A.P.S. v. State of Alabama

Rel: December 16, 2022

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) 229-0649), of any typographical or other errors, in order that corrections
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Alabama Court of Criminal Appeals
OCTOBER TERM, 2022-2023
_________________________

CR-21-0024
_________________________

A.P.S.

v.

State of Alabama

Appeal from Blount Juvenile Court
(JU-18-7.01)

On Application for Rehearing

McCOOL, Judge.

This Court's opinion issued on August 5, 2022, is withdrawn, and

the following opinion is substituted therefor.

A.P.S. appeals an order of the Blount Juvenile Court transferring

him to the Blount Circuit Court for prosecution as an adult on a charge
CR-21-0024

of capital murder. For the reasons set forth herein, we reverse the

transfer order and remand the case for further proceedings.

Facts and Procedural History

Around midnight on December 15, 2017, Ricardo Santiago Gonzalez

and Adalberta Chavez Ruiz were murdered in their residence; the

murder weapon was a handgun. In January 2018, Gonzalez and Ruiz's

17-year-old son Leo Chavez was charged with capital murder in

connection with his parents' deaths. 1 In a delinquency petition filed that

same month, A.P.S., who was 14 years old when the murders occurred,

was also charged with capital murder. The State subsequently filed a

motion to transfer A.P.S. to the circuit court for prosecution as an adult.

See § 12-15-203(a), Ala. Code 1975. Before the transfer hearing occurred,

Chavez was convicted of capital murder and was sentenced to life

imprisonment without the possibility of parole.

As with all transfer hearings, the transfer hearing in this case

consisted of two phases: (1) a probable-cause phase, during which the

1"This Court may take judicial notice of its own records." Doster v.
State, [Ms. CR-20-0300, December 17, 2021] ___ So. 3d ___, ___ n.1 (Ala.
Crim. App. 2021).

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juvenile court was required to determine "whether there is probable

cause to believe that [A.P.S.] committed the alleged crime," and (2) a

dispositional phase, during which the juvenile court was required to

determine "whether it is in the best interest of [A.P.S.] or the public to

transfer [A.P.S.] to the circuit court to stand trial as an adult." J.S.A. v.

State, 615 So. 2d 1288, 1290 (Ala. Crim. App. 1993). The State's only

witness at the probable-cause phase of the transfer hearing was

Investigator Leonard Chambless of the Blount County Sheriff's

Department, whose testimony provided the following facts.

On December 17, 2017, Inv. Chambless responded to Gonzalez and

Ruiz's residence because members of Ruiz's family had found blood in the

residence and had filed a missing-persons report. Upon entering the

residence, Inv. Chambless found "a blood-soaked couch," "a chunk of hair

and scalp on the top of the stove," and "bags of bloody rags and a bloody

mop." (R. 27-28.) Neither Gonzalez nor Ruiz was in the residence, and

two vehicles – a Chevrolet S-10 truck and a Cadillac Escalade sport-

utility vehicle – were missing from the property.

Two days later, law enforcement officers in Chattanooga,

Tennessee, stopped Chavez while he was driving the Escalade and took

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him into custody, and the officers subsequently found the S-10 truck,

which was also in Tennessee. After obtaining a search warrant, Inv.

Chambless searched both vehicles and found blood in the bed of the S-10

truck and various receipts in both the truck and the Escalade;

Chattanooga law enforcement officers also found two handguns in the

Escalade when they arrested Chavez. However, according to Inv.

Chambless, at the time of the transfer hearing it was "undetermined"

whether either of those handguns had been used to murder Gonzalez and

Ruiz. (R. 94.)

Based on the receipts he found in the vehicles, Inv. Chambless

obtained surveillance videos from a Mapco gasoline service station in

Collinsville and a Cricket brand cellular-telephone store in Oneonta. The

surveillance video from the Mapco service station reflects that, at some

unspecified time on the morning of December 16, 2017 – after Gonzalez

and Ruiz had been murdered – both the S-10 truck and the Escalade were

at the service station, and A.P.S. can be seen on that video. (R. 37.) The

surveillance video from the Cricket store reflects that Chavez, A.P.S., and

Jose Villanueva were in the store on the morning of December 17, 2017,

and that Chavez made a purchase with his father's credit card. (R. 38-

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CR-21-0024

40.) However, the receipt for that purchase indicated that the purchase

occurred on December 16, 2017, at 7:24 p.m. (R. 43-44.) No explanation

was provided for the discrepancy between the time stamp on the

surveillance video and the time stamp on the receipt.

