IN THE CIRCUIT COURT OF LEE COUNTY, ALABAMA

STATE OF ALABAMA, ) ) ) ) v. ) CASE NO. CC-2014-000226 ) ) ) FELIX BARRY MOORE, ) ) Defendant. )

STATE’S RESPONSE TO MOTION TO DISMISS

The State of Alabama, by and through its Acting Attorney General W. Van

Davis, hereby submits its Response to the Motion to Dismiss filed by defendant

Felix Barry Moore (“Moore”). For the reasons stated below, the Motion is due to

be denied.

INTRODUCTION

This is a public corruption case where Moore, a legislator in the Alabama

House of Representatives, is charged with lying under oath before the Lee County

Special Grand Jury about whether Speaker of the House Mike Hubbard threatened

to use his position as Speaker to harm economic development in Coffee County if

Josh Pipkin did not withdraw his Republican primary election challenge for

Moore’s House seat. Specifically, Moore is charged with providing false

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ELECTRONICALLY FILED5/8/2014 3:29 PM

43-CC-2014-000226.00CIRCUIT COURT OF

LEE COUNTY, ALABAMAMARY B. ROBERSON, CLERK

statements relating to a matter under investigation by the Attorney General in

violation of § 36-15-62.1, Ala. Code (Counts 1 & 3) and perjury in the first degree

in violation of § 13A-10-101, Ala Code (Counts 2 & 4).

The four-count indictment clearly and succinctly sets forth the charges

against Moore, tracks the language of the charged statutes, and was issued by a

duly-authorized Lee County Special Grand Jury operating under the proper

authority of a Supernumerary District Attorney. Despite this, Moore seeks to have

all of the charges against him dismissed for no less than forty-four reasons. Each

and every ground asserted, however, is insufficient to dismiss the indictment. To

be sure, Moore has not provided a legal or factual basis to support any of his

arguments. Moore either has no basis whatsoever to support his Motion, or he

simply intends to raise his actual arguments for the first time at a hearing.

Regardless, the Motion is due to be denied on its face and no hearing is therefore

necessary.

ARGUMENT

I. The Indictment was properly issued by a duly empanelled and sworn grand jury and signed by prosecutors authorized by the Attorney General to present the charges. As an initial matter, the Indictment was presented and signed by prosecutors

authorized to conduct proceedings before the duly empanelled and sworn Lee

County Special Grand Jury. As such, Moore’s attacks on the authority of the

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prosecution and the grand jury to bring charges against him are entirely without

merit. (See Motion, at ¶¶26-33, 43-44).

Section 36-15-15 provides that “[t]he Attorney General . . . may direct any

district attorney to aid and assist in the investigation or prosecution of any case in

which the state is interested, in any other circuit than that of the district attorney so

directed. Such district attorney shall have and exercise in such other circuit all the

powers and authority imposed by law upon the district attorney of such other

circuit.” Pursuant to that statute, on January 31, 2013, Alabama Attorney General

Luther Strange directed Supernumerary District Attorney W. Van Davis to handle

matters regarding an ongoing investigation involving potential public corruption in

Alabama.1 Attorney General Strange’s directing of W. Van Davis to “act” on his

behalf in this matter is entirely appropriate under this Section. As such, W. Van

Davis is therefore the “Acting Attorney General” in this case.

Acting Attorney General Davis is also authorized to utilize the resources of

the Attorney General’s Office, including any prosecutors or investigators, who are

equally authorized to perform their duties on behalf of the Attorney General. See §

36-15-17, Ala. Code (“when so directed by the Attorney General, the assistants to

the Attorney General . . . may perform such other duties as may be directed by the

Attorney General.”); see also § 36-15-1(12), Ala. Code (“The duties imposed by

1 W. Van Davis previously served as the District Attorney for St. Clair County, Alabama and is a duly-qualified Supernumerary District Attorney. See § 12-17-210, Ala. Code (1975).

