author: PER CURIAM.

text:
    J.A.K. v. R.B. and A.B.
    2151012
    Court of Civil Appeals of Alabama.
    May 12, 2017
    Nicholas J. Beckham, Childersburg, for appellant.
    Submitted on appellant's brief only.
   PER CURIAM.

In April 2016, J.M. ("the mother") filed in the Talladega Juvenile Court ("the juvenile court") a petition seeking modification of a 2015 custody judgment that had awarded custody of R.K. ("the child") to R.B. and A.B. ("the custodians"). Both the mother and J.A.K. ("the father") had been awarded visitation with the child under the 2015 custody judgment. The juvenile court held a trial on the mother's petition on June 14, 2016. The mother appeared at the trial with counsel; the father and the custodians, however, appeared at trial pro se. On July 7, 2016, the juvenile court entered a judgment awarding the father custody of the child.

The mother and the custodians filed postjudgment motions, the mother on July 14, 2016, and the custodians on July 15, 2016 ("the postjudgment motions"). The juvenile court held a hearing on the postjudgment motions on July 28, 2016, 14 days after the mother's postjudgment motion was filed and the final day on which to rule on her motion. See Rule 1(B)(1), Ala. R. Juv. P. (providing that a postjudgment motion is denied by operation of law if the juvenile court does not render an order on the motion within 14 days of its filing or within the period of any extension of that time); see also Rule 59.1, Ala. R. Civ. P. (governing the automatic denial of postjudgment motions by operation of law in civil actions). At the July 28, 2016, hearing, the juvenile-court judge recognized that he had to rule on the mother's motion on that day and on the custodians' motion by the following day, July 29, 2016. The transcript of the hearing reflects that the juvenile-court judge stated his intention to enter an order under Rule 1(B)(1) extending for an additional 14 days his time to rule on the postjudgment motions. The parties made no objection to the juvenile-court judge's stated intention, and the juvenile court rendered an order on July 28, 2016, extending the time for ruling on the postjudgment motions for an additional 14 days ("the extension order"). The extension order, however, was not entered into the State Judicial Information System by the juvenile-court clerk until August 1, 2016.

On August 8, 2016, before the expiration of the additional 14-day period, the juvenile court entered an order granting the postjudgment motions. The August 8, 2016, order set aside the July 7, 2016, judgment awarding custody to the father. That order also reinstated the 2015 judgment awarding custody of the child to the custodians and ordered that the provisions of that judgment would remain in effect pending a trial on the matter. On August 15, 2016, the juvenile court set the matter for a new trial to be held on August 30, 2016.

On August 30, 2016, the father, then represented by counsel, filed what he styled as a response to the postjudgment motions. The substance of the motion, however, challenged the juvenile court's extension order and the resulting August 8, 2016, order. See, e.g., Ex parte Alfa Mut. Gen. Ins. Co., 684 So.2d 1281, 1282 (Ala. 1996) (quoting Union Springs Tel. Co. v. Green, 285 Ala. 114, 117, 229 So.2d 503, 505 (1969) ) ("The 'character of a [motion] is determined and interpreted from its essential substance, and not from its descriptive name or title.' "); Ex parte Lang, 500 So.2d 3, 4 (Ala. 1986) (construing a motion based on its substance and stating that "[i]t is clear that under our Rules of Civil Procedure the nomenclature of a motion is not controlling"). The father contended that the juvenile court's jurisdiction to act on the postjudgment motions had expired before the entry of the extension order on August 1, 2016, and that, therefore, both the extension order and the August 8, 2016, order, having been entered after the expiration of the original 14-day period for ruling on the postjudgment motions, were void. See K.M.G. v. B.A., 73 So.3d 708, 712 (Ala. Civ. App. 2011) (explaining that if a juvenile court does not rule on a postjudgment motion within 14 days, the juvenile court loses jurisdiction over the motion). The father further posited that the July 7, 2016, judgment was still in effect. Although the father contends that his motion was a Rule 60(b)(4), Ala. R. Civ. P., motion alleging that the extension order and the August 8, 2016, order were void, see Jefferson Cty. Bd. of Health v. Birmingham Hide & Tallow Co., 38 So.3d 714, 717 (Ala. 2009) (" Rule 60(b)(4) permits a court to relieve a party from a final judgment if the judgment is void."), because the juvenile court's August 8, 2016, order granted a new trial, that order was an interlocutory order and not a final judgment to which a Rule 60(b)(4) motion could be directed. See Hallman v. Marion Corp., 411 So.2d 130, 132 (Ala. 1982) ("Interlocutory orders ... are ... not brought within the restrictive provisions of Rule 60(b), Alabama Rules of Civil Procedure, which provides for relief from final judgments. Instead, such orders are left within the plenary power of the court that rendered them to afford relief from them as justice requires."). Thus, the father's motion was a motion seeking reconsideration of the juvenile court's August 8, 2016, interlocutory order.

The juvenile court addressed the father's motion at the August 30, 2016, trial setting. After hearing arguments of counsel, the juvenile court stated on the record that it was denying the father's motion. The juvenile court then conducted a new trial on the mother's modification petition. On August 31, 2016, the juvenile court entered a judgment denying the father's motion and the mother's petition for modification.

The father timely appealed. On appeal, he argues that the juvenile court lacked jurisdiction to extend the time for ruling on the postjudgment motions because the extension order was not entered until after the expiration of the original 14-day period for ruling on those motions. Thus, he contends, the extension order, the August 8, 2016, order, and the August 31, 2016, judgment are void.

As noted above, the juvenile court stated on the record at the July 28, 2016, hearing its intention to extend the time to rule on the postjudgment motions under Rule 1(B)(1). To better assist us in addressing the father's arguments, we will set out both Rule 1(A) and Rule 1(B) in their entirety.

"(A) These Rules shall be known as the Alabama Rules of Juvenile Procedure and shall govern the procedure for all matters in the juvenile court. If no procedure is specifically provided in these Rules or by statute, the Alabama Rules of Civil Procedure shall be applicable to those matters that are considered civil in nature and the Alabama Rules of Criminal Procedure shall be applicable to those matters that are considered criminal in nature. Except as otherwise provided by constitutional provision, statute, these Rules, or other rules adopted by the Supreme Court of Alabama, the Alabama Rules of Evidence shall apply in all proceedings in the juvenile courts. For all matters in the juvenile courts, the phrase 'entry of order or judgment' shall have the same meaning as prescribed in Rule 58(c) of the Alabama Rules of Civil Procedure.
"(B) Procedure shall be uniform in all juvenile courts, whether at the circuit court or the district court level or in the circuit court by trial de novo. In all juvenile courts, if an answer or other pleading is filed by a party pursuant to Rule 12, Alabama Rules of Civil Procedure, the answer or other pleading shall be filed within the 14-day period provided in Rule 12(dc), Alabama Rules of Civil Procedure, regardless of whether the juvenile courts are circuit courts or district courts. All postjudgment motions, whether provided for by the Alabama Rules of Civil Procedure or the Alabama Rules of Criminal Procedure, must be filed within 14 days after entry of order or judgment and shall not remain pending for more than 14 days, unless, within that time, the period during which a postjudgment motion may remain pending is extended:
"(1) By written order of the juvenile court on its own motion, or upon motion of a party for good cause shown, for not more than 14 additional days; or
"(2) Upon the express written consent of all the parties, which consent shall appear of record; or
"(3) By the appellate court to which an appeal of the judgment would lie.
"A failure by the juvenile court to render an order disposing of any pending postjudgment motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period."

The father argues on appeal that the juvenile court, in order to effectively extend the time to rule on the postjudgment motions, was required to enter the extension order before the expiration of the original period for ruling on those motions. He relies, in part, on Rule 58, Ala. R. Civ. P., which explains the distinction between "rendition" and "entry" of an order.

"(a) Rendition of Orders and Judgments. A judge may render an order or a judgment: (1) by executing a separate written document, (2) by including the order or judgment in a judicial opinion, (3) by endorsing upon a motion the words 'granted,' 'denied,' 'moot,' or words of similar import, and dating and signing or initialing it, (4) by making or causing to be made a notation in the court records, or (5) by executing and transmitting an electronic document to the electronic-filing system.
"....
"(c) Entry of Order or Judgment. Upon rendition of an order or a judgment as provided in subdivision (a)(1-4) of this rule, the clerk shall forthwith enter such order or judgment in the court record. An order or a judgment shall be deemed 'entered' within the meaning of these Rules and the Rules of Appellate Procedure as of the actual date of the input of the order or judgment into the State Judicial Information System. An order or a judgment rendered electronically by the judge under subdivision (a)(5) of this rule shall be deemed 'entered' within the meaning of these Rules and the Rules of Appellate Procedure as of the date the order or judgment is electronically transmitted by the judge to the electronic-filing system. ..."

Rule 58.

The father contends that the juvenile court lost jurisdiction to extend the time for ruling on the mother's motion on July 28, 2016, and on the custodian's motion on July 29, 2016, and that the entry of the extension order on August 1, 2016, came too late. The language of Rule 1(B) lends some support to the father's argument. Rule 1(B)(1) states that a postjudgment motion "shall not remain pending for more than 14 days, unless, within that time, the period during which a postjudgment motion may remain pending is extended ... [b]y written order of the juvenile court on its own motion ... for not more than 14 additional days." Thus, any action of the juvenile court to extend the time for ruling on a pending postjudgment motion must occur before the expiration of the original 14-day period.

However, the father's argument hinges on the rule's requiring that the written order of the juvenile court under Rule 1(B)(1) be entered within the original 14-day period for ruling on the postjudgment motion. Rule 1(B)(1) does not explicitly require that the juvenile court enter its written order within the original 14-day period for that written order to be effective. Although Rule 1(A) states that "the phrase 'entry of order or judgment' shall have the same meaning as prescribed in Rule 58(c) of the Alabama Rules of Civil Procedure," the text of Rule 1(B)(1) does not contain the phrase "entry of order or judgment" or the words "entry" or "enter." Rule 1(B) specifically states that it is the failure to render an order on a postjudgment motion within the 14-day period that results in the denial of that motion by operation of law.

