author: AVISE, Judge.

text:
    Timothy JONES v. STATE of Alabama.
    CR-06-1596.
    Court of Criminal Appeals of Alabama.
    Oct. 31, 2008.

      Kimberly Paige Kervin, Prattville, for appellant.
    Troy King, atty. gen., and Stephanie E. Reiland, asst. atty. gen., for appellee.
   AVISE, Judge.

The appellant, Timothy Jones, was convicted of one count of conspiracy to commit robbery in the first degree, a violation of § 13A-4-3 and § 13A-8-41, Ala.Code 1975. He was sentenced as an habitual offender to life imprisonment without the possibility of parole.

The evidence established the following. On November 23, 2005, at approximately 9:00 a.m., an Elmore County resident telephoned emergency 911 to report that she had observed three black males “passing a gun” around inside a vehicle, which she described. Law-enforcement officers on patrol were immediately advised of the suspicious situation.

Within minutes, Millbrook police officers conducted a traffic stop of a vehicle that matched the description provided by the 911 caller. Three black males were in the vehicle: Peter McWilliams was the driver, Gary Scott was in the front passenger seat, and Jones was in the rear passenger seat. One of the officers who performed the traffic stop testified that as he approached the vehicle, he observed Jones making furtive movements in the rear of the vehicle, as if he was trying to hide something. The officers asked for consent to search the vehicle, and the occupants consented.

During their search, the officers discovered a small door behind the armrest in the backseat from which a backseat passenger could gain access to the trunk. Upon opening the small door, officers found a rubber boot. The boot contained two loaded pistols. A subsequent check of the serial numbers on the guns revealed that one of the guns had been reported stolen. In addition, the officers found two ski masks in the trunk of the vehicle.

All three men were arrested and transported to the Millbrook Police Department, where they were individually interviewed. All three admitted that they had driven from Montgomery to Millbrook. Scott and McWilliams admitted that they knew that the guns were in the trunk because they had gone to get the guns before driving to Millbrook. Jones denied having any knowledge of the existence of the guns.

McWilliams told police that he, Jones, and Scott had planned to commit a robbery. McWilliams said they had no particular destination in mind but were planning to spontaneously select a place or person for a robbery.

Scott pleaded guilty in Elmore Circuit Court to conspiring with McWilliams and Jones to commit robbery, and he was sentenced accordingly.

The record reveals that the following occurred earlier that day in Montgomery: two black males robbed an individual and threatened to shoot a witness. They fled in a vehicle driven by a third black male. An eyewitness gave a description of the vehicle, which matched the vehicle driven by McWilliams when he was stopped by the Millbrook police. Jones matched a witness’s physical description of one of the robbery suspects. The robbery victim and another witness identified Gary Scott as one of the robbers. Scott was later arrested and charged with the Montgomery robbery.

I.

Jones argues that the trial court erred when it denied his motion for a judgment of acquittal. Specifically, he claims that the State failed to present sufficient evidence that he had conspired to commit first-degree robbery.

“In deciding whether there is sufficient evidence to support the verdict of the jury and the judgment of the trial court, the evidence must be reviewed in the light most favorable to the prosecution. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). Conflicting evidence presents a jury question not subject to review on appeal, provided the state’s evidence establishes a prima facie case. Gunn v. State, 387 So.2d 280 (Ala.Cr.App.), cert. denied, 387 So.2d 283 (Ala.1980). The trial court’s denial of a motion for a judgment of acquittal must be reviewed by determining whether there existed legal evidence before the jury, at the time the motion was made, from which the jury by fair inference could have found the appellant guilty. Thomas v. State, 363 So.2d 1020 (Ala.Cr.App.1978). In applying this standard, the appellate court will determine only if legal evidence was presented from which the jury could have found the defendant guilty beyond a reasonable doubt. Willis v. State, 447 So.2d 199 (Ala.Cr.App.1983); Thomas v. State. When the evidence raises questions of fact for the jury and such evidence, if believed, is sufficient to sustain a conviction, the denial of a motion for a judgment of acquittal by the trial court does not constitute error. Young v. State, 283 Ala. 676, 220 So.2d 843 (1969); Willis v. State. A verdict of conviction will not be set aside on the ground of insufficiency of the evidence unless, allowing all reasonable presumptions for its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince this court that it was wrong and unjust.”

Breckenridge v. State, 628 So.2d 1012, 1018 (Ala.Crim.App.1993).

“ ‘In determining the sufficiency of the evidence to sustain the conviction, this Court must accept as true the evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider the evidence in the light most favorable to the prosecution.’ Faircloth v. State, 471 So.2d 485, 489 (Ala.Cr.App.1984), affirmed, Ex parte Faircloth, [471] So.2d 493 (Ala.1985).
““‘The role of appellate courts is not to say what the facts are. Our role, ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision to the jury.” Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978). An appellate court may interfere with the jury’s verdict only where it reaches “a clear conclusion that the finding and judgment are wrong.” Kelly v. State, 273 Ala. 240, 244, 139 So.2d 326 (1962). “The rule is clearly established in this State that a verdict of conviction should not be set aside on the ground of the insufficiency of the evidence to sustain the verdict, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it was wrong and unjust.” Bridges v. State, 284 Ala. 412, 420, 225 So.2d 821 (1969).... A verdict on conflicting evidence is conclusive on appeal. Roberson v. State, 162 Ala. 30, 50 So. 345 (1909). “[W]here there is ample evidence offered by the state to support a verdict, it should not be overturned even though the evidence offered by the defendant is in sharp conflict therewith and presents a substantial defense.” Fuller v. State, 269 Ala. 312, 333, 113 So.2d 153 (1959), cert. denied, Fuller v. Alabama, 361 U.S. 936, 80 S.Ct. 380, 4 L.Ed.2d 358 (1960).' Granger [v. State], 473 So.2d [1137,] 1139 [(Ala.Crim.App.1985) ].
“... ‘Circumstantial evidence alone is enough to support a guilty verdict of the most heinous crime, provided the jury believes beyond a reasonable doubt that the accused is guilty.’ White v. State, 294 Ala. 265, 272, 314 So.2d 857, cert. denied, 423 U.S. 951, 96 S.Ct. 373, 46 L.Ed.2d 288 (1975). ‘Circumstantial evidence is in nowise considered inferior evidence and is entitled to the same weight as direct evidence provided it points to the guilt of the accused.’ Cochran v. State, 500 So.2d 1161, 1177 (Ala.Cr.App.1984), affirmed in pertinent part, reversed in part on other grounds, Ex parte Cochran, 500 So.2d 1179 (Ala.1985).”

White v. State, 546 So.2d 1014, 1017 (Ala.Crim.App.1989).

Section 13A-8-41, Ala.Code 1975, states:

“(a) “A person commits the crime of robbery in the first degree if he violates Section 13A-8-43 and he:
“(1) is armed with a deadly weapon or dangerous instrument; or
“(2) causes serious physical injury to another.”
Section 13A-8-43 states:
“(a) A person commits the crime of robbery in the third degree if in the course of committing a theft he:
“(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance; or
“(2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property.”

A person commits criminal conspiracy when “with the intent that conduct constituting an offense be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one or more of such persons does an overt act to effect an objective of the agreement.” § 13A-4-3, Ala.Code 1975.

“In order that the fact of a conspiracy may be established, it need not be proved by evidence of an express agreement or compact between the alleged conspirators, or by any direct evidence of any agreement or compact. It may be proved inferentially, or by circumstantial evidence. Conspiracies from their very nature are usually entered into in secret, and are consequently difficult to be reached by positive testimony, which renders it peculiarly necessary and proper to permit them to be inferred from the circumstances.”

Conley v. State, 354 So.2d 1172, 1177 (Ala.Crim.App.1977), quoted in C. Gamble, McElroy’s Alabama Evidence, § 195.03(2), at 947 (5th ed.1996).

“It is well settled that a conspiracy need not be proved by direct and positive evidence and may be proved by circumstantial evidence. Lewis [v. State, 414 So.2d 135 (Ala.Crim.App.1982) ]; Stinson v. State, 401 So.2d 257 (Ala.Crim.App.), cert. denied, 401 So.2d 262 (Ala.1981). In determining whether the State presented a prima facie case, this court will consider the evidence in the light most favorable to the State. Hutcherson v. State, 441 So.2d 1048 (Ala.Crim.App.1983); Smelcher v. State, 385 So.2d 653 (Ala.Crim.App.1980).”

