author: KELLUM, Judge.

text:
    Antavis Davon MILLS v. STATE of Alabama.
    CR-12-0033.
    Court of Criminal Appeals of Alabama.
    July 12, 2013.

      Alfred Friedrichs Livaudais, Jr., Dale-ville, for appellant.

      Luther Strange, atty gen., and William D. Little, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, Antavis Davon Mills, was indicted by a Dale County grand jury for attempted murder, see § 13A-6-2 and § 13A-4-2, Ala.Code 1975; kidnapping in the first degree, see § 13A-6-43, Ala.Code 1975; and felony murder, see § 13A-6-2(a)(3), Ala.Code 1975. Following a jury trial, Mills was convicted of all three charges. The circuit court sentenced Mills to 33 years’ imprisonment for each conviction and ordered that the sentences were to run concurrently.

The evidence presented at trial established the following. On a June evening in 2009 around 6:00 p.m. or 7:00 p.m., Deme-tri Brown telephoned Trent Clark and asked Clark to sell him some marijuana. Demetri and Clark arranged to meet at the Claybank Apartments in Ozark. When Demetri arrived at the apartments, he saw Clark sitting in a Honda automobile with another man, who Demetri did not know. Demetri got into the backseat of the car and they drove to a nearby house where the men got out of the Honda and got into a black automobile. Clark then drove with Mills and Demetri to get the marijuana.

After driving for approximately 30 minutes, Clark suddenly pulled the car over, pointed a pistol at Demetri, and accused Demetri of robbing him. Demetri knew that Clark had been robbed, but he denied any involvement in the robbery. Clark hit Demetri hard with his gun, causing Deme-tri to bleed. Clark pulled back onto the road and, with Demetri still in the car, drove to a wooded area. Clark then ordered Demetri to get out the car or he would shoot Demetri. Demetri begged Clark to make one telephone call that would prove Demetri’s innocence but Clark refused. At this point, Clark forced Demetri to get into the trunk of the car.

Around 8:00 or 9:00 p.m. that evening, Clark, accompanied by another man, came to the house of Lashawn Tanner. Clark, who was Tanner’s barber, asked Tanner if he could fish in a pond on Tanner’s property the next morning. Tanner gave Clark permission to fish in his pond but told Clark that he would not be there at that time but that his wife, Shana, would be home. Clark left Tanner’s home in a black car with tinted windows. Demetri remained in the trunk of the car throughout the night.

The following morning between 7:30 and 8:30 a.m., Clark and Mills visited the apartment of Cameron Brown. Cameron did landscaping work for Clark and knew Mills through Clark. Clark asked Cameron to come with him to do some landscaping work. Cameron got into a car with Clark, who drove, and Mills, who was in the front passenger seat. Cameron testified that Clark and Mills were together frequently and that they sold drugs together. While riding in the car with Clark and Mills, Cameron noticed “thousands of dollars” wrapped with a rubber band in the middle console of the car. Cameron also saw two pistols in the car.

After driving for a while, Clark turned off onto a dirt road, stopped the car, and opened the trunk. In the trunk, Cameron saw Demetri — beaten, bloody, and wearing only shorts. Clark pulled Demetri out of the trunk of the car, and Mills tied Deme-tri’s hands behind his back with string from a weed-eater. Clark identified Dem-etri as “one of them MF’s that robbed me.” (R. 68.) Clark said that he was going to shoot Demetri but Cameron begged him not to shoot Demetri, saying that he wanted no part of it. Cameron testified that Mills stood close by and stayed silent during this exchange. Shortly thereafter, Clark agreed to take Cameron back to his apartment.

Clark pulled into Cameron’s apartment complex and parked his car behind a dumpster. Clark took Demetri out of the trunk, gave a pistol to Mills, and told Mills to watch Demetri while Clark went to the store. Following Clark’s instructions, Mills watched Demetri while holding the pistol Clark gave him. Mills retied Deme-tri’s hands using the cord of a cellular-telephone charger and threatened to shoot Demetri if he tried to run. When Clark returned from the store, Cameron tried to reason with Clark not to shoot Demetri, but Clark dismissed him. Cameron then left Clark, Mills, and Demetri and went into his apartment. ' Clark and Mills put Demetri back into the trunk of the car and drove off.

Clark eventually stopped the car near the pond and pulled Demetri out of the trunk. Clark told Demetri: “You know what’s about to happen to you.” (R. 184.) Mills took a knife from Clark and cut a piece of netting out of the trunk of the car, which Mills then used to tie a cinder block to Demetri’s feet. Unable to walk with his feet tied, Mills cut Demetri’s feet loose from the cinder block. Unbeknownst to Clark and Mills, while he was in the trunk of the car, Demetri had managed to loosen the cord used to tie his hands together but pretended that his hands were still tied together at that time.

At Clark’s instruction, Demetri began to walk toward the pond with Mills following behind them. Clark told Demetri to get into the pond. Clark then got in the water with Demetri and hit Demetri in the forehead with a gun. With his hands loose, Demetri grabbed the gun from Clark and began fighting for control of the gun. Mills also entered the water and struggled for the gun, grabbing Demetri by the hair. While both Clark and Demetri had their hands on the gun, the gun discharged twice and Clark let go of the gun. Clark sustained a gunshot wound during the struggle and cried out for help. Mills dragged Clark away.

Shortly thereafter, Shana Tanner heard something while standing on her back porch. Shana looked up to see Mills trying to carry Clark on the path leading to her pond. Shana ran to them and found Clark unconscious. Clark was subsequently taken to the hospital, where he died as a result of a gunshot wound.

Mills testified on his own behalf at trial. Mills stated that Clark picked him up to go fishing. According to Mills, Demetri was already in the trunk of the car when Clark picked him up. Mills testified that Clark gave Cameron the pistol to watch Demetri before putting Demetri back in the trunk of the car. Mills stated that he told dark that he wanted to go home and that he wanted no part of what Clark was doing. Mills denied that he knew that Clark intended to shoot Demetri.

After both sides had rested and the court instructed the jury on the law applicable to Mills’s case, the jury found Mills guilty of the attempted murder of Deme-tri, felony murder as to Clark, and first-degree kidnapping of Demetri. This appeal followed.

I.

Mills contends on appeal that the circuit court erred by denying his motion for a judgment of acquittal because, he argues, the State failed to present sufficient evidence to sustain his convictions for felony murder, attempted murder, and kidnapping. Specifically, Mills contends that the evidence was insufficient to find him guilty of the indicted offenses as either a principal or an accomplice.

‘““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), affd, 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)).

Under current Alabama law, there is no distinction between principals and accessories. See, e.g., Faircloth v. State, 471 So.2d 485, 489 (Ala.Crim.App.1984), affd, 471 So.2d 493 (Ala.1985) (“Alabama Code § 13A-2-23 (1975) continues the long recognized abolition of the distinction between principals and accessories in Alabama.”). As we noted in Peraita v. State, 897 So.2d 1161, 1210 (Ala.Crim.App.2003):

“Alabama’s accomplice liability statute provides:
“ ‘A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense:
“ ‘(2) He aids or abets such other person in committing the offense.... ’ “ § 13A-2-23, Ala.Code 1975.
“‘The words “aid and abet” encompass all assistance by acts, words of encouragement, or support, or presence, actual or constructive, to render assistance should it become necessary. Wright [v. State, 494 So.2d 936 (Ala. Crim.App.1986) ]; Sanders v. State, 423 So.2d 348 (Ala.Cr.App.1982). Actual participation in the crime need not be proved by positive testimony to convict someone of aiding and abetting. “The jury is to determine whether the appellant’s participation exists and the extent of it from the conduct of the parties and all the testimony presented.” Walls v. State, 378 So.2d 1186, 1191 (Ala.Cr.App. 1979), cert, denied, Ex parte Walls, 378 So.2d 1193 (Ala.1980). Such facts as the defendant’s presence in connection with his companionship, and his conduct at, before and after the commission of the act, are potent circumstances from which participation may be inferred.’
“Henry v. State, 555 So.2d 768, 769 (Ala. Crim.App.1989).
“ ‘Any word or act contributing to the commission of a felony, intended and calculated to incite or encourage its accomplishment, whether or not the one so contributing is present, brings the accused within the statute that makes any person concerned in the commission of a felony, directly or indirectly, a principal.... No particular acts are necessary to make one an aider and abettor; the common enterprise or adventure may have been entered into on the spur of the moment without prearrangement or participation.’
“Scott v. State, 374 So.2d 316, 318-19 (Ala.1979).”

A.

Mills first contends that he cannot be held liable under the felony-murder doctrine because Clark’s death was caused by Clark’s conduct and actions, and not Mills’s own actions.

A person commits the crime of felony murder if “[h]e commits or attempts to commit ... kidnapping in the first degree ... or any other felony clearly dangerous to human life and, in the course of and in furtherance of the crime that he is committing or attempting to commit, or in immediate flight therefrom, he, or another participant if there be any, causes the death of any person.” § 13A-6-2(a)(3), Ala.Code 1975 (emphasis added). Contrary to Mills’s contention on appeal, Mills’s participation in the kidnapping and attempted murder of Demetri was sufficient to charge him with felony murder. The evidence presented at trial established that Mills participated in kidnapping Demetri and assisted in Clark’s plan to murder Demetri. Therefore, Mills is not entitled to relief on this claim.

