text:
    George AFFLECK a/k/a George M. Affleck a/k/a George Marcus Affleck, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-KA-00763-COA.
    Court of Appeals of Mississippi.
    Dec. 15, 2015.
    Rehearings Denied June 21, 2016.
    Certiorari Denied Sept. 15, 2016.

      Office of State Public Defender by Justin Taylor Cook, attorney for appellant.
    Office of the Attorney General by Alicia Marie Ainsworth, attorney for appellee.
    Before IRVING, P.J., MAXWELL and FAIR, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. George Affleck appeals his convictions of capital murder and possession of a firearm by a felon. Affleck argues his convictions should be reversed because: (1) the trial court improperly admitted statements to police under the excited-utterance exception to the hearsay rule; (2) the trial court erroneously allowed testimonial statements to police into evidence in violation of the Confrontation Clause; (3) the trial court erroneously allowed the State to present irrelevant and unauthenticated evidence; (4) the trial court erroneously allowed the State to introduce prior-bad-acts testimony; (5) the evidence was insufficient to support the felon-in-possession-of-a-firearm conviction; (6) a new trial is warranted under the doctrine of retroactive misjoinder; (7) none of the errors raised are harmless; and (8) the cumulative effect of the errors necessitates reversal.

¶2. We find no reversible error and affirm.

FACTS

¶ 3. On May 22, 2011, around 10:30 or 11:30 p.m., Sunny Day Bayham was awakened by the sound of her dogs barking. She looked outside and saw Affleck in her next-door neighbor Diane Hearn’s yard. Affleck was “screaming and yelling and throwing [Hearn] around, trying to get her in his truck,” which was parked in Hearn’s front yard. Hearn tried to run, but Af-fleck grabbed her by her hair and pulled her back. She escaped from the truck once,' and Bayham, who had come outside, called out to Hearn'to see if she needed help. Hearn did not respond, but Affleck yelled at Bayham to go back inside her house or she “could have some of the same.” Affleck then threw Hearn against the side of a tree. He “yanked her up,” threw her into the truck, and slammed the door, telling her, “don’t get out again or you’ll be sorry.” Affleck got in the truck and drove off. Bayham did not call the police because of Affleck’s threat.

¶ 4. Hearn’s next-door neighbor on the opposite side, Ylandra Chambers, was also awakened on the night of May 22, 2011. She could hear the sound of Affleck’s voice, and, from her window, she could see Affleck in Hearn’s yard. Affleck was yelling at Hearn. His truck was parked in Hearn’s yard with the headlights on, although he usually parked in the driveway. Chambers sent Hearn a text message to ask if she was okay. ' Hearn later tried to call Chambers, but Chambers had fallen asleep and missed the call. Chambers testified that she had called the police twice in 2009 when she heard Hearn and Affleck yelling at each other.

¶ 5. Michelle Rushing was visiting a friend, Wendy Beckham, on May 22, 2011, at Beckham’s house on Crestón Avenue in Jackson, Mississippi. Beckham’s house is approximately three houses down from Af-fleck’s, on the opposite side of the street. Around 9 p.m., Rushing and Beckham were out front, when they saw Affleck come out of his house. Rushing testified Affleck was “yelling at . some Mexican guys” in another neighbor’s house, and “he threw a chair at them.” Affleck then left in his truck and returned “not too long” afterwards with a white female. According to Rushing, Affleck stopped the truck in the middle of the street. The two were fighting, and Affleck was “really beating her.” The female opened the truck door and tried to get out, but Affleck pulled her back into the truck. Rushing heard Af-fleck threatened to kill the female, and he was asking her, “how much did you pay them?” Affleck then drove the truck into his driveway. The female jumped out and ran into Affleck’s house. Affleck followed her. Rushing did not see the female again. Beckham testified consistently with Rushing. She heard Affleck say, “B-, I’m going to kill you,” as he was trying to keep the female from escaping his truck. She heard the female screaming and yelling for help, and saying, “please don’t, please don’t.” Although both Rushing and Beckham testified they heard Affleck threaten to kill the female, neither mentioned this in their statements to police,

¶ 6. Pedro Lugo lived and worked with Affleck, Lugo was asleep on the night of May 22, 2011, when another roommate, Reyes Cruz, woke him and said Affleck and Hearn were fighting in Affleck’s bedroom, After two or three hours of hearing Affleck and Hearn yelling at each other, Lugo and Cruz left around 11:30 p.m. to stay in a hotel in Clinton, Mississippi. Lugo was scared of Affleck because he had a gun and a “big knife” in a holster on his waist. Before they left, Lugo saw Hearn lying on the floor in Affleck’s room. Her face was bloody, but she was breathing. Lugo drove back to the home the next morning around 7:30 or 8 a.m. On his way back, he called police out of concern for Hearn. Affleck was in the front yard when Lugo arrived. Lugo did not go inside.

¶ 7. Cruz, who only spoke Spanish, testified through a translator that he also lived with Affleck. On the night of May 22, 2011, he was outside when Affleck and Hearn got out of Affleck’s truck. They were fighting. Hearn ran into the house, and Affleck chased her from room to room. Affleck was pushing her. She was crying and trying to defend herself. Cruz testified he could not sleep because the fighting was so loud, so he and Lugo chose to leave to get a hotel room. Prior to leaving, Cruz saw Hearn lying on the floor in Affleck’s bedroom. Her face was bruised. When he returned to the house the next morning, Affleck was mopping up what appeared to be blood, and Affleck’s clothes from the night before were hanging up wet in the bathroom. Also, the bed was gone from Affleck’s room. Cruz did not see Hearn.

¶8. On May 23, 2011, Kurt Affleck, a Texas resident, reported to the Grapevine, Texas Police Department that his brother, Affleck, had telephoned him around 5 a.m. and told him that he had struck his girlfriend, Hearn. Kurt told Detective Mark Kuppler that Affleck had told him that Hearn was bleeding, and that it was “bad.” Kurt knew Affleck had residences in Texas and Mississippi, although he did not know the Mississippi address. When neither Af-fleck nor Hearn was found at Affleck’s Texas address, Detective Kuppler notified the Jackson, Mississippi Police Department of the information relayed to him in the phone call.

¶ 9. Two Jackson police officers, Investigator Felix Hodge and Officer Dwayne Smith, drove to Affleck’s home on Crestón Avenue at approximately 8:20 a.m. on May 23, 2011, to conduct a welfare check for Hearn’s safety. Affleck was outside. He refused to let them in the house without a search warrant. The officers saw what appeared to be blood on the exterior of two trucks in the yard, one of which was Affleck’s Ford F-150. Then they noticed smoke coming from Affleck’s backyard. They walked around the house and found a burning mattress. They also saw what appeared to be more blood on a shed and other items in the backyard. A spent shell casing was on the ground. Affleck was detained for questioning, as the officers called for backup and secured the scene. Detective Eric Smith went to Hearn’s house and knocked on the door, but no one answered. Detective Smith noticed tire tracks in Hearn’s front yard. And he saw Affleck’s business cards for his roofing business and roofing nails scattered in the yard.

¶ 10. A search warrant was obtained for Affleck’s Jackson home. Police found bloody boots and blood spattered on “everything” in Affleck’s bedroom. Chemical testing revealed the presence of blood in the corner of Affleck’s bedroom and throughout the house. Swabs taken from Affleck’s bedroom revealed Hearn’s DNA. There was no bed in the front bedroom. A 20-gauge Mossburg shotgun was found in the shed behind the house. Affleck’s F-150 was searched and swabbed. A partial profile of Hearn’s DNA was found on the steering wheel. A golf club, black rubber bungee straps, a black knuckle-handled knife, a silver hunting knife, and brass knuckles were found inside Affleck’s truck. Blood was found on the bed liner of the truck.

¶ 11. On May 24, 2011, Steve Evans discovered various bloody items in a dumpster at his place of business on the Interstate 55 frontage road in Jackson, less than a mile from Affleck’s home. He notified police, who recovered over fifty bloody items from the dumpster, including a t-shirt, white bra, blue jeans, towels, and notepads. A black tie-down cord was also found. The t-shirt and bra contained both Affleck’s and Hearn’s DNA

¶ 12. On May 26, 2011, an individual found a wallet next to Interstate 20 near Bolton, Mississippi. Police searched the area and found Hearn’s phone. Later that same day, Bolton police received a call that a motorist had seen a body in the grass along Interstate 20. Police discovered the body of a white female. Dental records confirmed it was Hearn’s body. Hearn’s hands were above her head, as if she had been dragged there. Police found rubber bungee straps and a night-light cover near Hearn’s body. The night-light cover was examined for fingerprints, but none were recoverable. Although Hearn’s body was partially decomposed, the forensic pathologist was able to determine that her death was a homicide caused by severe blunt-force trauma. The forensic pathologist also testified that Hearn had possibly been stabbed or cut. Bones in her neck were fractured, consistent with either strangulation or blunt-force trauma. She had multiple fractures on her face and right hand, and eleven broken ribs. Cell phone records placed both Affleck’s and Hearn’s cell phones in Bolton on the morning of May 23, 2011. These records also showed Af-fleck’s call to his brother at 5 a.m. on May 23 was made near Bolton.

¶ 13. A Hinds County Circuit Court jury found Affleck guilty of capital murder and being a felon in possession of a firearm. He was sentenced as a habitual offender under Mississippi Code Annotated section 99-19-83 (Supp.2014) to two consecutive life sentences in the custody of the Mississippi Department of Corrections without the possibility of parole. Affleck’s posttrial motions for a judgment notwithstanding the verdict and for a new trial were denied. Affleck now appeals.

DISCUSSION

I. Excitedr-Uttemnce Exception to the Hearsay Rule

¶ 14. Affleck argues his conversation with Kurt, as relayed by Detective Kuppler at trial, was hearsay within hearsay, for which no exception applied. ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” M.R.E. 801(c). “Hearsay is not admissible except as provided by law.” M.R.E. 802. A trial court’s admission or exclusion of evidence is reviewed for abuse of discretion. Smith v. State, 136 So.3d 424, 431 (¶ 17) (Miss.2014).

¶ 15. Due to the court reporter’s injury during trial, Detective Kuppler’s testimony is not part of the record. Kurt did not testify, as he was unavailable for trial. The Mississippi Rule of Appellate Procedure 10(c) statement of the evidence, drafted by Affleck’s counsel, summarizes Detective Kuppler’s testimony as follows:

Det. Kuppler testified that on May 23, 2011, he had a conversation with George Affleck’s brother Kurt Affleck[,] a resident of Texas. Det. Kuppler testified that Kurt Affleck informed him that George Affleck telephoned Kurt Affleck at approximately 5:00 a.m. on May 23, 2011, and told Kurt that he (George Affleck) had hurt his girlfriend Diane Hearn. George allegedly told Kurt that George had struck Hearn, she was bleeding and that it was “bad.” Kuppler testified that Kurt Affleck identified George Affleck’s cellular telephone number and the time the call was received.
Det. Kuppler testified that Kurt Affleck did not know where George Affleck was and that the details of Kurt’s statement were communicated to the Jackson Police Department when neither- George Affleck nor Diane Hearn were located at George’s Texas residence. Kuppler subsequently took a written statement from Kurt Affleck on May 25, 2011. Kuppler read to the jury the statement he took from Kurt Affleck[,] which is attached hereto as Exhibit “A.” ... Det. Kuppler advised that he did not know Kurt Af-fleck and had no knowledge or opinion of his credibility, reliability[,] or history for truthfulness.

