Rel: December 15, 2023

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

_________________________

CR-20-0751

_________________________

Brandon Blaine Berry

v.

State of Alabama

Appeal from Jackson Circuit Court

(CC-18-1235 and CC-18-1236)

McCOOL, Judge.

Brandon Blaine Berry appeals his convictions for murder, see § 

13A-6-2(a)(1), Ala. Code 1975, and first-degree kidnapping, see § 13A-6-
CR-20-0751

2

43, Ala. Code 1975, and his resulting consecutive sentences of life 

imprisonment. Berry was also ordered to pay a $60,000 fine, $10,000 to 

the Alabama Crime Victims’ Compensation Fund, court costs, and 

attorney fees.

Facts and Procedural History

The following evidence was presented at trial:

On the morning of September 6, 2018, Deputy Craig Holcomb with 

the Jackson County Sheriff's Office encountered David Rivamonte, who 

was walking on the edge of the railroad tracks near Whitaker Preserve. 

Rivamonte informed Deputy Holcomb that he was walking from 

Huntsville to Arab. Rivamonte declined Deputy Holcomb's offer to give 

him a ride to the county line; however, Rivamonte complied with Deputy 

Holcomb's request that he walk along the highway instead of walking 

behind the residences along the train tracks. Later that same day, 

Deputy Holcomb observed Rivamonte approximately two and one-half 

miles further than he had been earlier, traveling toward Woodville or 

Scottsboro.

On September 8, 2018, Rivamonte's mother reported him missing 

after he had left home on the night of September 5, 2018. Investigator 
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3

Ricky McCarver generated a report and a issued a "be-on-the-lookout" 

sheet, also known as a "BOLO sheet," with information about Rivamonte 

so that other law-enforcement officers could see that he was considered a 

missing person. (R. 85-86.) The BOLO sheet stated that Rivamonte had 

run away before and that Rivamonte was a "high-functioning autistic 

man" that "does not drive, but hitchhikes." (R. 87.)

Ricky Bozarth testified that he was fishing on the river in Woodville 

on September 6, 2018, when he heard someone yelling and trying to get 

his attention. Bozarth saw a man standing on a "little island ... in the 

middle of the river." (R. 94.) Bozarth stated that the man, who was later 

identified as Rivamonte, asked him about whether he would be able to 

stay at the river, and Bozarth told him that he had "just as much right to 

stay there as anybody." (R. 96.) Bozarth "pitched" Rivamonte a can of 

Mountain Dew and a can of Vienna Sausage because Rivamonte was 

thirsty and hungry. (R. 97.) According to Bozarth, Chevy Swinford 

arrived at the river shortly thereafter. Swinford lived in a tent on the 

river approximately 50 yards from where Bozarth had been fishing that 

day. Swinford had a white Chevrolet truck that he also kept parked by 

the river. When Swinford arrived, Bozarth told Swinford that Rivamonte 
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4

had mentioned "something about staying over here with y'all or 

something." (R. 97.) Bozarth claimed that Swinford paddled a small boat 

over to the island to get Rivamonte and that then the two men paddled 

up the river in the boat. Bozarth testified that the men and the boat went 

out of sight for two or three hours. 

Bozarth testified that when Swinford and Rivamonte returned to 

the campsite, the three men hung out for a while until they decided to go 

to the Mapco store to get something to eat and drink. Bozarth testified 

that he drove himself to the Mapco store in his own vehicle and that

Rivamonte rode with Swinford in Swinford's truck. According to Bozarth, 

Brandon Berry was also at the Mapco store. After leaving the Mapco

store, Bozarth went back to his house in Woodville. Bozarth claimed that 

Berry, Swinford, and Rivamonte went to camper in which Berry lived, 

where they were planning on "finishing up a tattoo ... and initiating 

[Rivamonte] into some kind of [white supremacist] group." (R. 103-4.)

Bozarth testified that, later in the evening, he went to Berry's 

camper. When Bozarth arrived, Berry, Swinford, Rivamonte, and a girl 

were inside the camper. Swinford and Berry were talking, and Rivamonte 

was sitting in a chair, without a shirt, with a piece of tape over his mouth 
CR-20-0751

5

and a handcuff on his right hand. According to Bozarth, a few minutes 

later, Swinford put a sawed-off shot gun to Rivamonte's lips. Bozarth 

assumed these actions were all part of the alleged initiation process. 

According to Bozarth, Rivamonte appeared to be unharmed. Berry asked 

Bozarth for his pistol, and Bozarth handed the pistol to either Berry or 

Swinford. Bozarth's pistol was an "Accu-Tek .380." (R. 112.) Bozarth 

stated that he handed over his pistol because he had previously discussed 

with Berry the possibility of trading the pistol for Berry's "little red car." 

(R. 109.) Bozarth claimed that he then left the camper at the request of 

Berry or Swinford in order to return to the river to pick up some of 

Rivamonte's belongings that had been left at the river. 

According to Bozarth, he returned to the river to collect Rivamonte's 

belongings and then went by his house to eat. Approximately one hour 

later, Bozarth claimed, he returned to Berry's camper; however, when he 

arrived, no one was there. Bozarth testified that Swinford and Berry 

returned two or three hours later in Swinford's truck. Bozarth handed 

Rivamonte's belongings to Berry and Swinford, and Berry removed the 

battery from Rivamonte's cellular telephone. Berry invited Bozarth to 
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look under the blue tarp that was in the back of the truck. However, 

Bozarth refused to look under the tarp.

Bozarth testified that he eventually got his pistol back from 

Swinford about six or seven days later and that the pistol had a "groove 

cut in the side toward the end of the barrel." (R. 117.) When Bozarth 

asked Swinford about it, Swinford stated that Berry had "notched it" to 

signify that "he had done something." (R. 118.) Bozarth also testified 

that, in his statement given to Investigator Rick Bremmer of the Jackson 

County Sheriff’s Office, he had stated: "If I remember, I overheard [Berry] 

tell someone that he had the guts to do what [Swinford] didn't." (R. 137.) 

