Ex parte Kelley

• Decision Date: 27 June 2003
• Citation: 870 So.2d 711
• Parties: Ex parte Denise Marcil KELLEY. (In re Denise Marcil Kelley v. State of Alabama).
• Court: Alabama Supreme Court

870 So.2d 711

Ex parte Denise Marcil KELLEY.

(In re Denise Marcil Kelley v. State of Alabama).

1012018.

Supreme Court of Alabama.

June 27, 2003.

Derek E. Yarbrough of Motley, Motley & Yarbrough, LLC, Dothan, for petitioner.

William H. Pryor, Jr., atty. gen., J. Thomas Leverette, deputy atty. general, and Daniel W. Madison, asst. atty. gen., for respondent.

HARWOOD, Justice.

After being indicted by the Houston County grand jury for unlawful possession of methylenedioxymethamphetamine, commonly known as "Ecstasy," a violation of Ala.Code 1975, § 13A-12-212, Denise Marcil Kelley entered a plea of not guilty. She filed a motion to suppress the evidence that was the basis of her indictment on the ground that it was the product of an unlawful search and seizure. At the beginning of the hearing on that motion, conducted on August 22, 2001, Kelley agreed to plead guilty if the motion was denied, but reserved the right to appeal the denial. After the trial court denied the motion, Kelley withdrew her not-guilty plea, entered a plea of guilty, and, upon being convicted and sentenced pursuant to that plea, exercised her right to appeal to the Alabama Court of Criminal Appeals. On June 21, 2002, that court affirmed her conviction by an unpublished memorandum. See Kelley v. State, (No. CR-00-2683, June 21, 2002) 860 So.2d 913 (Ala. Crim.App.2002) (table). After that court overruled her application for rehearing, she petitioned this Court for a writ of certiorari to the Court of Criminal Appeals. We granted Kelley's petition on October 29, 2002, to address whether the Court of Criminal Appeals properly affirmed the trial court's holding that the evidence seized from Kelley was admissible. We heard oral argument on April 17, 2003.

As summarized by the Court of Criminal Appeals in its unpublished memorandum, the record reveals the following facts:

"Three plainclothes police officers had entered Grand Central Station, a bar located in Dothan, because the police department had received numerous complaints concerning drug activity at the bar. Corporal Andy Martin testified that he saw Clint Adkinson and another man enter the bathroom and make a transaction. He testified that he saw Adkinson hand something to the other man in exchange for money. Officer Brent Parrish then entered the bathroom and attempted to buy drugs from Adkinson. Adkinson told Officer Parrish that he did not have any drugs and left the bathroom. He walked through the bar and sat next to the appellant. Corporal Martin testified that he saw Adkinson give Kelley something that appeared to be a Tic-Tac [brand breath-mint] box. He testified that Kelley put the box into her coat pocket, and that she and Adkinson then walked away from one another. Corporal Martin approached Kelley, identified himself, and told her to remove her hands from her coat pockets. He found in her closed hand a matchbox, which he took from her. He testified that [in the matchbox] he found three green pills with `smiley faces,' which were later identified as Ecstasy."

A number of more detailed, additional facts are contained in the record, all provided by the testimony of Cpl. Andy Martin at a preliminary hearing conducted on the charge on January 22, 2001, in the Houston District Court and later at the suppression hearing. Cpl. Martin was the only witness to testify at the two hearings. At the suppression hearing, counsel for Kelley produced a full transcript of the preliminary hearing, marked as "Defendant's Exhibit 1," and used it initially to attempt to refresh Martin's recollection. Subsequently, defense counsel stated, "Judge, I would offer this transcript of the preliminary hearing for your purposes, and ask you to read that...." When the assistant district attorney advised that she was uncertain if she had been present at the preliminary hearing, but that she had not read any transcript of it, defense counsel again asked the judge to read the transcript, explaining that "it's relevant in this matter." The judge responded, "O.K. I'll read it."

Although there is no explicit indication in the remainder of the transcript of the suppression hearing that the judge actually read the transcript of the preliminary hearing before announcing his ruling at the conclusion of the hearing, there are indications that he took some time on two occasions during the hearing to do some reading, although apparently he was reading copies of caselaw submitted by the attorneys. At the conclusion of the hearing the trial judge stated that he found probable cause for the search and denied the suppression motion. Thereupon, Kelley pleaded guilty, pursuant to a plea bargain, but again announced her reservation of the right to appeal the denial of her suppression motion, and she obtained the judge's permission for that procedure.

