Opinion
CR-19-0708
10-16-2020
Matthew SPAIN v. STATE of Alabama
Leroy Maxwell, Jr., of Maxwell Tillman-Trial Lawyers, Birmingham, for appellant. Steve Marshall, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.
Leroy Maxwell, Jr., of Maxwell Tillman-Trial Lawyers, Birmingham, for appellant.
Steve Marshall, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.
MINOR, Judge.
Matthew Spain appeals the circuit court's summary dismissal of his Rule 32, Ala. R. Crim. P., petition for postconviction relief. In his petition, Spain challenged his 2017 conviction for first-degree rape, see § 13A-6-61, Ala. Code 1975, and his resulting sentence of life imprisonment. This Court, in an unpublished memorandum, affirmed Spain's conviction and sentence. Spain v. State, 279 So. 3d 12 (Ala. Crim. App. 2018) (table), and the Alabama Supreme Court denied Spain's petition for a writ of certiorari, Ex parte Spain, 288 So. 3d 437 (Ala. 2018) (table). This Court issued the certificate of judgment, making Spain's judgment of conviction final, on August 10, 2018.
See Nettles v. State, 731 So. 2d 626, 629 (Ala. Crim. App. 1998) ("this Court may take judicial notice of its own records" (citing Hull v. State, 607 So. 2d 369, 371 n.1 (Ala. Crim. App. 1992) )).
This Court's memorandum affirming Spain's conviction and sentence stated:
"On November 6, 2014, K.S. visited the apartment of her fiancé, Spain. That evening the two had an intense argument. When the couple woke the following morning, Spain asked K.S. whether she wanted to remain engaged to him. K.S. told him no; she explained at trial that they argued too often and that she was ready for the relationship to be over.
"K.S., a college student, went to the bathroom to get ready for class. When she came out she found Spain searching through the text messages on her cell phone. K.S. asked for her cell phone and Spain went to the bathroom, locking himself inside. Through the bathroom door Spain questioned K.S. about various males to whom she had been sending text messages. Spain eventually opened the bathroom door but refused to return the cell phone to K.S.
"K.S. left the apartment and drove to the office of the apartment complex in search of help, but found it closed. K.S. drove back to Spain's apartment, where she saw Spain getting into his own vehicle. K.S. confronted Spain about her cell phone and Spain walked back into his apartment, followed by K.S. Spain again locked himself in the bathroom, ignoring K.S.’s pleading for him to return her cell phone. When Spain emerged from the bathroom, K.S. attempted to take her cell phone by force. K.S. jumped on Spain and reached for her cell phone. Spain pushed K.S. to the floor. K.S. stood up and approached Spain. Spain grabbed K.S. by her throat and held her against a wall. Spain then wrestled K.S. to the ground, where he pinned her while interrogating her about other men. K.S. testified that ‘[e]very time he came
across a guy's name in my phone, he would spit in my face, and every time that he thought I was lying to him, he would flick me on the side of the head.’ (R. 154.)
"In an apparent attempt to ‘make up’ with K.S., Spain removed K.S.’s shirt and kissed her. (R. 155.) K.S. turned her head to avoid Spain's kisses, and told him that she ‘wasn't doing anything with him.’ (R. 155.) Spain told K.S. that she could leave only if she had sex with him. K.S. told him ‘no’ multiple times. Spain attempted to carry K.S. to the bedroom but she was able to free herself temporarily. K.S. fell to the floor, at which point Spain grabbed K.S.’s neck and choked her. K.S. testified that she could not breathe and began to black out. When Spain let go, K.S. told him to ‘get it over with’ and ‘kill her.’ (R. 156.)
"Spain threw K.S. onto his bed, pinned her arms, and resumed his attempts to kiss her. Despite K.S.’s holding her legs together as tightly as she could, Spain was able to remove her pants and underwear. Spain got on top of K.S. and ‘overpowered’ her, putting her legs over his shoulders. (R. 158.) Without K.S.’s consent, Spain inserted his penis into her vagina. When he was finished, Spain got up and ‘walk[ed] around the apartment like absolutely nothing had happened.’ (R. 159.)
"K.S. left Spain's apartment and drove to class. A friend met her with a change of clothes, which she needed because her clothes were stained with Spain's blood -- K.S. testified that she had bitten Spain a number of times during the rape. K.S. then reported the incident to campus security. The chief of campus security drove K.S. to the Alabaster Police Department to file a complaint.
"Vikki Vodosia, a sexual assault nurse examiner at The Crisis Center in Birmingham, treated K.S. that afternoon. Vodosia noted bruises and abrasions to K.S.’s face, arms, chest, abdomen, legs, back, heel, and ears.
