C.C. v. State of Alabama (Appeal from Russell Circuit Court: CC-16-489, CC-16-490, CC-16-664, CC-16-665, CC-17-774, and CC-17-775)

Rel: June 28, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

Alabama Court of Criminal Appeals
OCTOBER TERM, 2023-2024
_________________________

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C.C.

v.

State of Alabama

Appeal from Russell Circuit Court
(CC-16-664, CC-16-665, CC-16-489, CC-16-490, CC-17-774, and CC-
17-775)

McCOOL, Judge.

C.C. appeals his convictions for first-degree sodomy, see § 13A-6-63,

Ala. Code 1975; three counts of first-degree rape, see § 13A-6-61, Ala.

Code 1975; enticing a child for immoral purposes, see § 13A-6-69, Ala.

Code 1975; incest, see § 13A-13-3, Ala. Code 1975; and third-degree
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domestic violence, see § 13A-6-132, Ala. Code 1975. The trial court

sentenced C.C. to life imprisonment for his sodomy and rape convictions,

10 years' imprisonment for his enticing-a-child and incest convictions,

and 1 year's imprisonment for his domestic-violence conviction.

Facts and Procedural History

In 2016, a Russell County grand jury indicted C.C. for one count of

first-degree sodomy, one count of first-degree rape, one count of enticing

a child for immoral purposes, and one count of third-degree domestic

violence. Those sexual-offense charges were based on acts C.C. allegedly

committed against his daughter, A.G., and the domestic-violence charge

was based on an act C.C. allegedly committed against D.G., who was his

wife at the time.1 D.G. sought and was granted a divorce from C.C. at

some point after those alleged offenses occurred. The State brought C.C.

to trial on those charges in June 2017, but the trial court declared a

mistrial after the jury stated that it was unable to reach verdicts.

1At the time of the offenses that occurred in this case, A.G. and D.G.

shared C.C.'s last name, making their initials A.C. and D.C. However,
we have used the initials A.G. and D.G. because those were the victims'
initials at the time of trial.
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In August 2017, a Russell County grand jury indicted C.C. for two

additional counts of first-degree rape and one count of incest. Those

charges were also based on acts C.C. allegedly committed against A.G.

The State brought C.C. to trial a second time in July 2022. According to

the State, "[o]n the eve of his … retrial, [C.C.] moved to have the Russell

County District Attorney's Office disqualified from prosecuting his case

on the grounds that," on July 9, 2018, C.C. had "met and discussed his

case with subsequently-elected Russell County District Attorney Rich

Chancey," who at that time worked as a defense attorney, and had

"disclosed to Chancey … information of a sensitive and material nature."

(State's brief, p. 4.) The transcript of C.C.'s 2022 trial begins with the

following colloquy, which occurred after voir dire and before the jury was

selected:

"THE COURT: Let's address the issue regarding [C.C.'s]
consultation with Mr. Chancey. Over the break it's my
understanding, Mr. Chancey, you have consulted with both
the Office of Prosecution Services and the Alabama State Bar;
is that correct?

"CHANCEY: Correct.

"THE COURT: And what guidance did you receive?

"CHANCEY: Your Honor, the Office of Prosecution
Services told me they didn't have a bright line answer to that,

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and it'd be better if I called the State Bar and get an ethics
opinion. I spoke to Mr. Tripp Vickers and told him … that we
had started today's trial with voir dire and what the charge
was. I also went back and indicated that [C.C.] had said that
I had consulted -- or he had consulted with me. I'd originally
thought I had not, but, upon further review, my office was able
to go back and find [that,] on July 9, 2018, my notes indicate
that he came in, indicated the charges, indicated it was a
mistrial in 2017. And, Judge, this is all public record, so I'm
not going to state anything that wasn't. There was going to
be a July 27, 2018, docket call and an August 27, 2018, trial
date at 9:00 a.m., that Curtis Bernard was his attorney, and I
quoted him -- of course he said he wanted a trial; he wasn't
guilty -- but I quoted him a $50,000 quote, and … he said he
had a transcript. I didn't get the transcript. I said my quote
was $50,000, and that's the summary of my notes. There's
nothing in there about the facts of the case. I have no specific
recollection of this consultation, and I don't have any
information other than he indicated he was not guilty and was
going to be retried in a month from this consultation.

