author: BURKE, Judge. BURKE, Judge.

text:
    Jennifer Ann WELLS v. STATE of Alabama.
    CR-09-1735.
    Court of Criminal Appeals of Alabama.
    Dec. 16, 2011.
    Opinion on Overruling of Application for Rehearing Feb. 10, 2012.
    Certiorari Denied April 6, 2012 Alabama Supreme Court 1110616.

      James Anthony Jennings, Jr., Fort Payne, for appellant.
    Troy King and Luther Strange, attys. gen., and Andy Scott Poole, asst. atty. gen., for appellee.
   BURKE, Judge.

Jennifer Ann Wells pleaded guilty to the unlawful possession of methamphetamine and the unlawful possession of morphine, both violations of § 13A-12-212(a)(1), Ala.Code 1975. She was sentenced to six years’ imprisonment as to each conviction, the sentences to run concurrently and to also run concurrently with the sentence in a second-degree possession of marijuana conviction to which she also pleaded guilty. She was fined $1,000, ordered to pay a drug-demand-reduetion assessment of $2,000, as well as a forensic assessment of $100.

The record indicates that Wells was indicted on four counts of possession of a controlled substance for possessing methamphetamine, morphine, diazepam, and dihydrocodeine (hydrocodone), all stemming from the same incident. She moved to dismiss the indictment, alleging that she could not be convicted of multiple offenses based on the possession of several types of controlled substances at one point in time. She claimed that her right to be protected against double jeopardy was violated, and she cited Vogel v. State, 426 So.2d 863 (Ala.Crim.App.1980), and Smith v. State, 472 So.2d 677 (Ala.Crim.App.1984), in support of her argument. She reserved the right to appeal the dismissal of her motion to dismiss the four-count indictment that contained the two counts of felony possession of which she was convicted.

The parties stipulated to the facts and legal issues in this case as follows:

“On September 15, 2008, an arrest warrant for Tony Poole was executed at his residence for unlawful distribution of a controlled substance. In the process of serving this arrest warrant, narcotics evidence was observed in plain view. Tony Poole refused consent to search and a subsequent search warrant was obtained. This residence was the same residence from which Tony Poole had sold methamphetamine to a Confidential Informant (Cl) at an earlier date and which led to the issuance of the arrest warrant for Tony Poole for unlawful distribution of a controlled substance. The defendant, Jennifer Ann Wells-Davis, was present when the methamphetamine was sold to the Cl and was present when the arrest warrant for Tony Poole was executed. Ms. Wells-Davis had clothes and personal property at this residence indicating that this too was her place of residence.
“Methamphetamine was discovered in plain view as well as in Poole’s pants lying on the floor beside the bed. The methamphetamine was in the same container from which Poole sold methamphetamine to the Cl. There were unknown pills as well in plain view.
“Poole was arrested on the warrant for unlawful distribution of a controlled substance as well as two charges of unlawful possession of a controlled substance and unlawful possession of drug paraphernalia, Wells-Davis was arrested for the items found in plain view and was charged with unlawful possession of marijuana in the second degree, two counts of unlawful possession of a controlled substance and unlawful possession of drug paraphernalia.
“On February 3, 2009, Wells-Davis was indicted in a four count indictment on four charges of unlawful possession of a controlled substance: Count One— methamphetamine; Count Two — morphine; Count Three — diazepam; and Count Four — dihydrocodeine.
“It is undisputed that Wells-Davis’s possession of the four controlled substances arise from the same incident and the same conduct of possession.
“On June 15, 2009, Wells-Davis, through counsel, filed a motion to dismiss the indictment alleging that Wells-Davis could not be convicted of multiple possession offenses based on the alleged possession of several types of controlled substances at one point in time. The motion was heard for argument on November 10, 2009, and Circuit Judge David A. Rains denied Wells-Davis’s motion to dismiss on June 9, 2010. On June 11, 2010, Wells-Davis filed a motion to reconsider which was denied on July 8, 2010.
“On August 6, 2010, Wells-Davis pled guilty to two counts of unlawful possession of a controlled substance reserving her right to appeal the Circuit Court’s denial of her motion to dismiss the indictment.”

(C. 10-11.)

The State argued in response to Wells’s motion to dismiss that the Alabama Court of Criminal Appeals had misinterpreted the law and the legislative intent underlying § 13A-12-212 in Hollaway v. State, 979 So.2d 839 (Ala.Crim.App.2007). The State argued that, because the statute now indicated that possession of a controlled substance referred to “a” substance, possession of each controlled substance constituted a separate offense. In Vogel v. State, the forerunner statute to § 13A-12-212 had been in effect, which made criminal the possession of any controlled substance. The State then referred to the language in Girard v. State, 883 So.2d 717 (Ala.2003), quoting McKinney v. State, 511 So.2d 220, 224-25 (Ala.1987), concerning legislative intent when language is used to proscribe the unit of prosecution, as in this case.

The trial court denied Wells’s motion to dismiss the indictment, finding that the State had correctly argued that the holding in Hollaway v. State, supra, had misinterpreted the legislative intent and thus had misapplied the law.

The forerunner to § 13A-12-212(a)(1), Ala.Code 1975, was § 20-2-70(a), Ala.Code 1975, which stated:

“(a) Except as authorized by this chapter, any person who possesses, sells, furnishes, gives away, obtains or attempts to obtain by fraud, deceit, misrepresentation or subterfuge or by the forgery or alteration of a prescription or written order or by the concealment of material fact or by use of false name or giving- a false address controlled substances enumerated in schedules I, II, III, IV, and V is guilty of a felony and, upon conviction, may be imprisoned for not less than two nor more than 15 years and, in addition, may be fined not more than $25,000.... ”

(Emphasis added.) Thus, § 20-2-70(a), Ala.Code 1975, prohibited the possession of controlled substances. The language clearly states “controlled substances” in the plural. Several cases analyzed the intent of this statute in criminalizing the possession of varied controlled substances in the same transaction or at the same time.

In Vogel v. State, 426 So.2d 863 (Ala.Crim.App.1980), affirmed, 426 So.2d 882 (Ala.1982), cert. denied, 462 U.S. 1107, 103 S.Ct. 2456, 77 L.Ed.2d 1335 (1983), the co-defendants, Gerald Len Vogel and Robert Louis Vogel, were each indicted for 14 counts of possessing a number of different controlled substances that were seized at the same time from the same vehicle. Each defendant was convicted of 11 counts. Gerald Vogel was sentenced to consecutive terms of 15 and 5 years’ imprisonment, respectively, on the first 2 counts, and to 15-year terms for each of the remaining counts, to run concurrently with the initial consecutive terms. Robert Vogel was sentenced to three 15-year terms of imprisonment and one 5-year term, to be served consecutively, on the first 4 counts of his indictment, and to 15-year terms for each of the remaining counts, to be served concurrently with the consecutive sentences. The Vogels alleged that their sentences were improper under § 20-2-70(a), because the court treated the simultaneous possession of 11 different types of drugs as 11 separate possessions although “the fact of possession” was the same. Vogel v. State, 426 So.2d at 878. The State, however, argued that because the drugs were listed on different schedules and therefore required different proof for each controlled substance, the possessions could be sentenced separately without violating Vogels’ rights against double jeopardy.