"Investigator Tommy Stewart of the Alabaster Police Department interviewed Spain regarding K.S.’s allegations. Spain initially denied the allegations, but later admitted to Investigator Stewart that ‘he had raped her and assaulted her and strangled her.’ (R. 237.) A recording of the interview was played for the jury.
"Spain testified at trial that he and K.S. had intercourse on the morning of November 7, 2014, but maintained that it had been consensual, ‘makeup sex.’ (R. 269.) As for his admissions to Investigator Stewart, Spain testified that he had been scared and nervous during the interview and that he believed the interview would end if he agreed with what Investigator Stewart was saying."
Spain filed the instant petition in June 2019. (C. 8.) In the petition, Spain alleged (1) that his trial counsel was ineffective for not moving to dismiss the indictment because the indictment, which included intent as an element of rape, was void; (2) that his trial counsel was ineffective for not objecting to the trial court's instructing the jury on intent as charged in the indictment; and (3) that the trial court was without jurisdiction because it " ‘constructively amended’ the first degree rape statute, by adding the element of ‘intentionally’ to the charge." The State responded to the petition in July 2019 and moved to dismiss it. (C. 41.) The State asserted that the claims lacked merit and that they were precluded under Rule 32.2(a)(3) and Rule 32.2(a)(5) because Spain could have raised them at trial or on appeal but did not. Spain moved for leave to amend his petition in October 2019 to include a claim alleging that the victim had recanted her testimony. (C. 47.) On March 24, 2020, the circuit court denied Spain's motion for leave to amend. (C. 64.) That same day, the circuit court summarily dismissed the petition. (C. 66.)
The circuit court granted Spain's request to proceed in forma pauperis. (C. 46.)
Two days later, counsel entered a notice of appearance for Spain and moved for leave to amend the petition. (C. 67.) Counsel later filed a motion to reconsider the judgment denying the petition. (C. 70.) The circuit court denied both motions. (C. 76-77.) Spain's counsel filed a timely notice of appeal. (C. 85.)
Spain also filed a pro se motion to reconsider. (C. 78.) It appears this motion was denied by operation of law. Ingram v. State, 103 So. 3d 86, 90 (Ala. Crim. App. 2012).
Rule 32.7(d), Ala. R. Crim. P., permits a circuit court to summarily dismiss a Rule 32 petition if the claims in the petition are insufficiently pleaded, are precluded, or are without merit. This Court reviews a circuit court's summary dismissal of a Rule 32 petition for an abuse of discretion. Lee v. State, 44 So. 3d 1145, 1149 (Ala. Crim. App. 2009). Under most circumstances, "we may affirm a ruling if it is correct for any reason." Bush v. State, 92 So. 3d 121, 134 (Ala. Crim. App. 2009).
On appeal, Spain, through counsel, reiterates the claims in his petition and the proposed amendment to the petition. We address each claim in turn.
I.
Spain argues that his trial counsel was ineffective for not moving to dismiss the indictment. Spain asserts that the indictment was void because it included intent as an element of rape. Spain has no right to relief on this ineffectiveness claim because the underlying claim--that the inclusion of "intentionally" as an element of the offense in the indictment rendered the indictment void or defective--lacks merit. See, e.g., Yeomans v. State, 195 So. 3d 1018, 1034 (Ala. Crim. App. 2013) ("[B]ecause there is no merit to the legal theory underlying this claim of ineffective assistance, the claim was properly dismissed. See, e.g., Lee v. State, 44 So. 3d 1145, 1173 (Ala. Crim. App. 2009) (counsel cannot be ineffective for failing to raise a claim that has no merit).").
The standard for evaluating an ineffective-assistance-of-counsel claim--and what a petitioner must plead and prove to have a right to relief--is well established. See, e.g., Marshall v. State, 182 So. 3d 573, 582–83 (Ala. Crim. App. 2014). Stated briefly, a petitioner must plead facts showing that counsel performed deficiently and that the deficient performance prejudiced the petitioner. Id. (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ).
Spain relies on this Court's decision in Frye v. State, 185 So. 3d 1156 (Ala. Crim. App. 2015), but Frye does not give Spain a right to relief. In Frye, the defendant was convicted of first-degree rape and first-degree sodomy of his ex-wife, A.A., in 2013. As a part of its evidence, the State offered evidence that in 2012 Frye had physically assaulted A.A. Over Frye's objection, the trial court admitted the evidence under Rule 404(b), Ala. R. Evid. On appeal, this Court rejected the State's argument that the evidence was admissible under Rule 404(b) to show motive, intent, and pattern.
