CCA Update: July Through September 2016

State v. Watson 15-0211

Watson was charged with murder after shooting and killing a woman in the front yard of his cousin’s house. The woman, a stranger to Watson’s cousin, showed up at the house in some sort of “psychotic episode” and “foaming at the mouth and rolling around on the ground like a dog.” The cousin called Watson asking for his help. Watson immediately drove to his cousin’s house. Watson was armed with a pistol. The woman immediately began yelling at Watson, accusing him of killing her baby, and charged at him saying that she was going to kill him. Watson fired a warning shot into the ground. The woman yelled that guns did not scare her and continued to charge. Watson fired another shot at her, which struck her in the arm and traveled into her chest, killing her. Watson claimed that he was immune from prosecution pursuant to § 13A-3-23(d) and the circuit court agreed. In a detailed order, the circuit court concluded that Watson could reasonably conclude he or another was in danger of serious bodily harm, that he was free of fault, and that he had the right to defend himself. The State appealed. AFFIRMED The CCA concluded that the record fully supported the circuit court’s ruling and that there was no “gross abuse of discretion” warranting reversal.

Thomas v. State 14-0723

Thomas was convicted of murder stemming from a shootout that occurred one night in Montgomery. On the night in question, the evidence presented indicated that Thomas was invited to the house by someone there who owed him money. The man who was eventually shot, Johnson, had bad blood with Thomas, but both the State and defense’s evidence indicated that Thomas was invited to the house and did not engage in any unlawful activity when he was there. According to Thomas, when he said “hey” to Johnson, Johnson and another man pulled guns and fired at him. Thomas asked for stand-your-ground instruction of self-defense, but the circuit court denied. REVERSED The CCA concluded that the evidence presented supported a jury instruction on a stand-your-ground defense.

Caver v. State CR-15-0300

Police executed a search warrant on a house that was the known residence of Caver.  Small packages of marijuana and paraphernalia were found in a bedroom that contained a framed picture of Caver and his girlfriend, as well as letters addressed to Caver. Caver’s girlfriend testified that marijuana was hers and the letters addressed to Caver were letters she wrote to him while he was in prison that were returned to her. On cross-examination, over the objection of defense counsel, Caver’s girlfriend explained that Caver was incarcerated on a burglary and sodomy charge. Caver was convicted of one count of first-degree possession of marijuana and one count of paraphernalia. UPOM CHARGE REVERSED RENDERED; UPDP CHARGE REVERSED Carver challenged the sufficiency of the State’s case of first-degree possession of marijuana and the Court of Criminal Appeals agreed the State’s case of constructive possession was insufficient as a matter of law. The evidence failed to demonstrate Caver had exclusive rights of possession in the house or room. The Court also agreed that the State should not have been able to have Caver’s girlfriend testify about the nature of the charges for which Caver was serving time when she wrote him.

Case v. State CR-15-0252

Case pleaded guilty to one count of felony murder. During the guilty plea colloquy, the circuit court informed Case that the minimum sentence applicable to his guilty plea was 10 years; however, at sentencing, the circuit court sentenced him to 20 years’ imprisonment, finding that the firearm enhancement of § 13A-5-6(a)(4) applied. Case moved to withdraw his guilty plea in a timely Rule 32 petition, but the circuit court denied the petition. REVERSED. The circuit court has the duty under Rule 14.4(a)(1)(ii), Ala. R. Crim. P. to inform the defendant of the correct sentencing range. The incorrect information rendered the guilty plea involuntary.

Hinkle v. State CR-15-0615

Hinkle pleaded guilty to 17 counts of first-degree theft and 3 counts of second-degree theft stemming from her theft of over $500,000.00 from a law firm where she was a secretary. The court departed from the guidelines and hammered her with 137 years’ total imprisonment for the convictions. Hinkle challenged the departure and the sufficiency of the departure order. AFFIRMED The Court concluded there was no abuse of discretion in this departure and that the record was sufficient. In affirming the departure, the Court concluded that the court’s conclusion that departure was warranted was not based on an “erroneous conclusion of law” and did not violate the general admonition that departures “should be rare.” This decision heavily relied upon the CCA’s earlier presumptive sentencing guideline decision in Hall v. State.

