William Chad Randolph v. State of Alabama (Appeal from Greene Circuit Court: CC-21-12)

Rel: August 30, 2024

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-2024-0091

_________________________

William Chad Randolph

v.

State of Alabama

Appeal from Greene Circuit Court

(CC-21-12)

KELLUM, Judge.

The appellant, William Chad Randolph, was convicted of raping his

16-year-old niece, H.S.,1 see § 13A-6-61(a)(1), Ala. Code 1975. The

Greene Circuit Court sentenced Randolph to 120 months in prison; that

1To protect the anonymity of the victim, we are using her initials.

See Rule 52, Ala. R. App. P.

CR-2024-0091

sentence was split and Randolph was ordered to serve 36 months'

imprisonment followed by 2 years of supervised probation.

H.S. testified that in the summer of 2020 her parents separated,

and that she was not getting along with her mother so she started

spending a lot of time with her aunt and uncle, Randolph. H.S. said that

she would go over to their house to help them take care of a child they

were in the process of adopting. During the summer of 2020, she said,

her relationship with Randolph changed and Randolph became more

interested in her love life. (R. 145.) On September 13, 2020, she was at

the Randolphs' house for the weekend and she and Randolph got up early

one morning to go to a fish camp where Randolph had a trailer. Randolph

referred to the trailer as the "love shack." (R. 158.) On the drive to the

camp, she said, Randolph started talking inappropriately about her sex

life with her boyfriend and saying that he knew she wanted him. (R. 155;

161.) When they got to the fish camp, they went out on a boat to fish and

were gone most of the day. After they went back to the trailer, she said,

Randolph took a shower. When Randolph came back to the living room,

he kept grabbing H.S. and trying to kiss her. She testified:

"[Prosecutor]: So what happened after Randolph tried to

make you kiss him?

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"[H.S.]: He started reaching down trying to unbutton my

jeans. And then I like -- I kept kind of struggling trying to get

him away from me. So that's when he put me down on the

couch, and he just grabbed the bottom of my jeans and pulled

them off.

"….

"[Prosecutor]: What did he do after that?

"[H.S.]: He pulled my underwear off. And then he -- he got

on top of me.

"[Prosecutor]: What happened after that?

"[H.S.]: He was on top of me and that's when he started.

"[Prosecutor]: Okay. So at the point that you're stopping,

were you completely naked?

"[H.S.]: I still had my shirt on.

"[Prosecutor]: Okay. You mentioned earlier that when you

got to the trailer that you had on a pair of boots with your

jeans. Did Randolph remove those or had you removed those?

"[H.S.]: I took them off at the door.

"[Prosecutor]: So were you physically trying to prevent

Randolph from doing these things that you're describing

happened between you and him?

"[H.S.]: Yes, sir. I was kicking him. I was pushing him back,

and I was trying to move my body away.

"[Prosecutor]: Did you say anything to him during -- from the

point that you've described him grabbing you by the left arm

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up and to the point where we are, did you say anything to him

during that course of time?

"[H.S.]: I begged him to stop.

"[Prosecutor]: Did Chad Randolph have sex with you?

"[H.S.]: Yes, sir.

"[Prosecutor]: Was that something you wanted to do?

"[H.S.]: No, sir.

"[Prosecutor]: Did you try to stop him from doing it?

"[H.S.]: Yes, sir.

"[Prosecutor]: Pardon the graphic nature of these questions.

You described there when you stopped that Randolph was on

top of you?

"[H.S.]: Yes, sir.

"[Prosecutor]: Is that when you were penetrated?

"[H.S.]: Yes, sir."

(R. 196-97.) She testified that afterwards, Randolph gave her a wet towel

and told her to clean herself. (R. 199.) Several days later, she said, she

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told her mother what Randolph had done and they went to the Greene

County Sheriff's Office to file a complaint.2

Tonya Blaze, a supervisor with the Walker County Department of

Human Resources ("DHR"), testified that she investigated alleged cases

of child abuse and neglect. In September 2020, she was assigned to

investigate the charges that had been made by H.S. (R. 171.) Blaze

testified that a forensic interview was conducted on H.S. After DHR's

investigation, Blaze said, it was determined that there was "enough

evidence to support the allegations." (R. 178.)

The jury convicted Randolph of rape in the first degree as charged

in the indictment; this appeal followed.

Randolph raises the following issues in his brief to this Court.

I.

Randolph first argues that the circuit court erred in finding that his

trial counsel's performance was effective. Specifically, he argues that his

counsel was ineffective because, he says, counsel failed to prepare him

for trial, failed to investigate the allegations, failed to call witnesses to

2H.S. stated that she attempted to file a complaint in Walker

County but was told by authorities in that county that "they couldn't do

nothing" so H.S. went to the authorities in Greene County. (R. 208.)

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testify on his behalf, failed to call him to testify, and failed to call "at least

ten (10) other witnesses … whom would have testified to Randolph's good

character and reputation in the community and his reputation for

truthfulness." (Randolph's brief at p. 21.) Randolph's arguments

generally are based on the short notice that Randolph says he was given

of the date of trial.

