Full Opinion (html_with_citations)

Rel: December 15, 2023




Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.




                 Alabama Court of Criminal Appeals
                               OCTOBER TERM, 2023-2024
                                _________________________

                                         CR-2022-1082
                                   _________________________

                                       Town of Brookside

                                                      v.

                              Alazae Alexius Hester-Taylor

                  Appeal from Jefferson Circuit Court
          (CC-22-1597, CC-22-1598, CC-22-1599, and CC-22-1600)


MINOR, Judge.

        The Town of Brookside ("the Town") charged Alazae Alexius

Hester-Taylor with following too closely, see § 32-5A-89, Ala. Code 1975,

second-degree possession of marijuana, see § 13A-12-214, Ala. Code 1975,

possession of drug paraphernalia, see § 13A-12-260, Ala. Code 1975, and
CR-2022-1082

possessing a firearm while being a person forbidden to possess a firearm,

see § 13A-11-72, Ala. Code 1975. Hester-Taylor's charges arose from a

traffic stop by the Town's police department on December 27, 2021. The

municipal court found Hester-Taylor guilty, and he appealed to the

Jefferson Circuit Court for a trial de novo.

     On August 19, 2022, the Town moved for Judge Shanta C. Owens

to recuse herself or, in the alternative, for all pending and future appeals

involving the Town to be assigned to a different judge. The Town cited

other appeals involving the Town in which Judge Owens had ruled that

"all cases where the sole witness to the offense is a Brookside Police

Officer will be met with heavy scrutiny." (C. 94.) Five days later, the

circuit court denied the Town's motion. (C. 31.)

     On August 29, 2022, Hester-Taylor moved the circuit court to

dismiss the charges against him. He asserted that the complaints against

him were "not properly sworn," in violation of Ex parte Dison,
469 So. 2d 662
 (Ala. 1984). He also asserted that "the only witnesses to said stop and

the alleged illegal actions of [Hester-Taylor] were, to the best of [his]

knowledge, [Town of] Brookside police officers." (C. 98.) The Town

objected to Hester-Taylor's motion, arguing, among other things, that the


                                     2
CR-2022-1082

complaints were properly sworn because the officer who had issued the

complaints had sufficiently identified himself by using his badge number

in the "Officer ID" box in the complaints. (C. 101.)

     The circuit court held a hearing on the motion to dismiss. The

circuit court heard arguments from the attorneys but received no

evidence. The circuit court did not consider the merits of the motion to

dismiss but still granted it:

     "In keeping in line with all of the other previous rulings of this
     court, which state that if the only witness to an offense is a
     Brookside police officer having been employed under the
     leadership of Chief Mike Jones at the time, this Court will
     dismiss that case because credibility is always at issue in
     these cases and the stakes are higher in a criminal court. And
     based upon the reputation and the issues facing the Brookside
     Police Department, this Court will exercise equity and
     fairness and will dismiss these cases since the only officer—
     only witness present was this officer."

(R. 11-12.) The circuit court entered separate judgments on September

1, 2022, dismissing the complaints against Hester-Taylor. (C. 32, 47, 63.)

The Town timely appealed. (C. 64.)

     The Town argues on appeal that the circuit court exceeded its

authority in granting Hester-Taylor's motion to dismiss. 1 Relying on




     1Hester-Taylor did not file an appellee's brief in this appeal.

                                     3
CR-2022-1082

Rule 13.5(c)(1), Ala. R. Crim. P., the Town asserts that the circuit court

could dismiss the complaints against Hester-Taylor only upon "objections

to the venire, the lack of legal qualifications of an individual grand juror,

the legal insufficiency of the indictment, or the failure of the indictment

to charge an offense." Citing this Court's decision in Town of Brookside

v. Rowser, [Ms. CR-2022-0505, Nov. 3, 2023] ___ So. 3d ___ (Ala. Crim.

App. 2023), the Town asserts that the circuit court's dismissal of the

complaints was improper because the circuit court made a pretrial

determination regarding the credibility of the witnesses and the

sufficiency of the Town's evidence. The Town is correct.