Rule 1(B) was amended in 2011 to "provide[ ] a means of extending the time for ruling on postjudgment motions." Comment to Amendment to Rule 1, Ala. R. Juv. P., Effective October 1, 2011. Before the 2011 amendment, the rule provided no method by which the time for ruling on a postjudgment motion could be extended. The rule was amended again in 2014 to its present state "to clarify that the extension permitted upon the court's motion or a motion of a party must be reflected in a written order." Comment to Amendment to Rule 1, Ala. R. Juv. P., Effective July 1, 2014. However, no version of Rule 1(B) permitting a juvenile court to extend the time to rule on a pending postjudgment motion specifically indicates whether the order doing so must be merely rendered within the original 14-day period or entered within that same period to be effective. For additional assistance in determining whether a juvenile court's order extending the time for ruling on a pending postjudgment motion must be merely rendered within the original 14-day period for ruling on that motion or must be entered within that same period to be effective, we turn to the Rules of Civil Procedure. See Rule 1(A) ("If no procedure is specifically provided in these Rules or by statute, the Alabama Rules of Civil Procedure shall be applicable to those matters that are considered civil in nature ....").

Rule 59.1, Ala. R. Civ. P., governs the disposition of postjudgment motions. That rule reads:

"No postjudgment motion filed pursuant to Rules 50, 52, 55, or 59 shall remain pending in the trial court for more than ninety (90) days, unless with the express consent of all the parties, which consent shall appear of record, or unless extended by the appellate court to which an appeal of the judgment would lie, and such time may be further extended for good cause shown. A failure by the trial court to render an order disposing of any pending postjudgment motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period."

Like Rule 1(B), the text of Rule 59.1 specifically provides that rendition, as opposed to entry, of a postjudgment order is sufficient to satisfy the requirement that a trial court rule on a motion within the specified time period (90 days for civil matters in the circuit court, and, pursuant to Rule 59.1(dc), 14 days in the district court). The Committee Comments to Amendment to Rule 59.1, Ala. R. Civ. P., Effective October 24, 2008, point out that the language requiring that the trial court render, as opposed to enter, its order within the specified period was purposeful:

"In Ex parte Chamblee, 899 So.2d 244, 248 (Ala. 2004), the Court 'reaffirm[ed] that for purposes of Rule 59.1 a trial judge "disposes of" a pending postjudgment motion only by properly entering a ruling either denying or granting the motion.' In 2006 the Committee proposed, and the Supreme Court adopted, an amendment to Rule 58(c) providing that electronic input into the State Judicial Information System constitutes 'entry.' The Committee noted that the elimination of handwritten entries of judgments prevents judges from personally making such entries on the docket sheet or the case-action summary and to that extent 'reinstates the distinction between the substantive, judicial act of rendering a judgment and the procedural, ministerial act of entering a judgment.' Committee Comments to Amendment to Rule 58 Effective September 19, 2006. This distinction also applies to Rule 59.1 if a judge renders an order granting a postjudgment motion before the 90th day but the clerk does not electronically enter the order until after the 90th day. Thus, the Committee, at the request of the Court, has proposed this amendment to Rule 59.1 to cause the timely rendering of an order to be effective to prevent the automatic denial by expiration of time, but retaining the requirement that the order must still be entered for other purposes of these Rules, such as the running of the time for an appeal pursuant to Rule 4, Ala. R. App. P."

See also Ex parte Pierson, 63 So.3d 632, 636 (Ala. Civ. App. 2010) (explaining that, "[u]nder Rule 59.1, a trial court must render an order on a postjudgment motion within 90 days or the motion is deemed denied by operation of law. ... Provided that the trial court has rendered an order on the motion before the expiration of the 90-day period, the entry of the order after the 90th day by the clerk does not affect the timeliness of the trial court's action.").

Rule 59.1, like Rule 1(B), permits the extension of the time for ruling on a pending postjudgment motion. In addition to allowing the parties to agree to an extension of the time on the record, Rule 59.1(dc) specifically permits a district court to extend the time for ruling on a pending postjudgment motion for an additional 14 days; that subsection of the rule provides that a postjudgment motion shall not remain pending for more than 14 days "unless within that time an order extends the period, for good cause shown, for not more than an additional fourteen (14) days." This particular language, which does not indicate whether such an order is effective when rendered or when entered, was added to Rule 59.1(dc) in 2008, and the Committee Comments to Amendment to Rule 59.1, Ala. R. Civ. P., Effective October 24, 2008, indicate that the amendment was not "intended to supersede any provision of the Alabama Rules of Juvenile Procedure."

In light of the language used in Rule 59.1 and Rule 1(B) permitting the rendition of postjudgment orders to satisfy the requirement that a trial court rule on a pending postjudgment motion within the applicable period and the stated reasoning behind that specific language in the Committee Comments to Rule 59.1, we are convinced that the rendition of the extension order was effective to extend the time for ruling on the postjudgment motions. The purpose behind Rule 59.1 is to prevent postjudgment motions from languishing unconsidered in the trial courts, postponing indefinitely the resolution of an action. Committee Comments on 1973 Adoption of Rule 59.1, Ala. R. Civ. P. ("This Rule is designed to remedy any inequities arising from failure of the trial court to dispose of post-trial motions for unduly long periods."); see also Palmer v. Hall, 680 So.2d 307, 308 (Ala. Civ. App. 1996) (citing 2 Champ Lyons, Jr., Alabama Rules of Civil Procedure Annotated § 59.1.1 (2d ed. 1986)) ("The stated purpose of Rule 59.1 was to improve trial and appellate procedure and to prevent the delay of an appeal by the trial court's failing to rule on a duly filed post-judgment motion."). The amendment of Rule 59.1 to allow rendition of a postjudgment order to be effective for purposes of tolling the 90- or 14-day period was designed to recognize that the trial court's judicial authority, when timely exercised, should not be usurped by the failure of the clerk to timely fulfill the administrative function of entering the order. The same principle would apply to the rendition of an order extending the time for ruling on a pending postjudgment motion. A court's proper exercise of its authority to render an extension order within the appropriate period should be deemed effective to extend the period for ruling so that the court's authority is not infringed.

We conclude, therefore, that the juvenile court timely exercised its authority under Rule 1(B)(1) to extend the time for ruling on the postjudgment motions by rendering the extension order before the expiration of the original 14-day period for ruling on those motions. The extension order was effective, and neither the August 8, 2016, order nor the August 31, 2016, judgment are void. The father makes no argument regarding the propriety of the custody award contained in the August 31, 2016, judgment, and that judgment is therefore affirmed. Ex parte Riley, 464 So.2d 92, 94 (Ala. 1985) (noting that the "failure to argue an issue in brief to an appellate court is tantamount to the waiver of that issue on appeal").

AFFIRMED.

Thompson, P.J., and Pittman, Thomas, Moore, and Donaldson, JJ., concur.

      We note that Ala. Code 1975, § 12-22-10, which provides that a civil litigant "may appeal ... from an order granting or refusing a motion for a new trial by the circuit court," does not apply to make an order granting a new trial in the juvenile court appealable.


source: Caselaw Access Project

author: JOINER, Judge.

license: Public Domain

text:
    Rashad STOVES v. STATE of Alabama
    CR-14-1687
    Court of Criminal Appeals of Alabama.
    March 17, 2017
    J.D. Lloyd, Birmingham, for Appellant.
    Luther Strange, atty. gen., and Audrey K. Jordan, asst. atty. gen., for Appellee.
   JOINER, Judge.

Rashad Stoves was convicted of one count of reckless manslaughter, see § 13A-6-3, Ala. Code 1975, and five counts of felony murder, see § 13A-6-2, Ala. Code 1975. For the manslaughter conviction, Stoves was sentenced to 20 years' imprisonment and was ordered to pay court costs. For each felony-murder conviction, Stoves was sentenced to life imprisonment and was ordered to pay a $100 crime-victims-compensation assessment and court costs. All sentences were to be served concurrently.

The State's evidence at trial tended to show that, in the early morning hours of January 29, 2012, Stoves, Artavius Underwood, and Reginald Mims shot and killed Ronnie Render, Charles Render, Jeffrey Davis, Jonathan Sanchez, and Demetrius Sanford during the commission of a robbery at a house located on Avenue S in Ensley.

Rayford Williams testified that, in the late evening of January 28, 2012, he and Akechia Harris went to M & N Grocery Store on 24th Street South. As they left the store, Underwood-whom Williams referred to as "Poo Poo"-and two other young males-later identified as Stoves and Mims-asked Williams for a ride. The three young men got into the backseat of Williams's two-door Chevrolet Cobalt automobile; Underwood sat behind Williams; Stoves sat in the middle; and Mims sat behind Harris, who sat in the front passenger's seat. Stoves directed Williams to drive toward Ensley, and, as Williams drove, Williams and Underwood compared their firearms. Williams had a 9-millimeter Smith & Wesson and Underwood had a pistol with an extended clip. Williams stopped near the 2700 Block of Avenue S near Minor Elementary School; Williams opened his door and leaned his seat forward, and Underwood exited the car. Williams testified: "After I let Poo Poo out the car, once I get ready to lean my seat back, Stoves had a pistol on me." Stoves pointed the pistol that Underwood had shown Williams earlier at Williams and said, "Give it up." Williams gave Stoves his cash, drugs, the Smith & Wesson pistol, and the holster. Stoves hit Williams in the head twice with the pistol, and Williams grabbed the pistol; Williams told Stoves he got what he wanted and to get out of the car. Mims, who was standing outside on the passenger's side, fired a revolver into the car. Williams described Mims's revolver as possibly a .38 caliber and "dusty looking."

