Harrison v. State

• Decision Date: 25 April 2003
• Parties: Brian Heath HARRISON v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

879 So.2d 594

Brian Heath HARRISON v. STATE of Alabama.

CR-01-2335.

Court of Criminal Appeals of Alabama.

April 25, 2003.

Rehearing Denied June 13, 2003.

Certiorari Denied October 10, 2003.

Dewayne M. Beesley, Monroeville, for appellant.

William H. Pryor, Jr., atty. gen., and John M. Porter, asst. atty. gen., for appellee.

Alabama Supreme Court 1021682.

BASCHAB, Judge.

The appellant, Brian Heath Harrison, was convicted of discharging a firearm into an unoccupied vehicle, a violation of § 13A-11-61(a), Ala.Code 1975. The trial court sentenced him, as a habitual offender, to serve a term of twenty-five years in prison. See § 13A-5-9(b)(1), Ala.Code 1975. The appellant filed a "Motion for Judgment of Acquittal or in the Alternative, Motion for New Trial or Arrest of Judgment," and the trial court conducted a hearing on the motion. However, the motion was subsequently denied by operation of law. See Rule 24.4, Ala. R.Crim. P. This appeal followed.

I.

The appellant argues that the trial court erroneously sentenced him as a habitual offender. Citing this court's holding in Poole v. State, 846 So.2d 370 (Ala.Crim. App.2001), he contends that the State was required to give him notice of its intent to enhance his sentence pursuant to the Habitual Felony Offender Act at a reasonable time before his trial began. In Poole, we held that,

"[b]ecause Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)] mandates that any fact that increases the sentence be submitted to a jury, we believe that notice of intent to seek a sentencing enhancement should be given at a reasonable time before the start of the trial."

Poole v. State, 846 So.2d 370, 388 (Ala. Crim.App.2001). However, we further noted that

"[t]he Apprendi Court specifically excluded from its holding proof of prior convictions necessary to invoke a habitual felony offender act. 530 U.S. at 490. See State v. Sanko, 62 Conn.App. 34, 771 A.2d 149, cert. denied, 256 Conn. 905, 772 A.2d 599 (2001) (Apprendi does not apply to prior convictions and admissions)."

Poole, 846 So.2d at 375. Therefore, the pretrial notice provision set forth in Poole does not apply to the Habitual Felony Offender Act.

Moreover, Rule 26.6(b)(3)(ii), Ala. R.Crim. P., simply requires that the State give a defendant notice of the prior conviction or convictions upon which it intends to rely at a reasonable time before the sentencing hearing. Therefore, the State was not required to give the appellant pretrial notice of its intent to enhance his sentence pursuant to the Habitual Felony Offender Act. Accordingly, the trial court properly sentenced the appellant as a habitual offender.

II.

The appellant also argues that the trial court erroneously denied his motion for a continuance. Specifically, he contends that the trial court should have granted the motion so he could employ a ballistics expert who allegedly would have supported his claim that the gun accidentally discharged.

"`It is well settled that a motion for a continuance is addressed to the sound discretion of the trial court and that, absent a showing of abuse of that discretion, the trial court's decision on the matter will not be overturned on appeal. Arnold v. State, 601 So.2d 145 (Ala.Cr.App.1992); see generally cases cited at 14 Ala. Digest 2d § 586.

"`To warrant a continuance on the ground that a witness is absent, it must be shown that the expected testimony of the witness is material and competent, that there is a probability that the evidence will be forthcoming if the case is continued, and that the moving party exercised due diligence to secure the evidence. Ex parte Saranthus, 501 So.2d 1256 (Ala.1986). Material evidence means "[e]vidence which has an effective influence or bearing on questions in issue." Black's Law Dictionary 976 (6th ed.1990). "Simply put, a `material' fact is one that would matter in the trial on the merits." Sumner v. Sumner, 664 So.2d 718, 723 (La.App.1995). It must be shown that substantially favorable testimony would be given by the witness and that the denial of a continuance would materially prejudice the defendant. Whitehead v. State, 429 So.2d 641 (Ala.Cr.App. 1982). In addition, it must be established that the expected testimony is not merely cumulative or in the nature of impeachment, and the motion for a continuance must not be made merely for purposes of delay. Mitchell v. Moore, 406 So.2d 347 (Ala.1981); Malone v. State, 659 So.2d 1006 (Ala. Cr.App.1995); McClellan v. State, 628 So.2d 1026 (Ala.Cr.App.1993); Prince v. State, 623 So.2d 355 (Ala.Cr.App. 1992).

