Jason Michael Osborn v. State of Alabama

Rel: June 26, 2026 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, 2025-2026 _________________________ CR-2023-0185 _________________________ Jason Michael Osborn v. State of Alabama Appeal from Morgan Circuit Court (CC-19-1421) On Return to Remand MINOR, Judge.1 A jury convicted Jason Michael Osborn of capital murder for the death of Ricardo Brown, see § 13A-5-40(a)(2), Ala. Code 1975, and the jury, by a vote of 10 to 2, sentenced Osborn to death. The Morgan Circuit 1This case was previously assigned to another member of this Court before it was reassigned to Judge Minor. CR-2023-0185 Court entered a judgment on the jury's verdict. On appeal, Osborn raises 20 issues. We address two: (1) whether the district judge who presided over Osborn's trial was properly assigned to serve as a circuit judge and (2) whether plain error occurred when, during closing argument, the prosecutor stated: "[T]here's only two people that know what happened out there and one of them is dead." We hold that the judge who presided over Osborn's trial was properly assigned to serve as a circuit judge and that, even if her assignment expired before Osborn's trial, Alabama's statutory de facto officer doctrine defeats Osborn's claim. We also hold, however, that the prosecutor's comment was plain error. We thus reverse the circuit court's judgment and remand this cause for proceedings consistent with this opinion. Facts and Procedural History The State's evidence showed that around 4:30 a.m. on October 28, 2018, the Decatur Police Department received an emergency-911 call about a body in the road on Twelfth Avenue. (R. 554.) Responding officers found a critically injured man—later identified as Brown—on the side of the road. Brown was transported to a local hospital where he died shortly after 5:00 a.m. 2 CR-2023-0185 The county coroner concluded that Brown, who had a blood-alcohol level of 0.221, had been hit by a car and died as a result. (R. 607-08.) The police investigated the death as a hit-and-run, but, despite multiple leads, the investigation stalled. (R. 644-54.) In May 2019, jailhouse informants began telling the police that Osborn, who was in jail on a drug-possession charge, had murdered Brown. (C. 59-60; R. 668-70.) Jonathan Lorenza, who had known Osborn for nearly a decade and who had been friends with Brown, testified that he and Osborn, when they were in the community room of the jail, saw a local televised news story about the death of Brown. (R. 676.) Lorenza said the story caused Osborn to laugh and boast about how Brown had died. Osborn told Lorenza that he had killed Brown, explaining in detail how he had "robbed him and hit him with a pipe" and then "ran him over" and "drug him down the road." (R. 677, 681.) Osborn told Lorenza that, after he killed Brown, he had "cut up and scrapped" the car he had used to run over Brown. (R. 679.) Osborn told Lorenza that, "[i]f he could go back, he'd get [Brown's] body and put it in an incinerator." (R. 679.) Lorenza testified that he remembered seeing Osborn, around the 3 CR-2023-0185 time of Brown's death, dismantle a white Nissan Altima. (R. 679-80.) Lorenza testified that he did not know if Osborn had used the white Altima to run over Brown. (R. 683-84.) Robert Cooper, another inmate at the jail and a friend of Osborn, testified that, when he was nearing the end of his sentence, Osborn talked to him about "going to see" some people when Cooper got out of jail. (R. 791-93.) There were six people on Osborn's list, including Lorenza and Hillary Thompson. (R. 791-92, 796.) Osborn wanted Cooper to "persuade" those people not to testify against him. (R. 791-92.) Cooper testified that Osborn showed him a copy of a list of witnesses and, pointing to Thompson's name, accused her of lying and not knowing anything. (R. 798.) Cooper testified that, during "pillow talk," Osborn had told Thompson about killing Brown. (R. 798.) Osborn wanted Cooper to, in Osborn's words, "put a steering wheel in her back and drive her," which Cooper understood to mean giving Thompson "dope" and keeping her high so that she would be unable to serve as a credible witness. (R. 798- 99.) Osborn told Cooper that if Thompson "tried to come to court, she [could] become a member of the bumper club, just like the n----- she was testifying" for. (R. 800.) 