Antarius Render testified that, on January 28, 2012, he was living on Avenue S in Ensley. Orlando Scott testified that he had been at Antarius's house for the majority of that day. Between midnight and 1 a.m. on January 29, Antarius, Scott, and Sanford left in Sanford's Crown Victoria automobile and went to the Downtown Lounge, a nightclub. When they returned to Antarius's house around 3 a.m., Sanford backed his car into the driveway, and the men sat inside the vehicle for a few minutes. Scott noticed that all the lights in the house were turned on and that the front door was open. Antarius testified:

"Lights was on, so I get out of the car and I hear noises, like stuff just flipping over and-but I ain't pay no mind, just going in to see what was going on. And I get halfway in the door, and a gun was pointed up to the side of my face."

(R. 1191). Antarius stated that the room had been trashed, and the bed had been moved to the other side of the room. Antarius testified that Stoves was the person holding the gun and that Antarius recognized the gun to be a "Ruger nine with an extended clip." Antarius leaned back, slammed the screen door, and ran out of the house. As he ran, Antarius attempted to tell Sanford and Scott to get out of the car, but he fell against Sanford's car and dropped his hat and cellular telephone in the yard. Antarius saw three people coming out of the house; he saw Stoves approach the driver's side of Sanford's car while a second person approached the passenger's side. Antarius continued running to the Kangaroo store, a local convenience store, where he reported a robbery in progress at his address.

Officer Ronald Brown, Jr., of the Birmingham Police Department ("BPD") was on patrol around 3:20 a.m. on January 29, 2012, when he stopped at the Kangaroo convenience store on the 2200 block of Bessemer Road. Officer Brown went inside, and shortly thereafter Antarius entered the store. Officer Brown testified that Antarius seemed "winded" and that "his pants were wet and he was bleeding from his hand." Officer Brown asked Antarius what was going on, and Antarius replied that someone was robbing his house. Officer Brown reported a possible robbery in progress at Antarius's address and transported Antarius to BPD headquarters for questioning.

Orlando Scott testified that, at around 1 p.m. on January 28, 2012, he saw Stoves, Mims, and Underwood in Midfield and that he saw Charles Render speak to them.

Scott testified that he, Antarius, and Sanford went to a club around midnight on January 29, 2012, and returned to Antarius's house around 3 a.m. Scott, who was in the rear seat on the passenger's side, and Sanford, who was in the driver's seat, remained in the car while Antarius walked up to the house. Shortly thereafter, Antarius ran out, hit the car, and yelled at Scott and Sanford to "[g]et out of the car!" Scott saw one person chase Antarius down the street as two other people approached Sanford's car. Scott recognized Mims as the person who approached the passenger's side because he had seen him earlier that day. Mims was holding a gun, wearing a skull cap, and attempting to cover his face with a T-shirt. Mims pulled Scott out of the car, hit him with a gun, and told him to lie face down on the ground. Scott identified Stoves as the person who approached the driver's side; Stoves was carrying a 9-millimeter pistol with an extended clip and had Sanford on the floor inside the front doorway of the house. Sanford reassured Scott that he would "handle it," and Stoves told Sanford to "give it up." Scott then heard a gunshot, and Mims told Scott to keep his head down. Scott then saw a third person run up to the house and heard someone ask "what he shot him with." Stoves, Mims, and the third person then fled in Sanford's car. Scott got up and began running in the direction of his house and stopped at a neighbor's house. Scott told his neighbor he had been robbed, and his neighbor telephoned emergency 911. Two police officers arrived and transported Scott to BPD headquarters. Scott testified that a wallet, rings, earrings, money, car keys, and a cellular telephone were taken from him.

Officer Rashad Campbell and Officer Rogie McCombs of the BPD responded to the robbery on January 29, 2012. Officers Campbell and McCombs were the first officers to arrive; Officer Campbell pushed the front door of the house open and saw Sanford slumped over a bed with a gunshot wound to his head. Officer Campbell testified that the room had been "ransacked," "tore up pretty bad," and that "drawers [were] pulled out" and "clothes w[ere] all over the place." After two additional officers arrived, the four officers cleared the rest of the house. In a back bedroom, the officers discovered Charles, Ronnie, Davis, and Sanchez, who "appeared to be deceased." Officer Campbell testified that the back bedroom had also been ransacked.

Officers Campbell and McCombs then left the house on Avenue S because they got a call about a possible witness to the robbery-later identified as Scott-who was banging on the front door of a residence on the 1800 block of 47th Street in Ensley. Officer Campbell testified that, when he and Officer McCombs arrived, Scott "came off the front porch with white jeans on, no shoes, wet, and scared." Officer Campbell opened the back door of his patrol car, and Scott dove in. Scott told the officers that he had been robbed and that somebody had tried to kill him. Officers Campbell and McCombs transported Scott to BPD headquarters. As a result of interviews with Scott and Antarius, police developed Stoves-and later Mims and Underwood-as a suspect in the robbery and murders.

Officer Christopher Finch, an evidence technician with the BPD Crime Scene Unit, responded to the house on Avenue S around 4:10 a.m. on January 29, 2012. Officer Finch observed Sanford in the front bedroom with a gunshot wound to his head and observed Charles, Ronnie, Davis, and Sanchez in a back bedroom, all of whom had been shot. Officer Finch testified that there was "a lot of blood" in the back bedroom and a hole in the closet that appeared to have been caused by a bullet.

Officer Finch collected shell casings, cartridges, and projectile fragments from the front bedroom, the back bedroom, the hallway, and the front yard. Specifically, Officer Finch testified that some of the spent bullets he collected were 9-millimeter Luger brand shell casings. Officer Finch also received several projectiles from the coroner that were recovered from the autopsies of Charles, Ronnie, Davis, and Sanchez. Officer Finch later discovered Sanford's vehicle, which had been "burned from front to back."

Detective Jeffrey Steele of the BPD responded to the house on Avenue S at 3:50 a.m. on January 29, 2012. Detective Steele testified that the following items taken from the house were later recovered elsewhere: (1) an H & R Block tax-service business card belonging to Ronnie was found at a convenience store in Bessemer located two blocks from Mims's house; (2) Scott's cellular telephone was found on the roof of the same convenience store; and (3) Charles's wallet was found in the parking lot of a McDonald's fast-food restaurant. Detective Steele testified that a search warrant was executed at a house on South Street in Dolomite; approximately $1,500 in cash and a cellular telephone were discovered as a result of the search. Stoves was apprehended at that address at 6 p.m. on January 29, 2012. Stoves gave a statement to police admitting that he, Mims, and Underwood were at the house on Avenue S in the early morning hours, but Stoves denied committing the crimes. Stoves stated that he had left the scene in a vehicle that, Detective Steele testified, was Sanford's car that was later found burned.

Mitch Rector of the BPD testified as an expert in the field of firearm and toolmark examination. Rector analyzed the bullets recovered from the scene and from the victims' autopsies. Rector testified that the bullets were fired from three different types of guns. The first type of gun was a Smith & Wesson brand 9-millimeter; the second type of gun could have been an American Eagle, Beretta, Browning, CZ, Colt, Cobray, Heckler & Coke, High Point, Kill Tech, Mauser, Norenko, Ruger, Springfield, SWD, Tangfolio, Wather, or Estada brand; the third type of gun was either a Charter Arms, RG, or Rome brand.

Dr. Gary Simmons testified as an expert in the field of forensic pathology. Dr. Simmons performed the autopsies of Charles, Ronnie, Sanford, Davis, and Sanchez on January 30, 2012. Each victim suffered at least one gunshot wound to the head or face; Dr. Simmons testified that each victim died as a result of their gunshot wounds.

After the State rested, Stoves moved for a judgment of acquittal on the ground that the State's evidence was insufficient "to support a finding that [he] is guilty beyond a reasonable doubt." Specifically, Stoves argued that the State failed to show the element of intent. The circuit court denied Stoves's motion. Stoves was ultimately convicted of one count of reckless manslaughter and five counts of felony murder. Stoves filed a motion for a new trial arguing, among other issues, that the "evidence presented at trial was insufficient to find [him] guilty beyond a reasonable doubt." The circuit court denied his motion.

On appeal, Stoves raises several issues. We address each in turn.

I.

Stoves contends that his manslaughter conviction must be vacated because, he says: (1) "the offense for which he has been convicted-the manslaughter of more than one person-is a non-existent offense" (Stoves's brief, p. 11); and (2) his "convictions for manslaughter and felony murder violate double jeopardy principles." (Stoves's brief, p. 13.) The State "concedes that Stoves's manslaughter conviction should be vacated because it violates the Double Jeopardy Clause" and asks this Court to remand this case for the circuit court to vacate Stoves's manslaughter conviction. (State's brief, p. 16.)

