source: Caselaw Access Project

author:
PER CURIAM.
      SMITH, Justice

license: Public Domain

text:
    Ex parte Kenneth Eugene BILLUPS. (In re Kenneth Eugene Billups v. State of Alabama).
    1090554.
    Supreme Court of Alabama.
    Dec. 30, 2010.

      Randall Susskind and Marc Shapiro of Equal Justice Initiative, Inc., Montgomery; and Edward D. Tumlin, Birmingham, for petitioner.
    Troy King, atty. gen., and Richard D. Anderson, asst. atty. gen., for respondent.
   PER CURIAM.

Kenneth Eugene Billups was convicted of capital murder for the killing of Stevon Lockett. The murder was made capital because it was committed during the course of a first-degree robbery. See § 13A-5-40(a)(2), Ala.Code 1975. After a sentencing hearing, the jury, by a vote of 7-5, recommended that Billups be sentenced to imprisonment for life without the possibility of parole. The trial court overrode the jury’s recommendation and sentenced Billups to death. Billups filed a motion for a new trial, which the trial court denied. An appeal to the Court of Criminal Appeals followed.

The Court of Criminal Appeals, over a vigorous dissent by Judge Welch, affirmed Billups’s conviction and sentence. Billups v. State, 86 So.3d 1032 (Ala.Crim.App.2009). We granted certiorari review to consider, among other issues, whether the trial court erred by admitting evidence as to Billups’s involvement in the killing of four men at the Avanti East Apartments in Birmingham three days after Lockett’s murder (“the Avanti East killings”) and, if that evidence was properly admitted, whether the trial court’s instruction to the jury regarding the purposes for which the jury could consider that evidence was sufficiently limiting. We conclude that the trial court improperly instructed the jury regarding the purposes for which it could consider the evidence of Billups’s involvement in the Avanti East killings. Accordingly, we reverse and remand. Because we conclude that the trial court’s limiting instruction was insufficient, we pretermit any discussion of the other issues as to which certiorari review was granted.

Facts and Procedural History

In the early morning hours of December 13, 2003, Lockett was shot and killed in Birmingham. On December 16, 2003, four men, namely, Manuel Nunez, Rafael Salce-do, Enrique Marquez, and Wilbur Gomez, were shot and killed at the Avanti East Apartments in Birmingham. In October 2004, Billups was indicted on 13 counts of capital murder in connection with the Avanti East killings. In June 2005, Bill-ups was indicted for the murder of Lock-ett. In November 2005, Billups was convicted of 13 counts of capital murder in connection with the Avanti East killings; the trial court followed the jury’s recommendation in that case and sentenced Bill-ups to death.

In December 2005, before the trial in this case, the State gave the defense notice of its intent to present evidence regarding Billups’s involvement in the Avanti East killings during Billups’s trial for the capital murder of Lockett. During a pretrial hearing, the trial court, over Billups’s objection, concluded that the evidence regarding Billups’s involvement in the Avanti East killings was admissible “based upon the close proximity, the fact that the same weapon was used, and the fact that [the offenses] are very similar.”

At trial, the State presented considerable evidence regarding Billups’s involvement in the Avanti East killings. The State notes that fact in its brief to this Court, stating that “[t]he evidence presented by the State included eyewitness testimony of the [Avanti East killings] by two witnesses, testimony of forensic experts, a firearms expert, a detective, as well as photographic evidence demonstrating the wounds of the victims [in the Avanti East killings].” State’s brief, p. 16 n. 12 (citations to the record omitted). The State’s first mention of evidence regarding Bill-ups’s involvement in the Avanti East killings began with its opening statement, during which the State provided the jury with a detailed account of those killings and displayed postmortem photographs of the four victims of the Avanti East killings. During its case-in-chief, the State called no fewer than seven witnesses who testified regarding the Avanti East killings. The State began its cross-examination of Bill-ups with several questions regarding his involvement in the Avanti East killings; the State also introduced in that cross-examination postmortem photographs of the victims of the Avanti East killings it had displayed during the opening statement. Further, during its closing argument, the State made numerous references to the Avanti East killings.

Billups objected on several occasions to the introduction of the aforementioned evidence, arguing, among other things, that the evidence was inadmissible because, Billups said, it was both unnecessary and “extremely prejudicial.”

One of the witnesses for the State was Charles Cooper, an eyewitness to the Avanti East killings. During his testimony, the trial court instructed the jury as follows regarding its consideration of the evidence of Billups’s involvement in the Avanti East killings:

“Ladies and gentlemen, let me tell you one thing about this testimony. You’re hearing testimony today about another incident that allegedly occurred, not the same one that Mr. Billups is actually charged with in this case.
“The law is clear that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action and conformity therewith. In other words, evidence of other crimes allegedly committed by the defendant cannot be used to show bad character.
“The evidence being presented regarding other acts allegedly committed by the defendant can be considered by you only for the purpose of determining either motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
“I’m going to repeat those for you. But if you think the evidence from the other case is relevant to the issues of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident in Stevon Lockett’s death, then you can consider this evidence.
“But it cannot be used by you for any other purpose; all right?”

Additionally, the trial court stated the following in its final instructions to the jury:

“Now, as I instructed you during the trial, there’s been some testimony regarding an allegation of other crimes. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action and conformity therewith. In other words, evidence of the other crimes allegedly committed by the defendant cannot be used to show bad character. It cannot be used to show bad character. The evidence being presented regarding other acts allegedly committed by the defendant can be considered by you only for the purpose of determining motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, as I have instructed you. If you think the evidence from the other case is relevant to the issues of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident in Stevon Lockett’s death, then you can consider it. But it cannot be used by you for any other purpose.”

Billups did not object to the trial court’s instructions regarding the evidence of his involvement in the Avanti East killings, and, for all that appears in the record, Billups did not accept the trial court’s offer “to formulate some type of limiting instruction” regarding that evidence.

On appeal, the Court of Criminal Appeals concluded that the trial court did not err by admitting the evidence regarding Billups’s involvement in the Avanti East killings, stating, in relevant part, that “the evidence about the [Avanti East] killings ... was relevant to establish Billups’s identity, intent, pattern or plan.... ” Billups, 86 So.3d at 1053. As to Billups’s contention that the trial court’s jury instruction concerning that evidence was insufficient, the Court of Criminal Appeals disagreed, noting that “the trial court repeatedly instructed the jury as to the limited purpose for which evidence about the [Avanti East] killings ... was being admitted” and that the trial court “specifically instructed the jury that it could not use the collateral bad act evidence to show Billups’s bad character or to show that he acted in conformity therewith.” Billups, 86 So.3d at 1058.

As noted, Judge Welch authored a vigorous dissent, concluding, in sum, that “[t]he trial court committed reversible error when it admitted the collateral-act evidence.” Billups, 86 So.3d at 1072 (Welch, J., dissenting). Additionally, Judge Welch concluded that the trial court did not properly instruct the jury as to the purposes for which it could consider the evidence of Billups’s involvement in the Avanti East killings, stating:

“[A]lthough the majority has correctly stated that the trial court did issue ‘limiting’ instructions, those instructions were wrong as a matter of law. The trial court accepted the State’s invitation at trial to instruct the jury that it could use the collateral-act evidence for any of the reasons listed in Rule 404(b), [Ala. R. Evid.,] even though the State never argued that the evidence was admissible for most of those purposes. The State never argued that evidence about the [Avanti East killings] fell within the exceptions in the exclusionary rule for evidence related to opportunity, preparation, knowledge, or absence of mistake or accident. Thus, the trial court, by issuing its erroneous instructions, greatly enhanced the prejudice caused when evidence about the [Avanti East killings] was admitted because the erroneous instructions permitted the jury to consider the illegal evidence for many issues other than those for which it was purportedly admitted.”

Billups, 86 So.3d at 1078 (Welch, J., dissenting) (citation to record omitted). In conclusion, Judge Welch stated:

“Although defense counsel did not object to the instructions, based on the record as a whole, I believe that the error [in the trial court’s limiting jury instructions] affected Billups’s substantial rights and that it seriously affected the fairness and integrity of the proceeding against him. Therefore, this constitutes plain error.”

Billups, 86 So.3d at 1079 (Welch, J., dissenting).

Discussion

Because Billups did not object to the trial court’s jury instructions regarding the evidence of his involvement in the Avanti East killings, we review this issue for plain error. See Calhoun v. State, 932 So.2d 923, 973 (Ala.Crim.App.2005) (citing Rule 45A, Ala. RApp. P.)

“ ‘Plain error is defined as error that has “adversely affected the substantial right of the appellant.” The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal. As the United States Supreme Court stated in United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the plain-error doctrine applies only if the error is “particularly egregious” and if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” See Ex parte Price, 725 So.2d 1063 (Ala.1998), cert. denied, 526 U.S. 1133, 119 S.Ct. 1809, 143 L.Ed.2d 1012 (1999).’ ”

Ex parte Brown, 11 So.3d 933, 935-36 (Ala.2008) (quoting Hall v. State, 820 So.2d 113, 121-22 (Ala.Crim.App.1999)).

In Moore v. State, 49 So.3d 228 (Ala.Crim.App.2009), the Court of Criminal Appeals stated the following regarding Rule 404(b), Ala. R. Evid., which addresses the admissibility of evidence of collateral bad acts:

“Rule 404(b), provides:
“ ‘Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....’
“The Alabama Supreme Court has ‘held that the exclusionary rule prevents the State from using evidence of a defendant’s prior bad acts to prove the defendant’s bad character and, thereby, protects the defendant’s right to a fair trial.’ Ex parte Drinkard, 777 So.2d 295, 302 (Ala.2000) (citing Ex parte Cofer, 440 So.2d 1121, 1123 (Ala.1983)). This court has explained that ‘[o]n the trial for the alleged commission of a particular crime, evidence of the accused’s having committed another act or crime is not admissible if the only probative function of such evidence is to prove bad character and the accused’s conformity therewith.’ Lewis v. State, 889 So.2d 623, 661 (Ala.Crim.App.2003) (quoting C. Gamble, McElroy’s Alabama Evidence § 69.01(1) (5th ed.1996)).
“ ‘ “ ‘This exclusionary rule is simply an application of the character rule which forbids the State to prove the accused’s bad character by particular deeds. The basis for the rule lies in the belief that the prejudicial effect of prior crimes will far outweigh any probative value that might be gained from them. Most agree that such evidence of prior crimes has almost an irreversible impact upon the minds of the jurors’ ” ’
“Ex parte Jackson, 33 So.3d 1279, 1284-85 (Ala.2009) (quoting Ex parte Arthur, 472 So.2d 665, 668 (Ala.1985), quoting in turn C. Gamble, McElroy’s supra, § 69.01(1)).”