In Vogel, this Court noted that a number of jurisdictions had adhered to the State’s logic and had held that “ ‘demonstrating different chemical makeups among the prohibited substances’ ” constituted different elements of proof in the offense. However, this Court determined that, according to § 20-2-70(a), only a single offense justifying a single sentence had occurred where, although several types of controlled substances were involved, they were possessed at the same single point in time and place. This Court stated:

“Our reading of § 20-2-70(a) does not disclose any such emphasis on the various schedules as a factor in the sentencing scheme, but instead only indicates that the statute prohibits the ‘possession] ... of controlled substances enumerated in schedules I, II, III, IV and V’ and makes such possession ‘of controlled substances’ to be ‘a felony’ with only one scheme of punishment [two to fifteen years, and a possible fine]. The focal point of the statute is thus the criminal act itself, whether it be possession, sale or any of the other offenses, and not in what schedules the drug or drugs are located. As our present statute reads, the only relevance of the schedules is to act as a definitional scheme for indicating what are ‘controlled substances,’ the possession of which is prohibited by the statute; this is further bolstered by the definition of a ‘controlled substance’ as a ‘drug, substance or immediate precursor in schedules I through V of article 2 of this chapter.’ § 20-2-2(5), Code of Alabama 1975. Clearly, the language of the statute indicates that the possession of such substances renders a defendant ‘guilty of a felony’ and not guilty of several felonies based upon how many drugs are simultaneously within the control of the defendant, or in which schedules they are listed. Once the presence of the first controlled substance is proven, the offense is complete, and the presence of other controlled substances at the same time does not act to split the possession. By applying the principles developed in our case law to the plain language of § 20-2-70(a), we thus find that the possession is the criminal offense, and our section does not sanction basing multiple prosecutions or sentences on the mere fact that several types of drugs were so possessed at one point in time. If the legislature had intended to allow such multiple prosecutions it would have certainly framed this section in language clearly manifesting such intent.”

Vogel v. State, 426 So.2d 863, 881-82 (Ala.Crim.App.1980). See also Salter v. State, 606 So.2d 209, 212-13 (Ala.Crim.App.1992) (reversing judgment dismissing a habeas corpus petition and holding that possession of two controlled substances arising out of the same incident was a single offense, citing Vogel).

In Smith v. State, 472 So.2d 677 (Ala.Crim.App.1984), Smith was indicted for possession of marijuana and possession of tablets containing pentazocine, and he was found guilty as charged in the indictments and was sentenced to concurrent 15-year sentences. Because Smith had been in possession of both the marijuana and the tablets when he was apprehended, this Court determined that he had committed only one possession of controlled substances case and should have only received one sentence, and opined:

“[I]n the case of Whitaker v. State, 21 Ala.App. 114, 105 So. 433 (1925), the Court stated:
“ ‘Whether the whisky was in one place or a dozen places, if the possession was in the defendant and at the same time, the defendant could only be prosecuted for one offense. The defendant is not prosecuted on a charge of possessing any particular amount or brand of whisky, but the offense is complete when it is proven that he possessed prohibited liquor, and such prosecution covers all the whisky he possessed at that time.’
“Moreover, this court stated in Vogel that the possession of controlled substances ‘renders a defendant guilty of a felony and not guilty of several felonies based upon how many drugs are simultaneously within the control of the defendant.’ Following the case law set out above, once the presence of the first controlled substance is proven, the offense is complete. ‘By applying the principles developed in our case law to the plain language of § 20-2-70(A), we thus find that the possession is the criminal offense, and our section does not sanction basing multiple prosecutions or sentences on the mere fact that several types of drugs were so possessed at one point in time.’ Vogel v. State, supra; Tice v. State, 475 So.2d 589 (Ala.Crim.App.1984)

472 So.2d at 685. See also Sears v. State, 479 So.2d 1308 (Ala.Crim.App.1985).

Thereafter, looking to legislative intent, this Court in McClendon v. State, 513 So.2d 102 (Ala.Crim.App.1986), limited the holding in Vogel where McClendon was convicted of and separately sentenced for possession of marijuana for personal use (a misdemeanor) and possession of cocaine arising from a single possession. This Court reasoned that although the offense of possession of controlled substances did not require proof of an element different from possession of marijuana for personal use, so as to pass the test in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), it was nonetheless proper to impose separate sentences because

“[t]he Blockburger test is not a constitutional component of the Fifth Amendment Double Jeopardy Clause, Missouri v. Hunter, 459 U.S. [359] at 368, 103 S.Ct. [673] at 678 [ (1983) ], but is merely a ‘ “rule of statutory construction”, and because it serves as a means of discerning congressional purpose the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent.’ Missouri v. Hunter, 459 U.S. at 367, 103 S.Ct. at 679 (quoting Albernaz v. United States, 450 U.S. at 340, 101 S.Ct. at 1143 (emphasis added by the Missouri v. Hunter Court)).”

McClendon v. State, 513 So.2d at 105. This Court distinguished the holding in Vogel as follows:

“ ‘In Vogel, the result was dictated by the legislature’s failure to explicitly state the unit of the offense; by the violation of a single provision of a statute which imposes no differentiating sentence; and by the consequence that elements of proof would have been the same had the conduct of possession been fragmented to form the basis of a separate charge.’ Sears v. State, 479 So.2d at 1313.
“As it applies to the facts of the case before us, Section 20-2-70(a) does state the unit of the offense, impose a differentiating sentence, and require different elements of proof for the offense of possession of marijuana for personal use. The proviso that ‘any person who possesses any marihuana for his personal use only is guilty of a misdemeanor and, upon conviction for the offense, shall be imprisoned in the county jail for not more than one year, and in addition, shall be fined not more than $1,000.00,’ clearly evidences a legislative intent to (1) limit the ‘unit of the offense’ to possession of marijuana which is for personal use only, (2) impose a different sentence from that provided for felony possession of other controlled substances, see Palmer v. State, supra, and (3) allow the defense of ‘personal use,’ whose elements of proof are unlike those of any other offense described in § 20-2-70(a). The misdemeanor offense outlined in the statute is clearly directed to a ‘separate evil’ from the felony offenses described in § 20-2-70(a). Compare Ball v. United States [470 U.S. 856], 105 S.Ct. [1668] at 1673 [ (1985) ] (statutes prohibiting receipt of a firearm by a convicted felon and possession of a firearm by a convicted felon not ‘directed to separate evils’) with United States v. Woodward [469 U.S. 105], 105 S.Ct. [611] at 613 [ (1985) ] (statutes prohibiting the making of a false statement to a governmental agency and the failure to report bringing in large amounts of currency to the U.S. are ‘directed to separate evils’).”

McClendon v. State, 513 So.2d at 105-06.

However, § 20-2-70(a) was repealed by Ala. Acts 1987, Act No. 87-603, § 12, effective October 21, 1987. It was replaced by § 13A-12-212(a)(l), Ala. Code 1975, which states: “(a) A person commits the crime of unlawful possession of controlled substance if: (1) Except as otherwise authorized, he possesses a controlled substance enumerated in Schedules I through V.” Thus the clear language was changed so that the prohibition is now against the possession of “a controlled substance” in the singular.

Following the adoption of this statute, this Court in Washington v. State, 568 So.2d 413 (Ala.Crim.App.1990), held that when Washington pleaded guilty to the possession of both marijuana and cocaine arising out of the same incident, she could be sentenced to two concurrent sentences. Despite her reliance on Vogel, this Court held that because the possessions fell under different statutes, they constituted separate offenses.

Thereafter, in Hollaway v. State, this Court determined that separate convictions on two counts of unlawful possession of a controlled substance, arising out of the seizure of two types of controlled substances, Xanax and methamphetamine, from Hollaway’s home, violated double-jeopardy principles. Hollaway had been sentenced to concurrent five-year sentences for these convictions, which sentences were split to serve two years’ incarceration, with the balance suspended followed by five years of probation. This Court determined that “although the indictment purported to allege separate offenses, it instead alleged alternative methods of committing the same offense.” Hollaway v. State, 979 So.2d at 844. After citing Vogel, this Court further opined:

“Because the statutory requirements constituting possession of a controlled substance pursuant to § 13A-12-212, Ala.Code 1975, contain the same elements for possession of methamphetamine and possession of Xanax, and both substances were seized by virtue of the same search, the possession of both drugs represented one single act of possession. Here, the unit of prosecution was the act of possessing any controlled substance, and the fact that law-enforcement officials discovered two different controlled substances in Hollaway’s safe did not establish evidence of two separate offenses. By splitting this single act into separate offenses, Hollaway’s double-jeopardy rights were violated, and the jurisdiction of the trial court to enter a judgment on both counts was implicated. See, e.g., Ex parte Robey, 920 So.2d 1069, 1071 (Ala.2004); McPherson v. State, 933 So.2d 1114 (Ala.Crim.App.2005).”