Salter v. State, 578 So.2d 1092, 1094 (Ala.Crim.App.1990).

Here, the State presented a prima facie case of the existence of a conspiracy between Jones and his two co-conspirators. The statements of McWilliams and Scott and the circumstantial evidence links Jones to the conspiracy. Based on the evidence presented, the jury could have reasonably found that Jones participated in the robbery at gunpoint in Montgomery and then went to Millbrook, where he was found with suspects described by eyewitnesses from the previous robbery. Jones was in an automobile that fit the description of the automobile identified in the Montgomery robbery. Pursuant to a consent search during a routine traffic stop, law-enforcement officers discovered two guns and ski masks in the trunk of the car. McWilliams and Scott admitted that they knew about the guns and they both admitted that they had conspired with Jones to commit the robbery. Thus, there was sufficient evidence to sustain Jones’s conviction and the trial court did not err in its denial of Jones’s motion for judgment of acquittal.

II.

Jones also argues that the trial court erred when it sentenced him to life imprisonment without the possibility of parole. The State requests that we remand this case to the trial court for Jones to be resentenced in accordance with § 13A-5-9, Ala.Code 1975.

Conspiracy to commit first-degree robbery is a Class B felony. The range of punishment for a defendant convicted of a Class B felony having been previously convicted of any three felonies is life imprisonment or any term not less than 20 years. § 13A-5-9(c)(2), Ala.Code 1975.

At the sentencing hearing in the instant case the trial court found that Jones had three prior felony convictions and sentenced Jones to life imprisonment without the possibility of parole. Thus, Jones’s sentence falls outside the range prescribed in § 13A-5-9, Ala.Code 1975. Therefore, we must remand this case to the trial court for sentencing pursuant to § 13A-5-9, Ala. Code 1975, which provides for a punishment of imprisonment “for life or any term of not less than 20 years.”

Accordingly, this case is remanded for proper sentencing consistent with this opinion. Remand should be made to this Court within 49 days from release of this opinion.

AFFIRMED AS TO CONVICTION; REMANDED WITH INSTRUCTIONS AS TO SENTENCING.

BASCHAB, P.J., and McMILLAN and WELCH, JJ., concur. SHAW, J., concurs in the result.

       Note from the reporter of decisions: On April 24, 2009, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On May 22, 2009, that court denied rehearing, without opinion. On August 14, 2009, the Supreme Court denied certiorari review, without opinion (1081169).


source: Caselaw Access Project

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

license: Public Domain

text:
    Joseph Lee LEWIS v. STATE of Alabama.
    CR-07-0072.
    Court of Criminal Appeals of Alabama.
    Oct. 31, 2008.
    Opinion on Return to Remand May 1, 2009.
    Rehearing Denied June 19, 2009.
    Certiorari Denied Aug. 21, 2009 Alabama Supreme Court 1081272.

      William Gregory Hughes, Mobile, for appellant.
    Troy King, atty. gen., and Laura I. Cuthbert, asst. atty. gen., for appellee.
   PER CURIAM.

The appellant, Joseph Lee Lewis, was convicted of attempting to murder Leon Dunklin, a violation of §§ 13A-6-2 and 13A-4-2, Ala.Code 1975. He was sentenced to 98 years and 1 day in the state penitentiary.

The State’s evidence tended to show the following: On July 14, 2006, Officer Roderick Cotton of the Mobile Police Department was dispatched to a residence on Edwards Street in Mobile. When he arrived at the house he found Leon Dunklin in one of the bedrooms; Dunklin was kneeling by the side of a bed holding his head in his hands. Officer Cotton testified that Dunklin had a severe head wound, that he had a large hole in the left side of his head, and that it looked like a portion of his nose was also missing. Dr. Herb Phelan, a trauma surgeon at the University of South Alabama Medical Center where Dunklin was taken for treatment, testified that Dunklin’s left eye was missing. He said that Dunklin would have died as a result of the gunshot wound without immediate medical care.

Carolyn Edwards testified that on July 14, 2006, Dunklin and Lewis were living at her house. She said that she was sitting on the front porch when Dunklin arrived at the house with lunch. Dunklin went to Edwards’s bedroom to retrieve a soda from under her bed. Lewis was also in the house. She said that while she was on the porch she heard raised voices and then a “pow,” which sounded like a gunshot.

Okenia Chambers, a home health-care worker who had been helping Edwards and who was at the house when the incident occurred, testified that Lewis left the house after she heard a “pop” and Lewis said “That m_f_was f_with me,” and “You’re goddamn right I shot him.”

Dunklin testified that when he came to Edwards’s house with lunch he went to Edwards’s bedroom to retrieve a soda that she kept stored under her bed. He said that when he was in Edwards’s bedroom Lewis came in and told him that his father did not like Dunklin. He said that he told Lewis that he did not have time for such stupidness and that Lewis then shot him. Dunklin testified that Lewis had been drinking when the shooting occurred.

Detective Russell Hardeman of the Mobile Police Department testified that he first interviewed Lewis outside of Edwards’s house and then again at the police station. Detective Hardeman said that he advised Lewis of his Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), rights, that Lewis agreed to speak with him, that Lewis was coherent, and that Lewis appeared to understand his rights.

Lewis gave Detective Hardeman several versions of the events leading to Dunklin’s shooting. Lewis first said that he and Dunklin were “tussling,” that Dunklin had a gun, that he grabbed it, and that the gun went off, hitting Dunklin. Next he said that Dunklin came out with a gun, that he grabbed it, and that the gun went off. There were also discrepancies in Lewis’s statements to police concerning the location of the shooting. Lewis first said that Dunklin came into his room with a gun. Next he said that he was in the kitchen when Dunklin came into that room with a gun. Finally, Lewis said that he was in Edwards’s room when Dunklin came into that room waving a gun.

Lewis argues that the circuit court erred in denying his motion to suppress the statements he made to Detective Harde-man without first conducting a suppression hearing. He cites the Alabama Supreme Court case of Ex parte Jackson, 836 So.2d 973 (Ala.2001), in support of this argument.

Approximately one month before trial Lewis moved to suppress the statements he had made to Detective Hardeman. He asserted that he was intoxicated at the time of the statements, that he lacked the capacity to appreciate his constitutional rights, and that the statements should be suppressed because they were involuntary. He also requested that a hearing be held on the motion. On the day of trial Lewis withdrew his motion to suppress.

However, the record shows that during trial Lewis renewed his motion to suppress on the same grounds argued in the written motion. The circuit court denied the motion without holding a hearing, after stating for the record that the motion was untimely.

Initially, we note that the motion to suppress was not untimely. Although the better practice is to raise a motion to suppress before trial, we have held that “a pretrial motion to suppress is not necessary, and that objection to the introduction of illegally obtained evidence may be made for the first time when illegally obtained evidence is offered at the trial.” Biggs v. State, 346 So.2d 467, 469 (Ala.Crim.App.1976).

Rule 104(c), Ala.R.Evid., states:

“In criminal cases, hearings on the admissibility of confessions or evidence alleged to have been obtained unlawfully shall be conducted out of the hearing and presence of the jury. Hearings on other preliminary matters shall be conducted out of the hearing and presence of the jury when the interests of justice require.”

(Emphasis added.)

In Ex parte Jackson, 836 So.2d 973 (Ala.2001), the Alabama Supreme Court explained the rationale behind requiring a hearing on the voluntariness of a confession outside the presence of a jury.

“Jackson requested a hearing to determine the admissibility of his statement, and the trial court denied him the opportunity to present evidence. Consequently, Jackson was deprived of his chance to testify about the circumstances relating to the voluntariness of his statement. If the trial court had conducted a hearing, Jackson could have testified and presented evidence indicating that the statement was not voluntarily made, without being subjected to cross-examination on other issues. Rule 104, Ala.R. Evid. If Jackson had testified in the hearing, conflicting evidence might have been presented to rebut the state’s evidence of voluntariness. Therefore, in accordance with Duncan [v. State, 278 Ala. 145, 176 So.2d 840 (1965) ], Smith [v. State, 554 So.2d 451 (Ala.1989) ], and Felder [v. State, 470 So.2d 1321 (Ala.Crim.App.1984) ], we hold that the trial court erred in determining the admissibility of Jackson’s statement without conducting a hearing.”