49 So.3d at 232 (emphasis added). We further note that “ ‘Rule 404(b) is a principle of limited admissibility. This means that the offered evidence is inadmissible for one broad, impermissible purpose, but is admissible for one or more other limited purposes....’” Taylor v. State, 808 So.2d 1148, 1165 (Ala.Crim.App.2000) (quoting C. Gamble, McElroy’s Alabama Evidence § 69.01(1) (5th ed.1996) (emphasis added)).

Billups contends that the trial court committed reversible error in instructing the jury as to the purposes for which it could consider the evidence of Billups’s involvement in the Avanti East killings because, he says, the trial court “failed to identify the specific purposes for which the jury could lawfully consider the evidence.” Billups’s brief, p. 22. Specifically, Billups contends that the trial court erroneously allowed the jury to consider that evidence “for every [Rule] 404(b) purpose,” Billups’s brief, p. 23 (emphasis in original), and, thus, Billups says, “[the] jury was told that it could consider evidence of the Avanti East [killings] for numerous purposes that were indisputably not at issue (opportunity, preparation, knowledge, or absence of mistake).” Billups’s brief, p. 26. Conversely, the State contends that the trial court properly instructed the jury regarding the purposes for which it could consider evidence of Billups’s involvement in the Avanti East killings because, the State says, “the evidence admitted at trial linking Billups to the [Avanti East killings] was properly offered to prove identity, plan, and motive of the killer, not as bad character evidence.” State’s brief, p. 26.

In Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), the United States Supreme Court stated that, when evidence of a defendant’s other crimes, wrongs, or acts is introduced under Rule 404(b), Fed.R.Evid., “the trial court shall, upon request, instruct the jury that the similar acts evidence is to be considered only for the proper purpose for which it was admitted.” 485 U.S. at 691-92, 108 S.Ct. 1496 (citing United States v. Ingraham, 832 F.2d 229, 235 (1st Cir.1987) (emphasis added)). The State appears to contend that the trial court satisfies it duty to instruct the jury as to the “proper purpose” for which evidence regarding a defendant’s other crimes, wrongs, or acts has been introduced by simply reciting all the Rule 404(b) exceptions for which the evidence may be admitted and informing the jury that it may not consider that evidence as proof of the defendant’s bad character. See State’s brief, pp. 25-26. We disagree.

Assuming, without deciding, that the evidence regarding Billups’s involvement in the Avanti East killings was, as the State contends, relevant to show plan, identity, motive, and intent, the jury, pursuant to the trial court’s broad instruction, nonetheless remained free to consider that evidence for numerous other purposes (including opportunity, preparation, knowledge, or absence of mistake or accident) that were indisputably not at issue in this case. See McAdory v. State, 895 So.2d 1029, 1036 (Ala.Crim.App.2004) (plurality opinion) (concluding that the jury could not have properly considered the defendant’s prior convictions to show knowledge and intent because neither was at issue). Presenting the jury with such a far-reaching “limiting” instruction carries with it the same problems as providing the jury with no specific purpose for considering the other crimes, wrongs, or acts evidence.

“[A]n instruction should advise the jury on the purposes for which prior acts are admitted, meaning uses that are plausible in the case at hand, and should not include a laundry list of every conceivable use.” 1 Christopher B. Mueller and Laird C. Kirkpatrick, Federal Evidence § 4:30 at 789 (3d ed.2007) (emphasis added). In this case, however, the jury was allowed to consider the evidence regarding Billups’s involvement in the Avanti East killings for several implausible purposes, including, among others, opportunity and absence of mistake or accident. For example, Billups made no argument at trial that Lockett’s killing was the result of an accident or that he lacked the opportunity to kill Lockett; rather, Billups’s defense was that another person, Charles Cooper, was responsible for Lockett’s murder.

By simply reciting the complete “laundry list” of permissible theories under Rule 404(b), the trial court’s instruction in this case gave the jury inadequate guidance. See Ex parte Belisle, 11 So.3d 323, 333 (Ala.2008) (“[A]n appellate court ‘presume[s] that the jury follows the trial court’s instructions unless there is evidence to the contrary.’ ” (quoting Cochran v. Ward, 935 So.2d 1169, 1176 (Ala.2006))). The trial court’s instruction also failed to limit the State to the purposes — as nonspecific as they were — that it advanced in support of admission of the evidence regarding Billups’s involvement in the Avanti East killings. Thus, we conclude that the trial court erred by failing to limit the jury’s consideration of that evidence to only those purposes for which the evidence was purportedly offered by the State (plan, identity, motive, and intent). See Huddleston, supra; cf. United States v. Tse, 375 F.3d 148, 158 (1st Cir.2004) (finding that the district court “adequately limited the jury’s consideration of [certain Rule 404(b) ] evidence” when the court instructed the jury that it could not use that evidence “to make a propensity inference” and that the jury could use that evidence to determine only the defendant’s “knowledge and intent”).

With regard to the erroneous jury instruction, we agree with Judge Welch’s conclusions that “[t]he confusion of the jury and the probable prejudice to Billups is obvious” and that “the error affected Billups’s substantial rights and ... seriously affected the fairness and integrity of the proceeding against him.” Billups, 86 So.3d at 1079 (Welch, J., dissenting). Accordingly, we conclude that, under the particular circumstances of this case, the trial court’s failure to properly instruct the jury regarding the purposes for which it could consider the evidence of Billups’s involvement in the Avanti East killings constituted plain error.

Conclusion

For the above-stated reasons, we reverse the judgment of the Court of Criminal Appeals, and we remand the case to that court with directions to remand it to the trial court for a new trial. We preter-mit as unnecessary any discussion of the other grounds on which we granted certio-rari review.

REVERSED AND REMANDED WITH DIRECTIONS.

COBB, C.J., and LYONS, WOODALL, STUART, BOLIN, PARKER, MURDOCK, and SHAW, JJ., concur.

SMITH, J., concurs specially.

SMITH, Justice

(concurring specially).

I write separately to state that the silence of the main opinion on the issue of the admissibility of the evidence regarding Kenneth Eugene Billups’s involvement in the Avanti East killings should not be interpreted as an implicit approval of the trial court’s conclusion that the evidence was admissible. If it was necessary to address the merits of this issue, I would adopt as part of this Court’s opinion the well reasoned dissent authored by Judge Welch, in which he concluded that “[significant reversible error occurred when the trial court admitted vast amounts of evidence about an unrelated, horrendous crime against four victims, in violation of the principles governing the admission of other-crimes evidence.” Billups v. State, 86 So.Bd 1032, 1079 (Ala.Crim.App.2009) (Welch, J., dissenting).

      . The State did not inform the trial court of any specific Rule 404(b), Ala. R. Evid., exceptions under which it sought to admit the evidence regarding Billups's involvement in the Avanti East killings; it appears that the closest the State came to doing so occurred during the following exchange with the trial court:
      "THE COURT: Under [Rule] 404(b), what are the particular things that the State is looking at?
      "[THE STATE]: Well, we’re looking at the same cause of death: multiple gunshot wounds to the head. We're looking at the similar motive: to steal drugs. We’re looking at the same gun used in both crimes. I

        mean, it's multiple things, multiple similarities.”

      .In its brief to this Court, the State contends that, "[although only one instruction would have sufficed, in an abundance of caution, the trial court instructed the jury repeatedly that evidence of the [Avanti East killings] was only being offered for the limited [Rule] 404(b), non-character purposes to prove 'motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.’ (R. 385 vol. 6, 778, 782, 791 vol. 8, 244-47, 268 vol. 10).” State's brief, pp. 25-26 (emphasis added; footnotes omitted). However, our review of the State’s contention reveals that in only two of those citations to the record was the trial court instructing the jury regarding its consideration of the evidence of Billups's involvement in the Avanti East killings; specifically, as noted, the trial court instructed the jury regarding that evidence during the testimony of Charles Cooper and during its final jury charge. The relevant portions of those instructions are quoted above.

      . The State also contends that the evidence regarding Billups’s involvement in the Avanti East killings was relevant to show Billups’s intent to murder Lockett. State's brief, pp. 12, 14.

      . Rule 404(b), Ala. R. Evid., is identical to Rule 404(b), Fed.R.Evid. ”[C]ases interpreting the Federal Rules of Evidence will constitute authority for construction of the Alabama Rules of Evidence.” Advisory Committee’s Notes, Rule 102, Ala. R. Evid.


author: BURKE, Judge.

text:
    Kenneth Eugene BILLUPS v. STATE of Alabama.
    CR-05-1767.
    Court of Criminal Appeals of Alabama.
    Dec. 16, 2011.
    Edward D. Tumlin, Birmingham, for appellant.
    Troy King, atty. gen., and Peter J. Smyczek and Richard D. Anderson, asst, attys. gen., for appellee.
   After Remand from the Alabama Supreme Court

BURKE, Judge.

The Alabama Supreme Court in Ex parte Billups, 86 So.3d 1079 (Ala.2010), reversed this Court’s judgment affirming Kenneth Eugene Billups’s conviction for capital murder, a violation of § 13A-5-40(a)(2), AIa.Code 1975, and his sentence of death. The Alabama Supreme Court determined that the trial court’s jury instruction concerning the evidence of Bill-ups’s involvement in other murders was inadequate and erroneous. The Supreme Court concluded that the trial court’s instruction as to this evidence amounted to plain error. Rule 45A, Ala. R.App. P. Therefore, that Court reversed our judgment and remanded the case to this Court with instructions that we remand it to the trial court for a new trial.

In accordance with the Alabama Supreme Court’s decision, Billups’s conviction is hereby reversed and the case remanded to the trial court with instructions that a new trial be granted.

REVERSED AND REMANDED.

WELCH, P.J., and WTNDOM, KELLUM, and JOINER, JJ., concur.

      . This case was originally assigned to another member of this Court; it was reassigned to Judge Burke on February 19, 2011.


text:
    Asher Bragan BOLE v. STATE of Alabama.
    CR-09-0608.
    Court of Criminal Appeals of Alabama.
    May 27, 2011.
    Rehearing Denied July 22, 2011.

      Nancy Katherine Pritchett, Birmingham, for appellant.
    Troy King and Luther Strange, attys. gen., and Andy Scott Poole, asst. atty. gen., for appellee.
   BURKE, Judge.

The appellant, Asher Bragan Bole, was convicted of one count of manslaughter, a violation of § 13A-6-3, Ala.Code 1975. Based on one prior felony conviction, he was sentenced to 40 years’ imprisonment. Additionally, he was ordered to pay a crime victim assessment in the amount of $50.

