author: THOMAS, Judge. PITTMAN, Judge,

text:
    Martone GRIFFIN and Dorsalon Boyd v. Garry BLACKWELL and Blackwell Igor’s, Inc.
    2090710.
    Court of Civil Appeals of Alabama.
    Sept. 10, 2010.

      James G. Bodin and Aaron J. Luck of McPhillips, Shinbaum, L.L.P., Montgomery, for appellants.
    Submitted on appellants’ brief only.
   THOMAS, Judge.

Martone Griffin and Dorsalon Boyd appeal from the Montgomery Circuit Court’s denial of their motion for a default judgment against Garry Blackwell and Blackwell Igor’s, Inc. (hereinafter collectively referred to as “the Blackwell defendants”). We affirm.

On March 15, 2008, Griffin and Boyd were present at Igor’s Restaurant and Bar (“Igor’s”). On that night, an armed altercation occurred between security personnel hired by Igor’s and other individuals; Griffin and Boyd were not participants in the altercation. Griffin and Boyd both received gunshot wounds to the head during the altercation, resulting in serious injuries.

On October 1, 2009, Griffin and Boyd filed a complaint in the trial court, which they amended on November 3, 2009, naming as defendants the Blackwell defendants, Shelton Carter, Dontrel Carter, and Igor’s II, Inc., d/b/a Igor’s. In their complaint, Griffin and Boyd alleged claims of negligence, wantonness, negligent and wanton entrustment, negligent and wanton hiring and supervision, and respondent superior.

The Blackwell defendants were served with the original complaint and the amended complaint; however, the Blackwell defendants did not file an answer or any other responsive pleading to Griffin and Boyd’s complaint or amended complaint. Because of the Blackwell defendants’ failure to respond, Griffin and Boyd filed a motion for a default judgment in the trial court on December 7, 2009. The trial court subsequently set a hearing on Griffin and Boyd’s motion. At the hearing, Griffin and Boyd provided testimony and evidence relating to the extent of their injuries and the damages they had incurred as a result of their injuries.

On February 9, 2010, the trial court entered an order denying Griffin and Boyd’s motion for a default judgment. The trial court stated that it had denied Griffin and Boyd’s motion because they had “failed to submit substantial evidence of liability on the part of [the Blackwell defendants].” The trial court also dismissed Griffin and Boyd’s case without prejudice. Griffin and Boyd filed a post-judgment motion, in which they requested that the trial court alter, amend, or vacate its judgment. In their motion, Griffin and Boyd argued that they were not required to present evidence of the Blackwell defendants’ liability at the default-judgment hearing and, alternatively, that, if the trial court determined that evidence of liability was required, it should set a hearing in order for Griffin and Boyd to provide the trial court with that evidence. After holding a hearing, the trial court denied Griffin and Boyd’s postjudgment motion. Griffin and Boyd subsequently appealed to the Alabama Supreme Court. Our supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

The denial of a motion for a default judgment is an interlocutory order that is not subject to appeal. See McBride v. McBride, 380 So.2d 886, 888 (Ala.Civ.App.1980). However, in this case, in addition to denying Griffin and Boyd’s motion for a default judgment, the trial court dismissed Griffin and Boyd’s case. The dismissal of a case is a final judgment subject to appeal. See Ex parte Denson, 57 So.3d 195, 199 (Ala.2010). Because the trial court dismissed Griffin and Boyd’s case, the trial court’s judgment is a final, appeal-able judgment.

Griffin and Boyd argue that the trial court erred when it denied their motion for a default judgment because, Griffin and Boyd say, they were not required to prove the Blackwell defendants’ liability at the default-judgment hearing. However, we do not reach Griffin and Boyd’s argument because the trial court’s denial of their motion for a default judgment is due to be affirmed on other grounds. See Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala.2003) (holding that, subject to certain exceptions not relevant in this case, “this Court will affirm the trial court on any valid legal ground presented by the record, regardless of whether that ground was considered, or even if it was rejected, by the trial court”).

Rule 55, Ala. R. Civ. P., provides the procedure that a party must follow in order to obtain a default judgment.

“The first step is the entry of a default. When a party against whom affirmative relief is sought fails to plead or otherwise defend the action and that fact is made to appear by affidavit or otherwise, the clerk enters a default. [Rule] 55(a). A judgment by default may then be entered.”

J & P Constr. Co. v. Valta Constr. Co., 452 So.2d 857, 859 (Ala.1984). Following the entry of default by the clerk, if, as in this case, the party’s claim is not for a sum certain or for a sum that can be made certain by computation, the party must then apply to the trial court for a default judgment. See Rule 55(b)(1) and Rule 55(b)(2). Thus, a party must first obtain an entry of default by the clerk or the trial court before he or she can obtain a default judgment from the trial court. , See Graham v. University Credit Union, 411 So.2d 144, 148 (Ala.Civ.App.1982), overruled on other grounds by Ex parte Keith, 771 So.2d 1018 (Ala.1998) (“Prior to obtaining a default judgment under rule 55(b)(2), there must be an entry of default as provided by Rule 55(a). Wright & Miller, Federal Practice and Procedure § 2682. Entering default by the court or the clerk is the first action taken before entering a default judgment.”); see also 2 Champ Lyons, Jr. & Ally W. Howell, Alabama Rules of Civil Procedure Annotated § 55.2 (4th ed. 2004) (“[T]he entry of default is separate from the entry of judgment and the default must be entered prior to obtaining a judgment under [Rule] 55(b).”).

The record on appeal does not contain any evidence indicating that Griffin and Boyd had applied to the clerk or the trial court for an entry of default against the Blackwell defendants or that the clerk or the trial court had entered a default against the Blackwell defendants before the trial court entered its order denying Griffin and Boyd’s motion for a default judgment. Therefore, if the trial court had entered a default judgment at that time, it would have been error. See Graham, 411 So.2d at 148. Accordingly, the trial court did not err when it denied Griffin and Boyd’s motion for a default judgment.

AFFIRMED.

THOMPSON, P.J., and BRYAN and MOORE, JJ., concur.

PITTMAN, J., concurs specially, with writing.

PITTMAN, Judge,

concurring specially.

“[A]n entry of a default judgment under Rule 55(b)(2), Ala. R. Civ. P., is a matter entrusted to the sound discretion of the trial court,” and “a movant is not entitled to a default judgment as a matter of right.” City of Gulf Shores v. Harbert Int’l, 608 So.2d 348, 357-58 (Ala.1992). In interpreting the analogous federal rule, the United States Court of Appeals for the Fifth Circuit noted in Nishimatsu Construction Co. v. Houston National Bank, 515 F.2d 1200 (5th Cir.1975), that “a defendant’s default does not in itself warrant the court in entering a default judgment” and that “[t]here must be a sufficient basis in the pleadings for the judgment entered.” 515 F.2d at 1206. Moreover, “[t]he defendant is not held to admit facts that are not well-pleaded or to admit conclusions of law,” nor is a default “treated as an absolute confession by the defendant of his liability and of the plaintiffs right to recover.” Id.

Because I agree that the sole aspect of the judgment at issue that is preserved and properly presented for this court’s review is the denial of the motion for a default judgment, and because I perceive no error as to that ruling, I concur.

      . Shelton Carter and Dontrel Carter were allegedly security personnel working at Igor’s the night of the altercation. According to Griffin and Boyd, Shelton and Dontrel were never served with process because they could not be located. Griffin and Boyd later filed a motion to dismiss Igor's II, Inc., as a defendant, which the trial court granted.

      . Griffin and Boyd state in their brief on appeal that the trial court erred when it dismissed their case; however, Griffin and Boyd do not provide any legal support for this argument except for the legal authorities cited in support of their argument that the trial court erred by denying their motion for a default judgment. None of the authorities cited by Griffin and Boyd are relevant to the question of the propriety of the trial court's dismissal of their case. Therefore, Griffin and Boyd have not met the requirements of Rule 28(a)(10), Ala. R. Civ. P., with respect to this issue, and we will not consider it. See Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So.2d 1, 9 (Ala.2007).


source: Caselaw Access Project

author: PER CURIAM. MAIN, Judge,

license: Public Domain

text:
    Nickolas L. DEAN v. STATE of Alabama.
    CR-08-1082.
    Court of Criminal Appeals of Alabama.
    Dec. 18, 2009.
    Rehearing Denied Feb. 19, 2010.

      Gabrielle Helix, Huntsville, for appellant.
    Troy King, atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for appellee.

      . Dean's first name is also spelled “Nickolis” in various portions of tire record.

   PER CURIAM.

The appellant, Nickolas L. Dean, appeals the circuit court’s revocation of his probation. In November 2003, Dean pleaded guilty to robbery in the first degree; he was sentenced to 20 years’ imprisonment which sentence was split, and he was ordered to serve five years’ incarceration followed by three years’ supervised probation.

In December 2008, Dean’s probation officer filed a delinquency report charging Dean with violating the terms of his probation by failing to report to his probation officer, failing to pay supervision fees, and failing to pay court-ordered moneys. After a hearing at which the court found that Dean failed to report to his probation officer, the circuit court revoked Dean’s probation and ordered Dean to serve the remainder of his 20-year sentence. This appeal followed.

On appeal, Dean, who is an indigent defendant, argues: “The Court erred in failing to appoint a lawyer to represent Dean. The Court used an arbitrary standard in determining whether counsel would be appointed.” (Dean’s brief at p. 8.) The State argues that Dean failed to preserve this issue for appellate review.

Initially, we note that the general rules of preservation apply to probation-revocation proceedings; however, we have recognized three exceptions to this rule:

“(1) The requirement that there be an adequate written order of revocation, (2) the requirement that a revocation hearing actually be held, and (3) the requirement that the defendant be advised of his right to request an attorney. Puckett v. State, 680 So.2d 980, 983 (Ala.Crim.App.1996); Law v. State, 778 So.2d 249, 250 (Ala.Crim.App.2000).”

