Jason Michael Osborn v. State of Alabama

majority opinion

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

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.

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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.

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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

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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.)

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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.)

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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 § 13A5-55, Ala. Code 1975.

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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 plainerror 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 plainerror 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

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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 ___, ___

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 capitalmurder trial." See Rule 10(g), Ala. R. App. P.

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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.").

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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

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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

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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.

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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 circuitcourt 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),

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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.

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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 rulemaking 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,

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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 subjectmatter 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.

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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.

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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

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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.

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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."

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" '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

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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

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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 appointment or

election ....' " Dixie Dairies v. Alabama State Milk

Control Bd., 286 Ala. 198, 202, 238 So. 2d 551, 554

(1970) (quoting Ex parte Register, 257 Ala. 408,

413, 60 So. 2d 41, 46 (1952)). Section 36-1-2, Ala.

Code 1975, which protects the actions of de facto

officers, reads:

" ' "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 ...."

" '(Emphasis added.) The judgment [the motorist]

appealed from is valid and remains intact as an

action of a de facto officer protected by statute.'

"Gwin II, 808 So. 2d at 67. Accord Benjamin v. State, 156 So.

3d 424, 459-60 (Ala. Crim. App. 2013) (postconviction claim

asserting that retired judge who had sentenced criminal

defendant to death had exceeded limits of 'temporary' active

service was properly dismissed based upon de facto officer

doctrine; defendant failed to object to judge's service until

after trial and sentencing).

"In this case, the retired circuit judge's actions during

the 'assignment gap' fall within the parameters of the de facto

officer doctrine so as to warrant our rejection of the former

husband's voidness argument. The order entered by the

retired circuit judge on March 10, 2019, in response to the

former husband's two motions filed after the entry of the

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judgment under review, notes that the retired circuit judge

'has been regularly presiding over domestic cases in this

circuit' and that, during the 'assignment gap,' he 'presided

over twelve separate long-established court dockets,' entered

'more than eight hundred orders,' and entered 'more than

forty final judgments.' That activity, in our view, amply

warrants classification of the acts of the retired circuit judge

during the 'assignment gap' as those of a de facto circuit judge

under Cary: he is an 'appointed public officer [who]

continue[d], without break, and without question by the

public, to exercise the functions of the office [of circuit judge]

after the expiration of his commission.' 76 Ala. at 86. The

former husband did not raise any objection to the assignment

of the modification and enforcement claims to the retired

circuit judge in May 2018, when they were first transferred to

him for disposition, nor at any other time before the entry of

the January 31, 2019, judgment. Thus, under Gwin II (and

notwithstanding Paulk [v. Paulk, 249 So. 3d 521 (Ala. Civ.

App. 2017)9]), the former husband may not properly be heard

to complain here and now about the judicial authority of the

retired circuit judge.

"The former husband next attacks, on a number of

fronts, the chief justice's February 5, 2019, third assignment

order directed to the retired circuit judge. Several of the

9In Paulk v. Paulk, 249 So. 3d 521 (Ala. Civ. App. 2017), a retired

circuit judge entered an order after the case was remanded by the Court

of Civil Appeals. The mother appealed that judgment, and the Court of

Civil Appeals ex mero motu held that the retired judge had no authority

because the record did not show that he had been appointed as a

temporary circuit judge. Two years later in Dean the Court of Civil

Appeals noted that neither party in Paulk had "offered any legal basis

upon which it could be concluded that a retired judge could enter an order

outside the scope of a valid appointment." Dean, 295 So. 3d at 87. In other

words, no one in Paulk raised the de facto officer doctrine, and the Court

of Civil Appeals apparently did not consider it. We thus question the

continuing validity of the Paulk decision.

CR-2023-0185

objections lodged by the former husband—for example, the

retired circuit judge's residency outside the circuit

encompassing Shelby County and his purportedly having

reached the age of 70 years—pertain to requirements that a

candidate for election to the circuit bench would be required

to meet; the former husband additionally contends that the

retired circuit judge's repetitive appointments by successive

chief justices for more than 180 days at a time are not legally

authorized. The former husband appears to assert that the

sole source of the chief justice's assignment power is that set

forth in Ala. Code 1975, § 12-1-14, which provides that our

supreme court 'may appoint and commission special circuit

judges ... for temporary service[ ] provided ... that the person

so appointed shall possess the qualifications for the judgeship

to which [the person] is appointed' …. However, our supreme

court rejected in Gwin II the proposition advanced by the

former husband here, noting that § 12-1-14 'requires that a

commission be issued to the appointee and that the appointee

take an oath of office' and 'does not govern a person who,

before the appointment, occupies the office of judge, because

that person will have already fulfilled these requirements

when he or she initially assumed the judgeship.' 808 So. 2d

at 66-67 (emphasis added).

"In deeming the retired circuit judge in this case to

similarly 'occup[y] the office of judge' at the time of the chief

justices' assignment orders, we note the applicability in this

case of Ala. Code 1975, § 12-18-7(b), which provides that a

'retiring justice or judge, upon being retired, shall take the

oath of office as a retired justice or judge and thereupon

become an extra or additional judge of the state,' and that

'[t]hereafter, on the request of the Chief Justice, ... any such

retired justice or judge may serve on ... any circuit court in the

state' (emphasis added). Accord Ala. Const. 1901 (Off.

Recomp.), Art. VI § 149 (retired judges may be assigned by

chief justice to perform 'temporary service in any court').

Further, although a presiding circuit judge's authority to

appoint and commission a special circuit-court judge for

CR-2023-0185

'temporary service' is limited to periods of 180 consecutive

days in each instance, see Ala. Code 1975, § 12-1-14.1(b), we

find no such temporal limitation upon the authority of the

chief justice to assign a retired circuit judge in § 12-18-7 or in

§ 149. See also Benjamin, 156 So. 3d at 458-59 (opining that §

12-1-14.1(b) does not apply to judicial appointments or

assignments not undertaken under the auspices of that

statute). We therefore conclude that the former husband has

failed to demonstrate that the chief justice acted outside the

discretion of that office on February 5, 2019, in assigning the

retired circuit judge to the circuit encompassing Shelby

County for the remainder of this year."

295 So. 3d at 87-90.

Osborn argues that the de facto officer doctrine applies only to what

he describes as "technical" defects, not jurisdictional ones. He asserts

that Dean, supra, State v. Gwin, 808 So. 2d 65 (Ala. 2001) ("Gwin II"),

and Benjamin v. State, 156 So. 3d 424 (Ala. Crim. App. 2013), all involved

"technical defects"—the judge in Gwin II was a special judge from a

different county who did not meet the residency requirement; the judge

in Dean issued decisions between the end of his second specialappointment term and the beginning of a third term; and the judge in

Benjamin had been appointed to year-long terms instead of the statutory

maximum of six months. The common denominator in these cases, says

Osborn, is that "these judges had been appointed by someone with

authority to issue judicial commissions in the first place"—the Alabama

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Supreme Court in Gwin II and the Chief Justice in Benjamin and in

Dean.

Under that standard, however, as we have shown, the Standing

Order assigning Judge Waters as a circuit judge was made by the person

statutorily authorized to issue it—the then-presiding circuit judge. And

the expiration of that assignment occurred not by statute but under the

Standing Order, just as the appointment orders in Dean and Benjamin

expired under the respective terms of the appointment orders at issue.

In support of his assertion that the de facto officer doctrine applies

to technical but not jurisdictional defects, Osborn also cites Wrenn v.

District of Columbia, 808 F.3d 81, 84 (D.C. Cir. 2015). In Wrenn, the

judge at issue—District Judge Scullin of the Northern District of New

York—decided a case in another district, the District Court for the

District of Columbia ("D.C."). The Chief Justice of the United States had,

under the applicable statute, designated and assigned Judge Scullin to

hear certain cases in the D.C. District Court—but not in the case at issue.

The D.C. Circuit cited Frad v. Kelly, 302 U.S. 312 (1937), in which a

district judge had decided a new case after his authorized time as a

visiting judge expired. In Frad, the "temporal limitation" of the

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appointment to sit as a visiting judge was described as jurisdictional and

thus prevented application of the de facto officer doctrine. The Wrenn

court explained:

"Like the designated judge in Frad, Judge Scullin had a

limited designation that did not extend beyond the

specifications of that designation. In Frad, the breached

limitation was temporal; in this case, it is case designation. In

either case, a judge acting beyond his designation acts without

jurisdiction."

808 F.3d at 84.

The description of a "temporal limitation" as jurisdictional in Frad

is at odds with Dean and Benjamin, which involved temporal or timebased problems—that is, the judges in Dean and Benjamin served after

the expiration of their appointments, which is what happened in Frad

and prevented application of the de facto officer doctrine in Frad. And the

problem here is that Judge Waters appears to have continued to serve

after the expiration of her assignment.

