text:
    Kristie Dawn STOCKS v. Betty STOCKS, Deborah S. Oswalt, and Michael L. Oswalt.
    2080133.
    Court of Civil Appeals of Alabama.
    June 5, 2009.

      Audrey Oswalt Strawbridge of Straw-bridge, Strawbridge & Strawbridge, L.L.C., Vernon, for appellant.
    J. Dale Lawrence of Holder, Moore, Lawrence & Langley, P.C., Fayette, for appellees.
   MOORE, Judge.

Kristie Dawn Stocks (“the mother”) appeals from a judgment entered by the Fayette Circuit Court (“the trial court”) awarding custody of one of her minor children, M.S., to Betty Stocks (“Stocks”), the child’s paternal grandmother, and awarding custody of her other minor child, T.S., to Deborah S. Oswalt and her husband, Michael L. Oswalt (“the Oswalts”), the child’s paternal aunt and uncle. We dismiss the appeal.

The judgment at issue arose from a divorce complaint that was filed by the mother in August 2004 against Michael Anthony Stocks (“the father”). In that complaint, the mother requested that she be awarded custody of M.S. and T.S. (sometimes hereinafter referred to collectively as “the children”) and child support and that the trial court make an equitable division of the parties’ property. Originally, the trial court entered a default judgment awarding custody of the children to the mother, requiring the father to pay child support in an amount in conformance with the Alabama Child-Support Guidelines, see Rule 32, Ala. R. Jud. Admin., and dividing the parties’ marital assets and debts. In October 2004, the trial court set aside that judgment on a motion filed by the father.

On March 3, 2008, the father filed an answer and a counterclaim asserting that the mother was not fit to have custody of the children; that, since September 2007, M.S. had been residing with Stocks and T.S. had been residing with the Oswalts; that the father should be awarded custody of the children; and that the children should be allowed to remain with Stocks and the Oswalts. On that same date, the trial court entered an order awarding pen-dente lite custody of the children to the father and requiring that the children continue to reside with Stocks and the Os-walts.

The mother moved the trial court to strike the father’s answer and counterclaim and to dissolve the order awarding the father pendente lite custody. The mother then amended her complaint to seek custody of the children, both penden-te lite and upon a final hearing. The mother also requested that she be awarded child support and alimony, both pendente lite and upon a final hearing, and that the trial court make an equitable division of the parties’ property. On March 7, 2008, the date set for the hearing on the mother’s motions to strike and to dissolve the pendente lite custody order, Stocks and the Oswalts moved to intervene in the action; they also filed a joint petition in which Stocks sought custody of M.S. and the Oswalts sought custody of T.S., both pendente lite and upon a final hearing, on the grounds that the mother and the father had voluntarily relinquished custody of the children to them and that the mother and the father were unfit to have custody of the children.

On March 14, 2008, the trial court awarded pendente lite legal custody of the children jointly to the mother and the father. The trial court awarded pendente lite physical custody of M.S. to Stocks and pendente lite physical custody of T.S. to the Oswalts. The trial court also awarded the mother specified unsupervised visitation with the children and ordered the mother to submit to random drug screens. Thereafter, on March 25, 2008, the trial court entered a judgment divorcing the mother and the father, but reserving all other issues. The mother then filed an answer denying all the allegations in the petition for custody filed by Stocks and the Oswalts.

On July 23, 2008, the trial court conducted a trial “on the Complaint of [the mother], Answer and Counterclaim of [the father,] and Petition for Custody of [Stocks and the Oswalts],” as well as on contempt motions that had been filed by the mother. In an order entered on October 1, 2008, the trial court determined that the mother and the father had not voluntarily relinquished custody of the children to Stocks and the Oswalts, but it also determined that both the mother and the father were unfit to have custody of the children. The trial court awarded legal and physical custody of M.S. to Stocks, and it awarded legal and physical custody of T.S. to the Oswalts. The trial court also awarded the mother specified unsupervised visitation with the children, ordered the father to pay child support in the amount of $297.50 per month to both Stocks and the Oswalts, and reserved jurisdiction to order the mother to pay child support to Stocks and the Oswalts until such time as the mother becomes employed. The trial court found that none of the parties were in contempt, and it terminated the requirement that the mother submit to random drug screens. In the order, the trial court did not rule on the mother’s request for alimony or her request for an equitable division of her and the father’s property. The mother filed her notice of appeal on November 4, 2008.

On appeal, the mother argues primarily that the trial court erred in finding her unfit and in separating the children and awarding custody of M.S. to Stocks and custody of T.S. to the Oswalts. The mother also argues that the trial court erred in denying her contempt motions. She also requests that this court award her costs and attorney fees on appeal.

“Although neither party has raised an issue regarding this court’s jurisdiction,
“ ‘ “jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.” Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987). The question whether a judgment is final is a jurisdictional question, and the reviewing court, on a determination that the judgment is not final, has a duty to dismiss the case. See Jim Walter Homes, Inc. v. Holman, 373 So.2d 869, 871 (Ala.Civ.App.1979).’
“Hubbard v. Hubbard, 935 So.2d 1191, 1192 (Ala.Civ.App.2006). See also § 12-22-2, Ala.Code 1975.
“This court has previously stated:
“ ‘ “ ‘It is a well established rule that, with limited exceptions, an appeal will lie only from a final judgment which determines the issues before the court and ascertains and declares the rights of the parties involved.’ ” Owens v. Owens, 739 So.2d 511, 513 (Ala.Civ.App.1999), quoting Taylor v. Taylor, 398 So.2d 267, 269 (Ala.1981). This court has stated:
“ ‘ “A final judgment is one that completely adjudicates all matters in controversy between all the parties.
“ ‘ “... An order that does not dispose of all claims or determine the rights and liabilities of all the parties to an action is not a final judgment. In such an instance, an appeal may be had ‘only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.’ See Rule 54(b), Ala. R. Civ. P.” ’
“Adams v. NaphCare, Inc., 869 So.2d 1179, 1181 (Ala.Civ.App.2003) (quoting Eubanks v. McCollum, 828 So.2d 935, 937 (Ala.Civ.App.2002)).”

Blankenship v. Blankenship, 963 So.2d 112, 114 (Ala.Civ.App.2007).

In the case before us, the trial court reserved jurisdiction to order the mother to pay child support upon her obtaining employment. Such an order is, in effect, a denial of child support that finally adjudicates that issue. See Parker v. Parker, 946 So.2d 480, 486 (Ala.Civ.App.2006). However, the trial court did not divide the mother and the father’s marital property or rule on the mother’s request for alimony. See Blankenship, supra (holding that failure of trial court to equitably divide marital property as requested rendered divorce judgment nonfinal), and Blythe v. Blythe, 976 So.2d 1018, 1019 (Ala.Civ.App.2007) (“Final Decree of Divorce” that did not adjudicate alimony claim held nonfi-nal). The trial court in this case also did not certify its order as final pursuant to Rule 54(b), Ala. R. Civ. P. See Blythe, 976 So.2d at 1020. Accordingly, the trial court’s October 1, 2008, order is not a final judgment, and we must dismiss the appeal.

Based on our disposition of the mother’s appeal, we deny the mother’s request for the award of costs and attorney fees.