"THE COURT: In your notations, are there things
beyond the public things that you just stated; are there things
beyond that in your notations. Obviously, I'm not asking what
are they. I'm asking if there's anything beyond.

"CHANCEY: There's one thing, Judge, one line, but I
don't -- I don't see -- and, again, I don't know what his defense
was in the first trial, but I can show his attorneys what -- if
it's okay with him -- what he said. I've got one sentence.

"THE COURT: All right. Defense attorneys, would
[C.C.] be willing to waive any confidentiality to allow you to
view the one sentence from his consultation with Mr.
Chancey? Do you know what I'm saying?

"[LEAD DEFENSE COUNSEL]: Do you want me to look
at that?

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"[C.C.]: Uh-huh.

"THE COURT: For the record, [C.C.] said you can look
at it.

"CHANCEY: All right. So this is a screen shot of my
legal pad. There's the charge.

"(Defense counsel review Mr. Chancey's notes from
consultation.)

"THE COURT: Does that affect anything?

"[LEAD DEFENSE COUNSEL]: Judge, I did read that
last sentence. Obviously, there was some information that
was divulged from [C.C.] to Mr. Chancey, for him to write that
sentence down, on this situation. And the thing in a case of
this magnitude, Judge, just the appearance of any kind of
impropriety in and of itself causes a great deal of distress, and
we would say that there is a conflict, there was a conflict, and
that Mr. Chancey actually working to get this case … ready
for trial today does make it a situation that needs to be dealt
with, potentially even to be sent off to the [Attorney General's]
office for a trial of this magnitude. I don't think that we could
proceed based on prior consultations and prior work done and
communication between [C.C.] and Mr. Chancey, and Mr.
Chancey not being screened out of this case.

"….

"THE COURT: May I see the line?

"[LEAD DEFENSE COUNSEL]: Yes, sir.

"….

"(The court reviews the note.)

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"CHANCEY: And that's typically [a] line I get in all
consultations, used to get. I don't see how that's a defense.

"THE COURT: No, I don't see how that would be
anything. An additional question I have is, was anyone else
present during the consultation?

"[LEAD DEFENSE COUNSEL]: I believe [C.C.'s]
[current] wife was.

"THE COURT: Were they married at the time?

"(Positive response from [C.C.])

"….

"THE COURT: Well, under the Rules of Evidence, in an
action there's no spousal privilege when one of the alleged
victims is the child of one of the parties, and so any disclosures
made in the presence of the wife would be a disclosure in front
of a third party, which would further weaken the claim of any
confidentiality which would require this to be sent to the
[Attorney General's] office. Based upon Mr. Chancey's
continued assertions that he had no recollection of this, and
based on the fact, like I just said, any communications in the
presence of a third party would waive any confidentiality
issues, I'm going to find that this can proceed without having
to go to any other jurisdiction or another prosecuting office.

"[LEAD DEFENSE COUNSEL]: Judge, we'd just ask
that our objection be put into the record for the preservation
of the record.

"THE COURT: All right. Also, additionally, for purposes
of the record, … there was extensive testimony by [C.C.] in
that first trial, so unless there was something that -- well, like

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I said, Mr. Chancey's already said he doesn't have any
recollection of the consultation.

"[ASSISTANT DEFENSE COUNSEL]: Your Honor, will
you allow us … to do a mandamus because I think it's a very
vital situation right now. I know you want to go ahead and
get this over because it's been hanging around for so long, but
our client's been hanging on, too.

"THE COURT: Continue striking, and I'll think about
that, and I'll get back to you.

"[ASSISTANT DEFENSE COUNSEL]: Thank you.

"[CHANCEY2]: I don't know if this is a relevant
question, but I'm wondering is he alleging that he told me
something that is going to be -- that me, knowing it, is going
to, in any way, jeopardize his defense. Does he think he told
me something? Because, if he does, then that may be of
interest. I don't know. If he says he didn't tell me anything
that wasn't in the trial -- you know, I'm curious what the -- so
far, I don't see where he's told me anything that would create
a conflict. But is he trying to say that he told me something
that wasn't brought out in the first trial that would be of --

"THE COURT: Is that the contention, is that there were
disclosures beyond what was testified to?

"[ASSISTANT DEFENSE COUNSEL]: Well, number
one, he doesn't know what he said.

