Ex Parte State (in Re State v. Neel)

• Decision Date: 26 March 2010
• Docket Number: CR–08–1048.
• Citation: 57 So.3d 186
• Parties: Ex parte State of Alabama(In re STATE of Alabamav.Mary Maxine NEEL).
• Court: Alabama Court of Criminal Appeals

57 So.3d 186

Ex parte State of Alabama(In re STATE of Alabama

v.Mary Maxine NEEL).

CR–08–1048.

Court of Criminal Appeals of Alabama.

March 26, 2010.

Nick Abbett, dist. atty., and Robert T. Treese III, chief trial asst. dist. atty., for petitioner.Philip O. Tyler, Auburn, for respondent Mary Maxine Neel.Judge John V. Denson II, as respondent.PER CURIAM.

The district attorney for the Thirty–Seventh Judicial District filed this petition for a writ of mandamus requesting that we direct Judge John V. Denson II to vacate his order setting aside the jury's verdict finding Mary Maxine Neel guilty of murder.

In May 2006, Neel was indicted for killing her son-in-law Glenn Hall, a violation of § 13A–6–2, Ala.Code 1975. On November 6, 2008, the jury found Neel guilty of murder. On November 18, 2008, Neel moved to set aside the jury's verdict and for a judgment of acquittal or a judgment finding her guilty of the lesser offense of manslaughter based on self-defense. After a hearing on April 9, 2009, Judge Denson issued a 39–page order granting Neel's motion and vacating the jury's verdict against Neel. The State then filed this mandamus petition.¹

“Mandamus is an extraordinary remedy, but is appropriate in exceptional circumstances which amount to judicial usurpation of power.” Ex parte Nice, 407 So.2d 874, 877 (Ala.1981). Mandamus has been used to review a circuit court's ruling setting aside a jury's guilty verdict, if that ruling is beyond the scope of Rule 20.3, Ala. R.Crim. P. See Ex parte Nice and State v. Grantland, 709 So.2d 1310 (Ala.Crim.App.1997). “[T]he jury is the arbiter of the credibility of witnesses in Alabama; therefore, the grant of supervisory mandamus by the Court of Criminal Appeals to prevent the trial judge from sitting as a ‘13th juror’ [is] appropriate.” Nice, 407 So.2d at 882.

Rule 20.3, Ala. R.Crim. P., authorizes a trial court to set aside a jury's guilty verdict.² However, that authority is not unlimited. In discussing the scope of Rule 20.3, this Court in State v. Grantland, supra, stated:

“Although Rule 20.3, Ala. R.Crim. P., clearly authorizes a trial judge to grant a motion for a judgment of acquittal after the jury has returned a guilty verdict, that rule does not permit a judge to enter a judgment of acquittal on grounds other than those provided for under Rule 20 generally.³ A motion for a judgment of acquittal tests the legal sufficiency of the evidence. Suttles v. State, 574 So.2d 1012 (Ala.Cr.App.1990); Metzger v. State, 565 So.2d 291 (Ala.Cr.App.1990); see, generally, Committee Comments, Rule 20.1, Ala. R.Crim. P. When presented with a challenge to the sufficiency of the evidence, the trial court, and any reviewing court, must accept the evidence presented by the state as true, must view that evidence in a light most favorable to the state, and must accord the state all legitimate inferences from the evidence. Rowe v. State, 662 So.2d 1227 (Ala.Cr.App.1995). Where there is legal evidence from which a jury could by fair inference find a defendant guilty, a trial judge should submit the case to the jury. Id. Moreover, where there is sufficient legal evidence to submit the case to the jury and the jury has considered that evidence and rendered its verdict, it is not proper for the trial court, or a reviewing court, to substitute its judgment for that of the jury. Winters v. State, 673 So.2d 786 (Ala.Cr.App.1995); Rowe, 662 So.2d 1227. It is not the function of the court to assess the credibility of witnesses, weigh the evidence, or substitute its judgment as to guilt or innocence for that of the jury. Porter v. State, 666 So.2d 106 (Ala.Cr.App.1995).”

709 So.2d at 1311–12.

Section 13A–3–23, Ala.Code 1975, defines the law on self-defense in Alabama, and, at the time the events in this case occurred, stated, in part: ⁴

“(a) A person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for the purpose. A person may use deadly physical force if the actor reasonably believes that such other person is:

“(1) Using or about to use unlawful deadly physical force; or

“(2) Using or about to use physical force against an occupant of a dwelling while committing or attempting to commit a burglary of such dwelling; or

“(3) Committing or about to commit a kidnapping in any degree, assault in the first or second degree, burglary in any degree, robbery in any degree, forcible rape or forcible sodomy.”