Mills also contends that the evidence was insufficient to convict him for felony murder because, he argues, he was not a willing participant in the underlying felonies of attempted murder and kidnapping. Mills specifically contends that he did not actively and intentionally participate in the kidnapping. Contrary to Mills’s contention on appeal, the evidence presented at trial, when viewed in a light most favorable to the State, established that Mills willingly assisted Clark when Clark held Demetri in the trunk of Clark’s car and eventually took Demetri to a pond where Clark intended to kill Demetri. Mills tied Deme-tri’s hands together. At Clark’s direction, Mills held a gun to Demetri while Clark went to the store. Mills then retied Dem-etri’s hands and threatened to shoot Dem-etri if he ran. Mills subsequently tied a cinder block to Demetri’s feet after Clark drove Demetri to the pond. At no time during the course of events, did Mills try to stop Clark from harming Demetri or try to help Demetri get away. Accordingly, Mills’s challenge to his felony-murder conviction on the basis that he was not a willing participant in the attempted murder and kidnapping of Demetri must fail.

Finally, in attacking his conviction for felony murder Mills contends that Clark’s death was the result of an “unforeseen supervening, intervening cause sufficient to break the chain of causation” and, therefore, was not the result of conduct on the part of Mills. (Mills’s brief, p. 17.) Specifically, Mills contends that Demetri’s struggle with Clark over the gun was a supervening factor in Clark’s death. Section 13A-2-5, Ala.Code 1975, addresses causation, in pertinent part, as follows:

“(a) A person is criminally liable if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was sufficient to produce the result and the conduct of the actor clearly insufficient.
“(b) A person is nevertheless criminally hable for causing a result if the only difference between what actually occurred and what he intended, contemplated or risked is that:
“(1) A different person or property was injured, harmed or affected;

This Court addressed causation in the context of felony murder in Witherspoon v. State, 83 So.3d 625 (Ala.Crim.App.2009). In Witherspoon, two masked men, Wither-spoon and Baggett, entered a convenience store; Baggett was holding a gun. The store clerk grabbed his own gun and shot Baggett. In upholding Witherspoon’s conviction for felony murder, this Court stated:

“ ‘[Fjoreseeability is the key issue in a causation inquiry. The “controlling question! ]” is “whether the ultimate result was foreseeable to the original actor.” Henderson v. Kibbe, 431 U.S. 145, 151 n. 9, 97 S.Ct. 1730, 1735 n. 9, 52 L.Ed.2d 203 (1977). If the accused “should have perceived” that his own conduct would concur with another cause to bring about the injury to the victim, then the other cause is concurrent, not supervening. See Shirah v. State, 555 So.2d 807, 812-13 (Ala.Cr. App.1989) (conduct of accused, who supplied morphine to victim, was the cause-in-fact of victim’s death from overdose of Secobarbital and morphine combined). On the other hand, a supervening cause “breaks the chain of causation” precisely because it is not a reasonably foreseeable result of the accused’s conduct. Lewis [v. State], 474 So.2d [766, 771 (Ala.Crim.App.1985) ].’ ”

Witherspoon, 33 So.3d at 628-29 (quoting Pearson v. State, 601 So.2d 1119, 1127 (Ala.Crim.App.1992)).

Resolving the issue of causation, this Court held that, but for the acts of Wither-spoon and Baggett entering the store wearing masks, demanding money, and carrying a gun, the store clerk would not have used his own gun to shoot and kill Baggett. Witherspoon, 33 So.3d at 631. Furthermore, the store clerk’s reactions to Witherspoon and Baggett’s conduct were not abnormal or unforeseeable, given the actions of the participants in the robbery. Witherspoon, 33 So.3d at 631.

In this case, as in Witherspoon, Deme-tri’s actions were not abnormal or unforeseeable. Clark and Mills kept Demetri in the trunk of a car at gunpoint for hours with his hands tied behind his back. During this time, Clark and Mills repeatedly threatened to kill Demetri. Clark and Mills then took Demetri to a remote spot where they intended to shoot Demetri. But for Clark and Mills’s actions, Demetri would not have struggled with Clark for the gun, which ultimately led to Clark sustaining a fatal gunshot wound. Given the circumstances surrounding Demetri’s kidnapping and Clark’s intent to shoot Demetri, it is foreseeable that Demetri would straggle to save his life. Therefore, Mills is not entitled to relief on this claim.

B.

Mills further contends that the State presented insufficient evidence from which the jury could conclude that he attempted to murder Demetri. Specifically, Mills contends that the State presented no evidence indicating that Mills intended to kill Demetri while acting as either a principle or an accomplice.

“The elements of the crime of attempted murder are intent to kill and an overt act towards commission of that act.” Bradford v. State, 734 So.2d 364, 369 (Ala. Crim.App.1999) (citing Chaney v. State, 417 So.2d 625 (Ala.Crim.App.1982)).

“.‘Attempted murder is a specific intent crime.... An attempt to commit murder requires the perpetrator to act with the specific intent to commit murder .... A general felonious intent is not sufficient.’ Free v. State, 455 So.2d 137, 147 (Ala.Cr.App.1984). To establish a prima facie case of attempted murder, the State must present evidence of the accused’s specific intent to kill, and of ‘some overt act in part execution of the intent to commit the crime ... which falls short of the completed crime; the difference between attempt and commission being that the act or step fails to produce the result intended.’ Broad-head v. State, 24 AlaApp. 576, 139 So. 115,117 (1932).”

Minshew v. State, 594 So.2d 703, 704 (Ala. Crim.App.1991).

Contrary to Mills’s contention on appeal, the State presented sufficient evidence from which the jury could have con-eluded that Mills aided and abetted Clark in attempting to murder Demetri. With Demetri in the trank of Clark’s car, Mills road with Clark to pick up Cameron. After picking up Cameron, Clark pulled Demetri out of the trunk and Mills tied Demetri’s hands together. Clark repeatedly threatened to shoot Demetri while Mills stood silent. Mills also threatened to shoot Demetri while holding a gun to Demetri’s head. After driving to the pond, Mills tied a cinder block to Deme-tri’s feet and followed Clark and Demetri to the pond, where Clark hit Demetri in the forehead with the gun. Mills followed Clark and Demetri into the water where Mills grabbed Demetri’s hair and a struggle ensued. Viewing the evidence in a light most favorable to the prosecution, we conclude that Mills’s actions evidenced his complicity in attempting to murder Deme-tri. Accordingly, the evidence was sufficient to sustain Mills’s conviction for attempted murder.

II.

Finally, Mills contends that the circuit court erred by denying his motion to dismiss the indictment for kidnapping in the first degree because the charge served as a basis for his felony-murder conviction and, therefore, charging him with the separate offense violated his right to be free from double jeopardy. The State concedes that Mills’s conviction for kidnapping in the first degree violates double-jeopardy principles. We agree.

In this case, the same kidnapping served as the basis for both Mills’s first-degree-kidnapping conviction and his felony-murder conviction. Therefore, Mills’s convictions for both offenses violate double-jeopardy principles. See Witherspoon v. State, 33 So.3d 625 (Ala.Crim.App.2009); Jones v. State, 992 So.2d 76 (Ala.Crim.App.2007); Brooks v. State, 952 So.2d 1180 (Ala.Crim. App.2006); Edwards v. State, 907 So.2d 1077 (Ala.Crim.App.2004). Accordingly, we must remand this case for the circuit court to enter an order vacating Mills’s conviction and sentence for kidnapping in the first degree. 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.

AFFIRMED IN PART; REMANDED WITH INSTRUCTIONS.

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

      . Mills also challenges the sufficiency of the evidence to support his conviction for kidnapping in the first degree; however, because Mills’s conviction for first-degree kidnapping must be vacated, we need not address the merits of his claim challenging the sufficiency of the State’s evidence relating to the kidnapping charge.

       Note from the reporter of decisions: On September 27, 2013, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On December 13, 2013, that court denied rehearing, without opinion.


source: Caselaw Access Project

author: WINDOM, Presiding Judge.

license: Public Domain

text:
    Benjamin Carter MAYS v. STATE of Alabama.
    CR-11-1531.
    Court of Criminal Appeals of Alabama.
    July 12, 2013.
    Rehearing Denied Aug. 23, 2013.
    Certiorari Denied Dec. 6, 2013 Alabama Supreme Court 1121410.
    Eric Wood, Huntsville, for appellant.
    Luther Strange, atty. gen., and John M. Porter, asst. atty. gen., for appellee.
   WINDOM, Presiding Judge.

Benjamin Carter Mays appeals his conviction for second-degree escape, see § 13A-10-32, Ala.Code 1975, and his resulting sentence of 17 years in prison. Because the evidence presented at trial was insufficient to sustain the conviction, this Court reverses Mays’s conviction and renders a judgment for him.

On May 19, 2011, Mays pleaded guilty in the Jackson District Court to possession of drug paraphernalia and was sentenced to one year in the Jackson County jail. That sentence was split, and Mays was ordered to serve 97 days in jail and was placed on probation for 24 months. On July 4, 2011, he was arrested by the Jackson County Sheriffs Department on new charges, and, on July 5, 2011, the State moved to revoke Mays’s probation. On August 19, 2011, Mays’s probation was revoked and he was “place[d] on house arrest” by the district court. (C. 90.)

