source: Caselaw Access Project

author: STUART, Justice.

license: Public Domain

text:
    Ex parte Wakilii BROWN. (In re Wakilii Brown v. State of Alabama).
    1091767.
    Supreme Court of Alabama.
    June 30, 2011.

      Randall S. Susskind and Bryan Stevenson, Equal Justice Initiative, Montgomery; and Jonathan L. Marcus and Jeffrey H. Lerner of Covington & Burling LLP, Washington, D.C., for petitioner.
    Luther Strange, atty. gen., and John C. Neiman, Jr., deputy atty. gen., and Thomas R. Govan, Jr., asst. atty. gen., for respondent.

       Justice Main and Justice Wise were members of the Court of Criminal Appeals when that court considered this case.

   STUART, Justice.

Wakilii Brown was convicted of three counts of capital murder: the murders of Dotty Jemison and Cherea Jemison by one act or pursuant to one scheme or course of conduct, see § 13A-5-40(a)(10), Ala.Code 1975; the murder of Dotty Jemison during the commission of a first-degree robbery, see § 13A-5-40(a)(2), Ala.Code 1975; and the murder of Cherea Jemison during the commission of a first-degree robbery, see § 13A-5-40(a)(2), Ala.Code 1975. The jury, by vote of 10-2, recommended that Brown be sentenced to death. The trial court agreed with the jury’s recommendation and sentenced Brown to death. On appeal, the Court of Criminal Appeals affirmed Brown’s convictions and sentence. Brown v. State, 74 So.3d 984 (Ala.Crim. App.2010). Brown petitioned this Court for certiorari review of the decision of the Court of Criminal Appeals. We granted the writ to address the procedures for determining the admissibility of the testimony of a child witness and to review Brown’s allegations of the improper admission of the testimony of a child witness, of prosecutorial misconduct, and of error in the trial court’s jury instructions. We affirm.

Our resolution of the issues presented by Brown’s certiorari petition does not require an examination of the sufficiency of the evidence to sustain Brown’s convictions and sentence. The Court of Criminal Appeals provides a thorough recitation of the facts surrounding the offenses in Brown v. State, supra.

Standard of Review

Brown did not object at trial to the incidents of which he now complains; therefore, our review is for plain error.

“ ‘ “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)).”

Ex parte Billups, [Ms. 1090554, December 30, 2010] — So.3d-,-(Ala.2010). Additionally, Rule 45A, Ala. R.App. P., provides:

“In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant.”

Discussion

I. Admissibility of testimony of a child ivitness.

Brown contends that Alabama courts have not squarely discussed the procedures necessary to address the substantial risk of prejudice presented by the admission of testimony from a child witness. First, Brown contends that this Court should adopt a per se rule that, when a trial court examines a child witness to determine the child’s understanding of the duty to testify truthfully, the examination must be conducted outside the presence of the jury. Second, Brown maintains that a trial court, in addition to determining whether a child witness understands the duty to testify truthfully, must also determine whether the child’s testimony is reliable. Additionally, Brown argues that the trial court erred in his case in conducting the voir dire of the child witness in the presence of the jury and then in admitting her testimony.

A. Rule 603, Ala. R. Evid., determination for the admissibility of a child witness’s testimony.

Brown urges this Court to adopt a per se rule requiring that a trial court’s examination of a child witness to determine whether the child understands the duty to testify truthfully must occur outside the presence of the jury. Rule 603, Ala. R. Evid., provides:

“Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’s conscience and impress the witness’s mind with the duty to do so.”

According to Brown, the trial court’s examination of the child witness should occur outside the presence of the jury to prevent the trial court from invading the jury’s exclusive role of determining the credibility of the witness. The Nebraska Supreme Court, when confronted with this issue, stated:

“In his fifth assignment of error, Fleming asserts, without authority, that the district court erred in conducting F.K’s and A.S.’s competence examinations before the jury. The State argues that there was no error, as child witnesses are presumed competent, and there is no requirement that such hearings be held out of the presence of the jury.
“This issue has been considered in several jurisdictions. For example, the Pennsylvania Supreme Court has adopted a per se rule that child witnesses are to be examined for competence outside the presence of the jury. The court noted that
“ ‘[e]ven with a cautionary instruction ... permitting the competency proceedings to take place in the presence of the jury inevitably permeates into the veracity determination assigned exclusively to the jury. Particularly in cases such as this where credibility is the central issue, the likely impact of conducting the competency proceedings in the presence of the jury cannot be diminished.’
“The Colorado Supreme Court specifically rejected this per se rule in People v. Wittrein[, 221 P.3d 1076, 1081 (Colo.2009) ]. Instead, that court concluded that while it was
“ ‘the better approach [to examine outside the presence of the jury], any prejudice ... does not rise to the level of reversible error. The prosecutor asked [the child victim] simple questions that directly related to her ability to be truthful and to relate facts to the jury. The jury was not told the purpose of the testimony and was excused before the judge ruled on ... competency.’
“Similarly, the New Mexico Court of Appeals noted in State v. Manlove[, 79 N.M. 189, 441 P.2d 229 (N.M.Ct.App.1968) (superseded by state evidence rule on other grounds as stated in State v. Hueglin, 130 N.M. 54, 16 P.3d 1113 (N.M.Ct.App.2000)) ], that it was not error for the trial court judge to inquire into the competence of a child witness in the presence of the jury. The Manlove court noted that such decisions were in the sound discretion of the trial court, though the court did ‘feel that generally the better practice would be to conduct this examination outside the presence of the jury.’ [79 N.M. at 193, 441 P.2d at 233.]
“Still other jurisdictions have concluded that it was not error, or in some instances was even preferable, to have the competency proceedings take place in the presence of the jury. These jurisdictions argue that this type of questioning ‘assists the jurors in evaluating independently the child’s qualifications as a witness.’ [Brown v. United States, 388 A.2d 451, 458 (D.C.1978).] The Wisconsin Supreme Court has also noted that where there was no objection and the jury was instructed that it was the sole judge of the credibility of the witnesses, as well as the weight and effect of the witnesses, it was not error to hold proceedings in the presence of the jury. [Collier v. State, 30 Wis.2d 101, 140 N.W.2d 252 (1966).]
“We believe that the best practice is for any hearings on the competency of child witnesses to take place outside the presence of the jury. However, the failure of the trial court to do so is not necessarily reversible error. Instead, an appellate court must consider whether the defendant was prejudiced by the trial court’s actions.”

Nebraska v. Fleming, 280 Neb. 967, 975, 792 N.W.2d 147, 155-56 (2010) (footnotes omitted).

Like the Nebraska Supreme Court, we decline to establish a per se rule requiring a trial court’s examination of a child witness to determine the child’s understanding of the duty to testify truthfully to be conducted outside the presence of the jury. Although it may be the better practice to conduct such an examination outside the presence of the jury to avoid a risk of invading the province of the jury with regard to determining the credibility of a child witness, the fact that the examination occurs in the presence of the jury does not automatically create prejudice and require reversal. To establish reversible error in this regard, a defendant must show that he or she was prejudiced by the trial court’s actions.

In this case, Brown contends that he was prejudiced when the trial court examined T.S., the child witness, to determine her understanding of her duty to testify truthfully in the presence of the jury because, he says, “the trial court improperly invaded the province of the jury and bolstered T.S.’s credibility.” The record establishes that, at the close of the examination, the trial court asked T.S., “If I permit you to testify, will you tell the truth?” After T.S. responded “yes, sir,” and neither the State nor Brown objected, the trial court administered the oath to T.S. and admitted her testimony. According to Brown, “[tjhis exchange conveyed to the jury in unequivocal fashion that the trial court believed that [T.S.] would tell the truth.” (Brown’s brief, at p. 43.) Because there was no objection on this basis at trial, we review Brown’s argument for plain error.