Smith v. State, 26 So.3d 1269, 1271 (Ala.Crim.App.2008). Dean’s claim fits within the third exception. See Donaldson v. State, 982 So.2d 609, 610 n. 1 (Ala.Crim.App.2006) (reviewing Donaldson’s claim that the circuit court erred in not appointing counsel during probation-revocation hearing even though the issue was not preserved for appellate review).

Moreover, Dean’s probation was revoked on March 30, 2009. On April 13, 2009, Dean, acting pro se, filed a letter addressed to the circuit judge. The letter reads:

“I am writing the court to request an appeal regarding my revocation hearing. At that particular time in question I didn’t have an attorney to represent me. I feel that if I had someone to speak on my behalf the outcome of the hearing would have been different.”

(C.R. 13.) The letter was treated as a notice of appeal.

The record of the probation hearing reflects the following discussion at the beginning of the hearing:

“The Court: You have' the right to hire your own lawyer, Mr. Dean. Can you hire a lawyer and do you want to do that?
“[Dean]: Sir, I’m not able to, sir.
“The Court: If you can tell me that this report is wrong I will appoint an attorney.
“[Dean]: I misunderstood the question. “The Court: If you can tell me that you have not violated probation; that this report is in error, then I will appoint a lawyer to represent you.
“[Dean]: It’s not, sir.
“The Court: You can’t do that.
“[Dean]: I did not report.
“The Court: All right. You don’t have to admit, technically now, that you violated probation. If you deny it, then I’ll take testimony from the probation officer. You can testify if you want to, but you may remain silent. Do you understand that?
“[Dean]: Yes, sir.
“The Court: Do you admit or deny failing to report and paying the Court-ordered moneys? Do you admit it.or deny it? Is it true or not true?
“[Dean]: Deny.
“The Court: Well, is this report true or not true?
“[Dean]: It’s not true. The whole thing is not true.
“The Court: Is it true or not true that you failed to report to your probation officer?
“[Dean]: It’s true.
“The Court: All right. And what part do you deny?
“[Dean]: I paid — I was paying the fines.
“The Court: Do you want to tell me why you didn’t report ?
“[Dean]: I had lost my place. Home. Residence. I had lost my home residence and I was living on the street, sir.”

(R. 2-4.)

There is no absolute right to counsel in a probation revocation proceeding, only a qualified right. See Coon v. State, 675 So.2d 94 (Ala.Crim.App.1995). “Whether a probationer is entitled to counsel is determined on a case-by-case basis.” Gibbons v. State, 882 So.2d 381, 382 (Ala.Crim.App.2003). This limited right is incorporated into Rule 27.6(b), Ala. R.Crim. P., which states:

“The probationer is entitled to be present at the hearing and to be represented by counsel. Counsel will be appointed to represent an indigent probationer upon request:
“ ‘(1) If the probationer makes a colorable claim that the probationer has not committed the alleged violation of the conditions or regulations of probation or the instructions issued by the probation officer; or
“ ‘(2) Even when the violation is a matter of public record or is uncontested,.if there are substantial reasons that justify or mitigate the violation and that may make revocation inappropriate, and the reasons are complex or otherwise difficult to develop or present.”

This rule was patterned to comply with the requirements set out by the United States Supreme Court in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

In this case, Dean denied the allegation that he failed to pay court-ordered moneys. After prompting from the court, Dean did admit that he had failed to report to his probation officer. However, Dean explained that he failed .to report because he had no home and was living on the street. According to Rule 27.6(b)(2), Ala. R.Crim. P., Dean alleged facts that might tend to mitigate his failure to report to his probation officer. See Davis v. State, 855 So.2d 1142 (Ala.Crim.App.2003). Dean was entitled to counsel at his probation-revocation hearing. We must reverse the circuit court’s order revoking Dean’s probation and remand this case so that the circuit court may hold a new probation-revocation hearing at which Dean is represented by counsel.

REVERSED AND REMANDED.

WISE, P.J., and WELCH and KELLUM, JJ., concur.

MAIN, J., dissents, with opinion, which WINDOM, J., joins.

MAIN, Judge,

dissenting.

I respectfully dissent from the per cu-riam opinion reversing Dean’s probation revocation and remanding the case for further proceedings.

Initially, I do not believe that Dean’s claim falls under any of the three exceptions to the general rule of preservation, which are:

“(1) the requirement that a revocation hearing be held, (2) the requirement that there be an adequate written revocation order, and (3) the requirement that the probationer be informed of his right to request counsel. See, e.g., Jackson v. State, 867 So.2d 365 (Ala.Crim.App.2003), and Evans v. State, 794 So.2d 1234 (Ala.Crim.App.2000).”

Walker v. State, 920 So.2d 592, 594-95 (Ala.Crim.App.2005). Although the per curiam opinion cites Donaldson v. State, 982 So.2d 609 (Ala.Crim.App.2006), for the proposition that Dean’s claim falls under the third exception, I disagree. The allegation that the probationer did not know he had the right to request counsel is different than the allegation that the trial court erred in not appointing counsel. Thus, I believe that to the extent that Donaldson suggests this claim falls under the third exception to preservation, it should be overruled.

Further, and without abandoning my belief that the claim was not preserved, I believe that the per curiam opinion has prematurely determined that “Dean was entitled to counsel at his probation-revocation hearing. We must reverse the circuit court’s order revoking Dean’s probation and remand this case so that the circuit court may hold a new probation-revocation hearing at which Dean is represented by counsel.” Dean, 57 So.3d at 167. I believe the per curiam opinion erred in making that determination without first affording the circuit court the opportunity to make the initial determination. Rather, as this Court stated in Donaldson, the case relied upon by the per curiam opinion:

“[I]t does not appear that the circuit court made an initial determination as to whether the appellant was entitled to have counsel appointed to represent him. Furthermore, based on the record before us, it appears that the appellant may have a colorable claim that he did not commit the alleged violations or that he may have had substantial reasons to justify or mitigate the violations. Accordingly, we remand this case to the circuit court with instructions that that court make specific, written findings regarding whether the appellant was entitled to have counsel appointed to represent him during the revocation hearing. If the circuit court determines that the appellant was entitled to have counsel appointed to represent him during the revocation hearing, it shall set aside its order revoking the appellant’s probation and conduct a new revocation hearing. In conducting the revocation hearing, we caution the circuit court to comply with the due process requirements set forth in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975); and Rule 27, Ala.R.Crim. P. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 56 days after the release of this opinion. The return to remand shall include the circuit court’s specific, written findings of fact and a transcript of the remand proceedings conducted by the circuit court, if any.”

Donaldson v. State, 982 So.2d at 611. Thus, I believe that the majority has improperly usurped a role delegated to the trial court.

For these reasons, I respectfully dissent.

WINDOM, J., concurs.

      . Dean also filed an untimely motion to reconsider the revocation of his probation. The motion was filed more than 30 days after the circuit court had revoked Dean’s probation. We have held that a circuit court retains jurisdiction after a probation revocation proceeding for only 30 days, and no postconviction motion operates to extend the jurisdiction of the lower court beyond the 30 days. See Wank v. State, 18 So.3d 972 (Ala.Crim.App.2009).

      . The circuit court appointed Dean an attorney for his appeal to this Court.


author: STUART, Justice.

text:
    Ex parte State of Alabama (In re Nickolas L. DEAN v. STATE of Alabama).
    1090754.
    Supreme Court of Alabama.
    June 25, 2010.

      Troy King, atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for petitioner.
    Gabrielle N. Helix, Huntsville, for respondent.
   STUART, Justice.

In November 2003, upon pleading guilty to robbery in the first degree, Nickolas L. Dean was sentenced to 20 years’ imprisonment. That sentence was split, and Dean was ordered to serve five years’ incarceration, followed by three years of supervised probation. In 2008, while Dean was serving the probationary portion of his sentence, his probation officer filed a delinquency report charging that Dean had violated various terms of his probation, including failing to report to the probation officer. At the probation-revocation hearing, the following exchange occurred between the circuit court and Dean:

“THE COURT: You have the right to hire your own lawyer, Mr. Dean. Can you hire a lawyer and do you want to do that?
“[Dean]: Sir, I’m not able to, sir.
“THE COURT: If you can tell me that this report is wrong I will appoint an attorney.
“[Dean]: I misunderstood the question.
“THE COURT: If you can tell me that you have not violated probation; that this report is in error, then I will appoint a lawyer to represent you.
“[Dean]: It’s not, sir.
“THE COURT: You can’t do that.
“[Dean]: I did not report.
“THE COURT: All right. You don’t have to admit, technically now, that you violated probation. If you deny it, then I’ll take testimony from the probation officer. You can testify if you want to, but you may remain silent. Do you understand that?
“[Dean]: Yes, sir.
“THE COURT: Do you admit or deny failing to report and paying the Court-ordered moneys? Do you admit it or deny it? Is it true or not true?
“[Dean]: Deny.
“THE COURT: Well, is this report true or not true?
“[Dean]: It’s not true. The whole thing is not true.
“THE COURT: Is it true or not true that you failed to report to your probation officer?
“[Dean]: It’s true.
“THE COURT: Do you want to tell me why you didn’t report?
“[Dean]: I had lost my place. Home. Residence. I had lost my home residence and I was living on the street, sir.
“THE COURT: All right. Mr. Dean, as a result of failing to report to your probation officer, your probationary status is revoked and you’re ordered to serve your original sentence. You’ll get credit for any time that you’ve served.
“[Dean]: Sir, would it be possible I could get a probation bond or anything like that?
“THE COURT: No, sir. Your probation is revoked. You’re not on probation now. You’ve got to serve your sentence for failing to report.
“[Dean]: Can I ask something, sir?
“THE COURT: Sir?
“[Dean]: Can I say something on my behalf, sir?
“THE COURT: If you’d like to. I thought you already did. Go ahead.
“[Dean]: Sir, would it be possible — see, I never did go to work release or nothing when I was in prison the whole time, because I didn’t have no PSI report; Presentence Investigation Report. They wouldn’t allow me to go to work release so, the whole time I was in prison, when I got out, I didn’t have no means to make money or job skills as well. So, on top of that I’m asking you if it’s possible if I can have a chance to— have a chance. If I can have a chance to have a chance to, you know, to have some type of income that when I do get out that I’m able to do for myself.
“THE COURT: I hope you qualify for work release. I can’t do any further split on this. You’ve already served the maximum split, so there’s nothing I can do except the original sentence. So, it will be up to the Department of Corrections as to whether or not they’ll put you on work release.
“[Dean]: I understand that, sir, but I’m asking you if it would be possible if I could go to county work release for six months to a year?
“THE COURT: No, sir, I can’t do that. I’ve already split your sentence to the maximum amount. There’s nothing I can do, Mr. Dean..
‘You can go back with the deputies. I hope they’ll put you on work release with the State.”

