Ex parte State of Alabama.

REL:09/26/2014
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SUPREME COURT OF ALABAMA
SPECIAL TERM, 2014
_________________________
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Ex parte State of Alabama
PETITION FOR WRIT OF MANDAMUS
(In re: Ex parte Margie Morgan Kelley
(In re: State of Alabama
v.
Margie Morgan Kelley))
(Etowah Circuit Court, CC-13-318.01, CC-13-318.02, and
CC-13-318.03; Court of Criminal Appeals, CR-12-1765)
SHAW, Justice.
The Court of Criminal Appeals, in an unpublished order,
issued a writ of mandamus directing the trial court in the
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underlying case to "bar" the prosecution of the respondent,
Margie Morgan Kelley, who had been indicted for three counts
of capital murder. Ex parte Kelley (No. CR-12-1765, November
21, 2013), ___ So. 3d ___ (Ala. Crim. App. 2013) (table). The
State of Alabama petitions this Court for a writ of mandamus
directing the Court of Criminal Appeals to vacate its order.
See Rule 21(e)(1), Ala. R. App. P. ("If an original petition
has been granted by the court of appeals, review may be had by
filing in the supreme court a petition for writ of mandamus
... directed to the court of appeals ...."). We grant the
petition and issue the writ.
Facts and Procedural History
In its unpublished order, the Court of Criminal Appeals
set out the facts and procedural history of this case:
"Margie Morgan Kelley filed this petition for a
writ of mandamus requesting that this Court direct
Judge William Allen Millican to grant her motion to
bar her prosecution for capital murder because, she
says, to prosecute her for murder after she has been
convicted of hindering prosecution and abuse of a
corpse related to the same murders violates the
Double Jeopardy Clause. In 2010, Kelley was charged
with hindering the prosecution of her husband in the
murders of Rocky Morgan and James Bachelor and with
abuse of a corpse. In August 2011, she pleaded
guilty to those charges and has since completed her
sentence. Kelley's husband, Robert Kelley, has been
charged with and pleaded guilty to murdering Morgan
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and Bachelor. As a part of the plea agreement,
Robert Kelley implicated his wife in the murders. In
March 2013, Kelley was indicted for three counts of
capital murder for allegedly murdering Morgan and
Bachelor during one course of conduct and for
murdering Morgan for pecuniary gain. Kelley moved
that the capital murder charges be dismissed based
on collateral estoppel and double-jeopardy grounds.
After a hearing, Judge Millican denied the motion.
Kelley then filed this petition for a writ of
mandamus with this Court."
As noted above and discussed in more detail below, the
Court of Criminal Appeals granted Kelley's petition. The
State then filed the instant petition with this Court.
Standard of Review
"Mandamus is an extraordinary remedy and will be
issued only when there is '(1) a clear legal right
in the petitioner to the order sought; (2) an
imperative duty upon the respondent to perform,
accompanied by a refusal to do so; (3) the lack of
another adequate remedy; and (4) properly invoked
jurisdiction of the court.' Ex parte Alfab, Inc.,
586 So. 2d 889, 891 (Ala. 1991). 'A decision of a
court of appeals on an original petition for writ of
mandamus or prohibition or other extraordinary writ
(i.e., a decision on a petition filed in the court
of appeals) may be reviewed de novo in the supreme
court....' Rule 21(e)(1), Ala. R. App. P."
Ex parte Sharp, 893 So. 2d 571, 573 (Ala. 2003).
Discussion
Hindering prosecution in the first degree is described in
Ala. Code 1975, § 13A-10-43(a), as follows:
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"A person commits the crime of hindering prosecution
in the first degree if with the intent to hinder the
apprehension, prosecution, conviction or punishment
of another for conduct constituting a murder or a
Class A or B felony, he renders criminal assistance
to such person."
