Opinion
CR-21-0080
09-02-2022
Patrick Jack BAILEY v. CITY OF VESTAVIA HILLS
Susan Walker and Alex Hirschfield, Birmingham, for appellant. Nicholas Waddell of The Waddell Law Firm, LLC, Birmingham, for appellee.
Susan Walker and Alex Hirschfield, Birmingham, for appellant.
Nicholas Waddell of The Waddell Law Firm, LLC, Birmingham, for appellee.
MINOR, Judge.
This appeal from a bench trial in the Jefferson Circuit Court convicting Patrick Jack Bailey of criminal surveillance, see § 13A-11-32, Ala. Code 1975, and his resulting sentence of 6 months in jail, which was split so that he would serve 15 days in jail followed by 1 year of unsupervised probation requires us to determine (1) whether the circuit court erred in denying Bailey’s motion to dismiss based on an alleged defect in the complaint and (2) whether the circuit court erred in denying Bailey’s motion to suppress the identification of Bailey as the suspect. We hold that there is no merit to Bailey’s arguments, but, because Bailey’s split sentence for a misdemeanor offense was unauthorized under the version of the Split-Sentence Act, see § 15-18-8, Ala. Code 1975,. in effect when Bailey committed the offense, we must remand this case for the circuit court to resentence Bailey.
Bailey does not challenge the sufficiency of the evidence, so a brief recitation of the facts will suffice. One evening in May 2018, Tyler Byrd saw a man standing outside the window of the guest bathroom of his house while his wife, Brittany Byrd ("Brittany"), was using the toilet. Byrd had been walking through his yard when he heard "rustling in the bushes" and encountered "this guy standing, with a kind of shocked look on his face" (R. 26) who was quickly "buttoning up his pants." (R. 29.) Byrd chased the man through his neighborhood but ultimately lost sight of him. Brittany and Byrd reported the incident and the man’s description to the Vestavia Hills Police Department ("VHPD"), but officers were also unable to locate the man that evening.
In the days following the incident, Byrd tided to identify the man. Byrd determined through Internet searches and publicly available records that Bailey, who was around the same age as the man Byrd had seen, may have lived at a particular house in his neighborhood. Byrd asked VHPD Lt. Chuck Nagle to determine whether anyone matching the man’s description lived at the house. Lt. Nagle went to the house, spoke to Bailey, and determined that Bailey did, in fact, live there. Byrd testified that, after he viewed a still image of Bailey that Lt. Nagle had captured on his body camera, he had "no question" that Bailey was the man he saw outside his house that night. (R. 40.)
After Byrd positively identified Bailey, Brittany appeared before a magistrate at the City of Vestavia Hills Municipal Court where she swore a complaint against Bailey and provided a sworn deposition detailing the facts of the offense. The magistrate then issued an arrest warrant for Bailey for criminal surveillance. Bailey was convicted in municipal court and appealed his conviction to the circuit court. The circuit court found Bailey guilty, and he timely appealed.
I. Motion to Dismiss
[1] Bailey argues that the circuit court erred when it denied his motion to dismiss because, he says, neither the complaint nor the deposition included "sufficient factual information based upon personal knowledge to provide probable cause" to issue the arrest warrant. (Bailey’s brief, p. 16.) Bailey’s argument lacks merit. The complaint against Bailey stated, in pertinent part, that "Patrick Jack Bailey did intentionally engage in surveillance while trespassing on the private place of — Haviland Drive and watched Brittany Byrd through a bathroom window." (C. 160.) The deposition included these facts:
"On 3 May 2018, my husband and I were in our home at [redacted] Vestavia, AL. At approximately 8:30 p.m. my husband Tyler Byrd went outside. I was in our bathroom on the front of the house using the toilet. The bathroom has a window with blinds, which were closed. I heard my husband say, ‘What the fuck are you doing?’ I peaked [sic] through the blinds and saw my husband chasing someone. When Tyler came back to our house, he stated that a man was ‘beating off looking at me in our bathroom. We verified that when standing right up against the house one can in fact see into the bathroom even though the blinds were closed. I called 911 while Tyler drove around the neighborhood searching for the man. Although I did not see the man, Tyler’s stated description was a white male in his twenties or thirties, dark hair, blue t-shirt, and jeans."
