author: JOINER, Judge.

text:
    Tony Dean CONNELL v. STATE of Alabama.
    CR-11-1671.
    Court of Criminal Appeals of Alabama.
    June 7, 2013.
    Rehearing Denied Aug. 23, 2013.
    Certiorari Denied Oct. 11, 2013 Alabama Supreme Court 1121408.

      Matthew Bruce Alfreds' and John T. Kirk, Montgomery, for appellant.
    Luther Strange, atty. gen., and Ferris Stephens, asst. atty. gen., for appellee.
   JOINER, Judge.

Tony Dean Connell was convicted of driving under the influence, see § 32-5A-191(a)(2), Ala.Code 1975. The circuit court sentenced Connell to one month in jail. Additionally, the circuit court ordered Connell to pay a $600 fine and court costs, suspended Connell’s driver’s license for 90 days, and ordered Connell to complete the court-referral program.

Before trial Connell moved to suppress all the evidence in this case because, he said, (1) the driver’s license checkpoint (“the checkpoint”) at which Connell was stopped was unconstitutional; (2) “[t]he officers involved [with the checkpoint] did not act within the mandatory guidelines and procedures promulgated by the Alabama Department of Public Safety”; and (3) there “were no legal grounds to detain and subsequently require [Connell] to respond to questions, perform field tests and, thereafter, be directed to submit to a breath test.” (C. 23-24.)

On August 8, 2011, the circuit court held a hearing on Connell’s motion to suppress. At the hearing, the State introduced “State’s Exhibit 2,” which is the Alabama Department of Public Safety’s Policy Order number 25 (“policy order 25”) for “driver license/vehicle inspection.” (C. 163-65.) Policy order 25 details the procedures that are to be used during a checkpoint, including procedures regarding the location and time of a checkpoint, the method of inspection to be used at a checkpoint, and the records to be kept by law enforcement after a checkpoint. With regard to the method of inspection, policy order 25 states, in part:

“When conditions permit, all traffic should be stopped at checkpoints to facilitate adequate inspection of vehicles and driver license information. Troopers will conduct themselves in a professional manner and create the least amount of inconvenience to motorists as is possible.”

(C. 164.) The method-of-inspection section also details how the officers are to inspect each vehicle and, further, states that officers are to “[cjarefully observe drivers to determine if they are capable of safely operating the vehicle.” (C. 165.)

The State also introduced “State’s Exhibit 1” titled “Assignment List Attachment,” which was created by Sergeant Brent McElvaine and authorized the checkpoint at issue in this case. (C. 162.) The exhibit detailed the date and time the checkpoint was to occur, the location of the checkpoint, the personnel assigned to work the checkpoint, and the “special equipment/supplies needed for assignment.” Additionally, the exhibit identified Corporal Anthony Ricks as the “leader” of the checkpoint. The exhibit also set out the “work assignment special instructions” as follows:

“A seatbelt/equipment/DL checkpoint will be conducted in Montgomery County at Wasden Rd and Felder Rd from 8pm-12am. The goal is to reduce crashes by insuring motorist’s are operating vehicles safely, ensure seatbelt usage and to detect impaired drivers. Reduced crashes will result in a reduction in fatalities, injuries and property damage. Assigned personnel should report to Cpl Ricks at 8pm at the assigned location for staging and safety briefing.”

(C. 162.)

Additionally, the State presented testimony that established the following: On May 80, 2010, Sergeant Brent McElvaine, the Post Commander for the Montgomery Highway Patrol Post, organized a eheck-point at the intersection of Wasden Road and Felder Road in Montgomery County. Sergeant McElvaine stated that he organized this checkpoint for the “Take Back our Highway Initiative” and that it was one of several checkpoints that were operated as part of that initiative. Sergeant McElvaine stated that the goal of the checkpoint was to “reduce crashes in the post area” and that troopers were checking the drivers of the vehicles for a driver’s license and that they were also doing an equipment check. Sergeant McElvaine stated that he chose the location of the checkpoint because it was a high traffic area, which, he said, was known for traffic accidents, driving-under-the-influence arrests, and traffic citations.

Sergeant McElvaine stated that he provided the “Assignment List Attachment” to Corporal Anthony Ricks because, he said, Corporal Ricks was the supervising officer assigned to conduct the checkpoint. Sergeant McElvaine stated that, although he was not present at the checkpoint during its operation, he approved the checkpoint and selected the location of the checkpoint. Sergeant McElvaine further testified that he chose the time that the checkpoint was to begin — 8:00 p.m. — but agreed that it was a “target time” rather than a “strict” time.

On cross-examination, Sergeant McEl-vaine stated that no trooper could make changes to the checkpoint without his or Corporal Ricks’s approval. Sergeant McElvaine further stated that there was no advance notice of the checkpoint and that, even though policy order 25 mandates that a record detailing the events at a checkpoint be completed when a checkpoint is finished, no such record was completed for this checkpoint.

Corporal Anthony Ricks testified that he was in charge of the checkpoint conducted at the intersection of Wasden Road and Felder Road. Corporal Ricks stated that Sergeant McElvaine ordered the checkpoint and provided him with a copy of the operations plan for the checkpoint. Corporal Ricks testified that, although the plan indicated that the checkpoint was to begin at 8:00 p.m., he started the checkpoint between 7:30 p.m. and 8:00 p.m. Corporal Ricks stated that he started early because he “had 7 or 8 troopers sitting there ... [and he] figured it’s better to go ahead and start the checkpoint than just pay the guys to sit beside the road and do nothing.” (R. 22.)

Corporal Ricks described the intersection of Wasden Road and Felder Road as a “T” intersection and explained that they had a minimum of two cars on all three sides of the intersection. Corporal Ricks stated that each law-enforcement vehicle “had [its] blue lights activated” and that each trooper was wearing a yellow, reflective vest. (R. 23.)

Corporal Ricks stated that the procedure for the checkpoint was as follows:

‘What we do, usually there will be a line of troopers standing on the road. We ask for your driver’s license, proof of insurance, that sort of thing, check the tags on the car. If there’s not a problem with the license or insurance, the tags are good, we don’t detect any alcohol or see anything illegal in the car, we have them proceed on.”

(R. 24.) Corporal Ricks testified that sometimes during the checkpoint it becomes necessary to cease cheeking every vehicle because of

“[s]afety[;] [t]raffic will get backed up so far, I’ll stop ... the checkpoint and clear the roadway up before we have an accident. And then we’ll start back up again. But there’s no particular car or whatever. We just clear the total scene, get it totally cleared out and start over.”

(R. 25.) Corporal Ricks stated that this occurs when there is

“too much traffic on that road. It’s backed up. It’s going to back out into the main highway. Usually, what happens, some knuckleheads are impatient. They think it’s a wreck down there. They go to trying to U-turn, do different crazy stuff. So we try to clear it up.”

(R. 25.) Corporal Ricks stated that this safety precaution had to be done once during the checkpoint conducted on March 30, 2010. Corporal Ricks stated that, with the exception of clearing the heavy traffic at the checkpoint for safety reasons, every vehicle that approached the checkpoint was stopped and the same procedure was followed for each vehicle.

On cross-examination, Corporal Ricks stated that he did not have to strictly adhere to Sergeant McElvaine’s orders and that he could use his discretion when needed; for example, Corporal Ricks stated that he could begin the checkpoint at an earlier time or start the checkpoint at a later time. On redirect examination, Corporal Ricks stated that he also had discretion to determine whether it was unsafe to continue the checkpoint and to restart the checkpoint when the unsafe conditions ceased. Corporal Ricks further testified that, although the checkpoint began earlier than Sergeant McElvaine ordered, every vehicle that passed through the checkpoint was stopped — except those vehicles at the checkpoint when the checkpoint had to be cleared for safety reasons.

After the State presented its evidence, the following exchange occurred:

“[Connell’s counsel]: Judge, at this point, I don’t believe there are any further witnesses that would establish the road block. These are just officers that were working in the field. And my Motion to Suppress is that the road block is unconstitutional under the Fourth Amendment. The Supreme Court in every case in this state and other states have consistently held that guidelines have to be strictly followed. It doesn’t leave any — leaving no — discretion to the officers working in the field. [Corporal] Ricks and Sergeant McElvaine testified that the officers in the field can make changes, do what they need to do, use their discretion, start early, start late. So it’s obvious that the guidelines aren’t strictly followed in this case. He just said that he can make any changes that he deemed necessary. And that’s, exactly, what the Supreme Court says you can’t do.
“[Prosecutor]: — what I looked at in response to that, Judge, is that the arbitrariness that the courts have addressed is the arbitrary decision on which vehicles to stop which [Corporal] Ricks indicated was not left to their discretion. Once the checkpoint began, they stopped all cars, conditions permitting, which is what is permitted under their guidelines.”

(R. 36-37.) Thereafter, on August 9, 2011, the circuit court issued a written order denying Connell’s motion to suppress, and the case proceeded to trial.

At trial, the State’s evidence established that, on the evening of March 30, 2010, at approximately 7:52 p.m., Trooper Mary Ann Church stopped Connell as Connell approached the checkpoint. Trooper Church then asked Connell to produce his driver’s license and proof of insurance. Because Trooper Church was also in the process of working with another vehicle, however, Trooper Church asked Connell to pull off to the right-hand side of the road and asked Trooper Chadrick Bright to complete the checkpoint procedure on Connell. Trooper Church also told Trooper Bright that she could “smell an odor of alcohol coming from [Connell’s] vehicle.”

Trooper Bright approached Connell’s vehicle and observed a “box of beer” and a “partial Crown Royal bag” in the vehicle and could smell “the odor of alcohol coming from on or about [Connell].” Trooper Bright then asked Connell if he had been drinking, and, according to Trooper Bright, Connell stated that he had consumed “a couple of beers.” While speaking with Connell, Trooper Bright noticed that Connell had bloodshot eyes and slurred speech. Trooper Bright then asked Connell to exit his vehicle so that he could perform field-sobriety tests. When Connell exited the vehicle, Trooper Bright observed that Connell was “swaying from side-to-side” and “kept leaning on the car.”

Trooper Bright then instructed Connell on how to perform the following field-sobriety tests: the walk-and-turn test, the one-legged-stand test, and the finger-count test. According to Trooper Bright, Con-nell failed each of the field-sobriety tests. Trooper Bright then administered a portable breath test to Connell, which, he said, indicated the presence of alcohol on Con-nell’s breath. Trooper Bright then asked Connell “how much alcohol he really had,” to which, according to Trooper Bright, Connell replied that “he didn’t keep count ... [he] may have had four, five, six, seven.”