Hollaway v. State, 979 So.2d at 844-45. Therefore, this Court held that Hollaway should have been convicted of a single offense of possession of a controlled substance and been sentenced for one offense.

The language that the legislature chose to change in enacting § 13A-12-212(a)(1), Ala.Code 1975, is most important in gleaning legislative intent as to the purpose and effect of the statute.

“The appropriate inquiry in a case like this, involving criminal proceedings under intrinsically related controlled substances statutes, asks what ‘unit of prosecution’ was intended by the Legislature as the punishable act. See Commonwealth v. Donovan, 395 Mass. 20, 28-29, 478 N.E.2d 727 (1985); Commonwealth v. Gurney, 13 Mass.App.Ct. 391, 401, 433 N.E.2d 471 (1982). The inquiry requires us to look to the language and purpose of the statutes, to see whether they speak directly to the issue of the appropriate unit of prosecution, and if they do not, to ascertain that unit, keeping in mind that any ambiguity that arises in the process must be resolved, under the rule of lenity, in the defendant’s favor. See Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 99 L.Ed. 905 (1955); Commonwealth v. Donovan, supra at 29, 478 N.E.2d 727.”

Commonwealth v. Rabb, 431 Mass. 123, 128, 725 N.E.2d 1036,1041 (2000).

When the legislature changed the language of the statute from prohibiting the possession of “controlled substances,” § 20-2-70(a), Ala.Code 1975, to prohibiting the possession of “a controlled substance,” the singular article “a” was added to limit or qualify the controlled substance. More importantly, the word “a” is used to quantify the controlled substance. When looking to legislative intent, the word “a” takes on a particular meaning in establishing the unit of prosecution.

“ ‘ “How, then, should the unit of prosecution be described so that an intent to allow multiple convictions is clear and unequivocal? Instead of using the word ‘any’ to describe the unit of prosecution, the singular words ‘a’ or ‘another’ should be used. An examination, then, should be made of the Alabama Criminal Code to see how the unit of prosecution is described. This examination will disclose whether the code allows multiple convictions.” ’ ”

Girard v. State, 883 So.2d 717, 723 (Ala.2003) (referring to a prosecution for possession of obscene material under the statute using the term “any”).

By changing the statutory language from setting no quantitative requirement as to the controlled substances possessed to specifically making the offense proscribe the possession of “a” controlled substance, the legislative intent was to mirror the statutory trafficking requirement that each type of controlled substance is to be treated separately.

A number of jurisdictions have similarly concluded that the possession of different types of controlled substances should result in separate convictions and sentences. In Cunningham v. State, 318 Md. 182, 567 A.2d 126 (1989), the Maryland Supreme Court opined:

“The article ‘a’ and the word ‘any' have the same meaning in this context. In the definition section, ‘controlled dangerous substance’ means ‘any’ drug, substance, or immediate precursor in Schedules I through V. Article 27, § 277(f). We perceive this language to be deliberate, and to demonstrate the intention of the legislature to regulate each controlled dangerous substance, and to authorize a separate conviction for the possession of each substance....
“Moreover, we believe the prevailing mood of the Maryland General Assembly with respect to illegal drug activity is identical with that earlier attributed to Congress by the Supreme Court.
“ ‘[T]he history of the narcotics legislation in this country ‘reveals the determination of Congress to turn the screw of the criminal machinery — detection, prosecution and punishment— tighter and tighter.’
“Albernaz v. United States, 450 U.S. 333, 343, 101 S.Ct. 1137, 1144, 67 L.Ed.2d 275 (1981), quoting in part from Gore v. United States, 357 U.S. 386, 390, 78 S.Ct. 1280, 1283, 2 L.Ed.2d 1405 (1958).”

Cunningham v. State, 318 Md. at 188-89, 567 A.2d at 129. The Court in Cunningham referenced the following cases as following the same holding:

“In re Hayes, 70 Cal.2d 604, 75 Cal.Rptr. 790, 451 P.2d 430 (1969) (discussing, in dictum, prior cases holding multiple punishment for simultaneous possession of narcotic drugs not precluded); but cf. In re Adams, 14 Cal.3d 629, 122 Cal.Rptr. 73, 536 P.2d 473 (1975) (multiple punishment rule invoked in drug possession cases has no application where defendant possesses the drugs for the purpose of accomplishing only a single criminal objective); Tabb v. State, 250 Ga. 317, 297 S.E.2d 227 (1982) (simultaneous possession of each of the controlled substances listed in a single schedule is a separate offense for which the legislature meant to impose punishment); State v. Meadors, 177 Mont. 100, 580 P.2d 903 (1978) (legislature did not intend to treat all prohibited drugs as a generic drug or unit, but meant to provide a distinct crime for possessing each different type of prohibited drug); State v. Collier, 567 S.W.2d 165 (Tenn.1978) (possession with intent to sell two or more controlled substances classified within the same schedule of the Act constitutes separate and distinct offenses); Melby v. State, 70 Wis.2d 368, 234 N.W.2d 634 (1975) (simultaneous possession of three dangerous drugs supports three convictions and sentences); State v. Williams, 542 S.W.2d 3 (Mo.App.1976) (simultaneous possession of heroin and marihuana, both Schedule I controlled substances, justifies two convictions and sentences); State v. Horton, 75 N.C.App. 632, 331 S.E.2d 215 (1985) (simultaneous possession of cocaine and heroin justifies separate convictions and punishment); Bogue v. State, 556 P.2d 272 (Okla.Crim.1976) (dictum — possession of two different drugs would constitute two separate offenses); State v. Ness, 54 Or.App. 530, 635 P.2d 1025 (1981) (separate convictions for simultaneous possession of separate controlled substances would be permitted, but marihuana, hashish and hashish oil are all classified as the single substance of marihuana under Oregon law); State v. Adams, 364 A.2d 1237 (Del.Super.Ct.1976) (legislature intended to apply the statutory prohibition to individual substances, thereby creating a separate crime with respect to each forbidden substance).”

Cunningham v. State, 318 Md. at 190-91, 567 A.2d at 130. See also United States v. Vargas-Castillo, 329 F.3d 715, 721-22 (9th Cir.2003) (distinguishing the ambiguity of intent caused by the use of the word “any” rather than “a” and stating: “In this case, on the other hand, the statutes under which Vargas was convicted define the object of the offense as ‘a controlled substance.’ 21 U.S.C. §§ 841(a)(1), 960(a)(1). By prefacing the objects of the offense with ‘a,’ sections 841(a)(1) and 960(a)(1) express an unambiguous congressional intent to make each controlled substance a unit of prosecution. See United States v. Alverson, 666 F.2d 341, 347 (9th Cir.1982). ‘Use of the article “a” stands in marked contrast to language in other [] statutes that have been interpreted to preclude prosecution for each object of the offense.’ Id. Unlike ‘any,’ the article ‘a’ cannot be said to fully encompass plural activity. Cf. Brown [v. United States], 623 F.2d [54] at 58 [ (9th Cir. 1980) ]. Rather, it encompasses singular, individualized activity and unambiguously defines the unit of prosecution in singular terms. See id,.”).

