State v. K.E.L.

CourtAlabama Court of Criminal Appeals
Citation315 So.3d 1158
Docket NumberCR-18-1177
Parties STATE of Alabama v. K.E.L.
Decision Date10 July 2020

315 So.3d 1158

STATE of Alabama


Court of Criminal Appeals of Alabama.

July 10, 2020

Steve Marshall, atty. gen., and Michael A. Nunnelley, asst. atty. gen., for appellant.

Arthur J. Madden III, Mobile, for appellee.

KELLUM, Judge.

The State of Alabama appeals the trial court's granting of K.E.L.'s motion to dismiss the indictment charging her with vehicular homicide under § 32-5A-190.1, Ala. Code 1975, on the ground that § 32-5A-190.1 is unconstitutionally vague.

Section 32-5A-190.1(a) provides:

"A person who causes the death of another person while knowingly engaged in the violation of Title 32, Chapter 5A, excluding Section 32-5A-191 [driving under the influence], applying to the operation or use of a vehicle, as defined in Section 32-1-1.1(81),1 may be guilty of homicide by vehicle when the violation is the proximate cause of the death."

In April 2019, K.E.L. was indicted as follows:

"The Grand Jury of said county charge that, before the finding of this indictment, [K.E.L.], whose name is to the Grand Jury otherwise unknown, did cause the death of Roberta Daman by causing a vehicle operated by the said [K.E.L.] to collide with a vehicle occupied by Roberta Daman, while the said [K.E.L.] was knowingly engaged in the violation of a State law applying to the operation or use of a vehicle, to-wit: speeding and/or running a stop sign and such violation was the proximate cause of death of Roberta Daman, in violation of § 32-5A-190.l of the Code of Alabama, against the peace and dignity of the State of Alabama."

(C. 4.)

After being granted youthful-offender status, K.E.L. filed a motion to dismiss the indictment on the ground that § 32-5A-190.1, Ala. Code 1975, was unconstitutionally vague, on two grounds. First, K.E.L. argued that § 32-5A-190.1 fails to define the mental state of "knowingly" and fails to identify the conduct to which that mental state applies. Second, K.E.L. argued that § 32-5A-190.1 provides only that a person "may be guilty" of vehicular homicide if the person knowingly engages in a violation of Title 32, Chapter 5A, the Alabama Rules of the Road Act ("the ARRA"), and that violation is the proximate cause of another's death, without identifying the other conduct or circumstances "which transform the possibility of guilt (may be guilty) into the certainty of guilt (is guilty)." (C. 23.) Therefore, K.E.L. asserted, § 32-5A-190.1 "does not provide [her] with an ascertainable standard by which her conduct in the automobile accident can be judged." (C. 23.) The State filed a response to the motion, arguing that § 32-5A-190.1 clearly provides that the mental state of knowingly applies to an accused's violation of the ARRA, and that the phrase "may be guilty" does not relate to other circumstances not delineated by

315 So.3d 1163

the statute to establish guilt but to the requirement of proximate cause.

After a hearing, the trial court granted K.E.L.'s motion and dismissed the indictment against her on the ground that § 32-5A-190.1 is unconstitutionally vague. The court noted that it "would be inclined to reject [K.E.L.'s] first argument based on the use of the element ‘knowingly,’ " but it declined to specifically address that argument because it found "that the statute is unconstitutionally vague due to the use of the phrase ‘may be guilty.’ " (C. 59.) The court stated, in relevant part:

"It may be that § 32-5A-190.1 uses the term ‘may be guilty of homicide by vehicle’ rather than ‘is guilty,’ to signal that the fact finder may consider the situation confronting the actor at the time of the accident in determining culpability. The auxiliary verb ‘may’ in § 32-5A-190.1 indicates that there ‘may be’ a possible state of guilt. The statute gives no linguistic cue that ‘may be guilty’ must be read to mean ‘is guilty’ rather than the natural reading ‘might be guilty.’ Swindle v. Remington, [291] So. 3d [439, 451] ([Ala.] 2019) ('Ordinarily, the use of the word "may" indicates a discretionary or permissive act, rather than a mandatory act.’). ‘Absent any indication to the contrary, the words [in a penal statute] must be given their ordinary and normal meaning.’ Walker v. State, 428 So. 2d 139, 141 (Ala. Crim. App. 1982). The term ‘may be guilty’ cannot be stretched to mean ‘shall be guilty’ because ‘[p]enal statutes are to reach no further in meaning than their words,’ Ex parte Bertram, 884 So. 2d 889, 891 (Ala. 2003) and ‘should not be extended by construction.’ Ex parte Evers, 434 So. 2d 813, 817 (Ala. 1983).

