Opinion
CR-20-0976
09-02-2022
Anthony Lavaughn Bishop v. State of Alabama
Appeal from Jefferson Circuit Court (CC-19-4203)
MINOR, JUDGE.
A jury convicted Anthony Lavaughn Bishop of third-degree robbery, see § 13A-8-43, Ala. Code 1975, and the circuit court sentenced him, as a habitual felony offender, to 20 years' imprisonment; that sentence was split, and he was ordered to serve 5 years' imprisonment followed by 3 years' probation. In this appeal, we consider four issues: (1) whether the circuit court correctly refused to instruct the jury on fourth-degree theft of property as a lesser-included offense of third-degree robbery; (2) whether the circuit court correctly admitted alleged hearsay statements made during Bishop's recorded interview and in police body-camera footage; (3) whether the circuit court correctly gave an Allen charge; and (4) whether Bishop's split sentence is legal. We affirm Bishop's conviction, but because § 15-18-8(a)(2), Ala. Code 1975, limits the split portion of his sentence to 3 years' imprisonment, we remand this case for the circuit court to impose a split sentence on Bishop's 20-year sentence that conforms with § 15-18-8(a)(2).
Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).
In March 2019, Betty Mae Wallace was working as a cashier at a CVS Pharmacy in Birmingham when Bishop walked in and said that he wanted to "load a card." Wallace asked him to give her the card and he never did. Bishop then demanded money from Wallace, who, at first, believed Bishop was joking. Bishop then said, "Bitch, give me your fucking money," and "reach[ed] around" his back. (Supp. R. 257-58.) Because Wallace believed Bishop had a weapon, she took $79 from the register and threw it on the counter. Wallace testified that she was "afraid" because she believed that Bishop would hurt her if she did not comply with his demands. (Supp. R. 258-59.) Video-surveillance footage from the CVS showed the interaction between Bishop and Wallace. Shortly after the robbery, based on Wallace's description of him, police arrested Bishop.
Wallace testified:
"A. He insinuated that he had something, and he used his eyes because I didn't catch on at first. And he was like my hand, and he moved his hand around to his back. … I was not going to find out if he had a weapon back there or not, so I hit the button.
"Q. And just so we're clear, you did not see a weapon.
"A. I did not.
"Q. And [Bishop] did not tell you that he had a weapon?
"A. He insinuated that he had a weapon.
"Q. Did [Bishop] use his words to tell you that he had a weapon?
"A. He didn't come out and say, 'I got a gun' or 'I got a knife.' He insinuated that he had something behind his back."(Supp. R. 276.)
I. Lesser-Included-Offense Instruction
Bishop argues that the circuit court erred by refusing to instruct the jury on fourth-degree theft of property as a lesser-included offense of third-degree robbery. Bishop argues that there was a reasonable theory from the State's evidence to support the requested instruction because, he says, no evidence showed that he had weapon or that he threatened to use a weapon or that he used or threatened the use of force.
See Bishop's requested charge number 9.
" '"'A person accused of the greater offense has a right to have the court charge on lesser included offenses when there is a reasonable theory from the evidence supporting those lesser included offenses.' MacEwan v. State, 701 So.2d 66, 69 (Ala.Crim.App.1997). An accused has the right to have the jury charged on '"any material hypothesis which the evidence in his favor tends to establish."' Ex parte Stork, 475 So.2d 623, 624 (Ala. 1985). '[E]very accused is entitled to have charges given, which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, however[ ] weak, insufficient, or doubtful in
credibility,' Ex parte Chavers, 361 So.2d 1106, 1107 (Ala. 1978), 'even if the evidence supporting the charge is offered by the State.' Ex parte Myers, 699 So.2d 1285, 1290-91 (Ala. 1997), cert. denied, 522 U.S. 1054, 118 S.Ct. 706, 139 L.Ed.2d 648 (1998). However, '[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense.' § 13A-1-9(b), Ala. Code 1975. 'The basis of a charge on a lesser-included offense must be derived from the evidence presented at trial and cannot be based on speculation or conjecture.' Broadnax v. State, 825 So.2d 134, 200 (Ala.Crim.App.2000), aff'd, 825 So.2d 233 (Ala. 2001), cert. denied, 536 U.S. 964, 122 S.Ct. 2675, 153 L.Ed.2d 847 (2002). '"A court may properly refuse to charge on a lesser included offense only when (1) it is clear to the judicial mind that there is no evidence tending to bring the offense within the definition of the lesser offense, or (2) the requested charge would have a tendency to mislead or confuse the jury."' Williams v. State, 675 So.2d 537, 540-41 (Ala.Crim.App.1996), quoting Anderson v. State, 507 So.2d 580, 582 (Ala.Crim.App.1987)."