The record shows that Randolph retained his trial attorney,

Thomas Carmichael, in April 2021. In November 2022, counsel moved to

continue the case. (C. 79.) In May 2023, counsel moved to continue the

case a second time because Randolph's son had passed away. (C. 81.) In

June 2023, counsel moved to continue the case a third time; that motion,

however, was denied. (C. 88-89.) On June 2, 2023, an employee of the

Greene County Clerk's Office notified Randolph by email that his trial

was scheduled for June 26, 2023. (C. 218.)3 On June 17, 2023, Randolph

went with his family to Florida for a vacation. On June 23, 2023,

Carmichael telephoned Randolph in Florida and informed him that his

trial was set for June 26, 2023. Randolph was convicted on June 29, 2023.

In August 2023, attorneys Charles Tatum, Jr., and Seth Diamond filed

3These facts are contained only in the motion for a new trial.

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notices of appearance as cocounsel. (C. 162; 164.) In November 2023,

Randolph's two new attorneys filed a motion for a new trial. (C. 215-229.)

Pursuant to Rule 24.4, Ala. R. Crim. P., that motion was denied by

operation of law 60 days after the pronouncement of sentence, i.e., on

December 30, 2023.

To prevail on a claim of ineffective assistance of counsel, the

defendant must meet the standard articulated by the United States

Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). A

defendant must show (1) that his counsel's performance was deficient;

and (2) that he was prejudiced by the deficient performance. Thus, in the

motion for a new trial, the defendant should assert grounds to support

the Strickland factors.

First, in Randolph's motion for a new trial he asserted that he was

denied the effective assistance of counsel because, he said, his counsel did

not call two witnesses -- Cliff Russell and Darian Christian -- witnesses,

he asserted, who could have helped his defense. (C. 216.) The motion

stated, in part:

"Russell would have testified that he saw Mr. Randolph and

the alleged victim [H.S.] on their way out of the campsite on

the day in question, immediately after [H.S.] claims she was

allegedly raped. He would have further testified that on their

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way out of the fish camp, Mr. Randolph stopped his truck to

talk to him, [H.S.] got out of the truck, climbed onto the back

of the boat, pulled fish out of the live-well and showed Mr.

Russell the fish that she and Mr. Randolph had caught that

day. …"

(C. 215-16.)4 The motion further stated that "Darian Christian was a

friend of his who had planned to go on a fishing trip with Mr. Randolph

and [H.S.] on the day of the alleged incident, and only a few minutes

before they planned on leaving Parrish, AL, headed for the fish camp, Mr.

Christian telephoned and told Mr. Randolph that he was not feeling well

and was not going." (C. 216.)

The record shows that the motion for a new trial is verified by

Randolph. (C. 229.)5 However, the motion is not accompanied by

affidavits from the two missing witnesses. Indeed, the allegations as to

what the two witnesses would have testified to was based on the hearsay

4The record shows that H.S. testified that when they were leaving

the fish camp, Randolph stopped by a camper and talked to a man named

Cliff. Randolph told her to get out of the truck and show Cliff the fish

that they had caught. She said that she got out of the truck and showed

the fish to Cliff. (R. 202-03.)

5The motion for a new trial contains the electronic signatures of his

two attorneys, Tatum and Diamond. The verification bears the signature

"William Chad Randolph." (C. 29.)

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statements of Randolph. "Hearsay evidence is not admissible in support

of a motion for a new trial …." Sharrief v. Gerlach, 798 So. 2d 646, 651

(Ala. 2001). "Normally, a defendant's motion for a new trial requires

verification in the form of an affidavit." Ex parte Jefferson, 749 So. 2d

406, 408 (Ala. 1999). "[U]nless the grounds are sufficiently specific and

supported by facts contained in the record, a motion for a new trial must

be verified and supported by affidavit." Washington v. State, 922 So. 2d

145, 177 (Ala. Crim. App. 2005). Affidavits are required because the

contents of the motion for a new trial are based on facts outside the scope

of the record. 6 The allegations that Randolph makes concerning his

counsel's performance are not supported by facts contained in the record. 7

Second, Randolph argued that counsel should have called

numerous character witnesses; however, in the motion those witnesses

6"Courts have viewed claims of ineffective assistance of counsel

with great caution when the only evidence of a missing witness's

testimony is from the defendant." Williams v. State, 480 So. 2d 1265,

1268 (Ala. Crim. App. 1985).

7"In Hill v. State, 675 So. 2d 484 (Ala. Cr. App. 1995), this court

expanded the principle announced in Edgar [v. State, 646 So. 2d 683 (Ala.

1994),] to further require that trial court's denial of a motion for a new

trial by operation of law be reversed if the grounds relied on in the motion

are supported by facts contained in the record on appeal." M.S. v. State,

822 So. 2d 449, 454 (Ala. Crim. App. 2000) (emphasis added).

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are not identified by name. As this court has stated when addressing

claims in a motion for a new trial concerning missing witnesses:

" '[T]he motion should set forth the names of the witnesses

who would testify to the facts alleged and be accompanied by

the affidavits of said witnesses.' National Sec. Ins. Co. v.

Elliott, 276 Ala. 353, 355, 162 So. 2d 449, 451 (1964). '[T]he

names of the witnesses who would have deposed to the facts

alleged to have been newly discovered should have been

stated, and their affidavits, setting forth the facts to which

they would testify, should have been taken and submitted on

the motion, or the failure to take them should have been

accounted for.' McLeod v. Shelby Mfg. & Improvement Co.,

108 Ala. 81, 83, 19 So. 326, 327 (1896)."

Miles v. State, 624 So. 2d 700, 701-702 (Ala. Crim. App. 1993).