This points to a possible distinction between the federal de facto

officer doctrine—which, as far as we can tell, is an equitable doctrine

based in the common law—and the Alabama doctrine codified at § 36-1-2. Cf. Ryder v. United States, 515 U.S. 177, 180-81 (1995) ("The de facto

officer doctrine confers validity upon acts performed by a person acting

CR-2023-0185

under the color of official title even though it is later discovered that the

legality of that person's appointment or election to office is deficient. …

The doctrine has been relied upon by this Court in several cases involving

challenges by criminal defendants to the authority of a judge who

participated in some part of the proceedings leading to their conviction

and sentence."). Regardless, decisions of federal courts other than the

United States Supreme Court are not controlling. See, e.g., Glass v.

Birmingham S. R.R., 905 So. 2d 789, 794 (Ala. 2004) ("[I]n determining

federal common law, we defer only to the holdings of the United States

Supreme Court and our own interpretations of federal law. Legal

principles and holdings from inferior federal courts have no controlling

effect here, although they can serve as persuasive authority."). The

fundamental problem with Osborn's arguments is they simply do not

address the plain language of § 36-1-2, which does not distinguish

between technical or jurisdictional defects. Rather, § 36-1-2 turns on

"[t]he official acts of any person in possession of a public office and

exercising the functions thereof."

Osborn also asserts that no Alabama appellate courts have "applied

the de facto officer doctrine to affirm the decisions of a special judge who

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was not appointed by someone with the authority to do so." (Osborn's

reply brief, p. 9.) Of course, we have held that Presiding Judge Elliott had

the authority to assign Judge Waters to sit as a circuit judge. But, even

assuming that assignment expired, Osborn's argument is unavailing.

Before the de facto officer doctrine was codified, the Alabama

Supreme Court more than a century ago held that the propriety of the

appointing authority is not the decisive issue. In Cary v. State, 76 Ala.

78 (1884), which is quoted in Dean, the Alabama Supreme Court held

that the doctrine applies to one who occupies an office and exercises its

functions:

"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.—People v. Staton (73 N.C.

546), 21 Amer. Rep. 479 [(1875)]. 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.

The true principle is, that there must be either some color of

election or appointment, or else 'an exercise of the office, and

an acquiescence on the part of the public, for a length of time

which would afford a strong presumption of at least a

colorable election or appointment.'—Wilcox v. Smith (5 Wend.

231), 21 Amer. Dec. 213 [(1830)]; State v. Carroll (38 Conn.

449), 9 Amer. Rep. 409, 425 [(1871)]. Or, as we find the rule

CR-2023-0185

stated elsewhere, 'the mere exercise of the functions of an

office will not be sufficient to make a person a de facto officer,

where there is no claim to the office under color of an election

or an appointment, unless the exercise thereof has been open,

notorious, and continued for such a length of time, without the

public having interfered, as to justify the presumption that

the party was duly appointed.' Hildreth v. McIntire, 19 Amer.

Dec. 61 [(1829)], and NOTE on p. 68. In Rex v. Bedford Level,

6 East, 356, Lord Ellenborough defined an officer de facto as

'one who has the reputation of being the officer he assumes to

be, and yet is not a good officer in point of law,' thus adopting

the definition of Lord Holt in Parker v. Kett, 12 Mod. 467,

which was decided as far back as the year 1693. The definition

is one now fully recognized in England, and has been

generally adopted by the American courts in its broadest and

most liberal sense.—Wilcox v. Smith, 21 Amer. Dec. 213;

Hildreth v. McIntire, 19 Amer. Dec. p. 63, NOTE; State v.

Carroll, 9 Amer. Rep. 409."

76 Ala. at 85.

Finally, Osborn's technical/jurisdictional theory of the de facto

officer doctrine is at odds with Roberts v. Bright, 222 Ala. 677, 133 So.

907 (1931), in which the trustees of a school district were challenged as

not having been elected as trustees as required by law. The Alabama

Supreme Court rejected this challenge under the de facto officer doctrine

as codified in a predecessor to § 36-1-2:

"[T]he pleas show that the therein named trustees were in

possession of such office of trustee of said school and

exercising the functions thereof, being at least what may be

termed de facto trustees. The averments of the plea constitute

but a collateral attack upon their title to such an office, which

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cannot be done in this proceeding."

222 Ala. at 679, 133 So. at 909 (emphasis added). Here, Judge Waters

was "in possession of" the office of circuit judge for Osborn's case and

"exercised the functions thereof." Judge Waters completed the trial and

sentencing without objection until this appeal. Under § 36-1-2, Judge

Waters was a de facto officer, and Osborn is due no relief.

II. The prosecutor's statement during closing argument that "there's

only two people that know what happened out there and one of

them is dead" was a direct comment on Osborn's decision not to

testify and, with no curative instruction, was plain error.

During closing arguments in the guilt phase, the prosecution stated

in its rebuttal argument:

"Circumstantial evidence, we told you at the beginning

of the case, circumstantial evidence is perfectly good evidence,

this is a case that largely rests on circumstantial evidence We

don't have an eye witness. Now, there's really two people, I

suppose possibly three, but there's only two people that know

what happened out there and one of them is dead. If you think

about it, lots and lots of crimes are created that way. If the

principal witness is dead, you're not going to have any direct

evidence."

(R. 960.) Although Osborn did not object to these comments at trial, he

argues on appeal that the prosecutor's argument was a direct comment

on his decision not to testify and that the circuit court's failure to take

prompt curative action was plain error. In response, the State argues

CR-2023-0185

that, placed in context, "no juror would naturally and necessarily take

the statement at issue to be a comment on Osborn's failure to testify. …

Instead, the statement would have been taken for what it was: a part of

a broader argument regarding the validity of circumstantial evidence,

made as a rebuttal to Osborn's closing argument that stressed the

invalidity of the same." (State's brief, p. 51.)

Osborn relies principally on Powell v. State, 631 So. 2d 289 (Ala.

Crim. App. 1993), in which this Court held that these statements by the

prosecutor during closing argument constituted plain error:

" 'Another couple of questions that y'all were asked

about [during voir dire examination] has to do with direct and

circumstantial evidence. Y'all probably have gathered

through listening to several days of testimony in this case that

there were two people involved in the commission of this

crime. The victim Esther Herchenroeder is dead. She cannot

come in and testify.

" 'The second person involved is the defendant Timothy

Powell. There are no eyewitnesses to this crime. There were

two people involved. So what do you have to look at if you don't

have eyewitness testimony? You have got to go on

circumstantial evidence.' "

631 So. 2d at 291. This Court held:

"By asking the jury, 'So what do you have to look at if you

don't have eyewitness testimony? You have got to go on

circumstantial evidence,' R. 1977, the prosecutor called the

jury's attention to the fact that the appellant, the only

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eyewitness who could have taken the stand, did not testify.

"We cannot escape the conclusion that the prosecutor's

statement 'was manifestly intended to be, or was of such a

character that the jury would naturally and necessarily take

it to be, a comment on the failure of the accused to testify.' Ex

parte Wilson, 571 So. 2d [1251,] 1261 [(Ala. 1990)] (quoting

Marsden v. Moore, 847 F.2d 1536, 1547 (11th Cir.), cert.

denied, 488 U.S. 983, 109 S. Ct. 534, 102 L.Ed.2d 566 (1988))."

631 So. 2d at 291-92. The statements in Osborn's case are almost

identical to those in Powell.

A plurality of this Court recently found plain error under similar

circumstances in Sykes v. State, [Ms. CR-2022-0546, May 3, 2024] ___ So.

3d ___ (Ala. Crim. App. 2024), writ quashed, No. SC-2024-0395, Sept. 12,

2025. This Court stated:

"In all criminal prosecutions, the accused shall not be

compelled to give evidence against himself. Alabama

Constitution, Art. I, § 6. The right against self-incrimination

is likewise enshrined in the Alabama Code:

" 'On the trial of all indictments, complaints

or other criminal proceedings, the person on trial

shall, at his own request, but not otherwise, be a

competent witness, and his failure to make such a

request shall not create any presumption against

him nor be the subject of comment by counsel. If

the district attorney makes any comment

concerning the defendant's failure to testify, a new

trial must be granted on motion filed within 30

days from entry of the judgment.'

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"§ 12-21-220, Ala. Code 1975. ' "[O]nce a defendant chooses not

to testify at his trial the exercise of that choice is not subject

to comment by the prosecution." ' Ex parte Davis, 718 So. 2d

1166, 1173 (Ala. 1998) (quoting Wherry v. State, 402 So. 2d

1130, 1133 (Ala. Crim. App. 1981)).

" 'Comments by a prosecutor on a defendant's

failure to testify are highly prejudicial and

harmful, and courts must carefully guard against

a violation of a defendant's constitutional right not

to testify. Whitt [v. State, 370 So. 2d 736, 739 (Ala.

