Ex parte Sullivan

• Decision Date: 26 May 2000
• Citation: 779 So.2d 1157
• Parties: Ex parte Carroll H. SULLIVAN. (In re State of Alabama v. Carroll H. Sullivan).
• Court: Alabama Supreme Court

779 So.2d 1157

Ex parte Carroll H. SULLIVAN.

(In re State of Alabama v. Carroll H. Sullivan).

1990127.

Supreme Court of Alabama.

May 26, 2000.

Rehearing Denied September 1, 2000.

Donald M. Briskman of Briskman & Binion, P.C., Mobile, for petitioner.

Bill Pryor, atty. gen., and James B. Prude, asst. atty. gen., for respondent State of Alabama.

Frances Allen Long, Sr., Presiding Judge; and H. Ward McMillan, Sue Bell Cobb, Pamela W. Baschab, and James H. Fry, Judges, pro se, as Judges on the Alabama Court of Criminal Appeals.

MADDOX, Justice.

Carroll H. Sullivan, the defendant in a criminal case, petitions for a writ of mandamus directing the Court of Criminal Appeals to vacate its writ of mandamus directing the Mobile Circuit Court to vacate its order dismissing the indictment against Sullivan on the basis of double jeopardy.

I.

This case has a complicated history, which we will briefly recount in order to accurately characterize the issues and the procedural posture of this case. A related case, Ex parte Zimlich, [Ms. CR-98-1612, June 10, 1999] ___ So.2d ___ (Ala.Crim. App.1999), set aside by State v. Zimlich, [Ms. 1981536, May 5, 2000] ___ So.2d ___ (Ala.2000), provides the initial factual history of the current proceedings. We will paraphrase the pertinent facts found in Zimlich and then further explain how this case found its way to this Court.

In 1993, a female patient died during surgery. Her family filed a medical-malpractice action, which was tried in the Mobile Circuit Court in 1995. Wayne Zimlich, a nurse anesthetist who had attended the operation, testified at that trial. He later admitted that his testimony was false. Zimlich claimed that he was coerced into giving false testimony by the insurance company, his doctor-employer, and the defense attorney for the insurance company.

Sullivan defended Zimlich in the malpractice litigation in which Zimlich allegedly perjured himself. Following charges that Sullivan had suborned Zimlich's allegedly perjured testimony, a Mobile County grand jury indicted Sullivan for first-degree perjury, pursuant to § 13A-10-101, Ala.Code 1975, in October 1998, based on the testimony of Zimlich at the grand jury proceedings. The State procured Zimlich's cooperation by promising him that in his case it would make a favorable recommendation to the sentencing judge. Sullivan's trial was set for March 1, 1999.

One month before the beginning of the trial, Zimlich began to equivocate as to whether he would testify in Sullivan's trial. His attorney informed the prosecutor that Zimlich would invoke his Fifth Amendment privilege unless the State offered him a better deal. The materials before us give no indication that a deal was ever struck, but three weeks before the start of the trial Zimlich affirmed that he would testify against Sullivan. The prosecutor never again spoke with Zimlich regarding his court appearance, so he proceeded with his case under the apparent assumption that Zimlich would not equivocate again.

Sullivan's trial began on the scheduled day. On that day, a jury was empaneled and sworn, and the attorneys delivered their opening arguments. The court then recessed for the evening. On the following morning, the trial continued. The State called Zimlich as its first witness. After a lengthy discussion with the trial court, Zimlich invoked his Fifth Amendment privilege to remain silent. The trial court granted the State's motion for a mistrial, over Sullivan's objection. Sullivan immediately moved to dismiss the charge on the basis that a retrial would violate principles of double jeopardy. The trial court granted his motion, holding that jeopardy had attached when the jury was empaneled and sworn and that a second trial would be barred by the Constitution.

The State, invoking Rule 15.7, Ala. R.Crim. P., appealed the ruling to the Court of Criminal Appeals. That court held that Rule 15.7 did not permit an appeal of this nature; it advised the State that its only remedy had to be by mandamus. State v. Sullivan, 741 So.2d 1125 (Ala.Crim.App.1999).

Pursuant to that court's recommendation, the State petitioned that court for a writ of mandamus directing the trial court to vacate its order dismissing the charge against Sullivan. The court issued the writ, holding that although jeopardy had attached, Zimlich's inconvenient refusal to testify constituted a "manifest necessity"¹ for a retrial. State v. Sullivan, 748 So.2d 914 (Ala.Crim.App.1999).