As to whether the prior-bad-acts evidence was admissible to show intent, this Court held that "intent is not an element of either first-degree rape or first-degree sodomy." 185 So. 3d at 1165. This Court quoted from McElroy's Alabama Evidence § 69.01(5) (6th ed. 2009):
" ‘If the accused is charged with a crime that requires a prerequisite intent, collateral crimes, acts or misconduct are admissible to show that the accused possessed the necessary intent....
" ‘It is important to note that intent may not be asserted, as a successful way to circumvent the general exclusionary rule of character, unless intent is material or of consequence to the case. This normally means that it must be an element of the crime with which the accused is charged. ... [T]he courts have made it clear that intent must be a genuine issue before it may be used as a channel through which to admit collateral conduct of the accused.
" ‘....
" ‘... Whenever the prerequisite intent may be inferred from the nature of the criminal act itself, evidence of other crimes is inadmissible if offered to prove such intent.’ "
Frye, 185 So. 3d at 1164. This Court also quoted from Judge Bowen's special concurrence in King v. State, 574 So. 2d 921, 934 (Ala. Crim. App. 1990) :
" ‘[B]oth sodomy and rape proscribe the prohibited act alone without regard to the actor's intent.
" ‘As Mitchell v. State [, 473 So. 2d 591 (Ala. Crim. App. 1985),] points out, although sexual gratification is a definitional component of the act constituting the offense of sodomy, it is not an intent requirement. Neither is there an intent requirement for rape. Title 13A, Chapter 6, Article 4 of our Criminal Code defines six sex offenses, namely: rape, sodomy, sexual misconduct, sexual abuse, indecent exposure, and enticement. With the exception of rape, sodomy, and sexual misconduct (which is defined in reference either to rape or sodomy), all of these offenses proscribe conduct performed with an intent characterized as to "gratify sexual desire" or "lascivious." Why did the Alabama legislature omit the "sexual gratification" or "lascivious" intent requirement from only rape and sodomy? The answer is clear. One engages in an act of sexual intercourse under the circumstances set out in the rape statutes, or in an act of deviate sexual intercourse under the circumstances outlined in the sodomy statutes "at his peril." See §§ 13A–6–61 and 13A–6–62 (Commentary at 201); §§ 13A–6–63 and 13A–6–64 (Commentary at 205). That is, all acts of sexual intercourse or deviate sexual intercourse accomplished by force or perpetrated on a child of tender years are proscribed, without regard to intent. See Hooper v. State, 106 Ala. 41, 17 So. 679 (1895). Society, speaking through the legislative body, deems these acts sufficiently harmful to justify criminalizing their performance alone, irrespective of intent. Cf. United States v. Balint, 258 U.S. 250, 42 S. Ct. 301, 66 L. Ed. 604 (1922) (drug seller guilty of violating federal Narcotics Act even though he was unaware product contained opium). The rape and sodomy statutes thus approach "mala prohibita" or strict liability offenses in their outright prohibition of certain conduct regardless of mental culpability. See generally § 13A–2–3 (Commentary at 27).
" ‘In contrast, not all "sexual contact" or genital exposure, or enticement of children is or could, constitutionally, be proscribed under the other sexual offense statutes. "Touching of the sexual or other intimate parts of a person not married to the actor" frequently occurs when people are jostled together on a crowded bus, when someone performs
artificial respiration, or when a doctor examines a patient. Genital exposure is common in locker rooms, and strictly speaking, enticement of children into a vehicle is practiced every day by harried parents ready to leave the mall.’ "
Frye, 185 So. 3d at 1164-65 (quoting King v. State, 574 So. 2d at 934 (Bowen, J., concurring specially) (emphasis added in Frye )).
This Court has long recognized that rape is a general-intent crime, not a crime requiring the State to prove specific intent. See, e.g., Register v. State, 640 So. 2d 3, 5 (Ala. Crim. App. 1993) ("[N]either rape nor sodomy are specific intent crimes, see Ala. Code 1975, §§ 13A–6–62, –63, and –64, and the intent necessary for sexual abuse ‘may be inferred by the jury from the act itself,’ Ex parte Cofer, 440 So. 2d 1121, 1124 (Ala. 1983). ‘The intent exception is simply not applicable in a case that requires no specific criminal intent as a prerequisite to conviction.’ Anonymous v. State, 507 So. 2d [972,] 975 [(Ala. 1987)]."). In stating that "intent is not an element of rape" in Frye, this Court meant that specific intent is not an element of rape. This Court in Frye was merely reiterating that " ‘the prerequisite intent [i.e., to commit the rape] may be inferred from the nature of the criminal act itself,’ " i.e., sexual intercourse by forcible compulsion, Frye, 185 So. 3d at 1164 (quoting Gamble, supra ), and, thus, the State may not use evidence of prior bad acts to prove that the defendant intentionally raped a victim.
