author: KELLUM, Judge. WELCH, Judge,

text:
    James W. BAILEY v. STATE of Alabama.
    CR-07-1673.
    Court of Criminal Appeals of Alabama.
    Aug. 7, 2009.
    Rehearing Denied Sept. 25, 2009.
    Certiorari Quashed Jan. 14, 2011 Alabama Supreme Court 1090043.

      Allen K. Mitchell, Dothan, for appellant.
    Troy King, atty. gen., and Andy Scott Poole, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, James W. Bailey, was convicted of trafficking methamphetamine, a violation of § 13A-12-231(6), Ala.Code 1975; unlawful manufacturing of a controlled substance in the first degree, a violation of § 13A-12-218, Ala.Code 1975; and possession of precursor chemicals, a violation of § 20-2-190, Ala.Code 1975. The circuit court sentenced Bailey as a habitual felony offender to life imprisonment on the trafficking and unlawful-manufacturing convictions, and to 18 years’ imprisonment on the possession-of-precursor-chemicals conviction. The court ordered Bailey to pay $750 to the crime victims compensation fund for each conviction, as well as all statutorily mandated fines and assessments. The court ordered that Bailey’s sentences for trafficking and manufacturing would run concurrently and his sentence for possession of precursor chemicals would run consecutively to the other two sentences. This appeal followed.

I.

Bailey first contends that the circuit court abused its discretion by denying his motion to suppress evidence seized under a search warrant that was determined by the court to be invalid. Specifically, Bailey contends that the search of his house pursuant to an invalid warrant amounted to a warrantless search without probable cause or exigent circumstances and thus violated his constitutional rights.

The evidence adduced at the suppression hearing indicated the following pertinent facts. In December 2004, Officer Scott Langley, who at that time was a deputy with the Houston County Sheriffs Department, requested a search warrant for a residence based on information received from other investigators and an informant that Bailey and a female were in possession of methamphetamine and chemicals used in manufacturing methamphetamine. Further, Allen Hendrickson, an investigator with the Henry County Sheriffs Department, advised Officer Langley that he had smelled a strong chemical odor associated with the manufacture of methamphetamine at the residence while he was conducting an interview with Bailey and the female. After compiling the above evidence in an affidavit form, Officer Langley telephoned Judge C. Lawson Little to secure a warrant. Officer Langley testified that he based his request for the warrant on reliable information and that he had filed the warrant in good faith. According to Officer Langley, Judge Little did not swear him in before hearing the evidence in support of the search-warrant request. Officer Langley explained that he appeared before Judge Little when he made the return on the search warrant and that Judge Little signed the warrant at that time.

Judge Little had no independent recollection of issuing the search warrant. Judge Little acknowledged that he authorized warrants by telephone. Judge Little explained that he usually made the officer requesting the warrant tell him the basis of the affidavit for the search warrant and he would then determine if the basis offered was sufficient. Judge Little testified that he did not always swear in the affiant and that he could not remember whether he did in this case.

Based on the evidence received at the suppression hearing, the circuit court held that the search warrant was invalid. However, the circuit court concluded that the evidence seized upon execution of the search warrant was admissible under the good-faith exception under the exclusionary rule. “The good faith exception provides that when officers acting in good faith, that is, in objectively reasonable reliance on a warrant issued by a neutral, detached magistrate, conduct a search and the warrant is found to be invalid, the evidence need not be excluded.” Rivers v. State, 695 So.2d 260, 262 (Ala.Crim.App.1997).

In United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), a case relied on by the circuit court, the United States Supreme Court recognized four circumstances in which the good-faith exception was inapplicable: (1) when the magistrate or judge relies on information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth; (2) when the magistrate wholly abandons his judicial role and fails to act in a neutral and detached manner; (3) when the warrant is based on an affidavit so lacking an indicia of probable cause as to render official belief in its existence entirely unreasonable; .and (4) when the warrant is so facially deficient that the executing officer cannot reasonably presume it to be valid.

Bailey argues on appeal that Judge Little’s conduct and the conduct of Officer Langley do not support the application of the good-faith exception in the instant case. Bailey argues that Judge Little abandoned his judicial role and failed to act in a neutral and detached manner. However, the evidence presented at the suppression hearing establishes that none of the circumstances set forth in Leon were present in this case to negate the good-faith exception. Judge Little required Officer Langley to set forth the specific evidence upon which he was basing the request for the search warrant. Only after hearing that evidence did Judge Little agree to issue the search warrant. Judge Little’s failure to swear in Officer Langley before issuing the search warrant does not, in and of itself, evidence an abandonment of a judicial role and a lack of neutrality. The evidence does not support a conclusion that Judge Little wholly abandoned his judicial role. See Leon, supra. Therefore, the circuit court did not abuse its discretion by denying the motion to suppress.

We note that the dissent’s interpretation of the Supreme Court’s holding in Leon effectively broadens the limitations to the good-faith exception created by the Supreme Court and narrows the applicability of the good-faith exception. The dissent maintains that the warrant lacks ‘indicia of probable cause’ by virtue of the fact that it was not based on sworn testimony,” 67 So.3d at 159, and, therefore, falls within one of the limitations to the good-faith exception. However, in Ex parte Green, 15 So.3d 489 (Ala.2008), and cases cited therein—cases relied on by the dissent— the appellate courts declined to apply the good-faith exception to the exclusionary rule because the affidavits used to obtain the search warrants failed to contain sufficient information to allow a determination that the facts alleged in the affidavit were current rather than remote. The dissent cites Anderson v. State, 445 So.2d 974 (Ala.Crim.App.1983), in support of its proposition; however, Anderson was decided by this Court before the United States Supreme Court issued its decision in Leon.

II.

Bailey further contends that he was denied his right to a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution. Specifically, Bailey argues that the 40-month delay between his arrest and his trial was prejudicial and resulted in the denial of his right to a speedy trial.

In determining whether a defendant has been denied his constitutional right to a speedy trial, we apply the test announced by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). We consider the following four factors: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant’s assertion of his right to a speedy trial; and (4) the prejudice to the defendant.

The Alabama Supreme Court in Ex parte Walker, 928 So.2d 259, 263 (Ala.2005), stated:

“ ‘A single factor is not necessarily determinative, because this is a “balancing test, in which the conduct of both the prosecution and the defense are weighed.” ’ Ex parte Clopton, 656 So.2d [1243] at 1245 [ (Ala.1985) ] (quoting Barker, 407 U.S. at 530). We examine each factor in turn.”

928 So.2d at 263.

A. Length of the delay. Bailey was arrested on December 22, 2004, indicted on April 22, 2005, and tried May 12, 2008. The delay in this case was almost 41 months.

