text:
    Dexter BROWN and Kira Dodds v. K & M TREE SERVICES, INC.
    2160903
    Court of Civil Appeals of Alabama.
    February 9, 2018
    Garrett Dennis of Alexander Shunnarah Personal Injury Lawyers, Huntsville, for appellants.
    William F. Smith II and Tracey C. McDonald of Vernis & Bowling of Birmingham, LLC, Birmingham, for appellee.
   THOMAS, Judge.

Dexter Brown and Kira Dodds appeal a judgment as a matter of law ("JML") entered by the Jefferson Circuit Court ("the trial court") in favor of K & M Tree Services, Inc. ("K & M"). We reverse the trial court's judgment and remand the cause for further proceedings.

Background

On February 23, 2016, Brown and Dodds filed a complaint in the trial court against K & M, Michael Phillips, Access Insurance Company, and fictitiously named defendants. In relevant part, Brown and Dodds alleged that, while driving a vehicle owned by K & M, Phillips had negligently and wantonly struck their vehicle, thereby causing them serious injury, and that K & M was consequently liable based on the theories of respondeat superior and negligent entrustment. On March 28, 2016, K & M answered the complaint, generally denying the allegations and asserting various defenses.

On July 13, 2016, Brown and Dodds moved for a default judgment against Phillips. The trial court entered an order granting the motion on August 10, 2016, and indicated in its order that damages would be determined at a later date. Upon a motion of Brown and Dodds, the trial court dismissed Access Insurance Company from the action on July 22, 2016. The trial court conducted a jury trial on May 2, 2017, at which Phillips did not appear. The relevant evidence presented to the jury at trial revealed the following.

The vehicle accident in question occurred on August 7, 2014, at around 9:00 p.m. It is undisputed that, at that time, Phillips was employed by K & M and was driving a truck owned by K & M when it struck from behind the vehicle transporting Brown and Dodds. The collision caused damage to both vehicles but did not render either inoperable. The events following the accident are disputed.

According to Dodds, she, Brown, and Phillips exited the vehicles to verify that no one had been seriously injured. She testified that Brown and Phillips had a conversation, during which Phillips reportedly said that he had been "on his way to get his boss." She stated that Phillips then began telling Brown "his life story," specifically informing Brown, she said, that he had struggled with "a drug problem ... and that he was just going to be in trouble." At some point, Dodds said, Phillips also made a telephone call and told her afterward that he had been speaking with his wife during the call. Dodds said that the police arrived approximately 10 to 15 minutes after the accident occurred and completed a report.

Dodds testified that, approximately 15 to 20 minutes after the police had arrived at the scene, the owner of K & M, Kenneth Malone, also arrived, while the police were still present. According to Dodds, after exiting his vehicle, Malone reportedly addressed Phillips and stated: "You need to learn how to F'ing drive." She testified that Malone later asked if she had been injured and that Malone and "another guy" inspected the damage to her vehicle and to the vehicle owned by K & M.

Dodds stated that the police waited for Malone to arrive and then left the scene of the accident. After the police left, Dodds said, Phillips and Malone got into the vehicle owned by K & M and Malone began to drive the vehicle away from the scene of the accident. She said that Malone appeared to be upset with Phillips. Dodds testified that, as he was leaving, Malone stopped the vehicle and Phillips got out of the vehicle and began walking toward a fuel station. Brown and Dodds then left the scene of the accident and went to an emergency room.

Brown also testified and corroborated much of the testimony elicited from Dodds. Brown agreed that Phillips had told him "his life story," explaining, Brown said, that he "had been on drugs before" but was presently "clean." Brown also agreed that the police were still present when Malone arrived. He agreed that Malone appeared to be mad at Phillips upon his arrival and that he had observed Malone and Phillips speaking with the police.

Brown also described Malone's departure from the scene in a similar fashion as Dodds, although he admitted to testifying during his deposition that Phillips had left the scene "with the other guy," as opposed to Malone. Brown clarified: "[Phillips] got in the truck with one of them, and they pulled off, and they dropped him off at the end of the street. It was both of them there. He got in the truck with one of them, so." He agreed, however, that Phillips had exited the vehicle owned by K & M as the vehicle was leaving the scene of the accident and that the driver had left Phillips on foot near a fuel station. Brown did not testify about the comment that Dodds said she had heard Phillips make regarding the reason he had been driving K & M's vehicle, i.e., that he had been "on his way to get his boss."

Malone also testified, and his testimony differed from that of Brown and Dodds in several respects. Malone explained that K & M provided tree-removal services and that he had owned the company for 16 years at the time of trial. At the time of the accident, Malone testified, K & M employed five workers and owned five trucks. He described the daily activities of K & M's employees, explaining that they would all meet each morning at a storage facility, prepare for their daily projects, travel to and perform projects, and then return the trucks, equipment, and keys needed to operate the trucks and equipment to the storage facility at the end of each workday.

Malone stated that, with the exception of Phillips, all of K & M's employees had driven trucks owned by K & M to travel to and from projects. Phillips, he said, had been working as a tree cutter for K & M for about eight months at the time of the accident and did not possess a valid driver's license because his had been suspended. For that reason, Malone said, Phillips had not been permitted to operate any of K & M's trucks and had been dropped off and picked up from work each day by his wife. Malone said that he had been aware that Phillips had struggled with drug use in the past but that Phillips had passed a drug screen before being employed.

According to Malone, Phillips and the other workers had finished the workday around 6:00 p.m. on the night of the accident. Malone said that he received a telephone call sometime between 6:00 p.m. and 8:00 p.m. from his brother-in-law, Brad, who was also Phillips's supervisor. Malone said that Brad explained to Malone that Phillips was waiting for his wife to pick him up at the storage facility because she was running late. Malone testified that he agreed to let Phillips stay inside the storage facility until his wife arrived, but he denied giving Phillips permission to use one of K & M's trucks for any reason. Malone said that he went to bed early that evening, sometime before 9:00 p.m., because he was planning to go fishing the next day.

Malone testified that he awoke around 9:00 p.m. that night to a telephone call from Phillips, who explained that he had wrecked one of K & M's trucks. According to Malone, Phillips said that his wife's vehicle had broken down and that he had taken one of K & M's trucks to go pick her up when he struck the vehicle transporting Brown and Dodds. Malone said that, upon hearing this news, he was mad and aggravated and that he fired Phillips during the telephone call and told him not to be present at the scene of the accident when Malone arrived. Phillips then handed his cellular telephone to a police officer, Malone testified, and Malone asked the police officer not to have K & M's truck towed. Malone testified that he either told the police officer that Phillips had stolen the truck or, at least, that he had taken it without permission.

Malone said that he then called Brad, and they traveled to the scene of the accident together. According to Malone, it took them approximately 45 minutes to get there, and both the police and Phillips had already left by the time they arrived. He said that Brown and Dodds were still present when they arrived, however. Malone said that he checked to make sure that Brown and Dodds had not been seriously injured and then left the scene of the accident with K & M's truck. About a month later, Malone said, he filed a police report explaining that Phillips had used K & M's truck for personal reasons without authorization on the night of the accident.

Malone denied that Phillips was using K & M's truck to meet him on the night of the accident, explaining that he had personally owned seven vehicles, including "a new truck at the time," and would not have had "any reason for anybody to pick [him] up." He also said that, except in emergencies, K & M did not operate at night because using chainsaws at night is dangerous. Malone further testified that, in August 2014, Phillips and his wife lived in Trussville and that the accident occurred on the route between K & M's storage facility and Phillips's residence, which, Malone said, was not the route to his own residence.

Brian Nalley also testified. Nalley said that, in August 2014, he was a police officer working for the Birmingham Police Department. In 2015, Nalley retired from the Birmingham Police Department and began working for the Tarrant Police Department. From 1998 until 2015, Nalley said, he had worked exclusively on vehicle accidents, specifically 6 to 12 accidents per 8-hour shift. Nalley testified that he remembered responding to the accident in question on August 7, 2014, at approximately 9:00 p.m. Nalley also remembered speaking on a cellular telephone with an individual who had identified himself as the owner of K & M and the truck being driven by Phillips, which Nalley described as "a company vehicle." Nalley said: "If I'm not mistaken, [Phillips] said that his truck had broke down[,] and he had to leave it at the shop, and he took the company vehicle home." He also testified that, as far as knew at the time, Phillips had borrowed the truck with the permission of its owner.

Nalley testified that the person with whom he had spoken on Phillips's cellular telephone regarding ownership of the truck did not tell him that Phillips had stolen the vehicle or had taken it without permission. When asked at trial how he was sure of that recollection, Nalley responded:

"Because if he had told me [that Phillips] had stolen the truck or had it without permission, I would have detained [Phillips] by state law, and I would have had to detain him until the owner got there. Then when the owner got there, he would have filed a report of a stolen[,] recovered vehicle. And then I would have had to call a detective to charge the individual with receiving stolen property."

Nalley said that he did not take any of the actions described above on the night of the accident. He further indicated that his failure to make such a report when required to do so would have resulted in the termination of his employment with the Birmingham Police Department. Nalley also testified that he would have at least made a notation of such information in the narrative portion of his accident report, which, he said, he did not do.

Nalley reviewed his accident report at trial and testified that, according to the report, Phillips's driver's license had been "revoked" at the time of the accident. Nalley also said that he was still present at the scene of the accident when Malone arrived; he said: "I can't leave the vehicles until somebody gets there ...." As far as he remembered, Nalley said, Phillips was also present when Malone arrived. Nalley testified that Malone did not report K & M's truck as having been stolen when he arrived at the scene of the accident and that he did not recall speaking with Malone at that time.

During cross-examination by K & M's attorney, Nalley admitted that he had investigated hundreds, if not more than one thousand, accidents since the accident in question and that he had needed to review his accident report at trial to remember "[s]ome of the finer details." He also said that he was not aware that Malone had filed a report regarding K & M's truck being used without proper authorization after the accident and stated that he would not have been made aware that such a report had been filed. He said: "Only time they contact me after I work a wreck is if somebody died within 30 days of the accident."