Swinford testified that on September 6, 2018, when he returned to 

his campsite at the river where he had been living, Rivamonte was on an 

island. Swinford stated that he rowed his boat over to where Rivamonte 

was located on the island to take Rivamonte food and water. Rivamonte 

got in the boat with Swinford, and the two men went fishing for about 30 

minutes while Rivamonte ate the food that Swinford had given him. After 

Rivamonte told Swinford that he was still hungry, the men returned to 

the campsite and went in Swinford's white Chevrolet truck to the Mapco

store to get more food. While at the Mapco store, Swinford saw Berry and 
CR-20-0751

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spoke to him before returning to the campsite on the river. Swinford 

testified that, on the way back to the campsite, Rivamonte told him that 

he had "raped a 10-year-old boy and a dog." (R. 584.) Swinford claimed 

that he then dropped Rivamonte off at the campsite and went to Berry's 

camper. When Swinford arrived at Berry's camper, Berry and Cloressa

Cox, Berry's girlfriend, were there. Swinford told Berry about 

Rivamonte's claim that he had raped a 10-year old boy and a dog. 

According to Swinford, Berry told Swinford that he wanted to meet 

Rivamonte. Swinford stated that he and Berry "smoked a little weed" 

before Swinford returned to his campsite at the river. Swinford stated 

that he invited Rivamonte to go back to Berry's camper to get a tattoo. 

Swinford claimed that, after arriving back at Berry's camper, Berry 

and Rivamonte were talking when Rivamonte suddenly "blurted out 

[that] he raped a 10-year old boy and a dog" and that Rivamonte was 

"bragging" about what he had done. (R. 590.) Swinford claimed that Berry 

was "heated" and began raising his voice. (R. 590.) Swinford stated that 

Bozarth then arrived at Berry's camper and Swinford went outside to 

talk to Bozarth. While Swinford was outside, Berry came outside and told 

Bozarth what Rivamonte had said. According to Swinford, Bozarth 
CR-20-0751

8

handed Berry two white zip ties, and Swinford and Berry both went back 

inside the camper. Berry instructed Bozarth to go get Rivamonte's 

belongings from the river, and Bozarth left Berry's camper. Swinford 

testified that Berry asked Rivamonte if he would be willing to "shave his 

head and get a tattoo" because Rivamonte had told Berry and Swinford 

that he just wanted to "be like" Berry and Swinford. (R. 593.) When 

Rivamonte said "yeah," Berry told Rivamonte to "[c]ome on. I'm going to 

introduce to some real crackers. ... Let's go cut your hair." (R. 593.) 

Swinford testified that Berry and Cox got in Berry's vehicle and that he 

and Rivamonte got in Swinford's truck. Swinford then followed Berry to 

a mobile home, which was later determined to belong to Patrick Lee 

Turner.

According to Swinford, once the men and Cox arrived at Turner's 

mobile home, they all went inside. Swinford stated that he was "fearful" 

inside the mobile home, and he described the mobile home as "scary" 

because the kitchen cabinets and counters were covered in plastic, there 

was a blue tarp spread out on the kitchen floor, and there was a chair in 

the middle of the kitchen. (R. 596.) Berry told Rivamonte to sit in the 

chair, and Berry zip-tied him to the chair. Swinford said that he was in a 
CR-20-0751

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nearby room and that "it sounded like [Berry] hit [Rivamonte] a couple 

of times," so Swinford "leaned over and looked around, and [saw Berry 

hit Rivamonte] a couple more times." (R. 598.) Berry eventually untied 

Rivamonte and told him to go outside. Swinford stated that he went 

outside a few minutes later and saw Berry in the driver's seat of 

Swinford's truck. Rivamonte was in the passenger seat. According to 

Swinford, when he told Berry to get out of his truck, Berry pointed a 

pistol at Swinford and told him to get away from the truck and that he 

was taking Rivamonte "down the road." (R. 600.) Swinford claimed that 

Berry "slammed the door and sped off" and returned to Turner's mobile 

home without Rivamonte about five minutes later. (R. 601.) Berry got in 

his car and Swinford got in his truck. Swinford then followed Berry to 

Berry's camper. 

Swinford testified that when he returned to Berry's camper, Berry 

told Swinford to come look under a tarp that was in the back of Swinford's 

truck, which Swinford had not noticed until arriving back at Berry's 

camper. When Berry lifted the tarp for Swinford, Swinford saw "part of a 

hand or some skin." (R. 603.) Swinford testified that he started "freaking 

out," but Berry told Swinford and Cox, "Y'all know too much. You can't 
CR-20-0751

10

leave now." (R. 604.) Berry pulled a wheelbarrow over to Swinford's truck 

and started to pull Rivamonte's body out of the back of the truck. 

Swinford testified that he "puked," went to another camper on the Berry 

property, and "took four Xanaxes" before he accidentally "passed out" in 

the upper camper. (R. 604.) Swinford testified that he left the following 

morning.

On cross-examination, Swinford admitted that, at the time of the 

incident, he "periodically" used methamphetamine and other drugs. He 

testified that, when Berry dropped the tailgate on Swinford's truck and 

told him to look at it, Berry smiled as if he was of proud of what he had 

done. According to Swinford, Berry also told him that he had asked 

Rivamonte "if he wanted it in the back or front, and [Rivamonte] told him 

in the back." (R. 691.) Swinford claimed that Berry told him that he "shot 

twice" and that Rivamonte then turned around and told Berry that he 

had missed so Berry shot once more. (R. 691.) Later, Swinford testified 

that Berry may have shot only once from behind Rivamonte.

