it would be more clearly spelled out in the Act.

HMOs acknowledge that the Act contemplates non-contract, as well as contract, providers rendering services to subscribers, and that the legislature intended that non-contract providers stand on an equal footing with contract providers in enforcing their right to payment. See § 641.3154(4), Fla. Stat.

Failure to allow providers to enforce the Act’s prompt payment provisions, integral to the HMO contracts with subscribers, would render HMOs impervious to legal action, granting them exclusive access to the courts but confining service providers to the administrative process. Such a limitation would also deprive service providers of common law rights to civil remedies, including third party claims. Such a result would be to the detriment of subscribers, the protected class under the Act. See § 641.185, Fla. Stat.

In Foundation Health v. Garcia-Rivera, M.D., 814 So.2d 537 (Fla. 3d DCA 2002), a class action by contract providers for violation of the Act’s “prompt pay” provisions, issued prior to Villazon, the Third District recognized that service providers have a right to sue HMOs. The court reasoned that its decision was “meaningfully indistinguishable” from Colonial Penn Insurance Co. v. Magnetic Imaging Systems I, Ltd., 694 So.2d 852 (Fla. 3d DCA 1997), which approved a class action against the insurer for violation of the PIP prompt pay statute. We also note that courts in other states have allowed enforcement of “prompt pay” provisions by allowing private parties to bring suit to enforce statutory provisions. See Wallace v. State Farm Fire & Cas. Co., 247 Ga.App. 95, 539 S.E.2d 509 (2000); St. Clare’s Hosp. v. Allstate Ins. Co., 215 A.D.2d 641, 628 N.Y.S.2d 128 (1995); J.C. Penney Life Ins. Co. v. Heinrich, 32 S.W.3d 280 (Tex.App.2000). Federal decisions have also recognized the legitimacy of provider suits against HMOs. In re Humana Inc. Managed Care Litigation, 2000 WL 1925080 (J.P.M.L.2000) (judicial panel on multi-district litigation transferring and consolidating multiple actions from around country).

We have considered Greene v. Well Care HMO, Inc., 778 So.2d 1037 (Fla. 4th DCA 2001), and Florida Physicians Union, Inc. v. United Healthcare of Florida, Inc., 837 So.2d 1133 (Fla. 5th DCA 2003). Both Greene and Florida Physicians Union failed to recognize a private cause of action under the Act. Nevertheless, both decisions agreed that “civil suits to enforce a contract with an HMO are unaffected by the statute and clearly can be brought in a proper case.” Fla. Physicians Union, 837 So.2d at 1137.

Both Greene and Florida Physicians Union are distinguishable by the nature of the facts and claims in those cases, and by virtue of each acknowledging the availability of a civil remedy for breach of contract. In Greene, an insured brought action against a HMO for violation of the Act, demanding recovery for bad faith and loss of consortium for refusing to pay for treatment. In affirming a dismissal, we concluded that the civil liability language in section 641.3917, Florida Statutes, does not infer a private cause of action against an HMO for unfair or deceptive practices and bad faith. Greene, 778 So.2d at 1040. These are not the issues here. Additionally, we went on to remand with directions to permit further amendment to plead common law actions against the HMO. Id. at 1041.

In Florida Physicians Union, medical doctors under contract with a HMO sued for violation of section 641.3903 of the Act, charging unfair methods of competition and unfair or deceptive acts or practices. In addition to finding no private right of action to enforce the statute, the court stated that “the general scheme of the statute was to empower the Department of Insurance to enforce the statute’s requirements and determine whether the provisions are being complied with or violated, and that the remedy to seek was an injunction.” 837 So.2d at 1135. Nevertheless, the court, in Florida Physicians Union, made the limited nature of its decision clear by adding that “[s]uit on a contract with an HMO is not involved in this appeal.” Id. at 1136.

Service providers are recognized as third party beneficiaries of insurance contracts in other contexts. In Allstate Insurance Co. v. Kaklamanos, 843 So.2d 885 (Fla.2003), the supreme court recognized that an insured under an automobile liability policy could sue the insurer to recover for non-payment of personal injury protection (PIP) benefits, reasoning that PIP entitlement arises out of the automobile insurance contract and is governed by contract principles. Id. at 892; see also Orion Ins. Co. v. Magnetic Imaging Sys. I, 696 So.2d 475, 478 (Fla. 3d DCA 1997).