Later that day, Mays went to the office of Brandon Brown, a court-referral and community-corrections officer with the Jackson County Community Punishment and Corrections Program. Brown and Mays completed the paperwork related to Mays’s house arrest. To effect the house arrest, Brown secured a bracelet on Mays’s ankle and gave him the equipment that was to be installed in his house. Brown never received a notification that the equipment had been installed.

After repeated unsuccessful attempts to contact Mays and learning that there was no telephone line installed in the house where Mays was supposed to be residing, Brown secured a warrant for Mays’s arrest. Mays was arrested on September 10, 2011.

In December 2011, Mays was indicted for one count of second-degree escape. The indictment specifically charged that Mays had “escapefd] or attempt[ed] to escape from a penal facility, to-wit: The Jackson County Jail.” (C. 7) (emphasis in original.) Following a jury trial, Mays was found guilty and was sentenced to 17 years in prison.

On appeal, Mays argues, among other things, that the State’s evidence was insufficient to support his conviction for second-degree escape because the State failed to present any evidence that he had escaped from a “penal facility.” Specifically, Mays argues that the undisputed evidence establishes that when his probation was revoked, he was “placed on house arrest.” (C. 90.) According to Mays, his house is not a “penal facility”; therefore, the State presented insufficient evidence to sustain his conviction. The State, on the other hand, argues that Mays was in constructive custody of the county jail; therefore, he was in the custody of a “penal facility.” Thus, the outcome of the appeal depends on whether a house constitutes a “penal facility” when a defendant was placed on house arrest. This Court holds that it does not; therefore, the State presented insufficient evidence to sustain Mays’s conviction.

Initially, this Court notes:
“In Ex parte J.C., 882 So.2d 274 (Ala. 2003), the Alabama Supreme Court stated the standard used to review a claim that the evidence produced at trial was legally insufficient to support a conviction:
“ ‘ “ ‘In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution. Faircloth v. State, 471 So.2d 485 (Ala.Crim.App.1984), affd, 471 So.2d 498 (Ala.1985).’ Powe v. State, 597 So.2d 721, 724 (Ala.1991). It is not the function of this Court to decide whether the evidence is believable beyond a reasonable doubt, Pennington v. State, 421 So.2d 1361 (Ala.Crim.App.1982); rather, the function of this Court is to determine whether there is legal evidence from which a rational finder of fact could have, by fair inference, found the defendant guilty beyond a reasonable doubt. Davis v. State, 598 So.2d 1054 (Ala.Crim. App.1992). Thus, ‘[t]he role of appellate courts is not to say what the facts are. [Their role] is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.’ Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978) (emphasis original).”
‘Ex parte Tiller, 796 So.2d 310, 312 (Ala.2001) (quoting Ex parte Woodall, 730 So.2d 652, 658 (Ala.1998)).’
882 So.2d at 277.”

Reid v. State, 131 So.3d 635, 639 (Ala. Crim.App.2012).

Regarding statutory construction, the Alabama Supreme Court has stated:

“In any case involving statutory construction, our inquiry begins with the language of the statute, and if the meaning of the statutory language is plain, our analysis ends there. Ex parte Moore, 880 So.2d 1131, 1140 (Ala.2003) (‘ “ ‘The cardinal rule of statutory interpretation is to determine and give effect to the intent of the legislature as manifested in the language of the statute.’ ” ’) (quoting Ex parte Weaver, 871 So.2d 820, 823 (Ala.2003), quoting in turn Ex parte State Dep’t of Revenue, 683 So.2d 980, 983 (Ala.1996)). This Court in De-Kalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 275-76 (Ala. 1998), explained:
“ ‘In determining the meaning of a statute, this Court looks to the plain meaning of the words as written by the legislature. As we have said:
“ ‘ “ ‘Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.’ ” ’
729 So.2d at 275-76 (quoting Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala.1998), additional citations omitted). See also 729 So.2d at 276 (explaining that the separation-of-powers doctrine requires a court to use the plain-meaning rule in construing a statute and that ‘only if there is no rational way to interpret the words as stated will [a court] look beyond those words to determine legislative intent’).”

Ex parte McCormick, 932 So.2d 124, 132 (Ala.2005)

A person commits the crime of second-degree escape when “he escapes or attempts to escape from a penal facility.” § 13A-10-32(a), Ala.Code 1975. A “penal facility” is defined as “[a]ny security correctional institution for the confinement of persons arrested for, charged with or convicted of a criminal offense, including but not limited to the following security facilities: the state penitentiary and any branch thereof or any county or city jail.” § 13A-10 — 30(b)(3), Ala.Code 1975. See Black’s Law Dictionary 396, 1314 (9th ed.2009) (directing the reader seeking a definition of “correctional institution” to the definition of “prison” and defining “prison” as a “facility of confinement for convicted criminals, esp. felons”); Merriam-Webster’s Collegiate Dictionary 447 (11th ed.2003) (defining a facility as “something ... that is built, installed, or established to serve a particular purpose”).

Accepting all the evidence as true and according the State every legitimate inference from that evidence, this Court concludes that the State failed to present any evidence indicating that Mays was confined in a “penal facility” as defined by statute. Specifically, Mays’s house, where he was sentenced to serve his house arrest, was not a “security correctional institution” and thus was not a “penal facility” as defined in § 13A-10-30(b)(3), Ala.Code 1975. Mays’s house was not “built, installed, or established to serve [the] particular purpose,” Merriam-Webster’s Collegiate Dictionary 447, “of confinement for convicted criminals,” Black’s Law Dictionary 1314. Accordingly, Mays’s house was not a “penal facility,” and the State failed to present sufficient evidence to sustain his conviction for second-degree escape.

The State, relying on Sommerville v. State, 555 So.2d 1165, 1166 (Ala.Crim.App. 1989), argues that Mays was in the constructive custody of the county jail; therefore, his conviction should be affirmed. Unlike Mays, who was placed on house arrest, Sommerville was serving a sentence as a “trusty” in a city jail and was allowed to leave the jail to work with the janitorial staff of the police department. Id. “A city jail is a penal facility.” Id. While working outside of the city jail, Sommerville escaped. Id. Sommerville was convicted of second-degree escape. Id. On appeal, he argued that the State presented insufficient evidence to sustain his conviction because he was not in custody when he escaped; instead, he was outside the jail on work release. Id. This Court rejected Sommerville’s argument. Specifically, this Court held that, although Sommerville was not in actual custody while on work release, he was in constructive custody. Id.

Unlike Sommerville, who was serving his sentence in the city jail and thus escaped from a penal facility, Mays had been placed on house arrest. As discussed above, Mays’s house was not a “security correctional institution” and thus was not a “penal facility” as that term is defined in § 13A-10-30(b)(3), Ala.Code 1975. Accordingly, the State’s argument that Mays was in constructive custody of a “penal facility” is without merit. Because the undisputed evidence demonstrates that Mays was released under house arrest and was not in a “penal facility” as defined in § 13A-10-30(b)(3), Ala.Code 1975, the circuit court erred in denying Mays’s motion for a judgment of acquittal. Therefore, this Court reverses Mays’s conviction and renders a judgment in favor of Mays.

REVERSED AND JUDGMENT RENDERED.

WELCH, KELLUM, BURKE, and JOINER, JJ., concur.

      . Mays received 97 days of credit for the time he spent in jail awaiting the disposition of this case.


text:
    Robert S. LLOYD v. STATE of Alabama.
    CR-12-0748.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 2013.
    Rehearing Denied Dec. 13, 2013.

      Robert S. Lloyd, pro se.
    Luther Strange, atty. gen., and Kristi 0. Wilkerson, asst. atty. gen., for appellee.
   KELLUM, Judge.

Robert S. Lloyd appeals the circuit court’s summary dismissal of what he styled as a “Motion/Request for Forensic D.N.A. Testing.” (C. 7.)

In December 2006, Lloyd was convicted of the first-degree rape and first-degree sodomy of P.P., who was 10 years old at the time of the crimes. The trial court sentenced Lloyd in January 2007 to 20 years’ imprisonment for each conviction, the sentences to run consecutively. This Court affirmed Lloyd’s convictions and sentences on appeal in an unpublished memorandum issued on December 14, 2007. Lloyd v. State, (No. CR-06-0985) 19 So.3d 261 (Ala.Crim.App.2007) (table). This Court issued a certificate of judgment on January 3, 2008. In February 2008, Lloyd filed a Rule 32, Ala. R.Crim. P., petition challenging his convictions and sentences. The circuit coürt summarily dismissed the petition in May 2011, and this Court affirmed that dismissal in an unpublished memorandum issued on January 27, 2012. Lloyd v. State, (No. CR-10-1365, January 27, 2012) 130 So.3d 584 (Ala. Crim.App.2012) (table). This Court’s records also indicate that Lloyd filed a second Rule 32 petition in May 2010, while his first petition was still pending in the circuit court, and the circuit court also summarily dismissed that petition in May 2011. Lloyd did not appeal the dismissal of his second petition.

On May 9, 2012, Lloyd filed his motion for DNA testing. In his motion, Lloyd requested that the rape kit performed on P.P. be tested for DNA. He alleged that the rape kit was taken at the Stable Hospital in Greenville, that it was delivered to the Alabama Department of Forensic Sciences (“DFS”), and that DFS “would have records to verify that the ‘rape kit’ was delivered and the samples are still on file.” (C. 8.) Lloyd also alleged that the “main evidence” against him at trial was the testimony of P.P., whose testimony Lloyd described as “confused” and “false,” as well as “hearsay” testimony from three witness in whom P.P. had confided about the alleged rape and sodomy. (C. 8.) Lloyd also alleged in his motion that he never confessed to the crimes, that he was actually innocent of the crimes, that he had never provided a DNA sample for testing, and that the rape kit had never been tested for DNA.

