On Friday, the 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:
Harrison v. State, CR-21-0423 (Ala. Crim. App. August 18, 2023)
Harrison was convicted of capital murder and sentenced to life without parole. On appeal, he argued 4 issues.
(1) That the circuit court erred when it refused to instruct the jury on reckless manslaughter as lesser included offense. Because evidence presented at trial could have shown that Harrison killed the victim while returning fire, there was no grounds for a reckless manslaughter instruction because that would be acting in self-defense. This distinction is important because a self-defense claim justifies the shooting while reckless manslaughter is a non-justified reckless shooting.
(2) That the circuit court erred in denying Harrison’s request for the jury summons list one day prior to trial. This was rejected because Harrison requested the list before his first trial, not his second trial, and objections do not carry over.
(3) That the circuit court erred in admitting Facebook videos that were not authenticated, relevant, and any relevancy was outweighed by unfair prejudice. The authentication issue is especially noteworthy because it required the Court to address an unanswered issue about silent witness authentication of a video the defendant is claimed to be the maker of. The Court held that in such circumstances, the Voudrie test does not have to be completely satisfied because videos on social media are often made with cellphones making completely satisfying the Voudrie test impossible. This is going to allow almost any social media video to be authenticated.
(4) That the circuit court erred by overruling objections made during the State’s closing arguments.
Iervolino v. State, CR-21-0283 (Ala. Crim. App. August 18, 2023)
The Court reviewed Iervolino’s capital murder conviction and death sentence on direct appeal. The Court ultimately affirmed Iervolino’s convictions and death sentence, but there are two notable procedural aspects of how the Court will handle reviewing death penalty cases on direct appeal going forward.
First, Rule 45A, Ala. R. App. P., previously mandated plain error review in all death cases, but 45A now makes plain error review discretionary. Plain error review means that the Court will consider issues that were not raised at trial, but it will do so under the plain error standard of review. The Court acknowledged the change in Rule 45A and stated that it intends to continue reviewing the entire record for plain error review, but it will exercise its discretion in addressing plain error claims in opinions going forward. In other words, the Court will consider claims raised under plain error, but may not always address these claims in the opinion.
Second, § 13A-5-53(a) requires the Court to determine whether the trial court’s findings on aggravating and mitigating evidence were supported by the evidence. But when the legislature ended judicial override, it so removed subsection (d) from § 13A-5-47, which required the trial court to make specific findings of fact about the existence of statutory aggravating circumstances and statutory and non-statutory mitigating circumstances. Now the trial court is only required to do so in cases where jury sentencing has been waived. Nor are juries required to do special verdicts on aggravators and mitigators. Therefore, the Court cannot review whether these were supported by the evidence.
Judge Kellum wrote the main opinion and a separate concurrence that specifically addressed these two procedurally aspects and asked the Legislature to correct the problems pointed out in the concurrence.
Substantively, the Court addressed the following claims: (1) whether the circuit court erred in requiring Iverolino to wear a stun belt during trial; (2) change of venue; (3) whether the voir dire process violated state and federal law as inadequate; (4) death qualifying jurors; (5) failure to remove jurors for cause; (6) Batson challenges; (7) authentication of surveillance; (8) pictures of the victim and crime scene; (9) St. Clair DA’s office was improperly involved after recusing; (10) victim impact during guilt phase; (11)substantial omissions in the record on appeal; (12) insufficient evidence; (13) prosecutorial misconduct during closing; (14) jury instructions at guilt and penalty phase; and (14) Violated Ramos v. Louisiana because not unanimous.
State v. Shaw, CR-2022-1003 (Ala. Crim. App. August 18, 2023)
The Court considered a pre-trial appeal by the State after the circuit court ruled against the State on three issues. The State had moved pre-trial to (1) restrict Shaw from introducing evidence concerning the outcome of his brother and co-defendant’s trial where his brother was acquitted of all charges; (2) be allowed to introduce a fire report about a fire that occurred at Shaw’s house 24 hours before the murders; and (3) to be allowed to call officer Rodriguez Jones to testify. After the circuit court ruled against the State on these issues, the State sought to appeal these issues to the Court of Criminal Appeals.
On the motion to restrict Shaw from introducing evidence, the Court held that this issue was not properly before the Court because Rule 15.7(a) is specific on what grounds the State may appeal pre-trial and the denial of a motion in limine is not an authorized ground.