A person renders "criminal assistance" to another if he or
she:
"(1) Harbors or conceals such person;
"(2) Warns such person of impending discovery or
apprehension; except that this subdivision does not
apply to a warning given in connection with an
effort to bring another into compliance with the
law;
"(3) Provides such person with money,
transportation, weapon, disguise or other means of
avoiding discovery or apprehension;
"(4) Prevents or obstructs, by means of force,
deception or intimidation, anyone except a
trespasser from performing an act that might aid in
the discovery or apprehension of such person; or
"(5) Suppresses, by an act of concealment,
alteration or destruction, any physical evidence
that might aid in the discovery or apprehension of
such person."
Ala. Code 1975, § 13A-10-42.
The language of § 13A-10-43(a) does not provide that a
person may be charged with and convicted of rendering criminal
assistance to himself or of hindering his own prosecution:
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"Neither the statutory definition of hindering
prosecution in the first degree, § 13A-10-43, nor
the statutory definition of criminal assistance, §
13A-10-42, 'states that a person may render criminal
assistance to himself. If the legislature had so
intended, it could have inserted that provision in
the statute. Instead the legislature used the words
"person" or "such person" throughout those sections
and did not refer to the underlying principal.'"
Washington v. State, 562 So. 2d 281, 282 (Ala. Crim. App.
1990) (quoting People v. Mercedes, 121 Misc. 2d 419, 420, 467
N.Y.S.2d 973, 974 (N.Y.Sup.Ct. 1983)).
In Washington, the court was required to determine
whether hindering prosecution was a lesser offense included
in the offense of robbery. In holding that it was not a
lesser-included offense, the court stated that "'[t]he charge
of hindering prosecution is inapplicable to a person charged
as a principal.'" 562 So. 2d at 282 (quoting Mercedes, 121
Misc. 2d at 420, 467 N.Y.S.2d at 974. The court then noted:
"The history of the offense of hindering
prosecution in Alabama shows that the offense has
been limited to persons other than principals.
"'Under Alabama law the conduct
described under § 13A-10-42 and prohibited
by §§ 13A-10-43 and 13A-10-44[, Ala. Code
1975,] would ordinarily make one an
"accessory after the fact." Former §§
13-9-1 and 13-9-2[, Ala. Code 1975]. Former
§ 13-9-1 provided that all persons
concerned in the commission of a felony,
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whether they directly commit the act
constituting the offense or aid or abet in
its commission, will be tried and punished
as principals. Parsons v. State, 33 Ala.
App. 309, 33 So. 2d 164 (1948)[,]
established that participation in the crime
may be proven by circumstantial evidence.
Former § 13-9-2 dealt with accessories
after the fact and provided [that] any
person, other than parent, child, brother,
sister, husband or wife of the offender,
who gives aid to the offender with the
intent to enable him to avoid or escape
from arrest, trial, conviction, or
punishment in connection with a felony may
be imprisoned in county jail up to six
months and/or fined up to $1,000.00.'
"Commentary to §§ 13A-10-42 through 13A-10-44
(emphasis added). 'Although Section 13-9-1 has been
repealed, there is--for purposes of indictment and
trial--still no distinction between principals and
accessories under Alabama law.' Lewis v. State, 469
So. 2d 1291, 1297 (Ala. Cr. App. 1984), affirmed,
469 So. 2d 1301 (Ala. 1985)."
Washington, 562 So. 2d at 283. On the basis of this analysis,
the court in Washington held that "hindering prosecution is
not a lesser included offense of robbery." Id.
The analysis in Washington was subsequently applied
outside the context of determining whether hindering
prosecution is a lesser-included offense. In Goodwin v.
State, 644 So. 2d 1269 (Ala. Crim. App. 1993), four
individuals, Dewey Goodwin, Daren Goodwin, David King, and
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Xavier Murray, engaged in a scheme to commit a robbery. Dewey
and Daren drove King and Murray to the house of the intended
victim. King and Murray attempted to rob the intended victim
and shot him three times in the attempt. Dewey and Daren
later concealed King and Murray in the trunk of their
automobile and drove them out of the State.
King and Murray were charged with, among other things,
attempted murder. Both Dewey and Daren were charged with
hindering the prosecution of King and Murray for that charge.