This Court addressed a similar issue in Traylor v. State, 93 So.3d 1009 (Ala. Crim. App. 2012) :

"In Rolling v. State, 673 So.2d 812, 813 (Ala. Crim. App. 1995), Rolling's two-count indictment charged Rolling with both the felony murder and intentional murder of one victim. After trial, the jury returned convictions for felony murder and for the lesser-included offense of reckless manslaughter. In analyzing this issue, this Court stated:
" 'Reckless manslaughter is a lesser included offense of felony murder; it requires no proof independent of that necessary to establish felony murder. See § 13A-1-9(a)(1)("An offense is an included one if ... [i]t is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged"). See also Vinson v. State, 601 So.2d 196 (Ala. Crim. App. 1992) (it would be impossible to commit the greater offense without committing the lesser included offense).'
"Furthermore, this Court has held:
" ' Coral v. State, 628 So.2d 954, 958 (Ala. Crim. App. 1992), aff'd, 628 So.2d 1004 (Ala. 1993), cert. denied, 511 U.S. 1012, 114 S.Ct. 1387, 128 L.Ed.2d 61 (1994), illustrates the application of the lesser included offense analysis to a double jeopardy claim:
" ' "The appellant contends that he was twice put in jeopardy for the same offense because he was convicted of the lesser included offense of murder under Count 1, which alleged the capital offense of murder-robbery, and he was also convicted of the capital offense of murder-burglary under Count II. It is clear that these two offenses arose out of the same conduct and that his murder conviction constitutes a conviction for the same murder that was an element of the capital offense of murder-burglary for which he was also convicted. While the appellant was in fact sentenced only for the greater offense, his murder conviction under Count 1 cannot stand. Section § 13A-1-8(b) provides, in part, as follows:
" ' " 'When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
" ' " '(1) One offense is included in the other, as defined in section § 13A-1-9 ....'
" ' "Clearly, under § 13A-1-9, murder is included in the capital offense of murder-burglary .... Accordingly, the cause is remanded for the trial court to vacate the appellant's conviction for murder under Count I of the indictment. However, the appellant's conviction for the capital offense of murder-burglary was proper in this regard and thus it stands."
" 'See also Crear v. State, 591 So.2d 530 (Ala. Crim. App. 1991) (under § 13A-1-8(b)(1), the defendant was erroneously convicted of both resisting arrest and assault where they arose out of the same incident and, under the facts, resisting arrest was a lesser included offense of assault);
Pardue v. State, 571 So.2d 320, 329-30 (Ala. Crim. App. 1989), rev'd on other grounds, 571 So.2d 333 (Ala. 1990) (under § 13A-1-8(b)(1), the defendant was erroneously convicted of both first and second degree theft of property where the convictions were based on a single theft of the same property stolen from the same victim in the same burglary). Compare McKinney v. State, 511 So.2d 220, 225 (Ala. 1987) ("a single criminal act that causes injury to more than one person may constitute more than one offense and may support more than one prosecution conviction").'
" 'Based on the above discussion, the trial court's judgment finding Rolling guilty of both crimes was error. We hold that, particularly pursuant to § 13A-1-8(b)(1), the court was without jurisdiction to adjudge Rolling guilty of manslaughter.'
" Rolling v. State, 673 So.2d 812, 814-15 (Ala. Crim. App. 1995) (footnote omitted)."

93 So.3d at 1012-13 (footnote omitted).

Here, Stoves's convictions for one count of reckless manslaughter and five counts of felony murder are based on the murders of the same five victims arising from the same incident. Stoves was convicted of one count of reckless manslaughter that encompasses the deaths of all five victims, and he was also convicted of five separate counts of felony murder pertaining to each of the five victims. Thus, Stoves was subjected to double jeopardy by being twice convicted for the same offenses. Accordingly, we remand this case to the circuit court with instructions that the court vacate Stoves's manslaughter conviction and accompanying sentence.

II.

Stoves contends that the circuit court erred when it denied his motion to suppress his statement to law enforcement because, he says, he did not give the statement knowingly, voluntarily, or intelligently. Specifically, Stoves claims that he "labored under the mistaken belief that he was going to receive some sort of beneficial treatment from the police or prosecutors in exchange for his statement." (Stoves's brief, p. 16.)

Stoves's suppression argument fails to comply with Rule 28(a)(10), Ala. R. App. P., and, therefore, is deemed waived. See Hooks v. State, 141 So.3d 1119 (Ala. Crim. App. 2013). Rule 28(a)(10), Ala. R. App. P. provides, in relevant part, that appellate briefs must include "[a]n argument containing the contentions of the appellant/petitioner with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on." This Court has previously stated that

" ' "[r]ecitation of allegations without citation to any legal authority and without adequate recitation of the facts relied upon has been deemed a waiver of the arguments listed." Hamm v. State, 913 So.2d 460, 486 (Ala. Crim. App. 2002). "An appellate court will consider only those issues properly delineated as such and will not search out errors which have not been properly preserved or assigned. This standard has been specifically applied to briefs containing general propositions devoid of delineation and support from authority or argument." Ex parte Riley, 464 So.2d 92, 94 (Ala. 1985) (citations omitted). "When an appellant fails to cite any authority for an argument on a particular issue, this Court may affirm the judgment as to that issue, for it is neither this Court's duty nor its function to perform an appellant's legal research."
City of Birmingham v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala. 1998).' "

Taylor v. State, 157 So.3d 131, 143 (Ala. Crim. App. 2010) (quoting Scott v. State, --- So. 3d ----, ---- (Ala. Crim. App. 2010),rev'd on other grounds by Ex parte Scott, --- So. 3d ---- (Ala. 2011) ).

" '[A]pplication of Rule 28(a)(10) to find a waiver of arguments in an appellate brief has been limited to those cases in which the appellant presents general assertions and propositions of law with few or no citations to relevant legal authority, resulting in an argument consisting of undelineated general propositions unsupported by sufficient legal authority or argument. Although Rule 28(a)(10) is to be cautiously applied, it has been applied recently by the Alabama Supreme Court and by this Court when appropriate. ...' "

McWhorter v. State, 142 So.3d 1195, 1236 (Ala. Crim. App. 2011).

Here, Stoves does not cite the portion of the record that contains the substantive matter he attempts to present in this claim. Although he does quote extensive legal authority regarding the standard of review applied to the admissibility of inculpatory statements to law enforcement, he fails to delineate his argument and only presents the general assertion that he was promised leniency in exchange for providing a statement to police. Accordingly, Stoves's claim is deemed waived, and he is not entitled to relief on this issue.

III.

Stoves contends that the circuit court erred when it denied his motion for a judgment of acquittal with respect to his felony-murder charges because, he says, the State's evidence was insufficient to sustain those convictions. Specifically, Stoves argues that the State failed to show that he had the intent to rob each of the victims.

Initially, we address the State's claim that Stoves failed to preserve his sufficiency claim for appellate review. As noted above, Stoves filed a motion for a new trial arguing that "[t]he evidence presented at trial was insufficient to find [him] guilty beyond a reasonable doubt." The State cites T.J.J. v. State, 716 So.2d 258, 260 (Ala. Crim. App. 1998), for the proposition that " '[a] defendant's motion for new trial, in which he asserts that the state failed to present sufficient evidence to sustain the verdict, is required to specifically point out where in the evidence is contended to be deficient.' " (quoting Johnson v. State, 500 So.2d 69, 72 (Ala. Crim. App. 1986) ).

This Court has held:

"It is well settled that
" '[t]he issue of the sufficiency of the evidence is preserved for review by a defendant's motion for a judgment of acquittal that is entered at the end of the state's case, at the close of the evidence, see [Ala. R. Crim. P.] 20.1(a), or after the verdict is entered, see [Ala. R. Crim. P.] 20.3. The motion must state the ground that the state failed to prove a prima facie case [or similar language]. See, e.g., Ex parte Maxwell, 439 So.2d 715 (Ala. 1983). A defendant may also challenge the sufficiency of the evidence when moving for a new trial under [Ala. Crim. P.] 24.1 or when moving for an arrest of judgment under [Ala. R. Crim. P.] 24.2. [Ala. R. Crim. P.] 20.3(c) ; see Pearson[ v. State], 601 So.2d [1119] , 1123-24 [ (Ala. Crim. App. 1992) ] ; Prather v. City of Hoover, 585 So.2d 257, 258 n.1 (Ala. Cr. App. 1991).'
" Zumbado v. State, 615 So.2d [1223,] 1241 [ (Ala. Crim. App. 1993) ]. Further,
" '[t]he sufficiency of the evidence is subject to appellate review only where the defendant challenges the State's lack of evidence by either a motion to exclude, a motion for judgment of acquittal, or a motion for a new trial. Slaughter v. State, 424 So.2d 1365 (Ala. Cr. App. 1982) ; see Johnson v. State, 500 So.2d 69 (Ala. Cr. App. 1986). ...' "

Davis v. State, 42 So.3d 162, 167 (Ala. Crim. App. 2009).

In Ex parte McNish, 878 So.2d 1199 (Ala. 2003), the Supreme Court of Alabama addressed a substantially similar issue:

"At the close of all the evidence, Rosalyn filed in open court a written motion for a judgment of acquittal stating, 'as grounds for said motion would show unto the court the evidence is insufficient to support a finding of guilt beyond a reasonable doubt to the charged offenses.' ...
"The Court of Criminal Appeals held that Rosalyn had not preserved for appellate review her challenge to the sufficiency of the evidence to support her convictions. [ McNish v. State, 878 So.2d 1189 (Ala. Crim. App. 2000) ] ...
" '...'
"In Ex parte Hall, 843 So.2d 746 (Ala. 2002), this Court addressed a virtually identical preservation issue:
" 'In his written motion for a judgment of acquittal, Hall stated as one of his grounds that "insufficient evidence has been presented to support a finding that the defendant is guilty beyond a reasonable doubt." The statement is almost identical to the statement in Hanson[ v. City of Trussville, 539 So.2d 1082 (Ala. Crim. App. 1988) ], that the city had not "proven that [the defendant] is guilty of driving while suspended or revoked through the evidence." Thus, although Hall's statement here, like the statement in Hanson, is not as perfectly phrased as the statement this Court endorsed in Ex parte Maxwell, [439 So.2d 715, 716 (Ala. 1983), i.e., "the prosecution has failed to make a prima facie case"], it was nevertheless "sufficient ... to put the trial court on notice of a defect in the city's case, and, therefore, sufficient to preserve the issue for review." Hanson, 539 So.2d at 1084.'
" 843 So.2d at 749. ..."

878 So.2d at 1200-01. Accordingly, Stoves has preserved this issue for appellate review, and we address the merits of his claim.

" ' "In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution." ' Ballenger v. State, 720 So.2d 1033, 1034 (Ala. Crim. App. 1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala. Crim. App. 1984), aff'd, 471 So.2d 493 (Ala. 1985). ' "The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt." ' Nunn v. State, 697 So.2d 497, 498 (Ala. Crim. App. 1997), quoting O'Neal v. State, 602 So.2d 462, 464 (Ala. Crim. App. 1992). ' "When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court's decision." ' Farrior v. State, 728 So.2d 691, 696 (Ala. Crim. App. 1998) (quoting Ward v. State, 557 So.2d 848, 850 (Ala. Crim. App. 1990) ). 'The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.' Ex parte Bankston, 358 So.2d 1040, 1042 (Ala. 1978)."