As part of his investigation, Inv. Chambless spoke with Jose

Valadez, and the State asked Inv. Chambless to testify to the substance

of Valadez's out-of-court statement. A.P.S. objected to the admission of

Valadez's statement on the grounds that the statement was hearsay and

that the admission of the statement would violate his right to confront

the witnesses against him. The juvenile court overruled that objection,

and Inv. Chambless testified as follows regarding Valadez's statement:

"[Valadez] said he went to Villanueva's house and
picked up Villanueva and [A.P.S.] on or about the 15th of
December. They went to [Chavez's] house sometime around
midnight-ish. When they got to [Chavez's] house, [Valadez]
stayed in the car. [A.P.S.] and Villanueva exited the vehicle
and went in the house. [Valadez] heard gunshots. Then they
came and got him and brought him into the house at which
point he saw [Chavez's] mom and dad dead in the house. Dad
was on the couch and mom on the floor. They cleaned up as
best they could. They put the two bodies in a white S-10
pickup, took them out and buried them."2

2InFebruary 2022, Valadez pleaded guilty to abuse of a corpse and
was sentenced to 10 years' imprisonment. (Supp. C. 6.)

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CR-21-0024

(R. 85.) On cross-examination, Inv. Chambless testified that A.P.S.'s

DNA was not on either of the handguns found in the Escalade and that

there was no physical evidence that connected A.P.S. to the murders of

Gonzalez and Ruiz. (R. 91, 95.)

Following Inv. Chambless's testimony, the juvenile court conducted

the dispositional phase of the transfer hearing and, following that phase,

took the matter under advisement. In an order issued on October 1, 2021,

the juvenile court found that there was probable cause to believe A.P.S.

had committed capital murder and transferred him to the circuit court

for prosecution as an adult. A.P.S. filed a timely notice of appeal.

Discussion

On appeal, A.P.S. claims that the juvenile court's transfer order

must be reversed because, he says, the court erred by allowing Inv.

Chambless to testify to the substance of Valadez's out-of-court statement.

In support of that claim, A.P.S. argues that Valadez's statement was

hearsay and that the admission of the statement violated his right to

confront the witnesses against him. See U.S. Const., Amend. VI ("In all

criminal prosecutions, the accused shall enjoy the right … to be

confronted with the witnesses against him."); and § 12-15-202(f)(3), Ala.

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Code 1975 (providing that, in a juvenile-transfer hearing, the accused

"has the right to confront all witnesses against the child, subject to

limitations recognized by the United States Supreme Court").

Before transferring an accused juvenile to the circuit court for

prosecution as an adult, a juvenile court " 'must determine that there is

probable cause that the child committed the alleged offense.' " D.M. v.

State, [Ms. CR-20-0261, Oct. 8, 2021] ___ So. 3d ___, ___ (Ala. Crim. App.

2021) (quoting J.F.B. v. State, 729 So. 2d 355, 356 (Ala. Crim. App.

1998)). See Duncan v. State, 394 So. 2d 930, 932 (Ala. 1981) ("The finding

of probable cause is an essential element of the decision to transfer."). "In

a juvenile transfer hearing, hearsay evidence is admissible to show that

there is probable cause that the accused committed the crime, but it

cannot constitute the sole basis for a finding of probable cause." Q.J.S. v.

State, 12 So. 3d 164, 165 (Ala. Crim. App. 2008). However, pursuant to

§ 12-15-202(f)(3), the Alabama Legislature has provided an accused

juvenile with a statutory right to confront the witnesses against him in a

transfer hearing. Thus, " 'hearsay evidence that violates the child's right

of confrontation may not even be admitted, much less constitute the sole

basis for a finding of probable cause to transfer the child to circuit court.' "

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C.E.B. v. State, 661 So. 2d 786, 787 (Ala. Crim. App. 1994) (quoting O.M.

v. State, 595 So. 2d 514, 518 (Ala. Crim. App. 1991)) (emphasis added).

See also W.T.J. v. State, 665 So. 2d 1019, 1022 (Ala. Crim. App. 1995)

(" 'The Alabama Supreme Court has made it clear that evidence which

could not be constitutionally admitted at a criminal trial should be

excluded from a transfer hearing.' " (quoting O.M., 595 So .2d at 517

(citing Ex parte Whisenant, 466 So. 2d 1006, 1008 (Ala. 1985))).

The Confrontation Clause of the Sixth Amendment to the United

States Constitution " 'prohibits the admission of … testimonial hearsay

[statements offered for the truth of the matter asserted],' " Turner v.

State, 115 So. 3d 939, 943 (Ala. Crim. App. 2012) (quoting Crawford v.

