The Appellate Corner

• Citation: Vol. 86 Pg. 0424
• Year: 2025
• Pages: 0424

THE APPELLATE CORNER
Vol. 86 No. 1 Pg. 424

Winter 2025

Marc A. Starrett

Marc A. Starrett is an assistant attorney general for the State of Alabama and represents the state in criminal appeals and habeas corpus in all state and federal courts. He is a graduate of the University of Alabama School of Law. Starrett served as staff attorney to Justice Kenneth Ingram and Justice Mark Kennedy on the Alabama Supreme Court, and was engaged in civil and criminal practice in Montgomery before appointment to the Office of the Attorney General. Among other cases for the office, Starrett successfully prosecuted Bobby Frank Cherry on appeal from his murder convictions for the 1963 bombing of Birmingham's Sixteenth Street Baptist Church.

J. Thomas Richie

J. Thomas Richie is a partner at Bradley Arant Boult Cummings LLP, where he co-chairs the class action team. He litigates procedurally-complex and high-stakes matters in Alabama and across the country. Richie is a 2007 summa cum laude graduate of the Cumberland School of Law and former law clerk to the Hon. R. David Proctor of the United States District Court for the Northern District of Alabama.

Recent Criminal Decisions - Marc A. Starrett

From the 11th U.S. Circuit Court of Appeals

Oral Pronouncement of Sentence

U.S. v. Brown, No. 23-12339 (11th Cir. Dec. 4, 2024): The district court was not required to orally pronounce each individual discretionary condition of supervised release. By expressly referencing "the mandatory and standard conditions adopted by the court in the Middle District of Florida," the court provided the defendant with notice that it was imposing those standard conditions and gave him an opportunity to object or seek clarification.

Capital Punishment; Nitrogen Hypoxia

Grayson v. Comm'r, Alabama Dep't of Corr., 121 F.4th 894 (11th Cir. 2024), cert. denied, Grayson v. Hamm, No. 24-5993, 2024 WL 4846625 (U.S. Nov. 21, 2024): The district court correctly concluded that the death row inmate failed to show he was likely to succeed on his claim that Alabama's nitrogen hypoxia execution protocol violated the Eighth Amendment.

From the Supreme Court of Alabama

Probation Revocation; Hearsay

Ex parte Nesbitt, No. SC-2023-0884 (Ala. Oct. 4, 2024): The state failed to produce sufficient nonhearsay evidence to support a probation revocation based on a charge of shooting into an occupied building. A detective's hearsay testimony regarding what witnesses told him during the investigation was the primary basis for showing that the probationer committed the alleged offense. Evidence that the probationer fled from the scene, though admissible as consciousness-of-guilt evidence, was insufficient to connect him to the alleged offense.

From the Alabama Court of Criminal Appeals

Ala. R. Crim. P. 32; Sentence Enhancement

Parker v. State, No. CR-2024-0300 (Ala. Crim. App. Nov. 8, 2024): The circuit court did not err in summarily dismissing the postconviction petitioner's tenth petition as untimely and successive under Ala. R. Crim. P. 32.2. The petitioner's claim that the state failed to properly prove his prior convictions for sentence enhancement under the Alabama Habitual Felony Offender Act, Ala. Code § 13A-5-9, was a nonjurisdictional claim subject to preclusion under Rule 32.2. The Court of Criminal Appeals noted that the circuit court had previously adopted measures to prevent the petitioner from refiling the same claims, and urged the circuit court to enforce those measures and, if necessary, adopt new ones to prevent further litigation.

Domestic Violence

Scheuing v. State, No. CR-2022-0684 (Ala. Crim. App. Sept. 27, 2024): The evidence supported the defendant's convictions of first-degree domestic violence (stalking) and second-degree domestic violence (burglary), violations of Ala. Code §§ 13A-6-130 and 13A-6-131. The defendant and the victim were married at the time of the offenses, which triggered the domestic violence statutes. The evidence showed the defendant repeatedly called the victim from unfamiliar phone numbers and physically injured her while forcing his way into her home.

Amendment to Indictment; Double Jeopardy

Hammock v. State, No. CR-2024-0333 (Ala. Crim. App. Nov. 8, 2024): Although the defendant's indictment charged the manner of committing the offense of obstructing governmental relations in the conjunctive, there was no error in amending the indictment pursuant to Ala. R. Crim. P. 13.5 to remove one alleged manner of committing the offense. The Court of Criminal Appeals also took judicial notice that the defendant's convictions of both resisting arrest and second-degree assault, violations of Ala. Code §§ 13A-10-41 and 13A-6-21, constituted double jeopardy, as resisting arrest was a lesser-included offense of second-degree assault.