The Court of Criminal Appeals, however, held that the
hindering-prosecution charge could not stand. Specifically,
that court noted that Dewey and Daren had also been charged
with robbery and with conspiracy to commit robbery. After
repeating the analysis of Washington, the Court of Criminal
Appeals stated:
"While it is true that the indictment charged them
with hindering the prosecution of King and Murray
for the underlying offense of attempted murder, the
attempted murder charge arose out of the same facts
supporting the prosecution of Dewey and Daren for
first degree robbery and for conspiracy to commit
first degree robbery. To convict them of hindering
the prosecution of King and Murray under these
circumstances would, in essence, be convicting them
of hindering their own prosecution, which is
prohibited by Washington."
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Goodwin, 644 So. 2d at 1274. Thus, Goodwin construed
Washington's narrow holding--that hindering prosecution is not
a lesser-included offense of the underlying criminal conduct
because a person who was a principal in that underlying crime
cannot be charged with hindering his own prosecution for that
conduct--and expanded it to broadly hold that all persons who
are "principals" in the underlying criminal conduct cannot be
charged with hindering the prosecution of another who also
committed that underlying crime. This rationale has been
repeatedly applied, albeit in situations like Washington in
which the court was determining whether the offense of
hindering prosecution was a lesser-included offense of the
charged crime. In Mangione v. State, 740 So. 2d 444, 456
(Ala. Crim. App. 1998), the Court of Criminal Appeals held:
"Based on the reasoning in Goodwin[ v. State, 644
So. 2d 1269 (Ala. Crim. App. 1993)], and Washington
[v. State, 562 So. 2d 281 (Ala. Crim. App. 1990)],
the appellant could not be charged with hindering
prosecution because he was a principal in the
offense that resulted in the murder charge alleged
to have been hindered. Although the appellant's
action may arguably have hindered the prosecution of
his accomplices, there is no dispute that he also
hindered his own prosecution. Section 13A–10–43,
Ala. Code 1975, is inapplicable where an accused has
rendered assistance to himself."
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See also Wingard v. State, 821 So. 2d 240, 245 (Ala. Crim.
App. 2001) ("In Washington, Goodwin, and Mangione, this Court
held, as a matter of law, that a person charged as an
accomplice to a crime could not have hindered the prosecution
of another charged as the principal.").
In the instant matter, the Court of Criminals Appeals
relied on the more recent decision of Davenport v. State, 968
So. 2d 27 (Ala. Crim. App. 2005), which restated the holding
of Goodwin. In issuing the writ in this case, the Court of
Criminal Appeals stated:
"Kelley, relying on the case of Davenport v.
State, 968 So. 2d 27 (Ala. Crim. App. 2005), argues
that she cannot be prosecuted for capital murder
after she already has been convicted and served her
sentence for hindering prosecution and abuse of a
corpse related to the same murders. ... In
Davenport, this Court reviewed the propriety of
Davenport's convictions for manslaughter and for
hindering the prosecution of Davenport's son. In
holding that Davenport could not be convicted of
both offenses, this Court stated:
"'[T]he appellant was convicted of
manslaughter for the death of the victim.
Because the hindering prosecution charge
arose from the same facts as those
supporting the manslaughter conviction, she
could not properly be convicted of both
manslaughter and first-degree hindering
prosecution. Therefore, the trial court did
not have jurisdiction to enter judgments on
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both the manslaughter charge and the
first-degree hindering prosecution charge.'
"968 So. 2d at 36-37. See also Goodwin v. State, 644
So. 2d 1269 (Ala. Crim. App. 1993).
"For the forgoing reasons, this petition for a
writ of mandamus is hereby granted. Judge Millican
[is] directed to grant Kelley's motion to bar her
prosecution for capital murder, as she has already
been convicted of hindering prosecution and abuse of
a corpse related to the same facts."
In its mandamus petition, the State contends that
Davenport, in holding that an individual cannot be prosecuted
for hindering the prosecution of another when the individual
was also a principal, or participated, in that crime,
misstated the law. We agree.
