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Barron's response to request for delay

Barron's response to request for delay

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Published by pgattis7719
Barron's response to request for delay.
Barron's response to request for delay.

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Published by: pgattis7719 on Apr 11, 2014
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11/08/2014

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IN THE CIRCUIT COURT FOR DeKALB COUNTY, ALABAMASTATE OF ALABAMA,) ))Plaintiff,) )vs.) CASE NO. CC-2013-77 )LOWELL RAY BARRON,) ) Defendant.)
LOWELL BARRON’S RESPONSE TO“STATE’S MOTION FOR STAY OF PROCEEDINGS”COMES NOW,
Defendant, Lowell Ray Barron, and in response to the State’s Motion for Stay of Proceedings, states as follows:Four hundred and fifty Alabamians have been summoned to this Court on Monday, to beconsidered as potential jurors in this case. Hundreds of them, most likely, have made child-carearrangements, shifted work schedules, or got time off, or otherwise rearranged their obligations, tocomply with this Court’s summons.But the State wants this Court to stay the trial, wasting those people’s time and delaying justice for the Defendants, so that the State can pursue some unspecified type of higher-court reviewon some unspecified complaint(s) that the State has with this Court’s order of April 10.In fact, this Court’s order is not appealable (and the State apparently recognizes this); and theorder is also not subject to a petition for writ of mandamus.
See
 
 Ex parte State
, 39 So.3d 1045 (Ala.2009);
 Ex parte King 
, 23 So.3d 77 (Ala. 2009). Therefore, there is no basis for this Court to stay thetrial, to allow the State to pursue review that does not exist under the law. Furthermore, the State1
ELECTRONICALLY FILED4/11/2014 10:36 AM28-CC-2013-000077.00CIRCUIT COURT OFDeKALB COUNTY, ALABAMAPAM SIMPSON, CLERK
 
has given absolutely no reason to think that the Court’s order constituted reversible error even if itwere reviewable.
The order is not appealable, as the State apparently recognizes.
The State does not say, in its motion, what part or parts of the April 10 order it is complainingabout. But no part of the order is presently appealable; and the best inference is that the Staterealizes this.The type of issues that the State can appeal before trial, in a criminal case, are strictly limitedunder A
LA
.
 
R.
 
C
RIM
.
 
P. 15.7(a). The only one that is even in the ballpark of this case, at this point,is Rule 15.7(a)(1): pretrial orders “(1) suppressing a confession or admission or other evidence.” The State cannot appeal an
in limine
 order that declines to exclude evidence, or that indicates thatevidence will be admitted. And the State can appeal a suppression order only if the State “certifiesto the Court of Criminal Appeals that the appeal is not brought for the purpose of delay and that theorder, if not reversed on appeal, will be fatal to the prosecution of the charge.” Rule 15.7(a).The State has not identified any part of the April 10 order that comes within Rule 15.7(a),and that, if not reversed, will be fatal to the prosecution of the charge. If the State is displeased bythe Court’s ruling on the State’s motion
in limine
 regarding custom evidence (April 10 order, pp. 2-3), that does not come within Rule 15.7(a)(1); it does not suppress evidence. If the State isdispleased with the Court’s ruling in section A of the Court’s discussion of Barron’s motion
in limine
(April 10 order, p. 3), the State cannot honestly certify that such order will be fatal to the prosecutionof any charge against Barron (even if that order constitutes an order “suppressing” evidence under Rule 15.7(a)(1)).2
 
If the State did file a lawful and appropriate notice of appeal, it would automatically stayrelevant proceedings. A
LA
.
 
R.
 
C
RIM
.
 
P. 15.7(d) (“The filing of a notice of appeal in the circuit court pursuant to this rule shall stay the proceedings in the circuit court as to any charge with respect towhich, and any defendant against whom, the appeal is taken.”) Because the State has asked for a stayrather than obtaining an automatic one under Rule 15.7(d), and because the State has filed no noticeof appeal, the reasonable inference is that the State realizes that (for the reasons explained in the preceding paragraph) it cannot appeal.
The order is not subject to review by mandamus.
The order is also not subject to review by petition for writ of mandamus. The issues whichthe State can appeal before trial in a criminal case are strictly limited under Rule 15.7, as seen above. A petition for writ of mandamus cannot be used by the State, as an alternative to appeal, in order toattack evidentiary rulings that are unappealable under Rule 15.7.
See
 
 Ex parte State
, 39 So.3d 1045(Ala. 2009);
 Ex parte King 
, 23 So.3d 77 (Ala. 2009).
The State has not shown any plausible argument that the order would be reversible, even it were reviewable.
Even if the order in question were somehow reviewable, a stay – disrupting the course of  justice – would be appropriate only upon a strong showing that reversal was likely. The State hasnot even tried to show that. Nor could it. Evidentiary matters are largely entrusted to this Court’sdiscretion.
 King 
, 23 So.3d at 79.
Conclusion
The State’s motion for stay is entirely without foundation, and the Court should deny it.3

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