4 CR-2023-0185 Based on information from the informants,2 the State exhumed Brown's body in October 2019 for an autopsy. The autopsy showed that Brown had multiple blunt-force injuries, including a "depressed skull fracture underlying a laceration that was seen externally on his scalp." (C. 555; R. 733, 742.) Dr. Jonrika Malone, who performed the autopsy, testified that, in her opinion, the skull fracture appeared to be more consistent with Brown's having been struck with a "cylindrical [object] like a pipe or a hammer," not necessarily from his having been struck by a vehicle and dragged along the road. (R. 737-41, 764, 774.) She admitted that the head injury could have been "a result of [Brown's] being struck by a car," but she described that possibility as "not likely." (R. 779, 781.) She found no "lower extremity injuries," such as "injuries or fractures to [Brown's] thighs or legs or ankles or feet." (R. 730.) But she found "multiple fractures in his chest as well as in his pelvis …, and he had 2Over the course of the investigation, at least seven informants claimed that Osborn had killed Brown. (C. 59; R. 668, 798.) One informant, Dewayne "Jimmy" Isbell, claimed to have been in the front seat of Osborn's car when, he said, Osborn struck Brown in the head with a pipe and then ran over Brown with his car. (C. 59.) Less than two weeks before Osborn's February 2023 trial, however, the State informed Osborn's counsel that Isbell had told the prosecution that "he was not in the car on the night of the murder" and that "the detail[s] he relayed in his statement were provided to him by others." (C. 337.) 5 CR-2023-0185 abrasions and contusions to his upper back" and arms. (R. 730.) In December 2019, a grand jury indicted Osborn for capital murder during a robbery. (C. 11.) District Judge Shelly Waters, who had been assigned to serve as a circuit judge, presided over Osborn's February 2023 trial. At the guilt phase of the trial, the jury convicted Brown of capital murder. During the penalty phase, the jury found the presence of two aggravating circumstances: that the murder was committed during a robbery and that the murder was especially heinous, atrocious, or cruel as compared to other capital murders. See § 13A-5-49(a)(4) and § 13A-5- 49(a)(8), Ala. Code 1975. The State conceded two statutory mitigating circumstances: that Osborn had no significant criminal history and that he was young at the time of the crime. See § 13A-5-51(a)(1) and § 13A-5- 51(a)(7), Ala. Code 1975. Osborn presented no mitigation evidence or argument to the jury. By a vote of 10 to 2, the jury sentenced Osborn to death. At Osborn's request, the circuit court held the sentencing hearing that same day and imposed the jury's death sentence. This appeal, which is automatic in a case involving the death penalty, followed. See § 13A- 5-55, Ala. Code 1975. 6 CR-2023-0185 Standard of Review "Rule 45A, Ala. R. App. P., was amended on January 12, 2023, to state: " 'In all cases in which the death penalty has been imposed, the Court of Criminal Appeals may, but shall not be obligated to, notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant.' "Before Rule 45A was amended, this Court was required to conduct plain-error review in all cases in which the death penalty had been imposed. Although Rule 45A now provides that plain-error review is discretionary in such cases, this Court has explained that it will continue to conduct plain- error review in all cases in which the death penalty has been imposed. Iervolino v. State, 402 So. 3d 844, 862 (Ala. Crim. App. 2023). However, that does not mean that this Court will provide a detailed analysis, or even any analysis, of those claims that were not properly preserved for appellate review, as it historically did when plain-error review was mandatory. Id. "The standard this Court employs in conducting plain- error review is well settled: " ' " 'The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal.' Hall v. State, 820 So. 2d 113, 121 (Ala. Crim. App. 1999), aff'd, 820 So. 2d 152 (Ala. 2001). Plain error is 'error that is so obvious that the failure to notice 7 CR-2023-0185 it would seriously affect the fairness or integrity of the judicial proceedings.' Ex parte Trawick, 698 So. 2d 162, 167 (Ala. 1997), modified on other grounds, Ex parte Wood, 715 So. 2d 819 (Ala. 1998). 