Jackson, 836 So.2d at 975.

The Jackson court explained that the proper remedy is not to immediately order a retrial but to first remand the case to the lower court for that court to hold a hearing on the issue of the voluntariness of the defendant’s confession. As the Supreme Court stated:

“Jackson argues that in light of the United States Supreme Court’s holding in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), and this Court’s holding in Smith [v. State, 554 So.2d 451 (Ala.1991) ], this error requires that the case be remanded for an evidentiary hearing. We agree.
“In Jackson v. Denno, the defendant’s statement was admitted into evidence without a hearing, outside the presence of the jury, to determine its admissibility. The defendant testified at trial that his statement was coerced. The trial court permitted the jury to determine the voluntariness of the statement. The United States Supreme Court held that the defendant was entitled to a posttrial evidentiary hearing, rather than a new trial, to determine whether the confession was voluntary.
“In Smith, the trial court admitted the defendant’s statements made at the scene of the accident, without conducting a hearing outside the presence of the jury to determine their admissibility. The Court of Criminal Appeals held that the trial court erred in not conducting a hearing outside the presence of the jury and that the defendant was entitled to a new trial. This Court, however, applying the rationale in Jackson v. Denno, ordered that the case be remanded for a evidentiary hearing to determine the admissibility of the statements.
“In accordance with Smith, we remand this case for a hearing to determine the admissibility of Jackson’s statement. If, after the hearing, the trial court determines that Jackson’s statement was voluntarily made and was properly admitted into evidence for the jury’s consideration, a new trial is not required. See Jackson v. Denno, 378 U.S. at 393-94, 84 S.Ct. 1774 (stating that if the statement was properly admitted into evidence, “we see no constitutional necessity at that point for proceeding with a new trial, for [the defendant] has already been tried by a jury with the confession placed before it and has been found guilty5). However, if the trial court determines that Jackson’s statement was not voluntary and therefore was not admissible into evidence, then there must be a new trial, at which the statement is not admitted into evidence.”

Jackson, 836 So.2d at 975-76.

For the reasons set out by the Alabama Supreme Court in Ex parte Jackson, we remand this case to the Mobile Circuit Court for that court to hold a hearing on Lewis’s motion to suppress his statements to police. If the motion is granted, the circuit court is directed to set aside Lewis’s conviction and sentence and to grant him a new trial. See Jackson. Due return should be filed in this Court within 60 days from the date of this opinion.

REMANDED WITH INSTRUCTIONS.

BASCHAB, P.J., and McMILLAN, SHAW, and WISE, JJ„ concur. WELCH, J., concurs in the result.

On Return to Remand

PER CURIAM.

The appellant, Joseph Lee Lewis, was convicted of attempted murder and was sentenced to 98 years and 1 day in prison. Lewis appealed his conviction to this Court. On October 31, 2008, we remanded this ease to the Mobile Circuit Court for that court to hold a hearing on Lewis’s motion to suppress his statements to police. Lewis v. State, 27 So.3d 600 (Ala.Crim.App.2008). The circuit court held a hearing and denied Lewis’s motion to suppress. This case is now before this Court on return to remand.

In our original opinion remanding the case we stated that Leon Dunklin was shot during an altercation between Dunklin and Lewis that occurred at Carolyn Edwards’s home. Lewis gave several statements to police concerning the events leading to the shooting. Lewis first said that he and Dunklin were “tussling,” that Dunklin had a gun, that Lewis grabbed it, and that the gun went off, hitting Dunklin. He then said that Dunklin came out of a room with a gun, that he grabbed it, and that the gun went off. There were also discrepancies in Lewis’s statements to police concerning where the shooting occurred. Lewis first said that Dunklin came into Lewis’s room with a gun. Next Lewis said that he was in the kitchen when Dunklin came into that room with a gun. Finally, Lewis said that he was in Edwards’s room when Dunklin came into that room waving a gun.

I.

Lewis argued in his brief to this Court that the circuit court erred in not holding a suppression hearing because there was evidence that he was intoxicated at the time he made his statement to police. Lewis did not file a brief to this Court on return to remand.

At the suppression hearing Detective Mack Hardeman of the Mobile Police Department testified that on July 14, 2008, the date of the offense, he interviewed Lewis. He said that at around 1:50 p.m., at the scene of the shooting, he first spoke to Lewis and that he read Lewis his Miranda rights. He noticed that Lewis smelled of alcohol and he asked Lewis if he had been drinking. Lewis replied that he had started drinking at 8:00 a.m. that morning and “maybe drank” a “sixpack.” Detective Hardeman further testified that he had frequently observed people who were intoxicated and that he felt that Lewis “knew what he was doing” and that he “never got the impression that Lewis did not understand what was happening.” Hardeman said that he spoke to Lewis about one hour later at police headquarters. He said that at no time did anyone coerce or threaten Lewis nor did they offer him any inducements to speak to police.

The defense called Diane Murray, Lewis’s wife, to testify at the suppression hearing. She said that on the day of the shooting Lewis came into the kitchen of Edwards’s home and “stumbled” into her and that he was drunk. Murray said that this occurred before 1:00 p.m.

At the end of the hearing, the circuit court stated:

“I find that Detective Hardeman has been an experienced police officer who has taken, as he has testified, maybe upwards of a hundred statements. I think he has testified very candidly that he smelled alcohol on this man, and he has testified that, in his judgment, he was under the influence.
“The word ‘drunk’ has been thrown around fairly liberally here in this hearing, but I don’t think that Detective Hardeman testified that this man was drunk, whatever that means legally.
“This Court, both as a prosecutor, defense lawyer and a judge, has never found it a requirement to give a PEI, or a Draeger, or anything else to a defendant before you take a statement. And the reliability of the detective who took this statement in judging whether or not this defendant voluntarily, intelligently, and knowingly waived his rights and gave the statement, I am going to defer to that. And I am going to deny your motion.”

(Order on remand, p. 33-34.)

When determining whether a statement is correctly received into evidence at trial, we use the standard set out by the Alabama Supreme Court in McLeod v. State, 718 So.2d 727 (Ala.1998). The Court stated:

“For a confession, or an inculpatory statement, to be admissible, the State must prove by a preponderance of the evidence that it was voluntary. Ex parte Singleton, 465 So.2d 443, 445 (Ala.1985). The initial determination is made by the trial court. Singleton, 465 So.2d at 445. The trial court’s determination will not be disturbed unless it is contrary to the great weight of the evidence or is manifestly wrong. Marschke v. State, 450 So.2d 177 (Ala.Crim.App.1984)....
“The Fifth Amendment to the Constitution of the United States provides in pertinent part: ‘No person... shall be compelled in any criminal case to be a witness against himself.... ’ Similarly, § 6 of the Alabama Constitution of 1901 provides that ‘in all criminal prosecutions, the accused ... shall not be compelled to give evidence against himself.’ These constitutional guarantees ensure that no involuntary confession, or other inculpatory statement, is admissible to convict the accused of a criminal offense. Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961); Hubbard v. State, 283 Ala. 183, 215 So.2d 261 (1968).
“It has long been held that a confession, or any inculpatory statement, is involuntary if it is either coerced through force or induced through an express or implied promise of leniency. Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897). In Culombe, 367 U.S. at 602, 81 S.Ct. at 1879, the Supreme Court of the United States explained that for a confession to be voluntary, the defendant must have the capacity to exercise his own free will in choosing to confess. If his capacity has been impaired, that is, ‘if his will has been overborne’ by coercion or inducement, then the confession is involuntary and cannot be admitted into evidence. Id. (emphasis added).
“The Supreme Court has stated that when a court is determining whether a confession was given voluntarily it must consider the ‘totality of the circumstances.’ Boulden v. Holman, 394 U.S. 478, 480, 89 S.Ct. 1138, 1139-40, 22 L.Ed.2d 433 (1969); Greenwald v. Wisconsin, 390 U.S. 519, 521, 88 S.Ct. 1152, 1154, 20 L.Ed.2d 77 (1968); see Beecher v. Alabama, 389 U.S. 35, 38, 88 S.Ct. 189, 191, 19 L.Ed.2d 35 (1967). Alabama courts have also held that a court must consider the totality of the circumstances to determine if the defendant’s will was overborne by coercion or inducement. See Ex parte Matthews, 601 So.2d 52, 54 (Ala.) (stating that a court must analyze a confession by looking at the totality of the circumstances), cert. denied, 505 U.S. 1206, 112 S.Ct. 2996, 120 L.Ed.2d 872 (1992); Jackson v. State, 562 So.2d 1373, 1380 (Ala.Crim.App.1990) (stating that, to admit a confession, a court must determine that the defendant’s will was not overborne by pressures and circumstances swirling around him); Eakes v. State, 387 So.2d 855, 859 (Ala.Crim.App.1978) (stating that the true test to be employed is ‘whether the defendant’s will was overborne at the time he confessed’) (emphasis added).”