Similarly, different controlled substances cannot be aggregated for purposes of determining the amount of a controlled substance to support a trafficking charge. § 13A-12-231, Ala.Code 1975. See Washington v. State, 818 So.2d 411 (Ala.Crim.App.1998), affirmed, 818 So.2d 424 (Ala.2001) (addressing a claim of equal protection for a trafficking offense involving mixtures of marijuana and mixtures of cocaine and stating: “Here, the substances in question clearly have different physical characteristics, and the different definitions of ‘mixture,’ therefore, are rationally related to the government’s objective of prohibiting trafficking in particular quantities or mixtures of the two drugs.”). The controlled substance must be the same even if found in more than one location. Townsend v. State, 823 So.2d 717, 720 (Ala.Crim.App.2001) (“ ‘[Sjeparate prosecutions for possession of a controlled substance ... do not offend double jeopardy principles, as long as the amount of the specific controlled substance supporting each conviction constitutes a “separate item” that is sufficiently differentiated by time, location, or intended purpose. Nothing ... precludes a prosecutor from combining two quantities of a specified controlled substance possessed by a defendant at different locations in order to prosecute him on a more serious offense.... The procedure of aggregating separate quantities of a specific controlled substance to bring one criminal charge is frequently used.’ ”). Thus, the legislature has been aware of the differences in particular controlled substances and the need to treat them differently.

The federal courts have also held that the simultaneous possession of different drugs results in multiple convictions:

“In this circuit, the simultaneous possession of different controlled substances constitutes separate offenses under 21 U.S.C. § 841(a) for which multiple sentences may be imposed. See United States v. Davis, 656 F.2d 153, 156-60 (5th Cir. Unit B Sept.1981) (involving defendant convicted of two counts of possession of a controlled substance under § 841(a), one count for marijuana dnd one count for qualudes, which resulted in consecutive sentences). The law has long drawn distinctions between crack cocaine and powder cocaine. See, e.g., 21 U.S.C. § 841(b)(1)(A)(ii)(II) & (b)(1)(A)(iii); U.S.S.G. § 2D1.1(c); United States v. Sloan, 97 F.3d 1378, 1381-84 (11th Cir.1996) (explaining the chemical distinctions between crack cocaine and powder cocaine and concluding that the provisions of § 841(b) and U.S.S.G. § 2D1.1 imposing more severe penalties for crack cocaine do not violate the equal protection prong of the Due Process Clause); United States v. Terry, 60 F.3d 1541, 1544-45 (11th Cir.1995) (explaining that Congress distinguished between crack cocaine and powder cocaine because ‘crack cocaine is more dangerous, more highly addictive, more easily available, and less expensive than powder cocaine’ and finding that the harsher penalties in § 841(b) for crack cocaine do not violate the Equal Protection Clause).”

U.S. v. Thompson, 171 Fed.Appx. 823, 829 n. 2 (11th Cir.2006)(not selected for publication in the Federal Reporter).

The type of controlled substance is not a method of the commission of the offense as has been previously held. Hollaway v. State, 979 So.2d at 844 (“[Although the indictment purported to allege separate offenses, it instead alleged alternative methods of committing the same offense.”). Rather, it is a necessary element to the offense that must be proved, as opposed to, for instance, the means of committing murder; such means can be varied (stabbing, strangling, shooting) and proof of the means is not necessary to the prima facie case. Moreover, the combination of these means still results in only one murder. The specific controlled substance must be proved to satisfy the prima facie case, and the distinction in identifying the controlled substance is necessary as outlined by the schedules. See § 20-2-20(a), Ala.Code 1975 (requiring the State Board of Health to make a determination as to which substances should be included in each schedule, considering the following: “(1) The actual or relative potential for abuse. (2) The scientific evidence of its pharmacological effect, if known. (3) The state of current scientific knowledge regarding the substance. (4) The history and current pattern of abuse. (5) The scope, duration, and significance of abuse. (6) The risk to the public health. (7) The potential of the substance to produce psychic or physiological dependence liability. (8) Whether the substance is an immediate precursor of a substance already controlled under this chapter.”). The substances are thus controlled according to their potential for abuse. § 20-2-20(b), Ala.Code 1975. See also § 13A-12-216, Ala.Code 1975 (stating that, as to drug offenses, “[t]he Schedules I through V referred to in this division are the schedules contained in Sections 20-2-20 through 20-2-31, or in those schedules as revised and republished annually by the State Board of Health pursuant to Section 20-2-32”). See State v. Johnson, 714 S.E.2d 502 (N.C.App.2011). Therefore, because the holding in Hollaway v. State does not follow the language and intent of the statute, it is hereby overruled.

The possession of “a” controlled substance by a particular party addresses and pertains to the possession of the particular type of controlled substance; even if a number of varying types of controlled substances are found at approximately the same time, and even if that type of controlled substance is found at the same approximate time in varying locations.

Because the statutory language is not ambiguous or susceptible of more than one meaning, the trial court properly adjudged Wells to be guilty of possessing each controlled substance and properly sentenced her for these convictions.

AFFIRMED.

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

On Application For Rehearing

BURKE, Judge.

On December 16, 2011, this Court issued an opinion affirming the circuit court’s acceptance of Jennifer Ann Wells’s guilty plea to two counts of the unlawful possession of a controlled substance for having possessed methamphetamine as well as morphine. Wells had reserved the right to appeal the denial of her motion to dismiss the indictment alleging that she could not be convicted of multiple counts of possession of different drugs based on a single incident. This Court held, by unanimous decision, that she could be convicted of both counts under the newly effective statute in effect at the time of her offense that determined illegal possession based on the possession of “a” controlled substance rather than the previous prohibition against the possession of “controlled substances.” See § 13A-12-212(a)(1), Ala.Code 1975, and § 20-2-70(a), Ala.Code 1975, respectively. Thus, the unit of prosecution was changed by the legislature. In so holding, this Court overruled a prior decision, [Hollaway v. State, 979 So.2d 839 (Ala.Crim.App.2007),] rendered after the statutory change, that had adhered to the prior legislative language and intent.

On rehearing, Wells argues that this Court was bound by Hollaway and that this new interpretation of the law was improperly applied retroactively to this case. However, the statutory change introduced a substantive change and therefore retroactive application was appropriate. See Ex parte Capstone Bldg. Corp., [Ms. 1090966, June 3, 2011] — So.3d —,—(Ala.2011), citing 20 Am.Jur.2d Courts § 151 (2005) (“ ‘A decision overruling a judicial precedent may be limited to prospective application where required by equity or in the interest of justice.... Some jurisdictions distinguish between decisions that overrule substantive law and those that overrule procedural law; in these jurisdictions, a decision overruling substantive law applies retroactively, while a decision overruling procedural law applies prospectively only.’ ”). Compare Taylor v. State, [Ms. CR-05-0066, October 1, 2010] — So.3d —, — (Ala.Crim.App.2010) (“[B]ecause Ring [v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) ]—announcing a procedural rule rather than a substantive rule—does not apply retroactively to postconviction cases, it does not apply to Taylor whose conviction became final before Ring was decided.”).

Regardless of the number of counts and convictions, Wells’s conduct constituted possession of a controlled substance in each instance. See also Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 496, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968) (“There is, of course, no reason to confront this theory unless we have before us a situation in which there was a clearly declared judicial doctrine upon which United relied and under which its conduct was lawful, a doctrine which was overruled in favor of a new rule according to which conduct performed in reliance upon the old rule would have been unlawful.”).

Moreover, this Court has the authority to overrule its own decisions. See, e.g., Ankrom v. State, [Ms. CR-09-1148, August 26, 2011] — So.3d — (Ala.Crim.App.2011); Gargis v. State, 998 So.2d 1092 (Ala.Crim.App.2007); Edwards v. State, 26 So.3d 1263 (Ala.Crim.App.2008); Marshall v. State, 25 So.3d 1183 (Ala.Crim.App.2008); Shaw v. State, 949 So.2d 184 (Ala.Crim.App.2006); Ex parte Atchley, 951 So.2d 764 (Ala.Crim.App.2006). Cf. § 12-3-16, Ala.Code 1975 (“The decisions of the Supreme Court shall govern the holdings and decisions of the courts of appeals, and the decisions and proceedings of such courts of appeals shall be subject to the general superintendence and control of the Supreme Court as provided by Constitutional Amendment No. 328.”).

APPLICATION OVERRULED.