Although Phillips did not possess a valid driver's license at the time of the accident, Nalley testified that he did not issue Phillips a citation because he had not actually seen Phillips operating K & M's truck and because the decision to issue a citation would have been within his discretion. He said that, when vehicle accidents occur, he sometimes does not issue citations because doing so would be "adding insult to injury." During redirect examination, however, Nalley testified that he would not have had discretion to forgo documenting the unauthorized use of K & M's truck had he been aware of such circumstances.

The day after Brown and Dodds concluded their case-in-chief, K & M orally moved for a JML in chambers regarding all the claims asserted against it by Brown and Dodds, arguing in relevant part that Brown and Dodds had failed to present any evidence indicating that "Phillips was acting in the line and scope of his employment when the accident occurred," as is required, K & M said, to establish liability based on the doctrine of respondeat superior. K & M's attorney argued that Dodds's testimony that she heard Phillips tell Brown that he had been "on his way to get his boss" when the accident happened constituted "an alleged hearsay statement .... We don't even know who he was really referring to as his boss." K & M's attorney contrasted that evidence with the unequivocal testimony of Malone, who had emphatically denied that Phillips had been traveling to meet him.

In response to K & M's argument regarding respondeat superior and its argument regarding negligent entrustment, counsel for Brown and Dodds noted that Nalley had

"testified that he was under the impression that ... Phillips had permission to drive the vehicle. My clients have testified to that. The only testimony not to that effect is from [Malone] himself, and his credibility has been called into question in this case. And one of the jury instructions that I hope that Your Honor gives will be that if you testify falsely about any material fact, the jury can disregard any or all of your testimony. The things about hearsay, those were statements by party opponents. Those weren't hearsay, and even if they were, they're in evidence. So at this point, it's irrelevant.... The plaintiffs testified that ... Phillips told them at the scene, [']I was on my way to pick up the boss.['] The boss obviously was ... Malone. There's plenty of evidence that the jury can conclude that. They're allowed to make reasonable inferences in this case."

After the trial court determined that it should grant K & M's motion for a JML regarding the negligent-entrustment claim, the following exchange occurred between counsel for Brown and Dodds and the trial-court judge regarding whether a JML on the theory of respondeat superior was also appropriate:

"[Brown and Dodds's attorney]: On the respondeat superior as well. Your Honor?
"[The trial court]: On everything. If negligent entrustment goes, respondeat superior goes.
"[Brown and Dodds's attorney]: Those claims can-
"[The trial court]: The guy's not acting in the line and scope of his employment. It's 9:00 at night.
"[Brown and Dodds's attorney]: There was testimony he was going to pick up his boss in a work truck.
"[The trial court]: No, no, no. What's the testimony he's going to pick up his boss?
"[Brown and Dodds's attorney]: The plaintiffs testified that-
"[The trial court]: That's what they overheard him say. One of the plaintiffs said, I have no idea who he is talking to on the telephone. Matter of fact, didn't somebody say the guy walked away? One of the plaintiffs said he was walking away while talking to them.
"[Brown and Dodds's attorney]: Your Honor, that's in testimony that [Phillips] was going to pick up his boss. That's in evidence, Your Honor. I mean, he's driving a work truck to pick up his boss.
"[The trial court]: No. The evidence is clear he took the work truck to go pick up his wife, not to go pick up his boss.
"[Brown and Dodds's attorney]: That's one side of the story, Your Honor, sure, but that-
"[The trial court]: Understood, but I'm not going to argue with you about that. I understand your argument, but respondeat superior goes too. All claims against K & M are gone."

On May 4, 2017, the trial court entered an order against Phillips awarding $100,000 each to Brown and Dodds. That same day, the trial court entered a written judgment granting K & M's motion for a JML. Brown and Dodds later filed a timely postjudgment motion, which the trial court denied that same day. Brown and Dodds filed a timely notice of appeal to our supreme court. On August 15, 2017, the supreme court transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975. On appeal, Brown and Dodds argue that the trial court erred by granting K & M's motion for a JML because, they say, sufficient evidence was presented to warrant submitting the question of K & M's liability based on the theory of respondeat superior to the jury.

Standard of Review

" 'The standard of review applicable to a ruling on a motion for [a JML] is identical to the standard used by the trial court in granting or denying [that] motion. Thus, in reviewing the trial court's ruling on the motion, we review the evidence in a light most favorable to the nonmovant, and we determine whether the party with the burden of proof has produced sufficient evidence to require a jury determination.
" '....
" '... In ruling on a motion for a [JML], the trial court is called upon to determine whether the evidence was sufficient to submit a question of fact to the jury; for the court to determine that it was, there must have been "substantial evidence" before the jury to create a question of fact. "[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." '
" American Nat'l Fire Ins. Co. v. Hughes, 624 So.2d 1362, 1366-67 (Ala. 1993). (Citations omitted.) See Ex parte Grand Manor, Inc., 778 So.2d 173 (Ala. 2000). On questions of law, this Court indulges no presumption of correctness of the trial court's ruling. State Farm Fire & Cas. Co. v. Slade, 747 So.2d 293, 303 (Ala. 1999)."

Congress Life Ins. Co. v. Barstow, 799 So.2d 931, 936 (Ala. 2001).

Analysis

As already mentioned, Brown and Dodds address the trial court's JML on appeal only as it relates to the theory of respondeat superior.

"In order for a plaintiff to recover against a defendant under the doctrine of respondeat superior, the plaintiff must establish two facts: (1) that the status of employer and employee existed at the time of the negligent or wanton act and (2) that the act was done in the scope of the employee's employment."

Newsome v. Mead Corp., 674 So.2d 581, 583 (Ala. 1995).

Brown and Dodds's argument is founded on our supreme court's decision in Durbin v. B.W. Capps & Son, Inc., 522 So.2d 766, 766-67 (Ala. 1988), in which it explained the following regarding corporate liability for vehicular accidents in an action based on the theory of respondeat superior:

"The corporate defendant owned the [vehicle]. The individual defendant was operating it at the time of the accident. This creates an 'administrative presumption' of agency, but this 'administrative presumption' is not in itself evidence. Rogers v. Hughes, 252 Ala. 72, 75, 39 So.2d 578, 579 (1949) ; Tullis v. Blue, 216 Ala. 577, 114 So. 185 (1927). In Tullis v. Blue, Justice Somerville wrote for a division of the Court:
" 'It is well settled that those presumptions do arise from proof of the defendant's ownership of the vehicle; but it is well settled also that they are prima facie presumptions merely, or, as they are sometimes called, administrative presumptions, based upon considerations of fairness and convenience in placing the burden of proof. They are not in themselves evidence, and in practice their effect is merely to impose upon the defendant the burden of showing that the driver was not his agent, or that, if he was, he was not acting within the scope of his authority or in the course of his employment. If the evidence thereon is in conflict, or leads to doubtful inference only, the issue should go to the jury. If, however, the evidence, without dispute, rebuts the facts thus presumed, there is no issue for the jury, and the general affirmative charge should be given for the defendant on request. Dowdell v. Beasley, 205 Ala. 130, 87 So. 18 [ (1920) ] ; s.c., 207 Ala. 709, 91 So. 921 [ (1922) ] ; Massey v. Pentecost, 206 Ala. 411, 90 So. [866] 868 [ (1921) ] ; Aetna Explosives Co. v. Schaeffer, 209 Ala. 77, 95 So. 351 [ (1923) ] ; Ford v. Hankins, 209 Ala. 202, 96 So. 349 [ (1923) ] ; Rooks v. Swift & Co., 210 Ala. 364, 98 So. 16 [ (1923) ] ; Freeman v. Southern, etc., Ins. Co., 210 Ala. 459, 98 So. 461 [ (1923) ].' (Emphasis supplied.)
" 216 Ala. at 578, 114 So. at 187.
"In Craft v. Koonce, 237 Ala. 552, 554, 187 So. 730, 731 (1939), the Court wrote:
" 'When plaintiff proves such ownership of the [vehicle] by defendant, and thereby brings into being the presumption [that the driver was his agent], he need not offer further proof that the operator of the [vehicle] was the agent of defendant, and [was acting] in the line and scope of his authority, until and unless defendant has offered proof that he was not acting for defendant in the line and scope of his authority. And if defendant makes that proof and it is not contradicted, either expressly or inferentially, defendant is entitled to the affirmative charge. But if there is any evidence which reflects upon the credibility of that evidence by defendant on that question, or from which an inference may be drawn to a different result, whether such evidence was produced by defendant or plaintiff, the question of whether the operator of the [vehicle] was defendant's agent acting in the line and scope of his authority should be submitted to the jury.' "

(Final emphasis added.) Brown and Dodds also cite Pryor v. Brown & Root USA, Inc., 674 So.2d 45, 50 (Ala. 1995), in which our supreme court quoted from Williams v. Hughes Moving & Storage Co., 578 So.2d 1281, 1285 (Ala. 1991), in stating: " 'In order for [the employer] to rebut the presumption and prevent submission of [the plaintiff's] claims to a jury, its evidence must eliminate any question as to whether [the employee] was acting in the scope of his employment by having this truck ... when the accident occurred.' " (Emphasis added.)

In their appellate brief, Brown and Dodds apply the foregoing principles to the evidence they presented at trial and contend the following:

"Here, it is undisputed [that] Phillips was driving a vehicle owned by [K & M]. Additionally, [Brown and Dodds] presented evidence that Phillips was en route to pick up his boss, the owner of [K & M]. Furthermore, the only testimony that Phillips was not within the line and scope of his employment was that of Malone, who stated that he told ... Nalley that Phillips stole [K & M]'s vehicle. However, that testimony, along with every other material fact about which Malone testified, was directly contradicted by the testimony of ... Nalley. Prior to being granted [a JML], [K & M] had the obligation to present uncontradicted evidence showing that[,] at the time of the wreck[,] its employee was not within the line and scope of his employment.... [K & M] failed to do so, and, accordingly, its motion for [a JML] was due to be denied."

