Hulsey v. State

• Decision Date: 10 July 2015
• Docket Number: CR–13–0357.
• Citation: 196 So.3d 342
• Parties: Wallace Ray HULSEY v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

196 So.3d 342

Wallace Ray HULSEY

v.STATE of Alabama.

CR–13–0357.

Court of Criminal Appeals of Alabama.

July 10, 2015.

Certiorari Denied Nov. 13, 2015

Alabama Supreme Court 1141148.

Lisa M. Ivey, Jasper, for appellant.

Luther Strange, atty. gen., and Michael A. Nunnelley, asst. atty. gen., for appellee.

On Application for Rehearing

JOINER

, Judge.

This Court's opinion issued on October 3, 2014, is withdrawn, and the following is substituted therefor.

Wallace Ray Hulsey was convicted, following a jury trial, of first-degree unlawful manufacture of a controlled substance, see § 13A–12–218, Ala.Code 1975

, and reckless endangerment, see § 13A–6–24, Ala.Code 1975. For the unlawful-manufacture-of-a-controlled-substance conviction, Hulsey was sentenced to 15 years' imprisonment; that sentence was split, and he was ordered to serve 3 years in prison, followed by 12 years' supervised probation. The court also ordered Hulsey to pay a $5,000 fine, a $50 crime-victims-compensation assessment, a $100 forensic-services-trust-fund fee, and court costs. For the reckless-endangerment conviction, Hulsey was sentenced to one year in prison and was ordered to pay a $50 crime-victims-compensation assessment and court costs. The circuit court ordered that Hulsey's sentences were to run concurrently.

The evidence presented at trial tended to show that on April 28, 2009, Officer Nathan Whitman of the Haleyville Police Department noticed Hulsey driving a truck with an unsecured air-conditioning unit lying on the tailgate, and he attempted to conduct a traffic stop on Hulsey. (R. 54–55.) When Officer Whitman “turned [his] blue lights on,” Hulsey “gunned the vehicle” and drove away “at a high rate of speed” while Officer Whitman pursued him. (R. 55–57.) Officer Whitman was unable to stop Hulsey, but he and Sgt. Steve Hicks, also of the Haleyville Police Department, eventually located Hulsey's abandoned truck. (R. 58, 78–79, 82.) Officer Whitman and Sgt. Hicks discovered, in the bed of the truck, ingredients and materials commonly used to manufacture methamphetamine. (R. 82–84.) Haleyville police lieutenant Tim Steien, who testified that he was certified in the dismantling and disposal of methamphetamine laboratories, responded to Hulsey's truck because of the methamphetamine paraphernalia found therein. (R. 100–01.) Lt. Steien also found mail addressed to Hulsey inside the truck. (R. 166.)

Hulsey was tried for first-degree unlawful manufacture of a controlled substance, see § 13A–12–218, Ala.Code 1975

, attempt to commit a controlled-substance crime, see § 13A–12–203, Ala.Code 1975, and reckless endangerment, see § 13A–6–24, Ala.Code 1975. A jury found Hulsey guilty of the first-degree unlawful-manufacture-of-a-controlled substance and reckless-endangerment charges. Hulsey appeals his convictions and raises several issues. We address each in turn.

I.

Hulsey first claims that his conviction for first-degree unlawful manufacture of a controlled substance is due to be set aside because, he says, he was indicted beyond the statute of limitations for the offense. Specifically, Hulsey argues that the incident giving rise to his prosecution for first-degree unlawful manufacture of a controlled substance, see § 13A–12–218, Ala.Code 1975

, occurred on April 28, 2009, and that the indictment for that charge was not returned until June 18, 2013, which, Hulsey argues, is “outside the applicable three (3) year statute of limitations” and “was thus time-barred by Ala.Code § 15–3–1.” (Hulsey's brief, p. 15.) Hulsey also argues that “the tolling provisions of Ala.Code [1975,] § 15–3–6 [,] are not applicable because the [i]ndictment did not charge the same offense as any of the previous [i]ndictments.” (Hulsey's brief, p. 15.)

The State contends that Hulsey's claim with respect to the timeliness of the indictment is not preserved for appellate review. Specifically, the State claims that “Hulsey should be precluded from raising any arguments related to the substituted indictment because he failed to object to the substitution of the indictment at trial.” (State's brief, p. 19.)

The statute of limitations in a criminal case is an issue that is not subject to the ordinary rules regarding preservation and waiver. See, e.g., Ex parte Campbell, 784 So.2d 323, 325 (Ala.2000)

; Speigner v. State, 663 So.2d 1024 (Ala.Crim.App.1994) ; Hines v. State, 516 So.2d 937 (Ala.Crim.App.1987) ; Cox v. State, 585 So.2d 182 (Ala.Crim.App.1991), cert. denied, 503 U.S. 987, 112 S.Ct. 1676, 118 L.Ed.2d 394.