'To rise to the level of plain error, the claimed error must not only seriously affect a defendant's "substantial rights," but it must also have an unfair prejudicial impact on the jury's deliberations.' Hyde v. State, 778 So. 2d 199, 209 (Ala. Crim. App. 1998), aff'd, 778 So. 2d 237 (Ala. 2000). 'The plain error standard applies only where a particularly egregious error occurred at trial and that error has or probably has substantially prejudiced the defendant.' Ex parte Trawick, 698 So. 2d at 167. '[P]lain error must be obvious on the face of the record. A silent record, that is a record that on its face contains no evidence to support the alleged error, does not establish an obvious error.' Ex parte Walker, 972 So. 2d 737, 753 (Ala. 2007). Thus, '[u]nder the plain-error standard, the appellant must establish that an obvious, indisputable error occurred, and he must establish that the error adversely affected the outcome of the trial.' Wilson v. State, 142 So. 3d 732, 751 (Ala. Crim. App. 2010). '[T]he plain error exception to the contemporaneous-objection rule is to be "used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result." ' United States v. Young, 470 U.S. 1, 15, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985) (quoting United States v. Frady, 456 U.S. 152, 163 n.14, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982))." ' "Iervolino, 402 So. 3d at 862-63 (quoting DeBlase v. State, 294 So. 3d 154, 182-83 (Ala. Crim. App. 2018))." Henderson v. State, [Ms. CR-21-0044, May 3, 2024] ___ So. 3d ___, ___ 8 CR-2023-0185 (Ala. Crim. App. 2024). Analysis I. Judge Waters's assignment was proper. And even if her assignment expired before Osborn's trial, the de facto officer doctrine defeats Osborn's claim. On appeal Osborn argues for the first time that Judge Waters, who serves as a Morgan District Judge, was not properly appointed to serve as a circuit judge and thus lacked jurisdiction over his case.3 The record includes an August 3, 2021, order ("the Standing Order") in which Circuit Judge Charles B. Elliott, the then-Presiding Judge of the Morgan Circuit Court, assigned Judge Waters to serve as a "Special Circuit Judge … until January 4, 2023." (2d Supp. C. 14.) The record also includes a September 30, 2022, order ("the September 2022 Order") from Circuit Judge Jennifer M. Howell, in which Judge Howell granted Osborn's motion to continue a status conference and reassigned Osborn's case to Judge Waters to "hear this case as a Special Circuit Judge." (C. 216.) Judge Howell also directed the circuit clerk to "update the file 3After oral argument, this Court, in an order issued on October 2, 2024, directed the circuit court to "supplement the record on appeal with any order or documents entered by the presiding judge of the Morgan Circuit Court assigning Judge Waters to preside over Osborn's capital- murder trial." See Rule 10(g), Ala. R. App. P. 9 CR-2023-0185 accordingly," and the record shows this docket entry on September 30, 2022: "Changed from: JMH [Jennifer M. Howell] to SSW [Shelly S. Waters]." (C. 6.) Osborn argues that Judge Howell had no authority to assign the case to Judge Waters because Judge Howell was not the presiding judge of the Morgan Circuit Court when she entered the reassignment order.4 In support of his argument, Osborn cites § 12-1-14.1, Ala. Code 1975, Ex parte K.R., 210 So. 3d 1106 (Ala. 2016), Paulk v. Paulk, 249 So. 3d 521, 523 (Ala. Civ. App. 2017), and Bush v. State, 171 So. 3d 679 (Ala. Crim. App. 2014). In his supplemental brief after oral argument, Osborn argues that the Standing Order issued by then-Presiding Judge Elliott did not select a specific case to be assigned to Judge Waters and that Judge Howell had no statutory authority to assign a district judge to hear Osborn's capital-murder case. The State argues that this issue is not jurisdictional and thus is not properly before this Court because Osborn 4Judge Elliott was the presiding judge of the Morgan Circuit Court when Judge Howell entered the September 2022 order. Judge Howell was the presiding judge of the Morgan Circuit Court immediately before Judge Elliott. See State v. Murphy, 1 So. 3d 1084, 1086 n.3 (Ala. Crim. App. 2008) ("This Court may take judicial notice of the presiding judge in a particular circuit."). 