APPEAL DISMISSED.

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

      . The father had originally filed an answer and a counterclaim in September 2004 before the default judgment was set aside.

      . The father was not named as an appellee in the mother's notice of appeal, and he has not filed a brief with this court.


source: Caselaw Access Project

author: WISE, Presiding Judge.

license: Public Domain

text:
    Audrey WILLIAMS v. STATE of Alabama.
    CR-07-0537.
    Court of Criminal Appeals of Alabama.
    Feb. 27, 2009.
    Griffin M. Shirley, Elba (withdrew 07/09/2008); and Bo Burke, Birmingham, for appellant.
    Troy King, atty. gen., and Stephanie E. Reiland, asst. atty. gen., for appellee.
   WISE, Presiding Judge.

On September 26, 2007, the appellant, Audrey Williams, pled guilty to obstruction of justice. The trial court sentenced her to serve a term of one year and one day, but suspended the sentence and placed her on probation for three years. On October 29, 2007, Williams’s probation officer filed an “Officer’s Report on Delinquent Probationer.” After conducting a hearing, the circuit court revoked her probation. This appeal followed.

Williams argues that the circuit court did not enter a written order in which it stated the evidence upon which it relied and its reasons for revoking her probation.

“It follows that the requirement of Wyatt [v. State, 608 So.2d 762 (Ala.1992),] and its associated cases — that the trial court enter a written order stating its reasons for the revocation and the evidence relied upon regardless of the state of the record — is no longer applicable. Henceforth, the Court of Criminal Appeals may determine, upon a review of the record, whether the requisite Rule 27.6(f)[, Ala. R.Crim. P„] statements are presented by that record. Thus, the Court of Criminal Appeals may examine the record and conclude that ‘oral findings, if recorded or transcribed, can satisfy the requirements of Morrissey [v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972),] when those findings create a record sufficiently complete to advise the parties and the reviewing court of the reasons for the revocation of supervised release and the evidence the decision maker relied upon.’ [United States v.] Copeland, 20 F.3d [412,] 414 [ (11th Cir.1994) ].
“We hasten to note that our holding in this case does not diminish the duty of the trial court to take some affirmative action, either by a statement recorded in the transcript or by written order, to state its reasons for revoking probation, with appropriate reference to the evidence supporting those reasons. The requirements of Wyatt will still be fully applicable in those situations where the record, for lack of transcription of the revocation hearing or for some other reason, fails to clearly and unambiguously set forth the reasons for the revocation and the evidence that supported those reasons. Thus, the requirements of Wyatt are fully applicable to the trial court’s order of revocation where the record fails to comply with Rule 27.6(f).”

McCoo v. State, 921 So.2d 450, 462-63 (Ala.2005) (emphasis added).

“In order to meet the requirements of Rule 27.6(f), as well as those of constitutional due process, it is ‘the duty of the trial court to take some affirmative action, either by a statement recorded in the transcript or by written order, to state its reasons for revoking probation, with appropriate reference to the evidence supporting those reasons.’ McCoo, 921 So.2d at 462 (emphasis added).”

Ex parte Garlington, 998 So.2d 458, 458-459 (Ala.2008).

During the revocation hearing and in its written order on the case action summary sheet, the circuit court merely stated, “Probation is revoked.” (C.R. 1, 9; R. 6.) Neither of those included an affirmative statement that adequately set forth the evidence upon which the circuit court relied and its reasons for revoking Williams’s probation. Accordingly, we must remand this case to the circuit court with instructions that it enter a written order in which it specifically states the evidence upon which it relied and its reasons for revoking Williams’s probation. 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 35 days after the release of this opinion.

REMANDED WITH INSTRUCTIONS.

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

      . Because of our disposition of this case, we pretermit discussion of any remaining claims Williams raises in her brief to this court.


author:
KELLUM, Judge.
      WISE, Presiding Judge,

text:
    Stewart Dequis SYKES v. STATE of Alabama.
    CR-07-1874.
    Court of Criminal Appeals of Alabama.
    March 20, 2009.
    Rehearing Denied April 10, 2009.
    Certiorari Denied June 12, 2009 Alabama Supreme Court 1080899.
    Glenn L. Davidson, Mobile, for appellant.
   KELLUM, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WELCH and WINDOM, JJ., concur.

WISE, P.J., dissents, with opinion.

WISE, Presiding Judge,

dissenting.

Stewart Dequis Sykes was indicted for first-degree assault, but pled guilty to discharging a firearm into an occupied vehicle. He subsequently filed a Rule 32 petition, alleging that the circuit court did not have jurisdiction to adjudicate him guilty of and sentence him for discharging a firearm into an occupied vehicle. The majority rejects the claim, relying on Gargis v. State, 998 So.2d 1092, 1099 (Ala.Crim.App.2007), in which this court stated, in part:

“The Williams[ v. State, 961 So.2d 929 (Ala.Crim.App.2006),] opinion did not address the impact of the Alabama Supreme Court’s opinion in Ex parte Seymour, 946 So.2d 536 (Ala.2006), had on cases like Williams, however.
“In light of Seymour and its progeny, the line of cases of which Williams is a part that hold that failure to allege an essential element of the charged offense constitutes a jurisdictional defect that cannot be waived is no longer the law in Alabama.”

In her dissent in Gargis, which I joined, Presiding Judge Baschab explained:

“There is a distinction between cases in which there has not been an indictment for an offense and cases in which the indictment is defective because it omits an essential element of the offense. Williams applies to the former situation, and Seymour applies to the latter. Applying the majority’s interpretation of Seymour, a defendant could be indicted for the most minor felony offense and convicted of the highest felony offense of capital murder and sentenced to death. In fact, taking the majority’s reasoning to its logical conclusion, a defendant could be convicted of an offense without ever being indicted.
“The indictment in this case was not defective. Therefore, Seymour does not apply. This is a case where the appellant was not indicted for, and therefore not on notice that he might be convicted of, disorderly conduct. Under the reasoning of Williams, Little Tony’s conviction for disorderly conduct was inappropriate. Accordingly, I respectfully dissent as to that portion of the majority opinion that purports to overrule this court’s decision in Williams, and I concur in the result as to the remainder of the opinion.”

998 So.2d at 1101 (Baschab, P.J., concurring in the result in part and dissenting in part).

I disagree with the majority’s reliance on the main opinion in Gargis. Applying the reasoning of the dissent in Gargis, after being indicted for first-degree assault, Sykes was not on notice that he might be convicted of discharging a firearm into an occupied vehicle. Therefore, his conviction and sentence for that offense were inappropriate, and he is entitled to post-conviction relief. Accordingly, I must respectfully dissent.


author: PER CURIAM.

text:
    STATE of Alabama v. Thelma E. TOOLE.
    CR-07-2189.
    Court of Criminal Appeals of Alabama.
    May 29, 2009.

      Troy King, atty. gen., and Michael G. Dean, asst. atty. gen., for appellant.
    Clay Benson, Jr., Montgomery, for ap-pellee.
   PER CURIAM.