In response, K & M argues that it "presented ample and substantial evidence to rebut the administrative presumption that Phillips was within the scope of his employment and was in the accomplishment of a work-related objective at the time of this accident," and it points to Malone's testimony in support of its argument. Regarding the testimony elicited from Dodds indicating that Phillips told Brown that he had been "on his way to get his boss" when the accident occurred, K & M asserts, among other things, that

"[t]here is no direct evidence as to who Phillips was referring to when Dodds purportedly overheard him saying [that,] but in light of the undisputed evidence that Malone was called by Phillips approximately three hours after Phillips had clocked out, the only reasonably inference is that Phillips was euphemistically referring to his wife as his 'boss.' It cannot be reasonably argued that Phillips'[s] statement amounts [to] substantial evidence that Phillips was acting in the line and scope of his employment at the time of the accident."

Thus, the question framed by the parties on appeal is whether K & M adequately rebutted the administrative presumption that Phillips was acting within the scope of his employment at the time of the accident such that the trial court properly foreclosed submission of that question to the jury or, put another way, whether substantial evidence was presented from which the jury could have determined that Phillips was acting within the scope of his employment when the accident occurred. As already noted, "[o]ur review is further subject to the caveat that this Court must review the record in a light most favorable to [Brown and Dodds] and must resolve all reasonable doubts against [K & M]." Pryor, 674 So.2d at 47.

Dodds testified that she heard Phillips tell Brown that he had been "on his way to get his boss" when the accident occurred. The meaning of Phillips's statement is subject to multiple interpretations, as is demonstrated by the arguments presented by the parties on appeal and the exchange that took place between the trial court and counsel for Brown and Dodds during oral arguments regarding K & M's motion for a JML. In determining whether a JML was appropriate, however, we cannot attempt to discern the actual meaning of Phillips's statement because that function falls to the jury. Instead, we are charged with drawing all reasonable inferences from the evidence presented in favor of Brown and Dodds. See id.

In so doing, it is clear that, based on Phillips's statement and the undisputed fact that he was driving K & M's truck at the time of the accident, a jury could reasonably infer that the "boss" to whom Phillips had referred was literally the owner of his employer, K & M, i.e., Malone. Moreover, to the extent that Dodds's testimony regarding Phillips's statement constituted what would otherwise be inadmissible hearsay, we note that K & M did not object to the admission of her testimony at trial and therefore waived any argument regarding its admissibility. See Fluker v. Wolff, 46 So.3d 942, 955 (Ala. 2010) (citing Davis v. Southland Corp., 465 So.2d 397 (Ala. 1985), for the proposition that "a party seeking to prevent the admission of evidence must object to the offering of that evidence because the failure to object at trial waives that objection"). Thus, the only question remaining regarding Dodds's testimony was what weight it should be afforded and not whether it was admissible.

K & M contends that it adequately rebutted Dodds's testimony with Malone's testimony, who said that Phillips told him during a telephone call that he had taken K & M's truck to meet his wife, emphatically denied that he had actually required Phillips to drive K & M's truck to pick him up, and testified that he was at home asleep when the accident occurred. The comments made by the trial-court judge during the parties' oral arguments regarding K & M's motion for a JML indicate that he gave more weight to Malone's testimony, which he appears to have determined was more credible than Dodds's testimony. However, even assuming that K & M

"presented strong evidence that contradicts [Brown and Dodds's] evidence, the credibility and weight to be given to a witness's testimony are matters for the jury to determine. It is not the role of the circuit court to consider the credibility of a witness when it is ruling upon a motion for a [JML]."

McCombs v. Bruno's, Inc., 667 So.2d 710, 713 (Ala. 1995).

Moreover, as noted above, many aspects of Malone's testimony were contradicted not only by the testimony of Brown and Dodds but also by that of Nalley. Malone testified that neither the police nor Phillips were present when he arrived at the scene of the accident and that he had informed the police during a telephone call that Phillips had taken K & M's truck without authorization. Nalley's testimony contradicted Malone's testimony in both respects, and Brown and Dodds agreed that both the police and Phillips were still present when Malone arrived at the scene of the accident.

In other words, the record indicates that at least some portion of the testimony elicited at trial was inaccurate. If a jury believes Nalley's testimony that Malone did not inform him of Phillips's alleged unauthorized use of K & M's truck, it could place less weight on Malone's assertions to the contrary. See Polk v. Polk, 70 So.3d 363, 369 (Ala. 2010) ("When disputed questions of material fact are presented in a jury trial, it is the province of the jury, not the trial court, to resolve those disputes, to determine the credibility of the witnesses, and to decide the weight to place on each witness's testimony."). Additionally, if a jury believes the testimony of Nalley, Brown, and Dodds, indicating that Phillips, Malone, and the police were actually present at the scene of the accident simultaneously, it could reasonably infer that Malone's failure to report the alleged unauthorized use of K & M's truck, despite having had an opportunity to do so, indicates that Phillips's use of K & M's truck had actually been authorized. See id. (" ' " '[I]n exercising its discretion, a jury has the exclusive right to ... draw inferences from the evidence before it.' " ' " (quoting MAT Sys., Inc. v. Atchison Props., Inc., 54 So.3d 371, 383 (Ala. Civ. App. 2010), quoting in turn Wells v. Mohammad, 879 So.2d 1188, 1193 (Ala. Civ. App. 2003), quoting in turn Savoy v. Watson, 852 So.2d 137, 140 (Ala. Civ. App. 2002) ) ). In other words, when viewed in a light most favorable to Brown and Dodds, conflicts exist in the evidence presented at trial from which a jury could reasonably draw various inferences and make determinations regarding the witnesses' credibility that may affect how it resolves the question of K & M's vicarious liability.

" ' "A judgment as a matter of law is proper only where there is a complete absence of proof on a material issue or where there are no controverted questions of fact on which reasonable people could differ and the moving party is entitled to a judgment as a matter of law." ' " Liberty Nat'l Life Ins. Co. v. Daugherty, 840 So.2d 152, 156 (Ala. 2002) (quoting Southern Energy Homes, Inc. v. Washington, 774 So.2d 505, 510-11 (Ala. 2000), quoting in turn Locklear Dodge City, Inc. v. Kimbrell, 703 So.2d 303, 304 (Ala. 1997) ). Because the evidence presented at trial did not " 'eliminate any question as to whether [Phillips] was acting in the scope of his employment by having this truck ... when the accident occurred,' " we must reverse the trial court's judgment granting K & M's motion for a JML on the issue of its liability based on the doctrine of respondeat superior and remand the cause for further proceedings. Pryor, 674 So.2d at 50 (quoting Williams, 578 So. 2d at 1285).

REVERSED AND REMANDED.

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


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    EX PARTE Lee MCELRATH
    (In re: Earnest Howard and Faye Howard v. Lee McElrath and Salena Howard)
    2170302
    Court of Civil Appeals of Alabama.
    February 16, 2018
    Charles C. Tatum, Jr., and Seth L. Diamond, Jasper, for petitioner.
    Submitted on mandamus petition only.
   MOORE, Judge.

Lee McElrath ("the father") petitions this court for a writ of mandamus directing the Walker Circuit Court ("the trial court") to vacate its order awarding pendente lite visitation to Faye Howard and Earnest Howard with the father's children, Terria McElrath and Taleah McElrath ("the children"), and to enter an order denying such visitation. We grant the petition and issue the writ.

Procedural History

On November 4, 2016, the children's maternal grandparents, Faye Howard ("the maternal grandmother") and Earnest Howard ("the maternal grandfather"), filed a complaint in the trial court, seeking, among other things, an award of visitation with the children. The father filed an answer to the complaint on March 14, 2017. On that same date, the father filed a counterclaim requesting, among other things, an order declaring Alabama's Grandparent Visitation Act ("the GVA"), § 30-3-4.2, Ala. Code 1975, facially unconstitutional. The maternal grandparents filed a reply to the father's counterclaim. The Alabama Attorney General was also served with the father's counterclaim because of the constitutional considerations at issue; the attorney general filed a reply to the father's counterclaim. See § 6-6-227, Ala. Code 1975. On October 25, 2017, the father filed a motion to dismiss the maternal grandparents' claims. On November 30, 2017, the maternal grandparents filed an emergency motion for holiday visitation. Following a hearing on the maternal grandparents' motion for holiday visitation on December 6, 2017, the trial court entered an order on December 7, 2017, awarding the maternal grandparents pendente lite visitation with the children. The father filed an emergency motion to stay enforcement of that order on December 20, 2017. The trial court had not ruled on the father's motion to stay at the time the father filed his petition for a writ of mandamus with this court on December 21, 2017. The father filed an amended motion to stay the trial court's order on that same date.

Facts

The maternal grandmother testified that the children's mother is her daughter, Salena Howard ("the mother"), and that the mother had never been married. She stated that the children were 11 and 12 years old, respectively, at the time of the hearing on the maternal grandparents' emergency motion for holiday visitation. According to the maternal grandmother, when Terria was released from the hospital following her birth, she was taken to the maternal grandparents' house where, the maternal grandmother said, the mother was also living at the time. The maternal grandmother stated that, at some point, the father had also lived at their house, but, she said, after Taleah was born, when the children were approximately 3 and 4 years old, respectively, the mother, the father, and the children moved in with the children's paternal grandmother, Sylvia McElrath ("the paternal grandmother"). The maternal grandmother testified that, when the children had lived with her and the maternal grandfather, she had been their primary caretaker; she stated, however, that the father had provided for the children and that the mother had been present and had been a good mother to the children during that time.

