Alabama Law Weekly A weekly summary of Alabama law developments Joan-Marie Kettell Dean Editor Vol. 17, No. 15 April 11, 2008 11th Circuit applies limitations to arbitration The Eleventh Circuit Court of Appeals recently considered issues relating to arbitration awards and the statute of limitations in Brotherhood of Locomotive Engineers and Trainmen General Committee of Adjustment CSX Transportation Northern Lines v. CSX Transportation, Inc., (No 07-12624), __ F.3d __ (11th Cir. 2008). Facts and procedural history. In 2002, T.R. Pitzen, an employee of CSX Transportation, Inc. (“CSX”), claimed a nearly three-week absence from work because of a neck injury. It was later discovered that he had participated in a karate tournament during that time and won the heavyweight title at that tournament. CSX charged Pitzen with dishonesty and terminated him. On behalf of Pitzen, the Brotherhood of Locomotive Engineers and Trainmen General Committee of Adjustment CSX Transportation Northern Lines (“BLET”) challenged the dismissal. Pursuant to the parties’ collective bargaining agreement and a separate arbitration agreement that established Public Law Board 5959 (“the Board”), the parties referred Pitzen’s claim to the Board. On June 2, 2004, the arbitrator sustained Pitzen’s claim, and gave CSX 30 days to reply. CSX reinstated Pitzen but did not pay him back wages for the period of his dismissal. On February 9, 2006, BLET requested that the arbitrator clarify whether the award required payment of back wages. On April 7, 2006, the arbitrator clarified that back wages were required. On August 1, 2006, BLET filed a petition for enforcement with the district court. CSX moved to dismiss because the two-year statute of limitations barred the petition. The district judge granted CSX’s motion and additionally decided that the Board had issued an interpretation of the award under 45 U.S.C. Section 153 First (m), which did not toll the statute of limitations. BLET appealed that order. The Eleventh Circuit’s analysis and decision. The Court pointed out that there was no dispute that the applicable statute of limitations under the Railway Labor Act, 45 U.S.C. Section 151, et seq. (“RLA”), was two years. The statute of limitations for RLA enforcement actions states that all actions at law based on the provisions of this section shall begin within two years from the time the cause of action accrues under the award of the Board. The Court pointed out that BLET’s interpretation that the cause of action accrues when the carrier refuses to comply with the award disregards the plain language of the remainder of the statute. The plain meaning of “within the time limit in such order” is that a cause of action to enforce an award arises at the end of the time limit set forth in that award. Here, the Court concluded that BLET had reasonable basis to know that CSX was not going to pay Pitzen back wages when it did not do so by July 2, 2004, the date specified in the award for compliance. Therefore, BLET’s cause of action accrued on the date following the deadline for compliance stated in the award, or July 3, 2004. Because BLET waited more than two years after that date to file its petition, the Court found that the district court properly dismissed BLET’s enforcement action as barred by the two-year statute of limitations. BLET argued in the alternative that, even if its cause of action accrued on July 3, 2004, the district judge still erred in dismissing the case because BLET’s request for an interpretation from the Board as to whether CSX had to pay back wages tolled the running of the statute of limitations. The Court rejected this argument, first noting that equitable tolling of the statute of limitations is a form of extraordinary relief that courts have extended only sparingly. The Court explained that equitable tolling is only available if a petitioner establishes (1) extraordinary circumstances and (continued on page 2) Highlights • Supreme Court affirms $130,500 judgment for breach of • • • • contract and tortious interference with business relations; lessee of real property was not required to record an amendment to the lease and property owner’s failure to honor lease was improper, page 2. Court of Civil Appeals reverses fraud judgment and holds that representations made by seller of used vehicle did not create express warranty, page 2. Court of Civil Appeals affirms trial court’s grant of summary judgment in personal injury action holding that plaintiff unduly delayed in filing amendment to complaint, page 3. Court of Criminal Appeals upholds capital murder conviction of Houston County man who abused wife and kept her in confinement until her sepsis caused her extremities to rot and ultimately, led to her death, page 4. Court of Criminal Appeals holds that police officer did not have right to stop defendant and frisk him where evidence demonstrated that police officer’s actions were motivated by an anonymous tip received that person matching defendant’s description was carrying a gun, page 5. ALABAMA LAW WEEKLY (ISSN 1063-2603) (USPS 22591) is published weekly by M. Lee Smith Publishers LLC, 5201 Virginia Way, P.O. Box 5094, Brentwood, TN 37024-5094. Periodicals postage paid at Brentwood, TN and additional offices. POSTMASTER: Send address changes to Alabama Law Weekly, P.O. Box 5094, Brentwood, TN 37024-5094. Subscriptions, case copies, and other calls, 1-800-ALALAWS (1-800-252-5297). Copyright 2008 M. Lee Smith Publishers LLC. Photocopying or reproducing in any other form in whole or in part is a violation of federal copyright law and is strictly prohibited without the publisher’s consent. (2) due diligence. Applying the foregoing formula to the case at bar, the Court pointed to BLET’s delays. The Court found it significant that BLET could have sought an interpretation when CSX first showed it did not intend to pay Pitzen’s back wages back in 2004. BLET, however, waited until February 9, 2006, to request an interpretation. Even when the arbitrator issued an interpretation on April 7, 2006, BLET waited until August 1, 2006, to file its petition for enforcement. “These delays show BLET’s lack of diligence and such lack of diligence is inimical to a request for tolling.” The Court explained further that BLET could have pursued an interpretation while it sought to enforce the