In a pro se motion, Dean asked the circuit court to réconsider its order revoking his probation, stating:

“1. Upon my release from incarceration, I was explained the rules and agreed to them, however'
“2. My listed residence was infested with drugs and violence. Because of the people moving through the house, items periodically came up missing. Arguments were building and I felt I needed to remove myself from a volatile situation.
“3. I stayed with several friends for a period of time but I was basically homeless. I was only working sporadically through Labor Finders making about $40 a day when I worked.
“4. I did not intend to neglect payment of my fines and restitution but I did not have any money for more than basic survival.
“5. After I fell behind, my probation officer made it clear that if I did not pay my probation would be revoked. I was scared after another month came and I was still on the streets and still not able to pay. Because of this, I stopped reporting.
“6. I often walked by the probation office and thought to go in and explain and even went in once and asked for [my probation officer] but he wasn’t in and I left. I was too scared to go back.”

The circuit court denied Dean’s motion to reconsider.

Dean appealed the circuit court’s judgment revoking his probation to the Court of Criminal Appeals, arguing, among other issues, that the circuit court erred in refusing to appoint counsel to represent him at the probation-revocation hearing. The State maintained that Dean’s argument was not preserved for appellate review and that the circuit court properly refused to appoint counsel to represent Dean at the probation-revocation hearing.

The Court of Criminal Appeals reversed the circuit court’s order revoking Dean’s probation. Dean v. State, 57 So.3d 164 (Ala.Crim.App.2009) (Main and Windom, JJ., dissenting). Reasoning that the circuit court’s failure to appoint counsel to represent Dean at the probation-revocation hearing falls within one of the exceptions to the general rules of preservation, i.e., that a trial court must advise the probationer of his or her right to request counsel, see Donaldson v. State, 982 So.2d 609 (Ala.Crim.App.2006), the Court of Criminal Appeals then reviewed the circuit court’s decision that Dean was not entitled to counsel to represent him at the probation-revocation hearing. The Court of Criminal Appeals held that the circuit court had erred in not appointing counsel to represent Dean because the record indicated that “Dean alleged facts that might tend to mitigate his failure to report to his probation officer.” 57 So.3d at 167. Accordingly, the Court of Criminal Appeals reversed the circuit court’s order revoking Dean’s probation and ordered the circuit court to appoint counsel to represent Dean at a new probation-revocation hearing.

The State petitioned this Court for cer-tiorari review of the decision of the Court of Criminal Appeals. We granted the State’s petition to determine, first, whether a claim that a circuit court refused to appoint counsel to represent an indigent probationer at a probation-revocation hearing must be preserved for appellate review and, if not, whether the Court of Criminal Appeals erred in ordering a new probation-revocation hearing at which Dean was entitled to appointed counsel to represent him.

We note initially that the proceeding under review is a probation-revocation hearing. Probation is a privilege granted by the State, not a right to which a criminal defendant is entitled. Killeen v. State, 28 So.3d 823, 824 (Ala.Crim.App.2009). Once the State grants probation, however, it cannot simply revoke the privilege at its discretion. Id. Because probation revocation implicates a defendant’s liberty interest, a probationer is entitled to some procedural due process in a probation-revocation proceeding. Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). A probationer, however, is not entitled to the full due-process rights provided in a criminal proceeding because probation revocation does not deprive a defendant of his or her absolute liberty, only his or her conditional liberty.

Undisputedly, “ ‘[t]he constitutional [Sixth Amendment] “right to counsel or waiver thereof, is an essential jurisdictional prerequisite to the authority to convict an accused[, and c]onviction without this safeguard is void.” ’ ” Pratt v. State, 851 So.2d 142, 144 (Ala.Crim.App.2002) (quoting Berry v. State, 630 So.2d 127, 130 (Ala.Crim.App.1993)). However, at a probation-revocation proceeding, the right to counsel is not a Sixth Amendment right; the right exists only by virtue of the Due Process Clause under the Fifth and Fourteenth Amendments, and the State is not under a constitutional duty to provide counsel for indigent probationers in all probation-revocation cases. As the United States Supreme Court explained in Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973):

“We thus find no justification for a new inflexible constitutional rule with respect to the requirement of counsel [at a probation-revocation hearing]. We think, rather, that the decision as to the need for counsel must be made on a case-by-case basis in the exercise of a sound discretion by the state authority charged with responsibility for administering the probation and parole system. Although the presence and participation of counsel will probably be both undesirable and constitutionally unnecessary in most revocation hearings, there will remain certain cases in which fundamental fairness- — the touchstone of due process — will require that the State provide at its expense counsel for indigent probationers.”

Likewise, our caselaw has established:

“ ‘[T]here is no automatic right to counsel in a probation revocation proceeding.’ Law v. State, 778 So.2d 249, 250 (Ala.Crim.App.2000) (citing Spence v. State, 766 So.2d 206, 207 (Ala.Crim.App.1999)). Whether a probationer is entitled to counsel is determined on a case-by-case basis. See Law, 778 So.2d at 250; Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975).”

Gibbons v. State, 882 So.2d 381, 382 (Ala.Crim.App.2003).

First, the State contends that the Court of Criminal Appeals erred in holding that Dean did not have to preserve for appellate review his contention that the circuit court erred in refusing to appoint counsel to represent him at the probation-revocation hearing. In Puckett v. State, 680 So.2d 980 (Ala.Crim.App.1996), the Court of Criminal Appeals recognized that the rules of preservation -applied to probation-revocation proceedings. One exception to those rules of preservation as applied to probation-revocation proceedings that has since been recognized is that an appellate court will review the failure of a circuit court to inform a probationer of his or her right to request counsel to represent the probationer at a probation-revocation hearing even though an objection on that basis was not entered at the hearing. Law v. State, 778 So.2d 249 (Ala.Crim.App.2000). Judge Shaw explained the rationale for recognizing this preservation exception in Davis v. State, 855 So.2d 1142, 1145 (Ala.Crim.App.2003) (Shaw, J., concurring specially), stating:

“If a probationer does not know that he or she has the right to request counsel because the trial court never informed the probationer of that right, he or she cannot possibly know to object to the trial court’s failure to advise the probationer of the right to request counsel. The fact that ‘situations exist in which a probationer, if not represented by counsel, may not receive the protections guaranteed by Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), in probation revocation proceedings,’ Law [v. State], 778 So.2d [249], 250 [ (Ala.Crim.App.2000) ] (footnote omitted), coupled with the inherent inconsistency in requiring a probationer to object to the trial court’s failure to advise him or her of the right to request counsel when the probationer is not aware that he or she has such a right, requires that this Court address the merits of [a probationer’s] claim, even though it is being raised for the first time on appeal.”

In Dean, the Court of Criminal Appeals held that a circuit court’s refusal to appoint counsel to represent a probationer at a probation-revocation hearing fit within one of the exceptions to the general rules of preservation recognized in a probation-revocation proceeding — a claim that a circuit court failed to inform a probationer of his or her right to request an attorney. To support its conclusion, the Court of Criminal Appeals cited Donaldson v. State, 982 So.2d at 610 n. 1. In Donaldson, the Court of Criminal Appeals stated that a claim that the circuit court had erred in refusing to appoint counsel to represent a probationer at a revocation hearing involved the fundamental right to counsel and, consequently, that an objection in the circuit court was not required for appellate review.

The State maintains that the Court of Criminal Appeals erred in holding that Dean was not required to preserve the issue for review because, it says, the question whether a probationer is informed of his or her right to request counsel to represent the probationer at a probation-revocation hearing is materially different from the question whether the circuit court erred in not appointing counsel to represent an indigent probationer. It argues that this Court should reverse Donaldson to the extent that it. holds that an exception to the general rules of preservation exists with regard to a claim that' the circuit court failed to appoint counsel to represent an indigent probationer at a revocation hearing.

We agree with the State that whether a probationer is informed of the right to request that he or she be represented by counsel at a probation-revocation hearing is materially different from whether the circuit court erred in not appointing counsel to represent an indigent probationer. Therefore, we cannot agree with the Court of Criminal Appeals that the failure to appoint counsel to represent an indigent probationer is encompassed within the preservation exception of failure to inform a probationer of his or her right to request counsel. We do, however, agree with the Court of Criminal Appeals that review of a claim that the circuit court erred in refusing to appoint counsel to represent an indigent probationer does not have to be preserved in the circuit court for appellate review. In Gagnon, the United States Supreme Court recognized that “there will remain certain cases in which fundamental fairness — the touchstone of due process— will require that the State provide at its expense counsel for indigent probationers.” 411 U.S. at 790, 93 S.Ct. 1756. Accordingly, to satisfy the fundamental-fairness concern expressed in Gagnon, it is appropriate for an appellate court to review a circuit court’s refusal to appoint counsel to represent an indigent probationer when that issue is raised on appeal even if no objection was entered in the circuit court. Review by the Court of Criminal Appeals of Dean’s contention that the circuit court erred by refusing to appoint counsel to represent Dean at the probation-revocation hearing was proper.

Next, the State maintains that the Court of Criminal Appeals erred in holding that the circuit court erred by refusing to appoint counsel to represent Dean at the probation-revocation hearing.

