Hulsey v. State

• Decision Date: 31 January 2003
• Citation: 866 So.2d 1180
• Parties: Olin Dale HULSEY v. STATE.
• Court: Alabama Court of Criminal Appeals

866 So.2d 1180

Olin Dale HULSEY v. STATE.

CR-01-1004.

Court of Criminal Appeals of Alabama.

January 31, 2003.

James Erik Gentry, Tuscaloosa, for appellant.

William H. Pryor, Jr., atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.

COBB, Judge.

The grand jury of Tuscaloosa County returned a six-count indictment against Olin Dale Hulsey. Count one of the indictment charged Hulsey with attempting to cause the death of his wife, Megan Francis Ray, "by starting a fire within a residence occupied by said Megan Francis Ray, and/or by striking her head against a countertop and/or beating her with a wooden bannister" or similar object. (C. 9.) Counts two and three of the indictment charged Hulsey with attempting to murder two of his three children, by starting a fire within a residence they occupied. Count four of the indictment charged Hulsey with burglary in the first degree. Counts five and six of the indictment charged Hulsey with attempting to commit arson in the first degree and with criminal mischief in the first degree, respectively. After a jury trial Hulsey was convicted of assault in the second degree as a lesser offense to the offense of the attempted murder of Ray; burglary in the first degree; attempt to commit arson in the first degree; and criminal mischief in the first degree. He was acquitted of the two counts of the attempted murder of his children. He was sentenced to 3 years in prison for the assault-in-the-second-degree conviction, 15 years in prison for the burglary-in-the-first-degree conviction, 10 years in prison for the attempt-to-commit-arson conviction, and 3 years in prison for the criminal-mischief conviction. He raises three issues on appeal.

Because Hulsey's issues concern questions of law or procedure, a lengthy detailed discussion of the facts is unnecessary. For purposes of this appeal the following statement of facts is sufficient.

The charges underlying this appeal arose as the culmination of what was apparently a tumultuous relationship between Hulsey and his wife Megan Francis Ray. Though married only 14 months, the couple had had three young children together, ages 5, 3, and 1, respectively. At the time of the incident, divorce proceedings were pending, and Ray had been allowed to remain in the couple's home. A restraining order had been issued ordering, among other things, that Hulsey stay away from Ray's home and from her workplace. At approximately 1:00 a.m., on May 15, 2000, Ray was inside her home with her children and a female friend, Connie Griffin. Hulsey arrived and entered the home. The evidence, though disputed in some respects, indicates that Hulsey became agitated with Ray and that he physically attacked her. There was conflicting evidence as to whether Ray or Hulsey initiated the physical altercation, but Ray sustained injuries consistent with her testimony that Hulsey struck her numerous times with his fist and with a bannister, and that he had slammed her face into the kitchen countertop. After throwing Griffin and Ray out of the house, Hulsey placed some clothes on top of the stove and lit the stove. Ray said she reentered the house to remove the clothes from the stove, which according to Ray, were in flames, and to stop the fire because two of her children, were still inside the house. She also testified that she sustained burns when she put out the fire. However, Hulsey testified that he had second thoughts about the fire and that he turned the stove off and removed the smoldering clothes from the stove before a fire actually erupted.

During the melee inside the house, David Griffin, Connie Griffin's adult son, arrived. When Hulsey left the house he threw a log through the windshield of David Griffin's car. Hulsey intentionally crashed his truck into and damaged the automobile Ray had rented while the divorce was pending. Jimmy Hannah, David Griffin's brother-in-law, arrived and Hulsey chased him down the driveway. However, Ray and the children were able to get into Hannah's car, and they were taken to safety.

I.

Hulsey contends that the trial court erred in refusing to dismiss the charge of attempted murder as to Ray because this charge violated his right under the Fifth Amendment to the United States Constitution and Art. I, § 9, Ala. Const. of 1901, not to be twice placed in jeopardy for the same offense.¹

"The concept of double jeopardy `protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.' North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted [in Kuk])."

Kuk v. State, 602 So.2d 1213, 1219 (Ala. Crim.App.1992). Specifically, Hulsey contends that the instant prosecution was "a second prosecution for the same offense after conviction." Id. "`[T]he Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.'" Ex parte Staten, 622 So.2d 1321, 1323 (Ala.1992)(quoting Grady v. Corbin, 495 U.S. 508, 521, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990)).