And, as the State explains in its brief to this Court,
"[t]he Alabama Criminal Code defines the following terms relating to culpable mental states: intentionally, knowingly, reckless, and criminal negligence. [ § 13A-2-2, Ala. Code 1975.] Given the nature of the first-degree-rape statute and that it requires ‘forcible compulsion,’ none of the other three mental states of culpability could apply. Forcible compulsion would not be compatible with negligence, or recklessness, or even knowing. Thus, the inclusion of a requisite mental state in the count charging first-degree rape was appropriate."
The indictment charging Spain states: "Matthew Zachary Spain ... did on or about November 7, 2014, intentionally engage in sexual intercourse with a female ... by forcible compulsion, in violation of Section 13A-6-61(a)(1) of the Code of Alabama, against the peace and dignity of the State of Alabama." (Emphasis added.) (Record in CR-16-1215, C. 5.) The indictment charged the offense of first-degree rape and put Spain on notice "of the nature and cause of the charge against him." Tomlin v. State, 443 So. 2d 47, 51 (Ala. Crim. App. 1979) (finding that an indictment is "void" when it "does not on its face charge an offense, or where the accused is left unaware of the nature and cause of the charge against him").
Spain has no right to relief on this claim, and the circuit court's summary dismissal of it was proper. See Rule 32.7(d), Ala. R. Crim. P.
II.
Spain's second and third claims are that his trial counsel was ineffective for not objecting to the trial court's instructing the jury on intent as charged in the indictment and that the trial court was without jurisdiction because it " ‘constructively amended’ the first-degree rape statute, by adding the element of ‘intentionally’ to the charge." As we held in Part I of this opinion, the inclusion of "intentionally" in the indictment did not make it void or defective. Thus, Spain's trial counsel was not ineffective for not objecting to the jury being instructed on intent. Yeomans, supra. Nor did the trial court's instructions "constructively amend" the first-degree-rape statute. The authorities Spain cites do not support his position.
Spain cites Frye, supra, which does not give Spain a right to relief. He also cites decisions about proper statutory construction and the separation of powers, but those cases do not support his position.
III.
Spain argues that the circuit court erred in denying his motion for leave to amend his petition to include a claim alleging that the victim had recanted her testimony. Spain filed the motion months before the circuit court summarily dismissed the petition; thus, Spain is correct that the circuit court erred. See, e.g., Jones v. State, 185 So. 3d 1142 (Ala. Crim. App. 2014) (reversing circuit court's judgment denying a petitioner leave to amend his petition when petitioner had not already filed multiple amendments or unreasonably delayed requesting to file an amendment). But because the claim Spain sought to add in the amendment was insufficiently pleaded, the circuit court's erroneous refusal to let Spain amend his petition was harmless. See, e.g., Wynn v. State, 246 So. 3d 163, 171 (Ala. Crim. App. 2016), and Wilson v. State, 911 So. 2d 40, 46 (Ala. Crim. App. 2005) (both holding that the refusal to accept an amendment was harmless when the claim or claims raised in the amendment would not have entitled the petitioner to relief).
In the motion for leave to amend, Spain sought to allege newly discovered evidence: i.e., that the victim had recanted her testimony. Rule 32.1(e), Ala. R. Crim. P., governs a claim based on newly discovered evidence. Under that rule, a petitioner must allege:
"Newly discovered material facts exist which require that the conviction or sentence be vacated by the court, because:
"(1) The facts relied upon were not known by the petitioner or the petitioner's counsel at the time of trial or sentencing or in time to file a posttrial motion pursuant to Rule 24, or in time to be included in any previous collateral proceeding and could not have been discovered by any of those times through the exercise of reasonable diligence;
"(2) The facts are not merely cumulative to other facts that were known;
"(3) The facts do not merely amount to impeachment evidence;
"(4) If the facts had been known at the time of trial or of sentencing, the result probably would have been different; and
"(5) The facts establish that the petitioner is innocent of the crime for which the petitioner was convicted or should not have received the sentence that the petitioner received."
Rule 32.1(e), Ala. R. Crim. P. Spain had to allege facts showing that the claim met each of the five requirements in Rule 32.1(e). Bush v. State, 92 So. 3d 121, 148 (Ala. Crim. App. 2009). He did not do so.