Washington, 541 U.S. 36, 53 (2004)), "unless the declarant is unavailable

and the defendant has had a prior opportunity to cross-examine the

declarant." Ex parte Phillips, 287 So. 3d 1179, 1207 (Ala. 2018) (citing

Crawford, supra). Thus,

" 'when offered for the truth of the matter asserted, a
nontestifying codefendant's statement to police implicating
the accused in the crime is inadmissible against the accused;
it does not fall within any recognized exception to the hearsay
rule and ... its introduction violates the accused's
confrontation rights. See Lee v. Illinois, 476 U.S. 530, 106 S.
Ct. 2056, 90 L. Ed. 2d 514 (1986); Bruton v. United States,
391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968); R.L.B.

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CR-21-0024

v. State, 647 So. 2d 803 (Ala. Crim. App. 1994); Ephraim v.
State, 627 So. 2d 1102 (Ala. Crim. App. 1993).' "

C.L.H. v. State, 121 So. 3d 403, 406 (Ala. Crim. App. 2012) (quoting

Jackson v. State, 791 So. 2d 979, 1024 (Ala. Crim. App. 2000)).

In this case, the State does not contend that Valadez was

unavailable to testify at the transfer hearing; indeed, the State conceded

during oral argument before this Court that Valadez "was apparently

available for testimony." The State also conceded during oral argument

that Valadez's out-of-court statement was testimonial hearsay, and it

clearly was because it was offered for the truth of the matter asserted,

i.e., that A.P.S. murdered Gonzalez and Ruiz or participated in their

murders. Thus, Valadez's statement was inadmissible at the transfer

hearing because its admission violated A.P.S.'s right to confront the

witnesses against him. See C.E.B., 661 So. 2d at 787 (holding that an

investigator's testimony regarding "statements made by others

implicating the appellant" was not admissible in a transfer hearing). 3

3We recognize that this Court has previously acknowledged that
"transfer hearings are 'analogous to preliminary hearings' " in that, in
both hearings, the court must determine whether there is probable cause
to believe the accused committed the crime with which he is charged. J.L.
v. State, 826 So. 2d 205, 207 (Ala. Crim. App. 2001) (quoting O.M., 595
So. 2d at 517). However, our decision in this case has no bearing on
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CR-21-0024

However, the fact that A.P.S. was denied his right to confrontation

does not necessarily require reversal of the transfer order because " '[a]

denial of the right of confrontation may, in some circumstances, result in

harmless error.' " Floyd v. State, 289 So. 3d 406 (Ala. Crim. App. 2017)

(quoting James v. State, 723 So. 2d 776, 781 (Ala. Crim. App. 1998)). See

also Smith v. State, 898 So. 2d 907, 917 (Ala. Crim. App. 2004)

("[V]iolations of the Confrontation Clause are subject to harmless-error

analysis."). In the context of the probable-cause phase of a transfer

hearing, our harmless-error analysis necessarily requires us to consider

both the strength of the erroneously admitted evidence and the strength

of the State's remaining evidence. In cases where there is a strong

evidentiary basis for finding probable cause without the erroneously

admitted evidence, the error is likely harmless. However, in cases where

the erroneously admitted evidence is the most damning evidence against

the juvenile and the State's remaining evidence is not particularly strong,

the error is likely not harmless. This Court has previously conducted a

whether the right to confrontation is applicable in a preliminary hearing.
As this Court noted in O.M., supra: "[W]e need not decide whether or to
what extent the rights of confrontation and cross-examination exist at a
preliminary hearing because those rights apply to a juvenile transfer
hearing in Alabama by virtue of … statute." O.M., 595 So. 2d at 517.
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CR-21-0024

harmless-error analysis in other transfer cases that involved a violation

of the accused juvenile's right to confrontation, and those cases provide

helpful examples of the balancing required in such analysis.4

In D.D.P. v. State, 595 So. 2d 528 (Ala. Crim. App. 1991), this Court

held that the juvenile court had violated the four accused juveniles' right

to confrontation by admitting a "fingerprint report" that matched the

juveniles' fingerprints with fingerprints found on the victim's automobile.