Third, Randolph argues that his counsel was ineffective for not

preparing him and calling him to testify. Randolph merely asserted the

following: "The failure to call Mr. Randolph was induced solely by

Attorney Carmichael's failure and inability to prepare the defendant to

testify in this case, which stemmed from the lack of advance notice of the

trial setting." (C. 221.) " '[B]revity of consultation time between a

defendant and his counsel, alone, cannot support a claim of ineffective

assistance of counsel. Jones v. Wainwright, 604 F.2d 414, 416 (5th Cir.

1979).' " Davis v. State, 44 So. 3d 1118, 1130 (Ala. Crim. App. 2009).

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In fact, the only affidavit in support of the motion for a new trial

was an affidavit executed by one of his posttrial attorneys, Seth Diamond,

who states his opinion of what effective assistance of counsel should have

comprised at Randolph's trial. (C. 230-33.) "The [Strickland v.

Washington, 466 U.S. 668 (1984),] test has nothing to do with what the

best lawyers would have done. Nor is the test even what most good

lawyers would have done." White v. Singletary, 972 F.2d 1218, 1220

(11th Cir. 1992). No affidavit of Randolph's trial attorney was attached

to the motion for a new trial.

"An appellate court, in reviewing a grant or denial of a new trial

motion, is obliged to indulge every presumption in favor of the correctness

of the trial court's decision." Ex parte Robinson, 565 So. 2d 664, 667 (Ala.

1990). "In Similton v. State, 672 So. 2d 1363 (Ala. Crim. App. 1995), this

court held that if a motion for a new trial is not supported by an affidavit,

this court will not reverse the trial court's judgment …." Hill v. State,

675 So. 2d 484, 486 (Ala. Crim. App. 1995).

" ' "A defendant is not entitled to a hearing on a motion

for new trial without a special basis therefor." ' Clark v. State,

621 So. 2d 309, 327 (Ala. Crim. App. 1992), quoting Smelcher

v. State, 520 So. 2d 229, 232 (Ala. Crim. App. 1987). See also

Arrington v. State, 757 So. 2d 484 (Ala. Crim. App. 1999). …

Moreover, unless the grounds are sufficiently specific and

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supported by facts contained in the record, a motion for a new

trial must be verified and supported by affidavit. See, e.g., Ex

parte Jefferson, 749 So. 2d 406 (Ala. 1999); Jones v. State, 727

So. 2d 866 (Ala. Crim. App. 1998); and Hill v. State, 675 So.

2d 484 (Ala. Crim. App. 1995)."

Washington v. State, 922 So. 2d 145, 176-77 (Ala. Crim. App. 2005).

When reviewing a ruling on a motion for a new trial, this Court

reviews that ruling to determine whether the judge abused his or her

discretion. Ex parte Hall, 863 So. 2d 1079,1081 (Ala. 2003). Based on

the cases above, we cannot say that the circuit court abused its discretion

in denying the motion. Accordingly, Randolph is due no relief on this

claim.

II.

Randolph next argues that the circuit court erred in allowing Tonya

Blaze to testify that H.S.'s allegations were supported based on DHR's

examination and interview with H.S. Specifically, Randolph argues that

this testimony embraced the ultimate issue and was not admissible

according to Rule 704, Ala. R. Evid.

Blaze, a supervisor for adult protective services at DHR, testified

that prior to being a supervisor she was an investigator at DHR and

investigated charges of child abuse and neglect. (R. 169.) She testified

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that she has a bachelor's degree in social work from the University of

Alabama, that she is a licensed social worker, and that her job with DHR

requires her to complete yearly continuing education and training

classes. Blaze testified that she goes to yearly "child abuse trainings and

seminars and conferences, and also to counseling trainings. …" (R. 170.)

In September 2020, Blaze testified, DHR investigated "a matter"

involving Randolph. (R. 170.) She testified that she interviewed H.S.

and her maternal grandmother. Blaze also said that a forensic interview

was conducted on H.S. and that she witnessed that interview. She said

that "a forensic interview is -- it's an interview with someone that is

trained to interview children of all ages to -- for abuse." (R. 173.) Blaze

was asked if she was "able to make a disposition in [the] case." (R. 177.)

The following occurred:

"[Prosecutor]: Were you able to arrive at a point where you

felt like your investigation was complete?

"[Blaze]: Yes, sir.

"[Prosecutor]: And were you able to make a disposition in this

case?

"[Blaze]: Yes, sir.

"[Prosecutor]: And what was your --

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"[Defense counsel]: Objection. We object to

the disposition being spoken to on all the bases

that we had before.

"THE COURT: Overruled. You may go

ahead.

"….

"[Prosecutor]: And then I asked you next were you able to

arrive at or make a disposition?

"[Blaze]: Yes.

"[Prosecutor]: And, I think that's where we were stopped.

What was your disposition in this case?

"[Defense counsel]: Your Honor, again, we

object to that. It's invading the province of the

jury.

"THE COURT: The record will so reflect.

Your exception is noted, but overruled. Go right

ahead.

"[Prosecutor]: What was your disposition, Ms. Blaze?

"[Blaze]: Indicated for sexual abuse.

"[Prosecutor]: And when you say you disposed of this case by

it being indicated, can you explain to the ladies and gentlemen

of the jury what that means?

