Todd v. State

• Decision Date: 05 February 2021
• Docket Number: CR-19-0239
• Citation: 342 So.3d 602
• Parties: Howard Wilson TODD v. STATE of Alabama
• Court: Alabama Court of Criminal Appeals

342 So.3d 602

Howard Wilson TODD

v.STATE of Alabama

CR-19-0239

Court of Criminal Appeals of Alabama.

February 5, 2021

Rehearing Denied April 16, 2021

Certiorari Denied June 11, 2021

Alabama Supreme Court 1200533

Angela Cochran Morgan, Fort Payne, for appellant.

Steve Marshall, att'y gen., and Laura Irby Cuthbert, asst. att'y gen., for appellee.

COLE, Judge.

Howard Wilson Todd was convicted of second-degree assault for shooting Doyle Jones five times with a .22-caliber revolver, a violation of § 13A-6-21, Ala. Code 1975. The DeKalb Circuit Court sentenced Todd to 10 years’ imprisonment, but it suspended Todd's sentence and placed him on 5 years’ probation.

A few days before his trial, Todd moved the trial court to dismiss his indictment, arguing that he was immune from prosecution under § 13A-3-23(d), Ala. Code 1975, because, he claimed, he had acted in self-defense. The trial court did not set Todd's motion for a hearing. Instead, the trial court waited until after selecting a jury for Todd's trial, swearing in the jury, and dismissing the jury for the day to hold Todd's immunity hearing. Although Todd objected to the trial court's decision to wait until after jury selection to hold the immunity hearing, Todd did not challenge the trial court's decision to delay his hearing by filing a petition for a writ of mandamus with this Court. Ultimately, the trial court denied Todd's motion, Todd's case proceeded to trial, and Todd was convicted of second-degree assault.

On appeal, Todd makes two arguments; both concern his immunity hearing. First, Todd makes a procedural argument, claiming that the trial court erred when it struck and swore in the jury before it held his immunity hearing. Second, Todd makes a substantive argument, claiming that the trial court erred when it denied his motion to dismiss. Because the jury found him guilty of second-degree assault, despite his argument that he had acted in self-defense, Todd's substantive argument is moot. And, although the jury's verdict also renders Todd's procedural argument moot, because the issue is capable of repetition but evading review, we nonetheless address Todd's argument, find that the trial court erred when it held Todd's hearing after his trial had commenced, and hold that the trial court's error was both invited by Todd and was harmless.

Facts and Procedural History

On March 1, 2017, Doyle Jones and his wife, April Jones, went to Todd's house to talk to him about buying a camper trailer. Later that evening, Todd, Jones, and April went inside Todd's trailer, and Todd and Jones began drinking beer and Jack Daniel's Tennessee Whiskey. At some point, they got hungry and began talking about getting food. April said that Todd offered to make them an "egg and onion sandwich," which, she said, "didn't sound good." (R. 314.) Todd then told them that they could go get a steak or a baked potato. When Jones stood up and asked, "Well, which is it going to be, a baked potato or a steak?" (R. 115), Todd pulled out a .22-caliber revolver and shot Jones five times. Two of the bullets perforated Jones's colon, requiring him to have surgery. According to Jones, he did not do anything to threaten Todd, and he does not understand why Todd shot him.

In June 2017, Todd was indicted for first-degree assault. On September 8, 2018, Todd filed a notice explaining that he intended on pursuing a self-defense theory at trial. At that time, however, Todd neither moved to dismiss the indictment nor did he ask the court for a pretrial-immunity hearing.

The trial court scheduled Todd's trial for November 29, 2018, but when the "case came for trial" it was continued at Todd's request. The trial of the case was reset for March 11, 2019. (R. 20.) On March 6, 2019, five days before his rescheduled trial date, Todd moved to dismiss the indictment, arguing that he was immune from prosecution under § 13A-3-23(d).

On March 11, 2019, a Monday, the trial court convened a jury panel for Todd's trial and excused some potential jurors based on "answers [they] provided" earlier that day. (R. 6.) Before the court began striking the jury, Todd asked the court if he could place an objection on the record outside the presence of the jury panel. Todd made the following objection:

"Well, I object to striking a jury because we still have to have an evidentiary hearing. And this is not really a normal evidentiary hearing because this hearing could have -- could weigh on the rest of the case at heart. Because if it's granted, then the case is dismissed and it's over, and we don't have to have a jury. And if -- and if it's -- you know, not granted, we would plan to appeal that."

