A.L.L. v. State, No. CR-06-1500 (Ala. Crim. App. 9/26/2008), CR-06-1500.

CourtAlabama Court of Criminal Appeals
PartiesA.L.L. v. State of Alabama
Docket NumberNo. CR-06-1500.,CR-06-1500.
Decision Date26 September 2008

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State of Alabama
No. CR-06-1500.
Court of Criminal Appeals of Alabama.
Decided September 26, 2008.

Appeal from Dale Circuit Court (CC-06-240).


A.L.L. was indicted for vehicular homicide, a violation of § 32-5A-192, Ala. Code 1975, and for assault in the second degree, a violation of § 13A-6-21, Ala. Code 1975, as the result of a single-vehicle automobile collision in which

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Montez Kelly was killed and Michael Grace was injured. A.L.L. applied for and was granted youthful-offender status. Following a bench trial, the circuit court adjudicated A.L.L. a youthful offender based on the underlying charges of vehicular homicide and second-degree assault. The court sentenced A.L.L. to concurrent three-year terms in the community-corrections program, and ordered him to serve six consecutive weekends in jail and to perform community service.

Lillian Watson testified that on the afternoon of August 4, 2005, she was traveling on a two-lane road when she saw the vehicle A.L.L. was driving approach her at a high rate of speed. When the two cars passed one another, A.L.L.'s vehicle went off the edge of the road and began fishtailing. Although Watson did not see the collision in her rearview mirror, she was aware that A.L.L.'s vehicle had crashed into a tree, so she returned to the scene of the wreck and telephoned emergency 911.

James Lee testified that he witnessed the collision from his residence, which was near the road on which A.L.L.'s vehicle had been traveling. He said that he first heard "like a roar and like gravel" and then heard the "squeal" of the

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car's tires. (R. 22.) Lee stated that when he first saw the car, the front tire had left the pavement and was on the grass, and the car was beginning to slide. Although the posted speed limit on the road was 55 miles per hour, Lee estimated that the car was traveling at least 70 miles per. Lee continued to watch the car as it slid sideways, spun around on the pavement, then slid onto the opposite side of the road; the passenger side of the car struck a tree. According to Lee, the car wrapped itself around the tree as a result of the impact.

Lee testified that he ran to the crash site immediately, and that he observed that the backseat passenger, later identified as Montez Kelly, appeared limp and lifeless. A.L.L. was holding Kelly's head and was calling his name. Another man, later identified as Michael Grace, was lying facedown on the ground in front of the car. Lee said that Grace was "badly cut" (R. 30), with "a lot of cuts [and] abrasions on his arms and head and stuff" (R. 31), and that he was bleeding, but that he nonetheless was trying to get up. Lee told Grace to stay still until help arrived. Lee's girlfriend, Sheila Gassett, also came to the scene. She said

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that when she first arrived, Grace was incoherent and appeared to be going into shock, but that after she began talking to him, he spoke to her. Grace was bleeding from his shoulder and his leg, Gassett said, but she had no knowledge of whether he was bleeding internally. Gassett accompanied Grace in the ambulance to the Dale Medical Center. Gassett testified that she believed that Grace was later transferred from that facility to the Southeast Medical Center.

Earl Bankston, the Dale County coroner, pronounced Montez Kelly dead at the scene of the crash. Kelly died of multiple blunt-force injuries to his head, which he sustained when the vehicle struck the tree and his head impacted the doorpost that separated the front and backseats of the vehicle A.L.L. was driving.

State Trooper David McGowan, a traffic homicide investigator, testified that he and two additional troopers investigated the wreck. They conducted their investigation several days after the crash. From his measurements and calculations at the scene, Trooper McGowan determined that the vehicle was traveling 81 miles per hour when it initially left the roadway, and that it traveled 585 feet as it slid down the

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road, crossed both lanes of traffic, and struck the tree. Trooper McGowan calculated that the vehicle was traveling at a speed of at least 45 miles per hour when it struck the tree. The impact with the tree was so severe that remnants of the vehicle were found on the opposite side of the tree from the point of impact. Trooper McGowan testified that Grace, the surviving passenger, had been in the front passenger seat and that he had been ejected as a result of the force of the impact with the tree.


A.L.L. first contends that the trial court erred when it denied his motion to dismiss count one of the indictment, charging him with vehicular homicide under § 32-5A-192, Ala. Code 1975, because, he says, that count failed to allege a culpable mental state and, thus, as to that count the indictment was fatally flawed.