award. The Court cited the Seventh Circuit, which has explained that the two procedures, enforcement and interpretation, should proceed independently of, and simultaneously with, each other. Requests for interpretation do not affect the finality of arbitration awards. “BLET should have filed its enforcement action prior to or simultaneous with its request for an interpretation. Its delay in seeking an enforcement action barred BLET’s action under the two-year state of limitations and is fatal to its case.” Supreme Court — Civil ▼ Supreme Court affirms $130,500 judgment for breach of contract and tortious interference with business relations; lessee of real property was not required to record an amendment to the lease and property owner’s failure to honor lease was improper. PROPERTY: Leases. LEGAL PROFESSION: Disqualification. Beatrice Tedescki leased certain property to four individuals in 1978 (hereinafter referred to as “the lessees”). The lease was for a term of 25 years, but the lessees had the option of extending the lease for eight successive five-year periods. The lease was recorded in the probate office in 1978, as required by Ala. Code 1975, Section 35-4-6. The lessees executed a mortgage in favor of the National Bank of Commerce (“NBC”). They eventually defaulted on the loan and Rogina Investment Corporation, which had been assigned the mortgage, foreclosed, purchasing the leasehold interest at the foreclosure sale. In 1989, Tedescki died, bequeathing the property to Ronald Gilbert. In 1991, Rogina exercised its first option to extend the lease term. In 2000, Rogina exercised the remainder of its options to extend the lease term through 2043. In 2001, Rogina asked permission, pursuant to the lease, to make improvements to the structure on the property. Gilbert refused to grant such permission and contended that the lease was void because the amendment to the lease executed in 1978 was not recorded in the probate office until 1985. Gilbert stated that he was willing to negotiate a new contract with Rogina, but the parties were unable to reach an agreement and Rogina lost a prospective tenant as a result of the delay. Rogina sued Gilbert, alleging breach of contract, tortious interference with a business relationship, and seeking a declaration that Rogina was entitled to make structural alterations to the building and that the lease was valid through 2043. The trial court denied Gilbert’s motion for summary judgment on the basis that the lease was void because the amendment was not recorded within one year of 2 its execution. The trial court granted Rogina’s motion for partial summary judgment, declaring that Rogina did not have to seek Gilbert’s consent to make structural alterations to the building until five years before the lease was to expire. After a bench trial, the trial court found in favor of Rogina on the contract and tortious interference claims, awarding damages of $130,500 plus interest and attorneys fees. Gilbert appealed. Affirmed. The Court explained that Section 35-46 requires that leases for more than 20 years must be recorded in the probate court within one year in order to be valid. The Court disagreed with Gilbert’s argument that under the doctrine of merger, the amended lease agreement was the “one and only lease” and was thus void because it was not recorded until over six years after it was executed. While the Court acknowledged that while the lease and amendment constituted one lease, Section 35-4-6 is unambiguous in requiring the recording of only a “lease or a memorandum thereof.” The Court therefore concluded that the plain language of the statute permitted no construction that it required the recording of an amendment to the lease. Ex parte Achenbach, 783 So.2d 4 (Ala. 2000)[9 ALW 21-5]. “Because Rogina met the requirements of § 35-4-6 by filing the lease with the Jefferson County Probate Office within one year of its execution, the lease is valid for its entire term, including the eight optional extensions of five years each.” The Court also rejected Gilbert’s contention that the trial court erred by denying its motion to disqualify Rogina’s attorney because of statements made in a letter and because of the possibility that he might be called as a witness at trial, because the Court could not discern how any of the attorney’s words were “adverse” to his client. The Court finally declined to consider Gilbert’s remaining arguments because he failed to cite authority for those arguments, or because they were raised for the first time on appeal. Steele v. Rosenfeld, LLC, 936 So.2d 488 (Ala. 2005)[14 ALW 47-8]. Gilbert v. Rogina Investment Corporation, 17 ALW 15-1 (1050161), 4/4/08, Jefferson Cty., Cobb; See, Woodall, Stuart, Bolin, and Parker concur; Lyons and Murdock concur in the result, 27 pages. [Appt: Timothy Arnold, Bessemer; Apee: Henry Frohsin, Birmingham] Court of Civil Appeals ▼ Court of Civil Appeals reverses fraud judgment and holds that representations made by seller of used vehicle did not create express warranty. TORTS: Fraud. Kevin Wilson purchased a motorcycle from David Russell. The parties executed two original copies of a bill of sale. The purchase price was $3,000 and the bills of sale indicated that the sale was “as is.” Wilson asked Russell about the condition of the motorcycle and was told that the “carbs needed to be tweaked, but other than that, it’s in fine working order.” The battery on the motorcycle was not working when Wilson went to inspect it and Russell used a “boost” to charge it. Wilson testified that the motorcycle was “spitting and sputtering.” After the purchase, Wilson drove the motorcycle approximately three miles when it started exhibiting problems. A mechanic inspected it and advised Wilson that it would cost $3,000 to repair the motorcycle. Wilson asked Russell to rescind the contract but Russell refused. Russell stated that he told Wilson that there were problems with the motorcycle. Wilson sued Russell for fraudulent misrepresentation and suppression. The district court awarded him $3,476. Russell appealed to the circuit court and it held for Wilson, awarding him $3,500. Russell appealed. Reversed. In order to prevail on his fraud claim, Wilson had to show that Russell made statements as to the condition of the motorcycle that were statements of fact and not mere statements of