¶ 16. “Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule[.]” M.R.E. 805. Affleck concedes that his conversation with Kurt is excepted from the hearsay rule as a statement against interest. See M.R.E. 804(b)(8). He argues, however, that no exception applies to Kurt’s conversation with Detective Kuppler.

¶ 17. Over an objection, the trial court found Kurt’s conversation with Detective Kuppler admissible under the excited-utterance exception to the hearsay rule. An “excited utterance” is “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” M.R.E. 803(2). “The underlying theory of the exeited[-]utterance exception is that circumstances may create such an excited condition that the capacity for reflection is temporarily impeded and that statements uttered in that condition are thus free of conscious fabrication.” Id. cmt. “[T]he essential ingredient ... is spontaneity. With respect to the time element, the issue is the duration of the excited state. This, depending on the exact circumstances of a case, can vary greatly.” Id.

¶ 18. The record does specify exactly how much time passed between Affleck’s call to Kurt and Kurt’s conversation with Detective Kuppler. However, we know that Affleck called Kurt at approximately 5 a.m. Phone records show the call lasted approximately seven and a half minutes. Kurt contacted Texas police, who unsuccessfully tried to locate Affleck and Hearn at Affleck’s Texas address. Jackson police were then contacted and responded to Af-fleck’s home at approximately 8:20 a.m. Consequently, the time span between Af-fleck’s call to Kurt and Kurt’s conversation with Detective Kuppler was no more than approximately three hours.

¶ 19. “The issue of spontaneity must be determined in a case[-]by[-]ease analysis, and the length of time between the incident creating the excitement and the statement can vary widely.” Carter v. State, 722 So.2d 1258, 1261 (¶ 11) (Miss.1998). Affleck’s early-morning phone call awakened and startled Kurt. Kurt was worried for Hearn’s safety, and Kurt spoke to Detective Kuppler within a relatively short time of his conversation with Affleck. We cannot find the trial court abused its discretion in finding Kurt’s statements qualified as excited utterances.

¶20. We next must determine whether the trial court properly found the testimony was more probative than prejudicial. Although otherwise admissible, “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” M.R.E. 403. Kurt’s call to police was essential for the jury to understand why Affleck was ultimately arrested. As the Mississippi Supreme Court has held, “in any criminal prosecution the State is entitled to tell ‘a rational and coherent story ” of the events surrounding the crime. Turner v. State, 478 So.2d 300, 301 (Miss.1985) (quoting Neal v. State, 451 So.2d 743, 759 (Miss.1984)). The testimony was probative to present the jury with a complete account of the facts of the case. Kurt’s conversation with Detective Kup-pier led police to search for Hearn out of concern for her safety, which led to Af-fleck’s arrest. There is no evidence the testimony was unduly prejudicial. We cannot find the trial court abused its discretion in admitting Kurt’s conversation with Detective Kuppler into evidence.

¶ 21. We further find that even if the trial court erred in admitting the testimony, the admission was harmless error, considering the overwhelming evidence against Affleck. Shortly before Hearn’s murder, eyewitnesses saw Affleck throw her against a tree, chase her, hit her, and restrain her by grabbing her hair, Witnesses heard Affleck yell at Hearn and threaten to kill her while she cried for help and pleaded with him to stop. Two witnesses saw Hearn lying on the floor in Affleck’s bedroom, bloody and bruised. Hearn’s blood was spattered throughout Affleck’s house and truck. Affleck was seen mopping up blood, and his mattress had been set on fire in the backyard. Clothing bearing Affleck’s and Hearn’s DNA was found in a dumpster near Af-fleck’s house. And Affleck’s cell phone pinged near the location of Hearn’s body around the time of the murder. Given the testimony and physical evidence against him, even if the trial court incorrectly admitted the testimony, Affleck has not shown how he was prejudiced. This issue is without merit.

II. Confrontation Clause

¶ 22. Affleck next argues that the admission of Kurt’s statement to Detective Kuppler into evidence violated his constitutional light to confront all witnesses against him.

¶ 23. “[Ujnder the Sixth Amendment Confrontation Clause, testimonial statements of witnesses absent from trial are admissible only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine the witness.” Galloway v. State, 122 So.3d 614, 636 (¶ 42) (Miss.2013) (citing Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)). The “introduction of evidence admitted via a hearsay exception does not necessarily foreclose Confrontation[-]Clause scrutiny.” Birkhead v. State, 57 So.3d 1223, 1233 (¶ 36) (Miss.2011). We review an objection based on an alleged Confrontation-Clause violation de novo. Id at (¶ 35).

¶ 24. It is undisputed that Kurt was unavailable for trial and that there was no prior opportunity for cross-examination; thus, our focus is on whether Kurt’s conversation with Detective Kup-pler was testimonial. A statement is testimonial when “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Corbin v. State, 74 So.3d 333, 338 (¶ 13) (Miss.2011) (citation omitted). In determining whether a statement is testimonial, we look to the statement’s primary purpose. Ohio v. Clark, — U.S. —, —, 135 S.Ct. 2173, 2180, 192 L.Ed.2d 306 (2015). When a statement is made “to respond to an ‘ongoing emergency,’ its [primary] purpose is not to create a record for trial and thus is not within the scope of the Confrontation Clause.” Id. But “when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution,” the statement is testimonial and subject to the Confrontation Clause. Birkhead, 57 So.3d at 1234 (¶ 37) (citation omitted).

¶ 25. “[A] 911 call is generally nontestimonial as it is ordinarily not designed primarily to establish or prove some past fact, but to describe current circumstances requiring police assis-tanee[.]” Id. (citation and internal quotation marks omitted). Likewise, statements made during a police interrogation are nontestimonial when ■ the “circumstances objectively indicat[e] that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” Id. However, “an affidavit obtained by an interrogating officer in the absence of emergency circumstances [i]s testimonial.” Id.

¶ 26. Kurt contacted police out of ongoing concern for Hearn’s safety. He was unaware of Affleck’s or Hearn’s location, and he was unaware that Hearn had been killed. He was concerned she may be hurt and in need of assistance. There is no evidence that Kurt was attempting to implicate Affleck of a crime. There is also no evidence that Kurt contemplated that his conversation with police would be used later at a trial against Affleck. Kurt’s call was made so police could “resolve the present emergency, rather than simply to learn (as in Crawford) what had happened in the past.” See Sanders v. State, 77 So.3d 484, 488 (¶ 13) (Miss.2012) (quoting Davis v. Washington, 547 U.S. 813, 827, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006)).

¶ 27. While Kurt signed a written statement on May 25, 2011—two days after Affleck was taken into custody but before Hearn’s body was discovered—the written statement was not admitted into evidence. Detective Kuppler, who had typed the statement, read from it at trial. The written statement restated what Kurt had told Detective Kuppler over the phone. Because the written statement was not admitted into evidence, Affleck’s challenge is limited to Detective Kuppler’s testimony regarding the statement. See Hingle v. State, 153 So.3d 659, 661-62 (¶ 5) (Miss.2014) (The “report was not admitted into evidence, so [the appellant] does not challenge the admissibility of the report ,..; she takes issue with-[the witness’s] testimony [regarding the report] only.”).

,¶ 28. We find Kurt’s conversation with Detective Kuppler was nontestimonial and was properly admitted at trial. Even, if a violation occurred, any error was harmless given the weight of the evidence against Affleck.

III. Relevancy and Authenticity of Evidence Found at the Crime Scene

¶ 29. Affleck argues the following evidence presented by the State at trial was irrelevant, untested for DNA, unauthenticated, and unduly prejudicial: a golf club, a knife on a pole, hair fibers, a rubber strap, a mop, and brass knuckles.

¶ 30. “ ‘Relevant Evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Mffl.E. 401. “All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the State of Mississippi, or by these rules. Evidence which is not relevant is not-admissible.” M.R.E. 402. “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice[.]” M.R.E. 403. The admission of evidence is reviewed for abuse of discretion. Smith, 136 So.3d at 431 (¶ 17). We “will not reverse a conviction unless the trial court abused its discretion in a manner that was prejudicial to the accused.” Id. at 431-32 (¶ 17).

¶ 31. In ruling on a renewed objection during trial to the introduction of the golf club, various knives, and brass knuckles, the trial court held:

[As to] the silver hunting knife and the golf club, I previously ruled that there is some probative value on those. I believe there is some probative value with the hunting knife on the ... handle, although minimal[;] I don’t believe there’s the substantial danger of unfair prejudice. It’s a close[] question, but, you know, simply a hunting knife on a handle, I don’t believe, is dangerously prejudicial, and there is some probative value in that.

¶ 32. “Where a trial court determines that potentially prejudicial evidence possesses sufficient probative value, it is within that court’s sound discretion whether or not to admit [the] same, since [Rule] 403 does not mandate exclusion but rather provides that the evidence may be excluded.” Burleson v. State, 166 So.3d 499, 508 (¶ 25) (Miss.2015) (quoting Jones v. State, 904 So.2d 149, 152 (¶ 7) (Miss.2005)). In Burleson, the appellant, who was convicted of capital murder, argued that the State’s introduction of a gun into evidence was more prejudicial than probative, since it was undisputed the gun was not used in the crime. The supreme court found the argument without merit, reasoning as follows:

[W]eapons found near the place where the defendant was arrested are admissible, “even where it is not claimed nor proved that they were used in the commission of the alleged crime in cases where the evidence has probative weight, or where they constitute a part of the surrounding scene or picture, or are a part of the circumstances of the arrest.” Wilkins v. State, 264 So.2d 411, 413 (Miss.1972).

Burleson, 166 So.3d at 508 (¶ 26).

¶ 33. All of the introduced items were found either in Affleck’s home or truck, both crime scenes and near the place of Affleck’s arrest. The trial court found that the evidence was probative, even if minimally so, and its probative value outweighed any prejudicial effect. The knife, golf club, and brass knuckles were probative, as the forensic pathologist testified that Hearn had suffered blunt-force trauma and multiple cuts or stab wounds. These items, as well as the hair fibers, rubber strap, and mop, constituted a part of the surrounding scene of the crime and were probative. Affleck has not shown how he was prejudiced by the introduction of any of the items. Affleck had the opportunity to cross-examine the witnesses who testified regarding the evidence, and to emphasize to the jury his argument that the items were not used in the commission of the crime. We cannot find the trial court abused its discretion in allowing the items to be introduced into evidence.

¶34. We also find no merit to Affleck’s argument that the complained-of evidence was not properly authenticated under Mississippi Rule of Evidence 901. Rule 901 requires “authentication or identification as a condition precedent” to the admission of an item into evidence. M.R.E. 901(a). To meet this requirement, the proponent must show “evidence sufficient to support a finding that the matter in question is what its proponent claims.” Id. No objection was made at trial to the authenticity of the items, and this assertion cannot now be brought for the first time on appeal. See Leedom v. State, 796 So.2d 1010, 1019 (¶ 31) (Miss.2001). Regardless, crime-scene investigators who collected the evidence testified that the items were in fact those found at the crime scene. This issue is without merit.