10 CR-2023-0185 did not object to the appointment. The State also argues that the reassignment was proper under Rule 13, Ala. R. Jud. Admin., and that, even if issues exist with Judge Waters's appointment or assignment, the de facto officer doctrine defeats Osborn's claim. We begin with the statute cited by Osborn—§ 12-1-14.1, Ala. Code 1975, which became effective September 26, 2001: "(a) At the request of the affected judge in a particular circuit, the presiding circuit court judge of the circuit may appoint and commission a special circuit court judge, special district court judge, or special judge of probate for temporary service. The person so appointed shall possess the qualifications of the judgeship to which he or she is appointed. The special judge shall qualify by taking the oath of office prescribed in the Constitution of Alabama of 1901. The appointment shall confer on the special judge all powers, authority, and jurisdiction of the judgeship to which he or she is appointed. The special judge shall not receive compensation for his or her services. "(b) As used in this section, the term 'temporary service' means not more than 180 consecutive days. A special judge may be reappointed, as needed, for more than one period of 180 consecutive days." (Emphasis added.) Section 12-1-14.1(a) allows a presiding circuit judge to "appoint and commission" anyone who "possess[es] the qualifications of the judgeship to which he or she is appointed" to serve as "a special circuit court judge, special district court judge, or special judge of probate 11 CR-2023-0185 for temporary service," which subsection (b) limits to not more than 180 consecutive days. (Emphasis added.) A special judge under this section "shall not receive compensation for his or her services." The Standing Order, entered by then-Presiding Judge Elliott, did not comply with the 180-day "temporary service" limitation in § 12-1-14.1(b). But that does not end our inquiry. Section 12-9A-8, Ala. Code 1975, which became effective July 1, 2018, provides: "(a) A presiding circuit judge, by order, may assign a circuit or district court judge who is within the circuit to serve within the circuit or within the district courts of the circuit. Before assigning a judge, the presiding circuit judge shall evaluate the needs of the circuit, including the currency, congestion, and backlog of criminal and civil cases. "(b) Assignments of judges by the presiding circuit judge shall be in writing and shall be sent to the assigned judge as soon as practicable. The presiding judge or the judge's designee may notify the assigned judge orally of the assignment. An oral notification of an assignment is sufficient until a written notification can be prepared and delivered to the assigned judge. A copy of each written assignment shall be filed with the Administrative Director of Courts and in the office of the clerk or register of the court to which the assignment is made. "(c) Except as otherwise provided by law or rule, the presiding judge may assign judicial secretaries, bailiffs, and court reporters in the judicial system within the circuit to service in the circuit or district court as the service may be 12 CR-2023-0185 required. "(d) This section shall not apply in Jefferson County. "(e) It is the intent of the Legislature that pursuant to Amendment 328 of the Constitution of Alabama of 1901, now appearing as Section 150 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, the Supreme Court of Alabama shall amend Rule 13 of the Alabama Rules of Judicial Administration to conform with the provisions of this section." (Emphasis added.) Section 12-9A-8 allows a presiding circuit judge to "assign a circuit or district court judge who is within the circuit to serve within the circuit or within the district courts of the circuit." (Emphasis added.) Section 12-9A-8 is thus an assignment statute, not an appointment statute. Section 12-9A-8, unlike § 12-1-14.1, does not require assigned judges to take a new oath, it does not limit the time of their assignment, it does not prohibit them from being compensated, and it states the legislature's desire for the Alabama Supreme Court to amend Rule 13, Ala. R. Jud. Admin., to conform with § 12-9A-8.5 Before the enactment of § 12-9A-8, Ala. Code 1975, Rule 13(A), Ala. 5One of the dissenting opinions asserts that § 12-9A-8, Ala. Code 1975, "addresses the assignment of a specific case to a judge in a circuit made by the presiding judge." ___ So. 3d at ___ (Kellum, J., dissenting) (second emphasis added). But § 12-9A-8 says nothing about assigning a judge to a specific case. 13 CR-2023-0185 R. Jud. Admin., stated: "The presiding circuit judge may temporarily assign circuit or district judges to serve either within the circuit or in district courts within the circuit." (Emphasis added.) Applying that prior version of Rule 13(A), Ala. R. Jud. Admin., the Court of Civil Appeals emphasized that any assignment of a district court judge to sit as a circuit court judge must be temporary: "Rule 13(A), Ala. R. Jud. Admin., authorizes the presiding judge of a judicial circuit to 'temporarily assign circuit or district court judges to serve either within the circuit or in district courts within the circuit.' Our supreme court has interpreted Rule 13 as permitting a standing order providing for a district-court judge 'to temporarily sit in the circuit court when needed.' Ex parte Atchley, 936 So.2d 513, 516 (Ala. 2006)." L.R.S. v. M.J., 229 So. 3d 772, 778 (Ala. Civ. App. 2016) (emphasis added).6 After that decision and after the enactment of § 12-9A-8, the 6In L.R.S. v. M.J., 229 So. 3d 772, 779 (Ala. Civ. App. 2016), the standing order at issue was void ab initio because it "effectively enlarge[d] the jurisdiction of the Mobile Juvenile Court to include … cases … that do not fall within the statutory jurisdiction of a juvenile court." The jurisdictional problem with the order in L.R.S., however, was not that it purported to assign one particular district judge to serve as a circuit judge; instead it "purport[ed] to assign an entire class of circuit- court cases, i.e., 'all custody and visitation cases in this jurisdiction that do not arise out of a divorce action of modification or a divorce judgment,' to the 'District Court Judge who is currently also assigned to the Juvenile Court.' " 229 So. 3d at 778 (emphasis added). And the standing order, by having no expiration date, contravened the former version of Rule 13(A), 14 CR-2023-0185 Alabama Supreme Court amended Rule 13, effective November 8, 2019, to provide: "A presiding circuit court judge, by order, may assign a judge who is within the circuit to serve within the circuit courts or within the district courts of the circuit. Before assigning a judge, the presiding circuit court judge shall evaluate the needs of the circuit, including the currency, congestion, and backlog of criminal and civil cases. This assignment shall continue until revoked by the presiding judge or until the assigned judge leaves office, whichever comes first." (Emphasis added.) Thus, the amended version of Rule 13(A) removed the qualifier "temporarily" and added the emphasized language limiting the duration of the assignment until "revo[cation] by the presiding judge or until the assigned judge leaves office, whichever comes first." Under § 12-9A-8 and Rule 13(A), Judge Elliott's Standing Order validly assigned District Judge Waters to serve as a circuit judge in the Morgan Circuit Court. Thus, when Judge Howell entered the September 2022 order assigning the case, Judge Waters was already authorized to act as a circuit judge. Judge Howell did not purport to (and did not need to) appoint Judge Waters as a special circuit judge under § 12-1-14.1— the Standing Order, in compliance with Rule 13A, had assigned District Ala. R. Jud. Admin. That is not the situation here—the Standing Order applied to Judge Waters and had an expiration date. 15 CR-2023-0185 Judge Waters to serve as a circuit judge.7 Thus, § 12-1-14.1 does not apply 7One of the dissenting opinions asserts that we are holding that Rule 13, Ala. R. Jud. Admin., "takes precedence over the enacted statutory law that sets a specific period for a special appointment." ___ So. 3d at ___ (Kellum, J., dissenting). Not so. Presumably, that dissenting opinion is referring to § 12-1-14.1, Ala. Code 1975, because § 12-9A-8, Ala. Code 1975, as noted, has no stated time limit for an assignment. We are not holding that Rule 13 takes precedence over § 12-1-14.1; we are holding that § 12-1-14.1 does not apply here. That dissenting opinion cites several decisions in support of its assertion that a statute must prevail over a court rule. But those decisions predate the adoption of Amendment No. 328 to the Alabama Constitution of 1901, which granted the Alabama Supreme broad rule- making authority over "the administration of all courts and rules governing practice and procedure in all courts." See Art. IV, § 150, Ala. Const. 