According to the maternal grandmother, at some point, the father had gone to prison for six or seven years and, during that time, the children had lived with the paternal grandmother. The maternal grandmother testified that she and the maternal grandfather had seen the children periodically and had participated in school activities with the children. She stated that, during the time the father was incarcerated, the children had spent the night with the maternal grandparents, especially on weekends, every one to three weeks and that the children also had visited the maternal grandparents on holidays.

The maternal grandmother stated that, after the father was released from incarceration in 2013, the children had lived with the father, who, she said, was living with his girlfriend, Constance Clay, and that there were six children living in the household with him and Clay. The maternal grandmother stated that the father and the mother had not agreed on a schedule for the mother to visit the children. She testified that the mother had visited the children a week or two before the hearing on the maternal grandparents' emergency motion for holiday visitation and that the mother had taken the children to the maternal grandmother's house on that occasion. She also testified, however, that the mother had visited the children on other occasions but that she had not brought the children to the maternal grandparents' house or to visit the maternal grandparents on those occasions. The maternal grandmother testified that she had expressed to the mother that she and the maternal grandfather would like to see the children, that the mother had told them she would let them know when she visited with the children, but that the mother had not usually let them know. According to the maternal grandmother, she and the maternal grandfather had made requests of the father to see the children.

The maternal grandmother testified that the father is a good father and takes care of the children and that the children do well in school and are engaged in different types of sports and activities. She stated that, as far as she knows, the father does a great job of taking care of the children. She testified that she and the maternal grandfather had been allowed to see the children during the three years preceding the filing of the complaint for grandparent visitation, but, she said, the father had been the one to determine when they could see the children, and, she said, he had not allowed her to see the children as often as she would have liked. The maternal grandmother stated that, since the father had had custody, the children had not spent the night with the maternal grandparents on a regular basis. The maternal grandmother testified that she wanted to see the children because it would be in the children's best interest, because she loves them, and because she "just need[s] to see them because [she] miss[es] them so much."

The father testified that he had gone to prison for trafficking cocaine, that he had served his sentence, and that he had subsequently been released from probation for good behavior. He stated that he had been employed as a financial consultant since he was released from prison and that he had financially supported the children since that time. The father stated that, at the time of the hearing, he and the children were living with Clay, her two children with the father, and two of Clay's other children. According to the father, he and the mother are on good terms and had worked out custody and support issues involving the children without intervention from a court. The father stated that the children had not spent the night with the maternal grandparents more than five nights in any one year since his release from incarceration and that, from 2013 until the maternal grandparents filed their complaint seeking visitation, the children had been seeing the maternal grandparents once a month or once every other month. The father stated that the children had not complained about wanting to see the maternal grandparents more often.

The father testified that he, Constance, and the maternal grandparents are all employed. He also stated that he had not allowed the maternal grandparents to visit with the children when it was not convenient. The father stated that, before the maternal grandparents had filed their complaint seeking visitation, he and the maternal grandparents had discussed, at times, the maternal grandparents' having visitation with the children. He testified that the maternal grandfather had approached him at his workplace and had told him that he and the maternal grandmother wanted to see the children more often. The father testified that he had told the maternal grandfather that, because he had six children in his household participating in different sports and activities, the maternal grandparents would need to contact him a week or more ahead of time to try to arrange visitation. According to the father, he had not heard from the maternal grandparents after that time.

Analysis

" ' "A writ of mandamus is an extraordinary remedy that is available when a trial court has exceeded its discretion. Ex parte Fidelity Bank, 893 So.2d 1116, 1119 (Ala. 2004). A writ of mandamus is 'appropriate when the petitioner can show (1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.' Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala. 2001)." ' "

Ex parte Brown, 963 So.2d 604, 606-07 (Ala. 2007) (quoting Ex parte Rawls, 953 So.2d 374, 377 (Ala. 2006), quoting in turn Ex parte Antonucci, 917 So.2d 825, 830 (Ala. 2005) ).

The father argues in his petition that the trial court erred in granting pendente lite visitation between the maternal grandparents and the children. The GVA provides for the entry of a pendente lite order granting temporary visitation rights to grandparents, pending a final order. Specifically, § 30-3-4.2(o ), provides:

"Upon filing an action under this section, after giving special weight to the fundamental right of a fit parent to decide which associations are in the best interest of his or her child, the court may, after a hearing, enter a pendente lite order granting temporary visitation rights to a grandparent, pending a final order, if the court determines from the evidence that the petitioner has established a significant and viable relationship with the child for whom he or she is requesting visitation, visitation would be in the best interest of the child, and any of the following circumstances exist:
"(1) The child resided with the grandparent for at least six consecutive months within the three years preceding the filing of the petition.
"(2) The grandparent was the caregiver of the child on a regular basis for at least six consecutive months within the three years preceding the filing of the petition.
"(3) The grandparent provided significant financial support for the child for at least six consecutive months within the three years preceding the filing of the petition.
"(4) The grandparent had frequent or regular contact with the child for at least 12 consecutive months within the three years preceding the filing of the petition."

The father argues, among other things, that the trial court erred in awarding the maternal grandparents pendente lite visitation with the children because, he says, the materials before this court do not demonstrate that the evidence supported findings that a significant and viable relationship between the children and the maternal grandparents was established, that the trial court gave "special weight" to the father's decisions regarding visitation between the children and the maternal grandparents, or that the maternal grandparents produced clear and convincing evidence that, without court-ordered visitation, the children's well-being could be jeopardized. The father also asserts that the maternal grandparents failed to offer any evidence indicating that the circumstances listed in subsections (1) through (4) of § 30-3-4.2(o ) exist in the present case such that pendente lite visitation could have been awarded pursuant to the GVA.

In Ex parte Gentry, 238 So. 3d 66 (Ala. Civ. App. 2017), this court considered a petition for a writ of mandamus stemming from an award of pendente lite grandparent visitation. Regarding § 30-3-4.2(o ), this court stated, in pertinent part:

"Although it is not immediately apparent from the language used in § 30-3-4.2(o ), the best-interest analysis set out in the GVA requires a showing of actual or reasonably expected harm to the child. That is, the GVA requires a grandparent seeking to prove that grandparent visitation is in the best interest of a child to show, by clear and convincing evidence, all three of the following:
" '(1) The petitioner has the capacity to give the child love, affection, and guidance.
" '(2) The loss of an opportunity to maintain a significant and viable relationship between the petitioner and the child has caused or is reasonable likely to cause harm to the child.
" '(3) The petitioner is willing to cooperate with the parent or parents if visitation with the child is allowed.'
" § 30-3-4.2(e) (emphasis added). Section 30-3-4.2(a)(2) defines 'harm' as '[a] finding by the court, by clear and convincing evidence, that without court-ordered visitation by the grandparent, the child's emotional, mental, or physical well-being has been, could reasonably be, or would be jeopardized.' In addition, § 30-3-4.2(c)(1) acknowledges that a parents' decision regarding visitation is presumed to be in the best interest of his or her child. In order to rebut that presumption, § 30-3-4.2(c)(2) requires clear and convincing proof that the grandparent and the child have a 'significant and viable relationship,' § 30-3-4.2(c)(2) a., and that the requested '[v]isitation ... is in the best interest of the child.' § 30-3-4.2(c)(2) b."

238 So.3d at 78. This court concluded in Gentry that, in that case, the harm element had not been met, that the trial court had erred in substituting its decision regarding the children's best interest for the father's, and that the award of pendente lite grandparent visitation was not supported by sufficient evidence. 238 So.3d at 82-83

Like in Gentry, the evidence presented in the present case does not support the trial court's award of pendente lite grandparent visitation in accordance with § 30-3-4.2(o ). The maternal grandmother's testimony indicating that she was simply seeking more visitation with the children, that she loves the children, and that the maternal grandparents and the children have a beneficial relationship is clearly insufficient to meet the requirements of § 30-3-4.2(o ). As this court observed in Gentry, "proof that a grandparent has a close, beneficial relationship with a child is not equivalent to proof that the child will suffer harm if that relationship is limited or terminated," and "evidence of a beneficial relationship alone fails to rebut the presumption in favor of a fit parent's decision." 238 So.3d at 82. Moreover, we agree with the father that the testimony presented at the hearing did not support a finding that, in the three years preceding the filing of the maternal grandparents' complaint seeking visitation, the children had resided with the maternal grandparents, that the maternal grandparents had been the caregivers of the children, that the maternal grandparents had provided significant financial support for the children, or that the maternal grandparents had had frequent or regular contact with the children during that period. See § 30-3-4.2(o )(1) through (4). The father has demonstrated a clear legal right to the relief sought in his petition. Accordingly, we grant the father's petition for the writ of mandamus, and we order the trial court to vacate its December 7, 2017, order awarding the maternal grandparents pendente lite visitation with the children and to enter an order denying pendente lite visitation to the maternal grandparents.

PETITION GRANTED; WRIT ISSUED.

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


author: KELLUM, Judge.

text:
    Elijah Ray FRAZIER v. STATE of Alabama
    CR-15-1484
    Court of Criminal Appeals of Alabama.
    September 8, 2017 Rehearing Denied December 8, 2017 Certiorari Denied February 16, 2018
    Alabama Supreme Court 1170242
    Robert Troy Teague, Montgomery, for appellant.
    Steve Marshall, atty. gen., and Ferris Stephens, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, Elijah Ray Frazier, was convicted of two counts of capital murder in connection with the murder of Keon Sankey. The murder was made capital (1) because it was committed during the course of a robbery, see § 13A-5-40(a)(2), Ala. Code 1975, and (2) because Frazier shot Sankey while Sankey was inside a vehicle, see § 13A-5-40(a)(17), Ala. Code 1975. The trial court sentenced Frazier to life imprisonment without the possibility of parole for each conviction.