“In Doggett v. United States, the United States Supreme Court explained that the first factor — length of delay — ‘is actually a double enquiry.’ 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). The first inquiry under this factor is whether the length of the delay is ‘ “presumptively prejudicial.” ’ 505 U.S. at 652, 112 S.Ct. 2686 (quoting Barker, 407 U.S. at 530-31, 92 S.Ct. 2182). A finding that the length of delay is presumptively prejudicial ‘triggers’ an examination of the remaining three Barker factors. 505 U.S. at 652 n. 1, 112 S.Ct. 2686 (‘[A]s the term is used in this threshold context, “presumptive prejudice” does not necessarily indicate a statistical probability of prejudice; it simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker enquiry.’). See also Roberson v. State, 864 So.2d 379, 394 (Ala.Crim.App.2002).
“In Alabama, ‘[t]he length of delay is measured from the date of the indictment or the date of the issuance of an arrest warrant — whichever is earlier — to the date of the trial.’ Roberson, 864 So.2d at 394. Cf. § 15-3-7, Ala.Code 1975 (‘A prosecution may be commenced within the meaning of this chapter by finding an indictment, the issuing of a warrant or by binding over the offender.’); Rule 2.1, Ala. R.Crim. P. (‘All criminal proceedings shall be commenced either by indictment or by complaint.’).”

928 So.2d at 263-64.

In the instant case, the almost 41-month delay was presumptively prejudicial. See State v. Van Wooten, 952 So.2d 1176 (Ala.Crim.App.2006) (29-month delay was presumptively prejudicial); State v. Stovall, 947 So.2d 1149 (Ala.Crim.App.2006) (41-month delay was presumptively prejudicial); Vincent v. State, 607 So.2d 1290 (Ala.Crim.App.1992) (31-month delay was presumptively prejudicial). Cf. State v. Johnson, 900 So.2d 482 (Ala.Crim.App.2004) (28-month delay was not presumptively prejudicial); Payne v. State, 683 So.2d 440 (Ala.Crim.App.1995) (25-month delay was not presumptively prejudicial).

B. Reasons far delay. The following dates are helpful in analyzing this factor:

December 22, 2004 — Bailey arrested.
April 22, 2005 — Bailey indicted.
May 12, 2005 — Bailey filed letter requesting speedy trial.
August 17, 2005 — Bailey arraigned.
July 27, 2005 — Bailey’s first attorney allowed to withdraw and Martin Adams is appointed to represent Bailey.
August 17, 2005 — Adams is allowed to withdraw and Mike Crespi is appointed to represent Bailey.
November 28, 2005 — Crespi filed motion to withdraw that was subsequently granted by the circuit court. Jack Blu-menfield is appointed to represent Bailey.
December 28, 2005 — Blumenfield filed motion to continue trial.
January 3, 2006 — Circuit court granted motion to continue.
January 10, 2006 — Blumenfield filed motion to withdraw.
January 11, 2006 — Circuit court granted motion to withdraw and appointed William White to represent Bailey.
January 25, 2006 — William White filed motion to withdraw.
February 7, 2006 — Circuit court entered an order continuing case and appointing Hampton Baxley to represent Bailey.
October 19, 2006 — Baxley filed a motion for a continuance citing a scheduling conflict.
November 13, 2006 — Baxley filed a motion to withdraw after Bailey informed him that he no longer desires to be represented by him. The court denied the motion unless Bailey secured representation within 30 days.
November 21, 2006 — Bailey filed pro se motion to suppress evidence.
November 29, 2006 — Bailey filed motion to “pass the cases.”
December 5, 2006 — Circuit court granted motion “to pass cases” and Bailey filed motion, pro se, to represent himself; the court granted Bailey’s motion.
January 18, 2007 — Baxley filed second motion to withdraw.
January 29, 2007 — Circuit court granted motion to withdraw.
April 4, 2007 — Billy Sheffield filed motion to withdraw.
April 5, 2007 — Circuit court granted motion and appointed Allen Mitchell to represent Bailey.
April 13, 2007 — Mitchell filed motion to continue.
April 16, 2007 — Circuit court granted motion to continue and rescheduled the case for the August term.
September 6, 2007 — Circuit court continued case.
September 25, 2007 — Circuit court continued case.
January 4, 2008 — Bailey filed his last motion for speedy trial.
January 8, 2008 — Judge Denny Holloway granted the motion for a speedy trial and ordered case be placed on next available jury docket.
January 2008 — Judge Holloway retired and Judge Henry Binford was appointed to Baxley’s case.
March 27, 2008 — Judge Binford recused himself based on his former role as a prosecutor and his prosecution of Bailey.
March 31, 2008 — Case reassigned to Judge Edward Jackson.
May 12, 2008 — Trial commenced.

The record also shows that numerous other motions were filed by defense counsel and that Bailey filed numerous pro se motions. In Ex parte Walker, 928 So.2d 259 (Ala.2005), the Alabama Supreme Court stated:

“The State has the burden of justifying the delay. See Barker, 407 U.S. at 531; Steeley v. City of Gadsden, 533 So.2d 671, 680 (Ala.Crim.App.1988). Barker recognizes three categories of reasons for delay: (1) deliberate delay, (2) negligent delay, and (3) justified delay. 407 U.S. at 531. Courts assign different weight to different reasons for delay. Deliberate delay is ‘weighted heavily’ against the State. 407 U.S. at 531. Deliberate delay includes an ‘attempt to delay the trial in order to hamper the defense’ or ‘ “to gain some tactical advantage over (defendants) or to harass them.” ’ 407 U.S. at 531 & n. 32 (quoting United States v. Marion, 404 U.S. 307, 325 (1971)). Negligent delay is weighted less heavily against the State than is deliberate delay. Barker, 407 U.S. at 531; Ex parte Carrell, 565 So.2d [104,] 108 [ (Ala.1990) ]. Justified delay — which includes such occurrences as missing witnesses or delay for which the defendant is primarily responsible — is not weighted against the State. Barker, 407 U.S. at 531; Zumbado v. State, 615 So.2d 1223, 1234 (Ala.Crim.App.1993) (‘“Delays occasioned by the defendant or on his behalf are excluded from the length of delay and are heavily counted against the defendant in applying the balancing test of Barker.” ’) (quoting McCallum v. State, 407 So.2d 865, 868 (Ala.Crim.App.1981)).”

Ex parte Walker, 928 So.2d at 265.

There is no indication in the record of deliberate delay by the State in an effort to prejudice Bailey’s defense or to enhance its own case, nor is there evidence of negligent delay. The record reflects that Bailey either disagreed with several of his appointed counsel or that his appointed counsel had other conflicts that prevented them from representing Bailey at trial. Bailey filed numerous pro se motions in the circuit court both before and after he requested to represent himself at trial. Further, as noted by the circuit court, it is not unusual for a case that has been through several judges and numerous attorneys to experience significant delay. Also, the circuit court’s dockets are such that administrative decisions are often made to move cases to accommodate the large number of cases.

C. Assertion of right to speedy trial. The record contains several requests filed by Bailey and defense counsel requesting a speedy trial. The State does not dispute that Bailey asserted his right to a speedy trial.

D. Prejudice to the defendant. Bailey contends that he was prejudiced by the 41-month delay for two reasons: (1) the delay resulted in lapses of memory of several State’s witnesses; and (2) the delay prevented him from consideration for work release or other prison programs.