On June 20, 2012, the circuit court issued an order stating that it was going to treat Lloyd’s motion for DNA testing as a Rule 32 petition for postconviction relief and ordered the State to respond. On August 3, 2012, the State filed a response to Lloyd’s petition, arguing, among other things, that Lloyd’s request for DNA testing was precluded by Rule 32.2(b) and by Rule 32.2(c) because it failed to satisfy the requirements for newly discovered material facts in Rule 32.1(e). Specifically, the State argued that Lloyd knew, at the time of trial, that he had not provided a DNA sample for testing and he knew that the rape kit had not been presented as evidence against him.

On September 13, 2012, Lloyd filed what he styled as an “answer” to the State’s response, but which was really an objection to the circuit court’s June 20, 2012, order stating that it would treat his motion for DNA testing as a Rule 32 petition. Lloyd argued that it was error to treat his motion as a Rule 32 petition because, he said, he had filed his motion pursuant to § 15-18-200, Ala.Code 1975, which, he claimed, “has been modified by the Alabama Supreme Court and is not limited to ‘DEATH ROW inmates.” (C. 66.) Lloyd relied on Searcy v. State, 77 So.3d 174 (Ala.Crim.App.2011), to support his argument.

On January 21, 2013, the State filed a response to Lloyd’s objection, arguing that § 15-18-200, Ala.Code 1975, applied only to defendants convicted of capital offenses, that Searcy, supra, did not modify § 15-18-200, and that the proper avenue for defendants convicted of noncapital offenses to request DNA testing in the postconviction context is to file a Rule 32 petition for postconviction relief.

On January 22, 2013, the circuit court issued an order setting out the procedural history of the case and then stating:

“Treating [Lloyd’s] Request as a Motion pursuant to Ala.Code § 15-18-200, the Court finds that [Lloyd] is not entitled to relief and the Motion is due to be DENIED.
“However, if [Lloyd] is pursuing his request as a Petition for Relief from Conviction or Sentence, this is a successive Petition and is precluded by Rule 32.2(b), Rule 32.2(a)(3), Rule 32.2(a)(5), Rule 32.2(c), and Rule 32.6(b), and is hereby DISMISSED.”

(C. 72-73. Capitalization in original.) This appeal followed.

I.

On appeal, Lloyd appears to argue, as he did in his objection to the circuit court’s June 20, 2012, order, that his request for DNA testing was a motion pursuant to § 15-18-200 and not a Rule 32 petition and that the circuit court erred in treating his motion as a Rule 32 petition, to the extent that it did so. We disagree.

Section 15-18-200(a) provides, in relevant part:

“An individual convicted of a capital offense who is serving a term of imprisonment or awaiting execution of a sentence of death, through written motion to the circuit court that entered the judgment of sentence, may apply for the performance of forensic deoxyribonu-cleic acid (DNA) testing on specific evidence, if that evidence was secured in relation to the investigation or prosecution that resulted in the conviction of the applicant, is still available for testing as of the date of the motion, forensic DNA testing was not performed on the case at the time of the initial trial, and the results of the forensic DNA testing, on its face, would demonstrate the convicted individual’s factual innocence of the offense convicted.”

(Emphasis added.) The plain language of § 15-18-200 expressly limits postconviction requests for DNA testing under that statute to those individuals convicted of capital offenses.

In his objection to the circuit court’s order stating that it would treat his motion as a Rule 32 petition, Lloyd relied on Searcy v. State, 77 So.3d 174 (Ala.Crim. App.2011), for the proposition that § 15-18-200 had been “modified” by the Alabama Supreme Court and was no longer limited to “death-row” inmates. According to Lloyd, Searcy was convicted of rape and sodomy and was serving a life sentence and was permitted to file a postconviction motion for DNA testing pursuant to § 15-18-200. However, Lloyd’s reliance on Se-arcy is misplaced. First, Searcy was an opinion from this Court, not from the Alabama Supreme Court as Lloyd alleged. Most importantly, however, Searcy “was convicted of capital murder for murdering Rory Lynn Kirkland during the course of a burglary,” not of rape and sodomy as Lloyd argued. Searcy, 77 So.3d at 175. Therefore, this Court’s opinion in Searcy did not modify the plain language in § 15-18-200 limiting it solely to individuals convicted of a capital offense.

Lloyd, having been convicted of rape and sodomy and not of a capital offense, is clearly not within the category of individuals permitted to request DNA testing pursuant to § 15-18-200. Additionally, there is no specific statute providing an avenue for an individual convicted of a noncapital offense to seek DNA testing in the postconviction context. The State argued to the circuit court, and argues on appeal, that Rule 32 is the proper avenue for individuals convicted of non-capital offenses to seek DNA testing. We agree.

Before the enactment of § 15-18-200, this Court recognized that a postconviction request for DNA testing could be presented in a Rule 32 petition for postconviction relief. In Dowdell v. State, 854 So.2d 1195 (Ala.Crim.App.2002), Barry Dowdell filed a Rule 32 petition challenging his 1986 conviction for first-degree rape and his resulting sentence of 18 years’ imprisonment. In his petition, Dowdell asserted that he was entitled to relief from his conviction and sentence based on newly discovered material facts. See Rule 32.1(e). Specifically, Dowdell argued that DNA testing would establish that he was innocent of the rape, and he asserted that he had “only recently learned of this method of establishing his innocence.” Dowdell, 854 So.2d at 1197. On appeal from the circuit court’s summary dismissal of his petition, this Court held that Dowdell’s request for DNA testing was time-barred by Rule 32.2(c) because Alabama courts had recognized the admissibility of DNA evidence since 1991, when the Alabama Supreme Court issued its opinion in Ex parte Perry, 586 So.2d 242 (Ala.1991). Id. We also held that DNA evidence “was widely publicized during the 1990s” and, thus, that Dowdell’s assertion that he had only recently learned of DNA testing within six months of filing his June 2001 petition was not credible. Id. In doing so, however, this Court noted that “[h]ad Dowdell filed his petition within a reasonable time of the decision in Ex parte Perry, his claim that he had only recently learned about DNA testing would have been credible and we would have considered the merits of his petition alleging newly discovered evidence.” Id. at 1198.

In Barbour v. State, 903 So.2d 858 (Ala. Crim.App.2004), Christopher D. Barbour filed a successive Rule 32 petition attacking his convictions for three counts of capital murder — murder committed during the course of a rape, murder committed during the course of a burglary, and murder committed during the course of an arson — and his resulting sentence of death. Among the claims in his petition was a claim of newly discovered material facts under Rule 32.1(e) and a request for DNA testing of the biological evidence in the case based on “ ‘significant, recent technological developments.’” Barbour, 903 So.2d at 864. On appeal from the circuit court’s denial of Barbour’s petition, this Court first noted that because Barbour’s request for DNA testing was based on recent technological developments in DNA testing, his request was not precluded as successive under Rule 32.2(b) or time-barred by Rule 32.2(c), as was the case in Dowdell. However, this Court held that Barbour’s request for DNA testing failed to meet the materiality requirement of newly discovered material facts in Rule 32.1(e) because the evidence at trial established that Barbour was an accomplice in the rape, not the actual rapist, and that, therefore, “there is no need for postconviction DNA testing in this ease; such testing would have no relevance.” Id. at 867.

Thus, in both Dowdell and Barbour, this Court recognized that a postconviction request for DNA testing could be made in a Rule 32 petition within the confínes of newly discovered material facts under Rule 32.1(e). Although § 15-18-200, enacted in 2009, clearly took postconviction requests for DNA testing for individuals convicted of capital offenses out of the realm of Rule 32, we do not believe that § 15-18-200 affected the ability of individuals convicted of noncapital offenses to seek DNA testing through Rule 32. Section 15-18-200 does not mention DNA testing for individuals convicted of noncap-ital offenses, and the plain language of the statute evidences no intent on the part of the Alabama Legislature to disturb existing law on the subject. As the United States Court of Appeals for the Eleventh Circuit has aptly explained:

“Because it applies only to capital defendants, Cunningham argues that the new statute [§ 15-18-200] constitutes a ‘deliberate policy choice’ by Alabama to deny evidence for DNA testing in non-capital eases such as his own. We are not persuaded. The statute does not address non-capital cases at all, and nothing in its language suggests any legislative intent to restrict or eliminate existing possibilities for non-capital defendants to seek discovery under Rule 32. The legislature might well have thought that death penalty cases had a more urgent claim on its attention and warranted more explicit and specific procedures, while leaving the procedure in non-capital cases to the courts to develop.”

Cunningham v. District Attorney’s Office for Escambia County, 592 F.3d 1237, 1267 (11th Cir.2010).

Therefore, we hold that § 15-18-200 governs postconviction requests for DNA testing for those individuals convicted of capital offenses, while Rule 32 continues to govern postconviction requests for DNA testing for those individuals convicted of noncapital offenses. Accordingly, the circuit court here properly treated Lloyd’s postconviction request for DNA testing as a Rule 32 petition for postconviction relief.

II.