opinion amounting to nothing more than sales talk or puffery. Gable v. Boles, 718 So.2d 68, 71 (Ala.Civ.App. 1998)[7 ALW 9-13]. In this case, the statements allegedly made by Russell were not sufficient to support an action for fraud. The “as is” language in the bill of sale is sufficient to disclaim all implied warranties. “However, Wilson’s fraud claims are based upon statements that, Wilson alleges, create an express warranty pursuant to § 7-2-313, Ala.Code 1975, and were not disclaimed by the ‘as is’ clause in the bill of sale.” Wilson claimed that Russell stated that the motorcycle was “mechanically fine” and “in good shape.” The dispositive issue is whether Wilson was entitled to rely on these statements in light of the fact that he signed an “as is” disclaimer. The Court examined prior precedent and concluded that no express warranty was created in this case. The judgment of the trial court is due to be reversed. Russell v. Wilson, 17 ALW 15-2 (2060561), 4/4/08, Baldwin Cty., Thomas; Thompson, Pittman, and Bryan concur; Moore concurs in the result, without writing, 11 pages. [ATTY: Appt: Thomas P. Ollinger, Jr., Mobile; Apee: Joseph Norton, Fairhope] ▼ Court of Civil Appeals affirms trial court’s grant of summary judgment in personal injury action holding that plaintiff unduly delayed in filing amendment to complaint. Rector v. Better Houses, Inc., 820 So.2d 75, 78 (Ala. 2001)[10 ALW 26-5]. In this case, the information that Jackson was driving was available to Nettles shortly after the accident. In spite of that fact, the amended complaint was not filed until February 2007. This constitutes undue delay. White did not assert undue delay as a ground in support of his summary judgment motion. Nonetheless, the court will affirm the trial court on any valid legal ground presented by the record unless it falls into one of the limited exceptions including due process concerns or where an affirmative defense could have been available. No exception exists in this case. The judgment of the trial court is due to be affirmed. Nettles v. White, 17 ALW 15-3 (2061038), 4/4/08, Montgomery Cty., Bryan; Pittman concurs; Thompson, Thomas, and Moore concur in the result, without writings, 10 pages. [ATTY: Appt: Deborah Nickson, Montgomery; Apee: Michael L. White, Montgomery] WORKERS’ COMPENSATION: Judgment. Travis Aderhold sued Massey Chevrolet, Inc., seeking to recover workers’ compensation benefits. The parties settled the action and the settlement was affirmed by the trial court on March 26, 2007. Aderhold retained the right to recover future medical expenses related to his workplace injury. On May 9, 2007, Adherhold filed a motion to compel Massey Chevrolet to pay for necessary medical treatment. Specifically, he sought treatment for services rendered by Dr. Charles Aprill. Massey Chevrolet asserted that it would not be liable for said treatment because it was not related to Adherhold’s workplace injury and because Dr. Aprill was no longer an authorized physician. The trial court held a hearing after which it ordered Massey Chevrolet to fund the treatment prescribed. Massey Chevrolet appealed. Reversed. Ala. Code 1975, § 25-5-88, requires a judgment in a workers’ compensation case to contain a statement of the law and the facts and conclusions as determined by the trial judge. The court’s judgment in this case contains no findings of fact or conclusions of law. Accordingly, it is due to be reversed. Massey Chevrolet, Inc. v. Aderhold, 17 ALW 15-4 (2070099), 4/4/08, Mobile Cty., Bryan; Pittman and Thomas concur; Thompson and Moore concur in the result, without writings, 5 pages. [ATTY: Appt: Rudene Oldenburg, Mobile; Apee: Richard Browning, Mobile] CRIMINAL PROCEDURE: Court Record. Terry Jackson was arrested and charged with capital murder, discharging a firearm into an unoccupied building, and two counts of discharging a firearm into an occupied building. Those cases were dismissed. Jackson, a federal inmate in Mississippi, filed a petition in circuit court seeking to “expunge and seal” his criminal records. The trial court entered a judgment denying Jackson’s petition. Jackson appealed. The Court of Criminal Appeals transferred that appeal to the Court of Civil Appeals. Affirmed. Jackson argued that the trial court was required to explain its rationale in denying his motion. He failed to cite any authority for his argument. Moreover, in State v. Blane, [Ms. 1060514, August 17, 2007] ___ So.2d ___ (Ala. 2007)[16 ALW 34-6], the Alabama Supreme Court issued a writ of mandamus directing a circuit court to vacate an order expunging the court’s record of a petitioner’s criminal proceedings leading to his conviction for thirddegree theft. A criminal record can be purged, modified, or supplemented if it is “inaccurate, incomplete or misleading.” A record can be made to be accurate but it cannot be made to 3 CIVIL PROCEDURE: Amendment. On November 30, 2006, Stephanie Nettles sued Arnold White, alleging that White had negligently or wantonly operated a motor vehicle on December 1, 2004, causing it to collide with her vehicle and injuring her. Nettles’s complaint did not include any fictitiously named defendants. On February 15, 2007, Nettles amended her complaint to allege that White’s employee, Termain Jackson, had negligently or wantonly operated White’s vehicle on December 1, 2004, proximately causing Nettles’s injuries. The amended complaint added claims for negligent entrustment against White. White moved for summary judgment based on the statute of limitations. White presented a copy of the accident report, which named Jackson as the driver of White’s vehicle. Nettles argued that the claims filed in her amended complaint related back to the date she filed her original complaint because they arose out of the same transaction or occurrence. The trial court granted summary judgment. Nettles appealed. Affirmed. Ala.R.Civ.P. 15(c) states that an amendment to a pleading relates back to the date of the original pleading when it arises out of the same conduct, transaction, or occurrence as the claim alleged in the original complaint. In this case, the claims alleged in Nettles’s amended complaint arose out of the same occurrence as the claim alleged in her original complaint. Thus they relate back to the date the complaint was originally filed. The analysis did not stop