text:
    Timothy JACKSON, d/b/a T & L Unlimited and Ray’s Barbeque v. John T. DAVIS, Supermart, L.L.C., and Austin’s Seafood & Steakhouse, L.L.C.
    2120518.
    Court of Civil Appeals of Alabama.
    April 25, 2014.

      Joshua B. Sullivan of Henslee, Robertson, Strawn & Sullivan, LLC, Gadsden, for appellant. ■

      F. Michael Haney of Inzer, Haney, McWhorter <& Haney, LLC, Gadsden, for appellees.
   DONALDSON, Judge.

Timothy Jackson, d/b/a T & L Unlimited and Ray’s Barbeque (hereinafter sometimes referred to as “the tenant”), appeals from an order of the Etowah Circuit Court (“the circuit court”) granting possession of certain real estate to John T. Davis and Supermart, L.L.C. (“Supermart”) (Davis and Supermart are hereinafter referred to collectively as “the landlords”),, and denying the tenant an injunction against Davis, Supermart, and Austin’s Seafood & Steakhouse, L.L.C. (“Austin’s Seafood”)(the landlords and Austin’s Seafood are hereinafter referred to collectively as “the defendants”). We elect to treat the portion of the appeal challenging the jurisdiction of the circuit court to grant certain relief as a petition for a writ of mandamus, and we deny the petition. We dismiss the appeal as to the remaining issues on the basis that it does not arise from a final, appeal-able judgment.

Factual and Procedural History

The record shows that Jackson and his wife owned and operated Ray’s Barbeque, a restaurant in Gadsden, through a business entity named T & L Unlimited. In January 2012, the building where Ray’s Barbeque had been located for over 40 years was destroyed by a fire. Shortly thereafter, Jackson entered into negotiations with Davis to relocate Ray’s Barbeque to the Petro Travel Center (“the travel center”) in Gadsden, which Davis operated through a business entity named Supermart. Testimony indicates that the travel center is a “modern day truck stop” with various businesses operating on the premises providing services to truck drivers and other travelers. Davis testified that he also operated, through Austin’s Seafood, a restaurant named Austin’s Seafood and Steakhouse in a separate building located across the street from the travel center. In February 2012, Jackson and Davis reached an oral agreement for Ray’s Barbeque to relocate and operate in a vacant shop at the travel center. Testimony indicates that Jackson and Davis agreed that Ray’s Barbeque would be open for business in the mornings to provide a breakfast option for the travel center’s customers, that it would also serve lunch, and that it would be the sole source of hot food served at the travel center during breakfast and lunch hours because neither Austin’s Seafood and Steakhouse nor another business operating in the travel center would serve hot food during breakfast or lunch hours. The terms of the oral agreement, including the duration of the tenancy and the rent amount, were never reduced to writing. Following the discussions between Jackson and Davis and their reaching the oral agreement, Ray’s Barbeque opened at the travel center in early March 2012.

On April 3, 2012, Jackson delivered a rent payment of $2,000 to Davis. The following day, Davis informed Jackson that he was displeased with the arrangement and that Ray’s Barbeque would need to vacate the travel center’s premises. On April 9, 2012, Davis hand-delivered a notice to Jackson that directed Ray’s Barbeque to vacate the travel center because the landlords were terminating what Davis described in the notice as a month-to-month tenancy agreement. In the April 9 notice, Davis cited the failure of Ray’s Barbeque to provide breakfast services, as required by the terms of the oral agreement, as the reason for terminating of the tenancy.

In response to the notice, the tenant filed suit against the defendants in the circuit court on June 1, 2012. In the complaint, the tenant asserted a claim of breach of contract against Supermart, alleging that Supermart, without cause, prematurely terminated what was described as an enforceable five-year lease it had entered into with the tenant. The tenant also stated claims of tortious interference with business relations, conspiracy, and fraud against the defendants arising from the landlords’ alleged early termination of the five-year lease and based on allegations that Austin Seafood and Steakhouse had begun serving food during lunch hours in violation of the agreement between the tenant and the landlords. The tenant demanded a jury trial.

The defendants filed an answer denying all the tenant’s claims. The landlords also filed a counterclaim alleging that Davis had entered into an agreement with the tenant for use of a portion of the travel center operated by Supermart on a month-to-month basis for the sum of $8,500 per month; that the tenant had refused to pay the agreed-upon monthly payment; and that the tenant had negligently or recklessly damaged the property by causing a fire. As a part of the relief demanded in the counterclaim, the landlords sought a judgment against the tenant for immediate possession of the property, for all “unpaid rent” during tenant’s occupancy, and for damage to the property in the amount of $20,000, plus costs.

On August 17, 2012, the tenant moved for a preliminary injunction, seeking to enjoin the defendants from serving and selling any breakfast and hot-lunch items in the travel center and from taking any actions to discourage the customers of the travel center from patronizing Ray’s Barbeque. On August 27, 2012, the circuit court held a hearing and received ore ten-us testimony from Jackson and Davis. The transcript indicates that the hearing was limited to the landlords’ claim for immediate possession of the property and the tenant’s motion for a preliminary injunction. At the commencement of the hearing and again at the conclusion of the hearing, the tenant objected to the landlords’ claim for immediate possession on the ground that the circuit court lacked subject-matter jurisdiction to grant that relief. The tenant claimed that the relief being sought by the landlords was in the nature of the relief available in an unlawful-detainer action and that, because unlawful-detainer actions are within the exclusive jurisdiction of the district courts, the circuit court, therefore, could not grant the relief being requested. The landlords did not dispute the tenant’s characterization of the relief being sought, and the tenant did not raise an objection to the procedures being followed in conducting the hearing.

On August 31, 2012, the circuit court entered an order granting the portion of the landlords’ counterclaim seeking possession of the property and requiring the tenant to vacate the premises within 30 days of the entry of the order. The circuit court also denied the tenant’s motion for a preliminary injunction. In its order, the circuit court made several specific findings of fact, including the following:

“It is without dispute that there is no writing of any type reflecting the terms of any claimed agreement between the parties with respect to the occupancy by [the tenant] of the property of the [landlords]. The sworn testimony of the parties evidences that there was never, in fact, a ‘meeting of the minds’ of the parties. Specifically, the Court determines that the amount of rent, the length of any rental term, and other conditions such as requirements for opening and closing and hours of operation were, and are, uncertain or indefinite .... The Court therefore determines that the parties had no contract which is enforceable by this Court. Smith v. Chickamauga Cedar Co., 263 Ala. 245, 82 So.2d 200 (1955); Alexander v. Petroleum Installation Co., Inc., 695 So.2d 30 (Ala.Civ.App.1996).”

At the time the August 31, 2012, order was entered, there were numerous other claims pending between the tenant and defendants. The circuit court, therefore, certified the August 31, 2012, order as final pursuant to Rule 54(b), Ala. R. Civ. P. The tenant filed a motion seeking relief from the order, in which he again asserted that the circuit court lacked subject-matter jurisdiction to consider or to grant relief on the landlords’ claim for immediate possession. The circuit court held a hearing on that motion on September 21, 2012, and the motion was ultimately denied by operation of law. See Rule 59.1, Ala. R. Civ. P. The tenant timely appealed to our supreme court. The supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

Analysis

On appeal, the tenant contends that the circuit court improperly certified as final, pursuant to Rule 54(b), Ala. R. Civ. P., its August 31, 2012, order granting the landlords’ counterclaim for immediate possession. The tenant argues that the Rule 54(b) certification was improper because the landlords’ counterclaim for immediate possession is “so closely intertwined” with the remaining claims “that separate adjudication would pose an unreasonable risk of inconsistent results.” Branch v. South-Trust Bank of Dothan, N.A., 514 So.2d 1373,1374 (Ala.1987).

After a review of the record, we conclude that none of the claims asserted by the parties in the circuit court has been fully resolved; therefore, the August 31, 2012, order is neither final and appealable nor an appropriate order to be certified as final under Rule 54(b). The order did not adjudicate the tenant’s claims of breach of contract, fraud, tortious interference, and conspiracy. Nor did the circuit court’s order fully adjudicate the landlords’ counterclaims. As discussed in further detail below, the landlords’ counterclaim for immediate possession of the property and for damages for rent due constituted a claim of ejectment. A claim of ejectment is “considered a mixed action for the recovery of land and for damages for the use and occupation of the land.” I Jesse P. Evans III, Alabama Property Rights and Remedies § 20.1[b](5th ed.2012) (footnote omitted). The order partially adjudicated the ejectment claim by awarding the landlords possession of the property; however, the circuit court did not address the landlords’ request for damages for unpaid rent. Although the circuit court certified the August 31, 2012, order as final and appealable pursuant to Rule 54(b), our courts have consistently held that a trial court cannot certify a judgment disposing of only part of a claim as a final judgment under that rule. See Stephens v. Fines Recycling, Inc., 84 So.3d 867, 877 (Ala.2011); Austin v. Austin, 102 So.3d 403, 407 (Ala.Civ.App. 2012); and Martin v. Phillips, 7 So.3d 1012, 1020 (Ala.Civ.App.2008). The August 27, 2012, hearing was not a trial on the merits, and the circuit court considered only the landlords’ claim for possession and the tenant’s request for a preliminary injunction. Although Rule 65(a)(2), Ala. R. Civ. P., authorizes a trial court, “[bjefore or after the commencement of the hearing of an application for a preliminary injunction, ... [to] order the trial of the action on the merits to be advanced and consolidated with the hearing of the application,” there is no indication in the record that that procedure was followed in this case. Because no party has been fully heard on any claims, and because the remaining claims are intertwined with those addressed in the August 31, 2012, order, there is no final judgment for purposes of appellate review. Also, although Rule 4(a)(1)(A), Ala. RApp. P., authorizes a party to appeal an interlocutory order granting, continuing, modifying, refusing, or dissolving an injunction, the tenant has not challenged the August 31, 2012 order insofar as it denies the tenant’s request for a preliminary injunction.

