Heard v. State

• Decision Date: 12 January 2007
• Docket Number: 1041265.
• Citation: 999 So.2d 992
• Parties: Ex parte State of Alabama. (In re Rodericus Antonio HEARD v. STATE of Alabama).
• Court: Alabama Supreme Court

999 So.2d 992

Ex parte State of Alabama.

(In re Rodericus Antonio HEARD v. STATE of Alabama).

1041265.

Supreme Court of Alabama.

January 12, 2007.

Troy King, atty. gen., Kevin Newsom, deputy atty. gen., and Stephanie N. Morman and John M. Porter, asst. attys. gen., for petitioner.

Kyla Groff Kelim of Davis & Neal, Mobile, for respondent.

BOLIN, Justice.

Rodericus Antonio Heard was indicted on two counts of capital murder resulting from the killing of Betty Weaver. Count I of the indictment alleged that Heard murdered Weaver during the course of a robbery in the first degree, § 13A-5-40(a)(2), Ala.Code 1975. Count II alleged that Heard murdered Weaver "by or through the use of a deadly weapon fired or otherwise used from outside a dwelling while the victim is in a dwelling," § 13A-5-40(a)(16), Ala.Code 1975. Following a jury trial, Heard was convicted of felony murder as a lesser-included offense to the offense charged in Count I, and of capital murder under Count II.

The jury recommended by a vote of 9-3 that Heard be sentenced to life imprisonment without the possibility of parole on the capital-murder conviction. The trial court accepted this recommendation, sentencing Heard to life imprisonment without the possibility of parole for the capital-murder conviction. The trial court sentenced Heard to life imprisonment on the felony-murder conviction.

Heard appealed,¹ and on March 18, 2005, the Court of Criminal Appeals reversed Heard's capital-murder conviction and sentence based on Ex parte Dorsey, 881 So.2d 533 (Ala.2003). The Court of Criminal Appeals also concluded that remand to the trial court was necessary to conduct an evidentiary hearing as to whether Heard's counsel at trial had rendered ineffective assistance. Heard v. State, 999 So.2d 982 (Ala.Crim.App.2005). The State petitioned this Court for the writ of certiorari; we granted certiorari to review the Court of Criminal Appeals' reversal of Heard's capital-murder conviction.

I. Ex parte Dorsey.

The Court of Criminal Appeals' decision relied on Ex parte Dorsey, supra. Dorsey was charged with three counts of capital murder for the death of three individuals —Richard Cary, Scott Williams, and Timothy Crane. Count 1 of the indictment charged Dorsey with murder made capital because the murders were committed during the course of a robbery, § 13A-5-40(a)(2), Ala.Code 1975. Count 2 charged Dorsey with murder made capital because "two or more persons [were] murdered by the defendant by one act or pursuant to one scheme or course of conduct," § 13A-5-40(a)(10), Ala.Code 1975. Count 3 charged Dorsey with the murder of one of the victims, Crane, made capital because the victim was less than 14 years of age, § 13A-5-40(a)(15), Ala.Code 1975.

This Court stated in Dorsey:

"At the conclusion of the guilt phase of Dorsey's trial, the trial court instructed the jury on the capital offenses charged in the indictment, as well as certain lesser non-capital offenses included within the capital offenses:

"`With respect to Count One, the trial court instructed the jury on the capital offense of intentional murder during the course of a robbery. The court also instructed the jury on the lesser-included, non-capital offenses of intentional murder, felony murder, and robbery in the first degree. Each of the murder charges was potentially applicable to each murder victim: Cary, Williams, and/or Crane.

"`As for Count Two, the trial court instructed the jury on the intentional murder of two or more persons by one act or pursuant to one scheme or course of conduct—a capital offense. The court also instructed the jury on two lesser-included, non-capital offenses: (1) the intentional murder of Cary, Williams, and/or Crane; and (2) the felony murder of Cary, Williams, and/or Crane.

"`Finally, as to Count Three, the court instructed the jury on the intentional murder of a victim less than fourteen years of age (Timothy Crane)—again, a capital offense. The court instructed the jury that it could also find Dorsey guilty of the lesser-included, non-capital offense of felony murder of Timothy Crane.[²]

"State's brief, at 13-14 (citations to reporter's transcript omitted).

"Unlike capital murder and intentional murder, as defined in § 13A-6-2(a)(1), the crime of `[f]elony murder requires no intent to kill, but only the intent to commit the underlying felony.' Dorsey [v. State], 881 So.2d [460], 511 [(Ala.Crim.App.2001)]. Under § 13A-6-2(a)(3), Ala.Code 1975, `[a] person commits the crime of [felony] murder if ... [h]e commits ... robbery in any degree, ... and, in the course of and in furtherance of the crime ... or in immediate flight therefrom, he, or another participant if there be any, causes the death of any person.'

