Booker v. State

• Decision Date: 29 August 2003
• Parties: Tracy Lee BOOKER v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

896 So.2d 660

Tracy Lee BOOKER v. STATE of Alabama.

CR-02-0002.

Court of Criminal Appeals of Alabama.

August 29, 2003.

Opinion Concurring with Affirming Unpublished Memorandum on Return to Remand April 30, 2004.

Rehearing Denied June 18, 2004.

Certiorari Denied September 17, 2004

James F. Hampton, Montgomery, for appellant.

William H. Pryor, Jr., atty. gen., and Cedric B. Colvin, asst. atty. gen., for appellee. William H. Pryor, Jr., atty. gen., and Michael Billingsley and Cedric B. Colvin, asst. attys. gen., for appellee (on remand).

Alabama Supreme Court 1031509.

WISE, Judge.

Tracy Lee Booker was convicted of assault in the first degree, a violation of § 13A-6-20, Ala.Code 1975. He was sentenced to 15 years' imprisonment. However, pursuant to the Split Sentence Act, § 15-18-8, Ala.Code 1975, Booker's sentence was suspended and he was ordered to serve 36 months in prison, followed by 60 months of supervised probation. He was also ordered to pay a $100 assessment to the crime victims compensation fund, $2,830 in restitution, and all court costs.

Booker's trial began on June 10, 2002, and the jury returned a verdict of guilty on June 12, 2002. On June 27, 2002, Booker retained new counsel to represent him at the sentence hearing and on appeal. Booker was sentenced on September 24, 2002. On October 23, 2002, his counsel filed a motion for a judgment of acquittal or, in the alternative, a motion for a new trial; on November 21, 2002, counsel filed an amended and supplemental motion for a judgment of acquittal or, alternatively, a motion for a new trial. On September 27, 2002, Booker had filed a notice of appeal to this Court.¹ The circuit court did not rule on Booker's new-trial motion; instead, the court allowed the motion to be denied by operation of law.²

In his motion for a new trial and amended and supplemental motion for a new trial, Booker raises numerous allegations of error, including the following claims:

"7. That the Defendant did not receive a fair and impartial trial due to evidentiary rulings that allowed improper evidence of collateral crimes, conduct and/or behavior reflective of bad character, all on the part of the Defendant and not related to evidence of guilt as to the crime charged.

"8. That the Defendant did not receive a fair and impartial trial due to certain proceedings in regard to jury selection, the jurors' answers to voir dire questions, and the out-of-court visit by the jury to the scene of the incident.

"9. That the Defendant did not receive a fair and impartial trial due to the State's use of a post-arrest statement by the Defendant."

(C. 43.) Additionally, Booker's amended and supplemental new-trial motion alleged, among other things, that his trial counsel had been ineffective, based on "his trial counsel's failure to object to numerous evidentiary matters, jury instructions, failure of requested damages, and introduction of evidence...." (C. 47.)

The State did not refute any of the allegations in Booker's motion for a new trial. The motion was denied by operation of law, without a hearing or any ruling by the circuit court.

In Edgar v. State, 646 So.2d 683, 687 (Ala.1994), the Alabama Supreme Court addressed a similar situation:

"We hold that where, as here, a criminal defendant's motion for a new trial is denied under the provisions of Rule 24.4, Ala.R.Crim.P., without an affirmative statement by the trial judge giving the ruling a presumption of correctness and the defendant supports his new trial motion by evidence that was not presented at trial, and that evidence, if not controverted by the State, will entitle him to a new trial, the denial by operation of law should be reversed and the case remanded for the trial court to conduct a hearing on his motion for new trial and then enter an order either granting or denying the motion."

See also Pace v. State, [Ms. CR-01-1249, April 25, 2003] ___ So.2d ___, ___ (Ala.Crim.App.2003); Benjamin v. State, 889 So.2d 610, 612 (Ala.Crim.App.2003); McDade v. State, 864 So.2d 377, 378 (Ala.Crim.App.2002).

[2] While we express no opinion as to the merits of Booker's other grounds in his new-trial motion, we note that the aforementioned allegations are of particular concern to this Court, in light of various appellate decisions addressing these issues. See, e.g., Ex parte Vaughn, 869 So.2d 1090 (Ala.2002) (defendant's conviction reversed as a result of admission of improper evidence of collateral bad acts); Hunter v. State, 802 So.2d 265, 270 (Ala.Crim.App.2000) (same); Tomlin v. State, 695 So.2d 157, 175-76 (Ala.Crim.App.1996) (defendant's conviction reversed based on juror's failure to respond truthfully to questions asked during voir dire); Kidd v. State, 649 So.2d 1304, 1307 (Ala.Crim.App.1994) (defendant's case remanded for court to determine whether use of defendant's statement violated Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976)). Moreover, given that these issues appear to form the underlying basis for Booker's allegation of ineffective assistance of counsel, based on trial counsel's failure to object to the aforementioned matters, the circuit court should consider not only the substantive merits of these issues, but also how these issues relate to Booker's claim of ineffective assistance of counsel.

Based on Edgar, we remand this case for the circuit court to make specific, written findings of fact as to each claim Booker raised in his motion for a new trial. On remand, the circuit court should require the State to respond to the motion and should conduct a hearing on the motion. If the circuit court determines that Booker is entitled to relief on his claims, then the court may grant such relief as it deems appropriate.

The circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 56 days of the release of this opinion. The return to remand shall include the State's response, a transcript of the proceedings on remand, and the circuit court's specific written findings of fact.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and COBB and BASCHAB, JJ., concur.

SHAW, J., dissents.

On Return to Remand

WISE, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J., and BASCHAB, J., concur. COBB, J., concurs in the rationale in part and concurs in the result, with opinion. SHAW, J., concurs in the result.

COBB, Judge, concurring in the rationale in part and concurring in the result.

I concur with the majority as to all issues in its unpublished memorandum, except for Issue IV, with which I concur in the result only, for the reasons set forth below.

Many of my special writings in the cases decided by this Court are prompted by my perception that the rules of preservation are applied too strictly and that this Court sometimes holds that an appellant has failed to preserve an issue for our review when, I believe, it is clear that the trial court understood the objection being made. See, e.g., Young v. State, 890 So.2d 1108 (Ala.Crim.App.2004)(Cobb, J., concurring in part and concurring in the result)

; Haskins v. State, 883 So.2d 1273 (Ala.Crim.App.2003)(Cobb, J., concurring in the result); Coleman v. State, 870 So.2d 766 (Ala.Crim.App.2003)(Cobb, J., concurring in part and concurring in the result in part). My willingness to find that an...