A transcript of the trial proceedings in the Lee Circuit Court, including audiotapes of the 911 calls, are attached as exhibits to the State's mandamus petition. The record shows that the victim was married to Neel's daughter, Christy Hall, but divorce proceedings had been initiated. On the morning of February 28, 2006, Hall arrived at Neel's house around 7:00 a.m. He told Neel that he had come to see his wife Christy. Christy brought her children to Neel's house every morning so that they could catch the school bus there. When Hall arrived Neel was in bed, and she answered the door in her nightgown. She invited Hall in the house while she got dressed. When she went back to the kitchen she heard Christy's vehicle approaching the house. Neel and Hall walked up to Christy's vehicle. Hall tried to get Christy to get out of her car and talk to him. She refused. Hall got angry. Christy pulled away from the house in her car and Hall left. Neel said that she telephoned Christy to tell her what happened, that she got her gun from her bedroom, and that she put the gun on top of the refrigerator near the side door to her house.

Several minutes later Hall returned to Neel's house and went to the side door. In the meantime, Christy had returned, and Neel, her husband, Christy, and her grandson were in the Neel home. The door to the house was closed and Hall was in the carport talking through the door. Neel's husband talked to Hall. Neel said that she got the gun off the refrigerator and told her husband to open the door. Hall was standing in front of the door and she pointed the gun at him and told him to leave. He moved a step toward her and Neel fired, hitting him in the chest. Neel said that she knew that Hall would hurt her daughter and she could not believe that Hall would not leave when he saw her with the gun. The facts set out above are based on Neel's statement to police. There was no physical evidence indicating that Hall was armed when he confronted Neel through the side door of her home.

Audiotapes of the 911 calls reflect that the first call was received at around 6:20 a.m. on the morning of February 28 and was from Neel. Neel, who sounds very calm, asks that police come to her residence because her son-in-law was there, that he had been ordered to stay away from her daughter, and that he was threatening her daughter. The second 911 call was from Christy. Christy told the operator that her husband was at her car, that he has been ordered to stay away from her, and that he had threatened her. The third 911 call, from Christy, was made immediately after Hall was shot. Christy told the operator that her mother had shot Hall. You can also hear her say: “Put down the gun.” The last call is from Neel. Neel told the operator that she has shot her son-in-law in the chest. She said: “I thought if he saw the gun he would go away. I was, I didn't mean to shoot him.” (R. 178.)

Neel's statement to police differed in one aspect from one of her 911 calls. In the statement she says “Glenn [the victim] had been clean for a while and he did not look as bad as I had seen him the past. So I do not think that he was messed up because I have seen him messed up before.” (R. 297.) However, during one of the 911 calls, Neel tells the operator: “He just came up here and he is so messed up. He's talking all kind of crazy stuff.... And I know he is on cocaine.” (R. 169.)

Captain Van Jackson of the Lee County Sheriff's Department testified that he responded to a 911 call at the Neel house and spoke to Hall before he was transported to the hospital. He said that Hall said to him: “[T]hat bitch shot me ... just shot me in cold blood.” (R. 322.)

The State also presented evidence indicating that Hall and Neel had been having a sexual relationship, that Neel had made statements that “It would be better if Hall was just gone,” that Neel had previously shot at Hall twice, and that Hall had told a friend that Neel was plotting to set him up.⁵

Evidence was also presented indicating that Hall had threatened Christy, that police had been called to their residence several times before the shooting, and that Hall had a severe drug problem. The coroner also testified that Hall had cocaine in his system at the time of his death.

Neel did not testify at trial. She relied on her statement and the audiotapes of the 911 calls to support her claim that she acted in self-defense.

In the circuit court's lengthy order setting aside the jury's verdict, the court wrote, in part:

“One possible explanation of why the jury in this case returned a verdict of guilty in spite of the lack of sufficiency of the evidence, is that they may have been confused about the self-defense charge given by the Court.

“....

“An additional factor may have contributed to the jury's finding of guilty and failure to find the Defendant not guilty by reason of self-defense, was the difficulty in hearing the audiotapes which contain most of the evidence of self-defense in this case. Another factor may have been that the jury did not have sufficient knowledge or understanding of the complete hospital records from Bradford [Health Services Clinic] which clearly show the seriousness of Hall's drug problem and the threats he made to kill Christy. Furthermore, the State placed great emphasis on the fact that Hall was not armed,...