"'Clark v. State, 896 So.2d 584, 641 (Ala.Crim.App.2000) (opinion on return to remand).'"Harbin v. State, 14 So.3d 898, 909 (Ala.Crim.App.2008)." Williams v. State, [Ms. CR-20-0294, Oct. 8, 2021] __ So.3d __, (Ala.Crim.App.2021).
Section 13A-8-43, Ala. Code 1975, provides:
"(a) A person commits the crime of robbery in the third degree if in the course of committing a theft he:
"(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance; or
"(2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property."Section 13A-8-5, Ala. Code 1975, defines fourth-degree theft of property as "[t]he theft of property which does not exceed five hundred dollars ($500) in value and which is not taken from the person of another."
"Whether a crime constitutes a lesser-included offense is to be viewed on a case-by-case basis, and based on the specific facts of each case." Woods v. State, 845 So.2d 843, 847 (Ala.Crim.App.2002). Surveillance footage from the CVS store showed the interaction between Wallace and Bishop. Wallace testified, "[Bishop] said, 'Bitch, give me your fucking money" and then "[Bishop] moved his hand around to the back, and he insinuated to [Wallace] that he had a weapon." (R. 257-58.)
Wallace also testified that she was "afraid" because she believed that Bishop was going hurt her if she did not comply. No reasonable interpretation of the evidence at trial, including the surveillance video, would have allowed the jury to conclude that Bishop did not threaten the imminent use of force if Wallace did not give him money from the register. See Cook v. State, 582 So.2d 592, 594 (Ala.Crim.App.1991) (recognizing that the proper inquiry is how the victim reacted to and perceived the threat); see also Kimp v. State, 546 N.E.2d 1193, 1194 (Ind. 1989) ("The sole eyewitness to this crime, cashier Vargas, testified that the defendant appeared to be pointing a concealed weapon at her and told her to 'put all the money in a bag or you're dead.' The defendant did not present any evidence. From this we find no serious evidentiary dispute on the element of the use or threat to use force; thus, the defendant's tendered instruction on theft was properly rejected."); Jackson v. State (No. 05-04-01852-CR, Jan. 20, 2006) (Tex. Ct. App. 2006) (not reported in South Western Reporter) ("Appellant argues he was entitled to jury instructions on theft from a person and misdemeanor theft because, he contends, there was some evidence in the record that he merely took the money without threatening the complainant or placing her in fear of imminent bodily injury. … [T]he evidence of how the offense occurred came from the testimony of the complainant and the other clerk. Both stated that appellant got the complainant to give him the store's money by displaying a concealed weapon in his jacket pocket or pretending to have a concealed weapon in his jacket pocket. The women feared appellant was going to hurt or sexually assault them. Their description of the offense necessarily included appellant's threatening the complainant or placing her in fear of imminent bodily injury. Thus, no evidence in the case showed appellant was guilty only of the lesser included offenses of theft from a person or misdemeanor theft."). Thus, the circuit court properly refused Bishop's request to instruct the jury on fourth-degree theft of properly, and Bishop is due no relief on this issue.
Bishop's reliance on Ex parte Hannah, 527 So.2d 675 (Ala. 1998), is misplaced. In Hannah, the petitioner presented evidence at trial indicating that he had tricked the victim into giving him money rather than, as the State's evidence showed, taking the money from the victim at gunpoint. No evidence at trial reasonably suggested that Bishop tricked Wallace into giving him the money.