Amendment to Complaint; Trial De Novo

State v. Shiver, No. CR-2023-0604 (Ala. Crim. App. Nov. 8, 2024): The state's amendment of a complaint to allege driving under the influence of alcohol under Ala. Code § 32-5A-191(a)(2), instead of the original offense of driving under the influence of a substance other than alcohol or a controlled substance under Ala. Code § 32-5A-191(a)(5), did not charge an additional or different offense and did not prejudice the defendant. The circuit court, hearing the case on appeal from the district court for a trial de novo, erred in dismissing the complaint. The Court of Criminal Appeals noted that under Ala. R. Crim. P. 30.2 and Ala. Code § 12-12-72, the defendant could have appealed directly to it from the district court's refusal to dismiss the complaint. Instead, the defendant chose to appeal to the circuit court for a trial de novo, thus beginning the proceedings anew, and could no longer rightly complain that she had not received reasonable notice of the amended charge in district court.

Impermissible Vehicle Lights

Helms v. State, No. CR-2023-0812 (Ala. Crim. App. Nov. 8, 2024): The defendant's truck, equipped with digital screens that projected scrolling electronic images, violated the statutory prohibition against equipping a motor vehicle with impermissible lights under Ala. Code § 32-5-241. Ala. Code § 32-5-240 requires motor vehicles traveling on a state highway to be equipped with certain lights, and § 32-5-241 permits certain additional lights. The digital screens were not required by § 32-5-240 and did not qualify as one of the permissible additional lights under § 32-5-241.

Recent Civil Decisions - Thomas Richie

From the Supreme Court of Alabama

Stay of Proceedings

Ex parte Moore, No. SC-2024-0377 (Ala. Oct. 25, 2024): The plaintiffs petitioned the Supreme Court of Alabama for (1) a writ of mandamus directing the trial court to dissolve a stay of final judgment entered in 2018 and (2) a writ of prohibition restraining the court from holding a second trial on the merits of the matter or entering any future orders. Because the stay had been in place for six years despite numerous attempts by the plaintiffs to lift it, the court concluded that the stay was immoderate and beyond the trial court's discretion. Therefore, the court issued a writ of mandamus directing the trial court to dissolve the stay. Further, because a second trial would allow for relitigation of issues that were finally determined six years ago, the court issued a writ of prohibition directing the trial court to vacate the order for a second trial and restricting the court from issuing any future orders that would wind up the litigation.

Redemption

Hayden v. Newsome Law, LLC et al., No. SC-2024-0412 (Ala. Oct. 25, 2024): In a suit to redeem property that was previously owned by his father, the plaintiff argued that he should not have to pay a judgment lien on the property. The trial court dismissed the action on the basis that all judgment liens that had attached to the property at the time of the sheriff's sale were revived against the plaintiff. The Supreme Court of Alabama reversed the trial court's dismissal, stating that, under Alabama Code § 6-5-253(b), all prior judgments and liens are explicitly exempted in redemption actions by children of the debtor. However, because the plaintiff had named the current property owner's law firm as a party to the suit, and because the law firm was not the purchaser of the property against whom the right of redemption lies, the court affirmed the trial court's judgment to the extent it dismissed the law firm as a party.

Attorneys' Fees

Daugherty v. Baker, No. SC-2024-0412 (Ala. Nov. 8, 2024): After an attorney was asked to step down as counsel in a matter where he represented an ex-wife in her efforts to recover alimony in exchange for a contingency fee, the attorney moved to recover more than $100,000 in attorneys' fees. The trial court dismissed the attorney's claim for fees on the basis that the contingency fee contract was void against public policy under Rule 1.5(d)(1) of the Alabama Rules of Professional Conduct, which forbids contingency-fee arrangements in domestic relations matters. On appeal, the Supreme Court of Alabama affirmed the trial court's dismissal, noting that the attorney did not present sufficient Alabama authority to refute the application of the prohibition in Rule 1.5(d)(1) to the matter. Further, although the attorney attempted to argue that he should be entitled to legal fees even if the contract was not enforceable based on the theory of quantum meruit, the court noted that he never pleaded that claim, and thus held that it was not a proper basis for reversing the trial court's judgment. Therefore, the court affirmed the trial court's...