Microsoft word - gardner presentation alabama update.doc

JUNE 22, 2006

Rompilla v. Beard - 545 U.S. ___ (2005)
This case was released around the time of our last meeting. This was a post-conviction death penalty case. Trial counsel had failed to review Rompilla’s prior conviction file even though they were on notice that the Commonwealth (Pennsylvania) was going to present evidence regarding the file. In the file were numerous references to Rompilla’s upbringing, indications that he may have suffered from schizophrenia, and test scores reflecting that he had a third-grade level of cognitive ability. The Supreme Court held that the failure to investigate this possible mitigation violated Strickland v. Washington. DISSENT: It was a
5-4 decision. Justice Kennedy opined that “the Constitution does not mandate that Georgia v. Randolph
Randolph and his wife had resumed living together following a separation. His wife called police complaining that Randolph had taken their son away during a domestic dispute. When the police arrived, the wife told the police that her husband was a cocaine user and that some of the drugs and related paraphernalia were inside the residence. Randolph returned shortly thereafter and refused to consent to a search. The wife then took the police to the cocaine. The Court held that a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident violates the Fourth Amendment. Brigham City v. Stuart - (2006)
Police responded to a local party complaint. Upon arrival at the residence, officers observed two juveniles drinking beer in the back yard. The police saw a fight going on in the kitchen of the residence and saw one of the participants spitting blood into the kitchen sink. Police entered the residence, and ultimately charged the owners with various offenses. The Utah Supreme Court held that the search violated the Fourth Amendment. In a unanimous decision, the Court reversed holding that police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such an injury. ALABAMA SUPREME COURT
Ex Parte La Pointe, 14 A.L.W. 26-5 (July 1, 2005)
La Pointe entered a guilty plea to a felony, but expressly reserved the right to appeal the denial of his application for youthful offender status. The Court of Criminal Appeals denied relief, stating that the preservation issue was raised after the guilty plea was entered. The Supreme Court noted that the trial judge specifically stated that the plea was made with the understanding that issue was Ex Parte Parks, 14 A.L.W. 26-6 (July 1, 2005)
Parks was convicted of felony murder. Parks and three others went to a house to rob a man. While Parks remained inside the car during the robbery, one of her co-participants was shot and killed by one of the occupants of the house. The Court of Criminal Appeals affirmed stating that Parks had not appropriately preserved her argument about the applicability of the felony murder rule to her case. The Supreme Court reversed, holding that Parks’ lawyer made a motion for judgment of acquittal. In said motion, the lawyer argued that the felony murder rule was inapplicable to this set of facts. This was sufficient to preserve the Ex Parte Williford, 14 A.L.W. 38-2 (September 23, 2005)
The issue of what constitutes “forcible compulsion” in sex cases has been litigated extensively in recent years. In this case, the defendant was a 40-year old man who was convicted of rape and sodomy. The Supreme Court took the view that the defendant had no basis for believing that the sexual contact was Ex Parte Taylor, 14 A.L.W. 40-6 (October 7, 2005)
Cert was granted on the question of whether a determination on direct appeal that there was no plain error precluded a finding of prejudice in post- conviction proceedings. The Supreme Court held that such a finding does not Ex Parte Bradley, 14 A.L.W. 41-3 (October 14, 2005)
The defendant was charged with robbery in the first degree and attempted murder. The jury convicted him of reckless endangerment as a lesser-included offense of attempted murder. The jury also convicted him of assault in the second degree as a lesser-included offense of robbery in the first degree. The Court of Criminal Appeals held that, under the facts of this case, assault in the second degree was not a lesser-included offense of robbery in the first degree. The question presented on cert was whether the State was precluded from retrying the defendant on the first-degree robbery charge. The Supreme Court held that the Double Jeopardy Clause of the Fifth Amendment would bar such a retrial. Ex Parte Benford, 15 A.L.W. 5-4 (February 3, 2006)
Two defendants were consolidated for trial on charges of attempted murder. A jury was struck and sworn after both defendants waived the right to have the minimum 36 prospective jurors. The following day, the trial judge sua sponte declared a mistrial on the ground that she believed that the jurors had been preliminarily qualified and that she failed to do so. Writs of mandamus were issued, with the Court holding that, absent a high degree of manifest necessity, a mistrial is not warranted. Jeopardy attached when the jury was sworn. Ex Parte E.J.M., 14 A.L.W. 43-3 (October 28, 2005)
E.J.M. was certified to stand trial as an adult. He moved the juvenile court for an order for funds to retain a mental health expert to testify at his transfer hearing. The juvenile court denied that request but did order an outpatient mental evaluation. In affirming its prior decision in Ex Parte H.P.W., 628 So.2d 514
(Ala. 1993), the Supreme Court held that due process does not require the expenditure of funds for a mental health expert of the juvenile’s choosing when the juvenile court has provided the juvenile with a court-appointed, independent Ex Parte Walker, 14 A.L.W. 45-3 (November 11, 2005)
The defendant was indicted on January 14, 2000, but was not arrested until January 26, 2003. She entered guilty pleas on March 25, 2004, but reserved her right to appeal her speedy trial issue. The court went through a lengthy analysis of the four factors relevant in speedy trial claims under Barker v. Wingo, 407 U.S.
