State v. Burton

• Decision Date: 05 May 2023
• Docket Number: CR-20-0844
• Parties: State of Alabama v. Kenyata Demetris Burton
• Court: Alabama Court of Criminal Appeals

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State of Alabama v. Kenyata Demetris Burton

No. CR-20-0844

Alabama Court of Criminal Appeals

May 5, 2023

Appeal from Calhoun Circuit Court (CC-15-1494)

COLE Judge.

The State of Alabama appeals the Calhoun Circuit Court's pretrial order dismissing Kenyata Demetris Burton's 2015 capital-murder indictment, finding that it violated Burton's right against being placed twice in jeopardy. For the following reasons, we reverse the circuit court's judgment.

Facts and Procedural History

In 2013, a Calhoun County grand jury indicted Burton for the murder of Dequireqa Lashawn Royal, a violation of § 13A-6-2, Ala. Code 1975. Burton moved to dismiss that indictment because, he said, his murder charge was based solely on the "uncorroborated testimony" of accomplices. (C. 239.) The circuit court held a hearing on Burton's motion,^[1] and, at that hearing, the State presented evidence to show that it could corroborate the accomplice testimony. The circuit court took Burton's motion under advisement and later reconvened the parties for further proceedings on Burton's motion. After hearing arguments from Burton and the State, the circuit court granted Burton's motion to dismiss his indictment, explaining, in part:

"I can't let the case go forward. I'm dismissing the indictment at this time. I don't think prejudice would attach anyway in a felony case of this nature until a jury is sworn in. That's the information under criminal procedure, as I understand it, once a jury is sworn, then prejudice attaches.... So the fact that this case is dismissed today does not in any way prevent the State from re-presenting this case to a grand jury for an indictment or for further prosecution if they get other sufficient evidence or what they think is sufficient for prosecution. But at this point, it doesn't exist, and there is no way I can let a case like this go to a jury."

(C. 327-28.) The circuit court memorialized its decision in a written order.^[2]

In accordance with the circuit court's judgment dismissing Burton's 2013 indictment, in August 2015, a Calhoun County grand jury reindicted Burton for killing Royal. (C 10.) Burton's 2015 indictment elevated his 2013 charge from murder to capital murder, a violation of § 13A-5-40(a)(2), Ala. Code 1975. (C. 10.) In response, Burton moved to dismiss his 2015 indictment, arguing that the 2015 indictment violated double-jeopardy principles. (C. 120-24.) Burton's double-jeopardy argument was premised on his belief that the circuit court's dismissal of his 2013 indictment was tantamount to an acquittal, explaining, in part:

"[I]t is plain that [the circuit court] evaluated the State's evidence against Burton in the earlier proceedings and determined that there was legally insufficient [evidence] to sustain a conviction as a matter of law. As such, by way of dismissal, the court acted on its view that the prosecution had failed to prove its case and granted a 'dismissal' but an acquittal for purposes of the Double Jeopardy purposes. This Court's prior Order of Dismissal was not a dismissal on a procedural ground or a technical ground such as a defective indictment....

"In the present case, the indictment against Burton was dismissed because the State failed to submit sufficient evidence to corroborate the co-Defendant['s] testimony....

“....

"... [T]his Court's previous ruling on the motion to dismiss was an adjudication on the sufficiency of the evidence; therefore, it is considered a legal acquittal as a matter of law.

"Accordingly, under the Alabama Rules of Criminal Procedure, the State should have appealed the order granting the motion to dismiss under Rule 15.7. The State failed to use the proper remedy at the time and as such they should be prohibited and estopped from further prosecution."

(C. 121-22 (paragraph numbering omitted).)

The State argued that the circuit court was without authority to enter a pretrial dismissal of Burton's 2013 indictment "based upon its own evaluation of the proposed evidence or lack thereof," but it conceded that, because it had failed to object to the circuit court's actions, the State had waived "this limitation upon the power of the Court to enter a pretrial adjudication on the merits of the case and sufficiency of the evidence prior to trial." (C. 118.) The State argued, however, that Burton's 2015 indictment and his prosecution for capital murder did not violate double-jeopardy principles because the circuit court "expressly stated on the record that the dismissal of the previous case was without prejudice and that there would be no bar to a subsequent prosecution." (C. 118.)