Wilson v. State, 142 So.3d 732, 809 (Ala. Crim. App. 2010).

"In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. United States v. Black, 497 F.2d 1039 (5th Cir. 1974) ; United States v. McGlamory, 441 F.2d 130 (5th Cir. 1971) ; Clark v. United States, 293 F.2d 445 (5th Cir. 1961).
" '[W]e must keep in mind that the test to be applied is not simply whether in the opinion of the trial judge or the appellate court the evidence fails to exclude every reasonable hypothesis but that of guilt; but rather whether the jury might so conclude. Harper v. United States, 405 F.2d 185 (5th Cir. 1969) ; Roberts v. United States, 416 F.2d 1216 (5th Cir. 1969). The procedure for appellate review of the sufficiency of the evidence has been aptly set out in Odom v. United States, 377 F.2d 853, 855 (5th Cir. 1967) :
" ' "Our obligation, therefore, is to examine the record to determine whether there is any theory of the evidence from which the jury might have excluded every hypothesis except guilty beyond a reasonable doubt. Rua v. United States, 5 Cir., 1963, 321 F.2d 140 ; Riggs v. United States, 5 Cir., 1960, 280 F.2d 949. In Judge Thornberry's words,
" ' " '... the standard utilized by this Court is not whether in our opinion the evidence and all reasonable inferences therefrom failed to exclude every hypothesis other than guilt, but rather whether there was evidence from which the jury might reasonably so conclude.' Williamson v. United States, 5th Cir., 1966, 365 F.2d 12, 14. (Emphasis supplied)."
" 'The sanctity of the jury function demands that this court never substitute its decision for that of the jury. Our obligation is [to] examine the welter of evidence to determine if there exists any reasonable theory from which the jury might have concluded that the defendant was guilty of the crime charged.' McGlamory, 441 F.2d at 135 and 136."

Cumbo v. State, 368 So.2d 871, 874-75 (Ala. Crim. App. 1978).

" 'Intent, ... being a state or condition of the mind, is rarely, if ever, susceptible of direct or positive proof, and must usually be inferred from the facts testified to by witnesses and the circumstances as developed by the evidence.' " Seaton v. State, 645 So.2d 341, 343 (Ala. Crim. App. 1994) (quoting McCord v. State, 501 So.2d 520, 528-29 (Ala. Crim. App. 1986) ). Intent " ' "may be inferred from the character of the assault, the use of a deadly weapon and other attendant circumstances." ' " Farrior v. State, 728 So.2d 691, 695 (Ala. Crim. App. 1998) (quoting Jones v. State, 591 So.2d 569, 574 (Ala. Crim. App. 1991), quoting in turn Johnson v. State, 390 So.2d 1160, 1167 (Ala. Crim. App. 1980) ). " 'The intent of a defendant at the time of the offense is a jury question.' " C.G. v. State, 841 So.2d 281, 291 (Ala. Crim. App. 2001), aff'd, 841 So.2d 292 (Ala. 2002) (quoting Downing v. State, 620 So.2d 983, 985 (Ala. Crim. App. 1993) ).

" Section 13A-2-23(2), Ala. Code 1975, provides that '[a] person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense ... [h]e aids or abets such other person in committing the offense.' '[I]n Alabama, an individual who is present with the intent to aid and abet in the commission of an offense is as guilty as the princip[al] wrongdoer.' Price v. State, 725 So.2d 1003, 1055 (Ala. Crim. App. 1997), aff'd, 725 So.2d 1063 (Ala. 1998). 'The words "aid and abet" encompass all assistance by acts, words of encouragement, or support, or presence, actual or constructive, to render assistance should it become necessary.' Henry v. State, 555 So.2d 768, 769 (Ala. Crim. App. 1989). 'The culpable participation of the accomplice need not be proved by positive testimony, and indeed rarely is so proved. Rather, the jury must examine the conduct of the parties and the testimony as to the surrounding circumstances to determine its existence.' Miller v. State, 405 So.2d 41, 46 (Ala. Crim. App. 1981) (citation omitted). 'The jury is to determine whether the appellant's participation exists and the extent of it from the conduct of the parties and all the testimony presented.' Walls v. State, 378 So.2d 1186, 1191 (Ala. Crim. App. 1979). 'Such facts as the defendant's presence in connection with his companionship, his conduct at, before, and after the commission of the act, are potent circumstances from which participation may be inferred.' Sanders v. State, 423 So.2d 348, 351 (Ala. Crim. App. 1982)."

Harris v. State, 854 So.2d 145, 151 (Ala. Crim. App. 2002).

Section 13A-6-2(a)(3), Ala. Code 1975, states that

"[a] person commits the crime of murder if ... [h]e or she commits or attempts to commit ... robbery in any degree ... and, in the course of and in furtherance of the crime that he or she is committing or attempting to commit, or in immediate flight therefrom, he or she, or another participant if there be any, causes the death of that person."

"A person commits the crime of robbery in the first degree if he violates Section 13A-8-43[, Ala. Code 1975,] and he ... [i]s armed with a deadly weapon or dangerous instrument." § 13A-8-41(a), Ala. Code 1975. Section 13A-8-43, Ala. Code 1975, provides that "[a] person commits the crime of robbery in the third degree if in the course of committing a theft he ... [u]ses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance."

The State's evidence was sufficient to sustain Stoves's five convictions for felony murder committed during the course of a robbery. Williams testified that, on January 28, 2012, Stoves used a pistol and Mims used a revolver to take his 9-millimeter Smith & Wesson and his holster, among other items. Antarius and Scott testified that they arrived at the house on Avenue S around 3 a.m. on January 29, 2012, to find all the lights on and the front door open. When Antarius attempted to enter the house, he heard someone ransacking the house and was met with Stoves pointing a "Ruger nine with an extended clip" at him. As Antarius ran away, he saw three people leave the house and saw two of them approach Sanford's vehicle. Stoves approached the driver's side of Sanford's vehicle holding a 9-millimeter pistol with an extended clip. Mims also had a gun and pulled Scott out of the car and forced him to lie face down on the ground. Scott heard Stoves tell Sanford to "give it up" and then heard a gunshot. The third person who had left returned and asked Stoves what he had shot Sanford with. The three men then left in Sanford's car, which was later discovered completely burned. Scott had several items including money, jewelry, and his cellular telephone taken from him while he was at the house on Avenue S. Antarius and Scott each reported the robbery, and, as a result of their interviews, police developed Stoves, Mims, and Underwood as suspects.

Four police officers responded to the house on Avenue S to find the house ransacked. The officers discovered five victims of gunshot wounds, who were later identified as Charles Render, Ronnie Render, Jeffrey Davis, Jonathan Sanchez, and Demetrius Sanford. Dr. Simmons testified that each victim died as a result of the gunshot wounds he suffered. Rector testified that a 9-millimeter Smith & Wesson was one of the three types of guns used in the crimes. Items belonging to Ronnie and Scott were later discovered at a convenience store located two blocks from Mims's residence, and Charles's wallet was discovered at a McDonald's fast-food restaurant. Stoves admitted to police that he had been at the house on Avenue S with Mims and Underwood and that they left in Sanford's vehicle.

Accepting as true all evidence introduced by the State, according the State all legitimate inferences therefrom, and considering all evidence in a light most favorable to the prosecution, we conclude that the State presented sufficient evidence to sustain Stoves's five convictions for committing a murder during the course of a robbery. Accordingly, Stoves's claim is without merit, and he is not entitled to relief on this issue.

Based on the foregoing, the judgment of the trial court with respect to Stoves's five felony-murder convictions is affirmed. Further, we remand this case to the circuit court with instructions that the court vacate Stoves's manslaughter conviction and accompanying sentence. The circuit court is directed to make a return to this Court showing compliance with these instructions no later than 42 days from the date of this opinion.

AFFIRMED IN PART; AND REMANDED WITH INSTRUCTIONS.

Windom, P.J., and Welch, Kellum, and Burke, JJ., concur.

      Stoves was indicted for murder made capital pursuant to § 13A-5-40(a)(10), Ala. Code 1975 ("[m]urder wherein two or more persons are murdered by the defendant by one act or pursuant to one scheme or course of conduct"), and was convicted of the lesser-included offense of reckless manslaughter.

      Stoves was indicted for five counts of murder made capital pursuant to § 13A-5-40(a)(2), Ala. Code 1975 ("[m]urder by the defendant during a robbery in the first degree or an attempt thereof committed by the defendant"); for each count, he was found guilty of the lesser-included offense of felony murder.

      Note from the reporter of decisions: On May 26, 2017, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


author: WINDOM, Presiding Judge. WELCH, Judge, dissenting.

text:
    James Edward MCINVALE, Jr. v. STATE of Alabama
    CR-15-1267
    Court of Criminal Appeals of Alabama.
    March 17, 2017
    Joshua Paul Jones, Birmingham, for appellant.
    Luther Strange, atty. gen., and John M. Porter, asst. atty. gen., for appellee.
   WINDOM, Presiding Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

Kellum and Joiner, JJ., concur. Welch, J., dissents, with opinion. Burke, J., dissents.

WELCH, Judge, dissenting.