“Because ‘pretrial delay is often both inevitable and wholly justifiable,’ Daggett [v. United States ], 505 U.S. [647,] 656 [ (1992) ], the fourth Barker factor examines whether and to what extent the delay has prejudiced the defendant. Barker, 407 U.S. at 532. The United States Supreme Court has recognized three types of harm that may result from depriving a defendant of the right to a speedy trial: ‘ “oppressive pretrial incarceration,” “anxiety and concern of the accused,” and “the possibility that the [accused’s] defense will be impaired” by dimming memories and loss of exculpatory evidence.’ Doggett, 505 U.S. at 654 (quoting Barker, 407 U.S. at 532, and citing Smith v. Hooey, 393 U.S. 374, 377-79 (1969); United States v. Ewell, 383 U.S. 116, 120 (1966)). ‘Of these forms of prejudice, “the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” ’ 505 U.S. at 654 (quoting Barker, 407 U.S. at 532).”

Ex parte Walker, 928 So.2d at 267.

Bailey contends that one of his alibi witnesses could not remember dates and times clearly and that witnesses at the suppression hearing, including Judge Little and the sheriffs deputies, could not remember dates and times. “ ‘[S]pecula-tive allegations, such as general allegations of loss of witnesses and failure of memories, are insufficient to demonstrate the actual prejudice’ ” that an appellant must establish. Haywood v. State, 501 So.2d 515, 518 (Ala.Crim.App.1986) (quoting United States v. Butts, 524 F.2d 975, 977 (5th Cir.1975), citing in turn United States v. McGough, 510 F.2d 598, 604 (5th Cir.1975)).

After evaluating the Barker v. Wingo factors, we cannot say that Bailey was denied his constitutional right to a speedy trial.

III.

Bailey also argues that the circuit court erred by excluding from evidence a parole-revocation report that included testimony taken at a revocation hearing from Bailey’s girlfriend that Bailey had nothing to do with the drugs — methamphetamine and precursor chemicals — and that the drugs belonged to her. Specifically, Bailey argues that, although hearsay, the report was admissible under Rule 803(8), Ala. R. Evid., as a public record or report because, he says, the information obtained at the revocation hearing had been reduced to a report by someone who had a legal duty to make such a report for the Alabama Board of Pardons and Paroles.

“The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court’s determination on that question will not be reversed except upon a clear showing of abuse of discretion.” Ex parte Loggins, 771 So.2d 1093, 1103 (Ala.2000).

The public-record exception to the hearsay rule states that “[r]ecords, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth ... matters observed pursuant to the duty imposed by law as to which matters there was a duty to report, excluding, however, matters observed by police officers and other law enforcement personnel ” are admissible as an exception to the hearsay rule. Rule 803(8), Ala. R. Evid. (Emphasis supplied.)

In this case, Bailey sought to introduce a report that contained testimony from his girlfriend that the drugs were not his but instead belonged to her. The evidence Bailey sought to introduce was a part of the record of a government agency, but was still hearsay that did not fall within one of the categories stated in the exception. Therefore, the report was properly excluded from evidence at trial.

Bailey further argues that the evidence was admissible as a declaration against interest under Rule 804(b)(3), Ala. R. Evid., and that the circuit court’s decision to disallow the evidence violated his constitutional right to present a defense under Ex parte Griffin, 790 So.2d 351 (Ala.2000). However, Bailey did not make these arguments to the circuit court as a basis for the admission of the hearsay evidence. Therefore, the claims are not preserved for our review. See Shouldis v. State, 953 So.2d 1275, 1280 (Ala.Crim.App.2006) (“ ‘[t]he statement of specific grounds of objection waives all grounds not specified, and the trial court will not be put in error on grounds not assigned at trial.’ Ex parte Frith, 526 So.2d 880, 882 (Ala.1987).”).

IV.

Finally, Bailey contends that the circuit court erred when it denied his motion for a judgment of acquittal, because, he argues, the evidence was insufficient “to establish the criminal knowledge or intent necessary for conviction where [the State] failed to prove beyond a reasonable doubt his guilt.” (Bailey’s brief, p. 64.) Bailey argues that the evidence failed to show constructive possession by showing that he had criminal knowledge of the illegal substances or intent to control them.

The evidence presented at trial established the following pertinent facts. On December 22, 2004, various law-enforcement officers executed a search warrant on a residence in Dothan. Terry Nelson, one of those officers, testified that he could smell a strong chemical smell after he opened the front door of the house. According to Officer Nelson, the chemical smell is a smell associated with a methamphetamine lab.

Officer Nelson testified that Bailey and his girlfriend were sitting on a couch when he executed the warrant. After entering the house, the officers performed a search of the house. Officer Nelson testified that they found the following items under the kitchen sink: a 20-ounce plastic bottle containing a clear liquid, a 20-ounce plastic bottle containing a bi-layered liquid, a gallon of Coleman brand fuel, one gallon of acetone, a 82-ounce can of acetone, three 18-ounce cans of Red Devil brand lye, two gallons of muriatic acid, one 82-ounce bottle of Liquid Heat, two propane cylinders, boric acid, one gallon of distilled water, and 32 ounces of alcohol. Officer Nelson testified that they also found more acetone, Coleman fuel and an off-white substance on some glassware in the kitchen. Officer Nelson explained that the items found in the kitchen were all commonly used to make methamphetamine and .evidenced the operation of a methamphetamine lab. According to Officer Nelson, the bi-layered fluid found was “meth oil.” (R. 220.)

Officer Nelson testified that a search of the attic revealed three trash bags containing empty acetone cans, Coleman brand camping fuel, Red Devil brand lye, coffee filter, striker plates, denatured alcohol, empty blister packs of the medication Su-dafed, and nine empty boxes of Sudafed. Officer Nelson explained that he discovered the trash bags in the attic by entering the attic through an access door located in Bailey’s bedroom. Officer Nelson testified that the ephedrine in Sudafed was commonly used to make the methamphetamine.

Officer Nelson testified that he had no doubt that Bailey was living at the house at the time the search warrant was executed. Law-enforcement officers had conducted surveillance of the house for at least one month before the execution of the search warrant and had seen Bailey at the house daily. According to Officer Nelson, it was a known fact that Bailey lived at the house.

Bailey testified that he had been living with his girlfriend, but decided to leave the house after he and she had a fight. Bailey testified that when he returned to the house he found a man named “Mike” there with Bailey’s girlfriend. According to Bailey, the house smelled like methamphetamine. Bailey stated that he was familiar with the smell of methamphetamine. Bailey testified that he told his girlfriend to get the stuff out of the house and then left. On cross-examination, Bailey testified that he knew the methamphetamine lab was in the house, but that he found out only by accident. Bailey testified that he did not report his findings to local law enforcement.

“ ‘ “In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.” ’ Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985). ‘ “The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.” ’ Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting O’Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). ‘ “When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court’s decision.” ’ Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). ‘The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.’ Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).
“ ‘The trial court’s denial of a motion for judgment of acquittal must be reviewed by determining whether there was legal evidence before the jury at the time the motion was made from which the jury by fair inference could find the defendant guilty. Thomas v. State, 363 So.2d 1020 (Ala.Cr.App.1978). In applying this standard, this court will determine only if legal evidence was presented from which the jury could have found the defendant guilty beyond a reasonable doubt. Willis v. State, 447 So.2d 199 (Ala.Cr.App.1983). When the evidence raises questions of fact for the jury and such evidence, if believed, is sufficient to sustain a conviction, the denial of a motion for judgment of acquittal does not constitute error. McConnell v. State, 429 So.2d 662 (Ala.Cr.App.1983).’ ”

Gavin v. State, 891 So.2d 907, 974 (Ala.Crim.App.2003), cert. denied, 891 So.2d 998 (Ala.2004) (quoting Ward v. State, 610 So.2d 1190, 1191 (Ala.Crim.App.1992)).