(R. 10.) After hearing the State's response, the trial court overruled Todd's objection, stating:

"I don't see how it prejudices the defendant by going ahead and striking a jury. There's -- not laying blame on [Todd's counsel], but this [motion] was filed, I believe, Wednesday night. The Court saw it Thursday morning. There was a notice of intent to use this defense filed earlier, but there was no hearing requested until Wednesday night, which was four days -- five days ago. And so I think to -- to move things along, we will go ahead and strike [the jury]. For what it's worth, I don't think that [the motion] was filed untimely, so we will grant the request to have a hearing this afternoon."

(R. 12.) The parties then conducted voir dire.

After the parties questioned potential jurors and made arguments about removing certain potential jurors for cause, Todd again objected to striking the jury and swearing in the jury before the court conducted an immunity hearing. (R. 64.) While making that second objection, Todd, citing Ex parte Watters, 220 So. 3d 1093 (Ala. 2016), argued that immunity hearings must be held "pretrial" and that "once you impanel the jury and they are sworn in, that trial has started." (R. 65.) Todd argued that Watters "clearly states it has to be pretrial, before -- before the jury -- before the trial starts. And I believe once we impanel the jury, the jury -- the trial has started." (R. 65.) Todd continued: "Now, whether or not you state [to the jury] tonight, hey, y'all come back tomorrow, that trial has started, jeopardy has attached, and [ Watters ] states that there has to be a pretrial [hearing]." (R. 65.) The trial court then asked: "What's -- what's to keep me from letting you guys strike, sending everyone home that got struck, telling the 13 or 14 remaining, y'all show back up tomorrow morning, I'll swear you in then?" (R. 69.) Todd answered:

"What I'm stating is this: I believe this case would better be suited for my client to have this hearing. You're also asking this judge, Your Honor, to make this decision after three hours of a hearing and then before [the jury] come[s] in at 9:00 tomorrow morning. Your Honor, I mean, I understand that it may be a decision that's easy. I don't know. But you're putting a time frame on having the hearing, then making your decision, then having this jury back here at 9:00 in the morning -- or telling them, to call in. Whatever. I don't know, but --"

(R. 71.)

The court then overruled Todd's objection, explaining that Watters "is different than -- than what we're dealing with here. Essentially, what [ Watters ] says is that you can't defer a pretrial immunity issue to the jury. ... And by this, what it's saying is before the witnesses are called, you can't -- I can't say I'm just going to let the jury decide your pretrial immunity issue."

(R. 73.) The trial court then told the parties that "we'll strike the jury, we'll put them in the box, swear them in, and then send them home for the day and then have [Todd's] hearing." (R. 73.) So after the parties struck the jury, the trial court swore in the jury, sent the jury home for the day, and began Todd's immunity hearing.

At the hearing, Jones, April, Todd, and the law-enforcement officers who responded to Todd's house after the shooting testified about what happened the night Todd shot Jones. Todd's stepson also testified that Todd had an injury to his face the morning after Todd shot Jones.

After the hearing, the trial court took the matter under advisement and told the parties that it would issue an order that evening. At 8:32 p.m. on March 11, 2019, the court issued a written order denying Todd's motion to dismiss and finding that Todd "did not meet his burden of proving immunity at the pre-trial hearing." (C. 22.) The court also noted that, although Todd had "requested a continuance until Wednesday morning to further prepare for trial" and that it was "inclined to grant that request," Todd's "counsel has now informed the Court that they will be unavailable for trial on Wednesday"; thus, Todd's "trial will resume tomorrow morning at 9:00 a.m." (C. 22.)

That next morning, Todd's counsel again moved for a continuance, explaining that he had found an expert witness who was willing to testify in Todd's defense but who would not be available until the following week. The trial court denied Todd's motion, and Todd's case proceeded to trial.

At trial, the State presented its evidence and Todd maintained that he acted in self-defense. At the conclusion of Todd's trial, the trial court instructed the jury on first-degree assault, on the lesser-included offense of second-degree assault, and on self-defense. The jury, rejecting Todd's self-defense claim, found Todd guilty of the lesser-included offense of second-degree assault.

On September 16, 2019, the trial court sentenced Todd to 10 years’ imprisonment, but the trial court suspended that sentence and placed Todd on 5 years’ probation. On October 16, 2019, Todd filed a motion for a new trial and a "Motion for Judgment of Acquittal After Verdict or Judgment of Conviction." (C. 35.) The trial court denied both motions on October 23, 2019. This appeal follows.

Discussion

As set out above, Todd makes both a substantive argument and a procedural argument about his immunity hearing. Todd's substantive argument...