The evidence established that on the evening of July 25, 2008, Andra Johnson picked Tiffany Smith up from her home in Bessemer, and the two of them went to Johnson’s home in Center Point. Around the time they were to return to Bessemer, Johnson received a telephone call from one of Johnson’s friends, Asher Bole. Bole came over to Johnson’s home for about 20 minutes and the three then left to take Smith home to Bessemer.

Smith was not acquainted with Bole. She testified that as she was getting into the front passenger seat of Johnson’s vehicle, she saw that Bole was carrying a pistol. As Bole sat down in the backseat, he placed the pistol in his lap. There were no harsh words between the two men in the car; in fact they had made prior plans to go to a club together after they took Smith home.

At a stop sign near Smith’s house, Johnson stopped his vehicle to let her out, because Smith did not want her husband to know that she had been in the company of the two men. As Smith got out of the car, she saw Bole getting out of the backseat to ride in the front passenger seat. He had the pistol in his hand and jokingly said, “Give me your shit, nigger.” (R. 99.) The gun suddenly discharged and Johnson was shot in the head. Bole became nervous, panicked, and, according to Smith, gestured with the pistol for Smith to come to where he was standing. Bole grabbed Smith by the shirt and dragged her down the street. He pulled her into a bank of bushes, pointed the gun to her face and said, “[D]id you see what happened? Do you know me? Did you see this?” (R. 100.) Smith indicated that she had not, and Bole said that if she cooperated, she would be okay. Bole left Smith in the bushes and returned to Johnson’s Ford Explorer sport-utility vehicle. Smith ran to a nearby Conoco gasoline service station where she asked a woman to drive her back to the scene. When they arrived, Johnson’s body was in the middle of the road.

Bole was arrested near the scene; he later gave two statements admitting that he shot Johnson but that he did not intend to. He stated that he threw the gun in the bushes and was afraid to stay with the victim.

Autopsy results revealed that Johnson’s cause of death was a gunshot wound to the head, and that the handgun that inflicted the wound was fired from a distance of at least 18 inches.

Bole testified in his own defense. He stated that he shot Johnson but that it was an accident. He testified that he and Johnson were close friends and that the gun fired when he attempted to stand and lost his balance. Bole testified that after hearing a loud bang, he ran into some bushes. He stated that Smith followed him into the bushes to ask him what happened. He did not remember having the pistol in his hand when he was talking to Smith.

I.

On appeal, Bole argues that the trial court erred when it allowed the State to offer evidence of his prior conviction of shooting into an occupied dwelling, because the detailed evidence was outside the stipulation or agreement the parties had entered into before the trial. Bole argues that the State exceeded the limitation of the evidence to be allowed concerning this prior offense, specifically that he admitted to having committed it. In particular, Bole argues that the admission of evidence that a child was present at the scene of his prior offense violated Rule 404(b), Ala. R. Evid. and Rule 609, Ala. R. Evid.

First we address Bole’s claim that the trial court committed reversible error when it allowed the State to delve into details of his prior conviction for discharging a firearm into an occupied dwelling as having violated Rule 404(b), Ala. R. Evid.

The record reveals that on September 9, 2009, the State filed a notice of intent to introduce evidence pursuant to Rule 404(b), Ala. R. Evid., notifying Bole that it intended to offer evidence that “on April 27, 2001, [Bole] pleaded guilty to Discharging a Firearm into an Occupied Building and was sentenced to Fifteen years to serve in prison.” (C. 40.) On September 15, 2009, immediately before trial, the State argued its motion to be permitted to offer the Rule 404(b) evidence, stating that proof of the prior offense would show Bole’s knowledge pertaining to the use and functioning of firearms and knowledge of the risk associated with them. After an extensive discussion on the record, the parties stipulated that the State would limit its Rule 404(b) evidence of Bole’s prior conviction to testimony that Bole had fired a gun into an occupied dwelling in order to show Bole’s knowledge of firearms and to testimony that Bole had admitted to having fired a gun into an occupied dwelling. The agreement also required Bole to refrain from offering evidence of the victim’s prior criminal convictions other than to allow testimony to show that the victim and Bole had met while in prison.

The following is the exchange regarding the stipulation between the attorneys and the court prior to trial:

“THE COURT: How do you intend to prove it [that he knows how to operate a gun]?
“[Prosecutor]: My way of doing it would be introducing the prior felony conviction. I don’t have to do it that way, but that’s the simplest way of doing it. With [Rule] 404(b) evidence I can prove — I can bring the witnesses from the earlier case if I want to. I’m not going to do it that way.
“THE COURT: I understand that.
“[Prosecutor]: If you want me to avoid a felony — mentioning a felony, I can get the detective to testify to it.
“THE COURT: To the—
“[Prosecutor]: I would basically ask are you aware that he has a prior conviction for shooting a firearm into an occupied dwelling. Yes. We don’t have to go into what he’s sentenced for, or anything like that, whether it’s a felony or anything like that. But because of the facts in this case knowledge of the firearm and how — what happens when you pull a trigger. He knows. And they deserve to know that he knows. It’s not common sense.”

(R. 8.)

Later in the exchange, the parties apparently come to an agreement as to what the stipulation will be:

“[Defense counsel]: Are you aware [Bole] admitted to firing a gun into an occupied — in the past [Bole] admitted to firing a gun into an occupied dwelling.
“[Prosecutor]: I will live with that, but that doesn’t carry the same weight as pleadfed] guilty. Admitted in court.
“THE COURT: I understand that. But the — are you offering it for the weight to show that he was convicted or the fact that he knows the—
“[Prosecutor]: Obviously that he knows. I don’t want to have to prove that again. Are they going to be able to go back and deny that he admitted doing that.
“[Defense counsel]: No.
“[Prosecutor]: Is that a factual issue that we fight?
“[Defense counsel]: We do not contest the fact that he admitted to having fired a gun into an occupied dwelling.
“THE COURT: So we have a stipulation on that?
“[Prosecutor]: Yes.
“THE COURT: That wording.”

(R. 11-12.)

Thereafter, before the cross-examination of Bole, the State asserted that it planned to offer a certified copy of his conviction and sentence for discharging a firearm into an occupied dwelling. Bole objected on the ground that the document included references to another charge or other charges that had been dismissed and that its admission would violate the stipulation that the parties had entered on the issue. The parties agreed to redact the references to the other charges in the documents and the trial court then stated that the exhibit “has been offered with certain redactions that we have discussed as to a separate crime that the document speaks to. It is admitted. And it will go back to the jury room in its altered form.” (R. 192.) The stipulation of the parties referred to matters that the State could properly present in its case-in-chief pursuant to its Rule 404(b) motion and did not contemplate or limit the State’s ability to impeach Bole when he chose to take the witness stand. When the State cross-examined Bole, the prosecutor asked Bole how he had obtained the gun used to kill Johnson. Bole responded that he gotten it from a friend for his personal safety because someone had threatened him. Bole acknowledged that he knew that he was not supposed to have a gun because he had previously been in prison. He admitted he had been in prison for discharging a firearm into a house. The State then offered into evidence the certified court record reflecting Bole’s conviction over Bole’s renewed objection. The prosecutor then asked Bole several questions about the previous incident, including whether he had intended to kill anyone or had acted recklessly. Bole replied that the man he had shot at had robbed a friend; he also testified that he had shot at the man because the man was armed. The prosecutor asked Bole if he was aware that the man’s little girl was in the house at the time of the shooting. Bole stated that he had learned about the child’s presence only after the fact. At no time did defense counsel make any objection during the testimony.

A trial court is given broad discretion in the determination of admissibility of evidence, despite the prohibition of Rule 404(b), Ala. R. Evid.

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

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

“The foregoing exclusionary rule does not work to exclude evidence of all crimes or acts, only such as are offered to show the defendant’s bad character and conformity therewith on the occasion of the now-charged crime. If the defendant’s commission of another crime or misdeed is relevant for some other material purpose in the case then it may be admitted.” Charles W. Gamble and Robert J. Goodwin, McElroy’s Alabama Evidence, § 69.01(1) (6th ed.2009)(footnotes omitted). In determining whether the proposed evidence is admissible under one of the exceptions to the exclusionary rule, the question is whether the evidence is relevant to a material issue in the charged case. Bradley v. State, 577 So.2d 541, 547-48 (Ala.Crim.App.1990). See also Gamble v. State, 791 So.2d 409 (Ala.Crim.App.2000); and Perkins v. State, 808 So.2d 1041 (Ala.Crim.App.1999), affirmed, 808 So.2d 1143 (Ala.2001). Rule 401, Ala. R. Evid., defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” “ ‘All evidence is relevant which throws, or tends to throw, any light upon the guilt or the innocence of the prisoner.’ ” Nicks v. State, 521 So.2d 1018, 1026 (Ala.Crim.App.1987), aff'd, 521 So.2d 1035 (Ala.), cert. denied, 487 U.S. 1241, 108 S.Ct. 2916, 101 L.Ed.2d 948 (1988), quoting Underhill, Criminal Evidence, § 154 (3d ed.1923). “The appellate courts of Alabama have sanctioned a liberal test of relevancy under which evidence is admissible if it has any probative value, however slight, upon a matter in the case.” Gamble & Goodwin, McElroy’s Alabama Evidence, § 21.01(1). Moreover, “[t]he decision to allow or to not allow evidence of collateral crimes or acts as part of the state’s case rests in the sound discretion of the trial court.” Bush v. State, 695 So.2d 70, 85 (Ala.Crim.App.1995), affirmed, 695 So.2d 138 (Ala.1997), cert. denied, Bush v. Alabama, 522 U.S. 969, 118 S.Ct. 418, 139 L.Ed.2d 320.

Although Rule 404(b) does require the trial court to exclude evidence of other crimes or bad acts committed by a defendant as character evidence, such evidence may be admissible under certain circumstances. Here, the record reveals that the trial court admitted the evidence of Bole’s shooting into an occupied dwelling, finding that the evidence was relevant and admissible to show Bole’s knowledge of firearms and his understanding of the risk of handling a firearm. Hence, the trial court did not err when it admitted the evidence under an exception to the general exclusionary rule.

Moreover, Bole’s argument on appeal that the State exceeded the limitation of the stipulation by allowing evidence concerning the details of the offense, particularly the prosecutor’s questions concerning Bole’s knowledge that the daughter of the intended victim had been present, was admitted without objection. His objection that the document improperly referred to other charges did not preserve this matter for appeal. Cf. Pace v. State, 766 So.2d 201, 202-03 (Ala.Crim.App.1999). Therefore, that issue is waived.