It is undisputed that the drugs were not in Bailey’s actual possession at the time of his arrest. Therefore, the State must prove that Bailey was in constructive possession of the drugs. See Ex parte J.C., 882 So.2d 274 (Ala.2003).

“ ‘ “Constructive possession exists when the defendant exercises, or has the power to exercise, dominion and control over the item.” United States v. Laughman, 618 F.2d 1067, 1077 (4th Cir.1980); United States v. Phillips, 496 F.2d 1395, 1397 (5th Cir.1974), cert. denied, 422 U.S. 1056, 95 S.Ct. 2680, 45 L.Ed.2d 709 (1975). “Constructive possession may be determined by weighing those facts which tend to support the defendant’s necessary control over the substance against those facts which demonstrate a lack of dominion and control.” Roberts [v. State ], 349 So.2d [89] at 91 [ (Ala.Crim.App.1977) ].’ ”

Flake v. State, 980 So.2d 440, 442-43 (Ala.Crim.App.2007) (quoting German v. State, 429 So.2d 1138, 1140 (Ala.Crim.App.1982)). It is unnecessary to show that the accused had the drug on his person or within his immediate reach; however, it is sufficient if he is knowingly in a position to exercise dominion and control over the drug, either directly or through others. Flake, 980 So.2d at 443.

“While proximity to a contraband alone is not enough to establish constructive possession, ‘where other circumstantial evidence ... is sufficiently probative, proximity to contraband coupled with inferred knowledge of its presence will support a finding of guilt of such charges.’ Soriano v. State, 527 So.2d 1367, 1372 (Ala.Cr.App.1988); United States v. Whitmire, 595 F.2d 1303, 1316 (5th Cir.1979), cert. denied, 448 U.S. 906, 100 S.Ct. 3048, 65 L.Ed.2d 1136 (1980).”

Mobley v. State, 563 So.2d 29, 32 (Ala.Crim.App.1990).

In the instant case, the evidence presented by the State established that Bailey knew that a methamphetamine lab was being operated in the house he shared with his girlfriend. Items associated with, and ingredients used to make, methamphetamine were found in the kitchen — a common area shared by both Bailey and his girlfriend. A search of the house also revealed three trash bags full of items evidencing the manufacturing of methamphetamine in the attic, which was accessible through Bailey’s bedroom. Officer Nelson testified that a strong chemical odor was present when he entered the house and found Bailey sitting on the couch. Given the evidence presented at trial, we conclude that the circuit court did not err when it denied Bailey’s motion for a judgment of acquittal.

Based on the foregoing, the circuit court’s judgment is affirmed.

AFFIRMED.

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

WELCH, J., dissents, with opinion.

WELCH, Judge,

dissenting.

James W. Bailey was convicted of trafficking methamphetamine, a violation of § 13A-12-231(6), Ala.Code 19751; unlawful manufacturing a controlled substance in the first degree, a violation of § 13A-12-218, Ala.Code 1975; and possession of precursor chemicals, a violation of § 20-2-190, Ala.Code 1975. Bailey appealed, claiming that the circuit court had abused its discretion when it denied his motion to suppress evidence the police seized pursuant to what he alleged was an invalid search warrant. Specifically, Bailey contended that the search warrant to search his house was issued based on the unsworn assertions of Officer Scott Langley.

The testimony from the hearing on the motion to suppress reflects that Officer Langley telephoned Judge C. Lawson Little at his home requesting a warrant to search Bailey’s house. Officer Langley informed Judge Little of the facts establishing probable cause for the search, and Judge Little authorized the issuance of a search warrant. There is no dispute that the warrant was authorized based on the unsworn assertions of Officer Langley.

“There is no common law authorizing search warrants. Statutes authorizing searches are strictly construed against the prosecution in favor of the liberty of the citizen.” Kelley v. State, 55 Ala.App. 402, 403, 316 So.2d 233, 234 (Ala.Crim.App.1975), citing Commonwealth v. Monosson, 351 Mass. 327, 221 N.E.2d 220 (1966); 79 C.J.S. Searches and Seizures § 7.

The Alabama Constitution provides:

“That the people shall be secure in their persons, houses, papers, and possessions from unreasonable seizure or searches, and that no warrants shall issue to search any place or to seize any person or thing without probable came, supported by oath or affirmation.”

Ala. Const. Art. I, § 5 (emphasis added). By statute, “[a] search warrant can only be issued on probable cause, supported by affidavit naming and describing the person and particularly describing the property and the place to be searched.” § 15-5-3, Ala.Code 1975 (emphasis added).

“Before issuing a search warrant, a judge, or magistrate authorized by law to issue search warrants, must examine on oath the complainant and any witness he may produce, take their depositions in writing and cause them to be subscribed by the persons making them. Such depositions must set forth facts tending to establish the grounds of the application or probable cause for believing that they exist.”

§ 15-5-4, Ala.Code 1975 (emphasis added). “[F]or a search warrant to be valid it must be accompanied by a written affidavit of supporting evidence which is signed or subscribed by the complainant, or the party making the statement.” Anderson v. State, 445 So.2d 974, 976 (Ala.Crim.App.1988) (emphasis added).

In recognition of advances in technology, the Alabama Supreme Court adopted Rule 3.8(b)(1), Ala. R.Crim. P., which provides that, when necessary, a search warrant may be issued “based upon sworn testimony communicated by telephone” and thus, by necessity, the “written affidavit” may initially be replaced with the declarant’s sworn oral testimony. (Emphasis added.)

An “affidavit” is defined as: “[a] voluntary declaration of facts, written down and sworn to by the declarant before an officer authorized to administer oaths.” Black’s Law Dictionary 58 (7th ed.1999)(emphasis added).

“Although it has sometimes been contended that noncompliance with the oath or affirmation requirement is a mere technical irregularity that does not require suppression of the evidence obtained pursuant to the mistakenly issued search warrant, this is not the case....
“‘An oath is a matter of substance, not form, and it is an essential component of the Fourth Amendment and legal proceedings. The purpose of an oath or affirmation is to impress upon the swearing individual an appropriate sense of obligation to tell the truth. An oath or affirmation to support a search warrant reminds both the investigator seeking the search warrant and the magistrate issuing it of the importance and solemnity of the process involved. An oath or affirmation protects the target of the search from impermissible state action by creating liability for perjury or false swearing for those who abuse the warrant process by giving false or fraudulent information. An oath preserves the integrity of the search warrant process and thus protects the constitutionally guaranteed fundamental right of people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.’ ”

Wayne R. LaFave, Search and Seizure, A Treatise on the Fourth Amendment, § 4.3(e) (4th ed.2004)(footnotes omitted)(quoting State v. Tye, 248 Wis.2d 530, 636 N.W.2d 473 (2001)) (“[W]e do not extend the good-faith exception to a warrant issued on the basis of a statement that totally lacks an oath or affirmation.”).