Our law is clear that a probationer does not necessarily have a right to be represented by counsel at a probation-revocation hearing and that the determination of whether an indigent defendant is entitled to have counsel appointed to represent him or her at a probation-revocation hearing rests in the circuit court. “Although a probationer does not have an unqualified right to counsel at a probation-revocation hearing, Coon v. State, 675 So.2d 94, 95 (Ala.Crim.App.1995), it is incumbent upon the sentencing court to determine whether the probationer has such a right before revoking his probation.” Turner v. State, 981 So.2d 444, 447 (Ala.Crim.App.2007). Rule 27.6(b), Ala. R.Crim. P., provides:

“The probationer is entitled to be present at the hearing and to be represented by counsel. Counsel will be appointed to represent an indigent probationer upon request:
“(1) If the probationer makes a color-able claim that the probationer has not committed the alleged violation of the conditions or regulations of probation or the instructions issued by the probation officer; or
“(2) Even when the violation is a matter of public record or is uncontested, if there are substantial reasons that justify or mitigate the violation and that may make revocation inappropriate, and the reasons are complex or otherwise difficult to develop or present.”

See also Gagnon, 411 U.S. at 790-91 (recognizing that one consideration in determining whether counsel needs to be appointed to represent a probationer is “whether the probationer appears to be capable of speaking effectively for himself’).

Dean admitted that he violated a term of his probation by failing to report to his probation officer. Thus, an analysis under Rule 27.6(b)(2), Ala. R.Crim. P., must be conducted to determine whether Dean was entitled to have counsel appointed to represent him at the probation-revocation hearing. A circuit court’s refusal to appoint counsel to represent an indigent probationer is not reversible error unless the probationer can show that he or she was materially harmed by the absence of counsel. Evans v. State, 794 So.2d 1234, 1236 (Ala.Crim.App.2000).

The State maintains that the circuit court did not exceed the scope of its discretion in refusing to appoint counsel to represent Dean at the probation-revocation hearing because, it says, Dean’s reasons for failing to report to his probation officer are not “complex or otherwise difficult to develop.” The State contends that Dean adequately explained to the circuit court his reasons for failing to report to his probation officer and that the reasons were straightforward and not difficult to develop. We agree.

Initially, we note that Dean’s probation-revocation hearing was not unusually complex and did not include an allegation that Dean had committed a new criminal offense. Nothing in the record indicates that Dean was confused at the hearing with regard to his probationary status, the alleged violation that he failed to report to his probation officer, or the consequences for this violation. Indeed, the record establishes that Dean effectively communicated with the circuit court at the hearing and did not hesitate to advocate for his placement on work release.

Dean was charged with several violations of his probation, including failing to report to his probation officer. Dean admitted that he did not report to his probation officer and stated that he did not report because he was living on the street after he lost his residence. Additionally, in his motion for reconsideration, Dean elaborated on his reason for failing to report to his probation officer, explaining that he was afraid his probation would be revoked because he was unable to pay his fines and restitution and was living on the streets. Indeed, Dean acknowledged in his motion that he knew he was supposed to report to his probation officer, but he did not.

In this case, the circuit court’s failure to appoint counsel to represent Dean at the probation-revocation hearing did not render the revocation proceedings fundamentally unfair or violate Dean’s due-process rights. Dean’s reasons for failing to report to his probation officer — fear and the loss of housing — were neither complex nor difficult to develop or present. The mere existence of mitigating reasons for the alleged violation does not entitle a probationer to appointed counsel; the mitigating reasons must be “complex or otherwise difficult to develop or present.” Dean’s reasons were not. Consequently, the failure of the circuit court to appoint counsel for Dean was not error. Moreover, Dean’s claim that an attorney could have developed the mitigation evidence to explain why Dean did not report to his probation officer is a bare allegation, not supported by any facts or evidence. A bare allegation cannot establish that Dean was harmed by the absence of counsel. The record simply does not support a finding that Dean was materially harmed by the absence of counsel to represent him at the probation-revocation hearing or that he was entitled to have counsel appointed to represent him.

Because the record does not support a finding that the circuit court exceeded the scope of its discretion in refusing to appoint counsel to represent Dean at the probation-revocation hearing, the judgment of the Court of Criminal Appeals is reversed, and this case is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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


author: PER CURIAM.

text:
    Nicholas L. DEAN v. STATE of Alabama.
    CR-08-1082.
    Court of Criminal Appeals of Alabama.
    Aug. 27, 2010.

      Gabrielle Helix, Huntsville, for appellant.
    Troy King, atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for appellee.
   After Remand from the Alabama Supreme Court

PER CURIAM.

In Dean v. State, 57 So.3d 169 (Ala.2010), the Alabama Supreme Court reversed this Court’s decision in Dean v. State, 57 So.3d 164 (Ala.Crim.App.2009), and held that a claim that a lower court “refused to appoint counsel to represent an indigent probationer at a probation-revocation hearing” did not have to be preserved for appellate review. The Supremé Court also held, contrary to this Court, that the circuit court did not err in refusing to appoint counsel to represent Dean at his probation-revocation hearing because, it said, the issues involved in Dean’s case were not “unusually complex.” 57 So.3d at 175. The Supreme Court remanded the case for consideration of the remaining issues Dean raised in his original brief to this Court, which we did not address given our decision to reverse the lower court proceedings. We now address those two issues.

Dean argues that the circuit court failed to inform him of all of his Rule 27.6, Ala. R.Crim. P., rights — his right to testify, his right to present evidence and witnesses on his behalf, and his right to cross-examine witnesses — before he admitted to failing to report to his probation officer. Dean also argues that the circuit court abused its discretion in revoking his probation based solely on the statement of his probation officer and his admission that he failed to report to his probation officer.

The general rules of preservation apply to probation-revocation proceedings; however, the following exceptions to those rules have been recognized:

“(1) the requirement that a revocation hearing be held, (2) the requirement that there be an adequate written revocation order, and (3) the requirement that the probationer be informed of his right to request counsel. See, e.g., Jackson v. State, 867 So.2d 365 (Ala.Crim.App.2003), and Evans v. State, 794 So.2d 1234 (Ala.Crim.App.2000).”

Walker v. State, 920 So.2d 592, 594-95 (Ala.Crim.App.2005). A new exception was created by the Supreme Court in Dean v. State. The Court held in Dean that a claim that the lower court refused to appoint counsel to represent an indigent probationer at a probationer-revocation hearing did not have to be preserved before an appellate court could review that claim on appeal. Dean’s claims do not fall within one of the exceptions to the general rules of preservation that have been recognized in probation-revocation proceedings. Thus, because Dean did not raise these issues in the circuit court, they are not properly preserved for appellate review. Accordingly, we affirm the revocation of Dean’s probation.

AFFIRMED.

WISE, P.J., and WELCH, WINDOM, KELLUM, and MAIN, JJ., concur.

      . The right to counsel in a probation-revocation proceeding is a qualified right. Coon v. State, 675 So.2d 94 (Ala.Crim.App.1995).

      . Rule 27.6(c), Ala. R.Crim. P., provides that before accepting an admission by a probationer that he had violated a term of his probation, the court shall inform the probationer of the following:
      "(1) The nature of the violation to which an admission is offered;
      “(2) The right under section (b) to be represented by counsel;
      "(3) The right to testify and to present witnesses and other evidence on probationer's own behalf and to cross-examine adverse witnesses under subsection (d)(1); and
      “(4) That, if the alleged violation involves a criminal offense for-which the probationer has not yet been tried, the probationer may still be tried for that offense, and although the probationer may not be required to testify, that any statement made by the probationer at the present proceeding may be used against the probationer at a subsequent proceeding or trial.”


author: WINDOM, Judge.

text:
    Ronnie Lee GHOLSTON v. STATE of Alabama.
    CR-07-0788.
    Court of Criminal Appeals of Alabama.
    March 5, 2010.

      John R. Benn, Red Bay (withdrew 06/24/2009); and Jeffrey W. Barksdale, Red Bay, for appellant.
    Troy King, atty. gen., and Cecil G. Bran-dle, Jr., asst. atty. gen., for appellee.
   WINDOM, Judge.

Ronnie Lee Gholston appeals his convictions for first-degree rape, a violation of § 13A-6-61, Ala.Code 1975; first-degree kidnapping, a violation of § 13A-6-43, Ala. Code 1975; first-degree robbery, a violation of § 13A-8-41, Ala.Code 1975; first-degree ’ theft of property, a violation of § 13A-8-3, Ala.Code 1975; and unauthorized use of a vehicle, a violation of § 13A-8-11, Ala.Code 1975. The circuit court sentenced Gholston to three life sentences for the rape, kidnapping, and robbery convictions and to 2 terms of 20 years in prison for the theft of property and unauthorized use of a vehicle convictions. (R. 808-09.) Gholston did not file any post-judgment motions.

Because Gholston does not challenge the sufficiency of the evidence, a brief recitation of the facts will suffice. A.C., an employee of Advance Cash America, closed the store around six o’clock on the evening of November 29, 2006. (R. 222-23.) As A.C. was getting into her 2003 black Ford Taurus automobile to leave work, Gholston emerged from some bushes and put a gun to her head. (R. 229-31.) Gholston then ordered A.C. to get into the passenger seat, and he got into the driver’s seat. At that point, Gholston drove A.C. to a field. (R. 231, 240.) Once at the field, Gholston forced A.C. at gunpoint to have sexual intercourse with him. (R. 240-48.)

Shortly thereafter, Gholston told A.C. that he was taking her back to Cash Advance America and that he would kill her if she did not give him the money inside the store. (R. 248.) When they returned to the store, A.C. went into the store and got money from a safe. She then returned to the vehicle and gave the money to Ghol-ston. After A.C. gave Gholston the money, he drove away in A.C.’s car with A.C.’s purse and cell phone. (R. 254-56.)

A.C. testified that Gholston caused her to fear for her life and that she was not using drugs during the encounter with Gholston. (R. 239, 257.) She further testified that she had never ■ met Gholston before this incident and that she did not consent to any of Gholston’s demands or actions. (R. 257.) A.C. also identified Gholston from a photographic lineup. (R. 279.)