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this section upon the Attorney General and his or her assistants shall be performed

by the Attorney General personally or by his or her assistants under his or her

supervision, direction, and control.”); § 36-15-13, Ala. Code (“The Attorney

General, either in person or by assistant, may appear before any grand jury in this

state and present any matter or charge to them for investigation, and prepare

and present to the grand jury indictments for any violation of the laws of this

state … to the same extent as district attorneys may now or hereafter do.”)

(emphasis added). As such, Deputy Attorneys General Miles M. Hart and Michael

B. Duffy are authorized to assist Acting Attorney General Davis in this matter.

At the request of Acting Attorney General Davis, this Court empanelled a

Special Grand Jury in Lee County on August 19, 2013. See Rule 12.2(b), Ala. R.

Crim. P. The Special Grand Jury was duly sworn, properly constituted and is still

in session. See Rules 12.1, 12.2 and 12.3, Ala. R. Crim. P. Moore appeared before

this grand jury on January 24, 2014. (See Indictment). Moore was then sworn

under oath by Deputy Attorney General Hart. See Rule 12.5(b)(3)(i), Ala. R. Crim.

P.; § 12-16-199, Ala. Code.; Rule 1.4(k), Ala. R. Crim. P. (stating that the term

“‘District Attorney’” … “includes the Attorney General, Deputy Attorney General,

assistant attorneys general, and others acting under the Attorney General’s specific

authority or pursuant to his supervision and direction.”). Moore’s testimony was

recorded and transcribed by an authorized court reporter. See Rule 12.6, Ala. R.

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Crim. P. Moore was indicted by the Lee County Special Grand Jury on April 23,

2014, for providing false statements and committing perjury. Accordingly, the Lee

County Special Grand Jury was authorized to bring the charges against Moore as

set forth in the Indictment, which was presented and signed by prosecutors

authorized to do so.

II. The Indictment properly charges Moore with First-Degree Perjury.

Turning to the substance of the charges against Moore, Counts two and four

in the indictment properly charge him with perjury in the first degree. The

Indictment alleges that Moore “did, in an official proceeding, to wit: the January

2014 session of the Lee County Special Grand Jury, swear falsely by making …

false statements … and such false statements were material to the proceeding.”

(Indictment, Counts 2 & 4). Both perjury counts also specifically set forth Moore’s

false statements to the grand jury.

Count two includes the portion of Moore’s testimony where he falsely

asserts that he has not heard and was not aware that Speaker Hubbard threatened to

use his position as Speaker to harm economic development in Coffee County if

Moore’s Republican Primary opponent, Josh Pipkin, did not drop out of the race:

MH:2 Okay. But to your knowledge, the Speaker hasn't made any assertions to anyone that he was going to impede incentives to keep them here in order to keep people out of a primary race?

2 “MH” refers to Deputy Attorney General Matt Hart, and “BM” refers to the defendant, Barry Moore.

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BM: No, sir. He's trying actually to get the deal done. And from what I heard, it's now in the -- the actual company's ball park. In other words – MH: Okay. In that – BM: To try to get them to stay. But they've got -- they've got to figure out their finance. I don't know. It's something -- they're trying to work out something with the banks to -- to get them to stay in Alabama. MH: Okay. BM: But I haven't heard anything else.3

(Indictment, Count 2). Likewise, Count four similarly sets forth the portion of Moore’s testimony

wherein he denies relaying the Speaker’s threat to Pipkin:

MH: Okay. Now, Mr. Pipkin -- you've never said to Mr. Pipkin, hey, if you'll promise to stay out of this race, or words to that effect -- if you'll promise to stay out of this race, I'll go back to Speaker Hubbard and tell him that you're out and be sure that he does this economic incentive thing for us? BM: No, sir. I told him -- I said, if you -- if you -- it was up to him if you want to run. But in my opinion, we were -- I was going to do everything I could to make the deal happen, just to keep the jobs. MH: Okay. And -- and you didn't assert to him that if he promised to stay out, that you would encourage the Speaker not to do this threat the Speaker had –

3 The Indictment specifically identifies the charged false statements further by setting them out in boldface and underlined font.