Initially, we note that the State argues that this issue was not preserved for review because A.L.L. did not raise it before trial but raised it for the first time after the State's first witness had been called to the stand and sworn. Although Rule 15.2(a), Ala.R.Crim.P., provides that

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"[o]bjections based on defects in the commencement of the proceeding or in the charge, other than lack of subject matter jurisdiction or failure to charge an offense, may be raised only by pre-trial motion as provided in Rule 15.3,"1 Rule 15.2(d), Ala.R.Crim.P., provides that "[t]he lack of subject matter jurisdiction or the failure of the charge to state an offense may be raised by the court or by motion of the defendant at any time during the pendency of the proceeding." (Emphasis added.) "'"An indictment that fails to allege each material element of an offense fails to charge that offense."'" Ex parte Lewis, 811 So. 2d 485, 488 (Ala. 2001), overruled on other grounds, Ex parte Seymour, 946 So. 2d 536 (Ala. 2006), quoting Barbee v. State, 417 So. 2d 611, 613 (Ala. Crim. App. 1982), quoting in turn, United States v. London, 550 F.2d 206, 211 (5th Cir. 1977). Although A.L.L.'s claim does not implicate the subject-matter jurisdiction of the trial court, see Ex parte Seymour, supra, it is a challenge to the indictment's alleged failure to charge an offense. Therefore, it did not have to be raised before trial

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under Rule 15.2(a), but could be raised at any time "during the pendency of the proceeding" under Rule 15.2(d). "Pendency of the proceeding" as that phrase is used in Rule 15.2(d) refers to the proceeding in the trial court. See, e.g., Ex parte Harper, 594 So. 2d 1181 (Ala. 1991). Because A.L.L. raised his claim during the proceeding in the trial court, it was properly preserved for review.

Count I of the indictment alleged:


(C. 12; capitalization in original.)

Section 32-5A-192(a), Ala. Code 1975, provides:

"(a) Whoever shall unlawfully and unintentionally cause the death of another person while engaged in the violation of any state law or municipal ordinance applying to the operation or use of a vehicle, or vessel, as defined in Section 33-5-3, or to the regulation of traffic or boating, shall be guilty of homicide when the violation is the proximate cause of the death."

Although § 32-5A-192 does not include a mens rea element, in Ex parte Edwards, 816 So. 2d 98 (Ala. 2001), the Alabama Supreme Court held that vehicular homicide was not a strict-liability

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crime, but required a mens rea other than intentionally, specifically, either knowingly, recklessly, or negligently under § 13A-2-2(2), (3), or (4), Ala. Code 1975, respectively. The Court also noted that an indictment charging vehicular homicide should include a mens rea element.

In Chatman v. State, 813 So. 2d 956 (Ala. Crim. App. 2001), this Court followed Ex parte Edwards and reversed Chapman's guilty-plea conviction for vehicular homicide on the ground that the indictment was defective for not charging a culpable mental state; we explained:

"In Ex parte Edwards, 816 So. 2d 98 (Ala. 2001), the Alabama Supreme Court reversed our judgment and rendered a judgment for Edwards because the indictment was fatally defective with respect to the charge of vehicular homicide. In Edwards, the Court stated that '[a]n indictment under § 32-5A-192(b)[, Ala.Code 1975,] should charge an appropriate mental state based on § 13A-2-2(2) to (4).' Moreover, because the appellant was acquitted on the manslaughter and the criminal-negligence charges, [s]he was effectively acquitted of vehicular homicide, and, therefore, the trial court erred in denying her motion for a judgment of acquittal. See Ex parte Rice, 766 So. 2d 143, 147 (Ala. 1999).

"In Ex parte Burnett, 807 So. 2d 586 (Ala. 2001), the Alabama Supreme Court addressed issues identical to those raised in Edwards, but reversed our judgment and remanded the case for further proceedings consistent with that opinion on grounds that the jury in Burnett did not make any findings as to any charged offense other than vehicular homicide. Because the Supreme Court, in Burnett,

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did not render a judgment in favor of the appellant, as it did in Ex parte Edwards, this Court, on remand from the Alabama Supreme Court, held that the State can reindict the appellant for vehicular homicide using the language set forth in Ex parte Edwards, supra. See Burnett v. State, 807 So. 2d 588 (Ala. Crim. App. 2001).

"As in Ex parte Edwards and Ex parte Burnett, the indictment in the instant case did not charge a mental state, and is, therefore, fatally defective with respect to the vehicular-homicide charge.... Because there has been no adjudication in this case regarding the sufficiency of the evidence to...

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