EX PARTE STATE

• Decision Date: 15 August 2003
• Citation: 873 So.2d 261
• Parties: Ex parte State of Alabama. (In re STATE of Alabama, v. A.R.C.)
• Court: Alabama Court of Criminal Appeals

873 So.2d 261

Ex parte State of Alabama.

(In re STATE of Alabama, v. A.R.C.)

CR-02-1359.

Court of Criminal Appeals of Alabama.

August 15, 2003.

William H. Pryor, Jr., atty. gen., and Eugenia L. Loggins, district atty., for petitioner.

Gary L. Weaver, Andalusia, for respondents.

Judge M. Ashley McKathan, pro se.

PER CURIAM.

The district attorney for the twenty-second judicial circuit filed this petition for a writ of mandamus directing Judge M. Ashley McKathan to set aside his order in the underlying case excluding from evidence the victim's out-of-court statements. A.R.C. was indicted on a charge of sodomy in the first degree. On April 21, 2003, A.R.C.'s case was called to trial. During trial the district attorney attempted to introduce out-of-court statements made by the victim, who was five years old at the time of trial. The trial court excluded the statements after finding that they were not sufficiently corroborated pursuant to § 15-25-34, Ala.Code 1975. The State then filed this mandamus petition. The jury in A.R.C.'s trial has been recessed pending the outcome of this petition.

Initially, we note that this petition was styled both as a petition for a writ of mandamus and a petition for a writ of prohibition. The issue here concerns a trial court's evidentiary ruling. There is absolutely no question that the trial court had jurisdiction to make the ruling. As we stated in Ex parte Maye, 799 So.2d 944, 947 (Ala.2001), quoting Ex parte Moody, 681 So.2d 276, 277 (Ala.Crim.App.1996), a petition for a writ of prohibition "`"`properly tests jurisdiction, and lies when a court acts in excess of its jurisdiction.' Ex parte City of Tuskegee, 447 So.2d 713, 716 (Ala.1984). "`"Because the question here is not one of jurisdiction, we have treated this petition as a petition for a writ of mandamus.

The question presented in this case is not whether the underlying evidentiary ruling by the trial court is correct but whether an extraordinary petition filed pursuant to Rule 21, Ala.R.App.P., is the proper means to obtain review of that ruling. Rule 21 governs the filing of petitions for extraordinary writs. Rule 21(e)(4), Ala.R.App.P., explains the term "extraordinary writ" as that term is used in the rule, and states, in part:

"(4) The term `extraordinary writ' within the meaning of this rule encompasses the situation where a party seeks emergency and immediate appellate review of an order that is otherwise interlocutory and not appealable. This rule does not apply to those cases where review in a court of appeals is normally had by way of an extraordinary writ."

The writ of mandamus originated in England. In 1881, the Alabama Supreme Court stated the following concerning the writ:

"Mandamus was originally a prerogative writ, issuing out of the Court of King's Bench in England, and, by construction, it was a command from the King himself, who was constructively present in that court. It issued alone from that court, for that court alone represented the ideal presence of the sovereignty.—3 Bl.Com. 110. In this country it can scarcely be called a prerogative writ. It is strictly a civil proceeding, and may be called a supplementary remedy, when the party has a clear right, and no other appropriate redress, to prevent a failure of justice.—Bouv. Dic.; Union Pac. R.R. Co. v. Hall, 91 U.S. 343 [23 L.Ed. 428 (1875) ]; Moses on Mandamus, 16, 17; 4 Wait, Actions and Defenses, 357. In this State, to authorize the grant of this writ, there must be shown a clear, specific legal right, and no other adequate remedy.—2 Brick.Dig. 240, §§ 4, 5; State ex rel. v. Brewer, 61 Ala. 318 [ (1878) ]; Ex parte Schmidt, 62 Ala. 252 [(1878)]."

Leigh v. State, 69 Ala. 261, 266 (1881).

"`"Mandamus is not a writ of right, and the granting or denial of an application for mandamus rests very largely within the discretion of the court.... Mandamus, being a discretionary writ, will not be granted, when it would work injustice, or introduce confusion or disorder, or where it would not promote substantial justice." Bibb v. Gaston, 146 Ala. 434, 40 So. 936 [ (1906) ].' Harman, Supt. of Education v. Ide, 224 Ala. 414, 140 So. 418."

State ex rel. Tallapoosa County v. Butler, 227 Ala. 212, 215-16, 149 So. 101, 104 (1933). See also State v. Cannon, 369 So.2d 32 (Ala.1979). Generally, the writ will not be used to control or review discretionary acts by a lower court. Ex parte Edwards, 20 Ala.App. 567, 568, 104 So. 53, 54 (1925). However, there are exceptions to that general rule, as the Alabama Supreme Court noted in Foshee v. State, 210 Ala. 155, 157, 97 So. 565, 566 (1923):

"This rule, however, has an exception in this jurisdiction, for in some cases the writ of mandamus has been employed to correct errors of inferior tribunals, and to prevent a failure of justice where there is a clear right and there is an absence of any other adequate remedy, and it has also been employed to prevent an abuse of discretion, or to correct an arbitrary action outside of the exercise of a reasonable discretion."

