• Lawden H. Yates, Attorney At Law/Forensic Sciences Consultant, • 489 Starnes Chapel Road, Blountsville, Alabama 35031

• Telephone Number (205) 873-5590• Fax Number (205) 429-4504

• E-mail address: lawdeny@urisp.net

• Lawden is a Member of the Alabama Criminal Defense Lawyers Association. He is retired from the Alabama Department of Forensic Sciences with twenty-five years of service. He is the former Director of the Birmingham Regional Laboratories of Alabama Department of Forensic Sciences, a Special Assistant Attorney General, and General Counsel for the Alabama Department of Forensic Sciences.

• Lawden is a graduate of Auburn University with a degree in Laboratory Technology, Chemistry Major. A graduate of the Birmingham School of Law; and a graduate of the Birmingham Police Academy. He is a former Board Member of the American Society of Crime Laboratory Directors. A Life Member of the Association of Firearms and Toolmarks Examiners. Former Assistant District Attorney and City Prosecutor.

• Lawden is presently an attorney in private practice and forensic scientist consultant. As a forensic scientist consultant, has assisted in many murder cases, mostly capital cases, in Alabama, Mississippi, Georgia, Florida, South Carolina which have produced Not Guilty verdicts in each of those jurisdictions.

Matching Bunter Marks

OKAY,

So What!

Definitions for Firearms Identifications

• Bullet• A non-round conical shaped projectile fired from

a cartridge or projected by a gas through a barrel.

• Bullet, Land and Groove Impressions• They are rifling marks left on the bullet which

contain characteristics.• Cartridge• A self contained package containing bullets,

gunpowder and primer usually made of brass.

• Handgun• A firearm designed to be held and fired with one

hand without a shoulder stock.• Pistol• A handgun in which the chamber is part of the

barrel. A term sometimes incorrectly used for any HANDGUN.

• Projectile• Any object propelled by the force of rapidly

burning gases or other means such as mechanical energy.

• Range of Conclusions Possible Forensic Comparison

• Identification: Agreement of individual characteristics and class

• characteristics that produces a match.• Inconclusive: Agreement of class

characteristics and some individual characteristics but can't tell one way or another.

• Elimination: Means the tool or barrel is not responsible for producing the evidence.

• Unsuitable: Means the evidence is of such poor quality, no valid comparison can be made.

• Range of Conclusions Possible When Comparing Toolmarks

• Like the comparison of firearms evidence, four possibilities of results can be obtained: Identification; Inconclusive; Elimination; or Unsuitable for valid comparison.

• Revolver, Double Action

• A type of revolver in which there are two ways to fire. Simply pulling the trigger or by cocking the hammer first.

• Revolver, Single Action

• A type of revolver in which the hammer must be cocked manually to fire each shot before the trigger is pulled.

• Rifle• A firearm fired from the shoulder that has a

barrel with rifling.• Round• A confusing term used to describe: a cartridge;

a bullet; a spent cartridge; or the sound of a shot being fired.

• Shotshell• Is like a cartridge but contains pellets or slugs

and wads.• Spent Projectile• A bullet which has been fired and is now at rest.

• Subclass Characteristics

• Characteristics that fall between class and individual characteristics, the significance of which is less than a true identity match.

• Class Characteristics

• Caliber, gauge, number of lands and grooves, direction of twists, width and of land and grooves, type of bullets, weight, shape, etc.

• Theory of Identification as it Relates to Toolmarks

• Toolmarks, like bullets can be matched to a specific tool when both class and identity characteristics are in sufficient agreement.

LEGAL DEFINITIONS

• Relevant means having some reasonable connection with something. When used in the context of a evidence law, it refers to the evidence's tendency to prove or disprove a matter of fact that is related to an issue in dispute in the case. A common basis for an objection to testimony or physical evidence is that it is "irrelevant."

• Not all relevant evidence is necessarily admitted in a lawsuit. Relevant evidence may be excluded in the judge's discretion for certain reasons, such as having a prejudicial effect on the minds of the jury.

• http://definitions.uslegal.com/r/relevant/

• rel·e·vant   (rěl'ə-vənt)    adj.  Having a bearing on or connection with the matter at hand.

[Medieval Latin relevāns, relevant-, from Latin, present participle of relevāre, to relieve, raise up; see relieve.]rel'e·vant·ly adv.

Synonyms: These adjectives describe what relates to and has a direct bearing on the matter at hand. Something relevant is connected with a subject or issue: performed experiments relevant to her research.Pertinent suggests a logical, precise relevance: assigned pertinent articles for the class to read.Germane implies close kinship and appropriateness: "He asks questions that are germane and central to the issue" (Marlin Fitzwater).Something material is not only relevant but also crucial to a matter: reiterated the material facts of the lawsuit.Apposite implies a striking appropriateness and pertinence: used apposite verbal images in the paper.Something apropos is both to the point and opportune: an apropos comment that concisely answered my question.The American Heritage® Dictionary of the English Language, Fourth EditionCopyright © 2009 by Houghton Mifflin Company.

• sig nif i cant⋅ ⋅ ⋅•    sɪgˈnɪfɪkəntShow Spelled Pronunciation [sig-nif-i-kuhnt] Show IPA • –adjective • 1.important; of consequence.• 2.having or expressing a meaning; indicative; suggestive: a significant wink. • 3.Statistics. of or pertaining to observations that are unlikely to occur by

chance and that therefore indicate a systematic cause.–noun • 4.something significant; a sign.Origin:

1570–80; < L significant- (s. of significāns), prp. of significāre to signify; see -ant Related forms:

• sig nif i cant ly, adverb ⋅ ⋅ ⋅ ⋅• Synonyms:

1. consequential, momentous, weighty. 2. See expressive. • Dictionary.com Unabridged

Based on the Random House Dictionary, © Random House, Inc. 2009.

• sig nif i cant⋅ ⋅ ⋅•    /sɪgˈnɪfɪkənt/ Show Spelled Pronunciation [sig-nif-i-kuhnt] Show IPA • Use significant in a Sentence• See web results for significant• See images of significant• –adjective • 1.important; of consequence.• 2.having or expressing a meaning; indicative; suggestive: a significant wink. • 3.Statistics. of or pertaining to observations that are unlikely to occur by

chance and that therefore indicate a systematic cause.–noun • 4.something significant; a sign.Origin:

1570–80; < L significant- (s. of significāns), prp. of significāre to signify; see -ant Related forms:

• sig nif i cant ly, adverb ⋅ ⋅ ⋅ ⋅• Synonyms:

1. consequential, momentous, weighty. 2. See expressive. • Dictionary.com Unabridged

Based on the Random House Dictionary, © Random House, Inc. 2009. Cite This Source

• cor rob o rate⋅ ⋅ ⋅•    v. kəˈrɒbəˌreɪt;adj. kəˈrɒbərɪtShow Spelled Pronunciation [v. kuh-rob-

uh-reyt; adj. kuh-rob-er-it] Show IPA verb, -rat ed, -rat ing,⋅ ⋅ adjective • –verb (used with object) • 1.to make more certain; confirm: He corroborated my account of the

accident. –adjective • 2.Archaic. confirmed. Origin:

1520–30; < L corrōborātus ptp. of corrōborāre to strengthen, equiv. to cor- cor- + rōbor(āre) to make strong (deriv. of rōbor, rōbur oak (hence, strength); see robust ) + -ātus -ate 1

•Related forms:

• cor rob o ra tive ⋅ ⋅ ⋅ ⋅  kəˈrɒbəˌreɪtɪv,-ərətɪvShow Spelled Pronunciation [kuh-rob-uh-rey-tiv, -er-uh-tiv] Show IPA , cor rob o ra to ry, adjective ⋅ ⋅ ⋅ ⋅ ⋅

• cor rob o ra tive ly, cor rob o ra to ri ly, adverb ⋅ ⋅ ⋅ ⋅ ⋅ ⋅ ⋅ ⋅ ⋅ ⋅ ⋅• cor rob o ra tor, noun ⋅ ⋅ ⋅ ⋅• Synonyms:

1. verify, authenticate, support, validate.• Dictionary.com Unabridged

Based on the Random House Dictionary, © Random House, Inc. 2009.

• cor·rob·o·rate   (kə-rŏb'ə-rāt')    tr.v.   cor·rob·o·rat·ed, cor·rob·o·rat·ing, cor·rob·o·ratesTo strengthen or support with other evidence; make more certain. See Synonyms at confirm.

[Latin corrōborāre, corrōborāt- : com-, com- + rōborāre, to strengthen (from rōbur, rōbor-, strength; see reudh- in Indo-European roots).]cor·rob'o·ra'tion n., cor·rob'o·ra'tive (-ə-rā'tĭv, -ər-ə-tĭv), cor·rob'o·ra·to'ry (-ər-ə-tôr'ē, -tōr'ē) adj., cor·rob'o·ra'tor n.The American Heritage® Dictionary of the English Language, Fourth EditionCopyright © 2009 by Houghton Mifflin Company.Published by Houghton Mifflin Company. All rights reserved.

• The following is courtesy of http://www.outzonebbs.net/gunlab/home.shtml

• Ammunition can also be compared microscopically for manufacturing marks (such as the bunter marks shown below) which may demonstrate an association of a specific ammunition with ammunition seized from a specific source or individual.

• These four photos show "bunter" marks. The bunter is the tool used to stamp the "head stamp" markings on each cartridge such as manufacturer & caliber. Microscopic comparisons are routinely made on fired cartridge cases found at a crime scene to unfired cartridges found in the possession of a suspect. This is particularly true where no firearm was recovered. Research has indicated that the cartridges were made in the same factory, on the same bunter machine at or about the same general time frame thus showing a circumstantial association between the suspect and the crime. Research continues in the meaning and importance of manufacturing tool marks seen in different types of manufacturing processes.

• Ammunition Manufacture or Assembly Factors

• Manufacturing marks on primers: Repetitive marks may be noted on the surface of fired primers. These are actually due to the processes for manufacturing primers and have nothing to do with the discharge of a firearm. These marks will almost never remain in the same relationship to the class characteristics (Presentation note: This statement is wrong. It should be “identity” or “individual” characteristics.) left on the fired cartridge. Manufacturing marks can also be distinguished by the fact that they often extend into a firing pin impression.

• Bunter Marks on two Remingtonbrand 12-gauge shotshells

• The following is courtesy of FirearmsID.com • Bunter marks: These are marks made by the die which

produces the headstamp on rimfire cartridge cases or the headstamp and primer pocket on centerfire cartridge cases. These marks have nothing to do with marks produced by a firearm, but they do allow an examiner to state that two headstamps were produced by the same die.

Only research in a given case will determine how much or how little significance attaches to such an identification. This is normally done on an exceptional basis when all other avenues have been exhausted as far as establishing an association between two cartridge cases or shotshell cases.

This is not the method of choice for relating cartridge cases and shotshell cases to a single source.

• The following is courtesy of http://www.ojp.usdoj.gov/nij/training/firearms-training/glossary.htm

• Bunter - The die which produces the headstamp on rimfire cartridge cases or the headstamp and primer pocket on centerfire cartridge cases.

• Class characteristics - Measurable features of a specimen which indicate a restricted group source. They result from design factors, and are therefore determined prior to manufacture.– Toolmark, impressed - The mark produced when a tool is placed

against an object and enough pressure is applied to the tool so that it leaves an impression in the object. The class characteristics (shape) can suggest the type of tool used to produce the mark. The individual characteristics can be used to identify the tool with the mark.

– Toolmark, striated - Marks produced when a tool is placed against another object, and with pressure applied, the tool is moved across the object producing a striated mark. Friction marks, abrasion marks, and scratch marks are terms commonly used when referring to striated marks. These marks can be either class and/or individual characteristics.