Lloyd also argues on appeal that the circuit court erred in denying his request for DNA testing of the rape kit performed on P.P. Lloyd contends that if the rape kit were tested for DNA, he would be exonerated of the rape and sodomy of P.P., and that the circuit court’s applying the preclu-sions in Rule 32.2 to his request for DNA testing resulted in a miscarriage of justice that requires reversal. We disagree.

As noted above, an individual convicted of a noncapital offense, like Lloyd, may make a postconviction request for DNA testing in a Rule 32 petition within the confínes of newly discovered material facts under Rule 32.1(e). See Dowdell and Barbour, supra. Rule 32.1(e) provides:

“Subject to the limitations of Rule 32.2, any defendant who has been convicted of a criminal offense may institute a proceeding in the court of original conviction to secure appropriate relief on the ground that:
“(e) Newly discovered material facts exist which require that the conviction or sentence be vacated by the court, because:
“(1) The facts relied upon were not known by the petitioner or the petitioner’s counsel at the time of trial or sentencing or in time to file a posttrial motion pursuant to Rule 24, or in time to be included in any previous collateral proceeding and could not have been discovered by any of those times through the exercise of reasonable diligence;
“(2) The facts are not merely cumulative to other facts that were known;
“(3) The facts do not merely amount to impeachment evidence;
“(4) If the facts had been known at the time of trial or of sentencing, the result probably would have been different; and
“(5) The facts establish that the petitioner is innocent of the crime for which the petitioner was convicted or should not have received the sentence that the petitioner received.”

(Emphasis added.) All five requirements in Rule 32.1(e) must be satisfied in order to constitute newly discovered material facts, and, if all the requirements in Rule 32.1(e) are not satisfied, a claim of newly discovered material facts is subject to the preclusions in Rule 32.2. See McConico v. State, 84 So.3d 159, 161-62 (Ala.Crim.App. 2011), and McCartha v. State, 78 So.3d 1014, 1017-18 (Ala.Crim.App.2011) (both holding that a claim of newly discovered material facts that fails to satisfy the requirements of Rule 32.1(e) is subject to the preclusions in Rule 32.2).

The requirements in Rules 32.1(e)(1), (e)(2), and (e)(3) are self-explanatory. Rule 32.1(e)(5) requires not that the newly discovered facts actually establish a petitioner’s innocence but that the newly discovered facts “go to the issue of the defendant’s actual innocence,” i.e., are relevant to the issue of guilt or innocence, “as opposed to a procedural violation not directly bearing on guilt or innocence.” Ex parte Ward, 89 So.3d 720, 727 (Ala.2011). As for the requirement in Rule 32.1(e)(4) “that the result probably would have been different had the newly discovered evidence been presented to the jury, this calculation must be made based on the probative value of the newly discovered evidence and its relationship to the other evidence presented to the jury.” Id. at 728.

In this case, Lloyd’s request for DNA testing appears to satisfy the requirements in Rule 32.1(e)(2) through (e)(5). Lloyd alleged that no DNA testing was performed before trial; thus, the results of DNA testing would not be merely cumulative to other facts that were known, see Rule 32.1(e)(2), and would not merely amount to impeachment evidence, see Rule 32.1(e)(3). Lloyd also alleged that his convictions were based for the most part on the testimony of the victim and statements made by the victim to third parties, and that despite a rape kit being collected, no DNA testing was done to determine if his DNA was in the biological samples collected as part of the rape kit. Thus, the results of DNA testing, if those results revealed that Lloyd’s DNA did not match the DNA in the rape kit (if such DNA existed) as Lloyd argues they would, had they been known at the time of trial or of sentencing, probably would have altered the outcome of his trial. See Rule 32.1(e)(4). Finally, the results of DNA testing would clearly be relevant as to Lloyd’s guilt or innocence. See Rule 32.1(e)(5).

Although Lloyd’s pleadings satisfy the last four requirements in Rule 32.1(e), they clearly fail to satisfy the first requirement. Lloyd did not allege in his petition that he was unaware of the existence of the rape kit performed on P.P. or that he could not have had the kit tested for DNA at the time of trial or sentencing or in time to file a posttrial motion pursuant to Rule 24, Ala. R.Crim. P., or in time to be included in any previous collateral proceeding, and that he could not have discovered the existence of the rape kit or obtained DNA testing of the rape kit by any of those times through the exercise of reasonable diligence. See Rule 32.1(e)(1). Lloyd also did not allege in his petition that his request for DNA testing was based on new technological improvements in DNA testing that were not available at the time of his trial, at the time of his sentencing, at the time of any posttrial motion, or at the times he filed his previous Rule 32 petitions.

Because Lloyd’s request for DNA testing does not satisfy all five of the requirements in Rule 32.1(e), it is, as the circuit court found, subject to the preclusions in Rule 32.2. Based on our review of the record from Lloyd’s direct appeal, it is clear that Lloyd was well aware of the existence of the rape kit before his trial— the rape kit was specifically mentioned during a pretrial hearing. Therefore, Lloyd’s request is precluded by Rule 32.2(a)(3) and (a)(5) because it could have been, but was not, raised and addressed at trial and on appeal.

Moreover, because this is Lloyd’s third Rule 32 petition, his request is precluded by Rule 32.2(b) as successive. Although it is unclear from this Court’s records whether or not Lloyd requested DNA testing in his second petition, under the circumstances in this case, that does not prohibit our application of Rule 32.2(b). If Lloyd did request DNA testing in his second petition, his current request is precluded under the provision in Rule 32.2(b) that “[t]he court shall not grant relief on a successive petition on the same or similar grounds on behalf of the same petitioner.” If Lloyd did not request DNA testing in his second petition, then his current request is precluded under the provision in Rule 32.2(b) that “[a] successive petition on different grounds shall be denied unless” (1) the new grounds are jurisdictional or (2) the petitioner establishes that “good cause exists why the new ground or grounds were not known or could not have been ascertained through reasonable diligence when the first petition was heard, and that failure to entertain the petition will result in a miscarriage of justice.” A request for DNA testing as a newly-discovered-material-facts claim is not jurisdictional, and Lloyd failed to allege in his petition good cause for not making his request for DNA testing in either of his two previous petitions.

Finally, Rule 32.2(c) provides:

“Subject to the further provisions hereinafter set out in this section, the court shall not entertain any petition for relief from a conviction or sentence on the grounds specified in Rule 32.1(a) and (f), unless the petition is filed: (1) In the case of a conviction appealed to the Court of Criminal Appeals, within one (1) year after the issuance of the certificate of judgment by the Court of Criminal Appeals under Rule 41, Ala. RApp. P.; or (2) in the case of a conviction not appealed to the Court of Criminal Appeals, within one (1) year after the time for filing an appeal lapses; provided, however, that the time for filing a petition under Rule 32.1(f) to seek an out-of-time appeal from the dismissal or denial of a petition previously filed under any provision of Rule 32.1 shall be six (6) months from the date the petitioner discovers the dismissal or denial, irrespective of the one-year deadlines specified in the preceding subparts (1) and (2) of this sentence; and provided further that the immediately preceding proviso shall not extend either of those one-year deadlines as they may apply to the previously filed petition. The court shall not entertain a petition based on the grounds specified in Rule 32.1(e) unless the petition is filed within the applicable one-year period specified in the first sentence of this section, or -within six (6) months after the discovery of the newly discovered material facts, whichever is later; provided, however, that the one-year period during which a petition may be brought shall in no case be deemed to have begun to run before the effective date of the precursor of this rule, i.e., April 1,1987.”

Lloyd’s petition was filed over four years after this Court issued the certificate of judgment finalizing his convictions and, as noted above, it is clear that Lloyd was aware of the existence of the rape kit before his trial began. Therefore, his request for DNA testing was also clearly time-barred by Rule 32.2(c).

Rule 32.7(d), Ala. R.Crim. P., authorizes the circuit court to summarily dismiss a petitioner’s Rule 32 petition

“[i]f the court determines that the petition is not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings ...”

See also Hannon v. State, 861 So.2d 426, 427 (Ala.Crim.App.2003); Cogman v. State, 852 So.2d 191, 193 (Ala.Crim.App.2002); Tatum, v. State, 607 So.2d 383, 384 (Ala. Crim.App.1992). Because Lloyd’s request for DNA testing was clearly precluded, the circuit court’s summary dismissal of Lloyd’s Rule 32 petition was appropriate.

Based on the foregoing, the judgment of the circuit court is affirmed.

AFFIRMED.

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

      . This Court may take judicial notice of its own records, and we do so in this case. See Nettles v. State, 731 So.2d 626, 629 (Ala.Crim. App.1998), and Hull v. State, 607 So.2d 369, 371 n. 1 (Ala.Crim.App.1992).

      . Lloyd also made arguments in his motion about his "mental illness” and alleged that "perjured testimony” had been used at his trial. (C. 7.) However, it does not appear that Lloyd intended these arguments to be separate claims for relief and, in any event, Lloyd does not pursue them on appeal. See, e.g., Brownlee v. State, 666 So.2d 91, 93 (Ala.Crim. App.1995) ("We will not review issues not listed and argued in brief.”).

