Cox v. State

• Citation: 585 So.2d 182
• Decision Date: 15 March 1991
• Docket Number: 1 Div. 94
• Parties: Benjamin Franklin COX v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 182

585 So.2d 182

Benjamin Franklin COX v. STATE.

1 Div. 94.

Court of Criminal Appeals of Alabama.

March 15, 1991.

Rehearing Denied April 26, 1991.

Certiorari Quashed Aug. 30, 1991

Alabama Supreme Court 1901209.

Neil L. Hanley, Mobile, for appellant.

Don Siegelman, Atty. Gen., and Andy S. Poole, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

Benjamin Franklin Cox, the appellant, was convicted for the murder of Michael Donald, in violation of Ala.Code 1975, § 13A-6-2, and was sentenced to 99 years' imprisonment. Cox presents three issues on this appeal from that conviction.

I.

Cox argues that his indictment and conviction for murder was barred under principles of former jeopardy because an indictment charging the conspiracy to commit that same murder had previously been dismissed because it was barred by the statute of limitations. We hold that Cox's indictment and conviction for murder was not barred by the dismissal of the conspiracy indictment.

There is no contention that this issue has not been preserved for appellate review by proper and timely objection at trial. See Lambeth v. State, 380 So.2d 925, 926 (Ala.Cr.App.1979), cert. denied, 380 So.2d 926 (Ala.1980) (a motion to exclude the evidence can properly raise the issue); Calvert v. State, 26 Ala.App. 189, 190, 155 So. 389 (1934) ("In a criminal case, a defendant is not required to file a special plea of the statute of limitations.... If the evidence fails to disclose that the offense was committed within the statute, the State fails to make out its case."). See also Stoner v. State, 418 So.2d 171, 177-78 (Ala.Cr.App.), cert. denied, 418 So.2d 184 (Ala.1982), cert. denied, 459 U.S. 1128, 103 S.Ct. 764, 74 L.Ed.2d 978 (1983).

In March 1981, Michael Donald's body was discovered hanging from a tree on Herndon Avenue in Mobile, Alabama. He had been hanged by Ku Klux Klansmen in retaliation for the mistrial in the case of Josephus Anderson, a black man eventually convicted and sentenced to life without parole for the capital murder of a white Birmingham police officer. See Ex parte Anderson, 457 So.2d 435 (Ala.Cr.App.), affirmed, 457 So.2d 446 (Ala.1984) (pretrial mandamus); Anderson v. State, 542 So.2d 292 (Ala.Cr.App.1987), writ quashed, 542 So.2d 307 (Ala.1989), cert. denied, 493 U.S. 836, 110 S.Ct. 116, 107 L.Ed.2d 77 (1989) (conviction).

From the record before this court, the Klansmen allegedly involved in this offense were Henry Francis Hays, Bennie J. Hays (Henry Hays' father), James "Tiger" Knowles, and the appellant Cox (Bennie Hays' son-in-law and Henry Hays' brother-in-law). In 1983, Henry Hays was convicted for capital murder and sentenced to death for his part in this offense. See Hays v. State, 518 So.2d 749 (Ala.Cr.App.1985), affirmed in part, reversed in part, 518 So.2d 768 (Ala.1986), cert. denied, 485 U.S. 929, 108 S.Ct. 1099, 99 L.Ed.2d 262 (1988). In 1985, James Knowles pleaded guilty in United States District Court to depriving Michael Donald of his civil rights and was sentenced to life imprisonment. See Marshall v. Bramer, 110 F.R.D. 232, 237 (W.D.Ky.1985), affirmed, 828 F.2d 355 (6th Cir.1987). In return, the federal prosecutor recommended that Knowles not be prosecuted for capital murder in state court and Knowles agreed to become a State's witness against his fellow Klansmen.

In December 1984, Cox was indicted for the crime of conspiracy to commit murder. That indictment charged that Cox

"did, with the intent to cause the death of Michael Donald, agree with Henry Hayes [sic] and James Knowles to cause the death of Michael Donald, a violation of § 13A-6-2 of the Code of Alabama, and subsequent to the making of said agreement and in furtherance of said agreement, BENJAMIN F. COX, JR., did provide a length of rope to Henry Hayes and/or James Knowles to be used to strangle Michael Donald, and Henry Hayes and James Knowles did cause the death of Michael Donald by strangling him with said rope, in violation of § 13A-4-3 of the Code of Alabama."