The tenant next contends that the circuit court denied the right to a jury trial and usurped the role of the jury by making findings of fact in its August 31, 2012, order and that the circuit court should have permitted those factual issues to be decided by a jury. Because no final judgment has been entered and because the tenant has not challenged the denial of the request for a preliminary injunction, this issue is not properly before this court. We note, however, that, under Rule 52(a), Ala. R. Civ. P., a court considering a request for a preliminary injunction is permitted to make findings of fact and conclusions of law. Additionally, because the August 31, 2012, order is interlocutory, it is “subject to modification at any time before entry of the final judgment.” Uphaus v. Charter Hosp. of Mobile, 582 So.2d 1140, 1142 (Ala.Civ.App.1991). Thus, as the circuit court noted in the hearing on the tenant’s motion seeking relief from the order, the circuit court’s August 31, 2012, order does not preclude the tenant’s right to a jury trial on the breach-of-contract, fraud, tortious-interference, and conspiracy claims. See Rule 65(a)(2), Ala. R. Civ. P.

The tenant has also asserted on appeal that the circuit court did not have subject-matter jurisdiction to consider and to grant the landlords’ request for possession. The tenant contends that the portion of the counterclaim seeking possession of the property is in the nature of an unlawful-detainer action and that the circuit court lacked subject-matter jurisdiction to consider that claim. Although we have determined that the circuit court’s August 31, 2012, order resolving only a portion of this counterclaim is not final and appeal-able, we note that the question of subject-matter jurisdiction may be reviewed by a petition for a writ of mandamus. See Ex parte Liberty Nat’l Life Ins. Co., 888 So.2d 478, 480 (Ala.2003); see also Ex parte Johnson, 715 So.2d 788, 785 (Ala.1998), and Ex parte Alfa Mut. Gen. Ins. Co., 684 So.2d 1281 (Ala.1996). Accordingly, we elect to treat that aspect of the appeal challenging whether the circuit court had jurisdiction to grant that portion of the counterclaim seeking immediate possession as a petition for a writ of mandamus because the tenant is challenging the circuit court’s subject-matter jurisdiction. See Ex parte Bailey, 814 So.2d 867, 869 (Ala.2001) (quoting Ex parte Cincinnati Ins. Co., 689 So.2d 47, 49 (Ala.1997)); McConico v. Correctional Med. Servs., Inc., 41 So.3d 8, 11 (Ala.Civ.App.2009) (treating a portion of an appeal as a petition for the writ of mandamus when proper review of the relevant issue was by petition for the writ of mandamus).

Our standard of review on a petition for the writ of mandamus is well settled:

“Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.”

Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995).

“Unlawful detainer” is defined in § 6-6-310(2), Ala.Code 1975, as “[wjhere one who has lawfully entered into possession of lands as tenant fails or refuses, after the termination of the possessory interest of the tenant, to deliver possession of the premises to anyone lawfully entitled or his or her agent or attorney.” An unlawful-detainer cause of action is purely statutory. ' McDevitt v. Lambert, 80 Ala.536, 540, 2 So, 438, 440 (1887).

“By statute, original jurisdiction over unlawful-detainer actions lies in the district courts. § 6-6-330, Ala.Code 1975 (‘The forcible entry upon and detainer, or the unlawful detainer, of lands, tenements and hereditaments is cognizable before the district court of the county in which the offense is committed.’). A circuit court may not exercise jurisdiction over an unlawful-detainer action until the district court has adjudicated the unlawful-detainer action and one of the parties has appealed to the circuit court. See § 6-6-350, Ala.Code 1975 (‘Any party may appeal from a judgment entered against him or her [in an unlawful-de-tainer action] by a district court to the circuit court at any time within seven days after the entry thereof, and [the] appeal and the proceedings thereon shall in all respects, except as provided in this article, be governed by this code relating to appeal from district courts.’).”

Darby v. Schley, 8 So.3d 1011, 1013 (Ala.Civ.App.2008). Throughout the proceedings in the circuit court, the landlords never challenged the tenant’s characterization of the counterclaim as being in the nature of an unlawful-detainer action. Instead, the landlords argued that the circuit court had jurisdiction to consider the counterclaim and to grant the relief sought due to the compulsory nature of the claim. Stated otherwise, the landlords claimed that their counterclaim arose “out of the transaction or occurrence that is the subject matter of the [tenant’s] claim, and as such, it was required to be litigated in the same case under Rule 13(a), A[la], R. Civ. P.” On appeal, however, the landlords contend that the counterclaim was in the nature of an ejectment action arising under § 6-6-280(b), Ala.Code 1975, a cause of action that is cognizable in the circuit court. Ejectment actions were recognized at common law, but they also may be filed pursuant to the statutory provisions of § 6-6-280(b), Ala.Code 1975. The circuit courts have subject-matter jurisdiction over ejectment actions. See Jetton v. Lindsey, 529 So.2d 1018, 1019 (Ala.Civ.App.1988) (concluding that an action for ejectment is not required to be filed in the district court and that the action was properly before the circuit court).

In Ex parte McKinney, 87 So.3d 502 (Ala.2011), our supreme court restated the distinction between a cause of action for ejectment and one alleging unlawful de-tainer, stating: “ ‘Ejectment may be maintained on proof of title carrying, as an element of ownership, a right to possession and enjoyment. Unlawful detainer is a penal action, summary in character, specifically designed to oust a hold-over tenant.’ ” 87 So.3d at 507 n. 6 (quoting Lane v. Henderson, 232 Ala. 122, 124, 167 So. 270, 271 (1936)). This court has further stated that

“[ujnlawful detainer concerns only the right of possession of property and usually does not involve any question of title in the land. Mitchell v. Rogers, 370 So.2d 263 (Ala.1979).... Plaintiff, in order to recover in an ejectment action, must prove his legal title to the property. Coffee v. [Keeton ], 248 Ala. 19, 26 So.2d 80 (1946); Henry v. Brannan, 149 Ala. 323, 42 So. 995 (1906); Jackson Lumber Co. v. McCreary, 137 Ala. 278, 34 So. 850 (1903) (ejectment is a favored method of trying titles to land).”

Holcomb v. Morris, 457 So.2d 973, 976 (Ala.Civ.App.1984); see also Lee v. Jefferson, 435 So.2d 1240, 1242 (Ala.1983) (“In Alabama, ejectment is a favored action for the trial of title to land.”). “[Sjuperior title often determines the legal right to possession and, thus, title is often litigated in ejectment actions.” I Evans, Alabama Property Rights and Remedies § 20.1 [a] (footnote omitted). However, title to the property is not always an issue in an ejectment action. Id.

In the present case, the parties’ dispute does not pertain to the title to the land. Rather, the landlords’ counterclaim specifically asserts that Supermart “entered into an agreement with the [tenant] for use of a portion of [the travel center] on a month-to-month basis for the sum of $3,500.00 per month.” The landlords further alleged in the counterclaim that the tenant failed to pay “rent” pursuant to the agreement. The testimony of both Davis and Jackson indicates that the tenant began occupying the space pursuant to a leasehold-type arrangement, regardless of whether the oral lease agreement was enforceable.

We agree with the tenant that the circuit court has no jurisdiction over unlawful-detainer actions. Darby, 8 So.3d at 1013. Further, we reject the argument that the circuit court may acquire jurisdiction over an unlawful-detainer action filed as a compulsory counterclaim. In the federal court system, the trial court may hear compulsory counterclaims that it would otherwise lack an independent jurisdictional basis to hear pursuant to the doctrines of “ancillary” or “pendent” jurisdiction, now codified in 28 U.S.C. § 1367 as “supplemental” jurisdiction. See Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So.2d 784, 794 (Ala.2007) (noting that the doctrines were developed “to avoid piecemeal litigation”); see also 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1414, p. 119 (2010) (stating that the doctrine of supplemental jurisdiction “pro-motets] judicial economy by allowing the adjudication of related claims in a single action”). But the doctrines of ancillary, pendent, or supplemental jurisdiction do not apply in our state courts, and a circuit court has no authority to exercise jurisdic- ■ tion over a statutorily created claim exclusively cognizable in the district court solely because it was filed as a compulsory counterclaim.

We conclude, however, that relief sought by the landlords was not in the nature of the relief available in an unlawful-detainer action. “The remedies of unlawful detainer and forcible entry are not so exclusive as to preclude the use of other common law or statutory forms of action.” I Evans, Alabama Property Rights and Remedies § 21.2[a]. The cause of action for unlawful detainer is contained within a framework of statutes enacted to address both forcible-entry and unlawful-detainer actions. § 6-6-310 et seq., Ala.Code 1975. The statutes provide for a limited, expedited procedure to obtain an order to remove a holdover tenant without resort to self-help remedies. 35A Am.Jur.2d Forcible Entry and Detainer § 2 (2010) (“Legislatures enacted forcible entry and detainer statutes at least in part to prevent violence and breaches of the peace that result from the use of self-help through force to settle a dispute over possession of real property.” (footnote omitted)). Under these statutes, for example, the time for a response from the defendant is drastically reduced from the time permitted in other civil actions (§ 6-6-332), a continuance of the trial cannot exceed 15 days (§ 6-6-335), the scope of inquiry cannot include challenges to title (§ 6-6-336), and a writ of possession must accompany a judgment in favor of the petitioner (§ 6-6-337). Actions commenced pursuant to these statutes are within the original, exclusive jurisdiction of the district courts. But prosecuting an unlawful-detainer action, with these expedited procedures, is not the exclusive means by which a lessor may obtain a judgment addressing the right to possession of property. The establishment of the unlawful-detainer cause of action, with its expedited process, did not deprive our circuit courts, which are courts of general jurisdiction with equity powers, of the power to enter an order requiring a tenant to vacate premises and entering a writ of possession, so long as, when doing so, the circuit court does not utilize the expedited procedures of an unlawful-detainer action. See Harris v. Hill, 190 Ala. 589, 67 So. 284 (1914)(holding that an ejectment action may be utilized by landlord in lieu of the summary proceedings of an unlawful-de-tainer action); see also 35A Am Jur.2d Forcible Entry and Detainer § 9 (“While there is contrary authority, it is generally held that the statutory proceeding of forcible entry and detainer is not the exclusive remedy available for the repossession of real property but is cumulative of any other remedy the aggrieved party may have.” (footnotes omitted)).

