Spain v. State, CR-19-0708

CourtAlabama Court of Criminal Appeals
Writing for the CourtMINOR, Judge.
PartiesMatthew Spain v. State of Alabama
Decision Date16 October 2020
Docket NumberCR-19-0708

Matthew Spain
v.
State of Alabama

CR-19-0708

ALABAMA COURT OF CRIMINAL APPEALS

OCTOBER TERM, 2020-2021
October 16, 2020


Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

Appeal from Shelby Circuit Court
(CC-15-454.60)

MINOR, Judge.

Matthew Spain appeals the circuit court's summary dismissal of his Rule 32, Ala. R. Crim. P., petition for postconviction relief. In his petition, Spain challenged his

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2017 conviction for first-degree rape, see § 13A-6-61, Ala. Code 1975, and his resulting sentence of life imprisonment. This Court, in an unpublished memorandum, affirmed Spain's conviction and sentence. Spain v. State (No. CR-16-1215), 279 So. 3d 12 (Ala. Crim. App. 2018) (table),1 and the Alabama Supreme Court denied Spain's petition for a writ of certiorari, Ex parte Spain (No. 1170961), 288 So. 3d 437 (Ala. 2018) (table). This Court issued the certificate of judgment, making Spain's judgment of conviction final, on August 10, 2018.

This Court's memorandum affirming Spain's conviction and sentence stated:

"On November 6, 2014, K.S. visited the apartment of her fiancé, Spain. That evening the two had an intense argument. When the couple woke the following morning, Spain asked K.S. whether she wanted to remain engaged to him. K.S. told him no; she explained at trial that they argued too often and that she was ready for the relationship to be over.

"K.S., a college student, went to the bathroom to get ready for class. When she came out she found Spain searching through the text messages on her cell phone. K.S. asked for her cell phone and Spain went to the bathroom, locking himself inside.

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Through the bathroom door Spain questioned K.S. about various males to whom she had been sending text messages. Spain eventually opened the bathroom door but refused to return the cell phone to K.S.

"K.S. left the apartment and drove to the office of the apartment complex in search of help, but found it closed. K.S. drove back to Spain's apartment, where she saw Spain getting into his own vehicle. K.S. confronted Spain about her cell phone and Spain walked back into his apartment, followed by K.S. Spain again locked himself in the bathroom, ignoring K.S.'s pleading for him to return her cell phone. When Spain emerged from the bathroom, K.S. attempted to take her cell phone by force. K.S. jumped on Spain and reached for her cell phone. Spain pushed K.S. to the floor. K.S. stood up and approached Spain. Spain grabbed K.S. by her throat and held her against a wall. Spain then wrestled K.S. to the ground, where he pinned her while interrogating her about other men. K.S. testified that '[e]very time he came across a guy's name in my phone, he would spit in my face, and every time that he thought I was lying to him, he would flick me on the side of the head.' (R. 154.)

"In an apparent attempt to 'make up' with K.S., Spain removed K.S.'s shirt and kissed her. (R. 155.) K.S. turned her head to avoid Spain's kisses, and told him that she 'wasn't doing anything with him.' (R. 155.) Spain told K.S. that she could leave only if she had sex with him. K.S. told him 'no' multiple times. Spain attempted to carry K.S. to the bedroom but she was able to free herself temporarily. K.S. fell to the floor, at which point Spain grabbed K.S.'s neck and choked her. K.S. testified that she could not breathe and began to black out. When Spain let go, K.S. told him to 'get it over with' and 'kill her.' (R. 156.)

"Spain threw K.S. onto his bed, pinned her arms, and resumed his attempts to kiss her. Despite K.S.'s

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holding her legs together as tightly as she could, Spain was able to remove her pants and underwear. Spain got on top of K.S. and 'overpowered' her, putting her legs over his shoulders. (R. 158.) Without K.S.'s consent, Spain inserted his penis into her vagina. When he was finished, Spain got up and 'walk[ed] around the apartment like absolutely nothing had happened.' (R. 159.)