Kaklamanos is significant, as the regulatory scheme for the Act is patterned after provisions in the Florida Insurance Code. Section 641.3155 contains provisions similar to those found in the PIP statute section 627.736(4), Florida Statutes. Section 641.3155(2)-(3) imposes deadlines for the HMO to contest or deny claims, to take other action, and obligates the HMO to pay interest on overdue payments. It also recognizes that if the HMO does not pay or deny a claim within 120 days, it has an “uncontestable obligation to pay.” We recognize that Kaklamanos does not determine whether the PIP statute allows a private right of action. There, the insured was attempting to enforce statutory provisions by construing the contract in a manner consistent with the statute. 843 So.2d at 896. See also Allison v. Imperial Cas. & Indem. Co., 222 So.2d 254 (Fla. 4th DCA 1969) (statutes become part of the insurance contract); State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830, 832 (Fla.1993) (the terms of section 627.428 — attorney’s fees civil liability — are an implicit part of every insurance policy).

In another context, in Jim Macon Building Contractors, Inc. v. Lake County, 763 So.2d 1223 (Fla. 5th DCA 2000), the court noted that there are three parties to a letter of credit: an issuer, an account holder, and a beneficiary who is entitled to collect monies. The court recognized that, although a letter of credit is often referred to as a contract between the issuer and the account holder, it is more accurate to say that the relationship imposes certain duties between the parties that are enforceable by the third party beneficiary. Similarly, in the HMO paradigm, there are three parties by contract or statute: the HMOs, the subscriber, and the service provider. The providers become the third party beneficiaries of the subscriber-HMO contract once services are provided. Thus, similar to the letter of credit analysis in Jim Macon, the service providers are entitled to collect the monies as a third party beneficiary of the contract.

We conclude that service providers, claiming as third party beneficiaries under a subscriber’s contract, may bring an action founded on the HMOs’ failure to comply with the prompt pay provisions of the Act. We remand for further proceedings on the common law contract and declaratory judgment claims. Humana’s cross-appeal is moot.

Recognizing the potential impact of this decision on the industry, we certify the following question to the supreme court as one of great public importance:

ARE THE PROMPT PAY PROVISIONS OF THE HEALTH MAINTENANCE ORGANIZATION ACT ENFORCEABLE BY COURTS IN AN ACTION FOUNDED ON PRINCIPLES OF BREACH OF CONTRACT BROUGHT AGAINST A HMO BY A SERVICE PROVIDER?

FARMER, C.J., and TAYLOR, J„ concur.

      . - When a HMO is liable for payment to a service provider based on an uncontestable claim under 641.3155(c), an administrative procedure is established under section 408.7056, Florida Statutes, of the Health Care Administration Act. The procedure requires that the service provider: submits the grievance for review by a panel; the panel recommends to the agency or the department any actions that should be taken; if the agency determines that the grievance should be heard, it notifies the panel and parties; after a hearing, the panel must issue a written recommendation supported by findings of fact; the party adversely affected by the panel's recommendation may furnish the agency or department written evidence in opposition; the agency or department may adopt the recommendation and issue an order which may include fines or sanctions under the Act, sections 641.25 and 641.52; or, the agency may reject all or part of the panel’s recommendation. Under section 408.7057(12), every HMO shall submit a quarterly report to the agency and the department listing the number and nature of all grievances which have not been resolved to the satisfaction of the subscriber or the provider after they have followed the entire internal grievance procedure of the managed care entity. The Act also imposes 10% yearly interest for overdue payment of a claim to the service provider. Section 408.7057 covers claims dispute resolution between service providers and managed care organizations. Section 408.7057(2)(a) provides for dispute resolution by an entity selected and contracted by the Agency for Health Care Administration. The section also requires that the Agency for Health Care Administration establish a program to provide assistance to contracted and non-contracted providers and health plans for resolution of claim disputes that are not resolved by the provider and the health plan. Apparently, such a program has not been established.

      . We do not address any constitutional right of access to courts in this regard, as this issue was not raised in the briefs. See Kluger v. White, 281 So.2d 1 (Fla.1973). The right of access to the courts is guaranteed by Article I, section 21, Florida Constitution. Before the legislature may restrict access to the courts, it must first provide a reasonable alternative remedy or commensurate benefit or it must make a showing of an overpowering public necessity justifying a restriction with a finding that there is no alternative method of meeting such public necessity. Restrictions on the right to access to the courts should be construed so as to favor the constitutional right. Hicks v. Hicks, 715 So.2d 304 (Fla. 5th DCA 1998). A particular statute should be interpreted liberally so as not to unduly restrict access. Kukral v. Mekras, 679 So.2d 278 (Fla.1996)(medical malpractice statute). A person's guaranteed access to the courts should not be unduly or unreasonably burdened or restricted. Preferred Med. Plan, Inc. v. Ramos, 742 So.2d 322 (Fla. 3d DCA 1999).