Pursuant to Rule 15.7, Ala. R.Crim. P., the State appeals the pretrial order of the trial court dismissing the indictment charging Thelma E. Toole with obstructing justice by using a false identity, in violation of § 13A-8-194, Ala.Code 1975. On February 9, 2008, Thelma Toole was the passenger in an automobile pulled over by the police. During that traffic stop, the State claimed, she gave her correct name but provided a false date of birth and two false Social Security numbers. She then provided a military identification with a false Social Security number. Toole had an outstanding warrant for Medicaid fraud.

The indictment charged:

“The Grand Jury of Montgomery County charge that, before the finding of this indictment,
Thelma E. Toole, alias
Toole, alias
Melissa Scott, alias
Thelma Edwards Toole, alias
Thelma L. Edwards, alias
Thelma Larone Mcghee, alias
Thelma Larone Toole, alias
Thelma Louise Edwards, alias
Thelma Louise Toole, alias
Thelma Mcghee, alias
Thelma Toole, alias
Thelma L. Toole, alias
Thelma T. Edwards, alias
whose name is otherwise unknown to the Grand Jury, did knowingly use identification documents or identifying information of another person or fictitious person to avoid summons, arrest, prosecution, or to impede a criminal investigation, in violation of section 13A-8-194 of the Code of Alabama, against the peace and dignity of the State of Alabama.”

At the September 4, 2008, hearing, the following colloquy occurred:

“[THE COURT]: Where is the indictment?
“[PROSECUTOR]: This is the indictment that I have in my file.
“[THE COURT]: ... What does it say? ‘Did knowingly use identification documents or identifying information of another person.’ That’s what I’m saying.
“[PROSECUTOR]: Or fictitious person.
“[THE COURT]: Okay. I’m saying those are conclusions. What are the facts?
“[PROSECUTOR]: The facts are that the Social Security number didn’t match the name listed on the—
“[THE COURT]: But I don’t know if that’s going to be sufficient for — you have to put people on notice. I don’t necessarily know if this puts her on notice.
“[PROSECUTOR]: Yes, sir.
“[THE COURT]: Let’s see here. ‘Use of false identity to obstruct justice— elements. A person commits the crime of obstructing justice using a false identity if he or she uses identification documents’ ... I think from a constitutional standpoint, that’s a very vague statute there.
“[DEFENSE COUNSEL]: Judge, if I might interject. It’s my understanding that this identification card has her picture, the actual picture of her and her name.
“[PROSECUTOR]: But it didn’t have her Social Security number.
“[DEFENSE COUNSEL]: So the point I’m making to the Court is according to what you just read, she^—
“[THE COURT]: I’m going to dismiss it. All right.
“[PROSECUTOR]: The State would object.”

On appeal, the State argues that the trial court’s analysis in dismissing the indictment against Toole was erroneous because it found that Toole did not have sufficient notice of the charge against her and that the statute was unconstitutionally vague. The State claims that the indictment properly tracked the statutory language and was sufficient to put Toole on notice of the charge against her. The State further cites this Court’s ruling in Hyshaw v. State, 893 So.2d 1239 (Ala.Crim.App.2003), that § 13A-8-194, Ala. Code 1975, is not constitutionally vague.

This Court has previously held that the State’s failure to object at the trial level on the grounds raised on appeal precludes the State from raising those grounds on appeal. See State v. Clemons, 998 So.2d 1086 (Ala.Crim.App.2007). However, although the State raised a general objection at the conclusion of the colloquy with the trial judge, it is clear that the State was objecting to the dismissal based on aforementioned grounds by the trial judge, i.e., putting Toole on notice of the charges and the unconstitutionality of the statute.

“The critical consideration for the preservation of error for appellate review is that the trial court be sufficiently informed of the basis of the defendant’s argument. We have stated:
“ ‘ “Specific objections on motions are generally necessary before the ruling of the trial judge is subject to review, unless the ground is so obvious that the trial court’s failure to act constitutes prejudicial error.... An objection without specifying a single ground, such as, T object’, ‘objection’, or Ve object’ is not sufficient to place the trial court in error for overruling the objection.”
‘Lawrence v. State, 409 So.2d 987, 989 (Ala.Crim.App.1982) (citation omitted). The purpose of requiring a specific objection to preserve an issue for appellate review is to put the trial judge on notice of the alleged error, giving an opportunity to correct it before the case is submitted to the jury. Jennings v. State, 588 So.2d 540, 541 (Ala.Crim.App.1991).’ ”

Ex parte Parks, 923 So.2d 330, 333 (Ala.2005) (holding that Parks preserved his argument despite the statement of other specific grounds because his discussion in his argument “ ‘was more than adequate to preserve the issue Parks presented on appeal.’ ” 923 So.2d at 332). See also Ex parte Abrams, 3 So.3d 819 (Ala.2008) (holding that Abrams’s argument that there was insufficient evidence to revoke his probation based on his drug use was preserved although it was never “raised as a specific ‘objection’ or ... expressly rule[d] on” because the trial court was clearly aware of the basis of the argument and to hold otherwise “would be to elevate form over substance.” 3 So.3d at 822-23). “[T]his Court has consistently reviewed issues, though in the technical sense not preserved by a proper objection at trial, where ‘[i]t is clear that the trial court understood the basis for the objection.’ ” Toles v. State, 854 So.2d 1171, 1174 (Ala.Crim.App.2002), quoting Covington v. State, 620 So.2d 122, 127 (Ala.Crim.App.1993) (citing Ex parte McCall, 594 So.2d 628, 631 (Ala.1991); Ex parte Pettway, 594 So.2d 1196, 1200 (Ala.1991); Felder v. State, 593 So.2d 121, 122-23 (Ala.Crim.App.1991); and Marshall v. State, 570 So.2d 832, 834 (Ala.Crim.App.1990)).

In the present case, the trial court was clearly aware of the grounds of the State’s objections to the dismissal of the indictment because the grounds were those stated by the trial court. The State was arguing that the indictment should not be dismissed for the reasons given by the trial judge. This is not a situation concerning an objection to the admissibility of evidence “where the judge is left to speculate as to the position of a party and the party’s grounds for concern.” Ex parte Abrams, 3 So.3d at 823. Moreover the State argues in brief only the issues argued before and, more specifically, by the trial court. See Ex parte Parks, 923 So.2d at 335 (“This is the substance of his [Parks’s] argument on appeal. We therefore conclude that Parks did preserve his argument for appellate review .... ”). Cf. Ex parte Coulliette, 857 So.2d 793, 795 (Ala.2003) (“ ‘The motion [to suppress] did not give the trial court notice of the specific issues [Coulliette] ... raise[d] in his brief to [the Court of Criminal Appeals]. Therefore, the trial court did not have the opportunity to rectify these alleged errors .... [Coulliette’s] motion was not sufficient to preserve the issues presented by him in his brief.’ ” (quoting Ex parte Works, 640 So.2d 1056, 1058 (Ala.1994))).

Moreover, by analogy, just as a general objection is sufficient to preserve the admissibility of evidence where that evidence is patently inadmissible or illegal for any purpose, Ex parte Satterwhite, 364 So.2d 359, 360 (Ala.1978), because there were no proper grounds to justify the dismissal of this indictment in this case, a general objection to the dismissal was sufficient to preserve this matter.