     In Rowser, which involved a consolidation of appeals by the Town

in related cases, the circuit court had dismissed the charges pending

against the defendants with orders identical in reasoning to the order

here. This Court held:

           "Rule 13.5(c)(1), Ala. R. Crim. P., provides: 'A motion to
     dismiss the indictment may be based upon objections to the
     venire, the lack of legal qualifications of an individual grand
     juror, the legal insufficiency of the indictment, or the failure
     of the indictment to charge an offense.' In State v. Starks,
366 So. 3d 994
, 995 (Ala. Crim. App. 2022), this Court examined
     Rule 13.5(c)(1) and stated: '[T]here is no pretrial means to
     dismiss the charges against a defendant based on the
     insufficiency of the evidence.' In footnote 2 of Starks, this
     Court acknowledged Ankrom v. State,
152 So. 3d 373
 (Ala.

                                     4
CR-2022-1082

     Crim. App. 2011), in which this Court recognized that a trial
     court could address pretrial the limited question 'whether the
     defendant's conduct could ever constitute a violation of the
     charged statutes.' Starks, 366 So. 3d at 995 n.2. But unlike
     Ankrom, which involved a pretrial ruling on a ' "pure question
     of law," ' the pretrial ruling in Starks was 'based purely on a
     credibility determination' and thus was improper. Id. This
     Court in Starks reiterated that a circuit court lacks authority
     under Rule 13.5(c)(1) to dismiss the charges against a
     defendant pretrial based on an alleged insufficiency of the
     evidence or 'based purely on a credibility determination.' 366
     So. 3d at 995 n.2.

            "The circuit court here dismissed the charges pretrial
     'based purely on a credibility determination.' What's more, in
     all but Rowser's and Martin's cases, the circuit court
     dismissed the charges without a motion from the defendants.
     The prosecution objected to the dismissals, arguing that they
     were improper and that they were based on 'media and public
     clamor.' Under Starks and the authorities cited there, see,
     e.g., State v. Foster,
935 So. 2d 1216
 (Ala. Crim. App. 2005),
     State v. McClain,
911 So. 2d 54
 (Ala. Crim. App. 2005), State
     v. Edwards,
590 So. 2d 379
 (Ala. Crim. App. 1991), the circuit
     court erred in dismissing the charges against the defendants
     based on a pretrial determination of credibility, and we must
     reverse its judgments."

Rowser, ___ So. 3d at ____ (footnote omitted).2


     2In  footnote 10 in Rowser, this Court rejected appellee Martin's
request that we "affirm the circuit court's judgment dismissing her cases
based on the assertions in her motion to dismiss that the complaints were
not properly verified." As noted, Hester-Taylor moved to dismiss the
complaints against him on a similar ground. As in Rowser, however,

     "the Town disputed [Hester-Taylor's] assertions, arguing that
     the complaints in fact complied with the law. And the record
                                    5
CR-2022-1082

     As it did in Rowser, the circuit court erred in dismissing the

complaints against Hester-Taylor based solely on a pretrial credibility

determination. Thus, the circuit court's judgments are due to be reversed.

     The Town also challenges Judge Owens's August 24, 2022, order

denying its motion seeking her recusal or disqualification. The Town

asserts that Judge Owens has shown bias and a lack of impartiality and

that Judge Owens is thus disqualified from hearing Hester-Taylor's cases

and similar cases involving the Town.

     Rule 15.7(a), Ala. R. Crim. P.,3 authorizes the Town's appeal of

Judge Owens's pretrial orders dismissing the complaints against Hester-



     does not show that the circuit court considered the merits of
     [Hester-Taylor's] motion or the Town's response. In the
     current procedural posture, this Court cannot determine
     whether [Hester-Taylor's] or the Town's position is correct."