Thus, because Officer Langley’s assertions were not presented under oath, they cannot be considered a valid substitute for a written affidavit as contemplated in Rule 3.8. Without an affidavit, there could be no valid search warrant. See, Anderson, supra.

The majority relied on the good-faith exception to the exclusionary rule set forth in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), to affirm the trial court’s denial of the motion to suppress. The good-faith exception to the exclusionary rule, announced in Leon, provides that evidence obtained pursuant to a facially valid search warrant that is later found to be invalid need not be excluded so long as the officers who executed the warrant acted in good faith and in objectively reasonable reliance on the warrant. The United States Supreme Court in Leon limited the application of the good-faith exception. The Court explained:

“Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth. Franks v. Delaware, 438 U.S. 154 (1978). The exception we recognize today will also not apply in cases where the issuing magistrate wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979); in such circumstances, no reasonably well trained officer should rely on the warrant. Nor would an officer manifest objective good faith in relying on a warrant based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’ Brown v. Illinois, 422 U.S. [590], at 610-611 [95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) ] (Powell, J., concurring in part); see Illinois v. Gates, supra, 462 U.S. [213], at 263-264 [103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ] (White, J., concurring in the judgment). Finally, depending on the circumstances of the particular case, a warrant may be so facially deficient — i.e., in failing to particularize the place to be searched or the things to be seized — that the executing officers cannot reasonably presume it to be valid. Cf. Massachusetts v. Sheppard, 468 U.S. [981, 988-991 (1984) ].”

Leon, 468 U.S. at 923.

I believe this case falls under the third enumerated situation above: “in such circumstances, no reasonably well trained officer should rely on the warrant. Nor would an officer manifest objective good faith in relying on a warrant based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’ ” Id. That circumstance prevents application of the good-faith exception in this case. I believe a reasonable police officer would know that he or she could not obtain a valid search warrant without submitting, under oath, the grounds establishing probable cause for requesting the warrant. Such a warrant would “lack indicia of probable cause” by virtue of the fact that it was not based on sworn testimony. In Anderson, supra, this Court considered whether an otherwise valid search warrant was rendered invalid because the officer who prepared the affidavit failed to sign it, and it held:

“It is also clear from the record in this case that the supporting affidavit, accompanying the search warrant issued to Sergeant Mancil Sharp on February 20, 1981, was not signed by the affiant, Sergeant Sharp. The search warrant based on this affidavit is, therefore, invalid and the rule of exclusion from the Mapp v. Ohio, 367 U.S. 643 (1961), decision should be applied to all evidence seized under the warrant.”

Anderson, 445 So.2d at 976. That the present case involves an oral request for a search warrant makes no difference. Where the affidavit is invalid, the warrant is invalid. The main opinion suggests that the necessity of a affidavit executed under oath, as set forth in Anderson is no longer relevant in determining the validity of a search warrant, because, “Anderson was decided by this Court before the United States Supreme Court issued its decision in Leon.” I disagree. Anderson expresses a necessity for obtaining a valid search warrant; Leon provides, in limited application, exceptions upholding a search conducted pursuant to an invalid search warrant. Anderson has not been overruled, and it remains precedent that we are bound to follow. It is the application of Anderson to the facts of this case that makes the main opinion’s analysis of this case under Leon necessary. However, the situation in this case involves an irregularity that could not have allowed an officer to execute the warrant in good faith.

The good-faith exception does not reform every invalid search warrant. The Alabama Supreme Court has often refused to apply the good-faith exception to the exclusionary rule. In Ex parte Green, 15 So.3d 489 (Ala.2008), Green alleged in a postconviction proceeding that he had been denied the effective assistance of counsel because counsel failed to challenge the validity of the search warrant and the evidence seized during the search. Green argued that the warrant authorizing the search was not based on probable cause because the affidavit did not state that underlying information was current. The Alabama Supreme Court in Ex parte Green held that the affidavit was facially defective and that the deficiency had not been cured by testimony from the officer who had prepared the affidavit, because the officer could not recall giving any additional information to the district judge who issued the warrant. Finally, the Court in Ex parte Green rejected the State’s argument that the evidence was admissible under the good-faith exception to the exclusionary rule and stated, in pertinent part:

“The application of and rationale for the good-faith exception are particularly inappropriate where, as here, the officer is executing a search warrant that depends on his own affidavit. It is ‘ “disingenuous, after having gone to [a district judge] with the paltry showing seen here, to suggest, as the [State] suggests, that at bottom it was the [district judge] who made the error and the search and seizure are insulated because the officer’s reliance on that error was objectively reasonable.’” Ball v. State, 868 So.2d 474, 475 (Ala.Crim.App.2003) (Cobb, J., dissenting) (quoting United States v. Zimmerman, 277 F.3d 426, 438 (3d Cir.2002)).”

Ex parte Green, 15 So.3d at 496-97.

The Alabama Supreme Court in Ex parte Green also discussed three cases decided by this Court that involved motions to suppress evidence discovered during searches conducted based on deficient warrants: Lewis v. State, 589 So.2d 758 (Ala.Crim.App.1991); Nelms v. State, 568 So.2d 384 (Ala.Crim.App.1990), and Thomas v. State, 353 So.2d 54 (Ala.Crim.App.1977). In each of those cases, this Court held that the warrants authorizing the searches had not been based on probable cause because the affidavits failed to contain sufficient information to allow a determination that the facts alleged were current rather than remote. The Green Court stated:

“In short, the affidavit is facially defective within the framework of Thomas, Nelms, and Lewis, and, moreover, is ‘so lacking indicia of probable cause’ that it does not satisfy the good-faith exception discussed in Nelms and Lewis. The affiant’s testimony reveals nothing about when any of the relevant activities took place, thus ‘render[ing] official belief in [the existence of probable cause] entirely unreasonable.’ Nelms, 568 So.2d at 388.”

Ex parte Green, 15 So.3d at 497.

The Green Court concluded:

“Given the glaringly defective affidavit, reasonably effective counsel would have challenged the search warrant and the admission of evidence obtained as a result of its execution. In failing to do so, Green’s trial counsel did not provide reasonably effective assistance.”

Ex parte Green, 15 So.3d at 497. See also Ex parte Parker, 858 So.2d 941 (Ala.2003) (reversing trial court’s denial of motion to suppress and declining to apply the good-faith exception when the affidavit supporting the search warrant was based on information the affiant knew was false); Ex parte Turner, 792 So.2d 1141 (Ala.2000) (rejecting application of the good-faith exception to the exclusionary rule because, at the time the warrant was issued, anticipatory searches were not authorized by statute or court rule); Ex parte Lemus, 802 So.2d 1073 (Ala.2001) (relying on Ex parte Turner and rejecting application of the good-faith exception to the exclusionary rule because, at the time the warrant was issued, anticipatory searches were not authorized by statute or court rule).

Based on all the foregoing, I do not believe that Officer Langley could, in good faith or with objective reasonableness, rely on a warrant issued where he presented unsworn assertions in support of the issuance of the warrant. The trial court’s judgment should be reversed. Therefore, I respectfully dissent.