"The parties have not cited any other criminal provisions of the traffic code, § 32-5A-1 et seq., or the criminal code, § 13A-[1]-1 et seq., in which the phrase ‘may be guilty’ appears, suggesting the Legislature may have intended a unique application.1 It could be that the Legislature deliberately used the expression ‘may be guilty’ in § 32-5A-190.1, rather than used the phrase ‘shall be guilty’ as was used in the prior vehicular homicide statute, § 32-5A-192 (repealed). ‘It is a familiar principle of statutory interpretation that the Legislature, in enacting new legislation, is presumed to know the existing law.’ State v. Worley, 102 So. 3d 435, 444 (Ala. Crim. App. 2011).

"The statute's use of ‘may be guilty’ rather than ‘shall be guilty’ makes ‘being guilty’ a contingency, allowing the possibility that other factors besides the knowing violation of a rule of the road should be considered to determine guilt, for example the driving conditions at the time of the accident and the experience of the driver. While the Court could speculate as to what the Legislature intended when it enacted § 32-5A-190.1, a Defendant cannot be required to do so. See Ex parte Hyde, 778 So. 2d 237, 239 (Ala. 2000) (noting ‘the fundamental rule that criminal statutes are construed strictly against the State'). [Section] 32-5A-190.1 is unconstitutionally vague because it does not specify the considerations which elevate ‘may be guilty’ to ‘is guilty.’

"This Circuit Court also notes the very significant practical problem presented by the phrase ‘may be guilty’ relative to the preparation and giving of an appropriate jury charge. Is the jury to be charged that if the Defendant knowingly violated a statute in Title 32, Chapter 5A, and a death proximately results, then the Defendant ‘may be guilty'?

"It is hereby ORDERED that the Motion to Dismiss is GRANTED. It is further ORDERED that the Indictment herein is DISMISSED.
315 So.3d 1164

"1 The generally used language in criminal statutes is definitive, for example § 32-5A-58.3: ‘A person who violates this section shall be guilty of a traffic violation....’; § 32-5A-60: ‘... any person violating the provisions of this section shall be guilty...’; § 32-5A-8: ‘It is a misdemeanor for any person to violate any of the provisions...’; § 13A-6-2: ‘A person commits the crime of murder if...'; § 13A-8-2: ‘A person commits the crime of theft of property if...’; and § 13A-6-20: ‘A person commits the crime of assault in the first degree if....’ "

(C. 59-60.)

On appeal, the State argues: (1) that K.E.L. lacked standing to challenge the constitutionality of § 32-5A-190.1, and (2) that the trial court erred in finding that the phrase "may be guilty" rendered § 32-5A-190.1 unconstitutionally vague. We address each argument in turn.


The State did not assert in the trial court that K.E.L. lacked standing to challenge the constitutionality of § 32-5A-190.1 ; it raises this issue for the first time on appeal. However, the State argues that standing is a jurisdictional issue that cannot be waived. K.E.L. argues, on the other hand, that the State waived its argument regarding her alleged lack of standing by failing to raise it in the trial court.

Although lack of standing to raise a Fourth Amendment challenge is waivable if the issue is not timely asserted by the State in the trial court, see State v. Compton, 711 So. 2d 1114, 1115 (Ala. Crim. App. 1997), lack of standing to challenge the constitutionality of a statute is jurisdictional, see J.L.N. v. State, 894 So. 2d 751, 753 (Ala. 2004). We recognize that in Snavely v. City of Huntsville, 785 So. 2d 1162, 1166 n.1 (Ala. Crim. App. 2000), this Court held that the State had waived any claim that the defendant lacked standing to challenge the constitutionality of a statute by failing to raise the issue in the trial court. However, in Snavely, this Court relied on State v. Ivey, 709 So. 2d 502, 507 (Ala. Crim. App. 2000), a case that involved a Fourth Amendment challenge, not a challenge to the constitutionality of a statute, and, in any event, Snavely was decided before the Alabama Supreme Court's opinion in J.L.N., supra, which made clear that lack of standing deprives a trial court of subject-matter jurisdiction to hear a challenge to the constitutionality of a statute. Therefore, the State did not waive its standing argument by failing to raise it in the trial court.

The State argues that K.E.L. lacked standing to challenge § 32-5A-190.1 because, it says,

"her conduct fell squarely within the scope of the conduct prohibited by the statute. Even if the word ‘may’ in § 32-5A-190.1 could be read permissively rather than manditorily with respect to whether the traffic violation must be the proximate cause of the death, the indictment alleged that the specific traffic violations she committed

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