The evidence adduced at trial indicated the following. Around 4:00 p.m. on November 20, 2013, Sankey drove to the home of Aaron Simmons, who had agreed to help Sankey purchase marijuana. When Sankey arrived, Simmons was sitting in the front passenger seat of Eddie Osborne's automobile parked in front of Simmons's house; Osborne was in the driver's seat. Sankey parked his vehicle and walked to the passenger side of Osborne's vehicle. Simmons opened the passenger-side door, and Sankey spoke with Simmons and Osborne. Both Simmons and Osborne testified that they then heard a loud noise and saw Frazier and Rodricko Davis hit Sankey in the head from behind with pistols and say "give it up." (R. 126.) Sankey said "I ain't got nothing" and then dove into Osborne's vehicle, crawled across Simmons and Osborne, and exited the other side of the vehicle through the driver's door. (R. 126.)

Osborne and Simmons both testified that, as Sankey was crawling across them, Davis pointed his pistol inside the vehicle and pulled the trigger but the pistol did not fire. Osborne said that Davis pulled the trigger at least one more time but that the pistol still did not fire; Simmons said that Davis pulled the trigger "[a] bunch of times" but that the pistol never fired. (R. 203.) At that point, the testimony reflected, Simmons grabbed Davis and the two struggled over Davis's pistol. According to Simmons, Davis said: "I don't want to shoot you, but I'll shoot you if I have to." (R. 204.) As Simmons and Davis struggled, Sankey and Osborne exited Osborne's vehicle on the driver's side. Frazier then ran around to the driver's side of Osborne's vehicle.

Simmons testified that, at that point, he heard a gunshot, saw Frazier grab Sankey and search his pockets, and then saw Sankey run to his car. Osborne, however, testified that Frazier did not search Sankey but that Sankey turned and ran to his car before Frazier got close to him. As Sankey was running to his car, Osborne said, he heard Davis say "shoot him" and Frazier then shot Sankey. (R. 129.) Sankey continued to his car, and both Simmons and Osborne testified that, after Sankey got into his vehicle, Frazier, who followed him, opened the driver's side door and shot Sankey again. Sankey then drove away. Osborne testified that Frazier shot Sankey once while Sankey was in his vehicle; Simmons testified that he thought Frazier had shot at Sankey "two or three times" while Sankey was in his vehicle and as Sankey drove away. (R. 206-07.) After Sankey fled, Frazier and Davis also fled.

Although Sankey managed to flee the attack, he crashed his vehicle a short distance away. He was subsequently transported to a local hospital where he underwent emergency surgery to repair the femoral artery in his left thigh. He died several hours later. Medical examiner Alfredo Paredes testified that he performed the autopsy on Sankey. Dr. Paredes testified that Sankey's cause of death was multiple gunshot wounds. Specifically, Dr. Paredes testified that Sankey was shot twice. One shot entered the back of Sankey's right leg, traveled upward and to the left, and exited the left groin area. The other shot entered the outer portion of Sankey's left forearm, traveled through the forearm and exited the inner forearm, and then entered the front of Sankey's left thigh and exited the back of the thigh. Dr. Paredes found no gunpowder stippling around the wounds. Dr. Paredes also testified that there was internal bruising under the scalp on Sankey's right temple but that there were no noticeable external injuries in that area.

At the scene of the shooting, police found three shell casings. In Sankey's car, police found a fired bullet lodged in the driver's seat. There was also a bullet hole in the door frame on the driver's side of the car. The shell casings were nine-millimeter Luger casings; the bullet was also a nine-millimeter Luger bullet. Expert testimony indicated that all three shell casings had been fired from the same weapon. Several fingerprints were lifted from Sankey's car, most of which belonged to Sankey himself, but three of which belonged to Kertavious Thomas, who testimony indicated was a friend of Sankey's. Neither Frazier's fingerprints nor Davis's fingerprints were found on Sankey's car. Additionally, in one of Sankey's pants pockets, police found $2,660.

Michael Knox, a forensic consultant, testified for the defense. Knox testified that he examined the crime-scene photographs, police reports, and laboratory reports, including the autopsy report, related to the shooting of Sankey. Knox testified that, in his opinion, the shot that passed through Sankey's left arm and left thigh and had lodged in the driver's seat of Sankey's vehicle had to have been fired from a firearm that was "inside the vehicle and would be pointing downward at him at a fairly close range" (R. 395) so that there would have been "evidence of gunpowder and gun residue" on Sankey if Sankey had been seated inside his vehicle at the time of the shot. (R. 396.) The lack of gunpowder stippling around the wounds, Knox concluded, indicated that Sankey was not inside his vehicle at the time of that shot. Knox also testified that the absence of any external injuries on Sankey's head indicated that he had not been hit with a pistol, as Simmons and Osborne had testified.

After both sides rested and the trial court instructed the jury on the applicable principles of law, the jury convicted Frazier of both counts of capital murder as charged in the indictment. This appeal followed.

I.

Frazier first contends that the trial court erred in allowing the lead investigator, Detective Guy Naquin with the Montgomery Police Department, to testify that Frazier's sister had given him a handwritten letter.

Before trial, Frazier filed a motion in limine to prohibit the State from introducing the letter into evidence on the ground that the letter could not be authenticated. The trial court deferred ruling on the motion. The record reflects that the letter was never offered into evidence by the State, nor did the State present any testimony regarding the contents of the letter or who authored the letter. Outside the presence of the jury, the State posited that Frazier had written the letter and had given it to D'Angela Richardson who had, in turn, given it to Frazier's sister, Brandy, who had then given it to Det. Naquin. In the letter, Frazier stated that Davis was the person who had shot Sankey but that he owned the gun that was used to shoot Sankey, and he requested that the letter be shown to his family and "the police or whoever can free me." (R. 307.) The record indicates that the State had subpoenaed Richardson to testify about the letter but that she failed to appear the first day of trial. The trial court then issued a warrant for Richardson's arrest.

Det. Naquin was the State's last witness during its case-in-chief. During direct examination, the prosecutor asked Det. Naquin if he had ever had contact with any of Frazier's family members, and Det. Naquin stated that he had had contact with Frazier's sister, Brandy. The prosecutor then asked Det. Naquin what the contact with Brandy was about, and Frazier objected. Frazier argued that the letter could not be authenticated through Det. Naquin. The State indicated that it was not going to introduce the letter into evidence or reveal the contents of the letter to the jury during Det. Naquin's testimony but that it was simply going to ask Det. Naquin if he had received the letter and ask him to identify the letter. The trial court indicated that it would allow the State to question Det. Naquin regarding whether he had received the letter and how he had received the letter because the letter had been received as part of his investigation. Frazier argued that allowing Det. Naquin to testify that he had received the letter without the letter being admitted or its contents revealed to the jury would leave the jury wondering about the letter, which, he said, would be prejudicial to him. The trial court disagreed and overruled Frazier's objection.

Det. Naquin then testified that on December 17, 2013, Brandy Frazier had come to his office unannounced and had given him a handwritten letter. Det. Naquin identified State's Exhibit 38 as the letter he had received from Brandy. Det. Naquin testified that when Brandy gave him the letter she told him where she had gotten it. At that point, the trial court stopped the State's questioning regarding the letter. At the conclusion of Det. Naquin's testimony, a lunch break was taken. Before the break, the State indicated that it was going to continue its search for Richardson over the break but that, if it could not locate her, the State would rest its case. The State was apparently unable to locate Richardson, and it rested its case after the break, without introducing the letter.

Although Frazier admits that the letter was not admitted into evidence and that neither the contents of the letter nor the purported author of the letter were revealed to the jury, he argues that Det. Naquin's testimony that he had received the letter was irrelevant and inadmissible and prejudiced him. Specifically, Frazier argues that "[t]he mere mention of the letter ... created a 'McGuffin' effect often used in movies, whereby the mystery of the letter's contents casts a nefarious and false shadow of guilt upon Frazier" (Frazier's brief, p. 17) and that "the mention of the letter alone was indeed a slick device by the State, made to induce an emotional bias against Frazier, not one based on fact." (Frazier's brief, p. 20.) We disagree.

"The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court's determination on that question will not be reversed except upon a clear showing of abuse of discretion." Ex parte Loggins, 771 So.2d 1093, 1103 (Ala. 2000). Additionally, "[t]rial courts are vested with considerable discretion in determining whether evidence is relevant, and such a determination will not be reversed absent ... an abuse of discretion." Hayes v. State, 717 So.2d 30, 36 (Ala. Crim. App. 1997).

" Rule 402, Ala. R. Evid., provides that '[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States or that of the State of Alabama, by statute, by these rules, or by other rules applicable in the courts of this State.' Rule 401, Ala. R. Evid., defines 'relevant evidence' as 'evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.' 'Alabama recognizes a liberal test of relevancy, which states that evidence is admissible "if it has any tendency to lead in logic to make the existence of the fact for which it is offered more or less probable than it would be without the evidence." ' Hayes[ v. State], 717 So.2d [30,] 36 [ (Ala. Crim. App. 1997) ], quoting C. Gamble, Gamble's Alabama Evidence § 401(b) [ (5th ed. 1996) ]. '[A] fact is admissible against a relevancy challenge if it has any probative value, however[ ] slight, upon a matter in the case.' Knotts v. State, 686 So.2d 431, 468 (Ala. Crim. App. 1995), aff'd, 686 So.2d 486 (Ala. 1996). Relevant evidence should be excluded only 'if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.' Rule 403, Ala. R. Evid."

Gavin v. State, 891 So.2d 907, 963-64 (Ala. Crim. App. 2003).

The record indicates that, at the time Det. Naquin testified, the State was planning to introduce the letter into evidence if it could lay the proper predicate. The State had subpoenaed Brandy Frazier and D'Angela Richardson and was actively searching for Richardson throughout the trial after she had failed to appear. Det. Naquin's testimony was part of the predicate to admit the letter and was, thus, relevant at the time his testimony was offered. Although the State was ultimately unsuccessful in locating Richardson and, as a result, was unable to offer the letter into evidence, that did not render irrelevant Det. Naquin's testimony about his receipt of the letter. Nor do we believe that Det. Naquin's testimony that he had received the letter was, alone, prejudicial to Frazier. Frazier speculates that the mere mention of the letter suggested his guilt; however, nothing in the record supports such speculation. On the contrary, after thoroughly reviewing the record, we conclude that Det. Naquin's limited testimony was, at most, innocuous and in no way prejudicial to Frazier. Therefore, the trial court did not err in allowing Det. Naquin to testify that he had received a letter from Frazier's sister.