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BM: No, sir. I – MH: -- allegedly made? BM: I told him I couldn't -- you know, I can't control the Speaker. I don't have any control in that area. But I was going to do everything I could to make the deal happen. MH: Okay. And you didn't assert to him that the Speaker had, in fact, made that threat? BM: No, sir.4

(Indictment, Count 4).

Accordingly, the indictment clearly and succinctly includes all of the

elements of first-degree perjury and details exactly how Moore lied under oath –

namely, that Moore falsely stated that he neither heard about nor told Pipkin that

the Speaker had threatened to harm economic development in Coffee County if

Pipkin refused to drop out of the primary race. To be clear, Alabama law merely

requires an indictment to contain “a statement of legal conclusion” and “it is not

required that an indictment plead evidentiary facts necessary to a conviction.” Rule

4 The questions asked and the answers given are absolutely clear. The statements in the Indictment, as well as the context of Moore’s entire statement, make it abundantly clear that Moore denied any knowledge of or role in the threats made by the Speaker to harm economic development in Coffee County if Pipkin did not withdraw his primary challenge against Moore. Moore’s own testimony makes clear that he understood the questions, and his answers were unequivocal denials of his and the Speaker’s role in the possible threats to Pipkin. Accordingly, Moore’s argument that the “[q]uestions posed to the Defendant … were compound, vague, incompetently worded, and cannot be made the basis of a lawful indictment” is incorrect. (Motion, at ¶40).

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13.2, Ala. R. Crim. P., Committee Comments (citing Hochman v. State, 91 So.2d

500, 501 (Ala. 1956)).

Notwithstanding this fact, Moore argues that the perjury charges should be

dismissed because the Indictment is supposedly defective in some manner. (See

Motion, at ¶¶1-14) (stating that “[t]he indictment … does not allege” that Moore

“was placed under oath” or “duly sworn to testify”). This argument overlooks the

fact that an indictment “is sufficient [if it] substantially follows the language of the

statute, provided the statute prescribes with definiteness the constituents of the

offense.” Ex parte Allred, 393 So.2d 1030, 1032 (Ala. 1980).

Moreover, the specific additional facts Moore seeks are unnecessary for

another reason. The Indictment alleges that Moore did “swear falsely” while

testifying before the grand jury. The Code of Alabama specifically defines the

term “swear falsely” as “[t]he making of a false statement under oath … which

the [witness] does not believe to be true.” § 13A-10-100(b)(1), Ala. Code

(emphasis added). As such, the wording of the indictment necessarily includes the

allegation that Moore was in fact under oath, that the oath was properly

administered by a person with authority to do so, and that he lied under oath. The

State is not required to plead these evidentiary facts in the Indictment – instead, it

need only state the “legal conclusion” that Moore did “swear falsely.” Rule 13.2,

Committee Comments. The Indictment is also otherwise sufficient because it

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“substantially follows the language of the statute”, which includes those terms

specifically defined by the Code of Alabama. Ex parte Allred, 393 So.2d at 1032.

As such, Moore’s argument is without merit and his Motion is due to be denied on

its face.

III. Moore has failed to show that Section 36-15-62.1 is unconstitutional.

Moore next makes the barebones and unsupported assertion that § 36-15-

62.1, Ala. Code is unconstitutional. (See Motion, at ¶¶15-17, 21-23). Moore’s

entire argument that this section is unconstitutional consists of a one-sentence

conclusory allegation with no authority or even any argument. Moore’s lack of

any legal or factual basis on this point is particularly glaring because Moore has

the burden of proving that Section 36-15-62.1 is unconstitutional. See State v.