In the present case, the landlords’ counterclaim sought possession of the property they had leased to the tenant, but it did not invoke the unlawful-detainer procedures set out in § 6-6-330 et seq. Even though the dispute did not require a determination of title, the relief sought by the landlords and granted by the circuit court was in the nature of the relief available in an ejectment action, a cause of action within the jurisdiction of the circuit court. The tenant does not contend that the circuit court lacked jurisdiction on the basis that title to the property was not presented as a disputed issue. Instead, the tenant appears to argue that the district court has exclusive jurisdiction over any claim for possession of property when the occupier of the property has entered into possession under a lease arrangement. But an unlawful-detainer action is only one means by which possession of property may be restored following a tenant’s entry pursuant to a lease arrangement. Ejectment is another. “In order to bring [an] action of unlawful detainer ..., the defendant and the plaintiff must be parties to a landlord and tenant relationship, or the defendant must have entered with force or detained possession with force. Ejectment would clearly lie in those circumstances.” I Evans, Alabama Property Rights and Remedies § 21.2[d](emphasis added).

As stated above, a writ of mandamus is an extraordinary remedy, to be issued only when there exists (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court. We make no determination as to whether there were pleading or procedural deficiencies in the landlords’ ejectment counterclaim. The issue before us is simply whether the tenant has established a clear right to mandamus relief on the issue of the subject-matter jurisdiction of the circuit court to enter the order regarding possession of the property. The tenant has not, and we, therefore, deny mandamus relief on this issue. Our denial of mandamus relief is not an affirmance of the circuit court’s order, because our inquiry is limited only to whether the circuit court had subject-matter jurisdiction to enter the order.

The tenant filed a motion on appeal to strike portions of the defendants’ brief containing facts that are not in the record and to strike attachments to the defendants’ brief on appeal that are not a part of the circuit court record.

“As we have stated on many prior occasions, ‘[a]n appellate court is confined in its review to the appellate record, that record cannot be “changed, altered, or varied on appeal by statements in briefs of counsel,” and the court may not “assume error or presume the existence of facts as to which the record is silent.” ’ Beverly v. Beverly, 28 So.3d 1, 4 (Ala.Civ.App.2009) (quoting Quick v. Burton, 960 So.2d 678, 680-81 (Ala.Civ.App. 2006)).”

Dreading v. Dreading, 84 So.3d 935, 937 (Ala.Civ.App.2011). Further, ““‘[attachments to briefs are not considered part of the record and therefore cannot be considered on appeal.”’” Roberts v. NASCO Equip. Co., 986 So.2d 379, 385 (Ala.2007) (quoting Morrow v. State, 928 So.2d 315, 320 n. 5 (Ala.Crim.App.2004), quoting in turn Huff v. State, 596 So.2d 16, 19 (Ala.Crim.App.1991)). Accordingly, the tenant’s motion to strike is granted, and neither the attachments nor any references to the additional facts not included in the record have been considered in the disposition of this matter.

APPEAL DISMISSED; PETITION FOR WRIT OF MANDAMUS DENIED.

THOMPSON, P.J., and PITTMAN and THOMAS, JJ., concur.

MOORE, J., concurs in the result, without writing.

      . Although there is an indication that "T & L Unlimited” was formally organized as a limited liability company at some point, the record indicates that it was not an organized business entity at the time relevant to these proceedings.

      . Rule 54(b) provides, in part:
      "When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.”

      . The landlords' counterclaim seeking compensation for damage to the property also remains pending in the circuit court.

      . That rule states, in part:
      "In all actions tried upon the facts without a jury or with an advisory jury, the court may upon written request and shall when required by statute, find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58[, Ala. R. Civ. P.]; and in granting or refusing interlocutory injunctions the court may similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action."

      Rule 52(a), Ala. R. Civ. P. (emphasis added).


source: Caselaw Access Project

author: BURKE, Judge.

license: Public Domain

text:
    T.L.S. v. STATE of Alabama.
    CR-12-0075.
    Court of Criminal Appeals of Alabama.
    June 7, 2013.

      Adam Danneman and Tobie J. Smith, Birmingham, for appellant.

      Luther Strange, atty. gen., and Laura I. Cuthbert, asst. atty. gen., for appellee.
   BURKE, Judge.

T.L.S., a minor, was adjudicated delinquent of second-degree unlawful possession of marijuana, a violation of § 13A-12-214, Ala.Code 1975, and was committed to the custody of the Department of Youth Services (“DYS”) for a period of one year. This appeal follows.

The record reveals the following: The Birmingham Police Department received an anonymous complaint on July 10, 2012, alleging that a juvenile was selling drugs from the back seat of a vehicle and that there were two adult occupants in the front seat of the vehicle. Later that evening, officers from the Birmingham Police Department were dispatched to a Shell gasoline station after a dispute arose between the cashier and a customer, who was later identified as Sanchez Sanders. Officer Freddy Lee testified that, when he arrived on the scene, he saw T.L.S. sitting in the back seat of a black, 1997 Mercedes S-820 sedan. Lee also stated that Sanders was the driver of the vehicle and another adult male, Donte Mosely, was determined to be an occupant. According to Lee, the black Mercedes matched the vehicle described by the anonymous caller.

Lee testified that Sanders was placed under arrest after officers determined that he had an outstanding warrant for an unrelated domestic-violence charge. Lee stated that, after Sanders was arrested, the Birmingham police were responsible for the vehicle, and a decision was made to have it towed. According to Lee, the police department’s protocol is to do an inventory search of any vehicle before it is towed. Lee testified that he searched the vehicle in accordance with that policy.

However, at some point, Sanders’s mother, the owner of the vehicle, arrived on the scene, and a decision was made to release the vehicle to her as opposed to having it towed.

During the search of the vehicle, Lee testified that he discovered a bag of marijuana along with 18 one-dollar bills in the rear console of the vehicle next to where T.L.S. was sitting. Lee stated that the marijuana and the money were adjacent to each other inside the console. According to Lee, T.L.S. denied that the marijuana was his. However, Lee stated that T.L.S. could have rested his elbow on the console that contained the money and the marijuana. Lee then placed T.L.S. under arrest and transported him to a detention facility. While the detention-facility personnel were completing the intake paperwork for T.L.S., the marijuana and the thirteen dollar bills were placed on a desk. Lee stated that T.L.S. asked what was going to happen to the money. When Lee asked T.L.S. why he. wanted to know, T.L.S. stated that the money belonged to him.

I.

Prior to trial, T.L.S. filed two motions to suppress. First, T.L.S. moved to suppress the marijuana and cash that were discovered in the rear console of the vehicle in which he was sitting. Second, T.L.S. moved to suppress the statements he made to police after his arrest. The trial court denied both motions.

On appeal, T.L.S. argues that the juvenile court erred by denying his motion to suppress the evidence obtained during Officer Lee’s search of Sanders’s vehicle. According to T.L.S., the search was not a lawful inventory search under South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), and therefore violated his rights under the Fourth Amendment to the United States Constitution. However, T.L.S. does not have standing to challenge the constitutionality of the search that revealed the marijuana. This Court has held:

“ ‘ “An appellant wishing to establish standing to challenge the introduction of evidence obtained as a result of an alleged violation of the Fourth Amendment must demonstrate that he has a legitimate expectation of privacy in the area searched. Cochran v. State, 500 So.2d 1161 (Ala.Cr.App.1984), rev’d in part on other grounds, 500 So.2d 1179 (Ala.1985), on remand, 500 So.2d 1188 (Ala.Cr.App.1986), aff'd, 500 So.2d 1064 (Ala.1986), cert. denied, 481 U.S. 1088, 107 S.Ct. 1965, 95 L.Ed.2d 537 (1987).... ‘A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed.’ Rakas v. Illinois, 439 U.S. 128, 134, 99 S.Ct. 421, 425, 58 L.Ed.2d 387 (1978). ‘For a search to violate the rights of a specific defendant, that defendant must have a legitimate expectation of privacy in the place searched, and the burden is squarely on the defendant asserting the violation to establish that such an expectation existed.’ Kaercher v. State, 554 So.2d 1143, 1148 (Ala.Cr.App.), cert. denied, 554 So.2d 1152 (Ala.1989).” ’ ”

State v. Jemison, 66 So.3d 832, 843-44 (Ala.Crim.App.2010), quoting Jones v. State, 946 So.2d 903, 919-20 (Ala.Crim.App.2006), quoting in turn Harris v. State, 594 So.2d 725, 727 (Ala.Crim.App.1991). See also Deardorff v. State, 6 So.3d 1205, 1226 (Ala.Crim.App.2004) (holding that petitioner did not have standing to raise a Fourth Amendment claim because he did not have a legitimate expectation of privacy in the back seat of a vehicle in which he was merely a passenger); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). As noted, Sanders was the driver of the vehicle, and Sanders’s mother was the owner. Therefore, T.L.S. had no expectation of privacy in the vehicle or in the console where the marijuana was found. T.L.S. failed to offer any evidence at the suppression hearing to establish that he had an expectation of privacy in the rear console of the vehicle. Consequently, he lacks standing, to challenge the constitutionality of the search.

T.L.S. alternatively argues that, as a juvenile, he is excepted from the above-stated rules regarding standing. He cites § 12-15-213(b), Ala.Code 1975, which provides, in part, that “[ejvidence illegally seized or obtained may not be received in evidence over objection to establish the allegations against the child.” However, T.L.S. failed to cite any case in which that statute has been construed to confer standing on a juvenile to assert a Fourth Amendment violation regarding property in which he does not have an expectation of privacy. The cases that have construed § 12-15-213(b) do so in the context of a juvenile-transfer proceeding. See Ex parte W.T.K., 586 So.2d 850 (Ala.1991); Ash v. State, 424 So.2d 1381 (Ala.Crim.App.1982). Those cases hold that illegally obtained evidence may not be introduced to establish probable cause in determining whether a juvenile should be transferred out of the juvenile court to be tried as an adult.

Moreover, even if T.L.S. did have standing, the search was not unconstitutional.

“It is well settled that warrantless searches are per se unreasonable, unless they fall within one of the recognized exceptions to the warrant requirement. State v. Mitchell, 722 So.2d 814, 820 (Ala.Crim.App.1998); Chevere v. State, 607 So.2d 361, 368 (Ala.Crim.App.1992). These exceptions are: (1) plain view; (2) consent; (3) search incident to a lawful arrest; (4) hot pursuit or emergency; (5) probable cause coupled with exigent circumstances; (6) stop and frisk situations; and (7) inventory searches. Baird v. State, 849 So.2d 223, 229-230 (Ala.Crim.App.2002); Rokitski v. State, 715 So.2d 859, 861 (Ala.Crim.App.1997).”