IV. Prior Bad Acts

¶35. Hearn’s neighbor, Chambers, testified, over an objection, that she called the police twice in 2009 because she heard “a lot of screaming and yelling” while Affleck was at Hearn’s house. Af-fleck argues this was inadmissible prior-bad-acts evidence, solely used to attack his character.

¶ 36. Mississippi Rule of Evidence 404(b) states:

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

If testimony is found admissible under an exception to Rule 404(b), the trial court must then weigh the prejudicial effect against its probative value under Rule 403. Stone v. State, 94 So.3d 1078, 1084 (¶ 18) (Miss.2012). “[W]hen evidence which is admissible for one purpose but not admissible for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.” Brown v. State, 890 So.2d 901, 913 (¶ 36) (Miss.2004) (quoting M.R.E. 105).

¶ 37. It must be noted that while Af-fleck initially objected to Chambers’s testimony as inadmissible prior-bad-acts testimony, he later conceded that Chambers’s testimony as to what she heard and saw in 2009 was admissible. Upon counsel’s initial objection, the trial court heard a proffer of Chambers’s testimony outside the presence of the jury. The trial court found the testimony was admissible as long as the prior domestic-violence incidents were not remote in time and were within Chambers’s firsthand knowledge. The trial court also found the testimony was more probative than prejudicial. After this ruling, counsel stated: “I have no problem with ... her talking about they argued in 2009. That part of her testimony, I don’t think, is objectionable, because she is the declarant. She’s subject to cross, and I can ask her about it, if I want to go in there.” Counsel clarified that the specific objection was regarding what criminal charges, if any, were brought against Affleck after the 2009 incidents. The trial court then asked the State: “But you’re not going to elicit from Ms. Chambers anything about a conviction of this Defendant^] [i]s that correct?” The State responded, “That’s right, [Y]our Honor.”

¶ 38. Chambers testified that after the second incident, police and paramedics responded to Hearn’s house, but she did not testify as to any charges brought against Affleck after either incident. She only testified she became concerned when she heard Affleck at Hearn’s house on May 22, 2011, “[b]ecause he [was]n’t supposed to be[ ] over there.”

¶39. Affleck requested a limiting instruction be given to the jury. Affleck’s counsel drafted the instruction, which the trial court read to the jury:

Concerning Ms. Chambers’s testimony, the court instructs the jury that evidence of alleged prior acts of the Defendant may not be considered by you as proof of the Defendant’s character or as proof the Defendant acted in conformity on the date in question, May 22, 2011. But it may be considered for the purpose of showing motive, opportunity, intent, preparation, plan, knowledge, identity, or ... absence of mistake or accident.

¶40. We find Affleck is procedurally barred from arguing the trial court improperly admitted Chambers’s testimony. Affleck conceded his objection to Chambers’s eyewitness testimony of the events that happened in 2009, so this argument is waived. See Boyd v. State, 977 So.2d 329, 337 (¶ 33) (Miss.2008) (holding that failure to object to the admissibility of evidence waives the issue for appeal). Affleck’s specific objection was to testimony regarding any criminal charges brought as a result of the 2009 incidents. But Chambers did not testify regarding any criminal charges. Further, a limiting instruction was given to the jury, at Affleck’s request. For these reasons, Affleck cannot now argue that Chambers’s testimony should have been excluded under Rule 404(b).

¶41. Regardless, we find no error in the admission of the testimony. This Court has “held that previous incidents of domestic violence against the victim are admissible to show motive, intent, lack of accident, or mistake.” Madden v. State, 42 So.3d 566, 573 (¶ 30) (Miss.Ct.App.2010). In Simmons v. State, 813 So.2d 710, 715 (¶ 27) (Miss.2002), cited by the trial court in support of its decision to admit Chambers’s testimony, a witness testified to an act of domestic violence by the defendant, Simmons, that occurred approximately three months prior to the victim’s murder. Simmons argued the testimony was inadmissible under Rules 403 and 404(b). Id. at (¶ 25). The supreme court found the testimony admissible because it was presented not to show Simmons’s character, but rather “as an integral part of the story for the purpose of showing intent and establishing motive.” Id. at 716 (¶ 31). Also, the supreme court found the trial court properly determined the testimony was more probative than prejudicial, as it showed Simmons’s state of mind and motive. Id. at (¶ 34).

¶ 42. Chambers’s testimony was probative as to Affleck’s state of mind, intent, and motive for the murder. And it was an integral part of the story—not only to show state of mind, intent, and motive, but also to explain Chambers’s testimony that Affleck “[wasjn’t supposed to be[] over there.” We cannot find the trial court abused its discretion in allowing Chambers’s testimony as to the 2009 incidents.

V. Felon in Possession of a Firearm

¶ 43. . Affleck argues the evidence was insufficient to support his felon-in-possession-of-a-firearm conviction.

¶ 44. “[T]o sustain a conviction in the face of a motion for directed verdict or for judgment notwithstanding the verdict," the evidence must be sufficient to show “beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed[.]” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). The evidence must be considered in the light most favorable to the State. Id.

¶ 45. It is unlawful for a person convicted of a felony to possess a firearm. Miss. Code Ann. § 97-37-5(1) (Rev.2014). It was stipulated at trial that Affleck was a convicted felon. Thus, the only element of the charge before the jury was whether Affleck possessed a firearm. Police found a 20-gauge Mossburg shotgun in the shed in Affleck’s backyard. The State proceeded under a theory of constructive possession, since there was no evidence Affleck was in actual possession of the shotgun.

¶46, To prove constructive possession, the evidence must show “the defendant was aware of the presence and character of the particular item and was intentionally and consciously in possession of it.” Short v. State, 929 So.2d 420, 427 (¶ 21) (Miss.Ct.App.2006) (quoting Gavin v. State, 785 So.2d 1088, 1093 (¶ 16) (Miss.Ct.App.2001)). “Constructive possession may be established with proof that the item was under the defendant’s dominion or control.” Id. Proximity to the item is a factor, but is not determinative. Hopkins v. State, 141 So.3d 384, 390 (¶ 16) (Miss.2014). A rebuttable presumption of constructive possession exists when one owns the premises where the item is found. Dixon v. State, 953 So.2d 1108, 1113 (¶ 12) (Miss.2007).

¶ 47. The State introduced the deed to Affleck’s home on Crestón Avenue to prove that he was the home’s owner at the time of his arrest, thus creating a rebutta-ble presumption of constructive possession. At the time of Affleck’s arrest on May 23, 2011, he was standing within close proximity of the shed, which had blood on it. Although Affleck points out that he lived at the home with multiple roommates, no evidence was presented that the shotgun belonged to anyone other than Affleck. Affleck failed to present any evidence to rebut the presumption that he constructively possessed the shotgun.

¶ 48. Considering the evidence in the light most favorable to the State, we find that a reasonable jury could have found Affleck was in constructive possession of the shotgun beyond a reasonable doubt. This issue is without merit.

VI.Retroactive Misjoinder

¶ 49. The doctrine of retroactive misjoinder states that “if the defendant can show that he suffered clear and compelling prejudice as a result of the evidence introduced to support the vacated count, he is entitled to a new trial on the remaining eount(s).” Thomas v. State, 126 So.3d 877, 878 n. 1 (Miss.2013) (quoting Williams v. State, 37 So.3d 717, 721 (¶ 9) (Miss.Ct.App.2010)). Affleck argues that because the felon-in-possession-of-a-firearm count should have been vacated due to lack of evidence, the evidence introduced in support of this charge prejudiced his defense to murder.

¶50. As we have found sufficient evidence to support Affleck’s felon-in-possession-of-a-firearm conviction, we find no merit to this argument.

VII. Harmless Error

¶ 51. Affleck argues that none of the cited errors can be considered harmless. There is no merit to this argument. The State presented substantial evidence against Affleck. With regard to the issues raised, any error at trial, if any is found, was harmless given the overwhelming evidence against Affleck.

VIII. Cumulative Error

¶ 52, Affleck argues cumulative errors require reversal. The cumulative-error doctrine states “that individual errors, which are not reversible in themselves, may combine with other errors to make up reversible error, where the cumulative effect of all errors deprives the defendant of a fundamentally fair trial.” Ross v. State, 954 So.2d 968, 1018 (¶ 138) (Miss.2007). We have found no individual errors, and we find no cumulative errors requiring reversal. This issue is without merit. Affleck’s convictions are affirmed.

¶ 53. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF CAPITAL MURDER AND POSSESSION OF A FIREARM BY A CONVICTED FELON AND SENTENCE OF TWO CONSECUTIVE TERMS OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

BARNES, ISHEE, CARLTON, FAIR, JAMES AND WILSON, JJ„ CONCUR. GRIFFIS, P.J., AND MAXWELL, J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. LEE, C.J., NOT PARTICIPATING.

      . On the first day of trial during lunch, the court reporter fell and injured herself. She was hospitalized, and her notes and some of her audio recordings from the first half of the day were lost. Affleck’s counsel filed a Mississippi Rule of Appellate Procedure 10(c) statement of the evidence on September 30, 2013, in lieu of the missing portions of the transcript. Affleck responded, pro se, objecting to the Rule 10(c) statement. Counsel filed an amended Rule 10(c) statement on November 6, 2013, incorporating most of Affleck’s suggested changes and additions. The amended Rule 10(c) statement summarizes the testimonies of Detective Mark Kuppler, Officer Dwayne Smith, and Investigator Felix Hodge. On April 4, 2014, Affleck filed in this Court a pro se "Motion to Remand for New Trial,” based on the lack of a complete transcript. The motion was denied. No issue is raised on appeal as to the missing portion of the transcript.


source: Caselaw Access Project

license: Public Domain

text:
    Sabrina ABERNATHY et al. v. MONSANTO CO. et al.
    1130358
    Supreme Court of Alabama.
    03-20-2015
   Affirmed.


text:
    Mark PILKINTON and Sherry Pilkinton v. BBC, INC., and Troy Baskins
    1130360
    Supreme Court of Alabama.
    02-13-2015
   Affirmed.


text:
    Chester HINTON and Jackie Hinton v. NOE BUILDERS d/b/a Douglas R. Noe
    1130420
    Supreme Court of Alabama.
    01-16-2015
   Reh. denied.


text:
    Darrel NEVELS v. Judi CAPLES and Rita Powell
    1130422
    Supreme Court of Alabama.
    02-13-2015
   Reh. denied.


text:
    Ted WILLIAMS v. Willie James LEWIS
    1130524
    Supreme Court of Alabama.
    01-30-2015
   Affirmed.


text:
    Jacqueline U. JOHNSON, as personal representative of the estate of Adriel D. Johnson, Sr., deceased v. Dr. Vistap M. KARBHARI
    1130552
    Supreme Court of Alabama.
    01-23-2015
   Affirmed.


text:
    Sammie Lee DAVIS, as personal representative of the estate of Maria Ragland Davis, deceased v. Dr. Vistap M. KARBHARI
    1130554
    Supreme Court of Alabama.
    01-23-2015
   Affirmed.