"CHANCEY: Right. Exactly.

2The court reporter attributes this statement to the trial court, but,

in context, it is clearly Chancey who is speaking.
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"[ASSISTANT DEFENSE COUNSEL]: So, if he doesn't
know what he said, he may have said something to -- I mean,
talking about a $50,000 fee, that's --

"THE COURT: Does [C.C.] know what [C.C.] said?

"[ASSISTANT DEFENSE COUNSEL]: I don't know. I
just found out about this an hour and a half ago.

"THE COURT: Well, you can ask your client.

"CHANCEY: If he's saying he told me something that
would jeopardize his trial, from my notes I don't see anything
that he said that would jeopardize the trial, but I don't see
how just the -- in my understanding the rule is a bare
consultation, alone, doesn't create a conflict. It's a
consultation, and I don't have anything to assert to the court
other than what I've shown.

"[LEAD DEFENSE COUNSEL]: My understanding
from [C.C.] is that all of the information that was divulged to
me in preparation for his defense, he had talked about during
the consultation.

"THE COURT: All the information that he's divulged to
you in your preparation for this trial, he divulged to Mr.
Chancey in a single consultation? How long have you been
representing [C.C.]?

"[LEAD DEFENSE COUNSEL]: I've represented [C.C.]
now since 2020.

"THE COURT: Okay. For two years how many times
have you met with [C.C.]?

"[LEAD DEFENSE COUNSEL]: I've met with him
several times, Judge. I can't -- I guess I can't pick a number
off the top of my head what that was, but --

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"THE COURT: Have you met with him more than four
hours?

"[LEAD DEFENSE COUNSEL]: -- but, the first time he
met with me, it was for a good bit, Judge, where we talked
about a lot of the things that -- included in this trial.

"THE COURT: You just stated that he disclosed to Mr.
Chancey, in a single consultation, everything that he's
disclosed to you. How many hours have you met with [C.C.]?

"….

"[LEAD DEFENSE COUNSEL]: I think, total, we might
have spent maybe 20 hours or so.

"THE COURT: And I'm sure it wasn't a 20-hour
consultation?

"CHANCEY: I've never had one, Judge, that -- 30
minutes.

"THE COURT: Keep striking the jury.

"(A jury was struck outside the presence of the court
reporter.)

"THE COURT: Before we address the Batson[3] [claim],
I'm not going to suspend the proceedings to allow the filing of
a [petition for a] writ of mandamus, but, you know, obviously
you can file whatever you feel necessary.

"[LEAD DEFENSE COUNSEL]: Yes, sir."

3Batson v. Kentucky, 476 U.S. 79 (1986).

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(R. 3-13.) It does not appear that C.C. filed a petition for a writ of

mandamus regarding the recusal issue.

The State's evidence at trial tended to establish the following facts.

On January 10, 2016, D.G. went shopping while A.G., who was 15 years

old, was at home watching television with C.C. and her older brother,

B.G., who was 17 years old. When D.G. arrived home, her family was no

longer watching television, so she went to the bedroom she shared with

C.C., expecting to find him taking a nap. Instead, when D.G. went into

the bedroom, she saw C.C. standing next to the bed, A.G. lying on the

bed, and both C.C. and A.G. were "naked from the waist down." (R. 335.)

D.G. screamed when she saw C.C. and A.G. in the bedroom, and C.C.

began attempting to "push[ ] [her] out of the bedroom." (R. 342.)

However, D.G. managed to "get [her] leg … wedged in the door" (R. 346),

and C.C. began "slamming [the] door as hard as he [could] … on [her]

upper right thigh." (Id.) B.G. was playing video games in his bedroom at

that time, and, when he heard D.G. scream, he ran to his parents'

bedroom. B.G. confirmed that C.C. was "slamming the [bed]room door as

hard as he [could] on [D.G.'s] leg," and he also confirmed that both C.C.

and A.G. were "naked from the waist down." (R. 54.) Together, D.G. and

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B.G. were able to force their way into the bedroom, where D.G. began

"lecturing" C.C. about what she believed was inappropriate behavior. (R.

357.) According to D.G., C.C. claimed that he and A.G. were naked from

the waist down because A.G. had vomited, but neither D.G. nor B.G.

smelled vomit, and A.G. said: "Mama, I didn't throw up." (R. 359.) D.G.,

A.G., and B.G. then ran from the house and sought help from a neighbor,

who telephoned 911.