Matthew Justin Pruitt, Berry's best friend, testified that Berry 

called him on September 7, 2018, and asked for Pruitt's help. Pruitt 

identified photographs that were taken by Investigator Bremmer of 
CR-20-0751

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Pruitt's cellular telephone, which showed text messages that Pruitt had 

received from Berry. A picture that had been sent in one of the text 

messages was a picture of a body. The message had been sent at 6:00 a.m. 

on Saturday, September 8, 2018.

Raymond Thompson, Berry's cousin, testified that on Tuesday, 

September 11, 2018, he spoke with Berry, who asked Thompson for 

money. Thompson claimed that Berry later came to his house with a 

woman that Thompson did not know. According to Thompson, Berry 

began to tell him that "he killed this guy" that was a "child rapist" and 

that the man had told Berry that "he was going to rape [Berry's] little 

girl." (R. 193.) Thompson said that Berry claimed that "the girl held the 

guy at gunpoint" while Berry was beating the man. (R. 193.) Thompson 

testified that Berry claimed that, when he came outside to the truck on 

the evening of the incident, Swinford was outside and Berry told 

Swinford to "get in or get out of the way." (R. 194.) According to 

Thompson, Berry alleged that Swinford did not get in the truck. 

Thompson claimed that Berry told him that he then went outside and put 

the man in the truck and "took him down the road." (R. 194.) Berry also 

stated that the man told him, "You better go ahead and kill me because 
CR-20-0751

12

if you don't your daughter will be next." (R. 194.) Thompson testified that 

when Berry was telling him the story of the incident, Berry appeared to 

be on drugs.

Investigator Bremmer testified that he had heard from more than 

one source that Swinford and Berry had been involved in the killing of 

someone. Investigator Bremmer knew that Swinford lived at the river,

and, on September 12, 2018, he tried to visit Swinford; however, Swinford 

was not there. Investigator Bremmer identified photographs of 

Swinford's tent, his white truck, and the two-man boat that was on the 

riverbank. Investigator Bremmer stated that in the middle of the boat 

there appeared to be a bloodstain. According to Investigator Bremmer, 

Swinford's boat and truck were hauled to a secure building inside the jail. 

Investigator Bremmer also visited Berry's camper; however, Berry was 

not there. That same day, Investigator Bremmer visited Thompson, 

during which time he took Thompson's statement, and Pruitt, from whom 

he collected Pruitt's cellular telephone. 

Investigator Bremmer interviewed Berry on September 13, 2018, 

and the video recording of that interview was played for the jury. 

Investigator Bremmer also identified multiple photographs taken during 
CR-20-0751

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his investigation of the Berry's property, including photographs of a 

front-end loader bucket on a tractor, wheelbarrows, and several random 

items of debris. While searching Berry's camper, officers noticed a path 

that appeared to have been recently "run through with a piece of 

equipment, and a fence post at the corner of the driveway and the county 

road [that] had either been run over [or] backed over." (R. 281.) Further 

investigation led to the discovery of a blue tarp containing a dead body, 

which was determined to be Rivamonte. The skull was not attached to 

the rest of the body. 

Although Investigator Bremmer collected several samples to be 

tested from what appeared to be blood on the truck bed of Swinford's 

truck, there was no evidence of Rivamonte's blood or DNA found on 

Swinford's truck. There was also no evidence of Rivamonte's blood or 

DNA found at Berry's camper or Turner's mobile home.

Rivamonte's cause of death was determined to be a gunshot wound 

to the head. The autopsy indicated that Rivamonte also likely sustained 

injuries from traumatic head injuries. The class characteristics measured 

and observed by a forensic specialist on the projectile taken from 
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Rivamonte's head during his autopsy were "consistent with Accu-tek 

firearms." (R. 507.) 

Turner testified that, in September 2018, Berry came by his mobile 

home and was "bragging" to Turner that "he was going to get his ranking 

or something" and that Berry was "a real motherfucker." (R. 733; 737.) 

Turner claimed at trial that he remembered talking to Investigator 

Bremmer around September 2018, that Investigator Bremmer wrote 

down a statement while he was talking, and that Turner signed the 

written statement. However, Turner also claimed at trial that his 

memory was failing due to health problems and that he could not 

remember exactly what he had told Investigator Bremmer. The 

prosecutor quoted to Turner portions of the written statement, which 

included statements that Berry had allegedly told Turner when he visited 

him in September 2018, and the prosecutor asked Turner whether he 

remembered telling Investigator Bremmer such information; however, 

Turner testified that he neither remembered Berry making such 

statements to him, nor remembered exactly what he had told to 

Investigator Bremmer. 
CR-20-0751

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Joseph McGeehee, Berry's cellmate when they both were at the 

county jail, testified that, when McGeehee arrived in the cell, Berry asked 

him if he "had a problem sharing a cell with a killer." (R. 774.) McGeehee 

also testified that he heard Berry tell another cellmate that Berry "killed 

a man from Paint Rock River." (R. 776.) 

Ashley Pruitt ("Ashley") testified that Berry was her best friend. 

She claimed that, around midnight on Saturday, September 8, 2018, 

Berry's father, Donald, picked her up at her brother's house and brought 

her to his trailer, which was near Berry's camper, in order for Ashley to 

help Berry "clean up" his camper. (R. 485.) While she was at Donald's 

trailer, Berry came inside to get a lighter and then returned outside. 

Ashley stated that she followed Berry to check on him. She stated that 

there was a "real bad smell" and that Berry told Ashley that he needed 

help cleaning up "because he had a pedophile." (R. 787.) Berry indicated 

to Ashley that he had something in a wheelbarrow, and she said that 

there was a blue tarp in the wheelbarrow. Berry told Ashley that 

Swinford had shot someone. (R. 798.)