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

      . The appellant is also referred to in the record as Jennifer Wells Crow, Jennifer Wells, and Jennifer Ann Wells-Davis. However, the indictment states her name as Jennifer Ann Wells.

      . This Court, as well as the circuit court presiding over the case, has entertained motions to dismiss raising double-jeopardy grounds and/or contending that the indictment was multiplicitous or duplicitous on numerous occasions. See, e.g. Borden v. State, 711 So.2d 498, 501-02 (Ala.Crim.App.1997); Culver v. State, 22 So.3d 499, 511 (Ala.Crim.App.2008), cert. denied, 22 So.3d 530 (Ala.2009), cert. denied, Culver v. Alabama, — U.S. —, 130 S.Ct. 462, 175 L.Ed.2d 308 (2009); Girard v. State, 883 So.2d 717, 720 (Ala.2003); Smith v. State, 797 So.2d 503, 513 (Ala.Crim.App.2000), cert. denied, 797 So.2d 549 (Ala.2001), cert. denied, Smith v. Alabama, 534 U.S. 962, 122 S.Ct. 371, 151 L.Ed.2d 282 (2001); and Harris v. State, 563 So.2d 9 (Ala.Crim.App.1989).

      . The tablets, however, were not discovered until later.

      . Felony possession of a controlled substance "requires merely 'possession] [of] ... controlled substances.' Ala.Code § 20-2-70(a) (1975).” McClendon v. State, 513 So.2d at 104.

      . "Misdemeanor possession of marijuana is established by proof of three elements not required by the felony offense of possession of cocaine: (1) the controlled substance was marijuana; (2) the marijuana was possessed for personal use only; and (3) the possession represented a first-time marijuana offense.” McClendon v. State, 513 So.2d at 104.

      . Compare § 13A-7-8(a)(1) (defining burglar tools and making no distinctions) and § 13A-1-2(7) (defining deadly weapons and making no distinctions).

      . Cf. United States v. Kennedy, (No.Crim. No. 2:06-00028, December 23, 2010)(D.N.J.2010) (not reported in F.Supp.2d)("As the Sixth Circuit has explained:
      “ 'Generally, courts which have considered the issue have determined that separate convictions for possession of the same controlled substance will not violate the Double Jeopardy Clause if the possessions are sufficiently differentiated by time, location, or intended purpose. None of the legitimate bases for differentiating the [several] stashes of cocaine in this case appear to exist. The entirety of the police confrontation with Rashad occurred during the execution of the search warrant for his residence. Both quantities were located at his home and both were seized at essentially the same time and place.’ Rashad v. Burt, 108 F.3d 677 (6th Cir.1997) (discussing state and federal drug possession statutes)...; cf. United States v. Carter, 576 F.2d 1061, 1064 (3d Cir.1978) (holding that two Section 841(a) counts are not multiplici-tous where after making a sale of some heroin, the defendant still retained other heroin for potential future sales); United States v. Maldonado, 849 F.2d 522, 524 (11th Cir.1988) (holding that two Section 841(a) charges are not multiplicitous where each of two simultaneously held stashes of illegal drugs were located in separate counties).”).

       Note from the reporter of decisions: On March 16, 2012, the Alabama Supreme Court withdrew the June 3, 2011, opinion in Capstone and substituted another one. See Ex parte Capstone Bldg. Corp., [Ms. 1090966, March 16, 2012] 96 So.3d 77 (Ala.2012). The first part of the quote from the June 3, 2011, Capstone opinion remains the same in the substituted opinion. 96 So.3d at 91. The part of the quote from the June 3, 2011, Capstone opinion following the ellipsis is not included in the substituted opinion.


source: Caselaw Access Project

author: BURKE, Judge. JOINER, Judge, WELCH, Judge,

license: Public Domain

text:
    William B. JAMES v. STATE of Alabama.
    CR-10-0994.
    Court of Criminal Appeals of Alabama.
    March 23, 2012.
    John David Jones, Phenix City, for appellant.
    Luther Strange, atty. gen., and William D. Little, asst. atty. gen., for appellee.
   BURKE, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WINDOM, P.J., and KELLUM, J., concur.

JOINER, J., concurs in the result, with opinion.

WELCH, J., dissents, with opinion.

JOINER, Judge,

concurring in the result.

Although I fully concur with the decision of the court to affirm the convictions and sentences of William B. James, I write specially to address the dissenting opinion; specifically, I write to note that the arguments and analysis presented in the dissenting opinion are not found in James’s brief on appeal.

James was indicted by six separate indictments on two charges of first-degree robbery and four charges of first-degree theft of property; the trial court, over James’s objections, granted the State’s motion to consolidate the charges for trial under Rule 13.3, Ala. R.Crim. P. James was subsequently convicted of the charged offenses.

On appeal, James ostensibly raises one issue. Specifically, James contends that “the trial court erred in allowing the State to consolidate the robbery charges and the theft of property charges over [James’s] objections.” (James’s brief, pp. 5, 15-16.) According to James, “the evidence of one offenses [sic] would not have been admissible at the trial of the other offenses and the consolidation therefore prejudiced him.” (James’s brief, p. 16.) More specifically, James argues:

“The trial court over [James’s] objection allowed evidence of three guilty pleas to Burglary on the Friday prior to the trial of [James]. The Burglary’s [sic] were where [James] drove a stolen pickup ... into a store front and stole various items. These thefts were caught on video tape and shown to the victims and during the trial of [James].
“James argues, as he did in the trial court, that the crimes were not connected in their commission and that this ground did not support consolidation of the charges for trial.
“These crimes were not committed within a short span of time, nor were they part of a sequence or series of events. Nor could have they been used for identity purposes. During the trial of [James], no witness testified that they could identify [James]. [One witness] testified that he could only describe a large black man that robbed him. In all four theft cases, there was no evidence to connect [James] with the stolen pickup, utility trailer, backhoe or ATM machine.”

(James’s brief, pp. 17-18.) To further this argument, James provides the following from Tillman v. State, 89 So.3d 832 (Ala.Crim.App.2011):

“The prejudice from consolidation was particularly acute in this case because the State’s evidence of the forgery was much stronger than its evidence that Mr. Tillman intended to kill. The spillover effect from the forgery evidence made it likely the jury overlooked weaknesses in the State’s proof of intent because it was confident that he was guilty of a charged offense. See Jenkins v. State, 472 So.2d 1128, 1130 (Ala.Crim.App.1985) (finding prejudice because ‘the overwhelming likelihood that proof that [the defendant] was guilty of one offense was used to convict him of another even though proof of that guilt would have been inadmissible at a separate trial’)

(James’s brief, p. 18 (quoting Tillman v. State, 89 So.3d at 839, quoting in turn Tillman’s brief, p. 34)). As the citation indicates, the passage from Tillman is, in fact, this Court quoting with approval an argument made by Tillman in his appellate brief.

James then concludes his argument by asserting that “[t]he same hold [sic] true with [James], the State was allowed to introduce evidence of prior guilty pleas of [James] during his trial.” (James’s brief, p. 19.)

As an apparent afterthought, James then argues:

“[James] also objects under Rule 404(b), Ala. R. Evid., on the introduction of the video tapes of the burglaries that [James] previously enter a guilty plea.
“Rule 404(b), Ala. R. Evid., embodies the common-law principle related to whether evidence of the prior or subsequent bad acts of a criminal defendant is admissible against that defendant in the trial of unrelated charges.”