2022. The legislature recognized that authority in § 12-1-1, Ala. Code 1975: "Any provisions of this title regulating procedure shall apply only if the procedure is not governed by the Alabama Rules of Civil Procedure, the Alabama Rules of Appellate Procedure or any other rule of practice and procedure as may be adopted by the Supreme Court of Alabama." See, e.g., Stewart v. State, 730 So. 2d 1203, 1215-16 (Ala. Crim. App. 1996) (recognizing that "procedural rules promulgated by the Alabama Supreme Court generally govern over statutory provisions" but that the legislature "retains the authority to change those rules by a 'general act of statewide application' " (quoting § 6.11 of Amend. No. 328, Ala. Const. of 1901(now Art. IV, § 150, Ala. Const. 2022))). Rule 13 imposes a time limit not expressed in § 12-9A-8. Rule 13(A) limits the duration of the assignment until "revo[cation] by the presiding judge or until the assigned judge leaves office, whichever comes first." This limit, however, is not in conflict with § 12-9A-8. Rather, the limit in Rule 13(A) makes explicit two common-sense assumptions in § 12-9A-8. First, if a presiding judge has power to assign a judge under § 12-9A-8, 16 CR-2023-0185 to the September 2022 order, which dealt solely with the reassignment of a case between circuit judges in the same circuit court. And because the Standing Order was a valid assignment of Judge Waters to act as a circuit judge, Ex parte K.R., 210 So. 3d 1106 (Ala. 2016), and Bush v. State, 171 So. 3d 679 (Ala. Crim. App. 2014), are distinguishable. Judge Howell's September 2022 order assigning the case to Judge Waters does not implicate the subject-matter jurisdiction of the circuit court. As the Alabama Supreme Court recently stated: "Subject-matter jurisdiction, generally, and the jurisdiction of a circuit court in a felony criminal prosecution, specifically, have been defined as follows: " 'Jurisdiction is "[a] court's power to decide a case or issue a decree." Black's Law Dictionary 867 (8th ed. 2004). Subject-matter jurisdiction concerns a court's power to decide certain types of cases. Woolf v. McGaugh, 175 Ala. 299, 303, 57 So. 754, 755 (1911) (" 'By jurisdiction over the subject- matter is meant the nature of the cause of action and of the relief sought." ' (quoting Cooper v. Reynolds, 77 U.S. (10 Wall.) 308, 316, 19 L. Ed. 931 (1870))). That power is derived from the Alabama Constitution and the Alabama Code. See United States v. Cotton, 535 U.S. 625, 630-31, 122 S. Ct. 1781, 152 L. Ed. 2d 860 (2002) (subject-matter the presiding judge has power to end that assignment. Second, § 12-9A-8 applies only to judges who are in office. Thus, if a judge leaves office, any assignment of that judge under § 12-9A-8 ends when the judge leaves office. 17 CR-2023-0185 jurisdiction refers to a court's "statutory or constitutional power" to adjudicate a case). In deciding whether [a] claim properly challenges the trial court's subject-matter jurisdiction, we ask only whether the trial court had the constitutional and statutory authority to try the offense with which [the defendant] was charged and as to which he has filed his petition for certiorari review. " 'Under the Alabama Constitution, a circuit court "shall exercise general jurisdiction in all cases except as may be otherwise provided by law." Amend. No. 328, § 6.04(b), Ala. Const. 1901 [(now Ala. Const. 2022, art. VI, § 142(b))]. The Alabama Code provides that "[t]he circuit court shall have exclusive original jurisdiction of all felony prosecutions ...." § 12-11-30, Ala. Code 1975.' "Ex parte Seymour, 946 So. 2d 536, 538 (Ala. 2006). "It has been further noted that '[s]ubject-matter jurisdiction generally lies with a court ... and not with a specific judge sitting on that court.' Ex parte Montgomery, 79 So. 3d 660, 668 n.4 (Ala. Civ. App. 2011) (rejecting an argument that a circuit judge's orders were void for lack of subject-matter jurisdiction because the judge had not been formally assigned to that case). Moreover, this Court has held that the assignment of a judge under Rule 13[, Ala. R. Jud. Admin.,] does not impact the jurisdiction of the court: " 'Rule 13 of the Rules of Judicial Administration authorizes a presiding circuit judge to temporarily assign a circuit or district judge to serve in either a circuit or a district court within the circuit. The rule finds its sanction in the Constitution. " '[Amendment No. 328, § 6.11, Ala. Const. 