Opinion
CR-2022-1003
08-18-2023
STATE of Alabama v. Terrence SHAW
Steve Marshall, att’y gen., and Laura Irby Cuthbert, asst. att’y gen., for appellant. Zane L. Willingham of Griess, Shaw & Willingham, P.C., Eutaw; and Andrew A. Smith, Tuscaloosa, for appellee.
Steve Marshall, att’y gen., and Laura Irby Cuthbert, asst. att’y gen., for appellant.
Zane L. Willingham of Griess, Shaw & Willingham, P.C., Eutaw; and Andrew A. Smith, Tuscaloosa, for appellee.
KELLUM, Judge.
The State of Alabama appeals the Perry Circuit Court’s pretrial rulings pursuant to Rule 15.7(a), Ala. R. Crim. P., in the State’s case against Terrence Shaw. On April 27, 2017, Shaw was indicted for two counts of capital murder for shooting Tyrone Green and Johnny Walter, offenses defined as capital by § 13A-5-40(a)(10), Ala. Code 1975, and § 13A-5-40(a)(4), Ala. Code 1975, because two or more people were killed during one course of conduct and because the murders occurred during the course of a burglary. Shaw was also indicted for the attempted murder of Andrea Washington, a violation of § 13A-6-2, and § 13A-4-2, Ala. Code 1975.
In December 2021, the circuit court dismissed Count II of the indictment charging Shaw with violating § 13A-5-40(a)(4), murder made capital because it occurred during the commission of a burglary.
The crimes were alleged to have occurred on November 26, 2012.
Shaw was scheduled to be tried on August 15, 2022. A pretrial hearing was held before that date. At this hearing, the State moved in limine that the circuit court restrict Shaw’s counsel from introducing any evidence concerning the outcome of the trial of his codefendant, James Shaw. (Supp. R. 2-8.) (On May 4, 2022, James Shaw, Terrence’s brother, was found not guilty on all charges related to the deaths of Green and Walter and the shooting of Washington. (C. 453.)). The State also moved that it be allowed to introduce a fire report related to a fire that occurred at Shaw’s home less than 24 hours before the murders. Last, the State moved that the circuit court allow the State to call Officer Rodriguez Jones to testify. The circuit court denied the State relief on all issues; this appeal followed.
It appears that the reasons for the delay in this case were numerous pretrial motions filed by Shaw, the fact that Shaw was mentally evaluated, and COVID-19-related issues.
[1] Rule 15.7(b), Ala. R. Crim. P., provides that the State’s notice of appeal must be filed "before the defendant has been placed in jeopardy under established rules of law." The record showed that the jury had been empaneled before the State filed its notice of appeal, but the record was unclear as to whether that jury had been sworn. By order dated May 9, 2023, this Court remanded this case to the Perry Circuit Court for that court to clarify whether the jury had been sworn before the State’s notice of appeal had been filed. The circuit court certified to this Court that the jury had not been sworn; thus, the notice of appeal was timely pursuant to Rule 15.7(b), Ala. R. Crim. P.
Jeopardy attaches in a jury trial when a jury had been empaneled and sworn. See Ex parte Benford, 935 So. 2d 421 (Ala. 2006).
Rule 15.7(c), Ala. R. Crim. P., provides that pretrial appeals by the State "shall have preference in the appropriate appellate court and shall be diligently prosecuted."
I.
[2] The State first argues that the circuit court erred in holding that evidence of the outcome of Shaw’s codefendant’s trial was admissible in Shaw’s trial. Shaw’s brother, James Shaw, was found not guilty of the same charges for which Shaw was indicted. Shaw argues that this issue is not properly before this Court because, he says, the ruling was based on the State’s motion in limine, a ruling that is not appealable.
The record shows that the State orally moved in limine that Shaw not "mention anything about the codefendant’s trial, the outcome or anything like that." (Supp. R. 2.) The circuit court denied that request at the pretrial hearing.