James Edward McInvale, Jr., appealed from his convictions for aggravated child abuse, a violation of § 26-15-3.1(3), 1 Ala. Code 1975, and second-degree domestic violence, a violation of § 13A-6-131, Ala. Code 1975. These convictions arose from injuries McInvale inflicted upon his four-month-old son. The evidence disclosed that upon arrival at Children's Hospital, the child displayed extensive bruising on his face. Upon examination at the hospital it was disclosed that the child suffered from subdural and retinal hemorrhaging and an injury to his cervical spine. Moreover, the child's examination revealed evidence of previous brain hemorrhaging that had healed. It was the examining physician's opinion that the child's injuries were consistent with child abuse-specifically, multiple impacts of blunt trauma. The injuries will have lasting adverse effects on the child. At the time of trial, the child could not stand and could be fed only through a machine that placed food directly into his stomach. Also, the child suffered 150 to 200 seizures a day and was taking numerous medications to regulate his pain. Additional facts relating to the incident that resulted in the child being taken to the hospital, other than those regarding the child's injuries, are stated in this Court's unpublished memorandum, McInvale v. State, (No. CR-15-1267, March 17, 2017), as follows:

"In a statement given on the evening of December 25, McInvale told investigators that his son became unresponsive after choking while drinking from a bottle. In a statement given five days later, McInvale added that he had slapped his son five times in the face after he had become unresponsive in an attempt to revive him."

McInvale was indicted and charged with violating two distinct statutory offenses based the same act. Count I of his two-count indictment charged aggravated child abuse as follows:

"The Grand Jury of said County charges that before the finding of this Indictment, James Edward McInvale, Jr., alias, whose true name is otherwise unknown to the Grand Jury, being the natural parent, stepparent, adoptive parent, legal guardian, custodian or a person who had the permanent or temporary car[e] or responsibility for the supervision of a child under the age of eighteen years of age, to-wit: [G.] McInvale, did knowingly, recklessly, or intentionally torture, willfully abuse, cruelly beat or otherwise willfully maltreat any child under the age of 18 years, by striking and/or hitting him on or about his head and/or body with his hands and/or fists which caused serious physical injury to [G.] McInvale, contrary to and in violation of Section 26-15-3.1(a)(3) of the Code of Alabama, against the peace and dignity of the State of Alabama."

(C. 6.)

Count II of his indictment charged second-degree domestic violence as follows:

"The Grand Jury of said County further charges that before the finding of this Indictment, James Edward McInvale, Jr., alias, whose true name is otherwise unknown to the Grand Jury, did commit the crime of domestic violence in the second degree by committing the crime of assault in the second degree pursuant to Section 13A-6-21(a)(1) of the Code of Alabama, in that James Edward McInvale, Jr., did with intent cause serious physical injury to another person, to-wit: [G.] McInvale, by striking and/or hitting him on or about his head and/or body with his hands and/or fists, thereby cause serious physical injury to [G.] McInvale, and [G.] McInvale was a current or former spouse, parent, child, any person with whom the defendant has a child in common, a present or former household member, or a person who has or had a dating relationship with the defendant, contrary to and in violation of Section 13A-6-131 of the Code of Alabama, against the peace and dignity of the State of Alabama."

(C. 6.)

McInvale argued for the first time on appeal, as a jurisdictional double-jeopardy violation, that aggravated child abuse and second-degree domestic violence are the same offense.

In affirming McInvale's conviction, the majority in its unpublished memorandum first holds that McInvale's double-jeopardy issue is not properly before this Court for review because McInvale

"was charged in a 'multicount indictment alleging separate offenses.' Straughn v. State, 876 So.2d 492, 508 (Ala. Crim. App. 2003). In other words, this claim was viable prior to trial, and McInvale's failure to raise this claim below constituted a waiver of the claim. Compare Rolling v. State, 673 So.2d 812, 815-16 (Ala. Crim. App. 1995) ('[W]e recognize that the Alabama appellate courts have previously held that the defendant's failure to file a pretrial motion raising a double jeopardy claim forecloses subsequent assertion of that issue. See the cases discussed below. ... However, this rule should apply only if the double jeopardy claim is viable prior to trial.' (citations omitted))."

It alternatively holds that McInvale's claim is without merit because a Blockburger analysis discloses that each offense required proof of additional facts not required by the other.

For the reasons set forth below, I dissent from both holdings.

"The Supreme Court of the United States has held that the Double Jeopardy Clause of the Fifth Amendment contains three protections: 'It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.' North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (footnotes omitted), overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). See Schiro v. Farley, 510 U.S. 222, 229, 114 S.Ct. 783, 127 L.Ed.2d 47 (1994) (reaffirming the three protections of the Double Jeopardy Clause). 'These protections stem from the underlying premise that a defendant should not be twice tried or punished for the same offense.' Schiro, 510 U.S. at 229 (citing United States v. Wilson, 420 U.S. 332, 339, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975) ). The Alabama Supreme Court has held that the Double Jeopardy Clause of Art. I § 9, of the Alabama Constitution of 1901, applies to protect only those three areas enumerated in Pearce. See Ex parte Wright, 477 So.2d 492, 493 (Ala. 1985) ; Adams v. State, 955 So.2d 1037, 1098 (Ala. Crim. App. 2003), reversed on other grounds, Ex parte Adams, 955 So.2d 1106 (Ala. 2005) (holding that Adams, who was 17 years old at the time of the offense, is not eligible for a sentence of death).
"In Blockburger v. United States, the Supreme Court of the United States enumerated the 'same elements' test for determining whether two charges constitute the same offense in violation of the Double Jeopardy Clause of the Fifth Amendment. 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Under the Blockburger test, 'where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.' Id. (emphasis added). The United States Supreme Court has also held 'that a lesser included and a greater offense are the same under Blockburger....' Brown v. Ohio, 432 U.S. 161, 166 n.6, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). See also Perkinson v. State, 273 Ga. 491, 494, 542 S.E.2d 92, 95 (2001) ('For double jeopardy purposes, a lesser-included and a greater offense are the "same offense" under the Fifth Amendment because the lesser offense requires no proof beyond that which is required for the conviction of the greater offense.')."

Gholston v. State, 57 So.3d 178, 184 (Ala. Crim. App. 2010) (emphasis in Gholston ).

Aggravated child abuse is defined as follows:

"A responsible person, as defined in Section 26-15-2 [as 'a child's natural parent'], commits the crime of aggravated child abuse if he or she [violates § 26-15-3, Ala. Code 1975, by torturing, willfully abusing, cruelly beating, or otherwise willfully maltreating any child under the age of 18 years, and in doing so] causes serious physical injury [to the child], as defined in [s]ection 13A-1-2, [as '[p]hysical injury which creates a substantial risk of death, or which causes serious and protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of any bodily organ.']"

§ 26-15-3.1(a)(3), Ala. Code 1975. The crime of aggravated child abuse, at the time McInvale committed the offense, was a Class B felony. § 26-15-3.1(b), Ala. Code 1975.

A person commits second-degree domestic violence if he or she commits a second-degree assault, which is defined in § 13A-6-21(a)(1), Ala. Code 1975, as intentionally causing serious physical injury to another person, and the person assaulted is the child of the individual committing the assault. See §§ 13A-6-131(a), and 13A-6-139(3), Ala. Code 1975. Again, serious physical injury is defined in § 13A-1-2(14), Ala. Code 1975, as "[p]hysical injury which creates a substantial risk of death, or which causes serious and protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of any bodily organ." Second-degree domestic violence is a Class B felony. See §§ 13A-6-131(a) and (b), Ala. Code 1975.

The majority in its unpublished memorandum concludes that aggravated child abuse requires proof of two elements not required for second-degree domestic abuse. It further found that second-degree domestic violence required proof of two elements not required for aggravated child abuse.

"Aggravated child abuse requires proof that the defendant was a 'responsible person' and that the victim was a child-neither of these facts are required to prove a charge of second-degree domestic violence. Second-degree domestic violence requires proof that the defendant intended to cause serious physical injury and that the victim have a domestic relationship with the defendant as defined by § 13A-6-139.1(3), Ala. Code 1975-neither of these facts are required to prove a charge of aggravated child abuse. Because each charge requires proof of a fact that the other charge does not, McInvale's convictions do not violate double-jeopardy principles. See Shaw[v. State ], 148 So.3d [745] at 761-62 [ (Ala. Crim. App. 2013) ]. As such, this issue does not entitle McInvale to any relief."

I disagree with the majority's characterization of the elements in McInvale's case. I believe a double-jeopardy violation does exist because, given the indictment and the facts of this case, second-degree domestic violence and aggravated child abuse are the same offenses under the test set forth in Blockburger and, moreover, by statute,

"[a]n offense is an included one if:

"(1) It is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged.''

§ 13A-1-9, Ala. Code 1975.

Aggravated child abuse and second-degree domestic violence in this case are based on the commission of a second-degree assault. Added to both assaults/offenses are the facts that the perpetrator and the victim are father and child. As charged in this case, the State sought to prove aggravated child abuse by presenting evidence to prove the following facts: 1) a responsible person, i.e., the child's parent, 2) cruelly beat the child, 3) causing serious physical injury to the child. To prove second-degree domestic violence, the State presented the exact same evidence to prove the exact same facts: 1) the parent struck 2) the child, 3) causing serious physical injury to the child.

In this case, the indictments were essentially the same, the elements requiring proof to obtain a conviction for each charge were the same, and the same evidence was used to establish the elements of each case. Neither charge "require[d] proof of a fact which the other does not." Gholston, 57 So.3d at 184, citing Blockburger. Under the Blockburger analysis, these two offenses, as charged and proven, are each considered an included offense of the other and, thus, are the same. As stated above: " 'For double jeopardy purposes, a lesser-included and a greater offense are the ''same offense'' under the Fifth Amendment because the lesser offense requires no proof beyond that which is required for the conviction of the greater offense.' " Gholston, 57 So.3d at 184, quoting Perkinson v. State, 273 Ga. 491, 494, 542 S.E.2d 92, 95 (2001).

I dissent because I believe upholding both convictions violates double-jeopardy principles and that the issue was not waived. I believe that the prohibition against double jeopardy has been violated because McInvale has received multiple punishments for the same offense.

"When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
"(1) One offense is included in the other, as defined in Section 13A-1-9...."

§ 13A-1-8(b)(1), Ala. Code 1975.