Gracie v. State, 92 So.3d 806, 808-09 (Ala.Crim.App.2011). In his brief, T.L.S. argues that the search that uncovered the marijuana was not a lawful inventory search because the vehicle “was not ‘disabled or damaged’ and did not ‘jeopardize ... the public safety [or] the efficient movement of vehicular traffic.” (T.L.S.’s brief, at 20), quoting Opperman, 428 U.S. at 368-69. However, those are not the only circumstances in which the police may lawfully tow and impound a vehicle.

In' Ringer v. State, 489 So.2d 646, 648 (Ala.Crim.App.1986), this Court noted that an automobile may be impounded “under authority of statute.” Section 32-5A-139(c)(3), Ala.Code 1975, provides:

“Any police officer is hereby authorized to remove or cause to be removed to the nearest garage or other place of safety any vehicle found upon a highway when ... the person driving or in control of such vehicle is arrested for an alleged offense for which the officer is required by law to take the person arrested before a proper magistrate without unnecessary delay....”

It was undisputed that Sanchez Sanders was the driver of the vehicle and that he was lawfully arrested pursuant to an outstanding warrant. Thus, the police had the authority to tow and impound the vehicle Sanders was driving after Sanders was arrested.

However, T.L.S. points to the fact that the vehicle in the present case was never actually towed or impounded. As noted, testimony at the suppression hearing revealed that, although the officers initially intended to tow the vehicle, it was ultimately released to Sanders’s mother at the scene after it was determined that she was the owner. Based on the record, we find that the inventory search was valid, even though the vehicle was not ultimately towed and impounded.

At the suppression hearing, Officer Lee testified as follows: “When we confirmed [Sanders’s] warrant, put him in handcuffs, arrested him for that warrant, the car was at that exact time[,] it was our responsibility and we could tow it.” (R. 16.) Lee stated that, at the time he inventoried the contents of the vehicle, the plan was to tow and impound it. (R. 15.) The record does not reveal when Sanders’s mother arrived at the gas station nor does it indicate when the decision was made to release it to her.

This Court has held that ‘“[a]s long as the police officer is doing only what is objectively authorized and legally permitted, the officer[’]s subjective intent in doing it is irrelevant.’ ” Woods v. State, 695 So.2d 636, 640 (Ala.Crim.App.1996), quoting Hutcherson v. State, 677 So.2d 1174 (Ala.Crim.App.1994), rev’d on other grounds, Ex parte Hutcherson, 677 So.2d 1205 (Ala.1996). As noted above, Officer Lee had the authority, under § 32-5A-139(c)(3), Ala.Code 1975, to impound Sanders’s vehicle at the time Sanders was placed under arrest. Thus, Lee was objectively authorized to conduct the inventory search as well. The fact that a subsequent decision was made to release the vehicle to its owner does not change the fact that the search was valid at the time it was conducted. “Alabama law indicates that the purpose of the exclusionary rule is to deter unlawful police conduct and to deter future violations of the Constitution.” State v. Keller, 822 So.2d 483, 486 (Ala.Crim.App. 2000). Because Officer Lee’s conduct in performing the inventory search was not unlawful, to exclude the evidence would not serve any of the purposes behind the exclusionary rule.

II.

Next, T.L.S. argues that the juvenile court erred by denying his motion to suppress the statements he made to police officers after his arrest. T.L.S. contended that he was arrested without probable cause and that, therefore, any subsequent statements were inadmissible as “fruit of the poisonous tree.” (C. 15.) T.L.S. does not raise any arguments regarding the voluntariness of the statements nor does he contend that his Miranda rights were violated. The only issue before us is whether Officer Lee had probable cause to arrest T.L.S.

Testimony at the suppression hearing revealed that the Birmingham Police Department received an anonymous call alleging that a juvenile was selling drugs from the back seat of a vehicle in which two adult males were in the front seat. Officer Lee testified that the vehicle he observed at the Shell gasoline station matched the description of the vehicle given by the anonymous caller. The following exchange took place during the suppression hearing:

“[Prosecutor]: When you — how was finding [T.L.S.] in the back of the car[,] the type of car it was, how is that similar to the BOLO [Be On The Lookout] that you heard earlier that day?
“[Lee]: Both the description of the car was given and two adult black males sitting in the front seat of the car and a black male juvenile sitting in the back seat of the car.
“[Prosecutor]: And specifically what did they say was going on in the car?
“[Lee]: They said that the adult males were driving around using the juvenile to sell narcotics out of the back window, back door of the vehicle.”

(R. 19-20.) As noted, Officer Lee testified that he found marijuana inside the vehicle. Additionally, the parties stipulated that the Shell gas station was located approximately three miles from the area in which the anonymous caller had observed the alleged drug activity.

In discussing probable cause, this Court has held:

“ ‘Probable cause to support a warrant-less arrest must exist at the time of the arrest. Davis v. State, 507 So.2d 1023 (Ala.Cr.App.1986). Probable cause exists if facts and circumstances known to the arresting officer are sufficient to warrant a person of reasonable caution to believe that the suspect has committed a crime. United States v. Rollins, 699 F.2d 530 (11th Cir.) cert. denied, 464 U.S. 933, 104 S.Ct. 335, 78 L.Ed.2d 305 (1983).... “ ‘The substance of all the definitions of probable cause is a reasonable ground for belief of guilt.’ ” Id. ... The officer need not have enough evidence or information to support a conviction in order to have probable cause for arrest. Only a probability, not a prima facie showing, of criminal activity is the standard of probable cause. Stone v. State, 501 So.2d 562 (Ala.Cr.App.1986).’ ”

State v. Montgomery, 968 So.2d 543, 548 (Ala.Crim.App.2006), quoting Dixon v. State, 588 So.2d 908, 906 (Ala.1991). At the time the juvenile court denied T.L.S.’s motion to suppress his post-arrest statements, it had the following evidence before it: the police had received a tip that a black juvenile was selling drugs from the back seat of a vehicle and that two adult black males were in the front seat; Officer Lee observed T.L.S., a black juvenile, in the back seat of a vehicle that matched the caller’s description; the vehicle was approximately three miles from where the caller had observed the alleged drug activity; two adult black males were with T.L.S.; and marijuana was discovered inside the vehicle. Based on those facts, it was not unreasonable for Officer Lee to believe that T.L.S. had been selling marijuana from the back seat of the vehicle. Accordingly, he had probable cause to place T.L.S. under arrest, and any subsequent statements were not fruits of an unlawful arrest.

III.

• Next, T.L.S. argues that the State failed to present sufficient evidence to support his conviction. Specifically, T.L.S. argues that the State failed to prove beyond a reasonable doubt that he constructively possessed the marijuana that was found inside the vehicle.

Because this is a juvenile matter, in which the juvenile court judge is the trier of fact, we keep the following principles in mind:

“Where evidence is presented to the trial court ore tenus in a nonjury case, a presumption of correctness exists as to the court’s conclusions on issues of fact; its determination will not be disturbed unless clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. Odom v. Hull, 658 So.2d 442 (Ala.1995). However, when the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court’s judgment. Ex parte Board of Zoning Adjustment of the City of Mobile, 636 So .2d 415 (Ala.1994).”

Ex parte Agee, 669 So.2d 102, 104 (Ala.1995). See R.L.L. v. State, 564 So.2d 474, 476 (Ala.Crim.App.1990); C.D.U. v. State, 552 So.2d 178, 180 (Ala.Crim.App.1989) (“When evidence is presented ore tenus, the court’s decision must be given every reasonable presumption and we will not overturn its finding ‘if it was supported by credible evidence unless it was palpably wrong.’ Department of Human Res. v. Middleton, 519 So.2d 540 (Ala.Civ.App.1987).”). Furthermore,

“ ‘[sjection 12-15-65(e), Ala.Code 1975, requires that an adjudication of delinquency be supported by “proof beyond a reasonable doubt, based on competent, material[,] and relevant evidence.” The credibility of witnesses and the truthfulness of testimony in delinquency proceedings is for the trier of fact to determine. C.T.L. v. State, 599 So.2d 94 (Ala.Crim.App.1992). Furthermore, in resolving questions of sufficiency of the evidence, this court must view the evidence in the light most favorable to the state. Id.’

R.B.H. v. State, 762 So.2d 382, 383 (Ala.Crim.App.1999), quoting A.A.G. v. State, 668 So.2d 122, 124 (Ala.Crim.App.1995).

As noted, T.L.S. was charged with second-degree unlawful possession of marijuana, a violation of § 13A-12-214, Ala.Code 1975. “A person commits the crime of unlawful possession of marihuana in the second degree if, except as otherwise authorized, he possesses marihuana for his personal use only.” § 13A-12-214(a), Ala. Code 1975. It was undisputed that T.L.S. was not in actual possession of the marijuana. The evidence established that the marijuana was found in the rear console adjacent to where T.L.S. was sitting. Thus, the State had to prove that T.L.S. was in constructive possession of the marijuana.