In Alabama, the State has a limited right to appeal in a criminal case. "The right of the State to appeal is governed by § 12-12-70(c) and § 12-22-91, [Ala. Code 1975,] which govern appeals by the state after a statute or ordinance has been declared invalid, and by Rule 15.7, Ala. R. Crim. P., which provides for appeals of certain pretrial rulings that are adverse to the State." State v. Sullivan, 741 So. 2d 1125, 1126 (Ala. Crim. App. 1999). Rule 15.7(a), Ala. R. Crim. P., provides, in pertinent part:
"In any case involving a felony, a misdemeanor, or a violation, an appeal may be taken by the state to the Court of Criminal Appeals from a pre-trial order of the circuit court (1) suppressing a confession or admission or other evidence, (2) dismissing an indictment, information, or complaint (or any part of an indictment, information, or complaint), or (3) quashing an arrest or search warrant. Such an appeal may be taken only if the prosecutor certifies to the Court of Criminal Appeals that the appeal is not brought for the purpose of delay and that the order, if not reversed on appeal, will be fatal to the prosecution of the charge."
(Emphasis added.)
[3, 4] "This Court has a duty to notice jurisdictional defects ex mero motu. See Nunn v. Baker, 518 So.2d 711, 712 (Ala. 1987)." State v. Isbell, 955 So. 2d 476, 477 (Ala. Crim. App. 2006). Accordingly, we note that this issue does not involve a ruling "suppressing" evidence. Indeed, the circuit court did not suppress evidence but, instead, allowed the admission of Shaw’s evidence. According to the strict wording of the statutes and rule addressing the State’s right to appeal, the State can appeal only a pretrial ruling suppressing or excluding evidence not a ruling allowing evidence to be admitted. " ‘All statutes that authorize appeals are to be strictly construed,’ Dixon v. City of Mobile, 859 So. 2d 462, 463 (Ala. Crim. App. 2003), and ‘may not be enlarged or extended by judicial construction.’ State v. Gautney, 344 So. 2d 232, 234 (Ala. Crim. App. 1977)." State v. Billups, 223 So. 3d 954, 958-59 (Ala. Crim. App. 2016). This Court has strictly construed the language in Rule 15.7, Ala. R. Crim. P. See State v. Hubbard, 526 So. 2d 672 (Ala. Crim. App. 1988).
Hubbard was decided when a pretrial appeal by the State was governed by Rule 17, Temp. Ala. R. Crim. P. The substance of that Rule is now contained in Rule 15.7, Ala. R. Crim. P. The language in the Rule in Hubbard is the same as the current language in Rule 15.7.
In Commonwealth v. Cosnek, 575 Pa. 411, 836 A.2d 871 (2003), the Supreme Court of Pennsylvania considered whether the Commonwealth could appeal a pretrial ruling allowing the admission of Cosnek’s evidence. In discussing the rationale for not allowing the Commonwealth to appeal the ruling, that Court stated:
"This Court has consistently held that an accused has a fundamental right to present evidence so long as the evidence is relevant and not excluded by an established evidentiary rule. Commonwealth v. McGowan, 535 Pa. 292, 635 A.2d 113, 115 (1993); see also Commonwealth v. Ward, 529 Pa. 506, 605 A.2d 796, 797 (1992).
"….
"Were this Court to allow the Commonwealth to appeal rulings admitting defense evidence as of right, the accused would be forced to balance his right to a trial without delay with his fundamental right to present evidence. The chilling effect of such a choice would give the Commonwealth an unwarranted and unfettered influence over the defense case, a practice specifically disapproved in Lewis v. Court of Common Pleas of Lebanon County, 436 Pa. 296, 260 A.2d 184, 188 (1969) (holding that a prosecutor could not discourage a witness from talking with the defense attorney).
"An even more likely outcome would be a reluctance, if not a refusal, of the
defense to engage in the mutual pretrial discovery which is fostered by Pa. R. Crim. P. 573. In the Matter of Pittsburgh Action Against Rape, 494 Pa. 15, 428 A.2d 126, 130 (1981) (noting the benefits of liberal discovery rules) (superseded by statute); see also Dennis v. United States, 384 U.S. 855, 870, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966) (reasoning that ‘disclosure, rather than suppression, of relevant materials ordinarily promotes the proper administration of criminal justice.’). Without the ongoing and mutual discovery fostered by the Rule, the wheels of justice might well slow to a halt.
"….
"The Commonwealth’s ability to take an interlocutory appeal as of right from the suppression or exclusion of its own evidence is rooted in the particular burden which it bears to prove its case. The defense, in contrast, carries a particular privilege to retain control over its own evidence. Both interests are protected when we limit the application of Rule 311(d) to those ‘circumstances provided by law in which a pretrial ruling results in the suppression, preclusion or exclusion of Commonwealth evidence."