Bole’s argument that the State was allowed to admit detailed evidence concerning the child’s presence at the scene of the prior offense, in violation of Rule 609, Ala. R. Evid., when Bole took the witness stand in his own defense is being raised for the first time on appeal. During the State’s cross-examination, Bole made no objection on the grounds he now raises on appeal. Newsome v. State, 570 So.2d 703, 717 (Ala.Crim.App.1989) (“Review on appeal is restricted to questions and issues properly and timely raised at trial.”) See also Smoot v. State, 520 So.2d 182, 186-87 (Ala.Crim.App.1987). Generally, an objection to the introduction of evidence is necessary before an issue may be presented to an appellate court. Ex parte Jackson, 33 So.3d 1279, 1283 (Ala.2009) (“ ‘ “An appellant who suffers an adverse ruling on a motion to exclude evidence, made in limine, preserves this adverse ruling for post-judgment and appellate review only if he objects to the introduction of the proffered evidence and assigns specific grounds therefor at the time of the trial, unless he has obtained the express acquiescence of the trial court that subsequent objection to evidence when it is proffered at trial and assignment of grounds therefor are not necessary.’””). This Court cannot consider matters which have not been first presented to the trial court. Trawick v. State, 431 So.2d 574 (Ala.Crim.App.1983). Because Bole failed to make a timely and specific objection at trial, this claim that the evidence violated Rule 609, Ala. R. Evid., is precluded from appellate review.

II.

Bole argues that the trial court committed reversible error when it allowed the State to provide an inaccurate transcript of his statement to the jury for its use while it listened to an audiotape of the statement. Bole objected on the grounds that the transcript contained errors; the trial court sustained Bole’s objection, and the transcript was taken from the jurors.

The record reveals that Detective Jeff Robinson testified that Bole made a statement to him after being informed of his constitutional rights. A tape recording of that statement was admitted into evidence and played for the jury. Because the sound quality of the audiotape was not good, the State indicated a typed transcript was available, although the transcript was “not perfect.” After a bench conference, the Court directed the jury to read the transcript but to go by what was on the audiotape, disregarding the transcript if there was any discrepancy between the two. The court also instructed the jury that it could not take the typed transcript into the jury room with it.

The audiotape was played again, and defense counsel objected outside of the hearing of the jury. Defense counsel stated that his objection was based on various inaccuracies in the transcript and on the basis that a copy of the transcript had not been provided to the defense during discovery. The court sustained the objection and removed the transcripts from the jury box.

The trial court then gave the jury the following curative instructions:

“Ladies and gentlemen, while you were out of the room there was an objection made and the Court ruled on it. The written transcript you had you no longer have. So, don’t look for it under your chair. It is not a matter of you misplacing it. I had it taken up.
“What you have heard up until now and what you have read, I want to instruct you at this point in time that you’re, of course, to take what you heard over what you read.
“And it was my understanding there was parts of it that was not audible, but once we started playing it, everybody, both attorneys and myself, realized that there were words in there that didn’t match up with what I could understand was being said. So, the rest of it is going to be played to you without the written transcript or the written version of what was said.
“And what you have heard, disregard what you read on the paper if you heard something different on the tape. Thank you.”

(R. 145-46.)

After the trial court gave these instructions, Bole did not renew his objection to the transcript in a motion for a mistrial or ask the court for more extensive curative instructions as he now argues on appeal were necessary. In the absence of an adverse ruling, this issue is not properly before us for appellate review.

Based on the foregoing, we conclude that Bole failed to preserve the issue of the flawed transcript for appellate review by not invoking an adverse ruling from the trial court. Newsome v. State, 570 So.2d 703, 717 (Ala.Crim.App.1989) (“Review on appeal is restricted to questions and issues properly and timely raised at trial.”). In order to preserve an alleged error, “a timely objection must be made ..., specific grounds for the objection should be stated, and a ruling on the objection must be made by the trial court.” Shouldis v. State, 953 So.2d 1275, 1284 (Ala.Crim.App.2006.) Harris v. State, 563 So.2d 9, 11 (Ala.Crim.App.1989)(an adverse ruling is necessary in order to preserve an issue for appellate review).

III.

Bole next contends that the trial court abused its discretion and committed reversible error by imposing a punishment on him that was vindictive because Bole refused to agree to a plea bargain and insisted on going to trial. Bole argues that, if that was the reason the trial court entered the punishment in his case, his constitutional rights were violated. However, although Bole file a motion to reconsider his sentence, Bole did not raise at trial the claim he now raises and has failed to preserve this issue for appellate review.

Because Bole’s sentence is within the proper statutory range, Bole’s claim is not jurisdictional. Manslaughter is a Class B felony. § 13A-6-3, Ala.Code 1975. Bole had one prior felony conviction, and the sentencing range for a Class B felony with one prior felony conviction is for life or not more than 99 years or less than 10 years. Additionally, § 13A-5-6(a)(5), Ala.Code 1975, states that when a deadly weapon is used in the commission of a Class B felony, the sentencing range is not less than 10 years. Bole was sentenced to 40 years’ imprisonment. Thus, the sentence imposed by the trial court falls within the statutory range. A decision on sentencing is well within the broad discretion of the trial court. Where a trial judge imposes a sentence within the statutory range of punishment, this Court will not review that sentence. See Sinkfield v. State, 669 So.2d 1026, 1028 (Ala.Crim.App.1995); Garner v. State, 606 So.2d 177, 182 (Ala.Crim.App.1992); Harris v. State, 500 So.2d 1292, 1296 (Ala.Crim.App.1986).

The record reveals that during sentencing, the trial court asked defense counsel if Bole had been offered a 25-year sentence as the result of a plea arrangement. The court and the attorneys then talked about that offer, as well as one or more additional offers of 20 years’ imprisonment. The court then stated, “So in addition to everything else I’ve heard, your client until now would not accept responsibility by pleading guilty to this until he was found guilty.” The trial court then sentenced Bole to 40 years’ imprisonment.

Following the sentencing hearing, Bole filed a “Motion to Reconsider Sentence.” He stated that he had a meritorious case in defense of the charge of reckless murder and that the trial court’s sentence of 40 years’ imprisonment was harsh, excessive and disproportionate, and violated his right to be free from cruel and unusual punishment. Bole also filed a “Motion For Judgment of Acquittal, Or in the Alternative, Motion For New Trial,” in which he asserted the same claims.

At the hearing on the motions, defense counsel commented referencing the various plea offers that Bole had rejected and argued that Bole’s trial had merit and was not a waste of the court’s time. Defense counsel noted that the jury had convicted Bole of the lesser-included offense of manslaughter. At no time did defense counsel argue that, based on the court’s comments at the sentencing hearing, the court’s sentence had been vindictive and in retaliation for Bole’s insisting on going to trial. The trial court denied Bole’s motions.

Because Bole never specifically argued the claim he now raises on appeal but rather generally argued as to the proportionality and validity of his sentence, this issue is not properly before this Court. “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.” Snowden v. State, 574 So.2d 960, 967 (Ala.Crim.App.1990). “The purpose of requiring a specific objection to preserve an issue for appellate review is to put the trial judge on notice of the alleged error, giving an opportunity to correct it before the case is submitted to the jury.” Jennings v. State, 588 So.2d 540, 541 (Ala.Crim.App.1991).

Although it could be argued that the trial court’s comments may have been misconstrued by Bole as vindictive or indicating a bias on the part of the trial court, Bole admitted to committing the offense and, when viewed in the context of the entire case, Bole’s argument that the court’s comments evidenced inappropriate sentencing is not supported by the facts. Thus, his contentions, even if reviewable, are without merit.

IV.

Lastly, Bole contends that the trial court committed reversible error and imposed an illegal sentence when it considered the firearm-enhancement statute, codified at § 13A-5-6(a)(4), Ala.Code 1975. Bole argues that because he was convicted of reckless manslaughter although he had been indicted for intentional murder, the firearm-enhancement provision should not have been applied to his sentence. Railey v. State, 710 So.2d 477 (Ala.Crim.App.1996), cert. quashed as improvidently granted, 710 So.2d 479 (Ala.1998). See also Chestang v. State, 837 So.2d 867, 868 n. 1 (Ala.Crim.App.2001).

In Ex parte McCree, 554 So.2d 336 (Ala.1988), the Alabama Supreme Court stated:

“[T]he resolution of this issue requires a two-step process. First, implicit in the language of § 13A-5-6(a)(5) — ‘a firearm or deadly weapon was used or attempted to be used in the commission of the felony5 — is the requirement that the underlying felony for which the defendant is convicted have, as one of its necessary elements, the element of intentional criminal conduct. Therefore, McCree’s reckless or negligent conduct, which resulted in manslaughter, while sufficient to supply the criminal scienter to support a conviction for a Class C felony, does not require a finding that he intentionally used the firearm to commit the felony, and thus can not support the application of § 13A-5-6(a)(5). In other words, reading § 13A-5-6 as a whole, we must construe subsection (a)(5) to mean that convictions for those underlying felonies that are committed without the intentional use of a deadly weapon do not fall within the category of convictions that invoke the enhancement provision of this statute.
“Second, ‘enhancement,’ as that word is used to describe the effect of § 13A-5 — 6(a)(5), necessarily means that in addition to the culpability of the offense for which the defendant has been convicted, the defendant’s conduct is necessarily the result of a higher degree of culpability, because of the jury’s finding that a ‘firearm or deadly weapon was used or attempted to be used in the commission of the felony.’ Indeed, the use of a deadly weapon to commit the underlying felony is the classic situation intended by the legislature to invoke the enhanced penalty.
“Here, the jury returned a verdict of manslaughter. By virtue of that finding, that McCree recklessly caused the death of his friend, the jury eliminated the element of McCree’s intentional use of a firearm as a means to take human life. The culpability of McCree for recklessness was established by the jury’s verdict. Otherwise, the guilty verdict would have reflected a higher degree of unlawful homicide. (Indeed, the indictment specifically charged McCree with manslaughter under § 13A-6-3(a)(l) and not with a higher degree of criminal culpability.) Therefore, the trial court was without authority to sentence McCree under an enhancement statute that, by its terms, is invoked only by a degree of culpability higher than that for which McCree had been found guilty.”

Ex parte McCree, 554 So.2d at 340-41. (Footnote and emphasis omitted).