II.

Frazier next contends that the trial court erred in refusing to admit into evidence a transcript of the prior testimony of Simmons and Osborne given during the trial of his codefendant, Rodricko Davis.

The record reflects that Frazier cross-examined Simmons and Osborne about their prior trial testimony, using the transcript of that prior testimony to highlight what Frazier believed were inconsistencies between the prior testimony and the testimony at Frazier's trial. Frazier asked Simmons several questions about his prior testimony. Simmons denied having made one of the prior statements about which he was questioned, could not recall some of the prior statements about which he was questioned, and admitted making three of the prior statements about which he was questioned. The record indicates that Frazier asked Osborne only two questions about his prior testimony, and, in both instances, Osborne admitted to having made the statements in his prior testimony. (R. 137-38.)

At the conclusion of the State's case-in-chief, but before the State formally rested, Frazier notified the trial court that he intended to introduce into evidence a transcript of the entirety of Simmons's and Osborne's prior trial testimony. The trial court indicated that it did not believe the transcript was admissible, but the trial court stated that if Frazier could provide the court with law indicating that the transcript was admissible, the trial court would allow it. After the State rested, Frazier moved for a judgment of acquittal, which was denied. Frazier then presented his sole defense witness, Michael Knox. After Knox's testimony, Frazier rested his case and renewed his motion for a judgment of acquittal. When arguing his motion for a judgment of acquittal, Frazier moved to enter into evidence the transcript of Simmons's and Osborne's prior trial testimony and argued that the Alabama Supreme Court's opinion in Hooper v. State, 585 So.2d 137 (Ala. 1990), allowed for the admission of a transcript of prior trial testimony. The State objected, and the trial court refused to admit the transcript.

On appeal, Frazier argues that the transcript of Simmons's and Osborne's prior trial testimony was admissible as substantive evidence and that the trial court erred in refusing to admit the transcript. As he did in the trial court, Frazier relies on Hooper, supra. Frazier's argument confuses and conflates two separate legal principles: (1) whether a prior inconsistent statement may be used as substantive evidence as well as impeachment evidence and (2) whether a party may present extrinsic proof of a prior inconsistent statement.

Frazier is correct that a prior inconsistent statement by a witness, if made under oath at a prior trial, may be used as substantive evidence, and not merely as impeachment evidence. In Hooper, the defendant was tried and convicted of two counts of second-degree rape of his daughter. His convictions were reversed on appeal. On retrial, the victim recanted her story and testified that the defendant had not raped her. The prosecutor questioned the victim about her testimony in the previous trial and requested that the trial court instruct the jury that the victim's prior inconsistent testimony could be considered substantive evidence of the defendant's guilt. The trial court gave the requested instruction, and the Alabama Supreme Court upheld the instruction. The Court noted that the general rule at that time was that prior inconsistent statements of a witness could be considered only as impeachment evidence and not as substantive evidence of guilt. The Court, however, changed that general rule and held "that a prior inconsistent statement of a witness who takes the stand and is available for cross-examination may be used as substantive evidence if the prior statement was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition." Hooper, 585 So.2d at 140. The holding in Hooper was subsequently codified in Rule 801(d)(1)(A), Ala. R. Evid.

In Hooper, the prior inconsistent testimony was elicited through questioning of the victim. Nothing in the opinion in Hooper indicates that the prosecutor had offered into evidence a transcript of the victim's prior testimony, nor does the opinion in Hooper speak to the issue of the admissibility of a transcript of a witness's prior testimony as extrinsic proof of a prior inconsistent statement. Hooper stands only for the proposition that a prior inconsistent statement made under oath in a prior trial may be used as substantive evidence and not just impeachment evidence.

In this case, however, the trial court did not rule that Simmons's and Osborne's prior inconsistent statements, as brought out on cross-examination, could not be used as substantive evidence. The trial court's only ruling in this case was that the transcript of Simmons's and Osborne's prior testimony was not admissible as extrinsic proof of their prior statements. That ruling was correct.

With respect to Osborne, as noted above, Frazier asked only two questions about Osborne's prior trial testimony, and Osborne admitted that he had made both prior statements. Rule 613(b), Ala. R. Evid., provides that "[e]xtrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness has been confronted with the circumstances of the statement with sufficient particularity to enable the witness to identify the statement and is afforded an opportunity to admit or to deny having made it." The Advisory Committee's Notes to that rule state: "Nothing in Rule 613(b) affects that line of authority providing that a witness's acknowledgment of having made a prior statement precludes the use of extrinsic evidence to prove the inconsistent statement." See also Charles W. Gamble and Robert J. Goodwin, McElroy's Alabama Evidence § 157.03(2) (6th ed. 2009) ("Courts disallow proof of a self-contradiction by extrinsic evidence, such as writings or the testimony of others, if the witness unequivocally admits having made the self-contradictory statement. This has been recorded as the majority position nationally." (footnote omitted)). Because Osborne admitted having made the prior statements, Frazier was precluded from providing extrinsic proof of those statements. Therefore, the trial court properly excluded the transcript of Osborne's prior trial testimony.

With respect to Simmons, as noted above, Simmons admitted having made three of the prior statements about which he was questioned, but he either denied or did not recall having made the remainder of the prior statements about which he was questioned. Although extrinsic proof of a prior inconsistent statement is not admissible if the witness admits having made the statement, if the witness denies having made the statement or does not recall making the statement, extrinsic proof of the prior inconsistent statement is generally admissible. See, e.g., McElroy's Alabama Evidence, supra, § 157.03(1) ("If a proper predicate has been laid, proof may be made by others that the witness made the supposed self-contradictory statement whether the witness denies having made it or merely states that he does not remember whether or not he made it."). See also Boyd v. State, 590 So.2d 344, 349-50 (Ala. Crim. App. 1989) ("Impeachment of a witness by use of a prior inconsistent statement can be accomplished by either the testimony of the witness to whom the statement was made or by admitting the prior inconsistent statement itself, if it is a writing.").

However, "[i]f a witness makes a statement on the trial of the case, and has made a contradictory statement on another trial, and proper predicate laid, such testimony on the former trial as tends to contradict the witness may be introduced, but not the entire transcript of all the proceedings of the previous trial, and the court is under no duty to pick out the parts which are relevant and which are not." Gaither v. State, 21 Ala.App. 165, 167, 106 So. 348, 349 (1925). Although Frazier did not offer the entire transcript of the prior trial, he did offer the entirety of Simmons's prior testimony, the majority of which was consistent with his testimony at Frazier's trial. Prior consistent statements are considered inadmissible hearsay unless offered to rebut a charge of recent fabrication or improper influence or motive. See Rule 801(d)(1)(B), Ala. R. Evid.

As explained in McElroy's Alabama Evidence, supra, § 159.01:

"If a document made, signed, or otherwise approved by a witness is offered for the purpose of impeaching the witness by reason of the presence therein of a statement by the witness that is contradictory of the witness' testimony, and it happens that such document contains another statement by the witness which is not contradictory of the witness' testimony and capable of separation from the contradictory statement, the whole of the document should not ordinarily be admitted. This rule that the contradictory portion, rather than the whole of the document, should be admitted is subject, of course, to the further limitation that admittance of the whole or contradictory portion rests within the sound discretion of the trial court."

(Footnotes omitted.) Although Simmons did not make, sign, or otherwise approve of the transcript of his prior testimony, the transcript was certified by the court reporter, and we believe the general principle espoused above is applicable here. The inconsistent statements of Simmons in his prior testimony were easily capable of separation from the remainder of his testimony at the prior trial. Therefore, we find no abuse of discretion on the part of trial court in excluding the transcript of the entirety of Simmons's prior trial testimony, the majority of which was consistent with his testimony at Frazier's trial.

III.

Frazier also contends that the trial court erred in allowing Det. Naquin to testify about video evidence that was collected during the investigation. Specifically, Frazier argues that Det. Naquin was improperly permitted to testify regarding the substance of the video and the number stamps on the video based on information he had received from Sergeant Lance Gambrell, who did not testify at trial. Frazier argues that Det. Naquin's testimony in this regard violated his right to confrontation. Frazier also argues "that Det. Naquin's representation that [Sgt.] Gambrell was an expert in video analysis was improper and the court should have given a curative instruction to the jury." (Frazier's brief, p. 27.)

During cross-examination of Det. Naquin, the State's last witness, Frazier asked if Det. Naquin had obtained any video evidence from the various businesses near where Sankey had crashed his vehicle. Det. Naquin stated that he had not but that he had obtained video evidence from a house near the scene of the shooting. Frazier then questioned Det. Naquin extensively about the video evidence he had obtained. Det. Naquin testified that Frazier did not appear on the video but that the video did show "multiple individuals." (R. 338.) Although Frazier characterized those individuals as "running," Det. Naquin stated that he did not see anyone on the video running. (R. 338.) Det. Naquin testified that police were able to identify one of the individuals, but not the others. Det. Naquin also testified that neither Simmons nor Osborne were captured on the video.