514 (1972). The four factors are length of the delay, reason for the delay, the defendant’s assertion of her right and prejudice to the defendant. The Supreme Court held that the 50-month delay was presumptively prejudicial and thus warranted a review of the other factors. Though an analysis of the factors would normally entitle her to relief, she failed to establish any actual prejudice. Ex Parte C.L.Y., 14 A.L.W. 46-4 (November 18, 2005)
C.L.Y. was adjudicated delinquent on the underlying charge of sexual abuse. The alleged victim was three years old and did not testify at the proceeding. However, her out-of-court statements made to the parents and the attending physician were admitted under other exceptions to the hearsay rule. The Supreme Court held that these statements can be used as corroborating evidence to justify the admission of other hearsay statements under Code of Alabama §15-25-
Ex Parte McCormick, 14 A.L.W. 48-3 (December 2, 2005)
Three petitions were consolidated for hearing. The Court of Criminal Appeals had interpreted the 2000 Amendment to the Alabama Split Sentence Act as requiring a defendant who has received a sentence of more than 15 years but less than 20 years to serve 3 years in actual confinement. The Supreme Court granted the mandamus petition and held that the trial courts had the authority to suspend the actual time to be served under the Act. Ex Parte Yelverton, 14 A.L.W. 50-6 (December 16, 2005)
The defendant was convicted of DUI. The defendant requested a hospital blood test, and was told that such arrangements would be made following the taking of the breath test. The question presented was whether the defendant’s due process rights were violated by his being denied the independent blood test authorized by Title 32-5A-194(a)(3), when his request was made before he submitted to a breath test. Under 32-5A-194(a)(3), a person may have a chemical test or other test administered at his own expense. But, a defendant in a DUI case III. THE ALABAMA COURT OF CRIMINAL APPEALS
State v. Garrison, 14 A.L.W. 26-11 (July 1, 2005)
A confidential informant was sent into a residence occupied by a “Wayne Calhoun”. The affidavit later procured to secure a search warrant identified the seller of the marijuana to be “Wayne Calhoun”. When police executed the search warrant, a large a mount of marijuana was seized. Garrison and his stepson were the only occupants of the residence at the time. The trial court suppressed the evidence. The Court reversed holding that “while it is preferable for a search warrant to contain the name of the owner or occupier of the premises to be searched, there is no constitutional requirement that it do so.” State v. Strickland, 14 A.L.W. 41-6 (October 14, 2005)
A store employee called the police about the defendant’s purchase of pseudophedrine. The trial court granted the defendant’s motion to suppress, citing Ex Parte Shaver, 894 So.2d 781 (Ala. 2004). The Court reversed, holding that the
store employee gave much more information than in the Shaver case. The Court
specifically took note that the call included a description of the automobile, a description of the suspect, a license plate number, and the direction of travel. Fullenwilder v. State, 15 A.L.W. 6-6 (February 10, 2006)
Fullenwilder was stopped in a “high-crime” area. The officer testified that he was in the area based on several drug-related complaints received on the witness hotline. Fullenwilder walked out of a suspected shot house and got into a car that was “illegally parked”. Officers stopped Fullenwilder, conducted a Terry
search, and discovered crack and marijuana during a pat down. The Court sustained the search, holding that the fact that a stop occurring in a “high-crime” area is relevant to Terry analysis. In throwing an inedible bone to the defendant,
the Court admitted that this was a “close case”. Harris v. State, 15 A.L.W. 6-7 (February 10, 2006)
Harris’ vehicle was searched without a warrant. The vehicle was parked on Harris’ property. A confidential informant related to police that Harris had marijuana in his vehicle. The Court of Criminal Appeals upheld the search, concluding that the automobile exception applies to vehicles located on private property without any additional exigent circumstances. King v. State, 14 A.L.W. 27-7 (July 8, 2005)
King was convicted of the sexual abuse of E.M. He argued on appeal that certain statements of the child were hearsay, and that their admission violated the holding in Crawford. In this case, however, E.M. testified at the trial and, thus,
Crawford was not implicated.