Taylor v. State 15-0354

Taylor, a probationer, tested positive for meth and was sanctioned with 21-days imprisonment. The court held an extensive hearing where the direct of the Marshall County Court Referral Services drug laboratory testified about the drug-testing process. The analyst who actually tested Taylor’s sample did not testify, so Taylor objected on Confrontation Clause grounds. AFFIRMED Relying on Chambers v. State, the CCA concluded that there was no Confrontation Clause violation as the technician who analyzed the sample merely submitted it into the machine and the machine carried out the rest of the analysis. The Court held that Taylor right to confrontation was protected as he had ample opportunity to cross-examine the lab director on the methods of analysis.

Sharifi v. State CR-14-1349

Sharifi was convicted of capital murder pursuant to § 13A-5-40(a)(10) and sentenced to death. Sharifi’s conviction and sentence were affirmed on appeal and he filed a timely Rule 32. AFFIRMED While Rule 32-death opinions are usually pretty detailed with dozens of allegations of ineffective assistance of counsel, Sharifi’s opinion here is brief. Of interest here is the Court’s detailed rejection of his claim of ineffective assistance of counsel based upon Batson/JEB violations. The CCA is very tough on such claims at the Rule 32 stage and this opinion succinctly outlines the narrow road to pleading a colorable claim.

Yates v. State CR-14-1151

Yates was convicted as an accomplice of murder, attempted murder and shooting into an occupied vehicle. At trial, the State was allowed to play a recording of a jail call Yates made to a friend while Yates was incarcerated in which he said something to the effect of, “I’m going to kill whoever stole my clothes.” The State sought to introduce this statement as evidence of Yates’ particularized into to commit the offense that occurred 3 weeks after the shootings. REVERSED. The Court held that this evidence was not admissible under Rule 404(b).  The Court found the recording to be confusing and disjointed as opposed to being “clear and conclusive” as required for admission. Additionally, the evidence was not necessary to prove the State’s case. This is a great decision to read and review for attaching the State’s attempt to introduce Rule 404(b) evidence.

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CCA Update: July Through September 2016

CCA Update – Hurst Mandamus

Friday we saw the Alabama Court of Criminal Appeals uphold the constitutionality of Alabama’s capital-sentencing scheme in light of a ruling by Jefferson County Circuit Court Judge Tracie Todd that the scheme was unconstitutional under the recent US Supreme Court decision of Hurst v. Florida.

Too long, don’t want to read version: Alabama’s capital scheme is not unconstitutional under Hurst, but Hurst will prevent judicial override in cases where (a) the guilt phase verdict does not automatically establish an aggravating circumstance under § 13A-5-49, and (b) the jury finds in the penalty phase that no aggravating circumstance exists beyond a reasonable doubt.

Ex parte State of Alabama

In re: Kenneth Eugene Billups (CR-15-0619)

In re: Stanley Brent Chapman (CR-15-0622)

In re: Terell Corey McMullin (CR-15-0623)

In re: Benjamin Todd Acton (CR-15-0624)

Background.

This case involves the ruling from Judge Tracie Todd of the Jefferson Circuit Court in which she held that the Alabama capital sentencing scheme is unconstitutional. In unrelated cases, Billups and Acton are charged with capital murder-robbery, a violation of § 13A-5-40(a)(2). In cases involving the same murders, Chapman and McMullin are each charged with two count capital murder-robbery (§ 13A-5-40(a)(2)), two counts each of capital murder-burglary (§ 13A-5-40(a)(4), and one count each of capital murder for killing more than one person in the same course of conduct (§ 13A-5-40(a)(10)).

Prior to their trials, the defendants moved to bar the imposition of the death penalty on the grounds that Alabama’s capital scheme is unconstitutional under Hurst. The Court granted the motion, finding the Alabama capital scheme unconstitutional. The State filed a petition for a writ of mandamus asking the Court of Criminal Appeals to order Judge Todd to vacate her order.

Holding

The Court begins its analysis by reviewing SCOTUS’s rulings in Apprendi v. New Jersey and Ring v. Arizona, emphasizing how Apprendi holds “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proven beyond a reasonable doubt.” Ring simply applied Apprendi to Arizona’s capital sentencing scheme. In looking at Hurst, the Court of Criminal Appeals observed that the Hurst opinion, like the Ring opinion, did nothing more than apply Apprendi to Florida’s capital sentencing scheme. The CCA explained:

“The [Hurst] Court noted that “[t]he analysis the Ring Court applied to Arizona’s sentencing scheme applies equally to Florida’s.” Hurst, 577 U.S. at ___, 136 S.Ct. at 621-22. Florida’s capital sentencing scheme as it then existed was similar to Arizona’s in that the maximum sentence authorized by a jury verdict finding a defendant guilty of first-degree murder was life imprisonment without the possibility of parole; the defendant became eligible for the death penalty only if the trial court found the existence of an aggravating circumstance and found that there were insufficient mitigating circumstances to outweigh the aggravating circumstances.”

