Burnett v. State

• Citation: 807 So.2d 588
• Parties: Mickey Wayne BURNETT v. STATE.
• Decision Date: 29 June 2001
• Court: Alabama Court of Criminal Appeals

807 So.2d 588

Mickey Wayne BURNETT v. STATE.

CR-98-0543.

Court of Criminal Appeals of Alabama.

June 29, 2001.

Virginia A. Vinson, Birmingham, for appellant.

Bill Pryor, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.

On Remand from the Alabama Supreme Court

BASCHAB, Judge.

In accordance with the Alabama Supreme Court's decision in Ex parte Burnett, 807 So.2d 586 (Ala.2001), we reverse the trial court's judgment and remand this case to the trial court for proceedings that are consistent with the Alabama Supreme Court's opinion in Ex parte Edwards, [Ms. 1991502, January 12, 2001] ___ So.2d ___ (Ala.2001). In so doing, we note the following. In Ex parte Edwards, the Alabama Supreme Court stated, "An indictment under § 32-5A-192(b) should charge an appropriate mental state based on § 13A-2-2(2) to (4)." ___ So.2d at ___. Because the indictment in this case did not charge such a mental state, based on Ex parte Edwards, we conclude that it was void. Furthermore, in this case, the Alabama Supreme Court did not render a judgment in favor of the appellant like it did in Ex parte Edwards. Therefore, it appears that, on remand, the State can reindict the appellant for vehicular homicide using the language set forth in Ex parte Edwards.

REVERSED AND REMANDED.

McMILLAN, P.J., and SHAW and WISE, JJ., concur; COBB, J., dissents, with opinion.

COBB, Judge, dissenting.

As in Janezic v. State, 723 So.2d 730, 731 (Ala.Crim.App.1998) (Cobb, J., concurring specially), I find myself in the peculiar position of offering a special writing to what is typically a perfunctory remand opinion released by this court when the Alabama Supreme Court reverses one of our judgments.¹

The constitutional provision I am concerned will be violated if there is a retrial in this case is the same provision that caused my concern in the Janezic remand: the Double Jeopardy Clause of the Fifth Amendment. This provision of the Bill of Rights guarantees that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb...." U.S. Const. amend. V.

In Janezic v. State, 723 So.2d 696 (Ala. Crim.App.1996), this court, in a 3-2 decision, affirmed a conviction of a lower court; our judgment was later reversed by the Alabama Supreme Court. Ex parte Janezic, 723 So.2d 725 (Ala.1997). As I noted in my special concurrence on remand from the Alabama Supreme Court in Janezic, "Unfortunately the Supreme Court did not address Janezic's claim that the prosecution presented insufficient evidence to rebut the evidence supporting her insanity defense. By failing to rule on her insanity issue and remanding the case for a retroactive competency determination and a possible retrial, the Supreme Court, I believe, has left open the possibility that Janezic will be twice placed in double jeopardy." Janezic, 723 So.2d at 731 (Cobb, J., concurring specially).

Again, I feel compelled to write because of important questions left unanswered regarding the vehicular-homicide statute, § 32-5A-192, Ala.Code 1975. Although the issue regarding the constitutionality of the statute was squarely before the court in Ex parte Edwards, [Ms. 1991502, Jan. 12, 2001] ___ So.2d ___ (Ala.2001), and in Ex parte Burnett, 807 So.2d 586 (Ala. 2001), the Alabama Supreme Court chose not to reverse the appellants' convictions on the ground that Alabama's vehicular-homicide statute is unconstitutional; I believe it is unconstitutional. See Burnett v. State, 807 So.2d 573, 583 (Cobb, J., dissenting)

("the vehicular homicide statute, as it is currently written, violates the basic due process of law guaranteed to every citizen by the United States Constitution and the Alabama Constitution of 1901"). Instead, the Court reversed the convictions after determining in Ex parte Edwards that the indictment, which tracked the language of the statute and charged the "unlawful and unintentional" causing of a death while violating a traffic regulation, was void because it lacked a culpable mental state. Ex parte Edwards, ___ So.2d at ___ ("We agree with the dissenting opinion of Judges Cobb and Fry in Burnett, to the extent it rejects the view that the word `unlawfully' supplies an element of intent."). The Court continued, however, and "endorsed" the "Use Note" on "Mens Rea Element" accompanying the Alabama pattern jury instructions applicable to § 32-5A-192, Ala.Code 1975, which states that "unintentional" was assumed to refer to all forms of mens rea except "intentional." Ex parte Edwards, ___ So.2d at ___. Thus, the Supreme Court determined that an indictment under § 32-5A-192(b) should include a culpable mental state based on the definitions in § 13A-2-2(2) to (4), or "knowingly," "recklessly," or "with criminal negligence." Id. at ___. Edwards's conviction was reversed because her indictment did not describe a culpable mental state. A judgment was rendered in her favor in her case; the Supreme Court explained, "Because Edwards was acquitted of both manslaughter (ruling out recklessness) and criminal negligence, the court should have granted Edwards's postjudgment motion for a judgment of acquittal." Id. at ___.