(C. 157-58.) The deposition also listed Byrd as a witness.
Bailey moved to dismiss the charge and argued that the complaint and deposition were defective because, he said:
"Mrs. Byrd has no personal knowledge of any person looking into her home and has no personal knowledge of the identity of the personal [sic] who purportedly looked into her home as she admits that she did not see the man. Accordingly, the affidavit/deposition and complaint by Mrs. Byrd did not provide sufficient factual information based upon personal knowledge to provide probable cause for the issuance of a warrant of arrest for Patrick Bailey."
(C. 155.) Before trial, the circuit court held a hearing in which Bailey essentially reiterated the argument set out in his written motion to dismiss. At the end of the hearing, the circuit court denied the motion, finding: "[T]he complaint is statutorily effective and sufficient based upon the content of the complaint, [Brittany] seeing someone standing outside the bathroom, she looked, the identification was the same as her husband, and her relying on reliable hearsay in [Byrd’s] investigation and identification of [Bailey]." (R. 10.)
[2, 3] On appeal, Bailey argues that "affidavits … which consist solely of the affiant’s conclusion that the named individual committed an offense, without setting forth the facts [on] which the conclusion is based, are fatally defective." Crittenden v. State, 476 So. 2d 632, 634 (Ala. 1985) (citing Malone v. State, 51 Ala. App. 19, 282 So. 2d 367, writ quashed, 291 Ala. 789, 282 So. 2d 371 (1973)).
"This Court has held that affidavits for arrest warrants may not be based on mere conclusions that the offense has been committed, but, rather, must contain the factual basis for such a conclusion. Crittenden v. State, 476 So. 2d 632 (Ala. 1985). Under § 15-7-2, Code of Alabama 1975, a judge or magistrate is authorized to question a complainant who testifies that ‘in his opinion’ an offense has been committed. This section further provides that the depositions taken by the judge or magistrate ‘must set forth the facts … tending to establish the commission of the offense and the guilt of the defendant.’ "
Professional Check Serv, Inc. v. Dutton, 560 So. 2d 755, 757 (Ala. 1990).
"To cope with the problem of conclusory affidavits, we have adopted the rule that the court may look beyond the
affidavit to ascertain what other information may have been furnished the magistrate. If the additional information, together with the affidavit information, supports issuance of the warrant, then it is saved. Mayes v. State, 47 Ala. App. 672, 260 So. 2d 403 (1972); Neugent v. State, 340 So. 2d 43 (Ala. Cr. App. 1975), rev’d on other grounds, 340 So. 2d 52 (Ala. 1976). We view the evidence from the position of the magistrate who issues the warrant, and attempt to determine what information was in that official’s possession at the time of the issuance of the warrant. Then the decision—whether or not probable cause existed for the issuance of the warrant—is made."
Crittenden v. State, 476 So. 2d 626, 631 (Ala. Crim. App. 1983). "[T]he issuance of … an arrest warrant is a matter left within the discretion of the issuing judge or magistrate." Hunter v. State, 867 So. 2d 361, 364 (Ala. Crim. App. 2003).
"In Jones v. State, 719 So. 2d 249 (Ala. Crim. App. 1996), this Court stated:
" ‘A finding of probable cause may be based completely on hearsay evidence, "provided that there is a substantial basis for believing the evidence under the totality of the circumstances." Rule 3.9(b), Ala. R. Crim. P. "An issuing judge’s determination that sufficient probable cause existed to support the warrant ‘is entitled to great deference and is conclusive in the absence of arbitrariness.’ " Wamble v. State, 593 So. 2d 109, 110 (Ala. Cr. App. 1991), citing United States v. Pike, 523 F. 2d 734 (5th Cir. 1975), reh’g denied, 525 F. 2d 1407 [(5th Cir. 1975)], cert. denied, 426 U.S. 906, 96 S. Ct. 2226, 48 L.Ed. 2d 830 (1976). We must determine whether the issuing judge had a "substantial basis" for concluding that probable cause existed. Wamble v. State; Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L.Ed. 2d 527 (1983).’
"Jones v. State, 719 So. 2d at 254. (Emphasis added.) ‘An affidavit need not reflect the direct personal observations of the affiant and may be based on hearsay.’ Swain v. State, 504 So. 2d 347, 351 (Ala. Crim. App. 1986), citing Illinois v. Gates, supra."