Ex parte State at * 14. The CCA concluded that Hurst “did nothing more than apply its previous holdings in Apprendi and Ring to Florida’s capital sentencing scheme. The Court did not announce a new rule of constitutional law, nor did it expand its holdings in Apprendi and Ring. As the State correctly argues, “Hurst did not add anything of substance to Ring.” (Petitions, p. 6.)”

The CCA zeroed in on how Ring and Hurst, applying Apprendi, focus on death penalty “eligibility,” the objective component of a death sentence. This, of course, is distinct from the subjective component of whether a death sentence is actually appropriate in a given case. The Court observed that the Alabama scheme only requires the jury to find one aggravating factor under § 13A-5-49 in order for a defendant to be “eligible” for a death sentence.

Under Apprendi, Ring, and Hurst, the crucial question is — does the required finding that an aggravating circumstance exists expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict alone? In Alabama, unlike Arizona and Florida, the answer to that question depends on the capital offense at issue.

The CCA discussed how the Alabama capital statute includes “overlap” and “non-overlap” capital offense. A guilt-phase conviction of an “overlap” offenses automatically establishes the one aggravating circumstances under § 13A-5-49 required to impose a death sentence under § 13A-5-47. For example, a conviction of capital murder-robbery under § 13A-5-40(a)(2) “overlaps” with the aggravating factor that the murder was committed during a robbery pursuant to § 13A-5-49(4). On the other hand, a conviction for a non-overlap offense, such as murder committed by shooting from a vehicle, does not “overlap” with an aggravating factor found in § 13A-5-49.

In looking at “overlap” offenses, the Court concluded that there is no Hurst problem because the guilt-phase determination finds beyond reasonable doubt an aggravating factor under § 13A-5-49, which would make the defendant death-eligible under Apprendi, Ring, and Hurst. Likewise, the Court held that in non-overlap cases, if a jury finds beyond a reasonable doubt that an aggravator exists, he too is death eligible under Apprendi, Ring, and Hurst.

The Court recognized that Apprendi, Ring, and Hurst will foreclose a death sentence in a situation where a defendant is convicted of a “non-overlap” offense and the jury in the guilt phase determines that no aggravating circumstance exists. In this situation, the trial court can only sentence the defendant to LWOP.

Getting Really Technical

The CCA also considered the very technical question of whether it had jurisdiction to consider the State’s request for a writ of mandamus.

In criminal cases, the State of Alabama has very few opportunities to appeal an adverse ruling. At times the State must ask for what’s called a “writ of mandamus” — basically, an order from a higher court (the Court of Criminal Appeals or the Supreme Court) to mandate that a circuit court do something.  Mandamus is rarely granted and very hard to get. Basically, you have to show (a) you’re clearly entitled to the relief you seek, and (b) there’s no other option for you. The State often has to revert to mandamus requests because their right to appeal is so limited. Defendants have an even harder time getting mandamus since they have a broader right to appeal, and thus, a chance to rectify legal wrongs.

With respect to this issue, the Court found that there is no statute authorizing a state appeal on this question. Since a writ of mandamus can be issued to “prevent a gross disruption in the administration of criminal justice,” the Court concluded that it had jurisdiction to consider granting the writ because the situation at hand threatened a “gross disruption in the administration

CCA Update – Hurst Mandamus

CCA Caselaw Update – June 2016

Malone v. State (CR-14-1326)

Malone was charged with second-degree assault and moved before trial for an immunity hearing under § 13A-3-23(d). During the incident in question, Malone stabbed the other party after the other person grabbed Malone by the throat, Malone left, and the other person caught up to Malone and grabbed him by the throat again. Malone’s self-defense claim wasn’t based upon a Stand-Your-Ground defense. The circuit court denied his request on the grounds that it did not have the authority to decide the question of immunity at a pretrial hearing. REVERSED. This case appears to be a pretty formative decision in the area of self-defense and the on-going interpretation of the 2006 amendment. The Court resolved two pretty big questions in favor of defendants.

