Opinion
1910306.
June 12, 1992. Rehearing Denied August 7, 1992.
Appeal from the Autauga Circuit Court, Nos. CC-89-101 and CC-89-103, Stephen W. Drinkard, J.
Maurice S. Bell, Montgomery, for petitioner.
James H. Evans, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for respondent.
We granted certiorari review in order to determine whether the trial court's ruling on the State's motion to consolidate was properly before the Court of Criminal Appeals on appeal and, if it was, to determine whether the trial court committed reversible error in entering that order, which violated Rule 15.4(b), A.R.Crim.P.Temp.
The defendant, Debra Joyce Clackler, was arrested, along with Owen Cooper, for the murder of Raybon Clackler. On November 17, 1989, the trial court entered an order setting the trial date for June 5, 1990. The trial court also ordered that all motions be filed by March 20, 1990. On May 21, 1990, the State filed a motion to consolidate the trials of Clackler and Cooper on the grounds that their indictments arose from the same act or transaction. The trial court scheduled a hearing on the motion for May 30, 1990. Clackler objected to the motion to consolidate. (R.T.Supp. 315.) At the conclusion of this hearing, the trial court granted the State's motion to consolidate.
On June 5, 1990, the consolidated trial began. The jury found Clackler and Cooper guilty of murder. On appeal, acting pursuant to Rule 10(f), A.R.App.P., Clackler moved on May 9, 1991, to supplement the original record with the transcript from the hearing on the motion to consolidate. The trial court granted the motion on May 9, 1991, and, on May 17, 1991, mailed the supplemental record to the Court of Criminal Appeals.
The Court of Criminal Appeals affirmed Clackler's conviction in an unpublished memorandum opinion on September 20, 1991, stating in pertinent part as follows:
"Clackler's contention that the trial court erred in granting the state's motion to consolidate, because (1) the trial court violated its own pre-trial order concerning the filing of pre-trial motions by allowing the state to file its motion late, and (2) it ordered consolidation in violation of A.R.Cr.P.Temp. 15.4(b) is procedurally barred, see Ex parte Frith, 526 So.2d 880 (Ala. 1987); Helms v. State, 478 So.2d 9 (Ala.Cr.App. 1985)."
The unpublished memorandum of the Court of Criminal Appeals is noted at 609 So.2d 454. The Court of Criminal Appeals on September 20, 1991, also issued a published opinion affirming Clackler's conviction, but discussing only an issue raised by her codefendant Cooper. See Clackler and Cooper v. State, 612 So.2d 1246 (Ala.Cr.App. 1991).
Clackler argues that the question regarding the motion to consolidate was properly before the Court of Criminal Appeals because, she says, she timely objected to the consolidation. The State argues that Clackler's consolidation claim is procedurally barred from review because the original trial record contained no objection to the motion to consolidate.
We hold that the ruling on the motion to consolidate was properly before the Court of Criminal Appeals, because we conclude that Clackler made a timely objection to the motion. Pursuant to Rule 10(f), A.R.App.P., Clackler moved to supplement the record with the transcript from the hearing on the motion to consolidate. The trial court granted the motion, and the supplemental record clearly contains Clackler's objection to the motion to consolidate. Therefore, the ruling on the motion to consolidate was properly before the Court of Criminal Appeals.
We now consider whether the trial court committed reversible error in failing to comply with the mandatory language of Rule 15.4(b), A.R.Crim.P.Temp.
Temporary Rule 15.4(b) provided:
"If defendants are charged in separate indictments, informations, or complaints, the court, on its own initiative or on motion of any party, may, no later than seven (7) days prior to trial, order that the defendants be joined for the purposes of trial if the defendants could have been joined in a single indictment, information, or complaint. Proceedings thereafter shall be that same as if the prosecution initially had been under a single indictment, information, or complaint. However, the court shall not order that the defendants be tried together without first providing the defendants and the prosecutor an opportunity to be heard."
(Emphasis added.)
"[T]he purpose of Rule 15.4(b), Alabama Temporary Rules of Criminal Procedure, can only be served by strict compliance with it." Ex parte Jones, 473 So.2d 545, 546 (Ala. 1985).
Where the trial court orders a joinder of defendants, the trial court's order must be made no later than seven days before the trial. Faircloth v. State, 471 So.2d 485, 492 (Ala.Cr.App. 1984), aff'd, 471 So.2d 493 (Ala. 1985).
The trial court's order joining the defendants for trial came only six days before the trial. The trial court committed reversible error in failing to strictly comply with Rule 15.4(b), A.R.Crim.P.Temp. Therefore, the judgment of the Court of Criminal Appeals is reversed and the cause is remanded for that court to order a new trial.
REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES, ADAMS and INGRAM, JJ., concur.
MADDOX and HOUSTON, JJ., dissent.
I do not disagree with the majority's holding that the defendant did properly raise the legal question whether the trial judge abused his discretion in ordering a consolidation of the defendant's case with that of a codefendant. The supplemental record filed in the Court of Criminal Appeals shows that the defendant specifically objected to having her case consolidated.
I also do not disagree with the majority's holding that "[w]here the trial court orders a joinder of defendants, the trial court's order must be made no later than seven days prior to trial." Temp. Rule 15.4(b) specifically states that consolidation orders must be made "no later than seven (7) days prior to trial," and it is clear from the record here, as the majority finds, that "only 6 days had elapsed between consolidation and the commencement of trial."
The problem I have with the majority's holding is that it addresses an issue that was never presented to the trial judge. The defendant, insofar as I can determine, did not raise in the trial court the point that Temp. Rule 15.4 required that seven days elapse between the granting of a motion to consolidate and the start of the trial. I have read the supplemental record of the hearing conducted by the trial judge when he entertained the defendant's objection to being tried jointly, and I find that the record does contain a general objection to the judge's consolidation of her case with that of the codefendant, but I can find no place where the defendant either alleged, or showed, that she was entitled to have seven days intervene between the date of the consolidation order and her trial. Clearly, she did not move to sever and raise the point specifically so that the judge could reset the trial date. Consequently, I would hold as the Court of Criminal Appeals did, that defendant's claim on this point was procedurally barred.
Having said the foregoing, I would point out that the defendant could raise, in the Court of Criminal Appeals, whether the trial court abused its discretion in ordering a consolidation of her case, because she did object to the consolidation, stating her reasons. I do not believe, however, that her general objection to the consolidation was broad enough to include such specific grounds as the failure of the trial court to follow its own pre-trial order in allowing the State to file its motion late, and the violation of the seven-day rule upon which the majority relies. In other words, I believe that the defendant should have raised these grounds in the trial court and before trial, and that she would be precluded from presenting them for the first time on appeal to the Court of Criminal Appeals; therefore, I must respectfully dissent.
HOUSTON, J., concurs.