"[Blaze]: Indicated meaning we found enough evidence to

support the allegations."

(R. 177-78.)

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Rule 704, Ala. R. Evid., states: "Testimony in the form of an opinion

or inference otherwise admissible is to be excluded if it embraces an

ultimate issue to be decided by the trier of fact."

"However, in the case of expert testimony, enforcement of this

rule [Rule 704, Ala. R. Evid.] has been lax. C. Gamble,

Gamble's Alabama Rules of Evidence § 704 (1995). We have

noted previously in Travis v. State, [776 So. 2d 819] (Ala. Cr.

App. 1997), that expert testimony as to the ultimate issue

should be allowed when it would aid or assist the trier of fact,

and the fact that ' " 'a question propounded to an expert

witness will elicit an opinion from him in practical affirmation

or disaffirmation of a material issue in a case will not suffice

to render the question improper' " ' (citations omitted); see also

Rule 702, Ala. R. Evid. (stating that expert testimony should

be allowed when it will aid or assist the trier of fact)."

Henderson v. State, 715 So. 2d 863, 864-65 (Ala. Crim. App. 1997).

Rule 702(a), Ala. R. Evid., addresses expert testimony and provides:

"If scientific, technical, or other specialized knowledge will assist the trier

of fact to understand the evidence or to determine a fact in issue, a

witness qualified as an expert by knowledge, skill, experience, training,

or education may testify thereto in the form of an opinion or otherwise."

In this case, no formal finding was made by the trial court that

Blaze was an expert, but it is clear that she was treated as an expert by

both the court and the parties. The record shows that defense counsel

was aware that an expert was going to testify when Randolph filed a

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motion entitled "Motion to Compel Disclosure of Expert Witnesses." (C.

32.) That motion stated, in part: "That [Randolph] has reason to believe

that the Prosecution may call an expert witness to attempt to bolster the

alleged victim's credibility. That any expert witness who may testify will

be proffering an opinion that is largely based upon the subjective

information that is unreliable evidence." (C. 32.) Defense counsel also

requested a jury instruction on expert opinion testimony. (C. 98.) Blaze

was the only state witness who could be classified as an expert to give an

opinion. Also, the prosecutor questioned Blaze concerning her education,

background, and experience, questions that are typically not asked of a

lay witness. (R. 168-170.)

Indeed, this Court has recognized that no formal tendering of a

witness as an expert is required in order for a witness to be considered

an expert. In Hodges v. State, 856 So. 2d 875 (Ala. Crim. App. 2001), this

Court stated:

"Though Bailey was never formally tendered as an expert, he

testified that he had worked at the Alabama Department of

Forensic Sciences since 1971.

"….

' ' 'Whether a witness is sufficiently qualified to testify as

an expert is a question for the trial court to resolve in its

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discretion, and its ruling will not be disturbed on appeal

unless it has abused that discretion.' Smith v. State, 698 So.

2d 189, 205 (Ala. Crim. App. 1996), aff'd, 698 So. 2d 219 (Ala.

1997), cert. denied, 522 U.S. 957, 118 S.Ct. 385, 139 L.Ed.2d

300 (1997). 'Experience and practical knowledge may qualify

one to make technical judgments as readily as formal

education.' International Telecomm. Sys. v. State, 359 So.2d

364, 368 (Ala. 1978). 'An individual may qualify as an expert

by study, practice or observation.' Gullatt v. State, 409 So. 2d

466, 472 (Ala. Crim. App. 1981)."

856 So. 2d at 918. See also Revis v. State, 101 So. 2d 247, 292 (Ala. Crim.

App. 2011) (opinion on return to remand) ("There is no requirement that

the court specifically state that it finds the witness to be qualified as an

expert. "); Jackson v. State, 169 So. 3d 1, 59 (Ala. Crim. App. 2010) ("[T]he

witness was qualified to testify as an expert in firearms and toolmarks,

and the trial court was not required to specifically state that it found her

qualifications to be sufficient.").

As our neighboring State of Georgia has stated:

"An expert witness is anyone who, through training,

education, skill, or experience, has particular knowledge that

the average juror would not possess concerning questions of

science, skill, trade, or the like. An expert witness may render

an opinion within his area of expertise after the proper

qualifications have been proven to the trial court. If, after

qualifying a witness as an expert but without a formal tender,

counsel proceeds to ask for expert opinion evidence, the trial

court has tacitly or impliedly accepted the witness as an

expert."

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Fielding v. State, 278 Ga. 309, 311, 602 S.E.2d 597, 600 (2004).

The dissent contends that this case is governed by the holding in

Naylor v. Sate, 108 So. 3d 1063 (Ala. Crim. App. 2012). However, the

holding in Naylor was contingent on the finding that there was no

indication in the record that the witness was an expert and that a lay

witness could not testify concerning his or her opinion. Naylor did not

overrule the Alabama cases cited above that hold that no formal

tendering of a witness as an expert is required under Alabama law. See

Hodges, supra; Revis, supra; Jackson, supra.

Although we recognize that it is a better practice for a witness to be

formally identified as an expert, we hold that there was sufficient

testimony to establish that Blaze was an expert in her field of social work.

Therefore, her testimony was admissible under Sanders v. State, 986 So.