Trooper Bright then asked Connell about the alcohol that Trooper Bright had observed in the vehicle, and Trooper Bright had Connell remove the “box of beer” from the backseat. According to Trooper Bright, when the box of beer was removed from the backseat he observed a partially consumed open beer can behind the driver’s seat as well as a styrofoam cup, a bottle of Sprite, and a partially consumed bottle of Crown Royal. Trooper Bright, based on his observations, determined that Connell could not safely operate his vehicle and arrested Connell for driving under the influence.

Trooper Bright then took Connell to the Montgomery County Jail and, after explaining “implied consent” to Connell, attempted to administer the Draeger test to Connell to determine his blood-alcohol content; Connell, however, refused.

After the State rested, both parties presented closing arguments, and the circuit court charged the jury. The jury returned a guilty verdict for driving under the influence. Connell then filed a motion for a new trial, arguing that this Court’s decision in Ogburn v. State, 104 So.3d 267 (Ala.Crim.App.2012), mandated that the circuit court grant Connell’s motion to suppress. The circuit court, however, denied Connell’s motion for a new trial.

On appeal, Connell contends that the checkpoint at which he was stopped was unconstitutional because, he says, “an officer working in the field was conducting the checkpoint with unlimited discretion.” Specifically, Connell alleges that

“there was no evidence of a plan that placed explicit, neutral limitations on the conduct of the officers. In fact, the evidence presented established that no limitations were placed on the officers working in the field. Thus, the State failed to prove that the checkpoint at which Connell was stopped was reasonable under the Fourth Amendment.”

(Connell’s brief, p. 11.)

Initially, we recognize that

“ ‘ “[w]hen evidence is presented ore ten-us to the trial court, the court’s findings of fact based on that evidence are presumed to be correct,” Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994); “[w]e indulge a presumption that the trial court properly ruled on the weight and probative force of the evidence,” Bradley v. State, 494 So.2d 750, 761 (Ala.Crim.App.1985), aff'd, 494 So.2d 772 (Ala.1986); and we make “ ‘all the reasonable inferences and credibility choices supportive of the decision of the trial court.’ ” Kennedy v. State, 640 So.2d 22, 26 (Ala.Crim.App.1993), quoting Bradley, 494 So.2d at 761. “[A]ny conflicts in the testimony or credibility of witnesses during a suppression hearing is a matter for resolution by the trial court.... Absent a gross abuse of discretion, a trial court’s resolution of [such] conflict[s] should not be reversed on appeal.” Sheely v. State, 629 So.2d 23, 29 (Ala.Crim.App.1993) (citations omitted). However, “ ‘[wjhere the evidence before the trial court was undisputed the ore tenus rule is inapplicable, and the [appellate] Court will sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court’s application of the law to those facts.’ ” State v. Hill, 690 So.2d 1201, 1203 (Ala.1996), quoting Stiles v. Brown, 380 So.2d 792, 794 (Ala.1980). ““‘[W]hen the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court’s judgment.” ’ ” Ex parte Jackson, 886 So.2d 155, 159 (Ala.2004), quoting Hill, 690 So.2d at 1203, quoting in turn Ex parte Agee, 669 So.2d 102, 104 (Ala.1995). A trial court’s ultimate legal conclusion on a motion to suppress based on a given set of facts is a question of law that is reviewed de novo on appeal. See State v. Smith, 785 So.2d 1169 (Ala.Crim.App.2000).’ ”

C.B.D. v. State, 90 So.3d 227, 237 (Ala.Crim.App.2011) (quoting State v. Hargett, 935 So.2d 1200, 1203-04 (Ala.Crim.App.2005)).

This Court has long held that license checks, sobriety checkpoints, and roadblocks are not intrinsically unconstitutional. McInnish v. State, 584 So.2d 935, 936 (Ala.Crim.App.1991). In order for a checkpoint to be constitutionally permissible, the stop must be reasonable. Hagood v. Town of Town Creek, 628 So.2d 1057, 1059 (Ala.Crim.App.1993). In Cains v. State, 555 So.2d 290 (Ala.Crim.App.1989), this Court held that stops of vehicles at fixed checkpoints are reasonable if they are performed according to a neutral and objective plan, are supported by strong public interest, and are minimally intrusive to the individual being stopped. Essentially, the particular purpose or interest must sufficiently outweigh the invasion of privacy resulting from the checkpoint stop. See Hagood, 628 So.2d at 1062. In Cains, this Court adopted the balancing test set forth in Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), to determine whether a seizure is unreasonable. Cains, 555 So.2d at 294. This balancing test involves

“ ‘[a] weighing of [1] the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and [3] the severity of the interference with individual liberty.’ ”

Cains, 555 So.2d at 294 (quoting Brown, 443 U.S. at 50-51). The United States Supreme Court has extended the application of this balancing test beyond the traditional arrest situation to roadblock-type stops and specifically to “sobriety checkpoints.” Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 448-49, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990).

When evaluating the Brown three-prong balancing test, the United States Supreme Court has held that driver’s license checkpoints satisfy the first prong — that “the gravity of the public concerns served by the seizure” outweigh the Fourth Amendment interest of individuals. See Brown, 443 U.S. at 51, 99 S.Ct. 2637. As for the second factor — “the degree to which the seizure advances the public interest” — the Alabama Supreme Court has held:

“[Tjhere is no question that the public has an interest in making sure that drivers of vehicles are properly licensed and that the vehicles they are driving are registered and equipped with safety devices. The Court of Criminal Appeals stated in Hagood:
“ ‘ “The [S]tate[’s] interest in enforcing its registration and licensing laws and the difficulty in enforcing the laws by any other method” ... [has] been held sufficient to outweigh a minor intrusion upon persons stopped at roadblocks conducted for [that] purpose[ ].’ ”

Ex parte Jackson, 886 So.2d 155, 162 (Ala.2004) (quoting Hagood, 628 So.2d at 1060). Thus, both the first and second prongs of the analysis are satisfied; therefore, the constitutionality of a checkpoint turns on the third factor — “the severity of the interference with individual liberty.”

To analyze the third factor we must determine whether the officers conducted the checkpoint in a neutral and objective manner. Essentially, we must determine if the stop was “minimally intrusive to the individual motorist.” To make this determination this Court applies a 13-factor analysis:

“‘(1) The degree of discretion, if any, left to the officer in the field; (2) the location designated for the roadblock; (3) the time and duration of the roadblock; (4) standards set by superior officers; (5) advance notice to the public at large; (6) advance warning to the individual approaching motorist; (7) maintenance of safety conditions; (8) degree of fear or anxiety generated by the mode of operation; (9) average length of time each motorist is detained; (10) physical factors surrounding the location, type and method of operation; (11) the availability of less intrusive methods for combating the problem; (12) the degree of effectiveness of the procedure; and (13) any other relevant circumstances which might bear upon the test.’ ”

Cains, 555 So.2d at 296 (quoting State v. Deskins, 234 Kan. 529, 541, 673 P.2d 1174, 1185 (1983)). These 13 factors, however, are “not pivotal to determining whether a particular roadblock-type stop is ‘minimally intrusive’ ” but, instead, are “helpful considerations to take into account when determining whether the officers conducted the stop pursuant to an ‘objective standard.’ ” Ex parte Jackson, 886 So.2d at 163.

As stated above, Connell contends that the checkpoint at which he was stopped was unconstitutional because, he says, “an officer working in the field was conducting the checkpoint with unlimited discretion.” To support his claim on appeal, Connell cites this Court’s decision in Ogburn v. State, 104 So.3d 267 (Ala.Crim.App.2012); Ogburn, however, is distinguishable from this ease.

In Ogbum, Trooper Eric Salvador stopped Ogburn at a checkpoint and came to believe that Ogburn had been driving his vehicle under the influence of alcohol.

“Concerning the procedures that were used when a vehicle was stopped at the checkpoint, Trooper Salvador testified that, after a vehicle pulled up to the checkpoint, an officer would ask the driver to present his or her driver’s license and proof of insurance. If the driver could produce a valid license and proof of insurance and if the officer did not suspect that the driver was under the influence of alcohol, the vehicle was allowed to proceed through the checkpoint. Defense counsel asked Trooper Salvador: ‘If an automobile is approaching the roadblock and comes up to it and you notice that it’s one of our local circuit judges, did you have the authority and discretion to wave them on through and not ask for that?’ (R. 24.) Trooper Salvador responded: ‘I’d check everybody, sir.’ (R. 25.) Defense counsel then asked: ‘But did you have the discretion to wave them through?’ (Id.) Trooper Salvador responded: Tes, sir. I would assume so.’ (Id.)
“At trial, Corporal Jesse Thornton, a supervisor -with the Alabama State Troopers, was asked: ‘Do the troopers have any established policies in regards to establishing the checkpoint?’ (R. 6.) Corporal Thornton answered: ‘We do.’ (Id.) However, Corporal Thornton did not give any further testimony concerning those policies. Corporal Thornton further testified that he was involved with the checkpoint at which Ogburn was stopped on July 2, 2011. Corporal Thornton’s main duty that day was field supervision. Corporal Thornton stated that over the 4th of July weekend, the troopers conducted several sobriety checkpoints in an effort to deter drunk driving. Corporal Thornton determined the location of the checkpoint at which Ogburn was stopped. Corporal Thornton stated that he chose the location of the checkpoint based on safety and on the fact that the location was in a heavily traveled area. Corporal Thornton testified that the purpose of the checkpoint was to deter crashes caused by impaired drivers and to check for driver’s license and/or insurance violations. Corporal Thornton stated that the location was visible to motorists; that vehicles that were stopped at the checkpoint were able to pull out of the stream of traffic without causing significant interruption to the flow of traffic; and that the troopers used typical emergency equipment to warn oncoming motorists of the checkpoint. Corporal Thornton stated that the troopers working at the checkpoint were wearing reflective vests and were using flashlights. Corporal Thornton testified that approaching motorists could see the troopers’ vehicles and that the blue lights of the vehicles were flashing. Corporal Thornton stated that the officers stopped every vehicle that came through the checkpoint.
“The State introduced a ‘vehicle checkpoint’ form that documented the July 2 checkpoint. The form stated that Corporal Thornton approved the checkpoint, and the form was signed by him. The form further stated that the approved location for the checkpoint was on Friendship Road at Cherokee Trail in Elmore County. The form stated that the checkpoint started at 9:00 p.m. and ended at 11:00 p.m. and that the weather conditions during the checkpoint were clear and warm. The form also listed the officers who were assigned to the checkpoint and the enforcement activity that occurred at the checkpoint. Lastly, the form stated that it was submitted by Trooper Salvador. Corporal Thornton testified that the form was created after the checkpoint had ended but that the time and location of the checkpoint and the officers assigned to the checkpoint were determined before the checkpoint started.”