Cox testified that she was dating Berry at the time of the incident. 

She remembers being at Berry's camper the night of the incident when 
CR-20-0751

16

Swinford and a man whom she did not know arrived. According to Cox, 

the men began arguing, and Berry and Swinford began hitting the other 

man. The man eventually left the camper and got into Swinford's truck. 

Cox testified that Swinford, Berry, the other man, and she all went to 

Turner's mobile home. Cox testified that she heard Swinford and Berry 

striking the man, who was sitting in a chair in the kitchen. Cox stated 

that later she observed Berry and the other man leave in Swinford's 

truck. According to Cox, a few minutes later, Berry returned in 

Swinford's truck alone. Cox testified that she then left and went back to 

her own house. 

Deborah Baugh testified on behalf of the defense. Baugh claimed 

that she and a friend were involved in a dispute with Swinford in April 

2019 and that Swinford stated that "he had already killed one, and he 

would not care to kill again." (R. 937.) 

Jamie Ledbetter also testified on behalf of the defense. Ledbetter 

testified that, on September 6 or 7, 2018, he met Rivamonte, who was at 

the river with Swinford at the time. At that time, Ledbetter noticed that 

Rivamonte was wearing moccasins. The following day, Ledbetter saw 

Swinford at the river again. Ledbetter saw that Swinford was wearing 
CR-20-0751

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Rivamonte's moccasins. According to Ledbetter, he asked Swinford why 

he was wearing Rivamonte's shoes, and Swinford stated, "I killed him 

last night. I killed him." (R. 944.) At the time, Ledbetter did not believe 

Swinford. Swinford told Ledbetter that Rivamonte was a "pedophile" and 

that Rivamonte had told Swinford that he had raped a little girl and some 

animals." (R. 944.) Ledbetter testified that Swinford then nodded toward 

the bed of Swinford's truck, which is near the rail of the truck on which 

Ledbetter had been leaning. Ledbetter then looked and saw "blood and 

brain matter" in the bed of the truck. (R. 945.) Ledbetter claimed that 

Swinford then described the incident in detail to Ledbetter and that 

Swinford claimed that he had shot Rivamonte in the head twice.

The jury found Berry guilty of murder and first-degree kidnapping, 

and he was sentenced to consecutive terms of life imprisonment. Berry 

filed a motion for new trial, which was denied by operation of law. This 

appeal follows.

Discussion

I.

On appeal, Berry raises three arguments. First, Berry alleges that 

the trial court erred when it admitted a picture depicting Rivamonte’s
CR-20-0751

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body lying in the bed of a truck because, he says, the picture was not 

properly authenticated under Rule 901(a), Ala. R. Evid. At trial, during 

the State's direct examination of Matthew Pruitt, the State introduced, 

over the defense's objection, several photographs of text messages on a 

cellular telephone that were allegedly sent from Berry to Pruitt. The 

photographs of the text messages contained a picture of Rivamonte’s body 

in the bed of a truck. 

In his brief on appeal, Berry contends that, because "Pruitt never 

expressed any familiarity with the subject matter or accuracy of the 

contents of [the picture that he received] as is required for proper 

admissibility," it was improper to admit the picture under Rule 901(a). 

(Berry's brief at 25.) On the other hand, the State contends that the 

prosecution "was not attempting to authenticate the picture that Berry 

sent to the witness Matthew Pruitt"; instead, the State argues, the 

prosecution "was attempting to introduce a photograph of the cellular 

telephone depicting the picture that Pruitt received." (State's brief at 22-

23.) The State further argues that Pruitt's testimony was not required 

"to identify the person depicted in the picture, or where the picture was 

taken, who took it or other such matters" but, instead, that "Pruitt's 
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identification of his own cellular telephone, the picture he had received 

and from who he received it was sufficient under Rule 901(a) to 

authenticate" the photograph of the cellular telephone. (State's brief at 

24.)

"Alabama courts have often stated that a trial court has substantial 

discretion in determining whether evidence is admissible and that a trial 

court's decision will not be reversed unless its determination constitutes 

a clear abuse of discretion." Hosch v. State, 155 So. 3d 1048, 1081 (Ala. 

Crim. App. 2013) (citing Ex parte Loggins, 771 So. 2d 1093, 1103 (Ala. 

2000)). This Court recently explained:

"Rule 901(a), Ala. R. Evid., provides that '[t]he 

requirement of authentication or identification as a condition 

precedent to admissibility is satisfied by evidence sufficient to 

support a finding that the matter in question is what its 

proponent claims.' The authentication requirement is a 

relatively low threshold to meet. '[A]ll that is required under 

Rule 901' is that the proponent of the evidence make 'a prima 

facie showing that the [evidence] ... is likely authentic'; the 

proof of authenticity 'does not [have to] establish beyond a 

shadow of a doubt the authenticity of the [evidence]' and 

'"does not have to be conclusive or overwhelming."' Royal Ins. 

Co. of America v. Crowne Inv., Inc., 903 So. 2d 802, 809 (Ala. 

2004) (quoting the Advisory Committee Notes to Rule 901). 

See also United States v. McDaniel, 433 F. App'x 701, 704 

(10th Cir. 2011) ('We have repeatedly instructed that Rule 

901[, Fed. R. Evid.,] sets a low bar for admissibility.')."
CR-20-0751

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Harrison v. State, [Ms. CR-21-0423, August 18, 2023] ___ So. 3d ___, ___ 

(Ala. Crim. App. 2023). Ultimately, the question of authenticity is one for 

the trier of fact to decide, and it is the fact-finder's responsibility to weigh 

the evidence in determining authenticity. Tidwell v. State, 496 So. 2d 

109 (Ala. Crim. App. 1986). See also Byrd v. Bentley, 850 So. 2d 232 (Ala. 