II. Admission of Evidence
Bishop argues that the circuit court erred by admitting alleged hearsay statements made during his recorded interview and police body- camera footage. See State's Exhibits 2 and 3. Bishop argues that the hearsay statements were prejudicial and went to the ultimate issue in his case.
Bishop does not raise any Confrontation Clause issues on appeal.
"The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court's determination on that question will not be reversed except upon a clear showing of abuse of discretion." Ex parte Loggins, 771 So.2d 1093, 1103 (Ala. 2000). "Hearsay" is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Rule 801(c), Ala. R. Evid. Hearsay is generally not admissible unless it falls within one of the exceptions in Rule 803 or Rule 804, Ala. R. Evid. See Rule 802, Ala. R. Evid.
First, Bishop argues that the State should not have been allowed to play the portion of his recorded interview during which the detective said, "Stop lying to me. I know what happened and you know what happened." (Supp. R. 25-26.) Bishop argued that the statement went to the ultimate issue. The circuit court disagreed, characterizing the detective's statement as "police tactics" and allowed the statement. (Supp. R. 26.)
We agree with the circuit court that the detective's statement, "Stop lying to me. I know what happened and you know what happened," was "not hearsay because it was not offered for the truth of the matter asserted. Instead, the statement was an interrogation tactic used to elicit a confession." Knight v. State, 300 So.3d 76, 105 (Ala.Crim.App.2018). And the detective's statement did not go to the ultimate issue. See Rule 704, Ala. R. Evid. ("Testimony in the form of an opinion or inference otherwise admissible is to be excluded if it embraces an ultimate issue to be decided by the trier of fact.") Thus, Bishop is due no relief on this issue.
Next, Bishop argues that the body-camera footage contained "definitionally hearsay" statements from police dispatch to the arresting officer about whether Bishop "matched the description" of the robber. (Bishop's brief, p. 18.) The statements were offered to let Bishop know why he was being detained, not to identify Bishop as the robber, and they thus were not hearsay statements. See, e.g., McCray v. State, 548 So.2d 573, 576 (Ala.Crim.App.1988) (holding that the officer's testimony was not introduced to prove the truth of the matter asserted). Thus, Bishop is due no relief on this issue.
Finally, we note that the circuit court's admission of the evidence did not "probably, in fact," injuriously affect Bishop's substantial rights. (Bishop's brief, p. 25.) Bishop admitted to being at the CVS on that night. Wallace testified regarding Bishop's appearance on the night of the robbery. Thus, even if an error occurred, it was harmless. Rule 45, Ala. R. App. P.
III. Allen Charge
Bishop argues that the circuit court erred by giving an Allen charge. Bishop argues that the charge was "prematurely given" because, he said, the jury had been deliberating for only a few hours. (Bishop's brief, p. 28.)
The record shows that at around 11:00 a.m., the circuit court charged the jury and the jury began deliberations. After some discussion among all parties, the proceedings were held in recess and Bishop objected to the jury's being given an Allen charge. In response to Bishop's objection and the State stating its position that the charge should be given, the circuit court stated:
"THE COURT: Okay. Well, I don't know of any case law, and I think this jury panel is just as suited as any other jury panel.
"Now, if after some time has passed and they're not able to reach a verdict, then, and only then, we would consider going to a hung jury. But they received this case at 11:00. They went to lunch and came back. So I don't know that they have had it long enough, in my opinion.
"So I'm just going to see-I'm going to charge them, and I'm going to see if there's anything that the Court can do as far as recharging them on any law or if they want that at this point, and then I will give them the opportunity to go a little further with their deliberations.
"But your objection is noted for the record.
"[Defense counsel]: Thank you.
"THE COURT: Okay. If you will let them out.
"(At which time the jury was brought in and seated.)"(R. 412-13.) The circuit court then instructed the jury:
"THE COURT: Okay. That's everybody. [Foreman Juror] commented that I don't have my robe on. I do not have my robe on because it is time for you to robe up. This is the portion of the trial where you are the triers and the judges of the facts.