104 So.Sd at 268-69.

This Court, applying the above-discussed principles with regard to checkpoint stops, held that “the State did not carry its burden of proving the reasonableness of the checkpoint stop. Specifically, the State did not present evidence showing that the checkpoint was ‘carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.’ ” Ogburn, 104 So.3d at 274. Furthermore, this Court explained that,

“[a]lthough we hold today that a written plan is not required by the Fourth Amendment, we strongly suggest that having a previously established plan that is in writing before the execution of the checkpoint is the best practice. If no 'previously established written plan is submitted into evidence, a witness for the State must specifically articulate the full details of the previously established plan that limits the discretion of the individual officers at the checkpoint in accordance with Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979).”

Ogburn, 104 So.3d at 275 (emphasis added). Thus, Ogbum stands for the proposition that the State, in sobriety-checkpoint challenges, has the burden of establishing the existence of a “plan embodying explicit, neutral limitations on the conduct of individual officers,” 104 So.3d at 274, and that the State may do so by either submitting a previously established written plan into evidence or by eliciting oral testimony of a witness who can “articulate the full details of the previously established plan.” 104 So.3d at 275.

Although Connell contends that his “case involves a checkpoint almost identical to the one in Ogbum,” here, unlike in Ogbum, the State introduced evidence of a previously established written plan and also introduced testimony articulating the details of the written plan.

Specifically, the State introduced policy order 25, which details the procedure for conducting a checkpoint, including regulations regarding the location and time of the checkpoint, the method of inspection to be used at the checkpoint, and the records to be kept by law enforcement after a checkpoint. With regard to the method of inspection, policy order 25 provides, in part, as follows:

“When conditions permit, all traffic should be stopped at checkpoints to facilitate adequate inspection of vehicles and driver license information. Troopers will conduct themselves in a professional manner and create the least amount of inconvenience to motorists as is possible.”

(C. 164.) The method-of-inspection section also details how the officers are to inspect each vehicle and, further, provides that officers are to “[c]arefully observe drivers to determine if they are capable of safely operating the vehicle.” (C. 165.)

The State also introduced a document entitled “Assignment List Attachment,” which was created by Sergeant McElvaine and authorized the checkpoint at issue in this case. (C. 162.) The document set out the date and time the checkpoint was to occur, the location of the checkpoint, the personnel assigned to work the checkpoint, the “special equipment/supplies needed for assignment,” and the purpose of the checkpoint. Additionally, the exhibit identified Corporal Ricks as the “leader” of the checkpoint.

In addition to the written guidelines for the checkpoint at issue in this case, the State presented oral testimony from Corporal Ricks. Corporal Ricks testified that Sergeant McElvaine ordered the checkpoint and provided him with a copy of the operations plan for the checkpoint. Corporal Ricks explained that the intersection of Wasden Road and Felder Road is a “T” intersection and that they had a minimum of two cars on all three sides of the intersection. Corporal Ricks further stated that each law-enforcement vehicle at the checkpoint “had [its] blue lights activated” and that each trooper was wearing a yellow, reflective vest. (R. 23.) Corporal Ricks stated that, at some point during the checkpoint, he ordered that all the cars currently in the checkpoint be allowed to proceed through the checkpoint without stopping because of

“[s]afety[;] [t]raffic will get backed up so far, I’ll stop ... the checkpoint and clear the roadway up before we have an accident. And then we’ll start back up again. But there’s no particular car or whatever. We just clear the total scene, get it totally cleared out and start over.”

(R. 25.) That occurred, he said, because there was

“too much traffic on that road. It’s backed up. It’s going to back out into the main highway. Usually, what happens, some knuckleheads are impatient. They think it’s a wreck down there. They go to trying to U-turn, do different crazy stuff. So we try to clear it up.”

(R. 25.) Corporal Ricks stated that, -with the exception of clearing the heavy traffic at the checkpoint for safety reasons, every vehicle that approached the checkpoint was stopped and the same procedure was followed for each vehicle.

Although Connell correctly recognizes that Corporal Ricks began the checkpoint before the stated time in the written guidelines and that Corporal Ricks stated that he had discretion to keep the checkpoint open longer than authorized, those facts, alone, are not sufficient to establish that the checkpoint was not carried out pursuant to a “plan embodying explicit, neutral limitations on the conduct of individual officers.” Ogburn, 104 So.3d at 274.

For example, the checkpoint at issue in Cains v. State, supra, was upheld as constitutional even though “officers in the field” — not a supervising officer — chose the “site, time, and duration of the roadblock.” 555 So.2d at 297. In Cains, this Court explained:

“While the operation of a roadblock undoubtedly bears on its reasonableness, reliance on the purely mechanical aspects of roadblock operation can lead to results which appear to elevate form over substance. For example, some courts have found roadblock stops invalid because, among other things, safety devices such as ‘flares, flashing lights or signs’ were not used. See, e.g., Jones v. State, 459 So.2d 1068, 1079 (Fla.Dist.Ct App.1984). Other courts have upheld roadblocks in part because safety measures such as approach signs and traffic cones were employed, see, e.g., State v. Superior Court In and For Pima County, 143 Ariz. 45, 691 P.2d 1073, 1076 (1984).
“While such considerations are not totally irrelevant to the reasonableness of a roadblock, neither are they pivotal to its constitutionality. As the Supreme Court observed in [United States v.] Martinez-Fuerte, ‘Many incidents of checkpoint operation ... must be committed to the discretion of [law enforcement] officials.’ 428 U.S. [543] at 560 n. 13, 96 S.Ct. [3074] at 3084 n. 13 [(1976) ].
“In our judgment, roadblocks operated pursuant to an objective and neutral plan of briefly halting all oncoming traffic are only minimally intrusive to the individual motorist and are thus constitutionally reasonable seizures. The primary reason that the random stops in [United States v.] Brignoni-Ponce [, 422 U.S. 873 (1975),] and [Delaware v.] Prouse [, 440 U.S. 648 (1979),] were condemned, while the checkpoint operations in Martinez-Fuerte and [Brown v. Texas, 443 U.S. 47 (1979),] were approved, had little to do with the relatively minor mechanical operation of either kind of seizure. The approved stops were upheld because they were conducted pursuant to an ‘objective standard,’ Delaware v. Prouse, 440 U.S. at 661, 99 S.Ct. at 1400, and because they ‘both appealed] to and actually involve[d] less discretionary enforcement activity,’ Martinez-Fuerte, 428 U.S. at 559, 96 S.Ct. at 3083. The condemned stops were invalidated because they involved the ‘standardless and unconstrained discretion’ of officers in the field, Delaware v. Prouse, 440 U.S. at 661, 99 S.Ct. at 1400.”

Cains, 555 So.2d at 296. This Court further explained that “in Delaware v. Prouse the [United States Supreme] Court did not insist on a total absence of discretion by officers in the field. Instead, it ‘insisted that the discretion of the official in the field be circumscribed, at least to some extent.’ 440 U.S. at 661, 99 S.Ct. at 1400 (emphasis added).” Cains, 555 So.2d at 297.

Although there was evidence indicating that Corporal Ricks had the authority to exercise limited discretion at the checkpoint, based on the facts presented at the suppression hearing, the circuit court did not err in determining that the checkpoint was valid and constitutional. Corporal Ricks’s discretion was limited when Sergeant McElvaine selected the location of the checkpoint and the purpose of the checkpoint and was further limited by the guidelines set forth in policy order 25, which states:

“When conditions permit, all traffic should be stopped at checkpoints to facilitate adequate inspection of vehicles and driver license information. Troopers will conduct themselves in a professional manner and create the least amount of inconvenience to motorists as is possible.”

(C. 164.) Thus, policy order 25 required that every vehicle that passed through the checkpoint be stopped, so long as “conditions permit.” When Corporal Ricks made the decision to clear the checkpoint for “safety,” he was merely exercising the limited discretion afforded him through policy order 25. Policy order 25 also limited Corporal Ricks’s discretion because it set forth the details as to how the officers are to inspect each vehicle. (C. 165.)

Based on the record, the circuit court properly determined that the checkpoint in this case was operated in a neutral and objective manner, and the circuit court did not err in denying Connell’s motion to suppress. Therefore, the judgment of the circuit court is affirmed.

AFFIRMED.

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

      . Sergeant McElvaine clarified on redirect examination that, although he selects the location of the checkpoint, creates a plan of operation for the checkpoint, and appoints a supervisor for the checkpoint, the checkpoint supervisor is given the authority, under policy order 25, to make changes "[i]f conditions out in the field dictate that certain decisions have to be made” without first seeking Sergeant McElvaine’s approval.

      . Moreover, 1 of the 13 factors set forth in Cains is the "maintenance of safety conditions.” When Corporal Ricks cleared the checkpoint, he did so to maintain safety.


source: Caselaw Access Project

license: Public Domain

text:
    Tony Martrell HOOKS v. STATE of Alabama.
    CR-11-0440.
    Court of Criminal Appeals of Alabama.
    June 7, 2013.

      Lindsay C. Ronilo, Montgomery, for appellant.
    Luther Strange, atty. gen., and Tracy M. Daniel, asst. atty. gen., for appellee.
   JOINER, Judge.

Tony Martrell Hooks appeals his convictions and sentences for one count of first-degree robbery, see § 13A-8-41, AIa.Code 1975, and two counts of second-degree robbery, see § 13A-8^12, Ala.Code 1975. We affirm Hooks’s convictions, but remand this case for the circuit court to reconsider the execution of Hooks’s sentences, which the circuit court split.