2002); Advisory Committee's Notes to Rule 901, Ala. R. Evid.

Further, Rule 901(b)(1) provides that "[t]estimony that a matter is 

what it is claimed to be" is sufficient authentication "conforming with the 

requirements of this rule." Rule 901(b)(4) provides that evidence can be 

authenticated by "[d]istinctive characteristics and the like," including 

"[a]ppearance, contents, substance, internal patterns, or other distinctive 

characteristics, taken in conjunction with circumstances." 

In addressing the authentication of electronic evidence, this Court, 

quoting the Idaho Supreme Court, has stated: 

"'Other jurisdictions have recognized that electronic 

evidence may be authenticated in a number of different ways 

consistent with Federal Rule 901 and corresponding state 

statutes. Courts have not required proponents offering 

printouts of e-mails, internet chat room dialogues, and 

cellular phone text messages to authenticate them with direct 

evidence, such as an admission by the author or the testimony 

of a witness who saw the purported author typing the 

message. See, e.g., United States v. Fluker, 698 F.3d 988, 999 

(7th Cir. 2012). Rather, courts have held that circumstantial 
CR-20-0751

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evidence establishing that the evidence was what the 

proponent claimed it to be was sufficient. See, e.g., State v. 

Thompson, 777 N.W.2d 617, 624 (N.D. 2010) (providing a 

comprehensive review of other jurisdictions' authenticity 

requirements for electronic communications). Circumstantial 

proof might include the e-mail address, cell phone number, or 

screen name connected with the message; the content of the 

messages, facts included within the text, or style of writing; 

and metadata such as the document's size, last modification 

date, or the computer IP address. See Fluker, 698 F.3d at 999; 

United States v. Siddiqui, 235 F.3d 1318, 1322-1323 (11th Cir. 

2000); United States v. Safavian, 435 F. Supp. 2d 36, 40-41 

(D.D.C. 2006).' 

 "[State v. Koch,] 157 Idaho 89, 334 P. 3d [280] at 287-88 [(2014)]." 

Culp v. State, 178 So. 3d 378, 384 (Ala. Crim. App. 2014). Additionally, 

"[t]he proponent of the evidence needs to establish only a reasonable 

probability that the document is what it is claimed to be. Once this 

reasonable probability is shown, any inconclusiveness over the exhibit's 

connection with the events at issue goes to the exhibit's weight, not its 

admissibility." Id. at 385.

In Knight v. State, 300 So. 3d 76, 110 (Ala. Crim. App. 2018), this 

Court considered the authentication of screenshots of social-media pages 

when "[t]he State offered screenshots of what purported to be Knight's 

social-media profile on the Facebook social-media platform" that 

contained pictures that supported the State's theory of the case against 
CR-20-0751

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Knight. This Court held that the trial court did not abuse its discretion 

by admitting screenshots of the social-media pages when the police 

detective testified that he had found the pages under Knight's nickname, 

the social-media profile included pictures of Knight, and an El Camino 

automobile was pictured, "which dovetailed with Knight's own admission 

to the detective that he wanted an El Camino." Id. The police detective 

in Knight also testified that the screenshots had not been altered. As this 

Court again explained, "Rule 901 requires only a showing sufficient to 

indicate that the evidence is what it purports to be." Id.

In the present case, Pruitt testified that the photographs in 

question were photographs taken of his cellular telephone and that the 

photographs depicted text-message conversations between him and 

Berry. Pruitt testified about the context of the text conversations he had 

engaged in with Berry. He also identified the challenged picture as a 

picture that had been sent to him via text message by Berry. He claimed 

that the photographs "fairly and accurately depict the message that [he] 

received from [Berry]." (R. 168.) Although Berry contends that the picture

of Rivamonte's body in the truck bed was not properly authenticated 

because Pruitt did not express familiarity with the subject matter or the 
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accuracy of the contents of the picture that had been sent to Pruitt, the 

record shows that the State was not separately presenting the picture of 

Rivamonte's body in a truck bed for authentication apart from the other 

text messages; rather, the State was presenting the picture for 

authentication as part of a number of purported text messages that 

Pruitt received from Berry in order to show that Berry had sent the 

picture of the dead body to Pruitt. Circumstantial evidence is sufficient 

to show that the evidence is what the State purported it to be, and here 

the evidence presented strongly indicates that the picture was indeed a 

part of the text messages that Berry sent to Pruitt. Therefore, the 

photographs of the text-message conversation, including the challenged 

picture within the text messages, were properly authenticated and 

admitted into evidence. Consequently, Berry is not entitled to relief on 

this claim. 

II.

Next, Berry contends that the trial court erred when it allowed a 

witness's recorded recollection to be read into testimony when the 

witness could not testify that the recorded recollection was true and 

correct pursuant to Rule 803(5), Ala. R. Evid.
CR-20-0751

24

During the trial, the State called Turner to testify, and the 

prosecutor sought to question Turner about what he had told Investigator 

Bremmer on September 19, 2018, regarding a conversation that had 

occurred between Berry and Turner shortly after the murder. At trial, 

Turner claimed that he did not remember what he had previously said to 

Investigator Bremmer. Outside the presence of the jury, during a voir 

dire examination, Turner was given a chance to read the written 

statement that Investigator Bremmer had prepared and Turner had 

signed. Turner indicated that he could not read the written statement. 