"The jury returned verdicts convicting Dorsey of the felony murder of Cary under count 1, the felony murder of Williams under count 2, and the capital murder of Crane under count 3. At this point, concerned that the verdicts were inconsistent and/or incomplete, the trial court decided to reinstruct the jury with respect only to some of the charges embraced within count 1. ...

"When the trial court reinstructed the jury with regard to Cary and Williams, it limited its instructions to the lesser-included offenses of felony murder and first-degree robbery. However, with respect to Crane, the trial court charged the jury with regard to both intentional murder and felony murder.

"After it deliberated a second time, the jury returned verdicts convicting Dorsey of the felony murders of Cary, Williams, and Crane, as well as robbery in the first degree. Dorsey's counsel urged the trial court to accept those verdicts. However, those verdicts did not end the trial. Instead, the trial court decided to instruct the jury a third time regarding the charge that Dorsey had intentionally murdered Crane.

"In its third instructions, the trial court stated, in part:

"`I would like for you to go back to the jury room, deliberate and come back and tell me this one question: Do you find the defendant guilty of intentional murder of Timothy Bryan Crane under Count 1 of the indictment, do you find the defendant guilty of felony murder of Timothy Bryan Crane under Count 1 of the indictment or do you find the defendant not guilty of any murder at all of Timothy Bryan Crane under Count 1 of the indictment?'

"The trial court later told the jury `to go back, deliberate and tell me whether or not you find the State has proved, beyond a reasonable doubt, that the defendant intentionally killed Timothy Bryan Crane.' The jury then returned, stating its `finding [of intentional murder] with regard to the death of Timothy Bryan Crane.'

"The trial court ultimately accepted verdicts convicting Dorsey of the felony murder of Cary, the felony murder of Williams, robbery, and the capital murder of Crane as charged in count 3 of the indictment."

881 So.2d at 536-37.

This Court held that after the jury was instructed the second time and returned a verdict of felony murder for each of the victims, the conviction of the lesser-included offense of felony murder for the killing of Crane, who was under 14 years of age, necessarily acquitted Dorsey of the greater offense of capital murder of Crane. Dorsey, 881 So.2d at 538. Therefore, this Court concluded that the trial judge erred and violated double-jeopardy principles when it instructed the jury the third time. 881 So.2d at 538-39.

This Court's decision in Dorsey has led to confusion in the lower courts. We take this opportunity to attempt to dispel some of this confusion. In Dorsey, we ultimately held that a conviction for a lesser-included offense was an implied acquittal of the greater offense, as discussed in Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977). 881 So.2d at 538. In applying this rule to the facts in Dorsey, we held that Dorsey's conviction for the lesser-included offense of the felony murder of Crane impliedly acquitted him of the capital-murder charge regarding Crane, who was less than 14 years of age.

In the present case, the Court of Criminal Appeals applied our holding in Dorsey. However, the convoluted circumstances surrounding Dorsey have made the holding in that case difficult to apply. First, Dorsey began with a duplicitous indictment. Count 1 of the indictment charged Dorsey with three distinct capital offenses in one count of the indictment. Dorsey should have been indicted for three different counts of capital murder committed during a robbery because there were three victims. Although this defect in the indictment did not render the indictment void, it is obvious that the jury was confused when it originally returned verdicts convicting Dorsey of the felony murder of Cary under Count 1, the felony murder of Williams under Count 2, and the capital murder of Crane under Count 3. Essentially, the jury attempted to apply each count of the indictment to one victim when it returned its verdicts the first time. Furthermore, the jury eventually returned three sets of verdicts, which resulted in additional confusion.

Second, the trial court in Dorsey originally instructed the jury that felony murder was a lesser-included offense to the capital offense of intentional murder of a victim less than 14 years of age. As this Court noted in Dorsey, the State did not object to this jury instructions. This Court assumed for purposes of the appeal in Dorsey that the instructions were correct. However, under the particular facts of Dorsey, felony murder was not a lesser-included offense of capital murder of a victim less than 14 years of age because there was no underlying felony. Although the trial court correctly charged the jury that felony murder based on the underlying offense of robbery was a lesser-included offense of the capital offense of murder during a robbery under § 13A-5-40(a)(2), robbery was not a lesser-included offense to capital murder of a victim less than 14 years of age...