Lindley v. State

• Decision Date: 11 September 1998
• Citation: 728 So.2d 1153
• Parties: Ex parte State of Alabama. In re Jeffery Carl LINDLEY v. STATE.
• Court: Alabama Supreme Court

728 So.2d 1153

Ex parte State of Alabama.

In re Jeffery Carl LINDLEY¹ v. STATE.

1961992.

Supreme Court of Alabama.

September 11, 1998.

As Modified on Denial of Rehearing November 20, 1998.

Bill Pryor, atty. gen., and Beth Slate Poe, asst. atty. gen., for petitioner.

Jeffery Carl Lindley, respondent, pro se.

PER CURIAM.

Jeffery Carl Lindley was convicted of one count of first-degree assault, three counts of second-degree assault, and one count of the criminal use of a noxious substance. Those convictions arose out of charges that he threw a tear gas bomb into a residence occupied by two adults, a three-year-old child, and a three-week-old infant. Lindley appealed his convictions to the Court of Criminal Appeals. That court reversed the convictions and rendered a judgment in Lindley's favor. Lindley v. State, 728 So.2d 1150 (Ala. Crim.App.1997). We granted the State's petition for certiorari review. We affirm the judgment of the Court of Criminal Appeals in part, reverse it in part, and remand.

I.

The only evidence connecting Lindley to the crimes consisted of a statement made to an investigating officer by Billy Joe Scott, a friend of Lindley's, in which Scott stated that Lindley had told him he had thrown the tear gas bomb. At trial, however, Scott testified that he did not remember anything about the period of time during which the crimes were committed. The prosecutor then showed Scott a copy of the statement he had made. Scott testified that he recognized his signature on the statement, but said that on the date listed on the statement, and for several days before that date, he had been drunk, and he said he presently did not remember anything about the events described in the statement. He further testified that he did not remember making the statement or talking to the investigating officer. The Court of Criminal Appeals concluded that Scott's prior inconsistent statement was admissible as a prior out-of-court statement and, therefore, that the statement was admissible only to impeach Scott's testimony, not as substantive evidence of Lindley's guilt. That court also concluded that Scott's statement was not admissible pursuant to the past-recollection-recorded exception to the hearsay rule. The Court of Criminal Appeals held that the trial court erred in overruling Lindley's motion for a judgment of acquittal and, without addressing the question of double jeopardy, it rendered a judgment for Lindley instead of remanding for a new trial. 728 So.2d 1150.

The State argues: (1) Previous opinions of the United States Supreme Court and of Alabama appellate courts require that the judgment in this case be reversed and the case remanded, not that a judgment for the defendant be rendered; the State says that aspect of the Court of Criminal Appeals' opinion rendering a judgment for Lindley conflicts with Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988); Zinn v. State, 527 So.2d 148 (Ala.1988); and Mayo v. City of Rainbow City, 642 So.2d 524 (Ala.Crim.App.1994). (2) Any error in admitting Scott's statement was cured when admissible evidence regarding the statement was presented by the investigating officer. (3) The Court of Criminal Appeals misinterpreted the doctrine of past recollection recorded.

II.

We first address the issues regarding the admissibility of the evidence. The Court of Criminal Appeals correctly held that Scott's prior inconsistent statement could not be used as substantive evidence of Lindley's guilt. See Hooper v. State, 585 So.2d 137 (Ala.1990), cert. denied, 503 U.S. 920, 112 S.Ct. 1295, 117 L.Ed.2d 517 (1992). The State argues, however, that the investigating officer's testimony about Scott's statement to him was admissible and cured any error in the admission of the statement into evidence. As the Court of Criminal Appeals noted, however, "where a nonparty witness denies having made a prior statement, the alleged statement cannot be shown from the testimony of other witnesses. Carroll v. State, 473 So.2d 1219, 1225 (Ala.Cr.App.1985)." Lindley v. State, 728 So.2d at 1151.