Thereafter, the State attempted to read portions of the written statement 

to Turner; however, Turner indicated that he did not remember the 

information contained in the written statement. He claimed that he 

remembered talking to Investigator Bremmer and that Investigator 

Bremmer "wrote down some stuff." (R. 750.) Turner also testified that he 

had initialed and signed the written statement that Investigator 

Bremmer had prepared during their discussion. However, Turner stated, 

although he remembered signing the written statement, he is unsure 

whether the written statement that Investigator Bremmer prepared is 

an accurate reflection of what Turner told Investigator Bremmer because 
CR-20-0751

25

he never read the written statement before he signed it. Over defense 

counsel's objection, the State was allowed to question Turner about the 

contents of the written statement during various portions of its direct 

examination in front of the jury.

Berry argues on appeal that, because Turner was unable to confirm 

whether the written statement was an "accurate reflection of what 

[Turner] told [Investigator Bremmer]," Turner was unable to "properly 

adopt the statement as is required" by Rule 803(5). (Berry's brief at 28.) 

Thus, he claims, the written statement "should not have been read into 

the record." (Berry's brief at 29.)

The State contends that the prerequisites for admitting the written 

statement were met because "it can be reasonably and fairly inferred 

from the entirety of Turner's statement that Turner gave a statement to 

Investigator Bremmer." (State's brief at 26.) The State insists that 

because Turner "provided the information that was written," "identified 

his signature and initials on the statement," and did not deny that the 

information was true, the prerequisites for admission under Rule 803(5) 

were met despite the fact that Turner could not confirm the accuracy of 

the written statement. (State's brief at 26.)
CR-20-0751

26

As previously stated, the question of the admissibility of evidence 

is generally left to the trial court to determine, and the court's 

determination on that issue will not be reversed except upon a clear 

showing of abuse of discretion. See Hosch, 155 So. 3d at 1081. Rule 803(5)

provides:

"The following are not excluded by the hearsay rule, 

even though the declarant is available as a witness:

"....

"(5) ... A memorandum or record concerning a matter 

about which a witness once had knowledge but now has 

insufficient recollection to enable the witness to testify fully 

and accurately, shown to have been made or adopted by the 

witness when the matter was fresh in the witness's memory 

and to reflect that knowledge correctly." 

Additionally, the "elements" of a past recollection recorded have 

been stated by Professors Gamble and Goodwin as follows: 

 "(1) That the witness personally observed the event or facts 

referred to in the memorandum or record, and that the 

memorandum or record was made or seen by the witness 

either contemporaneously with the event or when the 

witness'[s] recollection of the event was fairly fresh. It is not 

essential, to benefit from past recollection recorded, that the 

witness shall have made the memorandum or record. The 

memorandum or record may have been made by another 

person if the witness saw it when the event was fairly fresh in 

the witness'[s] memory. 
CR-20-0751

27

 "(2) That the witness then knew the contents of the 

memorandum or record and knew such contents to be true and 

correct. Where the witness testifies that the memorandum or 

record is in his own handwriting, the witness may testify 

further that he knows from his general practice of making 

writings of that kind that what he wrote was true. 

 "(3) That the witness possesses insufficient recollection, 

other than the testimony to the matters stated in (1) and (2) 

above, to enable him to testify fully and accurately." 

(Charles W. Gamble, Robert J. Goodwin, and Terrence W. McCarthy,

McElroy's Alabama Evidence § 116.03(2) (7th ed. 2020) (footnotes

omitted).

In the present case, Turner admitted that he remembered Berry 

coming to his mobile home in September 2018. He also recalled portions 

of the conversation he had with Berry. However, he was unable to 

remember anything else that Berry had told him. The State, using the 

written statement Investigator Bremmer had prepared and Turner had 

signed, unsuccessfully attempted to refresh Turner's memory. Turner 

admitted to speaking with Investigator Bremmer shortly after the 

murder and after he had spoken to Berry. Additionally, although he could 

not remember everything that he had told Investigator Bremmer, he 

remembers Investigator Bremmer preparing the written statement and 

remembers initialing and signing the statement. Turner indicated that 
CR-20-0751

28

those events that were recorded in the written statement occurred when 

his memory was more fresh because his memory had gotten worse 

recently due to a battle with sickness. Although Turner was unable to 

definitively state whether the written statement reflected exactly what 

he had told Investigator Bremmer because he could not recall exactly 

what he had said when he spoke to Investigator Bremmer, one can infer 

from the totality of Turner's testimony that the written statement 

reflected the information that Turner provided to Investigator Bremmer.

Regardless, even if the use of portions of the written statement was 

erroneous, the error would have been harmless. Rule 45, Ala. R. App. P., 

provides, in part: 

"No judgment may be reversed or set aside, nor new trial 

granted in any civil or criminal case on the ground of ... the 

improper admission or rejection of evidence ... unless in the 

opinion of the court to which the appeal is taken or application 

is made, after an examination of the entire cause, it should 

appear that the error complained of has probably injuriously 

affected substantial rights of the parties."

This Court has further explained that "[t]he United States Supreme 

Court has recognized that most errors do not automatically render a trial 

unfair and, thus, can be harmless." Whitehead v. State, 777 So. 2d 781, 

847 (Ala. Crim. App. 1999)(citing Arizona v. Fulminante, 499 U.S. 278 
CR-20-0751

29

(1991)) aff'd, 777 So. 2d 854 (Ala. 2000). "After finding error, an appellate 

court may still affirm a conviction or sentence on the ground that the 

error was harmless, if indeed it was." Davis v. State, 718 So. 2d 1148, 

1164 (Ala. Crim. App. 1995), aff'd, 718 So. 2d 1166 (Ala. 1998). "The 

purpose of the harmless error rule is to avoid setting aside a conviction 

or sentence for small errors or defects that have little, if any, likelihood 

of changing the result of the trial or sentencing." Davis, 718 So. 2d at 

1164. "'The admission of hearsay evidence in violation of the accused's 

constitutional right of confrontation is not automatically a ground for 

reversal.'" Chavers v. State, 714 So. 2d 341, 344 (Ala. Crim. App. 