“Ordinarily, ‘ “ ‘[r]eview on appeal is restricted to questions and issues properly and timely raised at trial.’ ” ' Newsome v. State, 570 So.2d 703, 717 (Ala.Crim.App.1989)

. However, this Court has held that [the] claim [ ] [that a trial court does not have jurisdiction to try and convict a defendant because the prosecution did not commence within the applicable statute of limitations] can be raised on appeal.

“ ‘Although Alabama law is not entirely clear on the question whether a court presiding over a prosecution barred by the statute of limitations is without “jurisdiction,” a synthesis of the Alabama cases indicates that a statute of limitations defect must be considered “jurisdictional,” in the

sense that the trial court is not authorized to pronounce the accused guilty of the time-barred offense. Notwithstanding the fact that in certain special circumstances where the bar of the statute may be expressly waived when it does not operate in the defendant's favor, see Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984)

; Hall v. State, 497 So.2d 1145 (Ala.Cr.App.1986), under ordinary circumstances the bar of the statute is not waived by a mere failure to assert it, and the statute of limitations may be properly asserted on appeal or in a petition for post-conviction relief. ’

“Cox v. State, 585 So.2d 182, 193 (Ala.Crim.App.1991) (emphasis added).”

Money v. State, 138 So.3d 332, 337 (Ala.Crim.App.2012)

. Thus, a challenge to the statute of limitations may be raised for the first time on appeal, and we address Hulsey's claim.

The grand jury of Winston County indicted Hulsey on four separate occasions for a variety of charges, all arising out of the incident occurring on or about April 28, 2009. (C. 15–16, 29–30, 32–33, 37–38.)

The First Indictment

The original indictment, returned on December 3, 2009, charged Hulsey under count one with attempt to commit a controlled-substance crime, see § 13A–12–203, Ala.Code 1975

, and under count two with reckless endangerment, see § 13A–6–24, Ala.Code 1975.

Count one of the first indictment read:

“The Grand Jury of said county charge that, before the finding of this indictment, Wallace Ray Hulsey whose name is otherwise unknown to the Grand Jury, did on or about April 28, 2009, with the intent to commit the crime of committing controlled substance crime (Section 13A–12–212 of the Code of Alabama

) attempt to knowingly and unlawfully commit said offense of manufacturing methamphetamine, in violation of Section 13A–12–203 of the Code of Alabama.”

(C. 16.) Section 13A–12–203, Ala.Code 1975

, provides, in relevant part, that “[a] person is guilty of an attempt to commit a controlled substance crime if he engages in the conduct defined in Section 13A–4–2(a), and the crime attempted is a controlled substance crime.” Section 13A–4–2(a) states that “[a] person is guilty of an attempt to commit a crime if, with the intent to commit a specific offense, he does any overt act towards the commission of such offense.”

Count two of the first indictment read:

“The Grand Jury of said county further charge that, before the finding of this indictment, Wallace Ray Hulsey, whose name is otherwise unknown to the Grand Jury, did recklessly engage in conduct by driving recklessly at a high rate of speed while having a meth lab inside his vehicle, which created a substantial risk of serious physical injury to motorists in violation of Section 13A–6–24 of the Code of Alabama

.”

(C.16.) Section 13A–6–24, Ala.Code 1975

, provides, in relevant part, that “[a] person commits the crime of reckless endangerment if he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.”

The Second Indictment

The second indictment, returned on September 20, 2011, charged Hulsey under count one with second-degree unlawful manufacture of a controlled substance, see § 13A–12–217, Ala.Code 1975

, and purported to charge him under count two with reckless endangerment, see § 13A–6–24, Ala.Code 1975.

Count one of the second indictment read:

“The Grand Jury of said County charge that, before the finding of this indictment, Wallace Ray Hulsey, whose name is otherwise unknown to the Grand Jury, did on or about April 28, 2009, manufacture methamphetamine to-wit: did possess one pot cook,¹ alcohol, drain opener, cloth filters, pill grinders, plastic funnels, fertilizer and salt, in violation of Section 13A–12–217 of the Code of Alabama

.”

(C.30.) Section 13A–12–217, Ala.Code 1975

, provides, in relevant part:

“(a) A person commits the crime of unlawful manufacture of a controlled substance in the second degree if, except as otherwise authorized in state or federal law, he or she does any of the following:

“(1) Manufactures a controlled substance enumerated in Schedules I to V, inclusive.

“(2) Possesses precursor substances as determined in Section 20–2–181, in any amount with the intent to unlawfully manufacture a controlled substance.”

Count two of the second indictment read:

“The Grand Jury of county further charge that, before the finding of this indictment, Wallace Ray Hulsey whose name is otherwise unknown to the Grand Jury, did on or about April 28, 2009, with the intent to commit the crime of committing controlled substance crime (Section 13A–12–212 of the Code of Alabama

) attempt to knowingly and unlawfully commit said offense of manufacturing methamphetamine, in violation of Section 13A–12–203 of the Code of Alabama.”

(C. 30.)

In actuality, count two...