CCA Caselaw Update – September and October 2015

Bolden v. State (CR-14-0657) (Fourth Amendment – Warrants)

Bolden was convicted of trafficking in marijuana and sentenced to life imprisonment as a habitual felony offender. The central issue of this case was whether the affidavit for the search warrant that led to the discovery of the marijuana here was so lacking in probable cause that the evidence was due to be suppressed. AFFIRMED. Here, the Court took a rather quick look at the “totality of the circumstances” test under Illinois v. Gates and concluded that the warrant was sufficient. The Court also concluded that the “good faith” exception applied. Judge Welch wrote a rather scathing dissent, attacking the majority’s “totality” finding. I agree with Judge Welch here that the State’s affidavit was massively speculative and was not constitutionally sufficient under McIntosh v. State, 64 So. 3d 1142 (Ala. Crim. App. 2010). This is a disappointing decision in the realm of Fourth Amendment litigation.

Knox v. State (CR-12-2019) (Traffic Stop; Reasonable suspicion to prolong detention)

This case stems from the circuit court’s granting of Knox’s motion to suppress marijuana found in his car pursuant to a warrantless search. Police became suspicious of Knox after they observed him driving at a very low speed on I-59. Knox saw the police officer and appeared startled and pulled his car into the emergency lane and stopped. The officer drove on and pulled over to wait until Knox resumed driving. Eventually, Knox passed the officer and changed lanes without signaling; Knox was stopped. The officer observed that Knox was driving a rental car that had a single key. Knox was “very nervous” during the encounter. Knox told the officer he was coming up from Houston. The officer told the court he was suspicious of someone coming from Houston since he knew many narcotics traffickers come from the southwest. Knox told the officer he was driving to Chattanooga for a family member’s funeral. He then changed his story that he was going to a close friend’s funeral. He told the office he did not know the deceased’s name. The passenger in the car also gave suspicious reasoning for going to Chattanooga and didn’t mention a funeral. The officer issued the citation and asked if they could continue on in a consensual encounter. Knox consented. The officer asked for consent to search, but Knox refused. A few minutes later, another officer arrived with a drug-sniffing dog, which alerted on the trunk. Marijuana was found inside. AFFIRMED. The Court found the totality of the circumstances justified further detention of Knox. NOTE: This case was on remand from the Alabama Supreme Court’s reversal in Ex parte Knox, No. 1131207, June 26, 2015. There, the Supreme Court concluded that the Court of Criminal Appeals improperly considered an argument raised by the State of Alabama for the first time on appeal. For those of you who have read my discussions and complaints of Pollard v. State and the Court of Criminal Appeals’ ludicrous “preservation” discussion therein, Ex parte Knox is worth the read as it limits the atrocious holding in Pollard.

Bonds v. State (CR-13-1570) (Statutory Interpretation – School Employee Sex Offense)

Bonds pleaded guilty to one count of school employee who engaged in a sex act with a student under the age of 19, a violation of § 13A-6-81. At the time, Bonds was a resource officer with the Dothan High School. However, Bonds, at all relevant times, was an employee of the City of Dothan as an officer with the police department.

This case focused on whether Bonds was an “employee” of the school, and thus falling under the purview of this statute. The director of personnel for the city schools testified Bonds was not considered an employee of the school system and that school-resources officers were considered employees of the city, not the school. The personnel director for the city likewise testified that Bonds was considered an employee of the city, not the schools. Bonds moved to dismiss his indictment on the grounds that he was not a school employee as contemplated by the statute, but the court denied the motion. AFFIRMED. Even though Bonds is not considered a school “employee” by anyone, the Court affirmed Bonds’ conviction because the definition of “school employee” included people that are not actually “employees” of a school. Section 13A-6-80, Ala. Code 1975, provides: “For purposes of this article, school employee includes a teacher, school administrator, student teacher, safety or resource officer, coach, and other school employee.” Relying upon the plain wording of § 13A-6-80, the Court concluded that Bonds was, in fact, an employee of the school. Welch vehemently dissented here.

From an interpretive standpoint, this is one of the strangest and worst decisions we’ve seen out of the Court of Criminal Appeals. Here, the Court was faced with statutory language creating something that does not exist in reality — an employee-employer relationship between Bond and the school system. The Court completely ignores how this statute must defer to reality — if someone is not, in actuality, an employee of the school, the statute does not contemplate their inclusion. I look forward to seeing this fight at the Alabama Supreme Court.