Det. Naquin testified that the video did show Sankey entering and exiting the neighborhood where he was shot. When asked if the video showed "that a minute and 24 seconds expired from the time that he entered till the time he was seen leaving," Det. Naquin stated that that was not correct and that Sankey was in the neighborhood where the shooting occurred for more than five minutes. (R. 338.) Frazier then impeached Det. Naquin with a supplemental offense report Det. Naquin had prepared. In the report, Det. Naquin stated that he had reviewed one of the videos and that "[t]he victim's vehicle comes back northbound on Kippax Street at 1402.06 Hours and then leaves again going south on Kippax Street at 1403.30 Hours." (C. 758.) Det. Naquin then stated in the report: "The victim's car, as viewed on camera seven, showed that he arrived at the cul-de-sac at 1402.06 Hours and left after being shot at 1403.30 Hours." (C. 758.) Det. Naquin admitted having made the statements in his report, and he agreed with Frazier that police use military time and that, in military time, 1402.06 hours would mean 2:02 p.m. and 6 seconds, and 1403.30 hours would mean 2:03 p.m. and 30 seconds. However, Det. Naquin testified that the 1402 and 1403 numbers on the video did not represent the time even though he had suggested such in his report.

Det. Naquin testified, and pointed to another portion of his report as support, that over five minutes elapsed between the time Sankey entered the neighborhood and left the neighborhood. Frazier moved to introduce into evidence Det. Naquin's report, and the State did not object, but the trial court did not issue a ruling at that time.

On redirect examination, the State rehabilitated Det. Naquin. First, without objection by the defense, the State introduced into evidence two photographs of Sankey's vehicle taken from the video, which depicted the 1402 and 1403 numbers referenced in Det. Naquin's report. The State then asked Det. Naquin if the numbers on the video were references to the time of day, and Det. Naquin stated that he did not think so. When the State asked the meaning of the numbers and Det. Naquin stated that he was "not a video expert," Frazier interrupted and objected to the question on the ground that "[i]t calls for speculation." (R. 347.) The trial court overruled the objection. Det. Naquin then testified that he believed that the numbers on the video were "a time marker on the video because the video has been determined to be time-lapsed, meaning motion activated. And Sergeant Gambrell determined that five minutes of the video was missing during the time the shooting happened." (R. 348.) Det. Naquin also testified that, although there was a camera facing the scene of the shooting, there was no video of the shooting because the camera was motion-activated and the shooting was too far away from the camera to have activated it.

On recross-examination by Frazier, Det. Naquin testified that he, too, initially thought that the numbers on the video represented time, which is why he referred to the numbers as hours in his supplemental report. However, Det. Naquin said that he then spoke with Sgt. Gambrell, who explained that the video was not recording continuously because it was motion-activated and that, in fact, over five minutes elapsed from the time Sankey entered the neighborhood and the time Sankey left after being shot. When asked by Frazier how he knew that five minutes had elapsed, Det. Naquin testified: "Sergeant Gambrell told me that. He's a video expert." (R. 353.) On redirect examination, the State asked Det. Naquin about Sgt. Gambrell, and Det. Naquin testified that Sgt. Gambrell "was trained to do videos on a computer and reduce it to actual frame by frame and copy them." (R. 354.)

After Det. Naquin's testimony, a lunch recess was taken. As noted in Part II of this opinion, following the recess, Frazier informed the trial court that he intended to offer into evidence a transcript of Simmons's and Osborne's testimony from a prior trial, and there was a lengthy discussion about the issue. After that discussion, the trial court stated that it was refusing to admit Det. Naquin's report as offered by Frazier. Frazier indicated that he agreed with that ruling and the following then occurred:

"[Frazier's counsel]: Judge, do we need to offer a limiting instruction to the jury, because we went ad nauseam, a lot of testimony of what's in that document outside of what I talked to Detective Naquin about, getting into Gambrell's testimony and all this. I think we might need to give a limiting instruction for the jury to ignore that portion of Naquin's testimony.
"[Prosecutor]: Judge, I think it would be totally improper to give a limiting instruction on questions that he gets to continue to hammer and ask-
"THE COURT: I'm going to let it sit like it is.
"[Frazier's counsel]: I'll make a proffer for the record, if I may.
"....
"[Frazier's counsel]: ... My proffer would be about this. At the point that we offered the exhibit, you said that you were going to look at it and you would get us a ruling back.
"THE COURT: On?
"[Frazier's counsel]: What Exhibit-what was proposed Exhibit Number 2, Defendant's Exhibit Number 2, which was the investigative supplement by Detective Naquin. And, at this point, you said that's not coming in. You believe it is improper. We don't have an objection to your ruling. That's what you say.
"However, the jury heard quite a bit of testimony from Naquin that would have been considered hearsay outside of that document having already come in, okay. Such as Gambrell-I believe it was Gambrell-am I saying that right? Gambrell is supposed to be the video expert.
"....
"So, Your Honor, at this point, since that document didn't come in, that should mean that that evidence shouldn't come in either. And I would just ask you to give a limiting instruction to cure that with the jury, that they-
"THE COURT: What was the question you were asking Naquin about that you sought to admit that document, Number 2?
"[Frazier's counsel]: Well, because he had said-in his testimony previous, he had said that Mr. Sankey was the-the vehicle was seen coming into the neighborhood and leaving the neighborhood, and there was about a five-minute lag in between.
"His report clearly reflected that at 1402.06 hours, Mr. Sankey's car was seen coming into the neighborhood and that at 1403.3 hours it was seen going back out.
"....
"[Frazier's counsel]: That's a time lapse of one minute and 24 seconds. And then he explained that away with the State's assistance by saying that Gambrell had looked at it and had determined there was a five-minute lag. And he offers that this 1402, instead of being a time stamp, is a stamp of how many minutes of video recording there has been.
"Well, that obviously can't be the case. The date and the date stamp are correct on there, and that wouldn't be the situation if it just came on and just came back off.
"So, Your Honor, at this point, since that exhibit is not coming in, I would ask for a limiting instruction to the jury that they should ignore the portion of Naquin's testimony that dealt with Officer Gambrell's testimony, because that's basically what happened.
"[Prosecutor]: Judge, can I respond to that?
"THE COURT: Sure.
"[Prosecutor]: I think that is the height of being disingenuous for him to take a break to get the sup out to question Detective Naquin. And [defense counsel] characterizes that as Naquin, with the State's help, explained it away.
"The fact of the matter is, he took a break, got the statement out. And if-the record will recall that he asked for a break to find this particular sup. He grilled Naquin ad nauseam about it, didn't get the answer he likes, and now he wants the answer stricken from the record.
"[Frazier's counsel]: That's not exactly-
"[Prosecutor]: That's exactly what happened.
"[Frazier's counsel]: Well, you know-
"THE COURT: Well, I'm not going to give any instruction or comment to the jury about the testimony of any witness. I'm not going to do it."

(R. 361-65.)

The situation here is a prime example of invited error. The record reflects that the first mention during the trial of any video evidence was during Frazier's cross-examination of Det. Naquin. The State had not presented any evidence or testimony regarding any video when Frazier began cross-examining Det. Naquin. It was Frazier who first elicited testimony from Det. Naquin regarding the substance of the video. It was Frazier who first elicited testimony from Det. Naquin about the number stamps on the video. It was Frazier who elicited testimony from Det. Naquin that Sgt. Gambrell was a video expert. And, when Det. Naquin testified that the video indicated that Sankey had been in the neighborhood where he was shot for more than five minutes, it was Frazier who used Det. Naquin's supplemental offense report to impeach Det. Naquin and offered that report into evidence. Simply put, the bulk of the testimony about which Frazier complains on appeal was elicited by him. Thus, any error in the admission of this testimony was invited by Frazier.

" 'Under the doctrine of invited error, a defendant cannot by his own voluntary conduct invite error and then seek to profit thereby.' " Jackson v. State, 620 So.2d 147, 148 (Ala. Crim. App. 1993) (quoting Phillips v. State, 527 So.2d 154, 156 (Ala. 1988) ). "[T]he appellant cannot allege as error proceedings in the trial court that were invited by [him] or that were a natural consequence of [his] own action." Inmin v. State, 668 So.2d 152, 155 (Ala. Crim. App. 1995). "The law is well settled that a party may not induce an error by the trial court and then attempt to win a reversal based on that error." Mobile Infirmary Med. Ctr. v. Hodgen, 884 So.2d 801, 808 (Ala. 2003). " 'It would be a sad commentary upon the vitality of the judicial process if an accused could render it impotent by his own choice.' " Murrell v. State, 377 So.2d 1102, 1105 (Ala. Crim. App. 1979) (quoting Aldridge v. State, 278 Ala. 470, 474, 179 So.2d 51, 54 (1965) ).

Moreover, as this Court explained in Shaw v. State, 207 So.3d 79 (Ala. Crim. App. 2014) :

" '[E]vidence which is otherwise inadmissible is admissible to explain or rebut evidence introduced by defendant. This is true even if a defendant admits evidence during cross-examination of a State's witness, prompting the State to introduce otherwise inadmissible evidence in rebuttal. Therefore, where a defendant examines a witness so as to raise an inference favorable to defendant, which is contrary to the facts, defendant opens the door to the introduction of the State's rebuttal or explanatory evidence about the matter.'
" State v. O'Hanlan, 153 N.C.App. 546, 561, 570 S.E.2d 751, 761 (2002). 'Where one party has opened the door on an issue, the opposing party may introduce evidence to negate any false impressions created.' United States v. Goodman, 243 Fed.Appx. 137, 140 (6th Cir. 2007) (not selected for publication in the Federal Reporter). 'It is fundamental that where the defendant "opened the door" and "invited error" there can be no reversible error.' United States v. Beason, 220 F.3d 964, 968 (8th Cir. 2000)."

207 So.3d at 118-19. Additionally:

"When one party impeaches a witness by proof of an inconsistent statement made in a conversation or writing then the opposing party may bring out so much of the remainder of the conversation or writing as goes to explain away the apparent impeaching effect of the prior statement. This admissibility is an application of the much broader completeness doctrine.
"Customarily, the remainder of the conversation or writing is admissible only for the nonsubstantive purpose of rehabilitating the witness. However, if the inconsistent statement is offered for both impeachment and as truth of the matter asserted then the remainder would be admissible both to rehabilitate and substantively to rebut or offset the statement."