Bonner v. State, 14 A.L.W. 27-8 (July 8, 2005)
Bonner was convicted of first-degree robbery. He allegedly wore pantyhose during the robbery. During closing argument, the prosecutor placed a brown pair of pantyhose over his head. The pantyhose was not in evidence, and the specific color of pantyhose was a matter of factual dispute. The Court found that the prosecutor’s actions went beyond the scope of legitimate argument, but that it was subject to harmless error analysis. DISCOVERY – (POST-CONVICTION PROCEEDING) Ex Parte Perkins, 14 A.L.W. 31-6 (August 5, 2005)
In a post-conviction proceeding, Perkins sought access to the prosecutor’s notes made during voir dire in his case. As a matter of first impression, the Court held that such notes constitute work product and are not subject to discovery. Turner v. State, 14 A.L.W. 35-3 (September 2, 2005)
Turner was convicted of possession of cocaine on a theory of constructive possession. Turner was allegedly observed by police returning in his vehicle to retrieve some crack that had been thrown out of the vehicle during a police chase. Turner’s passenger claimed the cocaine in question. The State sought to admit evidence of Turner’s five previous convictions for possession of cocaine admitted under Rule 404(b). The trial judge allowed one to be admitted. The Court reversed, holding that the record disclosed no logical connection between the defendant’s knowledge of cocaine generally, and his knowledge of the presence of cocaine in his vehicle, or his intent to possess this particular cocaine. McMillian v. State, 14 A.L.W. 35-4 (September 2, 2005)
McMillian was convicted of murder and sentenced to life. Two previous convictions for receiving stolen property in the second degree were used to enhance punishment. After these convictions were vacated, he was entitled to Davis v. State, 14 A.L.W. 35-8 (September 2, 2005)
Davis sought post-conviction relief for a 1978 conviction for buying, receiving and concealing stolen property. He correctly alleged that the indictment to which he had entered his plea failed to include the element of intent. As such, his plea and conviction were rendered void. Goetzman v. State, 14 A.L.W. 40-9 (October 7, 2005)
I have read about fifteen cases on this issue in the last year. The defendant was indicted for robbery first, and plead guilty to robbery second. The Circuit Court lacks jurisdiction to accept such a plea unless the indictment is amended to reflect that the defendant was aided in the robbery. Madden v. State, 15 A.L.W. 6-8 (February 10, 2006)
Three old receiving stolen property convictions were overturned due to defective indictments. The indictments failed to allege “intent”, an essential Benjamin v. State, 14 A.L.W. 40-9 (October 7, 2005)
Benjamin was convicted of murder made capital by virtue of robbery. During the trial, a taped conversation between Benjamin and a friend was admitted into evidence. Neither Benjamin nor his friend authenticated the tape. The Court held that someone authenticating a tape need not have been a participant in the Benjamin also argued that the trial court erred in failing to charge on residual doubt. The Court affirmed its previous holding in Melson v. State, 775
So.2d 904 (Ala. 2004) that a defendant does not have a constitutional right to reconsideration by the sentencing body of lingering doubts about his guilt. Casey v. State, 14 A.L.W. 41-6 (October 14, 2005)
Casey challenged his 1983 conviction for attempted robbery and resultant life sentence. Under the Alabama Criminal Code, there is no such offense as D.D.C. v. State, 14 A.L.W. 44-5 (November 4, 2005)
The juvenile was charged with sexual abuse in the first degree, and was adjudicated delinquent of harassment. The Court held that harassment is not a lesser-included offense of sexual abuse. To be a lesser-included offense, the lesser must be such that it is impossible to commit the greater without first having Bush v. State, 14 A.L.W. 48-6 (December 2, 2005)
The alleged victim bought a cemetery plot for her husband in 1997. When he died in 2003, she discovered that she had no such burial plot. The Defendant was indicted. The Court held that this was in violation of the three-year statute. Any false pretense occurring after the victim parted with the property could not operate as an inducement for the victim to part with the property in the first place. Morris v. State, 14 A.L.W. 50-13 (December 16, 2005)
Morris was found guilty of capital murder and sentenced to death. Trial counsel filed a motion for a psychiatric evaluation. The trial court appointed Dr. Kimberly Ackerson, who opined that Morris was not competent. Subsequently, a Dr. Nagi from Taylor-Hardin opined that Morris was “malingering”. Prior to trial, counsel requested funds to hire a mental health expert independent of the State Department of Mental Health. The trial court denied this request. The Court reversed, relying on Ake. Due process guarantees a defendant the right to an