Spurlock, 393 So. 2d 1052, 1055-56 (Ala. Crim. App. 1981) (“[The Alabama Court

of Criminal Appeals] will not hold [statutes] unconstitutional unless convinced

beyond a reasonable doubt of their unconstitutionality. The party challenging the

constitutionality of a statute has the burden of establishing its invalidity.”)

(emphasis added). For that reason, Moore’s groundless challenge is insufficient to

overcome the “presumption…that statutes are constitutional.” Spurlock, 393 So. 2d

at 1055.

Even if Moore had asserted any grounds to support his challenge, he would

still be unable to satisfy his heavy burden. Section 36-15-62.1 makes it a crime to

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provide false statements relating to any matter under investigation by the Attorney

General. This legislation was passed during the 2011 Regular Session of the

Alabama Legislature. See Ala. Act 2011-574 (H.B. 463). It was first introduced on

April 6, 2011, by Representative Mike Ball, a former ABI Agent. Id. Even though

Moore challenges the constitutionality of the statute here, it is notable that

Representative Moore voted in favor of the bill each and every time in was put to a

vote in the House of Representatives.5 Following its passage by the House and

Senate, Section 36-15-62.1 was duly-enacted and signed into law by the Governor

in June 2011. Thus, this statute is presumed to be constitutional and Moore has not

provided any legal or factual reason to overcome that presumption.

Moreover, this statute is similar in nature to several federal laws which have

been held to be constitutional under the U.S. Constitution. See, e.g., Brogan v.

United States, 522 U.S. 398 (1998) (upholding constitutionality of statute (18

U.S.C. § 1001) making it a crime to make false statements to federal investigators

“because the Fifth Amendment does not confer a privilege to lie.”); United States

v. Apfelbaum, 445 U.S. 115 (1980) (upholding constitutionality of statute (18

U.S.C. § 1623) making it a crime to make false statements to a federal grand jury);

United States v. Lippman, 492 F.2d 314 (6th Cir. 1974), cert. denied 419 U.S. 1107

5 http://alisondb.legislature.state.al.us/acas/ACTIONHistoryResultsMac.asp?OID=72914&LABEL=HB463

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(holding that federal obstruction of justice statute (18 U.S.C. § 1510) is not

unconstitutionally vague or overly broad).

Accordingly, Moore’s Motion is due to be denied on its face because he

failed to satisfy his burden challenging the constitutionality of Section 36-15-62.1.

Again, Moore either has no basis to satisfy his burden or he intends to surprise the

State (and the Court) with his actual arguments at a hearing. In any event, this

Court should simply deny the Motion on its face.

IV. Moore was properly charged by the same grand jury that heard his false testimony. Moore next asserts – without any explanation or argument – that the

indictment is in violation of § 12-16-207, Ala. Code. (Motion, at ¶¶34-35). That

Section states:

(a) A grand juror must not be present at or take any part in the deliberations of his fellow jurors respecting any public offense with which he is charged or which was committed against his person or property or when he is a prosecutor or when he is connected by blood or marriage with the person charged. (b) If, by reason of the provisions of subsection (a) of this section, the number of grand jurors is reduced below 13 in the investigation of any matter, the court must supply the deficiency from the qualified jurors of the county, and the persons so placed on the grand jury must serve only during such investigation.

§ 12-16-207, Ala. Code. It appears that Moore is attempting to argue that the Lee County Special

Grand Jury was powerless to indict him for the charged offenses because Moore’s

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false statements were made during his testimony before that same grand jury.

Moore’s argument that the charges offenses were “committed against [a grand

juror’s] person or property” is nonsensical. § 12-16-207(a), Ala. Code.

A grand jury has the power “over all indictable offenses found to have been

committed or to be triable within the county, and shall have authority to return

indictments for all such offenses.” Rule 12.3(d), Ala. R. Crim. P. Here, the Lee

County Special Grand Jury had the power to indict Moore because he perjured

himself and provided false testimony before that same grand jury. See United

States v. Two Eagle, 318 F.3d 785, 793 (8th Cir. 2003) (“No sound reason is

advanced ... for departing in this case from the settled practice of permitting the

same grand jury which heard the witness to file an indictment charging him with

perjury.”) (emphasis added).