here. White argued that Nettles unduly delayed in filing her amended complaint. “Undue delay in filing an amendment [to a complaint], when it could have been filed earlier based on the information available or discoverable, is in itself ground for denying an amendment.” disappear. In this case, Jackson failed to show that the record was “inaccurate, incomplete or misleading.” Accordingly, the judgment of the trial court is due to be affirmed. Jackson v. State of Alabama, 17 ALW 15-5 (2061171), 4/4/08, Mobile Cty., Per curiam; unanimous, 6 pages. [ATTY: Appt: Not listed; Apee: Yvonne Saxon, Asst. Atty. Gen.] CIVIL PROCEDURE: Jurisdiction. Roy Allen is the pastor of Pine Grove Baptist Church, Inc. In 2007, members of the church, led by Deacon Mitchell Carter, decided that they wanted to dismiss Pastor Allen. Carter asked the pastor and the deacons to call a congregational meeting to discuss same. His request was denied. Carter tried to call a meeting on his own and posted notices. The notice said that the meeting was scheduled for April 5, 2007. After a service on April 1, 2007, Carter announced that the April 5th hearing was cancelled. Carter then contacted members and told them that the meeting was “back on.” A group of parishioners attended the meeting and voted to dismiss Pastor Allen. Pastor Allen and those who supported him refused to acknowledge the action of the minority group of members who attended the April 5, 2007, meeting. On April 10, 2007, Deacon Willie Jones, the chairman of the deacons of the church and Deacon Tommy Carter, the chairman of the trustees of the church (hereinafter collectively referred to as “the church plaintiffs”) filed a verified complaint for injunctive and other relief seeking to have the actions taken at the April 5, 2007, meeting nullified. Mitchell Carter, Regina Dent, Jimmy Carter, Johnny Carter, and Jesse Hines (hereinafter referred to as “the Carter defendants”) were named as defendants. A temporary restraining order was issued enjoining church attendees from interfering with or interrupting church services or from holding any business meetings and permitting the financial activities of the church to proceed normally. At a hearing on the temporary restraining order, the parties agreed to hold a vote on the status of the pastor. After the vote was conducted, the trial court entered an order requiring that Pastor Allen be removed as pastor. The church plaintiffs appealed. Appeal dismissed. Courts do not have jurisdiction to resolve disputes regarding a church’s ecclesiastical or spiritual affairs. Jurisdiction does exist to determine issues of civil or property rights. Abyssinnia Missionary Baptist Church v. Nixon, 340 So.2d 746, 748 (Ala. 1976). In Williams v. Jones, 258 Ala. 59, 61 So.2d 101 (1952), the Court held that it had no jurisdiction to consider whether a church pastor was properly retained by the members of the congregation. In this case, “the trial court overstepped its bounds by conducting an election for the church, and although the trial court’s actions were taken at the insistence and agreement of the parties, the resulting judgment, entered as it was without subject-matter jurisdiction, is void.” The appeal from that void judgment is due to be dismissed. Pine Grove Baptist Church, Inc., et al. v. Carter, et al., 17 ALW 15-6 (2070143), 4/4/08, Sumter Cty., Thomas; Thompson, Pittman, Bryan, and Moore concur, 8 pages. [ATTY: Appt: Chriss Doss, Hoover; Apee: I. Drayton Pruitt, Jr., Livingston] FAMILY LAW: Child Support — Contempt — Postminority Support. The parties were previously divorced. The mother was awarded physical custody of the parties’ two minor children and the father was required to pay child support in the amount of $389 per month. In August 2006, the mother filed a motion seeking to increase the father’s child support obligation. She also requested that the father be 4 required to reimburse her for her share of unpaid medical expenses in a “timely manner.” The father filed an answer and counterclaim, seeking a decrease in his child support. After a trial, the court increased the father’s child support obligation to $617 per month “until the children have completed their formal college education or turn 23 years of age, whichever occurs first.” The trial court also assessed a judgment for unpaid medical expenses against the father. It determined that the father would have no visitation with the parties’ eldest child unless she chose to visit with him. The father was only permitted to have daytime visitation with the younger child every other weekend. The father appealed. Affirmed in part; reversed in part. (1) The first issue considered on appeal was whether the trial court erred in its assessment of a judgment for past due uncovered medical expenses and past-due child support. The mother presented a composite exhibit of medical bills and receipts. The father did not object to the introduction of that exhibit. The mother’s testimony was uncontroverted. The trial court did not err by entering an award for the amount she claimed to be due. (2) The trial court found the father to be in contempt. He argued that the mother should have been held in contempt for not permitting visitation. Neither party filed a motion seeking to hold the other in contempt. The father did not raise the clean-hands doctrine to the trial court. Therefore, the court cannot be held in error for failing to apply same. (3) The father objected to the court’s calculation of child support. No income affidavits are contained in the record. “We have long revered child support awards in such situations. However, we have also determined that, when the record otherwise establishes the parties’ respective incomes, we need not reverse the child-support award for such a technicality.” In this case, the record supports the trial court’s imputation of income to the father in the amount used in the child support guidelines. However, the trial court’s judgment is due to be reversed in part because of the requirement that the father’s child support continue past the age of majority. Evidence was adduced indicating that the parties’ eldest child was a junior in high school and had aspirations to attend college. Moreover, she suffered from a serious medical condition. The mother did not present evidence necessary for an award of postminority