text:
    EX PARTE AMCOL CORP., et al.
    1130591
    Supreme Court of Alabama.
    01-09-2015
   Mand. pet. denied.


text:
    TURQUOISE PROPERTIES GULF, INC., et al. v. Robert MACK et al.
    1130606
    Supreme Court of Alabama.
    02-13-2015
   Affirmed.


text:
    The H.T. HACKNEY CO. v. REGIONS BANK et al.
    1130615
    Supreme Court of Alabama.
    02-13-2015
   Reh. denied.


text:
    TURQUOISE PROPERTIES GULF, INC., et al. v. Charles Steven WOOD, Sr., et al.
    1130668
    Supreme Court of Alabama.
    02-13-2015
   Affirmed.


text:
    Robert J. CROWLEY v. Mary ALBERDI et al.
    1130696
    Supreme Court of Alabama.
    02-13-2015
   Affirmed.


text:
    SMG HOLDINGS, LLC, and City of Mobile v. Rebecca WEEKS
    1130699
    Supreme Court of Alabama.
    02-13-2015
   Affirmed.


text:
    Roland HEPBURN and Alpha Mortgage, Inc. v. ESTATE OF Richard E. STAHLI, Jr.
    1130717
    Supreme Court of Alabama.
    02-27-2015
   Affirmed.


text:
    Diane BATAIN, individually and as personal representative of the estate of Ervin Batain, deceased v. NATIONAL SECURITY FIRE & CASUALTY CO.
    1130728
    Supreme Court of Alabama.
    02-13-2015
   Affirmed.


text:
    Frank W. BAILEY v. Jay Elton STOVER
    1130743
    Supreme Court of Alabama.
    01-16-2015
   Affirmed.


text:
    TURQUOISE PROPERTIES GULF, INC., et al. v. Susan Shirock DEPAOLA et al.
    1130776
    Supreme Court of Alabama.
    02-13-2015
   Affirmed.


text:
    WK INDUSTRIAL SERVICES CORP. v. INP NORTH AMERICA, INC.
    1130777
    Supreme Court of Alabama.
    02-27-2015
   Affirmed.


text:
    NATIONAL SECURITY FIRE & CASUALTY CO. v. Diane BATAIN, individually and as personal representative of the estate of Ervin Batain, deceased
    1130808
    Supreme Court of Alabama.
    02-13-2015
   Affirmed.


text:
    PLEASANT PROPERTIES, LLC v. MARTIN GLEN, LLC
    1130830
    Supreme Court of Alabama.
    02-13-2015
   Affirmed.


text:
    STAR FLOORS, INC. v. H&H CARPETS, INC.
    1130873
    Supreme Court of Alabama.
    01-16-2015
   Affirmed.


text:
    Thomas C. DONALD v. TURTLE TIME, INC.
    1130875
    Supreme Court of Alabama.
    01-16-2015
   Affirmed.


text:
    Charles R. SMITH v. FIRST METRO BANK
    1130940
    Supreme Court of Alabama.
    01-16-2015
   Reh. denied.


text:
    Howard ROSS v. Shauli ROSEN-RAGER and Renee Rosen-Rager
    1131031
    Supreme Court of Alabama.
    01-16-2015
   Reh. denied.


text:
    COCOON RESOURCES, INC., and Katherine M. Bazemore v. William R. McINTYRE
    1131047
    Supreme Court of Alabama.
    03-13-2015
   Affirmed.


text:
    Juan Carlos ABANSES and Jolene Abanses v. Steve CARVER, John Branum, and Guntersville Real Estate, Inc., d/b/a RE/MAX Guntersville
    1131048
    Supreme Court of Alabama.
    01-16-2015
   Affirmed.


text:
    The MELISSA LAND TAYLOR MANAGEMENT TRUST et al. v. James D. EVANS
    1131127
    Supreme Court of Alabama.
    02-13-2015
   Affirmed.


text:
    Stacy R. LUCY, as personal representative of the estate of Angela Lucy, deceased v. Robert D. LERNER, M.D., and Diagnostic Physicians Group, P.C.
    1131147
    Supreme Court of Alabama.
    02-13-2015
   Affirmed.


text:
    Ex parte State (In re: STATE v. 825 ELECTRONIC GAMBLING DEVICES et al.)
    1131149
    Supreme Court of Alabama.
    01-23-2015
   Mand. pet. denied.


text:
    Jason LEE and Job Trimm v. Patrick L. TATE, as administrator ad litem for the estate of Thomas T. Leach, deceased
    1131224
    Supreme Court of Alabama.
    01-23-2015
    Reh. denied 03-20-2015
   Affirmed.


text:
    Ken WEAVER et al. v. RANDOLPH COUNTY HEALTHCARE AUTHORITY et al.
    1131263
    Supreme Court of Alabama.
    02-13-2015
   Affirmed.


text:
    Audrie LANGSTON, as shareholder of New Century Products, Inc., et al. v. NEW CENTURY PRODUCTS, INC., et al.
    1131312
    Supreme Court of Alabama.
    01-16-2015
   Affirmed.


text:
    EX PARTE BUFFALO ROCK CO. et al.
    1131352
    Supreme Court of Alabama.
    01-09-2015
   Mand. pet. denied.


text:
    EX PARTE Thedford A. ROWSER
    1131390
    Supreme Court of Alabama.
    01-16-2015
   Mand. pet. denied.


text:
    EX PARTE Heather Best HEARN
    1131393 (2130545)
    Supreme Court of Alabama.
    01-16-2015
   Cert, denied.


text:
    Suzanne LOVELADY v. Caleb ALEXANDER and Estate of Kathryn Ann Thompson, deceased
    1131399
    Supreme Court of Alabama.
    02-13-2015
   Affirmed.


text:
    Franklin Leroy STEPHENS v. Hazel COLLEY
    1131429
    Supreme Court of Alabama.
    03-13-2015
   Affirmed.


text:
    EX PARTE T.R., a minor, by and through her legal custodian, K.R.
    1131444
    Supreme Court of Alabama.
    03-20-2015
   Mand. pet. denied.


text:
    Tequan Sabre GRAHAM v. ALABAMA DEPARTMENT OF CORRECTIONS
    1131459
    Supreme Court of Alabama.
    02-13-2015
   Affirmed.


text:
    EX PARTE J.Y.
    1131522 (2130166)
    Supreme Court of Alabama.
    01-23-2015
   Cert, denied.


text:
    EX PARTE Marcus Kinte MALONE
    1140032 (CR-12-2120)
    Supreme Court of Alabama.
    02-13-2015
   Cert, denied.


text:
    EX PARTE Angelo Jermon FRAZIER
    1140067 (CR-12-1317)
    Supreme Court of Alabama.
    01-16-2015
   Cert, denied.


text:
    EX PARTE Willie James ORR
    1140080 (CR-13-1374)
    Supreme Court of Alabama.
    01-16-2015
   Cert, denied.


text:
    EX PARTE Corry R. AVERETT
    1140086 (CR-13-0212)
    Supreme Court of Alabama.
    01-16-2015
   Cert, denied.


text:
    EX PARTE Willie Kevin WILLIAMS
    1140093 (CR-13-0953)
    Supreme Court of Alabama.
    01-16-2015
   Cert, denied.


text:
    EX PARTE Jay W. ISBELL
    1140107 (CR-13-1186)
    Supreme Court of Alabama.
    02-13-2015
   Cert, denied.


text:
    EX PARTE David Lee ANDREWS
    1140114 (CR-13-0777)
    Supreme Court of Alabama.
    02-13-2015
   Cert, denied.


text:
    EX PARTE Ray ISBELL
    1140124 (2130360)
    Supreme Court of Alabama.
    01-30-2015
   Cert, denied.


text:
    EX PARTE David Michael KILLINGSWORTH
    1140129 (CR-13-1248)
    Supreme Court of Alabama.
    01-16-2015
   Cert, denied.


text:
    EX PARTE Kenneth L. PASCHAL
    1140143 (2130194)
    Supreme Court of Alabama.
    01-16-2015
   Cert, denied.


text:
    EX PARTE Brian Keith GATES
    1140150 (CR-13-1482)
    Supreme Court of Alabama.
    01-16-2015
   Cert, denied.


text:
    EX PARTE Lewis McINTYRE
    1140182 (CR-13-0753)
    Supreme Court of Alabama.
    01-16-2015
   Cert, denied.


text:
    EX PARTE Elizabeth Grace O’CONNOR
    1140190 (2130362)
    Supreme Court of Alabama.
    02-27-2015
   Cert, denied.


text:
    EX PARTE George NELSON III, Melissa Nelson, and Annie Nelson
    1140192 (2121027)
    Supreme Court of Alabama.
    01-16-2015
   Cert, denied.


text:
    EX PARTE Melvin THOMAS and Katharina Thomas
    1140209 (2130555)
    Supreme Court of Alabama.
    02-13-2015
   Cert, denied.


text:
    EX PARTE Davida DAVIDSON
    1140210 (2130682)
    Supreme Court of Alabama.
    01-16-2015
   Cert, denied.


text:
    EX PARTE Erskin SPEARMAN
    1140214 (CR-13-1113)
    Supreme Court of Alabama.
    01-16-2015
   Cert, denied.


text:
    EX PARTE David Lawrence POOLE
    1140215 (CR-13-1208)
    Supreme Court of Alabama.
    02-13-2015
   Cert, denied.


text:
    EX PARTE Joyce Ann LONG
    1140219 (2130308)
    Supreme Court of Alabama.
    01-16-2015
   Cert, denied.


text:
    EX PARTE C.H.W.
    1140221 (CR-12-1537)
    Supreme Court of Alabama.
    01-16-2015
   Cert, denied.


text:
    EX PARTE James Riley WIMBERLY
    1140222 (CR-13-1345)
    Supreme Court of Alabama.
    02-27-2015
   Cert, denied.


text:
    EX PARTE Christopher CHAPPELL
    1140225 (CR-13-0906)
    Supreme Court of Alabama.
    02-13-2015
   Cert, denied.


text:
    EX PARTE Charles SMITH
    1140227 (CR-13-1550)
    Supreme Court of Alabama.
    03-13-2015
   Cert, denied.


text:
    EX PARTE Atef FARAGALLA and Lillian Maatouk
    1140228 (2130865)
    Supreme Court of Alabama.
    01-16-2015
   Cert, denied.


text:
    EX PARTE Joe Daniel HOLT, Jr.
    1140244 (CR-13-1625)
    Supreme Court of Alabama.
    01-16-2015
   Cert, denied.


text:
    EX PARTE David Lamar JOHNSON
    1140249 (CR-13-1680)
    Supreme Court of Alabama.
    02-13-2015
   Cert, denied.


text:
    EX PARTE James Arthur CULBRETH
    1140255 (CR-13-1385)
    Supreme Court of Alabama.
    02-13-2015
   Cert, denied.


text:
    EX PARTE Arthur Brennan MALLOY
    1140256 (CR-13-1793)
    Supreme Court of Alabama.
    01-16-2015
   Cert, denied.