(James’s brief, p. 19.) James then block-quotes language from Rule 404(b), Ala. R. Evid., after which he 'argues:

“Evidence of prior bad acts of a criminal defendant is presumptively prejudicial to the defendant.
“It interjects a collateral issue into the case which may divert the minds of the jury from the main issue. Kilpatrick v. State, 51 Ala.App. 352, 285 So.2d 516 (1973), cert. [d]enied, 291 Ala. 628, 285 So.2d 525 (1973).
“ ‘Therefore the admission of such evidence constitutes reversible error. Hinton v. State, 280 Ala. 48,189 So.2d 849 (1966).’
“Ex parte Drinkard, 777 So.2d 295, 302 (Ala.2000) (quoting Ex parte Cofer, 440 So.2d 1121, 1124 (Ala.1983)). The error in the present case allowed the jury to improperly consider charges (or alleged bad acts) stemming from each of the unrelated incidents at issue. Because of the jury’s finding of guilt as to one charge from each of the incidents, we cannot ‘find conclusively that the trial court’s error did not affect the outcome of the trial or otherwise prejudice a substantial right of the defendant’ as we must in order to affirm the judgment on the basis of the harmless-error rule. Ex parte Crymes, 630 So.2d 125, 126 (Ala.1993).”

(James’s brief, pp. 19-20.)

The above-quoted passages are nearly exhaustive of the arguments presented by James in the five-page argument section of his brief.

James’s two arguments — that the charges were improperly consolidated and that evidence was improperly admitted— are reviewed for abuse of discretion. Bailey v. State, 75 So.3d 171, 184-85 (Ala.Crim.App.2011); Culver v. State, 22 So.3d 499, 507 (Ala.Crim.App.2008). “The trial judge’s actions are presumptively correct in the absence of a showing to the contrary. On appeal, error is not presumed and the party claiming that a trial judge has abused his discretion has the burden of persuasion.” Gratton v. State, 456 So.2d 865, 872 (Ala.Crim.App.1984) (citations omitted). Quite simply, it is James’s burden of persuasion on appeal to demonstrate that the trial court abused its discretion and I do not believe that he has met it.

I find the analysis in the dissenting opinion to be concise and persuasive and, had James made similar arguments, I would be inclined to agree with a different outcome in this matter; nevertheless, as the above-quoted passages from James’s appellate brief indicate, the arguments and analysis in the dissenting opinion are not found in James’s brief. Unlike the dissent, James provides little or no factual analysis in support of his arguments. In reference to his consolidation argument, James relies exclusively on his block quote of Tillman; as indicated above, however, the Tillman passage is this Court quoting with approval an argument made by an appellant on a similar issue. James, however, proffered no such analysis of his case; it is not the function of this Court to make arguments for James. See Ex parte Borden, 60 So.3d 940, 943 (Ala.2007) (“[I]t is not the function of this Court to do a party’s legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.” (quotations and citations omitted)).

James has failed to meet his burden of persuasion, and I agree with the majority that this matter is due to be affirmed.

WELCH, Judge,

dissenting.

By an unpublished memorandum, the majority affirms William B. James’s convictions and sentences for two counts of robbery in the first degree, in violation of § 13A-8-41, Ala.Code 1975, and four counts of theft in the first degree, violations of § ISA-8-3, Ala.Code 1975. The majority holds that the trial court abused its discretion when it consolidated the theft charges with the robbery charges, and I agree with that holding. The majority then holds that the error was harmless because James did not establish that he suffered any actual prejudice; specifically, the majority states in its unpublished memorandum:

“James failed to prove any prejudice beyond bare allegations. Based on the amount of evidence tending to support a conviction for each of the respective sets of crimes, there is nothing in the record that indicates that the jury was overloaded with prejudicial information or that its verdicts were based on anything besides the evidence as to each charge. Also, the fact that there were separate verdict forms for each charge, taken together with the trial court’s jury instructions, substantially reduced the danger that the jury would use evidence of one of the crimes charged to infer James’s guilt on the other crimes charged.”

I disagree with the majority when it holds that the erroneous consolidation was harmless error.

“A determination that an error was not harmless is an extremely weighty conclusion; it implicates profound notions of fairness and justice.” United States v. Lane, 474 U.S. 438, 478, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986) (Stevens, J., and Marshall, J., concurring in part and dissenting in part) (footnote omitted). To determine that an error was not harmless requires a finding that the error caused actual prejudice because it had a “substantial and injurious effect or influence in determining the jury’s verdict.” United States v. Lane, 474 U.S. at 449 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). See also Ex parte Tisdale, 990 So.2d 280, 283 (Ala.2007).

Misjoinder of charges is as inherently prejudicial as is the erroneous admission of evidence of collateral bad acts prohibited by Rule 404(b), Ala. R.Crim. P. The Alabama Supreme Court has discussed the error of misjoinder with an analysis following and referring to Rule 404(b) and finding reversible error. Ex parte Tisdale, 990 So.2d 280 at 284-85. As it was in Ex parte Tisdale, the prejudice to James here is clear and, in fact, is far more compelling: a single jury was exposed to evidence of multiple unrelated charges involving separate victims and a wide range of unrelated criminal activities and evidence from separate investigations. The erroneous consolidation here of the robbery charges with the four theft charges permitted the jury to hear about four additional felony charges that involved unrelated activities and victims and that occurred at times completely unrelated to the robberies. In like vein, the erroneous consolidation of the two robbery charges with those four theft charges placed before the jury extensive evidence of the two additional felony charges involving a weapon — charges that were unrelated to the four thefts and that were not part of a common plan or scheme related to the thefts. The majority correctly holds that “in separate trials on the robbery charges, evidence of the theft charges would not have been admissible, and vice versa.” Because of the erroneous joinder of the charges, however, all the evidence the majority acknowledges would not have been admissible was, in fact, admitted for the jury’s consideration. As a result, the jury’s determination of James’s responsibility for the four thefts was diverted by the interjection of numerous collateral facts and issues unrelated to those thefts, including the investigative and forensic evidence related to the proof of the robberies. Likewise, the jury’s process in determining James’s responsibility for the two robberies was diverted by the interjection of collateral facts and issues related to multiple thefts involving multiple victims and carried out at multiple locations, none of which was related to the robberies. There was no overlap of proof for the two sets of crimes and no logical connection or common thread between the two sets of crimes. The jury was thus permitted to hear and consider evidence from two distinct series of crimes that lacked a common plan or scheme, and the risk of the prejudicial “spillover” effect from the jury’s merger of all the evidence into its consideration of James’s guilt for any one crime was substantial. Evidence of James’s possession of a mask, after the police chased him to his home, could have been produced without injecting the evidence of the four thefts. (R. 82.) The resulting prejudice to James is not merely speculative.

The error is not harmless for the additional reason that the independent evidence of guilt on any single charge was not overwhelming, particularly in the robbery cases. This point is borne out by the fact that the jury submitted two questions to the trial court during deliberations. The jury asked:

“ — Can we know anything more about the gun?
“ — the money + checks from Gil’s [sic]?”

(C. 250, R. 285.)

The jury’s questions strongly suggest that the jurors were not convinced of James’s guilt in the robbery cases. In a separate trial of only the two robbery cases, the jurors might have had a reasonable doubt about James’s guilt if it had not had the addition of the collateral evidence diverting their minds from the issues and evidence only presented in the robbery cases. Instead, the jurors were erroneously permitted to consider a vast amount of evidence unrelated to the robberies, and, as discussed below, they were encouraged to consider all the evidence in deciding James’s guilt as to each and every count with which he was charged. The prejudice to James was actual and substantial.

The majority’s assertion that the trial court’s jury instructions and the fact that the trial court provided separate verdict forms for each charge “substantially reduced the danger that the jury would use evidence of one of the crimes charged to infer James’s guilt on the other crimes charged,” is wholly unpersuasive. First, the fact that the trial court provided separate verdict forms for each charge adds nothing to the harmless-error calculation because separate verdict forms are required by Rule 23.3, Ala. R.Crim. P., and are provided in every criminal case. Second, the trial court did not issue any limiting instructions; it simply instructed the jury on the elements of each of the six charges and said nothing to the jury about limiting its review of evidence relevant to one count when considering the verdict for any of the other counts.