      . In Cunningham, the Eleventh Circuit Court of Appeals considered whether Alabama’s postconviction procedures for seeking DNA testing were "constitutionally adequate to secure any limited liberty interest [convicted defendants] may have in seeking DNA evidence that might prove [their] innocence" in accordance with the United States Supreme Court’s opinion in District Attorney’s Office for the Third Judicial District v. Osborne, 557 U.S. 52, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009). 592 F.3d at 1263. Because § 15-18-200 provides an avenue for individuals convicted of capital offenses to seek DNA testing in the postconviction context and because Rule 32 provides an avenue for individuals convicted of noncapital offenses to seek DNA testing in the postconviction context (specifically pursuant to Rule 32.1(e) and postconviction discovery under Ex parte Land, 775 So.2d 847 (Ala. 2000)), the Court concluded, Alabama's procedures were adequate and in compliance with Osborne.

      . This Court’s records reflect that Lloyd did not make any request for DNA testing in his first petition.

      . Lloyd did not assert equitable tolling in his petition. See, e.g., Ex parte Ward, 46 So.3d 888, 897-98 (Ala.2007) (”[W]hen a Rule 32 petition is time-barred on its face, the petition must establish entitlement to the remedy afforded by the doctrine of equitable tolling. A petition that does not assert equitable tolling, or that asserts it but fails to state any principle of law or any fact that would entitle the petitioner to the equitable tolling of the applicable limitations provision, may be summarily dismissed without a hearing.”).


text:
    FLORIDA BOARD OF BAR EXAMINERS. Re D.M.B.
    No. SC13-165.
    Supreme Court of Florida.
    Feb. 7, 2014.
   AMENDED ORDER

The Florida Board of Bar Examiners (Board) has filed a “Report and Recommendation” regarding the application of D.M.B. for admission to The Florida Bar. See art. V, § 15, Fla. Const. The Board recommended that D.M.B. be conditionally admitted to the Bar subject to “probation for an indefinite period of time,” which would require his compliance with the terms and conditions set forth in the Board’s report and D.M.B.’s consent agreement. See Fla. Bar Admiss. R. 3-22.5(b) and 5-15. The Court disapproves the Board’s recommendation and hereby permanently denies D.M.B. admission to The Florida Bar. See Fla. Bar Admiss. R. B — 23.6(d); Fla. Bd. Bar Examiners re: Castro, 87 So.3d 699 (Fla.2012); Fla. Bd. Bar Examiners Re: W.F.H., 933 So.2d 482 (Fla.2006).

D.M.B. (“Applicant”) has an extensive and documented history of sexual exploitation and misconduct. In 1984, Applicant received an M.D. degree and, in 1985, was licensed to practice medicine in Ohio. Shortly thereafter, he was investigated for inappropriate sexual conduct while he was a resident at a university hospital. Applicant had allowed a female patient in the hospital to perform oral sex on him.

Next, according to the sworn statement Applicant provided to the Ohio medical board, in 1992 he began treatment of a female patient. Applicant engaged in sexual conduct with this patient “on three to five occasions” by allowing her to perform oral sex on him. This conduct would occur at the conclusion of regularly scheduled patient visits.

In 1993, Applicant committed the same misconduct when treating another female patient. He engaged in inappropriate sexual conduct with this patient “on three to five occasions” in an examination room in his medical office or in a room at the hospital.

In 2001, Applicant began treating another female patient in the hospital. Later that month he treated the patient in his medical office. Applicant engaged in sexual intercourse with the patient in his office.

In addition to these incidents, the Board of Bar Examiners found that Applicant had extramarital affairs with approximately nineteen other female patients while he was their doctor.

Further, in October 2001, a patient filed a criminal complaint against Applicant alleging sexual assault and rape. Criminal charges were not pursued due to insufficient evidence.

In April 2002, Applicant’s medical privileges at a hospital were suspended pending the investigation of allegations of sexual misconduct with a patient.

In July 2002, Applicant terminated his medical privileges at another hospital when he was asked to provide certain information during an investigation regarding allegations of sexual misconduct.

In August 2008, following an investigation into claims of sexual misconduct with his patients, the State Medical Board of Ohio permanently revoked Applicant’s certificate to practice medicine in that state. The Ohio medical board found that his improper sexual conduct with patients constituted a failure to conform to the minimal standards of care. Significantly, the State Medical Board of Ohio also found that Applicant violated several provisions of the Code of Ethics of the American Medical Association.

Between 2003 and 2004, Applicant submitted applications to the medical licensing boards for the states of West Virginia, Georgia, Arizona, and Florida. His application was denied by the licensing board in Florida, in part, for his misconduct in Ohio of “exercising influence within a patient-physician relationship for purposes of engaging a patient in sexual activity.” Applicant withdrew his applications in the three remaining states because he had been notified it was likely the applications would be denied.

The Florida Board of Bar Examiners found that Applicant has repeatedly provided explanations that were false, misleading, untruthful, and lacking in candor. He was untruthful when he was investigated by the hospital. Applicant provided sworn statements to the State Medical Board of Ohio that were false, misleading, or lacking in candor. When he applied to the West Virginia Board of Medicine to be licensed as a doctor, he provided a false or misleading explanation of the Ohio events. In his 2008 Florida Bar Application, his description of the misconduct during his residency stated that he and the patient were kissing. Applicant’s explanation was false, misleading, or lacking in candor because he failed to disclose that the patient performed oral sex on him.

Before the Florida Board of Bar Examiners, Applicant submitted evidence showing that since 2003 he has undergone treatment directed at a sexual- disorder. He participated in a two-month intensive outpatient program, began and continued participation in a twelve-step program for recovering sexual addicts and, in 2008, began therapy. The Board recommended that Applicant undergo a psychosexual evaluation. The doctor who evaluated Applicant in 2009 determined that he does not have a major mental disorder or syndrome. The doctor recommended conditional admission with Applicant’s continued participation in a twelve-step program and continued treatment with his current treatment provider. Thereafter, the Board submitted a report to the Court recommending that Applicant be conditionally admitted to The Florida Bar subject to certain terms and conditions. The Court issued an order in June 2010 disapproving the Board’s recommendation.

A year later, in July 2011, Applicant appeared before a division of the Board for an additional hearing. After the hearing, the Board determined that the pending Specifications were proven and individually or collectively disqualifying, and that Applicant had not proven rehabilitation from his past misconduct. The Board concluded that his admission should be withheld for one year to provide him an opportunity to demonstrate his rehabilitation by complying with certain conditions, including continued involvement in the twelve-step program, treatment with a doctor, and community service of at least 500 hours.

In June 2012, Applicant submitted a sworn report to the Board describing his evidence of rehabilitation and compliance with the specified conditions. The report included character letters, character affidavits, evidence of the nature and extent of his community service, and other documentary evidence. Applicant has completed 521 hours of community service. In 2003, he began participating in a twelve-step program for recovering sexual addicts and has remained active in the program for the past nine years. A doctor testified before the Board that Applicant’s “sexual misconduct and addiction [are] in full remission” and that no evidence of mental illness remained. The doctor stated, however, that Applicant could be admitted to the Bar subject to “continuing his current program of treatment” and other constant conditions. The Board has filed a report recommending that Applicant be conditionally admitted to The Florida Bar, subject to probation for an “indefinite period” with several continuing terms and conditions.

The Court is not precluded from reviewing the factual underpinnings of the Board’s recommendation, based on an independent review of the record. Fla. Bd. Bar Examiners re M.B.S., 955 So.2d 504, 508 (Fla.2007). Based upon its review, the Court disapproves the Board’s recommendation and permanently denies D.M.B. admission to The Florida Bar. The facts in this case and the Court’s case law speak directly to Applicant’s character and fitness deficiencies. The Court has repeatedly stated that “[e]ven the slightest hint of sexual coercion or intimidation directed at a client must be avoided at all costs.” Fla. Bar v. Scott, 810 So.2d 893, 900 (Fla.2002) (quoting Fla. Bar v. Sam-aha, 557 So.2d 1349,1350 (Fla.1990); Scott was disbarred for sexual misconduct with a client). Applicant has not committed a “slight hint” of professional misconduct; rather, for over a decade, he improperly used his influence as a treating physician to engage in sexual activities with approximately twenty-five of his patients.

The State Medical Board of Ohio found that Applicant’s misconduct with his patients constituted a failure to “conform to the minimal standards of care.” Applicant used his professional license to exploit vulnerable people — his own patients — who trusted him to provide them with proper care. This behavior is not tolerable. In Florida Bar v. McHenry, 605 So.2d 459, 460-61 (Fla.1992), the Court disbarred an attorney who engaged in improper touching and sexual acts towards two clients. The Court found that his behavior demonstrated “severe moral turpitude, and his character and conduct are wholly inconsistent with approved professional standards.” Id.; see also Fla. Bar v. Sentón, 882 So.2d 997, 1000 (Fla.2004) (the respondent was disbarred for exploiting the lawyer-client relationship by coercing his client into engaging in sexual conduct on two occasions). Further, in Scott, the Court specifically approved the referee’s finding that Scott’s sexual misconduct demonstrated “a callous disregard for his client’s best interests, and the vilest exploitation of her vulnerability.” Scott, 810 So.2d at 897. Applicant has an extensive and documented history of preying upon his vulnerable female patients. The Court cannot permit a person with this history to become a member of The Florida Bar, where he could misuse his license to practice law just as he misused his license to practice medicine — by gaining peoples’ trust and then exploiting them for his own sexual gratification.