1997)(quoting Rouse v. State, 548 So. 2d 643, 647 (Ala. Crim. App. 1989)). 

"Erroneous admission of hearsay evidence is subject to a harmless-error 

analysis." Baird v. State, 849 So. 2d 223, 238 (Ala. Crim. App. 2002).

In the present case, the portions of the written statement that the 

State quoted were cumulative to the testimony provided by Swinford. 

This Court has repeatedly held that "[a]ny error in the admission of 

hearsay testimony [is] harmless beyond a reasonable doubt when the 

testimony is cumulative to other lawfully admitted testimony." Belisle v. 

State, 11 So. 3d 256, 299 (citing McNair v. State, 706 So. 2d 828, 851 (Ala. 
CR-20-0751

30

Crim. App. 1997)). See also Gobble v. State, 104 So. 3d 920, 958 (Ala. 

Crim. App. 2010). Therefore, Berry is not entitled to relief on this ground.

III.

Lastly, Berry argues that he was entitled to a new trial on the basis 

of juror misconduct because, he says, the veniremember who served as 

the foreperson of the jury failed to disclose his "close, personal 

relationship with the State's key witness." (Berry's brief at 17.)

In the present case, Berry filed a motion for new trial alleging, in 

part, that he was entitled to a new trial because the foreperson of the jury 

had committed juror misconduct.1 Specifically, in his motion, Berry 

claimed that, two days after he was convicted, the trial court informed 

his trial counsel and the State that the foreperson of the jury, Juror J.H., 

had engaged in inappropriate communications about the case with a 

member of the court's staff prior to the jury's deliberations. Berry claimed 

that the communication between Juror J.H. and the member of the 

court's staff related to "the nature of [Juror J.H.'s] relationship with the 

1Berry also alleged that he was entitled to a new trial because the 

State had failed to present sufficient evidence to convince the jury beyond 

a reasonable doubt that Berry should be convicted of murder and 

kidnapping. However, Berry does not raise this claim in his brief on 

appeal.
CR-20-0751

31

State's key witness, Chevy Swinford," who was also "the person alleged 

by the defense to be the actual murderer and kidnapper of the victim in 

this matter." (C. 244.) Berry claimed that Juror J.H. had not been 

forthcoming during voir dire about the extent and nature of his 

relationship with Swinford, which the defense alleged was more fraternal 

in nature than Berry was initially led to believe. In support of his 

argument in his motion for new trial, Berry claimed that Juror J.H. and 

Swinford "were 'tagged' together in multiple Facebook posts, wherein 

they are seen in photos with arms around each other and in which [they] 

refer to each other as 'brother.'" (C. 245.) He also claimed:

"There are also multiple posts in which [Juror J.H. and 

Swinford] express affection for each other. Posts include 

expressions of love (‘I truly love yall (sic)’) and messages of 

adoration: ‘Happy fathers (sic) day to the most awesome men 

I know! You have all touched my life in one way or another 

and ive (sic) been able to take something ive (sic) learned from 

you and apply it to my own life. However big or small youve 

(sic) made a difference in me and I want to thank you.'"

(C. 245.) Berry attached an affidavit from his trial counsel, as well as 

other exhibits, in support of his motion for a new trial. 

The State did not file a response to Berry's motion for a new trial. 

Although the trial court set a hearing date for the motion for a new trial, 
CR-20-0751

32

the hearing was scheduled for September 10, 2021, which was after the 

motion had been denied by operation of law. The trial court issued an 

order on September 13, 2021, stating:

"The Defendant's motion for new trial was denied by 

operation of law 60-days after sentencing. See Rule 24.4, 

Alabama Rules of Criminal Procedure.

"Further, based on the testimony and arguments made 

at a hearing conducted on September 10, 2021, the grounds 

for the Defendant's motion for new trial were not proven, and, 

to the extent possible under the law, the motion for new trial 

is also denied on its merits."

(C. 257.) 

Because Berry was sentenced on June 29, 2021, the motion was 

denied by operation of law on August 30, 2021. See Rule 24.4, Ala. R. 

Crim. P.2

The Alabama Supreme Court has held that

"[t]he proper standard for determining whether juror 

misconduct warrants a new trial, as set out by this Court's 

precedent, is whether the misconduct might have prejudiced, 

not whether it actually did prejudice, the defendant. See Ex 

parte Stewart, 659 So. 2d 122 (Ala. 1993); Campbell v. 

Williams, 638 So. 2d 804 (Ala. 1994); Union Mortgage Co. v. 

Barlow, 595 So. 2d 1335 (Ala. 1992), cert. denied, 506 U.S. 

2The 60th day was actually August 28, 2021; however, because that 

day was a Saturday, the motion was deemed denied the next business 

day, Monday, August 30, 2021. See Rule 1.3(a), Ala. R. Crim. P. See also 

Bryant v. State, 29 So 3d 928, 935 n.4 (Ala. Crim. App. 2009).
CR-20-0751

33

906, 113 S.Ct. 301, 121 L.Ed.2d 224 (1992). The 'might-havebeen-prejudiced' standard, of course, casts a 'lighter' burden 

on the defendant than the actual-prejudice standard. See

Tomlin v. State, [695 So. 2d 157, 170 (Ala. Crim. App. 1996)]...