"I want to read something to you and then see if the Court can assist you in any way. I understand that you have
not been able to reach a verdict and that you believe that it is not likely that you would be able to arrive at one.
"Please listen closely to these instructions: The Court is not going to release you at this time. You should make further efforts to arrive at a verdict. Each juror is entitled to his or her opinion of the evidence. If you cannot agree a mistrial will be declared, and this case may have to be tried again.
"There is no reason to believe that another jury would have better or clearer evidence than this that has been presented to you. This does not mean that you should surrender an honest belief as to the weight or the effects of the evidence solely because of the opinion of other jurors or because of the importance of arriving at a decision.
"But you should give respectful consideration to each others' views and talk over any differences of opinion in a spirit of fairness and candor. If possible, you should resolve any differences and come to a common conclusion so that the case may be completed.
"If it will be helpful, I can recharge you on a part of the law or answer a question concerning the law only, not the evidence.
"It is natural that differences of opinions will arise. When they do, each juror should not only express his or her opinion but also the facts and reasons upon which he or she bases that opinion.
"By reasoning the matter out, it may be possible for all jurors to agree. What I have said to you must not be taken as an attempt on the part of the Court to require or force you to surrender your honest and reasonable beliefs based on the law and the evidence in this case. My sole purpose is to impress upon you your duty and the desirability and importance of reaching a verdict if you can consciously do so.
"Now, when you go to the back, if you have a question of law that I can answer for you or you would like to be recharged on any part of the law that I charged you on before, if you will write that down on a piece of paper and knock again and send that out to John, or if you know now, I will be happy to reread, recharge you on the law if you think that that would be helpful."(R. 413-16.)
The record is unclear about how much time passed between Bishop's objection and the circuit court's instruction.
This Court has stated:
"In Maxwell v. State, 828 So.2d 347 (Ala.Crim.App.2000), this Court discussed the issue of an Allen charge:
" '" '" 'The general rule in Alabama has been that it is not improper for the trial court to urge upon the jury the duty of attempting to reach an agreement or verdict as long as the judge does not suggest which way the verdict should be returned.'" King v. State, 574 So.2d 921, 927-28 (Ala.Crim.App.1990), quoting McMorris v. State, 394 So.2d 392 (Ala.Crim.App.1980), cert. denied, 394 So.2d 404 (Ala. 1981), cert. denied, 452 U.S. 972, 101 S.Ct. 3127, 69 L.Ed.2d 983 (1981). An Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896),
charge, also known as a "dynamite charge," is permissible if the language of the charge is not coercive or threatening. Grayson v. State, 611 So.2d 422, 425 (Ala.Crim.App.1992); King v. State, 574 So.2d at 928.'
"'"Gwarjanski v. State, 700 So.2d 357, 360 (Ala.Crim.App.1997). Further, '[w]hether an "Allen charge" is coercive must be evaluated in the "whole context" of the case.' Miller v. State, 645 So.2d 363, 366 (Ala.Crim.App.1994)." "'828 So.2d at 365. "'The Supreme Court and this court have held on numerous occasions that the "Allen" or "dynamite charge" is not error unless the language used is threatening or coercive.'" Miller v. State, 645 So.2d 363, 366 (Ala.Crim.App.1994), quoting Grayson v. State, 611 So.2d 422, 425 (Ala.Crim.App.1992).""M.H., 6 So.3d [41] at 47-48 [(Ala.Crim.App.2008)]." Petric v. State, 157 So.3d 176, 249 (Ala.Crim.App.2013).
We note, as does Bishop in his brief on appeal, that the record is unclear about how much time passed between Bishop's objection and the circuit court's Allen charge. Without more, this Court cannot determine whether it was improper for the circuit court to give the Allen charge. See, e.g., Henderson v. State, 248 So.3d 992, 1017 n.5 (Ala.Crim.App.2017) ("Henderson had the duty to provide this Court with a complete record on appeal, and the Court will not presume error from a silent record. E.g., Welch v. State, 63 So.3d 1275 (Ala.Crim.App.2010)."). And we note that the circuit court's Allen charge was straightforward and consistent with language this Court has approved. See, e.g., Adair v. State, 641 So.2d 309, 312-13 (Ala.Crim.App.1993) ("[T]he better practice when charging a deadlocked jury is to use Alabama Pattern Jury Instruction-Criminal I.8, entitled 'Hung Jury' ….").