That the jury found James guilty of all counts is further indication that its deliberations were contaminated by the extensive evidence in each set of crimes that was collateral to the evidence that was admitted as to the other set of crimes. Moreover, because the theft charges and the robbery charges stemmed from unique circumstances — repeated robberies of the same victim in one set of crimes and the series of thefts leading up to the unusual theft of an automatic teller machine in the other set of crimes, it is highly likely that each set of charges and the evidence presented as to the charges was particularly inflammatory and prejudicial relative to the other set of charges. This factor, too, weighs in favor of the determination that the error in the consolidation of the multiple charges was not harmless.

In conclusion, the combination of the extensive evidence of unrelated crimes the jury was permitted to hear, the lack of any instruction to the jury on considering the six counts independently and considering only the evidence relevant to each count separately, the inflammatory nature of the robberies and the thefts, and the weakness of the robbery cases, leads me to conclude that the erroneous consolidation of these offenses had a substantial and injurious effect or influence on the jury’s verdicts. Because James demonstrated actual prejudice, I cannot agree with the majority’s determination that the error in consolidating the offenses was harmless. To the contrary, the prejudice from the improper joinder was so compelling that James was denied a fair trial because the jury could not have effectively determined James’s guilt or innocence on each charge.

For all of the foregoing reasons, I dissent.

      . I strongly question whether James’s second argument — regarding the admissibility of evidence pursuant to Rule 404(b), Ala. R. Evid.— is properly preserved for appellate review; specifically, it does not appear that James squarely presented this issue to the trial court. In response to the State’s motion to consolidate, James includes a citation to Rule 404(b) as part of a string cite and, in a footnote, quoted the relevant language from the rule. C. 36. James did not, however, squarely make any Rule 404(b)-type argument in that response. Likewise, at the start of trial, James merely argued that "the robbery cases being consolidated [with] those cases and bringing in evidence — and what it is, its conformity use of character evidence is what it amounts to. Its improper use of character evidence.” (R. 7.) James again, however, failed to squarely raise any Rule 404(b)-type argument.

      . The dissenting opinion, relying on Ex parte Tisdale, 990 So.2d 280 (Ala.2007), states;
      "Misjoinder of charges is as inherently prejudicial as is the erroneous admission of evidence of collateral bad acts prohibited by Rule 404(b), Ala. R.Crim. P. The Alabama Supreme Court has discussed the error of misjoinder with an analysis following and referring to Rule 404(b), and finding reversible error.”
      93 So.3d at 170. I question the precedential value of Ex parte Tisdale because it is a plurality decision; notably, only two Justices concurred with the main opinion, authored by Justice Murdock, and five Justices concurred in the result.

      . James did not object at trial to the court's failure to give a limiting instruction, and he does not raise the issue on appeal. I discuss the absence of that jury instruction here not as a separate ground for reversal, but as part of the harmless-error analysis and as additional support for my conclusion that the error resulting from the improper joinder of the charges was not harmless.


author: PER CURIAM.

text:
    Ex parte Jerry HAMMOND. (In re: State of Alabama v. Jerry Hammond).
    CR-10-1777.
    Court of Criminal Appeals of Alabama.
    March 23, 2012.

      Jerry Hammond, pro se.
    Luther Strange, atty. gen., and William D. Dill, asst. atty. gen., for respondent.
   PER CURIAM.

The petitioner, Jerry Hammond, filed this petition for a writ of mandamus requesting that we direct Judge Jerry White to grant Hammond’s motion filed pursuant to § 15-18-200, Ala.Code 1975, for post-conviction DNA testing.

In 1990, Hammond was convicted of capital murder and was sentenced to death. We reversed his conviction and sentence because the record of the lower court proceedings was incomplete. See Hammond v. State, 665 So.2d 970 (Ala.Crim.App.1995). In 1996, Hammond was tried a second time for capital murder and was convicted and sentenced to death. We reversed his conviction after finding reversible error in the prosecutor’s reference to the result of Hammond’s first trial. See Hammond v. State, 776 So.2d 884 (Ala.Crim.App.1998). In 2002, Hammond was tried a third time and was convicted of capital murder and sentenced to life imprisonment without the possibility of parole. We affirmed his conviction and sentence in an unpublished memorandum. Hammond v. State (No. CR-03-0408, August 13, 2004), 920 So.2d 609 (Ala.Crim.App.2004) (table).

In July 2010, Hammond filed a motion in the Houston Circuit Court seeking post-conviction DNA testing. After holding a hearing, Judge White issued an order on March 16, 2011, denying the motion. Hammond appealed. Citing Searcy v. State, 77 So.3d 174 (Ala.Crim.App.2011), we dismissed the appeal as nonappealable. Hammond v. State (CR-10-1225, July 11, 2011).

Hammond then filed this petition for a writ of mandamus requesting that we direct Judge White to set aside his order denying Hammond’s motion for DNA testing. Because we held in Searcy that the denial of a motion for postconviction DNA testing is not appealable, this is Hammond’s only means of obtaining review. We directed the respondents to answer the allegations contained in the mandamus petition.

In our 1998 opinion reversing Hammond’s second conviction for capital murder, we set out the following facts surrounding the robbery/murder:

“On August 3, 1988, Jerry Hammond and Sandra Jackson went to Hammond’s house in Dothan, where they smoked crack cocaine. During the late evening hours, they smoked crack cocaine on four occasions. Between those occasions they drove back and forth from Hammond’s house to Martin Homes housing project, where they would purchase more crack cocaine. According to Jackson, they would smoke the crack cocaine at Hammond’s house, and after the effects of the drug wore off after 10 to 20 minutes, they would go purchase some more crack cocaine. After the fourth purchase, the two had run out of money and, according to Jackson, Hammond told her he could get some money ‘from a lady that he knew.’ Sometime after midnight, the two left Hammond’s house in a distinctive blue Volkswagen automobile with ‘mag wheels’ and a ‘T-top’ roof. They drove to the Dothan neighborhood where Hammond’s 80-year-old uncle James McNeil lived. According to Jackson, Hammond got out of the car carrying a yellow towel and a knife. He told her, ‘I’m not going to Cousin McNeil’s house.’ She stayed in the car, and watched Hammond walk down the street into the dark. Jackson testified that, as she sat in the car, she heard a door ‘pushing, as if something was hindering it from opening.’ She said she also heard loud groaning, and the sound of glass breaking. When Hammond returned to the car, he did not have the towel, but he was still carrying the knife. He was also carrying a pair of blue pants that had what appeared to Jackson to be wet blood on them. According to Jackson, Hammond told her to ‘shut up’ when she asked what he had done. As he drove, Hammond removed his shirt and threw it out the window. He went through the blue pants and retrieved a wallet from which he removed money. The wallet and pants were also thrown out the car window. Hammond and Jackson parked the car on a dirt road and left, going in different directions.”

776 So.2d at 885-86. An eyewitness, a neighbor of the victim’s, identified Hammond as the individual he saw leaving the scene of the murder.

First, the State asserts that this petition for a writ of mandamus is untimely because it was filed well past the presumptively reasonable period for filing a petition for a writ of mandamus. See Rule 21(a), Ala. R.App. P. The presumptively reasonable period is 42 days from the date of the ruling that is the subject of the petition. Judge White denied Hammond’s motion on March 16, 2011, and this petition was not filed until August 19, 2011 — well past the presumptively reasonable time period. Hammond’s petition is untimely.

Moreover, to establish the prerequisites for the issuance of a writ of mandamus, the petitioner must show: (1) a clear legal right to the relief sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) no other adequate remedy at law; and (4) the properly invoked jurisdiction of the reviewing court. See Ex parte Jones, 61 So.3d 1104 (Ala.Crim.App.2010).