However, in Ex parte McCree, the Court specifically noted that it need not determine in that case whether every manslaughter would require the same holding. The court confined the ruling to the facts of that case. In Mays v. State, 607 So.2d 347 (Ala.Crim.App.1992), this court determined that the facts of that case distinguished it from Ex parte McCree, supra, because the defendant in Mays “was taunting a young girl in front of several other children, stating that he would shoot her. He knew the pistol had a bullet in the chamber, which he had loaded himself. He was pointing it directly at the young girl. The victim did nothing to bring about the ‘accident.’” 607 So.2d at 349. This Court noted, in distinguishing the facts, that “[i]n McCree, the officer knew the gun was dangerous, but believed it to be incapable of firing because he thought it had no cartridges in it. He did not point the gun'at the victim. The victim grabbed the gun.” Id.

In determining that the facts of Mays properly supported the application of the firearm-enhancement statute, this court stated:

“The degree of recklessness in the present case far surpasses that found in McCree. The commentary to § 13A-6-3, Code of Alabama 1975, defines ‘recklessly’ as follows:
“ ‘[To act recklessly] means that a person [is] aware of and consciously disregardfs] “a substantial and unjustifiable risk” that death will occur. “The risk must be of such a nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.” ’ [ (quoting § 13A-2-2(3), Code of Alabama 1975).]
“Here, the appellant was aware of placing the deceased victim at the risk of death and consciously and grossly disregarded that risk. This case exemplifies the reason the Alabama Supreme Court limited McCree to its facts. McCree recognizes that there may be other situations where the enhancement provision should be used in reckless manslaughter cases. . We hold that in this case there did exist the intent envisioned by the legislature to apply the enhancement provision for the intentional use of a firearm. No error occurred here.”

Mays v. State, 607 So.2d at 349.

In the present case, Bole was aware of the danger of the use of the gun, and he knew that it was loaded. He pointed the gun directly at the victim and made a threat, whether “jokingly” (R. 97-99) or not. He then threatened a witness. These facts are more akin to those in Mays; therefore the application of the firearm-enhancement statute was proper in this case.

AFFIRMED.

WELCH, P.J., and WINDOM, KELLUM, and JOINER, JJ„ concur.

      . Bole was initially indicted for the offense of murder, a violation of § 13A-6-2(a)(2), Ala. Code 1975, but was convicted of the lesser-included offense of manslaughter, a violation of § 13A-6-3, Ala.Code 1975.

      . It is unclear from the record whether the document referred to one or two cases that had been dismissed and references to those cases redacted.


author: PER CURIAM. MURDOCK, Justice

text:
    Ex parte Asher Bragan BOLE. (In re Asher Bragan Bole v. State of Alabama).
    1101288.
    Supreme Court of Alabama.
    Dec. 30, 2011.
    Kate Pritchett, Vestavia Hills, for petitioner.
    Submitted on petitioner's brief only.

       Justice Wise was presiding judge of the Court of Criminal Appeals when that court initially considered this case.

   PER CURIAM.

WRIT DENIED. NO OPINION.

MALONE, C.J., and WOODALL, STUART, BOLIN, PARKER, SHAW, and MAIN, JJ., concur.

MURDOCK, J., concurs specially.

WISE, J., recuses herself.

MURDOCK, Justice

(concurring specially).

In Ex parte McCree, 554 So.2d 336, 341 (Ala.1988), this Court held that the enhancement of a sentence under Ala.Code 1975, § 13A-5-6(a), did not apply to an offense “committed without the intentional use of a deadly weapon.” I believe there is merit in Asher Bragan Bole’s argument to this Court that the decision of the Court of Criminal Appeals in this case conflicts with the holding in McCree. Nonetheless, for the reasons discussed below, I concur in denying certiorari review.

Summary of the Facts and Procedural History

Bole was indicted on a charge of intentional murder in the shooting death of his friend, Andra Johnson. A jury convicted Bole of the lesser offense of reckless manslaughter, a violation of Ala.Code 1975, § 13A-6-3. He was sentenced as an habitual felony offender to 40 years’ imprisonment. On appeal to the Court of Criminal Appeals, Bole contended, among other things, that the trial court erred in imposing a firearm enhancement to his sentence under Ala.Code 1975, § 13A-5-6(a)(4), because Bole did not intend to shoot Johnson. The Court of Criminal Appeals affirmed Bole’s conviction and sentence. Bole v. State, 86 So.3d 1088 (Ala.Crim.App. 2011).

At trial, Bole admitted that he shot Johnson, but he claimed that the shooting was accidental. The facts before us disclose that on the day of the shooting Johnson and Bole drove Tiffany Smith from Center Point to Bessemer in Johnson’s vehicle. During the drive, Bole sat with a pistol in his lap in the backseat of Johnson’s vehicle. The evidence also shows that, after the vehicle stopped and Tiffany Smith got out of the vehicle, Bole attempted to move to the front passenger seat. While attempting this move, Bole had the pistol in his hand and “jokingly” feigned a robbery of Johnson. In the course of these actions, the gun discharged, killing Johnson. Bole testified that the discharge of the gun was accidental and that the gun fired when he attempted to stand and lost his balance. Smith testified that there were no harsh words between the two men in the vehicle and that they had made plans to go to a nightclub together after taking Smith home.

Application of the Firearm-Enhancement Statute

Section 13A-5-6(a)(4), Ala.Code 1975, provides: “For a Class A felony in which a firearm or deadly weapon was used or attempted to be used in the commission of the felony, ... [the sentence shall be] not less than 20 years.” Bole contends that the firearm-enhancement statute is not applicable because he did not act with intent in shooting Johnson.

In McCree, this Court discussed the proper construction of the comparable firearm-enhancement provision in § 13A-5-6(a)(5):

“[T]he resolution of this issue requires a two-step process. First, implicit in the language of § 13A-5-6(a)(5) — ‘a firearm or deadly weapon was used or attempted to be used in the commission of the felony* — is the requirement that the underlying felony for which the defendant is convicted have, as one of its necessary elements, the element of intentional criminal conduct. Therefore, McCree’s reckless or negligent conduct, which resulted in manslaughter, while sufficient to supply the criminal scienter to support a conviction for a Class C felony, [] does not require a finding that he intentionally used the firearm to commit the felony, and thus can not support the application of § 13A-5-6(a)(5). In other words, reading § 13A-5-6 as a whole, we must construe subsection (a)(5) to mean that convictions for those underlying felonies that are committed without the intentional use of a deadly weapon do not fall within the category of convictions that invoke the enhancement provision of this statute.
“Second, ‘enhancement,’ as that word is used to describe the effect of § 13A-5-6(a)(5), necessarily means that in addition to the culpability of the offense for which the defendant has been convicted, the defendant’s conduct is necessarily the result of a higher degree of culpability, because of the jury’s finding that a ‘firearm or deadly weapon was used or attempted to be used in the commission of the felony.’ Indeed, the use of a deadly weapon to commit the underlying felony is the classic situation intended by the legislature to invoke the enhanced penalty.
“Here, the jury returned a verdict of manslaughter. By virtue of that finding, that McCree recklessly caused the death of his friend, the jury eliminated the element of McCree’s intentional use of a firearm as a means to take human life. The culpability of McCree for recklessness was established by the jury’s verdict. Otherwise, the guilty verdict would have reflected a higher degree of unlawful homicide. (Indeed, the indictment specifically charged McCree with manslaughter under § 13A-6-3(a)(l) and not with a higher degree of criminal culpability.) Therefore, the trial court was without authority to sentence McCree under an enhancement statute that, by its terms, is invoked only by a degree of culpability higher than that for which McCree had been found guilty.”

Ex parte McCree, 554 So.2d at 340-41 (footnote and some emphasis omitted; some emphasis added).

In the present case, the Court of Criminal Appeals quoted at length from McCree, but it concluded that a firearm enhancement is applicable in the present ease because the degree of recklessness here is higher than the degree of recklessness in McCree. Specifically, the Court of Criminal Appeals relied on its later case of Mays v. State, 607 So.2d 347 (Ala.Crim.App.1992), which held that the firearm-enhancement provision of § 13A-5-6(a)(4) was properly applied to a conviction for reckless manslaughter where the degree of recklessness “far surpasse[d]” the recklessness in McCree.

That is, the Court of Criminal Appeals held in Mays that, under the facts of that case, recklessness supplied the intent necessary for application of the firearm-enhancement provision. I find no support for that proposition in logic, in the language of the statute, or in the holding or rationale of this Court in McCree. In addition, of course, Mays itself involved a conviction for reckless manslaughter, not reckless murder, and therefore did not require a finding by the jury of anything more than “normal” recklessness.

The Court of Criminal Appeals in the present case stated, in part:

“[I]n Ex parte McCree, the [Supreme] Court specifically noted that it need not determine in that case whether every manslaughter would require the same holding. The Court confined the ruling to the facts of that case. In Mays v. State, 607 So.2d 347 (Ala.Crim.App.1992), this court determined that the facts of that case distinguished it from Ex parte McCree, supra....
“In determining that the facts of Mays properly supported the application of the firearm-enhancement statute, this court stated:
“ ‘The degree of recklessness in the present case far surpasses that found in McCree. The commentary to § 13A-6-3, Code of Alabama 1975, defines “recklessly” as follows:
“ ‘ “[To act recklessly] means that a person [is] aware of and consciously disregard[s] ‘a substantial and unjustifiable risk’ that death will occur. ...”
“ ‘Here, the appellant was aware of placing the deceased victim at the risk of death and consciously and grossly disregarded that risk. This case exemplifies the reason the Alabama Supreme Court limited McCree to its facts. McCree recognizes that there may be other situations where the enhancement provision should be used in reckless manslaughter cases. We hold that in this case there did exist the intent envisioned by the legislature to apply the enhancement provision for the intentional use of a firearm. No error occurred here.’
“Mays v. State, 607 So.2d at 349.
“In the present case, Bole was aware of the danger of the use of the gun, and he knew that it was loaded. He pointed the gun directly at the victim and made a threat, whether ‘jokingly’ (R. 97-99) or not. He then threatened a witness. These facts are more akin to those in Mays; therefore the application of the firearm-enhancement statute was proper in this case.”

Bole, 86 So.3d at 1097-98 (emphasis added).

First, as to the passage from Mays quoted by the Court of Criminal Appeals, I am at a loss as to how the Mays court could equate “recklessness” and “intent” in that case for the purpose of establishing a basis for the application of the firearm-enhancement statute. It is true that under AIa.Code 1975, § 13A-6-2(a)(2), a person commits murder (sometimes referred to as “reckless murder”) when “[u]nder circumstances manifesting extreme indifference to human life, he or she recklessly engages in conduct which creates a grave risk of death to a person other than himself or herself, and thereby causes the death of another person.” (Emphasis added.) In Ex parte Weems, 463 So.2d 170, 172 (Ala.1984), this Court explained that reckless murder involves conduct that cannot be fairly distinguished from intentional conduct (or that is tantamount to intentional conduct). In Mays, however, the defendant was convicted not of reckless murder, but only of reckless manslaughter under 13A-6-3(a)(l), an offense that does not have as an element intent or “extreme indifference to human life.”