– Toolmark identification - Toolmark identification is a discipline of forensic science which has as its primary concern to determine if a toolmark was produced by a particular tool

• Class and Individual Characteristics • All evidence bears class characteristics.  Individual

characteristics may or may not be present.• Evidence that possesses class characteristics may be

referred to as class evidence. Similarly, evidence that possesses individual characteristics may be referred to as individual evidence.

• Both class and individual evidence have value; however, it typically takes considerably more class evidence (and time for collection and analysis) to have the same weight and significance as a single item of individual evidence.

• Criminal cases based solely on class evidence are more difficult to prove and require more work, but the results can be just as significant. To put it in perspective, in terms of probative value in the courtroom, it usually takes a considerable combination of class evidence to equate to a single item of individual evidence.

• Class and Individual Characteristics

• CharacteristicDefinitionClass

• CharacteristicsMeasurable features of an item that indicate a restricted group source based on design factors determined prior to manufacture

• May be shown to be like or consistent with a questioned source, although not uniquely identifiable with that source

• Examples

• Width of the tip of a screwdriver

• Width of land and groove impressions

• Example of lands and grooves

• Bloodstain

Marks on an object produced by a grinding wheel or sanding belt.

Manufacturing marks on a

group of Ruger firearms

Manufacturing marks on agroup of Ruger firearms

Greg Scala, FDLE, Orlando, FLBlood type

• Discernible surface features of an object, more restrictive than class characteristics

• Produced incidental to manufacture

• Subclass Characteristics

• Refer to a smaller group source (a subset of the class to which they belong)

• May arise from a source that changes over time

• Marks on an object produced by the random imperfections or irregularities on the surfaces of the tools used to manufacture the object

• Individual Characteristics Marks on an object produced by the random imperfections or irregularities on the surfaces of the tools used to manufacture the object

• Produced incidental to the manufacturing process and typically seen at microscopic level

• Can be produced on an object by use, abuse, and/or corrosion

• May be uniquely identifiable with a source

• Striated and/or impressed marks produced by the action of the tip of a screwdriver on an object

• Striation marks on a fired bullet

• Striation marks on a fired bullet

• DNA profile from• a bloodstain

• 2008-AL-R0303.008Marks v. State

• •

• Garrett Jeremy Marks• v.• State of Alabama • No. CR-06-0412

Alabama Court of Criminal Appeals February 29, 2008

• Appeal from Baldwin Circuit Court (CC-05-1853) • On Application for Rehearing • PER CURIAM •       The opinion issued on August 31, 2007, is withdrawn, and the following opinion is substituted therefor. •       Garrett Jeremy Marks was indicted by a Baldwin County grand jury for robbery in the first degree, a violation of § 13A-8-41(a)(1), Ala. Code 1975; the

indictment resulted from the theft of personal property belonging to Douglas Speese, which was taken from Speese at gunpoint. A jury found Marks guilty of first-degree robbery. The trial court sentenced Marks, an habitual offender, to 45 years' imprisonment.

•       The evidence presented at trial indicated the following. On July 22, 2005, Douglas Speese was employed by Pepsi Cola/Buffalo Rock Bottling Company as a member of the nighttime stock crew. Speese arrived at the last stop on his delivery route, a Wal-Mart discount department store in Foley, at approximately midnight, parked his van on the side of the building, and remained in the van while he ate a meal. While he was eating, two young black males, who appeared to him to be juveniles, approached and robbed him at gunpoint. Speese did not see Marks while the robbery was occurring. Speese viewed the surveillance videotape from the Wal-Mart store and acknowledged that a Chevrolet Malibu automobile was parked in the parking lot before he was robbed, but he could not see the faces of anyone inside the vehicle or the faces of those who got out of the vehicle. He said that the videotape showed that the Malibu was driven away as the two juveniles ran from the scene.

•       Police officers viewed the surveillance videotape and were able to locate at a nearby residence a Chevrolet Malibu that they believed might have been the vehicle they had seen on the surveillance tape. Alana Womack, the woman who came to the door of the residence at which the Malibu was parked, said that she lived in the apartment with her boyfriend, Garrett Marks, and that the Malibu belonged to her.(fn1) When asked if she permitted anyone else to drive the Malibu, Womack said that Marks sometimes drove it. During a consensual search of the Malibu, the police found a gun beneath the driver's seat; the gun looked like a pistol that would fire bullets, but a police officer testified that it was a BB gun.

•       The two juveniles who robbed Speese, D.J. and V.R., were ultimately identified and interviewed by the police. Their videotaped interviews were played for the jury, and they testified at trial. Both juveniles admitted their involvement in the robbery; they testified that Marks had suggested that they rob Speese and that Marks had given them a gun to use during the robbery.

•       On appeal, Marks argues only that the trial court erred when it denied his motions for a judgment of acquittal, made at the close of the State's case and again at the close of all the evidence, because, he says, the evidence was insufficient to sustain his robbery conviction. Specifically, he argues that the State failed to present any evidence to corroborate the testimony of his juvenile accomplices, D.J. and V.R.

•       After the State had presented its case, Marks moved for a judgment of acquittal. He argued: • "Your Honor, at this point I would like to make an oral motion for judgment of acquittal on behalf of Mr. Marks as the prosecution has acknowledged they have

the burden of proving that Mr. Speese was robbed at gunpoint or with some other dangerous weapon or instrument. I believe the evidence is clear that Mr. Marks did not approach Mr. Speese in any way, shape, or form. And based on the evidence that is before the Court from the witness stand, I think it's also quite clear that Mr. Marks did not force, coerce, or threaten either [V.R.] or [D.J.] in any way, shape, or form to do this crime. As such, I believe that the prosecution has failed to meet its burden of proof, and as a result, this case should be dismissed at this time."

• (R. 285.) •       After all of the evidence had been presented, Marks renewed his motion for a judgment of acquittal: • "Your Honor, ... we would renew our motion for judgment of acquittal that based on the additional testimony of Ms. Womack and [a second defense witness] that

I think it's clear that the State's not met its burden of proof by a -- or establishing beyond a reasonable doubt that the elements of robbery first as to Garrett Marks have been met. We'd ask that the charges be dismissed."

• (R. 363.) •       The State argues that Marks failed to preserve for review his issue regarding the alleged lack of corroboration of the accomplices'

testimony because, it says, when Marks made his motions for a judgment of acquittal, he failed to challenge specifically the alleged lack of corroboration of the accomplices' testimony. For the reasons stated below, we are compelled to agree with the State.

•       When Alabama appellate courts have examined whether a general motion for a judgment of acquittal preserves for review an issue of evidentiary sufficiency based on allegedly uncorroborated accomplice testimony, the results reached have, at times, been inconsistent. For example, in Brown v. State, 645 So.2d 309 (Ala. Crim. App. 1994), upon which the State relies in its brief, Brown made a motion for a judgment of acquittal challenging the sufficiency of the evidence, but he did not specifically argue that the State had failed to corroborate the accomplice's testimony. The Brown Court held that the issue had not been preserved for review, and stated, in part:

• "This issue was presented for the first time in the appellant's motion for a new trial and thus was not timely. If a defendant does not object to the testimony of an accomplice, that issue is not preserved for appellate review. Moreover, the appellant did not request jury instructions on corroboration of accomplice testimony."

• Brown, 645 So.2d at 312. The Brown Court cited Linville v.State, 634 So.2d 601 (Ala. Crim. App. 1993), in which the Court held that the appellant had failed to preserve for review a challenge to the sufficiency of the evidence that was based on the argument that the accomplice's testimony had not been sufficiently corroborated because, the Court said, "[a]t no time did the appellant object to the testimony of [the accomplice], nor did he ask the court to instruct the jury on accomplice testimony." Linville, 634 So.2d at 603.(fn2) See also Ward v. State, 376 So.2d 1112, 1115 (Ala. Crim. App. 1979) (holding that a motion for a judgment of acquittal "'on the grounds that the State has not made out its case or carried the burden of proof'" did not preserve for review a specific challenge on appeal to the sufficiency of the corroboration of the accomplice's testimony).

•       On the other hand, in Fortier v. State, 515 So.2d 101 (Ala. Crim. App. 1987), this Court considered the exact issue now before us, and stated:

• "The defendant never directed the trial court's attention to the issue of accomplice corroboration. At the close of the State's case he moved for a 'judgment of acquittal on all charges' without stating grounds, and, in the alternative, he requested charges on lesser included offenses. He argued his alternative request and provided the court with a citation of authority allegedly supporting the giving of lesser included offense charges. Following his conviction he filed a 'Motion for Judgment of Acquittal After Verdict' pursuant to Rule 12.3, A.R.Cr.P.Temp. [now Rule 20.3, Ala.R.Crim.P.], 'on the grounds that there was insufficient evidence to convict defendant.' The court charged the jury that whether or not Tammy Gamso was an accomplice was a question of fact for their determination and then outlined for the jury the principles requiring corroboration of accomplice testimony. The defendant made no objections to this part of the court's oral charge and tendered no requested charges defining 'accomplice' or stating the necessity for corroboration of an accomplice's testimony. Under the law prevailing prior to Ex parte Maxwell, 439 So.2d 715 (Ala. 1983), and Rule 12.3, A.R.Cr.P.Temp., the defendant would not have preserved the issue of corroboration for our review. See Ward v. State, 376 So.2d 1112, 1115-16 (Ala. Cr. App.), cert. denied, Ex parte Ward, 376 So.2d 1117 (Ala. 1979). See also Alexander v. State, 281 Ala. 457, 458, 204 So.2d 488, 489-90 (1967), cert. denied, 390 U.S. 984, 88 S.Ct. 1107, 19 L.Ed.2d 1284 (1968). Compare Dunnaway v. State, 479 So.2d 1331, 1336-37 (Ala. Cr. App. 1985).

• "However, in Maxwell, the Alabama Supreme Court held the following: • "'To preserve the issue for appeal, it is necessary for defendant to state his grounds upon moving to exclude evidence; however, it is not

necessary to draw the trial court's attention to the particular defect. It is sufficient that the defendant state the ground that the prosecution has failed to make a prima facie case.' 439 So.2d at 717.

• "Although the defendant's first motion for judgment of acquittal (made at the close of the State's case) stated no grounds, his post-verdict motion was based upon the claim that there was 'insufficient evidence to convict defendant.' Rule 12.3(a) states that '[i]t shall not be necessary to the making of the motion after a verdict or judgment of conviction that a similar motion have been made prior to the submission of the case to the factfinder.' If a defendant is not precluded from testing the sufficiency of the State's case via a post-verdict motion under Rule 12.3 by his failure to have made an earlier motion under Rule 12.2, then it follows that he is not foreclosed from challenging the State's case by way of grounds stated in a Rule 12.3 motion which were not advanced in his earlier Rule 12.2 motion. We must, therefore, determine whether the State's case was legally sufficient insofar as it related to the accomplice corroboration issue."

• 515 So.2d at 103-04. Likewise, in Adkison v. State, 548 So.2d 606 (Ala. Crim. App. 1988), this Court stated:

• "The appellant argues that his conviction should be reversed because it was based upon uncorroborated accomplice testimony, in violation of § 12-21-222, Code of Alabama (1975). The appellant made a motion for judgment of acquittal, stating 'that the State had not made out a prima facie case....' That ground was sufficient to preserve this matter for our appeal. SeeEx parte Maxwell, 439 So.2d 715 (Ala. 1983); Fortier v. State, 515 So.2d 101, 104 (Ala. Cr. App. 1987)."