Furthermore, the offenses were not against any grand jurors’ “person or

property.” Instead, the crime of perjury results in harm to society and the proper

administration of the justice system. See Bogle v. State, 477 So.2d 507, 509 (Ala

Crim. App. 1985) (noting that perjury is “a crime which frustrates and assaults the

very basis of our system of criminal justice. Indeed, a crime which, according to

Ralph Waldo Emerson, is ‘not only a sort of suicide in the liar, but ... a stab at the

health of human society.’”); § 13A-10-1, et seq, Ala. Code (categorizing perjury

under the chapter heading “Offenses Against Public Administration”); see also

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United States v. Mandujano, 425 U.S. 564, 576 (1976) (“Perjured testimony is an

obvious and flagrant affront to the basic concepts of judicial proceedings.”);

United States v. McCoy, 242 F.3d 399, 409 (D.C. Cir. 2001) (“It is well-recognized

that the societal interest harmed by perjury is the integrity of the legal system.”);

As such, Moore’s argument that the grand jury was the victim and therefore had no

power to indict him is without merit.

V. The charges in the Indictment are not multiplicitous because each of the false statements concern a different material fact.

Moore also makes the unsupported claim that the Indictment is in violation

of Dill v. State, 723 So. 2d 787 (Ala. Crim. App. 1998), because it includes

“separate charges” for the two false statements at issue in this case. (Motion, at

¶¶41-42). Moore once again misconstrues Alabama law. In Dill v. State, the Court

of Criminal Appeals held that “[e]ach false statement under oath concerning a

different material fact constitutes a separate and distinct violation, and thus may be

charged in separate counts even though made during the same testimony.” 723 So.

2d at 808-09 (internal citations, quotations, and alterations omitted). The Court of

Criminal Appeals made it clear that “[a]n indictment charging separate counts for

each violation of the same criminal statute is not multiplicitous.” Id.

The charges against Moore do not violate the Court’s holding in Dill. Here,

the Indictment charges Moore with making two false statements about two

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materially different facts.6 First, Moore’s statement that he had not heard that

Speaker Hubbard had threatened to harm economic development in Coffee County

if Pipkin did not withdraw his primary challenge against Moore was a materially

false statement. Second, and separate from this charge, is Moore’s equally false

statement that he did not, in fact, have a conversation with Pipkin where he

expressly communicated this threat to Pipkin. Under no fair reading of Moore’s

statement can these charges be characterized as multiplicitous. As such, Moore’s

argument to dismiss the charges fails yet again.

VI. The prosecutors are neither “witnesses” nor “victims” in this case. In yet another challenge to the prosecutors in this case, Moore further

contends that Counts one and three are defective because “[t]he appearance of W.

Van Davis, Miles M. Hart and Michael B. Duffy as both ‘witnesses’ or ‘victims’

and also as prosecutors is improper and therefore the indictment is fatally flawed.”

(Motion, at ¶¶36-38). Moore once again misinterprets the statutes with which he

has been charged. Section 36-15-62.1, the crime charged in Counts one and three,

states, in relevant part:

Any person who knowingly commits any of the following in any matter under investigation by the Attorney General, or a prosecutor or investigator of his or her office, upon conviction shall be guilty of a Class C felony:

6 Each false statement was charged under two criminal statues: perjury and providing false statements in a matter under investigation by the Attorney General. Moore apparently concedes that it was proper to do so. (See Motion, at ¶¶41-42).

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(2) Making a materially false, fictitious, or fraudulent statement or representation.

§ 36-15-62.1(2), Ala. Code (emphasis added). Tracking the language of the statute, the Indictment thus alleges that Moore

“did, in a matter under investigation by the Attorney General or prosecutors of his

office, to wit: Acting Attorney General W. Van Davis and/or Deputy Attorney

General Miles M. Hart and/or Deputy Attorney General Michael B. Duffy,

knowingly make a materially false, fictitious, or fraudulent statement or

representation…”. (Indictment, Counts 1 & 3) (stating the same false statements

made by Moore in Counts 2 & 4); (see supra, at pp. 6-7).