Terrence Maurice Little testified that he met with Gholston on November 29, 2006, during a drug deal. (R. 400.) Little testified that Gholston was driving a dark-colored Ford Taurus. He further testified that he saw something shiny on the seat next to Gholston that looked like a gun. (R. 399-400; 408.)

Officer Mike Pogue, of the City of Muscle Shoals Police Department, testified that officers recovered A.C.’s vehicle from a driveway that was connected to a residence located off of Hughes Road in Muscle Shoals. (R. 457.) After the officers arrived at the Hughes Road residence where A.C.’s car was parked, Gholston jumped out of a back window of the residence and attempted to flee. (R. 460.) Officer Pogue, however, apprehended Gholston and placed him under arrest. Inside A.C.’s vehicle, officers recovered A.C.’s cell phone and a large amount of United States currency. (R. 466.)

Investigator Scotty Lowery, of the City of Russellville Police Department, testified that after his arrest, Gholston gave a statement. According to Investigator Lowery, Gholston told officers that he had a drug problem and that he had taken A.C.’s vehicle and the money. Investigator Lowery further testified that Gholston “admitted to everything ... except the rape” and except having a gun on the evening of the alleged incident. (R. 522.)

I.

On appeal, Gholston argues that his constitutional rights were violated because the jury venire did not represent a fair cross-section of the population. Specifically, Gholston contends that African-Americans were systematically underrepresented in violation of the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

In Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the Supreme Court of the United States explained:

“In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.”

The Duren Court defined systematic exclusion as exclusion that is “inherent in the particular jury-selection process utilized.” Id. at 366; see also Gibson v. Zant, 705 F.2d 1543, 1549 (11th Cir.1983) (“[T]he Duren Court ... defined ‘systematic’ as ‘inherent in the particular jury-selection process utilized.’ ”). “[T]he fair cross-section requirement ensures only a venire of randomness, one free of systematic exclusion. It does not ensure any particular venire.” Gavin v. State, 891 So.2d 907, 945 (Ala.Crim.App.2003) (internal citations and quotations omitted). “Rather than being entitled to a cross-sectional venire, a defendant has a right only to a fair chance, based on a random draw, of having a jury drawn from a representative panel.” Id. (internal citations and quotations omitted). This Court has repeatedly held that the random drawing of veniremembers from a list of licensed drivers satisfies the fair-cross-section requirement. See id. at 946-47; Carroll v. State, 852 So.2d 801, 807-08 (Ala.Crim.App.1999); Clemons v. State, 720 So.2d 961, 972 (Ala.Crim.App.1996); Sistrunk v. State, 630 So.2d 147, 149-50 (Ala.Crim.App.1993).

During the hearing, Gholston failed to establish that African-Americans are systematically excluded from jury venires in Franklin County. Gholston presented no evidence relating to the system used in Franklin County to generate the list of individuals to be summoned for jury duty. The State, on the other hand, presented evidence that indicated that venire-members are randomly selected by the Administrative Office of Courts from lists of driver’s license holders and voters in Franklin County. (R. 207.)

Because randomly selecting potential jurors for the venire from licensed drivers and registered voters provided Gholston “a fair chance, based on a random draw, of having a jury drawn from a representative panel,” ’ ” Gavin, 891 So.2d at 945, Gholston failed to meet his burden to establish that African-Americans were systematically excluded from his venire. Accordingly, Gholston is not entitled to relief on this issue. .

II.

Gholston also argues that the trial court erroneously excluded evidence of A.C.’s drug use. Specifically, Gholston contends that the trial court erroneously prevented him from presenting testimony-' from George Craig that Craig had seen A.C. use drugs on two occasions. According to Gholston, Craig’s testimony was admissible to impeach A.C.’s testimony that she does not use drugs. Gholston also asserts that Craig’s testimony was admissible to support Gholston’s defense that he and A.C. were using drugs together on the evening of the incident, that the sex was consensual, and that the, theft of property from the store was A.C.’s idea.

It is well settled that “ ‘[w]hen evi-dentiary rulings of the trial court are reviewed on appeal, “rulings on the admissibility of evidence are within the sound discretion of the trial judge and will not be disturbed on appeal absent an abuse of that discretion.” ’ ” Swanstrom v. Tele dyne Cont’l Motors, Inc., 43 So.3d 564, 574 (Ala.2009) (quoting Bowers v. Wal-Mart Stores, Inc., 827 So.2d 63, 71 (Ala.2001), quoting in turn Bama’s Best Party Sales, Inc. v. Tupperware, U.S., Inc., 723 So.2d 29, 32 (Ala.1998)). This Court will not reverse a circuit court’s “ ‘ruling in either admitting or excluding such evidence in the absence of abuse.’ ” Cassady v. State, 563 So.2d 53, 54 (Ala.Crim.App.1990) (quoting Starr v. Starr, 293 Ala. 204, 210, 301 So.2d 78, 83 (1974)). As explained below, Gholston has failed to meet his burden to establish that the circuit court abused its discretion by excluding Craig’s testimony.

First, to the extent Gholston alleges that the circuit court abused its discretion by excluding Craig’s testimony relating to A.C.’s past drug use because his testimony was admissible to impeach A.C.’s testimony that she does not use drugs, this argument is without merit. At trial, A.C. testified that she did not' use drugs on the night of-the incident; She also-testified that she does not use drugs.’ She was not asked whether she had ever used drugs in the past. Because A.C. was not asked whether she had ever used drugs in the past, Craig’s proffered testimony that he had seen A.C. use drugs on two occasions in the past would not have contradicted or impeached A.C.’s testimony. Therefore, Gholston is not entitled to relief on the issue.

Moreover, even if Craig’s testimony relating to A.C.’s drug use would contradict A.C.’s testimony, the circuit court correctly excluded it because the two instances during which A.C. allegedly used drugs occurred well after the incident that formed the basis of the charges for which Gholston was on trial; therefore, Craig’s testimony involved a collateral matter. “ ‘The general rule is that a witness may not be impeached on a collateral matter.’ ” Ballard v. State, 767 So.2d 1123, 1139 (Ala.Crim.App.1999) (quoting Brundage v. State, 585 So.2d 238, 240 (Ala.Crim.App.1991), citing in turn 3A Wigmore on Evidence § 1003 (Chadbourn rev. 1970) and C. Gamble McElroy’s Alabama Evidence, § 156.01(1) (3d ed. 1977)). See also Ballard v. State, 767 So.2d 1123, 1139 (Ala.Crim.App.1999) (same); 1 Charles W. Gamble and Robert J. Goodwin, McElroy’s Alabama Evidence § 156.01(1) (6th ed. 2009) (explaining that a party may attempt to impeach a witness by questioning that witness about an inconsistent collateral matter; however, “the impeaching party must accept the witness’[s] answer concerning the matter — i.e., no extrinsic proof may be offered if the inconsistency concerns a collateral matter”); Rule 606(b), Ala. R. Evid. In a criminal trial, “ ‘[a] fact is “collateral” if it is “admissible neither upon an issue under the pleadings of the case nor for the purpose of impeaching the witness’ credibility in some means other than inconsistency.” ’ ” Ballard, 767 So.2d at 1139 (quoting Brundage, 585 So.2d at 240, quoting in turn McElroy’s, § 156.01(3)). The test for determining whether a fact is collateral is as follows: “ ‘ “Could the fact, as to which error is predicated, have been shown in evidence for any purpose independently of the contradiction?” ’ ” Ballard, 767 So.2d at 1139 (quoting Brundage, 585 So.2d at 240, quoting in turn 3A Wigmore § 1003).

At trial, Craig, in a proffer, testified that he did not know A.C. in November 2006 when the incident that forms the basis of this appeal occurred. Craig further testified that he first met A.C.' during the summer of 2007. According to Craig, during the summer of 2007, he witnessed A.C. use drugs on two occasions. Gholston argued that Craig’s testimony was admissible to impeach AC.’s testimony that she does not use drugs. The fact that A.C. may have used drugs at some point after Gholston’s crime was irrelevant to the issues being tried and could not have been presented “ ‘ “for any purpose independently of ... contradicti[ng]” ’ ” A.C.’s testimony that she does not use drugs. Ballard, 767 So.2d at 1139 (quoting Brundage, 585 So.2d at 240, quoting in turn 3A Wigmore § 1003). Consequently, whether A.C. used drugs at some point after November 2006, when the crime occurred, was a collateral matter. Because Craig’s proffered testimony constituted extrinsic evidence that would have had no relevance except to impeach A.C. on a collateral matter, the circuit court’s ruling excluding it did not constitute an abuse of discretion.

To the extent Gholston argues that Craig’s testimony that he saw A.C. use drugs on two occasions would be admissible to show that A.C. used drugs with Gholston on the night of the incident, his argument is likewise without merit. According to Craig’s proffer, he did not meet A.C. or see her use drugs until many months after the crime occurred. Further, Gholston failed to proffer any evidence that would connect A.C.’s alleged drug use after the crime with alleged drug use during the crime. Because Craig did not know A.C. around the time of the crime and did not see A.C. use drugs until well after the crime occurred, the circuit court correctly determined that Craig’s testimony related to an act that was too remote to the incident and irrelevant to Gholston’s guilt. See Bedsole v. State, 974 So.2d 1034, 1040 (Ala.Crim.App.2006) (holding that “the determination of whether a prior bad act is too remote is made on a case-by-case basis and is left to the sound discretion of the trial judge, and the judge’s determination will not be disturbed on appeal unless the judge has abused his discretion”). ■

Moreover, Craig’s testimony relating to A.C.’s alleged drug use and her character was inadmissible because it involved specific instances of misconduct. Evidence of a victim’s character is admissible in some instances pursuant to Rule 404(a)(2)(A), Ala. R. Evid.; however, specific instances of misconduct are not admissible to establish the victim’s character unless the character trait is an “essential element of a charge, claim, or defense.” Rule 405(a) and (b), Ala. R. Evid. See Harrington v. State, 858 So.2d 278, 293 (Ala.Crim.App.2002). Because Gholston sought to establish AC.’s character trait through evidence relating to specific instances of misconduct, the circuit court correctly excluded Craig’s testimony relating to A.C.’s alleged drug use. Id.; cf. Rule 404(b), Ala. R. Evid., (“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.”). Therefore, Gholston is not entitled to relief oh this issue.