      . Rule 3.8(b), Ala. R.Crim. P., sets forth the procedures to be followed when a search warrant is obtained by telephone. A discussion of those procedures is not necessary here. However, I note that the trial court did not comply with the procedure set forth in Rule 3.8(b), Ala. R.Crim. P.


source: Caselaw Access Project

author: KELLUM, Judge.

license: Public Domain

text:
    Allen HINKLE v. STATE of Alabama.
    CR-08-1778.
    Court of Criminal Appeals of Alabama.
    May 28, 2010.
    Rehearing Denied July 16, 2010.
    Certiorari Denied Jan. 7, 2011 Alabama Supreme Court 1091470.

      Douglas H. Scofield, Chelsea, for appellant.
    Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   On Application for Rehearing

KELLUM, Judge.

This Court’s opinion of March 26, 2010, is hereby withdrawn and the following opinion is substituted therefor.

The appellant, Allen Hinkle, was convicted of one count of murder, a violation of § 13A-6-2, Ala.Code 1975, and one count of attempted murder, a violation of §§ 13A-4-2 and 13A-6-2, AIa.Code 1975. The trial court sentenced Hinkle to life imprisonment for the murder conviction and to 99 years’ imprisonment for the attempted-murder conviction. Hinkle was also ordered to pay restitution and to pay an assessment to the Crime Victims Compensation Fund.

Because Hinkle does not challenge the sufficiency of the State’s evidence, a brief recitation of the facts will suffice. Hinkle was arrested and charged with murder for the shooting death of Caneshua Henry, the mother of Hinkle’s child, and with attempted murder for the nonfatal shooting of Caneshua Henry’s cousin, Kimyatta Henry. The shootings occurred early in the morning on October 5, 2008, at Kimyatta Henry’s apartment complex. Kimyatta testified that Hinkle went to Caneshua’s apartment the previous evening to bring diapers to Caneshua for her and Hinkle’s child. Kimyatta arrived at Caneshua’s apartment at approximately 11:00 p.m. that evening. When she arrived, Canesh-ua told her that Hinkle had “got into it with somebody in the breezeway.” (R. 87.) Kimyatta testified that Caneshua was upset with Hinkle because of this altercation and had ordered Hinkle to leave.

Kimyatta left Caneshua’s apartment a little while later; as she was walking to her car, Hinkle walked past her heading toward Caneshua’s apartment. A few moments later, Kimyatta heard a “pow” sound in the breezeway of the apartment. (R. 92.) Hinkle then approached her and said, “What? You trying to protect her?” and shot Kimyatta in the right cheek. (R. 92.)

Officer Tekulve Bowden of the Birmingham Police Department was patrolling the Center Point neighborhood of Birmingham when he was flagged down by Kimyatta outside the apartment complex in which the shootings occurred. Kimyatta informed Officer Bowden that Hinkle had shot her in the face and that he had killed Caneshua. Kimyatta pointed Officer Bow-den toward Hinkle, who was standing next to a car in the parking lot of the apartment complex, and Officer Bowden arrested Hinkle and placed him in the back of his police cruiser. According to Officer Bow-den, Hinkle — while he was in custody— made the following unsolicited statement: “Fuck this shit. She had it coming. She did me wrong. I was dead anyway. Give me the electric chair.” (R. 78-79.)

After both sides rested and the court instructed the jury on the applicable law, the jury found Hinkle guilty on all charges set out in the indictments. This appeal followed.

I.

On appeal, Hinkle argues that the trial court erred when it allowed the State to introduce testimony regarding an incident that occurred a few weeks before Caneshua Henry’s death in which Hinkle repeatedly hit Caneshua in the face. Specifically, Hinkle contends that the testimony was inadmissible evidence of a collateral bad act and that it was not admissible under the intent exception to Rule 404(b), Ala. R. Evid.

Before trial, the State filed notice of its intent to introduce evidence of an incident that had occurred on September 15, 2007, in which Hinkle allegedly assaulted Can-eshua Henry. At trial, outside the presence of the jury, Monica Henry, Canesh-ua’s sister, testified that approximately one month before Caneshua was killed, she visited Caneshua at her apartment to eat dinner and spend the night. Monica testified that while she and Caneshua were preparing dinner, Hinkle was “in and out” of the apartment. (R. 141.) Later, while Monica was showering, she heard Canesh-ua and Hinkle arguing. Caneshua came into the bathroom with Monica and asked her for her cellular telephone. Monica testified that Caneshua was angry and wanted to use Monica’s cellular telephone to call the police. Hinkle came into the bathroom, stood between the women and the bathroom door, and continued arguing with Caneshua. Caneshua told Hinkle to get out of the bathroom, and Hinkle became angry and hit Caneshua. Monica explained that Hinkle hit Caneshua multiple times in the face with a closed fist before she was able to break up the fight and that Caneshua’s face was bruised and swollen after the incident. Over Hinkle’s objection, the trial court ruled that evidence of the incident was admissible to prove Hinkle’s intent because intent was at issue in this case; it then allowed Monica to testify at trial about the incident.

“The admission or exclusion of evidence is a matter within the sound discretion of the trial court.” Taylor v. State, 808 So.2d 1148, 1191 (Ala.Crim.App.2000), aff'd, 808 So.2d 1215 (Ala.2001). “The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court’s determination on that question will not be reversed except upon a clear showing of abuse of discretion.” Ex parte Loggins, 771 So.2d 1093, 1103 (Ala.2000). This is equally true with regard to the admission of collateral-acts evidence. See Davis v. State, 740 So.2d 1115, 1130 (Ala.Crim.App.1998).

Rule 404(b), Ala. R. Evid., provides, in part, that “[ejvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” However, other-crimes evidence “may ... be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Rule 404(b), Ala. R. Evid.

Hinkle contends that because the jury could infer Hinkle’s intent to murder Can-eshua from Hinkle’s use of a deadly weapon in effectuating the murder, the State could not present evidence of a collateral offense in order to prove intent. The Alabama Supreme Court has recognized that a defendant’s use of a deadly weapon to kill a victim is sufficient to give rise to an inference that the defendant intended to kill the victim. See, Ex parte Burgess, 827 So.2d 193, 199 (Ala.2000) (“intent to kill may be inferred from the defendant’s act of using a deadly weapon”). Thus, by demonstrating that Hinkle used a handgun to shoot and kill Caneshua, the State produced sufficient evidence from which the jury could infer that Hinkle acted with the requisite intent to murder Caneshua Henry. However, this Court has held that once the inference has been created, the State may not present evidence of collateral offenses to support a showing of intent. See Hunter v. State, 802 So.2d 265, 269 (Ala.Crim.App.2000), quoting Brewer v. State, 440 So.2d 1155, 1159 (Ala.Crim.App.1983) (“ ‘When the element the State bears the burden of proof on can “be inferred from the act itself,” the State may not use extraneous offenses as circumstantial evidence of that element in its case in chief.’ ”) (citations omitted). Accordingly, the trial court erred in allowing the State to present testimony regarding the prior altercation between Hinkle and Caneshua as evidence of intent to commit the charged offense, pursuant to Rule 404(b), because the facts of the murder already gave rise to an inference of intent.