• 548 So.2d at 609. •       In Ex parte Maxwell, 439 So.2d 715 (Ala. 1983), on which this Court relied in both Adkison and Fortier, the Alabama Supreme Court reversed the

judgment of this Court, holding that Maxwell's general motion to exclude the evidence on the ground that the City had failed to prove a prima facie case was sufficient to preserve for appellate review the specific allegation that the City had failed to prove the municipal ordinance under which Maxwell had been prosecuted. The Alabama Supreme Court stated:

• "To preserve the issue for appeal, it is necessary for defendant to state his grounds upon moving to exclude evidence; however, it is not necessary to draw the trial court's attention to the particular defect. It is sufficient that the defendant state the ground that the prosecution has failed to make a prima facie case. Turner v. State, 266 Ala. 250, 96 So.2d 303 (1957); see also, R. Williams, Williams' Alabama Evidence § 308 (1967). Because the appellant here stated such grounds, the issue of the necessity for introduction of the city ordinance was preserved by defendant's motion to exclude the evidence."

• Ex parte Maxwell, 439 So.2d at 717. •       The Supreme Court has followed Ex parte Maxwell on numerous occasions. In Ex parte Johnson, 620 So.2d 665, 668 (Ala. 1993), the Supreme

Court held that a motion for a judgment of acquittal on the ground "'that the state has failed to prove a prima facie case'" was sufficient to preserve for review the specific argument on appeal that the State had failed to prove that the defendant had previously been convicted of a crime of violence, a necessary element of the charge of unlawfully owning or possessing a pistol after having been convicted of a crime of violence. In Ex parteHall, 843 So.2d 746, 748 (Ala. 2002), the Court again held that a motion for a judgment of acquittal on the ground of "'insufficient evidence'" was sufficient to preserve for review the specific argument on appeal that the City had failed to prove the municipal ordinance under which the defendant had been prosecuted. See also Ex parte Parks, 923 So.2d 330 (Ala. 2005), and Ex parte McNish, 878 So.2d 1199 (Ala. 2003).

•       However, none of those cases involved the specific issue of accomplice corroboration, and when faced with that specific issue, the Alabama Supreme Court reached a result inconsistent with Ex parte Maxwell and its progeny. In Ex parte Weeks, 591 So.2d 441 (Ala. 1991), Weeks argued on appeal that his conviction for trafficking in cocaine should be reversed because, he alleged, the conviction was based on the uncorroborated testimony of an accomplice and on entirely circumstantial evidence. The Alabama Supreme Court refused to consider Weeks's argument about uncorroborated accomplice testimony, but addressed the circumstantial-evidence argument, stating:

• "Weeks argues that there was insufficient evidence to support his conviction. He contends that his conviction was improperly based on the uncorroborated testimony of an accomplice. Thompson v. State, 374 So.2d 388 (Ala. 1979). That argument was not presented to the trial court, so there is no adverse ruling for us to review. Accordingly, we cannot consider the argument. Gotlieb v. Collat, 567 So.2d 1302 (Ala. 1990).

• "In a related argument, Weeks contends that apart from the allegedly uncorroborated accomplice testimony, the State's evidence was entirely circumstantial, and, he argues, a conviction based on entirely circumstantial evidence is due to be reversed, unless the evidence is such that a jury can conclude that the evidence excludes every reasonable hypothesis except guilt. SeeEx parte Williams, 468 So.2d 99 (Ala. 1985). He argues that the evidence in his case did not exclude every reasonable hypothesis except guilt. Although we do not necessarily accept his premise that there was uncorroborated accomplice testimony, we reject the argument on another ground: the evidence was sufficient to allow the submission of the case to the jury, whose factual determinations we will not disturb unless the determinations are plainly erroneous or manifestly unjust. Harris v. State, 539 So.2d 1117, 1124 (Ala. Cr. App. 1988)."

• Ex parte Weeks, 591 So.2d at 442. •       We have reviewed the relevant portion of the trial record in Weeks's case,(fn3) and we note that, at the close of the State's case, Weeks argued: • "We would move for a judgment of acquittal on the ground that the State has failed to make out a prima facie case. There is no evidence whatsoever

about connection of Todd Weeks other than what has been testified to by Becky Barnes, and I think her testimony at the last trial was probably enough for the Court to let it go to the jury, but today, she has so contradicted herself that we don't think it's worthy of belief to even go to the jury. We feel that her credibility is such that that standing alone should not be enough to place the defendant in jeopardy with a jury trial. The Court was able to observe the witness more than the jury was able to, and we feel like it would be proper to grant a judgment of acquittal."

•       Weeks made both a general challenge to the sufficiency of the evidence -- that the State failed to prove a prima facie case -- and a more specific challenge to the sufficiency of the evidence -- relating to the credibility of witness Becky Barnes. At no time,

• however, did Weeks specifically challenge the corroboration of accomplice testimony or argue the allegedly circumstantial nature of the evidence against him, and he did not file a postjudgment motion challenging the sufficiency of the evidence.

•       The Supreme Court, however, considered and addressed Weeks's argument on appeal that the evidence was not sufficient to convict him because, he said, it was entirely circumstantial, and simultaneously declined to address Weeks's argument on appeal that the evidence was not sufficient to convict him because, he said, the accomplice's testimony was not corroborated. By declining to review Weeks's argument about uncorroborated accomplice testimony, the Alabama Supreme Court effectively held that a motion for judgment of acquittal generally challenging the sufficiency of the evidence was not sufficient to preserve for review on appeal an argument that the accomplice testimony was not corroborated.(fn4) In so holding, the Court relied on only a single, civil, case, Gotlieb v. Collat, 567 So.2d 1302 (Ala. 1990), and did not mention its earlier holding in Ex parte Maxwell, or explain its reasons for declining to follow Ex parte Maxwell regarding the preservation of a challenge to the alleged lack of corroboration of accomplice testimony.(fn5) Nonetheless, the Alabama Supreme Court clearly determined that Weeks's general motion for a judgment of acquittal did not preserve for appellate review his specific issue challenging the sufficiency of the evidence based on allegedly uncorroborated accomplice testimony. Moreover, our research has revealed no case from the Alabama Supreme Court subsequent to Ex parte Weeks that addresses preservation of the specific issue of accomplice corroboration or that in any way calls into question the holding in Ex parte Weeks.

•       Although Ex parte Weeks appears to be an anomaly in the Alabama Supreme Court's caselaw regarding the adequacy of a general challenge to the sufficiency of the evidence to preserve for review on appeal a more specific challenge to the sufficiency of the evidence, we are nonetheless compelled to follow that Court's only holding on the specific issue of accomplice corroboration. Therefore, pursuant to Ex parte Weeks, we hold that a motion for a judgment of acquittal that challenges the sufficiency of the evidence only generally, i.e., that the State failed to prove a prima facie case or words to that effect, does not preserve for review the specific claim that an accomplice's testimony was not sufficiently corroborated. To the extent that Fortier, supra, and Adkinson, supra, hold otherwise, they are hereby overruled. Because Marks made only a general challenge to the sufficiency of the evidence in his motions for a judgment of acquittal and did not specifically argue to the trial court that the accomplices' testimony was not sufficiently corroborated, his argument on appeal that the accomplices' testimony was not sufficiently corroborated was not properly preserved for review and will not be considered by this Court.

•       Based on the foregoing, the judgment of the trial court is affirmed. APPLICATION GRANTED; OPINION OF AUGUST 31, 2007, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

• Baschab, P.J., and McMillan, Wise, and Welch, JJ., concur. Shaw, J., concurs specially, with opinion. • SHAW, Judge, concurring specially. •       I concur in the main opinion. I write specially only to urge the Alabama Supreme Court to clarify its holding in Ex parte Weeks, 591

So.2d 441 (Ala. 1991), at its earliest convenience. • _____________________

Footnotes: •       1. We note that at trial when asked to state her name Womack gave the name Alana Womack Jemison. For purposes of this opinion,

we will refer to her as Alana Womack. •       2. Linville made a motion for a judgment of acquittal, but it is unclear from the Court's opinion whether he made only a general

challenge to the sufficiency of the evidence. •       3. "This court may take judicial notice of its own records. SeeHull v. State, 607 So.2d 369, 371 (Ala. Crim. App. 1992)." Minnifield v.

State, 941 So.2d 1000, 1001 n.3 (Ala. Crim. App. 2005). •       4. This Court has previously interpreted Ex parte Weeks the same way. SeeThomas v. State, 622 So.2d 415, 419 (Ala. Crim. App.

1992) (citing Ex parte Weeks for the proposition that an "objection that the State has failed to make out a prima facie case does not embrace a claim that the accomplice testimony has not been corroborated"), and Linville, supra.

•       5. Likewise, in its subsequent cases relying on Ex parte Maxwell, the Court has not mentioned Ex parte Weeks. • AL • Slip Opinions

• 744 So.2d 851IN RE: HUNT

• •

• Ex parte Teresa Lynn HUNT. • (Re Teresa Lynn Hunt v. State). • 1971668. • Supreme Court of Alabama. • June 25, 1999. • 852 • David S. Furman of Law Offices of Daniel E. Boone, P.C., Florence, for petitioner. • Bill Pryor, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for respondent. • LYONS, Justice. •       Teresa Lynn Hunt was convicted of forgery in the second degree, a violation of § 13A-9-3, Ala.Code 1975. The trial court sentenced her as a habitual offender to 15

years' imprisonment; it ordered that her sentence be split and served as one year of incarceration, with the remainder of 14 years suspended for two years of probation after completing the one-year sentence. The Court of Criminal Appeals, on May 8, 1998, affirmed her conviction by an unpublished memorandum. Hunt v. State, (No. CR-96-1769) 738 So.2d 934 (Ala. Crim.App.1998) (table). We granted Hunt's petition for certiorari review. We reverse the judgment of the Court of Criminal Appeals and render a judgment of acquittal.(fn1)

•       The evidence at trial tended to show the following: On or about October 30, 1995, a burglary occurred at a business known as Rose Rentals in Lauderdale County. The burglars took approximately $40,000 in merchandise. The burglars also took check number 14128, which was blank, from Rose Rentals' checkbook. The State charged Hunt with forging check 14128 by making it payable to Tim Horton, a friend of hers, in the amount of $247.53 and by forging the drawer's signature as "Jim Sak." At Hunt's trial, the State presented evidence indicating that the check was cashed on November 3, 1995, at John's Shop Ezy store in Florence. The State also presented the testimony of James Sak. Sak testified that he was in charge of Rose Rentals' payroll and its personnel checks in November 1995, and that it was his signature that would have appeared on every one of Rose Rentals' payroll checks issued in that month. He testified that he signed all Rose Rentals checks as "James R. Sak," and not "Jim Sak." He stated that although the name "Jim Sak" appeared on the signature line of check 14128, that signature was not his and that he did not authorize Hunt or Horton to cash the check. He also stated that he did not know whether Hunt was involved in the forgery.

•       Next, the State called Dale Olive, an employee of Rose Rentals, to the stand. He testified that just a few days before the check was cashed he received a suspicious telephone call while at work. Then, the following occurred:

• "Q. Will you tell the ladies and gentlemen of the jury the nature of that phone call and what if anything was said? • "[DEFENSE COUNSEL]: Objection, Your Honor, hearsay. • "THE COURT: Come up. • "(At this time a bench conference was held.) • "THE COURT: Overruled. You may answer. Do you need the question repeated? • "THE WITNESS: No, sir. • ".... • "A.... I received a phone call, there was a female voice on the other end. She asked who signed the payroll checks, who made the payroll checks out and I told her Mr.

