Ex parte King
Decision Date | 22 June 1990 |
Citation | 564 So.2d 928 |
Parties | Ex parte John Wesley KING and Joey Thomas King. (Re John Wesley King and Joey Thomas King v. State). 89-257. |
Court | Alabama Supreme Court |
W. Gregory Hughes, Mobile, for petitioners.
Don Siegelman, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for respondent.
We granted the writ of certiorari to take a closer look at the petitioners' argument that the "trial court erred in consolidating the defendants' cases for trial in the absence of the defendant, Joey King." In support of their argument, the petitioners seize upon the last sentence found in Rule 15.4(b), Temporary Alabama Rules of Criminal Procedure. That rule provides as follows:
(Emphasis added.)
The record tends to show the following: In May 1986, the defendants were separately indicted for first degree robbery. Code 1975, § 13A-5-9. Following a guilty verdict and a judgment thereon, an appeal was filed with the Court of Criminal Appeals. On December 4, 1987, the Court of Criminal Appeals reversed, holding that a jury charge was defective. On April 1, 1988, this Court denied the State's petition for writ of certiorari.
On May 26, 1988, the State filed a motion to consolidate the defendants' cases on retrial. On July 1, 1988, a hearing was held on the State's motion. At that hearing, the defendants' lawyer made the following objection:
1
The response was as follows:
Subsequently thereto, the trial court granted the State's motion to consolidate. Both defendants were later convicted of first degree robbery and were sentenced to life imprisonment without parole under the Habitual Felony Offender Act. The Court of Criminal Appeals affirmed the convictions, without an opinion. 553 So.2d 140 (1989).
The dispositive issue is whether temporary Rule 15.4(b) requires that a defendant has the right to be present at a consolidation hearing, even in cases where that defendant is represented by counsel.
The petitioners insist that the Court of Criminal Appeals' affirmance of this case is contrary to this Court's opinion in Ex parte Jones, 473 So.2d 545 (Ala.1985), and its own opinion in Blackmon v. State, 487 So.2d 1022 (Ala.Cr.App.1986). We disagree. Jones's lawyer was not given notice of the State's motion to consolidate until after the hearing on the motion had taken place and the trial judge had ordered the consolidation. 2
On the day of the trial, Jones's lawyer filed with the trial court a motion for severance based on the fact that neither he nor his client had received notice of the hearing on the motion to consolidate. At that time, the trial judge belatedly allowed Jones's lawyer the "opportunity to be heard." Subsequently thereto, the motion for severance was denied. The Court of Criminal Appeals affirmed the judgment of the trial court. See Jones v. State, 473 So.2d 541 (Ala.Cr.App.1984). This Court granted the defendants' petition for writ of certiorari and subsequently reversed their convictions. See Ex parte Jones, 473 So.2d 545 (Ala.1985). In Ex parte Jones, Justice Embry, speaking for a unanomous Court, explained the reasoning behind the reversal:
Subsequently, the Court of Criminal Appeals, in Blackmon v. State, 487 So.2d 1022 (Ala.Cr.App.1986), dealt with an alleged noncompliance with Rule 15.4(b) thusly:
(Emphasis added.)
This Court's opinion in Ex parte Jones and the Court of Criminal Appeals' opinion in Blackmon v. State, while sound, provide, at best, only a modicum of support for the petitioners' position. Admittedly, both cases stress strict compliance with Rule 15.4(b), A.R.Cr.P.Temp.; however, we believe that the facts and circumstances underlying the present controversy are readily distinguishable from the facts and circumstances found in Ex parte Jones and Blackmon v. State and, thus, do not control this case.
In Ex parte Stout, 547 So.2d 901 (Ala.1989), this Court answered, in the affirmative, the question whether a defendant has the constitutional right to be present at a pretrial suppression hearing at which sworn testimony of a prosecution witness is taken. In so holding, this Court distinguished two cases relied upon by the Court of Criminal Appeals in Stout v. State, 547 So.2d 894 (Ala.Cr.App.1988), as follows:
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