independent expert, who can assist in evaluation, preparation and presentation of a Robitaille v. State, 14 A.L.W. 50-14 (December 16, 2005)
Robitaille was convicted of capital murder. After Robitaille testified in his own defense, the prosecutor stood, clapped and shouted “Bravo”. “While we do not condone the prosecutor’s actions, we cannot say that they amounted to a denial Nash v. State, 14 A.L.W. 50-15 (December 16, 2005)
Nash was on probation for possession of marijuana. After a hearing that included only the hearsay testimony of the probation officer and a police officer, neither of whom had personal knowledge about the circumstances of the new case, the trial court revoked probation. The Court held that hearsay alone will not In Re: Sorsby, 14 A.L.W. 51-7 (December 23, 2005)
Sorsby plead guilty in district court to driving under the influence. Eight days later, he filed a notice of appeal for trial de novo. The State sought mandamus relief asserting that Sorsby had preserved no issue for appeal under the Alabama Rules of Criminal Procedure. Court held that the appeal was due to be dismissed, holding that the Rules as amended limit the right to appeal a plea of guilty no matter what court had original jurisdiction of the case. Hastings v. State, 14 A.L.W. 52-3 (December 30, 2005)
Kirby proceeding, a petitioner does not have a right to counsel. It is
not a critical stage of the proceedings for which a defendant would have a right to Jennings v. State, 15 A.L.W. 8-3 (February 24, 2006)
The Court held that the trial court’s hearing was a “textbook” on the factors to be considered on a motion to suppress an in-court identification. The five factors to be considered include (a) the witness’s opportunity to view the perpetrator at the time of the crime; (b) the witness’s degree of attention at the time of the crime; (c) the accuracy of the witness’s prior description of the perpetrator; (d) the level of certainty demonstrated at the confrontation; and (e) the time between the crime and the confrontation. Davis v. State, 15 A.L.W. 10-6 (March 10, 2006)
The Court ruled that Davis should be procedurally defaulted into Alabama’s death chamber. The Court stated that trial counsel did not fully explore Davis’ abusive childhood and failed to minimally meet the Wiggins guidelines.
The Court stated that it would have been compelled to grant relief but for Sanders v. State, 15 A.L.W. 13-6 (March 31, 2006)
Sanders was convicted of robbery in the first degree. The State sought and received the firearm enhancement upon the conviction. The Court held that the statute creating the firearm enhancement applied only where a firearm was used, and not in those cases where the defendant only represented that he was armed. S.T.E. v. State, 15 A.L.W. 18-9 (May 5, 2006)
The Court held that a youthful offender adjudication in a drug case bars imposition of the DDRA and the DFS assessments. Brand v. State, 15 A.L.W. 19-11 (May 12, 2006)
As a matter of first impression, the Court held that pharmaceutical labeling falls within the “market list” exception to the hearsay rule found in 803(17). B.H. v. State, 15 A.L.W. 20-11 (May 19, 2006)
In the continuing tug of war regarding what constitutes forcible compulsion, the Court held that this element was not proved under the facts of this case. The defendant was the fifteen-year-old uncle of the five-year-old victim. IV. LEGISLATION
Becomes effective July 1, 2006, and defines “person” to include an unborn child for purposes of Alabama’s Criminal Homicide Statute. (Includes assaults.) Effective June 1, 2006. Amend burglary 1 and 2 statutes to exclude Effective March 10, 2006. Requires the filing of post-sentence or presentence reports in electronic format. (Still requires motion of either party or Effective June 1, 2006. Makes it a Class A, B, C felony to “chemically endanger a child in the manufacturing of controlled substances. Effective date is July 1, 2006. Provides that a prior conviction within a five-year period for driving under the influence of alcohol or drugs from this state, a municipality within this state, or another state or territory may be considered by These are some of the notable new statutes. In the latest issue of The Guardian, Bill Blanchard provided a comprehensive listing of all the new laws relating to criminal practice. You can access the legislative website at: And my favorite of the year is Act 06-585, which established the crime of disrupting a funeral or memorial service.


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