18 CR-2023-0185 1901 (now Ala. Const. 2022, art. VI, § 150),] mandated that this court "... make and promulgate rules governing the administration of all courts ...." The only limitation upon those rules is that they "... shall not abridge, enlarge or modify the substantive right of any party nor affect the jurisdiction of circuit and district courts ...." or venue, or jury trial. The assignment by the Presiding Judge of the Circuit Court of Mobile County of District Judge Sweeney to preside over a felony trial is not offensive to any of these limitations. The jurisdiction of neither the Circuit nor the District Court of Mobile County is affected by the temporary assignment of a judge from one to the other. The jurisdiction of both courts remains the same, as does the venue of causes in either. The substantive right of no party has been affected by the temporary assignments of Judge Sweeney.' "State ex rel. Locke v. Sweeney, 349 So. 2d 1147, 1148 (Ala. 1977) (emphasis added)." Ex parte Files, 413 So. 3d 679, 682 (Ala. 2024) (first emphasis added). Based on those principles, the Alabama Supreme Court held: "In this case, it is undisputed that Files was charged and convicted of a felony, specifically, murder. The Walker Circuit Court thus had subject-matter jurisdiction over the prosecution of that offense." Id. at 682-83. Because the Standing Order assigned Judge Waters as a circuit judge, arguably no formal assignment was necessary when Osborn's case was assigned to Judge Waters in September 2022. In any event, when 19 CR-2023-0185 Judge Waters began presiding over Osborn's case in September 2022, the Morgan Circuit Court had jurisdiction over Osborn's case, and District Judge Waters had been assigned by the presiding circuit judge to act as a circuit judge in that circuit. We recognize, however, the problem on the materials before us: Judge Waters's assignment to act as a circuit judge under the Standing Order expired January 4, 2023, more than a month before Osborn's trial started on February 6, 2023.8 Although we question whether Osborn needed to first challenge the assignment of Judge Waters in the circuit court, we need not decide that issue because Judge Waters was a de facto officer under § 36-1-2, Ala. Code 1975, which provides: "The official acts of any person in possession of a public office and exercising the functions thereof shall be valid and binding as official acts in regard to all persons interested or affected thereby, whether such person is lawfully entitled to hold office or not and whether such person is lawfully qualified or not, but such person shall be liable to all penalties imposed by law for usurping or unlawfully holding office or for exercising the functions thereof without lawful right or 8Because Osborn waited until this appeal to challenge Judge Waters's authority, the record was underdeveloped on this issue. Although we question the practicality of every appellate record including a full history of the judge's qualifications—especially when no one questions those qualifications in the trial court—the better practice is to include all such assignment orders in the record, particularly in a case of this magnitude. 20 CR-2023-0185 without being qualified according to law." The Court of Civil Appeals discussed the de facto officer doctrine in Dean v. Dean, 295 So. 3d 82 (Ala. Civ. App. 2019). In Dean, a retired circuit judge entered an order after the expiration of his appointment by the Chief Justice as a temporary circuit judge. The Court of Civil Appeals applied the de facto officer doctrine and held that the order was valid. The court explained: "Alabama law has long recognized the principle that actions taken by persons who have incorrectly claimed the right to act in the capacity of a public official of this state are, in certain instances, valid in spite of those persons' lack of legal authority to so act. The concept of a 'de facto officer' was discussed at some length by our supreme court in Cary v. State, 76 Ala. 78 (1884), in which a question arose concerning the authority of a person named Frank Nabors, who signed an arrest warrant several months after the expiration of his appointment as a notary public. After noting that Nabors could not have acted as an officer de jure in signing the warrant, our supreme court proceeded to the resulting question: " 'The rule is well settled, that the official acts of an officer de facto are just as valid, for all purposes, as those of an officer de jure, so far as the public and third persons are concerned. Joseph v. Cawthorn, 74 Ala. 411 [(1883)], and cases cited. As observed by Sutherland, J., in Wilcox v. Smith, 5 Wend. 231[, 233 (N.Y. Sup. Ct. 1830)], "the affairs of society could not be carried on upon any other principle." 