Nevertheless, we conclude that the admission of evidence of the prior altercation, although error, was harmless error. The harmless-error rule provides, in pertinent part:

“No judgment may be reversed or set aside ... on the ground of ... improper admission or rejection of evidence, ... unless in the opinion of the court to which the appeal is taken or application is made, after examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”

Rule 45, Ala. R.App. P.

In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the United States Supreme Court held that before the violation of certain constitutional rights can be held to be harmless, the appellate court must be able to declare a belief that it was harmless beyond a reasonable doubt. In Ex parte Crymes, 630 So.2d 125 (Ala.1993), the Alabama Supreme Court explained:

“In determining whether the admission of improper testimony is reversible error, this Court has stated that the reviewing court must determine whether the ‘improper admission of the evidence ... might have adversely affected the defendant’s right to a fair trial,’ and before the reviewing court can affirm a judgment based upon the ‘harmless error’ rule, that court must 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.”

630 So.2d at 126. See also, Ex parte Greathouse, 624 So.2d 208, 210 (Ala.1993)(holding that the proper harmless-error inquiry asks, absent the improperly introduced evidence, “is it clear beyond reasonable doubt that the jury would have returned a verdict of guilty”).

Moreover, this Court has previously held that in instances where testimony has been erroneously admitted into evidence, that testimony can be rendered harmless by the admission of lawful evidence that tends to demonstrate the same facts. In McNabb v. State, 887 So.2d 929 (Ala.Crim.App.2001), aff'd, 887 So.2d 998 (Ala.2004), the Alabama Supreme Court explained:

“ ‘ “[Testimony that may be inadmissible may be rendered harmless by prior or subsequent lawful testimony to the same effect or from which the same facts can be inferred.” ’ Jackson v. State, 791 So.2d 979, 1013 (Ala.Crim.App.), cert. denied, 791 So.2d 1043 (Ala.2000), cert. denied, 532 U.S. 934, 121 S.Ct. 1387, 149 L.Ed.2d 311 (2001), quoting White v. State, 650 So.2d 538, 541 (Ala.Crim.App.1994), overruled on other grounds, Ex parte Rivers, 669 So.2d 239 (Ala.Crim.App.1995). See also, Dawson v. State, 675 So.2d 897, 900 (Ala.Crim.App.1995), aff'd 675 So.2d 905 (Ala.1996) (‘The erroneous admission of evidence that is merely cumulative is harmless error.’); and Thompson v. State, 527 So.2d 777, 780 (Ala.Crim.App.1988) (‘Testimony which may be apparently illegal upon admission may be rendered prejudicially innocuous by subsequent or prior lawful testimony to the same effect or from which the same facts can be inferred.’).”

887 So.2d at 971.

Although the admission of the testimony of the prior altercation between Hinkle and Caneshua was improperly admitted into evidence, we cannot say that Hinkle was prejudiced to the point of calling into question the validity of his conviction. We have reviewed the record, and it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict even without the evidence of the prior altercation. Hinkle did not dispute that he shot and killed Caneshua. Kimyatta testified that moments before Hinkle shot her in the cheek, Hinkle said to her, “What? You trying to protect her?” (R. 92.) Officer Brown testified that while in custody, Hinkle made the unsolicited statement, “Fuck this shit. She had it coming. She did me wrong. I was dead anyway. Give me the electric chair.” (R. 78-79.) From these statements, the jury could have inferred that Hinkle intended to murder Caneshua.

Given the evidence presented at trial, the circuit court’s erroneous admission of testimony regarding the prior altercation did not affect the outcome of the trial, or otherwise prejudice a substantial right of Hinkle. See, Crymes, 630 So.2d at 126. Moreover, based on our review of the record, it is “clear beyond a reasonable doubt that the jury would have returned a verdict of guilty” regardless of the trial court’s erroneous admission of Monica Henry’s testimony regarding the prior altercation between Hinkle and Caneshua Henry. Greathouse, 624 So.2d at 210. See also, Chapman, supra. Therefore, any error on the part of the trial court was harmless, and no basis for reversal exists as to this claim.

II.

Hinkle also contends that the trial court committed reversible error when it failed to instruct the jury of all the lesser-included offenses available for his murder and attempted-murder charges. Specifically, Hinkle contends that there was ample evidence to support a jury instruction of manslaughter as a lesser-included offense of murder and for first-degree assault as a lesser-included offense of attempted murder.

“A trial court has broad discretion in formulating its jury instructions, providing those instructions accurately reflect the law and the facts in the case.” Ingram v. State, 779 So.2d 1225, 1258 (Ala.Crim.App.1999), citing Raper v. State, 584 So.2d 544 (Ala.Crim.App.1991). “ ‘The trial court’s refusal to give written requested charges does not constitute error when the charges are covered in the trial court’s oral charge, are confusing or misleading, are inapplicable or abstract, or are an incorrect statement of the applicable law.’ ” Toles v. State, 854 So.2d 1171, 1175 (Ala.Crim.App.2002), quoting Stout v. State, 547 So.2d 894, 898-99 (Ala.Crim.App.1988). In McNabb v. State, 887 So.2d 929 (Ala.Crim.App.2001), this Court explained:

“ ‘ “A court may properly refuse to charge on a lesser included offense only when (1) it is clear to the judicial mind that there is no evidence tending to bring the offense within the definition of the lesser offense, or (2) the requested charge would have a tendency to mislead or confuse the jury.” ’ Williams v. State, 675 So.2d 537, 540-41 (Ala.Crim.App.1996), quoting Anderson v. State, 507 So.2d 580, 582-83 (Ala.Crim.App.1987).
“ ‘ “Whether a crime constitutes a lesser-included offense is to be determined on a case-by-case basis.” Aucoin v. State, 548 So.2d 1053, 1057 (Ala.Crim.App.1989). “In determining whether one offense is a lesser included offense of the charged offense, the potential relationship of the two offenses must be considered not only in the abstract terms of the defining statutes but must also ... in light of the particular facts of each case.” Ingram v. State, 570 So.2d 835, 837 (Ala.Crim.App.1990) (citing Ex parte Jordan, 486 So.2d 485, 488 (Ala.1986); emphasis in original). See also Farmer v. State, 565 So.2d 1238 (Ala.Crim.App.1990).’
“Ford v. State, 612 So.2d 1317, 1318 (Ala.Crim.App.1992).”

887 So.2d at 974. Furthermore, § 13A-1-9(b), Ala.Code 1975, states that “[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense.”

With these principles in mind, we turn to Hinkle’s specific allegations.

A.

Hinkle argues that the trial court erred when it denied his request to instruct the jury on manslaughter as a lesser-included offense of murder. Specifically, Hinkle argues that sufficient circumstantial evidence existed to support such an instruction.