A jury was impaneled and the trial began on March 11, 1985. On March 14, 1985, after the State had presented its case-in-chief, the trial court granted Cox's motion to dismiss because, under the law in effect at that time, the prosecution for criminal conspiracy was barred by a three-year statute of limitations. See Ala.Code 1975, § 15-3-1. The indictment was dismissed and Cox was discharged.

In August 1987, Cox was reindicted for the murder of Michael Donald. The new indictment charged that "Cox ... did, with the intent to cause the death of Michael Donald, cause the death of Michael Donald by strangling him with a rope, in violation of § 13A-6-2 of the Code of Alabama." Cox's trial, which was consolidated with that of Bennie J. Hays, began on February 1, 1988. On February 5, 1988, a mistrial was declared when codefendant Hays became ill and collapsed during the course of the trial.

Cox's second trial on the August 1987 murder indictment began on May 15, 1989. He was convicted on May 18, 1989. This appeal is from that conviction.

Cox argues that under principles of former jeopardy, his 1989 trial for murder was barred because of the 1985 dismissal of the conspiracy indictment. The State argues 1) that conspiracy and murder are distinct and separate offenses so that the prosecution for one does not bar the prosecution for the other, and 2) that the indictment and prosecution for conspiracy were void because the trial court was without jurisdiction.

A.

The State relies on Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), for its argument that the dismissal of the conspiracy prosecution did not bar the prosecution for murder because each offense required proof of an additional element. Appellee's brief at 23 (filed September 11, 1990). Under Blockburger, "[t]he applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not." 234 U.S. at 304, 52 S.Ct. at 182.

However, Blockburger is no longer the proper standard to apply to a situation involving a subsequent prosecution such as that involved here. On May 29, 1990, the United States Supreme Court decided the case of Grady v. Corbin, 495 U.S. 508, ----, 110 S.Ct. 2084, 2087, 109 L.Ed.2d 548 (1990), and held that "the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted."

"To determine whether a subsequent prosecution is barred by the Double Jeopardy Clause, a court must first apply the traditional Blockburger test. If application of that test reveals that the offenses have identical statutory elements or that one is a lesser included offense of the other, then the inquiry must cease, and the subsequent prosecution is barred. Brown [v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977) ].

"....

"[However], a subsequent prosecution must do more than merely survive the Blockburger test. As we suggested in [Illinois v.] Vitale [447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980) ], the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted. This is not an 'actual evidence' or 'same evidence' test. The critical inquiry is what conduct the State will prove, not the evidence the State will use to prove that conduct."

Corbin, 495 U.S. at ----, 110 S.Ct. at 2090, 2093 (emphasis added) (footnotes omitted).

Prior to Corbin, the general rule was that conspiracy to commit a crime and the commission of the crime were two criminal acts which were not identical in law or fact so that the prosecution for one did not bar a prosecution for the other. See Connelly v. State, 30 Ala.App. 91, 92, 1 So.2d 606, 607, cert. denied, 241 Ala. 132, 1 So.2d 608 (1941) (acquittal of crime of carrying on business of bookmaking or pool selling did not bar prosecution for conspiracy to commit that offense).

"It has been long and consistently recognized by the Court that the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses. The power of Congress to separate the two and to affix to each a different penalty is well established.... A conviction for the conspiracy may be had though the substantive offense was completed.... And the plea of double jeopardy is no defense to a conviction for both offenses.... It is only an identity of offenses which is fatal.... A conspiracy is a partnership in crime.... It has ingredients, as well as implications, distinct from the completion of the unlawful project. As stated in United States v. Rabinowich, 238 U.S. 78, 88, 35 S.Ct. 682, 684, 685, 59 L.Ed. 1211 [1915]:

" 'For two or more to confederate and combine together to commit or cause to be committed a breach of the criminal laws is an offense of the gravest character, sometimes quite outweighing, in injury to the public, the mere commission of the contemplated crime. It involves deliberate plotting to subvert the laws, educating and preparing the conspirators for further and habitual criminal practices. And it is characterized by secrecy, rendering it difficult of detection, requiring more time for its discovery, and adding to the importance of punishing it when discovered.' "

Pinkerton v. United States, 328 U.S. 640, 643-44, 66 S.Ct. 1180, 1182, 90 L.Ed. 1489 (1946). The rationale for the "long line of decisions [considering conspiracy and the completed substantive offense to be separate crimes] rests on the very nature of the crime of conspiracy" which "poses...