III.

Finally, this Court ordered the parties to address whether Gholston’s convictions for theft and robbery violate the Fifth Amendment to the Constitution of the United States. In his supplemental brief, Gholston argues that his convictions for theft of property and robbery violate the Double Jeopardy Clause of the Fifth Amendment because, under the facts of this case, theft is a lesser-included offense of robbery. This Court agrees.'

The Supreme Court of the United States has held that the Double Jeopardy Clause of the Fifth Amendment contains three protections: “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (footnotes omitted), overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). See Schiro v. Farley, 510 U.S. 222, 229, 114 S.Ct. 783, 127 L.Ed.2d 47 (1994)(reaffirming the three protections of the Double Jeopardy Clause). “These protections stem from the underlying premise that a defendant should not be twice tried or punished for the same offense.” Schiro, 510 U.S. at 229 (citing United States v. Wilson, 420 U.S. 332, 339, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975)). The Alabama Supreme Court has held that the Double Jeopardy Clause of Art. I § 9, of the Alabama Constitution of 1901, applies to protect only those three areas enumerated in Pearce. See Ex parte Wright, 477 So.2d 492, 493 (Ala.1985); Adams v. State, 955 So.2d 1037, 1098 (Ala.Crim.App.2003), reversed on other grounds, Ex parte Adams, 955 So.2d 1106 (Ala.2005) (holding that Adams, who was 17 years old at the time of the offense, is not eligible for a sentence of death).

In Blockburger v. United States, the Supreme Court of the United States enumerated the “same elements” test for determining whether two charges constitute the same offense in violation of the Double Jeopardy Clause of the Fifth Amendment. 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Under the Blockburger test, “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.” Id. (emphasis added). The United States Supreme Court has also held “that a lesser included and a greater offense are the same under Blockburger....” Brown v. Ohio, 432 U.S. 161, 166 n. 6, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). See also Perkinson v. State, 273 Ga. 491, 494, 542 S.E.2d 92, 95 (2001) (“For double jeopardy purposes, a lesser-included and a greater offense are the ‘same offense’ under the Fifth Amendment because the lesser offense requires no proof beyond that which is required for the conviction of the greater offense.”).

The indictment against Gholston alleged, in pertinent part, the following:

“Count 3: Theft of Property in the First-Degree
“The Grand Jury of Franklin County charges, before the finding of this indictment, Ronnie Lee Gholston, whose name is otherwise unknown to the Grand Jury than as stated, did knowingly obtain or exert unauthorized control over, to-wit: a 2003 Ford Taurus, the property of [A.C.], with intent to deprive the owner of said property, in violation of § 13A-8-3 of the Code of Alabama, against the peace and dignity of the State of Alabama.
“Count 4: Robbery in the First Degree
“The Grand Jury of Franklin County charges, before the finding of this indictment, Ronnie Lee Gholston, whose name is otherwise unknown to the Grand Jury than as stated, did, in the course of committing a theft of property, to-wit: Lawful United States Currency and/or a 2003 Ford Taurus, the property of Advance Cash America and/or [A.C.], with the intent to overcome her physical resistance or physical power of resistance or to compel acquiescence to the taking of or escaping with the property, while the said Ronnie Lee Gholston represented himself to be armed with a deadly weapon or dangerous instrument, to-wit: a pistol, in violation of § 13A-8-41 of the Code of Alabama, against the peace and dignity of the State of Alabama.”

(C.R. 12-13.)

Further, § 13A-8-41(a)(l), Ala.Code 1975, provides that “[a] person commits the crime of robbery in the first degree if he violates Section 13A-8-43 and he ... [i]s armed with a deadly weapon or dangerous instrument.” Section 13A-8-43, Ala.Code 1975, provides as follows:

“(a) A person commits the crime of robbery in the third degree if in the course of committing a theft he:
“(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance; or
“(2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property.”

(Emphasis added.) Section 13A-8-3, Ala. Code 1975, defines first-degree theft as including the following:

“(a) The theft of property which exceeds two thousand five hundred dollars ($2,500) in value, or property of any value taken from the person of another, constitutes theft of property in the first degree.
“(b) The theft of a motor vehicle, regardless of its value, constitutes theft of property in the first degree.... ” •

Gholston was charged with first-degree theft for stealing A.C.’s 2003 Ford Taurus automobile. Gholston was also charged with first-degree robbery for threatening the use of force while armed with a deadly weapon while committing a theft of “Lawful United States Currency and/or a 2003 Ford Taunts ” (C.R. 13) (emphasis added). The circuit court instructed the jury that it could find Gholston guilty of first-degree robbery based on the underlying theft of A.C.’s 2003 Ford Taurus. (R. 776.) Therefore, the jury could have found Ghol-ston guilty of first-degree theft and first-degree robbery based on the unlawful taking of the same property, i.e., a 2003 Ford Taurus.

Accordingly, “[biased on the statutory elements of the crimes and the facts alleged in the indictments, it is clear that the theft forming the basis for the theft [conviction could have been] the same theft underlying the robbery [conviction].” Crayton v. State, 949 So.2d 976, 978 (Ala.Crim.App.2006); see also Deardorff v. State, 6 So.3d 1205, 1215 (Ala.Crim.App. 2004) (holding that first-degree theft of property was a lesser-included offense of robbery; therefore, Deardorffs convictions for first-degree theft of property and murder made capital because it was committed during the course of a robbery violated double-jeopardy principles). Consequently, the first-degree theft of property offense, as alleged in the indictment, was a lesser-included offense of the first-degree robbery offense, and Gholston’s convictions for both crimes violate the Double Jeopardy Clause of the Fifth Amendment. See § 13A-1-9(a)(1), Ala.Code 1975 (defining a lesser-included offense as an offense that is “established by proof of the same or fewer than all the facts required to establish the commission of the offense charged”); Lewis v. State, 57 So.3d 807, 818 (Ala.Crim.App.2009) (holding that the Double Jeopardy Clause of the Fifth Amendment bars convictions for both a greater offense and a lesser-included offense); Heard v. State, 999 So.2d 992, 1006 (Ala.2007) (holding that “simultaneous convictions [for] greater and lesser-included offenses” constitute a jurisdictional double-jeopardy violation).

For the foregoing reasons, this Court affirms Gholston’s convictions and sentences for first-degree rape, first-degree kidnapping, first-degree robbery, and unauthorized use of a vehicle. However, this Court remands this cause to the circuit court with directions for the circuit court to vacate Gholston’s conviction and sentence for first-degree theft of property. Due return should be filed in this Court within 42 days from the date of this opinion.

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

WISE, P.J., and WELCH, KELLUM, and MAIN, JJ., concur.

      . This Court notes that the unauthorized use of a vehicle is not a lesser-included offense of theft or robbery. See Holman v. State, 495 So.2d 115, 119 (Ala.Crim.App.1986); see also Crowder v. State, 476 So.2d 1241, 1243 (Ala.Crim.App.1985). Therefore, Gholston's conviction for first-degree unauthorized use of a vehicle does not violate the Double Jeopardy Clause.


text:
    Ex parte State of Alabama (In re STATE of Alabama v. Mary Maxine NEEL).
    CR-08-1048.
    Court of Criminal Appeals of Alabama.
    March 26, 2010.
    See Ala., 57 So.3d 195.

      Nick Abbett, dist. atty., and Robert T. Treese' III, chief trial asst. dist. atty., for petitioner.
    Philip 0. Tyler, Auburn, for respondent Mary Maxine Neel.
    Judge John V. Dénson II, as respondent.
   PER CURIAM.

The district attorney for the Thirty-Seventh Judicial District filed this petition for a writ of mandamus requesting that we direct Judge John V. Denson II to vacate his order setting aside the jury’s verdict finding Mary Maxine Neel guilty of murder.

In May 2006, Neel was indicted for killing her son-in-law Glenn Hall, a violation of § 13A-6-2, Ala.Code 1975. On November 6, 2008, the jury found Neel guilty of murder. On November 18, 2008, Neel moved to set aside the jury’s verdict and for a judgment of acquittal or a judgment finding her guilty of the lesser offense of manslaughter based on self-defense. After a hearing on April 9, 2009, Judge Den-son issued a 39-page order granting Neel’s motion and vacating the jury’s verdict against Neel. The State then filed this mandamus petition.

“Mandamus is an extraordinary remedy, but is appropriate in exceptional circumstances which amount to judicial usurpation of power.” Ex parte Nice, 407 So.2d 874, 877 (Ala.1981). Mandamus has been used to review a circuit court’s ruling setting aside a jury’s guilty verdict, if that ruling is beyond the scope of Rule 20.3, Ala. R.Crim. P. See Ex parte Nice and State v. Grantland, 709 So.2d 1310 (Ala.Crim.App.1997). “[T]he jury is the arbiter of the credibility of witnesses in Alabama; therefore, the grant of supervisory mandamus by the Court of Criminal Appeals to prevent the trial judge from sitting as a ‘13th juror’ [is] appropriate.” Nice, 407 So.2d at 882.