Initially, we note that the trial court’s examination of T.S. adequately established that she understood her role as a witness at a trial and understood that the court expected her to tell the truth when she testified. See Rule 608, Ala. R. Evid. At the conclusion of the examination, the trial court did not make an affirmative, explicit finding that T.S. would testify truthfully; instead, after administering the oath, it simply allowed the State to begin its direct examination. Additionally, when instructing the jury, the trial court stated:

“[Ijt’s the jury’s exclusive function to decide the facts of the case. As the trial judge, I have absolutely nothing to do with your decision as to the facts. It is my duty to rule on the admissibility of the evidence and charge you as to the law. It is your duty to take the evidence that’s been allowed in the case, disregard any evidence excluded by the court, and take the allowed evidence and decide what the facts are in the case. You decide what actually happened on the occasion testified about and complained about. And when you’ve decided these facts, then you apply the law as I give it to you in my charge and thereby arrive at your verdict.
“Now, as I’ve said, you are the trier of facts. You decide what actually happened from the testimony from the witness stand and from the exhibits introduced into evidence.
“It’s the duty of the jury to reconcile all of the testimony in the case and make it all speak the truth, if you can do so. If you cannot, of course, [it] is a matter of discretion with the jury what testimony you will believe and what testimony you will disregard. There is no presumption that a witness while testifying is telling the truth. The credibility of a witness while testifying in a case is a decision of the jury. You have a right to take all the testimony in the case, reject what you think is untrue, and consider only that part which you think is true. That applies to the testimony of all witnesses in the case. If you think a witness has told the truth as to some matters and that his or her testimony is inaccurate or untrue as to other matters, then you have the right in your decision to believe that which you can find to be true and disregard that which you think is untrue. If you find that any witness in this case has willfully or corruptly testified falsely as to a material matter, then the law gives you the right in your discretion to disregard that witness’s entire testimony.
“You also have the right to consider any interest, bias, friendship or relationship, or any other cause that might in your judgment cause a witness to depart from the truth. All of these things are for you to consider. When you sit in the jury box, you’re just called upon to do like you do elsewhere, and that’s to use your common sense. Therefore, you have the right not only to listen to the witnesses, but you can consider the manner and demeanor of the witnesses when they testify from the witness stand and determine just what weight you will give a particular witness’s testimony.”

(Emphasis added.)

The record does not establish that the trial court committed plain error when it conducted its examination of T.S. in the presence of the jury to determine whether she understood her duty to testify truthfully. The trial court did not make an affirmative, explicit finding that T.S. would testify truthfully; it simply allowed counsel to begin direct examination after its examination of T.S. Nor did the trial court state before the jury that it believed that T.S. would tell the truth. Cf. People v. Rush, 250 Ill.App.3d 530, 535-36, 190 Ill.Dec. 1, 620 N.E.2d 1262, 1266 (1993) (holding that a new trial was necessary because the trial court invaded the province of the jury when in the presence of the jury the trial court stated, “I know you were telling the truth”). In this case, neither the trial court’s words nor its actions created the impression that it found T.S.’s testimony credible. Therefore, we cannot conclude that the trial court bolstered T.S.’s credibility.

Moreover, the jury was instructed that it was the sole judge of the credibility of the witnesses, as well as the weight and effect to give the witnesses’ testimony. None of the trial court’s statements during its examination of T.S. can be considered “ ‘calculated to control the jury in its consideration of the weight to be given to testimony.’ ” Dixon v. State, 448 So.2d 457, 459 (Ala.Crim.App.1984) (quoting Richardson v. State, 403 So.2d 293, 295 (Ala.Crim.App.1981)). Hence, we cannot conclude that, when the trial court conducted its examination of T.S. in the presence of the jury, the trial court invaded the province of the jury and that Brown was prejudiced. For these reasons, we conclude that plain error did not occur when the trial court examined T.S. in the presence of the jury to determine that she understood her duty to testify truthfully.

As a part of this issue, Brown contends that, by calling T.S. “sweetheart” and allowing her to testify after she indicated that she would tell the truth, the trial court signaled to the jury that it favored T.S. and conveyed to the jury that it believed T.S. was a credible witness. After reviewing the exchange between T.S. and the trial court, we conclude that Brown is overreading the trial court’s words and actions. We agree with the Court of Criminal Appeals that a fairer assessment of the trial court’s words and actions is that the trial court was trying to ease T.S.’s nerves. Indeed, Brown’s counsel complimented T.S.’s attire and referred to her as “hon.” The record clearly shows that the trial court and counsel for both sides were trying to ease T.S.’s nerves when she was testifying; common sense dictates that a jury would recognize that fact.

B. Determination of the reliability of a child witness’s testimony.

Brown also urges this Court to require that a trial court, when determining a child witness’s understanding of the duty to testify truthfully, also determine the reliability of the child witness’s testimony.

Rule 601, Ala. R. Evid., provides that “[e]very person is competent to be a witness except as otherwise provided in these rules.” The Advisory Committee’s notes to that rule explain:

“The starting point for applying Rule 601 is that all witnesses are competent except as otherwise provided under other Alabama Rules of Evidence.... [Rule 601] acknowledges the prevailing sentiment that very few persons are incapable of giving testimony useful to the trier of fact and that the historic grounds of incompetency — mental incapacity, conviction, etc. — should go to the credibility of the witness and the weight the trier of fact gives to the witness’s testimony. See H. Weihofen, Testimonial Competence and Credibility, 34 Geo. Wash. L.Rev. 53 (1965); E. Cleary, McCormick on Evidence § 71 (3d ed.1984) (referring to rules of incompetency as ‘serious obstructions to the ascertainment of truth’); C. Mueller & L. Kirkpatrick, 3 Federal Evidence § 232 (2d ed.1994); Comment, The Mentally Deficient Witness: The Death of Incompetency, 14 Law & Psychol. Rev. 106 (1990).
“While Rule 601 imposes no requirement of testimonial competency, it provides that incompetency may arise ‘as otherwise provided in these rules.’ Both academic writings and judicial opinions suggest that this provision vests in the trial court the discretion to preclude a witness from testifying in extraordinary circumstances when the witness possesses some significant testimonial deficiency. That discretion is said to arise when the witness’s deficiency renders the testimony inadmissible because of its being irrelevant (Rule 401) or too prejudicial (Rule 403), or when the witness is without personal knowledge (Rule 602) or is unable to understand the obligation to tell the truth (Rule 603). See, e.g., United States v. Ramirez, 871 F.2d 582 (6th Cir.), cert. denied, 493 U.S. 841 (1989); United States v. Odom, 736 F.2d 104 (4th Cir.1984); United States v. Lightly, 677 F.2d 1027 (4th Cir.1982); State v. Fulton, 742 P.2d 1208 (Utah 1987), cert. denied, 484 U.S. 1044 (1988). See also J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 601[04], at 601-27 (1990). It should be noted, however, that the suggestion of these authorities exceeds their reality in terms of witnesses actually excluded by the courts. Indeed, as one author has observed, an analysis of the decided cases reveals that the application of Rule 601 is ‘closer to an irrebuttable presumption of competency for every witness.’ Comment, The Mentally Deficient Witness: The Death of Incompetency, 14 Law & Psy-chol. Rev. 106, 114 (1990). The beginning premise remains: all witnesses are competent and any testimonial deficiency goes to weight rather than admissibility. See F. Weissenberger, Weissenberger’s Federal Evidence § 601.2, at 181 (1987); 3 D. Louisell & C. Mueller, Federal Evidence § 252 (1979). Compare United States v. Van Meerbeke, 548 F.2d 415 (2d Cir.1976), cert. denied, 430 U.S. 974 (1977). This competency is to be accorded children in all cases of abuse, whether sexual or otherwise.”

(Emphasis added.)

The effect of the adoption of Rule 601, Ala. R. Evid., has been explained as follows:

“Under pre-rules Alabama law, a witness was competent to testify if the witness understood the significance of the oath and was able to observe, recollect, and narrate what had occurred or what the witness had sensed. If competency was questioned, the burden of proving that the proffered witness was competent was on the proponent. However, under Rule 601 every witness is deemed competent unless otherwise provided by the rules, which shifts the burden to the opponent who must prove a witness to be incompetent. This shift occurs even if Rule 601 is read as a declaration of competency per se, because even under this broad interpretation the rule is limited by other applicable rules.
“Pre-rules Alabama law allowed finding a witness incompetent due to drunkenness, infancy, insanity, or a conviction for perjury. Although these same witnesses are now presumed competent under Rule 601, some may not be permitted to testify because of several other factors, such as those previously discussed relating to Rules 401 through 403 and 601 through 605. A person who is an infant or mentally impaired may still be disqualified to testify as a witness under the rules. The principal difference is that the burden of proof has been shifted. The rules provide that a witness is competent and will be allowed to testify, unless the opponent can establish a basis for disqualification under one of the rules of evidence. On the other hand, common law required the proponent to prove the witness’s competency. In either event, the issue of competency is decided by the trial judge.”

Joseph A. Colquitt & Charles W. Gamble, From Incompetency to Weight and Credibility: The Next Step in an Histone Trend, 47 Ala. L.Rev. 145, 172-73 (Fall 1995) (footnotes omitted).

Thus, the adoption of Rule 601, Ala. R. Evid., created in essence a presumption of competency for every witness, and it is the burden of the opponent to challenge the admissibility of the witness’s testimony on grounds other than Rule 601, Ala. R Evid. See, e.g., Rule 602, Ala. R. Evid., and Rule 403, Ala. R. Evid.