“In Alabama, ‘ “[a]n indictment is sufficient if it substantially follows the language of the statute violated, provided the statute prescribes with definitiveness the elements of the offense.” ’ ”

Vaughn v. State, 880 So.2d 1178, 1193, (Ala.Crim.App.2003), quoting Travis v. State, 776 So.2d 819, 836 (Ala.Crim.App.1997), aff'd, 776 So.2d 874 (Ala.2000), quoting in turn Breckenridge v. State, 628 So.2d 1012, 1015-16 (Ala.Crim.App.1993). In this case, the indictment tracked the language of § 13A-8-194, Ala.Code 1975, and was sufficient to place Toole on notice of the nature and cause of the charge against her.

This Court in Hyshaw v. State, 893 So.2d 1239, 1242 (Ala.Crim.App.2003), held:

“The plain language of this statute clearly provides that a person may be prosecuted for using a false identity to obstruct justice when:
“1) he or she uses the identification documents or identifying information of another person or a fictitious person, and
“2) he or she does so to avoid summons, arrest, or prosecution or to impede a criminal investigation.
“Therefore, the statute adequately puts ordinary people on notice of the conduct that is prohibited. Further, because § 13A-8-194, Ala.Code 1975, applies only to actions that are done for the purpose of avoiding summons, arrest, or prosecution or to impede a criminal investigation, it does not criminalize innocent behavior. Accordingly, § 13A-8-194, Ala.Code 1975, is not unconstitutionally vague.”

In the present case, Toole faced an outstanding warrant for Medicaid fraud, and she produced identification containing false Social Security numbers and an incorrect date of birth. Because Toole was sufficiently notified of the charge against her and because § 13A-8-194, Ala.Code 1975, is not unconstitutionally vague, the circuit court’s dismissal of the indictment must be reversed and this cause remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

WISE, P.J., concurs.

WELCH, WINDOM, and KELLUM, JJ., concur in the result.

      . Toole entered a guilty plea to Medicaid fraud at the September 4, 2008, hearing.


author: KELLUM, Judge.

text:
    STATE of Alabama v. Oran Leslie ALEXANDER.
    CR-08-0408.
    Court of Criminal Appeals of Alabama.
    May 29, 2009.

      Troy King, atty. gen., and Michael G. Dean, asst. atty. gen., for appellant.
    Donald R. Jones, Jr., Montgomery, for appellee.
   KELLUM, Judge.

The State of Alabama appeals from the circuit court’s dismissal of one count of a two-count indictment. See Rule 15.7, Ala. R.Crim. P. Oran Leslie Alexander was indicted on October 10, 2008, by a Montgomery County grand jury for one count of fraudulent use of a debit card, a violation of § 13A-9-14(b), Ala.Code 1975, and one count of theft of property in the second degree, a violation of § 13A-8-4, Ala.Code 1975. Count II of the indictment, charging Alexander with theft of property in the second degree, provided:

“Oran Leslie Alexander, alias, ... whose name is otherwise unknown to the Grand Jury, did knowingly obtain or exert unauthorized control over a debit card, a better description of which is unknown to the Grand Jury, the property of Sean Thorn, of some value in excess of $500.00 dollars, with the intent to deprive the owner of the property, in violation of section 13A-8-4 of the Code of Alabama, against the peace and dignity of the State of Alabama.”

On December 9, 2008, Alexander appeared before the circuit court to plead guilty to the offenses charged in the indictment and to enroll in the pretrial-diversion program. During the guilty-plea proceedings, the State averred that the evidence would show that Alexander purchased less than $500 worth of gasoline using his roommate’s debit card without the roommate’s permission. After the State offered a factual basis for the second count of the indictment, defense counsel moved for the dismissal of the charge of theft of property in the second degree on the ground that the indictment misstated the value of the property by stating “some value in excess of $500.00 dollars.” Defense counsel argued that the amount of goods purchased on the victim’s debit card actually totaled less than $500. The circuit court subsequently dismissed the second count of the indictment charging Alexander with theft of property in the second degree, finding the second count of the indictment “faulty.”

The State contends on appeal that the circuit court erred in dismissing the second count of the complaint charging Alexander with theft of property in the second degree because, it argues, the alleged dollar value for the debit card that appeared in the indictment was mere surplusage and did not prejudice Alexander. Alexander concedes that the State’s contention is correct.

Alexander’s case involves only issues of law and the application of the law to the undisputed facts. Thus, our review is de novo. See, e.g., Ex parte Key, 890 So.2d 1056, 1059 (Ala.2003); State v. Hill, 690 So.2d 1201, 1203-04 (Ala.1996); State v. Otwell, 733 So.2d 950, 952 (Ala.Crim.App.1999).

Alexander was charged in Count II of the indictment with theft of property in the second degree as defined in § 13A-8-4; that Code section provides, in pertinent part, as follows:

“(a) The theft of property which exceeds five hundred dollars ($500) in value but does not exceed two thousand five hundred dollars ($2,500) in value, and which is not taken from the person of another, constitutes theft of property in the second degree.
“(c) The theft of a credit card or a debit card, regardless of its value, constitutes theft of property in the second degree.”

§ 13A-8-4, Ala. Code 1975.

The State acknowledges that the inclusion of the allegation that the amount charged to the debit card in excess of $500 was incorrect. However, the State argues that the inclusion of that language does not warrant the dismissal of count II of the indictment. We agree.

Rule 13.2(d), Ala. R.Crim. P., states that “[unnecessary allegations [in an indictment] may be disregarded as surplus-age, and, on motion of the defendant, shall be stricken by the court if prejudicial or prolix.” This Court has repeatedly recognized that “ ‘unnecessary averments in an indictment do not impair its validity, although they may hold the prosecution to proof of them.’ ” Rogers v. State, 539 So.2d 451, 453 (Ala.Crim.App.1988) (quoting Johnson v. State, 405 So.2d 149, 153 (Ala.Crim.App.1981)). “‘As long as the remaining portions of the indictment validly charge a crime, the existence of surplus-age in the indictment will not effect the validity of the conviction.’ ” Rogers, 539 So.2d at 453 (quoting Johnson, 405 So.2d at 153).

In Johnson v. State, 460 So.2d 244 (Ala.Crim.App.1984), the defendant was convicted of robbery in the first degree. On appeal, he challenged, among other things, the indictment, arguing that it was so unclear that it did not sufficiently apprise him of what he was being called upon to defend. 460 So.2d at 247. The indictment charged that the defendant “ ‘did in the course of committing a theft of cigarettes, the specific determination(s) of said currency being unknown to the Grand Junj, of the approximate aggregate value of one hundred eight four dollars ($184.00)....’” Johnson, 460 So.2d at 247. The defendant argued that the reference to the theft of cigarettes followed by a statement that the “specific denomination of said currency” raised the question of whether he was being charged with theft of cigarettes or theft of money. Id. Recognizing that the language in the indictment was faulty, this Court held that the objectionable portion of the indictment was immaterial in a charge of robbery. This Court concluded that, excluding the faulty language, so long as the remaining portions of the indictment were valid, the existence of the sur-plusage in the indictment did not affect the validity of the conviction. 460 So.2d at 247.