1979)]; Ex parte Williams, 461 So. 2d 852, 853

(Ala. 1984); see Ex parte Purser, 607 So. 2d 301

(Ala. 1992). This Court has held that comments by

a prosecutor that a jury may possibly take as a

reference to the defendant's failure to testify

violate Art. I, § 6, of the Alabama Constitution of

1901. Ex parte Land, 678 So. 2d 224 (Ala.), cert.

denied, 519 U.S. 933, 117 S. Ct. 308, 136 L. Ed. 2d

224 (1996); Ex parte McWilliams, 640 So. 2d 1015

(Ala. 1993); Ex parte Wilson, [571 So. 2d 1251,

1261 (Ala. 1990)]; Ex parte Tucker, 454 So. 2d 552

(Ala. 1984); Beecher v. State, 294 Ala. 674, 320 So.

2d 727 (1975). Additionally, the Fifth and

Fourteenth Amendments of the United States

Constitution may be violated if the prosecutor

comments upon the accused's silence. Griffin v.

California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed.

2d 106 (1965); Ex parte Land, supra; Ex parte

Wilson, supra. Under federal law, a comment is

improper if it was " ' "manifestly intended or was of

such a character that a jury would naturally and

necessarily take it to be a comment on the failure

of the accused to testify." ' " United States v.

Herring, 955 F.2d 703, 709 (11th Cir.), cert.

denied, 506 U.S. 927, 113 S. Ct. 353, 121 L. Ed. 2d

267 (1992) (citations omitted); Marsden v. Moore,

847 F.2d 1536, 1547 (11th Cir.), cert. denied, 488

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U.S. 983, 109 S. Ct. 534, 102 L. Ed. 2d 566 (1988);

United States v. Betancourt, 734 F.2d 750, 758

(11th Cir.), cert. denied, 469 U.S. 1021, 105 S. Ct.

440, 83 L. Ed. 2d 365 (1984). The federal courts

characterize comments as either direct or indirect,

and, in either case, hold that an improper

comment may not always mandate reversal.

" 'Consistent with this reasoning, Alabama

law distinguishes direct comments from indirect

comments and establishes that a direct comment

on the defendant's failure to testify mandates the

reversal of the defendant's conviction, if the trial

court failed to promptly cure that comment. Whitt

v. State, supra; Ex parte Yarber, [375 So. 2d 1231,

1233 (Ala. 1979)]; Ex parte Williams, supra; Ex

parte Wilson, supra. On the other hand, "covert,"

or indirect, comments are construed against the

defendant, based upon the literal construction of

Ala. Code 1975, § 12-21-220, which created the

"virtual identification doctrine." Ex parte Yarber,

375 So. 2d at 1234. Thus, in a case in which there

has been only an indirect reference to a

defendant's failure to testify, in order for the

comment to constitute reversible error, there must

have been a virtual identification of the defendant

as the person who did not become a witness. Ex

parte Yarber, 375 So. 2d at 1234; Ex parte

Williams, supra; Ex parte Wilson, supra; Ex parte

Purser, supra.'

"Ex parte Brooks, 695 So. 2d 184, 188-89 (Ala. 1997) (footnote

omitted).

"Our decision here is controlled by the opinions of the

Alabama Supreme Court in Whitt v. State, 370 So. 2d 736

(Ala. 1979), and Ex parte Wilson, 571 So. 2d 1251 (Ala. 1990).

In Whitt, the defendant had been indicted for first-degree

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murder arising out of a fatality in an automobile collision. The

defendant was ultimately convicted of second-degree murder

and was sentenced to 25 years in prison. This Court affirmed

the defendant's conviction and sentence. The Alabama

Supreme Court granted the defendant's petition for a writ of

certiorari to consider whether the prosecutor had made an

impermissible comment on the defendant's failure to testify.

"The defendant in Whitt neither testified nor called any

witnesses on his behalf. During closing arguments, the

prosecutor remarked: 'The only person alive today that knows

what happened out there that night is sitting right there.'

Defense counsel objected to the comment and moved for a

mistrial on the ground that the prosecutor had commented on

the defendant's failure to testify.

"The trial court denied the defendant's motion and

instructed the jury: 'I am going to instruct the jury though to

disregard the last remark in regard to that. The statement

made by the District Attorney in his argument is only his

inferences from the evidence, but I want you to disregard the

last remark, just what he said.' Whitt, 370 So. 2d at 737.

"This Court held that the remark 'was "argument in

kind" to rebut remarks by petitioner's counsel, that it was only

an "indirect" reference to petitioner's failure to testify, and,

finally, that any possible reference to petitioner was

"eradicated" by the court's instructions.' Whitt, 370 So. 2d at

738. The Supreme Court rejected each holding.

" 'We must disagree and hold that the remark was

not an "argument in kind," was not an "indirect"

reference to the petitioner's failure to testify, and

was not "eradicated" by the court's instructions.

" 'The comment "The only person alive today

that knows what happened out there that night is

sitting right there" is almost identical to the

CR-2023-0185

comment " 'No one took the stand to deny it' " held

to be a direct comment on the defendant's failure

to testify and held to be reversible error in Beecher

[v. State], 294 Ala. 674, 320 So. 2d 727 (1975) (per

Justice Embry). The comment is very close to the

comment made in Warren v. State, 292 Ala. 71,

288 So. 2d 826 (1973). There, this Court held (per

Justice McCall) that the argument " 'The only one

that said he didn't sell it (marijuana) was the little

brother' " was also a direct comment on the failure

of the defendant to testify and constituted

reversible error. It is thus that we must conclude,

based on the holding and rationale of those two

cases, that the comment by the district attorney in

this case was a direct comment on the failure of the

defendant to testify and constituted error to

reverse.

" 'We cannot agree with the Court of

Criminal Appeals that this comment was

"argument in kind" to rebut remarks made by

petitioner's counsel. It seems self-evident that it

cannot be "argument in kind" when we do not have

the defense counsel's argument to which this

comment is said to reply. The record does not

contain the closing arguments in this case.

" '....

" 'This brings us to a consideration of the last

ground given by the Court of Criminal Appeals for

finding that the second comment did not constitute

reversible error, namely, whether the trial court's

instructions to the jury cured such impermissible

comment.

" 'We cannot agree that the trial court's

instructions in this case were sufficient to cure the

CR-2023-0185

harmful effect of the district attorney's comment.

The court stated:

" ' "I am going to instruct the jury

though to disregard the last remark in

regard to that. The statement made by

the District Attorney in his argument

is only his inferences from the

evidence, but I want you to disregard

the last remark, just what he said. I

will deny your motion."

" 'In seeking to instruct the jury to disregard

the remark, we think that the trial court's

instructions fell short of what is required to

effectively erase the highly prejudicial and

harmful nature of such a comment.

" '....

" 'We suggest that, at a minimum, the trial

judge must sustain the objection, and should then

promptly and vigorously give appropriate

instructions to the jury. Such instructions should

include that such remarks are improper and to

disregard them; that statements of counsel are not

evidence; that under the law the defendant has the

privilege to testify in his own behalf or not; that he

cannot be compelled to testify against himself;

and, that no presumption of guilt or inference of

any kind should be drawn from his failure to

testify. With appropriate instructions, we hold

that the error of the prosecutor's remarks will be

sufficiently vitiated so that such error is harmless

beyond a reasonable doubt. U.S. v. Brown, 546

F.2d 166 (5th Cir. 1977); Chapman v. California,

386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967);

Beecher v. State, supra.'

CR-2023-0185

"370 So. 2d at 738.

"The Alabama Supreme Court was confronted with a

similar remark by the prosecutor in Ex parte Wilson, supra.

In Wilson, the defendant had been convicted of three counts

of capital murder and sentenced to death. Following this

Court's affirmance of the defendant's convictions and

sentence, the Alabama Supreme Court granted the

defendant's petition for a writ of certiorari to consider, among

other things, the propriety of the following argument made

during the State's rebuttal in closing arguments: ' "I can't tell

you what that woman went through during that night,

because there is only one eyewitness, and he ain't going to tell

you. I wish I could tell you all of that. I can give you this

evidence that these officers have worked meticulously to

gather up ...." ' Wilson, 571 So. 2d at 1259. The defendant

moved for a mistrial, asserting that the argument was ' "the

equivalent of saying that this defendant has not testified." ' Id.

The State countered that the remark was a reasonable

inference from the evidence, specifically, a taped confession

given by the defendant. The trial court denied the defendant's

motion for mistrial, and the prosecutor resumed his rebuttal:

'When I say that, I mean this defendant didn't tell you on that

tape recording that he gave Alvin Kidd as to what she went

through ....' Id. The trial court gave a lengthy instruction after

closing arguments had concluded regarding a defendant's

right not to testify.