"When the language of a statute is plain and
unambiguous ... courts must enforce the statute as
written by giving the words of the statute their
ordinary plain meaning--they must interpret that
language to mean exactly what it says and thus give
effect to the apparent intent of the Legislature."
Ex parte T.B., 698 So. 2d 127, 130 (Ala. 1997).
"'"Words used in a statute must be given
their natural, plain, ordinary, and
commonly understood meaning, and where
plain language is used a court is bound to
interpret that language to mean exactly
what it says. If the language of the
statute is unambiguous, then there is no
room for judicial construction ...."'"
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DeKalb Cnty. LP Gas Co. v. Suburban Gas, Inc., 729 So. 2d 270,
275 (Ala. 1998) (quoting Blue Cross & Blue Shield v. Nielsen,
714 So. 2d 293, 296 (Ala. 1998), quoting in turn IMED Corp. v.
Systems Eng'g Assocs. Corp., 602 So. 2d 344, 346 (Ala. 1992)).
See also Ex parte Ankrom, 143 So. 3d 58 (Ala. 2013).
As quoted above, § 13A-10-43(a) provides that one
"commits the crime of hindering prosecution in the first
degree if," with the requisite intent "to hinder the
apprehension, prosecution, conviction or punishment of another
for conduct constituting" certain crimes, "he renders criminal
assistance to such person." (Emphasis added.) The plain
language of the Code section focuses on the criminal
assistance rendered to another person by the one accused of
hindering. Whether the accused also participated in the
underlying criminal conduct is not addressed by the Code
section, and there is no language preventing the prosecution
of one who hindered prosecution of another if he or she also
participated in the underlying conduct. Although in certain
circumstances providing criminal assistance to an accomplice
might also result in one's hindering his or her own
prosecution, providing criminal assistance to another is
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nevertheless a distinct act explicitly proscribed by the Code
section. Nichols v. State, 500 So. 2d 92, 93 (Ala. Crim. App.
1986) ("[I]t is clear that hindering prosecution is
distinguishable from the underlying prosecutorial offense that
was alleged to have been committed."). As long as the one
accused of hindering prosecution renders criminal assistance
to another, nothing in the language of the Code section
prevents his or her prosecution, even if the accused's
criminal assistance also ultimately resulted in rendering
criminal assistance to himself or herself. To hold otherwise
creates a broad exception not found in, and arguably contrary
to, § 13A-10-43. To the extent Davenport holds otherwise, it
misapprehends the law and thus does not provide Kelley a clear
legal right for the mandamus relief she sought in the Court of
Criminal Appeals.
Kelley argues that because under Davenport a person
cannot be found guilty of hindering prosecution if she was
involved in the underlying offense, then the fact that she was
found guilty of hindering prosecution means, or ultimately
proves, that she was not a principal in the murders in the
instant case. Therefore, she maintains, the State is
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collaterally estopped from asserting the contrary. See Ex
parte Howard, 710 So. 2d 460 (Ala. 1997) (discussing the
application of the doctrine of collateral estoppel in the
context of a criminal prosecution). This would be true if
Davenport accurately stated the law, but, as noted above, it
does not. A conviction under § 13A-10-43 establishes only
that one hindered the prosecution of another -- it does not
contemplate or address whether the accused also participated
in the underlying criminal conduct.1
Conclusion
For the foregoing reasons, we grant the State's petition
and direct the Court of Criminal Appeals to vacate its writ of
mandamus.
1
Kelley further argues that to depart from Davenport in
her case "would be so unfair as to violate due process." She
contends that such a departure -- applied retroactively to her
case -- would violate the Supreme Court's decision in Rogers
v. Tennessee, 532 U.S. 451, 462 (2000), which noted that due
process protects "against vindictive or arbitrary judicial
lawmaking by safeguarding defendants against unjustified and
unpredictable breaks with prior law." Given that Davenport's
holding, which we reject today, clearly deviates from the
plain language of § 13A-10-43(a), we see nothing vindictive,
arbitrary, unjustified, or unpredictable in holding that
decision to be in error.