McLeod, 718 So.2d at 729 (footnote omitted).

In regard to intoxication, we have stated:

“ ‘ “[U]nless intoxication, in and of itself, so impairs the defendant’s mind that he is ‘unconscious of the meaning of his words,’ the fact the defendant was intoxicated at the time he confessed is simply one factor to be considered when reviewing the totality of the circumstances surrounding the confession.” Carr v. State, 545 So.2d 820, 824 (Ala.Cr.App.1989). “The intoxicated condition of an accused when he makes a confession, unless it goes to the extent of mania, does not affect the admissibility and evidence of the confession, but may affect its weight and credibility.” Callahan v. State, 557 So.2d 1292, 1300 (Ala.Cr.App.), affirmed, 557 So.2d 1311 (Ala.1989).’ ”

State v. Austin, 596 So.2d 598, 601 (Ala.Crim.App.1991).

After examining the transcript of Lewis’s statements and the testimony at the suppression hearing, we agree with the circuit court that there is no indication that Lewis was so intoxicated that his statements were rendered involuntary. The circuit court did not err in admitting Lewis’s statements to police.

We will now address the remaining issue raised in Lewis’s brief.

II.

Lewis next asserts that the circuit court erred in allowing Detective Harde-man to testify that, in his opinion, events could not have happened in the manner Lewis described. Such testimony, Lewis argues, went to the issue of Lewis’s credibility and improperly invaded the province of the jury.

During Detective Hardeman’s testimony, the following occurred:

“Q [Prosecutor]: Were there inconsistencies in his statements?
“A [Hardeman]: Inconsistencies? Yes, sir.
“Q [Prosecutor]: Inconsistencies about the gun?
“A [Hardeman]: Yes, sir.
“Q [Prosecutor]: What about with regard to where the event occurred?
“A [Hardeman]: They were three or four different versions of where it occurred.
“Q [Prosecutor]: Based on the facts as he presented them to you, and based upon the physical evidence at the scene, did you make any determina — and your training and history as a police officer, did you make any determinations as to whether the shooting could have occurred as [Lewis] claimed it did?
“[Defense counsel]: Objection, Your Honor. He is asking for what appears to be a professional opinion from someone who is not qualified.
“The Court: Ask the question again, please.
“Q [Prosecutor]: Based on the facts surrounding the statements [Lewis] gave you, based on your investigation and the physical evidence recovered at the scene, physical evidence seen at the seene, based on the story he told you about where they were situated at the time of the shooting, and based on your experience as a homicide detective, taken as a whole, did you make a determination as to whether you believe the events occurred as [Lewis] claimed they did?
“[Defense counsel]: And we are — objection, Your Honor, on the following grounds: This is not a crime scene expert of, you know—
“[Prosecutor]: It’s lay witness testimony, Your Honor.
“The Court: Whoa, whoa, whoa.
“[Defense counsel]: Wait. Let me finish my objection.
“Number two, he’s asking for an opinion. Number three, this man wasn’t there, and admitted he wasn’t there. It’s up to the jury to determine what the evidence shows. He is asking for an opinion on the ultimate fact of this case.
“The Court: No. I think what he is asking for is an opinion as to whether or not, in his opinion as a homicide investigator, if the events appeared to take place as [Lewis] told him they did.
“I am going to overrule your objection; allow him to answer that question.
“A [Hardeman]: The question was, in my opinion, could the events have happened the way he said they did? No.
“Q [Prosecutor]: But you weren’t there.
“A [Hardeman]: Correct.”

(R. 193-94.)

The State did not offer Detective Harde-man as an expert witness in the area of crime-scene investigation or reconstruction; thus, the propriety of the above testimony involves an analysis of the admissibility of opinion evidence by a lay witness. See Ware v. State, 949 So.2d 169, 182 (Ala.Crim.App.2006).

Rule 701, Ala. R. Evid., addresses the admissibility of opinion evidence by a lay witness; it states:

“If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.”

The advisory comments to Rule 701, Ala. R. Evid., state, in pertinent part:

“Alabama Rule of Evidence 701, like its identical counterpart under the Federal Rules of Evidence, permits lay witnesses to give opinions whenever two conditions are met. First, the opinion must be rationally based upon the perception of the witness. This is no more than a restatement of the ‘firsthand knowledge rule,’ found in Ala. R. Evid. 602, tailored to opinions. No lay witness may give an opinion based upon facts that the witness did not personally observe. Second, a lay witness with firsthand knowledge may give an opinion only if it is helpful to a clear understanding of the witness’s testimony or to the determination of a fact in issue. A fair amount of discretion is vested in the trial judge regarding the determination of whether opinions are helpful. It is clear, however, that opinions should be excluded as not being helpful if they are ‘meaningless assertions which amount to little more than choosing up sides.’” Rule 701, Ala. R. Evid., advisory committee’s note.”

Rule 704, Ala. R. Evid., also provides that “[testimony in the form of an opinion or inference otherwise admissible is to be excluded if it embraces an ultimate issue to be decided by the trier of fact.”

“A lay witness has been precluded, under historic Alabama law, from giving an opinion upon the ultimate issue or fact to be decided by the trier of fact. This rule of exclusion is based upon the belief that to permit otherwise would usurp the function of the trier of fact. Case law in Alabama, however, may be categorized as having drifted away from a literal application of the traditional ‘ultimate issue rule.’ As concessions to need, for example, lay opinions have been admitted as to insanity, value, and handwriting, despite the fact that these often either constitute or coincide with the ultimate issue in the given litigation.”

Gamble’s, McElroy’s Alabama Evidence § 127.01(6) (5th ed. 1996) (emphasis added). Compare Fox Alarm Co. v. Wadsworth, 913 So.2d 1070, 1079 (Ala.2005) (“ ‘The trend of Alabama appellate courts is to allow expert testimony as to an “ultimate issue” if that testimony would aid or assist the jury.’ ”).

“Pre-Rules decisions said that neither lay nor expert witnesses could express opinions on an ultimate issue in a case. To do so, it is said, would invade the province of the jury. The prohibition on opinion testimony that goes to the ultimate issue is most frequently invoked in the context of lay testimony. Even a lay witness, however, may testify to an ultimate fact when it would be practically impossible for the witness to describe or reproduce the primary facts on which an inference is based or where a fact cannot be reproduced or made apparent to the jury or if better evidence is not attainable.”

William A. Schroeder and Jerome A. Hoffman, Alabama Evidence § 7.36 (3d ed.2006) (emphasis added).

This exception to the general rule excluding opinion testimony by a lay witness has been referred to as the “collective facts” rule or the “shorthand rendition” rale. See C. Gamble, McElroy’s Alabama Evidence § 127.01(2) (5th ed.1996).