Section 15-18-200, Ala.Code 1975, provides, in pertinent part:

“(e) A motion for DNA testing shall contain all of the following items:
“(1) A clear and specific statement of how the requested forensic DNA testing would prove the factual innocence of the petitioner of the offense for which the petitioner was convicted, under penalty of perjury.
“(2) A statement of the specific evidence that was secured in relation to the investigation or prosecution that resulted in the conviction of the petitioner to be tested, which shall include a statement that:
“a. The evidence, which potentially contains DNA, was obtained in relation to the crime and subsequent indictment, which resulted in the petitioner’s conviction.
“b. The evidence was not subjected to DNA testing because the existence of the evidence was unknown to the petitioner or to the petitioner’s trial attorney prior to trial or because the technology for the testing was not available at the time of trial.
“c. A description of the evidence to be tested and, if known, its present location, its origin and the date, time, and means of its original collection.
“d. The results of any DNA or other biological evidence testing that was conducted in relation to the investigation or prosecution that resulted in the conviction of the petitioner and entered as evidence at trial by either the prosecution or the defense, if known.
“e. If known, the names, addresses, and telephone numbers of all persons or entities who are known or believed to have possession of any evidence described by paragraph a. or b., and any persons or entities who have provided any of the information contained in the petitioner’s motion, indicating which person or entity has which items of evidence or information.
“f. The names, addresses, and telephone numbers of all persons or entities who may potentially testify for the petitioner and a description of the subject matter and summary of the facts to which each person or entity may testify in the event the circuit court determines an evidentiary hearing would be appropriate.
“(3) Prima facie evidence demonstrating that the identity of the perpetrator was at issue in the trial that resulted in the conviction of the petitioner and that DNA testing of the specified evidence would, assuming exculpatory results, demonstrate the factual innocence of the applicant of the offense for which the petitioner was convicted.
“(f)(1) Except as provided in subdivision (2), the circuit court shall order the testing requested in a motion for DNA testing, under reasonable conditions designed to protect the interest of the state and the integrity of the evidence and testing process, upon a determination, after review of the record of the trial of the applicant, of all of the following:
“a. That the requirements of subsection (c) have been met.
“b. That the evidence to be tested is in the possession of the state or the court and has been subject to a chain of custody sufficient to establish that it has not been altered in any material respect.
“c. That the motion is made in a timely manner pursuant to the Alabama Rules of Criminal Procedure Rule 32.2(c), or within 12 months of August 1, 2009.
“d. That the motion is for the purpose of demonstrating the actual innocence of the applicant and not to delay the execution of sentence or administration of justice.
“(2) The court may not order the testing requested in a motion for DNA testing if, after review of the petition, the state’s response, if required, and the record of the trial of the applicant, the court determines that there is no reasonable possibility that the testing will produce exculpatory evidence that would exonerate the applicant of the offense for which the applicant was convicted.”

In his motion, Hammond requested that DNA testing be conducted on the victim’s pants, the victim’s wallet, the fingerprints taken from the refrigerator that was lying on top of the victim when he was found, the yellow towel, the shirt found with the victim’s wallet, Hammond’s shoes and shoelaces, and swabs and tape lifts taken from the blue Volkswagen. Hammond asserted that his conviction rested on the testimony of Sandra Jackson and that the testing will show that Jackson touched the identified items. When denying the motion, Judge White, stated:

“The defendant, Hammond, filed his petition under Section 15-18-200, Code of Alabama 1975 requesting postconviction DNA testing. The petition was set for oral hearing as requested by defendant, and the defendant was present with his attorney at said hearing.
“The defendant’s attorney enumerated five items at the hearing which were admitted into evidence during the trial resulting in defendant’s conviction which he wishes subjected to DNA testing. Those items are a pair of white tennis shoes which contain two blood spots, a Volkswagen gear shift which supposedly has blood on it, the victim’s trousers which supposedly have blood on them and which the defendant conjectures may have been touched by the perpetrator, the victim’s wallet which the defendant conjectures may have been touched by the perpetrator, and the defendant’s gray shirt which supposedly has blood on it. All of the items on which blood was found were known to the defendant long prior to his trial in 2002 and no effort was made by him to have DNA testing done on that blood evidence then. Technology for testing blood DNA was available free of charge to the defendant through the Alabama Department of Forensic Sciences prior to the 2002 trial. As a matter of fact, DNA testing was repeatedly discussed by the attorneys for both the state and the defendant during the course of the trial, but for whatever reason defendant and his attorneys chose not to have any DNA testing done. All three of defendant’s trial attorneys were competent attorneys experienced in the defense of capital cases- before juries. The court believes that pursuant to § 15-18-200(e) [ (2)b.] defendant cannot now resort to postconviction DNA testing in an attempt to gain a retrial of his case when that testing was available prior to trial.
“The defendant in this petition, in the trial resulting in his conviction, and in argument before the Court at the oral hearing, contends that Sandra Jackson was the actual perpetrator of this offense. He asserts that, with the modern technology known as ‘Touch DNA’ if the victim’s pants, the victim’s wallet, and defendant’s gray shirt were subjected to ‘Touch DNA’ testing such a test might reveal that the perpetrator touched those items. The eyewitness evidence reflects that both the defendant and Sandra Jackson repeatedly handled both the trousers and the wallet after the victim was killed. A strong likelihood also exists that Sandra Jackson touched the gray shirt as she and defendant were, per the eyewitness evidence, together several hours prior to and after the murder. An analysis by ‘touch DNA’ to once again tell us that Sandra Jackson touched the pants, the wallet and the gray shirt would not reveal anything that was not already known to the trial jury.
“Defendant, at the hearing, also expressed a desire to have a fingerprint from the refrigerator, some pieces of shattered windowpane, and scrapings from the victim’s fingernails tested. The Court has no idea, because the evidence at the hearing did not reflect, whether or not those items exist and, if so, where they are located and whether or not they have been preserved in a manner which would make results reliable.
“This court has carefully weighed and considered the motion filed by defendant, the State’s response, particularly the record of the trial of defendant from 2002, the court’s own memory and recollection of the 2002 trial, as well as arguments of defense counsel and the District Attorney at the recent hearing. Based upon all of the above and foregoing, it is the judgment and opinion of the Court that there is no reasonable possibility that the testing requested by defendant will produce exculpatory evidence that would exonerate the defendant. The testing requested by defendant is therefore denied.”

Hammond bears the burden of establishing by a reasonable probability that he is entitled to postconviction DNA testing. See § 15 — IS—200(f)(2), Ala.Code 1975. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, 466 U.S. 668, 693, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner must show that the “evidence was not subjected to DNA testing because the existence of the evidence was unknown to the petitioner or to the petitioner’s trial attorney prior to trial or because the technology for the testing was not available at the time of trial.” See § 15-18-200(e)(2)b., Ala.Code 1975. The petitioner must also show that the testing will establish his “factual innocence.” See § 15-18-200(e)(3), Ala.Code 1975.

We agree with the circuit court that Hammond failed to show that he was entitled to postconviction DNA testing. DNA testing of the items would not show Hammond’s innocence; at most, it would show that another individual, who Hammond contends is Jackson, may have touched the items. Compare State v. El-Tabech, 259 Neb. 509, 530, 610 N.W.2d 737, 751 (2000) (“Even proof that someone else’s DNA might appear on some unspecified physical item at the crime scene does not exclude El-Tabech as the perpetrator of the crime.”). The circuit court did not abuse its discretion in denying Hammond’s motion for postconviction DNA testing. Accordingly, Hammond cannot show a clear right to the relief sought. Thus, this petition for a writ of mandamus is denied.

PETITION DENIED.

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


text:
    Victor Tony JONES, Appellant, v. STATE of Florida, Appellee.
    No. SC11-474.
    Supreme Court of Florida.
    April 26, 2012.
    Rehearing Denied June 29, 2012.
    Neal A. Dupree, Capital Collateral Regional Counsel, Craig J. Tocino, Assistant CCR Counsel, and William M. Hennis, III, Litigation Director, Southern Region, Fort Lauderdale, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Sandra S. Jaggard, Assistant Attorney General, Miami, FL, for Appellee.
   PER CURIAM.

Affirmed. See Walton v. State, 77 So.3d 639 (Fla.2011).

It is so ordered.

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