Brown recognizes that under Rule 601, Ala. R. Evid., all witnesses, including children, are competent to testify. He further recognizes the trial court’s duty to determine a child witness’s ability to tell the truth. See Rule 603, Ala. R. Evid. Brown maintains, however, that, in addition to determining whether a child witness understands his or her responsibility to tell the truth when testifying, the trial court should also determine the reliability of the child witness’s testimony. Brown reasons that, because of a child’s age, the child witness may be unable to “truly register” the occurrence he or she observed or the child’s memory may have eroded over time, may be distorted or a false creation, or may have been influenced by the suggestion of adults. According to Brown, because the child witness believes his or her testimony to be true, despite its being the result of imagination, distortion, or suggestion, the admission of the child witness’s testimony without an examination to determine its reliability presents a substantial risk that the testimony will unfairly prejudice the defendant and will mislead the jury.

We decline Brown’s invitation to require a trial court to conduct an examination to determine the reliability of a child witness’s testimony. The concerns raised by Brown regarding a child witness’s testimony are adequately addressed by our Rules of Evidence. Rule 602, Ala. R. Evid., provides that a witness’s testimony may be excluded if the witness lacks personal knowledge of the matter. Rule 403, Ala. R. Evid., provides that testimony may be held inadmissible if the probative value of the testimony is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury. If a party has concerns about the reliability of a child witness’s testimony, then the party must present his or her concerns in an objection for the trial court based on the Rules of Evidence. Indeed, a trial court’s analysis, conducted after a properly presented Rule 403, Ala. R. Evid., objection, adequately balances concerns regarding the probative value of the child witness’s testimony against unfair prejudice resulting from the frailty of a child’s memories, the tendency of a child to form false memories that he or she believes to be true, and a child’s susceptibility to suggestion that may taint the child’s memory. Hence, Brown’s concerns about the admissibility of a child witness’s testimony based on the reliability of the testimony are adequately addressed by our present rules and procedures. See also Utah v. Fulton, 742 P.2d 1208, 1218 (Utah 1987) (addressing the effect of Rule 601, Utah R. Evid., which is identical to Rule 601, Ala. R. Evid., on the admissibility of a child’s testimony and concluding “that Rule 403[, Utah R. Evid.,] adequately protects a defendant’s right to a fair trial and gives him or her an opportunity to raise concerns [with regard to the reliability of a child’s testimony] that prior to our adoption of Rule 601, might have been addressed in a competency hearing”).

In this case, Brown contends that plain error occurred in the admission of T.S.’s testimony because, he says, she lacked personal knowledge of Cherea’s death, see Rule 602, Ala. R. Evid., and because the probative value of her testimony was substantially outweighed by the danger of unfair prejudice and of misleading the jury. See Rule 403, Ala. R. Evid.

The record establishes that, at the time of Brown’s trial, T.S., who was Cherea and Brown’s daughter, was 11 years old. She testified that she was 4 years old the last time she saw Cherea. She explained that she and her brothers were sleeping in their bedroom when she was awakened by Brown and Cherea, who were “fussing”. According to T.S., she looked out her bedroom door and saw Cherea “laying on her back” “in the hallway” and there was blood “on her chest.” Brown was standing beside Cherea’s body.

Rule 602, Ala. R. Evid., provides:

“A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness’s own testimony.”

A review of T.S.’s testimony establishes that T.S. had personal knowledge of the matter as to which she testified. T.S. testified about her recollection of the house she and Cherea were living in and the last time she saw Cherea. Therefore, Brown’s contention that plain error occurred in the admission of T.S.’s testimony based on her lack of personal knowledge is not supported by the record.

Brown also contends that the trial court erred in admitting T.S.’s testimony because, he says, the probative value of her testimony was substantially outweighed by the danger of unfair prejudice and of misleading the jury. Brown argues that T.S.’s memory of the event was distorted by time because the event about which she testified occurred seven years before the trial when she was four years old and that her memory of the event had been corrupted by suggestion because she had discussed her testimony with the prosecutor and had been living with a lead witness for the State. In support of his argument, Brown points out that T.S. was unable to remember other events from the relevant time period and that T.S.’s recollection of seeing Cherea lying on the floor in the hallway conflicted with the forensic evidence. Brown reasons that these factors indicate that T.S.’s testimony was unreliable, and he argues that T.S.’s testimony, therefore, should have been excluded because, he says, it was unduly prejudicial and misled the jury.

Rule 403, Ala. R. Evid., provides that, “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury....”

The record does not support a conclusion that T.S.’s testimony should have been excluded pursuant to Rule 403, Ala. R. Evid. T.S.’s testimony consisted of her recollection of the last time she saw Cher-ea; she testified about her recollection of simple facts, providing circumstantial evidence of Brown’s guilt. T.S. testified that her last memory of Cherea was Cherea lying on the hall floor with blood on her chest and Brown standing over her body; she did not testify that she saw Brown stabbing Cherea. T.S.’s testimony did not involve an exercise of contemporaneous judgment beyond the comprehension of a child, did not indicate that she was precocious, and did not provide details beyond the simple observations of a child. Indeed, nothing in the record indicates that T.S.’s memory of the event was tainted or was the product of suggestive or biased interviews. Therefore, we conclude that the probative value of T.S.’s testimony was not substantially outweighed by the danger of unfair prejudice or of misleading the jury. Consequently, the trial court did not commit plain error in admitting T.S.’s testimony. T.S.’s testimony was properly presented to the jury for the jury to determine its weight and credibility. As the Court of Criminal Appeals held, “[T.S.’s] age at the time of the murders, the length of time between the murders and the trial, and the reliability of T.S.’s memory were considerations that went to the weight of her testimony rather than its admissibility.” Brown, 74 So.3d at 1006.

II. Prosecutorial misconduct.

Brown contends that a comment made during the prosecutor’s rebuttal closing argument in the guilt phase of his trial constitutes plain error. Specifically, Brown argues that the prosecutor improperly injected his personal opinion of Brown’s guilt when he argued: “My vote was cast a long time ago when I charged him with what he did.” According to Brown, the prosecutor’s statement amounted to reversible error because, he says, the prosecutor improperly expressed his personal opinion of Brown’s guilt, conveyed to the jury that his personal opinion of guilt was based on information other than the evidence presented at trial, and improperly implied that his decision to charge Brown initially was indicative of Brown’s guilt.

In United States v. Young, 470 U.S. 1, 18, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the United States Supreme Court recognized the following two dangers that may occur when a prosecutor expresses his or her personal opinion concerning the guilt of the accused:

“[S]uch comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant’s right to be tried solely on the basis of the evidence presented to the jury; and the prosecutor’s opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government’s judgment rather than its own view of the evidence.”

In this case, throughout the prosecutor’s closing argument, he recited the evidence, argued his interpretation of the evidence, and stated his belief that the State’s evidence proved beyond a reasonable doubt that Brown was guilty. Although we agree with Brown that the prosecutor’s statement that his vote was cast when he charged Brown with the offenses constituted an improper expression of the prosecutor’s personal opinion, we conclude that when that comment is read in the context of his entire argument it does not rise to the level of plain error. First, the comment was made during the prosecutor’s recitation of the evidence that had been presented to the jury; therefore, the comment does not suggest that the prosecutor’s opinion of Brown’s guilt was based on evidence not presented to the jury. Thus, we cannot conclude that Brown’s “right to be tried solely on the evidence presented to the jury” was jeopardized in this regard.

Moreover, the prosecutor’s statement, when viewed in the context of his entire closing argument, does not lend itself to the conclusion that the jury should trust the State’s assessment of the evidence rather than its own. In Quinlivan v. State, 579 So.2d 1386, 1387 (Ala.Crim.App.1991), the Court of Criminal Appeals held that the prosecutor’s argument, which included the following statements, rendered Quinlivan’s trial unfair:

“I’m very proud to represent this case. I’m not obliged to try any case that I don’t want to try. I’m commanded by the law of Alabama as a District Attorney to prosecute the guilty and protect the innocent.”

In concluding that reversible error had occurred, the Court of Criminal Appeals stated:

“[T]he prosecutor’s argument was nothing more than a blatant statement of his personal belief in the appellant’s guilt. His comments expressly state that he tries only the cases that he wants to try and, consequently, chooses to prosecute only those defendants who are, as a matter of fact, guilty.”

579 So.2d at 1389.

The alleged error in this case, however, does not rise to the level of reversible error in Quinlivan. Unlike the prosecutor’s comments in Quinlivan, which emphasized the prosecutor’s duty to prosecute the guilty, the prosecutor’s statement in this case did not suggest that he, as a prosecutor, prosecuted only the guilty. Therefore, we cannot conclude that the prosecutor’s comment improperly infected the jury in this regard.

The United States Supreme Court has stated that, when considering a prosecutor’s closing argument, the standard is whether the argument “ ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). The argument is to be viewed in its entirety, and, to justify reversal, the argument must have resulted in substantial prejudice to the defendant. Coral v. State, 628 So.2d 954, 985 (Ala.Crim.App.1992).

