Summary
In State v. Starks, 366 So.3d 994, 995 (Ala.Crim.App.2022), this Court examined Rule 13.5(c)(1) and stated: "[T]here is no pretrial means to dismiss the charges against a defendant based on the insufficiency of the evidence."
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CR-21-0048
05-06-2022
STATE of Alabama v. Rosie Mae STARKS
Steve Marshall, att'y gen., and John J. Davis, asst. att'y gen., for appellant. Patrick A. Arrington, Huntsville, for appellee.
Steve Marshall, att'y gen., and John J. Davis, asst. att'y gen., for appellant.
Patrick A. Arrington, Huntsville, for appellee.
KELLUM, Judge.
The State of Alabama appeals the Montgomery Circuit Court's pretrial ruling dismissing the charges against Rosie Mae Starks. See Rule 15.7, Ala. R. Crim. P.
In April 2019, Starks was indicted for intentionally aiding or attempting to aid Jimmy Lee Hill in escaping from a penal facility, Red Eagle Honor Farm ("Red Eagle"). See § 13A-10-34, Ala. Code 1975. In September 2021, Starks moved to dismiss the charges against her, supporting her motion with an affidavit in which Hill stated that Starks was not aware of his intent to escape and that he had told Starks that he had a "24-pass" from Red Eagle. (C. 36.)
The circuit court held a hearing on Starks's motion to dismiss. Starks argued that the charges should be dismissed based on the contents of Hill's affidavit. The State argued that the case should go to a jury. On October 18, 2021, the circuit court dismissed the charges against Starks without prejudice. (C. 39.) The State moved the circuit court to reconsider its dismissal. It argued that "the Alabama appellate courts have consistently held that a motion to dismiss based upon any ground other those listed in Rule 13.5(c)(1), is not proper and cannot be granted." (C. 45.) On October 19, 2021, the State filed a timely notice of appeal to this Court.
According to Rule 15.7(b), Ala. R. Crim. P., the State has seven days to appeal a pretrial ruling dismissing the charges against a defendant.
On appeal, the State argues that the circuit court acted beyond the scope of Rule 13.5, Ala. R. Crim. P., when it dismissed the charges against Starks based on the insufficiency of the evidence. Starks argues that the circuit court did not abuse its discretion in dismissing the charges based on insufficient evidence.
Rule 13.5(c)(1), Ala. R. Crim. P., provides: "(1) A motion to dismiss the indictment may be based upon objections to the venire, the lack of legal qualifications of an individual grand juror, the legal insufficiency of the indictment, or the failure of the indictment to charge an offense."
This Court has recognized that there is no pretrial means to dismiss the charges against a defendant based on the insufficiency of the evidence. In State v. Bethel, 55 So. 3d 377 (Ala. Crim. App. 2010), we addressed this issue and stated:
In its brief, the State also argues that this case is not governed by the holding in Doseck v. State, 8 So. 3d 1024 (Ala. Crim. App. 2008), or Ankrom v. State, 152 So. 3d 373 (Ala. Crim. App. 2011), because the issue does not involve a pretrial ruling on a "pure question of law." In both of those cases, the courts were presented with questions as to whether the defendant's conduct could ever constitute a violation of the charged statutes. Unlike those cases, however, the question here was based on whether the court believed Starks had no knowledge that Hill escaped. Such an issue is based purely on a credibility determination.
"In State v. Foster, 935 So. 2d 1216 (Ala. Crim. App. 2005), we stated:
" ‘Rule 13.5(c)(1) does not provide for the dismissal of an indictment based on the insufficiency of the evidence or, as in this case, a possible lack of evidence. See State v. Edwards, 590 So. 2d 379 (Ala. Crim. App. 1991) (establishment of the corpus delicti requires proof of facts by the State so entwined with the merits of the case that a decision as to whether it had been proved should not be made before trial but should be postponed until trial); State v. McClain, 911 So. 2d 54 (Ala. Crim. App. 2005) (trial court cannot dismiss the indictment based on a lack of evidence).’