575 Pa. 411, 419, 836 A. 2d at 876-77.
The federal statute governing rights of the United States to appeal a pretrial ruling in a criminal case is governed by 18 U.S.C. § 3731 (2002). This section provides in pertinent part: "An appeal by the United States shall lie to a court of appeals from a decision or order of a district court suppressing or excluding evidence. …"
"Congress clearly contemplated when it placed drastic limits upon the Government’s right of review in criminal cases that it would be completely unable to secure review of some orders having a substantial effect on its ability to secure criminal convictions. This Court cannot and will not grant the Government a right to review which Congress has chosen to withhold."
Will v. United States, 389 U.S. 90, 97 n.5, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967).
Also, the Alabama Supreme Court has stated that a pretrial ruling on the State’s motion in limine is not an appealable order. The Alabama Supreme Court in State v. Fowler, 32 So. 3d 21, 25 (Ala. 2009), discussed its earlier holding in Ex parte King, 23 So. 3d 77 (Ala. 2009), and stated: "We held that … the trial court’s order denying the State’s motion in limine was not an appealable order. …"
For the above reasons, this issue is not properly before this Court in this State’s pretrial appeal. The State has no right to appeal a pretrial ruling refusing to exclude defense evidence. Thus, this issue is due to be dismissed.
II.
The State further argues that the circuit court erred in denying its motion to admit a fire report into evidence. The report contained a witness statement that referenced Shaw’s brother and codefendant, James Shaw. This report was more fully explained in Shaw’s motion to exclude this evidence which stated:
"1. During the trial of the Co-Defendant, James Shaw, the State introduced evidence of a fire of a mobile home owned by Donald Shaw at --- County Road 7, Marion, AL 36756. This mobile home served as the residence of James and Terrence Shaw.
"2. The Chief of the Marion Volunteer Fire Department testified that he saw no evidence to raise a suspicion of arson.
"3. The State’s proffer for the relevance of this evidence in the trial of James Shaw was that Gloria Curry/Gloria Sawyer allegedly overheard James Shaw threaten Tyrone Green on the day of his murder for burning down his trailer.
"4. The alleged statement of James Shaw is inadmissible hearsay in the case of Terrence Shaw. The State has produced no evidence providing a connection to the fire at the mobile home and any involvement of Terrence Shaw in the murders of Tyrone Green and Johnny Walters.
"5. The purported evidence lacks probative value and is highly prejudicial and inadmissible against the Defendant under [Rule] 402 and 403 of the Alabama Rules of Evidence."
(C. 363-64.)
At the pretrial hearing, the State moved that the circuit court allow it to introduce the fire report described in Shaw’s motion in limine. It asserted that Shaw was living at the mobile home where the fire occurred, that he was living with his brother James, that the report referenced a statement made by a witness, and that the witness said that she had heard James Shaw say that he was going to kill Tyrone Green because of the fire. (Supp. R. 16.) It argued that because the brothers were codefendants the statement of one could be attributed to the other brother pursuant to a conspiracy. The State further asserted that the report was relevant to show Shaw’s motive. In response to the State, Shaw argued:
"They’re trying to impute evidence of motive to our client through his brother when there’s no -- because everybody agrees there was no arson. There’s no suspicion of arson. They argued in the James Shaw case, well, James thought it was arson because of this. And that’s why there was a motive. They took a statement from our client at the time, and he said he did not believe the fire was arson.
"And so it’s not relevant in the trial of Terrence Shaw because there’s nothing in the James Shaw statement, which again as you’ll recall, comes in from Gloria Curry which was not given until 10 years after it was supposedly made that says that Terrence Shaw believed that it was arson, that Terrence Shaw was mad at Tyrone Green because of it. The fact that he lived in the mobile home, which we do not dispute, that doesn’t create a motive for him. That statement is just not relevant to the issues in this case as it relates to Terrence Shaw. That’s trying to try James Shaw’s case through Terrence."
(Supp. R. 17-18.) After the hearing, the circuit court issued a written order granting Shaw’s motion to prevent the State from referencing the fire report at trial. (C. 415.)
This order was issued before the State filed its notice of appeal.
[5] First, Shaw makes a novel argument on appeal concerning this issue. He asserts that, because the State sought to enter this evidence for purposes of motive and motive is not an element that the State has to prove, the State could not certify that the court’s ruling was fatal to its prosecution. (Shaw’s brief at pp. 15-16.)