educational support. This portion of the trial court’s judgment is due to be reversed. Knight v. Knight, 17 ALW 15-7 (2060801), 4/4/08, Randolph Cty., Thomas; Thompson, Pittman, and Bryan concur; Moore concurs in the result, without writing, 11 pages. [ATTY: Appt: Walden Buttram, Gadsen; Apee: S. Sanford Holliday, Roanoke] Court of Criminal Appeals ▼ Court of Criminal Appeals upholds capital murder conviction of Houston County man who abused wife and kept her in confinement until her sepsis caused her extremities to rot and ultimately, led to her death. CRIMINAL LAW: Capital Murder — Kidnapping. CRIMINAL PROCEDURE: Effective Counsel — Jury Instruction — Lesser Included Offense. In May 2004, Michael Sale placed a telephone call to 911 and requested help for his 48-year-old wife, Lynn. When paramedics arrived, they discovered that Lynn’s extremities were turning black. She was lying in a twin bed covered with dirty, stained linens. Sale told the paramedics that his wife had seen a doctor two weeks earlier but that the doctor did not know what was wrong with her. Lynn was transported to the hospital. She was in renal failure and respiratory failure when she arrived at the hospital. Her extremities were turning black because she was suffering from sepsis, a bacterial infection that enters the bloodstream generally through a cut or a break in the skin. Her doctor, Dr. Purvis, suspected that Lynn had been the victim of domestic abuse. She had a broken rib, black eyes, and “cauliflower ear.” She was covered with bruises, human bite marks, scratches, and cuts. There was significant swelling in her genitalia. Tests showed that Lynn had suffered a heart attack and several small strokes prior to her admission. She had a tampon in her vagina that had been left there for a number of weeks. A nurse who treated Lynn testified that her fingers and toes were hard and “crispy.” She said that Lynn’s nose was “just like a piece of charcoal sitting up there.” Lynn was able to communicate and told the nurse that “Michael hurt me, he did this to me.” Lynn died approximately two weeks after being taken to the hospital. A search warrant executed on the Sales’ home revealed filthy clothes belonging to Lynn. Investigators also found wads of hair matching Lynn’s and a handwritten note asking “Do you hurt, yes or no.” Ryan Sale, the 23-year-old son of Lynn and Sale, testified that his father often physically abused Lynn. In 2000 or 2001, Lynn finally called the police. Sale was convicted and sentenced to serve two years in prison. He served 11 months. As a condition of probation, Sale was subject to a restraining order that prohibited him from having any contact with Lynn. In spite of this order, he returned to the marital residence. Sale told Lynn that he would punish her for all the money that he lost while locked up. In March or April 2004, Sale stopped working. He never left Lynn. He made her move into a gutted recreational vehicle in the back of the property. On April 15 or 16, Sale moved Lynn back into the house, but by that time she could no longer walk. Sale was convicted of murder made capital because it occurred during the course of a kidnapping. He was sentenced to death. Sale appealed. Affirmed. (1) The Court first considered whether sufficient evidence was presented to support the kidnapping charge. A person commits the crime of kidnapping in the first degree if he abducts another person with intent to inflict physical injury upon that person or terrorize him. In this case, evidence was presented that Sale kept Lynn sequestered and stayed with her full time. “The State presented sufficient evidence from which a jury could have reasonably determined that Sale restrained Lynn by keeping her in such a place that she was not likely to be found and that he also used force or the threat of force to keep her from getting away from him to seek help.” (2) Sale argued that a mistrial should have been declared when his lead counsel fell ill during the trial. The record of the proceedings does not reflect the absence of lead counsel or the request for a mistrial. Because this is a capital murder case, the Court reviewed this issue even though, under general rules, it was not preserved for appellate review. A person indicted for a capital offense who cannot afford an attorney must be appointed counsel having no less than five years’ experience in the active practice of criminal law. Ala. Code 1975, § 13A-5-54. Sale was represented by two attorneys, both of whom met these statutory requirements. “Therefore, [Sale] was at all times represented by the counsel 5 to which he was entitled, thus, there was no basis upon which to declare a mistrial.” (3) Sale requested, but was denied, a change of venue. In order to be entitled to a venue change, the defendant must show that he suffered actual prejudice or that the community was saturated with prejudicial publicity. Samra v. State, 771 So.2d 1108, 1113 (Ala.Crim.App. 1999). To prove “actual prejudice,” the defendant must show that at least one of the jurors who heard the case entertained the opinion that the defendant was guilty before hearing the evidence. Sale made no such claim in this case. To prove “presumed prejudice,” Sale had to prove that prejudicial pretrial publicity so saturated the county in which he was tried that it had a “probable prejudicial impact on the prospective jurors.” The record shows news coverage regarding this case. Sale did not, however, present any evidence as to the effect, if any, that this media coverage had on members of the Houston County community. Moreover, most of the media coverage was entirely factual and objective. “Thus, Sale has not shown that the pretrial publicity in this case was so inherently or presumptively prejudicial as to constitute one of those ‘extreme situations’ that warrant a presumption of prejudice from pretrial publicity.” (4) The trial court instructed the jury on the lesser included offense of felony murder. The instruction regarding same incorrectly included a mens rea element into what must be proven to sustain a conviction for felony murder. It also appeared to confuse the offense of reckless murder with the offense of manslaughter. Even though an incorrect jury instruction was given, the judgment should not be set aside unless it appears that the error complained of has probably