A.G., who was 21 years old at the time of trial, testified that the

reason she was partially naked in her parents' bedroom on January 10,

2016, was because C.C. had instructed her to go into the bedroom and

remove her clothes. A.G. also testified that C.C. had "put his penis inside

of [her] vagina" on that occasion (R. 498), and she testified that that was

not the first time C.C. had sexually assaulted her. According to A.G., on

three separate occasions in November and December of 2015, C.C. had

instructed her to go into her parents' bedroom and undress, had put his

penis "in her butt" (R. 482) on the first of those occasions, and had put

his penis in her vagina on the other two occasions.

In March 2016, A.G. was diagnosed with chlamydia, a sexually

transmitted disease, and she testified that she had contracted the disease

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as a result of "sexual contact with [her] dad." (R. 515.) Sgt. Mark Rogers

of the Phenix City Police Department testified that, after he was

informed of A.G.'s diagnosis, he contacted Teresa Dyer, a nurse at the

Russell County jail, and asked her to take a urine sample from C.C.,

which, when tested, reflected that C.C. was "positive for chlamydia." (R.

201.)

Discussion

C.C. raises three claims on appeal that, he says, entitle him to relief

from his convictions and sentences. We address each claim in turn.

I.

C.C. argues that the trial court erred by ruling that "the [Russell

County] District Attorney's Office was not required to recuse itself from

trial" and by "failing to suspend trial to allow [his] counsel to file a

[petition for a] writ of mandamus." (C.C.'s brief, p. 10.) According to C.C.,

recusal was required because he had consulted with Chancey about his

pending charges in 2018, before Chancey was elected to serve as the

Russell County district attorney. 4 In support of his claim, C.C. cites

4The State claims in its brief to this Court that Chancey did not

begin serving as the Russell County district attorney until December
2022, approximately five months after C.C.'s July 2022 trial. Thus, the
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Hannon v. State, 48 Ala. App. 613, 266 So. 2d 825 (1972), and Smith v.

State, 639 So. 2d 543 (Ala. Crim. App. 1993).

In Hannon, the trial court appointed three public defenders,

including Randy Butler, Jr., to represent Michael Hannon, who was

charged with robbery. Butler, however, did not actually represent

Hannon in his first trial, which ended in a mistrial. In his second trial,

Hannon was represented by a different public defender, who moved to

dismiss the charges, or, alternatively, for a change of venue, based on the

fact that Butler was by that time the Mobile County district attorney.

"A full blown hearing was had and testimony taken. It
developed that Mr. Butler did interview Hannon in jail and
subsequently filed a motion in his behalf to produce certain
items in connection with the case. This was prior to the first
trial and Mr. Butler had no further contact or communications
with Hannon. Out of an abundance of precaution and to
scrupulously protect the rights of appellant and to allay any
implications of impropriety, the trial judge sent for Mr. Butler
to come to his courtroom and give testimony as to his relations
with the defendant. Mr. Butler testified that he had no
independent recollection about the case, but stated that

State argues, it is unclear "how Chancey could have been conflicted out
of the case before he ever took office." (State's brief, p. 4.) However, even
if Chancey did not take office until December 2022, it is evident from the
colloquy quoted above that he was employed in the Russell County
district attorney's office at the time of C.C.'s July 2022 trial. Indeed,
Chancey was present during the trial and made brief legal arguments to
the trial court at various times, though he did not question any witnesses
or make arguments to the jury.
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Hannon's face was familiar and he felt certain that he had
interviewed him at one time and this probably took place in
the county jail. He requested permission to look at the court
file to refresh his recollection and there found a motion
bearing his signature. He also recognized the name of the
victim of the robbery …. Other than this, he could not recall
anything else about the case. He forthrightly testified that he
had not discussed this case with his assistant in charge of the
prosecution and further that he had not mentioned this case
or any other case to the personnel of his office that came to or
passed through the Public Defender's Office during the nearly
two years that he was connected with that office."

