Nobis v. State

• Decision Date: 31 March 1981
• Docket Number: 8 Div. 398
• Citation: 401 So.2d 191
• Parties: Kevin Udoka NOBIS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 191

401 So.2d 191

Kevin Udoka NOBIS v. STATE.

8 Div. 398.

Court of Criminal Appeals of Alabama.

March 31, 1981.

Rehearing Denied May 5, 1981.

Jerrilee P. Sutherlin of Harrison, Burwell, Smith & Sutherlin and Dan Moran, Huntsville, for appellant.

Charles A. Graddick, Atty. Gen., and Mark R. Ulmer, Asst. Atty. Gen., for appellee.

HARRIS, Presiding Judge.

Appellant was indicted for the unlawful killing of Theroda Anakwe by stabbing her with a knife. Appellant was properly arraigned in the presence of counsel and interposed a plea of not guilty and not guilty by reason of insanity. Appellant was convicted of second degree murder and the jury fixed his punishment at sixty years in the State penitentiary. After sentence was imposed and his motion for a new trial denied, appellant gave notice of appeal. Appellant has been furnished a free transcript and both attorneys who were appointed to represent him at trial were also appointed to represent him on appeal.

A threshold question to this appeal is whether appellant, as a matter of law, was entitled to a preliminary hearing within thirty days of his arrest, upon making a demand for one thirteen days following said arrest, where he was indicted by a grand jury thirty-three days following his arrest.

A review of the proceedings pertinent to appellant's demand for a preliminary hearing reveals the following. Appellant was arrested on October 13, 1979 and charged with first degree murder. On October 26, appellant was provided two court-appointed lawyers to represent him who, on that date, demanded a preliminary hearing. A preliminary hearing was set for November 21. On November 2, appellant filed a motion to change the date of the preliminary hearing, requesting that, pursuant to Alabama Code § 15-11-1 (1975), the preliminary hearing be held within thirty days of appellant's arrest; it was anticipated in this motion that the Madison County Grand Jury would meet on November 13 and that if that body indicted appellant he could lose his right to a preliminary hearing; District Judge Dan W. McCoy denied this motion the day it was filed.

On November 5, appellant filed a petition for writ of mandamus in Circuit Court praying that he be given a preliminary hearing within thirty days of his arrest. Judge McCoy and appellant's lawyers worked together to frame a stipulation of facts and a statement of their respective positions regarding the interpretation of Alabama Code § 15-11-1 (1975), which were filed on November 8, to be considered with appellant's petition for writ of mandamus. The positions taken by appellant and Judge McCoy concerning Section 15-11-1 appear in the record as follows:

"1. The position of the petitioner (appellant) is that he has an absolute right to a preliminary hearing upon demand prior to indictment and within 30 days of his arrest.

"2. The position of the Honorable Judge Dan McCoy is that the petitioner's right to preliminary hearing exists prior to indictment and within 30 days after his demand for preliminary hearing.

"The point of law sought to be clarified is whether the 30 day time frame referred to in the statute runs from the date of arrest or the date of demand."

On November 8, Circuit Judge S. A. Watson, Jr., found that appellant had a right to a preliminary hearing within thirty days of his arrest and granted appellant's petition for writ of mandamus. Judge Watson ordered by Decree that a preliminary hearing be set prior to or on November 15. ¹ On November 9, a preliminary hearing was scheduled for 10:00 a. m., Tuesday, November 13. ²

The morning of November 13, the District Attorney filed a motion to set aside Judge Watson's Decree ordering the preliminary hearing and requested a rehearing on the petition for writ of mandamus. The District Attorney in this motion also requested Judge Watson to enter an order staying all proceedings in the District Court (the preliminary hearing). That same morning Judge Watson ordered his November 8 Decree stayed, and ordered a hearing on the petition for writ of mandamus be held at 2 o'clock that afternoon. All proceedings in the District Court were also ordered stayed. Later still, on the morning of November 13, appellant filed, in Circuit Court, a motion to set aside the stay of the District Court proceedings. This particular motion was not ruled upon.

