State v. Thomas

• Decision Date: 25 May 2012
• Docket Number: CR–10–1401.
• Citation: 137 So.3d 933
• Parties: STATE of Alabama v. Emmanuel L. THOMAS.
• Court: Alabama Court of Criminal Appeals

137 So.3d 933

STATE of Alabama
v.
Emmanuel L. THOMAS.

CR–10–1401.

Court of Criminal Appeals of Alabama.

May 25, 2012.

[137 So.3d 934]

Luther Strange, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellant.

Matthew Cory Drinkard, Grove Hill; and James M. Byrd, Mobile, for appellee.

BURKE, Judge.

Emmanuel Thomas was convicted of first-degree robbery, a violation of § 13A–8–41, Ala.Code 1975, and second-degree assault, a violation of § 13A–6–21, Ala.Code 1975. He was sentenced to consecutive terms of 28 years' imprisonment for the robbery conviction and 10 years' imprisonment for the assault conviction.¹ This Court affirmed his convictions on February 22, 2008.²See Thomas v. State (CR–06–1549, February 22, 2008) 21 So.3d 799 (Ala.Crim.App.2008) (table). On March 27, 2008, Thomas filed a petition for postconviction relief pursuant to Rule 32, Ala. R.Crim. P., and the circuit court granted his request to proceed in forma pauperis.³ The petition was subsequently amended on April 25, 2008, and again on December 15, 2009. After a response from the State, the circuit court granted Thomas's petition and ordered that he be granted a new trial. The State now appeals.

In his initial petition (C. 6–21), Thomas argued that his convictions for first-degree robbery and second-degree assault

[137 So.3d 935]

violated the Double Jeopardy Clause of the United States Constitution because he was being convicted for two offenses based on the same conduct. He also argued that the first-degree-robbery indictment was vague and failed to adequately inform him of the nature of the charge against him. Finally, Thomas contended that the trial judge, as opposed to the circuit clerk, administered the oath to the jury. According to Thomas, his trial counsel was ineffective for failing to raise appropriate objections to the above. Thomas also contended that he was denied effective assistance of appellate counsel because, he says, his attorney failed to “diligently investigate several arguable claims for appeal” and “failed to comb the record for possible errors....” (C. 20–21.) Additionally, Thomas contended that he was denied due process of law when the circuit court failed to poll the jurors.

Thomas amended his petition on April 25, 2008. (C. 36–37.) In the amended petition, he argued that his conviction and sentence were null and void because, he says, the trial judge suffered from “diminished capacity.” (C. 36.) Thomas attached several newspaper articles regarding judicial-ethics charges filed against Judge Stuart DuBose. According to the articles, Judge DuBose claimed that he suffered from diminished capacity that affected his ability to make rational decisions. (C. 38–42.)

On December 15, 2009, Thomas filed a second amended petition in which he argued that he was deprived of due process of law because, according to Thomas, the trial court never read the indictments for first-degree robbery, criminal mischief, and resisting arrest to the jury. Therefore, Thomas argues that “jeopardy never attached in the Robbery 1st degree case, the Criminal Mischief case or the Resisting Arrest case.” (C. 68.) Thomas also argued that jeopardy did not attach to those convictions as well as his second-degree-assault conviction because he “never pleaded to the [indictments] in the presence of the jury and the plea ... was never stated to the jury.” (C. 69–70.) Lastly, Thomas alleged that he was denied effective assistance of appellate counsel because his attorney did not raise these arguments on appeal.

In its response, the State argued that Thomas's petition was due to be denied on several grounds. As to Thomas's allegations relating to double jeopardy, an improperly sworn jury, and the contention that the jury was not polled, the State asserted that those arguments were due to be denied pursuant to Rules 32.2(a)(3)-(5), Ala. R.Crim. P., because they could have been raised at trial or on appeal, but were not. Further, the State argued that those allegations, as well as the allegations relating to the trial judge's mental capacity, were not sufficiently specific as required by Rule 32.6, Ala. R.Crim. P., nor were they meritorious.

As to Thomas's ineffective-assistance-of-counsel claims, the State argued that Thomas failed to satisfy the two-part test laid out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Specifically, the State alleged that Thomas failed to demonstrate that his attorney's performance was deficient and that, but for the alleged failures, the outcome of the trial would have been different. The State made the same arguments relating to Thomas's claim of ineffective assistance of appellate counsel.

In its order, the circuit court addressed only the first-degree robbery conviction, case number CC–2006–311. (C. 87.) The court stated: “[I]t is hereby ORDERED, ADJUDGED, and DECREED, on the grounds that the trial court failed to read the Robbery First Degree Indictment to

[137 So.3d 936]

the jury, that the Motion for Relief from Judgment be granted and Emmanuel Thomas be granted a new trial.” (C. 87.)

This Court has held that a trial court is not necessarily required to read an indictment to the jury. Wiggins v. State, 347 So.2d 543, 545 (Ala.Crim.App.1977). The only requirement is that the “jury must be...