Doggett v. State, 791 So. 2d 1043, 1060-61 (Ala. Crim. App. 2000) (emphasis added).
Although the complaint against Bailey merely tracks the language of § 13A-11-32, Ala. Code 1975—the statute codifying the offense of criminal surveillance—the accompanying deposition sets out the facts on which Brittany based her conclusion that Bailey committed the offense. The deposition provides Brittany’s account of hearing Byrd confront a man standing outside the bathroom window while she was using the toilet. Brittany looked outside to see Byrd chasing a man and, even though she did not see the man, Byrd provided his description included in the deposition. The record shows that the same magistrate signed the complaint, deposition, and arrest warrant on the same date, so the magistrate was aware of the facts set out in the deposition when he or she issued the warrant. Contrary to Bailey’s argument, the deposition was not required to reflect Brittany’s direct personal observations. See Doggett, 791 So. 2d at 1061. Although the details of the offense in the deposition were at least partially based on hearsay from Byrd, when considering the totality of the circumstances, there was a substantial basis for the magistrate to believe the evidence set forth in the deposition and to find probable cause to issue the arrest warrant in this case. Thus, the circuit court did not err when it denied Bailey’s motion to dismiss, and he is due no relief on this issue.
II. Motion to Suppress
[4] Bailey argues that the circuit court erred when it denied his motion to suppress Byrd’s identification of Bailey because, he says, the identification was "based upon a single photographic showup by police" and was thus "improper, unduly suggestive and violative of his constitutional rights." (Bailey’s brief, p. 17.)
Bailey moved to suppress Byrd’s identification of him because, he said, "the procedure was improper, suggestive and unjust." (C. 47.) Bailey alleged: (1) that the "identification of [Bailey] consisted of a single image, which constituted an unnecessary, impermissibly suggestive one-man showup" (C. 51); (2) that "there was no necessity or emergency situation which would justify a one-man showup" (C. 50); and (3) that Byrd’s identification of him created "a substantial likelihood of irreparable misidentification." (C. 51.)
The circuit court held a hearing on Bailey’s motion where it heard testimony from Byrd and Lt. Nagle. Byrd testified that on the night of the incident, he had been rerouting the plumbing in his master bathroom and that around 8 p.m. he went outside to restore the water supply to his house. Byrd was wearing a headlamp as he walked through his front yard and encountered a man standing outside the window of his guest bathroom. Byrd and the man stared directly at each other for about five seconds before the man ran away. Byrd chased the man on foot for about three blocks before losing sight of him. Byrd returned to his house, got in his car, and drove around the neighborhood looking for the man. As he was driving, he encountered Clyde Wills, who was out walking his dog. Byrd asked Wills if he had seen a "dude, black hair, blue shirt, running." (C. 83.) Wills pointed toward Oak Lawn Drive, so Byrd drove down that street. Byrd testified:
"And there was this one house that had these lights on, and there seemed to be some kind of activity going on. …
"….
"You know, other houses may have, like a—like, an outside light on or something like that. But this house specifically had a car in the driveway with the light on in the car. And also in the front door, there was a light on with some— what seemed to be kind of rushed activity kind of going on in there."
(C. 84-85.) Byrd ultimately returned home without locating the man. Brittany reported the incident to the VHPD, but officers could not locate the man.
Because Byrd was sure he would recognize the man if he could see his face again, he conducted his own investigation to find the man. First, Byrd searched the Alabama Sex Offender Registry and, after viewing photographs of 82 registered sex offenders who lived or worked within a 5-mile radius of his house, he did not identify any of those individuals as the suspect. Next, Byrd contacted the companies that provided power, gas, water, and trash collection to his neighborhood, as well as Cook’s Pest Control and the contractor who was renovating his next-door neighbor’s house. He asked each business if it employed any person matching the man’s description, but he was similarly unable to identify the suspect that way.