Applicant cannot be trusted with clients. This point was made abundantly clear when the medical licensing board for the State of Florida denied his application due to his past misconduct of “exercising influence within a patient-physician relationship for purposes of engaging a patient in sexual activity.” When Applicant received notice that the other three state medical licensing boards were going to deny his applications, he withdrew those applications. That fact that four separate medical licensing boards denied or notified Applicant that they were going to deny his applications demonstrates that Applicant’s past misconduct is so egregious that these professional organizations will not grant him licenses or allow him to have patients. Further, the State Medical Board of Ohio permanently revoked his certificate to practice medicine in Ohio. The reasoning of these medical licensing boards is applicable to Applicant’s request to become a member of The Florida Bar. Applicant had sexual relations with approximately twenty-five of his patients who were relying on him for professional care. Also, over the course of a decade, Applicant repeatedly violated the Code of Ethics of the American Medical Association. His egregious conduct does not demonstrate that he would respectfully obey the professional ethics of the legal profession.

In addition, Applicant has repeatedly provided statements that were false, misleading, and lacking in candor. As the Florida Board of Bar Examiners found, Applicant was untruthful when he was investigated by the hospital. Further, in 2002, he provided sworn statements to the State Medical Board of Ohio that were false, misleading, or lacking in candor. In 2003, when he applied to the West Virginia Board of Medicine, he provided a false or misleading explanation of the Ohio events. Even in his 2008 Florida Bar Application, his description of his misconduct during his residency was false, misleading, or lacking in candor because he only stated that he and the patient had been kissing. “Truthfulness and candor are the most important qualifications for Bar membership.” Fla. Bd. Bar Examiners re M.B.S., 955 So.2d 504, 509 (Fla.2007); see also Fla. Bd. Bar Examiners ex reí. R.L.W., 793 So.2d 918, 926 (Fla.2001) (“no qualification for membership in The Florida Bar is more important than truthfulness and candor”).

Accordingly, the totality of the circumstances, which includes the underlying facts of the instant case, is so egregious and impacts so adversely on the character and fitness of D.M.B. that the misconduct mandates that D.M.B. not be admitted to The Florida Bar now or at any time in the future.

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


author: PER CURIAM. PARIENTE, J., CANADY, J.,

text:
    In re AMENDMENTS TO the FLORIDA EVIDENCE CODE.
    No. SC13-98.
    Supreme Court of Florida.
    July 10, 2014.
    Thomas Charles Allison, Chair, Code and Rules of Evidence Committee, Fox Rothschild LLP, West Palm Beach, FL; Thomas D. Shults, Past Chair, Code and Rules of Evidence Committee, Kirk-Pinkerton, P.A., Sarasota, FL; John Harkness, Executive Director, and Ellen Sloyer, Bar Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
    Wayne Lawrence Helsby, Winter Park, FL, Theodore C. Eastmoore, Sarasota, FL, and Hector Antonio Moré, Orlando, FL, on behalf of The Trial Lawyers Section of the Florida Bar; Jay Cohen of the Law Office of Jay Cohen, P.A., Ft. Laud-erdale, FL; Scott Ramsey McMillen of McMillen Law Firm, Orlando, FL; Stuart Z. Grossman, Neal Allan Roth, Andrew B. Yaffa, Seth Eric Miles, Brett Elliott Von Borke, Natasha Santiago Cortes, Susan C. Odess, David Marc Buckner, and Robert Cecil Gilbert of Grossman Roth, P.A., Coral Gables, FL; Gary M. Cohen of Gross-man Roth, P.A., Boca Raton, FL; William E. Partridge and Patrick Stephen McArdle of Grossman Roth and Partridge, Sarasota, FL; Sean C. Domnick of Domnick and Shevin PL, Palm Beach Gardens, FL; James William Gustafson, Jr. of Searcy Denney Scarola Barnhart & Shipley, P.A., Tallahassee, FL; Larry Scott Stewart of Stewart Tilghman Fox Bianchi & Gain, P.A., Miami, FL; and Lee Delton Gunn, IV of the Gunn Law Group, Tampa, FL, Responding with comments.
   REVISED OPINION

PER CURIAM.

The case is before the Court upon the motion for rehearing filed by the Florida Bar Code and Rules of Evidence Committee. We grant the motion for rehearing, withdraw our prior opinion dated December 12, 2013, and substitute the following in its place:

We have for consideration the regular-cycle report filed by the Florida Bar Code and Rules of Evidence Committee (Committee) concerning recent legislative changes to the Florida Evidence Code (Code), see ch.2011-183, § 1, Laws of Fla.; ch.2012-152, § 1, Laws of Fla.; and to section 766.102(12) of the Florida Statutes, see ch.2011-233, § 10, Laws of Fla. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee recommends that the Court adopt the above provisions to the extent that they concern court procedure. The amendments at issue in this case are those enacted by the Florida Legislature since this Court last considered amendments to the Florida Evidence Code. See In re Amends, to the Fla. Evidence Code, 53 So.3d 1019 (Fla.2011). For the reasons discussed below, we decline to adopt two of the Committee’s three recommendations.

In chapter 2011-183, section 1, Laws of Florida, the Legislature enacted section 90.5021, Florida Statutes, which establishes a “fiduciary lawyer-client privilege.” According to • the Committee, whether a fiduciary is entitled to the lawyer-client privilege when the fiduciary employs an attorney in connection with his or her fiduciary duties has been an issue in several cases; for example, the Committee cites Jacob v. Barton, 877 So.2d 935 (Fla. 2d DCA 2004), and Tripp v. Salkovitz, 919 So.2d 716 (Fla. 2d DCA 2006). We decline to follow the Committee’s recommendation to adopt the new provision of the Code because we question the need for the privilege to- the extent that it is procedural.

In chapter 2012-152, section 1, Laws of Florida, the Legislature amended section 90.804 to include the hearsay exception of “Statement offered against a party that wrongfully caused the declarant’s unavailability.” See § 90.804(2)(f), Fla. Stat. (2012). According to the Committee, the provision is a codification of the common law rule that one who wrongfully procures the absence of a witness from court cannot complain of the admission of the hearsay statement of the witness. See Reynolds v. United States, 98 U.S. 145, 158-59, 25 L.Ed. 244 (1878). We adopt chapter 2012-152, section 1, Laws of Florida, to the extent that the provision is procedural.

Finally, in chapter 2011-233, section 10, Laws of Florida, the Legislature created section 766.102(12), Florida Statutes, which provides as follows:

766.102 Medical negligence; standards of recovery; expert witness.
(12) If a physician licensed under chapter 458 or chapter 459 or a dentist licensed under chapter 466 is the party against whom, or on whose behalf, expert testimony about the prevailing professional standard of care is offered, the expert witness must be licensed under chapter 458, chapter 459, or chapter 466 or possess a valid expert witness certificate issued under s. 458.3175, s. 459.0066, or s. 466.005.

§ 766.102(12), Fla. Stat. (2012). The Committee voted 14-13 to recommend that the statutory provision be adopted as a rule of procedure to the extent that it is procedural. The Board of Governors voted 34-5 to recommend that the Court reject the Committee’s proposal, on the grounds that the provision is unconstitutional, will have a chilling effect on the ability to obtain expert witnesses, and is prejudicial to the administration of justice. Numerous comments were filed with respect to this proposal, all in opposition to its adoption. After hearing oral argument and carefully considering the Committee’s recommendation in light of those comments, we decline to follow this recommendation due to the concerns raised.

Accordingly, the Court declines to adopt chapter 2011-183, section 1 or chapter 2011-233, section 10, Laws of Florida, to the extent they are procedural. The Court adopts chapter 2012-152, section 1, Laws of Florida, as provided in the appendix to this opinion to the extent that the provision is procedural. Our adoption of the amendment is effective retroactively to the date the amendment became law.

It is so ordered.

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

PARIENTE, J., concurs in part and dissents in part with an opinion.

CANADY, J., concurs in part and dissents in part with an opinion.

PARIENTE, J.,

concurring in part and dissenting in part.

I concur in the majority’s decision to decline to adopt chapter 2011-183, section 1, and chapter 2011-233, section 10, Laws of Florida, to the extent they are procedural, for the reasons stated in the majority opinion. I dissent, however, from the majority’s decision on rehearing to adopt chapter 2012-152, section 1, Laws of Florida, in light of my continued concerns as to the constitutional implications of this provision as it is applied.

Specifically, chapter 2012-152, section 1, which added a new hearsay exception to section 90.804(2), Florida Statutes, entitled “Statement offered against a party that wrongfully caused the declarant’s unavailability,” raises potential Sixth Amendment issues. Clearly, the constitutionality of the amended statute is not currently before us, and a determination of its constitutionality will require the consideration of this doctrine as applied in an actual case or controversy, where the statement of an unavailable declarant is admitted pursuant to this newly added hearsay exception and the issue is raised and argued by the parties. When this Court previously has had significant constitutional concerns regarding a new provision in the Florida Evidence Code, however, the Court has declined to adopt the statutory amendment as a rule. See In re Amends, to the Fla. Evidence Code, 782 So.2d 339, 341 (Fla.2000) (declining to adopt the former testimony exception to the hearsay rule because of constitutional concerns and awaiting a “case or controversy” in order to pass on the constitutionality of the legislation itself).

In support of the amendment, the Florida Bar Code and Rules of Evidence Committee asserts that chapter 2012-152, section 1, is merely a codification of the common law, and that Giles v. California, 554 U.S. 353, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008), “confirms” that this provision is constitutional. In adopting the Committee’s proposal to the extent it is procedural, the majority simply cites to the Committee’s reliance on Reynolds v. United States, 98 U.S. 145, 158-59, 25 L.Ed. 244 (1878), as support for its position that chapter 2012-152, section 1, codifies the common law. While not itself an endorsement of the statute’s constitutionality, the majority’s failure to refer to the more recent pronouncement of the United States Supreme Court on this issue in Giles, also cited by the Committee, leaves this Court’s analysis and approval of the proposal incomplete. A thorough review of Giles demonstrates that this issue is more nuanced and complex than the Committee contends.