"The State argued before the Alabama Supreme Court

that the prosecutor's 'comment was not on the defendant's

failure to testify, ... that his explanatory sentence "made it

clear to the jury that he was referring to the defendant's

sketchy incriminating statements, which had been admitted

into evidence," ' and that the jury would not have reasonably

understood the remark to be a comment on the defendant's

failure to testify. Wilson, 571 So. 2d at 1260. The Court was

unpersuaded. Relying heavily on Whitt, the Alabama

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Supreme Court held the remark combined with the trial

court's failure to promptly cure the remark to be reversible

error:

" 'The statements in this case do not fall

within the bounds set forth in Ex parte Dobard,

[435 So. 2d 1351 (Ala. 1983)], or Beecher [v. State,

294 Ala. 674, 320 So. 2d 727 (1975)].[3] The district

attorney clearly did not comment generally on the

State's evidence standing uncontradicted. His

statement falls well outside the permitted range

available to a district attorney in closing and is far

more prejudicial than those statements deemed to

be indirect comments in Ex parte Williams, [461

So. 2d 852 (Ala. 1984)]. See also Stain v. State, 494

So. 2d 816 (Ala. Crim. App. 1986) (court unable to

distinguish comment from that in Williams)....

" '....

" 'We find here that the comment made by the

district attorney was a direct comment on the

defendant's failure to testify and violated the

defendant's rights as found under the United

States Constitution, the Constitution of Alabama

of 1901, and Ala. Code (1975), § 12-21-220. We

cannot agree that the comment made by the

district attorney could have been understood by

the jury only as a reference to the defendant's

"sketchy incriminating statement." '

"Wilson, 571 So. 2d at 1263-65.

"The remark in the instant case—'There's only two

people in the world that know what happened in that house.

One of them's dead, and the other one is sitting right over

there at the end of that table. (Indicating).'—closely parallels

the remarks in Whitt and Wilson. The State asserts that,

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when viewed in context, the challenged remark was merely a

response to the argument of defense counsel during his closing

argument that there were gaps in the State's evidence. This

Court finds the State's purported justification unavailing.

Here, the prosecutor asserted to the jury that there were only

two people who knew what had happened to Keshia—Keshia,

who was dead and unable to testify, and Sykes. The

prosecutor's remark 'called the jury's attention to the fact that

[Sykes], the only eyewitness who could have taken the stand,

did not testify.' Powell v. State, 631 So. 2d 289, 291-92 (Ala.

Crim. App. 1993).

"In light of the holdings of the Alabama Supreme Court

in Whitt and Wilson, this Court holds that the remark was a

direct comment on Sykes's decision not to testify. Further,

because the circuit court failed to take prompt curative action,

this Court must reverse Sykes's convictions and sentence of

death. See Ex parte Wilson, 571 So. 2d at 1261 ('In a case

where there has been a direct reference to a defendant's

failure to testify and the trial court has not acted promptly to

cure that comment, the conviction must be reversed.').

"________________

"3In those cases, the Alabama Supreme Court held that,

'[w]here the State's evidence does stand uncontradicted, the

prosecutor does have the right to point this out to the jury.'

Beecher, 294 Ala. at 682, 320 So. 2d at 734."

Sykes, ___ So. 3d at ___.

Under Sykes and the authorities cited therein, this Court holds that

the prosecution's remark was a direct comment on Osborn's decision not

to testify. And because the circuit court took no curative action, we must

reverse Osborn's conviction and death sentence. Sykes, supra.

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Conclusion

The judgment of the circuit court is reversed, and the cause is

remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

Windom, P.J., concurs; Cole, J., concurs in the result; McCool,

Special Judge,* concurs in part and dissents in part, with opinion.

Kellum, J., dissents, with opinion. Anderson, J., recuses himself.

*Justice J. Chris McCool of the Alabama Supreme Court was

appointed to serve as a Special Judge in regard to this appeal.

CR-2023-0185

McCOOL, Special Judge, concurring in part and dissenting in part.

I concur with the threshold holdings in Part I of the main

opinion -- specifically, that Judge Waters's assignment was proper and

that, even if her assignment expired before Jason Michael Osborn's trial,

the de facto officer doctrine defeats Osborn's claim that the assignment

was improper. I dissent from the analysis in Part II of the main opinion

and the determination that the Mobile Circuit Court's judgment should

be reversed. Specifically, I do not agree that, when viewed in context, the

prosecutor's statement during closing argument that "there's only two

people that know what happened out there and one of them is dead" was

a direct comment on Osborn's decision not to testify or that the statement

rose to the level of plain error. When viewed in context, the statement

was simply part of the prosecutor's comments about circumstantial

evidence, not about Osborn's failure to testify, and no juror would have

taken it to be an unconstitutional comment on Osborn's failure to testify.

The Fifth Amendment to the United States Constitution provides,

in part, that "no person … shall be compelled in any criminal case to be

a witness against himself." In Griffin v. California, 380 U.S. 609, 615

(1965), the United States Supreme Court held that "the Fifth

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Amendment, in its direct application to the Federal Government and in

its bearing on the States by reason of the Fourteenth Amendment, forbids

either comment by the prosecution on the accused's silence or

instructions by the court that such silence is evidence of guilt." The Court

reasoned that allowing such comments would amount to "a penalty

imposed by courts for exercising a constitutional privilege" and would

"cut[] down on the privilege by making its assertion costly." Id. at 614.

Unlike in the present case, in Griffin the prosecutor made direct

comments on the defendant's failure to testify, such as the defendant "has

not seen fit to take the stand and deny or explain" the allegations and

"[the victim] can't tell you her side of the story. The defendant won't." Id.

at 611.

Further, the Alabama Supreme Court has stated that

"an indirect statement, one of such character that the jury

would naturally and necessarily take it to be a comment on

the defendant's failure to testify, violates the defendant's

constitutional rights. Marsden v. Moore, 847 F.2d 1536 (11th

Cir.), cert. denied, 488 U.S. 983, 109 S. Ct. 534, 102 L. Ed. 2d

566 (1988). Also, such a statement violates the defendant's

rights under the Alabama Constitution. Beecher v. State, 294

Ala. 674, 320 So. 2d 727 (1975)."

Ex parte Payne, 683 So. 2d 458, 464 (Ala. 1996) (emphasis added).

CR-2023-0185

Additionally, "[w]hen an accused contends that a prosecutor has

made improper comments during a closing argument, the statements at

issue must be viewed in the context of the evidence presented in the case

and the entire closing argument made to the jury -- both defense counsel's

and the prosecutor's." Ex parte Musgrove, 638 So. 2d 1360, 1368 (Ala.

1993). "Further, a prosecutor has the right to fairly 'reply in kind' to

statements made by defense counsel in the defense's closing argument."

Id. at 1369. It is within this basic jurisprudential framework that I will

analyze the statement in the present case.

I. The Context

"A text, out of context, is a pretext." Vernon Johnson, The Bible

Study Notebook 26 (2015). See also Powell v. State, [Ms. CR-20-0727,

May 3, 2024] ___ So. 3d ___, ___ (Ala. Crim. App. 2024) (McCool, J.,

dissenting) ("It is a well-known principle of biblical exegesis that 'a text

without a context is usually a pretext.' "). This fundamental principle of

biblical interpretation applies almost exactly to the analysis of

statements such as the one at issue in this case, wherein it is alleged that

a prosecutor has made a comment on Osborn's failure to testify. In this

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case, the context clearly contradicts such an allegation, and therefore we

should not find any error, much less plain error.

In the present case, defense counsel, as he should, concentrated on

deficiencies in the State's evidence in his closing argument. Specifically,

defense counsel particularly focused on the State's lack of direct evidence.

In reply to that focus by defense counsel, during its rebuttal closing

argument, the prosecution stated:

"Circumstantial evidence, we told you at the beginning

of the case, circumstantial evidence is perfectly good evidence,

this is a case that largely rests on circumstantial evidence. We

don't have an eyewitness. Now, there's really two people, I

suppose possibly three, but there's only two people that know

what happened out there and one of them is dead. If you think

about it, lots and lots of crimes are created that way. If the

principal witness is dead, you're not going to have any direct

evidence."

In context, the prosecutor was simply replying to defense counsel's

argument about the State's lack of direct evidence and highlighting the

truth about circumstantial evidence. The prosecutor was permissibly

pointing out that, many times, the only eyewitnesses to a murder are the

victim and the perpetrator and that, because the only eyewitnesses to the

murder are the victim and the perpetrator, the State must rely on

circumstantial evidence; however, circumstantial evidence alone is

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enough to support a conviction and is not inferior to direct evidence. That

explanation constitutes neither a direct nor an indirect unconstitutional

comment on Osborn's failure to testify.