Eventually, Byrd turned his attention to the house on Oak Lawn Drive where he "had seen all the commotion going on" while he was looking for the man on the night of the incident. (C. 91.) After searching property records for Jefferson County, Byrd determined that Joyce Bailey ("Joyce") owned the house. He then searched Joyce’s name in the White Pages, which listed "the associated family. And there were two males’ names here: a Patrick Bailey and Jonathan E. Bailey." (C. 91.) After looking at a picture on Jonathan’s Facebook profile page, Byrd concluded that Jonathan was not the suspect. Because he could not find any images of Bailey online, Byrd asked Lt. Nagle to determine whether anyone matching the man’s description lived at Joyce’s house. Lt. Nagle went to the house and spoke with a man who lived there and who fit the description Byrd had provided to VHPD. After Lt. Nagle showed Byrd an image of the man he had spoken to at Joyce’s house, Byrd immediately recognized him. Byrd testified that he had "not a single doubt" that Bailey was the man he saw outside his house that night and that Bailey "is one face, unfortunately, that I’ll never forget." (C. 95.) Byrd positively identified Bailey in court.
Lt. Nagle testified that he investigated the incident at the Byrds’ house. Byrd had informed Lt. Nagle that the man was "25 to 30 years old, thinly built, around 6 feet tall, dark hair, unshaven or scruffy-looking facial hair" wearing a "blue shirt and blue jeans." (C. 119-20). Lt. Nagle also spoke to a neighbor, Mr. Miller, who told him about a young man who walked around the neighborhood at night who might fit the man’s description and described the house where the man lived. Lt. Nagle could not remember whether Miller or Byrd gave him Bailey’s name.
Lt. Nagle went to the house on Oak Lawn Drive and spoke with Joyce and Bailey. Bailey told Lt. Nagle that he was at home on the night of the incident and that if he had been walking around the neighborhood that evening, he would have done so later than 8 p.m. Lt. Nagle testified:
"I went back and called [Byrd], you know, and just told him, you know, my initial thoughts.
"I mean, you know, I said, I talked to him. There is a young man there, you know, fits the basic description. I told him I would—I could conduct a photo lineup of him and, you know, just to— when he could come in to do that.
"And when he did come in to do it, he was telling me about all these Internet searches he did. And I assumed he had seen Mr. Bailey in all these Internet searches you know; so, I kind of thought, well, there is no sense of doing a photo lineup if you’ve already seen the subject, so—
"….
"I did show him after, you know, I said, you know, I really can’t show you a photo lineup. You’ve already seen this subject.
"So, I did show him a snippet of the video of the front porch just because, you know, if—if he is going to swear out a warrant on this man, I want to make sure this is the same person we’re talking about."
(C. 122-23.) According to Lt. Nagle, Byrd had no doubt Bailey was the suspect after viewing the video.
[5, 6] Bailey argued that Byrd’s identification should be suppressed because, he said, the procedure used to identify Bailey was unnecessarily and impermissibly suggestive and created a substantial likelihood of irreparable misidentification. The circuit court denied Bailey’s motion.
"In State v. Landrum, 18 So. 3d 424[, 426] (Ala. Crim. App. 2009), this Court explained:
" ‘ "This Court reviews de novo a circuit court’s decision on a motion to suppress evidence when the facts are not in dispute. See State v. Hill, 690
So. 2d 1201, 1203 (Ala. 1996); State v. Otwell, 733 So. 2d 950, 952 (Ala. Crim. App. 1999)." State v. Skaggs, 903 So. 2d 180, 181 (Ala. Crim. App. 2004).’
"Because the evidence presented at the suppression hearing is not in dispute, the only issue before this Court is whether the circuit court correctly applied the law to the facts presented at the suppression hearing, and we afford no presumption in favor of the circuit court’s ruling."
Bolden v. State, 205 So. 3d 739, 742 (Ala. Crim. App. 2015).
