Bryan Pettibone v. State of Alabama.
91 So. 3d 94
Ala. Crim. App.2011Background
- Pettibone was convicted of four counts enticement for immoral purposes under §13A-6-69, three counts of second-degree sexual abuse under §13A-6-67, and one count of attempted second-degree sexual abuse under §§13A-6-67 and 13A-4-2.
- Sentences: four five-year terms for enticement; three one-year terms for second-degree sexual abuse; six-month term for the attempted offense.
- First trial in March 2010 ended in mistrial; second trial commenced May 3, 2010 with additional victim testimony.
- Four female students at Central Baldwin Middle School (B.B., M.D., D.S., K.B.) alleged inappropriate sexual conduct and communications by Pettibone, a teacher and basketball coach.
- Evidence showed Pettibone texted, called, and met with victims; he purchased a phone for B.B. and used coded language “1-2-3.”
- Core dispute centered on whether the mistrial precludes retrial and whether the State properly admitted Rule 404(b) evidence and other challenged rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Double jeopardy after mistrial | Pettibone contends the second trial was improper goading. | State allegedly provoked mistrial to secure new statements. | No reversible error; no substantial evidence of prosecutorial goading. |
| Batson challenge preservation | State struck two Black veniremembers; race-neutral reasons argued for one. | Prosecution's reasons lacked race-neutral basis for some strikes. | Issue unpreserved; at most, no reversible error on remaining strikes; no merit shown. |
| Admission of Rule 404(b) evidence | Prosecution failed to give proper notice and proffer; admissibility questionable. | Evidence admissible for motive and other purposes; adequate notice shown. | Court did not abuse discretion; evidence admissible for motive and other purposes. |
| Authentication of cell-phone records | Custodian lacked firsthand knowledge; predicate weak. | Custodian authenticated records; business-records exception satisfied. | Authentication proper; records properly admitted under Rule 803(6). |
| Post-Miranda silence testimony | Investigator’s comment violated Doyle; impeachment improper. | Curative instruction cured potential error; no improper impeachment. | No reversible error; curative instruction adequate. |
| Sentencing enhancement under §13A-6-67(b) | Second-degree offenses followed another offense within 12 months; enhance to Class C. | Plain language and rule of lenity constrain enhancement for first offenses. | Remanded for sentencing to reflect Class C enhancements where applicable; recalculate CVF assessments. |
Key Cases Cited
- Oregon v. Kennedy, 456 U.S. 667 (U.S. 1982) (double jeopardy standard for mistrial-inducing conduct)
- Brannon v. State, 549 So.2d 532 (Ala. Crim. App. 1989) (prosecutor must intend to provoke mistrial for double jeopardy bar)
- Ex parte Adams, 669 So.2d 128 (Ala. 1995) (prosecutor's misconduct may create double-jeopardy issues)
- Ex parte Taylor, 720 So.2d 1054 (Ala. Crim. App. 1998) (no deliberate prosecutorial misconduct shown; mandamus effect limited)
- Doyle v. Ohio, 426 U.S. 610 (U.S. 1976) (post-arrest silence cannot be used to impeach; curative instruction may suffice)