2d 1230 (Ala. Crim. App. 2007). In Sanders, this Court stated:

"Sanders contends that Milkay's testimony should have been

excluded because, he argues, it embraced the ultimate issue

to be determined by the jury

"However, Milkay did not express an opinion as to

Sanders's guilt or innocence. Instead, she testified that, in

her opinion, A.E. had been sexually abused. We have held

that the ultimate issue in similar cases is whether the

defendant had sexually abused the child, not whether the

child had in fact been sexually abused. See Lee v. State, 565

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So. 2d 1155 (Ala. Crim. App. 1990). Experts are permitted to

testify concerning their opinion as to whether a child has been

sexually abused. Kennedy v. State, 929 So. 2d 515, 519 (Ala.

Crim. App. 2005)."

986 So. 2d at 1232.

"In the instant case, Mrs. [Sue] Joy's[8] testimony was

not tantamount to an opinion on how the case should be

resolved or whether appellants were guilty. Her testimony

established the facts upon which her expert opinion was

based. In our opinion, her testimony enlightened the jury in

an area beyond the average lay person's knowledge and

assisted it in arriving at the truth. She did not express an

opinion on appellants' guilt, but stated only that, in her

opinion, the children had been sexually abused. The ultimate

fact in issue was whether appellants abused the children.

While it is true that a witness may not give an opinion

concerning the ultimate fact in issue, this is not such a case.

We do not view Mrs. Joy's statement that the victims had been

sexually abused as testimony relating to the ultimate issue.

Under the facts of this case, Mrs. Joy's opinion that the

children had been sexually abused was not erroneously

admitted into evidence."

Lee v. State, 565 So. 2d 1155, 1156 (Ala. Crim. App. 1990).

Accordingly, we find that the circuit court did not err in allowing

Blaze to testify that there were indications of sexual abuse after H.S. had

been examined by DHR. Therefore, Randolph is due no relief on this

claim.

8Mrs. Joy was a social worker at the Department of Human

Resources.

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III.

Finally, Randolph argues that the circuit court erred in denying his

motion for a new trial on the grounds that the State violated Brady v.

Maryland, 373 U.S. 83 (1963), by failing to disclose that Officer LaJeffrey

Carpenter had pending felony charges against him at the time that he

testified.

In Randolph's motion for a new trial, he argued that the verdict

should be vacated because, he said, the State failed to disclose that

Officer Carpenter had three pending counts of using his office for

"personal gain or theft of public services" at the time that he testified. 9

(C. 225.) He asserts that this evidence was material because, he says, it

could have been used to impeach Officer Carpenter's testimony.

Specifically, Randolph asserted in his motion: "Officer Carpenter falsely

testified that he arrested the defendant at the trailer, thus implying that

the defendant had opportunity to dispose of this phantom towel. The

truth is that Officer Carpenter arrested Mr. Randolph at the boat ramp,

9In the motion for a new trial, Randolph states that Officer

Carpenter entered into a plea agreement that provided that in exchange

for his plea to one count, the other two charges would be dismissed. (C.

226.)

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far away from the trailer and that the defendant had not been back to

the trailer." (C. 225.)

However, the record shows that Officer Carpenter testified that on

September 21, 2020, he was working at the sheriff's office when H.S. and

her mother came in to file a complaint. (R. 348.) Officer Carpenter said

that he did not arrest Randolph. Indeed, the record shows that Deputy

Melvin Smith of the Greene County Sheriff's Department testified that

he was notified about the outstanding warrant on Randolph, that he

contacted Randolph, that Randolph informed him that he would turn

himself into police, and that Randolph told him to meet him at a fish

camp in Forkland, Alabama. (R. 345.) Deputy Smith said that he took

Randolph into custody and then transported him to the Greene County

jail. (R. 345.) There was no testimony by either officer that Randolph

was arrested in any specific location at the fish camp.

To prove a Brady violation, the defendant must show (1) that the

prosecutor suppressed evidence, (2) that the evidence was favorable to

the defense, and (3) that the evidence was material. Ex parte Brown,

548 So. 2d 993, 994 (Ala. 1989). "Impeachment evidence ... as well as

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exculpatory evidence, falls within the Brady rule." United States v.

Bagley, 473 U.S. 667, 676 (1985).

Even if we assume that the State did not disclose that Officer

Carpenter had pending charges against him, Randolph could not

establish that this evidence was material. "The evidence is material only

if there is a reasonable probability that, had the evidence been disclosed

to the defense, the result of the proceeding would have been different. A

'reasonable probability' is a probability sufficient to undermine

confidence in the outcome." Bagley, 473 U.S. at 682. Given that Officer

Carpenter did not arrest Randolph, we cannot see how any pending

charges could have impeached his testimony surrounding the

circumstances of the arrest. Thus, Randolph could not establish the

elements to support a Brady claim.

Moreover, on appeal, the State argues that according to Rule 609,

Ala. R. Evid., the evidence of the pending charges against Officer

Carpenter would not have been admissible because they were not

convictions. Rule 609, Ala. R. Evid., which addresses the admission of

evidence of prior convictions for impeachment purposes, provides, in

pertinent part:

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"(a) General Rule. For the purpose of attacking the

credibility of a witness,

"(1)(A) evidence that a witness other than an accused

has been convicted of a crime shall be admitted, subject to

Rule 403, if the crime was punishable by death or

imprisonment in excess of one year under the law under which

the witness was convicted, and

"(1)(B) evidence that an accused has been convicted of

such a crime shall be admitted if the court determines that

the probative value of admitting this evidence outweighs its

prejudicial effect to the accused; and

"(2) evidence that any witness has been convicted of a

crime shall be admitted if it involved dishonesty or false

statement, regardless of the punishment."