"Although the use of a single photograph for purposes of identification raises the question of possible suggestiveness, it ‘does not necessarily inject prejudice.’ Hutchinson v. State, 516 So. 2d 889, 894 (Ala. Crim. App. 1987), citing United States v. Baxter, 492 F. 2d 150 (9th Cir.), cert. dismissed, 414 U.S. 801, 94 S. Ct. 16, 38 L.Ed. 2d 38 (1973), cert. denied, 416 U.S. 940, 94 S. Ct. 1945, 40 L.Ed. 2d 292 (1974); Kalmbach v. Jones, 488 F. 2d 134 (5th Cir. 1973), cert. denied, 417 U.S. 913, 94 S. Ct. 2614, 41 L.Ed. 2d 218 (1974). ‘Although a one-man showup is inherently suggestive, "it does not necessarily follow that the procedure [is] unduly suggestive so that it would taint [a] subsequent incourt identification." Quarles v. State, 711 So. 2d 1115, 1117 (Ala. Crim. App. 1997). See also Nichols v. State, 624 So. 2d 1328, 1338 (Ala. Crim. App. 1992) (although one-man showups "are by their nature suggestive, they are not necessarily unduly so"), and Cooley v. State, 439 So. 2d 193, 195 (Ala. Crim. App. 1983) ("the mere fact that the appellant was subjected to a one-man showup does not necessarily render that identification procedure impermissibly suggestive").’ Gavin v. State, 891 So. 2d 907, 960 (Ala. Crim. App. 2003), cert. denied, Ex parte Gavin, 891 So. 2d 998 (Ala. 2004), cert. denied, Gavin v. Alabama, 543 U.S. 1123, 125 S. Ct. 1054, 160 L.Ed. 2d 1073 (2005).
" ‘In Ex parte Appleton, [828 So. 2d 894 (Ala. 2001),] this Court noted:
" ‘ " ‘The danger inherent in a oneman showup, where a witness is shown a single suspect and asked, "Is that the man?" is twofold. First, a one-man showup, conveys a clear message that "the police suspect this man." Second, a one-man showup does not give the witness a choice of identifying another person as being the perpetrator of the crime charged. Consequently, when a one-man showup is used to identify the perpetrator of a crime, the reliability of the witness’s identification is not put to an objective test, such as a live or photographic lineup, in which a single suspect must be chosen from a group of persons possessing similar physical characteristics.’ "
" ‘828 So. 2d at 899-900 (quoting Ex parte Frazier, 729 So. 2d [253,] 254-55 [(Ala. 1998)] (citations omitted) (emphasis omitted)).’
"Ex parte Wimes, 14 So. 3d 131, 138 (Ala. 2009).
Dotch v. State, 67 So. 3d 936, 952-53 (Ala. Crim. App. 2010).
Here, although Byrd identified Bailey after viewing a single image of him, the procedure was not unduly or impermissibly suggestive. The record shows that Lt. Nagle contacted Bailey only at Byrd’s request and that it was Byrd, not police, who first suspected Bailey. Byrd also had a choice of identifying other individuals as the perpetrator of the crime when he independently viewed photographs of at least 83 possible suspects—including Bailey’s own brother—and did not identify any of those people. Thus, his identification had been put to an objective test.
[7–9] Even if the procedure used by Lt. Nagle had been improper, Byrd’s identification was reliable under the factors set out in Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 34 L.Ed. 2d 401 (1972).
" ‘ "In determining the constitutional adequacy of pretrial identification procedures and the admissibility of identification testimony, the central question is whether, under the totality of the circumstances, the identification was reliable. Manson[ v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)]. This determination involves the application of a two-pronged test.
" ‘ " ‘[T]he required inquiry is twopronged. The first question is whether the initial identification procedure was "unnecessarily" … or "impermissibly" … suggestive. If it is found to have been so, the court must then proceed to the question whether the procedure found to have been "unnecessarily" or "impermissibly" suggestive was so "conducive to irreparable mistaken identification" … or had such a tendency "to give rise to a very substantial likelihood of irreparable misidentification" .. . that allowing the witness to make an in-court identification would be a denial of due process.’ United States ex rel. Phipps v. Follette, 428 F. 2d 912, 914-15 (2d Cir. 1970)."
" ‘Brazell v. State, 369 So. 2d [25,] 28-29 [(Ala. Crim. App. 1978)] (emphasis added). See also Donahoo v. State, 371 So. 2d 68, 72 (Ala. Crim. App. 1979). In evaluating the likelihood of misidentification, the court must consider the following factors:
" ‘ "[1] the opportunity of the witness to view the criminal at the time of the crime, [2] the witness’s degree of attention, [3] the accuracy of the witness’s prior description of the criminal, [4] the level of certainty demonstrated by the witness at the confrontation, and [5] the length of time between the crime and the confrontation."
" ‘Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382, 34 L.Ed. 2d 401, 411 (1972) (emphasis added). See also Ex parte Frazier, [729 So. 2d 253 (Ala. 1998)].’ "
Dotch, 67 So. 3d at 955 (quoting Ex parte Appleton, 828 So. 2d at 900).