Second, in reaching its conclusion, the Court of Criminal Appeals noted (1) that Bole knew that the gun was loaded, (2) that he was aware of the danger of a loaded gun, (3) that he pointed the gun at the victim, and (4) that he made a threat, “ ‘jokingly’ ... or not.” Even under the factual-comparison approach apparently employed by the Gourt of Criminal Appeals in Mays and in the present case, I question whether the culpability proven in the present case is sufficiently comparable to the culpability of the defendant in Mays and, indeed, whether the scienter fairly can be said to be tantamount to the intent that clearly is necessary as a basis for application of the firearm-enhancement statute. There is no evidence of animus between Bole and Johnson, and, for all that appears in the facts before us, Bole’s “threat” to Johnson was indeed made “jokingly.”

The decision in the present case appears to conflict squarely with the holding in McCree. McCree clearly held that the firearm enhancement applies only if the “underlying felony for which the defendant is convicted [has], as one of its necessary elements, the element of intentional criminal conduct.” McCree, 554 So.2d at 340. In McCree, this Court rejected an argument that the only requirement was that a firearm be used in the commission of the offense, and it held that, under the facts of that case, the firearm-enhancement provision did not apply to a conviction for reckless manslaughter when the victim was shot accidentally.

Under the holding in McCree, a firearm enhancement would not appear to apply in the present case because Bole was convicted of reckless manslaughter, an offense that does not have intentional conduct as one of its elements. Indeed, the jury acquitted Bole of intentional murder and convicted him of the lesser-included offense of reckless manslaughter, thus necessarily finding that Bole did not act with the intent requisite to support a conviction for murder. Accordingly, the firearm-enhancement provision is not applicable in the present case. See Railey v. State, 710 So.2d 477 (Ala.Crim.App.1996) (holding that reckless-manslaughter conviction did not warrant application of the firearm-enhancement statute because the defendant’s conduct was reckless, rather than intentional); Ward v. State, 689 So.2d 218 (Ala. Crim.App.1996) (holding that firearm-enhancement statute was not applicable where the jury was charged regarding reckless manslaughter and heat-of-passion manslaughter and the guilty verdict did not distinguish between the two offenses); Avery v. State, 603 So.2d 1123, 1124 (Ala.Crim.App.1992) (holding that firearm-enhancement statute did not apply to sentence imposed on conviction for reckless manslaughter and noting that, “by finding the appellant guilty of reckless manslaughter, the jury acquitted the appellant of intentional murder and ‘eliminated the element of [his] intentional use of a firearm as a means to take human life ’ ”); and Jenkins v. State, 640 So.2d 1053 (Ala.Crim.App.1993) (noting that, upon conviction for second-degree assault, firearm-enhancement statute could not be applied where the jury verdict failed to specify whether defendant’s conduct was intentional or reckless). Even if the Court of Criminal Appeals is correct in its determination that the degree of Bole’s recklessness was greater than the recklessness in McCree, the jury necessarily found that Bole’s conduct did not rise to the level of intentional conduct.

Ultimately, the Court of Criminal Appeals’ decision in the present case — and the decision in Mays upon which it relies— may simply misapprehend this Court’s caveat in McCree that it did not decide in that case “[wjhether every manslaughter conviction would require the same holding as here.” McCree, 554 So.2d at 341. This caveat does not (as the opinion in Mays suggests) refer to reckless manslaughter, but only to manslaughter, The caveat cannot be read to contradict the clear holding of McCree that the enhancement applies only to underlying felonies in which intentional conduct is an element.

More importantly, I believe it is critical that we reject the notion that McCree intended to establish some sort of sliding scale (ranging from “normal” recklessness, on one end, to the “extreme indifference” form of recklessness tantamount to intent, on the other end) with a contemplation that courts in future cases must perform the task of deciding whether the defendant’s conduct somehow falls close enough to the upper end of the scale to warrant application of the firearm-enhancement statute. I fail to see any principled distinction among various degrees or levels of recklessness, so long as the recklessness is not so extreme as to be tantamount to intentional conduct (such as would support a conviction for reckless murder under Ala.Code 1975, § 13A-6-2(a)(2)). See Ex parte Weems, 463 So.2d 170, 172 (Ala.1984) (noting that reckless murder involves conduct that cannot be fairly distinguished from intentional conduct).

In other words, I do not understand how we could accept a criminal statutory scheme that does not delineate more categorically what types of offenses are subject to enhancement when a firearm is used in their commission. A case-by-case comparison by every trial court of how closely the scienter in the case before it compares with the scienter in previous cases is hardly compatible with the clarity required of criminal statutes. See generally Carroll v. State, 599 So.2d 1253, 1266 (Ala.Crim.App.1992), aff'd, 627 So.2d 874 (Ala.1993) (“[Cjriminal statutes must be construed so as to give fair warning of the nature of the conduct proscribed and not broadened by judicial interpretation....”); Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) (noting that, in order to pass constitutional muster, a penal statute must “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement”); and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (holding that any fact that increases a punishment above the statutory maximum must be presented to a jury and proven beyond a reasonable doubt).

Notwithstanding the foregoing, I vote with the other members of this Court today to deny certiorari review of the Court of Criminal Appeals’ decision as it relates to the firearm-enhancement issue. I do so because Bole has not presented in his petition to this Court an adequate argument as to how he was prejudiced by the application of the firearm-enhancement provision. Bole was sentenced to 40 years’ imprisonment, a term that is greater than either the minimum 10-year sentence that would have been applicable without the firearm enhancement or the minimum 20-year sentence applicable under the firearm-enhancement statute. Conceivably, Bole was prejudiced in that the trial court’s decision-making process was based upon or influenced by incorrect sentencing parameters. Bole’s petition to this Court, however, does not present to us any argument in this regard. It is not this Court’s duty to craft arguments or to conduct research for a party. McLemore v. Fleming, 604 So.2d 353, 353 (Ala.1992).

      . The manslaughter offense of which Bole was convicted actually is a Class B felony, but, because Bole had one prior felony conviction, he was sentenced as if his offense were a Class A felony. Ala.Code 1975, § 13A-5-9(a)(2). Bole’s petition to this Court assumes that, if firearm enhancement under § 13A-5-6(a) is required, it would be the enhancement provided in subsection (a)(4) rather than the enhancement provided in subsection (a)(5), the latter of which is applicable to Class B felonies.
      The range of sentences for a Class A felony without the firearm enhancement prescribed by § 13A-5-6(a)(4) is 10 years’ to 99 years’ imprisonment or life imprisonment; if the firearm enhancement of § 13A-5-6(a)(4) applies, the range of sentences is 20 years' to 99 years' imprisonment or life imprisonment.

      . At the time McCree committed his offense in 1985, manslaughter was a Class C felony. Section 13A-6-3(b) was amended, effective August 12, 1987, to provide that manslaughter is a Class B felony.

      . Compare Ala.Code 1975, § 13A-6-2(a)(2), requiring a finding of recklessness of a degree "manifesting extreme indifference to human life” as a basis for conviction for "reckless murder.”

      . The court in Mays stated that "the court in McCree concluded its opinion by saying its holding was not applicable to every reckless manslaughter case, but only to McCree and its specific facts.” Mays, 607 So.2d at 348-49 (emphasis added). The portion of McCree to which this statement refers does not refer to "reckless manslaughter” but only to "manslaughter.” This caveat can be explained as a possible reference to provocation manslaughter under § 13A-6-3(a)(2), which involves a homicide under circumstances that would constitute murder (i.e., intentional conduct) but the murder is mitigated because it occurs under a sudden heat of passion by a provocation recognized by law. Such an offense could involve the intentional use of a firearm.

      . Even assuming that the scienter-comparison approach suggested by Mays were the law, the facts of this case and those of McCree are similar. In both cases, the defendant had a loaded pistol in his hands and the defendant did not intend to shoot the victim, or anyone else, but the pistol accidentally fired. Despite the joking threat to the victim in the present case, there was no evidence in the present case indicating that Bole intended to shoot the victim, and the jury acquitted him of the intentional crime of murder.


author: BURKE, Judge. WELCH, Presiding Judge,

text:
    Ray Anthony COATS v. STATE of Alabama.
    CR-10-0032.
    Court of Criminal Appeals of Alabama.
    July 29, 2011.
    Rehearing Denied Sept. 23, 2011.
    Certiorari Denied Dec. 9, 2011 Alabama Supreme Court 1110095.

      Ray Anthony Coats, pro se.
    Troy King, atty. gen., and Marc Alan Starrett, asst. atty. gen., for appellee.
   BURKE, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WINDOM, KELLUM, and JOINER, JJ., concur. WELCH, P.J., dissents, with opinion.

WELCH, Presiding Judge,

dissenting.

Ray Anthony Coats appealed from the denial of his latest motion seeking reconsideration of his sentence pursuant to § 13A-5-9.1, Ala.Code 1975. See Kirby v. State, 899 So.2d 968 (Ala.2004). Coats was sentenced to life in prison without the possibility of parole following his March 23, 1987, first-degree robbery conviction. (Mobile Circuit Court case no. CC-87-79.) In the motion Coats sought to be resen-tenced.

The circuit court denied Coats’s Kirby motion because the court did not believe it had jurisdiction to consider a successive motion for sentence reconsideration. The majority correctly determines that, based on the authority of Ex parte Gunn, 993 So.2d 433 (Ala.2007), the circuit court’s belief was in error. “In Gunn, the Alabama Supreme Court overruled Wells v. State, 941 So.2d 1008 (Ala.Crim.App.2005), insofar as Wells purported to impose a jurisdictional limit of one motion for reconsideration of sentence per defendant per case.” Hannon v. State, 16 So.3d 818, 819 (Ala.Crim.App.2009). Nevertheless, the majority affirmed the denial of the motion, because, in Coats’s prior motion to reconsider this sentence, see Coats v. State, 986 So.2d 1241 (Ala.Crim.App.2007) (Welch, J., dissenting), the circuit court could have found Coats to be a violent offender and, thus, ineligible for sentence reconsideration under § 13A-5-9.1. See A.G. v. State, 989 So.2d 1167, 1180 (Ala.Crim.App.2007) (“[A]n appellate court may affirm a circuit court’s judgment if that judgment is correct for any reason.”).