Sak. And she said what was his first name and I • 853 • said 'Jim Sak.' And at that point she just hung up. • "Q. You cannot identify the person on the other end of that phone conversation? • "A. No, ma'am." • (R. 56-57.) •       The State then called Tim Horton to the stand. Horton said that he had been indicted for the same offense as Hunt but that he had received leniency for testifying

against Hunt. He testified that he was living with Hunt and her boyfriend, Timmy Dale Brewer, at the time of the crime. He said that he saw Hunt make a telephone call from their home to Rose Rentals and that Hunt told him that Jim Sak was the person who signed Rose Rentals' checks. He testified that Hunt then filled out check 14128 from Rose Rentals and that when she did she wrote the check to his order, in the amount of $247.53. He said that he cashed the check 30 to 45 minutes later at John's Shop Ezy.

•       The State's last witness was Officer Barry Brewer from the Florence Police Department. Officer Brewer investigated the burglary and the forgery of the stolen check. He testified that Hunt gave him several handwriting samples, which he said he submitted to the Department of Forensic Sciences for testing. During his testimony, the State entered into evidence, without objection, a report from the Department of Forensic Sciences. This report stated, in pertinent part:

•       "Laboratory examinations and comparisons revealed indications that the questioned entries on [check 14128] may have been written by the author of the Teresa L. Hunt handwriting standards. There are indications that the 'Jim Sak' maker's signature may not represent the natural handwriting of the writer.

•       "Comparisons of the endorsement on [check 14128] with the submitted standards were inconclusive. Examination of the handwriting characteristics comprising the endorsement revealed indications that this handwriting may not represent the natural handwriting of the writer."

• The State then rested its case, and the trial court excused the jury. •       At that time, Hunt's counsel moved for a judgment of acquittal and moved to exclude Horton's testimony, on the basis that under § 12-21-222,

Ala.Code 1975, a felony conviction cannot be had on the testimony of an accomplice, unless that evidence is corroborated by other evidence tending to connect the defendant to the crime. Hunt's counsel asked the trial court to hold that, as a matter of law, Horton was an accomplice. Hunt's counsel argued that under Alabama caselaw the trial court was required to subtract Horton's testimony from the sum of the evidence and then to determine whether the State had presented any evidence tending to link Hunt to the crime. Hunt's counsel contended that the testimony regarding the telephone call by a person with a female voice was insufficient to link Hunt to the crime and, therefore, that Hunt was entitled to a judgment of acquittal.

•       The trial court then questioned Hunt's counsel: •       "THE COURT: Following your line of reasoning, Mr. Rushing, what about the forensic sciences [report] that said it might have been her signature?

What would be your response to [the report that] it might have been her handwriting? •       "[DEFENSE COUNSEL]: I would say the report also said it may not represent the natural handwriting of the writer and the endorsement, it says,

may not represent the natural handwriting of the writer. I would say that a report- •       "THE COURT: May or may not. •       "[DEFENSE COUNSEL]:-may or may not, it's very inconclusive and would not be enough evidence in and of itself. •       "THE COURT: And again, I don't know that that would be determinative • 854 • for or against the defendant or the State. I was just curious what your reaction would be if it narrowed down to that being the link [that provided the

corroboration]-if that was the State's only shot. Excuse me, I didn't mean to interrupt. •       "[DEFENSE COUNSEL]: That's all right. There's several other cases that have held that if the evidence merely raises a conjecture, surmise,

speculation or suspicion then that would not be considered corroboration and I would make that motion at this time, Your Honor." • The trial court then denied the motion for a judgment of acquittal. •       After the court held a hearing on a motion in limine made by Hunt, the jury returned, and Hunt began her case-in-chief. She called only one witness,

her boyfriend, Timmy Brewer. Brewer testified that he was living with Hunt during October and November 1995 and that Horton lived with them "off and on" during that time. Contrary to Horton's testimony, however, Brewer said that Hunt took no part in the crime. According to Brewer, Horton was the person who made the telephone call to Rose Rentals to get the name of the payroll clerk. Brewer testified that he filled out the "top part" of the check, meaning the name of the payee and the amount, and that Horton signed the name "Jim Sak" on the signature line. Brewer said that he understood that, by his testimony, he was confessing to a crime and that he might be required to serve additional jail time (he was already serving a sentence of life imprisonment based on convictions of several other crimes; this fact apparently explains why he was not prosecuted as an accomplice) or to pay restitution for his participation in the crime.

•       The State called one rebuttal witness, Gordon Harris, who was an officer at the Lauderdale County Detention Center, where Timmy Brewer was incarcerated. He testified that during an interview he overheard Brewer tell the prosecutor that neither Brewer nor Hunt had anything to do with the forgery.

•       After the jury found her guilty, Hunt moved for a judgment of acquittal or, in the alternative, for a new trial, on the grounds that (1) the court had erred in denying her motion for a judgment of acquittal at the conclusion of the State's case-in-chief and (2) that the trial court had erred in overruling her objection to the testimony of Dale Olive on the basis that it was inadmissible hearsay.(fn2) After the trial court denied her motion, she appealed to the Court of Criminal Appeals.

•       In its unpublished memorandum, the Court of Criminal Appeals held that Olive's testimony was admissible hearsay because it fell within the res gestae exception to the hearsay rule. The Court of Criminal Appeals also held that the trial court did not err in denying Hunt's motion for a judgment of acquittal at the end of the State's case-in-chief, because, it held, the State did present sufficient evidence to corroborate Horton's testimony. In so holding, the Court of Criminal Appeals relied on the following: (1) the testimony of Dale Olive, who stated that a female telephoned Rose Rentals and acquired the name "Jim Sak"; (2) the testimony of Hunt's boyfriend, Timmy Brewer, who stated that Hunt had lived with Brewer and Horton; and (3) the handwriting evaluation by the Department of Forensic Sciences, which, the Court of Criminal Appeals said, "did not rule out Hunt as a perpetrator of the crime ... [and] does not prove or disprove her connection to the crime."

• I. Hearsay•       Hunt first argues that the Court of Criminal Appeals erred when it held • 855 • that Olive's testimony regarding the phone conversation fell within the res gestae exception to the hearsay rule. She maintains that Olive's testimony

falls within the definition of "hearsay," as provided in Rule 801, Ala. R. Evid., and that his testimony did not fall within any exception to the hearsay rule. The State argues that the testimony was admissible as part of the res gestae and that the only possible defect in Olive's testimony was that it was not properly authenticated. The State maintains that Hunt waived any objection on that basis by objecting only on the basis of hearsay.

•       In its unpublished memorandum, the Court of Criminal Appeals stated the following in holding that Olive's testimony fell within the res gestae exception to the hearsay rule:

• "[The testimony regarding] Hunt's statements [was] admissible [under] an exception to the hearsay rule. 'The res gestae exception permits showing all that transpires with the main fact at hand and all that constitutes a spontaneous part of the transaction.' Lyde v. State, 605 So.2d 1255 (Ala.Crim.App. 1992) (citing Pope v. State, 586 So.2d 1003 (Ala.Crim.App.1991)).

• "'... "Utterances made before the occurrence of the main fact may be admissible as part of the res gestae, if made as part of the principal transaction, in reference to or in contemplation of it, or if it tends to explain the intent, motive or purpose of the declarant." R. Williams, Williams' Alabama Evidence § 141 (1967).'

• "Laney v. State, 643 So.2d 1024 (Ala. Crim.App.1994). •       "Ascertaining the name of the person authorized to sign checks for Rose Rentals was essential in order to forge the check. Telephoning Rose

Rentals and acquiring this information was part of the res gestae because it was an event inseparately connected to the crime and part of one continuous criminal transaction culminating in the forgery. The trial court properly overruled the objection."

•       We note, however, that the cases cited by the Court of Criminal Appeals, Lyde v. State and Laney v. State, were decided before the Alabama Rules of Evidence became effective on January 1, 1996. Hunt's trial, on the other hand, occurred more than one year after the adoption of the rules.

•       Professor Gamble has noted that the judicially created res gestae exception may not have survived "the enactment of the hearsay provisions in the Alabama Rules of Evidence because it is not expressly included in them." Charles W. Gamble, McElroy's Alabama Evidence § 262.01(2), p. 1262 (5th ed.1996); see, also, Miller v. Keating, 754 F.2d 507, 509 (3d Cir.1985) (rejecting the use of the term "res gestae" and noting that to be admissible a declaration must qualify under one of the hearsay exceptions set out in the Federal Rules of Evidence). Furthermore, in the Committee Comments to Rule 803(2), Ala. R. Evid., the Committee expressed its preference for terms other than the term "res gestae" in connection with the hearsay exception in Rule 803(2).(fn3) In fact, in Berryhill

• 856 • v. State, 726 So.2d 297, 300 (Ala. Crim.App.1998), the Court of Criminal Appeals itself cited Professor Gamble's treatise with approval when it noted

that the Rules of Evidence describe the exceptions to the hearsay rule more accurately than prior caselaw applying the res gestae exception. We need not decide today whether, under our Rules of Evidence, Alabama recognizes a "res gestae exception" to the hearsay rule, because we conclude that under the Alabama Rules of Evidence Olive's testimony was not to be considered hearsay.(fn4)

•       Every analysis of a hearsay question should begin with the question whether the testimony is hearsay. If it is hearsay, then one must determine whether it is admissible hearsay. Rule 801(c), Ala. R. Evid., defines "hearsay" as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Rule 801(a) defines a "statement" as "(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person to be an assertion." Rule 801(b) defines "declarant" as "a person who makes a statement." As noted by Professor Gamble, even a witness's own statement may be hearsay if the statement was made out-of-court. Gamble, supra, § 242.01(1)(a), p. 1103.

•       Hunt objected to Olive's testifying to the contents of a telephone call. The only parts of that call that could be hearsay are the questions the caller asked and the answers Olive gave. As to the questions asked, there exists a split of authority as to whether a question can be within the term "statement" as defined by Rule 801(a)(1). The federal courts that have addressed this issue have held that a question cannot be hearsay, on the basis that an inquiry is inherently nonassertive. See United States v. Oguns, 921 F.2d 442 (2d Cir.1990); United States v. Long, 905 F.2d 1572 (D.C.Cir.1990), cert. denied, 498 U.S. 948, 111 S.Ct. 365, 112 L.Ed.2d 328 (1990); United States v. Lewis, 902 F.2d 1176 (5th Cir.1990). At least one state court has agreed with that holding. See State v. Collins, 76 Wash.App. 496, 886 P.2d 243, cert. denied, 126 Wash.2d 1016, 894 P.2d 565 (1995). But see People v. Jones, 228 Mich.App. 191, 229 n. 3, 579 N.W.2d 82, 91 n. 3 (1996) (O'Connell, P.J., concurring in part and dissenting in part) (stating that questions containing indirect assertions of fact should be categorized as statements subject to the hearsay rule); Brown v. Commonwealth, 25 Va.App. 171, 177-80, 487 S.E.2d 248, 251-52 (1997) (a question may be hearsay, depending upon the "nature of the question and the circumstances"); Carlton v. State, 111 Md.App. 436, 681 A.2d 1181, 1184, cert. denied, 344 Md. 328, 686 A.2d 634 (1996) (same); State v. Rawlings, 402 N.W.2d 406 (Iowa 1987) (holding that the question "Dennis, what are you doing?"-offered to prove that "Dennis" was present-was hearsay).