Byrd had a chance to view the man in his front yard at the time of the offense. Although it was dark outside, Byrd was wearing a headlamp and stared directly at the man for about five seconds. Byrd also saw the man as he chased him for about three blocks. Byrd could describe Bailey’s clothing and physical characteristics, including his skin color, hair color, height, facial hair, and approximate age. Byrd’s identification of Bailey from Lt. Nagle’s body-camera footage was immediate and certain. Byrd testified that he had no doubts that Bailey is the person he saw outside his house. The length of time between the offense and Byrd’s identification of Bailey was two weeks; the offense occurred on May 3, 2018, and Lt. Nagle showed Byrd Bailey’s image on or before May 17, 2018. (C. 176-78.) Based on the testimony of Byrd and Lt. Nagle at the pretrial hearing on the motion to suppress the identification evidence, we conclude that Byrd’s identification was sufficiently reliable. Thus, the circuit court did not err when it denied Bailey’s motion to suppress, and he is due no relief on this issue.
III. Sentence
[10] Although Bailey does not argue on appeal that his sentence is unauthorized under the Split-Sentence Act, see § 15-18- 8, Ala. Code 1975, this Court may take notice of an unauthorized sentence on direct appeal, whether or not the issue is raised. Hunt v. State, 659 So. 2d 998, 999 (Ala. Crim. App. 1994); Pender v. State, 740 So. 2d 482 (Ala. Crim. App. 1999).
Criminal surveillance is a Class B misdemeanor offense. § 13A-11-32, Ala. Code 1975. When Bailey committed that offense, the Split-Sentence Act did not authorize the circuit court to split his sentence for the misdemeanor conviction. See Collier v. State, 293 So. 3d 961, 974 (Ala. Crim. App. 2019) ("The plain language of the statute, as amended, now authorizes trial courts to split sentences only in cases involving Class A, Class B, Class C, or Class D felonies.").
The record shows that Bailey committed the offense in 2018. "[T]he law in effect at the time of the commission of the offense controls the prosecution." Minnifield v. State, 941 So. 2d 1000, 1001 (Ala. Crim. App. 2005). The version of the Split-Sentence Act discussed in Collier, supra, was effective beginning January 30, 2016, until its amendment on May 31, 2019. See Act No. 2015-463, Ala. Acts 2015, § 1.
"The proper remedy for cases in which the trial court had no authority to apply the Split-Sentence Act has been to remand the case to the trial court for that court to remove the split portion of the sentence. See, e.g., Simmons v. State, 879 So. 2d 1218 (Ala. Crim. App. 2003) (holding that the circuit court had no authority to split a sentence and remanding the case to the circuit court for that court to set aside the split portion of the sentence); Morris v. State, 876 So. 2d 1176 (Ala. Crim. App. 2003) (same)."
Collier, 293 So. 3d at 975. Here, Bailey’s six-month sentence was valid, but the circuit court must set aside the split portion of the sentence. See Wood v. State, 602 So. 2d 1195 (Ala. Crim. App. 1992).
Although a trial court cannot split a sentence for a misdemeanor offense under the version of the Split-Sentence Act in effect when Bailey committed the offense, we note that § 15-22-50, Ala. Code 1975, currently provides, under certain circumstances, circuit courts with the discretion to suspend the execution of an entire sentence and place a defendant on probation.
For these reasons, we affirm Bailey’s conviction for criminal surveillance, reverse Bailey’s sentence, and remand this case to the circuit court for resentencing. Due return shall be filed with this Court no later than 42 days from the date of this opinion.
AFFIRMED AS TO CONVICTION; REVERSED AS TO SENTENCE; AND REMANDED WITH INSTRUCTIONS.
Note from the reporter of decisions: On February 1, 2023, on return to remand, the Court of Criminal Appeals again remanded this case with instructions. On April 28, 2023, on return to second remand, the Court of Criminal Appeals affirmed, without opinion. On June 16, 2023, that court denied rehearing, without opinion. On September 8, 2023, the Alabama Supreme Court denied certiorari review, without opinion (SC-2023-0462).
Windom, P.J., and Kellum, McCool, and Cole, JJ., concur.