" 935 So. 2d at 1216–17. See State v. Anderson, 8 So.3d 1033 (Ala. Crim. App. 2008). See also United States v. Sharpe, 438 F.3d 1257, 1263 (11th Cir. 2006) (‘It is well-settled that "a court may not dismiss an indictment ... on a determination of facts that should have been developed at trial." United States v. Torkington, 812 F.2d 1347, 1354 (11th Cir. 1987).’)
"....
"The circuit court impermissibly dismissed the indictment against Bethel for two reasons. As this Court has previously held, Rule 13.5 does not permit the dismissal of an indictment based on insufficient evidence. Thus, the circuit court erred when it dismissed the charge against Bethel based on the insufficiency of the evidence. Further, because an inmate taking part in the community-corrections program may be charged with first-degree escape under the appropriate circumstances, the circuit court likewise could not dismiss the indictment against Bethel on this ground. In reaching this determination, however, we do not express an opinion as to the efficacy of the first-degree-escape charge against Bethel. That determination
is best left to a jury or other finder of fact."
55 So. 3d at 379-80. See State v. Robertson, 8 So. 3d 356 (Ala. Crim. App. 2008).
Our holding in Bethel is consistent with federal caselaw. The United States Court of Appeals for the Eleventh Circuit has stated: "In ruling on a motion to dismiss for failure to state an offense, a district court is limited to reviewing the face of the indictment and, more specifically, the language used to charge the crimes. ... It is well-settled that ‘a court may not dismiss an indictment ... on a determination of facts that should have been developed at trial.’ " United States v. Sharpe, 438 F.3d 1257, 1263 (11th Cir. 2006).
In fact, this Court first recognized this principle in State v. Edwards, 590 So. 2d 379 (Ala. Crim. App. 1991), when it addressed this issue as it related to Rule 15.5(c)(1), Ala. R. Crim. P. Temp (now Rule 13.5(c)(1), Ala. R. Crim. P.):
The Alabama Rules of Criminal Procedure became effective on January 1, 1991, and replaced the Temporary Rules of Criminal Procedure.
"Establishing the corpus delicti requires proof of facts by the state so entwined with the merits of the case that a decision as to whether it had been proved should not be made prior to trial but should be postponed until trial. We think that our conclusion is in keeping with good practice and with the intentions of the rules."
The Alabama Supreme Court has recognized only one exception to this rule of law. In Ex parte Worley, 102 So. 3d 428 (Ala. 2010), the Supreme Court held that, although the circuit court dismissed the charges against Worley based on a pretrial motion that argued the lack of sufficiency of the evidence, the State failed to argue that that motion was not filed at the appropriate time. The Supreme Court held that the State invited the error:
"The State should have argued to the trial court that the appropriate time for it to consider Worley's motion to dismiss would have been at the conclusion of the State's case, not before the trial, and that, moreover, when the time to consider the motion did come, the motion should be denied for the following reasons, thereby setting forth the proffer. Instead, the State proceeded immediately to a discussion of the evidence it expected to be presented at trial, without advising the trial court that its proffer was premature and that it would be error for the trial court to rely on it."
102 So. 3d at 434.
Unlike the situation in Ex parte Worley, in this case the State did not argue the sufficiency of the evidence but repeatedly cited the court to the appropriate caselaw and said that a jury should make the determination regarding the sufficiency of the evidence. In its motion to reconsider its dismissal, the State cited the law as set out in Bethel. The State did not invite the error.
Accordingly, based on this Court's decision in Bethel and the cases cited above, we hold that the circuit court erred in granting Starks's pretrial motion to dismiss the charges against her based on the lack of intent to commit the crime, i.e., the lack of sufficiency of the evidence. Accordingly, the circuit court's ruling dismissing the charges is reversed and that court is directed to restore Starks's case to its active docket.
REVERSED AND REMANDED.
Windom, P.J., and McCool, Cole, and Minor, JJ., concur.