McElroy's Alabama Evidence, supra, § 159.03(2).

Once Frazier cross-examined Det. Naquin about the video and impeached Det. Naquin with his supplemental offense report in order to suggest to the jury that the number stamps on the video reflected the time and that Sankey had been in the neighborhood where he was shot for only a minute and a half, it was permissible for the State to rehabilitate Det. Naquin on redirect examination. The State was properly permitted to question Det. Naquin about other portions of his report, specifically those portions reflecting information he had received from Sgt. Gambrell indicating that Sankey had been in the neighborhood for over five minutes, not a minute and a half as Frazier had suggested to the jury, in order to rehabilitate Det. Naquin and to negate the impression that Sankey had not been in the neighborhood long enough to have been shot.

Moreover, because it was Frazier that elicited the majority of the testimony from Det. Naquin about which he now complains, and because any additional testimony from Det. Naquin brought out by the State was permissible as rehabilitation, there was no basis for striking any of Det. Naquin's testimony or for providing a curative instruction to the jury.

For these reasons, we find no error on the part of the trial court in allowing Frazier to elicit testimony from Det. Naquin regarding video evidence that was collected during the investigation into Sankey's shooting, in allowing the State to rehabilitate Det. Naquin with hearsay statements from Sgt. Gambrell after Frazier impeached Det. Naquin, in refusing to strike Det. Naquin's testimony, and in refusing to give a curative instruction to the jury.

IV.

Finally, Frazier contends that the evidence was insufficient to sustain his convictions. Specifically, Frazier argues that Simmons's and Osborne's testimony was inconsistent with testimony they gave in a previous trial, that the physical evidence indicated that Sankey was not hit with a pistol as Simmons and Osborne testified, that Frazier's expert's testimony indicated that Sankey was not in his vehicle when he was shot as Simmons and Osborne testified, and that the only evidence of a robbery was "the inconsistent statements of Osborne and Simmons." (Frazier's brief, p. 31.)

Although Frazier purports in his brief to this Court to be challenging the sufficiency of the evidence, his argument is based solely on the conflicting evidence presented at trial and the credibility of the State's witnesses and, thus, is a challenge to the weight of the evidence, not its sufficiency.

"The weight of the evidence is clearly a different matter from the sufficiency of the evidence. The sufficiency of the evidence concerns the question of whether, 'viewing the evidence in the light most favorable to the prosecution, [a] rational fact finder could have found the defendant guilty beyond a reasonable doubt.' Tibbs v. Florida, 457 U.S. 31, 37, 102 S.Ct. 2211, 2216, 72 L.Ed.2d 652 (1982). Accord, Prantl v. State, 462 So.2d 781, 784 (Ala. Cr. App. 1984)....
"In contrast, '[t]he "weight of the evidence" refers to "a determination [by] the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other." ' Tibbs v. Florida, 457 U.S. at 37-38, 102 S.Ct. at 2216 (emphasis added)."

Johnson v. State, 555 So.2d 818, 819-20 (Ala. Crim. App. 1989), on return to remand, 576 So.2d 1279 (Ala. Crim. App. 1990), rev'd on other grounds, 576 So.2d 1281 (Ala. 1991). "The issue of the weight of the evidence is preserved by a motion for a new trial, stating 'that the verdict is contrary to law or the weight of the evidence.' " Zumbado v. State, 615 So.2d 1223, 1241 (Ala. Crim. App. 1993). Although Frazier filed a motion for a new trial, he did not challenge the weight of the evidence in that motion. Therefore, this issue is not properly before this Court for review. See, e.g., Douglas v. State, 900 So.2d 1271, 1272 (Ala. Crim. App. 2004) ; and Underwood v. State, 834 So.2d 819, 822 (Ala. Crim. App. 2001).

In any event, Frazier's argument is meritless. Any "inconsistencies and contradictions in the State's evidence, as well as [any] conflict between the State's evidence and that offered by the appellant, [go] to the weight of the evidence and [create a question] of fact to be resolved by the jury." Rowell v. State, 647 So.2d 67, 69-70 (Ala. Crim. App. 1994). " ' "[T]he credibility of witnesses and the weight or probative force of testimony is for the jury to judge and determine." ' " Johnson, 555 So.2d at 820 (quoting Harris v. State, 513 So.2d 79, 81 (Ala. Crim. App. 1987), quoting in turn Byrd v. State, 24 Ala. App. 451, 451, 136 So. 431, 431 (1931) ). "We have repeatedly held that it is not the province of this court to reweigh the evidence presented at trial." Johnson, 555 So.2d at 820. " 'When the jury has passed on the credibility of evidence tending to establish the defendant's guilt, this Court cannot disturb its finding.' " Rowell, 647 So.2d at 69 (quoting Collins v. State, 412 So.2d 845, 846 (Ala. Crim. App. 1982) ). Furthermore, " '[t]his Court must view the evidence in the light most favorable to the State, and "draw all reasonable inferences and resolve all credibility choices in favor of the trier of fact." ' " D.L. v. State, 625 So.2d 1201, 1204 (Ala. Crim. App. 1993) (quoting Woodberry v. State, 497 So.2d 587, 590 (Ala. Crim. App. 1986) ). "Any issues regarding the weight and credibility of the evidence are not reviewable on appeal once the state has made a prima facie case." Jones v. State, 719 So.2d 249, 255 (Ala. Crim. App. 1996), aff'd, 719 So.2d 256 (Ala. 1998).

Viewed in the light most favorable to the State, the evidence adduced at trial, as set out at the beginning of this opinion, was more than sufficient to establish a prima facie case of both counts of capital murder as charged in Frazier's indictment. Any conflicts in the evidence and the credibility of the witnesses were for the jury to determine. The jury obviously resolved those issues adversely to Frazier, and we will not disturb those findings on appeal.

V.

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

AFFIRMED.

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

      Before trial, the trial court determined that Frazier was intellectually disabled and, therefore, not eligible for the death penalty. See Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

      Davis was also charged for his participation in the crime; he was acquitted after a jury trial.

      Although Frazier's counsel indicated to the trial court that Brandy had informed him that she had not given any letter to Det. Naquin, Brandy was not called to testify at trial.

      Simmons specifically denied that he had testified in the prior trial that he had never been in Osborne's vehicle the day of the shooting. When confronted with the transcript of his prior testimony, Simmons stated that the transcript indicating a negative response to two questions regarding whether he had been in Osborne's vehicle was incorrect. The transcript of Simmons's prior testimony, which is included in the record on appeal, indicates that when Simmons was asked if he was in Osborne's vehicle at any point the day of the shooting, Simmons responded affirmatively, stating "Uh-huh," but the court reporter then typed in parentheses "negative response." (C. 807.) When the question was repeated, Simmons again responded affirmatively, stating "Uh-huh," but again the court reporter typed in parentheses "negative response." (C. 807.) On redirect examination, the prosecutor cleared up the confusion. Simmons testified on redirect that he did not say "negative response," as the court reporter had typed and that the court reporter apparently misunderstood his response.

      The bulk of Frazier's cross-examination of Osborne was about Osborne's statement to police, not Osborne's testimony at the prior trial.

      Although Frazier offered the transcript after he had rested his case, a trial court has discretion to allow a party to reopen its case. See Rule 19.1(h), Ala. R. Crim. P. The State did not object to the admission of the transcript on the ground that Frazier had already rested his case and the trial court's ruling was not based on the timing of Frazier's offer.

      Frazier also relies on Rule 16.6(e), Ala. R. Crim. P. However, in Baker v. State, 87 So.3d 587, 601 (Ala. Crim. App. 2009), this Court recognized that Rule 16.6(e) applies only to depositions, not to prior trial testimony.

      Of course, "[i]f a contradictory statement in a document is so interwoven with a noncontradictory statement therein as to render it impracticable to show the contradictory statement without showing the noncontradictory statement, then the whole of the document is admissible." McElroy's Alabama Evidence, supra, § 159.01.

      This is incorrect. When asked by the State if the numbers reflected the number of minutes or hours that were recorded, Det. Naquin stated that they did not.

      The record indicates that after Det. Naquin testified on cross-examination that Sankey had been in the neighborhood over five minutes, Frazier requested a recess so that he could find Det. Naquin's supplemental offense report.


text:
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    District Court of Appeal of Florida, First District.
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    District Court of Appeal of Florida, First District.
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    No. 1D18-0380
    District Court of Appeal of Florida, First District.
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    No. 1D17-5048
    District Court of Appeal of Florida, First District.
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    No. 1D18-0775
    District Court of Appeal of Florida, First District.
    October 24, 2018 Rehearing Denied December 18, 2018
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    No. 1D18-2420
    District Court of Appeal of Florida, First District.
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    No. 1D18-0730
    District Court of Appeal of Florida, First District.
    October 23, 2018 Rehearing Denied December 13, 2018
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    No. 1D17-167
    District Court of Appeal of Florida, First District.
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    District Court of Appeal of Florida, First District.
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    October 26, 2018 Rehearing Denied December 13, 2018
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    Johnnie JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1611
    District Court of Appeal of Florida, First District.
    October 24, 2018 Rehearing Denied December 12, 2018
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    Charles CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-321
    District Court of Appeal of Florida, First District.
    November 21, 2018
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   AFFIRMED.


text:
    Anthony R. GRIEGO, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5079
    District Court of Appeal of Florida, First District.
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    Donald Garry FEHRMAN, Appellant, v. GATEWAY COMMONS II CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 1D17-4555
    District Court of Appeal of Florida, First District.
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    District Court of Appeal of Florida, First District.
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    District Court of Appeal of Florida, First District.
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    No. 1D18-2254
    District Court of Appeal of Florida, First District.
    December 3, 2018
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    Thomas EVERSOLE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3152
    District Court of Appeal of Florida, First District.
    December 3, 2018
    DECISION WITHOUT PUBLISHED OPINION
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