The Court of Criminal Appeals also correctly held that Scott's statement was not admissible as a past recollection recorded. Although the State argues that Scott should not be allowed to evade his responsibility to testify against his friend by claiming to have been drunk when he gave his statement to the investigating officer, Scott did not testify at trial that he personally observed the facts referred to in the writing or that at the time the statement was made he knew of its contents and knew them to be true. Testimony to that effect is required before a statement can be admissible under the doctrine of past recollection recorded. See C. Gamble, McElroy's Alabama Evidence, § 116.03 at 528-33 (5th ed.1996).

Our sister State of Maryland has examined a question similar to the one now before us. In Ringgold v. State, 34 Md.App. 286, 367 A.2d 35 (Ct.Spec.App.1976), the State attempted to cure a witness's "convenient amnesia" by utilizing the doctrine of past recollection recorded. Ringgold was accused of robbing a pharmacy. Approximately a week after the robbery, his mother-in-law, Arlene Joyner, gave a statement to a police officer in which she said that on the morning of the robbery her son and Ringgold had left her house in a black Volkswagen. A black Volkswagen had been observed at the scene of the robbery. At the trial, Joyner stated that she did not remember what she had talked about with the officer, did not remember what had occurred on the day of the robbery, and could not remember giving or signing the statement. When the prosecutor showed Joyner her signed statement, she admitted that the signature looked like hers, but testified that seeing the statement did not refresh her recollection and that she could not testify as to its truthfulness. She contended that she did not remember signing the statement, because, she said, she had been upset. The Ringgold court examined the history of the doctrine of past recollection recorded, but concluded that that doctrine did not apply to allow Joyner's statement to be admitted into evidence. The court stated:

"When the recollection of a witness is not refreshed by reference to the memorandum, but he recalls the memorandum and recalls that it was accurate when made or he recognizes the signature on the statement as his and testifies positively that he would not have signed the statement had he not believed it to be true at the time, he may testify from the memorandum or it may be received into evidence in connection with his direct examination or in cross-examination. In this case, however, the witness professed to have no recollection of the statements allegedly made by her to the officer. While it seems clear that this was a deliberate prevarication by the witness, there still was no adequate foundation upon which the statement could be admitted into evidence as past recollection recorded."

34 Md.App. at 293-94, 367 A.2d at 39.

We conclude that, even though Scott's inability to recall his prior statement is suspicious, the fact remains that the State could not elicit the foundation necessary to admit his statement as a past recollection recorded.

III.

We now address the issue whether double jeopardy considerations prevent the State from retrying Lindley. The State insists that even if Scott's statement to the investigating officer is inadmissible, the Court of Criminal Appeals should not have rendered a judgment for Lindley because, it argues, the Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States does not bar a retrial in this case.

The Double Jeopardy Clause provides:

"No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb...."

The Double Jeopardy Clause is made applicable to the states through the Due Process Clause of the Fourteenth Amendment.² Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The Supreme Court of the United States has interpreted the Double Jeopardy Clause to provide three separate protections to criminal defendants. First, it protects against multiple punishments for the same offense. United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931). Second, it protects against a second prosecution for the same offense after a conviction. Ex parte Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889). Third, it protects against a second prosecution for the same offense after the trier of fact acquits the defendant. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). Accord North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989)

.

With respect to an appellate court's reversal of a conviction, the Supreme Court long has embraced the general rule that when a reversal is based on a procedural trial error, the Double Jeopardy Clause does not bar retrial. United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). The Supreme Court has provided a narrow exception to the general rule allowing retrial. Where a conviction is reversed solely on the basis of insufficiency of the evidence, retrial is barred because such a reversal is equivalent to an acquittal by the trial court. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

In Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988), the Supreme Court considered whether the Double Jeopardy Clause barred a retrial when an appellate court's correction of a trial error involving an evidentiary ruling renders the remaining evidence insufficient to support the conviction. In Lockhart, the defendant was sentenced under Arkansas's Habitual Felony Offender Act, under which the defendant could receive an enhanced sentence upon proof of four prior felony convictions. Id. at 34-35,...