In Hale v. State, 673 So.2d 803 (Ala.Crim.App.1995), we applied the “collective facts” rule. Hale was convicted of burglary and appealed to this Court. He argued that the evidence was insufficient to convict him because the only evidence connecting him to the burglary were his fingerprints, which were found at the point of entry of the crime scene. Sergeant John Boyd was allowed to testify concerning the age of the fingerprints. In affirming the admission of this testimony, we stated:

“Boyd’s testimony regarding the fingerprints was admissible. Boyd’s statement that the prints ‘were over all that [pollen and dust]’ and ‘[t]here wasn’t any pollen or any dust [on top of the prints],’
“ ‘ “is a statement of fact, not of opinion.... [I]t is a matter readily ascertainable by any person with ordinary powers of observation and is not necessarily a subject requiring expert testimony.” ... [The] testimony was not violative of the traditional rule in Alabama that a lay witness can testify to facts which he observed but cannot testify to opinions, conclusions, deductions, or inferences which are based upon facts. See C. Gamble, McEl-roy’s Alabama Evidence, § 127.01(1) (3d ed.1977).’
“Tice v. State, 460 So.2d 273 (Ala.Cr.App.1984) (‘Although Officer Smith was not qualified as an expert in tire track analysis, his testimony was admissible. No special training or expertise is required of a witness to identify the tread of tires and the tracks they leave.’).
“Boyd’s opinion that the prints were ‘fresh’ was properly admitted because it constituted a ‘collective fact’ or ‘shorthand rendition of fact.’
“ ‘ “A witness may testify to his opinion if it is a collective fact or a shorthand rendition of fact. This variety is most commonly referred to as the collective fact exception and arises when the facts observed by the witness are so many or so inexpressible that he is allowed to give the jury his opinion. His opinion is conceived of as being a shorthand way of giving the facts and, consequently does not constitute a violation of the opinion evidence rule.” C. Gamble, McElroy’s Alabama Evidence, Section 127.01(3) Variety No. 7 (3rd ed.1977).’
“Murrell v. State, 377 So.2d 1102, 1106 (Ala.Cr.App.), cert. denied, 377 So.2d 1108 (Ala.1979).
“In Murrell a police officer was properly allowed to ‘state his opinion as to how long certain candy wrappers, cake wrappers, and milk cartons, which he found at the scene of the double murder, had been there.’ The officer testified that ‘In [his] opinion they had been there only a short time.... they hadn’t been there too long.’ His opinion was based on the fact that there were ‘crumbs around the wrappers ... [that] were soft.’ This court found that this testimony was admissible as a ‘collective fact’ or a ‘shorthand rendition of fact’ because ‘[h]is finding soft crumbs around the wrappers provided a logical basis for his opinion.’ Murrell, 377 So.2d at 1106. The same is true in this case. Boyd’s testimony that he had been lifting prints for over 12 years and that he could see that the prints were impressed on top of pollen and dust provided a logical basis for his opinion.”

673 So.2d at 809-10. See also Trawick v. State, 512 So.2d 818 (Ala.Crim.App.1987) (police officer correctly allowed to testify that rape victim’s room was “un-neat” and “untidy”); Lynn v. State, 543 So.2d 704 (Ala.Crim.App.1987) (investigator correctly allowed to testify that victim’s house was “ransacked”); Wyrick v. State, 409 So.2d 969 (Ala.Crim.App.1981) (police officer correctly allowed to testify about the amount of force needed to break open the victim’s bedroom door).

More recently in Addin v. State, 790 So.2d 975, 1004 (Ala.Crim.App.2000), this Court again discussed the “collective facts” rule and stated:

“ ‘ “Alabama has long recognized ... that a lay witness may give an opinion when the witness is unable to relate the facts to the jurors well enough to place the jurors in as good a position as the witness was in to reach an opinion or to draw a conclusion. Some would call this the ‘collective facts’ exception to the opinion evidence rule.”
“ ‘Advisory Committee’s Notes to Rule 701, Ala.R.Evid.
“ ‘In this case, the witness’s opinion amounted to this sort of shorthand recitation of the facts and was admissible under Rule 701, Ala.R.Evid.’ ”

790 So.2d at 1004.

Based on the above cases, we hold that the circuit court committed no error in allowing Detective Hardeman to testify concerning his impressions of the crime scene, specifically, whether the condition of the scene matched Lewis’s version of the events.

Accordingly, we affirm Lewis’s conviction for attempted murder.

AFFIRMED.

WISE, P.J., and WINDOM and KELLUM, JJ., concur.

WELCH, J., concurs in part and dissents in part, with opinion.

WELCH, Judge,

concurring in part and dissenting in part.

I agree with the majority’s holding that the trial court did not err in admitting into evidence Lewis’s statement to the police. I disagree with the majority’s holding that the trial court did not err when it overruled Lewis’s objection to Detective Hardeman’s testimony that the events could not have happened in the manner in which Lewis had described. The majority relies on cases in which this Court has previously applied the “collective facts” rule to uphold the admission of testimony that constituted a “shorthand rendition of fact.” That rule has no application to this case because the testimony under review here involved Detective Hardeman’s opinion as to the ultimate issue. Lay testimony as to the ultimate issue generally is not permitted in Alabama, and the trial court erred when it overruled Lewis’s objection to the testimony in this case.

Rule 701, Ala. R. Evid., addresses the admissibility of opinion evidence by a lay witness and provides:

“If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.”

Rule 704, Ala. R. Evid., states: “Testimony in the form of an opinion or inference otherwise admissible is to be excluded if it embraces an ultimate issue to be decided by the trier of fact.” The Advisory Committee’s Notes to Rule 704 explain: “The basis for the preclusion is the fear that the admission of such an opinion will preempt the role and function of the fact-finder.”

In this case, the testimony given by Detective Hardeman went beyond shorthand perceptions of certain evidence — for example, that certain evidence was fresh, stale, or the like — that have been permitted as exceptions to the rule against lay testimony as to the ultimate issue. Instead, the prosecutor sought to elicit from Detective Hardeman his opinion on the ultimate issue in the case. The majority acknowledges as much when it concludes that Detective Hardeman testified “concerning his impressions of the crime scene, specifically, whether the condition of the scene matched Lewis’s version of the events.” 27 So.3d at 610. (Emphasis added.) The opinion elicited by the prosecution’s question was not testimony regarding the facts; rather, the objectionable question and testimony followed the detective’s complete exposition of the pertinent facts. The elicited testimony was purely a meaningless assertion that amounted only to “choosing up sides” and was improper. Rule 701, Ala. R. Evid., Advisory Committee’s Notes, quoting Rule 701, Fed. R.Evid., Advisory Committee’s Note (“It is clear, however, that opinions should be excluded as not being helpful if they are ‘meaningless assertions which amount to little more than choosing up sides.’ ”).

Lewis’s objection to the question proposed to Detective Hardeman was well taken and should have been sustained by the trial court. The trial court abused its discretion in allowing the prosecutor to elicit testimony that invaded the province of the jury. Detective Hardeman’s testimony usurped the jury’s function, and its admission created reversible error. Therefore, I respectfully dissent from that portion of the opinion.

      . Before the adoption of Rule 104, Ala. R.Evid., we held that "[A]n accused is not entitled to a hearing outside the presence of the jury unless he specifically requests one.” Cliff v. State, 518 So.2d 786, 791 (Ala.Crim.App.1987). Rule 104, Ala.R.Evid., which became effective January 1, 1996, makes mandatory a hearing on a motion to suppress outside the presence of the jury. See also Charles Gamble, McElroy’s Alabama Evidence § 200.02(5) (5th ed.1996).

      . We pretermit discussion on the remaining issue pending the disposition of this issue on remand.

      . The facts surrounding the shooting are set out in our original opinion. 27 So.3d at 601-02.

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


author:
WISE, Presiding Judge.
      KELLUM, Judge,

text:
    Jerry Richard PERKINS v. STATE of Alabama.
    CR-06-1828.
    Court of Criminal Appeals of Alabama.
    Feb. 27, 2009.
    Rehearing Denied April 24, 2009.
    Certiorari Denied Aug. 14, 2009 Alabama Supreme Court 1080994.

      Daniel W. Wainscott, Birmingham, for appellant.
    Troy King, atty. gen., and John J. Davis, asst. atty. gen., for appellee.
   WISE, Presiding Judge.

The appellant, Jerry Richard Perkins, was convicted of third-degree domestic violence based on harassment, a violation of § ISA-6-132, Ala.Code 1975. The trial court sentenced him to serve a term of one year in the county jail, but split the sentence and ordered him to serve twenty days followed by two years on probation. Perkins filed a motion for a new trial, which the trial court denied after conducting a hearing. This appeal followed.

Deputy Danny Humphrey of the Jefferson County Sheriff’s Department testified that, around midnight on September 29, 2006, he and Deputy Phillip Humphries were dispatched to the residence where Perkins and Campbell lived. They knocked on the door, and Campbell answered the door. She whispered in a low voice and told them she had telephoned them, asked them not to let Perkins know she had telephoned them, started telling them what had happened, and asked them to stay while she got her things so she could leave. At that point, Humphrey told her he would have to go inside and take a report from her because it was a domestic disturbance.