•       The rationale behind the federal decisions and the Washington decision was that the definition of "statement" in Rule 801(a), Fed.R.Evid., and the Washington equivalent ("an oral or written assertion") excludes a statement containing only an "implied assertion," as opposed to a statement containing a positive declaration in which the declarant intended to assert a fact. See Long, 905 F.2d at 1579-80;

• 857 • Lewis, 902 F.2d at 1179.(fn5) The rationale behind the decisions of the states adopting a different view has been that their rules of evidence deem

declarations involving implied assertions to be "statements" and that questions often contain implied statements. See, e.g., Brown, supra, 25 Va. App. at 177-78, 487 S.E.2d at 251-52. "'For example, the question, "Do you need change?" impliedly asserts that the questioner has change. The question, "Why did you stab me, Brutus?" impliedly asserts that the questioner was stabbed by Brutus.'" Id. (citation omitted).

•       Alabama's rule defining the word "statement," although it is the same as its federal counterpart, is silent on whether a verbal declaration that only implicitly asserts something can be a statement. See Rule 801(a)(1), Ala. R. Evid.(fn6) The Advisory Committee's Notes to Rule 801(a) shed no light on the issue. They simply say that "[n]o definitional problem arises with regard to whether assertions in words fall within the ban on hearsay." In discussing whether conduct can be an implied assertion, the Notes specifically state that "Rule 801(a) excludes from the operation of the hearsay rule all evidence of conduct that is not intended as an assertion," because Rule 801(a)(2) includes "nonverbal conduct of a person" as "hearsay" only "if it is intended by the person as an assertion." Does this mean that by not including a similar limitation requiring that an utterance must also have been "intended by the person as an assertion," the Committee meant to embrace implied as well as express assertions, within the Rule 801(a)(1) definition of a "statement"? We hold that it did and thereby avoid the confusion that has been caused by the federal courts' interpretation of Rule 801(a), Fed.R.Evid., as explained in footnote 5, supra.

•       Thus, we conclude that whether a question is a "statement" for purposes of Rule 801(a), Ala. R. Evid., depends upon the nature of the question, the circumstances surrounding the question, and the fact sought to be proved by offering the question. Like practically all evidence issues, this issue must be decided on a case-by-case basis.

•       In the present case, the questions asked by the caller made no assertion, either expressly or implicitly. They did not state or imply the existence of any facts whatever. Thus, the questions were not hearsay. As for the answers given by Olive, the State did not offer them to prove that "Jim Sak" was the person who signed the checks. Instead, the State offered the answers to prove their effect on the caller.

• 858 • Thus, Olive's testimony was not hearsay, and the trial court did not err when it overruled Hunt's objection to Olive's testimony regarding the telephone

call.(fn7 ) • II. Motion for Judgment of Acquittal•       Hunt next argues that the Court of Criminal Appeals erred in affirming the trial court's denial of her motion for a judgment of acquittal and her motion

to exclude Horton's testimony, both of which were made at the end of the State's casein-chief. Hunt contends that the State did not produce the corroborating evidence required by § 12-21-222, Ala.Code 1975. Hunt also maintains that the Court of Criminal Appeals improperly considered the testimony of Timmy Brewer, because Brewer testified after the close of the State's case. Hunt also says that the evidence the State offered as corroboration of Horton's testimony raised nothing more than speculation or a suspicion that she was the guilty person, and she says this speculation or suspicion is not sufficient under Alabama law.

•       The State concedes that Horton was Hunt's accomplice, but maintains that the telephone call and the Department of Forensic Sciences report sufficiently corroborated Horton's testimony. We disagree.

• Section 12-21-222, Ala.Code 1975, provides: •       "A conviction of felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant

with the commission of the offense, and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient."

• The Court of Criminal Appeals, explaining this statute, has written: •       "The formula applying the rule requires that evidence of the accomplice must first be 'subtracted' and then, if upon the review of all other evidence

before the court at the time of the motion, there is found to be sufficient incriminating evidence which would tend to connect the defendant with the commission of the offense, sufficient corroboration exists. Craig v. State, [376 So.2d 803, (Ala.Cr.App.), writ denied, 376 So.2d 807 (Ala.1979)]; Miller v. State, 290 Ala. 248, 275 So.2d 675 (1973). However, the corroborative evidence need not refer to any statement or fact testified to by the accomplice. Neither must it be strong [or] sufficient of itself to support a conviction. The probative value of the evidence need only legitimately tend to connect the accused with the crime and need not directly do so. Further, corroborative evidence need not directly confirm any particular fact [or] affirm each and every material fact testified to by the accomplice. Corroboration may be proven by circumstantial evidence alone. Craig, supra."

• Mills v. State, 408 So.2d 187, 191 (Ala.Crim.App.1981). • The Court of Criminal Appeals has also added the following caveats to the rule: • "'The tendency of the corroborative evidence to connect accused with the crime, or with the commission thereof, must be independent, and without the

aid, of any testimony of the accomplice; the corroborative evidence may not depend for its weight and probative value on the testimony of the accomplice, and it is insufficient if it tends to connect accused with the offense only when given direction or interpreted by, and read in conjunction with, the testimony of the accomplice.' 23 C.J.S. Criminal Law, Section 812(b) (1961)."

• Mills v. State, 408 So.2d at 191-92. • "'"[E]vidence which merely raises a conjecture, surmise, speculation, or suspicion that accused is the guilty person • 859 • is not ... sufficiently corroborative of the testimony of an accomplice to warrant a conviction." 23 C.J.S. Criminal Law, Section 812(5)(b).' Staton v. State,

397 So.2d 227, 232 (Ala.Cr.App.1981)." • Steele v. State, 512 So.2d 142, 143-44 (Ala.Crim.App.1987). •       Applying these standards, we conclude that the Court of Criminal Appeals erred in affirming the denial of Hunt's motion for a judgment of acquittal

and her motion to exclude. First, Hunt is correct in arguing that the Court of Criminal Appeals improperly considered the testimony of Timmy Brewer. As is stated in Mills, supra, the trial court's ruling on a motion for a judgment of acquittal and motion to exclude accomplice testimony must be judged on the evidence that is before the trial court at the time of the motion. See, also, Steele v. State, supra, 512 So.2d at 144-45 (stating that evidence introduced after the defendant moves for a judgment of acquittal and moves to exclude cannot be considered in reviewing a trial court's ruling on a motion to exclude, because such evidence is outside the scope of review and "cannot be used to support the jury's verdict") and the Committee Comments to Rule 20.2(c), Ala. R.Crim. P., stating that "[u]nder section (c) the error in overruling the motion [for judgment of acquittal] cannot be cured by subsequent evidence offered by either the defendant or the state." Thus, we cannot consider Timmy Brewer's testimony in our analysis.

•       Second, after we apply the "subtraction process" and view the remaining evidence in the light most favorable to the State, we are left only with the testimony that a female made a telephone call to Rose Rentals and a forensic report that is inconclusive at best. This evidence is insufficient to connect Hunt to the crime. The forensic report cannot be considered sufficient corroborating evidence, because it raises nothing more than a mere speculation that Hunt forged the signature. If we gave this report any weight, we would violate the rule that evidence that merely raises a conjecture is insufficient to corroborate an accomplice's testimony. See Steele, supra. Furthermore, the only way to give any weight whatever to Olive's testimony is to read it in conjunction with Horton's testimony that Hunt was the caller. Mills, supra, prohibits us from doing so. Moreover, the fact that a female who may or may not have been Hunt telephoned Rose Rentals does not independently link Hunt to the crime, as required by Mills, supra. In fact, the State's evidence offered as corroboration tends to show only that a female who may or may not have been Hunt committed the crime. This only narrows the group of possible forgers to more than half of the adult population, and it is therefore insufficient to connect Hunt to the crime.

•       The trial court should have granted Hunt's motion to exclude and her motion for a judgment of acquittal. The Court of Criminal Appeals erred in affirming the trial court's judgment. Accordingly, we reverse the judgment of the Court of Criminal Appeals and render a judgment of acquittal.

•       REVERSED AND JUDGMENT RENDERED. • HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, and JOHNSTONE, JJ., concur. BROWN, J., recuses herself. • _____________________

• Footnotes: •       1. Because we render a judgment of acquittal, we do not address Hunt's claim that the State failed to disclose certain evidence, in

violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). •       2. As indicated in note 1, Hunt also claimed that the State committed a Brady violation. She also maintained that the court had erred in

refusing to give certain requested jury instructions. However, because those issues are not pertinent to the resolution of this case, we do not address them.

•       3. Also, as noted by the Committee, this Court criticized the use of the res gestae exception in Illinois Central R.R. v. Lowery, 184 Ala. 443, 63 So. 952 (1913). Borrowing a description from Professor Wigmore, this Court stated in that case:

• "[T]he term 'res gestae' is one of 'convenient obscurity,' and is wholly unnecessary as an explanation of the testimonial use of declarations made out of court. It has in fact too often served only to obscure the real principles upon which such declarations may be properly admitted as evidence of the truth of the facts declared.

• ".... •       "As said by Chief Justice Bleckley: 'The difficulty of formulating a description of the res gestae which will serve for all cases seems

insurmountable. To make the attempt is something like trying to execute a portrait which shall enable the possessor to recognize every member of a numerous family.' Cox v. State, 64 Ga. 374, 410 (37 Am. Rep. 76)."

• 184 Ala. at 447-48, 63 So. at 953. •       4. We also question whether the telephone conversation, as detailed by Olive, would constitute part of the res gestae. As this Court

noted in Illinois Central R.R. v. Lowery, supra, 184 Ala. at 447-48, 63 So. at 953, a declaration, to be admissible under our formulation of the res gestae exception, must be "the apparently spontaneous product of that occurrence operating upon the visual, auditory, or other perceptive senses of the speaker" and "[t]he declaration must be instinctive rather than deliberative-in short, the reflex product of immediate sensual impressions, unaided by retrospective mental action." Nothing in the record indicates that the caller's statement was spontaneous or reflexive.

•       5. Commentators have sharply criticized this rationale. See G. Michael Fenner, Law Professor Reveals Shocking Truth About Hearsay, 62 UMKC L.Rev. 1, 72-77 (1993); Roger C. Park, "I Didn't Tell Them Anything About You": Implied Assertions as Hearsay Under the Federal Rules of Evidence, 74 Minn. L.Rev. 783, 796 (1990). As noted by Professor Fenner, the rationale causes "silly" and often complex disputes such as whether Caesar actually said "'Et tu Brutus?', or was it really 'Et tu Brutus!', with perhaps a compromise at a resigned 'Et tu Brutus.'" 62 UMKC L.Rev. at 74. In fact, this confusion and the complexity have prompted a proposed amendment to Rule 801(a), Fed.R.Evid. See The Evidence Project, 171 F.R.D. 330, 609-16 (1997). This amendment would broaden the definition of "statement" to include "all speech and writing, as well as any action that communicates a message." Id. at 609-10. According to the advocates of the amendment, this definition would be more in line with the common-law hearsay rule, which "excluded statements if their logical relevance depended on the truth of the matter expressed or implied." Id. at 610.

•       6. The Court of Criminal Appeals has twice addressed the issue whether a question can be an assertion. In Inmin v. State, 654 So.2d 86, 90 (Ala.Crim.App.1994), that court held that the question "Do you know if [the victim] keeps money?"-asked by the defendant's wife-was not an assertion. See, also, Drinkard v. State, [Ms. CR-95-0055, December 18, 1998] - So.2d - (Ala.Crim.App.1998), which is now before this Court on a petition for certiorari review. In Inmin, the court left open the question and said, "We need not decide whether a question can ever qualify as an 'assertion' for purposes of the hearsay rule. We hold only that the particular out-of-court utterance here was not offered as an assertion...." 654 So.2d at 90.

•       7. As the State notes, the cases cited by Hunt stand for the proposition that a telephone conversation that is not authenticated is not admissible if the opponent objects on the grounds of improper predicate or improper foundation. However, Hunt objected only on the basis of hearsay, thereby waiving all other objections.