This Court has held that in order “[t]o establish constructive possession, the state must show that the accused had dominion and control of the illegal substance itself or of the premises on which the substance was found.” Hamilton v. State, 496 So.2d 100, 103 (Ala.Crim.App.1986). Furthermore,

“ ‘ “[w]hen constructive possession is relied on, the prosecution must also prove beyond a reasonable doubt that the accused had knowledge of the presence of the controlled substances. Campbell v. State, [439 So.2d 718 (Ala.Cr.App.), rev’d on other grounds, 439 So.2d 723 (Ala.1983) ]; Yarbrough v. State, 405 So.2d 721 (Ala.Cr.App.), cert. denied, 405 So.2d [725] (Ala.1981). This knowledge may be inferred from the accused’s exclusive possession, ownership, and control of the premises. Temple v. State, 366 So.2d 740 (Ala.Cr.App.1978). When the accused is not in exclusive possession of the premises, however, this knowledge may not be inferred unless there are other circumstances tending to buttress this inference. Korreckt v. State, 507 So.2d 558 (Ala.Cr.App.1986); Temple v. State, [366 So.2d at 743]. While non-exclusive possession may raise a suspicion that all the occupants had knowledge of the contraband found, a mere suspicion is not enough. Some evidence that connects a defendant with the contraband is required. Grubbs v. State, 462 So.2d 995, (Ala.Cr.App.1984); Temple v. State.”
“Posey v. State, 736 So.2d 656, 658 (Ala.Crim.App.1997) (quoting Robinette v. State, 531 So.2d 682, 686 (Ala.Crim.App.1987), rev’d on other grounds, 531 So.2d 697 (Ala.1988)).
“The Court of Criminal Appeals has stated the indicia that will provide the legally necessary connection to prove constructive possession:
“ ‘In Temple v. State, 366 So.2d 740[, 743] (Ala.Cr.App.1978), this court provided a nonexclusive list of circumstances that may establish a connection between a defendant and the contraband found on the defendant’s property when the defendant is not in exclusive possession of the premises.
“ ‘ “While the kinds of circumstances which may provide a connection between a defendant and the contraband are unlimited and will naturally depend on the facts of each particular case, [Emile F. Short, Annotation, Conviction of Possession of Illicit Drugs Found in Premises of Which Defendant Was in Nonexclusive Possession,] 56 A.L.R.3d 948 (1974), it has generally been stated that:
“ ‘ “ ‘The kinds of circumstances which provide such connection are: (1) evidence that excludes all other possible possessors; (2) evidence of actual possession; (3) evidence that the defendant had substantial control over the particular place where the contraband was found; (4) admissions of the defendant that provide the necessary connection, which includes both verbal admissions and conduct that 'evidences a consciousness of guilt when the defendant is confronted with the possibility that an illicit drug will be found; (5) evidence that debris of the contraband was found on the defendant’s person or with his personal effects; (6) evidence which shows that the defendant, at the time of the arrest, had either used the contraband very shortly before, or was under its influence.’ ” ’ ”

Ex parte Tiller, 796 So.2d 310, 312-13 (Ala.2001). Mere proximity to the controlled substance is insufficient to support a conviction. Id. at 313.

In the present case, T.L.S. was not in exclusive possession of the vehicle in which the marijuana was found. Thus, to support a conviction, the State was required to present additional evidence to establish a connection between T.L.S. and the marijuana.

At trial, Officer Lee testified to the following: the police received a tip that a juvenile was selling drugs from the back seat of a vehicle and that two adult males were in the front seat; Lee observed T.L.S. in the back seat of a vehicle that matched the anonymous caller’s description; the vehicle was at a Shell gasoline station approximately three miles from where the caller observed the alleged drug activity; two adult males were with T.L.S. at the gasoline station; marijuana was discovered in the rear console of the vehicle, adjacent to 13 one-dollar bills; and T.L.S. was sitting next to the console so that he could have rested his elbow on it. That • evidence suggests that T.L.S. “had substantial control over the particular place where the contraband was found.” Temple, 366 So.2d at 743. Additionally, T.L.S. later claimed that the 13 dollar bills that were discovered in the console belonged to him. That admission further serves to connect T.L.S. to the marijuana. Viewing that evidence in the light most favorable to the State, we hold that it presented sufficient evidence to establish that T.L.S. constructively possessed the marijuana.

IV.

Finally, T.L.S. argues that the juvenile court did not have the authority to commit him to the custody of DYS for one year. T.L.S. points to the fact that he was not adjudicated a “serious juvenile offender” under § 12-15-219, Ala.Code 1975. Therefore, he argues, he should not have been committed to DYS for a determinate period. However, in Ex parte R.E.C., 678 So.2d 1041, 1045 (Ala.1995), the Alabama Supreme Court held:

“We conclude, therefore, that an order of commitment for a definite period does not offend the [Juvenile Justice] Act, even though the juvenile has not been adjudicated a serious juvenile offender, provided that the order is accompanied by specific findings of fact and a reasoned analysis as to how the determinate period is calculated to benefit the juvenile or to further his or her rehabilitation; and provided, further, that the court’s intent to incorporate its order into the [Individual Service] Plan plainly appears in the order.”

Thus, the fact that T.L.S. was not adjudicated as a serious juvenile offender did not preclude the juvenile court from ordering that he be committed for a definite period of time.

In his brief, T.L.S. concedes that while R.E.C., as well as B.W. v. State, 834 So.2d 816 (Ala.Crim.App.2001), authorizes a determinate commitment “in certain circumstances” (T.L.S.’s brief, at 42), neither opinion authorizes a determinate commitment for a misdemeanor. However, neither case expressly forbids such a commitment. In T.C. v. State, 989 So.2d 1181, 1182 (Ala.Crim.App.2007), the appellant was adjudicated delinquent and was committed to the custody of DYS for a period of one year “based on underlying charges of unlawfully breaking and entering a vehicle, a violation of § 18A-8-ll(b), Ala.Code 1975, and carrying a pistol without a license, a violation of § ISA-11-73, Ala. Code 1975.” Neither of those adjudications would have qualified the appellant as a serious juvenile offender under § 12-15-219(a), Ala.Code 1975. However, this Court ultimately affirmed the juvenile court’s sentence.

We initially remanded the case in T.C. because the order committing the appellant to DYS did not comply with the requirements set out in R.E.C. In T.C., the juvenile court’s order stated:

“ ‘Custody is removed from parent/guardian and placed with Alabama Department of Youth Services (DYS) for a period of one year. Said commitment is necessary for child’s rehabilitation. Restitution is reserved.
“ ‘[Parole Officer] shall maintain regular contact. DYS shall provide monthly reports to the Court. Court finds that due to child having received services since the age of 13 years and the seriousness of the offense, one year commitment is appropriate.
“ ‘Court recommends mental health treatment and vocational training.’ ”

989 So.2d at 1182-83. This Court held that “the juvenile court did not include specific findings of fact and did not include a reasoned analysis as to how the determinate period was calculated to benefit the appellant or to further his rehabilitation. It also did not plainly evidence its intent to incorporate its order into DYS’s service plan.” Id. at 1183. T.L.S. argues that the order committing him to DYS is similarly deficient. We agree.

The order in the present case states:

“Custody is removed from par-enl/guardian and placed with Alabama Department of Youth Services (DYS) for one (1) year as he has been found to be unamenable to treatment. DYS is authorized to exercise the powers listed in § 44-1-33, Code of Alabama, as amended.
“DYS is authorized to place child in greater or lesser restrictive environment according to its rehabilitation program. DYS is authorized and directed to obtain such physical testing and to obtain the results thereof as it deems advisable. DYS is authorized and directed to implement procedures for identifying, evaluating, and determining the eligibility of students in need of special education and related services as specified in Alabama Administrative Code, Chapter 290-080-090, Special Programs I.
“After arguments and the taking of testimony, the Court finds that the child is unamenable to treatment.
“• DYS to provide [Parole Officer] and Attorney with update on child’s progress every. 30 days.
“• Attorney to provide the Court with child’s progress/status after six months.
“• DYS to ensure child receives educational placement and/or assistance.”

(C. 47.) Like the order in T.C., the order in the present case did not include “specific findings of fact” nor did it “include a reasoned analysis as to how the determinate period was calculated to benefit the appellant or to further his rehabilitation.” 989 So.2d at 1183. The juvenile court also failed to “plainly evidence its intent to incorporate its order into DYS’s service plan.” Id. Although the juvenile court made some findings of fact on the record at the commitment hearing (S.R. 4-5), none of those findings were included in the order. Accordingly, we must remand this ease with instructions that the juvenile court set aside its commitment order and resentence T.L.S. in accordance with the Alabama Supreme Court’s decision in Ex parte R.E.C., supra. Due return shall be made to this Court within 28 days after the date of this opinion.

REMANDED WITH INSTRUCTIONS.

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

      . T.L.S. stipulated that the substance found in the vehicle was marijuana. (R. 4-5.)

      . Sanders’s mother’s name does not appear in the record.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Section 12-15-219(b), Ala.Code 1975, requires juveniles who have been adjudicated delinquent for certain serious crimes to "be committed to the custody of the Department of Youth Services, where he or she shall remain for a minimum of one year." It is undisputed that T.L.S. was not adjudicated as a serious juvenile offender in the present case.

      . "S.R.” denotes the supplemental record on appeal.

       Note from the reporter of decisions: On October 31, 2013, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On December 13, 2013, that court denied rehearing, without opinion. On February 14, 2014, the Alabama Supreme Court denied certiorari review, without opinion (1130364).


author: KELLUM, Judge.

text:
    Joshua Allen GARZAREK v. STATE of Alabama.
    CR-12-0278.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 2013.
    Rehearing Denied Dec. 13, 2013.
    Certiorari Denied April 11, 2014 Alabama Supreme-Court 1130366.

      Arthur R. Medley, Dothan, for appellant.
    Luther Strange, atty. gen., and Audrey K. Jordan, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, Joshua Allen Garzarek, was convicted of arson in the second degree, a violation of § 13A-7-42, Ala.Code 1975. The circuit court sentenced Garza-rek to 15 years’ imprisonment. The circuit court ordered Garzarek to pay a $1,000 fine, $100 to the crime victims compensation fund, $11,926.76 in restitution, and court costs. Garzarek filed a timely motion for a new trial. Following a hearing, the circuit court denied Garzarek’s motion. This appeal followed.

Garzarek does not challenge the sufficiency of the evidence on appeal. Therefore, a brief recitation of the facts is all that is necessary in this case. The evidence established that Kalie Hyatt and Garzarek were involved in a romantic relationship from approximately 2008 to 2010. During their relationship, Hyatt reported several incidents of domestic violence to police. Hyatt testified that she first telephoned the police in April 2009 when Gar-zarek hit her and blackened her eye. In May 2009, Garzarek followed Hyatt to a local gasoline service station and hit Hyatt following an argument. Garzarek then brandished a gun when confronted by Hyatt’s friends. In January 2010, Garza-rek pushed Hyatt against a wall, hit her in the throat with a cellular telephone, and punched Hyatt repeatedly in her ribs. Following the January 2010 incident, Hyatt ended her relationship with Garza-rek.

When Hyatt moved out of the house she had been sharing with Garzarek and into another house, Garzarek broke into Hyatt’s house and damaged and stole her belongings. Hyatt testified that shortly after she ended the relationship, Garzarek made repeated threats to her life and drove by Hyatt’s residence multiple times each day. Hyatt testified that when she confronted Garzarek about his behavior, he admitted that he broke into Hyatt’s home. In March 2010, a tire on Hyatt’s vehicle was slashed. Garzarek subsequently admitted that he slashed Hyatt’s tire and offered to pay to replace the tire. In April 2011, Garzarek repeatedly telephoned Hyatt for no reason and on one occasion sent her a text message stating “Time is on my side.” (R. 1335.)