Hannon, 48 Ala. App. at 614, 266 So. 2d at 826. The trial court denied

Hannon's motions, and he was convicted of robbery. On appeal, this

Court stated:

"The relationship of attorney and client is one of the
most sacred relationships known to the law and places upon
the attorney a position likened to a fiduciary calling for the
highest trust and confidence, so that in all his relations and
dealings with his client, it is his duty to exercise the utmost
honesty, good faith, fairness, integrity and fidelity, and he
may not at any time use against his former client knowledge
or information acquired by virtue of the previous relationship.
This rule is universal and hoary with age.

"To permit a District Attorney to prosecute his former
client, or to divulge to one of his assistants, in charge of the
prosecution, the confidential information imparted to him by
the client, can never be sanctioned. It would constitute an act
wholly at war with due process of law. The injury would not
be limited to the defendant -- there is injury to the entire
system of justice, to the law as an institution, to the
community at large, to the democratic ideal reflected in the
processes of our court, and would destroy the last vestige of

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public confidence and respect in the administration of our
criminal laws.

"The record in this case clearly shows that the District
Attorney did not divulge the confidential information he
gained from Hannon while he was a member of the Public
Defender's Office. He had not been elected District Attorney
when the grand jury indicted Hannon and had no connection
therewith. He inherited for prosecution all indictments
returned by grand juries in Mobile County not disposed of
while his predecessor was in office. The public interest
demanded that the prosecution go forward. There has been
no breach of the attorney-client relationship, the privilege
against disclosure has been preserved, and professional
ethics, painstakingly observed, and the constitutional
guarantee of a fair and impartial trial was not infringed."

Hannon, 48 Ala. App. at 618, 266 So. 2d at 829 (emphasis omitted).

In Smith, this Court addressed a similar situation and found no

error in the trial court's refusal to order the Covington County district

attorney's office to recuse itself from the defendant's trial:

"The appellant … contends that the trial court
committed reversible error by failing to order the Covington
County district attorney's office recused from the trial. After
the appellant was arrested but before a preliminary hearing,
Mr. Charles Alex Short was appointed as counsel for the
appellant. Mr. Short met with the appellant at the county jail
for approximately 15 minutes. Shortly thereafter, Mr. Short
accepted employment with the district attorney's office. He
filed a motion to withdraw as counsel, and that motion was
granted, and new counsel was appointed before the
preliminary hearing.

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"The appellant filed a motion to have the district
attorney's office recuse itself. A hearing was held on the
motion, in which Mr. Short testified that he has not discussed
this case with anyone at the district attorney's office, that he
did not bring any file regarding this case to the district
attorney's office, and that he did not and would not assist the
district attorney's office in any manner toward prosecuting
the appellant.

"In Hannon v. State, 48 Ala. App. 613, 266 So. 2d 825
(1972), the defendant had conferred with a public defender
who was later elected district attorney. Subsequent to being
elected, the district attorney did not take part in prosecuting
the defendant and did not give his assistants any information
obtained during his conversations with the defendant. We
affirmed the defendant's conviction in Hannon because we
found no breach of the attorney-client relationship. Our
holding in Hannon applies to this case. Mr. Short did not
breach the attorney-client relationship because he abstained
from any participation in the prosecution of the appellant and
he revealed no confidential information regarding his former
client to anyone at the district attorney's office."

Smith, 639 So. 2d at 548.

C.C. argues that his case is distinguishable from Hannon and

Smith because, he says, "it is clear that sensitive information regarding

these cases was provided to Chancey" during their 2018 consultation.

(C.C.'s brief, p. 12.) However, contrary to C.C.'s contention, there is no

evidence indicating that he ever shared any "sensitive information" with

Chancey. Instead, Chancey explained that he had met with C.C. for no

more than 30 minutes approximately four years before C.C.'s 2022 trial,

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that he had "no specific recollection of th[e] consultation," that there was

"nothing in [his notes] about the facts of the case," that he never "g[o]t

the transcript" of C.C.'s first trial, and that he did not "have any

information other than [C.C.] indicated he was not guilty and was going

to be retried in a month from this consultation." When the trial court

asked him if there were "things beyond that in [his] notations," Chancey

said that there was "one sentence" that the trial court might want to see.

