Ex Parte Mitchell, CR-05-0374.

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: Per Curiam
• Citation: 936 So.2d 1094
• Parties: Ex parte Oronde Kenyatt MITCHELL. (In re State of Alabama v. Oronde Kenyatt Mitchell).
• Docket Number: CR-05-0374.
• Decision Date: 03 February 2006

936 So.2d 1094

Ex parte Oronde Kenyatt MITCHELL.

(In re State of Alabama v. Oronde Kenyatt Mitchell).

CR-05-0374.

Court of Criminal Appeals of Alabama.

February 3, 2006.

Jeffery C. Duffey, Montgomery, for petitioner.

Troy King, atty. gen., and John D. Gibbs, asst. atty. gen., for respondent.

PER CURIAM.

The petitioner, Oronde Kenyatt Mitchell, filed a petition for a writ of prohibition/mandamus directing Judge Truman Hobbs of the Montgomery Circuit Court to dismiss the felony-murder charges against him. In June 2004, a Montgomery County grand jury indicted Mitchell for felony murder.¹ The predicate felony named in the indictment was the unlawful distribution of a controlled substance. Mitchell moved to dismiss the felony-murder charge because, he argued, the underlying felony was not "clearly dangerous to human life." The circuit court denied the motion; this extraordinary petition followed.

Initially, we note that the proper vehicle by which to challenge a void indictment is by way of a petition for a writ of habeas corpus. As the Alabama Supreme Court stated in Fourment v. State, 155 Ala. 109, 112, 46 So. 266, 267 (1908):

"Where one is in custody which is predicated upon an assumed and exercised judicial jurisdiction of matter or person that it is asserted did not legally exist, habeas corpus is the remedy to institute an investigation of the exist[e]nce of such jurisdiction; an inquiry very different from one involving the merely erroneous or irregular exercise of existent jurisdiction. Code 1896, § 4838; Ex parte Sam, 51 Ala. 34 [(1824)]; City of Selma v. Till, 42 South. 405 [(Ala.1906)]; Church on Habeas corpus, §§ 356, 352."

"The Attorney General recognizes the controlling principles that habeas corpus is the appropriate remedy where the indictment charges no offense . . . ." Barbee v. State, 417 So.2d 611, 612 (Ala.Crim.App. 1982). "The writ [of habeas corpus] is against void but not irregular or voidable judgments." Hable v. State, 41 Ala.App. 398, 399, 132 So.2d 271, 272 (1961). See also Greer v. State, 49 Ala.App. 36, 268 So.2d 502 (1972); Parham v. State, 285 Ala. 334, 231 So.2d 899 (1970); Nations v. State, 41 Ala.App. 581, 141 So.2d 537 (1962); State v. Baker, 268 Ala. 410, 108 So.2d 361 (1959).

Because Mitchell's argument, if meritorious, would render the indictment void, the proper method by which to challenge his claim is a petition for a writ of habeas corpus. "This Court has stated that it is `committed to the proposition that it will treat a motion (or other pleading) and its assigned grounds according to its substance.'" Ex parte Deramus, 882 So.2d 875, 876 (Ala.2002). Accordingly, we treat this extraordinary petition as a petition for a writ of habeas corpus. See Ex parte Frost, 848 So.2d 1021 (Ala.Crim.App.2002) (court treated petition for a writ of mandamus as petition for a writ of habeas corpus).

Felony murder is defined in § 13A-6-2, Ala.Code 1975:

"(a) A person commits the crime of murder if:

". . . .

"(3) He commits or attempts to commit arson in the first degree, burglary in the first or second degree, escape in the first degree, kidnapping in the first degree, rape in the first degree, robbery in any degree, sodomy in the first degree, or any other felony clearly dangerous to human life and, in the course of and in furtherance of the crime that he is committing or attempting to commit, or in immediate flight therefrom, he, or another participant if there be any, causes the death of any person."

(Emphasis added.)

Mitchell argues that Count I of the two-count indictment fails to charge a crime and is void; therefore, he argues, the circuit court has no jurisdiction to proceed on the charges. Specifically, he argues that the predicate felony named in the indictment — the unlawful distribution of a controlled substance — is not a felony recognized under § 13A-6-2(a)(3), Ala Code 1975, because it is not "clearly dangerous to human life." Count I of the indictment charged:

"The Grand Jury of said County charge that, before the finding of this indictment, Oronde Kenyatt Mitchell, whose name is otherwise unknown to the Grand Jury, did commit or attempt to commit a felony clearly dangerous to human life, to-wit: unlawful distribution of a controlled substance, to wit: marijuana, and, in the course of and in furtherance of the said felony that the said Mitchell was committing or attempting to commit, or in immediate flight therefrom, the said Mitchell or another participant, to-wit: Jaquin Deaudrey Jones, whose name is otherwise unknown to the Grand Jury, caused the death of another person, to-wit: Cedric Tolbert, whose name is otherwise unknown to the Grand Jury, by shooting the said Tolbert with a pistol, in violation of Section 13A-6-2 of the Code of Alabama, against the peace and dignity of the State of Alabama."²