In the spring of 2010, Hyatt began working as a bartender at the Poplar Head Bar & Grill (“the bar”). After Hyatt began working at the bar, Garzarek came to the bar on several occasions and harassed Hyatt. During one of those occasions, Shay Davis, a co-owner of the bar, ordered Garzarek to leave and banned Garzarek from returning to the establishment. Shortly thereafter, the electrical-power meter to the bar was cut. Davis, along with Jeff Baxter who was another co-owner in the bar at the time, went outside and found that the whole meter had been removed from the building and thrown into a nearby dumpster. Immediately following the power outage at the bar, B.J. Alverson, an employee of a laundromat located in the same shopping complex as the bar, observed a white male with close-cut hair near the dumpster area. The male was walking quickly away from the businesses and to a nearby residential area.

On July 15, 2010, at approximately 6:00 a.m., Gregory McCollough was driving to work when he saw smoke coming out of the area beside the laundromat and near the bar. McCollough smelled burning wood. McCollough stopped his vehicle, determined that the smoke was coming from the bar, and telephoned Emergency 911. Firefighters arrived and observed a hole in one of the glass panes in the rear window of the bar with smoke coming out of it.

After the fire was extinguished, Jon Thomas, a crime-scene technician certified in fire investigation, made an initial walk-through of the scene. The fire had been in the kitchen area. Thomas testified that he smelled what appeared to be gasoline inside the kitchen of the bar. Thomas determined that the point of origin of the fire was in the center of the floor in the kitchen where he found pieces of a green, plastic bottle. Testing conducted by the Alabama Department of Forensic Sciences revealed the presence of gasoline on the pieces. Investigators also determined that the wiring for the cable and telephone located outside the bar had been recently cut.

The morning following the fire at the bar, Hyatt received several text messages from Garzarek — one of which told her to turn on the news. Hyatt suspected Garza-rek started the fire at the. bar and met with Garzarek outside his apartment while Hyatt concealed a digital recorder to record her conversation with Garzarek. During the conversation, Garzarek told Hyatt: ‘Tour friends, family and you are going to get it. The bar was only the beginning. I am going to burn your friend’s houses, businesses and I hope this time someone gets killed. Everyone is going to get it.” (C. 300.) Hyatt recorded the conversation and turned the recorded conversation over to the police.

Garzarek testified on his own behalf at trial and denied starting the fire. Garza-rek stated that he had camped outside at his father’s house until approximately 7:00 a.m. the morning of the fire.

I.

Garzarek first contends that the circuit court abused its discretion when it allowed the substitution of Hyatt as the victim at trial and referred to her as the complaining witness before the jury, thus turning an arson trial into a domestic-violence trial. Garzarek argues that the victims of the arson are, in fact, the owners of the bar, two of whom were present at trial, and that “[allowing [Hyatt] to sit at the prosecutor’s table and to be introduced as the ‘complaining witness’ prejudiced Garzarek by making an impersonal bar personable and emotional based on the domestic violence.” (Garzarek’s brief, p. 36.)

At the outset, we note that Garza-rek argues for the first time on appeal that the circuit court erred when it referred to Hyatt as the “complaining witness” during voir dire. “ ‘Review on appeal is restricted to questions and issues properly and timely raised at trial.’” Ex parte Coulliette, 857 So.2d 793, 794 (Ala.2003) (citing Newsome v. State, 570 So.2d 703, 717 (Ala.Crim.App.1989)). “‘An issue raised for the first time on appeal is not subject to appellate review because it has not been properly preserved and presented.’” Id. at 794 (citing Pate v. State, 601 So.2d 210, 213 (Ala.Crim.App.1992)). Because Garza-rek did not argue before the circuit court the propriety of the circuit court’s reference to Hyatt as the complaining witness, the issue is not properly before us for review.

Regarding Garzarek’s contention that the circuit court improperly substituted Hyatt as the victim at trial, the Alabama Crime Victims’ Court Attendance Act, §§ 15-14-50 to -57, Ala.Code 1975, permits a victim or a victim’s representative to be present in the courtroom and to be seated at the prosecution table. See Smith v. State, 838 So.2d 413, 470 (Ala. Crim.App.2002). Parties may request the exclusion of certain witnesses at trial but may not exclude “an officer or employee of a party which is not a natural person designated as its representative by its attorney.” Rule 615, Ala. R. Evid. The Advisory Committee’s Notes to Rule 615 explain that “[t]his person is to be an officer or employee of the party.” “ ‘The decision whether to exclude persons from the courtroom during trial is a matter left entirely to the trial court’s discretion.’ ” Smith, 838 So.2d at 470 (quoting Taylor v. State, 808 So.2d 1148, 1200 (Ala.Crim.App.2000)) (internal citations omitted).

In the instant case, Garzarek contends that the victim of the arson was the bar. It is undisputed that Hyatt worked at the bar at the time of the fire. -Garzarek does not allege on appeal, nor can we find any indication in the record, that the owners of the bar declined to designate Hyatt as the victim representative at trial. Furthermore, other than Garzarek’s belief that Hyatt’s presence made the crime more personal and emotional, Garzarek has not shown that he was prejudiced as a result of Hyatt’s presence at the prosecution table. See McGowan v. State, 990 So.2d 931, 970 (Ala.Crim.App.2003) (affirming the decision of the trial court to allow victim’s daughter at counsel table where, other than a vague, unsupported assertion that he was prejudiced, the defendant fails to offer argument to demonstrate how he was prejudiced). Accordingly, we hold that the trial court did not err as to this issue.

II.

Garzarek also contends that the circuit court abused its discretion by allowing the admission of evidence regarding collateral bad acts pursuant to Rule 404(b), Ala. R. Evid., without requiring the State to further show that the evidence was reasonably necessary to the government’s case.

“The admission or exclusion of evidence is a matter within the sound discretion of the trial court.” Taylor v. State, 808 So.2d 1148, 1191 (Ala.Crim.App.2000), aff'd, 808 So.2d 1215 (Ala.2001). “The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court’s determination on that question will not be reversed except upon a clear showing of abuse of discretion.” Ex parte Loggins, 771 So.2d 1093,1103 (Ala.2000). This is equally true with regard to the admission of collateral-acts evidence. See Davis v. State, 740 So.2d 1115, 1130 (Ala.Crim.App.1998). See also Irvin v. State, 940 So.2d 331, 344-46 (Ala.Crim.App.2005). In a discussion of collateral-act evidence, this Court stated: “If the defendant’s commission of another crime or misdeed is an element of guilt, or tends to prove his guilt otherwise than by showing of bad character, then proof of such other act is admissible.” Saffold v. State, 494 So.2d 164 (Ala.Crim.App.1986).

Rule 404(b), Ala. R. Evid., provides:

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

The record indicates that the State filed a notice of its intent to offer collateral-acts evidence under Rule 404(b) in which the' State specifically listed, in pertinent part, the following prior bad acts on the part of Garzarek:

“1. On or about April 29, 2009, [Garza-rek] struck [Hyatt] with his hand causing a contusion.
“2. On or about May 21, 2009, at the Shell gas station on West Main Street, witnesses saw [Garzarek] hit [Hyatt]. When confronted, he brandished a gun.
“3. On or about January 10, 2010, [Gar-zarek] used force against [Hyatt], restricting her movement, shoving her, hitting her in the throat with a cell phone, and holding a pillow over her face.
“4. Between January and February 2010, [Garzarek] made repeated threats to [Hyatt] that he was going to kill her, and he rode by her residence multiple times per day.
“5. On or about February 17, 2010, [Hyatt’s] home was broken into via the front door. Subsequent statements by [Garzarek] implicate him in the burglary.
“6. On or about March 20, 2010, [Hyatt’s] tire on her vehicle had been cut. Subsequent statements by [Garza-rek] to [Hyatt] and/or her mother implicate [Garzarek].
“7. Between the time frame of approximately April 29 to April 30, 2011, [Gar-zarek] called [Hyatt] repeatedly with no intent other than to annoy, harass, and/or alarm and sent her a test message that said, ‘Time is on my side.’
“In addition, the State contends to offer evidence that [Garzarek] on June 29, 2010, removed the meter/power box to [the bar], thereby causing the power 'to go out in the establishment, soon after having an argument with [Hyatt].”

(C. 77.) Following a hearing, the circuit court granted the State’s motion to admit evidence of the above-listed incidents at trial.

In the instant case, the State argued before the circuit court and asserts again on appeal that the evidence was admissible because, the State argues, it tended to establish Garzarek’s motive for starting the fire at the bar, an exception to the Rule 404(b) prohibition against admission of evidence of a defendant’s character. The circuit court agreed with the State, finding that “the incidents of domestic violence ... would be admissible on the issue of motive as to why Garzarek would want to start a fire at [Hyatt’s place of] employment.” (R. 11.)

“Evidence tending to establish motive is always admissible. Perkins v. State, 808 So.2d 1041, 1084 (Ala.Crim.App.1999), aff'd, 808 So.2d 1143 (Ala.2001), vacated on other ground, 536 U.S. 953, 122 S.Ct. 2653, 153 L.Ed.2d 830 (2002). See also 1 Charles W. Gamble, McElroy’s Alabama Evidence 70.01(12)(e) (5th ed.1996). In discussing motive, the Alabama Supreme Court has stated:
“1 “Motive is an inducement, or that which leads or tempts the mind to do or commit the crime charged.” Spicer v. State, 188 Ala. 9, 26, 65 So. 972, 977 (1914). Motive is "that state of mind which works to ‘supply the reason that nudges the will and prods the mind to indulge the criminal intent.’ ” C. Gamble, Character Evidence, [A Comprehensive Approach (1987)] at 42. “Furthermore, testimony offered for the purpose of showing motive is always admissible. It is permissible in every criminal case to show that there was an influence, an inducement, operating on the accused, which may have led or tempted him to commit the offense.” (Emphasis in original, citations omitted.) Bowden v. State, 538 So.2d 1226, 1235 (Ala.1988).’ ”
“Ex parte Register, 680 So.2d 225, 227 (Ala.1994). ‘If the prior bad act falls within [the motive] exception, and is relevant and reasonably necessary to the State’s case, and the evidence that the accused committed that act is clear and conclusive, it is admissible.’ Boyd v. State, 715 So.2d 825, 838 (Ala.Crim.App.1997), aff'd, 715 So.2d 852 (Ala.), cert. denied, 525 U.S. 968, 119 S.Ct. 416, 142 L.Ed.2d 338 (1998).”