At 2:00 p. m. on November 13, Judge Watson conducted a hearing on appellant's petition for writ of mandamus. At that time he entertained testimony and argument concerning the proper construction of Alabama Code § 15-11-1 (1975). Judge Watson then concluded, in his November 14 order, that there was an "ambiguity" in Section 15-11-1, and that, based on the persuasive authority of section 5.1 of the proposed rules of criminal procedure, together with the evidence and argument, "the ambiguity in Section 15-11-1 should be resolved in favor of the State's position." Appellant's petition for writ of mandamus for the District Court to provide a preliminary hearing was denied.

The Madison County Grand Jury returned an indictment against appellant charging first degree murder on November 15. At no time was appellant ever provided a preliminary hearing.

Alabama Code § 15-11-1 (1975), (Acts of Alabama 1975, No. 1205, § 4-106(f)), the construction of which provides a resolution to this issue, reads as follows:

"Every person charged with and arrested for a felony before his indictment shall have an absolute right to a preliminary hearing on said charge upon such person's demand within 30 days following said arrest; provided, that such person's failure or refusal to appear for such preliminary hearing on his absence from the state at the time of the setting for the preliminary hearing shall not delay or invalidate an indictment pursuant to said charge."

The question which we must resolve is what period of time does the "30 days" specified in Section 15-11-1 pertain.

Dr. John Conover, an assistant professor of English at the University of Alabama in Huntsville, provided a scholarly explanation as to what the "30 days" referred at the November 13 hearing on appellant's petition for writ of mandamus; in essence he explained that the "30 days" could be construed to mean that a person's demand for a preliminary hearing must be made within thirty days of his arrest, or, on the other hand, it could be construed to mean that a person has an absolute right to a preliminary hearing within thirty days of his arrest, as long as a demand is made within that time. Appellant contends that the latter construction is proper while the State argues in favor of the first construction. Our duty is to determine which of these two interpretations must prevail. We do not find the construction adopted by Judge McCoy to be a reasonable interpretation.

In other words, from a plain reading of the statute, an accused either has thirty days following his arrest to demand a preliminary hearing, or else he has an absolute right to a preliminary hearing within thirty days of his arrest, upon demand. A demand would be a prerequisite to receiving a preliminary hearing under either construction.

Stated another way, the problem in a nutshell is whether an accused has an absolute right to a preliminary hearing within thirty days of his arrest, upon making timely demand for one within that same thirty day period, or whether he simply has thirty days from the time of his arrest to demand a preliminary hearing. If the latter interpretation is adopted, a second problem develops as to when the preliminary hearing must be set after timely demand has been made. It is certain that the statute cannot be read to mean that an accused has a right to demand a preliminary hearing within thirty days of his arrest and also have the hearing set within thirty days of his demand; that is so because two separate thirty day time frames are not provided for in Section 15-11-1. ³ The remaining alternative under the latter interpretation above, would be to find that if demand is made for a preliminary hearing within thirty days of arrest, the preliminary hearing must be held within a reasonable time following the demand.

We are mindful that in Duncan v. State, 369 So.2d 885, 887 (Ala.Cr.App.1979), a majority of this court held that where an indictment has been returned against the accused, no reversible error results in subsequently denying the accused a preliminary hearing: the rationale being that there is no constitutional requirement in Alabama for two inquiries into probable cause. ⁴ In Duncan, supra and Hale v. State, 355 So.2d 1158 (Ala.Cr.App.1978) (which also dealt with Section 15-11-1, but was not determined under the Duncan rule), the accused was indicted well within thirty days of his arrest. Here, however, appellant was indicted thirty-three days after his arrest and twenty days following his demand for a preliminary hearing. Depending on how the "30 day" period in Section 15-11-1 is construed, and by using Rule 5.1(a) of the Proposed Alabama Rules of Criminal Procedure as persuasive authority, Duncan, carried to its logical extreme, works to negate any requirement that appellant should have received a preliminary hearing in the instant case.4

In Mobile County Republican Executive Comm. v. Mandeville, 363 So.2d 754, 757 (Ala.1978), our Supreme Court held that, when the plain meaning of a statute can be gleaned from its words, it should be so construed, but where, because of ambiguous language or otherwise, the meaning is not clear on the face of the statute, it is the duty of the courts to determine its meaning. While criminal statutes are to be strictly construed in favor of the accused, Clements v. State, 370 So.2d 723 (Ala.1979), determining legislative intent is of crucial importance in deciphering the meaning of any statute not otherwise clear on its face. Mandeville, supra.

With these principles in focus, we believe the "30 days" in Section 15-11-1 means that an accused has thirty...