Hooks does not challenge the sufficiency of the evidence on appeal; thus, this Court need not provide in extensive detail the facts underlying Hooks’s convictions. In July 2011, Hooks was indicted for three counts of first-degree robbery related to a March 2011 incident in the parking lot of Eastdale Mall in Montgomery. Specifically, it was alleged that Hooks, who was then 17 years old — along with three other individuals — robbed three boys between the ages of 12 and 15, and that Hooks represented during the robberies that he was armed. (R. 25, 33; 67, 74; 196, 205.) Approximately $100 was taken from the victims.

During closing argument, Hooks’s trial counsel argued as follows:

“Or, and/or accomplice — the Judge will read it; it’s a lot of words — was armed and/or represented himself to be armed, either him and/or an accomplice — which, here, based on my client’s own statement, his own statement, says that McCants [another participant in the robbery] says ‘I’ll kill you or I’ll shoot you. Give it up.’ I submit to you that was a joke. I submit to you — now they’re going to tell you that all two or three people said that. Well, that just helps their cause. They [the victims] didn’t tell the Corporal that that night at all.
“Just tell the truth. Just say what you told Corporal Davis. That my client when he goes out there knows because he’s been around his cousin that night— remember, they went and bought food or something out in the mall, and he didn’t have any money, and so they go out there. Does he think his cousin is joking? Yes. He’s been with him all night. And he sits there and he says that and his hands are in his pocket, and, God, I forgot that was a crime.
“Mr. McCants, now, he might have thought he was being serious, but what did my client think? What did my client think?
“I do think this was milk money gone astray. I do. I think that these boys were out there, these older boys and older boys were out there with them, and they got into words about taking money, and I think that they had some money taken from them. I don’t think they’re making that part up.”

(C. 318-20 (emphasis added).) During rebuttal, the State argued as follows:

“Thank you. Your Honor. It’s insulting and it’s a joke, ladies and gentlemen. Essentially, what Mr. White is telling you is if you happen to be in the East-dale Mall parking lot at about 11:30 at night and some guys come up to you and say I’ve got a gun, give it up, don’t call the cops because it’s a joke.
“If they’re 18, 19, 16,15 years old and they do it to you, don’t even bother.
“[Defense counsel]: Judge, that is highly inappropriate.
“[State’s attorney]: That—
“[Defense counsel]: I didn’t finish.
“THE COURT: Go ahead, [defense counsel].
“[Defense counsel]: I’d like for you at this time to declare a mistrial. What the State of Alabama is doing is putting these 12 folks out there and saying if they do it to you, if you’re out there— and I know she hasn’t been doing it a long time, but that’s highly inappropriate to put a jury in the place out there and sit there and go if this happens to you, a/k/a, go convict him so he can’t get out there and when they go shopping, sit there and do it to them.
“So at this point. Judge, I’d ask for a mistrial.
“THE COURT: And we’re not going to have one. And, again, ladies and gentlemen, what these lawyers are saying — you’ve already heard the evidence in this case. They’re merely telling you what they think the evidence has shown. What they are saying is not evidence in this case. You’ve already heard the evidence.
“So, [State’s attorney], tell them what you think the evidence has shown in this case.
“[State’s attorney]: Thank you. Your Honor. [Defense counsel] says these boys were out having a good time at the movies and good for them, he said, but that doesn’t mean his client is guilty. He’s right about that.
“I don’t have a crystal ball. I guess [defense counsel] does. He told you it didn’t happen, did not happen, and it was all a joke.
“It wasn’t a joke, ladies and gentlemen. What happened to [the victims] was not a joke. They were terrified.
“No weapon was found. No money was found. It doesn’t matter. That man, as the evidence has shown you, is guilty of robbing [the victims]. And I ask that you deliberate, you take their testimony into consideration, the defendant’s statement into consideration, and you deliver the only verdict that is just in this case. This is not milk money taken at school. This is serious business, ladies and gentlemen, and it’s robbery in the first degree. Thank you.”

(C. 325-332.)

Hooks was found guilty of one count of first-degree robbery and two counts of second-degree robbery. He was sentenced to 3 concurrent 20-year sentences; those sentences, however, were split, and Hooks was ordered to serve “up to three years” in the custody of the Alabama Department of Corrections, followed by 3 years’ probation. Additionally, Hooks was ordered to pay court costs and a $50 crime victims compensation assessment in each case. (C. 3-4.) Hooks now appeals.

On appeal, Hooks’s sole argument is that “[w]hether the improper argument offered by the State, in closing, unjustly influenced the jury’s verdict.” (Hooks’s brief, p. 1.) In response, the State asserts that Hooks’s argument fails to comply with Rule 28(a)(10), Ala. R.App. P., and, further, that his argument is without merit. We agree with the State.

“In general, the trial court has broad discretion in controlling closing arguments.” Robinson v. State, 439 So.2d 1328, 1330 (Ala.Crim.App.1983) (citations omitted). “[A] prosecutor is allowed during closing argument to draw reasonable inferences from the evidence presented. In evaluating allegedly prejudicial remarks by the prosecutor in closing argument, the court must judge each case on its own merits, and evaluate the remarks in the context of the entire trial.” Bonner v. State, 921 So.2d 469, 473 (Ala.Crim.App.2005). Further, “[a] prosecutor has a right based on fundamental fairness to reply in kind to the argument of defense counsel.” DeBruce v. State, 651 So.2d 599, 609 (Ala.Crim.App.1993) (citing Ex parte Rutledge, 482 So.2d 1262, 1264 (Ala.1984)).

“The rule in Alabama is that remarks or comments of the prosecuting attorney, including those which might otherwise be improper, are not grounds for reversal when they are invited, provoked, or occasioned by accused’s counsel and are in reply to or retaliation for his acts and statements.” Minor v. State, 914 So.2d 372, 424-25 (Ala.Crim.App.2004) (quotations and citations omitted).

“Replies in kind are generally permissible. Pittman v. State, 153 Ala. 1, 45 So. 245 (1907); Bates v. State, 468 So.2d 207 (Ala.Crim.App.1985). Allowing replies in kind rests within the discretion of the trial court, McCullough v. State, 357 So.2d 397 (Ala.Crim.App.1978), and wide latitude is usually given regarding replies in kind. Richardson v. State, 354 So.2d 1193 (Ala.Crim.App.1978); Evans v. State, 338 So.2d 1033 (Ala.Crim.App.1976); Lane v. State, 46 Ala.App. 637, 247 So.2d 679 (1971); Moody v. State, 40 Ala.App. 373, 113 So.2d 787 (1959); Windham v. State, 35 Ala.App. 547, 50 So.2d 288 (1950); Gills v. State, 35 Ala. App. 119, 45 So.2d 44, cert. denied, 253 Ala. 283, 45 So.2d 51 (1950); York v. State, 34 Ala.App. 188, 39 So.2d 694 (1948), cert. denied, 252 Ala. 158, 3[9] So.2d 697 (1949); Walker v. State, 33 Ala.App. 614, 36 So.2d 117 (1948). ‘When the door is opened by defense counsel’s argument, it swings wide, and a number of areas barred to prosecutorial comment will suddenly be subject to reply. What otherwise would have been improper argument by the prosecutor will be seen as harmless.’ DeFoor, Prosecutorial Misconduct in Closing Argument, 7 Nova L.J. 443, 469-70 (1982-83).”

Davis v. State, 494 So.2d 851, 854-55 (Ala.Crim.App.1986).

“Alabama courts have repeatedly held that a mistrial is a drastic remedy; it is to be used sparingly and only to prevent manifest injustice. The decision whether to grant a mistrial rests within the sound discretion of the trial court and the court’s ruling will not be overturned absent a manifest abuse of that discretion.” Bonner, 921 So.2d at 473.

The citation to and reliance on legal authority in Hooks’s appellant brief is, in total, as follows:

“In order to warrant reversal, an improper argument must be relevant to the issues at trial, or its natural tendency must be to influence the jury. Stanley v. State, CR-06-2236, .... (Ala.Crim.App., Apr. 29, 2011), citing, Mitchell v. State, 480 So.2d 1254, 1257-58 (Ala.Crim.App.1985).”

(Hooks’s brief, p. 8.) The State argues— and we agree — that Hooks’s argument fails to comply with Rule 28(a)(10), Ala. RApp. P. (State’s brief, p. 9-10.)

“Rule 28(a)[ (10) ], Ala. R. App. P., ... requires parties to include in their appellate briefs an argument section with citations to relevant legal authorities and to portions of the record relied on in their claims for relief.” Hamm v. State, 913 So.2d 460, 486 (Ala.Crim.App.2002). “The purpose of Rule 28, Ala. R.App. P., outlining the requirements for appellate briefs, is to conserve the time and energy of the appellate court and to advise the opposing party of the points he or she is obligated to make.” Ex parte Borden, 60 So.3d 940, 943 (Ala.2007). “ ‘ “It 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.” ’ ” Ex parte Borden, 60 So.3d 940, 943 (Ala.2007) (quoting Butler v. Town of Argo, 871 So.2d 1, 20 (Ala.2003), quoting in turn, Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994)).

“Authority supporting only ‘general propositions of law’ does not constitute a sufficient argument for reversal.” Hodges v. State, 926 So.2d 1060, 1074 (Ala.Crim. App.2005). We conclude by recognizing that arguments that do not comply with Rule 28(a)(10), Ala. R.App. P., are deemed waived. See Egbuonu v. State, 993 So.2d 35, 39 (Ala.Crim.App.2007) (“Therefore, as to this issue Egbuonu has failed to comply with Rule 28(a)(10), and the issue [is] deemed to be waived.”).

In support of his argument that he is entitled to a reversal based on the statements by the State in its rebuttal argument, Hooks cites only one case for a general proposition of law; this is insufficient to support his appellate argument, and the argument is deemed waived. See Hodges, 926 So.2d at 1074 (holding that an argument is deemed waived by an appellant who “cite[d] to only a single case for [a] general proposition”).

Moreover, Hooks’s argument is without merit. The State argues—and we agree—that “the prosecutor’s remarks in rebuttal closing argument were nothing more than a reply-in-kind to Hooks’s argument that what he and his accomplices did that night was only a joke or prank.” (State’s brief, p. 16.) Further, we agree with the State that, when taken in context, “the prosecutor was making the point that this was not a laughing matter, and her comments certainly did not urge the jurors to place themselves in the victims’ shoes or imply that if the defendant was not convicted, he might rob them in the mall parking lot one day.” (State’s brief, p. 17.) Accordingly, the circuit court exercised sound discretion when it denied Hooks’s motion for a mistrial, and Hooks is not entitled to relief on appeal. Davis, 494 So.2d at 854-55.