I would remand with instruction for the trial court to vacate one conviction and corresponding sentence. For the foregoing reasons, I dissent.

      Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).


text:
    Ernest D. SUGGS, Appellant, v. STATE of Florida, Appellee.
    No. SC16-576
    Supreme Court of Florida.
    [November 9, 2017]
    Robert S. Friedman, Capital Collateral Regional Counsel, Dawn B. Macready, and Stacy Biggart, Assistant Capital Collateral Regional Counsel, Northern Region, Tallahassee, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, and Lisa A. Hopkins, Assistant Attorney General, Tallahassee, Florida, for Appellee
   PER CURIAM.

Ernest D. Suggs, a prisoner under sentence of death, appeals the circuit court's denial of his successive motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. We affirm for the reasons that follow.

BACKGROUND

We previously summarized the evidence presented at Suggs's trial as follows:

Pauline Casey, the victim, worked at the Teddy Bear Bar in Walton County. On the evening of August 6, 1990, the bar was found abandoned, the door to the bar was ajar, cash was missing from the bar, and the victim's car, purse, and keys were found at the bar. The victim was missing. Ray Hamilton, the victim's neighbor, told police that he last saw the victim shooting pool with an unidentified customer when he left the bar earlier that night. Based on Hamilton's description of the customer and the customer's vehicle, police issued a BOLO for the customer. Subsequently, a police officer stopped a vehicle after determining that it matched the BOLO description.
The driver of the vehicle was identified as the appellant, Ernest Suggs. Although he was not then under arrest, Suggs allowed the police to search his vehicle and his home. While searching Suggs' home, the police found, in a bathroom sink, approximately $170 cash in wet bills, consisting of a few twenty-, ten-, and five-dollar bills and fifty-five one-dollar bills.
Meanwhile, police obtained an imprint of the tires on Suggs' vehicle and began looking for similar tire tracks on local dirt roads. Similar tire tracks were found on a dirt road located four to five miles from the Teddy Bear Bar. The tracks turned near a power line, and the victim's body was found about twenty to twenty-five feet from the road. The victim had been stabbed twice in the neck and once in the back; the cause of death was loss of blood caused by these stab wounds. After the victim was found, Suggs was arrested for her murder.
In addition to the cash and tire tracks, police obtained the following evidence connecting Suggs to the murder: one of the three known keys to the bar and a beer glass similar to those used at the bar were found in the bay behind Suggs' home; the victim's palm and fingerprints were found in Suggs' vehicle; and a serologist found a bloodstain on Suggs' shirt that matched the victim's blood. Additionally, after his arrest, Suggs told two cellmates that he killed the victim.
In his defense, Suggs contended that he was framed and made the following claims: that he had small bills because his parents had paid him in cash for working on their dock; that the money was wet because he fell in the water while working on the dock; that other vehicles have tires similar to the tires on his vehicle; that the tires on his vehicle leave a specific overlap pattern because of the wear on them and that no such overlap pattern was found at the scene; that the underbrush on his vehicle did not match any brush from the area of the crime scene; that no fibers or hairs from the victim were found in his vehicle; that the fingerprints in his vehicle could have been left at any time before the day of the murder; that the enzyme from the blood stain on his shirt matches not only the victim but also 90% of the population; that the shirt from which the blood was taken was not properly stored and that the stain could come from any bodily fluid; that the tests performed on the blood stain produced inconclusive results, including the fact that the stain could have been a mixed stain of saliva and hamburger; that a news conference was held regarding his arrest twenty-four hours before the bay behind his house was searched, which provided ample time for someone to deposit the key and glass there; and that his two cellmates lied, gave inconsistent testimony, and received reduced sentences because of their testimony. Additionally, Suggs contended that both Ray Hamilton and Steve Casey, the victim's husband, could have committed the murder (with Casey having life insurance as a motive), and that those individuals were being pursued as suspects until his arrest, but as soon as he was arrested, police dropped their investigation of those suspects.
The State countered this defense by showing that the dock on which Suggs was purportedly working contained no new wood; that the tire tracks did in fact match Suggs' vehicle; and that the enzyme from the blood did not come from Suggs.

Suggs v. State, 644 So.2d 64, 65-66 (Fla. 1994). Suggs was convicted of first-degree murder, kidnapping, and robbery. Id. at 66.

We have previously summarized the penalty-phase evidence as follows:

At the penalty-phase proceeding, one of Suggs' cellmates testified that Suggs told him he murdered the victim because he did not want to leave a witness. Additionally, the State entered into evidence a book entitled Deal the First Deadly Blow, which they had taken from Suggs' house. The State used this evidence to show that Suggs planned how he would kill the victim. The State also introduced evidence that Suggs was convicted of first-degree murder and attempted murder in 1979 and that he was on parole at the time of the murder in this case. Id. at 66.

After the penalty-phase proceeding, the jury recommended a death sentence by a seven-to-five vote, and the trial court sentenced Suggs to death, finding seven aggravating circumstances and three mitigating circumstances. Id.

We affirmed Suggs's conviction and death sentence on direct appeal. Id. Thereafter, we affirmed the denial of his initial motion for postconviction relief. Suggs v. State, 923 So.2d 419 (Fla. 2005). Suggs now appeals the summary denial of his successive motion for postconviction relief, filed October 27, 2015, which raised five claims of newly discovered evidence or Brady violations concerning the following matters: (1) allegations that the victim's husband, whom Suggs argued at trial may have murdered her, sexually abused the victim's daughter; (2) activities and statements of law enforcement officers involved in the search of the bay; (3) recent statements by Suggs's sentencing judge; (4) the involvement in Suggs's case of FBI analyst Michael Malone, whose work has been discredited in other cases; and (5) an investigation of the Walton County Sheriff's Department by the Florida Department of Law Enforcement (FDLE) during the period when Suggs was being investigated, along with evidence of misconduct by the Sheriff and Suggs's prosecutor in a contemporaneous case.

ANALYSIS

We review the circuit court's summary denial of each of these claims in turn, followed by a conclusion as to Suggs's argument that the cumulative effect of the new evidence requires a new trial, applying the de novo standard of review. Hunter v. State, 29 So.3d 256, 261 (Fla. 2008). This standard requires us to accept the allegations of Suggs's motion as true to the extent that they are not conclusively refuted by the record and to uphold the circuit court's ruling if Suggs's claims are legally insufficient or their allegations are conclusively refuted by the record. See id.

1. Newly Discovered Evidence of the Husband's Motive

Suggs's first claim is based on information obtained from the victim's daughter relating to alleged sexual abuse of the victim's daughter by the victim's husband, whom Suggs argued at trial could have been the real murderer. To warrant relief, newly discovered evidence must "be of such nature that it would probably produce an acquittal on retrial." Jones v. State, 709 So.2d 512, 521-22 (Fla. 1998). Suggs claims that the information concerning the alleged sexual abuse is newly discovered evidence of the victim's husband's motive for murdering her. However, Suggs's allegations do not indicate that the victim knew about the alleged sexual abuse of her daughter or provide any connection between the alleged abuse and a motive to murder the victim. Therefore, in a new trial, this information would be inadmissible as irrelevant and substantially more unfairly prejudicial than probative. See §§ 90.401, 90.403, Fla. Stat. (2017). As a result, it would not "probably produce an acquittal on retrial," see Jones, 709 So.2d at 521-22, and this claim was properly denied.

2. Brady Claim Concerning the Search of the Bay

Suggs's second claim is presented under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and concerns the discovery of the key during the search of the bay behind his house and information Suggs has recently obtained from Deputy Wyatt Henderson of the Walton County Sheriff's Department, who participated in the search as a diver. The key was relevant not only because it fit a lock at the bar from which the victim was kidnapped, but also because a witness saw the victim place a key to that lock on the cash register earlier in the night, and no such key was found at the bar, among the victim's belongings, or on the victim in the investigation.

The search of the bay began on August 8, 1990, with the goal of finding the murder weapon, which was never recovered. According to the trial evidence, the search was conducted methodically, with four divers positioned along a rope a few feet apart and moving in an arch pattern from a fixed point at one end of the rope and then extending the rope after completing a full sweep. A drinking glass similar to the glasses used at the bar from which the victim was kidnapped was found on the first day. That afternoon, Investigator Steve Sunday of the Walton County Sheriff's Department obtained a key from the bar owner, stating in his report that the key would be "used to give the divers and other officers a description of the key to look for." Henderson testified at trial that the dive team was not initially told to search for a key.

Testimony at trial established that the search of the bay continued on the morning of August 9, 1990, at the request of Captain Brad Trusty of the Walton County Sheriff's Department, even though the area had not been secured overnight on August 8, a press conference had been held naming Suggs as the suspect, Suggs's home was identifiable, and the bay was accessible to anyone. For the second day, the team used one additional diver. All the divers who testified, including Henderson, explained that on the morning of August 9, the search proceeded continuously from the area that had been searched the day before, except that the divers backed up and searched an overlapping segment of the bay due to poor visibility during the latter part of the prior day's search. The bar key was found during the search of the overlapping section by the diver who was the farthest out into the bay. That diver testified that the key was just beyond his position at the end of the rope.

In Suggs's successive motion for postconviction relief, he alleges that Wyatt Henderson has recently revealed that Captain Trusty told the dive team where in the bay to find the key; that Captain Trusty explained that Suggs had a water line on his pants during his interview, suggesting that evidence may be found farther out in the bay, even though Suggs was wearing black nylon shorts when he was arrested; and that the divers were never shown the key that Investigator Sunday obtained on August 8. Suggs argues that this new information obtained from Henderson shows a Brady violation. We disagree because this information is not material under the Brady standard, which requires showing " 'a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.' " Mordenti v. State, 894 So.2d 161, 170 (Fla. 2004) (quoting Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) ). To meet this standard, a defendant must demonstrate that the suppressed evidence " 'could reasonably be taken to put the whole case in such a different light as to undermine the confidence in the verdict.' " Id. (quoting Allen v. State, 854 So.2d 1255, 1260 (Fla. 2003) ).