For the reasons I expressed in my dissent in Ashford v. State, 12 So.3d 160 (Ala.Crim.App.2008), I respectfully dissent. I stated in Ashford:

“I agree with the majority that a circuit court may properly deny a motion for sentence reconsideration under § 13A-5-9.1, Ala.Code 1975, on the basis that such motion is successive, so long as at least one of the previous motions was properly considered in compliance with this Court’s opinion in Holt v. State, 960 So.2d 726 (Ala.Crim.App.2006). However, in this case, the Court erroneously relied on this Court’s opinion in Wells v. State, 941 So.2d 1008 (Ala.Crim.App.2005), in denying Ash-ford’s motion.
“This case does not present a situation in which the circuit court believed it had jurisdiction to consider the motion but refused to do so on the basis that the motion was successive. Rather, the circuit court, based on earlier caselaw, was of the belief that it was precluded from considering the motion because it was without jurisdiction. I do not believe that a previous motion properly considered and denied cures the circuit court’s erroneous reliance on Wells, supra. Because the circuit court erroneously thought it did not have jurisdiction to rule on Ashford’s motion to reconsider, it did not reach the merits, if any, to Ashford’s motion to reconsider. I would reverse the circuit court’s judgment and remand this cause for the circuit court to review the motion and to enter judgment accordingly. Therefore, I respectfully dissent.”

Ashford v. State, 12 So.3d 160, 163 (Ala.Crim.App.2008).

Moreover, because the circuit court did not consider the motion, Coats was denied due process. The Alabama Constitution, Art. I, § 6, states that “the accused has a right to be heard.... ” While Coats was not literally entitled to a hearing, he was entitled to have his motion reviewed. “It is generally understood that an opportunity for a hearing before a competent and impartial tribunal upon proper notice is one of the essential elements of due process.” Ex parte Weeks, 611 So.2d 259, 261 (Ala.1992). Coats’s motion was dismissed without any review of the merits of his claim because the circuit court erroneously believed that it lacked jurisdiction to entertain the motion. Under this circumstance, Coats was not afforded the opportunity for sentence reduction provided by § 13A-5-9.1, Ala.Code 1975, and Kirby. The circuit court had jurisdiction and, by not ruling on the motion, deprived Coats of due process. Additionally, because the circuit court did not enter a ruling, there was nothing for this Court to review on appeal. I do not believe this Court should affirm on the basis that “the circuit court is correct for any reason” when the circuit court did not in fact enter a ruling.

As in Ashford, I would reverse the circuit court’s judgment and remand this cause for the circuit court to review the motion and to enter judgment accordingly.

Moreover, I also dissent because I did not agree with this Court’s decision to affirm the circuit court’s denial of Coats’s prior Kirby motion. See my dissent in Coats v. State, 986 So.2d 1241 (Ala.Crim.App.2007) (Welch, J., dissenting). I dissented because I do not believe the circuit court complied with Holt v. State, 960 So.2d 726 (Ala.Crim.App.2006).

      . This Court took judicial notice of Coats v. State, 986 So.2d 1241 (Ala.Crim.App.2007) (Welch, J., dissenting), an unpublished memorandum disposing of Coats's prior motion for sentence reconsideration. See Nettles v. State, 731 So.2d 626, 629 (Ala.Crim.App.1998) (noting that this Court may take judicial notice of its records.).


author: WELCH, Presiding Judge.

text:
    Vincent Martez TRAWICK v. STATE of Alabama.
    CR-10-0050.
    Court of Criminal Appeals of Alabama.
    Sept. 30, 2011.
    Rehearing Denied Dec. 9, 2011.

      Aaron Gartlan, Dothan, for appellant.
    Luther Strange, atty. gen., and Laura I. Cuthbert, asst. atty. gen., for appellee.
   WELCH, Presiding Judge.

Vincent Martez Trawick was convicted of murder, a violation of § 13A-6-2, Ala. Code 1975. The trial court sentenced Trawick to of 99 years’ imprisonment. Trawick made an oral motion for a judgment of acquittal and filed a motion for a new trial, both of which were denied. This appeal followed.

The following evidence was presented at trial. Rainey McIntyre testified to the following. A week or two before Christmas in December 2005, Rainey McIntyre was babysitting her cousin Latanya McIntyre’s children. On that night, the children’s father, Zach “Big Dothan” Sever-son, came to the door with Vincent “Nookie” Trawick and Gregory “Pooh” Jones and requested to see his children. Rainey McIntyre told Severson that the children were asleep and that he could not see them. Severson had been drinking and was talking very loudly. Severson splashed an alcoholic drink on Trawick as Severson was talking. Severson and Trawick got into an argument; Severson got in Trawick’s face during the argument; and Severson “sped out,” leaving Trawick and Jones at the residence. (R. 36.) After Severson left, Trawick was upset and stated that when he saw Severson again, he was going to “remind him” of what had happened. (R. 37.)

The record reflects that Severson was shot multiple times on December 24, 2005, and that initially law enforcement was not privy to the identity of the assailant. In February 2006, the State offered a $5,000 reward for information leading to the arrest and conviction of the guilty person or persons. (C. 246.) Trawick was arrested and charged with the murder. At trial, which commenced on August 16, 2010, the State presented evidence that Severson died as a result of multiple gunshot wounds. The State presented evidence that the four bullets recovered from Sever-son’s body appeared to be large caliber bullets, either .40 or .45 caliber.

Officer Tony Luker with the Dothan Police Department testified to the following. On March 6, 2006, Officer Luker was present with Officer Frank Meredith when Officer Meredith interviewed Kenya Jackson about the Severson murder.

Officer Frank Meredith with the Dothan Police Department testified that on March 6, 2006, he interviewed Kenya Jackson regarding the Severson murder. Officer Meredith testified that Jackson provided him with “intimate details” regarding the murder. (R. 183.) As a result of Jackson’s information, Officer Meredith was able to arrest Vincent Trawick, and Jackson testified to the grand jury about the details of the Severson murder. Officer Meredith testified that Jackson did not cooperate with law enforcement after he testified before the grand jury, and Jackson appeared to be very scared.

The transcript of Jackson’s interview with Officer Meredith, which was admitted into evidence (R. 163.), reflected that Jackson stated:

“I goes around in front of Ms. Lucy’st] house....
“So, by that time Nookie had spotted ... spotted Big Dothan, got ... went behind the house, got the gun. Big Dothan and Booney[] pulled back up ... I guess ... got out or whatever. Dothan’s still in the driver’s seat. I went to go and get dressed for the club. Nookie was coming back around and I was like boy, what you about to do? Then I kept.. .my homeboy pieked me up ... rode around, smoked some weed. We pulled back up about a hour ... a hour and thirty minutes ... when we pulled up, I seen Vincent Trawick had the handgun pointed at Big Dothan. Told him to F— N-, let me get that. Let me get everything outta your pockets. Dothan like, no you ain’t taking s— from me and charged him. Boom. He shot four times. Dothan hit the ground. He walked over there and stood over him and shot him two more times. And told him F— N-, I was gonna kill you.”

(C. 188-89.)

Jackson also stated in the interview that Trawick had a .40 caliber handgun that was recovered by law enforcement. However, the weapon was not admitted into evidence.

Kenya Jackson testified to the following. Jackson testified that he had an unlawful-cocaine-possession case and an obstruction-of-justice case pending at the time he spoke with Officer Meredith regarding this matter. Jackson testified that he made false statements to Officer Meredith because Officer Meredith told Jackson that he would let Jackson out of jail if he assisted with the Severson case. Jackson testified that he did not see Trawick shoot Severson and that he made the whole story up.

Officer John Crawford with the Dothan Police Department testified that Cornelius Garlington wrote law enforcement a letter stating that he wanted to speak with them regarding Severson’s murder. Officer John Crawford testified that Garlington told him that “Nookie” committed the murder, and a transcript of the interview between Garlington and Officer Crawford was admitted into evidence. (R. 351.) The transcript of the interview on October 30, 2006, reflects that Garlington told Officer Crawford that Alex “Nookie” Trawick committed the murder. (C. 184.) However, testimony at trial indicated that Alex Trawick is Vincent Trawick’s brother and that Alex Trawick was in prison for murdering his girlfriend. (R. 151.)

Garlington stated in the transcript,
“[Nookie] was just telling me more or less of what happened; just said that he was in the car with ‘Big Dothan,’ and they went to Ford Country to I think a girl named Tonya’s house. And um ... ‘Big Dothan’ was drunk and told him that uh.... He wasn’t taking him back to the bottom, you know across town. And so um.... He said that they got in a confrontation and uh ... They was arguing and ‘Big Dothan’ went to calling him names or whatever. So he got upset and he left and walked. And then he just said he was like man, I’m gonna get him. So the next day when ‘Big Dothan’ pulled up in the bottom and got outta the car, Alex approached him with a gun and ... started firing shots.”

(C. 184.)

At the end of the interview, Garlington indicated that he would be willing to testify in court as to this conversation. (R. 185.)

Garlington testified to the following. Garlington testified that at the time of trial he was in custody at the Houston County jail for a probation violation. Garlington denied that he spoke with law enforcement about Severson’s murder and denied that he knew Vincent Trawick and Alex Traw-ick. Garlington denied that he sent law enforcement a letter indicating that he had information about the Severson murder.

Officer Will Glover with the Dothan Police Department testified that Antonio McKinley told him that Vincent Trawick killed Severson. However, the record re-fleets that when McKinley was called to testify he stated that he remembered speaking with law enforcement about the Severson case, but he refused to answer the prosecutor’s questions and, as a result, was held in contempt of court.

However, the record contains a transcript of the interview on July 23, 2009, between Officer Will Glover and McKinley. The transcript, which was admitted into evidence (R. 350), reflects that McKinley stated that Big Dothan slapped Nookie in the presence of women, and Nookie was embarrassed.

McKinley stated:

“And so well that particular night, or evening ... Me, ‘Nookie,’ ‘Fonzo,’[] and somebody else, we was all sitting out there chilling and dranking. And well ‘Big Dothan’ came up to go get him some’in. A shot inside the ‘Bootlegger’ house. And well, on his way in there ‘Nookie’ seen him. You know what I’m saying, ‘Nookie’ was like well, there the n- go right there. And so him and another cat ran behind [Lucy’s] house and masked up and came back. By the time he came back outta the house going to his car, they done came from beside the house. Well, the dude that was with ‘Nookie’ masked up, he didn’t do noth’in. He just stood back, but he was there ... standing there. ‘Nookie’ the one pulled the pistol out and shot the man. He shot him about three or four times I think....”

(C. 212.)

Latanya McIntyre testified that McKinley called her several times from jail and that she recorded some of those conversations. Latanya McIntyre testified that McKinley told her that Vincent Trawick had killed someone.