      . See and compare: §§ 641.3155; 627.613; 627.614; 641.3104; 627.060; 641.31; 641.3101; 641.3106; 641.3917; 641.3107, Fla. Stat. (2005).

      . We note that the statute was amended in 2002 to provide different deadlines.


text:
    Alfonso TANNER, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2373.
    District Court of Appeal of Florida, Fifth District.
    May 17, 2005.
    James S. Purdy, Public Defender, and Allison Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Holmes v. State, 374 So.2d 944 (Fla.1979), cert. denied, 466 U.S. 913, 100 S.Ct. 1845, 64 L.Ed.2d 267 (1980); Love v. State, 877 So.2d 921 (Fla. 5th DCA 2004).

SHARP, W., PETERSON and MONACO, JJ., concur.


text:
    Salvatore BENNETT, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4825.
    District Court of Appeal of Florida, Fourth District.
    June 1, 2005.
    Salvatore Bennett, Moore Haven, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING/MOTION TO CERTIFY CONFLICT

PER CURIAM.

We deny appellant’s motion for rehearing, but grant the motion to certify conflict. As to our reliance on Richardson v. State, 884 So.2d 950 (Fla. 4th DCA 2004), we again certify conflict with McCall v. State, 862 So.2d 807 (Fla. 2d DCA 2003).

POLEN, KLEIN and SHAHOOD, JJ., concur.


author: DAVIS, Judge.

text:
    ROYAL MARBLE, INC., Petitioner, v. INNOVATIVE FLOORING & STONECRAFTERS OF SWF, INC., Respondent.
    No. 2D05-877.
    District Court of Appeal of Florida, Second District.
    June 15, 2005.
    Rehearing Denied Oct. 6, 2005.

      Raymond L. Bass, Jr. of Bass & Cher-noff, Naples, for Petitioner.
    Fitzgerald A. Frater and Benjamin C. Iseman of Treiser, Collins & Vernon, Naples, for Respondent.
   DAVIS, Judge.

Royal Marble petitions for writ of certio-rari, seeking review of the trial court order denying its motion to increase the cash deposit to which a construction lien against Innovative Flooring & Stonecrafters of SWF, Inc., has been attached. Because Royal Marble has failed to allege irreparable harm, we dismiss the petition.

Royal Marble moved to increase the security pursuant to section 713.24(3), Florida Statutes (2003). Specifically, Royal Marble sought additional security for both attorney’s fees already incurred and prospective attorney’s fees. The trial court entered an order denying Royal Marble’s motion without prejudice, finding (1) that Royal Marble had failed to present sufficient evidence to establish that its claimed attorney’s fees were reasonable, (2) that Royal Marble had failed to present evidence that “the amount of the cash deposit in excess of the amount claimed in the claim of lien is insufficient to pay its attorney’s fees and costs incurred in the action to enforce the lien,” and (3) that section 713.24(3) does not authorize additional security to cover prospective attorney’s fees.

Common law writ of certiorari “provides a remedy only if the petitioner meets the heavy burden of showing that a clear departure from the essential requirements of law has resulted in otherwise irreparable harm.” Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004).

Royal Marble failed to meet that burden here because the harm alleged is not irreparable. The trial court’s order denied Royal Marble’s motion without prejudice, and Royal Marble is free to file a new motion to increase the bond and to present the necessary evidence as to the amount and reasonableness of attorney’s fees it has incurred thus far. Additionally, although the trial court’s order prevents Royal Marble from seeking prospective attorney’s fees, the company may continue to file motions seeking to increase the bond as it incurs fees that exceed the amount of the security bond that is set aside for fees and court costs.

Because the trial court’s order could not result in irreparable harm, we need not address whether the trial court departed from the essential requirements of law. We dismiss the petition for lack of jurisdiction.

Dismissed.

STRINGER and CANADY, JJ., Concur.


author: KLEIN, J.

text:
    Larry E. SHIMKUS, Appellant, v. STATE of Florida, DEPARTMENT OF BUSINESS & PROFESSIONAL REGULATION, CONSTRUCTION INDUSTRY LICENSING BOARD, Appellee.
    No. 4D04-2271.
    District Court of Appeal of Florida, Fourth District.
    June 15, 2005.
    Bruce G. Kaleita of Bruce G. Kaleita, P.A., West Palm Beach, for appellant.
    Gail Scott Hill, Tallahassee, for appellee.
   KLEIN, J.