Moreover, contrary to the main opinion's assertion, the prosecutor

did not make a direct comment on Osborn's failure to testify. The

prosecutor did not expressly mention Osborn's not testifying. In fact,

unlike in Powell v. State, 631 So. 2d 289 (Ala. Crim. App. 1993), which is

the only precedential case relied on by the main opinion and is the

primary case relied on by Osborn, the words "testimony," "testify," or any

other similar words do not appear anywhere in the prosecutor's

complained-of comments in the present case.10 Further, nothing in the

10As stated in the main opinion, in Powell this Court held that the

following statements constituted plain error:

" 'Another couple of questions that y'all were asked

about [during voir dire examination] has to do with direct and

circumstantial evidence. Y'all probably have gathered

through listening to several days of testimony in this case that

there were two people involved in the commission of this

crime. The victim Esther Herchenroeder is dead. She cannot

come in and testify.

" 'The second person involved is the defendant Timothy

Powell. There are no eyewitnesses to this crime. There were

two people involved. So what do you have to look at if you don't

CR-2023-0185

prosecutor's comments in the present case "necessarily" drew the jury's

attention to Osborn's silence, see Ex parte Payne, supra, nor did the

prosecutor invite the jury to make any adverse inference from Osborn's

exercise of his right to not testify. Surely, if a defendant attacks the

State's case as lacking direct evidence and being only circumstantial, a

prosecutor can simply point out that such a situation is not unusual in a

murder case and that circumstantial evidence can support a conviction

without running afoul of the federal or state constitutions. To hold

otherwise is to hamstring the prosecution in any case in which the

defendant does not testify and the defendant's attorney attacks the

State's evidence -- or lack thereof -- in closing. "Reply in kind" is not just

some highbrow legal principle concocted to give law professors something

to lecture about; rather, it is a fundamental right of advocates to be able

to properly advocate for their clients, including the State.

Moreover, I believe that the main opinion improperly picks out a

single half of a sentence in the present case to compare to single

have eyewitness testimony? You have got to go on

circumstantial evidence.' "

631 So. 2d at 290 (emphasis added).

CR-2023-0185

sentences in other cases without properly comparing the context of all

the statements. There should be no "magic words" that necessitate a

reversal, such as the prosecutor simply pointing out the obvious fact that

the perpetrator and the deceased victim are the only people who know

what happened. A juror would not "naturally" and "necessarily" take

such a statement to be a comment on the defendant's failure to testify,

and, thus, it does not automatically mandate reversal. Instead, context

is everything in the analysis of statements such as the one at issue in the

present case. In fact, I believe that, since the United States Supreme

Court decided Griffin in 1965 and first recognized that a direct comment

by the prosecution on the accused's silence is unconstitutional, our

jurisprudence in Alabama has become overly simplistic. It has traded

closely scrutinizing the entire context of the statements for simply

comparing single sentences or even single words to see if they are similar.

Now, prosecutors must avoid using these "magic words" regardless of the

context. I do not believe that either the state or the federal constitution

requires such an outcome. Again, in context, the prosecutor's comments

in the present case were merely an argument concerning the validity of

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circumstantial evidence and a "reply in kind" to the arguments of defense

counsel.

II. Plain-Error Analysis

Further, to the extent that any error occurred, it was not plain

error, and, thus, it does not warrant reversal. As stated in the main

opinion, "[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). "Plain error" should be just that

-- plain, and clearly error in its context. It is not wrong to say that "plain

error" should be error that "jumps off the page," standing out in such a

manner that we cannot ignore it. That is simply not the case here.

Because Osborn did not object to the prosecutor's comments at trial,

the plain-error standard applies. Further, "the failure to object should

be weighed as part of our evaluation of the comments, because the failure

to object may suggest that the defense did not consider the comments to

be particularly harmful." Ex parte Payne, 683 So. 2d at 465. In the

present case, I do not believe that the trial court committed an obvious

and indisputable error by allowing the prosecutor's comments without

CR-2023-0185

any objection from the defense. Thus, the prosecutor's comments do not

form a basis for the reversal of Osborn's conviction.

III. Comparison to Other Cases

Lastly, I want to briefly address the only two cases relied on by the

main opinion -- Powell v. State, 631 So. 2d 289 (Ala. Crim. App. 1993),

and Sykes v. State, [Ms. CR-2022-0546, May 3, 2024] ___ So. 3d ___ (Ala.

Crim. App. 2024) (plurality opinion). For the reasons stated above, I

believe that Powell is distinguishable from the present case, but, to the

extent that it is not, I also believe that it was wrongly decided. When the

prosecutor's comments in Powell are compared to prosecutors' comments

that were held to be direct comments on the defendant's silence in other

cases, Powell appears to be an outlier.

Concerning Sykes, I was a member of the Court of Criminal Appeals

when it was decided, but I recused myself from the case. First, Sykes is

a plurality opinion and is not controlling precedent. Furthermore, I do

not agree with much of the reasoning in Sykes because, again, I believe

that the main opinion in that case did not adequately examine the context

of the statements, and, in any event, Sykes hinged more completely on a

"reply-in-kind" argument.

CR-2023-0185

Most importantly, in both Powell and Sykes, I believe that the

Court abdicated its duty to engage in a true contextual analysis of the

prosecutors' statements. Absent such a contextual analysis, we risk

taking the "easy way out" through a mere cursory examination of the

statements standing alone. I believe this kind of overly simplistic

approach is what has led to the erroneous jurisprudential pit that we find

ourselves in today.

IV. Conclusion

In conclusion, because I believe that the prosecutor's comments

were neither unconstitutional nor rose to the level of plain error, I dissent

from the analysis of Part II of the main opinion and the decision to

reverse Osborn's capital-murder conviction and death sentence.

CR-2023-0185

KELLUM, Judge, dissenting.

I am troubled by the main opinion's failure to follow statutory law

on the appointment and assignment of a special circuit judge; therefore,

I disagree with the holding in Part I of the main opinion. My concern is

that the orders that professed to give a district judge jurisdiction to

preside over a capital-murder case and sentence Jason Michael Osborn

to death suffer from defects that I believe cannot be cured with resort to

the de facto officer doctrine.

As the main opinion sets out, two orders were issued in this case

that are relevant to the determination of whether District Judge Shelly

Waters had jurisdiction to preside over Osborn's capital-murder trial.

The first order was issued by a presiding judge, and it appointed District

Judge Waters as a special circuit judge in the Morgan Circuit Court. The

second order was issued by a circuit judge, and it specifically assigned

Osborn's case to Judge Waters.

Standing Order Issued by Presiding Judge on August 3, 2021

The main opinion holds that the standing order appointing District

Judge Waters as an acting circuit judge complied with statutory law and

CR-2023-0185

the Alabama Rules of Court. I disagree. This August 3, 2021,11 order

signed by then Presiding Judge Charles B. Elliott, stated: "[District]

Judge Shelly Waters is appointed as Special Circuit Judge from this date

until January 4, 2023." (Suppl. C. 14) (emphasis added).

Section 12-1-14.1, Ala. Code 1975, provides:

"(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.) Before § 12-1-14.1 was enacted on September 26,

2001, a presiding judge had no statutory authority to appoint special

temporary judges. The Chief Justice of the Alabama Supreme Court also

11This order is dated August 2, 2021, but is stamped as filed in the

Morgan Circuit Clerk's Office on August 3, 2021.

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has authority, pursuant to § 12-1-14, Ala. Code 1975, and the Alabama

Constitution, to appoint special judges.

Effective July 1, 2018, the Alabama Legislature also enacted § 12-9A-8, Ala. Code 1975, which addresses special assignments made by a

presiding circuit judge. This section reads:

"(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."12

(Emphasis added.) Section 12-9A-8 does not reference § 12-1-14.1 -- a

2001 statute. Nor is there any provision in § 12-9A-8 that provides that

it supersedes the 2001 statute. Section 12-1-14.1 specifically defines the

12This statute has not been cited in any Alabama appellate-court

opinions. The cases cited in this opinion reference § 12-1-14.1, Ala. Code

1975.

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term "temporary appointment," but no specific time period is provided in

§ 12-9A-8. "[R]ules and statutes relating to the same subject matter must

be read in pari materia, thus allowing for legal harmony where possible."

State ex rel. Daw, 786 So. 2d 1134, 1136 (Ala. 2000).

I note that Rule 13, Ala. R. Jud. Admin., a rule adopted by the

Alabama Supreme Court, also addresses assigning special circuit judges.

This rule, as amended effective November 8, 2019, provides:

"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.) The November 2019 amendment removed the word

temporary and added the above-emphasized portion to the rule.

The main opinion holds that this 2019 amendment to Rule 13 takes

precedence over the enacted statutory law that sets a specific time period

for a special appointment. I cannot agree with this conclusion. The

Alabama Supreme Court has recognized that when a court rule conflicts

with a statute addressing the same subject the "act of the legislature

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must prevail." Watkins v. Kelley, 262 Ala. 524, 525, 80 So. 2d 247, 248

(1955).13 The main opinion's interpretation of this rule would extend the

jurisdiction of the presiding circuit judge beyond what is set by the

Alabama Legislature.