Sullivan then filed the instant petition with this Court for a writ of mandamus directing the Court of Criminal Appeals to vacate its writ. See Rule 21(e)(1), Ala. R.App. P.

We condense Sullivan's arguments into two issues: (1) Does the fact that the order the State complains of was a final order bar the State from seeking review of it by a mandamus petition? and (2) Assuming mandamus relief is not barred by the fact that the order was a final order, was the State entitled to mandamus relief on the basis that a "manifest necessity" supported the trial court's declaration of a mistrial?

II.

Sullivan contends that mandamus relief was not available to the State because the trial court's order of dismissal, he says, was a final order, and, therefore, not "interlocutory in nature"—that is the term frequently used to describe orders from which one may secure relief by the writ of mandamus. We have said many times that the writ of mandamus "is a drastic and extraordinary writ." Ex parte Horton, 711 So.2d 979, 983 (Ala.1998). Rule 21(e)(4), Ala. R.App. P., reads, in pertinent part:

"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."

Sullivan argues that this rule prevents the State from obtaining mandamus relief in this case because the trial court's order of dismissal was not interlocutory.

We agree with Sullivan's characterization of the trial court's dismissal of the indictment as a final order, see generally United States v. Kessler, 530 F.2d 1246 (5th Cir.1976), but we do not agree with his proposition that Rule 21(e)(4), Ala. R.App. P., applies solely to interlocutory orders. No words in that rule limit the availability of mandamus relief to those situations where an order is interlocutory. Rather, the rule denotes a specific situation where mandamus relief will always lie, which is where a party seeks immediate appellate review of an interlocutory, unappealable order. This rule is not exclusionary.

The Court of Criminal Appeals, as an intermediate appellate court with supervisory powers over courts of inferior jurisdiction, is still bound by the oftenstated principles governing when a writ of mandamus may issue. Those principles require that mandamus relief be afforded to a party only in "exceptional circumstances which amount to judicial usurpation of power." Ex parte Nice, 407 So.2d 874, 878 (Ala.1981) (citing Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967)).

The present case provides an unusual theater, unique to the area of criminal law, for the consideration of a petition for mandamus relief. Here, the trial court has issued a final order, which the State is forbidden by law to appeal.²

In Ex parte Nice, supra, this Court engaged in a lengthy discussion of the possibility of mandamus relief in criminal cases, where, as here, the State's appeal of a particular order is foreclosed by law. We stated:

"Mandamus cannot be used as a substitute for appeal, when no appeal is authorized by law or court rule, but mandamus can be used to prevent a gross disruption in the administration of criminal justice. This principle of law is sound and is due to be followed, but equally sound is the principle that mandamus can be used by the government in aid of its lawful rights in the prosecution of criminal cases. In United States v. Dooling, 406 F.2d 192 (2d Cir.1969), the Court, in granting mandamus, opined:

"`We will not pause to determine whether, if Judge Dooling entered his proposed order, the government would be able to appeal his determination under 18 U.S.C. § 3731 (1964). Even if it were clear that the government could not appeal the government's argument for mandamus would not be made more compelling, for mandamus may not do service for an appeal which has been barred by the Constitution. Will v. United States, 389 U.S. 90, 97, 88 S.Ct. 269, 19 L.Ed.2d 305 ... (1967). We think it equally true that the fact that the government may have no right of appeal does not act as a conclusive bar to the issuance of mandamus in its favor. Certainly the restrictions placed upon the government's right to appeal do reflect important policy judgments by Congress, at their core protecting the right against double jeopardy, which must not be undermined by casual resort to mandamus. But circumstances can arise which present a compelling need for the issuance of mandamus in order to further important countervailing interests. Here we find this need in our responsibility for preventing gross disruption in the administration of criminal justice, and we act pursuant to our supervisory power over the district courts. Cf. United States v. Bryan, 393 F.2d 90 (2d Cir.1968). The Supreme Court, in affirming the issuance of a writ of mandamus by the Court of Appeals for the Seventh Circuit, expressed in the clearest terms its support for the power we now exercise:

"`"We believe that supervisory control of the District Courts by the Courts of Appeals is necessary to proper judicial administration in the federal system. La Buy v. Howes Leather Co., 352 U.S. 249, 259-260, 77 S.Ct. 309, 1 L.Ed.2d 290 ... (1957)."'"

Ex parte Nice, 407 So.2d at 879-80 (emphasis omitted).

The power of an appellate court of this state to issue a writ of mandamus at the request of the State in a criminal case when the Legislature has not provided the remedy of appeal is...