Although neither party raises this issue, we note that the manner in which the circuit court split Hooks’s sentence is illegal. Hooks was sentenced to 3 concurrent 20-year sentences; those sentences, however, were split, and Hooks was sentenced to serve “up to three years” in the custody of the Alabama Department of Corrections. In “cases involving an imposed sentence of greater than 15 years, but not more than 20 years, the sentencing judge may order that the convicted defendant be confined in a prison, jail-type institution, or treatment institution for a period not exceeding five years, but not less than three years ...” § 15-18-8(a)(l), Ala.Code 1975. The circuit court’s sentencing order—which purports to allow Hooks to serve less than the mandatory minimum of a 20-year split sentence—is improper. See generally Moore v. State, 871 So.2d 106, 109 (Ala.Crim.App.2003) (“The 20-year sentence itself ... was within the statutory sentencing range ... and was, therefore, a valid sentence. Only the manner in which the trial court split the sentence is illegal.” (Quotations and citations omitted.)).

“Therefore, we must remand this case for the circuit court to conduct another sentencing hearing and to reconsider the execution of [Hooks’s] 20-year sentence. Because the 20-year sentence was valid, the circuit court may not change it. See Wood v. State, 602 So.2d 1195 (Ala.Crim.App.1992). However, the court may either split the sentence in compliance with § 15-18-8, i.e., ordering no more than 5 years and no less than 3 years in confinement followed by a definite period of probation, or, if it determines that splitting the sentence is no longer appropriate, it may reinstate the full 20-year sentence.”

Moore, 871 So.2d at 109-110. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 42 days after the release of this opinion. The return to remand shall include a transcript of the proceedings conducted on remand.

For the foregoing reasons, we affirm Hooks’s convictions but remand this case to the circuit court for it to reconsider the execution of Hooks’s split sentences.

AFFIRMED IN PART; REMANDED WITH INSTRUCTIONS.

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


author: PER CURIAM. JOINER, Judge, WELCH, Judge,

text:
    Travis STOREY v. STATE of Alabama.
    CR-09-1628.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 2013.
    Travis Storey, pro se.
    Luther Strange, atty. gen., and Tracy M. Daniel, asst. atty. gen., for appellee.
   On Return to Remand

PER CURIAM.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WINDOM, P.J., and KELLUM, J., concur. JOINER, J., concurs specially, with opinion. WELCH, J., concurs in part; dissents in part, with opinion, which BURKE, J., joins.

JOINER, Judge,

concurring specially..

I write specially to provide additional reasons for affirming the circuit court’s denial of Travis Storey’s claim that the circuit court “erred to the degree of reversible error when it conducted an arraignment in [his] case without [him] being represented by councel [sic].” (Storey’s brief, p. 21.) ,

The relevant procedural history in this matter is as follows: In August 2003, the Calhoun County Grand Jury indicted Sto-rey on two counts of attempted murder, see §§ 13A-4-2 and 13A-6-2, Ala.Code 1975. On January 7, 2004, Storey appeared before the circuit court for an “initial appearance” at which Storey informed the circuit court that “he [was] talking [with] Merrill Vardaman re[garding] representation of counsel.” (Record on Return to Remand, C. 51.) Thereafter, on January 9, 2004, the circuit court issued an order setting arraignment for January 27, 2004'. (Record on Return to Remand, C. 51.) On January 27, 2004, Storey appeared before the circuit court and the following occurred:

“THE COURT: We’ll come to order. Matters before the Court set for this morning are cases CC 2004-003 and 004, each styled State of Alabama versus Travis Storey, S-T-O-R-E-Y. You are Travis Storey?
“[Storey]: (Nodding head up and down.)
“THE COURT: Yes or no?
“[Storey]: (Pointing to Attorney Jack Draper.)
“MR. DRAPER: Pm not representing you.
“THE COURT: He doesn’t represent ■you at this point. You are Travis Sto-rey; is that correct?
“[Storey]: Who is representing me?
“THE COURT: Right now you represent yourself.
“[Storey]: I thought you were going to appoint him.
“THE COURT: Well, I might at a point, if it gets to the point you ask me to and I find you to be indigent. But that hasn’t happened yet.
“[Storey]: Shouldn’t I be with my attorney if Pm here?
“THE COURT: Once you have an attorney.
“[Storey]: So I’m just going through this and I ain’t got an attorney. I don’t understand it. What’s your name?
“THE COURT: It’s going to be a starting point, Mr. Storey. And we start by ascertaining that I have your name correct. Travis Storey is your correct name?
“[Storey]: (Nodding head up and down.)
“THE COURT: Yes or no?
“[Storey]: (Nodding head up and down.)
“THE COURT: You need to speak out so she can take that down (referring to Court Reporter).
“MR. DRAPER: You need to answer out.
“[Storey]: (Nodding head up and down.)
“THE COURT: That’s not an answer.
“MR. DRAPER: Verbally, you need to answer ‘yes’ or ‘no.’
“[Storey]: Are you going to represent me?
“MR. DRAPER: If the judge appoints me to represent you, yes, sir.
“[Storey]: You gave me your card (indicating to business card). What’s your name?
“MR. DRAPER: Jack Draper.
“[Storey]: Jack Draper.
“THE COURT: Is Travis Storey your correct name?
“[Storey]: (Nodding head up and down.)
“THE COURT: You need to answer out loud, ‘yes’ or ‘no.’
“[Storey]: I got to have a lawyer first. I mean, you ain’t appointed me a lawyer. Ain’t this arraignment?
“THE COURT: I’ve got to know who you are first, but you don’t want to answer that.
“[Storey]: I don’t understand.
“THE COURT: You don’t understand? You don’t understand whether you are Travis Storey or not?
“[Storey]: (Nodding head up and down.)
“THE COURT: You’re nodding ‘yes.’ Do you understand that?
“[Storey]: (Nodding head up and down.)
“THE COURT: Is Travis Storey your correct name?
“[Storey]: (Nodding head up and down.)
“THE COURT: I show you’re nodding ‘yes,’ and I’ll put that down as a ‘yes.’
“Mr. Storey, do you have an attorney at this point who represents you? Have you hired an attorney?
“[Storey]: You hired me one — you hired me one before I got here.
“THE COURT: No, not yet.
“[Storey]: Oh, you didn’t appoint Mr. Draper?
“THE COURT: If you’re indigent I said that I would.
“[Storey]: Sir?
“THE COURT: I’ve got to find that you’re indigent first.
“[Storey]: Which means?
“THE COURT: Which means you don’t have the money to hire an attorney.
“Have you hired an attorney to represent you?
“[Storey]: (No response.)
“THE COURT: Up to now have you?
“[Storey]: (Shakes head from side to side.)
“THE COURT: You’re shaking ‘no.’
“[Storey]: You my attorney?
“MR. DRAPER: Right now you have not hired me.
“[Storey]: You want your card?
“MR. DRAPER: No, sir, you have not hired me. The judge is going to get to that point in a second. Just right now you have not hired an attorney.
“[Storey]: So I’m going to trial right here.
“THE COURT: Unless you plead guilty down the road you will.
“[Storey]: Can I ask you something?
“MR. DRAPER: I’ll ask you — this is all being taken down on the record right now. Don’t say anything about the facts of the case.
“[Storey]: I understand that.
“MR. DRAPER: Okay.
“[Storey]: But I’m having arraignment; right? I just got locked up. And I ain’t even been to no preliminary hearing. I mean, how is that possible, you know? How can I — I’ve been thrown in without being legally first — do you understand? By procedure I should go to the preliminary hearing. And here it is today, I’m like going through arraignment and all this and I haven’t had none of this.
“THE COURT: Well, Mr. Storey—
“[Storey]: — I don’t understand. I mean—
“THE COURT: You and I went through this at your initial appearance hearing on January the 7th. And I explained to you—
“[Storey]: — When?
“THE COURT: — you had been indicted by the Grand Jury. And once you were indicted you do not have a right to a preliminary hearing after that.
“[Storey]: But — this is a case of being attempted murder you say?
“THE COURT: Two cases of attempted murder.
“[Storey]: Okay.
“MR. DRAPER: Again, Mr. Storey, don’t say anything about—
“[Storey]: — Are you representing me?
“MR. DRAPER: I’m just—
“[Storey]: — I’m just asking a question. Yea or nay?
“THE COURT: He hasn’t been appointed. You won’t let us get to that point.
“Mr. Storey, have you hired an attorney to represent you in these cases?
“[Storey]: (Shaking head from side to side.)
“THE COURT: That’s a ‘no.’
“Are you going to hire an attorney to represent you?
“[Storey]: Yeah. I need one?
“THE COURT: That’s up to you to decide, its not for me to decide. If you have the financial resources to hire an attorney, you can do so. If you don’t have the money and the Court finds you to be what’s called indigent, don’t have the ability to hire an attorney, then the court will appoint an attorney to represent you.
“I’m trying to get to the point of having you arraigned and determining first if you have an attorney. And if not, are you indigent and do you want the Court to appoint an attorney. And if you’re indigent I’ll appoint an attorney. And then we’ll proceed with arraignment and have you enter your pleas.
“Now, you’ve told me that you haven’t hired an attorney. Are you—
“[Storey]: — Are you—
“THE COURT: — Are you financially able to hire an attorney?
“[Storey]: Will all this be dismissed upon me?
“THE COURT: No. It may be dismissed, but it may go to trial.
“[Storey]: How did I get into all this?
“THE COURT: You were indicted by the Calhoun County Grand Jury.
“[Storey]: And they indicted me on what counts? What accounts (sic) did they have to indict me?
“THE COURT: You know, sir. They indicted you for two cases of attempted murder of Rodney Dean Phillips and of Maurice Kirby.
“[Storey]: So they indicted me on— outside of the case. I mean — outside of the system or — I mean, who is the victims?
“THE COURT: And I’m asking you, do you have the resources to hire an attorney? Have you got money in the bank? Do you own land? Have you got other property you can turn into cash to hire an attorney? It’s a ‘yes’ or ‘no’ question.
“[Storey]: (No response.)
“THE COURT: Are you going to answer my question?
“[Storey]: How did I get here?
“THE COURT: I’ve told you three times. You were indicted. Evidence went before the Grand Jury, the Grand Jury indicted you.
“[Storey]: Since — when it goes in front of that, shouldn’t it be a lawyer there and the DA there? And should I be present, you know, with this, Mr. Street? No disrespect. I just need to understand about it. I mean — because—
“THE COURT: — I have told you.
“[Storey]: — because I’m going through these procedures.
“THE COURT: I’m going to send him back to the jail. He doesn’t want to answer the questions.”