No other charges were given to the jury in Burnett's case. He was convicted only of vehicular homicide, under § 32-5A-192. Because Burnett's jury returned only verdicts on vehicular homicide, the Alabama Supreme Court reversed the judgment but did not render a judgment for Burnett when it reviewed Burnett's conviction. The Supreme Court's judgment in Ex parte Burnett then led this court, on remand, to state, "Therefore, it appears that, on remand, the State can reindict the appellant for vehicular homicide, using the language set forth in Ex parte Edwards." Burnett v. State, 807 So.2d at 589.

My research does not reveal another case on point. The closest analogous situation to Burnett's is where a statute has been declared unconstitutional. A person could be charged with another offense arising out of the same situation, but not one under the same statute, for obvious reasons. Another body of cases, those dealing with void indictments, seems to indicate that Burnett can be retried, because the trial court had no jurisdiction and jeopardy did not attach. E.g., Heidelberg v. State, 575 So.2d 621 (Ala.Crim.App.1991)

. Application of that rule to this case, in my opinion, is blatantly unfair and violates the spirit of, if not the technical terms of, the prohibition against double jeopardy. The United States Supreme Court has stated:

"The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. This is central to the objective of the prohibition against successive trials. The Clause does not allow `the State ... to make repeated attempts to convict an individual for an alleged offense,' since `[t]he constitutional prohibition against "double jeopardy" was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.'"

Burks v. United States, 437 U.S. 1, 11, 98 S.Ct., 2141, 57 L.Ed.2d 1 (1978) (footnote omitted) (quoting Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957)). Justice Almon has correctly observed that "the double jeopardy prohibition prevents the state from having two bites at the same apple." Lindley v. State, 728 So.2d 1153, 1159 (Ala.1998) (Almon, J., concurring in part and dissenting in part). The result apparently mandated by the Supreme Court's decision in this case will, in fact, give the State a second bite at the same apple. The Alabama Supreme Court's failure to declare § 32-5A-192, Ala.Code 1975, unconstitutional is particularly troubling. Section 32-5A-192 does not contain a culpable mental state, but the Supreme Court directs a prosecutor to simply pluck one from § 13A-2-2(2) to (4) and insert it in an indictment to charge vehicular homicide. This is perhaps the most classic case of judicial activism I have ever seen. The Supreme Court rehabilitates, in my opinion, an unconstitutional statute by allowing the prosecutor to "plug in" a culpable mental state of prosecutor's choosing, because no mental state was supplied in the statute.

"Strict construction," a phrase bantered about in political campaigns, is a phrase that has real meaning to some. To others, it appears to have meaning only so long as it can be applied to uphold an unconstitutional statute or a conviction.

Historically, the narrowest or strictest construction is mandated for criminal statutes. That is simply a basic tenet of American jurisprudence. See, e.g., Ex parte Mutrie, 658 So.2d 347, 349 (Ala. 1993), in which the Alabama Supreme Court recognized:

"`A basic rule of review in criminal cases is that criminal statutes are to be strictly construed in favor of those persons sought to be subjected to their operation, i.e., defendants. Schenher v. State, 38 Ala.App. 573, 90 So.2d 234,

cert. denied,

265 Ala. 700, 90 So.2d 238 (1956).

"`Penal statutes are to reach no further in meaning than their words. Fuller v. State, 257 Ala. 502, 60 So.2d 202 (1952).

"`One who commits an act which does not come within the words of a criminal statute, according to the general and popular understanding of those words, when they are not used technically, is not to be punished thereunder, merely because the act may contravene the policy of the statute. Fuller v. State, supra

, citing Young's Case, 58 Ala. 358 (1877).

"`No person is to be made subject to penal statutes by implication and all doubts concerning their interpretation are to predominate in favor of the accused. Fuller v. State, supra.'

"Clements v. State, 370 So.2d 723, 725 (Ala.1979) (emphasis added [in Ex parte Mutrie]), overruled on other grounds, Beck v. State, 396 So.2d 645 (Ala.1980)

. `Further, it is well established that criminal statutes should not be "extended by construction." ...