Although we do not condone the prosecutor’s statement that “[his] vote was cast a long time ago when [he] charged [Brown] with what he did” because it is an improper expression of the prosecutor’s personal opinion and was not necessary to answer defense counsel’s assertions that the evidence did not support a verdict finding Brown guilty, the comment does not rise to the level of plain error. “Viewed in context, the prosecutor’s statements, although inappropriate and amounting to error, were not such as to undermine the fundamental fairness of the trial and contribute to the miscarriage of justice.” United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985).

III. Jury-instruction errors.

First, Brown contends that the trial court’s jury instruction defining “reasonable doubt” confused and misled the jury, violating the Due Process Clause. Specifically, he argues that the Court of Criminal Appeals erred in holding that the instruction did not violate the principles in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990), and in Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994). Because Brown did not object at trial to the trial court’s reasonable-doubt instruction, our review is for plain error.

To sustain a criminal conviction, the government must establish beyond a reasonable doubt every element of the offense charged. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). In Cage, the United States Supreme Court held that a trial court’s instruction to the jury that “equated a reasonable doubt with a ‘grave uncertainty5 and an ‘actual substantial doubt,’ and stated that what was required was a ‘moral certainty’ that the defendant was guilty” could have been interpreted by a reasonable juror “to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause.” 498 U.S. at 41. In Estelle v. McGuire, 502 U.S. 62, 72 and n. 4, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), the United States Supreme Court made clear that the proper inquiry was whether there is a reasonable likelihood that the jury did apply the instruction in an unconstitutional manner, not whether it could have applied it in an unconstitutional manner. In Victor, the United States Supreme Court emphasized that “[t]he constitutional question ... is whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard.” 511 U.S. at 6. In discussing one of the jury instructions challenged in Victor, the United States Supreme Court recognized that it had stated that “ ‘[p]roof to a “moral certainty” is an equivalent phrase with “beyond a reasonable doubt.” ’ Fidelity Mut. Life Ass’n v. Mettler, 185 U.S. 308, 317, 22 S.Ct. 662, 46 L.Ed. 922 (1902) (approving reasonable doubt instruction cast in terms of moral certainty).” 511 U.S. at 12. The United States Supreme Court acknowledged that historically the phrase “moral certainty” in a jury instruction meant “the highest degree of certitude based on [the] evidence” but that the term may have lost its historical meaning over time. 511 U.S. at 11. The United States Supreme Court, however, concluded that when an instruction equated moral certainty with proof beyond a reasonable doubt the instruction satisfied the requirements of the Due Process Clause and was constitutionally sufficient. The United States Supreme Court emphasized that, although it did not condone the use of the phrase “moral certainty,” if the jury was instructed that its decision was to be based on the evidence in the case, then the jury understood that moral certainty was associated with the evidence of the case and no constitutional error occurred. Additionally, the United States Supreme Court addressed the use of the phrase “substantial doubt” and emphasized that when that phrase was used in context to convey the existence rather than the magnitude of doubt there was no likelihood that jury applied the charge unconstitutionally.

In this case, the trial court, throughout its instruction to the jury, reminded the jury consistently that its exclusive function was to decide the facts of the case. For example, the trial court instructed the jury:

‘You decide what actually happened on the occasion testified about and complained about. And when you’ve decided these facts, then you apply the law as I give it to you in my charge and thereby arrive at your verdict.
“Now, as I’ve said, you are the trier of the facts. You decide what actually happened from the testimony from the witness stand and from the exhibits introduced into evidence.”

With regard to the definition of “reasonable doubt,” the trial court instructed the jury:

“You will want to know what a reasonable doubt is. That is sometimes rather difficult to define. When I say that the State is under the burden of proving guilt beyond a reasonable doubt and to a moral certainty, that does not mean that the State must prove an alleged crime beyond every imaginable or speculative doubt and beyond all possibility of mistake because that would be impossible. A reasonable doubt means an actual, substantial doubt arising out of the testimony in this case, or it could arise from the lack of testimony in this case. It is a doubt for which a reason can be assigned.
“And the expression ‘to a moral certainty’ means practically the same thing as beyond a reasonable doubt. Because if you’re convinced to a point you no longer have a reasonable doubt, then you are convinced to a moral certainty.”

We conclude that the trial court’s reasonable-doubt instruction did not lead the jury here to convict on a lesser showing than due process requires. The trial court emphasized that the jury’s decision was to be based upon the evidence. The trial court defined the phrase “moral certainty” as being a synonym for “reasonable doubt” and explained that a reasonable doubt arose from the evidence in the case or the lack of evidence. Therefore, because the trial court informed the jury that its decision had to be based upon the evidence, no reasonable likelihood exists for a conclusion that the jury would have disassociated the phrase “moral certainty” from the evidence.

Additionally, there is no reasonable likelihood that the jury would have equated a reasonable doubt with a substantial doubt. The trial court made clear that the term “substantial” was used in the sense of existence, i.e., a doubt arising from the evidence or the lack of evidence. Nothing in the instruction lends itself to the conclusion that “substantial doubt” refers to the magnitude of doubt. Instead, the trial court stated, “[i]t is a doubt for which a reason can be assigned.” Therefore, no reasonable likelihood exists that the jury would have interpreted the trial court’s instruction as “allowing] a finding of guilt based on a degree of proof below that required by the Due Process Clause.” 498 U.S. at 41.

Viewing the trial court’s jury instruction in its entirety, we hold that the trial court did not commit plain error when instructing the jury on the concept of reasonable doubt. See Ex parte Beavers, 598 So.2d 1320, 1325 (Ala.1992) (holding a similar reasonable-doubt instruction did not violate Cage).

Brown also contends that plain error occurred when the trial court failed to instruct the jury that a robbery committed as a “mere afterthought” of the killing is not sufficient to support a conviction for murder made capital because the murder was committed during the course of a first-degree robbery or an attempt thereof. Specifically, he argues that the trial court’s instruction that the murder must occur “in the course of or in connection with the commission of or in the immediate flight from the commission of the robbery” did not adequately instruct the jury that “a robbery committed as a ‘mere afterthought’ ... will not sustain a conviction under § 13A-5-40(a)(2)[, Ala.Code 1975,] for the capital offense of murder-robbery.” Connolly v. State, 500 So.2d 57, 63 (Ala.Crim.App.1985).

A review of the trial court’s instructions, however, fails to establish that plain error occurred. The trial court specifically instructed the jury that “the intent to rob and the intent to kill would have to coexist in the defendant’s mind in order for the capital offense to occur.” Although the trial court did not state specifically that for the jury to find Brown guilty of capital murder-robbery the taking of the property could not be a mere afterthought of the murder, the trial court’s instruction adequately communicated the law by instructing the jury that the robbery had to occur “during” the course of the murder and that the intent to murder and the intent to rob had to coexist. Plain error did not occur in this regard. See Ex parte Windsor, 683 So.2d 1042, 1058-60 (Ala.1996); Reeves v. State, 807 So.2d 18, 42-44 (Ala.Crim.App.2000); and Woods v. State, 789 So.2d 896, 932-33 (Ala.Crim.App.1999) (recognizing that although the taking of property as a mere afterthought will not support a capital-murder conviction based on an underlying robbery, the trial court does not have to use the term “mere afterthought” in its jury instructions on the robbery element of the capital murder).

Conclusion

Based on the foregoing, the judgment of the Court of Criminal Appeals is affirmed.

AFFIRMED.

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

MURDOCK, J., concurs in the result.

MAIN and WISE, JJ., recuse themselves.

      . Because we conclude that a Rule 403 analysis will adequately address a party's concerns about the reliability of a witness’s testimony and satisfy the Due Process Clause, we decline Brown’s invitation to apply the test for determining the reliability of eyewitness testimony set forth by the United States Supreme Court in Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), to a determination of the reliability of a child witness’s testimony.


author: BURKE, Judge. WINDOM, Judge,

text:
    Leonard Jerome BLACK, Jr. v. STATE of Alabama.
    CR-09-1069.
    Court of Criminal Appeals of Alabama.
    May 27, 2011.

      D.E. “Skip” Brutkiewicz, Jr., Mobile, for appellant.
    Troy King, atty. gen., and James B. Prude, asst. atty. gen., for appellee.
   BURKE, Judge.

Leonard Jerome Black, Jr., appeals his conviction for trafficking in cocaine, a violation of § 13A-12-2SK2), Ala.Code 1975, and his resulting sentence of 15 years in prison, which the trial court split, ordering him to serve 3 years in confinement with the balance suspended pending his good behavior for 5 years. The trial court also conditioned the suspension of the balance of the sentence on Black’s paying a $50,000 fine, $50 to the victims compensation fund, and court costs. We reverse the judgment of the trial court and render a judgment for Black.