Stephens v. State, 982 So.2d 1110, 1127-28 (Ala.Crim.App.2005), rev’d on other grounds, 982 So.2d 1148 (Ala.2006), on remand, 982 So.2d 1155 (Ala.Crim.App.2006).

Contrary to Garzarek’s contention on appeal, the collateral-acts evidence introduced by the State was reasonably necessary to the State’s case. In the instant case, Hyatt described approximately six specific occasions of violence or intimidation from April 2009 to May 2011, after each of which police were called to the scene. Testimony indicated that Garzarek frequently came to the bar after Hyatt had ended her relationship with Garzarek and that Garzarek became combative when asked to leave the bar. On one such occasion, Garzarek was asked to leave the bar after harassing Hyatt and shortly thereafter the electrical-power meter servicing the bar was ripped off the building and thrown in a nearby dumpster. Each instance showed an escalating pattern of violence and intimidation on the part of Gar-zarek and established Garzarek’s motive for setting the fire at the bar where Hyatt worked. Therefore, the circuit court did not abuse its discretion in admitting the collateral-acts evidence to establish motive.

III.

Garzarek further contends that the State intentionally withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, Garzarek contends that the State failed to produce photographs of the crime scene and telephone conversations recorded while Garza-rek was incarcerated awaiting trial.

It is well settled that to prove a Brady violation, the defendant must show (1) that the State withheld evidence; (2) that the withheld evidence was favorable to the defense; and (3) that the evidence was material. Ex parte Cammon, 578 So.2d 1089,1091 (Ala.1991); Ex parte Kennedy, 472 So.2d 1106, 1110 (Ala.), cert. denied, 474 U.S. 975, 106 S.Ct. 340, 88 L.Ed.2d 325 (1985). Additionally, “evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” Johnson v. State, 612 So.2d 1288, 1293 (Ala.Crim.App.1992) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). Additionally,

“ ‘ “[t]ardy disclosure of Brady [v. Maryland, 373 U.S. 83 (1963),] material is generally not reversible error unless the defendant can show that he was denied a fair trial. United States v. Gordon, 844 F.2d 1397 (9th Cir.1988); United States v. Shelton, 588 F.2d 1242 (9th Cir.1978), cert. denied, 442 U.S. 909, 99 S.Ct. 2822, 61 L.Ed.2d 275 (1979); Ex parte Raines, 429 So.2d 1111 (Ala.1982), cert. denied, 460 U.S. 1103,103 S.Ct. 1804, 76 L.Ed.2d 368 (1983); McClain v. State, 473 So.2d 612 (Ala.Cr.App.1985). A delay in disclosing Brady material requires reversal only if ‘the lateness of the disclosure so prejudiced appellant’s preparation or presentation of his defense that he was prevented from receiving his constitutionally guaranteed fair trial.’ United States v. Shelton, 588 F.2d at 1247 (quoting United States v. Miller, 529 F.2d 1125, 1128 (9th Cir.), cert. denied, 426 U.S. 924, 96 S.Ct. 2634, 49 L.Ed.2d 379 (1976)).”
‘[Coral v. State,] 628 So.2d [954,] 980 [ (Ala.Crim.App.1992), aff'd, 628 So.2d 1004 (Ala.1993) ].’
“Ward v. State, 814 So.2d 899, 919 (Ala. Crim.App.2000).”

Jackson v. State, 969 So.2d 930, 936 (Ala. Crim.App.2007).

A.

Garzarek contends that the State improperly withheld recordings of telephone conversations that took place while he was incarcerated in the county jail.

“ ‘In Brady [v. Maryland ], 373 U.S. [83] at 87, 83 S.Ct. [1194] at 1196-97 [ (1963) ], the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” ... The Supreme Court of the United States in United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985)(plurality opinion by Blackmun, J.), defined the standard of materiality required to show a Brady violation as follows: “The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” See also Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987); Stano v. Dugger, 901 F.2d [898] at 899 [ (11th Cir.1990) ]; Delap v. Dugger, 890 F.2d [285] at 299 [ (11th Cir.1989) ]; Coral v. State, 628 So.2d 954 (Ala.Cr.App.1992); Thompson v. State, 581 So.2d 1216 (Ala.Cr.App.1991), cert. denied, 502 U.S. 1030, 112 S.Ct. 868, 116 L.Ed.2d 774 (1992).
“ ‘The same standard of materiality and due process requirements apply whether the evidence is exculpatory or for impeachment purposes. United States v. Bagley; Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Ex parte Womack [, 435 So.2d 766 (Ala.1983) ]. “When the ‘reliability of a given witness may well be determinative of guilt or innocence,’ nondisclosure of evidence affecting credibility falls within the general rule.” Giglio, 405 U.S. at 154, 92 S.Ct. at 766 (quoting Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959)). In short, due process requires the prosecution to disclose material evidence, upon request by the defense, when that evidence would tend to exculpate the accused or to impeach the veracity of a critical state’s witness.’ ”

Belisle v. State, 11 So.3d 256, 295 (Ala. Crim.App.2007) (quoting Williams v. State, 710 So.2d 1276, 1296-97 (Ala.Crim.App.l996))(emphasis added).

The record indicates that during the cross-examination of Garzarek, the prosecutor moved to introduce audio recordings of telephone calls made by Garzarek to his mother while he was in jail awaiting trial. During the telephone calls, Garzarek and his mother discussed, among other things, whether Garzarek’s father would provide an alibi for Garzarek on the night of the fire. The evidence was neither exculpatory nor useful for impeaching the veracity of a witness for the State. Instead, the evidence was used by the State to impeach .Garzarek’s testimony.

Furthermore, Rule 16.1(a), Ala. R.Crim. P., requires the State to disclose to the .accused those “statements made by the defendant to any law enforcement officer, official, or employee.” “A defendant’s statement to a private citizen is not within the purview of Rule 16.1 and need not be disclosed.” Acklin v. State, 790 So.2d 975, 1001 (Ala.Crim.App.2000)(quoting Ford v. State, 628 So.2d 1068, 1071 (Ala.Crim.App.1993)). Because Garzarek made the statements to his mother and not to a law-enforcement officer, official, or employee, the State was not required to disclose the telephone conversations under Rule 16.1.

Garzarek also challenges the propriety of recording his telephone conversation because, he argues, doing so undermines his right to counsel. In Teat v. State, 636 So.2d 697 (Ala.Crim.App.1993), this Court held that, although a prisoner does not necessarily give up all constitutional rights during his or her incarceration, a prisoner has no reasonable expectation of privacy in telephone conversations at a penal institution. Because Garzarek did not have a reasonable expectation of privacy during his telephone conversation, the admission of his telephone conversation did not violate any of his constitutional rights, including his right to counsel. Teat, 636 So.2d at 699. Consequently, Garzarek is not entitled to relief on this claim.

B.

Garzarek also contends that the State failed to provide photographs of the crime scene taken by Captain Thomas Groom, a Dothan fire marshal. The record indicates that Garzarek was provided with photographs of the crime scene taken by crime-scene technician Jon Thomas. At the hearing on Garzarek’s motion for a new trial, however, Garzarek identified 10 photographs that he did not receive — 6 photographs of vehicles parked in the parking lot of the bar and 4 photographs of the kitchen area inside the bar. Garza-rek maintained that the photographs of the vehicles supported his theory that someone else committed the arson and that the photographs of shelving in the kitchen area disproved that the fire originated in the center of the floor.

This Court has held that “ ‘[e]vidence is not ‘suppressed’ if the defendant either knew ... or should have known ... of the essential facts permitting him to take advantage of the exculpatory evidence.’ ” Freeman v. State, 722 So.2d 806, 811 (Ala.Crim.App.1998) (quoting Carr v. State, 505 So.2d 1294, 1297 (Ala.Crim.App.l987))(in-ternal quotations and citations omitted). The record indicates that Garzarek received a copy of an incident report prepared by Captain Groom which indicated that Captain Groom had photographed the crime scene. In his report, Captain Groom stated:

“Above the freezer were two approx. 4 ft. shelves that stored new unused ashtrays, plastic straws and receipt books. Took photos of debris and rest of kitchen. The freezer showed signs of heat damage but no signs of direct fire.”

(C. 294-95.) Therefore, the evidence to which Garzarek refers was not, in fact, suppressed by the State.

Furthermore, Garzarek has not demonstrated that the photographs were material to his defense. In order to find a Brady violation, the evidence must be both exculpatory and material and tend to disprove a fact issue material to guilt or punishment. Brady, supra. As to materiality, Garzarek has the burden of establishing “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceedings would have been different.” Pritchett v. State, 600 So.2d 898, 899 (Ala.Crim.App.1992). Garzarek has failed to meet his burden in this case. Accordingly, Garzarek is not entitled to relief on this claim.

IV.

Garzarek next contends that his right to a fair trial was violated when he was displayed before the jury in the custody of the sheriffs department. Specifically, Garzarek claims that error occurred when jurors saw him being escorted out of an inmate-transport van as the jurors were heading to the courtroom to start the third day of trial.