___ So. 3d at ___ n.10.

     3Rule 15.7(a), Ala. R. Crim. P., provides:



     "In any case involving a felony, a misdemeanor, or a violation,
     an appeal may be taken by the state to the Court of Criminal
     Appeals from a pre-trial order of the circuit court (1)
     suppressing a confession or admission or other evidence, (2)
     dismissing an indictment, information, or complaint (or any
     part of an indictment, information, or complaint), or (3)
     quashing an arrest or search warrant. Such an appeal may be
     taken only if the prosecutor certifies to the Court of Criminal
                                    6
CR-2022-1082

Taylor. See Rowser, ___ So. 3d at ___ ("This rule authorizes the State to

appeal a pretrial order of the circuit court 'dismissing an indictment,

information, or complaint' and authorizes a municipality to do the same

'in like manner.' "). The Town's right to appeal under Rule 15.7(a),

however, is limited. See, e.g., Ex parte King,
23 So. 3d 77, 78-79
 (Ala.

2009) (" 'In Alabama, the State has a limited right to appeal' in a criminal

case. State v. A.R.C.,
873 So. 2d 261, 266
 (Ala. Crim. App. 2003)."). In Ex

parte King, the Alabama Supreme Court, noting that the State had no

right to appeal from an order denying a motion in limine in that case,

stated:

     " 'The State's power to appeal from an adverse ruling in a
     criminal case is governed by § 12-12-70(c), Ala. Code 1975
     (providing that an appeal may be taken from a judgment
     declaring an ordinance or statute invalid); § 12-22-91, Ala.
     Code 1975 (providing that an appeal may be taken from a
     judgment      holding   an   indictment    or   information
     unconstitutional); and by Rule 15.7, Ala. R. Crim. P.
     (providing that appeals may be taken from certain pre-trial
     orders).' "




     Appeals that the appeal is not brought for the purpose of delay
     and that the order, if not reversed on appeal, will be fatal to
     the prosecution of the charge. A municipality may appeal any
     pre-trial order entered by the circuit court on trial de novo of
     any municipal ordinance violation, in like manner."
                                     7
CR-2022-1082
23 So. 3d at 79
 (quoting Ex parte Sullivan,
779 So. 2d 1157
, 1160 n.2 (Ala.

2000)). Rule 15.7(a) does not authorize an appeal from an order denying

a motion to recuse, and the Town cites nothing authorizing its appeal of

that ruling.4 Thus, the Town's appeal from Judge Owens's order denying

the Town's motion seeking her recusal is not properly before us.

                             CONCLUSION

     The circuit court erred in granting Hester-Taylor's motion to

dismiss the complaints pending against him. Thus, this Court reverses




     4Rather    than appeal, the Town could have sought mandamus
review of Judge Owens's order denying the motion to recuse. See, e.g.,
Ex parte Smith,
282 So. 3d 831
, 839 (Ala. 2019) (" ' "A mandamus petition
is a proper method by which to seek review of a trial court's denial of a
motion to recuse." ' " (citations omitted)). Although this Court has
discretion to treat a notice of appeal as a petition for a writ of mandamus,
see, e.g., Ex parte Butler,
295 So. 3d 1115
, 1117 (Ala. Crim. App. 2019),
we decline to do so here. First, the Town has not asked us to do so.
Second, even if we treated the notice of appeal as a petition for a writ of
mandamus, it would be untimely because the Town filed the notice of
appeal more than seven days after the date of Judge Owens's order
denying the Town's motion seeking her recusal. See, e.g., State v. L.D.B.,
223 So. 3d 260, 260
 (Ala. Crim. App. 2016) (order) ("A petition for a writ
of mandamus must be filed within a reasonable time, and the
presumptively reasonable time is defined as the time for taking an
appeal. See Rule 21(a)(3), Ala. R. App. P. … [T]he State is seeking review
of a pretrial order, rather than a posttrial order. Accordingly, the
presumptively reasonable time for the State to file its petition is seven
days from the date of [the challenged] order ….").
                                     8
CR-2022-1082

the circuit court's judgments dismissing the complaints and instructs the

circuit court to restore Hester-Taylor's cases to its active docket.

     REVERSED AND REMANDED.

     Windom, P.J., and Kellum, McCool, and Cole, JJ., concur.




                                     9