It is my belief that § 12-1-14.1 addresses those situations

concerning an extended appointment of a special circuit judge made by a

presiding circuit judge. On the other hand, § 12-9A-8 addresses the

assignment of a specific case to a judge in a circuit made by the presiding

circuit judge.

Section 12-1-14.1(b) clearly states: "[T]he term 'temporary service'

means not more than 180 consecutive days. A special judge may be

appointed, as needed, for more than one period of 180 consecutive days.' "

The standing order appointed Judge Waters for 520 days -- a period far

in excess of what is allowed by statute. Moreover, there is no additional

13While Watkins v. Kelley was a civil case, it has been relied on in

criminal cases by both the Alabama Supreme Court and this Court's

predecessor, the Alabama Court of Appeals. See Johnson v. State, 269

Ala. 1, 4, 111 So. 2d 610, 613 (1958); Relf v. State, 267 Ala. 3, 5, 99 So.

2d 216, 218 (1957); Jones v. State, 41 Ala. App. 172, 172, 125 So. 2d 278,

279 (1960); Colburn v. State, 40 Ala. App. 248, 251, 112 So. 2d 800, 803

(1959); Granger v. State, 39 Ala. App. 461, 462, 103 So. 2d 835, 836

(1958); King v. State, 39 Ala. App. 167, 167, 98 So. 2d 443, 444 (1957).

CR-2023-0185

order that reappointed Judge Waters to a new 180-day period.14 In

essence, the order that covered a span of 520 days was not temporary but,

instead, was more in the nature of electing a circuit judge, an act clearly

beyond the intent of the Legislature. The main opinion ignores the clear

wording of § 12-1-14.1(b).

Even more troubling is that this standing order expired before

Osborn's capital-murder trial began. The standing order named a

specific date on which it expired, and that date was January 4, 2023.

Osborn's trial began on February 6, 2023, more than one month after the

expiration of the presiding judge's standing order specially appointing

District Judge Waters.

Order Issued on September 30, 2022, by Circuit Judge

On September 30, 2022, Circuit Judge Jennifer Howell issued the

following order:

"1. This case is reassigned to Hon. Shelly Waters, who will

hear this case as a Special Circuit Judge. The Clerk is

directed to update the file accordingly.

"2. The Motion to Continue Status Conference is GRANTED.

14This 180-day time limit does not apply to all special appointments.

See Dean v. Dean, 295 So. 3d 82, 90 (Ala. Civ. App. 2019) (holding that

180-day time limit does not apply to appointments made by the Chief

Justice of the Alabama Supreme Court).

CR-2023-0185

The status hearing is continued from the September 30, 2022,

docket and shall be reset by Judge Waters."

(C. 216.) On that same date, an entry was made on the case-actionsummary sheet stating: "Changed from: JMH [Jennifer M. Howell] to

SSW [Shelley S. Waters]." (C. 6.) There is no other order in the certified

record that reassigned this case.15 Although Judge Howell was the

presiding judge of the Morgan Circuit Court at one time, it is uncontested

that, at the time that Judge Howell's order was issued, she was not the

presiding judge; Judge Elliott was the presiding judge.16

The main opinion agrees with the State that the reassignment

order issued by Judge Howell was merely a transfer of the case "between

judges already serving on the circuit court" and, based on the standing

order, was valid. (State's supp. Brief, p. 5.) Osborn cites the case of Ex

15The State argues that Judge Howell's order was not an order

appointing a district judge to sit specially as a circuit judge in Osborn's

case. Circuit-court records show that the case was reassigned to Judge

Waters on September 30, 2022, the date of Judge Howell's order, and no

other order reassigning the case appears in the certified record. Nor was

any other order furnished to this Court when the circuit court was

directed to supplement the record.

16This Court may take judicial notice of the presiding judge of a

judicial circuit. See State v. Murphy, 1 So. 3d 1084, 1086 (Ala. Crim.

App. 2008).

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parte K.R., 210 So. 3d 1106 (Ala. 2016), and argues that, even with a

standing order issued by the appropriate authority, another individual

has no authority to assign a case to a new judge pursuant to that standing

order. In Ex parte K.R., the Alabama Supreme Court addressed this

issue and stated:

"In the present case, assuming that the April 28, 2010,

order gave the clerk of the probate court the authority to

assign the present case to any 1 of the 12 'pre-appointed

temporary judges,' Ex parte Knight[, 92 So. 3d 717 (Ala.

2011),] indicates that such a practice is improper when the

authorizing statute gives the power to appoint solely to the

presiding judge of a circuit court. Section 13A-5-9.1 and § 1(a)

of Act No. 2007-454 similarly require that the presiding judge

of the circuit court appoint a judge when necessary."

210 So. 3d at 1118.

Based on the clear language of § 12-9A-8, the statutory authority to

assign or reassign a case in circuit court is vested solely with the

presiding circuit judge. Judge Howell had no authority to reassign the

case to another judge because, at the time the September 2022 order was

issued, she was not the Presiding Judge of the Morgan Circuit Court.

Preservation of Issue

The main opinion further appears to agree with the State that the

issue of Judge Waters's appointment is not properly preserved because

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this issue was not raised at trial and does not involve the jurisdiction of

the court. I do not agree. The Alabama Supreme Court in Ex parte Files,

413 So. 3d 679 (Ala. 2024), recently discussed the holdings in Ex parte

K.R., supra, and Bush v. State, 171 So. 3d 679 (Ala. Crim. App. 2014), as

they related to a presiding judge appointing his successor after he had

recused himself from a case. The Alabama Supreme Court specifically

noted:

"Both Ex parte K.R. and Bush are legally

distinguishable from this case. Those cases, respectively,

dealt with specific statutes governing who may be appointed

to fill a judicial vacancy or which judge may hear a particular

case. This statutory basis for holding that the lower courts in

those cases lacked jurisdiction is significant: the legislature

has the power to regulate a circuit court's subject-matter

jurisdiction. Ala. Const. 2022, art. VI, § 142(b)."

Ex parte Files, 413 So. 3d at 685. As the language in Ex parte Files

recognizes, the appointment of a special circuit judge is governed by

statutory law, is an issue that involves the subject-matter jurisdiction of

a court, and is jurisdictional.

"Jurisdiction is '[a] court's power to decide a case or issue

a decree.' Black's Law Dictionary 867 (8th ed. 2004). Subjectmatter 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,

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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 jurisdiction refers to a

court's 'statutory or constitutional power' to adjudicate a

case). In deciding whether Seymour's 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 Seymour was

charged and as to which he has filed his petition for certiorari

review."

Ex parte Seymour, 946 So. 2d 536, 538 (Ala. 2006).

A jurisdictional issue may not be waived by a party's failure to raise

the issue. Indeed, this Court has a duty to notice all jurisdictional issues

ex mero motu. The " 'lack of subject matter jurisdiction may not be

waived by the parties and it is the duty of an appellate court to consider

lack of subject matter jurisdiction ex mero motu.' " Ex parte Berry, 999

So. 2d 883, 888 (Ala. 2008) (quoting Ex parte Smith, 438 So. 2d 766, 768

(Ala. 1983)). See also Looney v. State, 60 So. 3d 293, 298 (Ala. Civ. App.

2010).

The State further argues: "It must be presumed that Judge [Howell]

issued her order at the instruction or with the consent of Presiding

Circuit Judge Elliott." (State's supp. Brief, p. 6.) " ' This court may

presume that a court of general jurisdiction,' rather than a court of

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limited jurisdiction such as a probate court, 'has subject-matter

jurisdiction over a particular action.' " Ex parte R.D., 313 So. 3d 1119,

1129 (Ala. Civ. App. 2020) (citation omitted). However, a district court is

not a court of general jurisdiction but a court of limited jurisdiction. See

§ 12-12-32, Ala. Code 1975, which provides, in pertinent part:

"(b)(1) The district court may exercise original

jurisdiction concurrent with the circuit court to receive pleas

of guilty in prosecutions of offenses defined by law as felonies

not punishable by sentence of death.

"(b)(2) The district court shall have jurisdiction to hold

preliminary hearing in prosecutions for felonies as provided

for in Title 15 of this code."

Because the district court is a court of limited jurisdiction, this Court

cannot presume that a district judge has jurisdiction over a capitalmurder trial. Without a proper order of appointment, I believe that

District Judge Waters had no subject-matter jurisdiction to preside over

Osborn's capital-murder trial and sentencing.

De Facto Officer Doctrine

The main opinion also holds that the de facto officer doctrine

renders District Judge Waters's consideration of Osborn's case lawful.

"The de facto officer doctrine confers validity upon acts performed

by a person acting under the color of official title even though it is later

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discovered that the legality of that person's appointment or election to

office is deficient." Ryder v. United States, 515 U.S. 177, 180 (1995). The

Alabama Supreme Court recognized this doctrine as it applied to judges

in 1905.17 "The proposition of law is well settled by adjudications, not

only of this court, but courts of other jurisdictions, that the proceedings

and judgments of a court presided over by a de facto officer are not void."