• AL • So.2d

• 900 So.2d 475Ex parte Mike Stewart

• •

• Ex parte Mike Stewart (In re: Maurice Ray Webster, Mike Stewart, and Bill Greer v. State of Alabama) • Rel: November 19, 2004 • SUPREME COURT OF ALABAMA

OCTOBER TERM, 2004-2005 • 1031360 • PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS

(Marshall Circuit Court, CC-01-09, CC-01-10, and CC-01-11; Court of Criminal Appeals, CR-01-1656) • 476 • BROWN, Justice. •       Mike Stewart, a former county commissioner for Marshall County, was convicted, along with Maurice Ray Webster and another former county commissioner, Bill

Greer, of violating the State ethics law, Ala. Code 1975, § 36-25-1 et seq. Specifically, a jury found Stewart guilty of intentionally using his official position to unlawfully obtain personal gain by hiring Webster, a contractor, to perform road-construction work in his district in return for monetary payments from Webster, in violation of Ala. Code 1975, § 36-25-5. The trial court sentenced Stewart to five years' imprisonment and ordered him to pay a $1,000 fine.

•       On March 26, 2004, the Court of Criminal Appeals affirmed Stewart's, Webster's, and Greer's convictions. Webster v. State, [Ms. CR-01-1656, March 26, 2004] ___ So.2d ___ (Ala. Crim. App. 2004). On August 25, 2004, we granted Stewart's petition for certiorari review to determine whether the Court of Criminal Appeals erred in holding that the State had produced the corroborating evidence required by Ala. Code 1975, 12-21-222. (fn1) We reverse the judgment of the Court of Criminal Appeals and render a judgment of acquittal for Stewart.

• Facts and Procedural History •       Stewart and Greer, also a former county commissioner for Marshall County, were convicted of violating the ethics law by using their positions as county

commissioners to hire Webster to perform road-construction work in their respective districts in return for Webster's paying them a portion of the profit he made on the work. Webster was convicted of offering things of value for the purpose of influencing official action, a violation of Ala. Code 1975, § 36-25-7(a), and, as an accomplice, of using an official position or office for personal gain, a violation of Ala. Code 1975, § 36-25-5(a). The three men were tried together; the Court of Criminal Appeals consolidated their appeals and upheld their convictions. Webster, supra.

• Standard of Review •       The Court of Criminal Appeals correctly stated the standard of review in this case: •       "Initially, we note that '"[i]n determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the

State, accord the State all legitimate inferences therefrom, and • 477 • consider all evidence in a light most favorable to the prosecution."' Ballenger v. State, 720 So.2d 1033, 1034 (Ala. Crim. App. 1998), quoting Faircloth v. State, 471 So.2d

485, 488 (Ala. Crim. App. 1984), aff'd, 471 So.2d 493 (Ala. 1985). '"The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt."' Nunn v. State, 697 So.2d 497, 498 (Ala. Crim. App. 1997), quoting O'Neal v. State, 602 So.2d 462, 464 (Ala. Crim. App. 1992). '"When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court's decision."' Farrior v. State, 728 So.2d 691, 696 (Ala. Crim. App. 1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala. Crim. App. 1990). 'The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.' Ex parte Bankston, 358 So.2d 1040, 1042 (Ala. 1978)."

•       Webster, ___ So.2d at ___. • Analysis •       In rejecting Stewart's argument that his conviction was based on the uncorroborated accomplice testimony of Elton Sims, who was also a former county commissioner

for Marshall County, the Court of Criminal Appeals found that the corroborating evidence offered by the State was "minimally sufficient" under Alabama law to allow submission to the jury of the charge against Stewart. ___ So.2d at ___. We disagree.

• Alabama Code 1975, § 12-21-222, provides: "A conviction of felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient."

•       "The Court of Criminal Appeals, explaining [§ 12-21-222], has written: •       "'The formula applying the rule requires that evidence of the accomplice must first be "subtracted" and then, if upon the review of all other evidence before the court at

the time of the motion, there is found to be sufficient incriminating evidence which would tend to connect the defendant with the commission of the offense, sufficient corroboration exists. Craig v. State, [376 So.2d 803, (Ala. Crim. App.), writ denied, 376 So.2d 807 (Ala. 1979)]; Miller v. State, 290 Ala. 248, 275 So.2d 675 (1973). However, the corroborative evidence need not refer to any statement or fact testified to by the accomplice. Neither must it be strong [or] sufficient of itself to support a conviction. The probative value of the evidence need only legitimately tend to connect the accused with the crime and need not directly do so. Further, corroborative evidence need not directly confirm any particular fact [or] affirm each and every material fact testified to by the accomplice. Corroboration may be proven by circumstantial evidence alone. Craig, supra.'

•       "Mills v. State, 408 So.2d 187, 191 (Ala. Crim. App. 1981). •       "The Court of Criminal Appeals has also added the following caveats to the rule: • 478 •       "'"The tendency of the corroborative evidence to connect [the] accused with the crime, or with the commission thereof, must be independent, and without the aid, of

any testimony of the accomplice; the corroborative evidence may not depend for its weight and probative value on the testimony of the accomplice, and it is insufficient if it tends to connect [the] accused with the offense only when given direction or interpreted by, and read in conjunction with, the testimony of the accomplice." 23 C.J.S. Criminal Law, Section 812(b) (1961).'

•       "Mills v. State, 408 So.2d at 191-92." •       "'"'[E]vidence which merely raises a conjecture, surmise, speculation, or suspicion that [the] accused is the guilty person is not ... sufficiently corroborative of the

testimony of an accomplice to warrant a conviction.' 23 C.J.S. Criminal Law, Section 812(5)(b)." Staton v. State, 397 So.2d 227, 232 (Ala. Crim. App. 1981).' •       "Steele v. State, 512 So.2d 142, 143-44 (Ala. Crim. App. 1987)." •       Ex parte Hunt, 744 So.2d 851, 858-59 (Ala. 1999) . •       Sims, the accomplice in this case, testified at trial pursuant to a plea agreement that provided that in exchange for testifying he would plead guilty to two felony

charges and be placed on five years' probation. At trial, Sims testified that Greer suggested that Sims use Webster's business, Webster Construction Company, to complete road projects in Sims's district. Greer told Sims that he "could probably do a little better with Mr. Webster than ... with the other contractors" and that when he made that statement Greer rubbed his fingers together, which Sims understood to mean that he could receive some "monetary value" if he used Webster's business for road projects in his district.

•       Sims soon began using Webster Construction Company on road projects in his district. Sims testified that he and Webster would set a price on the project and "then anything above the price that we set that the purchase order was made for, I would get 50 percent above that and he would keep 50 percent above that."

•       According to Sims, on one occasion he and Greer paid Webster for a nonexistant road-construction project. Sims testified that he submitted a requisition and work order for the nonexistent project and that he had the County issue a $3,000 check made payable to Webster, although Webster actually did no work for the money. Sims testified that he, Webster, and Greer then split the $3,000.

•       Sims also testified that, after he had used Webster Construction Company for road-construction projects in his district for a period of time, Greer approached him and told him to start using the name Bill Runyans instead of Webster on requisition orders, because Webster's name had appeared too often in the County's computer records. Sims thus began using the name Runyans, but the projects were still being completed by Webster Construction Company and the money for the projects was still being paid to Webster.

•       Sims's testimony never directly implicated Stewart in the payment scheme involving Sims, Greer, and Webster. As the Court of Criminal Appeals noted: •       "Sims testified that at one point he was present when Greer told Stewart that he should use Webster Construction Company for his projects. Sims stated that at no

point during that conversation did Greer tell Stewart that he could receive money for using Webster Construction Company, but that Webster had told [Sims] at some point that the

• 479 • arrangement he had with Sims 'was the way he dealt with the county,' i.e., that he would set a price and then share with the commissioner whatever profit he made over

that price. ...

• Sims testified that he had no knowledge of Stewart's ever receiving any money from Webster for any road projects done in Stewart's district, and that Stewart had never told him that he had received money from Webster."

•       Webster, ___ So.2d at ___ (footnote omitted). Moreover, at trial, Sims was asked the following questions: •       "[Defense counsel:] You didn't testify anything about Mike Stewart getting any kickbacks, bribes, payoffs from Maurice Webster did you? You didn't

give any testimony to that effect did you? •       "[Sims:] No, sir, I didn't. •       "[Defense counsel:] All right. And you've testified before the grand jury that you never had any conversation with Mike Stewart about that, that he

never said anything to indicate he was getting any kind of kickback, financial kickback? •       "[Sims:] No, sir, he didn't. Not to me he didn't. Not to my knowledge. •       "[Defense counsel:] You don't know anything about that do you? •       "[Sims:] No, sir, I don't. •       "[Defense counsel:] You understand I represent Mike Stewart. That's all I'm interested in. You don't know anything about Mike Stewart in that

regard; is that correct? •       "[Sims:] That's correct." •       Sims also testified about a conversation between Greer, Stewart, and himself. In that conversation, Stewart asked Sims and Greer about using

Webster's construction services: •       "[Defense counsel:] And that was when they were first talking about, you said Stewart was asking about using Mr. Webster? •       "[Sims:] Yes, sir. •       "[Defense counsel:] Greer didn't say anything at all in that conversation about him getting any money back, did he? •       "[Sims:] No, sir. •       "[Defense counsel:] As a matter of fact, he made it very clear that there wasn't no money [sic], it was for the work, didn't he in that conversation? •       "[Sims:] I believe he did. I'm pretty sure he did, sir." •       While Sims's testimony tends to establish that he, Greer, and Webster had engaged in a scheme to award road-construction projects and then to

receive money from the contractor for doing so, Sims's testimony does not appear to establish that Stewart was in any way guilty of that wrongdoing. •       To corroborate Sims's testimony, the State presented evidence of Marshall County's normal procedure for requesting bids from and paying outside

vendors. Mary Susan McCormick, an accountant for the County, testified that a commissioner who wants to make a purchase for or have work performed in his district first submits a purchase requisition. Once the purchase or work is completed, the vendor mails an invoice to the County for the purchase or the work performed; the County then issues a computer-generated check payable to the vendor and mails the check to the vendor as payment. McCormick testified, however, that she issued several checks for Sims and Greer by using a typewriter rather than the computer, even though the County officials did not like to issue typewritten, as opposed to computer-generated, checks. According to McCormick, most of the checks she had

• 480 • typewritten for Sims and Greer were payable to Webster Construction Company, and Sims and Greer would personally deliver an invoice from Webster

Construction Company and request that she immediately issue a check for the amount of the invoice. Only once did Stewart ask McCormick to type a check; it was a check made out to Webster Construction Company and it is undisputed that the check replaced a computer-generated check previously sent to Webster Construction Company that had apparently been lost in the mail. McCormick further testified that the payments to Webster on the sole project for which Stewart used Webster Construction Company-the Saylor's Gap Road project-were made in "the correct way." While McCormick's testimony tends to prove that Sims and Greer bypassed the normal procedures in securing checks used to pay Webster, it does not tend to establish that Stewart engaged in any unusual activity with regard to the County's check-writing procedures nor does it otherwise corroborate an inference, if any could be formed, from Sims's testimony that Stewart was involved in a scheme to inflate the cost of road projects and share in the profits.

•       The State also presented as corroborative evidence testimony regarding four construction projects on which Webster Construction Company had performed the work. As the Court of Criminal Appeals notes, the State presented testimony from an engineer for Marshall County, as well as an engineer employed with the Alabama Department of Transportation. Those engineers testified that the cost of the four projects, including the Saylor's Gap Road project, should have been less than what Webster Construction Company charged the County for those projects.