On March 14, 2019, the circuit court held a hearing on Burton's motion to dismiss his 2015 indictment. (R. 4.) At that hearing, both Burton and the State argued about the effect the circuit court's dismissal of Burton's 2013 indictment had on the State's ability to prosecute Burton for capital murder on the 2015 indictment. The court informed the parties that it would reserve its ruling on Burton's motion to dismiss. (R. 34-35.) Over a year later, on June 3, 2020, the circuit court held another hearing on Burton's motion to dismiss his 2015 indictment, during which the circuit court again heard arguments from the parties. (R. 228-69.) On July 23, 2021, the circuit court issued an order granting Burton's motion to dismiss. (C. 202.) The State timely appealed.

Discussion

On appeal, the State argues that the circuit court erred when it granted Burton's motion to dismiss his 2015 indictment because, it says, the circuit court's dismissal of Burton's 2013 indictment did not put Burton in jeopardy. Burton, on the other hand, argues that the circuit court's judgment dismissing his 2013 indictment "constitute[d] an acquittal as a matter of law" and, thus, the 2015 indictment and his prosecution under that indictment violates his right to be free from being placed in jeopardy twice. (Burton's brief, p. 9.)

Although Burton moved to dismiss his 2013 indictment because the State's evidence was insufficient and the circuit court dismissed Burton's 2013 indictment on that basis, a circuit court does not have the authority to dismiss an indictment before trial based on the sufficiency of the State's evidence. Rule 13.5(c)(1), Ala. R. Crim. P., provides four bases upon which a defendant may move to dismiss an indictment and upon which a circuit court may grant such a motion before a trial: (1) "objections to the venire," (2) "the lack of legal qualifications of an individual grand juror," (3) "the legal insufficiency of the indictment," and (4) "the failure of the indictment to charge an offense." Burton's motion to dismiss his 2013 indictment was not based on any of these four grounds. Instead, as explained above, Burton's motion was based on (and the circuit court rested its judgment on) the fact that State did not have sufficient evidence to corroborate accomplice testimony as is required by § 12-21-222, Ala. Code 1975.

This Court has explained that

"there is no pretrial means to dismiss the charges against a defendant based on the insufficiency of the evidence. In State v. Bethel, 55 So.3d 377 (Ala.Crim.App.2010), we addressed this issue and stated:

"'.

"'"Rule 13.5(c)(1) does not provide for the dismissal of an indictment based on the insufficiency of the evidence or, as in this case, a possible lack of evidence. See State v. Edwards, 590 So.2d 379 (Ala.Crim.App.1991) (establishment of the corpus delicti requires proof of facts by the State so entwined with the merits of the case that a decision as to whether it had been proved should not be made before trial but should be postponed until trial); State v. McClain, 911 So.2d 54 (Ala.Crim.App.2005)(trial court cannot dismiss the indictment based on a lack of evidence)."

"'[State v. Foster, 935 So.2d 1216, 1216-17 (Ala.Crim.App.2005]. See State v. Anderson, 8 So.3d 1033 (Ala.Crim.App.2008). See also United States v. Sharpe, 438 F.3d 1257, 1263 (11th Cir. 2006) ("It is well-settled that 'a court may not dismiss an indictment ... on a determination of facts that should have been developed at trial.' United States v. Torkington, 812 F.2d 1347, 1354 (11th Cir. 1987).")

“ ....

"'The circuit court impermissibly dismissed the indictment against Bethel for two reasons. As this Court has previously held, Rule 13.5 does not permit the dismissal of an indictment based on insufficient evidence. Thus, the circuit court erred when it dismissed the charge against Bethel based on the insufficiency of the evidence. Further, because an inmate taking part in the community corrections program may be charged with first-degree escape under the appropriate circumstances, the circuit court likewise could not dismiss the indictment against Bethel on this ground. In reaching this determination, however, we do not express an opinion as to the efficacy of the first-degree-escape charge against Bethel. That determination is best left to a jury or other finder of fact.'

"55 So.3d at 379-80. See State v. Robertson, 8 So.3d 356 (Ala.Crim.App.2008).

"In fact, this Court first recognized this principle in State v. Edwards, 590 So.2d 379 (Ala.Crim.App.1991), when it addressed this issue as it related to Rule 15.5(c)(1), Ala. R. Crim. P. Temp (now Rule 13.5(c)(1), Ala. R. Crim. P.):

"'Establishing the corpus delicti requires proof of facts by the state so entwined with the merits of the case that a decision as to whether it had been proved should not be made prior to trial but should be postponed until trial. We think that our conclusion is in keeping with good practice and with the intentions of the rules.'

"590 So.2d at 380." State v. Starks, [Ms. CR-21-0048, May 6, 2022]__So. 3d__,__(Ala.Crim.App.2022) (footnotes omitted). So, as the parties agree, the circuit...