text:
    EX PARTE R.C.
    1140260 (2130957)
    Supreme Court of Alabama.
    02-13-2015
   Cert, denied.


text:
    EX PARTE Martez D. McINTOSH
    1140263 (CR-13-0335)
    Supreme Court of Alabama.
    02-13-2015
   Cert, denied.


text:
    EX PARTE Jimmy Lee WEBB
    1140273 (CR-13-1617)
    Supreme Court of Alabama.
    03-13-2015
   Cert, denied.


text:
    EX PARTE Mark Allen NICHOLS
    1140280 (CR-12-1940)
    Supreme Court of Alabama.
    02-13-2015
   Cert, denied.


text:
    EX PARTE Steven HILL, Jr.
    1140281 (CR-13-1322)
    Supreme Court of Alabama.
    02-13-2015
   Cert, denied.


text:
    EX PARTE Roy Thomas SMITH, Jr.
    1140282 (CR-13-1116)
    Supreme Court of Alabama.
    02-13-2015
   Cert, denied.


text:
    EX PARTE Demetrice WINSTON
    1140283 (CR-12-1963)
    Supreme Court of Alabama.
    03-20-2015
   Cert, denied.


text:
    EX PARTE Morris FELTON
    1140287 (CR-13-0381)
    Supreme Court of Alabama.
    02-13-2015
   Cert, denied.


text:
    EX PARTE Marquita Katrice SIMMONS
    1140288 (CR-12-1076)
    Supreme Court of Alabama.
    02-13-2015
   Cert, denied.


text:
    EX PARTE Hershel D. GRAHAM
    1140291 (CR-13-0419)
    Supreme Court of Alabama.
    02-13-2015
   Cert, denied.


text:
    EX PARTE William Patrick SMITH
    1140292 (CR-14-0101)
    Supreme Court of Alabama.
    02-13-2015
   Cert, denied.


text:
    EX PARTE Timothy Jerome McCARROLL
    1140295 (CR-13-1558)
    Supreme Court of Alabama.
    03-20-2015
   Cert, denied.


text:
    EX PARTE Bobby SIMS
    1140296 (CR-13-1407)
    Supreme Court of Alabama.
    03-13-2015
   Cert, denied.


text:
    EX PARTE Rehan HANIF
    1140298 (CR-13-0872)
    Supreme Court of Alabama.
    02-13-2015
   Cert, denied.


text:
    EX PARTE M.O.L.
    1140299 (CR-13-1207)
    Supreme Court of Alabama.
    02-13-2015
   Cert, denied.


text:
    EX PARTE Davon Lee ELLIS
    1140304 (CR-13-1249)
    Supreme Court of Alabama.
    02-13-2015
   Cert, denied.


text:
    EX PARTE Michael A. ROBINSON
    1140311 (CR-13-0314)
    Supreme Court of Alabama.
    02-13-2015
   Cert, denied.


text:
    EX PARTE David Lamar JOHNSON
    1140312 (CR-13-1572)
    Supreme Court of Alabama.
    02-13-2015
   Cert, denied.


text:
    EX PARTE Tyrone Ledell CAINE
    1140316 (CR-13-0390)
    Supreme Court of Alabama.
    02-13-2015
   Cert, denied.


text:
    EX PARTE B.J. DUNN, LCSW
    1140319 (2130881)
    Supreme Court of Alabama.
    02-13-2015
   Cert, denied.


text:
    EX PARTE Brian Earl LOWRY
    1140321 (CR-13-1144)
    Supreme Court of Alabama.
    02-13-2015
   Cert, denied.


text:
    EX PARTE Christie NICHOLS
    1140322 (2130707)
    Supreme Court of Alabama.
    02-13-2015
   Cert, denied.


text:
    EX PARTE Timothy Wayne TARVER
    1140325 (2130516)
    Supreme Court of Alabama.
    02-27-2015
   Cert, denied.


text:
    EX PARTE William Wade TENNANT and William Blake Tennant
    1140331 (2130719)
    Supreme Court of Alabama.
    02-13-2015
   Cert, denied.


text:
    EX PARTE Dale Eugene PFALZGRAF
    1140333 (CR-13-1334)
    Supreme Court of Alabama.
    02-13-2015
   Cert, denied.


text:
    EX PARTE Zachariah WILSON
    1140342 (CR-12-1946)
    Supreme Court of Alabama.
    02-13-2015
   Cert, denied.


text:
    EX PARTE Edward Wilson KYTTLE
    1140362 (CR-13-1871)
    Supreme Court of Alabama.
    02-13-2015
   Cert, denied.


text:
    EX PARTE Michael Davis WILLIAMS
    1140380 (CR-13-1528)
    Supreme Court of Alabama.
    02-13-2015
   Cert, denied.


text:
    EX PARTE Bobby Lee BANKS
    1140387 (CR-13-1940)
    Supreme Court of Alabama.
    02-13-2015
   Cert, denied.


text:
    EX PARTE Ladipo Chad BETHEA
    1140388 (CR-12-1960)
    Supreme Court of Alabama.
    03-13-2015
   Cert, denied.


text:
    EX PARTE Devin D. OLSEN
    1140389 (2140128)
    Supreme Court of Alabama.
    02-13-2015
   Cert, denied.


text:
    EX PARTE Margaret PRITCHETT
    1140394 (2130733)
    Supreme Court of Alabama.
    03-13-2015
   Cert, denied.


text:
    EX PARTE Harold James BROWN
    1140395 (CR-13-0242)
    Supreme Court of Alabama.
    03-13-2015
   Cert, denied.


text:
    EX PARTE Stacey TUBBS
    1140404 (CR-13-1705)
    Supreme Court of Alabama.
    03-13-2015
   Cert, denied.


text:
    EX PARTE Antonio LESLIE
    1140411 (2130048)
    Supreme Court of Alabama.
    03-13-2015
   Cert, denied.


text:
    EX PARTE Randy Lee REID
    1140412 (CR-14-0273)
    Supreme Court of Alabama.
    03-13-2015
   Cert, denied.


text:
    EX PARTE Ismael ABUSALEEM
    1140413 (2130802)
    Supreme Court of Alabama.
    03-13-2015
   Cert, denied.


text:
    EX PARTE Kelly Johnson BARNETT
    1140457 (2130239)
    Supreme Court of Alabama.
    03-13-2015
   Cert, denied.


text:
    EX PARTE Edward Allen VARNER, Jr.
    1140482 (CR-13-0737)
    Supreme Court of Alabama.
    03-13-2015
   Cert, denied.


text:
    EX PARTE Rickard HERALD
    1140485 (CR-13-0954)
    Supreme Court of Alabama.
    03-13-2015
   Cert, denied.


text:
    EX PARTE Luther H.T. GRUBBS, Jr.
    1140488 (CR-13-1752)
    Supreme Court of Alabama.
    03-13-2015
   Cert, denied.


text:
    EX PARTE Alonzo MILLER III
    1140489 (CR-13-1447)
    Supreme Court of Alabama.
    03-13-2015
   Cert, denied.


text:
    EX PARTE Aven COTTON
    1140492 (CR-13-1168)
    Supreme Court of Alabama.
    03-13-2015
   Cert, denied.


text:
    EX PARTE Wytiki Rayshun MOFFETT
    1140505 (CR-13-1483)
    Supreme Court of Alabama.
    03-13-2015
   Cert, denied.


text:
    EX PARTE Wytiki Rayshun MOFFETT
    1140506 (CR-13-1485)
    Supreme Court of Alabama.
    03-13-2015
   Cert, denied.


text:
    EX PARTE Marvin Eugene WOODEN
    1140509 (CR-13-0722)
    Supreme Court of Alabama.
    03-13-2015
   Cert, denied.


text:
    EX PARTE Charles GRAHAM
    1140511 (CR-13-0933)
    Supreme Court of Alabama.
    03-13-2015
   Cert, denied.


text:
    EX PARTE Adrian STEWART
    1140517 (CR-12-0689)
    Supreme Court of Alabama.
    03-13-2015
   Cert, denied.


text:
    EX PARTE Troy James DOLIHITE
    1140524 (CR-14-0458)
    Supreme Court of Alabama.
    03-13-2015
   Cert, denied.


author: PARKER, Justice. PARKER, Justice. MURDOCK, Justice

text:
    Ex parte K.R. (In re Adoption Petition of K.G.S.).
    1141274.
    Supreme Court of Alabama.
    March 25, 2016.
    Rehearing Denied May 27, 2016.

      David G. Kennedy of The Kennedy Law Firm, Mobile, for petitioner.
    Joel A. Williams and Charles E. Sharp, Sr., of Friedman, Dazzio, Zulanas & Bowling, PC, Birmingham; David P. Broome, Mobile; and Brian McCarthy of McDowell Knight, Mobile, for respondent.
   PARKER, Justice.

K.R. petitions this Court for a writ of mandamus directing the Mobile Probate Court (“the probate court”) to set aside its interlocutory order awarding temporary custody of her biological child, E.R., to K.G.S. during the pendency of the underlying adoption proceedings; to remove J. Michael Druhan, who is serving as a temporary probate judge in this case; and to set aside the probate court’s “gag” order concerning the adoption proceedings.

Facts and Procedural History

K.R.’s affidavit testimony indicates that she learned that she was pregnant with E.R. in October 2014. On December 5, 2014, K.R. contacted Donna Ames, an attorney, for advice on potentially placing her unborn child for adoption. Ames established and serves as the director of Adoption Rocks, an Alabama nonprofit organization that helps facilitate adoptions. On December 6, 2014, K.R. met with Ames to discuss the possibility of placing her unborn child for adoption; K.R.’s affidavit testimony indicates that, “[a]t that point,” K.R.

“understood that Ms. Ames was representing me as counsel in an adoption proceeding. Ms. Ames informed me that she had my best interest at heart and that she would take care of all of the legal paperwork. I expressed to Ms. Ames that I had contacted other attorneys as well, and she told me that she was the best one and that I needed her to work with me.”

At this time, K.R. wanted to place her unborn child for adoption.

On December 31, 2014, K.G.S., who was represented by Ames and who wanted to adopt K.R.’s unborn child, filed a motion requesting that the probate court conduct a pre-birth-consent hearing at which the probate court would explain to K.R. the consequences of her consenting to the adoption of her unborn child by K.G.S.

On February 6, 2015, K.R. appeared before Probate Judge Don Davis in order to give her “pre-birth consent to the adoption of’ her unborn child by K.G.S. by signing a form giving that consent; K.G.S. was represented by Ames at this time. A confidential hearing was conducted in order for the probate court to thoroughly explain to K.R. the consequences of her consenting to KG.S.’s adoption of her unborn child; the only attendees were Judge Davis, K.R., and a court reporter. After explaining the contents of the pre-birth-consent form to K.R., including the manner by which K.R. could withdraw her consent even after the child was born, K.R. signed the pre-birth-consent form.

On May 23, 2015, Ames withdrew from representing K.G.S.; David Broome later filed a notice of appearance on behalf of K.G.S.

On May 28, 2015, K.R. gave birth to E.R. K.R. did not withdraw her pre-birth consent to the adoption of E.R. by K.G.S. to which K.R. had agreed on February 6, 2015. E.R. was in K.R.’s custody at this time.

