Bradley v. State

• Decision Date: 07 October 2005
• Docket Number: 1040558.
• Citation: 925 So.2d 232
• Parties: Ex parte State of Alabama. (In re Robert James BRADLEY v. STATE of Alabama).
• Court: Alabama Supreme Court

925 So.2d 232

Ex parte State of Alabama.

(In re Robert James BRADLEY v. STATE of Alabama).

1040558.

Supreme Court of Alabama.

October 7, 2005.

Troy King, atty. gen., and Stephanie N. Norman and Jean-Paul M. Chappell, asst. attys. gen., for petitioner.

Steven T. Speakman, Auburn, for respondent.

HARWOOD, Justice.

Robert James Bradley was indicted for robbery in the first degree under § 13A-8-41(a)(1), Ala.Code 1975 (person committing the robbery is armed with a deadly weapon or dangerous instrument), and for attempted murder. At his trial he was found guilty of reckless endangerment as a lesser-included offense of the charge of attempted murder and of assault in the second degree under § 13A-6-21(a)(2), purportedly as a lesser-included offense of the charge of robbery in the first degree. He was sentenced to one year in the Mobile County jail on the reckless-endangerment conviction and to life imprisonment, as a habitual felony offender, on the conviction for assault in the second degree. He subsequently appealed his second-degree-assault conviction and sentence, but he did not appeal the conviction for reckless endangerment.

Bradley's trial counsel was allowed to withdraw, and new counsel appointed to represent Bradley on appeal; that attorney filed a "no merit" brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and requested permission to withdraw as Bradley's counsel. On May 5, 2004, the Alabama Court of Criminal Appeals granted that request, appointed as successor appellate counsel the attorney presently representing Bradley, and directed that attorney to file a brief addressing the following pertinent question:

"In light of Powell v. State, 624 So.2d 220 (Ala.Crim.App.1993), is second-degree assault under § 13A-6-21(a)(2), Ala.Code 1975, the crime for which the appellant was convicted, a lesser-included offense of first-degree robbery under § 13A-8-41(a)(1), Ala.Code 1975, the crime for which the appellant was indicted?"

The Court of Criminal Appeals issued an opinion on Bradley's appeal on October 1, 2004, holding that "second-degree assault under § 13A-6-21(a)(2) is not a lesser-included offense of first-degree robbery under § 13A-8-41(a)(1)" and that, consequently, "the trial court lacked jurisdiction to adjudge Bradley guilty of second-degree assault based on the indictment charging robbery in the first degree"; it reversed Bradley's conviction and sentence for second-degree assault. Bradley v. State, 925 So.2d 221, 226 (Ala.Crim.App.2004). Additionally, the Court of Criminal Appeals stated: "Moreover, the jury's verdict finding Bradley guilty of second-degree assault effectively acquitted Bradley of first-degree robbery as charged in the indictment; thus, Bradley cannot be retried for robbery in the first degree." Id. The State applied for rehearing as to both the holding that assault in the second degree was not a lesser-included offense of robbery in the first degree and the holding that Bradley could not be retried for the offense of robbery in the first degree. The Court of Criminal Appeals overruled the application for rehearing on January 7, 2005, but extended its original opinion to explain:

"We did not hold that second-degree assault under § 13A-6-21(a)(2) can never be a lesser-included offense of first-degree robbery under § 13A-8-41(a)(1); our holding was that, under the facts in this particular case, second-degree assault under § 13A-6-21(a)(2) is not a lesser-included offense of first-degree robbery under § 13A-8-41(a)(1) as charged in Bradley's indictment. We agree with the State that the evidence introduced at trial in this case established an assault; however, the facts necessary to support that charge were not alleged in Bradley's indictment, as was the case in Ex parte Jordan [, 486 So.2d 485 (Ala.1986)]."

Bradley v. State, 925 So.2d 221, 227 (Ala. Crim.App.2004) (opinion on rehearing).

The Court of Criminal Appeals did not address in its opinion on rehearing the State's separate contention that, even if assault in the second degree was not a lesser-included offense of robbery in the first degree under the particular subdivisions of the respective Code sections at issue, an implied acquittal for robbery in the first degree had occurred so that Bradley could not be retried for that offense.