(Emphasis added.)

The State also cites Rule 616, Ala. R. Evid., and contends that the

pending charges against Officer Carpenter would not have been

admissible to show bias because there was nothing to suggest that they

were related to the charges against Randolph. As this Court has stated:

"Rule 616, Ala. R. Evid., provides that '[a] party may

attack the credibility of a witness by presenting evidence that

the witness has a bias or prejudice for or against a party to

the case or that the witness has an interest in the case.'

Generally, this rule permits cross-examination, and the

introduction of independent evidence, regarding statements,

acts, or relationships indicating bias or prejudice, including

arrests, indictments, and pending charges that have not

resulted in convictions even though such 'bad acts' are

generally inadmissible under Rules 608 and 609, Ala. R. Evid.

23

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See, e.g., C. Gamble, McElroy's Alabama Evidence, §

149.01(8)(a) (5th ed. 1996). However, the arrests, indictments

or pending charges must have a tendency to show bias or

prejudice on the part of the witness in order to be admissible.

"Here, there is nothing in the record to suggest that the

pending charges against Powell would have biased him in

favor of the State. As the State correctly points out in its brief

to this court, the record suggests that Powell's testimony at

trial was substantially the same as the statement he gave

police shortly after Johnson's body was found; this statement

was made before the charges were brought against Powell in

Wilcox County. Furthermore, although '[i]t is always

permissible to cross-examine a witness to ascertain his

interest, bias, prejudice or partiality concerning the matters

about which he is testifying ... [t]he fact that a witness has

merely been indicted for an offense unrelated to the crime

charged against the accused is not such a bias-creating fact.'

Woodard v. State, 489 So. 2d 1, 2 (Ala. Crim. App. 1986). Only

where ' the offenses are factually related or where the

particular facts furnish a reasonable inference of interest or

bias' is the fact that a witness has charges pending a proper

subject of cross-examination. Beavers v. State, 497 So. 2d

612, 617 (Ala. Crim. App. 1986), quoting Woodard, 489 So. 2d

at 2. See also Baker v. State, 568 So. 2d 374 (Ala. Crim. App.

1990); and Moody v. State, 495 So. 2d 104 (Ala. Crim. App.),

cert. denied, 495 So. 2d 110 (Ala. 1986). Here, the appellant

has failed to show that the charges pending against Powell

were 'factually related' to the charge against the appellant,

nor has he pointed to facts furnishing a reasonable inference

of Powell's bias in favor of the State. Finally, there is

absolutely no evidence of any agreement between the State

and Powell pursuant to which Powell would testify at the

appellant's trial in exchange for leniency with regard to the

charges pending against him, and the prosecutor asserted at

trial that there was, in fact, no such agreement. Accordingly,

we hold that the trial court did not err in limiting the

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appellant's cross-examination of Powell regarding unrelated

pending charges against him."

Reeves v. State, 807 So. 2d 18, 38-39 (Ala. Crim. App. 2000). There were

no allegations in the motion for a new trial that the pending charges

against Officer Carpenter were related to Randolph's case.

The evidence of the pending charges against Officer Carpenter

would not have been admissible to impeach him. See Rule 609, Ala. R.

Evid., and Rule 616, Ala. R. Evid. Given that the pending charges would

not have been admissible, Randolph clearly could not establish that they

were material to the issues at trial. Therefore, Randolph is due no relief

on this claim.

Based on the foregoing, we affirm Randolph's conviction for rape in

the first degree.

AFFIRMED.

Windom, P.J., and McCool and Minor, JJ., concur in the result.

Cole, J., dissents, with opinion.

25

CR-2024-0091

COLE, Judge, dissenting.

William Chad Randolph appeals his conviction for rape, see § 13A-

6-61(a)(1), Ala. Code 1975. Because I disagree with the Court's

conclusion that the trial court did not err in allowing Tonya Blaze, a

supervisor with the Walker County Department of Human Resources

("DHR"), to testify that DHR reached a "disposition" that this case was

"[i]ndicated for sexual abuse" and that there was "enough evidence to

support" H.S.'s allegations, I respectfully dissent.

As noted in the main opinion, Randolph argues on appeal that the

trial court erred in allowing Blaze to testify regarding the determination

reached by DHR after investigating this case. The main opinion affirms

the trial court's judgment based upon this Court's previous decisions in

Sanders v. State, 986 So. 2d 1230 (Ala. Crim. App. 2007) and Lee v. State,

565 So. 2d 1155 (Ala. Crim. App. 1990). Yet, neither of those decisions

directly addresses the issue raised by Randolph. First, Sanders stands

for the proposition that "[e]xperts are permitted to testify concerning

their opinion as to whether a child has been sexually abused." Sanders,

986 So. 2d at 1232 (citing Kennedy v. State, 929 So. 2d 515, 519 (Ala.

Crim. App. 2005)). Although this is a correct statement of the law,

26

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Sanders is distinguishable from this case because Blaze did not testify as

an expert in this case and was never qualified as an expert. Like the

witness in Sanders, the witness in Lee testified regarding her

background and that "her area of expertise was sexual abuse cases" and

this Court "conclude[d] that the trial court properly ruled that the

witness was qualified to testify as an expert." Lee, 565 So. 2d at 1156.