McDaniels v. State (CR-13-1624) (Lesser-Included Instructions)

McDaniels was convicted of manslaughter after someone he sucker-punched at a bar died from a cranial hemorrhage. The victim head’s hit the ground extremely hard after McDaniels suck-punched him. However, other witnesses testified that the victim was picked up, seated in a chair, fell from the chair and hit his head again after being punched by McDaniels. At trial, McDaniels asked for a lesser-included instruction on assault 3rd — with intent to cause physical injury to another person, he caused physical injury to any person. The trial court denied and McDaniels was convicted of manslaughter. REVERSED. The Court reversed, holding the evidence would have supported a conclusion that McDaniels only acted with the intent to injure the victim.

Demouey v. State (CR-14-0289) (Right to Public Trial; Closing a Trial)

Demouey was charged and convicted of various sex offenses involving C.F. When it was C.F.’s turn to testify, the State moved to close the proceedings on the ground that C.F. was shy and the testimony was difficult for her. The defense objected, but the court allowed the clearing of the court room. REVERSED. In reversing Demouey’s conviction, the Court detailed the history of challenges involving a defendant’s right to a public trial and the different showings required for partial closures (not everyone removed) and total closures (everyone removed). The focal point of these cases is Waller v. Georgia, 467 U.S. 39 (1984). There, the Court set forth a four-part test, which included the moving party showing “an overriding interest that is likely to be prejudiced” in order to obtain a total closure. Later, in Judd v. Haley, 250 F. 2d 1308 (11th Cir. 2001), the Eleventh Circuit — on 2254 review of an Alabama conviction — concluded that even a temporary closure — such as the closure for one witness like in this case — constitutes a “total closure” and requires analysis under the four-part Waller test, including a showing of an “overriding interest.”

Here, the Court determined that removing everyone from Demouey’s trial during C.F.’s testimony constituted a total closure, but that total closure was not justified by an “overriding interest.” 

State v. Walker (CR-14-0765) (Dismissing indictments under Rule 13.5(c))

Walker was indicted for one count of first-degree theft of services. Walker had an agreement with a cab company that he would pay for services rendered within 30 days. Walker gave the cab company a check, but the bank would not honor the check as the account had been closed. Walker was still within the 30-day period. Prior to trial, Walker argued that he intended to pay before the 30-day window was up, that his matter was “essentially a civil suit,” and moved to dismiss the indictment on that ground. The court dismissed the indictment without explanation. REVERSED. The Court concluded that the circuit court did not have the power to dismiss the indictment because the issue Walker raised was not one enumerated n Rule 13.5(c)(1), Ala. R. Crim. P., which limits the grounds upon which an indictment would be dismissed. Walker argued that his claim presented a pure question of law and thus the circuit court could consider the issue under Ex parte Ankrom, 152 So. 3d 373 (Ala. Crim. App. 2011), which created a de facto-summary judgment mechanism to challenge whether actions could be contemplate by a criminal statute. The Court disagreed, concluding that the factual question of “intent” differentiates contract disputes and criminal theft cases.

Collins v. State  CR-13-1199 (Impeaching Witnesses; Rule 613, Ala. R. Evid.)

Here, the Court of Criminal Appeals took the extraordinary move of granting the State’s application for rehearing and switching it’s decision to reverse in August to affirming the conviction in October.  

Collins and co-defendant Walton were charged with numerous offenses stemming from a home invasion in Montgomery. At trial, Walton testified for the State, giving damning testimony for the prosecution. On cross-examination, the defense asked Walton, “”Have you ever made a statement to Mr. Collins that folk protect folk or disciples protect disciples, that that’s why you were doing — testifying in this case the way you have against Mr. Collins?” Walton denied making the statement. He admitted being a member of the “Disciples” gang, but stated that his testimony against Collins had nothing to do with the gang affiliation. Essentially, the defense’s theory was that Walton’s testimony was not truthful and was protecting some third party. The defense proffered the testimony of Marvin Gaston, a man who was incarcerated with Collins and Walton in a holding cell at the Montgomery County jail. Gatson would testify that Walton did make the statement. However, the trial court would not allow Gatson’s testimony on the grounds that it was hearsay. AFFIRMED. In August, the Court concluded that the circuit should have allowed the defense to impeachment Walton with Gaston’s testimony. Such impeachment evidence would have been proper under Rule 613, Ala. R. Evid. and, contrary to the trial court’s finding, was definitionally non-hearsay. However, on rehearing, the Court revisited that decision and concluded that the defense did not provide Walton with sufficient information regarding the particular circumstances under which the statement was made. The Court also concluded that if there were error here, the error was harmless under Rule 45, Ala. R. App. P. because of the strength of the State’s case against Collins.