Chancey's notes are not included in the record on appeal, so this Court

cannot review that sentence for itself; however, the trial court reviewed

the sentence and stated: "I don't see how that would be anything." We

note that C.C.'s counsel made the following statement at the recusal

hearing: "My understanding from [C.C.] is that all of the information that

was divulged to me in preparation for his defense, he had talked about

during the consultation [with Chancey]." However, defense counsel's

unsworn statement was not evidence. State v. R.C., 195 So. 3d 317, 322

(Ala. Crim. App. 2015). Moreover, it is evident from the colloquy quoted

above that the trial court did not believe C.C.'s allegation to his counsel

regarding what information he had shared with Chancey. Thus, there is

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no evidence upon which to base the conclusion that C.C. shared "sensitive

information" with Chancey.

Furthermore, even if C.C. did share "sensitive information" with

Chancey, the trial court correctly concluded that, given the specific facts

of this case, the information was not protected by the attorney-client

privilege. "It is well settled that, absent some exception to the attorney-

client privilege, '[t]he contents of a confidential communication between

an attorney and his client are privileged ….' " Ex parte Alfa Ins. Corp.,

284 So. 3d 891, 904 (Ala. 2019) (quoting Ex parte Alfa Mut. Ins. Co., 631

So. 2d 858, 859-60 (Ala. 1993)). However, it is equally well settled that,

when a defendant consults with his attorney in the presence of a third

party, "[t]he presence of such third party defeats the confidential nature

of the conference and thereby the privilege," Lynch v. Hamrick, 968 So.

2d 11, 15-16 (Ala. 2007) (citations omitted), unless the third party has "a

sufficient common legal interest in the subject matter' of the

representation," id. at 16 (quoting Crenshaw v. Crenshaw, 646 So. 2d

661, 663 (Ala. 1994)), or the third party's presence is necessary for

successful communication between the defendant and his attorney. See

Branch v. Greene Cnty. Bd. of Educ., 533 So. 2d 248, 255 (Ala. Civ. App.

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1988) ("[T]he [attorney-client] privilege does … exist when … client to

attorney communications are made in the presence of a third party whose

presence is … necessary for the successful communication between the

attorney and the client."); and Rule 502(a)(5), Ala. R. Evid. ("A

communication is 'confidential' if not intended to be disclosed to third

persons other than those to whom disclosure is made in furtherance of

the rendition of professional legal services to the client or those to whom

disclosure is reasonably necessary for the transmission of the

communication.").

Here, C.C.'s counsel conceded during the recusal hearing that C.C.'s

current wife was present during C.C.'s brief consultation with Chancey,

and there is no indication or contention that C.C.'s wife had a "legal

interest" in the subject matter of the consultation, Lynch, 968 So. 2d at

16 (citation omitted), or that her presence was "necessary for the

successful communication between [Chancey] and [C.C.]" Branch, 533

So. 2d at 255. We recognize, of course, that confidential information

exchanged between spouses is also generally privileged. See Rule 504,

Ala. R. Evid. However, Rule 504(d)(3)(B) provides that "[t]here is no

[spousal] privilege … [i]n a criminal action or proceeding in which one

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spouse is charged with a crime against … a minor child of either." Thus,

because C.C. was charged with crimes against his minor child, any

information he shared with his wife was not privileged, which means that

his wife was no different than any other unnecessary third party whom

he might have chosen to include in his consultation with Chancey.

Therefore, in this particular case, any information C.C. shared with

Chancey in the presence of C.C.'s wife was not protected by the attorney-

client privilege. See State v. Rhodes, 627 N.W.2d 74, 85 (Minn. 2001)

("Because [the defendant's wife] was a nonclient third party, her presence

prevented the attorney-client privilege from attaching.").

A trial court has broad discretion in determining whether an

attorney (or, in this case, an entire district attorney's office) should be

disqualified from a defendant's trial. Ex parte Terminix Int'l Co., LP, 325

So. 3d 800, 804 (Ala. 2020). In this case, there is no basis for finding that

there was a "breach of the attorney-client relationship" or that the

"constitutional guarantee of a fair and impartial trial was … infringed"

by the fact that the Russell County district attorney's office prosecuted

C.C. Hannon, 48 Ala. App. at 618, 266 So. 2d at 829. Thus, we cannot

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say that the trial court exceeded its discretion by refusing to order the

Russell County district attorney's office to recuse itself from C.C.'s trial.