21 CR-2023-0185 " 'It is sometimes very difficult to determine whether one claiming to exercise the duties of an office, is an officer de facto, or a mere usurper. The distinction is sometimes said to be, that the former claims to hold under color of election or appointment, while the latter claims no authority or color of authority for his intrusion into possession of the office whose functions he undertakes to usurp ... The better and more modern view, however, is, that no color of election or appointment is needed to constitute one an officer de facto. While it is sufficient for such purpose, it is not a necessary pre-requisite .... " 'To constitute Nabors a de facto notary, ... he must either have acted under color of appointment and claim of official right, or he must have continued to exercise the duties of his office, by public acquiescence, for such length of time and by such frequency of repetition as to afford reasonable presumption of his holding over under a re-appointment. The first commission having expired, without any right in law to hold over, it could not, in our judgment, lend color for any length of time beyond its expiration. " '... [A]lthough an expired commission is not color of title to office, still, if an elected or appointed public officer continues, without break, and without question by the public, to exercise the functions of the office after the expiration of his commission, this is a continued exercise of the duties of the office by acquiescence, and, under the modern rule, constitutes the person thus acting an officer de facto .... " 'It is manifest, moreover, that an appointment may often be presumed upon 22 CR-2023-0185 evidence which would fail to justify presumption of a popular election, because it is an investiture of office less public in its nature, and the whole doctrine imparting validity to the unauthorized acts of de facto officers is one based on justice, necessity and public policy, and is intended chiefly for the protection of an innocent public who may be ignorant of the officer's defect of official title. – – Joseph v. Cawthorn, 74 Ala. 411[, 415 (1883)].' "Cary, 76 Ala. at 84-86 (emphasis added). Our legislature subsequently codified the de facto officer doctrine that was applied in Cary. See Ala. Code 1975, § 36-1-2. "The de facto officer doctrine was more recently applied by our supreme court in [State v. Gwin, 808 So. 2d 65 (Ala. 2001) ('Gwin II'),] to the judicial acts of a circuit judge who had been appointed by our supreme court to serve as a circuit judge in a particular county, yet was not qualified to serve at the time he rendered a judgment against a motorist who had pleaded guilty to a charge of reckless driving. Reviewing the judgment of reversal of the Court of Criminal Appeals in [Gwin v. State, 808 So. 2d 64 (Ala. Crim. App. 2000) ('Gwin I'),] our supreme court acknowledged the legal requirement upon which the Court of Criminal Appeals had relied: that a circuit judge be a resident of the circuit to whose bench that judge has been appointed for at least 12 months. However, our supreme court nonetheless declined to hold that that 'irregularity,' i.e., the claimed violation of the residency requirement, warranted declaring the judgment against the motorist invalid: " 'Despite this irregularity, [the motorist] did not object to [the special circuit judge]'s appointment before the judgment of conviction and sentence was entered. [The special circuit judge], who was holding the office of circuit judge and was exercising the functions thereof, was a de facto 23 CR-2023-0185 officer when he accepted [the motorist]'s plea. " 'A de facto officer is one who exercises the duties of a de jure office under color of appointme