In reaching the conclusion that the information alleged to have been learned from Henderson is not material, we find it significant that Suggs's successive motion merely summarizes Henderson's recent statements, with no affidavit from Henderson. The successive motion does not purport to quote Henderson and in no way indicates that Henderson has recanted his trial testimony. Given these facts, the "new evidence" is clearly not material because it is consistent with the evidence at trial and would not be exculpatory.

First, Henderson is purported to have said-in Suggs's words-that Captain Trusty told the dive team where to find the key. Captain Trusty testified at trial that he requested the continuation of the search after the first day. Henderson and others testified at trial that the search team essentially started back the second day where they had ended the search the night before, as darkness approached. Then, the team quickly found the key near where they had stopped the search the night before, either a little farther out (and therefore deeper) in the bay or in an overlap area which had been searched on the last pass of the prior evening when sunlight was diminishing and visibility was poor. Henderson is also alleged to have said that Trusty wanted the search to continue into deeper water because of a water line on Suggs's pants. Without a recantation of Henderson's trial testimony, which indicates a natural progression of the search in the normal course of an investigation, and only a summary of this "new" information in Suggs's words, we readily find these statements immaterial because they can be viewed in a manner that is completely consistent with the trial testimony and, without a recantation by Henderson, would necessarily have to be viewed that way. In fact, Suggs explains that, if Henderson had "been asked about why the search was expanded, he would have testified to the information conveyed to him by Captain Trusty."

With respect to the water stain, Suggs suggests that this statement (attributed by Henderson to Trusty) could not be true (and, therefore, could have been used to impeach Trusty), either because a water stain could not be seen on black fabric or because a water line would not have reached the fabric of shorts. The first inference cannot form a basis for relief because it is too speculative. Seawater contains salts and "other substances, including dissolved inorganic and organic materials" and particulates, Fred T. Mackenzie, et al., Seawater, Encyc. Britannica, http://www.britannica.com/science/seawater (last visited October 30, 2017), and salt dissolved in water crystallizes and remains behind as the hydrogen dioxide evaporates, see Noushine Shahidzadeh et al., Salt stains from evaporating droplets, Scientific Reports (2015), http://www.nature.com/articles/srep10335 (last visited October 30, 2017) (studying stain patterns left through this commonly observed phenomenon). Further, depending on the composition of the bay water at the relevant location and time, it is possible that other solids would also remain after evaporation of the hydrogen dioxide, and either salt or other solids could be visible on dark fabric. With respect to both inferences, even Suggs admitted that he had been in the bay, in his clothing, the night of his arrest-which is how the money found in his home became wet (indicating that he would have been deep enough for the water to reach the pockets of his pants). Additionally, because Captain Trusty did not testify one way or the other about a water line, any impeachment value of this evidence would have to follow questioning by Suggs of Captain Trusty as to the reason he ordered the search to continue on the second day. To determine whether this questioning would have any impeachment value at all, we would have to speculate as to how it would progress. Therefore, the impeachment value of the water-line information does not create a reasonable probability of a different outcome. Cf. Wright v. State, 857 So.2d 861, 870 (Fla. 2003) (finding no Brady violation where "the exculpatory effect" of the evidence was "merely speculative").

The fact that the bar key obtained by Investigator Sunday was not shown to the search team of divers is similarly immaterial because it is consistent with the trial testimony. No one at trial testified that the key was shown to the divers, and the jury was aware that Investigator Sunday obtained a key from the bar owner the day before a key was found in the bay. And, Investigator Sunday's report does not say that he intended to show the divers the key; it states that he obtained the key to give the divers a description, and it notes the physical characteristics of the key as being silver with a round head.

In short, Suggs's new allegations concerning the key are consistent with the explanation of the search presented at trial and, therefore, our confidence in the verdict is not undermined. See Mordenti, 894 So.2d at 170 (explaining that alleged Brady evidence is material only if it is of such a nature that it " 'could reasonably be taken to put the whole case in such a different light as to undermine the confidence in the verdict' " (quoting Allen, 854 So.2d at 1260 )). Accordingly, this claim was properly denied.

3. Newly Discovered Evidence Concerning Sentencing Judge

Suggs's third claim is that newly discovered evidence reveals that his sentencing judge failed to exercise her independent judgment over the decision to sentence him to death under the law as it existed when he was sentenced. Suggs quotes statements his sentencing judge made in a memoir and a letter to the Governor in support of commuting Suggs's sentence to life, arguing that she not only deferred to the jury's vote, contrary to section 921.141(3), Florida Statutes (1989), and Ross v. State, 386 So.2d 1191 (Fla. 1980), but also that she shifted her responsibility to the appellate court, contrary to Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). This claim is meritless. Suggs's sentencing judge issued a detailed order showing the requisite findings, and her recent revelation of her thought process at the time is not the type of evidence that would probably change the outcome at a new sentencing proceeding, as it would not be admissible evidence. See Marek v. State, 14 So.3d 985, 990 (Fla. 2009) (requiring that newly discovered evidence related to sentencing be of such a nature that it would "probably yield a less severe sentence"). Moreover, the sentencing judge's thought process inhered in her decision and is not subject to review. Cf. Foster v. State, 132 So.3d 40, 64-65 (Fla. 2013) (explaining that jurors' private thoughts inhere in the verdict). For these reasons, Suggs's claim is distinguishable from cases where relief has been warranted due to postconviction revelations that prosecutors drafted sentencing orders imposing death without input from the sentencing judges or after ex parte communications. See Roberts v. State, 840 So.2d 962, 972-73 (Fla. 2002) (ex parte communication); Card v. State, 652 So.2d 344, 345-46 (Fla. 1995) (lack of input). Accordingly, this claim was properly denied.

4. Brady Claim Concerning FBI Agent Malone

Suggs's fourth claim is that the State committed a Brady violation by using FBI Agent Michael Malone to test evidence for Suggs's case and not notifying Suggs when Malone was later investigated and found to have performed unreliable work in numerous cases. This claim, too, fails the Brady materiality requirement. Malone concluded that none of the hair found on the victim's body matched Suggs's hair, and Suggs was aware of this conclusion at the time of trial. Given that Malone did not testify in Suggs's trial, that Malone did not provide any evidence inculpating him, and that Suggs has not provided a non-speculative reason to believe that any hair other than the victim's was found on the victim's body, there is no reasonable probability that Suggs's allegations concerning Malone would have produced a different verdict. Therefore, our confidence in the verdict is not undermined. See Bolin v. State, 184 So.3d 492, 500-01 (Fla. 2015) (holding that Malone's contamination of evidence in a separate case was not relevant in a case where Malone had the limited role of receiving evidence, checking for hair and fibers, and forwarding the evidence to other examiners and did not testify), cert. denied, --- U.S. ----, 136 S.Ct. 790, 193 L.Ed.2d 534 (2016) ; Rhodes v. State, 986 So.2d 501, 506-08 (Fla. 2008) (finding a lack of Brady materiality in the revelation that Malone falsely testified that hairs in the victim's hand belonged to the victim, where postconviction testing was unable to exclude either the victim or the defendant as the source of the hair). Accordingly, this claim was properly denied.

5. Brady Claim Concerning Misconduct of Sheriff's Department and Prosecutor

Suggs's fifth claim is that the State committed a Brady violation by failing to disclose that the FDLE was investigating the Walton County Sheriff's Department for misconduct during the period when Suggs was being investigated and prosecuted and that, according to testimony from collateral proceedings in another case, both the Sheriff and the assistant state attorney who prosecuted Suggs engaged in misconduct in a contemporaneous case. If Suggs had known of the FDLE's investigation or the alleged misconduct by the Sheriff and prosecutor, that knowledge does not undermine our confidence in the verdict, as the related evidence would not have been admissible at Suggs's trial as either substantive or impeachment evidence. See §§ 90.404(1), (2)(a), Fla. Stat. (1989) (providing that evidence is inadmissible when its sole relevance is to prove bad character or propensity); Bogle v. State, 213 So.3d 833, 840 (Fla.) (recognizing that "particular acts of misconduct" are inadmissible for impeachment purposes), petition for cert. filed, No. 17-6329 (U.S. Sept. 7, 2017). Accordingly, this claim was properly denied.

6. Cumulative Effect of the New Allegations

Finally, Suggs argues that when all the allegations presented in this postconviction proceeding are considered cumulatively with the trial evidence and other admissible evidence developed in prior postconviction proceedings, he is entitled to a new trial. We disagree. As explained above, the only additional evidence presented in this proceeding potentially admissible in any retrial is that regarding the key addressed in claim two, and there is no reasonable probability that, had this evidence been disclosed to the defense, the result of the trial would have been different. Therefore, our confidence in the verdict is not undermined.

CONCLUSION

For the foregoing reasons, we affirm the summary denial of Suggs's successive motion for postconviction relief.

It is so ordered.

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

      The trial court found the following aggravating circumstances:
      (1) A capital felony was committed by Suggs while under sentence of imprisonment; (2) Suggs was previously convicted of another capital felony and a felony involving the use or threat of violence to the person; (3) the crime for which Suggs is to be sentenced was committed while he was engaged in the commission of the crime of kidnapping; (4) the capital felony was committed for the purpose of avoiding or preventing a lawful arrest; (5) the capital felony was committed for pecuniary gain; (6) the capital felony was especially heinous, atrocious, or cruel; (7) the capital felony was a homicide and was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification.
      Suggs, 644 So.2d at 66 n.1.

      The trial court found the following mitigating circumstances:
      (1) The capacity of Suggs to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired (he had been drinking at the time of the incident); (2) Suggs' family background (he came from a good family); and (3) Suggs' employment background (he was a hard worker).
      Id. at 66 n.2.

      Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      Suggs has not alleged that the FDLE found misconduct in either his case or the contemporaneous case.