Subsequently, the State filed a petition for a writ of certiorari with this Court, challenging only the holding of the Court of Criminal Appeals that Bradley had been effectively acquitted of the offense of first-degree robbery and could not be retried for that offense. The State asserted that the holding of the Court of Criminal Appeals conflicted with a statement by this Court in Wright v. State, 902 So.2d 738 (Ala.2004). In Wright, this Court, after holding that, under the particular circumstances of each of the two cases consolidated for certiorari review, a charge of second-degree robbery was not available as a lesser offense included in the charge of first-degree robbery, concluded that the original indictments in each case charging first-degree robbery remained valid and that the State "may still try [the two defendants] on those charges, or it may attempt to reindict them for another offense justified by the facts." Wright, 902 So.2d at 742. We granted the State's petition solely to review the single issue whether the Court of Criminal Appeals erred in concluding that the jury's verdict finding Bradley guilty of second-degree assault effectively acquitted him of the charge of first-degree robbery, so that Bradley cannot be retried on the robbery-in-the-first-degree charge. It is to be noted that the State does not seek review of the Court of Criminal Appeals' holding that second-degree assault under § 13A-6-21(a)(2) was not a lesser-included offense of first-degree robbery under § 13A-8-41(a)(1) as charged in Bradley's indictment. We affirm.

The record reveals that immediately following the evidentiary stage of the trial, the trial judge conducted a charge conference with counsel, and, in the process, solicited their views as to appropriate lesser-included offenses with respect to both charged offenses. With respect to the charge of first-degree robbery predicated on § 13A-8-41(a)(1), Ala.Code 1975, Bradley's attorney requested a charge on assault in the third degree as a lesser-included offense. The assistant district attorney prosecuting the case advised the court that the State was not requesting any lesser offenses to the charged offense of robbery in the first degree, and he expressed the opinion that the facts of the case would not accommodate third-degree assault as a lesser-included offense. However, after the judge expressed his view that third-degree assault could be a lesser-included offense of first-degree robbery, the assistant district attorney took the position that if an instruction on assault was going to be given, it should be predicated on § 13A-6-21(a)(2), under which a person commits the crime of assault in the second degree if, with intent to cause physical injury to another person, he causes physical injury to any person by means of a deadly weapon or a dangerous instrument. The State requested that the court charge the jury only on assault in the second degree, and not assault in the third degree, given the evidence. When asked to comment about the propriety of charging the jury on second-degree assault as requested by the State but not on third-degree assault, counsel for Bradley expressed his opinion that whether the facts supported a finding of guilty as to second-degree or third-degree assault "would be a jury question" and that the jury should be allowed to chose between second- and third-degree assault based on its view of the evidence. The judge elected to charge the jury on both second-degree assault under § 13A-6-21(a)(2) and third-degree assault under § 13A-6-22(a)(1).

During the trial judge's subsequent charge to the jury, he explained the elements of robbery in the first degree as charged in the indictment. He then further charged the jury:

"If you find from the evidence that the State has proved beyond a reasonable doubt each of the above elements of the offense of robbery in the first degree as charged in that indictment, then you shall find [Bradley] guilty of robbery in the first degree.

"If you find that the State has failed to prove beyond a reasonable doubt any one or more of the elements of the offense of robbery in the first degree, then you cannot find [Bradley] guilty of robbery in the first degree.

"In that event, you would move to consideration of the lesser included charge of assault in the second degree relative to the alleged victim named in this indictment...."

The court then proceeded to charge the jury concerning the relevant elements of assault in the second degree, thereafter explaining:

"If you find that the State has failed to prove beyond a reasonable doubt any one or more of the elements of assault in the second degree as a lesser included offense, then you cannot find [Bradley] guilty of assault in the second degree.

"In that event, you would turn to a consideration of the final potential lesser included charge in the robbery first degree indictment, that of assault third degree."

The judge next charged the jury concerning the relevant elements of the offense of assault in the third degree.

The verdict form submitted to the jury with respect to the charge of robbery in the first degree provided four options: (1) finding Bradley "guilty of the offense of robbery in the first degree as charged in the indictment"; (2) finding Bradley "guilty of the offense of assault in the second degree as a lesser-included offense of that charged in the indictment"; (3) finding Bradley "guilty of the offense of assault in the third degree as a lesser-included offense of that charged in the indictment"; or (4) finding Bradley "not guilty." A signature blank for the foreperson was...