1.     Using deadly force is permissible under § 13A-3-23 outside of the stand-your-ground situations discussed in § 13A-3-23(b). One of the questions presented here was whether the 2006 Stand-Your-Ground amendment to § 13A-3-23(b) limited the use of deadly force in self defense to only those situations covered by the amendment to § 13A-3-23(b) — where (a) a defendant is in a place he/she has a right to be and (b) isn’t involved in unlawful activity. Effectively, the State argued that if your situation didn’t follow under this dynamic — i.e., like Malone’s — the use of deadly physical force is not permitted. On the other hand, Malone argued that the common-law duty to retreat still applied in situations not covered by § 13A-3-23(b). The Court of Criminal Appeals agreed, holding that the amendment didn’t abrogated the common law duty to retreat before using deadly physical force — the amendment just gave another justification for using deadly physical force.

2.     A § 13A-3-23(d) immunity hearing is not limited to only Stand-Your-Ground situations but rather any circumstance in which someone is possibly justified in using self defense. Again, the State tried to read the 2006 amendment in a narrow manner that simply isn’t justified by the plain wording of the statute. As such, the CCA held that an immunity hearing is authorized under § 13A-3-23(d) to adjudicate any self-defense claim, not just stand-your-ground claims.

Woods v. State (CR-14-0845)

Woods pleaded guilty to DUI in the Montgomery District Court and appealed for a trial de novo in the circuit court. During the circuit court trial, the State introduced over Woods’ objection a redacted copy of his guilty-plea conviction in the district court. On appeal, Woods argued that the guilty-plea shouldn’t have been allowed in a trial de novo; however, the State argued that under Phillips v. City of Dothan, 534 So. 3d 381 (Ala. Crim. App. 1988), the plea was admissible. REVERSED. The CCA decided that Phillips doesn’t comport with the idea that a trial de novo “wipes the slate clean” relying on language in Yarbrough v. City of Birmingham, 535 So. 2d 75 (Ala. Crim. App. 1977) and Ex parte Sorsby, 12 So .3d 139 (Ala. 2007). As such, the Court overruled Phillips and held that the admission of the guilty plea was reversible error.

Smith v. State (CR-97-1258)

In a death case that saw numerous remands and orders new sentencing hearings for a myriad of reasons, the circuit court held a fourth penalty-phase hearing wherein it excluded the public during the jury selection phase of the proceeding over the defense’s objection. The circuit court offered a generic justification regarding the small size of the courtroom to support its decision. The jury recommended death by a vote of 10-2 and the court followed that recommendation. REVERSED The Court of Criminal Appeals reversed, finding that the circuit court failed to show how closing the courtroom was justified under Waller v. Georgia, 467 U.S. 39 (1984).

Ingmire v. State (CR-14-1447)

Ingmire was charged and convicted of one count second-degree theft and one count receiving stolen property in connection to the theft/sale of a four-wheeler. At trial, the circuit court allowed the State to introduce a NCIC report where the four-wheeler was listed as stolen. The defense objected. REVERSED. Here, the CCA held that the NCIC report was hearsay and was not, in this trial, show to be a business record and worthy of exception under Rule 803(6) because there was no evidence that the report fit within the business-records exception. The Court left open the possibility that NCIC reports could one day be held to fit within the exception, but such a showing was not made in the trial below.

Benn v. State (CR-14-0714)

Benn was convicted of seven counts of capital murder and the jury recommended death by a vote of 10-2. On December 12, 2014, the circuit court held a judicial-sentencing hearing and took the arguments under advisement. On January 29, 2015, the court issued a written sentencing order sentencing Benn to death. On appeal, Benn argued that the CCA lacked jurisdiction to consider this matter because the circuit court failed to enter a judgment of conviction as required by law. APPEAL DISMISSED. Relying on the AL SC’s recent decision in Ex parte Kelley, [Ms.  1131451] (Ala. 2015) and § 12-22-130, the CCA held that trial court must pronounce in open court both an adjudication of guilt and sentence.