On June 15, 2015, K.G.S. filed her petition to adopt E.R. On the same day, K.G.S. filed in the Mobile Juvenile Court (“the juvenile court”) a petition alleging that E.R. was dependent and requesting that she be given emergency custody of E.R. On June 16, 2015, the juvenile court issued an order granting KG.S.’s petition and ordering the Mobile County sheriff to pick up E.R. and transport E.R. to K.G.S. pending further order of the juvenile court. On June 18, 2015, the Mobile County sheriff picked up E.R. and placed him in KG.S.’s custody.

On June 19, 2015, 22 days after E.R.’s birth, K.R. executed and filed with the probate court a notice stating that she was withdrawing “the adoption and relinquishment previously signed by me.” K.R. also filed a motion contesting K.G.S.’s petition for adoption of E.R. On the same day, the probate court entered an interlocutory order awarding K.G.S. custody of E.R. On July 14, 2015, K.R. filed a motion requesting that the probate court set aside its June 19, 2015, interlocutory order awarding custody of E.R. to K.G.S.

It appears from the probate court docket sheet attached to KR.’s mandamus petition that, on July 10, 2015, K.G.S. filed an “emergency motion to remove social media.” Neither party has provided this Court with a copy of K.G.S.’s motion, but it appears that K.G.S. requested that the probate court enter an order prohibiting public discussion of the adoption case by the parties. The probate court set KG.S.’s motion for a hearing to be held on July 22, 2015.

On July 15, 2015, K.R. filed a motion requesting that Judge Davis recuse himself from the contested adoption proceedings. K.R. alleged that Judge Davis serves on the advisory board of Adoption Rocks and, thus, that “he should recuse [himself] from this matter to avoid the appearance of impropriety and bias.” On July 21, 2015, Judge Davis entered the following order recusing himself:

“In accordance with the Alabama Canons of Judicial Ethics I hereby recuse myself in this cause.
“The Clerk of the [probate] Court shall assign this cause to one of the temporary judges of probate appointed by the Presiding Judge of the Circuit Court of Mobile County, Alabama to serve in instances when I am unable to serve. Further, the Clerk of the [probate] Court shall forward this Recusal to all legal counsel of record.”

Thereafter, the clerk of the probate court assigned this case to J. Michael Druhan, a Mobile attorney. The presiding judge of the Mobile Circuit Court did not appoint Druhan to serve as a temporary probate judge in this case; the only action taken to that effect was by the clerk of the probate court.

On July 22, 2015, K.R. filed a motion requesting that Druhan recuse himself from serving as the temporary probate judge in this case. K.R. argued that Dru-han had not been properly appointed as a temporary probate judge and that the matter of appointing a temporary probate judge should be referred either to the presiding judge of the Mobile Circuit Court for reassignment pursuant to § 12-1-14.1, Ala.Code 1975, or to the Chief Justice of the Alabama Supreme Court for reassignment pursuant to § 12-2-30, Ala. Code 1975.

Also on July 22, 2015, after conducting a hearing, Druhan entered the following order:

“This cause is before the Court on July 22, 2015, on [KR.’s] Emergency Motion to Alter, Amend, and/or Vacate Interlocutory Decree, [KG.S.’s] Emergency Motion to Remove Social Media, and [KG.S.’s] Motion to Show Cause; and on due consideration of the arguments of counsel, testimony and evidence presented, the Court finds that the following relief is due, and ORDERS as follows:
“1. [KR.’s] Motion for Judicial Recu-sal is DENIED.
“2. [KR.’s] Emergency Motion to Alter, Amend, and/or Vacate Interlocutory Decree is DENIED.
“3. [KG.S.’s] Motion to Show Cause is DENIED,[]
“4. [KG.S.’s] Emergency Motion to Remove Social Media [is] GRANTED IN PART, in that the parties and counsel for the parties be and are hereby enjoined from discussing or referencing this adoption case with the public, social media, news media, or the like, pending further proceedings.”

(Capitalization in original.)

On July 23, 2015, KG.S. filed an “emergency motion for contempt including sanctions and dismissal of contest.” KG.S. alleged that “a close friend” of KR.’s had posted, in violation of the probate court’s July 22, 2015, order, a “scandalous article on her [F]aeebook [social-media] page.” Based on this allegation, K.G.S. requested that the probate court dismiss KR.’s contest of the adoption, hold K.R. in contempt, impose monetary sanctions, and have KR. incarcerated. On July 31, 2015, KR. filed a motion requesting that the probate court alter, amend, or vacate the portion of the probate court’s July 22, 2015, order requiring the parties not to publicly discuss the adoption proceedings. Also on July 31, 2015, KR. filed a “supplemental motion for judicial recusal” requesting that Druhan recuse himself from serving as the temporary probate judge in this case. On August 3, 2015, Druhan denied KR.’s supplemental motion for judicial recusal. On August 10, 2015, KG.S. filed a motion “for contempt and other relief.” KG.S. alleged that KR. had continually violated the probate court’s July 22, 2015, order by posting to a Facebook social-media page about matters pertaining to the adoption proceedings. Also on August 10, 2015, Dru-han conducted a hearing on KR.’s motion to alter, amend, or vacate; after receiving arguments from both parties, Druhan denied KR.’s motion.

On August 13, 2015, KG.S. filed a motion for a temporary restraining order prohibiting KR. from continuing to violate the portion of Druhan’s July 22, 2015, order requiring the parties to cease publicly discussing matters pertaining to the adoption proceedings.

On August 20, 2015, K.R. filed with the Court of Civil Appeals a petition for a writ of mandamus and an emergency motion to stay the adoption proceedings in the probate court. On August 24, 2015, the Court of Civil Appeals issued an order, in which all the judges concurred, stating, in pertinent part:

“IT IS ORDERED that the petition be, and the same is hereby, dismissed as untimely filed as to all orders except the August 10, 2015, order. The petition is hereby denied as to the August 10, 2015, order. Petitioner’s Emergency Motion To Stay and Petitioner’s Supplement To Emergency Motion To Stay are denied as moot.”

On August 27, 2015, K.R. filed a petition for a writ of mandamus with this Court and a request that this Court stay the adoption proceedings in the probate court during the pendency of her mandamus petition. On September 2, 2015, K.G.S. filed a motion in opposition to KR.’s request for a stay of the adoption proceedings. Among other things, KG.S. argued that KR.’s mandamus petition was untimely filed and, thus, was due to be dismissed.

On November 2, 2015, this Court ordered the respondents, Druhan and KG.S., to file answers to KR.’s petition. This Court also stayed the adoption proceedings in the probate court during the pendency of KR.’s mandamus petition.

On November 6, 2015, KG.S. filed a response to KR.’s mandamus petition and a motion to dismiss the mandamus petition. KG.S. alleges that, on October 22, 2015, the probate court conducted a bench trial on her petition to adopt E.R. and that the probate court granted her adoption petition. KG.S. attaches to her motion to dismiss a proposed order granting KG.S.’s adoption petition; that order is not signed by Druhan, and there is no indication that that order was actually entered. On November 10, 2015, Druhan also filed a motion to dismiss KR.’s mandamus petition. Druhan states that he denied KR.’s motion contesting KG.S.’s adoption petition on October 28, 2015. As a result, Druhan argues, KR.’s petition before this Court is moot. Druhan states that, “save for this Court’s stay,” he would have entered the proposed order submitted by KG.S.

Standard of Review
“A petition for the writ of mandamus is the usual method by which to seek review of a trial judge’s denial of a recusal motion. See Ex parte Crawford, 686 So.2d 196, 198 (Ala.1996) (holding that a trial judge’s denial of a recu-sal motion can be challenged on appeal or in a petition for a writ of mandamus). ‘A writ of mandamus is an extraordinary remedy, and it will be “issued only when there is: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.”’ Ex parte P&H Constr. Co., 723 So.2d 45, 47 (Ala.1998) (quoting Ex parte United Service Stations, Inc., 628 So.2d 501, 503 (Ala. 1993)). ‘The burden of proof is on the party seeking recusal.’ Ex parte Cotton, 638 So.2d 870, 872 (Ala.1994), abrogated on other grounds by Crawford, 686 So.2d at 198.”

Ex parte Dooley, 741 So.2d 404, 405 (Ala. 1999).

Discussion

In her mandamus petition, KR. challenges three orders entered by Judge Davis and Druhan, respectively: 1) Judge Davis’s June 19, 2015, interlocutory order awarding custody of E.R. to KG.S.; 2) Druhan’s August 3, 2015, order denying KR.’s supplemental motion requesting that Druhan recuse himself; and 3) Dru-han’s August 10, 2015, order denying KR.’s motion to alter, amend, or vacate the portion of Druhan’s July 22, 2015, order prohibiting the parties from publicly discussing matters related to the adoption proceedings.

First, concerning K.R.’s challenge of the probate court’s June 19, 2015, interlocutory order awarding custody of E.R. to K.G.S., K.G.S. argues that K.R.’s mandamus petition is untimely. As set forth above, KR. did not file her mandamus petition with the Court of Civil Appeals until August 20, 2015. According to Rule 21(a)(3), Ala. R.App. P.,

“[t]he presumptively reasonable time for filing a petition seeking review of an order of a trial court ... shall be the same as the time for taking an appeal. If a petition is filed outside this presumptively reasonable time, it shall include a statement of circumstances constituting good cause for the appellate court to consider the petition, notwithstanding that it was filed beyond the presumptively reasonable time.”

A judgment of adoption must be appealed within 14 days. Ala.Code 1975, § 26-10A-26(a). Thus, 14 days would be the presumptively reasonable time in matters relating to adoptions.

The above-quoted portion of Rule 21(a)(3) and § 26-10A-26(a) make clear that the presumptively reasonable time for filing a mandamus petition challenging an order in an adoption proceeding is 14 days. Concerning KR.’s challenge of the probate court’s June 19, 2015, order giving custody of E.R. to KG.S., KR. filed her mandamus petition with the Court of Civil Appeals 62 days after the entry of the probate court’s order—well beyond the presumptively reasonable time within which to file a mandamus petition in an adoption proceeding. Thus, her petition filed in this Court, insofar as it challenges the same order and although it was filed within the time allowed in Rule 21(e)(2), Ala. R.App. P., likewise is untimely. Further, KR. has not provided this Court with a statement of good cause for not timely filing the petition; such a statement is mandatory. Ex parte C.J.A., 12 So.3d 1214, 1216 (Ala.Civ.App.2009)(“The failure either to file a petition within the presumptively reasonable time or to provide a statement of good cause for not timely filing the petition mandates denial of the requested relief.”). Accordingly, under Rule 21(a)(3), KR.’s failure to file her petition within the presumptively reasonable time mandates denial of the requested relief, and we will not consider the merits of KR.’s challenge to Judge Davis’s June 19, .2015, interlocutory order awarding custody of E.R. to KG.S.

Next, KR. alleges that Druhan was not appointed to serve as a temporary probate judge pursuant to the applicable rules governing such appointments and requests this Court to order Druhan removed as the temporary probate judge presiding over the adoption proceedings. Consequently, KR. requests that all orders entered by Druhan be set aside. We agree with KR. that Druhan was not appointed pursuant to the applicable rules governing such appointments and that his orders are therefore void.

