On Friday May 3, 2024, the Alabama Court of Criminal Appeals released new published opinions in a number of cases. Unlike memorandum opinions, published opinions are precedential—meaning that they are decisions that are binding on future cases, both at trial and on appeal. Below are some the highlights of these decisions:
Sykes v. State, CR-2022-0546 (Ala. Crim. App. May 3, 2024)
This was a rare decision overturning a death penalty capital murder conviction. During rebuttal closing arguments, the prosecutor said “There’s only two people in the world that know what happened in that house. One of them’s dead, and the other is sitting right over there at the end of that table” while indicating at Sykes.
A criminal defendant has the right to remain silent; and, generally speaking, the prosecution cannot comment on the fact that the defendant has invoked this right. On appeal, Sykes argued that this was an impermissible comment on his decision not to testify and constituted plain error. The Court of Criminal Appeals agreed with Sykes that the prosecutor’s argument crossed the line and that the judge was wrong in allowing the prosecutor to do so—even without an objection from Sykes’ lawyers.
There was also a dispute of whether Sykes would be subject to override because he was originally indicted in 2015 and reindicted in 2019. Everyone agreed at the circuit court that Sykes would be subject to the 2017 amendment barring judicial override, but the Court made clear that decision was wrong because he was originally indicted in 2015.
Mulkey v. State, CR- 2022-1234 (Ala. Crim. App. May 3, 2024)
This was a probation revocation case where the primary issue was whether the circuit court conducted a proper hearing before revoking Mulkey’s probation. The State argued that the Court of Criminal Appeals needed to limit the scope of arguments that could be made without preserved arguments at the trial court level.
The Court largely rejected the State’s attempts to narrow the preservation requirements in revocation appeals, but did hold that there is a difference between the due process requirements for a revocation proceeding and the Rule 27’s requirements. Not all of Rule 27’s requirements are jurisdictional and essential to minimum due process standards. Requirements that are based in jurisdictional or minimum due process requirements are not subject to preservation requirements when appealing revocation, but aspects of Rule 27 that are not jurisdictional or minimum due process requirements are subject to the preservation requirements.
Basically, this means that an argument that the revocation proceeding didn’t comply with due process does not have to be preserved, but an argument that the revocation proceeding did not comply with Rule 27—without a due process aspect—does have to be preserved.
State v. McGrady, CR-2023-0867 (Ala. Crim. App. May 3, 2024)
This is a speedy trial case with a 20 month delay. To succeed on a speedy trial claim, the defendant has to satisfy the 4-part Barker test. That test looks at the length of the delay, the reason for the delay, whether the defendant asserted his right to speedy trial, and whether the delay prejudiced the defendant.
Here, the delay was long enough to be problematic, but the state justified the delay as being the result of the COVID backlog and the Court agreed. As always, the real problem is the prejudice prong. McGrady was not entitled to presumed prejudice and did not show actual prejudice.
Cofer v. State, CR-2023-0008 (Ala. Crim. App. May 3, 2024)
Voyeurism case. Cofer challenged the admission of his internet searches as 404(b) evidence due to lack of notice and because the evidence was more prejudicial than probative. The lack of notice of intent to introduce the evidence was not really disputed, but because the evidence had been included in discovery—even though the defense didn’t have the software to review the evidence—any lack of notice was harmless. The evidence was admissible for motive and intent purposes and the probative value outweighed the prejudicial effect.
The Court also held that there was sufficient evidence to support the voyeurism charges and addressed the expectation of privacy aspect. But vacated the sentence because the 8 year probation term was illegal.
Ketchum v. State, CR-2023-0611 (Ala. Crim. App. May 3, 2024)
Ketchum was convicted of manslaughter for running over the victim. On appeal, he challenged the modified jury instruction on bad character, but the issue was not preserved and meritless. He also challenged the lack of a hearing outside the presence of the jury on the voluntariness of his statement to police while being transported. The Court held because there was no oral or written motion to suppress, there was no requirement for a hearing.
Henderson v. State, CR-21-0044 (Ala. Crim. App. May 3, 2024)
Death penalty case. Issues were:
1) Plain error courtroom closures; 2) insufficient evidence on the capital murder—protective order charge, 3) plain error review of how the state had to prove he had been served with the protective order; 4) plain error review of admission of surveillance cameras under silent witness theory, 5) admission of autopsy reports; 6) jury instructions; 7) Batson; 8) prosecutorial misconduct; 9) improper comment on Henderson’s silence; 10) non-unanimous death verdict violations Sixth Amendment;
On the protective order charge, the court held that there must have been a protective order issued against the defendant, in favor of the victim, and the order had to be in effect at the time of the victim’s death. On the manner of proving he had been served, the return of service was admissible without testimony by the serving officer.
Lavender v. State, CR-2023-0278 (Ala. Crim. App. May 3, 2024)
Lavender challenged the sufficiency of his murder, attempted murder, and shooting into an unoccupied vehicle convictions, but the Court rejected that argument. The court did remand for resentencing on the shooting into an unoccupied vehicle conviction.
Horton v. State, CR-2023-0301 (Ala. Crim. App. May 3, 2024)
No error in refusing to allow Horton to withdraw his guilty plea after he was sentenced different than the plea agreement after he was told he had to appear for sentencing and then emailed the court on the day of sentencing saying he had family in town and couldn’t make it.
Wilder v. State, CR-2023-0324 (Ala. Crim. App. May 3, 2024)
The Court affirmed the sufficiency of Wilder’s discharging a firearm into an occupied vehicle and second-degree assault convictions, but remanded to correct the illegal probationary period of the second-degree assault sentence.
Harmon v. State, CR-2022-1131 (Ala. Crim. App. May 3, 2024)
The court reversed Harmon’s conviction for possession of a short barrel shotgun because the State failed to prove constructive possession. Her presence in the car where the gun was found was insufficient.
Ex parte State, CR-2023-0495 (Ala. Crim. App. May 3, 2024)
The State’s mandamus petition was denied. The State sought to have the circuit court’s waiver of the 30% collection fee for the collection of unpaid restitution vacated, but the Court held that the State had failed to sufficiently support the claim in the petition and appendix.