Humphrey testified that Campbell told him she had had an altercation with Perkins and was explaining what had happened when Perkins came into the room. He also testified that Campbell stated that she had been out picking up cans and that, when she returned to the residence, Perkins had grabbed her by the throat, struck her on her face and head, made her enter the residence and undress, and checked her vagina for semen. Humphrey further testified that, at that point, Perkins volunteered that he had not struck Campbell, but admitted that he had grabbed her by the neck, made her enter the residence and undress, and checked her vagina to find out if she had been using drugs because she allegedly produced a white, milky substance when she had been using drugs.

Humphrey testified that Campbell was very upset and nervous and was shaking and crying. He also identified pictures of Campbell that depicted how she looked at that time and testified that she had a red mark on her neck that appeared to have been made recently. Finally, he testified that he had been to the residence before, that Perkins and Campbell were boyfriend and girlfriend, and that they lived together at the residence.

Perkins testified that, when he returned to their residence from work on September 29, 2006, Campbell was not there, and he could not find her. He stated that, when she returned, he believed she had been abusing pills, and they argued about where she had been and what she had been doing. However, he testified that he did not strike her, choke her, put his hands on her, make her take off her clothes, or check her vagina.

Perkins testified that they went to bed around 10:00 p.m., that he was in bed sleeping when the deputies arrived, and that they woke him around 2:30 a.m. He also testified that he did not tell Humphrey that he choked Campbell and made her undress.

Perkins argues that the trial court erred in allowing Humphrey to testify about the statements Campbell made to him. Specifically, he contends that Humphrey’s testimony was inadmissible hearsay and that “there was no direct testimony that could in any way inculpate [him] in any crime against the alleged victim.” (Perkins’s brief at p. 3.) Thus, he concludes that his “conviction is based solely upon incompetent and inadmissible evidence that should have been excluded.” (Perkins’s brief at p. 4.)

“‘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.” Rule 801(c), Ala. R. Evid. Assuming, without deciding, that Humphrey’s testimony about what Campbell told him Perkins did to her constituted inadmissible hearsay, that same evidence was subsequently admitted when Humphrey testified about what Perkins told him at the scene. Rule 801(d)(2)(A), Ala. R. Evid., specifically provides that a statement offered against a party that is the party’s own statement is not hearsay, but rather is an admission by a party opponent. Thus, Humphrey’s testimony about what Perkins said at the scene was not hearsay and was admissible as an admission by Perkins. That admission presented the same summary of the offense as Humphrey’s testimony about what Campbell stated and about which Perkins now complains. “[TJestimony that may be inadmissible may be rendered harmless by prior or subsequent lawful testimony to the same effect or from which the same facts can be inferred.” White v. State, 650 So.2d 538, 541 (Ala.Crim.App.1994), overruled on other grounds, Ex parte Rivers, 669 So.2d 239 (Ala.Crim.App.1995). Therefore, Humphrey’s testimony about what Campbell told him was merely cumulative to Perkins’s admission.

Moreover, Humphrey testified that Perkins stated that he had not struck Campbell, but admitted that he had grabbed her by the neck, made her enter the residence and undress, and checked her vagina to find out if she had been using drugs because she allegedly produced a white, milky substance when she had been using drugs. He also testified that Campbell was upset, nervous, shaking, and crying when they arrived. Finally, the State introduced photographs of Campbell that depicted how she looked at that time, and Humphrey testified that she had a red mark on her neck that appeared to have been made recently. Thus, even without Humphrey’s testimony about what Campbell said, there was still sufficient evidence from which the jury could have reasonably concluded that Perkins was guilty of third-degree domestic violence based on harassment. Accordingly, Perkins’s conviction was not based solely on inadmissible evidence.

Reviewing the entire record as a whole, “is it clear beyond a reasonable doubt that the jury would have returned a verdict of guilty” even without Humphrey’s testimony about the statements Campbell made to him. United States v. Hasting, 461 U.S. 499, 510, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983). See also Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Thus, under the circumstances set forth herein, any error in the admission of Humphrey’s testimony about Campbell’s statements was harmless. See Rule 45, Ala. R.App. P. Accordingly, we affirm the trial court’s judgment.

AFFIRMED.

WINDOM, J., concurs.

KELLUM, J., concurs specially, with opinion.

WELCH, J., concurs in the result.

KELLUM, Judge,

concurring specially.

Although I agree with the ultimate conclusion in the majority opinion that the admission of Humphrey’s testimony about Campbell’s statements was harmless, I write specially to clarify my understanding of the appropriate standard of review in cases involving the application of the harmless-error rule. Our harmless-error rule provides, in pertinent part:

“No judgment may be reversed or set aside ... on the ground of ... improper admission or rejection of evidence ... unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”

Rule 45, Ala. R.App. P.

In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the Supreme Court of the United States held that before the violation of certain constitutional rights can be held harmless, the appellate court must be able to declare a belief that it was harmless beyond a reasonable doubt. The Court reasoned: “While appellate courts do not ordinarily have the original task of applying such a test, it is a familiar standard to all courts, and we believe its adoption will provide a more workable standard.” Chapman, 386 U.S. at 24, 87 S.Ct. 824.

In Ex parte Greathouse, 624 So.2d 208 (Ala.1993), the Alabama Supreme Court explained:

“In so holding [in United States v. Hasting, 461 U.S. 499, 509 (1983)], the Court observed that, ‘[s]ince Chapman, the Court has consistently made clear that it is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations,’ id. (citations omitted), and stated that the proper question for a reviewing court to ask is: ‘[A]bsent the prosecutor’s allusion to the failure of the defense to proffer evidence to rebut the testimony of the victims, is it clear beyond a reasonable doubt that the jury would have returned a verdict of guilty?’ ”

624 So.2d at 210. Thus, in order to determine if the error alleged to be harmless did not “injuriously affect[] substantial rights of the parties” Rule 45, Ala. R.App. P., the reviewing court must review the trial record as a whole to determine if it is “clear beyond a reasonable doubt that the jury would have returned a verdict of guilty” absent the improperly introduced evidence. Greathouse, 624 So.2d at 210. See also Ex parte Hutcherson, 677 So.2d 1205 (Ala.1996).


author: WISE, Presiding Judge.

text:
    Robert Donald DUCK v. STATE of Alabama.
    CR-07-1181.
    Court of Criminal Appeals of Alabama.
    Feb. 27, 2009.

      Robert Donald Duck, pro se.
    Troy King, atty. gen., and Andy Scott Poole, asst. atty. gen., for appellee.
   WISE, Presiding Judge.

On June 21, 2006, the appellant, Robert Donald Duck, was convicted of second-degree rape. On July 25, 2006, the trial court sentenced him to serve a term of twenty years in prison. We affirmed his conviction in an unpublished memorandum and issued a certificate of judgment on April 13, 2007. See Duck v. State, (CR-05-2344, February 23, 2007) 4 So.3d 589 (Ala.Crim.App.2007) (table). On February 11, 2008, Duck filed a Rule 32 petition, challenging his conviction. After the State responded, the circuit court summarily denied the petition. This appeal followed.

In his petition, Duck raised ineffective-assistance-of-trial-counsel allegations. The State did not respond specifically to all of those allegations, and the circuit court did not specifically address them. Rather, it found that Duck should have raised the claims on direct appeal. However, Duck was sentenced on July 25, 2006. On June 26, 2006, his trial counsel filed a motion for a new trial. On July 6, 2006, the trial court denied his motion for a new trial. Finally, trial counsel filed a motion to withdraw on August 14, 2006; the trial court allowed trial counsel to withdraw on September 20, 2006; and this court appointed appellate counsel on October 27, 2006.

“[I]n any cases in which the defendant is convicted after the date this opinion is released, an ineffective-assistanee-of-counsel claim must be presented in a new trial motion filed before the 30-day jurisdictional time limit set by Rule 24.1(b), Ala. R.Crim. P., expires, in order for that claim to be properly preserved for review upon direct appeal.
“When a defendant makes a claim of ineffective assistance of trial counsel, and that claim cannot reasonably be presented in a new trial motion filed within the 30 days allowed by Rule 24.1(b), Ala. R.Crim. P., the proper method for presenting that claim for appellate review is to file a Rule 32, Ala. R.Crim. P., petition for post-conviction relief.”