As the statute and the Indictment make clear, the identification of the

prosecutors is for the purpose of showing which “prosecutor” is conducting the

“matter under investigation by the Attorney General.” § 36-15-62.1. In other

words, identifying the prosecutors is not to show that they are “witnesses” or

“victims” to the crime; rather, it shows the identity of the prosecutors investigating

the matter on behalf of the Attorney General. The victim of these crimes is the

State of Alabama and the administration of justice in general. The inclusion of the

names of the prosecutors merely puts Moore on notice of the specific crimes with

which he has been charged.

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Moreover, the testimony of a witness or victim will not be necessary to

convict Moore of Counts one and three – instead, the certified copy of the court

reporter’s transcript of Moore’s grand jury testimony is all that would be required.

See Rule 902, Ala. R. Evid. (self-authentication); see also § 12-16-216, Ala. Code

(“. . . nor shall the State of Alabama be precluded from using grand jury testimony

to prosecute a perjury warrant or indictment . . .”).7 Accordingly, the prosecutors

are neither “witnesses” nor “victims” in this case.8

VII. Moore’s mere factual conclusions cannot serve as a basis for dismissing the Indictment. Throughout his Motion, Moore makes factual conclusions that cannot even

be considered as grounds for dismissal. (See Motion at ¶¶18-20, 24-25, 39-40).

Under Alabama law, “[a] motion to dismiss the indictment may be based upon

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

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

charge an offense.” Rule 13.5(c)(1), Ala. R. Crim. P.; see State v. Foster, 935 So.

7 Even if the transcript is not self-authenticating, then the only witness required would be the grand jury court reporter to testify to the authenticity of the transcript. And, to the extent necessary, any grand juror would be competent to testify as well. See State ex rel. Baxley v. Strawbridge, 296 So. 2d 779, 781 (Crim. App. 1974) (“But for impeachment of a witness, or perjury, a grand juror may be required to disclose the testimony of any witness examined by that body.”). 8 Moore’s citation to Ervin v. State, 442 So. 2d 123 (Ala. Crim. App. 1983) as grounds for dismissal is equally unavailing. (Motion, at ¶37). In that case, the Court remanded to the trial court to determine if the grand jury foreman, who was also the law partner of the assistant district attorney, obtained any “confidential information.” Ervin v. State, 442 So. 2d at 125. This case has no application whatsoever here and Moore’s Motion makes no effort to support this argument.

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2d 1216 (Ala. Crim. App. 2005) (“The State is correct in its contention that Rule

13.5(c)(1) does not provide for the dismissal of an indictment based on the

insufficiency of the evidence or, as in this case, a possible lack of evidence.”);

State v. Bethel, 55 So. 3d 377, 379 (Ala. Crim. App. 2010) (“Rule 13.5 does not

permit the dismissal of an indictment based on insufficient evidence.”).

In view of that Rule, Moore’s unsupported assertions, including that he “was

materially honest with his statements to the prosecutors and to the Grand Jury”,

cannot serve as a basis for the dismissal of the indictment. (Motion, at ¶¶24-25,

39). Essentially, Moore claims the Indictment here is defective and should be

dismissed because “he didn’t do it.” That is, of course, a defense Moore can assert

at trial. He may not, however, use that as a basis to dismiss the charges before a

jury has heard all of the evidence.

VIII. Moore’s false statements were material.

Likewise, Moore’s apparent attack on the materiality of his false statements

is also not sufficient to warrant dismissal of the charges. (See Motion, at ¶¶18-20).