However, this Court in addressing the significance of the State’s certification process of a pretrial appeal has stated: "The wording of Rule 15.7 lends support to the State’s argument that the certification provision in Rule 15.7(a) is not part of the notice of appeal and that failure to comply with that provision does not deprive this Court of jurisdiction to entertain an appeal." See State v. Hails, 814 So. 2d 980, 983 (Ala. Crim. App. 2000).
[6] On appeal, the State first argues that the evidence was admissible pursuant to Rule 404(b), Ala. R. Evid. Shaw argues that this Rule has nothing to do with the admissibility of this evidence because, he says, "he is not alleged to have done anything at all regarding the fire, or to have made a statement regarding the fire." (Shaw’s brief at p. 16.) The statement contained in the fire report was not made by Shaw but by his brother. Rule 404(b), Ala. R. Evid., does not address the admission of prior bad acts of a codefendant.
[7] "It is well settled that ‘[t]he 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)." Wilson v. State, 142 So. 3d 732, 787 (Ala. Crim. App. 2010).
[8–10] As stated above, the State asserted at the hearing that the statement of Shaw’s codefendant was admissible in Shaw’s trial because of a conspiracy and that the statement was admissible as proof of motive. The State argued: "The out-of-court statements of a non-testifying coconspirator may be admitted without showing the unavailability of the coconspirator and without violating the confrontation clause." (Supp. R. 17.) As this Court stated in Deutcsh v. State, 610 So. 2d 1212 (Ala. Crim. App. 1992), when addressing the admissibility of a codefendant’s statement:
" ‘It is well settled that before a co-conspirator's testimony may be admitted, there must be prima facie grounds for believing in the existence of the conspiracy. … While it is preferable that a co-conspirator testify after the prima facie showing of the existence of a conspiracy, such order of proof is not mandatory. The order of proof requirement is for the purpose of expediting the trial and saving the valuable time of the trial court, rather than protecting or securing any supposed right a defendant might have. Smith v. State, 8 Ala. App. 187, 62 So. 575 (1913).’
"Morton v. State, 338 So. 2d 423, 425 (Ala. Cr. App.) cert. denied, 338 So. 2d 428 (Ala. 1976). See also United States v. Richardson, 694 F.2d 251 (11th Cir. 1982); Annot., 46 A.L.R.3d 1148 at 141 (Supp. 1991) citing cases ‘recognizing or holding that conditional admission of extra judicial statements is proper, subject to subsequent fulfillment of requirement that conspiracy be proved.’
"The existence of the conspiracy must be proved by evidence which does not include the statements of the co-conspirator, and which may consist solely of circumstantial evidence.
" ‘ "This proof of the existence of the conspiracy must be independent of the statements of the defendant’s coconspirators …. The initial existence of a conspiracy may not be proved by the statements of the co-conspirators.’ Ingle v. State, 415 So. 2d 1225, 1228-29 (Ala. Cr. App. 1982).
" ‘Although the existence of a conspiracy may be and usually is shown through circumstantial evidence, Muller v. State, 44 Ala. App. 637, 642, 218 So. 2d 698, 703 (1968), cert. denied, 283 Ala. 717, 218 So. 2d 704 (1969), " ‘conspiracies cannot be established by a mere suspicion,’ and … relationships and associations between the parties which are natural and reasonable according to their habits and modes of life do not constitute evidence of conspiracy." Pharris v. Commonwealth, 198 Ky. 51, 55, 248 S.W. 230, 232 (1923).’
"Bright v. State, 485 So. 2d 398, 401-02 (Ala. Cr. App. 1986). ‘[T]o allow such testimony to go to the jury, a foundation must be laid by proof sufficient, in the
opinion of the judge presiding, to establish, prima facie, the existence of such conspiracy.’ Beech v. State, 203 Ala. 529, 530, 84 So. 753 (1919) (quoting McAnally v. State, 74 Ala. 9, 16 (1883)). ‘A conspiracy is rarely proven by positive or direct testimony but usually by circumstances.’ Muller v. State, 44 Ala. App. 637, 642, 218 So. 2d 698, 703 (1968), cert. denied, 283 Ala. 717, 218 So. 2d 704 (1969).
"….