In support of this claim, Spain alleged:
"[Spain] avers that evidence has now been discovered that said alleged testimony given at trial, that [Spain] forced the victim against her will to have sex with him was false, and that the victim was not ‘only just mad at the petitioner for discovering her secrets that she was having an affair with other men,’ knowing she was engaged to him, but also that she was coerced, and threatened by the district attorney's office into testifying that [Spain] raped her when he did not; that she wanted to change her statement, but was given the impression that if she testified [Spain] never forced her to have sex, she would be prosecuted.
[Spain] avers that the testimony said witness gave at trial was false; that there is a significant chance that, had the jury heard the truth, that she lied, and why, the jury would have reached a different result. Further this evidence of perjured testimony has just been discovered since his trial, and that this evidence could not have been discovered by him or his counsel before or during his trial with due diligence."
(C. 53.)
This Court has recognized that " ‘ "recanting testimony is exceedingly unreliable .... [and] the courts, with their experience with witnesses, generally pay but little regard to the statements of recanting witnesses, and only in extraordinary cases will a new trial be allowed because of recanting statements." ’ " Cavender v. State, 629 So. 2d 721, 722 (Ala. Crim. App. 1993) (quoting Robinett v. State, 494 So. 2d 952, 955 (Ala. Crim. App. 1986) (additional citations omitted))). In Ex parte Frazier, 562 So. 2d 560, 569-70 (Ala. 1989), the Alabama Supreme Court held:
"In order to grant a motion for new trial alleging perjured testimony, the trial court must be reasonably well satisfied 1) that testimony given by a witness at trial was false; 2) that there is a significant chance that had the jury heard the truth, it would have reached a different result; 3) that the evidence tending to prove the witness's perjury has been discovered since the trial; and 4) that evidence could not have been discovered before or during trial by the exercise of due diligence."
And the standard for pleading a claim for relief under Rule 32 is well settled:
"A Rule 32 petitioner has the burden of pleading ‘the facts necessary to entitle the petitioner to relief.’ Rule 32.3, Ala. R. Crim. P. See also Rule 32.6, Ala. R. Crim. P. To avoid summary dismissal, the petitioner must provide ‘the full factual basis for the claim in the petition itself.’ Hyde v. State, 950 So. 2d 344, 356 (Ala. Crim. App. 2006). And those facts, if assumed true, must show that the petitioner is entitled to relief. Boyd v. State, 913 So. 2d 1113, 1125 (Ala. Crim. App. 2003). If the factual allegations when assumed true do not show that the petitioner is entitled to relief, the circuit court may summarily dismiss the petition. See Rule 32.7(d), Ala. R. Crim. P.; Bryant v. State, 181 So. 3d 1087, 1102 (Ala. Crim. App. 2011)."
Walker v. State, 320 So. 3d 1, 9–10 (Ala. Crim. App. 2020), cert. denied (No. 1190746, Aug. 21, 2020) (emphasis added).
Because of the unreliability of recanted testimony, to sufficiently plead a claim of newly discovered evidence based on recanted testimony, a Rule 32 petitioner must, at a minimum, plead with specificity what the witness testified to at trial and the importance of that testimony to the State's case, what the witness said in his or her recantation, and the circumstances of the recantation, including when it was made, where it was made, to whom it was made, and whether it was oral or written. Without those allegations, a court cannot determine whether, assuming the allegations in the petition to be true, the result of the trial probably would have been different had the recanted testimony been known at the time of the trial. See Rule 32.1(e)(4).
Spain alleged no facts about the circumstances of the recantation or what the victim said in her recantation. He made only the barest of assertions that the victim had testified at trial that he forcibly raped her without alleging any facts showing the importance of her testimony to the State's case. For example, based on Spain's pleadings, we do not know whether there were any witnesses to the crime or whether there was any forensic evidence. Spain also made a bare allegation that he learned of the recantation since his trial and that he could not have discovered it before or during trial by the exercise of due diligence, but he failed to plead in his petition when the victim recanted her testimony or any other facts supporting this bare allegation. See Rule 32.1(e)(1). Thus, Spain has not pleaded " ‘the full factual basis for the claim,’ " Walker, supra, and the circuit court's refusal to let him amend his petition to include the claim was, even if it was error, harmless.
"[A]lthough ‘this Court may take judicial notice of its own records ..., we are not required, in the context of a Rule 32 proceeding, to search the record from a petitioner's direct appeal to ascertain the factual basis for a postconviction claim.’ " Woodward v. State, 276 So. 3d 713, 745 (Ala. Crim. App. 2018) (quoting Mashburn v. State, 148 So. 3d 1094, 1124 (Ala. Crim. App. 2013) ).
The judgment of the circuit court is affirmed.
AFFIRMED.
Windom, P.J., and Kellum and McCool, JJ., concur. Cole, J., concurs in the result.