Trawick argues on appeal that the trial court erred in admitting as substantive evidence the out-of-court statements of Garlington, Jackson, and McKinley at trial. The State presented the testimony of Gar-lington, Jackson, and McKinley at trial; however, these three witnesses failed to testify in court that Trawick caused the murder of Severson. In response, the State impeached Garlington’s and Jackson’s testimony at trial with prior inconsistent statements the men had made to law enforcement. Further, McKinley refused to cooperate at trial and refused to answer questions posed by the prosecution. The trial court subsequently held McKinley in contempt of court. (R. 333.) The State requested that the trial court declare McKinley to be a hostile witness and find McKinley to be an unavailable declarant pursuant to Rule 804, Ala. R. Evid. The trial court allowed McKinley’s pretrial statement to police to be admitted into evidence.

A. Garlington’s and Jackson’s Statements to Law Enforcement

In an apparent attempt to present substantive evidence that Trawick did, in fact, kill Severson, the State presented the out-of-court statements of Garlington and Jackson.

“Rule 607[, Ala. R. Evid.,] authorizes a party to bring against his own witness all weapons from the arsenal of impeachment that historically were reserved generally for opposing witnesses. This power resides in the prosecution in a criminal case, the criminal defense, and any civil party. One may, for example, impeach his own witness by showing that the witness made a statement or performed an act that is inconsistent with the witness’ present testimony. Bias-indicating acts or statements could likewise be used for such an attack. Other witnesses may be called to contradict the witness’ version of the facts.”

Charles W. Gamble, McElroy’s Alabama Evidence § 165.01(6)(a) (6th ed.2009).

“ ‘Prior inconsistent statements of a witness made out of court are admissible in evidence for the purpose of showing that the witness is not worthy of belief — that is, for impeachment purposes. Such evidence is not classed as hearsay.’
“29 Am.Jur.2d Evidence, § 500 (1967). (Emphasis supplied.) See also McEl-roy’s Alabama Evidence, swpra, at § 149.01(10). This type statement is not offered to prove the truth of the things said, and so does not fit the definition of hearsay.”

Jones v. State, 531 So.2d 1251, 1254 (Ala.Crim.App.1988).

“In Burgin [v. State, 747 So.2d 916 (Ala.Crim.App.1999) ], this court was persuaded by the federal courts’ interpretation of Rule 607 of the Federal Rules of Evidence, which is identical to the Alabama Rule:
“ ‘ “[Rule] 607 allows the government to impeach its own witness. See Fed.R.Evid. 607. However, ‘ “the government must not knowingly elicit testimony from a witness in order to impeach him with otherwise inadmissible testimony.” ’ United States v. Gomez-Gallardo, 915 F.2d 553, 555 (9th Cir.1990) (quoting United States v. Whitson, 587 F.2d 948, 952-53 (9th Cir.1978)). Impeachment is improper when employed as a guise to present substantive evidence to the jury that would be otherwise inadmissible. Id. A determination must be made as to whether the government examined the witness for the primary purpose of placing before the jury substantive evidence which is otherwise inadmissible. Id.’”
“Burgin, 747 So.2d at 918, quoting United States v. Gilbert, 57 F.3d 709, 711 (9th Cir.), cert. denied, 515 U.S. 1110, 115 S.Ct. 2264, 132 L.Ed.2d 269 (1995). As this court stated in Burgin, ‘“[i]t would be an abuse of the rule ... for the prosecution to call a witness that it [knows will] not give it useful evidence, just so it [can] introduce hearsay evidence against the defendant in the hope that the jury would miss the subtle distinction between impeachment and substantive evidence.” ’ Id.”

Smith v. State, 745 So.2d 922, 935 (Ala.Crim.App.1999). Garlington’s and Jackson’s statements to police were not admissible as substantive evidence, but were only admissible as impeachment evidence to show that Garlington and Jackson were not “worthy of belief.” See Lindley v. State, 728 So.2d 1153 (Ala.1998) (holding that where a nonparty witness denied making a prior statement, the statement may not be shown by the testimony of other witnesses). As this Court stated in Burgin v. State, 747 So.2d 916 (Ala.Crim.App.1999), above, the prosecution was not entitled to present Garlington’s and Jackson’s statements to the jury as evidence that Trawick caused Severson’s death. Further, as to Jackson’s statement, the trial court instructed the jury that the statement was admitted as a prior inconsistent statement. (R. 245.) See Burgin, 747 So.2d at 918, 919 (holding that prosecutor’s attempt to argue that State witness’s prior inconsistent statement admitted as impeachment evidence was substantive evidence of guilt was cured by trial court’s sustaining of objections and instructing jury that evidence was for impeachment purposes only). Later, when the trial court charged the jury before deliberations, it stated: “A prior inconsistent statement of a witness who is not a defendant, although usable for impeachment purposes, cannot be used as substantive evidence of an accused’s guilt.” (R. 455.) Therefore, this evidence was not admitted as substantive evidence and could not have been considered by the jury as such.

B. McKinley’s Statement to Law Enforcement

The State presented McKinley as a witness at trial; however, McKinley refused to cooperate at trial and refused to answer questions by the prosecution. The trial court subsequently held McKinley in contempt of court. (R. 333.) The State requested that the trial court declare McKinley to be a hostile witness and find McKinley to be an unavailable declarant pursuant to Rule 804, Ala. R. Evid. The trial court allowed McKinley’s pretrial statement to police to be admitted into evidence. However, for the reasons expressed below, this evidence was not admissible.

Rule 804(a)(2), Ala. R. Evid., designates a declarant unavailable if he or she “persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so.” Certainly, McKinley persisted in refusing to answer the questions of the State after being ordered to do so and was, therefore, unavailable. However, evidence of the de-clarant’s prior statements is admissible under Rule 804(b), Ala. R. Evid., only if it is 1) former sworn testimony, 2) a statement made under belief of impending death, 3) a statement against interest, or 4) statements of personal or family history.

McKinley’s unsworn statement to law enforcement is, in pertinent part, as follows:

“And so well that particular night, or evening ... Me, ‘Nookie,’ ‘Fonzo’ and somebody else, we was all sitting out there chilling and dranking. And well ‘Big Dothan’ came up to go get him some’in. A shot inside the ‘Bootlegger’ house. And well, on his way in there ‘Nookie’ seen him. You know what I’m saying, ‘Nookie’ was like well, there the n-go right there. And so him and another cat ran behind [Lucy’s] house and masked up and came back. By the time he came back outta the house going to his car, they done came from beside the house. Well, the dude that was with ‘Nookie’ masked up, he didn’t do noth’in. He just stood back, but he was there ... standing there. ‘Nookie’ the one pulled the pistol out and shot the man. He shot him about three or four times I think....”

(C. 212.)

The State argues that the statement above was against McKinley’s pecuniary or proprietary interest pursuant to Rule 804(b)(8), Ala. R. Evid., which defines such a statement as: “A statement which was at the time of its making so contrary to the declarant’s pecuniary or proprietary interest that a reasonable person in the declar-ant’s position would not have made the statement unless believing it to be true.” However, McKinley’s statement was not against his personal interest. In fact, McKinley testified at trial that, at the time he made the statement to law enforcement, he was in court for matters related to a charge of felony escape. (R. 488.) At the time of this trial, McKinley was already in prison. (R. 438.) Further, as discussed above, the State had offered a $5,000 reward for information that would lead to the arrest and conviction of the guilty person or persons in this case. Therefore, at the time McKinley made the statement it was not contrary to his pecuniary and proprietary interest because he would have wished to receive assistance from the State with the charges pending against him and/or to receive the offered reward. Compare Dewolfe v. State, 62 So.3d 1142 (Fla.Dist.Ct.App.2011) (holding that trial court erred when it prohibited two witnesses from testifying that they heard the unavailable witness state that he had committed the theft the defendant had been convicted of because the statements were declarations against penal interest), and Williams v. State, 295 Ga.App. 249, 671 S.E.2d 268 (2008) (holding that third person’s statement naming someone other than defendant as the individual who stole victim’s vehicle was not self-incriminatory). Therefore, this self-serving statement was not admissible pursuant to Rule 804, Ala. R. Evid.

Based on the foregoing, the judgment of the trial court is due to be, and is hereby, reversed and the case remanded for a new trial.

REVERSED AND REMANDED.

WINDOM, KELLUM, and BURKE, JJ., concur. JOINER, J., concurs in the result.

      . At trial, McIntyre was unable to recall the exact date this incident occurred.

      . The record does not reflect the last name of "Lucy.” However, Jackson stated that Lucy's house was a "bootlegger house” at which whiskey was sold. (C. 190.)

      . The identity of “Booney" is not clear from the record.

      . The identity of "Fonzo” is not clear from the record.

      . Trawick challenges on appeal the admission of the out-of-court statements of Garlington, Jackson, and McKinley. Trawick preserved his arguments as to this evidence by objecting to the admission of this evidence at trial. (R. 157, 164, 188, 232, 245, 251, 333.)

      . Although Trawick argues that his conviction should be reversed and rendered, pursuant to Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988), this Court may not render Trawick’s conviction.


author: PER CURIAM.

text:
    Steven C. HAMEL, Appellant/Cross-Appellee, v. Diane REILLY, Appellee/Cross-Appellant. and John Reilly, Appellee.
    Nos. 5D10-1252, 5D10-2536, 5D10-3213.
    District Court of Appeal of Florida, Fifth District.
    April 20, 2012.
    Rehearing Denied May 16, 2012.
    Mark D. Shuman, of GrayRobinson, P.A., Melbourne, for Appellant/Cross-Ap-pellee.
    Allan P. Whitehead, of Frese, Hansen, Anderson, Anderson, Heuston & Whitehead, P.A., Melbourne, for Appel-lees/Cross-Appellant.
   PER CURIAM.

We affirm the summary final judgment in favor of the appellee, Diane Reilly, and the dismissal with prejudice in favor of the appellee, John Reilly, entered in this case in all respects except for the issue of costs. When summary judgment was granted to Ms. Reilly, the order indicated that as the prevailing party, she was “entitled to recover her taxable costs” in an amount to be later determined. Later, however, the court rendered an order saying that Ms. Reilly’s motion for fees and costs was denied in all respects. Both parties agree that Ms. Reilly is entitled to taxable costs as the prevailing party. See § 57.041(1), Fla. Stat. (2011).

Accordingly, we affirm the judgment and order appealed from, but reverse and remand for assessment of taxable costs in favor of Ms. Reilly.

AFFIRMED in part, REVERSED in part, and REMANDED.

MONACO, LAWSON and EVANDER, JJ., concur.