injuriously affected Sale’s substantial rights. Ala.R.App.P. 45. “Given the range of possibilities that the jury had before it, the jury’s verdict of capital murder makes clear that it determined that Sale intentionally caused Lynn’s death and that her death occurred during the course of a kidnapping in the first degree.” The court’s failure to charge the jury appropriately on felony murder did not injure Sale’s substantial rights. (5) The trial court also gave an erroneous charge during the penalty phase of the trial. It improperly advised the jury that it had to find that the mitigating circumstances outweighed the aggravating circumstances in order to recommend a sentence of life in prison without the possibility of parole. No guidance was given to the jury as to what it should do if it found that the aggravating circumstances and the mitigating circumstances were equally balanced. This error, however, did not seriously affect the fairness, integrity, or public reputation of this trial. (6) The Court examined the propriety of the sentence imposed and found that it was not disproportionate or excessive when compared to penalties imposed in similar cases. Sale’s conviction and sentence are due to be affirmed. Sale v. State of Alabama, 17 ALW 15-8 (CR-05-1447), 4/4/08, Houston Cty., Welch; Baschab, McMillan, and Wise concur; Shaw concurs in the result, 50 pages. [ATTY: Appt: M. Hampton Baxley, Dothan; Apee: Michael Nunnelley, Asst. Atty. Gen.] ▼ Court of Criminal Appeals holds that police officer did not have right to stop defendant and frisk him where evidence demonstrated that police officer’s actions were motivated by an anonymous tip received that person matching defendant’s description was carrying a gun. CRIMINAL LAW: Search & Seizure. James George, a Tarrant police officer, testified that he received a dispatch in reference to a black male carrying a firearm. He saw an individual matching the description provided and confronted B.J.C. He made B.J.C. lie on the ground and began patting down the back of his pants. He asked B.J.C. where the gun was. B.J.C. initially denied having one, but eventually told Officer George that he had a gun in his back pocket. Officer George found a small handgun there. He then had B.J.C. roll over and found another gun in his front waistband. B.J.C was adjudicated delinquent after pleading guilty to the underlying charge of carrying a concealed weapon. Before pleading guilty, B.J.C. reserved the right to appeal the trial court’s denial of his motion to suppress. Reversed. In Florida v. J.L., 529 U.S. 266 (2000), an anonymous caller reported to the police that a young black male was at a particular bus stop wearing a plaid shirt and carrying a gun. The officers went to the bus stop, saw a person matching the description given, and frisked him. A gun was seized from J.L.’s pocket. The United States Supreme Court held that an anonymous tip that a person is carrying a gun is not, without more, sufficient to justify a police officer’s stop and frisk of that person. In making its decision, the Supreme Court noted that the anonymous tip, standing alone, lacked the indicia of reliability necessary to justify the search. The Court held that if it created an exception to the requirement that a police search be based on a reasonable suspicion in cases such as this, it “would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely reporting the target’s unlawful carriage of a gun.” Based on the authority of Florida v. J.L., the judgment of the trial court is due to be reversed. B.J.C. v. State of Alabama, 17 ALW 15-9 (CR-07-0445), 4/4/08, Jefferson Cty., Welch; Baschab, McMillan, Shaw, and Wise concur, 9 pages. [ATTY: Not listed] CRIMINAL LAW: Search & Seizure. On May 12, 2006, police officers were called to a laundromat. Several females in the laundromat told police that three or four black males had entered the laundromat, held guns on them, and demanded money. The women spoke little English and when they did not understand what the males were saying, the men began hitting them. A be-on-the-lookout (“BOLO”) was broadcast to the Montgomery police describing the suspects. A Montgomery police officer, A.D. Ferguson, saw a vehicle leaving a gas station near the scene of the robberies. He stopped the vehicles based on the BOLO. Officer Ferguson saw Trevis Green and a passenger lean over as though they were putting something between the seats. When conducting a search for weapons, Officer Ferguson discovered a bag containing marijuana packaged for individual sale. The four men were taken to the laundromat where the female victims remained. None of the men was identified as having been involved in the robberies. Green was indicted for possession of marijuana in the first degree. Green moved to suppress the marijuana on the grounds that Officer Ferguson had stopped Green’s vehicle without reasonable suspicion or probable cause. The trial court granted the motion. The State appealed. Reversed. A police officer may make a brief investigatory stop of an individual based upon a “reasonable suspicion” of criminal activity. Terry v. Ohio, 392 U.S. 1 (1968). When responding to a BOLO, the police officer should consider several factors including: (a) the length of time since the offense; (b) the distance from the offense; (c) the route of flight; (d) the specificity of the description of the 6 vehicle and its occupants; and (e) the source of the BOLO information. State v. Wise, 603 So.2d 61, 63 (Fla.Dist.Ct.App. 1992). In this case, the robbery occurred “mere minutes” before the stop was made. The vehicle was stopped 1.3 miles from the laundromat. The car was described as gray or dark gray with two or four black males in it. “Although probable cause did not exist to stop Green’s vehicle, we hold that the facts were minimally sufficient, based on the totality of the circumstances, to establish a reasonable suspicion for Officer Ferguson to stop Green’s vehicle to investigate for possible criminal activity.” The judgment of the trial court is due to be reversed. State of Alabama v. Green, 17 ALW 15-10 (CR-06-1871), 4/4/08, Montgomery Cty., Per curiam; McMillan and Wise concur; Baschab concurs in the result, with opinion; Shaw concurs in the result; Welch dissents, with opinion, 20 pages. [ATTY: Appt: Michael Dean, Asst. Atty. Gen.; Apee: Mary