Facts and Procedural History

At Black’s bench trial, Johnny Thornton, a narcotics and vice investigator with the Mobile County Sheriffs Department, testified that on November 16, 2007, he received information from a confidential informant about possible drug activity at a location on Youngs Lane, which is at or near a municipal park in Mobile. The possible drug activity involved a white Ford Taurus vehicle that was parked in the park. Thornton went to that location and saw the Taurus parked at the edge of the park and a white Toyota vehicle (“the Toyota”) parked nearby. Thornton also saw four black males and a black female standing around both vehicles. After backup assistance arrived, Thornton approached those individuals. Two of the males were standing at a distance. Black and the other male were walking toward the Toyota, and the female was standing beside the Toyota, which belonged to her. At that time, Thornton saw Black drop a clear plastic bag to the ground. Thornton recovered the bag and inspected its contents, which consisted of green plant-like material that he believed to be marijuana.

A few minutes later, after additional backup assistance arrived, Thornton took Black and one of the other males into custody and placed them in the backseat of a patrol car. They were not handcuffed, and Black was allowed to keep his cellular telephone. A digital-recording device was also placed inside the patrol car.

After receiving consent from the female to search the Toyota, Thornton quickly searched that vehicle. When no contraband was found, the female was allowed to leave.

Shortly thereafter, a K-9 unit arrived to conduct a search outside the Taurus. The drug-sniffing dog alerted on the vehicle for the presence of illegal narcotics. After the dog alerted on the vehicle, Thornton asked Black if he owned the vehicle, and he replied that he did not. Thornton testified that, to his knowledge, at that time the vehicle had not been reported stolen. Thornton also testified that the officers never recovered any keys to the vehicle.

The Taurus was locked, and the officers used a “slim jim” to open it. Thornton then opened the glove box of the vehicle and discovered two plastic bags he believed contained crack cocaine and powder cocaine. Thornton also discovered a Mobile Police Department accident report in the glove box. The accident report, dated August 9, 2007, concerned the Taurus. The accident report was filed by Hope Epps, who was the registered owner of the Taurus. The report listed what purported to be Epps’s home telephone number. The officers dialed that number in an attempt to ascertain who had custody of the vehicle. The first time the officers dialed the number, a black male answered and hung up. The officers tried to call the number two more times; each time nobody answered. While the officers were attempting to call the number, they noticed Black using his cell phone in a manner that appeared to correspond with their attempts to call. The officers asked Black for his cell-phone number, and he gave the officers the number that was listed as Epps’s home telephone number on the accident report.

At trial, the State admitted into evidence the recording from the digital-recording device that was placed inside the back of the patrol car with Black and played it for the court. The recording included a cellphone call made by Black. According to the trial court, “[t]here’s a recording and Mr. Black uses a cell phone and calls someone and makes comments, as best you can hear him, something to the effect of tell them that the car is stolen, tell them the car is stolen.” (R. 9 of the hearing on a motion for judgment of acquittal.)

This Court has listened to the recording. The recording includes a cell-phone conversation between Black and his mother. Other than Black’s mother stating “hello” at the beginning of the conversation, only Black’s statements during the conversation can be understood. The conversation contained the following statements:

“[Black’s mother]: Hello.
“[Black]: Did you talk to them?
“[Black’s mother]: (Inaudible).
“[Black]: Lord have mercy, man. Please. Momma, you going to have to get off work. I’m in the back of the police car.
“[Black’s mother]: (Inaudible).
“[Black]: She at school though.
“[Black’s mother]: (Inaudible).
“[Black]: The car dirty though, momma. Please keep on calling up there.
“[Black’s mother]: (Inaudible).
“[Black]: Momma, you fussing at me.
“[Black’s mother]: (Inaudible).
“[Black]: From school.
“[Black’s mother]: (Inaudible).
“[Black]: Man that....
“[Black’s mother]: (Inaudible).
“[Black]: Yes they is. They’ll tell it ... report the car stolen.”

Also, about one minute after Black ends his conversation with his mother, Black can be heard answering the cell phone and hanging it up. Less than a minute after Black answers the cell phone and hangs it up, an officer can be heard asking Black for his cell-phone number. Black then gives the officer the same phone number that was on the accident report. An officer then immediately informs Black that the officers found cocaine in the vehicle and that they are going to charge him with trafficking in cocaine. The officer then asks Black for the keys to the vehicle. Black denies having the keys, and he denies having driven the vehicle.

Ernest Cody, a forensic scientist with the Alabama Department of Forensic Sciences, testified that he analyzed the contents of the two plastic bags Thornton found in the glove box of the Taurus. Cody determined that one bag contained 25.41 grams of cocaine hydrochloride and the other bag contained 9.31 grams of cocaine base. Concerning the bag that contained 9.31 grams of cocaine base, Cody testified that he scraped each of the 16 rocks that were in the bag and combined them for analysis.

After the close of the evidence, Black filed a motion for a judgment of acquittal. In that motion, Black argued that the State failed to prove beyond a reasonable doubt that he was in constructive possession of the cocaine. Black also alleged that the State failed to prove beyond a reasonable doubt that he possessed 28 grams or more of cocaine because Cody did not separately examine each of the 16 rocks that were in the bag that contained 9.31 grams of cocaine base. At the hearing on the motion for judgment of acquittal, the trial court stated:

“Well, I think overall it’s a very close question particularly with regard to the first element of constructive possession, which is actual or potential physical control, I think there was some evidence— there was sufficient evidence to attempt to exercise dominion by having it reported stolen and towed somewhere away from him I think probably is evidence of external manifestation of intent by the— by the same evidence of the phone call to mother.
“Well, I’ll deny your motion for judgment of acquittal based on all of the evidence that I’ve heard and I’ll adjudge [Black] to be guilty of trafficking in cocaine.”

(R. 20 of the hearing on the motion for judgment of acquittal.) After sentencing, Black appealed.

Discussion

Black alleges that the State presented insufficient evidence to convict him of trafficking in cocaine. To establish a prima facie case of trafficking in cocaine, the State must demonstrate that Black was “knowingly in actual or constructive possession of, 28 grams or more of cocaine or of any mixture containing cocaine.” § 13A-12-23K2), Ala.Code 1975. It is undisputed that Black was not in actual possession of the cocaine, and he alleges that the State failed to present sufficient evidence showing that he was knowingly in constructive possession of the cocaine.

In Ex parte J.C., 882 So.2d 274 (Ala.2003), the Alabama Supreme Court stated the standard of review applicable to a claim that the evidence produced at trial was legally insufficient to support a conviction:

“ ‘ “In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution. Faircloth v. State, 471 So.2d 485 (Ala.Cr.App.1984), aff'd, 471 So.2d 493 (Ala.1985).” Powe v. State, 597 So.2d 721, 724 (Ala.1991). It is not the function of this Court to decide whether the evidence is believable beyond a reasonable doubt, Pennington v. State, 421 So.2d 1361 (Ala.Cr.App.1982); rather, the function of this Court is to determine whether there is legal evidence from which a rational finder of fact could have, by fair inference, found the defendant guilty beyond a reasonable doubt. Davis v. State, 598 So.2d 1054 (Ala.Cr.App.1992). Thus, “[t]he role of appellate courts is not to say what the facts are. [Their role] is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.” Ex parte Bankston, 858 So.2d 1040, 1042 (Ala.1978) (emphasis original).’ ”
“Ex parte Tiller, 796 So.2d 310, 312 (Ala.2001)(quoting Ex parte Woodall, 730 So.2d 652, 658 (Ala.1998)).”

882 So.2d at 277.

Furthermore, concerning constructive possession, the Alabama Supreme Court stated:

“ ‘In order to establish constructive possession, the State must prove “(1) [a]ctual or potential physical control, (2) intention to exercise dominion and (3) external manifestations of intent and control.” ’
“Ex parte Fitkin, 781 So.2d 182, 183 (Ala.2000) (quoting Bright v. State, 673 So.2d 851, 852 (Ala.Crim.App.1995)). ‘ “When constructive possession is relied on, the prosecution must also prove beyond a reasonable doubt that the accused had knowledge of the presence of the controlled substances.” ’ Ex parte Tiller, 796 So.2d at 312 (quoting Posey v. State, 736 So.2d 656, 658 (Ala.Crim.App.1997)).
“ “While non-exclusive possession may raise a suspicion that all the occupants had knowledge of the contraband found, a mere suspicion is not enough. Some evidence that connects a defendant with the contraband is required. Generally, the circumstances that provide that connection include:
“ ‘ “(1) evidence that excludes all other possible possessors; (2) evidence of actual possession; (3) evidence that the defendant had substantial control over the particular place where the contraband was found; (4) admissions of the defendant that provide the necessary connection, which includes both verbal admissions and conduct that evidences a consciousness of guilt when the defendant is confronted with the possibility that illicit drugs will be found; (5) evidence that debris of the contraband was found on defendant’s person or with his personal effects; (6) evidence which shows that the defendant, at the time of the arrest, had either used the contraband very shortly before, or was under its influence.” ’
“Grubbs v. State, 462 So.2d 995, 997-98 (Ala.Crim.App.1984) (quoting Temple v. State, 366 So.2d 740, 743 (Ala.Crim.App.1978)).”