D.D.P., 595 So. 2d at 533. However, as to two of the juveniles – Rodney

and Reginald – the erroneous admission of the fingerprint report was

harmless. This was so, the Court explained, because the victim had

"identified Rodney as one of her assailants and that identification, alone,

was sufficient to establish probable cause" and because Reginald's self-

incriminating statement likewise "established probable cause without

the fingerprint evidence." Id. The Court also held that the admission of

4The State directs our attention to L.L.J. v. State, 746 So. 2d 1052
(Ala. Crim. App. 1999), in which this Court stated that, "in the context of
a transfer hearing, the harmless error doctrine allows a finding of
probable cause when, after the incompetent evidence is excluded, there
is sufficient competent evidence to support a finding of probable cause."
Id. at 1058. That statement, which was dicta and has never been cited
in another case, does not precisely set forth the correct standard because
it does not appear to take into account the comparative strengths of the
erroneously admitted evidence and the State's remaining evidence.
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CR-21-0024

Reginald's statement violated the other juveniles' right to confrontation,

but the Court once again held that the error was harmless as to Rodney

because the victim's identification of Rodney "was sufficient in and of

itself to establish probable cause." Id. at 536.

In R.L.B. v. State, 647 So. 2d 803 (Ala. Crim. App. 1994), this Court

held that the juvenile court had violated R.L.B.'s right to confrontation

by admitting an out-of-court statement from one of his two accomplices,

who had implicated him in a robbery. The Court held that the error was

harmless, though, because the victim had "identified [R.L.B.] as one of

the robbers and that identification, alone, was sufficient to establish

probable cause." R.L.B., 647 So. 2d at 806.

Thus, in both D.D.P. and R.L.B., this Court held that the

Confrontation Clause violations were harmless because the State's

remaining evidence was sufficient in and of itself to establish probable

cause. At first blush, then, those cases appear to support the State's

argument that our harmless-error analysis should hinge solely on

whether the State's remaining evidence was sufficient to establish

probable cause. See note 4, supra. However, the State's remaining

evidence in D.D.P. and R.L.B. – victim identification and a self-

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incriminating statement – was at least as damning as the erroneously

admitted evidence, if not more so, and provided its own strong basis for

finding probable cause. And this Court's harmless-error analysis in other

transfer cases demonstrates that we cannot simply consider the State's

remaining evidence in a vacuum when the erroneously admitted evidence

is clearly the most damning evidence against the accused juvenile and

the remaining evidence is comparatively weak.

For example, in R.K.L. v. State, 650 So. 2d 586 (Ala. Crim. App.

1994), this Court considered whether the erroneously admitted

statement at issue in R.L.B. was harmless as to R.K.L., who was R.L.B.'s

other accomplice and was also implicated in the third accomplice's

statement. In holding that the error was not harmless as to R.K.L., the

Court noted that the victim had not been able to identify him as one of

the assailants and that, as a result, the State's only evidence against him

was evidence that "plac[ed] [him] in the company of R.L.B. shortly before

the commission of the robbery." R.K.L., 650 So. 2d at 587. The Court

held that "that evidence [was] circumstantial and [was] not sufficient in

and of itself to convince this Court that the juvenile court would have

found probable cause to transfer [R.K.L.] without a consideration of the

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[accomplice's] statement." R.K.L., 650 So. 2d at 587. In other words, the

Court did not look simply at whether that circumstantial evidence was

sufficient in and of itself to establish probable cause and, indeed, did not

say whether it was or was not sufficient in that regard. Instead, the

Court appears to have considered the relative weakness of that evidence

when compared to the strength of the accomplice's statement, and the

fact that the statement was clearly the most damning evidence against

R.K.L. precluded a finding of harmless error.

This Court conducted a similar harmless-error analysis in M.M. v.

State, 629 So. 2d 734 (Ala. Crim. App. 1993). In that case, the Court held

that the juvenile court had violated M.M.'s right to confrontation by

admitting an out-of-court statement by his half-brother in which the half-

brother claimed that M.M. "had given him a detailed account of how he

had killed the [victims]." M.M., 629 So. 2d at 735. The only other

evidence that tended to connect M.M. to the murders was a "composite

[picture] of the suspect" that "had been drawn based on descriptions

given by eyewitnesses." Id. That composite picture, which "fit[ ] [M.M.'s]

description[,] showed the perpetrator with long hair," and evidence

indicated that M.M.'s "hair had been cut and dyed by [his] girlfriend two

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days after the killings." Id. The Court held that the erroneous admission

of the half-brother's statement was not harmless because the statement

was, "beyond a doubt, the most compelling evidence presented against

[M.M.]" and was "extremely damaging to" him. Id. at 737. As in R.K.L.,

the Court made no determination as to whether the State's remaining

evidence was sufficient in and of itself to establish probable cause.

Instead, the Court's harmless-error analysis focused on the strength of

the half-brother's statement and the comparative weakness of the State's

remaining evidence. And the facts that the half-brother's statement was

clearly the most damning evidence against M.M. and that the State's

remaining evidence was not particularly strong precluded a finding of

harmless error, regardless of whether the relatively weak remaining

evidence might have been sufficient to establish probable cause.