Ex parte Ingram, 675 So.2d 863, 865-66 (Ala.1996). In this case, appellate counsel was not appointed until after the trial court had denied Duck’s motion for a new trial. Therefore, appellate counsel could not have properly raised ineffective-assistance-of-trial-counsel claims on direct appeal. Accordingly, the circuit court improperly found that Duck should have raised these claims on direct appeal.

Because Duck raised ineffective-assistance-of-trial-counsel allegations that could be meritorious, the circuit court erred in not addressing them. Therefore, we remand this case to the circuit court for that court to make specific, written findings of fact concerning Duck’s ineffective-assistance-of-trial-counsel allegations. On remand, the circuit court may order the State to respond to all of Duck’s specific allegations and/or may conduct an eviden-tiary hearing on those allegations. If the circuit court determines that Duck is entitled to relief, it may order such relief. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 42 days after the release of this opinion. The return to remand shall include the circuit court’s specific, written findings of fact; a copy of the State’s additional response, if any; and a transcript of the remand proceedings, if any, conducted by the circuit court.

REMANDED WITH INSTRUCTIONS.

WELCH, WINDOM, and KELLUM, JJ., concur.

      . We pretermit discussion of Duck’s remaining claims at this time.

       Note from the reporter of decisions: On August 14, 2009, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


text:
    Alvin WHITE v. STATE of Alabama.
    CR-07-2039.
    Court of Criminal Appeals of Alabama.
    Feb. 27, 2009.

      Alvin White, pro se.
    Troy King, atty. gen., and Michael G. Dean, asst. atty. gen., for appellee.
   WISE, Presiding Judge.

The appellant, Alvin White, alleges that he was convicted of theft of property. He also alleges that, on February 10,1984, the trial court sentenced him, as a habitual felony offender, to serve a term of life in prison. See § 13A-5-9, Ala.Code 1975. On June 27, 2008, White filed a motion for reconsideration of his sentence pursuant to § 13A-5-9.1, Ala.Code 1975. Without requiring a response from the State, the circuit court summarily denied the motion. This appeal followed.

White argues that the circuit court erred in denying his motion for reconsideration of his sentence. In its order denying the motion, the circuit court found:

“The Petitioner/Inmate does not meet the requirements to qualify under a Kirby motion because he is not serving a life sentence without the possibility of parole for his Class A Theft of Property I conviction.”

(C.R. 14.) White contends that the circuit court denied his motion based on an incorrect application of § 13A-5-9.1, Ala.Code 1975, and specifically points out that first-degree theft of property is a Class B felony rather than a Class A felony. See § 13A-8-3(d), Ala.Code 1975.

“As the Alabama Supreme Court explained in Kirby [v. State, 899 So.2d 968 (Ala.2004) ]:
“ ‘In 2001, the Legislature passed Act No. 2001-977 (“the Act”) in an attempt to make the 2000 amendments to § 13A-5-9 retroactive. The stated purpose of the Act was “to provide further for eligibility for parole consideration of non-violent offenders.” The Act, now codified as § 13A-5-9.1, states in its entirety:
“ ‘ “The provisions of Section 13A-5-9 shall be applied retroactively by the sentencing judge or 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.”
“ ‘... Reading § 13A-5-9.1 in conjunction with § 13A-5-9, it is clear that a sentencing judge or a presiding judge can resentence only two narrowly defined classes of habitual offenders: those who had been sentenced to life imprisonment without the possibility of parole under the mandatory provisions of the HFOA upon conviction of a Class A felony with no prior Class A felony convictions; and those who had been sentenced to life imprisonment under the mandatory provisions of the HFOA upon conviction of a Class B felony. Moreover, of those habitual offenders, the judge can resentence only those who are nonviolent offenders.’
899 So.2d at 969-974. Therefore, the only inmates who would be eligible for reconsideration of their sentence(s), in the discretion of the circuit court, are (1) nonviolent offenders with three prior felony convictions who were subsequently convicted of a Class B felony and sentenced to life in prison pursuant to § lSA-5-9(c)(2), Ala.Code 1975, and (2) nonviolent offenders with three prior felony convictions, none of which was for a Class A felony, who were subsequently convicted of a Class A felony and sentenced to imprisonment for life without the possibility of parole pursuant to § 13A-5-9(c)(3), Ala.Code 1975.”

Prestwood v. State, 915 So.2d 580, 584-85 (Ala.Crim.App.2005) (emphasis added).

“There are three requirements for eligibility to have a sentence reconsidered under § 13A-5-9.1: (1) the inmate was sentenced before May 25, 2000, the date the 2000 amendment to the HFOA became effective; (2) the inmate was sentenced to life imprisonment without the possibility of parole pursuant to § 13A-5-9(c)(3) and had no prior Class A felony convictions or was sentenced to life imprisonment pursuant to § ISA-5— 9(c)(2), see Prestwood, supra; and (3) the inmate is a ‘nonviolent convicted offender.’ An inmate must satisfy all three requirements before he or she is eligible for reconsideration of sentence under § 13A-5-9.1.”

Holt v. State, 960 So.2d 726, 734-35 (Ala.Crim.App.2006) (emphasis added).

Because White alleges that he was sentenced on February 10, 1984, it appears that he satisfies the first eligibility requirement set forth in Holt. Also, in his first petition, White alleged that he was convicted of the Class B offense of first-degree theft of property and sentenced, as a habitual offender with three prior felony convictions, to serve a term of life in prison. If those allegations are true, then he satisfies the second eligibility requirement set forth in Holt, and the circuit court erred in finding that he did not. The circuit court did not make any findings as to whether White was a nonviolent convicted offender, which is the third eligibility requirement set forth in Holt.

It appears that the circuit court erred in concluding that White did not satisfy the second eligibility requirement set forth in Holt. However, it is not clear from the record before us what offense White was convicted of in this case, how many prior convictions were used to enhance his sentence, and what offenses the prior convictions were for. In the motion for reconsideration of sentence he filed on June 27, 2008, White alleged that he was convicted of first-degree theft of property in case number CC-84-28 and sentenced, as a habitual offender with three prior felony convictions, to serve a term of life in prison on February 10, 1984. In a motion for reconsideration of sentence he filed on July 17, 2008, White alleged that he was convicted of second-degree theft of property in case number CC-84-28 and sentenced, as a habitual offender with two prior felony convictions, to serve a term of life in prison on February 10, 1984. In a motion for reconsideration of sentence he filed on July 24, 2008, White alleged that he was convicted of third-degree theft of property in case number CC-84-28 and sentenced, as a habitual offender with two prior felony convictions, to serve a term of life in prison on February 10, 1984. In his opening brief to this court, White alleges that he was convicted of first-degree theft of property and sentenced, as a habitual offender with two prior felony convictions, to serve a term of life in.prison on February 10, 1984. Finally, in his reply brief to this court, White alleges that he was sentenced as a habitual offender with three prior convictions.

Accordingly, we remand this case to the circuit court for it to set aside its order denying White’s motion for reconsideration of his sentence; to make specific, written findings of fact as to the offense for which White was convicted in this case, the number of prior felony convictions that were used to enhance his sentence, and the offenses for which he was previously convicted; and to consider White’s motion for reconsideration pursuant to this court’s holding in Holt. On remand, if the circuit court determines that White is eligible for reconsideration of his sentence and chooses to exercise its discretion to resentence him, it shall so state. The circuit court shall make all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 42 days after the release of this opinion.

REMANDED WITH INSTRUCTIONS.

WELCH, WINDOM, and KELLUM, JJ., concur.

      . In support of his allegations, White attaches a portion of the case action summary sheet from case number CC-84-28 to his reply brief. However, "[a]ttachments to briefs are not considered part of the record and therefore cannot be considered on appeal.” Chan

        dler v. State, 677 So.2d 1286, 1287 (Ala.Crim.App.1996). Accordingly, we cannot rely on that document in addressing White’s allegations.

       Note from the reporter of decisions: On July 24, 2009, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


text:
    Joseph Martin BEASON v. STATE of Alabama.
    CR-07-2133.
    Court of Criminal Appeals of Alabama.
    May 29, 2009.