We withdraw our previously filed opinion and substitute it with the following.

Florida has a Construction Industry Recovery Fund, which, in general terms, reimburses people who have unpaid judgments against builders who have been found liable on specified types of claims. In this case nine home buyers recovered judgments against the insolvent builder, a corporation, and were reimbursed by the fund. The statute provides for license suspension until the fund is repaid by the licensee, but appellant contends that his license should not have been suspended because the judgments were only against the corporation. We disagree and affirm.

Appellant, a licensed residential contractor, agreed with Thomson Homes, Inc., that he would serve as its qualifying agent under section 489.119, Florida Statutes (2003). The statute requires corporations engaged in construction to have licensed individuals serving as their qualifying agents. Appellant and Thomson agreed he would supervise construction, and in return receive a salary and part of the profits. During a several month period while appellant was told by Thomson that no activity was occurring, Thomson took deposits, started construction, and then went out of business.

Nine home buyers obtained judgments against Thomson Homes, were unable to collect, and obtained reimbursement from the fund. The licensing board then suspended appellant’s license until he reimbursed the fund. Appellant argues that his license should not have been suspended, because the judgments were not against him, but rather against Thomson Homes. He rests his argument on section 489.143(7), Florida Statutes (2003) which provides:

(7) Upon the payment of any amount from the Construction Industries Recovery Fund in settlement of a claim in satisfaction of a judgment or restitution order against a licensee as described in s. 489.141(1), the license of such licensee shall be automatically suspended, without further administrative action, upon the date of payment from the fund. The license of such licensee shall not be reinstated until he or she has repaid in full, plus interest, the amount paid from the fund. A discharge in bankruptcy does not relieve a person from the penalties and disabilities provided in this section, [e.s.]

The administrative law judge interpreted the emphasized language to require that judgments, as well as restitution orders, must be against the licensee, in order for there to be a suspension. The board reversed and held that the statute did not require that the judgment be against the licensee.

Appellant’s argument that the judgment must be against the licensee ignores other provisions in the statute. We must, however, read all parts of the statute together in order to achieve a consistent whole. T.R. v. State, 677 So.2d 270 (Fla.1996).

The legislative intent expressed in section 489.140(a), describes the purpose of the fund as being to reimburse any person “adjudged by a court of competent jurisdiction to have suffered monetary damages, or to whom the licensee has been ordered to pay restitution by the board.” Section 489.143(7), on which appellant relies, refers to licensees described in section 489.141(1), and that provision describes a person eligible to seek recovery against the fund as a person who:

[H]as received a final judgment in a court of competent jurisdiction in this state in any action wherein the cause of action was based on a construction contract or the Construction Industry Licensing Board has issued a final order directing the licensee to pay restitution to the claimant based on a violation of s. 489.129(l)(g), (j), or (k), where the contract was executed and the violation occurred on or after July 1, 1993 ...

It is obvious that restitution orders can only be against licensees, because it is only the licensee who is under the control of the Board. This provision, however, does not require that the judgment be against the licensee.

Section 489.129(1) authorizes disciplinary action (revocation or suspension of license) if the business organization for which the contractor is a primary qualifying agent (licensee) is found guilty of abandoning a construction project. Section 489.1195(l)(a) makes qualifying agents for a business organization jointly and equally responsible for supervision of all operations of the business organization including field work and financial matters.

Under these statutes it is clear that the legislature intended to compensate aggrieved homeowners who obtain judgments in circumstances where the activities of the qualifying agent violate section 489.129(1), which is what occurred in this case. We accordingly agree with the board that, reading the statute as a whole, there is no requirement for a judgment to be against a licensee in order for the suspension to be imposed in this case.

Although it is unnecessary to our conclusion, it is worth noting that normally a contracting entity is not the individual holding the license, but rather a corporation. Under those circumstances the homeowner may not be able to sue the licensee, who is not a party to the contract. Murthy v. N. Sinha Corp., 644 So.2d 983 (Fla.1994). Given the risky nature of the business, and the protection offered by the corporate structure, requiring that the judgment be against the licensee, who can only be an individual, would, in most cases, make the suspension provision meaningless.

We have considered the other arguments raised by appellant and find them to be without merit. Affirmed.

GROSS and MAY, JJ., concur.