(Record on Direct Appeal, Rl. 4-14.) On February 25, 2004, Storey again appeared before the circuit court and the following occurred:

“THE COURT: Court will come to order. Matters before the Court at this time arise out of criminal cases CC 04-OS and 04, each styled State of Alabama versus Travis Storey. Mr. Storey is present.
“Mr. Storey, are you going to speak with me today?
“[Storey]: (Nodding head up and down.)
“THE COURT: Just for the record, Mr. Travis Storey is present and has been before this Court. He was here in each of these cases on January the 7th for an initial appearance hearing. At that time Mr. Storey communicated with the Court and said he was talking to Mr. Merrill Vardaman about possible representation as his attorney. Mr. Storey—
“(The Defendant handed a document to the deputy. The deputy handed the document to the Court.)
“THE COURT: — was brought back before this Court on January 27th, 2004, and the Court spoke with him, asking questions concerning whether he was indigent or not. And Mr. Storey elected or refused to answer the Court’s questions. The Court then returned him to jail.
“Mr. Storey is here this afternoon for the Court to enter his plea. The Court has provided him copies of the indictment. He indicated he received those after he was arrested. I’ll read those indictments at this time.
“ ‘CC 04-03, State of Alabama, Calhoun County. In the Circuit Court of Calhoun County, August Session 2003. The Grand Jury of Calhoun County charge that before the finding of this indictment Travis Storey, whose true name to the Grand Jury is otherwise unknown, did on or about March 28th, 2003, with the intent to commit the crime of murder, Section 13A-6-2 of the Alabama Criminal Code, attempt to intentionally cause the death of another person, to-wit: Maurice Kirby, by shooting him several times with a firearm, in violation of Section 13A-4-2 of the Alabama Criminal Code, against the peace and dignity of the State of Alabama.’
“That indictment charges you, Mr. Storey, with the offense of attempted murder.
“I ask the question: Do you understand that charge?
“[Storey]: (Shaking head from side to side.)
“THE COURT: How do you plead to that charge?
“[Storey]: Who is this person? What type person — who is the person?
“THE COURT: Who is what person?
“[Storey]: Who is this person? The words that you quoted.
“THE COURT: The quote is from the indictment. That’s the charge.
“[Storey]: The whole quotement (sic), everything that you said, who is the person?
“THE COURT: The defendant is you, Travis Storey.
“[Storey]: (Shaking head from side to side.)
“THE COURT: Are you asking who is Maurice Kirby?
“[Storey]: Who is the person?
“THE COURT: Other than those two, those are the only two that are listed.
“[Storey]: You said one.
“THE COURT: Are you saying who is the Grand Jury?
“[Storey]: Who is that person?
“THE COURT: What person?
“[Storey]: What person you talking about?
“THE COURT: I’m not talking about any particular person, I’ve just read the indictment to you, the charge that’s been made against you by the Calhoun County Grand Jury.
“[Storey]: Who name you called?
“THE COURT: You, Travis Storey.
“[Storey]: Who name you call?
“THE COURT: What is my name? I’m Judge Street.
“[Storey]: For that person.
“THE COURT: For what person?
“[Storey]: This here says, this says nor should any person be subject for the same offense to be twice in jeopardy of life or limb nor shall be compelled to be a witness against himself.
“It then states right here, it says — it says right here, that you — did you receive your copy up there?
“THE COURT: I have been handed a copy of page 769 of some book.
“[Storey]: Is you familiar with that copy, sir?
“THE COURT: What is listed as appendix one, which are here the first eight amendments to the United States constitution.
“[Storey]: Yes, sir.
“THE COURT: I’m familiar with it.
“[Storey]: So why am I here? For what reasons?
“THE COURT: You have been indicted, charged with attempted murder in two cases.
“[Storey]: To who?
“THE COURT: You’ve been charged with attempted murder of Maurice Kirby. And of Rodney Dean Phillips then in case 04-04.
“[Storey]: Who is these persons?
“THE COURT: I only know their names, sir.
“[Storey]: I heard you.
“THE COURT: All right. My question again is, having heard the Court read the indictment charging you in this first case with attempted murder, how do you plead to that charge?
“[Storey]: I don’t understand who are these people. I don’t know why I’m here.
“THE COURT: All right. The Court then enters for you and on your behalf a plea of not guilty.[]
“[Storey]: So you deprive me of my life.
“THE COURT: Sir?
“[Storey]: You heard me.
“THE COURT: No, sir, I didn’t. I heard you say something. You’re asking something is all I heard.
“[Storey]: So you just going to incriminate me on these charges?
“THE COURT: I’m not incriminating you at all. I’m entering a plea of not guilty.
“[Storey]: Which is placing me to be what?
“THE COURT: Which is simply for you asserting all of your legal rights.
“[Storey]: It’s placing me to be what? When you, sir, Judge Street, place that in there, what did you do? You placed what on me?
“THE COURT: You have not answered to the indictments so under the law I’m entering a plea of not guilty.
“[Storey]: Okay. Listen to this. Have we been here before with this?
“THE COURT: Yes, sir, twice.
“[Storey]: Twice? Okay.
“THE COURT: Now, in case—
“[Storey]: So — so the first time we was here you didn’t—
“THE COURT: — The first time we were here for an initial appearance.
“[Storey]: You didn’t accept that.
“THE COURT: Yeah, for that hearing that we had. We had an initial appearance.
“[Storey]: So why is we doing this twice?
“THE COURT: We’re here a second time for arraignment, for a plea to be entered and—
“[Storey]: — We didn’t do that the first time?
“THE COURT: No, sir, we didn’t.
“[Storey]: How many times I been in front of you?
“THE COURT: I’m not here to answer your questions particularly. We’re here to go forward with your arraignment.
“[Storey]: How many times have I been before you?
“THE COURT: How many — I ask you, how many times have you been before me?
“[Storey]: (Shrugging shoulders.)
“THE COURT: I have a number, I know a number.
“[Storey]: Sir?
“THE COURT: I know the number of times you’ve been before me.
“[Storey]: So you wish not to answer the question?
“THE COURT: I don’t have to.
“In case CC 04-04, the indictment reads: ‘State of Alabama, Calhoun County. In the Circuit Court of Calhoun County, August Session 2003. The Grand Jury of Calhoun County charge that before the finding of this indictment Travis Storey, whose true name to the Grand Jury is otherwise unknown, did on or about March 27, 2003, with the intent to commit the crime of murder, Section 13A-6-2 of the Alabama Criminal Code — ’
“[Storey]: — Excuse me.
“THE COURT: ‘Attempt to intentionally cause the death of another person, to-wit: Rodney Dean Phillips — ’
“[Storey]: — Excuse me, sir.
“THE COURT: ‘By shooting him several times with a firearm, in violation of Section 13A-4-2 of the Code of Alabama, against the peace and dignity of the State of Alabama.’
“[Storey]: Excuse me, sir.
“THE COURT: That indictment charges you, Mr. Storey, with the offense of attempted murder. Do you understand that charge?
“[Storey]: Excuse me, sir. How did I get here?
“THE COURT: Do you understand that charge?
“[Storey]: How did I get here?
“THE COURT: You were indicted by the Grand Jury.
“[Storey]: How was I indicted before I even went to what /all call an initial appearance of the preliminary?
“THE COURT: A Grand Jury can take up a matter, can investigate it—
“[Storey]: — but who has—
“THE COURT: — and can issue out an indictment.
“[Storey]: Who has the right to bind it over?
“THE COURT: Sir?
“[Storey]: Who has the right to bind it over?
“THE COURT: It’s not a bind over. The Grand Jury—
“[Storey]: — Excuse me—
“THE COURT REPORTER: — Excuse me, but only one person speaking at a time.
“THE COURT: Let me finish my answer to you. And then they may return an indictment, which they did in each of these cases.
“[Storey]: Yes, sir, no disrespect to you. But who — how—who was the Grand Jury? Who was they selected from?
“THE COURT: From the citizens of this county.
“THE COURT: .... Okay. Now, I’ve read this second indictment to you. Let me ask how you plead.
“[Storey]: Is this the District Attorney (pointing)?
“THE COURT: Mr. Storey, I’m asking you how you plead to that charge of attempted murder.
“[Storey]: Sir, I don’t even know why I’m here.
“THE COURT: I show that Mr. Sto-rey has again refused to enter pleas.
“[Storey]: Not refused. Not refused, but don’t know why I’m here.
“THE COURT: The Court hereby enters a plea of not guilty on Mr. Sto-rey’s behalf.
“Will you answer questions for me concerning whether you have the legal ability to hire an attorney or not?
“[Storey]: Sir, I don’t even know why I’m here, sir.
“THE COURT: I made it as clear as I can.
“[Storey]: I heard what you said, but I don’t know why I’m here.
“THE COURT: Well, you choose not to understand it would appear to me. This is the second attempt that I have undergone to have pleas entered to the charges. And I’m prepared to appoint counsel to represent you.”

(Record on Direct Appeal, Rl. 17-29.) Thereafter, the circuit court appointed Jack Draper to represent Storey. (Record on Direct Appeal, Rl. 30.) On December 14, 2004, Jack Draper filed a motion to withdraw as trial counsel stating that “an irreconcilable conflict has developed between he and [Storey].” (Record on Direct Appeal, C. 16.) The circuit court granted Draper’s motion and appointed Shaun Quinlan to represent Storey.

On August 8, 2005, Storey appeared in the circuit court and the following occurred:

“MR. QUINLAN: Judge, I want to say that ... on Friday, August 5th, I went down to determine whether or not Mr. Storey wanted a trial in this case.
“THE COURT: We are talking about your case, Mr. Storey. If you—
“[Storey]: Mr. Quinlan is no longer on it.
“THE COURT: I’m sorry. He still is at this point.
“MR. QUINLAN: And I went down to speak with Mr. Storey to see if he wanted a trial.
“[Storey]: He wasn’t supposed to be my attorney.
“MR. QUINLAN: Mr. Storey indicated to me that — and I think I need to bring it to the Court’s attention that he wanted to conduct his own trial and have me assist him only. And I explained to him that he could not have that relationship with me at trial. And if he did not want my assistance — and that’s why I asked the Court to set this for a hearing today so that Mr. Storey could represent to the Court that he wanted to represent himself at trial without the benefit of court appointed counsel.
“[Storey]: It just ain’t right.
“MR. QUINLAN: And I would also add, Judge, that Mr. Storey has initially indicated that he wanted to go to trial last Friday again and that he said — I asked him what witnesses I needed to subpoena, because he indicated he had witnesses who were going to come. He wouldn’t tell me who they were nor what they were going to say. And if those people actually exist, it would compromise my ability to represent him. And I just wanted to let the Court know that he has not cooperated with me in trying to present the best defense possible for him in the event this case goes to trial.”