A person is not guilty of murder if “he or she was moved to act by a sudden heat of passion caused by provocation recognized by law, and before there had been a reasonable time for the passion to cool and for reason to reassert itself.” § 13A-6-2(b), Ala.Code 1975 (emphasis added). It is well settled that even where the defendant commits the killing as a result of a sudden heat of passion, an instruction on manslaughter is properly refused where there is no evidence indicating that sudden heat of passion was caused by a provocation recognized by law. Harrison v. State, 580 So.2d 73, 74 (Ala.Crim.App.1991). In Rogers v. State, 819 So.2d 643 (Ala.Crim.App.2001), we explained:

“Alabama courts have, in fact, recognized three legal provocations sufficient to reduce murder to manslaughter: (1) when the accused witnesses his or her spouse in the act of adultery; (2) when the accused is assaulted or faced with an imminent assault on himself; and (3) when the accused witnesses an assault on a family member or close relative.”

819 So.2d at 662.

The trial court found that Hinkle had failed to present evidence of provocation, saying, “There’s no self-defense. There’s no heat of passion ... there has been no testimony that this Court has received that in any way, shape, or form supports that this was an intentional act caused by provocation” (R. 229.) The trial court also stated, “From the testimony, as far as Ms. Caneshua Henry, it is my humble opinion that the testimony is either [Hinkle] intentionally caused her death, or he did not.” (R. 229.)

Hinkle claims that the facts surrounding the incident give rise to an inference that “something happened” that led Hinkle to shoot and kill Caneshua Henry in the heat of passion. (Hinkle’s brief, at 26.) Hinkle references factors present before and after the shooting, but offers no explanation as to what provocation gave rise to the fatal impulse that led Hinkle to kill Caneshua Henry. Thus, Hinkle has failed to show that he presented sufficient evidence at trial to demonstrate that he was provoked into killing Caneshua Henry by one of the impetuses recognized in law. Accordingly, the trial court correctly refused to instruct the jury on the lesser-included offense of manslaughter.

B.

Hinkle also argues that the trial court committed reversible error when it refused to instruct the jury on first-degree assault as a lesser-included offense of attempted murder. Specifically, Hinkle contends that sufficient evidence of “serious physical injury” existed that would support a conviction for first-degree assault.

Initially, the State argues that Hin-kle failed to preserve this issue for this Court’s review. The trial court held the following discussion regarding which instructions it would give to the jury concerning lesser-included offenses of attempted murder:

“THE COURT: Now, with respect to lesser included charges, on the attempted murder charge involving Ms. Kimyat-ta Henry, [defense counsel], would you like to be heard on that?
“[Defense counsel]: Well, Judge, I think that taking them in either order that there would be logic for including either attempted manslaughter—
“THE COURT: Well, there is no charge of attempted manslaughter, so we’re talking about attempted murder or perhaps an assault in the second degree. For my hearing of the evidence, assault in the first degree would require serious physical injury, and while her injuries were definitely — I don’t think they rise to the level of serious physical injury, [the State], so if you are requesting an assault in the second degree on Ms. Kimyatta Henry, I would agree to that.
“[Defense counsel]: Yes, ma’am.
“THE COURT: But now attempted anything else other than the attempted murder I don’t think is applicable because there was actually an injury, unless there’s something that I am missing, which is always a possibility.
“[Defense counsel]: Assault in the second degree. Judge, as a lesser included on the attempted murder charge?
“THE COURT: Yes, sir. All right. That would be attempted murder and assault in the second degree.”

(R. 227-28.) Hinkle did not immediately object to the trial court’s refusal to instruct the jury on first-degree assault. During the discussion of whether the trial court should instruct the jury on any lesser-included offense of murder, the following exchange took place:

“[Defense counsel]: Well, if you wouldn’t consider criminally negligent homicide [to be a lesser-included offense of murder], then manslaughter I would think certainly would be appropriate.
“THE COURT: But, [defense counsel], there has been no testimony that this Court has received that in any way, shape, or form supports that this was an intentional act caused by provocation or that this was a reckless act. I mean I understand that there’s legal argument to that effect, but I have to look at what came in on testimony. And the State’s witnesses said that he walked up and he shot her and then he turns to the other young woman and says, You were trying to warn her,’ or something to that effect, if the State’s case is to be believed. I heard nothing to indicate that it was reckless or nothing evidentiary wise, or that it was heat of passion.
“[Prosecutor], did you want to say something?
“[The State]: Judge, I think the State concurs with the Court that there was absolutely no testimony from the witness stand to suggest any type of provocation, any type of recklessness that would warrant any type of lesser included offense, specifically in the charge of murder of Ms. Caneshua Henry. And I think the Court is, of course, well versed and knows the law on that and has made an appropriate ruling in that case.
“THE COURT: Anything else you would like to put on the record, [defense counsel], about that? I would be more than happy to allow you to do that at this time.
“[Defense counsel]: Only my objection to not include a lesser included offense.”

(R. 229-230; emphasis added.)

It is well settled that issues raised for the first time on appeal are not preserved for appellate review. Woods v. State, 845 So.2d 843, 846 (Ala.Crim.App.2002); Meadows v. State, 773 So.2d 1053, 1054 (Ala.Crim.App.2000). Further,

“No party may assign as error the court’s giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge, unless the party objects thereto before the jury retires to consider its verdict, stating the matter to which he or she objects and the grounds of the objection.”

Rule 21.3, Ala. R.Crim. P. Thus, it appears from the record that Hinkle objected only to the trial court’s refusal to give an instruction for any lesser-included offense of murder, not for the trial court’s failure to include an instruction of first-degree assault as a lesser-included offense of attempted murder. Because Hinkle made no objection regarding the trial court’s attempted-murder instruction, the issue he now raises on appeal is not preserved for appellate review.

Moreover, even if Hinkle had properly preserved this issue for appellate review, we cannot say that the trial court erred in refusing a jury instruction on first-degree assault as a lesser-included offense of attempted murder. A person commits the crime of assault in the first degree if, with intent to cause serious physical injury to another person, he causes serious physical injury to any person by means of a deadly weapon or dangerous weapon. § 13A-6-20(a)(1), Ala. Code 1975. Section 13A-1-2(4), Ala.Code 1975, defines “serious physical injury” as “[pjhysical injury which creates a substantial risk of death, or which causes serious and protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of any bodily organ.”

Hinkle contends that the evidence presented at trial was sufficient to support a finding of “serious physical injury.” However, none of the evidence presented at trial demonstrated that Kimyatta’s injuries constituted “serious physical injury” as defined by § 13A-1-2(14). At trial, Kimyat-ta testified that Hinkle shot her in the right cheek; part of the bullet exited through her neck, and the other part remained lodged in her sinus area. Kimyat-ta did not realize that she had been shot until she felt the blood from the wound on her face. Kimyatta did not have surgery and denied having any long-term effects from the shooting. Additionally, medical records from Kimyatta’s hospital visit indicated that she was admitted to and released from the hospital on the same day. Thus, the trial court properly determined that there was not sufficient evidence to demonstrate the victim suffered “serious physical injury” required to support a conviction of first-degree assault. Accordingly, the trial court did not err when it denied Hinkle’s request to instruct the jury on first-degree assault as a lesser-included offense of attempted murder.

Based on the foregoing, the judgment of the trial court is due to be affirmed.

APPLICATION FOR REHEARING OVERRULED; OPINION OF MARCH 26, 2010, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

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