ELECTRONICALLY FILED 4/11/2014 10:36 AM 28-CC-2013-000077.

00 CIRCUIT COURT OF DeKALB COUNTY, ALABAMA PAM SIMPSON, CLERK

IN THE CIRCUIT COURT FOR DeKALB COUNTY, ALABAMA STATE OF ALABAMA, ) ) ) ) ) ) ) ) ) )

Plaintiff, vs. LOWELL RAY BARRON, Defendant.

CASE NO. CC-2013-77

LOWELL BARRONS RESPONSE TO STATES MOTION FOR STAY OF PROCEEDINGS COMES NOW, Defendant, Lowell Ray Barron, and in response to the States Motion for Stay of Proceedings, states as follows: Four hundred and fifty Alabamians have been summoned to this Court on Monday, to be considered as potential jurors in this case. Hundreds of them, most likely, have made child-care arrangements, shifted work schedules, or got time off, or otherwise rearranged their obligations, to comply with this Courts summons. But the State wants this Court to stay the trial, wasting those peoples time and delaying justice for the Defendants, so that the State can pursue some unspecified type of higher-court review on some unspecified complaint(s) that the State has with this Courts order of April 10. In fact, this Courts order is not appealable (and the State apparently recognizes this); and the order 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 the trial, to allow the State to pursue review that does not exist under the law. Furthermore, the State 1

has given absolutely no reason to think that the Courts order constituted reversible error even if it were 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 complaining about. But no part of the order is presently appealable; and the best inference is that the State realizes this. The type of issues that the State can appeal before trial, in a criminal case, are strictly limited under ALA. R. CRIM. 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 that evidence will be admitted. And the State can appeal a suppression order only if the State certifies to the Court of Criminal Appeals that the appeal is not brought for the purpose of delay and that the order, 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 by the Courts ruling on the States motion in limine regarding custom evidence (April 10 order, pp. 23), that does not come within Rule 15.7(a)(1); it does not suppress evidence. If the State is displeased with the Courts ruling in section A of the Courts discussion of Barrons motion in limine (April 10 order, p. 3), the State cannot honestly certify that such order will be fatal to the prosecution of any charge against Barron (even if that order constitutes an order suppressing evidence under Rule 15.7(a)(1)).

If the State did file a lawful and appropriate notice of appeal, it would automatically stay relevant proceedings. ALA. R. CRIM. 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 to which, and any defendant against whom, the appeal is taken.) Because the State has asked for a stay rather than obtaining an automatic one under Rule 15.7(d), and because the State has filed no notice of 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 which the 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 to attack 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 orde r 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 has not even tried to show that. Nor could it. Evidentiary matters are largely entrusted to this Courts discretion. King, 23 So.3d at 79. Conclusion The States motion for stay is entirely without foundation, and the Court should deny it.

Respectfully submitted, /s/ Joe Espy, III Joe Espy, III (ESP002) ONE OF THE ATTORNEYS FOR DEFENDANT LOWELL RAY BARRON

OF COUNSEL: Benjamin J. Espy (ESP005) William M. Espy (ESP007) MELTON, ESPY & WILLIAMS, P.C. P.O. Drawer 5130 Montgomery, AL 36103 Telephone: 334-263-6621 Facsimile: 334-263-7252 jespy@mewlegal.com bespy@mewlegal.com wespy@mewlegal.com Winfred Rocky Watson Aubrey Neeley / NEE012 Watson & Neeley, LLC P.O. Box 680598 Fort Payne, AL 35967 Telephone: 256-845-0410 rocky@watsonneeley.com aubrey@watsonneeley.com

CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was electronically filed with the Clerk of Court via AlaFile and a copy provided to each below on this the 11th day of April, 2014: Michael Duffy, Deputy Attorney General Bill Lisenby, Assistant Attorney General Peter Smyczek, Assistant Attorney General State of Alabama Office of the Attorney General PO Box 300152 Montgomery, AL 36130-0152 with a copy being provided via email to: J. Anthony Jennings, Jr, Attorney at Law 304 Alabama Ave SW Ft Payne AL 35967-1844 tjonlaw@hotmail.com /s/ Joe Espy, III Of Counsel