882 So.2d at 277-78.

This Court has held:

“ ‘Constructive possession of contraband may be shown by proof of dominion and control over a vehicle containing contraband. United States v. Brunty, 701 F.2d 1375, 1382 (11th Cir.), cert. denied, 464 U.S. 848, 104 S.Ct. 155, 78 L.Ed.2d 143 (1983); United States v. Vera, 701 F.2d 1349, 1357 (11th Cir.1983).’ United States v. Clark, 732 F.2d 1536, 1540 (11th Cir.1984). A controlled substance may be jointly possessed, and possession may be established by circumstantial as well as direct evidence. Knight v. State, 622 So.2d 426, 430 (Ala.Crim.App.1992). ‘Proximity to illegal drugs, presence on the property where they are located, or mere association with persons who do control the drugs may be sufficient to support a finding of possession when accompanied with testimony connecting the accused with the incriminating surrounding circumstances.’ German v. State, 429 So.2d 1138, 1142 (Ala.Crim.App.1982).”

Laakkonen v. State, 21 So.3d 1261, 1266 (Ala.Crim.App.2008).

“[W]hile establishing the close proximity of a defendant to an illegal substance is relevant to show his knowledge of its presence, this alone is insufficient to prove the required knowledge necessary to support a finding of constructive possession. Smith v. State, 457 So.2d 997 (Ala.Cr.App.1984). Furthermore, a defendant’s mere presence in an automobile in which an illegal substance is found will not support his conviction for possession of that substance unless the state introduces other evidence in support of the defendant’s possession. Story v. State, 435 So.2d 1360 (Ala.Cr.App.1982), rev’d on other ground, 435 So.2d 1365 (Ala.1983). The kinds of other evidence or circumstances that could provide the additional support necessary to show possession are unlimited and will vary with each case. Temple v. State, 366 So.2d 740 (Ala.Cr.App.1978).”

Perry v. State, 534 So.2d 1126, 1128 (Ala.Crim.App.1988) (emphasis in original).

In the present case, Black’s cell-phone conversation with his mother does not constitute legally sufficient evidence that Black had control over the cocaine or that he had knowledge of the cocaine. Here, because the mother’s responses are not intelligible, interpretation of the conversation amounts to mere speculation and conjecture. Based on the cell-phone conversation, the trial court surmised that Black “attempt[ed] to exercise dominion by having [the Taurus] reported stolen and towed somewhere away from him.” However, the trial court was apparently mistaken as to the precise contents of the recording because Black never actually asked his mother to report the Taurus stolen. He stated only that “the car [is] dirty” and that “they’ll tell it ... report the car stolen.”

Also, Black never actually identified the car, and there is no evidence indicating why Black would ask his mother to report the Taurus stolen to distance himself from it when it belonged to Hope Epps. In any event, without more evidence than was presented in this case, one can only speculate as to the meaning of Black’s conversation with his mother.

The evidence was not legally sufficient to support a finding that Black constructively possessed the cocaine found in the glove box of the Taurus. The State did not present sufficient evidence showing that Black controlled the cocaine or that Black had knowledge that the cocaine was in the glove box. Although Black, along with several other people, was seen near the Taurus, he was never seen in the vehicle, nor did he own it. The Taurus was locked, and there was no evidence that Black had the keys. To support its case, the State relies heavily on Black’s cellphone conversation with his mother and the fact that his cell-phone number was on the three-month-old accident report found in the glove box. Although that evidence is relevant to show some connection between Black and the Taurus, that evidence does not show that Black was in exclusive possession of the vehicle; thus, we cannot infer that Black had knowledge of the cocaine based solely on dominion and control over the vehicle containing the cocaine. In fact, the accident report shows that Hope Epps also possessed the vehicle. Additionally, the accident report does not show anything concerning Black’s knowledge of the cocaine or his control over the cocaine. We determine that based on the facts in this case, a rational finder of fact could not, by fair inference, find beyond a reasonable doubt that Black had control over the cocaine or had knowledge of the cocaine. Therefore, the State failed to present legally sufficient evidence of essential elements required to establish constructive possession; thus, we conclude that the trial court erred when it denied Black’s motion for a judgment of acquittal.

Based on the foregoing, the judgment of the trial court is reversed and judgment is rendered for Black.

REVERSED AND JUDGMENT RENDERED.

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

WINDOM, Judge,

dissenting.

I disagree with the majority’s conclusion that the State failed to present sufficient evidence to establish that Black constructively possessed the cocaine found in the glove box of the white Ford Taurus automobile. Specifically, I believe that when the State and the trier of fact are afforded all reasonable inferences from the evidence presented at trial, the State presented “sufficient evidence [to show] that Black controlled the cocaine [and] that Black had knowledge that the cocaine was in the glove box.” 74 So.3d at 1060. Therefore, I respectfully dissent from the majority’s decision to reverse Black’s conviction for trafficking in cocaine, see § 13A-12-231(2), Ala.Code 1975, and to render a judgment in Black’s favor.

“[I]t is well settled that ‘ “[i]n determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.” ’ ” Williams v. State, 10 So.3d 1083, 1086 (Ala.Crim.App.2008) (quoting Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting in turn Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984)). As this Court has explained, “ ‘ “[t]he test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.” ’ ” Williams, 10 So.3d at 1086 (quoting Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting in turn O’Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992)). Under this standard, a court reviewing the sufficiency of the State’s evidence must “ ‘ “draw all reasonable inferences and resolve all credibility choices in favor of the trier of fact.” ’ ” Johnson v. State, 950 So.2d 371, 376 (Ala.Crim.App.2006) (quoting D.L. v. State, 625 So.2d 1201, 1204 (Ala.Crim.App.1993), quoting in turn Woodberry v. State, 497 So.2d 587, 590 (Ala.Crim.App.1986)). “ ‘ “When there is legal evidence from which the [the trier of fact] could, by fair inference, find the defendant guilty, ... this court will not disturb the trial court’s decision.” ’ ” Williams, 10 So.3d at 1086 (quoting Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting in turn Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990)). ‘“The role of appellate courts is ... to judge [only] whether the evidence is legally sufficient to allow submission of an issue for decision [by] the [trier of fact].’ ” Williams, 10 So.3d at 1086 (quoting Bankston v. State, 358 So.2d 1040, 1042 (Ala.1978)).

I believe that when the evidence is properly “ ‘ “view[ed] ... in the light most favorable to the prosecution,” ’ ” Williams, 10 So.3d at 1086 (quoting Nunn, 697 So.2d at 498, quoting in turn O’Neal, 602 So.2d at 464), and when “ ‘ “all reasonable inferences [are drawn] ... in favor of the trier of fact,” ’ ” Johnson, 950 So.2d at 376 (quoting D.L., 625 So.2d at 1204, quoting in turn Woodberry, 497 So.2d at 590), there was sufficient evidence to establish that Black had “(1) [a]ctual or potential physical control [over the cocaine], (2) intention to exercise dominion [over the cocaine] and (3) external manifestations of [his] intent and control [over the cocaine].” Ex parte J.C., 882 So.2d 274, 277 (Ala.2003) (internal citations and quotations omitted). That is, I believe that the State presented sufficient evidence from which “a rational finder of fact could have, by fair inference, found ... [that Black both] controlled [the car where the cocaine was found and] had knowledge of the presence of the [cocaine].” Id. (internal citations and quotations omitted).

Here, the State presented evidence indicating that law-enforcement officers received information from a reliable informant that drugs were being sold from a white Ford Taurus automobile located on Youngs Lane at the edge of a municipal park. When law-enforcement officers arrived at that location to investigate, they saw Black and four other individuals in proximity to the automobile described by the informant. As the officers approached Black and the four other individuals, Johnny Thornton, an investigator with the Mobile County Sheriffs Department, observed Black drop a plastic bag containing what appeared to be marijuana. After Investigator Thornton saw Black attempt to dispose of the marijuana, Black was placed in a patrol car with another individual and a recording device. Investigator Thornton also requested a K-9 unit to come to the location and search around the Ford Taurus.

After the drug-sniffing dog alerted to the presence of narcotics in the Ford Taurus, law-enforcement officers used a tool and entered the Ford Taurus and found cocaine in the glove compartment. The officers also found an accident report that indicated that Hope Epps owned the car. However, the telephone number listed in the accident report corresponded to the cellular telephone Black had with him. After finding the document in the Ford Taurus that ultimately connected Black with that automobile, law-enforcement officers called the cellular telephone number. Black initially answered the telephone and then hung up. Thereafter, he refused to answer the officers’ telephone calls, which by fair inference indicates that Black was attempting to conceal his possession of a telephone that connected him with the Ford Taurus.