In the instant case, the inclusion in the indictment of the statement “of some value in excess of $500.00 dollars” was mere surplusage, given the remaining allegations contained in the indictment. The indictment alleged that Alexander obtained or exerted unauthorized control over a debit card with the intent to deprive the owner of the property. This allegation alone is sufficient under § 13A-8-4(c) to sustain the charge of theft of property in the second degree. Further, Alexander was not prejudiced by the inclusion of the surplusage in the indictment.

Based on the foregoing, the circuit court erroneously granted Alexander’s motion to dismiss the second count of the indictment. Accordingly, we reverse the circuit court’s judgment and remand this case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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


text:
    STATE of Alabama v. Patrick Terranzo MALONE.
    CR-08-0301.
    Court of Criminal Appeals of Alabama.
    May 29, 2009.

      Troy King, atty. gen., and Andy Scott Poole, asst. atty. gen., for appellant.
    Donald Alan Chapman, Decatur, for ap-pellee.
   WISE, Presiding Judge.

The appellee, Patrick Terranzo Malone, was indicted for first-degree unlawful possession of marijuana and unlawful possession of drug paraphernalia. Malone moved to suppress evidence law enforcement officers seized pursuant to the execution of a search warrant. After conducting a hearing, the trial court granted Malone’s motion to suppress. This appeal by the State followed.

The State argues that the trial court erroneously granted Malone’s motion to suppress the evidence law enforcement officers seized pursuant to the execution of a search warrant. Specifically, it contends that the trial court erroneously found that the affidavit in support of the issuance of the search warrant did not establish that marijuana would be found in Malone’s house. During the suppression hearing, Malone asserted that the affidavit did not establish probable cause to support the issuance of the search warrant because it did not set forth sufficient information to establish that marijuana would be found in his house. At the conclusion of the suppression hearing, the trial court stated:

“I’m going to grant the motion. It does not appear on the face of the affidavit set forth that would provide probable cause to believe that drugs were in this house as opposed to any other place, i.e., his car.”

(R. 22.)

In State v. Hill, 690 So.2d 1201, 1203-04 (Ala.1996), the Alabama Supreme Court stated the following with regard to standards of review to be applied when reviewing a trial court’s ruling on a motion to suppress:

“As a preliminary matter, we note that there has been some debate regarding the applicable standard of appellate review. In its unpublished memorandum, the Court of Criminal Appeals showed great deference to the trial court’s decision to suppress the evidence of the cocaine and marijuana. It stated:
“ ‘[A] trial court’s ruling on a motion to suppress will not be disturbed unless it is “palpably contrary to the weight of the evidence.” Patterson v. State, 659 So.2d 1014 (Ala.Cr.App.1995). The trial court is in a far better [sic] than this court to rule on the merits of a motion to suppress. Sullivan v. State, 23 Ala.App. 464, 127 So. 256 (1930). The trial court’s ruling [on] the motion to suppress was not palpably wrong.’
“The State contends that the deference of the Court of Criminal Appeals to the judgment of the trial court was unwarranted. It claims that an appellate court should review de novo the trial court’s finding that ‘reasonable suspicion’ was lacking, because the facts in the case are not in dispute. We agree.
“The trial judge made his ruling following a hearing at which he heard oral testimony only from Officer Bailey. We stated in Ex parte Agee, 669 So.2d 102 (Ala.1995):
“ ‘Where evidence is presented to the trial court ore tenus in a nonjury case, a presumption of correctness exists as to the court’s conclusions on issues of fact; its determination will not be disturbed unless clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. Odom v. Hull, 658 So.2d 442 (Ala.1995). Hotvever, when the trial court improperly applies the laio to the facts, no presumption of correctness exists as to the court’s judgment. Ex parte Board of Zoning Adjustment of the City of Mobile, 636 So.2d 415 (Ala.1994).’
669 So.2d at 104. ‘Where the evidence before the trial court was undisputed the ore tenus rule is inapplicable, and the Supreme Court will sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court’s application of the law to those facts.’ Stiles v. Brown, 380 So.2d 792, 794 (Ala.1980) (citations omitted).”

(Emphasis added.)

“When determining probable cause, ‘[a]n issuing judge’s determination that sufficient probable cause existed to support the warrant is “entitled to great deference and is conclusive in the absence of arbitrariness,” ’ Wamble v. State, 593 So.2d 109, 110 (Ala.Cr.App.1991), quoting United States v. Pike, 523 F.2d 734 (5th Cir.1975), cert. denied, 426 U.S. 906, 96 S.Ct. 2226, 48 L.Ed.2d 830 (1976), and a reviewing court need determine only that a magistrate or judge had a ‘substantial basis’ for concluding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983); Sullivan v. State, 651 So.2d 1138 (Ala.Cr.App.1994); McCray v. State, 501 So.2d 532 (Ala.Cr.App.1986). This court has previously stated:
“ ‘The present test for determining whether an informant’s tip establishes probable cause is the flexible totality-of-the-circumstances test of Illinois v. Gates, [462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)]. The two prongs of the test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), involving informant’s veracity or reliability and his basis of knowledge, “are better understood as relevant considerations in the totality of circumstances analysis that traditionally has guided probable cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.” Gates, [462 U.S. at 223,] 103 S.Ct. at 2329.... Probable cause involves “a practical, common sense decision whether, given all the circumstances, ... including the ‘veracit/ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Gates, [462 U.S. at 238,] 103 S.Ct. at 2332.’
“Pugh v. State, 493 So.2d 388, 392 (Ala.Cr.App.1985), aff'd, 493 So.2d 393 (Ala.1986).
“ ‘Reference to a confidential informant’s “track record” of past performances is a viable means of determining his credibility.’ Reese v. State, 456 So.2d 341, 349 (Ala.Cr.App.1982), cert. denied, 464 U.S. 838, 104 S.Ct. 127, 78 L.Ed.2d 124 (1983). See also Moynes v. State, 568 So.2d 392, 393 (Ala.Cr.App.1990); Carter v. State, 435 So.2d 137, 139 (Ala.Cr.App.1982).... In addition, corroboration supplied by the personal observations of the police officers lends support to the reliability and veracity of the informant. See Moynes, 568 So.2d 392; Dale v. State, 466 So.2d 196 (Ala.Cr.App.1985).”

Money v. State, 717 So.2d 38, 42-43 (Ala.Crim.App.1997).