"The quantum of proof required to demonstrate the existence of a conspiracy in order to permit the admission of the statements of the co-conspirators is that the proof must establish a prima facie case of conspiracy. 46 A.L.R.3d 1148 at § 5."
Deutcsh v. State, 610 So. 2d 1212, 1222-23 (Ala. Crim. App. 1992). See also Brooks v. State, 787 So. 2d 765, 773 (Fla. 2001) ("As in Sandoval [v. State, 689 So. 2d 1258 (Fla. 3d DCA 1997)], the trial court here should not have allowed [one codefendant’s] statements to be used against [another codefendant] to establish motive, absent any evidence of a conspiracy at the time the statements were made."
In this case, based on this Court’s decision in Deutcsh, supra, we cannot say that the circuit court abused its discretion in excluding the fire report. For these reasons, the State is due no relief on this claim.
III.
[11] The State next argues that the circuit court erred in excluding the testimony of Rodriquez Jones, a former officer with the Marion Police Department, who could testify to a "statement against interest" made by Shaw at the time he was arrested. It asserts that the circuit court erred in not allowing Officer Jones to testify because, it says, a prior statement had not been taken from Jones.
At the hearing, the contents of this statement were not identified. The specific statement is not mentioned in either brief, and, because this is a pretrial appeal, the record contains very little facts surrounding this issue. A good portion of the supplemental record is a transcript of testimony of a witness at James Shaw’s trial.
At the same pretrial hearing, Shaw moved that the circuit court exclude Officer Jones from testifying because, he argued, he had not been given notice that the witness would be testifying. Shaw argued: "As I stated here, one two - I have not had 72 hours from hearing that for the first time in my life. There is no way to prepare for that. There is no way to cross-examine for that, and we move that it be excluded." (Supp. R. 12.) He further asserted that not disclosing this witness violated the discovery order. The State asserted that Shaw was placed on notice concerning Officer Jones because, it said, Officer Jones’s name was mentioned in a statement given by Tameka White that, it says, was disclosed to Shaw. It appears that Officer Jones’s name was mentioned in the report but not what Jones had heard or could testify to at trial.
The State appears to argue that the sole basis for the trial court’s ruling on this issue was that Jones had not made a pretrial statement. However, it appears that another basis for the circuit court’s ruling was that the identity of this witness had not been disclosed to Shaw.
The record shows that in May 2017, Shaw filed an extensive motion for discovery. (C. 24-29.) In that motion, Shaw requested that he be given the names of all witnesses who were to testify at trial. (C. 25.) In July 2017, Shaw moved that the State be compelled to comply with discovery. (C. 41.) Shaw then moved for open file discovery. As part of this motion, Shaw requested the identities of the State witnesses. (C. 46.) The motion for open file discovery was granted. (C. 72.)
[12] The circuit court implicitly found that the State had violated its discovery order. A circuit court has broad discretion when determining sanctions for a discovery violation.
"A trial court may enter any order it ‘deems just under the circumstances’ whenever it learns that a party has failed to comply with its discovery order. Rule 18.5(a), A. R. Cr. P. (Temp.). Although Rule 18.5(a) provides that a trial court may prohibit the noncomplying party from introducing evidence not disclosed, this is an alternative remedy and is not mandatory. ‘The imposition of sanctions upon noncompliance with a court’s discovery order is within the sound discretion of the court.’ McCrory v. State, 505 So. 2d 1272, 1279 (Ala. Cr. App. 1986)."
Fortenberry v. State, 545 So. 2d 129, 142 (Ala. Crim. App. 1988). The circuit court’s ruling excluding Officer Jones’s testimony was consistent with the broad discovery orders that the court had issued in this case.
[13] Moreover, as Shaw argues, the State intended to call another witness, Tameka White, to testify to the same statements as Officer Jones. " ‘[T]he exclusion of admissible evidence does not constitute reversible error where the evidence "would have been merely cumulative of other evidence of the same nature, which was admitted." ’ Houston v. State, 565 So. 2d 277, 281 (Ala. Cr. App. 1990)." Nettles v. State, 683 So. 2d 9, 13 (Ala. Crim. App. 1996). Accordingly, the State is due no relief on this claim.
For the foregoing reasons, this appeal is hereby dismissed in part, and the judgment is affirmed.
APPEAL DISMISSED IN PART; AFFIRMED.
Windom, P.J., and McCool, Cole, and Minor, JJ., concur.