In addition to the document connecting Black to the automobile and Black’s attempt to conceal his possession of the telephone, Black telephoned his mother and made incriminating statements. Specifically, while sitting in the patrol car near the Ford Taurus that contained the cocaine, Black informed his mother that “[t]he car [is] dirty,” and asked her to have someone “report the car stolen.” 74 So.3d at 1060. From the context and the content of the conversation, a reasonable finder of fact could have, by fair inference, concluded that Black knew that the automobile contained cocaine — was “dirty” — and that he was attempting to conceal his connection to the automobile — “report the car stolen.” 74 So.3d at 1060. See Ex parte J.C., 882 So.2d at 278 (explaining that in cases of constructive possession, “circumstances that provide [a] connection [between the defendant and contraband] include ... admissions of the defendant that provide the necessary connection, which includes both verbal admissions and conduct that evidences a consciousness of guilt when the defendant is confronted with the possibility that illicit drugs will be found”) (quoting Grubbs v. State, 462 So.2d 995, 997-98 (Ala.Crim.App.1984), quoting in turn Temple v. State, 366 So.2d 740, 743 (Ala.Crim.App.1978)); Cf. Henderson v. State, 933 So.2d 395, 396 (Ala.Crim.App.2004) (referring to a “dirty” drug test); United States v. Bryant, (Ms. No. 08-03105-05/08/09-CR-S-DGK, Dec. 17, 2009) (not published in Fed. Supp.) (W.D.Mo.2009) (recognizing that a “dirty call” is a call that relates to drugs or the sale of narcotics).

Although the State’s evidence was not overwhelming, I believe that, when viewed in a light most favorable to the State and when all reasonable inferences are drawn in favor of the finder of fact, the evidence — testimony establishing that Black was in proximity to the white Ford Taurus that contained cocaine, documents connecting Black with that automobile, Black’s incriminating statement that “[t]he car [is] dirty,” and his request to have someone “report the car stolen,” 74 So.3d at 1060— is sufficient evidence from which “a rational finder of fact could have, by fair inference, found ... [that Black both] controlled [the car where the cocaine was found and] “had knowledge of the presence of the [cocaine].” Id. (internal citations and quotations omitted). Therefore, I would affirm Black’s conviction for trafficking in cocaine.

      . It appears from the record that Thornton initially charged Black with possession of marijuana in the second degree, but the record is silent regarding whether that charge was ever pursued.

      . No issue has been presented to this Court concerning the admissibility of the recording.

      . The recording was admitted into evidence at trial as State's Exhibit 4.

      . Black also alleges that the State failed to prove beyond a reasonable doubt that he possessed 28 grams or more of cocaine. However, we do not need to address that allegation because we fully dispose of this case based on the issue of constructive possession.

      . I believe that the majority has correctly identified the law as it relates to a sufficiency-of-the-evidence claim and as it relates to constructive possession. Accordingly, there is no need to repeat the law here, except to the extent necessary to emphasize why I disagree with majority’s application of that law to the evidence presented at trial.

      . I respectfully disagree with the majority’s conclusion that any inference drawn from Black’s conversation with his mother would amount to mere speculation. Black’s conversation occurred while he was sitting in a patrol car next to a white Ford Taurus that contained both cocaine and a document connecting Black to that automobile. Based on the context in which Black made the telephone call, I believe it is reasonable to infer that he was speaking of the white Ford Taurus at issue and seeking to have that car reported stolen.


author: PER CURIAM. PARIENTE, J.,

text:
    Peter R. GENOVESE, M.D., Petitioner, v. PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY, Respondent.
    No. SC06-2508.
    Supreme Court of Florida.
    March 17, 2011.
    As Revised on Denial of Rehearing Nov. 10, 2011.

      Bard D. Rockenbach of Burlington and Rockenbach, P.A., Jeffery M. Liggio and Richard Benrubi of Liggio and Benrubi, P.A., West Palm Beach, FL, for Petitioner.
    John E. Meagher, Jeffrey M. Landau, and Stephen T. Maher of Shutts and Bowen, LLP, Miami, FL, for Respondent.
    Paul L. Nettleton and Nancy C. Ciampa of Carlton Fields, P.A., Miami, FL, on behalf of State Farm Mutual Automobile Insurance Company; and Anthony J. Russo of Butler, Pappas, Weihmuller, Katz, and Craig, LLP, Tampa, FL, on behalf of Florida Defense Lawyers Association, as Amici Curiae.
   PER CURIAM.

This case is before the Court for review of the decision of the Fourth District Court of Appeal in Provident Life & Accident Insurance Co. v. Genovese, 943 So.2d 321 (Fla. 4th DCA 2006). In its decision the district court ruled upon the following question that the court certified to be of great public importance:

DOES THE FLORIDA SUPREME COURT’S HOLDING IN ALLSTATE INDEMNITY CO. V. RUIZ, 899 So.2d 1121 (Fla.2005), RELATING TO DISCOVERY OF WORK PRODUCT IN FIRST-PARTY BAD FAITH ACTIONS BROUGHT PURSUANT TO SECTION 624.155, FLORIDA STATUTES, ALSO APPLY TO ATTORNEY-CLIENT PRIVILEGED COMMUNICATIONS IN THE SAME CIRCUMSTANCES?

Id. at 323. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. Our decision is limited to the subject of the certified question. For the reasons discussed below, we answer the certified question in the negative and approve the portion of the Fourth District’s decision precluding the discovery of attorney-client privileged information in this first-party bad faith action.

STATEMENT OF THE CASE AND FACTS

The instant action arises from the decision of the Fourth District of Appeal in Provident Life & Accident Insurance Co. v. Genovese, 943 So.2d 321 (Fla. 4th DCA 2006). The facts of the underlying action are as follows. Peter Genovese brought a statutory first-party bad faith action against Provident Life and Accident Insurance Company (“Provident”) after Provident terminated the monthly payments under Genovese’s disability income policy. Following commencement of the bad faith suit, Genovese requested production of Provident’s entire litigation file, including all correspondence and communications made between the attorneys representing Provident and Provident’s agents regarding Genovese’s claims for benefits. The trial court issued an order compelling production of the documents. Subsequently, Provident filed a petition for writ of certio-rari, asking the Fourth District to quash the trial court’s order. Provident argued in part that this Court’s decision in Ruiz did not allow for the discovery of documents protected by the attorney-client privilege.

The district court granted the petition as to the information covered by the attorney-client privilege, quashed the trial court’s order compelling discovery of documents protected by the attorney-client privilege, and remanded for further proceedings. In doing so, the district court cited its decision in Liberty Mutual Fire Insurance Co. v. Bennett, 939 So.2d 1113 (Fla. 4th DCA 2006), and the First District Court of Appeal’s decision in XL Specialty Insurance Co. v. Aircraft Holdings, LLC, 929 So.2d 578 (Fla. 1st DCA 2006). Genovese, 943 So.2d at 322-23. The Fourth District also certified the above question to be of great public importance.

ANALYSIS

The certified question asks whether our holding in Allstate Indemnity Co. v. Ruiz, 899 So.2d 1121 (Fla.2005), permitting the discovery of work product in first-party bad faith actions brought pursuant to section 624.155, Florida Statutes (2010), also applies to attorney-client privileged communications in the first-party bad faith context. Because of the uniqueness of the attorney-client privilege, we answer the certified question in the negative and hold that attorney-client privileged communications are not discoverable in a first-party action.

Section 624.155, Florida Statutes, enacted in 1982, created a statutory bad faith cause of action for first-party insureds. The enactment of section 624.155 “essentially extended the duty of an insurer to act in good faith and deal fairly in those instances where an insured seeks first-party coverage or benefits under a policy of insurance.” Ruiz, 899 So.2d at 1126 (citing State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 59 (Fla.1995)). Thus, an insured may bring a civil action against an insurer who does not attempt “in good faith to settle claims when, under all the circumstances, it could and should have done so, had it acted fairly and honestly toward its insured and with due regard for her or his interests.” § 624.155(l)(b)(l), Fla. Stat. (2010).

In Ruiz, we held that in first-party bad faith actions brought pursuant to section 624.155, work product materials were discoverable. At the outset, the first sentence of our opinion in Ruiz makes it clear that the only issue involved in that case was the work product doctrine. In Ruiz, we reviewed the decision of the Fourth District Court of Appeal in Allstate Indemnity Co. v. Ruiz, 780 So.2d 289 (Fla. 4th DCA 2001), “which expressly and directly eonflict[ed] with a number of cases from other district courts with regard to issues concerning application of work product privilege to shield documents from discovery in the insurance bad faith context.” Ruiz, 899 So.2d at 1122. In concluding that work product materials were discoverable in first-party bad faith actions, we then defined such work product as materials “contained in the underlying claim and related litigation file material that was created up to and including the date of resolution of the underlying disputed matter and pertain in any way to coverage, benefits, liability, or damages.” Id. at 1129-30. Moreover, following this description, we cited Florida Rule of Civil Procedure 1.280(b), which is the rule governing the work product doctrine. Thus, based on a reading of our language in Ruiz, it is clear that the only issue being decided in Ruiz was the discovery of work product pertaining to the underlying claim in first-party bad faith actions. However, Genovese suggests that although the facts of Ruiz only concerned the work product doctrine, we held broadly that both attorney-client communications and work product should be discoverable in first-party bad faith claims against insurers. Contrary to Ge-novese’s suggestion, our holding in Ruiz does not apply to attorney-client privileged communications in first-party bad faith actions.