See Walker v. State, 142 Ala. 7, 10, 39 So. 242, 242 (1905). This doctrine

was codified in Alabama with the adoption of § 36-1-2, Ala. Code 1975.18

In Benjamin v. State, 156 So. 3d 424 (Ala. Crim. App. 2013), a case

relied on by the State, the defendant argued that the circuit judge who

presided over his case did not have jurisdiction to hear the case because,

he said, "the statute governing special appointment of a judge, § 12-1-17It appears that, in Alabama, the de facto officer doctrine was first

recognized in 1884 when the Alabama Supreme Court applied the

doctrine to a notary public who signed an arrest warrant. See Cary v.

State, 76 Ala. 78 (1884).

18This code section states, in pertinent part:

"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. …"

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14.1, Ala. Code 1975, provides only that judges may be appointed for

'temporary service' not to exceed 180 days and ... the judge in this case

presided over his trial and sentencing for more than 6 years." 156 So. 3d

at 458. After noting that the judge had been appointed by the Chief

Justice of the Alabama Supreme Court and that every year the Chief

Justice issued a new order of appointment, this Court stated:

"Regardless of whether the appointment was lawful, the

Alabama Supreme Court has recognized that a judge who

serves in a similar capacity without objection is a de facto

officer. In Gwin v. State, 808 So. 2d 65 (Ala. 2001), the

Alabama Supreme Court reversed this Court's judgment

holding that the appointment of the trial judge in the case was

invalid because that judge did not reside in the same county.

In setting aside this Court's judgment, the Supreme Court

stated:

" 'Gwin did not object to [the special judge's]

appointment before the judgment of conviction and

sentence was entered. [The special judge], who

was holding the office of circuit judge and was

exercising the functions thereof, was a de facto

officer when he accepted Gwin's plea. " 'A de facto

officer is one who exercises the duties of a de jure

office under color of appointment or election....' "

Dixie Dairies v. Alabama State Milk Control Bd.,

286 Ala. 198, 202, 238 So. 2d 551, 554 (1970)

(quoting Ex parte Register, 257 Ala. 408, 413, 60

So. 2d 41, 46 (1952)). Section 36-1-2, Ala. Code

1975, which protects the actions of de facto

officers, reads:

" ' "The official acts of any person

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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...."

" '(Emphasis added.) The judgment Gwin appealed

from is valid and remains intact as an action of a

de facto officer protected by statute.'

"808 So. 2d at 67.

"This appears to be the first time Benjamin has objected

to Judge White's presiding over his trial and sentencing.

Pursuant to Gwin v. State, because Judge White served

without objection he was a de facto officer protected by

statute. Thus, this claim was correctly summarily dismissed

as it failed to state a claim upon which relief could be granted.

See Rule 32.7(d), Ala. R. Crim. P."

Benjamin, 156 So. 3d at 459.

The appointment in Benjamin was made by the Chief Justice of the

Alabama Supreme Court. The Alabama Court of Civil Appeals noted in

Dean v. Dean, 295 So. 3d 82 (Ala. Civ. App. 2019):

" [A]lthough a presiding circuit judge's authority to appoint

and commission a special circuit-court judge for 'temporary

service' is limited to periods of 180 consecutive days in each

instance, see Ala. Code 1975, § 12-1-14.1(b), we find no such

temporal limitation upon the authority of the chief justice to

assign a retired circuit judge in § 12-18-7[, Ala. Code 1975,] or

in [Art. VI,] § 149 [of the Alabama Constitution]."

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295 So. 3d at 89-90. The holding in Benjamin is, thus, distinguishable

from this case. The Chief Justice's power to appoint a special circuit

judge is broader than the power given to a presiding circuit judge. Also,

the appointment order in Benjamin was issued by the person statutorily

authorized to issue that order.

The other Alabama cases cited by the State to support application

of the de facto officer doctrine are also distinguishable from this case.

Two of the cases are cases in which the Chief Justice appointed the

special judge. See Dean v. Dean, 295 So. 3d at 88 ("[T]he retired circuit

judge's actions during the 'assignment gap' fall within the parameters of

the de facto officer doctrine." The judge had been specially appointed by

the Chief Justice.); Gwin v. State, 808 So. 2d 65 (Ala. 2001) (holding that,

although a special judge was not a resident of the county of appointment,

the appointment was lawfully made by the Supreme Court). As already

noted, the time limitation is not contained in the statute authorizing the

Chief Justice to make a special appointment. See Dean v. Dean, 295 So.

3d at 89-90. The other cases deal with appointments to administrative

agencies. See Dixie Dairies v. Alabama State Milk Control Bd., 286 Ala.

198, 202, 238 So. 2d 551, 554 (1970) ("Although the legislature at the time

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the Board sat in judgment had passed an act providing for a six-member

Board, the appointments to office authorized had not been made. The

five members of the Board continued to act under their original

appointments. They lawfully sat in judgment as de facto officers and

Board members."); Walker v. State, 142 Ala. 7, 11, 39 So. 242, 243 (1905)

("[T]he defendant was arraigned, and a day set for a trial, at a time

different from that fixed by law for the holding of the court, and therefore

at a time not authorized by law. This being the case, it follows that the

indictment was void, as well as the arraignment and the order setting

the day for the trial; and this is so whether the judge presiding be an

officer de jure or de facto, and for this reason the judgment of conviction

was erroneous, which error necessarily works reversal of the case.").

The Alabama Supreme Court has not blindly applied the de facto

officer doctrine without regard to the underlying facts of the case and the

underlying validity of the appointment or assignment order. In Ex parte

K.R., supra, the Alabama Supreme Court considered a petition for a writ

of mandamus after the probate judge recused himself and the clerk of

that circuit appointed a Mobile County attorney to sit specially on an

adoption case. In the mandamus proceeding, the petitioner challenged

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the order issued by the attorney. The Supreme Court, after finding that

the issue was properly before that Court because it involved a

jurisdictional defect, stated:

"The appointment of a temporary probate judge in

instances when the regularly elected probate judge cannot

serve is governed by § 12-1-14.1 and § 12-13-37, Ala. Code

1975. Section 12-1-14.1(a) states, in pertinent part: '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 judge of probate for temporary

service.' Section 12-1-14.1 allows the presiding circuit court

judge to appoint a temporary probate judge when requested

to do so by the probate judge who is unable to sit on the case.

In the present case, pursuant to § 12-1-14.1, the presiding

circuit court judge of the Mobile Circuit Court had the

authority to appoint a temporary probate judge once Judge

Davis recused himself, upon being asked to do so by Judge

Davis.

"….

"In the present case, it is undisputed that neither the

Chief Justice of this Court nor the presiding judge of the

Mobile Circuit Court was notified of Judge Davis's recusal.

Instead of certifying the fact of Judge Davis's recusal to the

Chief Justice of the Alabama Supreme Court or to the

presiding judge of the Mobile Circuit Court and then allowing

either the Supreme Court or the presiding judge of the Mobile

Circuit Court to appoint a temporary probate judge, the clerk

of the probate court purported to appoint Druhan as a

temporary probate judge to replace Judge Davis. We have not

been able to locate any law giving the clerk of the probate

court the authority to appoint a temporary probate judge. As

a result, Druhan was never properly appointed as a

temporary probate judge. Accordingly, Druhan had no

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authority to enter the orders he entered, and any order

entered by Druhan is void. See Ex parte Punturo, 928 So. 2d

1030, 1034 (Ala. 2002) ('A judgment issued by a trial court

without jurisdiction is a nullity. Ex parte Hornsby, 663 So. 2d

966 (Ala. 1995), and Moore v. Ashe, 269 Ala. 359, 113 So. 2d

678 (1959).')."

Ex parte K.R., 210 So. 3d at 1112-13.

In Bush v. State, supra, the defendant filed a motion to reconsider

his sentence under former § 13A-5-9.1, Ala. Code 1975. On rehearing,

the argued that the circuit judge who ruled on that motion did not have

jurisdiction because, he said, the judge was not the sentencing judge or

the presiding judge of that circuit. We stated:

"Although Bush correctly filed his motion in the Mobile

Circuit Court, it does not appear that Judge Youngpeter was

the judge who sentenced Bush nor is he the presiding judge of

the 13th Judicial Circuit. See Ex parte Bush, 270 Ala. 62, 116

So. 2d 382 (1959) (noting that this Court can take judicial

notice of the identity of the presiding judge in a particular

circuit). Further, the record was silent regarding Judge

Youngpeter's appointment to rule on Bush's Kirby [v. State,

899 So. 2d 968 (Ala. 2004),] motion. See § 13A-5-9.1, Ala. Code

1975 (providing that the sentencing judge or 'any circuit judge

appointed by the presiding judge' may rule on a Kirby

motion). Thus, in accordance with Rule 10(g), Ala. R. App. P.,

this Court ordered the circuit court to file a supplemental

record containing a copy of the order appointing Judge

Youngpeter to preside over Bush's motion or, in the

alternative, to advise this Court if such an order was not

entered.

