Alabama Supreme Court Ruling Makes Illegal Hunting Prosecutions Tougher for the State

The Alabama Supreme Court released an interesting opinion reversing some hunting-offense convictions today. In Ex parte Ex parte W.F., W.L.C., and R.J.J. the Court threw out the youthful offenders convictions for hunting after dark, hunting from a public road, and hunting with the aid of an automobile.
As deer season approaches, all the hunters out there might want to pay close attention:

FACTS
Basically, a conservation officer believed he heard shots being fired from a truck driven by these defendants around 6:30/6:45 at night. He didn’t see anyone fire a weapon or even a muzzle flash –essentially, he only heard what he thought were shots fired from a gun. No shell casings were recovered and the deputy sheriff that later investigated couldn’t determine whether shots had recently been fired from the rifle found in the defendant’s vehicle.
The defense argued the State couldn’t make a prima facie case based on this paltry evidence. The State relied on Rogers v. State, 491 So. 2d 987 (Ala. Crim. App. 1985) to defend the sufficiency of its showing, which held that the State presents a sufficient case of “night hunting” when it shows “that the accused (1) is in an area which deer or other protected animals are thought to frequent, (2) has in his possession a light, and (3) has in his possession a weapon or other device suitable for taking, capturing, or killing an animal protected by state law, (4) at night.” The circuit court and Court of Criminal Appeals agreed, relying on Rogers for all the offenses.
HOLDING – REVERSED AND RENDERED
The Court rejected Rogers on the theory that attempts to commit these hunting offenses require more than the Rogers standard provides. The Court’s discussion here is an interesting look into  “the commencement of consummation” of a criminal offense, focusing on the holding of ATM v. State, 804 So. 2d 171 (Ala. 2000). Because Rogers did not accurately encompass “attempt” jurisprudence, the Court overruled that decision. In applying the accurate law regarding attempts, the Court found the State’s case insufficient and vacated and rendered the convictions.
This case is a great standard for assessing the sufficiency of “attempt” prosecutions.
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Alabama Supreme Court Ruling Makes Illegal Hunting Prosecutions Tougher for the State

10-22-2015 11th Circuit Court of Appeals Summary

John A Cunningham (CR-14-14993)

Cunningham failed to register as a sex offender and was originally sentenced to 30 months of imprisonment followed by supervised release.  After he was released from prison, Cunningham violated the terms of his supervised release and was sentenced to another eight months in prison followed by an additional 24 months of supervised release.  Cunningham once again violated the terms of his supervised release after serving his term in prison and was sentenced to another 14 months in prison followed by 14 months of supervised release.  Cunningham was released from prison after serving his term, but he violated his supervised release for the third time.  Cunningham was sentenced to 24 months’ imprisonment after his supervised release was revoked for the third time.  Cunningham argued at his revocation hearing that his revocation sentence of 24 months’ imprisonment was illegal because it exceeded the remaining 14 months he had left of his supervised release after his last revocation.  The district court heard Cunningham’s argument but still sentenced him to 24 months in prison with no supervision to follow.  Cunningham appealed.

AFFIRMED

The Court held that a defendant may be sentenced to the felony class limits under 18 U.S.C. § 3583(e)(3) upon each revocation of supervised release without taking into account any previously served prison terms for revocation of supervised release.  The Court recognized that several other circuit courts had already rejected arguments like the one in Cunningham’s case.  The Court refused to import the language from 18 U.S.C. § 3583(h), stating an aggregate limitation on revocation imprisonment, into the language of § 3583(e)(3).  The court explained that the amendment history of § 3583(e)(3) supports the legislature’s intent to not limit this section by aggregate limitations like those in § 3583(h).  Accordingly, the court affirmed Cunningham’s sentence to 24 months of imprisonment.

Ellisa Martinez (CR-11-13295)

The 11th Circuit previously affirmed Martinez’s conviction under 18 U.S.C. § 875(c) for knowingly transmitting a threatening communication.  The Supreme Court, however, vacated the opinion and remanded the case to the 11th Circuit so the Court could consider Martinez’s case in light of Elonis v. United States, 575 U.S. __, 135 S. Ct. 2001 (2015).  The Supreme Court in Elonis held that a jury instruction stating “that the Government need prove only that a reasonable person would regard [the defendant’s] communications as threats” was error because it failed to address the defendant’s mental state at the time of the alleged crime, which is a necessary element to support a conviction.  In Martinez’s case, she asserted that her indictment was insufficient because it failed to allege that she subjectively intended to convey a threat to others.  Martinez also asserted that § 875(c) was unconstitutionally overbroad if it did not require subjective intent.

VACATED AND REMANDED

The Court rejected both of Martinez’s arguments, relying on United States v. Alaboud, 347 F.3d 1293 (11th Cir. 2003), which held that the inquiry for a conviction under § 875(c) is an objective one.  Based on the Supreme Court’s decision in Elonis, the Court held that Martinez’s indictment was insufficient because it did not allege an essential element of § 875(c), specifically being that Martinez intentionally made the statement as a threat to injure others.  Therefore, the Court vacated Martinez’s conviction and sentence and remanded the case to the district court with instructions to dismiss Martinez’s indictment without prejudice.

