Ex parte Beavers
Decision Date | 21 February 1992 |
Citation | 598 So.2d 1320 |
Parties | Ex parte Tom BEAVERS. (Re Tom Beavers v. State). 1901451. |
Court | Alabama Supreme Court |
William J. Baxley of Baxley, Dillard & Dauphin, and Kearney Dee Hutsler III of Rowe & Hutsler, Birmingham, for appellant.
James H. Evans, Atty. Gen., and Cecil G. Brendle, Jr., Asst. Atty. Gen., for appellee.
The petitioner, Tom Beavers, was convicted on October 20, 1989, of distributing cocaine. On December 5, 1989, he was sentenced to 15 years in the penitentiary and was fined $10,000. He appealed his conviction to the Court of Criminal Appeals. On February 28, 1991, Beavers filed in that court a supplemental brief in which he raised the issue of whether the jury had been properly instructed on "reasonable doubt." As the basis for this supplemental brief, Beavers cited Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990). Cage had been decided by the United States Supreme Court on November 3, 1990. The Court of Criminal Appeals affirmed Beavers's conviction with an unpublished memorandum, 579 So.2d 705, issued March 1, 1991.
The unpublished memorandum, which has been filed with this Court, did not address the issue regarding the Cage case. However, in overruling Beavers's application for rehearing, the Court of Criminal Appeals, in another unpublished memorandum, stated:
1 2 "
We granted Beavers's petition for a writ of certiorari to the Court of Criminal Appeals in order to address the issue raised on appeal regarding the jury instruction on "reasonable doubt."
Beavers argues that the trial court improperly instructed the jury on the definition of "reasonable doubt" and that the trial court's instruction had the effect of minimizing the State's burden of proof. The trial court instructed the jury as follows:
Beavers did not object to this instruction. Therefore, before we can address the argument that this instruction was erroneous in light of the holding in Cage, we must consider whether the failure to object will be excused.
Rule 21.2, A.R.Crim.P., provides:
"No party may assign as error the court's giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge, unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection."
This Court in Biddie v. State, 516 So.2d 846 (Ala.1987), held:
Id. at 846-47 (citations omitted) (emphasis added in Biddie ).
Beavers argues that he should be excused from the "objection" requirement because, he says, Cage v. Louisiana declared a "new rule." He argues that, as a general principle of law, criminal defendants should be allowed to raise for the first time on appeal an issue regarding constitutional law based on a new United States Supreme Court ruling, unless the United States Supreme Court has specifically limited its ruling. The point of his argument seems to be that criminal defendants should not be required to object to current principles of established law in order to preserve an issue for appellate review based on the possibility that a "new rule" may be established. To support this proposition, Beavers cites this Court to the case of United States v. Grant, 489 F.2d 27 (8th Cir.1973), which states:
" "
Id. at 30 (quoting United States v. Scott, 425 F.2d 55, 57-58 (9th Cir.1970)).
We agree that there may from time to time be situations where a criminal defendant is not barred from appellate review of an issue regarding a particular "new rule" by his failure to object. However, we do not believe that Cage v. Louisiana presents such a "new rule."
The United States Supreme Court in Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), stated that "the nature of judicial review requires that we adjudicate specific cases, and each case usually becomes the vehicle for the announcement of a new rule." Id. at 322, 107 S.Ct. at 712 (emphasis added). The Court in Griffith, noting its prior decision in United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982), held that the existing caselaw had established the following rule:
Griffith, 479 U.S. at 324-25, 107 S.Ct. at 713-14.
While Griffith held that all cases establishing a "new rule for the conduct of criminal prosecutions" will be retroactively applied, it recognized two facts important to our decision: (1) generally, each case decided by the Supreme Court establishes a "new rule," and (2) there are different types of "new rules."
Cage announced a "new rule." However, the "new rule" was not a "clear break" with past precedent, but merely the application of the established precedent to a different factual setting, in Cage a particular jury instruction on the definition of "reasonable doubt."
The issue in Cage, as defined by that Court, was "whether the reasonable doubt instruction in [that] case complied with [In re ] Winship [, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) ]." Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 329, 112 L.Ed.2d 339 (1990). The Winship case established that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Winship, 397 U.S. at 364, 90 S.Ct. at 1072. In reaching its conclusion in Winship, the Supreme Court stated:
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