Opinion
CR-20-0804
12-17-2021
EX PARTE John GRANT (In re: State of Alabama v. John Grant)
Jennifer M. Holton, Montgomery, for petitioner. Steve Marshall, att’y gen., and Cameron G. Ball, asst. att’y gen., for respondent.
Petition for Writ of Mandamus (Montgomery Circuit Court No. CC-20-116); Gregory O. Griffin, Sr., Judge
Jennifer M. Holton, Montgomery, for petitioner.
Steve Marshall, att’y gen., and Cameron G. Ball, asst. att’y gen., for respondent.
On Application for Rehearing
PER CURIAM.
APPLICATION FOR REHEARING OVERRULED.
Windom, P.J., and Kellum, McCool, and Cole, JJ., concur. Minor, J., concurs specially, with opinion.
MINOR, Judge, concurring specially.
A Montgomery grand jury indicted John Grant for the murder of Earl Darl Mock, made capital because Grant allegedly shot Mock from inside a vehicle. See § 13A-5-40(a)(18), Ala. Code 1975. Grant moved to dismiss the indictment based on the "year-and-a-day rule" because Mock died more than 15 months after he was shot. The circuit court denied the motion, and Grant petitioned this Court for a writ of mandamus directing the Montgomery Circuit Court to set aside its order denying the motion to dismiss and to enter a new order granting that motion. This Court, bound by the Alabama Supreme Court’s decision in Ex parte Key, 890 So. 2d 1056 (Ala. 2003), granted Grant’s petition for a writ of mandamus and issued the writ by order on October 1, 2021.
The State of Alabama has applied for rehearing. Although nothing in the State’s rehearing application or supporting brief convinces me that this Court’s original decision overlooked or misapprehended any point of law or facts, see Rule 40(b), Ala. R. App. P., I write separately to note, as the State recognizes, that in 2003 the Alabama Supreme Court in Ex parte Key rejected the State’s arguments (1) that the legislature, by enacting the Alabama Criminal Code, abolished the common-law year-and-a-day rule and (2) that, even if the legislature did not, the Alabama Supreme Court should do so. I also write separately to emphasize that, as the Alabama Supreme Court stated over 18 years ago, the legislature, and not the judiciary, is the appropriate branch of government to modify or abolish the year-and-a-day rule.
"The year-and-a-day rule is deeply rooted in the common law. Its lineage is generally traced to the thirteenth century where the rule was originally utilized as a statute of limitations governing the time in which an individual might initiate a private action for murder known as ‘appeal of death.’ See, e.g., United States v. Jackson, 528 A.2d 1211, 1214 (D.C. 1987); Commonwealth v. Lewis, 381 Mass. 411, 409 N.E.2d 771, 773 (1980); People v. Stevenson, 416 Mich. 383, 331 N.W.2d 143,145 (1982); State v. Vance, 328 N.C. 613, 403 S.E.2d 495, 497 (1991); Commonwealth v. Ladd, 402 Pa. 164, 166 A.2d 501, 503 (1960); State v. Pine, 524 A.2d 1104, 1105 (R.I. 1987); Comment, Taming a Phoenix: The Year-And-A-Day Rule in Federal Prosecutions for Murder, 59 U. Chi. L. Rev. 1337, 1338 (1992). The ‘appeal of death’ was a private and vindictive action instituted by an interested party and derived from the Germanic custom of ‘weregild,’ or compensation for death. Id. ‘Appeal of death’ actions became obsolete and were abolished in 1819. Lewis, 409 N.E.2d at 772. By the eighteenth century, however, the year-and-a-day rule had been extended to the law governing public prosecutions so that a homicide prosecution could not be brought unless the victim died within a year and one day of the injury. Jackson, 528 A.2d at 1214; Lewis, 409 N.E.2d at 772.
"Though the rule began in England, its applicability to criminal prosecutions in this country was acknowledged by the United States Supreme Court in 1894 as follows:
" In cases of murder the rule at common law undoubtedly was that no person should be adjudged "by any act whatever to kill another who does not die by it within a year and a day thereafter…." And such is the rule in this country in prosecutions for murder, except in jurisdictions where it may be otherwise prescribed by statute.’