Rule 20.3, Ala. R.Crim. P., authorizes a trial court to set aside a jury’s guilty verdict. However, that authority is not unlimited. In discussing the scope of Rule 20.3, this Court in State v. Grantland, supra, stated:

“Although Rule 20.3, Ala. R.Crim. P., clearly authorizes a trial judge to grant a motion for a judgment of acquittal after the jury has returned a guilty verdict, that rule does not permit a judge to enter a judgment of acquittal on grounds other than those provided for under Rule 20 generally. A motion for a judgment of acquittal tests the legal sufficiency of the evidence. Sutiles v. State, 574 So.2d 1012 (Ala.Cr.App.1990); Metzger v. State, 565 So.2d 291 (Ala.Cr.App.1990); see, generally, Committee Comments, Rule 20.1, Ala. R.Crim. P. When presented with a challenge to the sufficiency of the evidence, the trial court, and any reviewing court, must accept the evidence presented by the state as true, must view that evidence in a light most favorable to the state, and must accord the state all legitimate inferences from the evidence. Rowe v. State, 662 So.2d 1227 (Ala.Cr.App.1995). Where there is legal evidence from which a jury could by fair inference find a defendant guilty, a trial judge should submit the case to the jury. Id. Moreover, where there is sufficient legal evidence to submit the case to the jury and the jury has considered that evidence and rendered its verdict, it is not proper for the trial court, or a reviewing court, to substitute its judgment for that of the jury. Winters v. State, 673 So.2d 786 (Ala.Cr.App.1995); Rowe, 662 So.2d 1227. It is not the function of the court to assess the credibility of witnesses, weigh the evidence, or substitute its judgment as to guilt or innocence for that of the jury. Porter v. State, 666 So.2d 106 (Ala.Cr.App.1995).”

709 So.2d at 1311-12.

Section 13A-3-23, Ala.Code 1975, defines the law on self-defense in Alabama, and, at the time the events in this case occurred, stated, in part:

“(a) A person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for the purpose. A person may use deadly physical force if the actor reasonably believes that such other person is:
“(1) Using or about to use unlawful deadly physical force; or
“(2) Using or about to use physical force against an occupant of a dwelling while committing or attempting to commit a burglary of such dwelling; or
“(3) Committing or about to commit a kidnapping in any degree, assault in the first or second degree, burglary in any degree, robbery in any degree, forcible rape or forcible sodomy.”

A transcript of the trial proceedings in the Lee Circuit Court, including audiotapes of the 911 calls, are attached as exhibits to the State’s mandamus petition. The record shows that the victim was married to Neel’s daughter, Christy Hall, but divorce proceedings had been initiated. On the morning of February 28, 2006, Hall arrived at Neel’s house around 7:00 a.m. He told Neel that he had come to see his wife Christy. Christy brought her children to Neel’s house every morning so that they could catch the school bus there. When Hall arrived Neel was in bed, and she answered the door in her nightgown. She invited Hall in the house while she got dressed. When she went back to the kitchen she heard Christy’s vehicle approaching the house. Neel and Hall walked up to Christy’s vehicle. Hall tried to get Christy to get out of her car and talk to him. She refused. Hall got angry. Christy pulled away from the house in her car and Hall left. Neel said that she telephoned Christy to tell her what happened, that she got her gun from her bedroom, and that she put the gun on top of the refrigerator near the side door to her house.

Several minutes later Hall returned to Neel’s house and went to the side door. In the meantime, Christy had returned, and Neel, her husband, Christy, and her grandson were in the Neel home. The door to the house was closed and Hall was in the carport talking through the door. Neel’s husband talked to Hall. • Neel said that she got the gun off the refrigerator and told her husband to open the door. Hall was standing in front of the door and she pointed the gun at him and told him to leave. He moved a step toward her and Neel fired, hitting him in the chest. Neel said that she knew that Hall would hurt her daughter and she could not believe that Hall would not leave when he saw her with the gun. The facts set out above are based on Neel’s statement to police. There was no physical evidence indicating that Hall was armed when he confronted Neel through the side door of her home.

Audiotapes of the 911 calls reflect that the first call was received at around 6:20 a.m. on the morning of February 28 and was from Neel. Neel, who sounds very calm, asks that police come to her residence because her son-in-law was there, that he had been ordered to stay away from her daughter, and that he was threatening her daughter. The second 911 call was from Christy. Christy told the operator that her husband was at her car, that he has been ordered to stay away from her, and that he had threatened her. The third 911 call, from Christy, was made immediately after Hall was shot. Christy told the operator that her mother had shot Hall. You can also hear her say: “Put down the gun.” The last call is from Neel. Neel told the operator that she has shot her son-in-law in the chest. She said: “I thought if he saw the gun he would go away. I was, I didn’t mean to shoot him.” (R. 178.)

Neel’s statement to police differed in one aspect from one of her 911 calls. In the statement she says “Glenn [the victim] had been clean for a while and he did not look as bad as I had seen him the past. So I do not think that he was messed up because I have seen him messed up before.” (R. 297.) However, during one of the 911 calls, Neel tells the operator: “He just came up here and he is so messed up. He’s talking all kind of crazy stuff.... And I know he is on cocaine.” (R. 169.)

Captain Van Jackson of the Lee County Sheriffs Department testified that he responded to a 911 call at the Neel house and spoke to Hall before he was transported to the hospital. He said that Hall said to him: “[T]hat bitch shot me ... just shot me in cold blood.” (R. 322.)

The State also presented evidence indicating that Hall and Neel had been having a sexual relationship, that Neel had made statements that “It would be better if Hall was just gone,” that Neel had previously shot at Hall twice, and that Hall had told a friend that Neel was plotting to set him up.

Evidence was also presented indicating that Hall had threatened Christy, that police had been called to their residence several times before the shooting, and that Hall had a severe drug problem. The coroner also testified that Hall had cocaine in his system at the time of his death.

Neel did not testify at trial. She relied on her statement and the audiotapes of the 911 calls to support her claim that she acted in self-defense.

In the circuit court’s lengthy order setting aside the jury’s verdict, the court wrote, in part:

“One possible explanation of why the jury in this case returned a verdict of guilty in spite of the lack of sufficiency of the evidence, is that they may have been confused about the self-defense charge given by the Court.
“An additional factor may have contributed to the jury’s finding of guilty and failure to find the Defendant not guilty by reason of self-defense, was the difficulty in hearing the audiotapes which contain most of the evidence of self-defense in this case. Another factor may have been that the jury did not have sufficient knowledge or understanding of the complete hospital records from Bradford [Health Services Clinic] which clearly show the seriousness of Hall’s drug problem and the threats he made to kill Christy. Furthermore, the State placed great emphasis on the fact that Hall was not armed, though that is not dispositive of a question of self-defense.
“It is the unusual case in which the evidence presents no conflict, and it is left to the court to determine the question of self-defense as a matter of law. The instant case falls within this category, for there is only one version of the events that occurred on February 28, 2006, and this Court must accept that account as true. There is no dispute as to what took place, and this Court is not faced with a question of which witnesses were more credible and what evidence is more believable. The quality of the evidence is not at issue here, but only whether there is the quantum of evidence necessary to submit the question to the jury. The entirety of the evidence clearly establishes the Defendant’s belief that there was a real and apparent necessity to strike in order to defend Christy’s life and her own life, and there is no evidence tending to prove otherwise.”

(Emphasis added.)

Typically, the question of whether a killing is justified turns on the credibility of the defendant’s version of the events that led him or her to act in self-defense. As this Court has often stated:

“ ‘Where, as here, the killing was admitted, the question of whether or not it was justified under the theory of self-defense was for the jury.’ Townsend v. State, 402 So.2d 1097, 1098 (Ala.Cr.App.1981). The issue of self-defense invariably presents a question for the jury, whose verdict will not be disturbed on appeal. ‘[E]ven if the evidence of self-defense is undisputed, the credibility of the defendant with respect to the evidence of self-defense is for the jury, and they may, in their discretion, accept it as true or reject it.’ Mack v. State, 348 So.2d 524, 529 (Ala.Cr.App.1977).
“This Court’s observation in Hilliard v. State, 610 So.2d 1204[, 1205] (Ala.Cr.App.1992), a recent case with similar facts, is applicable here:
“ ‘The only evidence at trial concerning the appellant’s theory of self-defense was the appellant’s testimony in which he stated that he stabbed the victim only after the victim pulled a knife on him. The jury does not have to accept the accused’s version of what happened.
“ ‘ “Whether the killing of another was justified as an act of self-defense is a question for the jury, Turner v. State, 160 Ala. 40, 49 So. 828 [ (1909) ]; and this is true even though the defendant’s testimony as to how the difficulty occurred is un-contradicted.”
‘Collier v. State, 49 Ala.App. 685, 275 So.2d 364, 367 (1973). “The weight and credence given the testimony of the accused as to the issue of self-defense is a question for the jury.” Garraway v. State, 337 So.2d 1349, 1353 (Ala.Cr.App.1976). See also Atchley v. State, 393 So.2d 1034, 1051 (Ala.Cr.App.1981); Warren v. State, 380 So.2d 305, 307 (Ala.Cr.App.1979), cert. quashed, 380 So.2d 307 (Ala.1980); Graham v. State, 339 So.2d 110, 113 (Ala.Cr.App.), writ denied, 339 So.2d 114 (Ala.1976).’ ”

Quinlivan v. State, 627 So.2d 1082, 1087 (Ala.Crim.App.1992).

“[T]he question of whether the appellant was in actual or apparent immediate peril so as to justify the use of physical force in self-defense is a question of fact to be decided solely by the jury, after appropriate instruction by the court as to the application of the term. Lemley v. State, 599 So.2d 64, 74 (Ala.Cr.App.1992).”

Moore v. State, 659 So.2d 205, 208 (Ala.Crim.App.1994).

“ ‘The law of self-defense makes use of (1) rules, and (2) the reasonable-person standard. The court determines what the rules are, but it is for the jury to determine whether the standard has been met by the evidence in the particular case.’ R. Perkins & R. Boyce, Criminal Law 1116 (3d ed. 1982). ‘It is to be noted that reasonableness is determined by a standard — a reasonable person under like circumstances — and the determination is made by the jury.’ Perkins, at 1117.”

King v. State, 478 So.2d 318, 321-22 (Ala.Crim.App.1985).