"`The appellant made no showing as to what the witness's testimony would be if he were present and testified. The refusal to grant a continuance because a witness will be absent is not error if there is no showing of what the witness would testify to. Smith v. State, 368 So.2d 298 (Ala.Cr. App.1978), writ quashed, 368 So.2d 305 (Ala.1979); Castona v. State, 17 Ala.App. 421, 84 So. 871 (1920). Thus, the appellant failed to establish that the expected testimony would be material and competent, that it would be substantially favorable to him, that it would not be merely cumulative or in the nature of impeachment, or that the denial of the continuance would be prejudicial to him.'

"Smith v. State, 698 So.2d 189, 205 (Ala. Crim.App.1996), aff'd, 698 So.2d 219 (Ala.), cert. denied, 522 U.S. 957, 118 S.Ct. 385, 139 L.Ed.2d 300 (1997) (emphasis added)."

Woodson v. State, 794 So.2d 1226, 1228 (Ala.Crim.App.2000).

In his motion for a continuance, the appellant alleged only that he "intend[ed] to employ a ballistics expert to testify in this case." (C.R. 19.) However, he did not make any showing as to what evidence the ballistics expert would present or that such evidence would be material to his case. Also, he did not show that he had exercised due diligence to obtain a ballistics expert. Therefore, the trial court properly denied the appellant's motion for a continuance.

III.

The appellant further argues that "the indictment does not state a required element of mental culpability." (Appellant's brief at p. 9.) The indictment alleged that the appellant

"did, unlawfully shoot or discharge a firearm, explosive or other weapon which discharges a dangerous projectile, to-wit: a rifle, into an unoccupied dwelling, building, railroad locomotive, railroad car, aircraft, automobile, truck or watercraft, to-wit: an unoccupied vehicle, in violation of Section 13A-11-61 of the Code of Alabama, against the peace and dignity of the State of Alabama."

(C.R. 1.) In Sullens v. State, 878 So.2d 1216, 1220-28 (Ala.Crim.App.2003), we addressed a similar contention as follows:

"Section 13A-11-61, Ala.Code 1975, provides:

"`(a) No person shall shoot or discharge a firearm, explosive or other weapon which discharges a dangerous projectile into any occupied or unoccupied dwelling or building or railroad locomotive or railroad car, aircraft, automobile, truck or watercraft in this state.

"`(b) Any person who commits an act prohibited by subsection (a) with respect to an occupied dwelling or building or railroad locomotive or railroad car, aircraft, automobile, truck or watercraft shall be deemed guilty of a Class B felony as defined by the state criminal code, and upon conviction, shall be punished as prescribed by law.

"`(c) Any person who commits any act prohibited by subsection (a) hereof with respect to an unoccupied dwelling or building or railroad locomotive or railroad car, aircraft, automobile, truck or watercraft shall be deemed guilty of a Class C felony as defined by the state criminal code, and upon conviction, shall be punished as prescribed by law.'

"The indictments track the language of § 13A-11-61(a), Ala.Code 1975. However, that statute does not include a specific culpable mental state. Therefore, we must determine whether a violation of § 13A-11-61, Ala.Code 1975, is a strict liability offense.

"Section 13A-2-4(b), Ala.Code 1975, provides:

"`Although no culpable mental state is expressly designated in a statute defining an offense, an appropriate culpable mental state may nevertheless be required for the commission of that offense, or with respect to some or all of the material elements thereof, if the proscribed conduct necessarily involves such culpable mental state. A statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, states a crime of mental culpability.'

"(Emphasis added.) The Commentary to § 13A-2-4, Ala.Code 1975, states:

"`Subsection (b) explicitly states a policy adverse to arbitrary use of "strict liability" concepts. An express statement is required in the statute defining the offense if strict liability is being imposed.'

"(Emphasis added.) Although § 13A-11-61, Ala.Code 1975, does not describe a culpable mental state, it also does not expressly state that discharging a firearm into an occupied vehicle is a strict liability offense. Furthermore, § 13A-11-61, Ala.Code 1975, was enacted in 1984, and we presume that the Legislature was aware of § 13A-2-4, Ala.Code 1975, and chose not to make the offense a strict liability offense. See Ex parte Phillips, 771 So.2d 1066 (Ala.2000). Therefore, we conclude that discharging a firearm into an occupied vehicle is not a strict liability offense.

"We must next attempt to ascertain what mental state is required to commit the offense of discharging a firearm into an occupied vehicle. In this regard, § 13A-2-2, Ala.Code 1975, provides:

"`The following definitions apply to this Criminal Code:

"`(1) Intentionally. A person acts intentionally with respect to a result or to conduct described by a statute defining an offense, when his purpose is to cause that result or to engage in that conduct.

"`(2) Knowingly. A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of that nature or that the circumstance exists.

"`(3) Re

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