Mitchell also argues that other states have held that only offenses that are "inherently dangerous" can constitute the predicate felony for felony murder. He cites Minnesota v. Anderson, 666 N.W.2d 696 (Minn.2003); Kansas v. Wesson, 247 Kan. 639, 802 P.2d 574 (1990); People v. Taylor, 6 Cal.App.4th 1084, 8 Cal.Rptr.2d 439 (1992), in support of his assertion. In essence, Mitchell argues that we should follow the abstract approach used by Minnesota, Kansas, and California when determining whether the unlawful distribu tion of a controlled substance is a felony that is "clearly dangerous to human life."

The State asserts that distributing controlled substances is a felony that is clearly dangerous to human life. Alternatively, it asserts that whether the charge of distributing controlled substances meets the statutory definition of "clearly dangerous to human life" should be decided on a case-by-case basis based on the facts in each case.

The issue presented in this petition is an issue of first impression in Alabama. Because there is no Alabama law on this issue, we have looked to other states for guidance.

In State v. Mora, 124 N.M. 346, 950 P.2d 789 (1997),³ the New Mexico Supreme Court considering whether criminal sexual contact of a minor could support a felony-murder charge, stated:

"In [State v.] Harrison, [90 N.M. 439, 564 P.2d 1321 (1977)], this Court considered two approaches in determining whether a felony is inherently dangerous for felony murder purposes. Id. Under the first approach, `the felony is examined in the abstract to determine whether it is inherently dangerous to human life.' Id. See, e.g., People v. Lee, 234 Cal.App.3d 1214, 286 Cal.Rptr. 117, 122 (1991); State v. Wesson, 247 Kan. 639, 802 P.2d 574, 579 (1990) superseded by statute as stated in State v. Mitchell, 262 Kan. 687, 942 P.2d 1, 5 (1997). This `abstract approach' analyzes the elements of the underlying felony without regard to the particular facts of the case. Lee, 286 Cal.Rptr. at 122. The abstract approach involves a two-step process by which the court first examines the `primary element' of the offense at issue to determine whether it involves the requisite danger to life. Id. The court then looks to the `factors elevating the offense to a felony' to determine whether the felony, taken in the abstract, is inherently dangerous to human life. Id. Thus, under the abstract approach, the court decides as a matter of law whether a particular felony is inherently dangerous to human life.

"Under the second possible approach cited by Harrison, `both the nature of the felony and the circumstances surrounding its commission may be considered to determine whether it was inherently dangerous to human life.' 90 N.M. at 442, 564 P.2d at 1324. Some courts have used this factual approach to determine inherent danger for purposes of felony murder. See, e.g., State v. Noren, 125 Wis.2d 204, 371 N.W.2d 381, 385 (Wis.App.1985); State v. Stewart, 663 A.2d 912, 919-920 (R.I.1995). When applying the factual approach, a court looks to the particular facts of the case to decide whether the defendant carried out the predicate felony in a manner dangerous to human life. Thus, a proscribed offense which on its face does not appear to be a dangerous felony, may be carried out in a manner which would allow it to serve as a predicate felony for felony murder. Noren, 371 N.W.2d at 385.

"In Harrison, this Court adopted the factual approach. 90 N.M. at 442, 564 P.2d at 1324. We see no reason to deviate from that ruling today. We cannot say as a matter of law whether a particular felony is or is not inherently dangerous to human life. This decision is necessarily fact-specific. We cannot say as a matter of law that criminal sexual contact of a minor is never an inherently dangerous felony. As stated in Harrison, it is for the jury to decide, subject to appellate review, whether a felony is inherently dangerous. Id. In this case, it was for the jury to decide whether the facts of the case warranted a conclusion that the criminal sexual contact of a minor was committed under inherently dangerous circumstances."

124 N.M. at 353-54, 950 P.2d at 796-97.

The Rhode Island Supreme Court in State v. Stewart, 663 A.2d 912, 916 (R.I. 1995), considered whether "permitting a child to be a habitual sufferer" was an "inherently dangerous felony" sufficient to support a charge of felony murder in the second degree.⁴ The Rhode Island Supreme Court stated:

"In advancing her argument, defendant urges this court to adopt the approach used by California courts to determine if a felony is inherently dangerous. This approach requires that the court consider the elements of the felony `in the abstract' rather than look at the particular facts of the case under consideration. See, e.g., People v. Patterson, 49 Cal.3d 615, 620-21, 778 P.2d 549, 553, 262 Cal.Rptr. 195, 199 (1989). With such an approach, if a statute can be violated in a manner that does not endanger human life, then the felony is not inherently dangerous to human life. People v. Burroughs, 35 Cal.3d 824, 830-33, 678 P.2d 894, 898-900, 201 Cal.Rptr. 319,...