A statement is “material” if it “could have affected the course or outcome of the

official proceeding.” § 13A-10-100(b)(2), Ala. Code (1975); see Ikner v. State, 600

So.2d 435, 437 (Ala. Crim. App. 1992) (“The prosecution is not required to prove

that the false statements actually influenced the outcome of the prior proceeding;

the determinative inquiry for materiality is whether the false testimony was

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capable of influencing the tribunal on the issue before it. Mere potential

interference with a line of inquiry is sufficient to establish materiality.”) (internal

citations and quotations omitted) (emphasis added).

Here, the grand jury’s inquiry into Moore’s knowledge of or role in the

Speaker’s possible threats to Pipkin (through Moore) is entirely legitimate and

material. At a minimum, Moore’s false testimony on this issue potentially

interfered with this line of inquiry. See Ikner, 600 So. 2d at 437; see also United

States v. Howard, 560 F.2d 281, 284 (7th Cir. 1977) (“[F]alse testimony before the

grand jury is material if it has the natural effect or tendency to impede, influence or

dissuade the grand jury from pursuing its investigation. Merely potential

interference with a line of inquiry is sufficient to establish materiality, regardless

of whether the perjured testimony actually serves to impede the investigation.

This broad formulation of materiality recognizes and preserves the historic

extensiveness of the investigatory powers of the grand jury.”) (internal citations

and quotations omitted) (emphasis added). As such, Moore’s false statements to

the grand jury were material and his Motion is due to be denied.

IX. Moore’s Motion to Dismiss is due to be denied on its face.

Moore has failed to articulate a single defect in any of the four charges set

out in the Indictment. His Motion fails to explain or support any of the asserted

grounds for dismissal. Moore’s mere reference or citation to Alabama law is

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simply insufficient to warrant a dismissal of the crimes with which he has been

charged. Moore either has no basis for his Motion or simply intends to raise his

actual arguments for the first time orally at the hearing. In contrast, the State has

shown that the Indictment is proper in every material aspect, as it clearly and

sufficiently states the charges against Moore. The State therefore respectfully

requests that this Court enter an Order denying the Motion to Dismiss on its face,

which would render the hearing set for May 20, 2014, moot.

CONCLUSION

For the reasons set forth above, defendant Felix Barry Moore’s Motion to

Dismiss is due to be denied.

Respectfully submitted this 8th day of May 2014.

W. VAN DAVIS ACTING ATTORNEY GENERAL /s/ Michael B. Duffy Michael B. Duffy Deputy Attorney General mduffy@ago.state.al.us

OF COUNSEL: W. Van Davis Acting Attorney General 423 23rd St. North Pell City, AL 35125-1740 vandclaw@centurylink.net

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Miles M. Hart Chief, Special Prosecutions Division mhart@ago.state.al.us OFFICE OF THE ATTORNEY GENERAL STATE OF ALABAMA 501 Washington Avenue P.O. Box 300152 Montgomery, AL 36130-0152 (334) 242-7300 (334) 242-4890 – FAX

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CERTIFICATE OF SERVICE

I hereby certify that I have, this the 8th day of May 2014, electronically filed the foregoing using the AlaFile system which will send notification of such filing to the following registered persons, and that those persons not registered with the AlaFile system were served a copy of the foregoing by U. S. mail:

Gregory B. McCain, Esq. P.O. Box 1331 Dothan, Alabama 36302-1331 (334) 673-8522 Office (334) 673-1422 Fax gmccain@graceba.net Derek E. Yarbrough, Esq. Motley Motley & Yarbrough, LLC 117 East Main Street Dothan, Alabama 36301-1721 (334) 793-0051 Office (334) 793-9845 Fax motley@graceba.net William J. Baxley, Esq. Joel E. Dillard, Esq. Baxley, Dillard, Mcknight & James 2008 Third Avenue South Birmingham, AL 35233 Telephone: 205.271.1100 Telecopier: 205.271.1108 BBaxley@BaxleyDillard.com JDillard@BaxleyDillard.com /s/ Michael B. Duffy

Deputy Attorney General

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