The Supreme Court in Ex parte Spears, 621 So.2d 1255 (Ala.1993), discussed Alabama's judicial expansion of the writ of mandamus and explained why the scope of the writ should not be further expanded. The Alabama Supreme Court stated:

"It is now a well-established general rule in this state that if the matters complained of can ultimately be presented by an appeal, a writ of mandamus will not be issued. Ex parte Fowler, 574 So.2d 745 (Ala.1990). However, this Court, exercising its discretion, has recognized certain exceptions to this general rule in specific cases where appeals are not considered to be adequate to prevent `undue injury.' See, e.g., Ex parte Nissei Sangyo America, Ltd., 577 So.2d 912 (Ala.1991) (mandamus proper to review discovery rulings); Ex parte Insurance Co. of North America, 523 So.2d 1064 (Ala.1988) (mandamus proper to enforce a trial court's compliance with this Court's mandate); Ex parte Rush, 419 So.2d 1388 (Ala.1982) (mandamus proper to enforce a statutory or constitutional right to a jury trial); Ex parte Weissinger, [247 Ala. 113, 22 So.2d 510 (1945) ] (mandamus proper to vacate certain interlocutory rulings in divorce cases); see, also, Ex parte Brooks, 264 Ala. 674, 89 So.2d 100 (1956); and Brittain v. Jenkins, 263 Ala. 683, 83 So.2d 432 (1955), and the cases cited therein. The rationale underlying the recognition of these exceptions has not always been crystal clear. For example, the remedy by appeal that will make mandamus review unavailable was described by this Court in one case as `one competent to afford relief on the very subject matter in question, and which is equally convenient, beneficial, and effectual.' See East v. Todd, 284 Ala. 495, 499, 226 So.2d 153, 156 (1969). Matters of expense and public interest have also been considered important factors in some cases. See, e.g., Ex parte Weissinger, supra. On the other hand, in Ex parte Moss, 278 Ala. 628, 179 So.2d 753 (1965); and Ex parte Brooks, supra, this Court stated that expense and inconvenience were not controlling in determining whether a party had an adequate remedy by appeal.

"In this case we need not survey the law of mandamus so as to search out and reconcile inconsistencies that may exist. Suffice it to say that it was never generally contemplated that questions arising during the progress of a trial, ultimately reviewable on appeal, should be determined by an appellate court on petition for a writ of mandamus, in advance of a final judgment. Ex parte Taylor, 236 Ala. 219, 181 So. 760 (1938). In Ex parte Nice, 407 So.2d 874 (Ala.1981), this Court indicated that only the rarest of circumstances merits an intervention in a criminal case by mandamus. However, because this court has `permitted a liberal enlargement of the use of the writ' by recognizing, on occasion, certain exceptions to the general rule, we have examined the present case to see if it fits within any of those exceptions. We conclude that it does not.

"Spears is attempting by his petition to obtain appellate review of an interlocutory order rejecting his plea of double jeopardy. He is not seeking an order directing the trial judge to recognize a statutory or constitutional right to a trial by jury, so as to bring this case within the exception recognized in Ex parte Rush, supra. The record does not indicate that Spears is incarcerated; thus, he does not invoke the exception recognized in Smith v. State, 447 So.2d 1334 (Ala.1984). In Smith, this Court held that the Court of Criminal Appeals had properly issued a writ of mandamus directing the trial judge to correct an erroneous sentence even though the defendant had appealed his case, where the defendant had been improperly sentenced to 45 years of imprisonment and, because of the length of his sentence, was not entitled to apply for bail pending his appeal. But see Ex parte Busby, 276 Ala. 680, 166 So.2d 408 (1964), where the petitioner, an inmate, was denied mandamus review on the ground that he could have appealed the trial court's denial, without a hearing, of his petition for a writ of error coram nobis. Neither does this case involve a judicial usurpation of power or a gross disruption in the administration of criminal justice. See Ex parte Nice, supra. To the contrary, this case is materially indistinguishable from Ex parte Fowler, supra, in which the defendant in a criminal case sought a writ of mandamus directing the trial judge to grant her motion for a change of venue on the ground of prejudicial pretrial publicity, and Ex parte Pickett, 46 Ala.App. 227, 239 So.2d 900 (1970), in which the defendant sought a writ of mandamus directing the trial judge to vacate his order denying two pretrial motions to suppress evidence. In each of those cases, the defendant claimed to have received an adverse pretrial ruling and, although an erroneous ruling by the trial judge would have resulted in an expensive and unnecessary trial,

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