"Louisville, Evansville, & St. Louis R.R. Co. v. Clarke, 152 U.S. 230, 239, 14 S. Ct. 579, 581, 38 L.Ed. 422 (1894) (citations omitted) (civil wrongful death action)."
State v. Rogers, 992 S.W.2d 393, 396 (Tenn. 1999), aff'd, 532 U.S. 451, 121 S. Ct. 1693, 149 L.Ed. 2d 697 (2001).
A majority of this Court in Key v. State, 890 So. 2d 1043 (Ala. Crim. App. 2002), aff'd in part, rev’d in part, 890 So. 2d 1056 (Ala. 2003), in a separate opinion written by Judge Shaw, found persuasive the State’s argument "that, by enacting the Alabama Criminal Code, the Legislature intended to supersede the common-law year-and-a-day rule." 890 So. 2d at 1053 (Shaw, J., concurring in part and dissenting in part as to the rationale and concurring in the result). Judge Shaw reasoned:
"Section 1-3-1, Ala. Code 1975, provides:
" ‘The common law of England, so far as it is not inconsistent with the Constitution, laws, and institutions of this state, shall, together with such institutions and laws, be the rule of decisions, and shall continue in force, except as from time to time it may be altered or repealed by the Legislature.’
"(Emphasis added.)
"Pursuant to its constitutional authority to define criminal offenses and to fix the punishment for crime, the Alabama Legislature enacted the Alabama Criminal Code, which took effect January 1, 1980. The stated purpose of the Criminal Code was ‘[t]o provide an entirely new criminal code for the State of Alabama; defining offenses, fixing punishment; repealing numerous specific code sections and statutes that conflict herewith as well as all other laws that conflict with this act.’ Ala. Acts 1977, Act No. 607. See also § 13A-1-3, Ala. Code 1975; and § 13A-1-6, Ala. Code 1975, which states: ‘All provisions of this title shall be construed according to the fair import of their terms to promote justice and to effect the objects of the law, including the purposes stated in Section 13A-1-3.’
"Section 13A-1-4, Ala. Code 1975, provides:
" ‘No act or omission is a crime unless made so by this title or by other applicable statute or lawful ordinance.’
"The Commentary to § 13A-1-4 states, in part:
" ‘The original draft of this section included an explicit provision to abolish common law crimes, which is a feature of most modern criminal codes; but the Advisory Committee considered such provision impolitic and also, unnecessary under a comprehensive Criminal Code, so it was deleted. To the extent that modern crimes involve common law definitions, such definitions usually will be stated in the Criminal Code. To the extent that they require alteration, most, again, will be effected by the Criminal Code. Common law jurisdiction cannot be exercised as to purely statutory offenses, nor in cases of common law offenses for which punishment is prescribed by statute. Tucker v. State, 42 Ala. App. 477, 168 So. 2d 258 (1964). Thus, § 1-3-1, which continues in force the common law "except as from time to time it may be altered or repealed by the legislature," remains intact, although its future field of operation may be reduced.’
"(Emphasis added.)
"Section 13A-1-7(a), Ala. Code 1975, states in part:
" ‘The provisions of this title shall govern the construction of and punishment for any offense defined in this title and committed after 12:01 A.M. January 1, 1980, as well as the construction and application of any defense to a prosecution for such an offense.’
"The Commentary to § 13A-1-7 notes that ‘[a]fter the effective date of the Criminal Code, it will control the criminal law, both in the Criminal Code itself and in other provisions that define criminal offenses.’
"Section 13A-6-2(2), Ala. Code 1975, one of the statutes under which the ap- pellant in the present case was convicted, provides:
" ‘Under circumstances manifesting extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to a person other than himself, and thereby causes the death of another person.’
"(Emphasis added.) Section 13A-2-5, Ala. Code 1975, entitled ‘Causal relationship between conduct and results; relationship to mental culpability,’ states:
" ‘(a) A person is criminally liable if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was sufficient to produce the result and the conduct of the actor clearly insufficient.