This case goes to show that the Court of Criminal Appeals will reconsider on application for rehearing if you give them a good enough reason to.

Porter v. State (CR-13-1463) (Juror misconduct during voir dire)

Porter was convicted of capital murder and sentenced to LWOP. In her motion for new trial, Porter argued that juror misconduct entitled her to relief under Ex parte Dobyne and Ex parte Dixon. Specifically, Porter argued that a juror failed to disclose that he had six pending felony charges even though the State asked if any juror had been charged or convicted with any felonies. Porter alleged that she would have struck this juror had she known about his pending charges. The circuit court refused to grant relief, finding that there was “actual prejudice” from the juror’s failure to disclose. REVERSED. The Court held strong to the precedents in Ex parte Dobyne and Ex parte Dixon. The Court reaffirmed that a movant in this situation need only prove “probable prejudice,” which is satisfied by a showing that the movant would have struck the complained-of juror had the withheld information been disclosed.

Rudolph v. State (CR-14-1067) (Sexual abuse; Double-Jeopardy)

Rudolph was convicted of one count of first-degree rape of a child under the age of 12, one count of first-degree rape by forcible compulsion and one count of first-degree sexual abuse by forcible compulsion. The two rape convictions stemmed from the same incident; the sexual abuse conviction stemmed from an incident where he “pulled” on the accuser’s shoulders and tried to get on top of her, but she hit him in the head with a baseball bat, ending the encounter. He was sentenced to terms of 50 years’ imprisonment for the rape convictions and 10 years’ imprisonment for the sexual abuse conviction, all running consecutively. AFFIRMED IN PART; REVERSED AND RENDERED IN PART; REMANDED FOR RESENTENCING. First, the Court concluded that the evidence was sufficient to sustain the two rapes convictions. However, the Court reversed and rendered the sexual abuse conviction on the grounds that the alleged contact could not satisfy the definition of sexual contact under § 13A-6-60. The Court also observed a jurisdictional defect: Rudolph’s rape convictions stemmed from the same event and did not constitute separate offenses, and thus, he could only be punished once under the Double Jeopardy clause.

Washington v. State (CR-13-1369) (Felony murder/“felonies dangerous to human life)

Washington was convicted of felony murder and second-degree kidnapping. On appeal, Washington argued that his felony murder was based upon the a second-degree kidnapping, and, as such, his conviction should be vacated as second-degree felony is not an enumerated offence under § 13A-6-2(a)(3). AFFIRMED; REMANDED FOR RESENTENCING. The Court affirmed Washington’s felony murder conviction on the grounds that a felony murder may be based upon any “felony clearly dangerous to human life.” The Court stated that it applies a factual, case-by-case analysis to felonies used as a bases for felony murder convictions under this clause. Under the facts here, the Court found that the second-degree kidnapping was clearly dangerous to human life. The Court remanded for the circuit court to vacate one of Washington’s sentences on the grounds that his LWOP sentences for both felony murder and second-degree kidnapping violated Double Jeopardy principles as one cannot be sentenced for felony murder and the underlying felony.

Green v. State (CR-14-1083) (Allocution)

Green pleaded guilty to manslaughter and was sentenced to 19 years’ imprisonment. However, before he was sentenced, the Court did not allow him the opportunity to speak. SENTENCE VACATED. The Court held that Rule 26.9(b), Ala. R. Crim. P., requires the Court to afford the defendant an opportunity to speak prior to sentencing. Failure to comply with that demands reversal of the sentencing hearing.

Crow v. State (CR-13-1659) (Unavailability of Child Witness under 15-25-31, 32)

In this child abuse case, the circuit court allowed out-of-court statements of the child-accuser on the grounds that the defendant had her sister remove the child from the jurisdiction. AFFIRMED. This case presents a strange, interesting factual discussion about what the defendant may or may not have done to cause the child-accuser to be absent from the jurisdiction. This case is light on legal discussion and heavy on facts.

Bradshaw v. Town of Argo (CR-14-1308) (Perfecting appeals from muni court)

This case involved the appeal from municipal court to circuit court and the defendant’s attempt to have his municipal charges dismissed on the grounds the municipal court failed to have his record timely transmitted pursuant to Rule 30.4, Ala. Crim. P. AFFIRMED. The Court concluded that the record on appeal did not clearly demonstrate that Bradshaw’s appeal was perfected on the date he alleged. As such, the transmission was timely under Rule 30.4.

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CCA Caselaw Update – September and October 2015

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