On the fire report and excluding the officer’s testimony, the Court held that the circuit court did not abuse its discretion. Circuit courts have broad discretion in admitting or excluding evidence, especially when the circuit court outlines the rationale behind its decision. Notably the officer’s testimony was excluded in part because the State violated the open file discovery order.
Thomas v. State, CR-2022-0789 (Ala. Crim. App. August 18, 2023)
The Court reviewed Thomas’s conviction and life without parole sentence. Thomas was convicted of murder and sentenced to life without parole as a habitual felony offender. On appeal Thomas raised 3 main issues.
First, he challenged the circuit court’s denial of his motions to remove two prospective jurors for cause based on statements indicating they could not be impartial. The Court rejected this argument because neither witness indicated that they could not be impartial based on the totality of the voir dire process.
Second, he challenged the circuit court’s limitation of his cross-examination of a witness regarding a prior statement. The Court rejected this argument because the circuit court did not limit the cross-examination but made clear that if defense counsel pursued the line of questioning about the prior statements that the State would be free to go into the subject of the prior statements. Defense counsel stopped the line of questioning.
Third, the Court rejected Thomas’s argument that he had not been given sufficient notice about prior felonies and the State had not presented sufficient evidence of the felonies to sentence him to life without parole.
Johnson v. State, CR-2023-0287 (Ala. Crim. App. August 18, 2023)
The Court reversed the summary dismissal of Johnson’s Rule 32 petition seeking an out of time appeal to appeal his initial Rule 32 petition and remanded Johnson’s case to the circuit court to conduct an evidentiary hearing on whether the out of time appeal should be granted.
Bohannon v. State, CR- 21-0148 (Ala. Crim. App. August 18, 2023)
The Court affirmed the partial denial/partial summary dismissal of Bohannon’s Rule 32 petition challenging his capital murder conviction and death sentence. The claims on appeal all concerned ineffective assistance of counsel.
Those claims included: (1) Counsel failed to fully educate Bohannon about self-defense claims; (2) counsel failed to subject the state’s case to meaningful adversarial testing; (3) counsel made promises in opening and failed to keep them; (4) counsel hardly met with Bohannon; (5) counsel failed to investigate and present testimony from family and community in penalty phase; (6) counsel didn’t object to evidence about meth; (7) counsel failed to challenge confusing and misleading instructions and verdict forms; (8) counsel allowed the jury to consider the absence of mitigating circumstances as aggravation; (9) counsel failed to object to victim impact; (10) cumulative effect
Miller v. State, CR-20-0654 (Ala. Crim. App. August 18, 2023)
The Court reviewed Miller’s life without parole sentence. Evan Miller was the defendant in Miller v. Alabama, a United States Supreme Court case where the Supreme Court held that juvenile capital murder defendants could not automatically be sentenced to life without parole. As a result, capital murder defendants who were less than 18 years old at the time of the offense received new sentencing hearings to determine whether life without parole or life with the possibility of parole was the appropriate sentence.
Despite being the case that started the process of “Miller hearings,” Evan was resentenced to life without parole by the circuit court. On appeal, the Court’s opinion considered arguments that the circuit court had erred in detail but affirmed the life without parole sentence.
State v. Tanniehill, CR-2022-1121 (Ala. Crim. App. August 18, 2023)
The Court held that although Tanniehill’s sentence was illegal, the circuit court lacked jurisdiction to set the sentence aside because Tanniehill’s sentence had ended before the illegality was broad to the circuit court’s attention.
Town of Brookside v. Newton, CR-2023-0059 (Ala. Crim. App. August 18, 2023), and Town of Brookside v. Gengler, CR-2023-0061 (Ala. Crim. App. August 18, 2023)
The Court reversed the circuit court’s order granting the defendant’s motion to dismiss.
Both of these cases are part of the wave of cases that were appealed from the Brookside municipal court to the circuit court following the revelations of what the Brookside police department and municipal court were doing. Despite the outrage, circuit courts can’t make credibility and sufficiency determinations pre-trial. Rule 13.5(c)(1) is very specific in the grounds for dismissing indictments pre-trial and this isn’t one of the grounds. Therefore, the circuit court lacked any authority to dismiss the charges as it did in these and other cases.