(Record on Direct Appeal, R2. 9 — 111)

On July 31, 2006, Storey’s trial began and immediately before voir dire, while Storey was present in court with his trial counsel, Shaun Quinlan, both indictments charging Storey with attempted murder were read in his presence, and the circuit court noted that a not-guilty plea had been entered on Storey’s behalf. (Record on Direct Appeal, R3. 37-39.) At some point during trial, Storey informed the circuit court that he wished to represent himself for the remainder of the trial. (Record on Direct Appeal, R3. 304-05.) After, the circuit court questioned Storey about his desire to represent himself, the following occurred:

“THE COURT: Based upon the Court’s considering the answers of the defendant, Mr. Storey, he has asked to represent himself. He waives the right to counsel. I find that he’s doing so knowingly, intelligently, and voluntarily.
“[Storey]: Uh-huh (indicating yes).
“THE COURT: I have fully advised him of his right under Rule 6 to withdraw that waiver of the right of counsel at any time if he so chooses.”

(Record on Direct Appeal, R3. 321.) Sto-rey then represented himself throughout the remainder of the trial and the sentencing hearing.

Storey now alleges, among other things, in his Rule 32, Ala. R.Crim. P., petition for postconviction relief that the circuit court “erred to the degree of reversible error when it conducted an arraignment in [his] case without [him] being represented by councel [sic].” (Storey’s brief, p. 21.)

In Hamilton v. Alabama, 368 U.S. 52 (1961) — a capital case — the United States Supreme Court explained that “[arraignment under Alabama law is a critical stage in a criminal proceeding” because certain defenses may be “irretrievably lost, if not then and there asserted.” 368 U.S. at 53-54. Specifically, the Supreme Court found that the following defenses were “irretrievably lost” if not raised at arraignment:

“[T]he defense of insanity must be pleaded (15 Ala.Code § 423), or the opportunity is lost. Morrell v. State, 136 Ala. 44, 34 So. 208 [ (1902) ]. Thereafter that plea may not be made except in the discretion of the trial judge, and his refusal to accept it is ‘not revisable’ on appeal. Rohn v. State, 186 Ala. 5, 8, 65 So. 42, 43 [ (1914) ]. Cf. Garrett v. State, 248 Ala. 612, 614-615, 29 So.2d 8, 9 [ (1947) ]. Pleas in abatement must also be made at the time of arraignment. 15 Ala.Code § 279. It is then that motions to quash based on systematic exclusion of one race from grand juries (Reeves v. State, 264 Ala. 476, 88 So.2d 561 [ (1956) ]), or on the ground that the grand jury was otherwise improperly drawn (Whitehead v. State, 206 Ala. 288, 90 So. 351 [(1921)]), must be made.”

Hamilton, 368 U.S. at 53-54. The Supreme Court then held that, in capital cases, a defendant is entitled to the assistance of counsel at arraignment and the failure to have the assistance of counsel at arraignment requires reversal. Additionally, the Supreme Court explained “[w]hen one pleads to a capital charge without benefit of counsel, we do not stop to determine whether prejudice resulted.” Hamilton, 368 U.S. at 55.

This Court, historically, has interpreted Hamilton to apply to both capital and noncapital cases. See, e.g., Vanpelt v. State, 74 So.3d 32 (Ala.Crim.App.2009) (recognizing that arraignment is a critical stage that requires the assistance of counsel); Drummond v. State, 353 So.2d 546 (Ala.Crim.App.1977) (reversing a robbery conviction because Drummond was not represented by counsel at arraignment); Mayola v. State, 337 So.2d 105 (Ala.Crim.App.1976) (reversing a kidnapping conviction because Mayóla was not represented by counsel at arraignment); and Tucker v. State, 157 So.2d 229 (Ala.App.1963) (reversing a grand-larceny conviction because Tucker was not represented by counsel at arraignment).

The Alabama Supreme Court, however, in Weakley v. State, 721 So.2d 235 (Ala.1998), limited the reach of Hamilton as it applies to noncapital cases. In Weakley, the Alabama Supreme Court explained that “[t]he purpose of an arraignment is to formally charge a defendant with an offense and to allow a plea” and summarized the facts as follows:

“[T]he record is not clear as to whether Weakley appeared for her initial arraignment on March 14, 1996, without an attorney. However, the court’s case action summary sheet contains this entry: ‘The defendant appeared in court and pled not guilty. Will hire an attorney. Trial set April 15, 1996, at 8:30 a.m., with pretrial April 10, 1996, at 8:30 a.m.’ (Emphasis added.) On April 9, 1996, a lawyer, G. Jean Darby, was appointed to represent Weakley. On June 7, 1996, Weakley appeared at a rear-raignment, with the benefit of counsel. At that time, the purpose of arraignment was met. Weakley was advised of the offense of which she was charged and was shown a copy of her plea agreement and the ‘explanation of rights and plea of guilty form’ that she had previously signed. During an extensive colloquy with the court, Weakley stated that she had voluntarily and knowingly entered into these agreements, and she acknowledged her signature on them. The court also advised Weakley of her unqualified constitutional right to a trial by jury. The court orally asked Weak-ley how she pleaded to the charged offense, and she responded, ‘Guilty.’ After entering a plea of guilty, Weakley was adjudged to be guilty. Weakley’s attorney was also present at her sentencing hearing.”

721 So.2d at 237. The Court, after “review[ing] the circumstances” of the case, held that, in this noncapital case, a “rear-raignment” cured the error of lack of counsel at Weakley’s initial arraignment. 721 So.2d at 237. The Court further held:

“It would be burdensome and redundant to require a reversal of the conviction in this case and have yet another arraignment. Weakley’s rearraignment was sufficient, and no prejudice resulted from the error at the first arraignment.”

Weakley, 721 So.2d at 237. Thus, Weakley holds that, in a noncapital case, this Court should determine whether the defendant had the assistance of counsel at an initial arraignment, and, if not, determine whether a “rearraignment” occurred.

Here, the memorandum affirming the circuit court’s denial of Storey’s arraignment claim concludes:

“The record on direct appeal establishes that on July 31, 2006, immediately before voir dire, Storey appeared in court with his trial counsel, Shaun Quin-lan, both indictments charging Storey with attempted murder were read in his presence, and the circuit court noted that a not guilty plea had been entered on Storey’s behalf. (Record on Direct Appeal, R. 37-39.)
“Additionally, Storey neither contended in the circuit court that he suffered prejudice from the error at the first arraignment, nor does he contend on appeal that he suffered prejudice.
“Because Storey was ‘rearraigned’ and suffered no prejudice from the error at his first arraignment, he is not entitled to relief on this claim and, therefore, the circuit court did not err when it denied this claim.”

(Footnotes omitted.) The memorandum notes that

“Although Storey did not enter a plea at this time, he neither took exception to the circuit court entering a plea on his behalf, nor did he attempt to enter a new or different plea at the time the circuit court noted that a guilty plea had been entered on Storey’s behalf. Moreover, Storey still maintains his innocence for the charges of attempted murder. (C. 61.)”

Judge Welch, in his special writing concurring in part and dissenting in part, contends that this portion of this Court’s memorandum “confuse[s]” arraignment with Rule 19.1, Ala. R.Crim. P., because, he says, “arraignment is more than just a routine reading of the charges as was done at trial. Otherwise, compliance with Rule 19.1, Ala. R.Crim. P., would render an arraignment less a critical phase of criminal proceedings and more a hollow exercise.”

In Weakley, although the Supreme Court termed Weakley’s second hearing a “rearraignment,” Justice See, in his special concurrence, explained that the “rear-raignment” was actually a guilty-plea proceeding, at which Weakley entered a guilty plea. Weakley, 721 So.2d at 238 (See, J., concurring specially). In other words, Weakley was rearraigned at the same time the circuit court was conducting a Rule 14.4, Ala. R.Crim. P., guilty-plea colloquy. Thus, the position this Court takes in its memorandum by allowing the circuit court to “rearraign” Storey and, at the same time, comply with Rule 19.1, Ala. R.Crim. P., is consistent with the position taken by the Alabama Supreme Court when it allowed both arraignment and a guilty-plea colloquy pursuant to Rule 14.4, Ala. R.Crim. P., to occur at the same time.

Additionally, I agree with Justice See’s special concurrence in Weakley stating that “where the defendant is not afforded counsel at an arraignment for a noncapital crime, I would canvass the record to determine whether the defendant had suffered actual prejudice that would warrant a reversal of the conviction and a remand for rearraignment.” 721 So.2d at 238. Here, a thorough review of the record demonstrates that Storey suffered no prejudice from the failure to have counsel at his initial arraignment. Specifically, Storey neither contends that he would have entered any special pleas at arraignment had he had the assistance of counsel, nor does the record indicate that any special pleas would have been viable.

Moreover, as the procedural history above indicates, at each instance that Sto-rey appeared before the circuit court for arraignment Storey was recalcitrant and did all that he could to frustrate the circuit court’s efforts to arraign him. Specifically, the circuit court attempted to determine Storey’s indigency status to appoint him counsel before arraignment but Storey refused to answer the circuit court’s questions and constantly interrupted the circuit court. Additionally, although Storey contends that he was entitled to counsel at arraignment, Storey ultimately fired his counsel and represented himself at trial and at sentencing.

Here, as in Weakley, “[i]t would be burdensome and redundant to require a reversal of the conviction in this case and have yet another arraignment,” especially when, for all that appears, Storey would do nothing more than maintain his innocence and proceed to trial — presumably choosing to do so without the assistance of counsel.

Because Storey was, in effect, rear-raigned and he suffered no prejudice, I concur in the affirmance of the circuit court’s denial of Storey’s arraignment claim.

WELCH, Judge,

concurring in part; dissenting in part.

