Ex parte Woodard

• Decision Date: 14 September 1993
• Citation: 631 So.2d 1065
• Parties: Ex parte Susan Amelia WOODARD. (In re STATE of Alabama v. Susan Amelia WOODARD). CR 92-1868.
• Court: Alabama Court of Criminal Appeals

Page 1065

631 So.2d 1065

Ex parte Susan Amelia WOODARD (In re STATE of Alabama v. Susan Amelia WOODARD).

CR 92-1868.

Court of Criminal Appeals of Alabama.

Sept. 14, 1993.

Maurice Bell and Richard Keith, Montgomery, for petitioner.

James H. Evans, Atty. Gen., Joseph G.L. Marston III, Asst. Atty. Gen., and Ellen Brooks, Dist. Atty., for respondent.

PETITION FOR WRIT OF MANDAMUS

BOWEN, Presiding Judge.

This is a petition for writ of mandamus challenging the constitutionality of the capital offense defined in Ala.Code 1975, § 13A-5-40(a)(15), which we term "child murder."

The petitioner, 37-year-old Susan Amelia Woodard was indicted for the capital murder of 15-month-old Elizabeth B. Dowe Franklin. The events that form the basis of the State's case occurred on December 29, 1992, and January 6, 1993. On these two dates, the infant was under the care of petitioner, a licensed day-care person, who allegedly shook the infant and allegedly caused the infant to hit her head on the floor. The infant died on January 6, 1993, " 'as a result of complications of a closed head injury resulting in subdural hematoma and cerebral edema.' " Order of the circuit court, August 12, 1993, p. 3.

On April 28, 1993, the petitioner moved to dismiss the indictment, arguing that the statute on which the indictment was based, Ala.Code 1975, § 13A-5-40(a)(15), was unconstitutional. On July 2, 1993, the trial court held a hearing on the matter. On August 3, 1993, the trial court issued a written order denying the motion to dismiss and upholding the statute. That order was supplemented by a second order dated August 12, 1993, in which the trial judge set out the State's factual allegations and postponed the trial of the case to allow the petitioner the opportunity to seek appellate review of the denial of the motion to dismiss the indictment.

This Court is well aware that "[p]etitions for writ of mandamus cannot be substituted for appeals to review adverse legal rulings of lower courts." Ex parte Martin, 598 So.2d 1381, 1383 (Ala.1992). Because the petitioner could ultimately challenge on direct appeal from any conviction the trial court's denial of her motion to dismiss, that matter is not properly reviewable by petition for writ of mandamus. See Ex parte Fowler, 574 So.2d 745, 747 (Ala.1990). " 'This for the reason, that appellate courts will not hear causes in piecemeal.' " Id. (quoting Koonce v. Arnold, 244 Ala. 513, 514, 14 So.2d 512, 515 (1943)). Nevertheless, in the interests of judicial economy and under the authority granted this Court by § 12-3-11, we deem it appropriate to address the merits of this petition. See Ex parte Jackson, 614 So.2d 405 (Ala.1993) (reviewing on petition for writ of mandamus trial court's denial of defendant's motion to dismiss).

Act No. 92-601, 1992 Ala.Acts 1247, amended Alabama's Criminal Code § 13A-5-40 to include as a capital offense "[m]urder when the victim is less than fourteen years of age." Ala.Code 1975, § 13A-5-40(a)(15). As this Court understands the petitioner's arguments, the petitioner contends that this child-murder provision is unconstitutional because 1) it is arbitrary, overbroad, and discriminatory in that it predicates the capital offense solely on the age of the victim; 2) the subsection is vague and fails to sufficiently narrow the class of people which may become "death eligible"; and 3) the subsection "is contradictory and in diametric opposition to the legislative intent which underlies the purpose of the statute as a whole" because the subsection does not include as an element of the offense at least one of the aggravating factors listed in § 13A-5-49. (Petition for writ of mandamus at 8.) We reject each of these arguments.

I

Section 13A-5-40(a)(15), the child-murder provision of Alabama's capital offense statute is not unconstitutionally overbroad.

" 'The overbreadth doctrine derives from the First Amendment, see Young v. American Mini Theaters, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976); Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), and serves to invalidate legislation so sweeping that, along with its allowable proscriptions, it also restricts constitutionally-protected rights of free speech, press, or assembly, see e.g., Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971). Since there are no First Amendment rights at stake here, the overbreadth doctrine does not apply. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497 n. 9, 102 S.Ct. 1186, 1192 n. 9, 71 L.Ed.2d 362 (1982).' "

McCall v. State, 565 So.2d 1163, 1165 (Ala.Cr.App.1990).