Bishop is due no relief.
IV. Split Sentence
In his reply brief, Bishop argues that his five-year sentence for a Class C felony is illegal under § 15-18-8(a)(2), Ala. Code 1975, and that we should remand this case to correct the illegal split sentence. Bishop argues: "Despite appellate counsel's oversight in failing to raise this issue in the opening brief, this Court can address the legality of [Bishop's] sentence." (Bishop's reply brief, p. 19.)
"'[W]e have held that when the circuit court does not have the authority to split a sentence under the Split Sentence Act, § 15-18-8, Ala. Code 1975, "the manner in which the [circuit] court split the
sentence is illegal[,]" Austin v. State, 864 So.2d 1115, 1118 (Ala.Crim.App.2003), and that "[m]atters concerning unauthorized sentences are jurisdictional." Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994). Thus, this Court may take notice of an illegal sentence at any time. See, e.g., Pender v. State, 740 So.2d 482 (Ala.Crim.App.1999).'
"Enfinger v. State, 123 So.3d 535, 537 (Ala.Crim.App.2012). '"'"[A] trial court does not have [subject-matter] jurisdiction to impose a sentence not provided for by statute." '"' Ex parte McGowan, [Ms. 1190090, April 30, 2021] __ So.3d __, __ __ (Ala. 2021) (quoting Ex parte Butler, 972 So.2d 821, 825 (Ala. 2007), quoting in turn, Hollis v. State, 845 So.2d 5, 6 (Ala.Crim.App.2002)).Thrash v. State, [Ms. CR-20-0992, June 3, 2022] __ So.3d __, __ (Ala.Crim.App.2022). Section 15-18-8(a)(2), Ala. Code 1975, provides:
"(a) When a defendant is convicted of an offense, other than a sex offense involving a child as defined in Section 15-20A-4, that constitutes a Class A or Class B felony offense, and receives a sentence of 20 years or less in any court having jurisdiction to try offenses against the State of Alabama and the judge presiding over the case is satisfied that the ends of justice and the best interests of the public as well as the defendant will be served thereby, he or she may order:
"(1) That a defendant convicted of a Class A or Class B felony be confined in a prison, jail-type institution, or treatment institution for a period not exceeding three years in cases where the imposed sentence is not more than 15 years, and that the execution of the remainder of the sentence
be suspended notwithstanding any provision of the law to the contrary and that the defendant be placed on probation for such period and upon such terms as the court deems best.
"(2) That a defendant convicted of a Class A, Class B, or Class C felony with an imposed sentence of greater than 15 years but not more than 20 years be confined in a prison, jail-type institution, or treatment institution for a period of three to five years for Class A or Class B felony convictions and for a period of three years for Class C felony convictions, during which the offender shall not be eligible for parole or release because of deduction from sentence for good behavior under the Alabama Correctional Incentive Time Act, and that the remainder of the sentence be suspended notwithstanding any provision of the law to the contrary and that the defendant be placed on probation for the period upon the terms as the court deems best."(Emphasis added.)
Thus, we remand this case to the circuit court for that court to limit the split portion of Bishop's sentence to three years under § 15-18-8(a)(2). Smith v. State, 334 So.3d 250, 257 (Ala.Crim.App.2020) ("Based on the plain meaning of subsection 15-18-8(a)(2), Smith has a right to relief. When it decided to split Smith's 20-year sentences for his class C felony convictions, the circuit court had to impose 3-year split terms on those sentences."). Due return must be filed with this Court within 42 days of the date of this opinion and must include a transcript of the sentencing hearing conducted on remand as well as the circuit court's amended sentencing order.
AFFIRMED IN PART; REMANDED WITH INSTRUCTIONS.
Windom, P.J., and Kellum and McCool, JJ., concur. Cole, J., concurs in the result.