Glaze v. State (CR-15-0553)

This was a DUI case involving a municipality wherein the appeal was dismissed for the same reason in Benn v. State

CCA Caselaw Update – June 2016

CCA CASELAW UPDATE – APRIL 2016

Eugene Lee Jones v. State (CR-14-1332)

Jones was convicted of manslaughter as a lesser-included offense of murder, stemming from him killing a woman he suspected of setting him up in a robbery. Jones voluntarily talked to investigators on July 29, 2013, in connection to the death, but eventually stopped the questioning when he invoked his right to counsel. Jones was arrested on an outstanding warrant out of Bessemer. Jones was eventually transported back to Lauderdale County on another warrant stemming from a charge unrelated to the homicide. While still in custody, Jones was asked to submit to a polygraph examination. Jones waived his Miranda rights, submitted to the polygraph, and subsequently made another statement in which he admitted that he strangled the victim. Jones moved to suppress this statement under Edwards v. AZ, 451 US 477 (1981) on the grounds that investigators improperly re-initiated contact after he had invoked his right to counsel. The circuit court denied the motion. AFFIRMED. Relying on MD v. Shatzer, 559 US 98 (2010), the CCA affirmed the denial of the motion to suppress on the grounds that “coercive effect” of re-initiation of interrogation wasn’t present in this case like it was in Edwards. Essentially, the Court held that if enough time has passed since the initial invocation of the right to counsel — more than 14 days — there is no presumptively problematic re-initiation as there was in Edwards.

Levins v. State (CR-15-0612)

Bell v. State (CR-15-0618)

The appellants in these two cases were two expungement petitioners who were denied relief at the circuit court level and asked the CCA to reverse the denials of their petitions. APPEALS DISMISSED One may only challenge the denial of their expungement petition by petitioning the Alabama Supreme Court for certiorari review of the denial of the petition for expungement.

John Earle Redfearn, IV v. State (CR-14-0500)

This case involved the denial of a motion to suppress drugs evidence recovered from Redfearn’s body. In February 2012, law enforcement obtained a search warrant of Redfearn’s residence based upon 2 controlled buys that occurred at the residence with Redfearn. Law enforcement executed the SW after they observed Redfearn drive away from the house. He was stopped several miles away while the search of the house was going on and taken back to the house by the detaining officers. While executing the warrant, Redfearn’s girlfriend arrived at the house and eventually told the officers that Redfearn keeps drugs on his person. An officer strip-searched Redfearn at the residence and recovered a bottle containing oxycodone pills in his underwear. Redfearn moved to suppress under Bailey v. US, 133 S.Ct. 1031 (2013). AFFIRMED. The CCA explained that while Bailey held that a suspect may be lawfully detained while police are conducting a search warrant only when the person is in the “immediate vicinity” of the place to be searched, Redfearn was properly detained because the police had probable cause to arrest him based upon the controlled buys previously carried out with Redfearn and observed by law enforcement.

Nathaniel Woods (CR-10-0695)

Alfonso Morris (CR-11-1925)

John Russell Calhoun (CR-14-0779)

In these three cases, the CCA affirmed the denial of Rule 32 relief for death-row inmates without holding evidentiary hearings. There’s not much that’s noteworthy in these opinions outside of the observation that the petitions were summarily denied because each petitioner failed to plead sufficient facts that, if proven true, could entitle them to relief. The vast majority of the factual claims in the three petitions were bare-boned factual allegations. In Woods and Morris, petitioners raised claims that trial counsel was ineffective for failing to present certain expert testimony at trial. The CCA affirmed the summary dismissal of these claims because the petitioner failed to identify an expert and what that expert’s testimony would have been at the pleading stage. It bears repeating that if you’re going to raise an IAC claim, in order to be entitled to a hearing, you have to give the circuit court sufficient factual allegations that the court can conclude that your claims could entitle you to relief if proven true. In the context of IAC based on the failure to call certain expert witnesses, you need to make a proffer as to who that expert would have been and what the testimony would have been at the pleading stage.

Brian Fredick Lucas (CR-14-0744)

Lucas was convicted of first-degree attempted sodomy by forcible compulsion and first-degree sexual abuse stemming from an incident in which he allegedly touched his step-daughter on the mouth with his penis while she was sleeping. The CCA reversed his first-degree sodomy conviction on the grounds that the State’s showing did not present evidence of forcible compulsion — there was no threat by Lucas or evidence that his actions overcame her earnest resistance. The CCA did enter a judgment convicting Lucas of attempted sexual misconduct.

CCA CASELAW UPDATE – APRIL 2016

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.

CCA Caselaw Update – September and October 2015