Initially, we note that KG.S. argues that KR.’s challenge of Druhan as the temporary probate judge is untimely. K.G.S. is correct; K.R. did not file her original mandamus petition with the Court of Civil Appeals until 17 days after Dru-han’s August 3, 2015, order denying K.R.’s supplemental motion requesting that Dru-han recuse himself. This is beyond the presumptively reasonable 14-day time in which to file a mandamus petition in an adoption proceeding. See Rule 21(a)(3) and § 26-10A~26(a).

Regardless, we may consider K.R.’s argument because it concerns the probate court’s jurisdiction. See Bush v. State, 171 So.3d 679 (Ala.Crim.App.2014) (holding that the improper appointment of a judge to a case deprived the court of jurisdiction to rule on any motions pending before that judge; the orders entered by that judge were entered without jurisdiction of the court and were, thus, void). The timeliness of K.R.’s challenge to Druhan’s appointment to serve as a temporary judge of probate is insignificant because “we take notice of the lack of jurisdiction ex mero motu. See Ruzic v. State ex rel. Thornton, 866 So.2d 564, 568-69 (Ala.Civ.App.2003) (discussing the general rule that this court notices lack of jurisdiction ex mero motu and citing to several cases noting that rule).” Lawrence v. Alabama State Pers. Bd., 910 So.2d 126, 128 (Ala.Civ.App.2004). Therefore, even though K.R.’s petition is untimely filed, we will consider her argument concerning this issue because it concerns the jurisdiction of the probate court, of which we may take notice ex mero motu.

As set forth above, in his order recusing himself, Judge Davis ordered that “[t]he Clerk of the [probate] Court shall assign this cause to one of the temporary judges of probate appointed by the Presiding Judge of the Circuit Court of Mobile County, Alabama, to serve in instances when I am unable to serve.” Also as set forth above, it is undisputed that the clerk of the probate court then purported to appoint Druhan as a temporary probate judge to preside over this case. The clerk of the probate court had no authority, however, to appoint Druhan as a temporary probate judge.

The appointment of a temporary probate judge in instances when the regularly elected probate judge cannot serve is governed by § 12-1-14,1 and § 12-13-37, Ala. Code 1975. Section 12-l-14.1(a) states, in pertinent part: “At the request of the affected judge in a particular circuit, the presiding circuit court judge of the circuit may appoint and commission a ... special judge of probate for temporary service.” Section 12-1-14.1 allows the presiding circuit court judge to appoint a temporary probate judge when requested to do so by the probate judge who is unable to sit on the case. In the present case, pursuant to § 12-1-14.1, the presiding circuit court judge of the Mobile Circuit Court had the authority to appoint a temporary probate judge once Judge Davis recused himself, upon being asked to do so by Judge Davis.

Section 12-13-37 states, in pertinent part:

“If in any matter or proceeding arising in the probate court or in reference to which the judge thereof is required to exercise jurisdiction or authority or to perform a duty the judge is incompetent for any legal cause or shall be absent, sick or otherwise disqualified from acting, he or his chief clerk must certify the fact of incompetency, absence, sickness or disqualification to the Chief Justice of the Alabama Supreme Court, and the Supreme Court shall, upon such certificate, appoint a person possessing the qualifications of a probate judge to act as special probate judge.”

Section 12-13-37 allows the Supreme Court to appoint a temporary probate judge once the fact of the regularly elected probate judge’s inability to sit on the case has been certified to the Chief Justice of the Alabama Supreme Court. In the present case, under § 12-13-37, the Supreme Court also had the authority to appoint a temporary probate judge once Judge Davis recused himself.

Concerning the appointment of temporary probate judges in Mobile County, the Legislature passed a local act, Act No. 2007-454, Ala. Acts 2007. Act No. 2007-454 states, in pertinent part:

“Section 1. (a) If the regularly elected Judge of Probate of Mobile County is incompetent from any legal cause, incapacitated, absent or will be absent from sickness, or otherwise disqualified from acting as Judge, the Judge of Probate or the Chief Clerk shall certify the fact of incompetency, incapacity, absence, sickness, or disqualification to the presiding Judge of the Circuit Court of the County and the presiding Judge of the Circuit Court shall, upon that certificate, appoint a person learned in the law, practicing and residing in the County, to act as temporary Judge of Probate.”

Like § 12-1-14.1, § 1(a) of Act No. 2007-454 gives the presiding judge of the Mobile Circuit Court the power to appoint a temporary probate judge in the event that “the regularly elected Judge of Probate of Mobile County,” which is Judge Davis, re-cuses himself. Following a recusal by Judge Davis, either Judge Davis or his clerk must certify the fact of Judge Davis’s recusal to the presiding judge of the Mobile Circuit Court, who would then appoint a temporary probate judge to replace the recused Judge Davis.

In the present case, it is undisputed that neither the Chief Justice of this Court nor the presiding judge of the Mobile Circuit Court was notified of Judge Davis’s recu-sal. Instead of certifying the fact of Judge Daws’s recusal to the Chief Justice of the Alabama Supreme Court or to the presiding judge of the Mobile Circuit Court and then allowing either the Supreme Court or the presiding judge of the Mobile Circuit Court to appoint a temporary probate judge, the clerk of the probate court purported to appoint Druhan as a temporary probate judge to replace Judge Davis. We have not been able to locate any law giving the clerk of the probate court the authority to appoint a temporary probate judge. As a result, Druhan was never properly appointed as a temporary probate judge. Accordingly, Druhan had no authority to enter the orders he entered, and any order entered by Druhan is void. See Ex parte Punturo, 928 So.2d 1030, 1034 (Ala.2002) (“A judgment issued by a trial court without jurisdiction is a nullity. Ex parte Hornsby, 663 So.2d 966 (Ala.1995), and Moore v. Ashe, 269 Ala. 359, 113 So.2d 678 (1959).”).

We need not consider KR.’s last remaining argument concerning the portion of Druhan’s August 10, 2015, order denying K.R.’s motion to alter, amend, or vacate the portion of the probate court’s July 22, 2015, order prohibiting the parties from publicly discussing matters related to the adoption proceedings because that order, entered by Druhan, is void in its entirety.

Conclusion

Based on the foregoing, we deny KR.’s petition insofar as it challenges Judge Davis’s June 19, 2015, interlocutory order awarding custody of E.R. to K.G.S. However, we grant K.R.’s petition insofar as she challenges Druhan’s appointment as a temporary probate judge, and we order Judge Davis to certify the fact of his inability to serve in this case to either the Chief Justice of this Court or to the presiding judge of the Mobile Circuit Court, at which time the proper appointing authority will appoint a temporary probate judge to serve in this case.

PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

MOORE, C.J., and STUART, MURDOCK, MAIN, WISE, and BRYAN, JJ., concur.

SHAW, J., concurs in the result.

BOLIN, J., recuses himself.

On Application for Rehearing

PARKER, Justice.

Rule 40(b), Ala. R.App. P., provides: “The application for rehearing must state with particularity the points of law or the facts the applicant believes the court overlooked or misapprehended. The brief in support of the application must contain any arguments in support of the application the petitioner desires to present.”

In her application for rehearing, K.G.S. does not argue that this Court overlooked or misapprehended any point of law or fact in holding that J. Michael Druhan, a Mobile attorney, had been improperly appointed to hear the case after the recusal of Judge Don Davis. Instead, K.G.S. “moves this Honorable Court to consider the Affidavit of Probate Judge Don Davis and its attached Order of the Presiding Judge of the Circuit Court of Mobile County, Alabama date April 28, 2010.” K.G.S. attaches an order entered by the presiding judge of the Mobile Circuit Court on April 28, 2010. The order pertained to “Case Number 64,606 N.S.”; K.G.S.’s adoption petition was assigned case no. 2014-2396. The order states, in pertinent part:

“Don Davis, Judge of Probate of Mobile County, Alabama, having heretofore certified that he is unable to serve as Judge of Probate in those certain cases heretofore noted, as attached to the Court’s prior order dated June 7, 2001, as amended on July 12, 2001; and
“Further, should Don Davis, Judge of Probate of Mobile County, Alabama, become incompetent from any cause, incapacitated, absent, or will be absent from sickness, or otherwise disqualified from acting as judge in any of the cases heretofore noted or in any case hereafter.
“It is ORDERED AS FOLLOWS:
“1. Pursuant to Ala. Act 333, 1965 Reg. Session, § 1, as last amended by Ala. Act 2007-454, DOUGLAS L. ANDERSON, C. MARK ERWIN, JEROME C. CARTER, J. RANDALL CRANE, J. MICHAEL DRUHAN, J. MARSHALL GARDNER, DUANE A. GRAHAM, DENISE LITTLETON, Y.D. LOTT, JR., BETH MARIETTA LYONS, JEAN POWERS and EDWARD B. McDERMOTT, disinterested persons, learned in the law and residing in Mobile County, are APPOINTED as Temporary Judges of Probate in the Probate Court of Mobile County to discharge the duties of the Judge of Probate, to render all orders and decrees and perform all duties required by law in the matters: (a) referenced in Schedules 1, 2 and 3 heretofore filed, as pertaining, and (b) that arise hereafter wherein Don Davis is unable to serve as referenced above.”

(Capitalization in original.) “Schedules 1, 2 and 3” referenced in the above order are not included in the attachments to KG.S.’s application for rehearing.

Judge Davis’s affidavit, which is also attached to HG.S.’s application for rehearing, offers the following explanation:

“3. Subsequent to [April 28, 2010], in cases in which I recused myself, it was standard practice for the Clerk of the Probate to select from those temporary judge[s] that had been appointed by Charles A. Graddick, Presiding Judge of the Circuit Court of Mobile County, and assign that case to the temporary judge. As the order states, said temporary judges were appointed by the Presiding Judge for cases that arose after the entry of the April 28, 2010 Order. The clerk did not appoint those persons to be temporary judges. These temporary judges were appointed by Order of Presiding Judge Graddick.
“4. As a part of my order recusing myself, I directed the Probate Court Clerk to assign this case to one of the pre-appointed temporary judges. This was in compliance with the order of the Presiding Judge of the Circuit Court of Mobile County, and in conformity with standard practice. The case was assigned to J. Michael Druhan, Temporary Judge of Probate.”

Initially, we note that KG.S. had an “obligation to attach to her petition ‘[c]op-ies of any order or opinion or parts of the record that would be essential to an understanding of the matter set forth in the petition.’ Rule 21(a)(1)(E), Ala. R.App. P.” Ex parte Trawick, 959 So.2d 51, 62-63 (Ala.2006). In Ex parte Trawick, an applicant for rehearing sought to attach to her application for rehearing a copy of a summary-judgment motion she had failed to attach to her petition for a writ of mandamus. On rehearing, the applicant sought to “ ‘supplement the record’ so as to supply a copy of the omitted summary-judgment motion.” 959 So.2d at 62. This Court refused the applicant’s request: “[W]e deny the motion to supplement the record to allow the belated submission of a part of the record available to [the applicant] on original submission, but which she chose to omit from the materials filed with her petition.” 959 So.2d at 63.