• However, on cross-examination, the engineer for Marshall County revealed that, insofar as his testimony regarding the Saylor's Gap Road project was concerned, the equipment-rental rate schedule upon which he based his estimate of the cost of the project was over five years old at the time he made his estimate and was no longer accurate. Moreover, the engineer had failed to include the costs associated with work performed on Guntersville Dam Road, which was part of the Saylor's Gap Road project. Finally, all of the estimates provided by the engineers differed, and none took into account a profit for the contractor. Thus, the State's evidence regarding the actual cost of the Saylor's Gap Road project was, at best, incomplete.

•       The Court of Criminal Appeals also noted that the State presented as corroborating evidence the testimony of several County employees: •       "The State also presented testimony from various county employees regarding [the construction projects involving Webster], which indicated that,

although Webster Construction Company had been hired to do the projects, county employees actually did a large portion of the work. This testimony also indicated that Webster Construction Company had done a good job on all of the projects, but that it had not done anything that county employees could not have done themselves, although it would have taken longer to complete the projects without the help of Webster Construction Company. One county employee, Lynn Waldrop, a former road foreman for district one in Marshall County [the district Stewart represented], testified that during the Saylor's Gap Road project Webster Construction Company was hired to load chert at a local chert pit. When asked how many times in the past he had needed assistance in loading chert at the pit, Waldrop testified: 'Well, that's actually the only time they hired anybody.'"

• 481 •       Webster, ___ So.2d at ___. Waldrop also testified, however, that the Saylor's Gap Road project needed to be completed quickly to take advantage

of the cold weather favorable to the paving process. Waldrop testified that to complete the process in a timely manner an outside contractor was needed. Moreover, accordingly to Waldrop, Webster's crew worked longer hours and more quickly than did the County workers. Additionally, Waldrop testified that Webster Construction Company's equipment was used to load chert at the chert pit because the County's bulldozer was not functioning when the chert needed to be loaded. (fn2) Finally, Waldrop testified that at the time he noticed nothing suspicious in having an outside contractor perform the work at the Saylor's Gap Road project.

•       Based on the evidence before us, we conclude that Sims's testimony failed to establish that Stewart violated the State ethics law. Instead, Sims was unequivocal in his statement that he had no knowledge whatsoever of any participation by Stewart in the scheme in which Sims, Greer, and Webster were participating. However, even if this Court were to conclude that Sims's testimony implicated Stewart in the scheme to funnel work to Webster in return for a payment, as the Court of Criminal Appeals found, based on the foregoing we hold that the evidence corroborating Sims's testimony was insufficient under Ala. Code 1975, § 12-21-222. The corroborating evidence in this case did not tend to connect Stewart with the criminal activity that occurred in this case. See Hunt, supra. The Court of Criminal Appeals erred in affirming Stewart's conviction. We therefore reverse the judgment of the Court of Criminal Appeals and render a judgment of acquittal in favor of Stewart.

•       REVERSED AND JUDGMENT RENDERED. • Nabers, C.J., and See, Harwood, Woodall, and Stuart, JJ., concur. • Johnstone, J., concurs specially. • Houston and Lyons, JJ., concur in the result. •       JOHNSTONE, Justice (concurring specially). •       I concur fully in the main opinion. I write specially only to add that, even absent the application of § 12-21-222, Ala. Code 1975, the State failed to

prove a prima facie case against the defendant Stewart. •       LYONS, Justice (concurring in the result). •       Because I do not consider the State's evidence, as set forth below, sufficient to support Stewart's conviction, I concur in the result. •       According to the evidence, Commissioners Bill Greer and Elton Sims had done business with Webster Construction Company, and Maurice

Webster had paid each of them a percentage of the profits resulting from that business. Sims testified that Greer, in his presence, told Stewart that, "he (Greer) always got Mr. Webster and took him out to his projects and let him see what needed to be done and come up with a price." This testimony, standing alone, is not sufficient to establish any wrongdoing on Stewart's part. Further, there is nothing in Sims's account of Greer's statement to Stewart about Greer's receiving a kickback after Webster

• 482 • was awarded the contract. Perhaps Greer did not want Stewart to know about his illegal acts. •       The only contact involving Webster and Stewart took place after several transactions between Webster and Sims, on the one hand, and Webster

and Greer, on the other, had taken place. Sims also testified that Webster told him that the way Webster "dealt with the County" was to set a price and then share any profit over that price with the commissioner who had gotten them the job. What is meant by "the County?" Nothing in Sims's testimony regarding Webster's description of the way he did business with the County indicates when Webster made the statements.

• For all that appears, Webster commented about setting a price and sharing the overage when he did business with "the County" before the lone transaction between Webster and Stewart and thus was referring in that comment to those transactions involving only Commissioners Sims and Greer. In order to affirm Stewart's conviction, I would have to make the double assumptions (1) that this conversation took place after the lone transaction between Webster and Stewart and (2) that that transaction, like those with Commissioners Sims and Greer, involved a payment by Webster to Stewart. Permitting the jury to make those assumptions was error because this evidence against Stewart did not sufficiently satisfy the State's burden of proof.

•       Houston, J., concurs. • ___________________

Footnotes: •       1. Webster and Greer filed separate petitions for the writ of certiorari. On

August 13, 2004, this Court denied Webster's petition (case no. 1031357) and Greer's petition (case no. 1031369), both without an opinion.

•       2. Waldrop testified that the County's bulldozer, which was a military-surplus model, was out of commission for "quite some time" because it was more difficult to repair than a commercial model.

• AL • So.2d

• 2009-AL-0427.003EX PARTE McCULLOUGH

• •

• Ex parte Christopher McCullough • (In re: Christopher McCullough State of Alabama) • No. 1070438. • Supreme Court of Alabama. • April 24, 2009 • Appeal from Chambers Circuit Court, CC-02-312; Court of Criminal Appeals, CR-06-1311. • PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS. • SMITH, Justice. •       Christopher McCullough was convicted of one count of second-degree burglary, a violation of § 13A-7-6(b), Ala. Code • 2 • 1975. The trial court sentenced him to 80 months in prison. In an unpublished memorandum, the Court of Criminal Appeals affirmed McCullough's conviction and sentence.

McCullough v. State, [Ms. CR-06-1311, Nov. 2, 2007] ___ So. 3d ___ (Ala. Crim. App. 2007). We granted McCullough's petition for a writ of certiorari to determine whether the testimony of an accomplice was sufficiently corroborated so as to meet the requirements of § 12-21-222, Ala. Code 1975. We conclude that it was not, and we reverse the judgment of the Court of Criminal Appeals and render a judgment of acquittal for McCullough.

• Facts and Procedural History•       On March 8, 2002, at approximately 11:00 p.m., Myrtle Burdell was awakened by the ringing of the doorbell to her residence. Without turning on a light, Burdell went to her

back door and looked out. Seeing no one, she proceeded to the living-room area when she again heard the doorbell; she then heard a noise she described as sounding like an explosion. Burdell ran down the hall, and, upon seeing two men, she screamed at them to get out of her house. The men immediately left through the back door, which they had kicked open.

• 3 • Burdell telephoned the police and, shortly after the telephone call, Detective Angela Spates and other officers from the Lanett Police Department arrived at Burdell's residence.

McCullough and Billy Norris were subsequently arrested and indicted for second-degree burglary in connection with the incident. •       At trial, Burdell stated that she could not identify the two men who had entered her house. Specifically, Burdell testified as follows: • "Q. [The prosecutor:] Can you describe the two people in your house, the people that broke in your house? • "A. Can I identify them? • "Q. Can you describe them? • "A. Can I describe them? • "Q. Yes. • "A. No. I think they were short. I think it's because as they were going down--I don't know. I said they were short. • "Q. You don't [know] if they were? • "A. I can't identify them, no. • "Q. Now, do you know that young man seated over there at that table? • 4 • "A. You know, the day that that happened, I went to the Chicken Stop(fn1) that morning, and I held the door open for a young man. That could have easily been him. • "Q. Okay. • "A. And they followed me home. • "Q. But you don't know his name? • "A. That morning I think they knew where I lived. No, I can't identify him really." •       On cross-examination, Burdell was questioned more extensively about her inability to identify the perpetrators. She testified as follows: • "Q. You said you can't identify these individuals; is that correct? You can't identify who was in your house? • "A. No, I cannot identify them. • "Q. What was the light like when you saw them?

• "A. It was dark. It was around 11 o'clock at night. • "Q. Do you know what color skin they had? • "A. No, I could not tell. They could have had a ski mask on. They could have had anything. They had on jackets. It was in March. No way I could identify them. • "Q. Nor even tell what race they belonged to? • 5 • "A. No, I couldn't. I thought they were black. It looked black with the night light and the light shining in. Whether it was a ski mask I was looking at or whether they were

really black, I don't know. • "Q. How far away from these individuals--how far away were you from them when you saw them? • "A. May I stand up? • "Q. You may. • "A. That close. (Indicating.) • "Q. Just a little over an arm's reach away? • "A. Yes, sir. • "Q. Do you have any reason to think anybody followed you home? • "A. At that particular time, I wasn't afraid to go out at night wherever. I didn't pay that much attention who was behind me, but I often wondered if somebody followed me

home because they were living just above the Chicken Stop where I had gotten fish that day on Friday. They had lived on that street. So in my mind I just wondered, but nothing concrete, no, sir."

•       Norris testified at McCullough's trial that he and McCullough entered Burdell's home with the intent to steal. He stated that, upon arriving at Burdell's house, he rang the doorbell and that when no one answered he kicked the door in. According to Norris, both he and McCullough then entered but immediately left when they heard someone say, "Get out of my

• 6 • house." Norris said he and McCullough ran from Burdell's house to McCullough's car, which was parked near the golf course behind Burdell's house. Norris further stated

that he and McCullough had been together all day on the day of the burglary; that he was wearing a bandana and McCullough had on a ski mask while they were in Burdell's house; and that he had never seen Burdell before his court appearance on the burglary charge stemming from this incident.

•       Detective Spates's testimony at McCullough's trial was limited to her observations of the damage to Burdell's back door, the location of Burdell's house in relation to the golf course, and the fact that she had arrested McCullough 18 days after the break-in for the burglary of Burdell's residence.

•       McCullough was convicted of second-degree burglary and was sentenced to 80 months in prison. McCullough appealed, arguing that the trial court erred (1) in denying his motion to strike the accomplice testimony of Norris and (2) in denying his motion for a judgment of acquittal. Specifically, McCullough argued that there was no evidence connecting him to the crime other than Norris's testimony, and he contended that Norris's testimony was not sufficiently corroborated under §

• 7 • 12-21-222, Ala. Code 1975. The Court of Criminal Appeals affirmed McCullough's conviction and sentence, stating in its unpublished memorandum that Norris's testimony

was corroborated by Burdell's and Detective Spates's testimony. • Discussion•       As he did in the trial court and in the Court of Criminal Appeals, McCullough argues before this Court that Norris's testimony was not sufficiently corroborated to meet

the requirements set forth in § 12-21-222, Ala. Code 1975. Section 12-21-222 provides: • "A conviction of felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of

the offense, and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient." •       McCullough contends that Burdell's and Detective Spates's testimony was "not sufficient evidence tending to connect McCullough with the commission of second-

degree burglary . . . if the testimony of Billy Norris, the accomplice, is eliminated." McCullough's brief, p. 4. •       The State contends that it provided sufficient evidence to corroborate Norris's testimony implicating McCullough in • 8 • the burglary of Burdell's house. The Court of Criminal Appeals, in its unpublished memorandum, agreed with the State's position: • "Norris's testimony was corroborated by [Burdell's] testimony that the men who broke into her home rang the doorbell; that they entered her home by kicking in her back

door; that they could have been wearing ski masks; and that they turned and ran when she yelled for them to get out of her home.