Immediately before the start of trial on the third day, the following occurred:

“THE COURT: They’re bringing prisoners up on Garzarek and some other people that I need to see briefly. But, obviously, with the sheriffs office running like they did — all my jurors were here on time. So, they just all saw Mr. Garzarek getting out of, I guess, a van or patrol car with the deputies. So, they know he’s in custody.
“I did go ahead and tell them. Because I was back there telling them that we were waiting a minute to get started back. And a couple of the jurors on the wall in the jury room, you know, tell me that.
“And, of course, I told them — I said you can’t — they asked me — they said, ‘Is he in jail?’ And I told them — I said, T really don’t want to comment on that.’ I said, ‘But you can’t hold that against him in any way regardless of whether he’s in jail or on bond.’
“And then another juror mentioned— he says, ‘Well, I figured he was because he’s been wearing the same thing to court every day.’ Which, you know, I can’t control what they may speculate on things like that.
“But, anyway, I want to make that known. I didn’t go into any further detail with them about it. I wanted to talk to you all. And if you want me to give them some sort of instruction further on the record, I’ll be happy to do that.
“[DEFENSE COUNSEL]: Well, Judge, that’s a bell that you can’t unr-ing. If there are suspicions regarding his clothing is one thing. But it’s kind of hard to — I mean, once they see him actually getting out of a van, in custody, I mean, there is no doubt. There’s no speculation to that.
“THE COURT: Well, my preference is to go ahead — but I wanted to talk to you two first — is to explain it to them and then poll them individually. I’ll be honest. When they mentioned it, I immediately told them that they couldn’t hold it against him. That there could just be a multitude of reasons, often unrelated to anything that concerns them, as to why a prisoner is on trial. And they did indicate that it wouldn’t be a problem for them.
“I think what I would prefer to do is go ahead and tell them and attempt to give them an instruction, and then poll them individually and just see where we are.
“THE COURT: I mean, how many times do you tell them to where it becomes you’re just putting a red light over a particular issue that just brings further attention. But, at the same time, you want to make sure that a lay juror can separate out the two issues.
“But my preference is to go ahead and talk to them on the record, in court, with everyone present, poll them. I’ll be honest. At this point in the case — and I understand what the evidence is. We all know what additional evidence there will be. But, technically, after two days of trial, there hasn’t been any evidence to link this defendant to this crime.
“So, at this point, you know, I’ll submit to you that I think they’re very open about the ease. I do understand that there’s going to be some incriminating evidence that will probably come out today. More incriminating evidence.
“But my thought is go ahead and do this. Let’s finish this — and assuming— and I’m not granting that they’ll feel that way. But I think, you know, to look a juror in the eye is just like during individual voir dire.”

(R. 584-90.) Following a brief break, the circuit court gave a curative instruction and polled the jury regarding whether they could put aside their knowledge that Garzarek was in custody, and “be open and fair minded and ... follow the law.” (R. 602.) Each juror answered in the affirmative. When the court asked if there were any objections, the prosecutor questioned whether the jury should have been instructed regarding/a juror’s concern about the length of time Garzarek has been in jail. After both sides agreed that no instruction was necessary, Garzarek made the following motion:

“And that’s fíne. And I don’t have a problem with that. And I don’t have a problem with what [the prosecutor is] asking for. Since we’re here [at the bench], we still object to it. I think it is a totality issue because of the nature of the State’s evidence in trying to prove its case., I think it does rise to the level of extreme prejudice, and we’ll ask for a mistrial.”

(R. 606.)

To the extent Garzarek challenges the circuit court’s denial of his motion for a mistrial, we question whether this issue has been properly preserved for review. “Timely objections must be made to preserve an assignment of error for appellate review, and the objection should, be made as soon as the objectionable ground becomes apparent.” Perkins v. State, 715 So.2d 888, 894 (Ala.Crim.App.1997). It is well settled that “[t]o be timely, a motion for a mistrial must be made immediately after the grounds alleged to warrant the mistrial become apparent.” Culver v. State, 22 So.3d 499, 518 (Ala.Crim.App.2008). See also Sale v. State, 8 So.3d 330, 340 (Ala.Crim.App.2008); Maples v. State, 758 So.2d 1 (Ala.Crim.App.), aff'd, 758 So.2d 81 (Ala.1999). In this case, Garzarek moved for a mistrial after the circuit court notified the parties that the jurors had seen Garzarek in police custody, provided a curative instruction to the jury, and polled the jury. Because Garza-rek’s motion for a mistrial was not timely, this issue is not properly before this Court for review.

Moreover, even if Garzarek had timely moved for a mistrial, he would not be entitled to relief. “A mistrial is a drastic remedy that should be used sparingly and only to prevent manifest injustice.” Hammonds v. State, 777 So.2d 750, 767 (Ala.Crim.App.1999) (citing Ex parte Thomas, 625 So.2d 1156 (Ala.1993)), aff'd, 777 So.2d 777 (Ala.2000). A mistrial is the appropriate remedy when a fundamental error in a trial vitiates its result. Levett v. State, 593 So.2d 130, 135 (Ala.Crim.App.1991). “The decision whether to grant a mistrial rests within the sound discretion of the trial court and the court’s ruling on a motion for a mistrial will not be overturned absent a manifest, abuse of that discretion.” Peoples v. State, 951 So.2d 755, 762 (Ala.Crim.App.2006). The circuit court’s prompt response to the jurors’ exposure to seeing Garzarek in police custody, the curative instructions given by the circuit court, and the circuit court’s subsequent polling of the jury following those instructions eliminated any prejudice that possibly occurred after jurors saw Garza-rek exiting a police vehicle. Therefore, the circuit court did not abuse its discretion in denying Garzarek’s motion for a mistrial.

Furthermore, the record in this case does not indicate whether Garzarek was dressed in prison garb when the jurors saw him, whether he was being escorted with other prisoners, or whether he was restrained by handcuffs or shackles. Thus, Garzarek has not demonstrated that he was denied a fair trial merely because jurors briefly saw him in custody. See Hutcherson v. State, 677 So.2d 1174, 1182 (Ala.Crim.App.1994), rev’d on other grounds, 677 So.2d 1205 (Ala.1996)(noting that “a prison uniform is merely another symbol that an accused is in police custody” and a “brief and inadvertent confrontation” between the jury and the accused is an insufficient showing of prejudice to warrant a mistrial). Accordingly, Garza-rek is not entitled to relief on this claim.

V.

Finally, Garzarek contends that he was denied his right to a fair trial when the State deliberately called Patrick Walker as a witness, whom the State knew would give hearsay testimony, and that the circuit court should have granted his motion for a mistrial on this basis. Garzarek argues that the State called Walker to testify only so that the State could then impeach Walker’s testimony.

The record indicates that the State called Walker as a witness at trial. During Walker’s testimony, the following occurred:

“Q. [PROSECUTOR]: Would you tell the ladies and gentleman of the jury, did you ever have a conversation with Josh Garzarek about he was going to burn the bar?
“A. No.
“Q. You deny that?
“A. Yes.
“Q. Okay. Now, let me ask you this: You have had traffic tickets and been put in jail? Correct?
“A.. Yes.
“Q. Okay. Well, let’s go, if we could — did you ever have a conversation with your mother, and Mike Estress present, about where Josh Garzarek called you up and said he was going to burn the bar, and you told him emphatically he didn’t need to do that, he didn’t need to make that mistake, and not—
“[DEFENSE COUNSEL]: I’m going to object to all this. It’s improper. He’s called a witness in his case in chief for apparently the only purpose of trying to impeach him. It’s an improper method, and we object.”

(R. 1051-54.)

Following a lengthy discussion during which the prosecutor told the circuit court that it would not ask Walker any further questions regarding Walker’s conversation with Garzarek about the fire at the bar, the circuit court held that it would allow Walker to “testify to what he admits to between him and Mr. Garzarek” but that, if he denied the conversation with Garza-rek took place, the prosecutor could not call a witness to impeach Walker. (R. 1090.) The circuit court informed the parties that it would instruct the jury to disregard the previous line of questioning about any alleged statement Garzarek may have made to Walker about the fire. Thereafter, the circuit court instructed the jury as follows:

“THE COURT: Ladies and gentlemen, when we broke, there had been some objection. This witness was asked about an alleged statement that was made by the defendant, Joshua Garza-rek, to him, along the lines that I guess could be understood as some sort of admission that he set fire to [the bar]. This witness has denied that Mr. Garza-rek made that statement to him.
“What I need to instruct you is you need to completely disregard that. It’s not been proven. The witness has denied it. So, as far as you’re concerned, that question was never asked. Is everyone able to do that?
(Whereupon, members of the jury responded affirmatively.)
“THE COURT: Yes? You need to tell me if you think that may weigh in your mind. At this point, again, like I told you when we began, the only evidence that you will hear is what witnesses, under oath, testify to. Statements that the attorneys make is not evidence in this case. So, does everyone understand that? The witness has not stated that that that is a correct statement. So, you. need to completely disregard it.”

(R. 1092-93.)

“ ‘The grant or denial of a mistrial is a matter within the sound discretion of the trial court, and its ruling will be disturbed only if an abuse of that discretion is shown.’ ” Culver v. State, 22 So.3d 499, 518 (Ala.Crim.App.2008) (quoting J.E. v. State, 997 So.2d 335, 341 (Ala.Crim.App. 2007)).

“The entry of a mistrial is not lightly to be undertaken. It should be only a last resort, as in cases of otherwise ineradicable prejudice. Where error is eradicable a mistrial is too drastic and is properly denied.’ Woods v. State, 460 So.2d 291, 296 (Ala.Crim.App.1984); Chillous v. State, 405 So.2d 58 (Ala.Crim.App.1981).”

Wilson v. State, 777 So.2d 856, 919 (Ala.Crim.App.1999) (citations omitted).

Following the objectionable testimony, the circuit court prevented the State from questioning Walker further regarding his conversation with Garzarek about burning the bar. The State was also not allowed to impeach Walker’s denial with a prior inconsistent statement, and the impeachment evidence the State proposed to introduce at trial was never admitted into evidence. The circuit court promptly instructed the jury to disregard the State’s question and Walker’s testimony. The court then questioned the jury to determine whether they could, in fact, disregard the State’s question and Walker’s response, whereupon members of the jury responded in the affirmative.

Generally, “prejudicial statements, even though improper, are considered capable of being eradicated by the trial court sustaining objections thereto or by appropriate instructions to the jury or both.” Walker v. State, 932 So.2d 140, 153 (Ala.Crim.App.2004) (internal quotations and citations omitted). The circuit court’s instruction cured whatever prejudice might have resulted from the improper question by the State and ensuing response from Walker in light of the fact that the jury is presumed to follow the circuit court’s instructions. See Calhoun v. State, 932 So.2d 923, 965 (Ala.Crim.App.2005) (‘We presume that the jury follows the circuit court’s instructions.”).. Because the circuit court prevented the State from presenting evidence to impeach Walker’s testimony and the circuit court cured whatever prejudice may have resulted through its oral instructions to the jury, the circuit court did not abuse its discretion when it denied Garzarek’s motion for a mistrial. Accordingly, Garzarek is entitled to no relief on this claim.

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

AFFIRMED.

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