"K.S. left Spain's apartment and drove to class. A friend met her with a change of clothes, which she needed because her clothes were stained with Spain's blood -- K.S. testified that she had bitten Spain a number of times during the rape. K.S. then reported the incident to campus security. The chief of campus security drove K.S. to the Alabaster Police Department to file a complaint.

"Vikki Vodosia, a sexual assault nurse examiner at The Crisis Center in Birmingham, treated K.S. that afternoon. Vodosia noted bruises and abrasions to K.S.'s face, arms, chest, abdomen, legs, back, heel, and ears.

"Investigator Tommy Stewart of the Alabaster Police Department interviewed Spain regarding K.S.'s allegations. Spain initially denied the allegations, but later admitted to Investigator Stewart that 'he had raped her and assaulted her and strangled her.' (R. 237.) A recording of the interview was played for the jury.

"Spain testified at trial that he and K.S. had had intercourse on the morning of November 7, 2014, but maintained that it had been consensual, 'makeup sex.' (R. 269.) As for his admissions to Investigator Stewart, Spain testified that he had been scared and nervous during the interview and that he believed the interview would end if he agreed with what Investigator Stewart was saying."

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Spain filed the instant petition in June 2019.2 (C. 8.) In the petition, Spain alleged (1) that his trial counsel was ineffective for not moving to dismiss the indictment because the indictment, which included intent as an element of rape, was void; (2) that his trial counsel was ineffective for not objecting to the trial court's instructing the jury on intent as charged in the indictment; and (3) that the trial court was without jurisdiction because it "'constructively amended' the first degree rape statute, by adding the element of 'intentionally' to the charge." The State responded to the petition in July 2019 and moved to dismiss it. (C. 41.) The State asserted that the claims lacked merit and that they were precluded under Rule 32.2(a)(3) and Rule 32.2(a)(5) because Spain could have raised them at trial or on appeal but did not.

Spain moved for leave to amend his petition in October 2019 to include a claim alleging that the victim had recanted her testimony. (C. 47.) On March 24, 2020, the circuit court denied Spain's motion for leave to amend. (C. 64.) That same

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day, the circuit court summarily dismissed the petition. (C. 66.)

Two days later, counsel entered a notice of appearance for Spain and moved for leave to amend the petition. (C. 67.) Counsel later filed a motion to reconsider the judgment denying the petition. (C. 70.) The circuit court denied both motions.3 (C. 76-77.) Spain's counsel filed a timely notice of appeal. (C. 85.)

Rule 32.7(d), Ala. R. Crim. P., permits a circuit court to summarily dismiss a Rule 32 petition if the claims in the petition are insufficiently pleaded, are precluded, or are without merit. This Court reviews a circuit court's summary dismissal of a Rule 32 petition for an abuse of discretion. Lee v. State, 44 So. 3d 1145, 1149 (Ala. Crim. App. 2009). Under most circumstances, "we may affirm a ruling if it is correct for any reason." Bush v. State, 92 So. 3d 121, 134 (Ala. Crim. App. 2009).

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On appeal, Spain, through counsel, reiterates the claims in his petition and the proposed amendment to the petition. We address each claim in turn.

I.

Spain argues that his trial counsel was ineffective for not moving to dismiss the indictment. Spain asserts that the indictment was void because it included intent as an element of rape. Spain has no right to relief on this ineffectiveness claim because the underlying claim--that the inclusion of "intentionally" as an element of the offense in the indictment rendered the indictment void or defective--lacks merit. See, e.g., Yeomans v. State, 195 So. 3d 1018, 1034 (Ala. Crim. App. 2013) ("[B]ecause there is no merit to the legal theory underlying this claim of ineffective assistance, the claim was properly dismissed. See, e.g., Lee v. State, 44 So. 3d 1145, 1173 (Ala. Crim. App. 2009) (counsel cannot be ineffective for failing to raise a claim that has no merit).").

The standard for evaluating an ineffective-assistance-of-counsel claim--and what a petitioner must plead and prove to have a right to relief--is well established. See, e.g., Marshall v. State, 182 So. 3d 573, 582-83 (Ala. Crim. App.

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2014). Stated briefly, a...

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