"The doctrine of overbreadth recognizes that a state legislature may have a legitimate and substantial interest in regulating particular behavior, but 'that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.' Shelton v. Tucker, 364 U.S. 479, 488 [81 S.Ct. 247, 252, 5 L.Ed.2d 231] ... (1960). Historically, the overbreadth doctrine has been used by the federal courts to prevent a chilling effect on First Amendment freedoms. Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844, 852 (1970). ... However, the overbreadth doctrine under the Alabama Constitution has been applied in due process cases not involving first amendment freedoms. See Ross Neely Express, Inc. v. Alabama Department of Environmental Management, 437 So.2d 82 (Ala.1983).

"Justice Adams, for the full Court in Ross Neely Express, wrote:

" 'The right to due process is guaranteed to the citizens of Alabama under the Alabama Constitution of 1901, Article 1, Sections 6 and 13. This constitutional right to due process applies in civil actions as well as criminal proceedings. Pike v. Southern Bell Telephone and Telegraph Co., 263 Ala. 59, 81 So.2d 254 (1955). The courts have found that this right is violated when a statute or regulation is unduly vague, unreasonable, or overbroad....'

" 'In reviewing a regulation of a county Board of Health, this court held that the central issue was reasonableness. Baldwin County Board of Health v. Baldwin County Electric Membership Corporation, 355 So.2d 708 (Ala.1978). In City of Russellville v. Vulcan Materials Co., 382 So.2d 525 (Ala.1980), this court said:

" ' "The validity of a police power regulation ... primarily depends on whether, under all the existing circumstances, the regulation is reasonable, and whether it is really designed to accomplish a purpose properly falling within the scope of the police power. Crabtree v. City of Birmingham, 292 Ala. 684, 299 So.2d 282 (1974). Otherwise expressed, the police power may not be employed to prevent evils of a remote or highly problematical character. Nor may its exercise be justified when the restraint imposed upon the exercise of a private right is disproportionate to the amount of evil that will be corrected. Bolin v. State, 266 Ala. 256, 96 So.2d 582, conformed to in 39 Ala.App. 161, 96 So.2d 592 (1957)." '

" 'Statutes and regulations are void for overbreadth if their object is achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. See Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed. 2d 444 (1967); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed. 2d 629 (1967).'

"437 So.2d at 84-85."

Friday v. Ethanol Corp., 539 So.2d 208, 215-216 (Ala.1988).

We find that Ala.Code 1975, § 13A-5-40(a)(15), is reasonable and invades no area of protected freedoms. The only act forbidden by that subsection is an intentional killing--a murder. The appellant has no right to murder a 15-month-old child. Murder is not a constitutionally protected activity.

"[A] physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment. See Roberts v. United States Jaycees, 468 U.S. 609, 628, 104 S.Ct. 3244, 3255, 82 L.Ed.2d 462 (1984) ('[V]iolence or other types of potentially expressive activities that produce special harms distinct from their communicative impact ... are entitled to no constitutional protection'); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916, 102 S.Ct. 3409, 3427, 73 L.Ed.2d 1215 (1982) ('The First Amendment does not protect violence')."

Wisconsin v. Mitchell, 508 U.S. 476, ----, 113 S.Ct. 2194, 2199, 124 L.Ed.2d 436, 444-45 (1993).

II

Section 13A-5-40(a)(15) is not unconstitutionally vague.

" 'The doctrine of vagueness, ... originates in the due process clause of the Fourteenth Amendment, see Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939), and is the basis for striking down legislation which contains insufficient warning of what conduct is unlawful, see United States v. National Dairy Products Corporation, 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963).

" 'Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed. United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811, 98 L.Ed. 989, 996 (1954). A vague statute does not give adequate "notice of the required conduct to one who would avoid its penalties," Boyce Motor Lines v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 330, 96 L.Ed. 367, 371 (1951), is not "sufficiently focused to forewarn of both its reach and coverage," United States v. National Dairy Products Corporation, 372 U.S. at 33, 83 S.Ct. at 598, 9 L.Ed.2d at 566, and "may trap the innocent by not providing fair warning," Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222, 227-28 (1972).

" 'As the United States Supreme Court observed in Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948):

" ' "There must be ascertainable standards of guilt. Men of common intelligence cannot be required to guess at the meaning of the enactment. The vagueness may be from uncertainty in regard to persons...