Sellers, Montgomery] CRIMINAL LAW: Search & Seizure. Ragon King pleaded guilty to the unlawful possession of a controlled substance, methamphetamine, but specifically reserved his right to appeal the circuit court’s ruling denying his motion to suppress. At the suppression hearing, it was established that the Chambers County Sheriff ’s Department had obtained a search warrant for the premises owned by Gabriel Hornsby. As officers approached the house, they saw King and a companion leave the residence, enter a vehicle, and drive up to the mailbox in front of the house. The vehicle was stopped and Deputy Terry Wood informed King of the purpose for the stop and asked him to get out of the vehicle. Wood informed King that he was going to conduct a patdown search for weapons. The patdown initially revealed a pocketknife. Wood then felt another object that he could not identify. King said he had just put on the pants and was not aware of what the object was, but gave Wood permission to retrieve the object. Wood retrieved a black film canister and opened it. It contained what Wood recognized as methamphetamines and a pink tablet. Wood then arrested King. Affirmed. King argued that the search exceeded the scope of the search warrant, specifically because he was not on the premises, nor was he specifically named in the search warrant. The Court disagreed, noting that when the officers arrived King’s vehicle was parked within the curtilage of Hornsby’s residence. A valid search warrant authorizing the search of vehicles on the subject property includes vehicles arriving at the property during the search so long as they could reasonably contain items for which the officers are searching. United States v. Tamari, 454 F.3d 1259 (11th Cir. 2006). The Court next rejected King’s argument that while King gave Wood his consent to retrieve the object, Wood exceeded the scope of that consent when he opened the film canister. The Court pointed out that there was no testimony indicating that King objected when Wood opened the canister or that King revoked his consent at any time. The Court agreed with the circuit court’s assessment that a reasonable person would have understood that retrieving the canister and finding out what it was, would necessarily include opening it up. King v. State of Alabama, 17 ALW 15-11 (CR-06-1269), 4/4/08, Chambers Cty., Per curiam; Baschab, McMillan, and Wise concur; Shaw concurs in the result; Welch dissents, 14 pages. [ATTY: Appt: Mark Carlton, Lafayette; Apee: John Davis, Asst. Atty. Gen.] CRIMINAL LAW: Driving Under the Influence. William Marshall pleaded guilty to felony driving under the influence (“DUI”) and was sentenced to five years in prison. The three prior DUI convictions upon which the felony DUI were based occurred in August 1998, February 2004, and February 2005. Marshall filed a motion in limine seeking to have the August 1998 conviction excluded from sentencing consideration because that conviction occurred more than five years before the current DUI. Affirmed as to conviction; reversed as to sentencing. The DUI statute was amended effective April 28, 2006, to state that the use of prior DUI offenses for sentencing purposes is limited to those that occurred within the five-year period immediately preceding the current conviction. Marshall was arrested on July 28, 2006. Thus, he had the benefit of the amendment to the DUI law. The question before the Court was whether the trial court had jurisdiction to accept Marshall’s plea to the misdemeanor DUI offense and to sentence him for it. Ala. Code 1975, § 12-11-30(2), states that a circuit court has jurisdiction over felony prosecutions and misdemeanor violations which are lesser included offenses within a felony charge. The district court has concurrent jurisdiction to receive pleas of guilty in non-capital felony cases. In Ex parte Parker, 740 So.2d 432 (Ala. 1999)[7 ALW 42-7], the Alabama Supreme Court held that Alabama’s felony DUI statute, Ala.Code 1975, § 32-5A-191(h), does not create a new substantive offense but rather, is a sentencing enhancement statute. Moreover, the Court established that misdemeanor DUI cannot be a lesser-included offense of felony DUI. In Pruitt v. State, 897 So.2d 402 (Ala.Crim.App. 2003), the defendant was charged with alternative counts of DUI. The Court held that the dismissal of the felony count does not remove the circuit court’s jurisdiction over a misdemeanor count when the misdemeanor count arises from the same incident as the felony count. “We now specifically hold that a circuit court retains jurisdiction of a misdemeanor DUI offense when the State fails to prove the necessary prior DUI convictions to elevate the offense to a felony.” Marshall’s conviction for misdemeanor DUI is due to be affirmed; the case is due to be remanded for resentencing. Marshall v. State of Alabama, 17 ALW 15-12 (CR-07-0004), 4/4/08, Baldwin Cty., Per curiam; McMillan, Wise, and Welch concur; Baschab and Shaw concur in part and concur in the result, with opinions, 17 pages. [ATTY: Appt: James May, Foley; Apee: James Prude, Asst. Atty. Gen.] CRIMINAL PROCEDURE: Guilty Plea. Johnny Bethea pleaded guilty to felony driving under the influence (“felony DUI”). He was sentenced to serve a term of eight years in prison and was assessed a $5,000 fine. Bethea filed a pro se motion to withdraw his guilty plea, which was denied by the trial court. He appealed. Remanded. Bethea stated that his trial counsel told him that if he pleaded guilty, he would be placed on probation for two years. The State did not refute this claim. “Because the appellant raised a claim that may be meritorious, the trial court is in the best position to make findings of fact regarding that claim.” The case is due to be remanded. Bethea v. State of Alabama, 17 ALW 15-13 (CR07-0166), 4/4/08, Baldwin Cty., Baschab; McMillan, Shaw, Wise, and Welch concur, 3 pages. [ATTY: Appt: Leonard Mikul, Bay Minette; Apee: John Davis, Asst. Atty. Gen.] CRIMINAL PROCEDURE: Postconviction Relief — Effective Counsel. J.S.K. was convicted of first-degree rape, 7 first-degree sodomy, sexual torture, and first-degree sexual abuse. He was sentenced to serve consecutive terms of 99 years in prison on the rape, sodomy, and sexual torture convictions and 10 years in prison on the sexual abuse conviction. His convictions were affirmed