Hunt v. State

Citation642 So.2d 999
PartiesHarold Guy HUNT v. STATE. CR 92-1300.
Decision Date13 December 1993
CourtAlabama Court of Criminal Appeals

George Beck and Terry Travis, Montgomery, John Mark McDaniel, Huntsville, and William N. Clark, Birmingham, for appellant.

James H. Evans, Atty. Gen., and Rosa H. Davis, David Bjurberg, and Stephen P. Feaga, Asst. Attys. Gen., for appellee.

PER CURIAM. 1

Harold Guy Hunt, the Governor of the State of Alabama, was indicted and convicted for using his office for direct personal financial gain in violation of Ala.Code 1975, § 36-25-5 of the Alabama Ethics Law. His sentence of five years' imprisonment was suspended upon the condition that he perform 1,000 hours of community service. This is the direct appeal from that conviction.

STATEMENT OF THE CASE

The Alabama Ethics Commission, after investigation, found probable cause to believe that Hunt had violated the State Ethics Law. The Commission sent its findings to the Alabama Attorney General for further proceedings on September 20, 1991, pursuant to Ala.Code 1975, § 36-25-4(8). Hunt, in his official capacity as governor, secured legal counsel. He initiated legal proceeding in the Federal District Court for the Middle District of Alabama in which he requested the court to stop any proceedings against him on the ground that he was not subject to the state ethics law because he was the chief executive of the state. The federal district court denied relief on October 30, 1991. Hunt v. Anderson, 794 F.Supp. 1557 (M.D.Ala.1992). Hunt appealed that decision to the United States Circuit Court of Appeals for the Eleventh Circuit. The Eleventh Circuit Court of Appeals affirmed the ruling of the federal district court on September 30, 1992. Hunt v. Anderson, 976 F.2d 744 (11th Cir.1992).

While the appeal from the ruling of the federal district court was pending, a state grand jury was convened in June 1992 in Montgomery County by the Attorney General, to investigate Hunt's financial transactions. During the course of the investigation, the grand jury subpoenaed financial records of Hunt and members of his family. In response to motion, filed by Hunt, the Circuit Court of Montgomery County ruled that the grand jury had a right to examine Hunt's financial records. Hunt appealed that ruling. After hearing oral arguments, this court denied the petition without opinion, thereby allowing the ruling of the trial court to stand. Ex parte Hunt, 617 So.2d 703 (Ala.Cr.App.1992).

On December 28, 1992, the grand jury indicted Hunt. Count I of the indictment charged Hunt with a violation of the State Ethics Law which prohibits an elected official from using his office for direct personal financial gain. The remaining 12 counts of the indictment were dismissed by the circuit court based on the statute of limitations.

The trial began with jury selection proceedings on April 12, 1993. The trial concluded on April 22, 1993, when the jury returned a verdict of guilty as charged in count one of the indictment. Hunt was sentenced on May 7, 1993. He filed a motion for a new trial which was denied on June 23, 1993. Notice of appeal was filed. The completed record of the circuit court proceedings was filed with this court on July 6, 1993. Oral arguments were heard on September 8, 1993. This case was officially submitted to this court on that date.

Appeal to this court is an absolute right. Section 12-3-11, Code of Alabama 1975, provides:

"Each of the courts of appeals shall have and exercise original jurisdiction in the issuance and determination of writs of quo warranto and mandamus in relation to matters in which said court has appellate jurisdiction. Each court shall have authority of grant injunctions and issue writs of habeas corpus and such other remedial and original writs as are necessary to give it a general superintendence and control of jurisdiction inferior to it and in matters over which it has exclusive appellate jurisdiction and to punish for contempt by the infliction of a fine not exceeding $100.00 and imprisonment not exceeding 10 days, or both, and to exercise such other powers as may be given to such court by law."

Section 12-3-9, Code of Alabama 1975 states in pertinent part:

"The court of criminal appeals shall have exclusive appellate jurisdiction of ... all felonies...."

Any appeal to the Alabama Supreme Court of this court's ruling affirming Hunt's conviction is in the nature of discretionary review. Ala.Code 1975, § 12-2-2. See Cunningham v. State, 611 So.2d 510 (Ala.Cr.App.1992).

I. SELECTIVE PROSECUTION

Hunt initially argues that the trial court committed reversible error by failing to dismiss the indictment on the grounds that he was selectively prosecuted in violation of his constitutional rights. Hunt's contention is based on the guarantee in the Fourteenth Amendment of the United States Constitution which states in part that no person shall be denied "the equal protection of the law." Hunt contends that the equal protection clause was violated by his selective prosecution and that "he and the people of the state were denied equal access to justice."