‘“[T]he facts supporting the warrant must show probable cause to believe that the criminal objects are presently in the place to be searched, Durham v. United States, 403 F.2d 190, 193 (9th Cir.1968), and “it cannot follow in all cases, simply from the existence of probable cause to believe a suspect guilty, that there is also probable cause to search his residence.” United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir.1970).
“ ‘But it is also clear that interpreting a search warrant in the proper “commonsense and realistic fashion,” United States v. Ventresca, supra, 380 U.S. [102] at 108, 85 S.Ct. 741, [745, 13 L.Ed.2d 684] may result in the inference of probable cause to believe that criminal objects are located in a particular place to which they have not been tied by direct evidence.’ United States v. Velenzuela, 596 F.2d 824, 828 (9th Cir.), cert. denied sub nom. Lizarraga v. United States, 441 U.S. 965, 99 S.Ct. 2415, 60 L.Ed.2d 1071 (1979).
“... ‘[T]he nexus between the objects to be seized and the premises searched can be established from the particular circumstances involved and need not rest on direct observation.’ United States v. Lockett, 674 F.2d 843, 846 (11th Cir. 1982).
“ ‘Controlled substances are of considerable value on the street, much sought after by users, and, unless kept in a safe place, subject to theft. Wide experience over the years has demonstrated that such items are usually kept in a dealer’s place of residence and under constant surveillance or supervision. The defendant was obviously a dealer. He had “pounds” of marijuana. Such a quantity would not be carried on his person or left unprotected in an automobile. Where then does logic and common sense dictate that it would be kept? There is only one answer, his residence.’ State v. Bernth, 196 Neb. 813, 246 N.W.2d 600, 602 (1976), cert. denied, 430 U.S. 948 [97 S.Ct. 1587, 51 L.Ed.2d 797] (1977).
“See W. LaFave, 1 Search And Seizure § 3.7(d) (1978).
“In assessing the adequacy of a search warrant affidavit, ‘[t]he focus of judicial inquiry should not be upon a “grading of the paper” of the affiant, but rather, should be based upon whether the constitutional rights of the party subject to the search will be violated if the warrant is issued.’ United States v. Sorrells, 714 F.2d 1522, 1528 (11th Cir.1983).”

Gord v. State, 475 So.2d 900, 905 (Ala.Crim.App.1985).

In his affidavit in support of the issuance of the search warrant, Officer Matthew Chance of the Decatur Police Department stated:

“My name is Matthew Chance and I am Thirty-Two years of age and a resident of Limestone County, Alabama. I am employed as a Police Officer for the City of Decatur, and have been so employed for approximately seven years.
“Your affiant offers the following facts and information in support of his belief that probable cause exists for the issuance of a search warrant, to-wit:
“During the years of 2006 and 2007, members of the Decatur Police Department’s Organized Crime Unit have been receiving information from numerous different sources about Patrick Malone selling quantities of marihuana throughout the City of Decatur, Alabama. Your affiant has met with informants that have provided information about Patrick Malone meeting at local businesses when selling marihuana as a means of preventing law enforcement from knowing where Malone is storing and delivering the marihuana from.
“Within the past forty eight hours, your affiant met with a confidential and reliable informant at a secure location. Your affiant searched the person of the informant and determined that the informant had no controlled substances on their person. Your affiant also searched the vehicle the informant would be driving and determined the vehicle contained no controlled substances. Your affiant then gave the informant a quantity of money to purchase a quantity of marihuana from Patrick Malone. Sergeant Faron White then followed the informant directly to a local business in the City of Decatur, Alabama.
“Your affiant then went to the above described residence and began conducting surveillance. Your affiant witnessed Patrick Malone leave the residence in a vehicle and drive directly to the predetermined location where the informant was waiting.
“Sergeant Faron White witnessed the informant meet with Patrick Malone at the predetermined location. The informant and Patrick Malone then departed in separate directions. Sergeant White then followed the informant to a secure location where the informant handed over a quantity of marihuana and stated that the informant had just purchased it from Patrick Malone. The informant also stated that the informant [had] seen Patrick Malone in possession of additional quantities of marihuana packaged for sale.
“Your affiant followed Patrick Malone back to the above described residence after the transaction with the informant.”

(C.R. 16-18.)

In this case, Chance saw Malone leave his house before the sale and drive directly to the location of the sale. Further, Chance asserted that the confidential informant said that Malone had additional quantities of marijuana packaged for sale. Finally, Chance asserted that he followed Malone back to the residence after the sale had been completed. Therefore, based on the totality of the circumstances, the information contained in Chance’s affidavit established a nexus between the location of the controlled buy and Malone’s house and established probable cause to support the issuance of the search warrant.

Moreover, “[e]vidence obtained by officers acting in objectively reasonable reliance on a warrant issued by a neutral and detached magistrate need not be excluded, even if the warrant is ultimately found to be invalid. United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).” Tolbert v. State, 718 So.2d 731, 734 (Ala.Crim.App.1997).

“In Leon, the United States Supreme Court recognized four circumstances in which the good-faith exception was inapplicable: (1) when the magistrate or judge relies on information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth; (2) when the magistrate wholly abandons his judicial role and fails to act in a neutral and detached manner; (3) when the warrant is based on an affidavit so lacking [in] indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) when the warrant is so facially deficient that the executing officer cannot reasonably presume it to be valid.”

Straughn v. State, 876 So.2d 492, 500 (Ala.Crim.App.2003).

The record does not indicate that the affidavit contained false information or that the issuing judge did not act in a neutral and detached manner. Also, the affidavit was not so lacking in indicia of probable cause and the warrant was not so facially deficient that officers could not have reasonably relied upon it. Because the officers relied upon the search warrant in good faith, the evidence they seized pursuant to that warrant was admissible even if the search warrant was not valid.

For these reasons, the trial court erroneously granted Malone’s motion to suppress the evidence law enforcement officers seized pursuant to the search warrant. Accordingly, we reverse the trial court’s judgment and remand this case for proceedings that are consistent with this opinion.

REVERSED AND REMANDED.

WELCH and WINDOM, JJ., concur.

KELLUM, J., concurs in the result.


author: WISE, Presiding Judge. WELCH, Judge,

text:
    Destry Cord McKINNEY v. STATE of Alabama.
    CR-07-1983.
    Court of Criminal Appeals of Alabama.
    May 29, 2009.
    John Michael Aaron, Alabaster, for appellant.
    Troy King, atty. gen., and Audrey K. Jordan, asst. atty. gen., for appellee.
   WISE, Presiding Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WINDOM and KELLUM, JJ., concur.

WELCH, J., dissents, with opinion.

WELCH, Judge,

dissenting.

Destry Cord McKinney appealed from the circuit court’s denial of his Rule 32, Ala. R.Crim. P., petition. The petition sought postconviction relief from his August 12, 2004, conviction for murder made capital because it was committed by the use of a deadly weapon while the victim was in a vehicle, a violation of § 13A-5-40(a)(17), Ala.Code 1975, and his September 24, 2004, sentence to imprisonment for life without the possibility of parole. We affirmed his conviction in an unpublished memorandum and issued a certificate of judgment on September 27, 2005. See McKinney v. State, (CR-04-0044) 945 So.2d 1096 (Ala.Crim.App.2005) (table). McKinney timely filed this Rule 32 petition. After conducting evidentiary hearings on July 24, 2007, and January 29, 2008, the circuit court issued a detailed order denying the petition. That order reads, in part, as follows:

“38. [McKinney’s] claim of newly discovered evidence relates to an issue involving the pants that he wore on the date of the incident in question. When [McKinney] was booked in the Talladega County Jail his personal effects and belongings were inventoried and maintained at the Talladega County Jail pending his incarceration. [McKinney’s] pants were seized by investigators for evidentiary testing purposes. The pants were initially tested by an expert who issued a report. [McKinney] and his attorneys viewed the pants and other evidence on more than one occasion. [McKinney] and his attorneys had knowledge of cuttings from the pants and reports of testing prior to trial. [McKinney] and his attorneys were cognizant of the fact that [McKinney] alleged that he was hit by the victim’s vehicle and that his leg was injured. [McKinney] testified at trial and his testimony clearly warranted a self defense charge that was given the jury in this case. The jury rejected [McKinney’s] theory of self defense and his theory that he was not guilty.
“39. Prior to trial, and after hearing relating to discovery, the Court entered an order dated 20th day of March 2003 making the following findings:
“ ‘That counsel for [McKinney] has requested that the District Attorney forward to Larry Hughes[] at the Department of Forensic Sciences the pants of [McKinney], and any cuttings from the pants of [McKinney], to compare any blood that might be on the pants or cuttings to the known blood of [McKinney], Destry McKinney.’
“The pants were submitted to the laboratory for additional testing, and the report clearly indicated that the pat of blue corduroy slacks was received with a large defect in the leg at the cuff area. As stated hereinabove, [McKinney] and counsel for [McKinney] were allowed to inspect the pants on numerous occasions prior to trial and had a copy of all reports from the laboratory. There is no evidence whatsoever that the District Attorney had knowledge of the cloth cutting that was later discovered with [McKinney’s] personal effects at the Tal-ladega County Jail.
“40. Subsequent to the jury verdict, a member of [McKinney]’s family obtained his personal effects from the Talladega County Jail. Contained in the personal effects was a piece of cloth that appeared to have been cut from [McKinney’s] pants. The cutting contained a stain that appeared to be blood. The Court took this issue up in the motion for new trial as evidenced by the Court’s order that is attached hereto and marked as Exhibit ‘A.’ The blood on the pants was subsequently tested and was that of [McKinney]. The test was performed after the Court ruled on [McKinney’s] motion for a new trial.
“41. [McKinney] contends that the blood that was on the cutting from his pants is newly discovered evidence that justifies relief in this case. Subsection (e) of Rule 32.1 of the Alabama Rules of Criminal Procedure provides as follows:
‘Newly discovered material facts exist which require that the conviction or sentence be vacated by the court, because:
“ ‘1. The facts relied upon were not known by the petitioner or the petitioner’s counsel at the time of trial or sentencing or in time to file a posttrial motion pursuant to Rule 24, or in time to be included in any previous collateral proceeding and could not have been discovered by any of those times through the exercise of reasonable diligence;
“ ‘2. The facts are not merely cumulative to other facts that were known.
“ ‘3. The facts do not merely amount to impeachment evidence;
“ ‘4. If the facts had been known at the time of trial or of sentencing, the result probably would have been different; and
“ ‘5. The facts establish that the petitioner is innocent of the crime for which the petitioner was convicted or should not have received the sentence that the petitioner received.’
“42. Justice Maddox stated the following in his book, Alabama Rules of Criminal Procedure, Vol. 2, 4th ed, 2004. p. 1276-1277, concerning newly discovered evidence:
“ ‘The Rule requires that the “newly discovered material facts” were not known to the petitioner or his counsel during petitioner’s trial, sentencing, or within time to file a post trial motion pursuant to Rule 24 or within time to have been included in a previous collateral proceeding, and could not have been discovered by any of those times through the exercise of reasonable diligence. In addition, the facts cannot be merely cumulative; (they must not merely amount to impeachment evidence); and the facts, had they been known at the time of trial, must show that the “result probably would have been different”; and “[t]he facts [must] establish the petitioner is innocent of the crime for which petitioner was convicted or should not have received the sentence that the petitioner received.” ... Clearly subsection (e) ... places a heavy burden on a petitioner when the ground is “newly discovered material evidence.” ’
“43. [McKinney] testified that he does not know how the cloth cutting was placed with his personal belongings that were inventoried at the Talladega County Jail. [McKinney] testified that if the jury had known about his blood being on his pants that he would have been found not guilty and that it would have shown the jury that he was injured by the vehicle and that he killed the victim in self defense. It has not been sufficiently explained to this court who placed the cloth cutting into [McKinney’s] possessions at the county jail and it would be mere speculation on the part of this court to determine from the evidence presented the person or persons that placed the cloth in with his personal belongings.
“44. The Court set forth hereinabove testimony cited by the Alabama Criminal Court of Appeals in its [unpublished memorandum]. The Court did that for the purpose of evaluating the testimony so as to ascertain whether or not the cloth cutting and the test performed post-conviction amounts to newly discovered evidence that would mandate this Court granting [McKinney] relief for newly discovered evidence. It is clear that [McKinney] and the victim had numerous altercations on the date of the incident in question. The testimony is clear that the victim drove the car toward [McKinney] on more than one occasion prior to the final incident and [McKinney] was always able to avoid any contact by either jumping or getting out of the way of the vehicle. The testimony bears out that [McKinney] had a gun in his hand and was walking up the driveway when he contends that the victim was coming at him in her vehicle. [McKinney] testified that he pointed the gun at the victim and fired the pistol. [McKinney] testified in the Rule 32 hearing that he fired the pistol at about the same time that the car struck him in the leg. [McKinney] testified at trial that the vehicle hit him in his left leg, he was injured, and that he fired in self defense. The State of Alabama introduced at trial a photograph of the front portion of the vehicle that contained a stain consistent with blood. Dr. Joseph Embry, the forensic pathologist, testified that the victim had a gunshot wound through her neck and upper back and injuries to her face, hands, chest and abdomen indicating that the bullet hit something before it hit the victim. Mitch Rector, the firearms and tool marks examiner, testified that he examined the victim’s clothing: that he did not find any stippling on the victim’s clothing but he did find gunpowder debris in a sweeping of the victim’s sweatshirt. Mitch Rector testified that the farthest distance he had ever seen gunshot residue was between five and seven feet from the muzzle of the gun. Based upon that testimony, and the testimony of [McKinney], it is clear that [McKinney], when he fired the gun, was in close proximity to the windshield of the vehicle and the person of the victim. The expert testimony from the State of Alabama would have been consistent with [McKinney’s] testimony that when he fired the pistol he was directly in front of the vehicle. [McKinney] testified that his leg was injured and that he was subsequently treated. [McKinney] contends that his rights were prejudiced by the trial jury not receiving as evidence testing of his pants to show that his blood was on the pants.
“45. The Court finds that the cutting of the cloth from [McKinney’s] pants could have been discovered by [McKinney] and counsel for [McKinney] through the exercise of reasonable diligence. This Court ordered that the pants be tested a second time prior to trial. The report from the lab clearly indicated that when the pants reached the lab it had a defect. [McKinney] and counsel for [McKinney] inspected the pants on at least two occasions. The fact that a posttrial test on the pants indicated [McKinney’s] blood was on his pants was merely cumulative to other facts that were known and presented to the jury. It is obvious from the testimony at trial that the pistol was no more than five or seven feet from the victim when it was fired and that gunpowder was transferred through the front windshield onto the person of the victim. [McKinney] has not shown to the Court that the result of the trial probably would have been different if the jury had known about the blood on his pants. The jury rejected the self-defense theory. [McKinney] in this case has not presented facts that establishes [McKinney] is innocent of the capital offense of murder as charged in the indictment in this case. Therefore, this Court finds that the cloth cutting and the subsequent test confirming that his blood was on the pants does not rise to the level of newly discovered evidence that would warrant the granting of a new trial and the granting of Rule 32 relief.”