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PETITION GRANTED; WRIT ISSUED.
Stuart, Bolin, Parker, Main, Wise, and Bryan, JJ.,
concur.
Murdock, J., concurs in the result.
Moore, C.J., recuses himself.
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MURDOCK, Justice (concurring in the result).
I respectfully disagree with the main opinion's rejection
today of the holdings in Goodwin v. State, 644 So. 2d 1269
(Ala. Crim. App. 1993), and Davenport v. State, 968 So. 2d 27
(Ala. Crim. App. 2005). In the procedural context in which the
Court of Criminal Appeals decided those particular cases, I
believe that court reached the right result based upon sound
reasoning. As the Court of Criminal Appeals explained in
Goodwin:
"While it is true that the indictment charged them
with hindering the prosecution of [David] King and
[Xavier] Murray for the underlying offense of
attempted murder, the attempted murder charge arose
out of the same facts supporting the prosecution of
Dewey [Goodwin] and Daren [Goodwin] for first degree
robbery and for conspiracy to commit first degree
robbery. To convict them of hindering the
prosecution of King and Murray under these
circumstances would, in essence, be convicting them
of hindering their own prosecution, which is
prohibited by Washington [v. State, 567 So. 2d 281
(Ala. Crim. App. 1990)]. Thus, this conviction must
be reversed and the case remanded."
644 So. 2d at 1274. Similarly, the Court of Criminal Appeals
correctly reasoned in Davenport:
"[T]he appellant was convicted of manslaughter for
the death of the victim. Because the hindering
prosecution charge arose from the same facts as
those supporting the manslaughter conviction, she
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could not properly be convicted of both manslaughter
and first-degree hindering prosecution."
968 So. 2d at 36.
It is critical to note, however, that Goodwin and
Davenport simply were postured differently than the present
case, and it is this difference in my view that justifies,
indeed requires, a different result in the present case. That
difference is this: Both Goodwin and Davenport were cases in
which the defendants were prosecuted as both principals and
"hinderers" at the same time and under circumstances in which
the State was sufficiently aware of the evidence tending to
prove that the defendants acted as principals in the very
crimes in relation to which the State simultaneously sought to
prosecute them as "hinderers." Here, at the time it
prosecuted Margie Morgan Kelley for hindering, the State was
unaware of the evidence implicating her as a principal.
Whether the restraining principle at play in Goodwin and
Davenport be considered double jeopardy (in which case the
exception identified below would be more directly applicable)
or judicial or collateral estoppel (in which case, given the
connection between estoppel doctrines and double jeopardy in
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the criminal context,2 it would apply by analogy), I believe
there is an exception to the restraining principle that
should apply here. Specifically, the United States Supreme
Court has held that, even in a case in which the Double
Jeopardy Clause itself otherwise would apply because the
defendant had already been prosecuted for a lesser-included
offense, an exception to that bar exists "when the facts
necessary to the greater offense were not discovered despite
the exercise of due diligence before the first trial." Jeffers
v. United States, 432 U.S. 137, 152 (1996) (citing Brown v.
Ohio, 432 U.S. 161, 169 n. 7 (1977); Blackledge v. Perry, 417
U.S. 21, 28-29 and n. 7 (1974); Diaz v. United States, 223
U.S. 442 (1912); and Ashe v. Swenson, 397 U.S. 436, 453 n. 7
(1970)). This "exception" is properly extended to the
holdings in Goodwin and Davenport and explains why Kelley's
prosecution in the present case is not barred as were the
prosecutions in those cases.
2
See Ex parte Howard, 710 So. 2d 460, 463 (Ala. 1997)
(quoting S.W. v. State, 703 So. 2d 427 (Ala. Crim. App. 1997),
and citing Ashe v. Swenson, 397 U.S. 436 (1970), and United
States v. Sanchez, 992 F.2d 1143, 1154 (11th Cir. 1993), on
reconsideration, 3 F.3d 366 (11th Cir. 1994)).
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Based on the foregoing, I concur in the result reached by
the main opinion.
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