      Ericka Michelle B. Horton, Pell City, for appellant.
    Troy King, atty. gen., and Yvonne A. Saxon, asst. atty. gen., for appellee.
   WISE, Presiding Judge.

The appellant, Joseph Martin Beason, was convicted of unlawful distribution of a controlled substance, a violation of § 13A-12-211, Ala.Code 1975. The trial court sentenced him, as a habitual offender, to serve a term of twenty years in prison. See § 13A-5-9(b)(2), Ala.Code 1975. The trial court also enhanced his sentence by five years because the sale occurred within three miles of a school and by an additional five years because the sale occurred within three miles of a public housing project. See §§ 13A-12-250 and 13A-12-270, Ala.Code 1975. Beason filed a motion for a new trial, which the trial court summarily denied. This appeal followed.

Investigator Cary Ward of the St. Clair County Sheriff’s Office testified that, in May 2007, the office was targeting a crack house in Ragland. He specifically stated that they knew that there was a lot of drug dealing occurring at that residence and that they were targeting several dealers who sold drugs out of the house. At that time, R.S.J., a confidential informant, approached the chief of police for the City of Ragland, told him he knew a lot of people who were dealing drugs in Ragland, and offered to assist them any way he could. Ward testified that the informant had helped in three to five other cases and had been reliable.

Ward testified that he set up and monitored a controlled buy using the informant and a wire. When the informant initially went to the residence, he was informed that there would be a delay of about one hour. Ward testified that, when the informant returned to the residence later, he heard the informant drive to the target residence and ask for Bonita Brock; that Bonita came out, and the informant asked her if she could get a crack rock; and that Bonita said she could, and the informant gave her $20. He also testified that, a few minutes later, he heard Beason arrive in a truck, talk to the informant, and give the informant a crack rock. Ward testified that there was not any indication that anyone forced Beason to take the crack rock to the informant. Afterward, the informant met him and gave him the crack rock.

Ward testified that the controlled buy took place within three miles of Ragland High School. Specifically, he testified that he drove the distance in his vehicle and determined that the distance between the location of the sale and the location of the school was 1.9 miles.

R.S.J., the confidential informant, testified that he volunteered to assist law enforcement officers in making drug cases and that he participated in a controlled buy in this case. He also testified that he went to Bonita’s house and that she told him to return in about one hour. When he returned, Bonita was in the yard. She went into the house for a few minutes, and Beason came out with the crack rock, gave it to him, and got a beer out of his cooler.

I.

Beason argues that the trial court erroneously refused to instruct the jury on entrapment. “ ‘When a defendant raises an entrapment defense, he must initially come forward with evidence that the governmental conduct created a substantial risk that the offense would be committed by a person, other than one ready to commit it.’ ” Germany v. State, 630 So.2d 132, 134 (Ala.Crim.App.1993) (citations omitted).

“ ‘A defendant will be considered to have met this burden if he produces “any evidence” that governmental conduct created such a risk, Pierce v. United States, 414 F.2d 163 (5th Cir.), cert. denied, 396 U.S. 960, 90 S.Ct. 435, 24 L.Ed.2d 425 (1969), but evidence that the government agent sought out or initiated contact with the defendant, or was the first to propose the illicit transaction, has been held to be insufficient to meet the defendant’s burden. United States v. Humphrey, 670 F.2d 153 (11th Cir.1982); United States v. Hill, 626 F.2d 1301 (5th Cir.1980). The defendant must demonstrate not merely inducement or suggestion on the part of the government but “an element of persuasion or mild coercion.” United States v. Hill, supra. The defendant may make such a showing by demonstrating that he had not favorably received the government plan, and the government had had to “push it” on him, United States v. Hammond, 598 F.2d 1008 (5th Cir.1979), or that several attempts at setting up an illicit deal had failed and on at least one occasion he had directly refused to participate, United States v. Timberlake, 559 F.2d 1375 (5th Cir.1977).’ ”

Jones v. State, 611 So.2d 466, 471-72 (Ala.Crim.App.1992) (emphasis added). It is not until after the accused has satisfied this burden that the State is called upon to show his predisposition beyond a reasonable doubt. Id. Finally,

“ ‘[a] trial court has broad discretion in formulating its jury instructions, providing they are an accurate reflection of the law and facts of the case. Coon v. State, 494 So.2d 184 (Ala.Cr.App.1986). When requested charges are either fairly and substantially covered by the trial judge’s oral charge or are confusing, misleading, ungrammatical, not predicated on a consideration of the evidence, argumentative, abstract, or a misstatement of the law, the trial judge may properly refuse to give such charges. Ex parte Wilhite, 485 So.2d 787 (Ala.1986).’
“Ward v. State, 610 So.2d 1190, 1194 (Ala.Cr.App.1992).”

Hemphill v. State, 669 So.2d 1020, 1021 (Ala.Crim.App.1995) (emphasis omitted).

When it refused to give the instruction, the trial court stated, “I don’t think that this is a case of an entrapment. I don’t think you’ve met the burden of proving entrapment, and I just don’t think this is an entrapment case.” (R. 108.) We agree with the trial court. Based on the evidence presented, Beason did not show persuasion or coercion on the part of the government. Rather, at most, the evidence showed that the government provided Brock with the opportunity to commit a crime and that Beason subsequently gave the crack rock to the informant. Beason’s arguments to the contrary notwithstanding,

“[ejntrapment is not a defense simply because a law enforcement officer provides the opportunity for the commission of an offense. Chillous v. State, 441 So.2d 1055 (Ala.Crim.App.1983); Tyson v. State, 361 So.2d 1182 (Ala.Crim.App.1978). The defendant must first come forward with evidence that the government induced the defendant to act. Chillous; Tyson. The fact that the buyer made initial contact with the seller is not an inducement within the contemplation of entrapment. See Johnson v. State, 501 So.2d 568 (Ala.Crim.App.1986).”

Funari v. City of Decatur, 563 So.2d 54, 55 (Ala.Crim.App.1990). Because Beason did not initially come forward with evidence that the governmental conduct created a substantial risk that the offense would be committed by a person other than one ready to commit it, the trial court properly refused to instruct the jury on entrapment.

II.

Beason also argues that the trial court erred in enhancing his sentence pursuant to § 13A-12-270, Ala.Code 1975, because the State did not present any evidence to establish that the sale occurred within three miles of a public housing project. We agree.

Section 13A-12-270, Ala.Code 1975, provides:

“In addition to any penalties heretofore or hereafter provided by law for any person convicted of an unlawful sale of a controlled substance, there is hereby imposed a penalty of five years incarceration in a state corrections facility with no provision for probation if the situs of such unlawful sale was within a three-mile radius of a public housing project owned by a housing authority.”

When Beason renewed his motion for a judgment of acquittal at the close of all of the evidence, the following occurred:

“THE COURT: As I recall the testimony, you testified that it was so many miles, one and a half miles, to Ragland High School or it was within the three-mile range. You gave an exact amount, and also you testified that it was five tenths of a mile or something to the Ragland Housing Authority.
“[DEFENSE COUNSEL]: I understood him to say a housing project.
“THE COURT: I think he said authority. Anyway, overruled.”

(R. 91.) The transcript of the trial does not support the trial court’s statement.

Ward specifically testified about the distance from the location where the sale occurred to Ragland High School. However, neither he nor any other witness testified about the distance from the location where the sale occurred to a public housing project. “Because the State did not offer proof of the location of the crime, the appellant is entitled to a new sentencing hearing. See Rule 26.6(b)(2), Ala. R.Crim. P.” Brock v. State, 697 So.2d 1197, 1198 (Ala.Crim.App.1996).

Accordingly, we affirm Beason’s conviction for unlawful distribution of a controlled substance. However, we remand this case to the trial court with instructions that it resentence Beason without application of the enhancement set forth in § 13A-12-270, Ala.Code 1975. The trial court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 42 days after the release of this opinion. The return to remand shall include a transcript of the new sentencing hearing.

AFFIRMED AS TO CONVICTION; REMANDED WITH INSTRUCTIONS AS TO SENTENCING.

WINDOM and KELLUM, JJ., concur.

WELCH, J., concurs in the result.

         Note from the reporter of decisions: On July 24, 2009, on return to remand, the Court of Criminal Appeals affirmed, without opinion.