According to Hulsey, after the incident with Ray on May 15, 2000, he was convicted in the district court of Tuscaloosa County of third-degree assault as to Ray, a violation of a § 13A-6-22(a)(1), Ala.Code 1975. He appealed this conviction to the Tuscaloosa Circuit Court for a trial de novo. The State filed a motion in the circuit court to "dismiss[ ] the case" (R. 37), which the trial court granted. Hulsey was not given an opportunity to be heard before the dismissal. The State then obtained an indictment against Hulsey for the attempted murder of Ray, a violation of §§ 13A-6-2 and 13A-4-2, Ala.Code 1975.

Hulsey filed a pretrial motion to dismiss the charges filed against him, claiming that the charges lodged in the circuit court were based on the same conduct as the conduct underlying his district-court conviction for third-degree assault. Thus, Hulsey argued that his double-jeopardy right was violated because, he said, he was being tried a second time for the same conduct after having been convicted for his actions regarding the incident of May 15, 2000. A hearing was conducted on his double-jeopardy claim before the trial began. Hulsey narrowed his argument at this time, arguing that count one of the indictment, the attempted-murder charge concerning Ray, should be dismissed on double-jeopardy grounds because he had already been convicted in the district court for assault in the third degree based on the same conduct underlying the attempted-murder charge.

The record does not disclose the basis of the State's motion to dismiss the de novo appeal in the circuit court. However, the State did not dispute Hulsey's accusations that the State sought the dismissal so it could obtain an indictment charging a greater offense. The State argued in response to Hulsey's motion that it had the right to prosecute Hulsey in the circuit court for attempted murder because Hulsey had appealed from the district-court conviction for a trial de novo in the circuit court. According to the State, the appeal to the circuit court "erased" the district-court conviction as if it had never happened, and, thus, the State could move to dismiss the original charge filed in the district court and recharge Hulsey in the circuit court with the greater offense of attempted murder.

The circuit court agreed with the State. The court specifically ruled that Hulsey's appeal for a trial de novo "nullified the conviction in the district court" and that "the State did have the right to dismiss and recharge if they chose." (R. 36.) Thus, according to the circuit court, there were no double-jeopardy considerations. The court denied Hulsey's motion to dismiss the attempted-murder charge.

After the trial court ruled on the motion to dismiss, the State offered the following argument:

"[T]he second argument that the State would put forward is that even if there were an assault third degree which was adjudicated on this incident, that would be separate and apart from the attempted murder. It would be a separate event. There were many assault thirds that happened there but there was also an attempted murder that happened there, just for the record."

(R. 40.) The trial court responded "Okay" and began empaneling the jury. (R. 41.)

The trial court erred in granting the State's motion to dismiss Hulsey's appeal to the circuit court for a trial de novo. "Except as provided in Section 12-12-72 and in subsection (e) of Section 12-15-120, all appeals from final judgments of the district court shall be to the circuit court for trial de novo." § 12-12-71, Ala.Code 1975. The statute and rule governing an appeal from a municipal or district court for a trial de novo provide for dismissal of the appeal only upon the appellant's request or upon the appellant's failure to appear for trial. See Rule 30.5(b), Ala. R.Crim.P., and § 12-14-70(e) and (g), Ala. Code 1975. We can find no authority permitting the dismissal of a de novo appeal on motion of the State other than for failure of the appellant to appear at trial. "`"The plain wording of both § 12-14-70[(e) and (g), Ala.Code 1975,] and Rule 30.5(b)[, Ala.R.Crim.P.,] supports the appellant's contention that the circuit court has authority to dismiss a de novo appeal only when the defendant fails to appear for trial."'" Mayes v. State, 710 So.2d 537, 538 (Ala.Crim.App.1997)(failure to appear at "plea day")(emphasis omitted)(quoting McLemore v. State, 686 So.2d 492, 493 (Ala.Crim.App.1996), quoting in turn Riddle v. State, 641 So.2d 1316, 1318 (Ala. Crim.App.1994)).

Moreover, upon proper dismissal of the appeal to the circuit court, the cause is to be remanded to the lower court ...