Like the appellant in Ex parte Trawick, KG.S. had available to her on original submission the circuit court’s April 28, 2010, order. For whatever reason, KG.S. chose to omit the circuit court’s order from the materials filed with her response to KR.’s petition. KG.S. may not now, for the first time in her application for rehearing, present additional documentation in support of her argument. For this reason alone we may deny KG.S.’s application for rehearing.

Regardless, even if we were to consider the new attachments filed by KG.S., KG.S. has not demonstrated that this Court overlooked or misapprehended any point of law or fact. Act No. 2007-454, Ala. Acts 2007, states, in pertinent part:

“Section 1. (a) If the regularly elected Judge of Probate of Mobile County is incompetent from any legal cause, inca- . pacitated, absent or will be absent from sickness, or otherwise disqualified from acting as Judge, the Judge of Probate or the Chief Clerk shall certify the fact of incompetency, incapacity, absence, sickness, or disqualification to the presiding Judge of the Circuit Court of the County and the presiding Judge of the Circuit Court shall, upon that certificate, appoint a person learned in the law, practicing and residing in the County, to act as temporary Judge of Probate....”

Section 1(a) of Act No. 2007-454 requires that, if the probate judge is disqualified from acting as a judge of the probate court, the judge, or the clerk of the probate court, must certify that fact to the presiding judge of the circuit court. Section 1(a) states that, “upon that certificate,” the presiding judge of the circuit court may then appoint a temporary probate judge to serve in the stead of the disqualified probate judge of Mobile County.

Before the presiding judge of the circuit court has the authority to appoint a temporary probate judge, the probate judge, or the clerk of the probate court, must certify the fact of the sitting probate judge’s inability to serve. In its April 28,2010, order, the circuit court stated: “Don Davis, Judge of Probate of Mobile County, Alabama, having heretofore certified that he is unable to serve as Judge of Probate in those certain cases heretofore noted, as attached to the Court’s prior order dated June 7, 2001, as amended on July 12, 2001.” Judge Davis had properly certified his inability to serve in the specific cases mentioned. At that point, § 1(a) of Act No. 2007-454 gave the presiding judge of the circuit court authority to appoint a temporary probate judge to serve in Judge Davis’s stead in the specific cases mentioned.

However, K.G.S. has not presented any evidence indicating that Judge Davis ever certified to the presiding judge of the circuit court his inability to serve in the present case. Obviously, no language in the circuit court’s April 28, 2010, order indicates that Judge Davis certified that he was disqualified from serving in KG.S.’s subsequently filed case. Instead, the April 28, 2010, order simply states: “should Don Davis, Judge of Probate of Mobile County, Alabama, become incompetent from any cause, incapacitated, absent, or will be absent from sickness, or otherwise disqualified from acting as judge in any of the cases heretofore noted or in any case hereafter.” This language cannot abdicate the requirement in § 1(a) of Act No. 2007-454 that, before the presiding judge of the circuit court obtains the authority to appoint a temporary probate judge to serve in place of the disqualified probate judge, the probate judge or the clerk of the probate court must certify the fact of the probate judge’s inability to serve to the presiding judge of the circuit court. No such certification occurred in this case. Therefore, even if we were to consider the new documents presented by K.G.S., she has not demonstrated that this Court overlooked or misapprehended any point of law or fact.

Moreover, even if we were to conclude that the April 28, 2010, order gave the clerk of the probate court the authority to assign this case to any one of the 12 “pre-appointed temporary judges,” our caselaw indicates that such practice is not approved. We considered an analogous situation in Ex parte Knight, 92 So.3d 717 (Ala.2011). In Ex parte Knight, a petitioner, Knight, filed a motion for sentence reconsideration under Ala.Code 1975, § 13A-5-9.1, and Kirby v. State, 899 So.2d 968 (Ala.2004). Section 13A-5-9.1, Ala. Code 1975, provided:

“The provisions of Section 13A-5-9 shall be applied retroactively by the sentencing judge or, if the sentencing judge is no longer in office, by any circuit judge appointed by the presiding judge, for consideration of early parole of each nonviolent convicted offender based on evaluations performed by the Department of Corrections and approved by the Board of Pardons and Paroles and submitted to the Court.”

(Emphasis added.) At the time Knight filed his motion for sentence reconsideration, the judge who sentenced Knight was no longer on the bench. As a result, Knight’s motion was assigned by the clerk of the Montgomery Circuit Court to Judge Truman M. Hobbs, Jr.,

“pursuant to a standing administrative order entered on July 25, 2007, by the presiding judge of the Montgomery Circuit Court. This order provided:
“ ‘Effective immediately, it is hereby ORDERED that all motions filed pursuant to Code of Alabama, § 13A-5-9.1, and Kirby v. State, 899 So.2d 968 (Ala.2004), shall be assigned to the sentencing judge. If the sentencing judge is no longer in office, said motions shall be assigned to the Circuit Judge holding the sentencing judge’s seat or to a Circuit Judge. This Order is issued pursuant to the recent amendment [to the] Code of Alabama § 13A-5-9.1.... ’
“(Emphasis added.) The record does not reveal whether Judge Hobbs holds the same seat as the seat previously held by [the petitioner’s] sentencing judge.”

Ex parte Knight, 92 So.3d at 718. Judge Hobbs subsequently denied Knight’s motion, and Knight appealed to the Court of Criminal Appeals. Among other things, Knight argued:

“(1) that Judge Hobbs was not the ‘sentencing judge,’ and (2) that the administrative order of July 25, 2007, did not appoint Judge Hobbs to decide his motion, as would be required by § 13A-5-9.1. Specifically, Knight contends that the statute requires that the appointment be made by the presiding judge, but that the order allows the circuit clerk to exercise discretion in assigning motions for sentence reconsideration to any circuit judge.”

92 So.3d at 718. The Court of Criminal Appeals affirmed, by unpublished memorandum, the order denying Knight’s motion for sentence reconsideration. “This Court granted certiorari review to consider the validity of an administrative order of the Montgomery Circuit Court pursuant to which a circuit judge was appointed to decide James Sheridan Knight’s motion for sentence reconsideration filed under Ala. Code 1975, § 13A-5-9.1, and Kirby v. State, 899 So.2d 968 (Ala.2004).” 92 So.3d at 717.

This Court reversed the Court of Criminal Appeals’ decision affirming the Montgomery Circuit Court’s order denying Knight’s motion for sentence reconsideration on the basis that Judge Hobbs had not been properly appointed to decide the case. This Court stated:

“Knight contends that the July 25, 2007, administrative order of the Montgomery Circuit Court does not constitute a valid judicial appointment under § 13A-5-9.1 because the inclusion of the phrase ‘or to a Circuit Judge’ in the order allows the circuit clerk to exercise discretion in assigning motions for sentence reconsideration to various judges. That is, Knight contends that the selection of Judge Hobbs as the circuit judge to hear his motion was not the act of the presiding judge as required by the statute and, consequently, that Judge Hobbs did not have authority to decide Knight’s motion. We agree.
“In Owens v. State, 39 So.3d 1183 (Ala.Crim.App.2009), the Court of Criminal Appeals held that a standing order by the presiding circuit judge was sufficient to constitute a valid appointment of a circuit judge under § 13A-5-9.1 to hear a motion for sentence reconsideration. The order at issue in Owens provided:
“ ‘ “By the authority vested in me as Presiding Circuit Judge under the provisions of Rule 13 of the Alabama Rules of Judicial Administration and pursuant to Section 13A-5-9.1, Code of Alabama 1975, as amended, ... I hereby order that the Circuit Clerk shall assign all motions for post judgment relief pursuant to Rule 32, [Ala.] R.Crim. P., or pursuant to Section 13A-5-9.1, Code of Alabama, to the docket of the sentencing Judge or, if the sentencing Judge is no longer serving, to the docket of the Judge presiding over the cases of such Judge who is no longer serving. These Circuit Judges are hereby appointed to hear said motions for consideration of resentencing pursuant to Section 13A-5-9 and -9.1 of the Code of Alabama 1975 as amended. A copy of this Order shall be placed in the court file of all cases so affected by this Order.” ’
“Owens, 39 So.3d at 1184-85 (emphasis added). The court in Owens concluded, without much analysis, that ‘the circuit judge [designated by the administrative order] had the authority to rule on the motion even though he was not the sentencing judge or the presiding judge.’ 39 So.3d at 1185.
“The standing order in Owens differs from the administrative order in the present case because, by reference to the seat of the no longer serving judge, the order in Owens selected the specific judge to whom any given motion for sentence reconsideration would be assigned, rather than leaving that selection to the circuit clerk. The appointment of a judge under the standing order at issue in Owens could fairly be said to be the act of the presiding judge, and not the act of the circuit clerk.
“In contrast, the administrative order in the present case does not select the judge for any given case. The order in the present case provides that motions for sentence reconsideration ‘shall be assigned to the Circuit Judge holding the sentencing judge’s seat or to a Circuit Judge.’ The inclusion of the phrase ‘or to a Circuit Judge’ leaves to the circuit clerk the task of selecting a circuit judge to hear a motion for sentence reconsideration.”

92 So.3d at 720-21 (footnote omitted).

In the present case, assuming that the April 28, 2010, order gave the clerk of the probate court the authority to assign the present case to any 1 of the 12 “pre-appointed temporary judges,” Ex parte Knight indicates that such a practice is improper when the authorizing statute gives the power to appoint solely to the presiding judge of a circuit court. Section 13A-5-9.1 and § 1(a) of Act No. 2007-454 similarly require that the presiding judge of the circuit court appoint a judge when necessary. Assuming in the present case that the presiding judge of the circuit court “pre-appointed” 12 temporary probate judges to serve in the event Judge Davis was disqualified, K.G.S. argues that the clerk of the probate court was then to assign the case to 1 of those 12 “pre-appointed” temporary probate judges. However, this leaves to the clerk of the probate court the task of selecting a temporary probate judge to hear the case from which Judge Davis has recused himself. This is in contradiction to the principles set forth in Ex parte Knight. Therefore, K.G.S. has not demonstrated that this Court overlooked any point of law or fact in making its decision, and her application for rehearing is overruled.

APPLICATION OVERRULED.

STUART, MAIN, WISE, and BRYAN, JJ., concur.

MURDOCK and SHAW, JJ., concur in the result.

BOLIN, J., recuses himself.

MURDOCK, Justice

(concurring in the result).

I find it unnecessary to address whether this Court may consider the documents submitted by KG.S. with her application for rehearing.

      . Neither party explains or attaches to her filings with this Court K.G.S.’s "motion to show cause.”

        . Rule 21(e)(2), Ala. R.App. P., states that “review in the supreme court of a grant or denial [of a writ by the Court of Civil Appeals] must be commenced by filing the petition in the supreme court within fourteen (14) days of the grant or denial of the writ by die court of appeals.” K.R. timely sought review of the Court of Civil Appeals’ denial of her original petition by filing her petition with this Court just three days after the Court of Civil Appeals denied her mandamus petition.

      . Section 13A-5-9.1, Ala.Code 1975, was repealed by Act No. 2014-165, Ala. Acts 2014, effective March 13, 2014.