on direct appeal. J.S.K. subsequently filed a petition for postconviction relief pursuant to Ala.R.Crim.P. 32. The trial court held a hearing after which it denied the petition. J.S.K. appealed. Remanded. J.S.K. argued that his pre-trial, trial, and appellate attorneys rendered ineffective assistance of counsel. The trial court made general findings regarding the ineffective assistance of counsel allegations but it did not make specific findings of fact. Because J.S.K.’s allegations could be meritorious, the trial court erred by not specifically addressing them. The case is due to be remanded. J.S.K. v. State of Alabama, 17 ALW 15-14 (CR-06-1907), 4/4/08, Talladega Cty., Baschab; McMillan and Wise concur; Shaw and Welch concur in the result, 3 pages. [ATTY: Appt: Mark Nelson, Talladega; Apee: James Prude, Asst. Atty. Gen.] CRIMINAL PROCEDURE: Postconviction Relief — Effective Counsel. Courtney Robinson pleaded guilty to second-degree assault and third-degree burglary. He was sentenced, as a habitual felony offender, to serve concurrent terms of life in prison. He did not appeal his convictions. Robinson subsequently filed a petition for postconviction relief pursuant to Ala.R.Crim.P. 32. He argued that his trial counsel rendered ineffective assistance because he advised him to reject the State’s offer of a 20-year sentence and to enter a blind plea. The trial court summarily denied Robinson’s Rule 32 petition. He appealed. Remanded. Robinson’s claim that he was denied effective assistance of counsel could be meritorious. Accordingly, the trial court erred by failing to address it. Judge Welch dissented, citing portions of the record that addressed the advice given to Robinson by his attorney. The attorney made such assertions that “we might be able to do better” and “let’s just go for that.” “A mere hope, subjective belief or expectation of the defendant and his counsel regarding the length of the sentence is insufficient to warrant withdrawal of a guilty plea unless that belief or expectation is based on a promise by the State.” Robinson v. State of Alabama, 17 ALW 15-15 (CR-070277), 4/4/08, Madison Cty., Baschab; McMillan and Wise concur; Shaw concurs in the result, and Welch dissents, with opinion, 10 pages. [ATTY: Appt: Not listed; Apee: Beth Poe, Asst. Atty. Gen.] CRIMINAL PROCEDURE: Jurors. Larry Chavers was convicted of sodomy and sexual abuse. Following his conviction and sentencing, Chavers filed a motion for new trial. While defense counsel informed the trial court that it did not intend to raise questions as to the residency of any of the jurors, the court disclosed that it had learned that juror no. 216, who had served on the jury, may not have been a resident of Escambia County at the time of Chavers’ trial. During questioning, juror no. 216 ultimately maintained that he resided both in Alabama at a certain address and at another address across the state line in Florida. He refused to disclose how often he stayed at each residence. His wife, who resided at the Florida address, likewise was unwilling to disclose how often he stayed with her. The trial court made no written f indings of fact, but Chavers’ motion for a new trial was denied by operation of law. Chavers appealed. Remanded. The Court explained that Ala. Code 1975, Section 12-16-60(a)(1), requires that for more than 12 months before the start of the trial, a prospective juror be a resident of the county in which he is being asked to serve. The Court found that the evidence presented at the hearing was, at best, inconsistent and conflicting. It also noted in this instance that the motion was denied by operation of law, without an affirmative statement by the trial court. The Court noted that it held in a similar case that when a defendant supports his new trial motion with evidence that, if not controverted by the State would entitle him to a new trial, the denial by operation of law should be reversed and a hearing held after which the trial court should enter an order granting or denying the motion. Edgar v. State, 646 So.2d 683 (Ala. 1994). “Given these circumstances, we concluded that the best course of action is to remand this case for the trial court to issue specific findings of fact regarding Chavers’s claim, because the trial court is in the best position to reconcile the inconsistent and conflicting testimony and to make credibility choices. See Thomas v. State, [Ms. CR05-1553, September 28, 2007] __ So.2d __ (Ala. Crim. App. 2007). Chavers v. State of Alabama, 17 ALW 15-16 (CR-06-0755); 4/4/08, Escambia Cty., Wise; Baschab, McMillan, Shaw, and Welch concur, 13 pages. [ATTY: Not listed] CRIMINAL PROCEDURE: Postconviction Relief. Don Barclay filed a petition pursuant to Rule 32, Ala. R. Crim. P., seeking relief from his 1978 conviction for child molestation. He asserted that this was the first petition for postcon- viction relief challenging this conviction. Barclay claimed that the trial court lacked subject matter jurisdiction to render judgment and impose a sentence because neither the jury venire nor the petit jury was administered an oath prior to trial. The trial court denied the motion as procedurally barred because it was a successive Rule 32 motion. Barclay appealed. Remanded. The Court noted that it had no record before it of a prior postconviction challenge to this conviction. The Court agreed with Barclay that his claim was jurisdictional because a verdict rendered by jurors who had never been sworn would be a nullity. Brooks v. State, 845 So.2d 849 (Ala. Crim. App. 2002)[11 ALW 10-17]. The Court also pointed out that it could not presume from a silent record that the jury was sworn; there must be some affirmative showing in the record that the oath was administered. See Ex parte Deramus, 721 So.2d 242 (Ala. 1998)[7 ALW 8-5]. The Court concluded that this case was identical to the recent case of Pride v. State, [Ms. CR-06-1452, February 29, 2008] __ So.2d __ (Ala. Crim. App. 2008)[17 ALW 10-10]. Here, as in Pride, the Court remanded the case to the trial court to hold a hearing on Barclay’s claim and to issue specific written findings of fact regarding that claim. Barclay v. State of Alabama, 17 ALW 15-17 (CR-06-1044), 4/4/08, Autauga Cty., Welch; Baschab, McMillan, Shaw, and Wise concur, 5 pages. [ATTY: Appt: Not listed; Apee: Stephen Dodd, Asst. Atty. Gen.]