Within 30 days of her conviction and sentence, however, Kelley filed, on September 18, 2001, a "motion to reconsider," asking the trial judge to reconsider its denial of her motion to suppress. The trial judge denied that motion the following day, and the record is silent as to what materials, if any, he might have considered in the interim. Nonetheless, the procedural posture of the case is such that, the complete transcript of the preliminary hearing having been "introduced" as an exhibit at the suppression hearing by defense counsel, who procured the trial judge's commitment that he would read it, and the judge's having had the opportunity to read it in connection with his consideration of the motion for reconsideration, Martin's testimony at both hearings is legitimately a part of the record we review on this appeal. This is so despite the fact that, during oral argument on this case, the attorney general's responses to questions from this Court acknowledged that the State was not relying on any facts that might have been developed only during the preliminary hearing. An appellate court will affirm the trial court's judgment if its ruling is correct on any valid ground or rationale, even one rejected or not considered by the trial court, so long as notice of the ground, and an opportunity to respond, is shown by the record to have been available, to satisfy the minimum requirements of due process. Ex parte Boyd, 715 So.2d 852 (Ala.1998); Harnage v. State, 290 Ala. 142, 274 So.2d 352 (1972); and Strickland v. State, 771 So.2d 1123 (Ala.Crim.App. 1999). In this case, of course, all of Martin's testimony from the preliminary hearing was before the trial court as a part of the suppression hearing by virtue of its "introduction" by defense counsel, accompanied by his repeated request that the trial judge consider it, and the trial judge's agreement that he would read it.

Thus, the evidence before the trial court consisted of Martin's oral testimony before him and the transcript of Martin's testimony from the preliminary hearing. When an appellate court reviews the findings and holdings of a trial court resulting from a hearing on a motion to suppress evidence, if the evidence before the trial court was undisputed, the "ore tenus rule," pursuant to which the trial court's conclusions on issues of fact are presumed correct, is inapplicable, and the reviewing court will sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court's application of the law to those facts. State v. Hill, 690 So.2d 1201, 1203 (Ala.1996). Although in his brief to this Court defense counsel describes the applicable standard of review as being that "[a] trial court's ruling based upon conflicting evidence given at a suppression hearing is binding on the appellate court and such ruling will not be disturbed on appeal unless it is palpably contrary to the weight of the evidence," and quotes caselaw to the effect that this standard of review is applicable "even where the matter rests upon the testimony of only one witness, [because] the trier of fact is free to accept or reject the witnesses' statements," we conclude that a de novo standard of review is applicable in this case; the de novo standard is always favorable to the party appealing from an adverse ruling on a motion to suppress. See State v. Hill, supra, 690 So.2d at 1204, for similar rationale. Martin's testimony, although more detailed as to certain aspects of the underlying circumstances at the preliminary hearing and more detailed as to other aspects at the suppression hearing, was not, in the final analysis, internally inconsistent or contradictory. At the suppression hearing, he explained all seeming inconsistencies between his testimony at that hearing and his testimony at the preliminary hearing, and otherwise provided the trial court with what was, in the final analysis, undisputed testimony.

When we consider the "blended" testimony presented by Martin at the two hearings, we conclude that the trial court had available to it the following description by Martin of the circumstances and considerations which led to his decision to stop and search Kelley:

On Saturday, January 13, 2001, at some point between 1:30 and 2:00 a.m., Martin and two other Dothan police officers went to a local bar known as Grand Central Station because they had received "numerous, numerous complaints of drug activity taking place at that establishment," particularly sales and purchases of Ecstasy "out in the open." Martin and his two companions were working undercover as narcotics investigators on this occasion, wearing "plainclothes."

Martin had worked in narcotics investigation for about two and a half years. He had undergone specialized training in preparation for his work in that particular area of law enforcement and had worked not only in the Dothan area, but in several Alabama counties other than Houston County. On some occasions he had worked undercover, actually "buying the dope from people," which had given him personal knowledge about "how those type transactions take place." In that regard, he had learned that ...