In 1886 the principle that equal protection of the law is denied when a law is arbitrarily enforced was applied in the United States Supreme Court case of Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). This principle was reaffirmed by the United States Supreme Court in Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944) and Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962).

Yick Wo, a native of China, appealed the enforcement of a San Francisco ordinance which stated that all owners of laundries built of wood had to obtain consent from a board of supervisors before they were allowed to continue to operate. Yick Wo, who had operated his "wooden laundry" for 22 years, sought consent of the board. Approval was denied and Yick Wo appealed that ruling. He presented evidence that there were 320 laundries in San Francisco, that 240 of those were operated and owned by natives of China, and that a total of 310 were made of wood. Yick Wo and more than 150 of his countrymen were arrested for similar violations. The United States Supreme Court, in holding that Yick Wo was discriminated against, stated the following:

"The fact of this discrimination is admitted. No reason for it is shown, and the conclusion cannot be resisted, that no reason for it exists except hostility to the race and nationality to which the petitioners belong, and which in the eye of the law is not justified. The discrimination is, therefore, illegal, and the public administration which enforces it is a denial of the equal protection of the laws and a violation of the Fourteenth Amendment of the Constitution."

118 U.S. at 374, 6 S.Ct. at 1073, 30 L.Ed. at 228.

Discriminatory enforcement or prosecution must be "purposeful." Snowden v. Hughes, supra. In Oyler v. Boles, the United States Supreme Court further stated that the selectivity must be "based upon an unjustifiable standard such as race, religion, or other arbitrary classification." 368 U.S. at 456, 82 S.Ct. at 506, 7 L.Ed.2d at 453. "[T]he conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation." Oyler v. Boles, 368 U.S. at 456, 82 S.Ct. at 506, 7 L.Ed.2d at 453. See also 155 A.L.R. 1162 (1945). Though the United States Supreme Court has addressed the issue of discriminatory prosecution on several occasions, the exact elements of proof have been left to evolve on a case-by-case basis.

The Alabama courts have also dealt with this issue. In the case of Associated Industries of Alabama, Inc. v. State, 55 Ala.App. 277, 314 So.2d 879, cert. denied, 294 Ala. 281, 314 So.2d 901 (1975), the Alabama Court of Criminal Appeals adopted the holding in United States v. Steele, 461 F.2d 1148 (9th Cir.1972), and held that, initially, the party relying on the defense of discriminatory enforcement must first make a showing that a "strong inference of discriminatory prosecution exists." Once this showing has been made, it is up to the prosecuting agency to show that the "selection process actually rested upon some valid ground." Associated Industries, 314 So.2d at 890, quoting Steele, 461 F.2d at 1152.

To establish that a "strong inference of discriminatory prosecution exists" the party alleging such discrimination must show (1) selectivity in enforcement, (2) intentional selectivity, and (3) selectivity based on an unjustifiable standard. Elmore v. State, 445 So.2d 943 (Ala.Cr.App.1983); Coble v. City of Birmingham, 389 So.2d 527, 533 (Ala.Cr.App.), cert. denied, 389 So.2d 535 (Ala.1980); Starley v. City of Birmingham, 377 So.2d 1131 (Ala.Cr.App.), cert. denied, 377 So.2d 1134 (Ala.1979), cert. denied, 446 U.S. 956, 100 S.Ct. 2929, 64 L.Ed.2d 815 (1980). The party alleging discriminatory prosecution bears the burden of proof in establishing the claim. Robinson v. City of Birmingham, 353 So.2d 528 (Ala.Cr.App.), cert. denied, 353 So.2d 534 (Ala.1977), cert. denied, 436 U.S. 932, 98 S.Ct. 2833, 56 L.Ed.2d 777 (1978). See also Annot., What Constitutes Such Discriminatory Prosecution or Enforcement of Laws as to Provide Valid Defense in State Criminal Proceedings, 95 A.L.R.3d 280 (1980); Annot., Preconviction Procedure for Raising Contention that Enforcement of Penal Statute or Law is Unconstitutionally Discriminatory, 4 A.L.R.3d 404 (1965); 21A Am.Jur.2d § 831 and cases cited therein.

The United States Supreme Court has stated that:

" 'so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.' Bordenkircher v. Hayes, 434 U.S. 357, 364[, 98 S.Ct. 663, 668, 54 L.Ed.2d 604, 611] (1978)....

"[A]lthough prosecutorial discretion is broad, it is not ' "...

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