The attorney-client privilege and work product doctrine are two distinct concepts. The attorney-client privilege is provided for in section 90.502, Florida Statutes (2010), which states that “[a] client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client.” § 90.502(2), Fla. Stat. (2010). “The purpose of the [attorney-client] privilege is to encourage clients to make full disclosure to their attorneys.” Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). However, the privilege “protects only those disclosures necessary to obtain informed legal advice.” Id. “[I]f a communication with a lawyer is not made with him in his professional capacity as a lawyer, no privilege attaches.” State v. Branham, 952 So.2d 618, 621 (Fla. 2d DCA 2007) (quoting Skorman v. Hovnanian of Fla., Inc., 382 So.2d 1376, 1378 (Fla. 4th DCA 1980)).

On the other hand, the work product doctrine is outlined in Florida Rule of Civil Procedure 1.280(b)(3), which states that

a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that party’s representative, including that party’s attorney, consultant, surety, indemnitor, insurer, or agent, only upon a showing that the party seeking discovery has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of the materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

Part of the purpose of discovery is to “provide each party with all available sources of proof as early as possible to facilitate trial preparation.” Dodson v. Persell, 390 So.2d 704, 706 (Fla.1980).

Issues regarding the discovery of work product and attorney-client privileged materials in the context of bad faith claims have arisen because of the requirements a party must satisfy to pursue a bad faith action against an insurance company. In order for a party to bring a bad faith claim against an insurer, there must be an “underlying claim for coverage or benefits or an action for damages which the insured alleges was handled in bad faith by the insurer.” Ruiz, 899 So.2d at 1124. Consequently, the underlying claim materials are the evidence needed to determine whether an insurer acted in bad faith, which raises the issue of what materials are discoverable in bad faith actions. Because the underlying claim materials are “necessary to advance [a first-party bad faith] action ... [and] evaluate the allegations of bad faith,” see Ruiz, 899 So.2d at 1128-29, the materials fall within the confines of the exception to the work-product doctrine, and thus are discoverable.

On the other hand, the attorney-client privilege, unlike the work-product doctrine, is not concerned with the litigation needs of the opposing party. See Quarles & Brady, LLP v. Birdsall, 802 So.2d 1205, 1206 (Fla. 2d DCA 2002) (“[U]ndue hardship is not an exception, nor is disclosure permitted because the opposing party claims that the privileged information is necessary to prove their case”) (citation omitted); see also West Bend Mutual Ins. Co. v. Higgins, 9 So.3d 655, 658 (Fla. 5th DCA 2009). Instead, the purpose of the privilege is to “encourage full and frank communication” between the attorney and the client. Id. at 657 (quoting Am. Tobacco v. State, 697 So.2d 1249, 1252 (Fla. 4th DCA 1997)). This significant goal of the privilege would be severely hampered if an insurer were aware that its communications with its attorney, which were not intended to be disclosed, could be revealed upon request by the insured. Moreover, we note that there is no exception provided under section 90.502 that allows the discovery of attorney-client privileged communications where the requesting party has demonstrated need and undue hardship.

Therefore, although we held in Ruiz that attorney work product in first-party bad faith actions was discoverable, this holding does not extend to attorney-client privileged communications. Consequently, when an insured party brings a bad faith claim against its insurer, the insured may not discover those privileged communications that occurred between the insurer and its counsel during the underlying action.

Although we conclude that the attorney-client privilege applies, we recognize that cases may arise where an insurer has hired an attorney to both investigate the underlying claim and render legal advice. Thus, the materials requested by the opposing party may implicate both the work product doctrine and the attorney-client privilege. Where a claim of privilege is asserted, the trial court should conduct an in-camera inspection to determine whether the sought-after materials are truly protected by the attorney-client privilege. If the trial court determines that the investigation performed by the attorney resulted in the preparation of materials that are required to be disclosed pursuant to Ruiz and did not involve the rendering of legal advice, then that material is discoverable.

Moreover, our opinion in this case is not intended to undermine any statutory or judicially created waiver or exception to the privilege. Specifically, we note that under the “at issue” doctrine, the discovery of attorney-client privileged communications between an insurer and its counsel is permitted where the insurer raises the advice of its counsel as a defense in the action and the communication is necessary to establish the defense. See Coates v. Akerman, Senterfitt & Eidson, P.A., 940 So.2d 504, 510 (Fla. 2d DCA 2006); see also Savino v. Luciano, 92 So.2d 817, 819 (Fla.1957) (“[W]hen a party has filed a claim, based upon a matter ordinarily privileged, the proof of which will necessarily require that the privileged matter be offered in evidence, we think that he has waived his right to insist, in pretrial discovery proceedings, that the matter is privileged.”). Thus, we acknowledge that the attorney-client privilege may also be overcome in first-party bad faith actions in limited circumstances, although we emphasize that attorney-client privileged communications are not the discoverable materials discussed by our opinion in Ruiz.

CONCLUSION

For the reasons explained above, we answer the certified question in the negative and hold that the attorney-client privilege is applicable in the first-party bad faith context. Accordingly, we approve the portion of the Fourth District Court of Appeal’s decision precluding the discovery of attorney-client privileged information in this first-party bad faith action.

It is so ordered.

CANADY, C.J., and PARIENTE, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

PARIENTE, J., specially concurs with an opinion, in which LEWIS, LABARGA, and PERRY, JJ., concur.

LEWIS, J., concurs in result only.

PARIENTE, J.,

specially concurring.

I agree that the statutory attorney-client privilege has not been expressly abrogated by the Legislature in first-party statutory bad faith claims arising under section 624.155, Florida Statutes. However, it is undeniable that an attorney’s interaction with the insurer during the time that the decision is being made to pay or deny the claim is often an important consideration in determining the critical issue of whether the insurer has acted in good faith in handling the claim.

The insurers’ duties set forth in section 624.155 to act “fairly and honestly toward [their] insured and with due regard for her or his interests” imposes a statutory obligation in first-party claims that is identical to the common law duty of good faith imposed on insurers in third-party claims. This was the essence of our holding in Allstate Indemnity Co. v. Ruiz, 899 So.2d 1121 (Fla.2005), which recognized the critical role that discovery of the claims file played in bad faith claims and held that there should not be “artificial and disparate discovery rules between first- and third-party bad faith claims.” Id. at 1129. “There simply is no basis upon which to distinguish between first- and third-party cases with regard to the rationale of the discoverability of the claim file type material.” Id.

As stated by this Court in Ruiz, access to the underlying file materials is required in order to “determine whether an insurance company has processed, analyzed, or litigated a claim in a fair, forthright, and good faith manner.” Id. at 1124. Indeed, the claims file is often the essential evidence that will either demonstrate that the insurer acted in bad faith or the opposite— that the insurer handled the claim in a “fair, forthright, and good faith manner.” Id. Yet, while we strived in Ruiz to level the playing field in the critical area of discovery between first- and third-party bad faith cases, we must acknowledge that we do not have the independent authority to abrogate the statutory attorney-client privilege, even in the context of bad faith claims.

I would, however, emphasize that where an insurer utilizes an attorney to investigate or evaluate the underlying claim and not to render legal advice, these materials would not be protected. Rather, the rationale of Ruiz would apply. However, cases may arise where an attorney investigates or evaluates the underlying claim and renders legal advice. Thus, the underlying file materials requested by the opposing party may arguably implicate both the work product rule and the attorney-client privilege.

Accordingly, where a claim of privilege is asserted, the judge should conduct an in camera inspection to determine whether the sought-after materials are truly protected by the attorney-client privilege or whether the materials pertain to the investigation or evaluation of the underlying claim. To the extent that the materials would implicate the work product rule and not the attorney-client privilege, the rationale of Ruiz would apply and those portions of the materials would be discoverable.

In this case, the trial court did not conduct an in camera inspection of the documents. Rather, the trial court ordered production of Provident’s entire litigation file, including all correspondence and communications made between the attorneys representing Provident and Provident’s agents regarding Genovese’s claim for benefits. Therefore, on remand, it is essential that an in camera inspection take place to discern whether the objected-to documents are discoverable under the principles we announce.

LEWIS, LABARGA, and PERRY, JJ., concur.