"On September 8, 2014, the circuit court filed a

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supplemental record with this Court. In that record, Judge

Youngpeter stated that there was no order appointing him to

preside over Bush's latest Kirby motion but that '[i]t is the

customary practice in the Thirteenth Judicial Circuit for an

incoming circuit judge to 'take over' the responsibility of

handling the cases previously assigned to the departing

circuit judge. That is what occurred with respect [to] the

above-referenced case.' (Supplemental Record, C. 9.) This

Court recognizes that the current customary practice in the

13th Judicial Circuit is often used in many circuits in this

State; however, in many circuits, the presiding judge has

issued a standing administrative order adopting that

procedure. In Owens v. State, 39 So. 3d 1183 (Ala. Crim. App.

2009), this Court held that such a standing order by the

presiding circuit judge was sufficient to constitute a valid

appointment of a circuit judge under § 13A-5-9.1 to hear a

Kirby motion. Compare Knight v. State, 92 So. 3d 717 (Ala.

2011) (holding that an administrative order containing

language allowing the circuit clerk discretion in assigning

motions to various judges did not constitute a valid judicial

appointment under § 13A-5-9.1).

"In this case, however, the record does not show, and the

circuit court did not provide any documents establishing that

Judge Youngpeter had jurisdiction to rule on Bush's motion.

Therefore, we must find that the circuit court's order denying

Bush's motion was void because that court did not have

jurisdiction to entertain the motion. A void judgment will not

support an appeal; therefore, this Court must dismiss Bush's

appeal."

Bush, 171 So. 3d at 680-81.

My research has revealed no Alabama case that has applied this

doctrine to the appointment or assignment of a district judge to preside

over a capital-murder case. Unlike the main opinion, I believe that the

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cases issued in Alabama concerning the de facto officer doctrine are

consistent with federal law on the de facto officer doctrine. Because

Alabama has not addressed the specific issue involved in this case, I

believe that a review of federal caselaw is useful in evaluating this issue.

In Wrenn v. District of Columbia, 808 F.3d 81 (D.C. Cir. 2015), the

federal court stated:

"Although we are satisfied the statutes clearly

determine on their face that Judge Scullin had no authority

to decide this matter, there is also clear precedent compelling

that result. In Frad v. Kelly, 302 U.S. 312, 58 S.Ct. 188, 82

L.Ed. 282 (1937), a district judge sat as a visiting judge under

a designation for a specified period of time. After the

expiration of that time, he issued an order in a case which he

had previously heard in the visited district. Id. at 313, 58

S.Ct. 188. The Supreme Court concluded that the order was

'null' because the judge by that time had no authority in the

district in which he issued the order. Id. at 316, 58 S.Ct. 188.

"The Court explained that while a visiting judge could

'perform the functions which are incidental and

supplementary to the duties performed by him while present

and acting in the designated district,' neither the statute nor

the designation empowered him to act beyond the temporal

limitations under which he was designated. Id. at 316-17, 58

S.Ct. 188. In explaining its holding, the Court noted that the

statutory limitations on the authority of visiting judges are

jurisdictional. See id. at 319, 58 S.Ct. 188.

"We conclude that Frad controls this case. Like the

designated judge in Frad, Judge Scullin had a limited

designation that did not extend beyond the specifications of

that designation. In Frad, the breached limitation was

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temporal; in this case, it is case designation. In either case, a

judge acting beyond his designation acts without jurisdiction.

Appellees argue that the de facto officer doctrine supports

Judge Scullin's jurisdiction, but that doctrine does not apply.

The de facto officer doctrine applies in the context of technical

defects and confers validity upon acts performed by a person

acting under color of official title, even if it is later determined

that the title is deficient. Nguyen v. United States, 539 U.S.

69, 77-78, 123 S.Ct. 2130, 156 L.Ed.2d 64 (2003). The

designation for specific cases is not a technical matter. It is

in fact jurisdictional.

"We realize that we are undoing the work of litigation to

date, but we have no choice. As the Supreme Court noted in

Frad, an order entered by a judge without jurisdiction is

'null.' "

808 F. 3d at 83-84.

One federal court has stated the following concerning the holding

in Wrenn and the case relied on by that court, Frad v. Kelly, 302 U.S. 312

(1937):

"This case is unlike two cases [the appellant] cites,

Wrenn v. District of Columbia, 808 F.3d 81 (D.C. Cir. 2015),

and Frad v. Kelly, 302 U.S. 312, 58 S.Ct. 188, 82 L.Ed. 282

(1937). In Wrenn, we vacated an order entered by a visiting

judge designated to hear certain specified cases because the

order was issued in a case beyond the ones identified in the

designation. See 808 F.3d at 83-84. In contrast, neither of

Judge Rothstein's pertinent designations was limited to

particular cases. The visiting judge in Frad v. Kelly sat by

designation for a limited time period. Frad, 302 U.S. at 316,

58 S.Ct. 188. The Supreme Court found that the judge had no

authority, after his designation expired, to revoke the

probation of a defendant he had tried while sitting by

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designation because the trial had already been 'concluded by

the judgment of sentence.' Id. at 317, 58 S.Ct. 188."

Clemente v. Federal Bureau of Investigation, 867 F.3d 111, 116 (D.C. Cir.

2017).

The United States Supreme Court, in Nguyen v. United States, 539

U.S. 69 (2003), addressed the application of the de facto officer doctrine

to the judicial appointment of an Article IV judge to a three-judge panel

for the United States Court of Appeals to hear the appeal of Nguyen's

drug-related convictions. That Court stated:

"The de facto officer doctrine, we have explained,

'confers validity upon acts performed by a person acting under

the color of official title even though it is later discovered that

the legality of that person's appointment or election to office

is deficient.' Ryder v. United States, 515 U.S. 177, 180, 115

S.Ct. 203, 132 L.Ed.2d 136 (1995). Whatever the force of the

de facto officer doctrine in other circumstances, an

examination of our precedents concerning alleged

irregularities in the assignment of judges does not compel us

to apply it in these cases.

"Typically, we have found a judge's actions to be valid de

facto when there is a 'merely technical' defect of statutory

authority. Glidden Co. v. Zdanok, 370 U.S. 530, 535, 82 S.Ct.

1459, 8 L.Ed.2d 671 (1962) (plurality opinion of Harlan, J.).

In McDowell v. United States, 159 U.S. 596, 601-602, 16 S.Ct.

111, 40 L.Ed. 271 (1895), for example, the Court declined to

notice alleged irregularities in a Circuit Judge's designation

of a District Judge for temporary service in another district.

See also Ball v. United States, 140 U.S. 118, 128-129, 11 S.Ct.

761, 35 L.Ed. 377 (1891) (assigned judge had de facto

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authority to replace a deceased judge even though he had been

designated to replace a disabled judge). We observed in

McDowell, however, that the judge whose assignment had

been questioned was otherwise qualified to serve, because he

was 'a judge of the United States District Court, having all

the powers attached to such office,' and because the Circuit

Judge was otherwise, empowered to designate him. 159 U.S.,

at 601, 16 S.Ct. 111."

539 U.S. at 77-80.

I believe that the defects in the two orders were not mere technical

defects that would justify application of the de facto officer doctrine. The

standing order issued by the presiding judge was invalid because it

exceeded the period permitted by statute and expired before the start of

Osborn's trial. Also, Judge Howell's order assigning the case to a district

judge was issued in violation of § 12-9A-8 and was an act outside the

scope of her jurisdiction because she was not the presiding judge. I

further note that the de facto officer doctrine was applied to the cases

cited above because no objection was made to the special judge's

appointment. However, this Court continues to apply the plain-error

standard of review in appeals in death-penalty cases, see Iervolino v.

State, 402 So. 3d 844 (Ala. Crim. App. 2023), and Rule 45A, Ala. R. App.

P., and at least one federal court has held that the plain-error standard

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impacts the application of the de facto officer doctrine.19

After reviewing the record, I am confident that this case will not

withstand the many levels of appellate review that attach to a capitalmurder conviction and sentence of death. "A judgment entered by a court

lacking subject-matter jurisdiction is absolutely void and will not support

an appeal; an appeal court must dismiss an attempted appeal from such

a void judgment." Vann v. Cook, 989 So. 2d 556, 559 (Ala. Civ. App.

2008).

Because I would dismiss this appeal for the above reasons, I

respectfully dissent.

19The United States Supreme Court in Nguyen, supra, specifically

noted that "to ignore the violation of the designation statute in these

cases would incorrectly suggest that some action (or inaction) on

petitioners' part could create authority Congress has quite carefully

withheld." 539 U.S. at 80.

Jason Michael Osborn v. State of Alabama

Authorities cited

Opinion · public domain