In addition to this Court's finding in Lee that the witness in that case

was an expert, this Court also found that the witness's testimony that

the "children [victims] have been sexually abused" did not address the

"ultimate issue" in the case because the witness testified that, in her

opinion, the children had been abused, not that Lee was the individual

who had abused them.

Unlike the testimony in Lee, the testimony in this case invaded the

province of the jury by addressing the ultimate issue in the case. It is

clear that "[t]estimony in the form of an opinion or inference otherwise

admissible is to be excluded if it embraces an ultimate issue to be decided

by the trier of fact." Rule 704, Ala. R. Evid. Blaze testified that she was

"investigating a matter on behalf of Walker County DHR that involved

this defendant, William Chad Randolph." (R. 170.) She further testified

27

CR-2024-0091

that the "victim" was H.S. and that the "allegations" involved "sexual

abuse, sexual penetration." (R. 171.) Before trial, Randolph moved in

limine and argued that a witness "cannot come in and say that DHR

determined that they think he did it. It continues to invade the province

of the jury, and that part of her testimony absolutely has to be precluded."

(R. 121.) Over multiple objections by Randolph during trial, Blaze was

allowed to testify that DHR's "disposition" was that the case was

"[i]ndicated for sexual abuse," which meant that they "found enough

evidence to support the allegations." (R. 177-78.) In sum, Blaze was

allowed to testify that H.S. alleged that Randolph sexually abused or

sexually penetrated her and that DHR, after interviewing three

individuals, one of whom did not testify at trial and was not subject to

cross-examination, determined that the allegations were true.

This case is similar to the situation addressed by this Court in

Naylor v. State, 108 So. 3d 1063 (Ala. Crim. App. 2012). Naylor argued

that the opinion testimony of three witnesses who testified during his

trial violated Rule 704, Ala. R. Evid., and improperly addressed the

ultimate issue in the case. After noting that it was unclear whether any

of the witnesses testified as experts, this Court held:

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CR-2024-0091

"The State did not proffer any of the witnesses as

experts. However, each witness testified about his or her

experience with sexual-abuse cases, and when the State asked

witnesses about their opinions it referred to each witness's

training and experience, as parties typically do when eliciting

opinion testimony from expert witnesses. We note, too, that

the trial court instructed the jurors that they had heard

testimony of 'an expert witness or witnesses,' and it instructed

the jurors that they were not required to accept the

conclusions or opinions to which the experts had testified. (R.

625-26.) However, as noted, no witness was formally tendered

as an expert by the State or accepted as an expert by the trial

court… Because the witnesses were not proffered as experts,

we consider their testimony to be that of lay witnesses…

"During redirect examination by the State, Inv. Agee

was permitted to testify, after repeated objections by Naylor:

'My opinion is she was a victim of sexual assault by her

stepdad.' (R. 149.) (Emphasis added.) During direct

examination by the State, Owens testified, over objection, 'I

did believe that [B.J.] was a victim of sexual abuse.' (R. 301.)

Monica Haddock testified, also over defense objection, 'I feel

like she was a victim of a traumatic event, that being sexual

abuse that she disclosed.' (R. 472-73.) (Emphasis added.) …

"Naylor argues that testimony from Inv. Agee, Owens,

and Haddock was improper because, he argues, it embraces

the ultimate issue and violated Rule 704, Ala. R. Evid. He

also argues, 'Arguably none of the three were properly

qualified to testify as to whether or not [B.J.] had been the

victim of sexual abuse by the defendant.' (Naylor's brief, at p.

139.) He argues that their opinions were based only on brief

interviews with B.J. Rule 701, Ala. R. Evid., addresses the

admissibility of opinion evidence by a lay witness; it provides:

" 'If the witness is not testifying as an expert, the

witness's testimony in the form of opinions or

inferences is limited to those opinions or

29

CR-2024-0091

inferences which are (a) rationally based on the

perception of the witness and (b) helpful to a clear

understanding of the witness's testimony or the

determination of a fact in issue.'

"The Advisory Committee's Notes to Rule 701 state, in

relevant part:

" 'Traditional common law, including that in

Alabama, generally has precluded a lay witness

from giving an opinion. The law has required that

the witness place all the facts before the trier of

fact, thus placing the trier of fact in just as good of

a position as the witness to draw a conclusion in

the matter. Indeed, it has been said that

permitting a lay witness to give an opinion

preempts the role assigned to jurors. Boatwright

v. State, 351 So. 2d 1366 (Ala. 1977); C. Gamble,

McElroy's Alabama Evidence § 127.01(2) (4th ed.

1991).

" '….

" 'Alabama Rule of Evidence 701 … permits lay

witnesses to give opinions whenever two

conditions are met. First, the opinion must be

rationally based upon the perception of the

witness. This is no more than a restatement of the

"firsthand knowledge rule," found in Ala. R. Evid.

602, tailored to opinions. No lay person may give

an opinion based upon facts that the witness did

not personally observe. Second, a lay witness with

firsthand knowledge may give an opinion only if it

is helpful to a clear understanding of the witness's

testimony or to the determination of a fact in

issue… [O]pinions should be excluded as not being

helpful if they are "meaningless assertions which

amount to little more than choosing up sides."