On August 22, 2006, Travis Storey was convicted of two counts of attempted murder and sentenced to concurrent sentences of 45 years’ imprisonment. His direct appeal was affirmed and this Court’s certificate of final judgment was issued on June 18, 2007. See Storey v. State, (No. CR-05-2278), 9 So.3d 580 (Ala.Crim.App.2007) (table). On July 2, 2007, Storey filed a Rule 32, Ala. R.Crim. P., petition seeking post-conviction relief from these convictions. Storey filed several amendments to this petition. The circuit court ruled that none of Storey’s claims entitled him to relief from his convictions and sentences. Sto-rey appealed challenging the circuit court’s denial of seven of the claims presented in his petition. Ultimately, following this Court’s remand for the circuit court to conduct a hearing on certain claims, all relief requested in Storey’s petition and amendments was denied. The majority has issued a memorandum opinion on return from our remand affirming the circuit court’s judgment. Except for one claim, I concur with the majority in affirming the circuit court. I do believe that Storey presented one claim that entitled him to a new trial. Therefore, as to the claim discussed below, I respectfully dissent from the majority.

Storey contends that he was entitled to Rule 32 postconviction relief on his claim that the circuit court “erred to the degree of reversible error when it conducted an arraignment in [his] case without [him] being represented by coun[s]el.” (Storey’s brief, p. 21.) The majority acknowledges that arraignment is a critical stage of the proceedings, that the failure to be represented by counsel at arraignment is a jurisdictional defect in the proceedings, and that Storey was in fact not represented by counsel at his “initial” arraignment. In its memorandum, the majority relies on Weakley v. State, 721 So.2d 235 (Ala.1998), to hold that “[although Storey was not represented by counsel at his initial arraignment, he is not entitled to relief on this claim,” because Storey was “rear-raigned” with his counsel present before his trial began, and this second arraignment cured the defect occurring in his first arraignment. I must dissent, because, unlike the facts in Weakley, I do not believe that Storey was rearraigned.

Weakley was not represented by counsel at his first arraignment. Subsequently, counsel was obtained and Weakley appeared before the trial court with his counsel to enter a guilty plea. The Alabama Supreme Court held that Weakley’s appearance at his guilty plea proceedings at which Weakley was represented by counsel, had read to him the charges that he must defend, and at which he was asked to enter his plea and he responded that he was entering a guilty plea, constituted a rearraignment curing his failure to have counsel during his first arraignment. Thus, according to the Weakley court, Weakley suffered no prejudice from the failed first arraignment.

The majority in this case reasons that because Storey was rearraigned with counsel before his trial began, and because he always maintained that he was not guilty, he suffered no prejudice warranting a reversal. Moreover, the majority notes that Storey lodged no objection to the trial court entering a not guilty plea on his behalf at the first arraignment. In its memorandum, the majority states:

“The record on direct appeal establishes that on July 31, 2006, immediately before voir dire, Storey appeared in court with his trial counsel, Shaun Quin-lan, both indictments charging Storey with attempted murder were read in his presence, and the circuit court noted that a not guilty plea had been entered on Storey’s behalf. (Record on Return to Remand, R. 37-39.)
“Additionally, Storey neither contended in the circuit court that he suffered prejudice from the error at the first arraignment nor does he contend on appeal that he suffered prejudice.
“Because Storey was ‘rearraigned’ and suffered no prejudice from the error at his first arraignment, he is not entitled to relief on this claim, and, therefore, the circuit court did not err when it denied this claim. Moreover, ‘[i]t would be burdensome and redundant to require a reversal of the conviction in this case and have yet another arraignment.’ Weakley, 721 So.2d at 237.

I do not believe that the record from Storey’s direct appeal discloses that Sto-rey was “rearraigned” before his trial. “The purpose of an arraignment is to formally charge a defendant with an offense and to allow a plea.” Weakley v. State, 721 So.2d 235, 237 (Ala.1998), citing O’Neal v. State, 494 So.2d 801 (Ala.Crim.App.1986). Arraignment should not be confused with Rule 19.1, Ala. R.Crim. P. Rule 19.1, Ala. R.Crim. P., includes as an element of a “trial proceeding” that before the prosecution delivers its opening statement “[t]he charges shall be read, and the plea of the defendant stated.” Rule 19.1(b), Ala. R.Crim. P. Here, the trial court did not read the indictment to Storey and did not ask for his plea; the trial court read the indictment to the venire panel of potential jurors and told them that Storey had pleaded not guilty, and, thus, “[w]ith those indictments and by the not guilty pleas these issues are joined for purposes of trial and we now need to select a jury....” (Direct Appeal, CR-05-2278, R. 39.) The indictment was not read to advise Storey of the charges so that he could enter a plea; the purpose was to inform the veniremembers of the charges and plea. I do not believe that the reading of the indictment to the veniremembers at Storey’s trial was in substance a second arraignment, and thus, this case is distinguishable from the guilty plea proceedings in Weakley, which I do believe constituted a second arraignment. Therefore, I cannot affirm on the grounds that Storey received a curative second arraignment.

I can concede that in this case the truth of the matter is that Storey was present at trial with his counsel and they both most certainly heard the reading of the charges against Storey and that most certainly Sto-rey wanted and intended to adhere to the plea of not guilty previously entered by the circuit court on his behalf. Nevertheless, I believe that an arraignment is more that just a routine reading of the charges as was done at trial. Otherwise, compliance with Rule 19.1, Ala. R.Crim. P., would render an arraignment less a critical phase of criminal proceedings and more a hollow exercise.

“‘Whatever may be the function and importance of arraignment in other jurisdictions, we have said enough to show that in Alabama it is a critical stage in a criminal proceeding. What happens there may affect the whole trial. Available defenses may be as irretrievably lost, if not then and there asserted, as they are when an accused represented by counsel waives a right for strategic purposes. Cf. Canizio v. New York, 327 U.S. 82, 85, 86, 66 S.Ct. 452, 90 L.Ed. 545 [ (1946) ].’ ”

Barnett v. State, 339 So.2d 1082, 1086-1087 (Ala.Crim.App.1976) (quoting Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961))).

Moreover, there is no requirement that a defendant plead prejudice or preserve via an objection a challenge to a jurisdictional defect. “[I]t is well settled that a court can and should correct a jurisdietional error at any time. See Ex parte Peterson, 884 So.2d 924, 926 (Ala.Crim.App.2003) (‘A court can notice a jurisdictional defect at any time and has a duty to correct the defect.’). Enfinger v. State, 123 So.3d 535, 542 (Ala.Crim.App.2012).

“ ‘ “A judgment entered by a court lacking subject-matter jurisdiction is absolutely void and will not support an appeal; an appellate court must dismiss an attempted appeal from such a void judgment.” Vann v. Cook, 989 So.2d 556, 559 (Ala.Civ.App.2008).’
“MPQ, Inc. v. Birmingham Realty Co., 78 So.3d 391, 394 (Ala.2011) (emphasis added).”

Enfinger v. State, 123 So.3d at 542.

Additionally, recently in Ex parte Pritchett, 117 So.3d 356 (Ala.2012), a case concerning a pro se motion to withdraw a guilty plea that had been entered with the assistance of counsel, without any consideration to the lack of prejudice or harmless error, the Alabama Supreme Court reasserted that a defendant’s failure to be represented by counsel during a critical phase of court proceedings, or in the alternative, to knowingly waive the right to counsel, was a jurisdictional defect requiring reversal of a conviction for further proceedings.

Because I do not believe that Storey was rearraigned as contemplated in Weakley, because jurisdictional defects do not require a trial objection to obtain appellate review, and because the Alabama Supreme Court reaffirmed the importance of representation during critical phases of criminal proceedings, I must respectfully dissent from the majority as to this issue.

BURKE, J., concurs.

      . The record in Storey’s direct appeal contains three separate reporter's transcripts of various hearings and proceedings, each numbered separately. Thus, the reporter’s transcripts referenced are denoted as "Rl,” "R2,” and "R3.”

      . Rule 14.2(d), Ala. R.Crim. P., states that "[i]f a defendant, when arraigned, fails or refuses to plead, or if a guilty plea is not accepted, the court shall enter a plea of not guilty and set the case for trial.”

      . I note that Alabama law has changed a great deal since Hamilton was announced in 1961, and I question whether the concerns raised by the United States Supreme Court in Hamilton are now warranted. Even though an "insanity” defense should be raised at the time of arraignment, it may also be raised later at the discretion of the trial court; additionally, whether the trial court properly exercised its discretion in disallowing the later plea is now reviewable on appeal under an abuse of discretion standard. See Carthon v. State, 419 So.2d 293, 299 (Ala.Crim.App.1982) ("We hold that under the facts shown in this record the trial court did not abuse its discretion in overruling appellant's motion to set aside the verdict of the jury and sentence of the court, and grant appellant a new trial so that he could present the defense of not guilty by reason of insanity.”); Meredith v. State, 370 So.2d 1075, 1076 (Ala.Crim.App.1979) ("Immediately before trial the appellant withdrew his plea of not guilty and filed a single plea of not guilty by reason of insanity. The changing of the plea was properly within the discretion of the trial court.”).
      Likewise, "pleas in abatement, motions to quash, and all other pleas [have been] abolished.” Rule 15.1, Ala. R.Crim. P. Although the Alabama Rules of Criminal Procedure contemplate motions that must be made prior to, or at the time of arraignment, these motion, too, may be raised after arraignment at the discretion of the trial court and/or for good cause shown. Rule 15.3, Ala. R.Crim. P.

      " 1 This Court has held that '[a]rraignment may happen any time before trial. In fact, a defendant may be arraigned after the jury has been empaneled.' Lawson v. State, 954 So.2d 1127, 1132 (Ala.Crim.App.2006) (citing Car

        roll v. State, 445 So.2d 952 (Ala.Crim.App1983)).

      " 2 Although Storey did not enter a plea at this time, he neither took exception to the circuit court entering a plea on his behalf, nor did he attempt to enter a new or different plea at the time the circuit court noted that a not guilty plea had been entered on Storey’s behalf. Moreover, Storey still maintains his innocence for the charges of attempted murder. (C. 61.)”

      . I take judicial notice of the record from the Storey’s direct appeal in this case. See Nettles v. State, 731 So.2d 626 (Ala.Crim.App.1998.)

      . Barnett and Hamilton are capital cases in which a death sentence was imposed.