In Giles, the Supreme Court addressed “whether a defendant forfeits his Sixth Amendment right to confront a witness against him when a judge determines that a wrongful act by the defendant made the witness unavailable to testify at trial.” 554 U.S. at 355,128 S.Ct. 2678. Reviewing the doctrine of “forfeiture by wrongdoing,” which at common law permitted the introduction of statements of a witness who was “detained” or “kept away” by the “means or procurement” of the defendant, the Supreme Court explained that the forfeiture exception “applied only when the defendant engaged in conduct designed to prevent the witness from testifying.” Id. at 359, 128 S.Ct. 2678. The Supreme Court stated that the “manner in which the rule was applied [at common law] makes plain that unconfronted testimony would not be admitted without a showing that the defendant intended to prevent a witness from testifying.” Id. at 361, 128 S.Ct. 2678.

As further articulated by the Supreme Court:

In cases where the evidence suggested that the defendant had caused a person to be absent, but had not done so to prevent the person from testifying — as in the typical murder case involving ac-cusatorial statements by the victim — the testimony was excluded unless it was confronted or fell within the dying-declarations exception. Prosecutors do not appear to have even argued that the judge could admit the unconfronted statements because the defendant committed the murder for which he was on trial.

Id. at 361-62, 128 S.Ct. 2678 (emphasis added). In other words, “American courts never — prior to 1985 — invoked forfeiture outside the context of deliberate witness tampering.” Id. at 366, 128 S.Ct. 2678.

Although the Supreme Court acknowledged in Giles that it had previously approved a Federal Rule of Evidence for “forfeiture by wrongdoing,” which the state version enacted by the Florida Legislature in 2012 tracks, the Supreme Court emphasized that the requirement of intent in the rule is critical and has been interpreted narrowly by commentators and treatises to mean “that the exception applies only if the defendant has in mind the particular purpose of making the witness unavailable.” Id. at 367, 128 S.Ct. 2678 (quoting 5 C. Mueller & L. Kirkpatrick, Federal Evidence § 8:134, p. 235 (3d ed. 2007)). Thus, as Giles makes clear, the specific intent of the defendant to deliberately prevent the witness from testifying through bribery, intimidation, or other means is of constitutional significance in any analysis of the “forfeiture by wrongdoing” rule:

The absence of a forfeiture rule covering [conduct designed to prevent a witness from testifying] would create an intolerable incentive for defendants to bribe, intimidate, or even kill witnesses against them. There is nothing mysterious about courts’ refusal to carry the rationale further. The notion that judges may strip the defendant of a right that the Constitution deems essential to a fair trial, on the basis of a prior judicial assessment that the defendant is guilty as charged, does not sit well with the right to trial by jury. It is akin, one might say, to “dispensing with jury trial because a defendant is obviously guilty.” Crawford, 541 U.S. at 62 [124 S.Ct. 1354].

Id. at 365,128 S.Ct. 2678.

The Supreme Court also noted that, at common law, the doctrine of “forfeiture by wrongdoing” was “never” invoked in murder prosecutions like Giles, where the victim’s prior statements inculpated the defendant. Id. at 367, 128 S.Ct. 2678. Moreover, in rejecting a broader interpretation of the “forfeiture by wrongdoing” doctrine, which was advanced by the dissenting opinion in that case, the Supreme Court stated that its narrow interpretation of the intent requirement in the common-law forfeiture rule was supported by “the common law’s uniform exclusion of uneon-fronted inculpatory testimony by murder victims (except testimony given with awareness of impending death) in the innumerable cases in which the defendant was on trial for killing the victim, but was not shown to have done so for the purpose of preventing testimony.” Id. at 368, 128 S.Ct. 2678.

The problem and possible constitutional implications of the doctrine of “forfeiture by wrongdoing,” now included in the Florida Evidence Code, are thus not with the concept itself, but with the way it may be applied — that is, what will be the predicate for admissibility? Although agreeing in Giles with the Supreme Court’s historical analysis of the narrow “forfeiture by wrongdoing” doctrine, Justice Souter, joined by Justice Ginsburg, still remained concerned about the constitutional implications of this doctrine if not applied in a limited way, stating as follows in a separate concurring-in-part opinion:

As the Court demonstrates, the confrontation right as understood at the framing and ratification of the Sixth Amendment was subject to exception on equitable grounds for an absent witness’s prior relevant, testimonial statement, when the defendant brought about the absence with intent to prevent testimony. It was, and is, reasonable to place the risk of untruth in an uncon-fronted, out-of-court statement on a defendant who meant to preclude the testing that confrontation provides. The importance of that intent in assessing the fairness of placing the risk on the defendant is most obvious when a defendant is prosecuted for the very act that causes the witness’s absence, homicide being the extreme example. If the victim’s prior statement were admissible solely because the defendant kept the witness out of court by committing homicide, admissibility of the victim’s statement to prove guilt would turn on finding the defendant guilty of the homicidal act causing the absence; evidence that the defendant killed would come in because the defendant probably killed. The only thing saving admissibility and liability determinations from question begging would be (in a jury case) the distinct functions of judge and jury: judges would find by a preponderance of evidence that the defendant killed (and so would admit the testimonial statement), while the jury could so find only on proof beyond a reasonable doubt. Equity demands something more than this near circularity before the right to confrontation is forfeited, and more is supplied by showing intent to prevent the witness from testifying. Cf. Davis v. Washington, 547 U.S. 813, 838 [126 S.Ct. 2266, 165 L.Ed.2d 224] (2006).

Id. at 379, 128 S.Ct. 2678 (Souter, J., concurring in part) (emphasis added).

With the adoption of the “forfeiture by wrongdoing” doctrine as narrowly set forth in section 90.804(2), the critical question, as demonstrated by Giles, will be the establishment of the procedure for how the unavailable declarant’s out-of-court statement could be admitted into evidence in a manner consistent with the Confrontation Clause, which considerably restricts the scope of this hearsay exception. Although the Supreme Court’s opinion in Giles may be read to prevent the use of unconfronted statements in the circumstance of a murder prosecution where the victim’s prior statements inculpated the defendant — by limiting the admissibility of statements to cases of deliberate witness tampering, id. at 361-62, 128 S.Ct. 2678 (majority op.) — the key question for trial courts, as they apply this new hearsay exception in practice, will be to determine the predicate for admissibility. While the Committee asserts that Giles “confirms” the constitutionality of the new exception, Giles explains that a Confrontation Clause violation can be avoided only if the “forfeiture by wrongdoing” doctrine is applied in a narrow manner.

By simply adopting this proposal to the extent it is procedural but not explaining the procedures for admissibility that are at the heart of this exception and its constitutional implications, I am concerned that we are neither promoting the administration of justice nor furthering the goals of the Florida Evidence Code, which is designed to ensure and increase the reliability and quality of evidence admitted in Florida courts. Because of the nuances connected with this issue, I would await a case or controversy to consider this statute, determine its constitutionality, and, if constitutional, ensure that the procedures for the predicate for admissibility are clearly set forth.

CANADY, J.,

concurring in part and dissenting in part.

I concur with the majority’s decision to adopt the rule proposal based on chapter 2012-152. I would, however, also adopt the two other rule amendments recommended by the Code and Rules of Evidence Committee. I therefore dissent from the rejection of those two proposals.

APPENDIX

Chapter 2012-152, § 1:

90.804 Hearsay exceptions; declarant unavailable

(1) [No Change]

(2) HEARSAY EXCEPTIONS. — The following are not excluded under s. 90.802, provided that the declarant is unavailable as a witness:

(a)-(e) [No Change]

(f) Statement offered against a party that wrongfully caused the declarant’s unavailabilitu A statement offered against a party that wrongfully caused, or acquiesced in wrongfully causing, the declarant’s unavailability as a witness, and did so intending that result.

      . Chapter 2012-152, section 1, Laws of Florida, became effective on April 27, 2012.

        . In the past, and in the absence of significant concerns, this Court has generally approved of amendments to the Florida Evidence Code based on statutes passed by the Legislature, with the proviso that we were adopting the provisions as rules "to the extent they are procedural.” In re Amends, to the Fla. Evidence Code, 782 So.2d 339, 342 (Fla.2000). Recognizing that "the Florida Evidence Code is both substantive and procedural in nature, this Court has adopted the Evidence Code as originally enacted as well as later amended by the Legislature.” Id.


text:
    Walter E. WILLIAMS, Petitioner(s) v. STATE of Florida, Respondent(s).
    No. SC14-1168.
    Supreme Court of Florida.
    July 25, 2014.
   Having considered the petition for writ of prohibition filed in this Court as a petition filed under any or all of the jurisdictional bases described in Article V, Section 3(b)(3) and 3(b)(7)-(9), Florida Constitution, it appears that the Court is without jurisdiction. Accordingly, the petition is hereby dismissed. See Grate v. State, 750 So.2d 625 (Fla.1999); Jenkins v. State, 385 So.2d 1356 (Fla.1980).

No motion for rehearing will be entertained by the Court.