" ‘(b) A person is nevertheless criminally liable for causing a result if the only difference between what actually occurred and what he intended, contemplated or risked is that:
" ‘(1) A different person or property was injured, harmed or affected; or
" ‘(2) A less serious or less extensive injury or harm occurred.
" ‘(c) When causing a particular result is a material element of an offense for which absolute liability is imposed by law, the element is not established unless the actual result is a probable consequence of the actor’s conduct.’
"(Emphasis added.) The Commentary to § 13A-2-5
" ‘Rules governing causation were not covered by Alabama statutes and only sporadically in the cases. There has been difficulty in formulating such rules because of the varying factual situations encountered in which two or more factors were the ‘cause’ of the result, especially homicide.
" ‘Following the lead of other modem criminal codes, this section is a modified "but for" test, with an express exclusion of those situations in which the concurrent cause was clearly sufficient to produce the result and the defendant’s conduct clearly insufficient. Cf. Proposed New Federal Criminal Code § 305, Proposed Revision Texas Penal Code § 6.04, Michigan Revised Criminal Code § 320, New Jersey Penal Code § 2C:2-3, Model Penal Code § 2.03. If the actual result is not within the contemplation of the actor, or within the area of risk of which he should have been aware, he is not deemed to have "caused" the result. But if the difference is only one concerning which person or what property would be affected by defendant’s act, or one of the degree of harm which would result, he is still held to have "caused" the result.
" ‘While this section may not be useful in all cases where causation must be explained, it is intended as an aid to clarification whenever it does apply. It is important to note that "but for" is a minimal requirement as there may be additional causal requirements imposed by the section defining the offense. Moreover, merely establishing causation does not necessarily establish criminality. The prosecution must still prove whatever particular mental culpability is required under the section under which the prosecution is brought.’
"Based on my examination of the Criminal Code, I can find no provision expressly altering or repealing the year-and-a-day rule. On the other hand, I can find no indication that the Legislature intended to retain the year-and-a-day rule as part of its definition of causation
in homicide cases. To the contrary, it is significant, I think, that the Legislature specifically adopted a modified ‘but for’ test of causation—a test that takes into consideration concurrent causes and that does not refer to any time limitations with respect to the imposition of criminal liability. I find persuasive the State’s argument that, by adopting such a specific definition of causation as part of a comprehensive criminal code, the Legislature intended to supersede application of the common law rule."
890 So. 2d at 1053-55 (Shaw, J., concurring in part and dissenting in part as to the rationale and concurring in the result). The Alabama Supreme Court rejected Judge Shaw’s reasoning on this point, however:
"We agree with Presiding Judge McMillan that when the Legislature reenacted the Criminal Code, it did not abolish the year-and-a-day rule. This holding is consistent with the principle that ‘ "[s]tatutes in derogation or modification of the common law are strictly construed…. Such statutes are presumed not to alter the common law in any way not expressly declared." ’ West Dauphin Ltd. P’ship v. Callon Offshore Prod., Inc., 725 So. 2d 944, 952 (Ala. 1998) (quoting Arnold v. State, 353 So. 2d 524, 526 (Ala. 1977) (emphasis omitted)). See, e.g., Ex parte Parish, 808 So. 2d 30, 33 (Ala. 2001) (‘Nothing in § 30-2-8.1, Ala. Code 1975, indicates the Legislature intended to abrogate the common-law rule of abatement. "If the legislature had intended to so act, that body would have made its intention evident and unmistakable." ’ (quoting Holmes v. Sanders, 729 So. 2d 314, 316-17 (Ala. 1999))). Because the Legislature has expressly adopted the common law as a ‘rule of decision’ in Alabama, and because the Legislature did not expressly abolish the year-and-a-day rule when it reenacted the Criminal Code, we hold that the year-and-a-day rule remains part of the common law of this State."
Ex parte Key, 890 So. 2d at 1060-61 (Ala. 2003) (footnotes omitted).