Wayne Walker (CR-15-10710)

Walker was convicted of one count of manufacturing counterfeit money in violation of 18 U.S.C. § 471.  On February 28, 2014, two police officers were working the night shift and received information that a man with an outstanding warrant, Michael Upshaw, could be found at Walker’s house.  The two officers went to Walker’s house at 9:00 pm that night and knocked on the doors of Walker’s home but no one answered.  The officers returned at 11:00 pm that night and knocked again but no one answered.  At this point, the officers noticed a car parked in the open-sided carport that had not been in the driveway earlier.  At 5:00 am the following morning the officers drove past Walker’s home once again and noticed some house lights were on as well as the dome light inside of the car parked in the carport.  The officers walked up the driveway and approached the car, noticing that a person was inside of the car.  The person inside of the car ended up being Walker.  When the officers told Walker they were looking for Upshaw, Walker told the officers that they “were more than welcome” to go into the house and look for him.  The officers entered the house and saw counterfeit $100 bills sitting in plain view on a shelf.  The officers subsequently arrested Walker on probable cause.  Walker appeals the district court’s denial of his motion to suppress evidence of the counterfeit bills found in his home because the officers did not comply with the “knock and talk” exception to the Fourth Amendment’s warrant requirement and entered his home at an unreasonable hour.

AFFIRMED

The Court held that the officers complied with the Fourth Amendment and acted reasonably when approaching the car where Walker was found.  The Court rejected Walker’s argument that the officers exceeded the scope of the knock and talk exception when they approached Walker’s vehicle because the officers did not objectively reveal a purpose to search the vehicle and because where the officers approached the vehicle underneath the open-sided carport was not outside of the geographic limit on the knock and talk exception.  The Court also held that the officer’s actions were not unreasonable due to the early morning hour because the surrounding circumstances made the actions reasonable.  Even though it was early in the morning, the officers saw lights on inside of the home as well as the car, and it was not unreasonable for the officers to think someone was inside of the car.  Therefore, the Court held that the district court did not err in denying Walker’s motion to suppress evidence of the counterfeit currency found in his home and affirmed the district court’s decision.

Raymond Edward Braun (CR-13-15013)

In 2013, Braun was sentenced under the “violent felony” provision of the Armed Career Criminal Act (“ACCA”) after pleading guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g).  Braun was convicted of being a felon in possession of a firearm once before in 2003, but during his 2013 trial, Braun objected to being qualified as an armed career criminal under the ACCA because he asserted that he did not have the required three prior violent felonies to be classified as such.  In Braun’s 2003 conviction, the court relied on a Presentence Report describing Braun’s prior convictions when sentencing Braun as an armed career criminal, and Braun did not object to the facts in the report or his sentencing under the ACCA.  However, in Braun’s 2013 trial, he objected to the court’s reliance on the 2003 Presentence Report submitted by the government to establish the three requisite violent felonies necessary to sentence him under the ACCA.  Braun argued that the Supreme Court decisions in Shepard v. United States, 544 U.S. 13 (2005), and Descamps v. United States, 133 S. Ct. 2276 (2013), disallowed the government to rely on a Presentence Report to establish that Braun was an armed career criminal.  Despite his objections, Braun was sentenced as an armed career criminal.  Braun appealed.

REVERSED AND REMANDED

The Court held that the government failed to prove that Braun had three prior violent felony convictions that were necessary to support sentencing under the ACCA as an armed career criminal.  The Court found that the government did not prove that two of Braun’s four prior convictions – aggravated battery on a pregnant woman and battery on a law enforcement officer – were violent felonies.  First, the Court relied on Descamps when deciding whether Braun’s prior convictions qualified as violent felonies under the ACCA.  Based on Descamps, the Court realized that it could only look to the elements of the crime and not the underlying facts of the conduct that led to Braun’s conviction.  The Court also recognized that some statutes can be divided into multiple, alternative versions of the crime. Second, the Court relied on Shepard to determine which documents it could use to decide whether Braun’s prior convictions were considered violent felonies.  Examples of documents allowed in Shepard include the charging document, a plea agreement or transcript of the discussion between the judge and defendant including facts of the plea, or a comparable judicial record containing this information.

The Court first looked at Braun’s conviction for aggravated battery on a pregnant woman.  The Court determined that the statute for this crime was divided and could be committed three different ways under Florida law.  Because the statute was divisible, the Court used Shepard documents to determine which version of the crime Braun committed.  The Court held that the 2003 Presentence Report, however, could not be relied on because under Shepard and Descamps, the court may not use a document from an unrelated proceeding as a substitute for a Shepard document.  The Court, therefore, determined that Braun’s conviction for aggravated battery on a pregnant woman was not a violent felony.  Looking at Braun’s conviction for battery on a law enforcement officer, the Court used the same analysis it used for the aggravated battery on a pregnant woman conviction and determined that this conviction also did not qualify as a violent felony.  In conclusion, the Court held that the government could not prove that Braun had been convicted of three violent felonies in the past, and therefore the Court reversed and remanded this case.

10-22-2015 11th Circuit Court of Appeals Summary