• Norris's testimony was further corroborated by [Detective] Spates's testimony that the back door of the victim's home had been kicked in and that the backyard was on a golf course. Consequently, the State presented sufficient evidence to corroborate Norris's testimony and connect [McCullough] with the crime in question. Therefore, [McCullough's] argument is without merit, and we affirm the trial court's judgment."

•       In addition to Norris's testimony, the Court of Criminal Appeals relied on Burdell's testimony regarding the manner in which the crime was committed: the ringing of the doorbell, the kicking in of the back door, the possibility that the perpetrators were wearing ski masks, and the fact that her house was located on a golf course.

•       In Ex parte Hardley, 766 So. 2d 154 (Ala. 1999), this Court addressed the test for determining the sufficiency of evidence corroborating an accomplice's testimony: • 9 • "Discussing § 12-21-222, at § 300.01(5), C. Gamble, McElroy's Alabama Evidence (5th ed. 1996), Professor Gamble notes: • "`Nonaccomplice evidence of the defendant's guilt, to be sufficient corroboration of the accomplice's testimony to take the case to the jury, must tend to connect the

defendant with the crime or point to the defendant, as distinguished from another person, as the perpetrator of the crime. Nonaccomplice evidence which merely confirms the way and manner in which the crime was committed, but which is colorless and neutral insofar as the defendant's connection with the crime is concerned, is not sufficient corroboration to warrant submission of the case to the jury.'"

•       766 So. 2d at 157. •       This Court has elaborated on this test: • "Under § 12-21-222, Ala. Code 1975, a felony conviction `cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the

defendant with the commission of the offense, and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient.' (Emphasis added.) In reviewing a claim of insufficient corroboration, the Alabama appellate courts have stated that

• "`[t]he test for determining whether there is sufficient corroboration of the testimony of an accomplice consists of eliminating the testimony given by the accomplice and examining the remaining evidence to determine if there is sufficient incriminating evidence tending

• 10 • to connect the defendant with the commission of the offense.' • "Andrews v. State, 370 So. 2d 320, 321 (Ala. Crim. App.), cert denied, 370 So. 2d 323 (Ala. 1979), citing Miller v. State, 290 Ala. 248, 275 So. 2d 675 (1973). The

evidence corroborating the accomplice's testimony and connecting the defendant to the offense can be purely circumstantial evidence. Mathis v. State, 414 So. 2d 151 (Ala. Crim. App. 1982). But, `"[i]t must be of a substantive character, must be inconsistent with the innocence of the accused, and must do more than raise a suspicion of guilt. . . ." Sorrell v. State, 249 Ala. 292, [293,] 31 So. 2d 92, 83 [(1947)].' Ex parte Bell, 475 So. 2d 609, 613 (Ala.), cert denied, 474 U.S. 1038, 106 S. Ct. 607, 88 L. Ed. 2d 585 (1985)."

• Ex parte Bullock, 770 So. 2d 1062, 1067 (Ala. 2000). •       Furthermore, in Ex parte Stewart, 900 So. 2d 475 (Ala. 2004), this Court, quoting Ex parte Hunt, 744 So. 2d 851, 858-59 (Ala. 1999), noted: • "`The Court of Criminal Appeals has . . . added the following caveats to the rule [regarding corroboration of accomplice testimony]: • "`"`The tendency of the corroborative evidence to connect [the] accused with the crime, or with the commission thereof, must be independent, and without the aid of any

testimony of the accomplice; the corroborative evidence may not depend for its weight and probative value on the testimony of the accomplice, and it is insufficient if it tends to connect [the] accused with the offense only when given direction or interpreted by, and read in conjunction with the testimony of the

• 11 • accomplice.' 23 C.J.S. Criminal Law, Section 812(b)(1961)." • "`Mills v. State, 408 So. 2d [187,] 191-92.' • "`"`"[E]vidence which merely raises a conjecture, surmise, speculation, or suspicion that [the] accused is the guilty person is not sufficiently corroborative of the testimony

of an accomplice to warrant a conviction." 23 C.J.S. Criminal Law, Section 812(5)(b).' Staton v. State, 397 So. 2d 227, 232 (Ala. Crim. App. 1981)." • "`Steele v. State, 512 So. 2d 142, 143-44 (Ala. Crim. App. 1987).'" •       900 So. 2d at 477-78 (emphasis added). •       Applying these principles to the facts of this case, we conclude that the Court of Criminal Appeals erred in affirming McCullough's conviction and sentence. Applying

the rule that requires that Norris's testimony must first be subtracted and the remaining evidence examined, we are left with the testimony of Detective Spates and of the victim, Burdell.

• Detective Spates's testimony provided evidence merely showing "the commission of the offense or the circumstances" surrounding the crime. See § 12-21-222, Ala. Code 1975. Detective Spates's testimony does not connect McCullough to the crime but simply shows that a crime had been committed. When considered without the testimony of Norris, the alleged

• 12 • accomplice, this evidence does not tend to show McCullough's guilt. •       Likewise, Burdell's testimony deals with the circumstances of the crime rather than any participation of McCullough in the burglary. Although she was a little more than

an arm's length away from the perpetrators, the only characteristics Burdell could provide as to their identity were that she thought that the two men were wearing jackets and that they might have been black or they could have been wearing ski masks.(fn2) Burdell also testified that she initially told the police investigating the burglary that the men were "short," but at trial she concluded that she could not attest to their height as an identifying characteristic.

•       Without Norris's testimony, Burdell's testimony does no more than identify the burglars as males, possibly black or possibly wearing ski masks, perhaps short, but perhaps not. This evidence does no more than "raise a suspicion of [McCullough's] guilt." Bullock, 770 So. 2d at 1067. Burdell's testimony is insufficient corroboration of Norris's

• 13 • testimony because it "tends to connect [McCullough] with the offense only when given direction or interpreted by, and read in conjunction with the testimony of the

accomplice [Norris]." Stewart, 900 So. 2d at 478. •       The remaining evidence provided by Burdell against McCullough was her testimony regarding the man she had seen at the Chicken Stop restaurant earlier in the day

of the robbery. In his dissent to the Court of Criminal Appeals' unpublished memorandum, Judge Welch addressed the problems with this testimony: • "[T]he trial court ruled that `based on the testimony of the victim in this case, specifically her testimony as to the fact that she identified that she could have possibly seen

the alleged perpetrator of the crime that day and that he possibly followed her home and then perpetrated the crime' Norris's testimony was sufficiently corroborated. (R. 46.)

• "Unlike the majority, I do not believe that Norris's testimony was sufficiently corroborated to sustain a conviction for second-degree burglary. • "`A conviction for a felony cannot be had on the testimony of an accomplice unless the testimony is corroborated by other evidence tending to connect the defendant with

the commission of the offense. Code of Alabama 1975, § 12-21-222. The test for determining the sufficiency of the corroboration is a subtraction process. First, the testimony

• 14 • of the accomplice must be eliminated, and then if, upon examination of all the other evidence, there is sufficient evidence tending to connect the defendant with the

commission of the offense, there is sufficient corroboration.' • "Carden v. State, 612 So. 2d 509, 513 (Ala. Crim. App. 1992) (citations omitted). • "To prove a prima facie case of second-degree burglary, the State had to present evidence showing that McCullough `unlawfully enter[ed] a lawfully occupied dwelling-

house with intent to commit a theft or felony therein.' § 13A-7-6(b), Ala. Code 1975. I do not believe that the State presents any nonaccomplice evidence that connected McCullough to the crime or that corroborated Norris's testimony. In my opinion, the testimony of both Burdell and [Detective] Spates merely showed that the offense occurred and the circumstances of the offense. See § 12-21-222, Ala. Code 1975. Moreover, I do not agree with the trial court's finding that Burdell's testimony that McCullough `could have' been the man she held a door open for at the Chicken Stop restaurant and that the man could have followed her home corroborated Norris's testimony. (R. 24.)

• "`Q. [The prosecutor:] [D]o you know that young man [referring to McCullough]? • "`A. [Burdell:] You know, the day that that happened, I went to the Chicken Stop that morning, and I held the door open for a young man. That could have easily been him. • "`Q. Okay. • "`A. And they followed me home. • "`Q. But you don't know his name? • 15 • "`A. That morning I think they knew where I lived. No, I can't identify him really.' • "(R. 24.) • "It is clear from the context of Burdell's entire testimony that the above was not meant as an assertion that McCullough was the man from the Chicken Stop or an

assertion that a man from the Chicken Stop did follow her home; it was merely Burdell's hypothesis that the man from the Chicken Stop was responsible for the burglary. Thus, I do not believe this testimony--which is merely conjecture--can serve as corroboration of accomplice testimony."

• McCullough v. State, ___ So. 3d at ___ (Welch, J., dissenting).

•       We agree with Judge Welch's dissenting opinion. Burdell's testimony does not show that McCullough was, in fact, involved in the burglary. Instead, her testimony is merely conjecture or suspicion, which is insufficient to support a conviction. Burdell could not identify McCullough as one of the men who was in her house on the night of the burglary or as the man she had seen earlier that day at the Chicken Stop. Moreover, her speculation that the man she encountered at the Chicken Stop was one of the intruders is further weakened by Norris's testimony that he and McCullough had been together all day on the day of the burglary and that

• 16 • Norris had never seen the victim before he appeared in court for the burglary charge stemming

from this incident. • Conclusion•       Because the evidence was insufficient under § 12-21-222, Ala. Code 1975, to corroborate

Norris's testimony that McCullough had participated in the burglary, we reverse the judgment of the Court of Criminal Appeals and render a judgment of acquittal.

•       REVERSED AND JUDGMENT RENDERED. • Cobb, C.J., and Lyons, Woodall, Stuart, Bolin, Parker, and Murdock, JJ., concur. • Shaw, J., recuses himself.(fn*) • _____________________

Footnotes: •       FN1. The Chicken Stop is a restaurant located in Lanett. •       FN2. The State points out that "while Norris's race is not apparent from the record, the case

action summary . . . shows [that] McCullough is black." State's brief, p. 11. •       FN* Justice Shaw was a member of the Court of Criminal Appeals when that court

considered this case. • AL • Slip Opinions

• Lawden H. Yates, Attorney At Law/Forensic Sciences Consultant, • 489 Starnes Chapel Road, Blountsville, Alabama 35031

• Telephone Number (205) 873-5590• Fax Number (205) 429-4504

• E-mail address: lawdeny@urisp.net

• Lawden is a Member of the Alabama Criminal Defense Lawyers Association. He is retired from the Alabama Department of Forensic Sciences with twenty-five years of service. He is the former Director of the Birmingham Regional Laboratories of Alabama Department of Forensic Sciences, a Special Assistant Attorney General, and General Counsel for the Alabama Department of Forensic Sciences.

• Lawden is a graduate of Auburn University with a degree in Laboratory Technology, Chemistry Major. A graduate of the Birmingham School of Law; and a graduate of the Birmingham Police Academy. He is a former Board Member of the American Society of Crime Laboratory Directors. A Life Member of the Association of Firearms and Toolmarks Examiners. Former Assistant District Attorney and City Prosecutor.

• Lawden is presently an attorney in private practice and forensic scientist consultant. As a forensic scientist consultant, has assisted in many murder cases, mostly capital cases, in Alabama, Mississippi, Georgia, Florida, South Carolina which have produced Not Guilty verdicts in each of those jurisdictions.