In Key, this Court unanimously tried to abolish the year-and-a-day rule. In the main opinion, written by Presiding Judge McMillan, this Court reasoned:
"In the context of common-law doctrines such as the year-and-a-day rule, there often arises a need to clarify or even to reevaluate prior opinions as new circumstances and fact patterns present themselves. ‘Such judicial acts, whether they may be characterized as "making" or "finding" the law, are a necessary part of the judicial business in States in which the criminal law retains some of its common law elements.’ Rogers v. Tennessee, 532 U.S. 451, 461, 121 S. Ct. 1693, 149 L.Ed. 2d 697 (2001). See also Dupuis v. Hand, 814 S.W.2d 340, 345 (Tenn. 1991) (This Court has ‘ "not hesitated to abolish obsolete common-law doctrines," ’ and we have recognized that ‘ "we have a special duty to do so where it is the Court, rather than the Legislature, which has recognized and nurtured" ’ the common-law rule. (Quoting Hanover v. Ruch, 809 S.W.2d 893 (Tenn. 1991).) This Court is in agreement with the decisions of other jurisdictions that have judicially abrogated the year-and-a-day rule on grounds that it is an out-dated relic of the common law. In deciding to abolish the common-law rule based on changed circumstances, including advancements in scientific and medical knowledge, general logic, and experience, we take note that the appellant, in brief, has failed to provide this Court with any sound reasons for retaining the rule, other than it is supported by current Alabama caselaw. That argument does not provide sufficient justification
for adherence to a rule that has completely outlived its intended purpose." Key, 890 So. 2d at 1050.
The Alabama Supreme Court, however, reversed this Court’s holding on that point:
"Merely abolishing the year-and-a-day rule, however, may serve only to replace one source of error with another.
" 'If a murder charge can be brought two years after a blow has been struck, will there ever be a time when the Court may declare that the bridge between the blow and death has now been irreparably broken? May the Commonwealth indict a man for murder when the death occurs ten years after the blow has fallen? Twenty years? … I don’t doubt that an expert of some kind can be found to testify that a slap in the face was the cause of a death fifteen years later.
" 'If there is one thing which the criminal law must be, if it is to be recognized as just, it must be specific and definitive.’
"State v. Minster, 302 Md. 240, 243-44, 486 A.2d 1197, 1198-99 (1985) (quoting Commonwealth v. Ladd, 402 Pa. 164, 199-200, 166 A.2d 501, 519-20 (1960) (Musmanno, J., dissenting)).
"The Supreme Court of Maryland, when confronted with the question whether it should abolish the year-and-a-day rule, observed that it had five alternatives: (1) retain the rule; (2) modify the rule and follow, for example, California in applying a three-years-and-a-day rule; (3) extend the rule to any length of time it chose—2, 5, or 10 years, or some other length of time; (4) change the rule from an irrebuttable presumption to a rebuttable presumption; or (5) simply abolish the rule. Minster, 302 Md. at 245, 486 A.2d at 1199. The Supreme Court of Maryland chose the first alternative and declined to abrogate the year-and-a-day rule because it found that
" ‘there is a great difference of opinion surrounding the appropriate length of the period after which prosecution is barred and some doubt whether the rule should exist at all. Consequently, we believe it is the legislature which should mandate any change in the rule …. The legislature may hold hearings on this matter; [it] can listen to the testimony of medical experts; and [it] may determine the viability of this rule in modern times.’
"Minster, 302 Md. at 245-46, 486 A.2d at 1199-1200.
"We agree with the Supreme Court of Maryland that this is a question most appropriately decided by the Legislature, not by the Court. See, e.g., Golden v. McCurry, 392 So. 2d 815, 817 (Ala. 1981) (‘After due and deliberate consideration, we hold that, even though this Court has the inherent power to change the common law rule of contributory negligence, it should, as a matter of policy, leave any change of the doctrine of contributory negligence to the legislature.’). While judicial abrogation of the year-and-a-day-rule might qualify as ‘a routine exercise of common law decision-making in which the court brought the law into conformity with reason and common sense,’ Rogers v. Tennessee, 532 U.S. 451, 467, 121 S. Ct. 1693, 149 L.Ed. 2d 697 (2001), it might also qualify as an instance in which ‘common-law judging became lawmaking.’ Rogers, 532 U.S. at 477, 121 S. Ct. 1693 (Scalia, J., dissenting) (emphasis omitted).