(C.R. 106-13.)

McKinney appealed, arguing, as he did in his petition, that newly discovered evidence exists and that the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), because, for reasons unexplained in the record, exculpatory evidence in the custody of the State was withheld from testing by the Department of Forensic Sciences (“DFS”).

The circuit court’s order provides a good general summary of the facts. For purposes of this writing I will add what I believe to be a few additional relevant facts.

On February 6, 2000, McKinney shot Stevelynne Seals while Seals was seated in the driver’s seat of her automobile. McKinney asserted that the shooting was in self-defense because, he said, he shot Seals as she attempted to run him over with her car and that as he was struck by the car he fired his weapon. He claimed that his left leg was injui’ed by the blow from the car. There was a bloodstain on the front bumper of Seals’s vehicle. However, this stain was not tested; thus, its source was not determined. Evidence regarding the presence of a bloodstain on the bumper of Seals’s car and forensic evidence concerning the details of the shooting were consistent with McKinney’s claim of self-defense.

Seals’s blood got on the blue corduroy pants being worn by McKinney when McKinney removed Seals from her vehicle and placed her in his truck for transport to the hospital. McKinney was arrested on February 6, 2000. At 5:50 p.m. on that date, McKinney gave his clothes to Captain Jimmy Kilgore of the Talladega Sheriffs department. McKinney claimed that his blue corduroy pants were “entirely intact” when he gave them to a Sheriffs deputy. (Supp.Rec. R. 83.) State’s exhibits 125 through 128, photographs showing McKinney’s pants legs at the time of his arrest, were presented by the defense as evidence that the pants were intact at the time of his arrest. (Supp.Rec. R. 83, 85.) The State did not dispute McKinney’s assertion that the photos failed to depict a defect in the pants. McKinney testified at the Rule 32 hearing that his pants “were not defective in any way when [he] pulled them off.” (Supp.Rec. R. 92-93.) The pants remained in the custody and control of the State of Alabama until after trial. Also, on February 6, 2000, at 7:56 p.m., a Sgt. Rumbl of the Talladega Sheriffs Department placed a piece of blue corduroy cloth — cloth apparently taken from McKinney’s pants — in an envelope containing McKinney’s personal property. This envelope was sealed and was kept in the custody and control of the Talladega County Sheriffs Department until after trial. McKinney stated that his personal-property envelope was not presented to him and he did not sign an inventory receipt. A jail official testified at the motion for a new trial that the personal-property envelope provided a place for McKinney’s signature. The official stated that inmates are asked to sign the envelope containing their personal property to confirm its contents. The jail official did not know why McKinney had not signed the envelope.

Defense counsel testified at the Rule 32 hearing that he did see the pants before trial and that he was aware that the pants had been cut and parts removed. However, counsel did not assume that cuttings from the pants were missing. He assumed that the pants and all cuttings had been tested in compliance with the trial court’s order of March 20, 2003. The test results failed to show the presence of McKinney’s blood.

During McKinney’s trial, the prosecution argued to the jury that because there was no blood on McKinney’s pants, he could not have been struck by Seals’s car as he claimed and that the blood on the front of Seals’s car, which had not been preserved for testing, could not have been McKinney’s blood. Moreover, because there was no blood, McKinney was not being truthful and could not be trusted.

Following a guilty verdict, McKinney’s family went to the jail to get McKinney’s personal belongings. The envelope sealed by Sgt. Rumbl was opened and the contents removed. At this time, McKinney discovered that the State had not submitted the blue cloth for forensic testing. McKinney filed a motion for a new trial, which was denied after a hearing. However, the trial court granted McKinney’s motion to have the blue cloth tested by the DFS. The circuit court found that the test result revealed that blood on the blue cloth was McKinney’s blood. Based on those results, McKinney filed the instant Rule 32 petition claiming that newly discovered evidence entitled him to relief.

The majority found, as did the circuit court, that the blue cloth was not newly discovered evidence as that term is defined under Rule 32.1(e), Ala. R.Crim. P. The majority, as did the circuit court, emphasized the fact that the defense had access to the pants before trial and saw that a section of the pants was missing, yet made no inquiry into this fact. The majority also excuses McKinney’s Brady claim because, it reasons, there was no showing that the State or any of its agents intentionally or inadvertently withheld the cloth. Additionally, the majority found that even if the jury had heard that McKinney’s blood was on his pants, the result of the trial probably would not have been different.

I believe the majority misses the point. The issue is not whether or when McKinney knew that a section of his pants was missing — it appears that he did know this — the issue is whether McKinney should have known that the State had placed the missing piece of cloth with McKinney’s personal property in an envelope and locked it away for safekeeping. Moreover, although not the subject of this writing, I wish to not that I disagree with the majority’s Brady analysis. “ ‘[Tjhere are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.’ ” Wilson v. State, 874 So.2d 1145, 1149 (Ala.2003)(emphasis added), quoting Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286. I also wish to note that I disagree with the majority’s finding that the withheld evidence would not have changed the result of the trial. I do not believe that the evidence negating self-defense was so strong as to allow this finding.

I believe that it is too high a burden to expect the defense to assume that the cloth at issue was missing. Moreover, even if the defense knew it was missing, I do not believe that the defense would have expected to find it sealed in McKinney’s personal-property envelope. No reasonable person would expect an officer of the State to seal a piece of evidence in a defendant’s personal-property envelope. There was no testimony indicating that McKinney actually saw his belongings being put in an envelope, and he did not sign the envelope to acknowledge the inventory of its contents. We cannot assume that McKinney had knowledge that the cloth was locked away with his personal belongings, absent some testimony to that effect. There is no reason McKinney or his counsel should expect a State’s agent to separate from his pants a piece of cloth cut from the pants, which could obviously be evidence, then place the piece of cloth in an envelope with personal property for storage and keep it secreted from access by either the State or the defense until after trial.

Most importantly, the defense asserted by McKinney was self-defense. When the issue of self-defense is raised, the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense lies with the State. Booker v. State, 645 So.2d 355 (Ala.Crim.App.1994). The decision to accept or reject the credibility of the defendant’s evidence of self-defense falls on the trier of facts. Brooks v. State, 630 So.2d 160 (Ala.Crim.App.1993). The presence of blood on McKinney’s pants establishes a solid reasonable ground to doubt that the State proved beyond a reasonable doubt that McKinney was not acting in self-defense when he shot Seals. Moreover, it negates the disparaging remarks made by the prosecution during closing arguments regarding the lack of evidence supporting McKinney’s version of the facts and McKinney’s lack of truthfulness. I believe the jury might not have rejected McKinney’s theory of self-defense had it known that his blood was on his pants. If the jury agreed that the State failed to disprove self-defense beyond a reasonable doubt, then McKinney has shown actual innocence, i.e., self-defense would result in an acquittal. Thus, I believe McKinney met all the requirements for newly discovered evidence set forth in Rule 32.1(e), Ala. R.Crim. P.

Therefore, I must respectfully dissent with the majority’s affirmance of the circuit court’s ruling.

      . Hughs's name is also spelled "Huys” in the record.