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Fed. R. Evid. 701 advisory committee's note.

Assertions that one is "liable," "guilty," or "at fault"

generally would not be helpful and thus would

properly be excluded….

" '.…

"Inv. Agee, Owens, and Haddock testified as lay

witnesses, and they had no firsthand knowledge of

whether B.J. was sexually abused by Naylor.

Therefore, their opinion testimony should have

been excluded, whether or not that testimony

concerned the ultimate issue. Ex parte Jackson,

68 So. 3d [211, 215-16 (Ala. 2010)]. The trial

court's admission of their opinion testimony

constituted an abuse of discretion for this reason.

"We note, furthermore, that the testimony of Inv. Agee

and Haddock embraced the ultimate issue. 'An ultimate issue

has been defined as the last question that must be determined

by the jury. See Black's Law Dictionary (5th ed. 1991).' Tims

v. State, 711 So. 2d 1118, 1125 (Ala. Crim. App. 1997). Rule

704, Ala. R. Evid., states: 'Testimony in the form of an opinion

or inference otherwise admissible is to be excluded if it

embraces an ultimate issue to be decided by the trier of fact.'

The Advisory Committee Notes to Rule 704 explain that '[t]he

basis for the preclusion is the fear that the admission of such

an opinion will preempt the role and function of the

factfinder.' Therefore, even if Inv. Agee and Haddock testified

as experts, the trial court erred when it permitted their

ultimate issue testimony that Naylor had sexually abused

B.J. The State concedes that Inv. Agee's testimony embraced

the ultimate issue. (State's brief, at pp. 59-60.) However, the

State argues, incorrectly, that Haddock did not testify about

whether Naylor was the perpetrator of the sexual abuse she

believed B.J. had suffered. Haddock clearly testified that she

believed that B.J. had been the victim of the 'sexual abuse

that she disclosed.' (R. 472-73.) (Emphasis added.) B.J. never

31

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alleged that anyone other than Naylor had sexually abused

her; therefore, Haddock's testimony clearly implicated Naylor

as the perpetrator of B.J.'s abuse, and that testimony, too,

embraced the ultimate issue. …

"… [T]he testimony from Inv. Agee and Haddock gave

unwarranted and legally impermissible stamps of approval to

B.J.'s allegations that Naylor had sexually abused her, and

thus usurped the jury's function to decide the ultimate issue.

Therefore, even if Inv. Agee and Haddock had testified as

experts, their testimony invaded the province of the jury in

that they expressed impermissible opinions on the ultimate

fact in issue-- whether Naylor had sexually abused B.J. The

trial court abused its considerable discretion when it

permitted the witnesses' testimony."

Naylor, 108 So. 3d at 1073-76 (footnote omitted).

Like the victim in Naylor, H.S. implicated one person -- Randolph.

Blaze testified that DHR had determined that the allegations made by

H.S., which were against only Randolph, were supported by the evidence.

In other words, DHR determined that, based upon its investigation,

which included factors not considered by the jury, that H.S.'s allegations

implicating Randolph were true. Blaze's testimony not only gave her

"stamp[] of approval" to H.S.'s testimony, but the "stamp[] of approval" of

the entire Alabama Department of Human Resources. Blaze's testimony

violated Rule 704, Ala. R. Evid., and was an inadmissible opinion as to

the ultimate issue in the case.

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Moreover, even if Blaze's testimony could be construed as not

providing an opinion as to the ultimate issue -- because she did not

expressly testify that Randolph raped H.S. -- her opinion testimony was

also inadmissible because she was not qualified to testify as an expert

and she did not testify as an expert. I disagree with the main opinion's

conclusion "that [Blaze] was treated as an expert by both the court and

the parties." ___ So. 3d at ___. The main opinion is correct that Randolph

filed a "Motion to Compel Disclosure of Expert Witnesses," but no experts

were disclosed to the defense. Randolph's requested jury instruction

number 12 was a charge on expert testimony, but this requested charge

was denied. (C. 98, R. 364.) In fact, during the charge conference, when

requested jury charges were discussed, the following transpired:

"THE COURT: 10, I would deny again because that's pretty

much out of my oral charge.

"Availability of witness, credibility of witnesses. Again, that's

in my oral charge.

"12 you've got experts. I don't recall that we had -- am I

forgetting somebody that may have been an expert?

"[Prosecutor]: I don't think that's an issue.

"[Defense counsel]: The only reason that we inserted that is

two-fold, Judge. Initially I didn't know what the evidence

would hold, and two, he did put on his DHR worker up on the

33

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stand, embellished her a little bit about her specialty as far as

interviewing goes.

"[Prosecutor]: Judge, I didn't ask the Court to recognize her

as an expert. I did not call her as an expert. I understand

what [defense counsel] is saying, but there's no reason to

charge the jury on experts because we didn't have any expert

witnesses.

"THE COURT: That would be denied."

(R.363-64.) The prosecutor made it clear that he did not tender Blaze as

an expert witness, and the trial court did not treat Blaze as an expert;

therefore, this Court should not hold that Blaze was an expert.

Because I believe the trial court erred in overruling Randolph's

objections to Blaze's inadmissible testimony, I respectfully dissent.

34