" ‘There are occasions when courts must correct or ignore or supply obvious inadvertences in order to give a law the effect which was plainly intended by the legislature, but we do not subscribe to the doctrine that the
judiciary can or should usurp the legislative function in a republican form of government.’
"Swartz v. United States Steel Corp., 293 Ala. 439, 454, 304 So. 2d 881, 895 (1974) (Merrill, J., dissenting). Although the year-and-a-day rule may appear archaic, the decision how best to replace the rule is a policy question best left in the capable hands of the Legislature, which has the tools and the special competency to make such prospective general rules."
890 So. 2d at 1062-63 (footnotes omitted).
As Chief Justice John Marshall explained: "It is emphatically the province and duty of the Judicial Department to say what the law is." Marbury v. Madison, 5 U.S. 137, 178, 1 Crunch 137, 2 L.Ed. 60 (1803). Although the decision in Ex parte Key has been criticized as a "missed opportunity," it remains controlling authority, which this Court cannot change or disregard. And because the legislature has not abrogated or modified the year-and-a-day rule in the almost two decades that have passed since the Alabama Supreme Court decided Ex parte Key, it seems unlikely that the Alabama Supreme Court will reconsider its decision. Cf. Neal v. United States, 516 U.S. 284, 295, 116 S.Ct. 763, 133 L.Ed.2d 709 (1996) ("Our reluctance to overturn precedents derives in part from institutional concerns about the relationship of the Judiciary to Congress. One reason that we give great weight to stare decisis in the area of statutory constraction is that ‘Congress is free to change this Court’s interpretation of its legislation.’ Illinois Brick Co. v. Illinois, 431 U.S. 720, 736, 97 S. Ct. 2061, 2070, 52 L.Ed. 2d 707 (1977)."); Kimble v. Marvel Ent, LLC, 576 U.S. 446, 455-56, 135 S.Ct. 2401, 192 L.Ed.2d 463 (2015) ("Respecting stare decisis means sticking to some wrong decisions. The doctrine rests on the idea, as Justice Brandeis famously wrote, that it is usually ‘more important that the applicable rule of law be settled than that it be settled right.’ Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406, 52 S. Ct. 443, 76 L.Ed. 815 (1932) (dissenting opinion) …. What is more, stare decisis carries enhanced force when a decision … interprets a statute. Then, unlike in a constitutional case, critics of our ruling can take their objections across the street, and Congress can correct any mistake it sees. See, e.g., Patterson v. McLean Credit Union, 491 U.S. 164, 172-173, 109 S. Ct. 2363, 105 L.Ed. 2d 132 (1989).").
See, e.g., Neil M.B. Rowe, The Year-And-A-Day Rule: A Common Law Rule Vestige That Has Outlived Its Purpose, 8 T.G.J.L.R. 1, 15 (2004) ("In Ex parte Key, The Alabama Supreme Court passed upon a prime opportunity to bring Alabama law into conformity with the changes that have transpired in the 750 years since the development of the year-and-a-day rule and to join the overwhelming majority of its sister-states that have rejected the anachronistic vestige of the common law. In adhering to the rule, the Supreme Court claimed to be reaffirming its commitment to stare decisis avoiding what it views to be an infringement on the province of the legislative branch. As a policy matter, the court’s decision was misguided. Its claim to judicial restraint is inconsistent when viewed in contrast to some of its other decisions, And its claimed restraint is excessive when viewed in the light of its earlier pronouncements and the approach other courts have taken to the nature of common law decision-making.").
As a member of the judicial branch, I am constitutionally limited in my ability to comment on the legislature’s choice of policy in that regard. But as this case shows, the year-and-a-day rule remains alive, and, if the legislature wants that rule changed, it must be the one to do so. See, e.g., Fla. Stat. § 782.035 ("The common-law rule of evidence applicable to homicide prosecutions known as the "year-and-a-day rule," which provides a conclusive presumption that an injury is not the cause of death or that whether it is the cause cannot be discerned if the interval between the infliction of the injury and the victim’s death exceeds a year and a day, is hereby abrogated and does not apply in this state.").