Similarly, in O.M., supra, this Court held that the juvenile court

had violated O.M.'s right to confrontation by admitting two out-of-court

statements implicating him in the crimes of murder and arson. The

Court also held that the erroneous admission of those statements was not

harmless because the statements were the "primary evidence linking

[O.M.] to the crimes," O.M., 595 So. 2d at 516, and were thus "extremely

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damaging" to O.M. Id. at 520. Here again, the Court made no

determination as to whether the State's remaining evidence was

sufficient in and of itself to establish probable cause; in fact, the Court

did not even discuss the remaining evidence, noting only that some

witnesses had testified at the transfer hearing. Thus, as was the case in

R.K.L. and M.M., the fact that the erroneously admitted statements were

clearly the most damning evidence against O.M. precluded a finding of

harmless error.

This case is similar to R.K.L., M.M. and O.M. and is distinguishable

from D.D.P. and R.L.B. No evidence was found in either Gonzalez and

Ruiz's residence, the S-10 truck, or the Escalade that tended to connect

A.P.S. to the murders, nor were there any eyewitnesses to the murders.

The only evidence that even arguably connected A.P.S. to the murders,

other than Valadez's statement, was the fact that he was at a service

station with Chavez, the S-10 truck, and the Escalade at some

unspecified time in the 12-hour period after the murders occurred.

Regardless of whether that evidence might have been sufficient to

establish probable cause, Valadez's statement was, "beyond a doubt, the

most compelling evidence presented against [A.P.S.] at the transfer

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hearing," and there can be no serious dispute that Valadez's statement

was "extremely damaging" to A.P.S. M.M., 629 So. 2d at 737. Thus, we

are not convinced "that the juvenile court would have found probable

cause to transfer [A.P.S.] without a consideration of [Valadez's]

statement." R.K.L., 650 So. 2d at 587 (emphasis omitted). That was not

the case in D.D.P. and R.L.B., where, even without the erroneously

admitted evidence, there remained a strong evidentiary basis for finding

probable cause. Accordingly, given that Valadez's statement was clearly

the most damning evidence against A.P.S. and that the State's remaining

evidence was comparatively rather weak, this Court cannot conclude that

the erroneous admission of Valadez's statement was harmless.

A.P.S. also raises two other claims on appeal: (1) that the transfer

order is deficient because it does not reflect that the juvenile court

considered the six factors set forth in § 12-15-203(d), Ala. Code 1975, and

(2) that the juvenile court's decision to transfer him to the circuit court

for prosecution as an adult was not supported by clear and convincing

evidence. See D.M., ___ So. 3d at ___ (" '[D]uring the dispositional phase,

the court must determine by "clear and convincing" evidence whether a

transfer is in the best interest of the child or the public.' " (quoting J.F.B.

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v. State, 729 So. 2d 355, 356 (Ala. Crim. App. 1998))). We need not

address these claims because we have determined that the transfer order

must be reversed based on the violation of A.P.S.'s right to confrontation.

However, we take this opportunity to reiterate that, when a juvenile

court transfers an accused juvenile to the circuit court for prosecution as

an adult, the transfer order must reflect that the juvenile court

considered each of the six factors in § 12-15-203(d). See Ex parte S.B.,

650 So. 2d 953, 955 (Ala. 1994) (Section 12-15-203(d) " 'compels

consideration of each of the six factors and that the transfer order reflect

consideration thereof.' " (quoting Reeves v. State, 419 So. 2d 217, 218

(Ala. 1982))).

Conclusion

The admission of Valadez's out-of-court statement violated A.P.S.'s

right to confrontation, and that error was not harmless. Thus, we reverse

the transfer order and remand the case to the juvenile court for further

proceedings. If the State still desires to prosecute A.P.S. as an adult, the

juvenile court should hold another transfer hearing at which Valadez's

out-of-court statement must not be admitted. See W.T.K. v. State, 598

So. 2d 33, 35 (Ala. Crim. App. 1992) (" 'Jeopardy does not attach in a

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transfer hearing where there was no adjudicatory finding that the

juvenile was delinquent or had actually violated a criminal law.' "

(quoting Cruse v. State, 489 So. 2d 694, 696 (Ala. Crim. App. 1986))).

APPLICATION OVERRULED; OPINION OF AUGUST 5, 2022,

WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND

REMANDED.

Windom, P.J., and Kellum, Cole, and Minor, JJ., concur.

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