"It is true that the parties in a case are entitled to true 

and honest answers to their questions on voir dire, so that 

they may exercise their peremptory strikes wisely. See

Fabianke v. Weaver, 527 So. 2d 1253 (Ala. 1988). However, 

not every failure to respond properly to questions propounded 

during voir dire 'automatically entitles [the defendant] to a 

new trial or reversal of the cause on appeal.' Freeman v. Hall, 

286 Ala. 161, 166, 238 So. 2d 330, 335 (1970); see also Dawson 

v. State, [710 So. 2d 472, 474 (Ala. 1997)]; and Reed v. State, 

[547 So. 2d 596 (Ala. 1989)]. As stated previously, the proper 

standard to apply in determining whether a party is entitled 

to a new trial in this circumstance is 'whether the defendant 

might have been prejudiced by a veniremember's failure to 

make a proper response.' Ex parte Stewart, 659 So. 2d at 124. 

Further, the determination of whether a party might have 

been prejudiced, i.e., whether there was probable prejudice, is 

a matter within the trial court's discretion. Eaton v. Horton, 

565 So. 2d 183 (Ala. 1990); Land & Assocs., Inc. v. Simmons, 

562 So. 2d 140 (Ala. 1989) (Houston, J., concurring specially).

"'The determination of whether the complaining 

party was prejudiced by a juror's failure to answer 

voir dire questions is a matter within the 

discretion of the trial court and will not be 

reversed unless the court has abused its 

discretion. Some of the factors that this Court has 

approved for using to determine whether there 

was probable prejudice include: "temporal 

remoteness of the matter inquired about, the 

ambiguity of the question propounded, the 

prospective juror's inadvertence or willfulness in 

falsifying or failing to answer, the failure of the 
CR-20-0751

34

juror to recollect, and the materiality of the matter 

inquired about."'

"Union Mortgage Co. v. Barlow, 595 So. 2d at 1342-43 

(quoting Freeman v. Hall, supra (other citations omitted)). ... 

"The form of prejudice that would entitle a party to relief 

for a juror's nondisclosure or falsification in voir dire would be 

its effect, if any, to cause the party to forgo challenging the 

juror for cause or exercising a peremptory challenge to strike 

the juror. Ex parte Ledbetter, 404 So. 2d 731 (Ala. 1981); 

Warrick v. State, 460 So. 2d 320 (Ala. Crim. App. 1984); and 

Leach v. State, 31 Ala. App. 390, 18 So. 2d 285 (1944). If the 

party establishes that the juror's disclosure of the truth would 

have caused the party either to (successfully) challenge the 

juror for cause or to exercise a peremptory challenge to strike 

the juror, then the party has made a prima facie showing of 

prejudice. Id. Such prejudice can be established by the obvious 

tendency of the true facts to bias the juror, as in Ledbetter, 

supra, or by direct testimony of trial counsel that the true 

facts would have prompted a challenge against the juror, as 

in State v. Freeman, 605 So.2d 1258 (Ala. Crim. App. 1992)."

Ex parte Dobyne, 805 So. 2d 763, 771-72 (Ala. 2001) (footnote omitted).

In the present case, Berry filed a motion for new trial, in which he 

raised a potentially meritorious argument. He also supported his motion 

with exhibits containing evidence that was not presented at trial. 

However, his motion for new trial was denied by operation of law before 

the trial court held a hearing or ruled on the matter. 

This Court addressed a similar situation in Stinson v. State, 964 

So. 2d 684 (Ala. Crim. App. 2006), in which the trial court held a hearing 
CR-20-0751

35

and took evidence on the defendant's motion for new trial after the 60-

day period and subsequently entered an order denying the motion for new 

trial. This Court explained:

"Here, we have a situation similar to the one in Edgar v. 

State, 646 So. 2d 683, 685 (Ala. 1994), in which the trial court 

held a hearing on the motion for a new trial after the 60-day 

period; therefore, it did not take evidence until after the 

motion had already been denied by operation of law. Although 

the trial court, in Edgar, denied the motion, it failed to include 

in its order any specific findings. The Alabama Supreme 

Court held:

"'We hold that where, as here, a criminal 

defendant's motion for a new trial is denied under 

the provisions of Rule 24.4, Ala. R. Crim. P., 

without an affirmative statement by the trial 

judge giving the ruling a presumption of 

correctness and the defendant supports his new 

trial motion by evidence that was not presented at 

trial, and that evidence, if not controverted by the 

State, will entitle him to a new trial, the denial by 

operation of law should be reversed and the case 

remanded for the trial court to conduct a hearing 

on his motion for new trial and then enter an order 

either granting or denying the motion.'

"Edgar v. State, 646 So. 2d at 687.

"Additionally, this Court in Banks v. State, 845 So. 2d 9 

(Ala. Crim. App. 2002), addressed a situation similar to the 

case at bar, having before it an affirmative response from the 

trial court denying a motion to withdraw a guilty plea, over 

which it no longer had jurisdiction because the motion had 

been denied by operation of law. Here, as in Banks, the trial 

court's written order has no legal significance, because the 
CR-20-0751

36

trial court no longer had jurisdiction to rule on the motion for 

a new trial. Because this Court cannot consider any 

proceedings in the trial court that occurred beyond the 60-day 

limit, a remand is necessary to bestow jurisdiction on the trial 

court. Moreover, we are confident that the trial court, which 

presided over the trial and the hearing on the motion for a 

new trial, is in the best position to make any findings of fact 

regarding Stinson's claims. See, e.g., Vinnie v. State, 866 So.

2d 1175, 1176 (Ala. Crim. App. 2002)."

Stinson, 964 So. 2d at 686.

Based on the foregoing, this case is remanded, and the trial court is 

directed to either review the transcript of the hearing on Berry's motion 

for a new trial or to conduct any additional proceedings it deems 

necessary and to issue an order, making specific findings of fact regarding 

Berry's juror-misconduct claim. The record on return to remand shall 

include a copy of the transcript of any proceedings used to make a 

determination on this claim, as well as the trial court's specific written 

findings of fact. Due return shall be made to this Court no later than 56 

days from the date of this opinion.

REMANDED WITH INSTRUCTIONS.

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

result.