“ ‘ “Only when all the evidence is undisputed and, clear should a court dispose of a murder or manslaughter charge by acquittal without tendering the issue of self-defense to the jury (cases cited). Rarely, then, is self-defense declared by law so as to bar the submission of the homicide offense altogether.” ’ ”

Lockett v. State, 505 So.2d 1281, 1285 (Ala.Crim.App.1986), quoting State v. Thornton, 532 S.W.2d 37, 42-43 (Mo.Ct.App.1975), quoting in turn State v. Jackson, 522 S.W.2d 317, 319 (Mo.Ct.App.1975).

The Lockett court further noted the rarity of a trial court’s entry of a judgment of acquittal on the issue of self-defense. The court stated:

“On rare occasions, the Alabama courts have reversed the trial court for its failure to direct an acquittal verdict where the prosecution’s evidence in presenting the evidence of the killing also presented undisputed evidence of self-defense. See e.g., Bishop v. State, 23 Ala.App. 109, 121 So. 455 (1929); Simmons v. State, 22 Ala.App. 126, 113 So. 466 (1927). These two cases have been cited as authority for the following general principle: ‘If the undisputed evidence shows clearly that the accused was in actual or apparent imminent peril and was unable to retreat, and there is no evidence warranting a finding that he was at fault, he is entitled to have, the jury instructed to return a verdict of not guilty.’ C. Gamble, McElroy’s Alabama Evidence § 457.02(7) (3d ed. 1977). See also Hamby v. State, 254 Ala. 139, 47 So.2d 218 (1950); Thompson v. State, 376 So.2d 761, 764 (Ala.Cr.App.), rev’d on other grounds, 376 So.2d 766 (Ala.1979) (wherein the court noted that ‘[wjhere the undisputed evidence clearly shows the victim to be at fault, the accused may be entitled to a directed verdict’).
“More particularly apropos to the instant facts is Pratt v. State, 50 Tex.Cr.R. 227, 96 S.W. 8, 10 (1906), where the prosecution, ‘to a very considerable extent, relied upon the admissions or confessions of appellant’ which established, not only that he killed the victim, but that he did it in self-defense. There was no eyewitness to the killing. Id. The court held that, where the criminating evidence consists almost entirely of appellant’s admission that he killed the victim, the prosecution has the burden to prove the falsity of the exculpatory portion of appellant’s statement. Id. (Relying on Jones v. State, 29 Tex.App. 20, 13 S.W. 990 (1890)).
“Another court stated the general principles applicable to the prosecution’s use of the defendant’s statement, which confirmed the defendant’s commission of the killing as well as justification by self-defense, as follows:
“ ‘The prosecution, having presented as a part of its case the statement of defendant as to how the killing occurred, is bound by that evidence in the absence of proof to the contrary. People v. Coppla, 100 Cal.App.2d 766, 769, 224 P.2d 828 [ (1950) ]. If there be any well-established circumstance which may be reasonably regarded as incompatible with the theory that the killing was justifiable, the trier of fact, from a consideration of all the evidence, is warranted in finding that the act amounted to an unlawful homicide. People v. Acosta, 45 Cal.2d 538, 541, 290 P.2d 1 [ (1955) ].’

“People v. Collins, 189 Cal.App.2d 575, 11 Cal.Rptr. 504, 515 (Dist.Ct.App.1961). That court reversed the appellant’s voluntary manslaughter conviction upon its finding that the appellant’s statement or the other evidence offered nothing which ‘may be reasonably regarded as incompatible with the theory that the killing was justifiable.’ Id.

“Thus, from the fact that the prosecution’s use of Lockett’s admissions presented exculpatory as well as inculpato-ry evidence does not follow the mandate that Lockett was entitled to a judgment of acquittal.

“ “Where the defendant’s statements to witnesses for the state as to what took place between the deceased and himself are shown, the jury need not consider them to the exclusion of all other facts and circumstances bearing on the question of self-defense. Thé state is not precluded by a confession of the defendant that he killed the deceased in self-defense.... ’

“3 Warren on Homicide § 285, p. 330 (1938) (footnote omitted). We must look to the remainder of the prosecution’s evidence to determine whether any contradiction of Lockett’s admissions existed or any evidence was presented which generated reasonably different inferences.

“In applying the enunciated principles, we hold that this case is not the rare and unusual situation where the proof uncontradictedly and .clearly established that Lockett was forced to kill to defend himself or others. Compare Kent v. State, 367 So.2d 508 (Ala.Cr.App.1978), cert. denied, 367 So.2d 518 (Ala.1979).”

505 So.2d at 1285-86.

Neel did not testify at trial; she relied on her statement to police and the audiotapes of the 911 calls. Neel’s statement was not totally consistent with her 911 calls. In one 911 call Neel said that Hall was “messed up” and on cocaine. However, in her statement to police she said that she did not think Hall was “messed up because [she] had seen .him messed up before.” Also, before the shooting when Hall first came to her residence, Neel invited Hall into her home while she got dressed — an act inconsistent with a person who is in fear for her life or the life of another. There was no physical evidence indicating that Hall was armed with a deadly weapon, nor did Neel say in her statement that Hall was armed. Neel told her husband to open the door while she was armed with a gun, thereby escalating the confrontation. Neel knew that police had been called to the residence and were on their way. Hall also told Captain Jackson that Neel shot him “in cold blood.” The State also presented evidence that was relevant to Neel’s state of mind at the time of the shooting — evidence the circuit court chose to ignore. The credibility of Neel’s version of the events was pivotal in this case because no eyewitness testified. The evidence tended to establish “reasonably different inferences.” This is not the “rare and unusual situation where the proof uncontradictedly and clearly established that [Neel] was forced to kill to defend [herself] or others.” Lockett, 505 So.2d at 1286.

By finding Neel guilty of murder the jury chose not to believe Neel’s account of the events that led to Hall’s death. The jury was free to make this decision based on its weighing of the evidence. The circuit court went behind that determination and made credibility choices based on its interpretation of the evidence. “‘Under our system of jurisprudence a properly instructed jury of citizens decides whether witnesses are credible. The trial judge is deemed to have no special expertise in determining who speaks the truth.’ ” Ex parte Nice, 407 So.2d 874, 879 (Ala.1981), quoting United States v. Cravero, 530 F.2d 666, 670 (5th Cir.1976). “[C]redibility questions are within the exclusive province of the jury.” Frazier v. State, 663 So.2d 1035, 1037 (Ala.Crim.App.1995). As we stated in Grantland:

“In Ex parte Nice, 407 So.2d 874 (Ala.1981) ... the Alabama Supreme Court recognized that exceptional circumstances may arise in a criminal case that present a compelling need for the issuance of a writ of mandamus to countermand a judicial usurpation of power and to prevent a gross disruption in the administration of criminal justice. In Nice, the Alabama Supreme Court upheld this court’s issuance of a writ of mandamus directing the trial court to rescind its order granting the defendant’s motion for a new trial and to reinstate the jury’s guilty verdict where it was apparent from the record that, although there was sufficient legal evidence to submit the case to the jury, the trial court- had granted the defendant’s motion for a new trial based on the trial judge’s personal belief that the victim’s testimony was ‘dubious.’ Nice, 407 So.2d at 879. Because it was apparent that the trial judge had not based its grant of the new trial motion upon a finding that the state had failed to prove its case as a matter of law, but rather that he had assumed the role of a ‘thirteenth juror,’ who would have reached a different decision from the one reached by the other 12 jurors, Nice, 407 So.2d at 881-82, the Supreme Court found that the trial judge had exceeded his authority. Accordingly, the Supreme Court held that it was appropriate to direct the trial judge to set aside his grant of the defendant’s motion for a new trial and to reinstate the jury’s verdict of guilt. The Supreme Court concluded that it was ‘unimportant’ that the state had sought review of the trial judge’s ruling through mandamus, its only available remedy under the circumstances, and not by direct appeal, which is a remedy available to the Federal Government in such cases, because the record established that the trial judge was ‘guilty of a “usurpation of power,” as these terms are used in determining the propriety of a grant of mandamus.’ Nice, 407 So.2d at 879.”

709 So.2d at 1313-14.

Here, the ultimate question — whether Neel acted in self-defense — was a question for the finder of fact — the jury. The circuit court usurped the jury’s exclusive fact-finding role by setting aside the jury’s verdict in this case. Judge Denson acted beyond the scope of Rule 20.3, Ala. R.Crim. P. The State has met its burden of establishing the prerequisites for the issuance of a writ of mandamus. See Grantland, supra. Accordingly, we grant the State’s petition for a writ of mandamus and direct Judge Denson to set aside his order vacating the jury’s verdict finding Neel guilty of murder and to sentence Neel in accordance with her conviction for murder.

PETITION GRANTED; WRIT ISSUED.

WISE, P.J., and WELCH, WINDOM, KELLUM, and MAIN, JJ., concur.

      . This petition, filed within seven days of the order that is the subject of this petition, was timely. See Ex parte Thomas, 828 So.2d 952 (Ala.2001).

      . Rule 20.3(a), Ala. R.Crim. P., provides, in part:
      "After a verdict or the entry of a judgment of conviction, the defendant may move for a judgment of acquittal, or the court, on its own motion, may grant a judgment of acquittal."

      3.Rule 20.1(a), Ala. R.Crim. P., states:
      "The court, on motion of the defendant stating the grounds therefor, or on its own motion, shall direct the entry of a judgment of acquittal as to any charged offense, or as to any lesser included offense, for which the evidence is insufficient to support a finding of guilty beyond a reasonable doubt."

      (Emphasis added.)

      . Section 13A-3-23, Ala. Code 1975, was amended effective June 1, 2006, to rewrite section (a) and to add a subsection (4). However, the events in this case occurred before the statute was amended. Thus, we look to the previous statute. See State v. McCall, 995 So.2d 183 (Ala.Crim.App.2008).

      . In discussing this testimony the circuit court, in its order, stated: "The Court found their testimony irrelevant as to the question of whether Neel was justified in her actions on February 28, 2006, and extraneous about the matters they related to the jury.” This testimony was relevant to the issue of Neel’s state of mind at the time of the shooting.

      6. Our research has revealed no case since 1929 in which an Alabama appellate court reversed a trial court’s refusal to direct a verdict of acquittal in a self-defense case.