As for his claim that the trial court should have "suspend[ed] trial

to allow [his] counsel to file a [petition for a] writ of mandamus," C.C.

cites no authority and makes no attempt whatsoever to expound on the

claim. (C.C.'s brief, p. 11.) In fact, C.C.'s entire "argument" in support of

this claim is that "the [trial] court should have suspended trial to await

a decision on a [petition for a] writ of mandamus" (id., p. 12), which is not

an argument at all but merely a conclusory allegation of trial-court error.

Thus, we will not consider this claim. See Egbuonu v. State, 993 So. 2d

35, 41 (Ala. Crim. App. 2007) (refusing to consider the defendant's claim

because he had cited no authority in support of the claim and because his

"argument" consisted of nothing more than a conclusory allegation of

trial-court error); Johnson v. City of Mobile, 195 So. 3d 903, 921 (Ala.

2015) ("Johnson cites no authority for this argument; thus, we will not

consider it."); and Tucker v. Cullman-Jefferson Cnty. Gas Dist., 864 So.

3d 317, 319 (Ala. 2003) ("When an appellant fails to properly argue an

issue, that issue is waived and will not be considered." (citation omitted).

II.

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C.C. argues that the trial court erred by admitting evidence

indicating that his urine tested positive for chlamydia following his

arrest. According to C.C., that evidence was inadmissible because the

State collected his urine without a search warrant, which, C.C. says,

violated the Fourth Amendment to the United States Constitution.

However, the record does not indicate that C.C. ever raised his Fourth

Amendment argument below, and he did not object to any of the

testimony regarding his chlamydia diagnosis. Thus, C.C. failed to

preserve this claim for appellate review, and, as a result, we will not

consider it. See Alonso v. State, 228 So. 3d 1093, 1102 (Ala. Crim. App.

2016) ("Below, Alonso did not argue that law-enforcement officers

violated his Fourth Amendment right when they searched the contents

of the telephone. Therefore, this issue was not preserved for this Court's

review and does not entitle Alonso to any relief."). We acknowledge C.C.'s

argument that we should find "plain error" in the trial court's admission

of the evidence of his chlamydia diagnosis (C.C.'s brief, p. 13), which

essentially serves as an admission that he did not raise this claim below.

However, this Court has repeatedly explained that plain-error review is

not applicable in cases in which the death penalty has not been imposed.

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See, e.g., Keaton v. State, 375 So. 3d 44, 71 (Ala. Crim. App. 2021); and

Pendleton v. State, 208 So. 3d 45, 48 (Ala. Crim. App. 2015).

III.

C.C. argues that his sentences must be reversed and the case

remanded for a new sentencing hearing because, he says, he was not

afforded an opportunity to make a statement before the trial court

imposed his sentences, as required by Rule 26.9(b), Ala. R. Crim. P.

Although C.C. did not raise this claim below, this Court has held that

" 'the requirement that the defendant be afforded the opportunity to

speak on his or her behalf at the sentencing hearing [is an] exception[ ]

to the general preservation rule and [is] required to afford a defendant

the minimal due process.' " Green v. State, 200 So. 3d 677, 678 (Ala.

Crim. App. 2015) (quoting in turn Banks v. State, 51 So. 3d 386, 392 (Ala.

Crim. App 2010)). Thus, this issue is properly before this Court.

C.C. correctly notes that the trial court did not afford him an

opportunity to make a statement before the court imposed his sentences.

Thus, "[b]ecause [C.C.] was not afforded … an opportunity to make a

statement in his own behalf before the [trial] court sentenced him, this

Court is compelled to reverse the sentence and to remand this case to the

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[trial] court for that court to resentence [him]." Green, 200 So. 3d at 679.

On remand, the trial court shall hold a new sentencing hearing at which

it resentences C.C. after giving him an opportunity to make a statement

as required by Rule 26.9(b). Due return shall be made to this Court

within 49 days of the date of this opinion, and the return to remand shall

include the trial court's new sentencing order and a transcript of the new

sentencing hearing.

Conclusion

C.C. has not provided this Court with any basis for reversing his

convictions. Thus, those convictions are affirmed. However, we reverse

C.C.'s sentences and remand the case for the trial court to hold a new

sentencing hearing at which it resentences C.C. after affording him an

opportunity to make a statement in accordance with Rule 26.9(b).

AFFIRMED AS TO CONVICTIONS; REVERSED AS TO

SENTENCES AND REMANDED WITH INSTRUCTIONS.

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

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