Summary
In Edwards, "this Court held that the vehicular-homicide statute did not state an offense of strict liability and that the court should instruct the jury on one of the culpable mental states set forth in the Criminal Code at § 13A-2-2 (the mental states exhibited by persons acting `knowingly,' `recklessly,' or in a `criminally negligen[t]' manner) if the evidence before the [c]ourt supports such an instruction."
Summary of this case from In re StateOpinion
No. 1991502.
Decided January 12, 2001. Rehearing Denied March 30, 2001.
Appeal from Covington Circuit Court, (CC-95-286); Court of Criminal Appeals, (CR-96-1542).
Mark John Christensen, Andalusia, for petitioner.
Bill Pryor, atty. gen., and Andy S. Poole, asst. atty. gen., for respondent.
Julia Marie Edwards was convicted of vehicular homicide, under § 32-5A-192, Ala. Code 1975. The Court of Criminal Appeals affirmed, without an opinion, but with two dissenting opinions. Edwards v. State, 816 So.2d 92 (Ala.Crim.App. 2000). We granted certiorari review. Edwards challenges her conviction by arguing that the statute as written does not state a required element of mental culpability and that the trial court erred in refusing to instruct the jury on a mental state. We agree. We reverse the judgment of the Court of Criminal Appeals and render a judgment of acquittal.
On March 8, 1995, Edwards was rushing her six-month-old son, who had been sick for several days, to a doctor's office. Earlier that day, Edwards had telephoned the baby's doctor because of the child's poor condition. At that time, she made an appointment for the baby to see the doctor. Edwards testified that her son's condition worsened. She called the doctor again to explain his symptoms. The doctor told Edwards she should bring the baby to the doctor's office as soon as possible. While en route to the doctor's office, Edwards testified, the baby was making disturbing noises and his eyes rolled backward. She testified that she feared he was dead. Edwards drove faster than the speed limit. She attempted to pass a vehicle in front of her. In doing so, she crossed a double yellow line marking a no-passing zone. Her vehicle collided with an oncoming vehicle, and the driver of that other vehicle was killed. There was no alcohol or drug use involved in the accident.
Edwards was indicted for manslaughter, a violation of § 13A-6-3, Ala. Code 1975, and vehicular homicide, a violation of § 32-5A-192, Ala. Code 1975. At trial, Edwards requested that on the charge of vehicular homicide the jury be instructed that in order to convict her it must find she had the mental state of criminal negligence. The state argued that the charge of vehicular homicide is a strict-liability offense and that no instruction as to mental state was necessary. The trial court refused to instruct the jury on a culpable mental state with regard to the vehicular-homicide charge. The jury was instructed on the elements of vehicular homicide; manslaughter; and criminally negligent homicide, a lesser included offense as to manslaughter. Edwards was convicted on the vehicular-homicide charge and was sentenced to three years' imprisonment. However, Edwards was acquitted on the charges of manslaughter and criminally negligent homicide, which require proof of a "reckless" mental state and a "criminally negligent" mental state, respectively. Edwards moved for a judgment of acquittal, which the trial court denied.
The vehicular-homicide statute, § 32-5A-192, under which Edwards was convicted, states:
"(a) Whoever shall unlawfully and unintentionally cause the death of another person while engaged in the violation of any state law or municipal ordinance applying to the operation or use of a vehicle, or vessel, as defined in Section 33-5-3, or to the regulation of traffic or boating, shall be guilty of homicide when the violation is the proximate cause of the death.
"(b) Any person convicted of homicide by vehicle or vessel shall be fined not less than five hundred dollars ($500) nor more than two thousand dollars ($2,000), or shall be imprisoned for a term not less than one year nor more than five years, or may be so fined and so imprisoned."
(Emphasis added.)
Edwards contends that "unlawfully" describes conduct rather than a state of mind. She argues that the language of the statute implies strict liability because it states no requirement of a culpable mental state. She notes that all other homicide statutes in the Code of Alabama express clear, categorical mental-state requirements. Thus, she claims, the trial court, in charging the jury on vehicular homicide, which is punishable as a felony, was required to instruct the jury on a culpable mental state.
Vehicular homicide carries a punishment of incarceration from one year to five years. Section 13A-5-6, Ala. Code 1975, lists the term of punishment for a Class C felony as "not more than 10 years or less than 1 year and 1 day." Section 13A-5-7, Ala. Code 1975, lists the term of punishment for a Class A misdemeanor as "not more than one year." Thus, vehicular homicide is analogous to a Class C felony because of the authority conferred by the statute to impose punishment commensurate with the punishment applicable to a Class C felony.
The State, however, argued in the trial court that vehicular homicideis a strict-liability offense. It argued that no criminal intent is needed to commit vehicular homicide and that the statutory term "unlawfully" means "without excuse or justification." Thus, the State claimed, when a person violates the traffic code, and a death is caused as a result of the violation, the offense of vehicular homicide has been committed, regardless of whether any criminal intent is involved.
The Court of Criminal Appeals, in affirming Edwards's conviction, however, concluded in its unpublished memorandum that the term "unlawfully" in § 32-5A-192 describes the state of mental culpability necessary for the offense of vehicular homicide. The court determined that "unlawfully" is defined under the statute as "without legal excuse or justification." In its unpublished memorandum, the court relied on its previous opinion in Burnett v. State, 807 So.2d 573 (Ala.Crim.App. 1999), in which it had stated that "the culpable mental state of `unlawfully' must fall on the continuum of culpability somewhere between `knowingly' and `criminal negligence.'" 807 So.2d at 575 (citing Ex parte Long, 600 So.2d 982 (Ala. 1992)).
We have today reversed the judgment in Burnett v. State. See Ex parte Burnett, 807 So.2d 586 (Ala. 2001).
In the past, Justice Cook has voiced concern over the constitutionality of the vehicular-homicide statute. See Ex parte Beck, 690 So.2d 346 (Ala. 1997) (Cook, J., concurring specially); Ex parte Knowles, 689 So.2d 832 (Ala. 1997) (Cook, J., concurring specially). In Knowles, Justice Cook wrote:
"I write specially to express my concern that a statute that punishes an act of simple negligence as a felony raises serious constitutional questions. . . . [W]e should consider whether [the] conviction under § 32-5A-192, based on acts that constitute no more than simple negligence, violates the right to due process guaranteed by the United States and Alabama Constitutions."
Justice Cook stated that "[s]ubjecting nonculpable simple negligent conduct to criminal penalties as severe as those provided in § 32-5A-192, without requiring a culpable mental state, raises serious constitutional questions." Id. at 834. However, the record in this present case does not support a challenge to § 32-5A-192 on constitutional grounds and, therefore, we do not further consider this issue.
A statute creating a criminal offense, with the exception of a strict-liability statute, requires a culpable mental state. Section 13A-2-4(b), Ala. Code 1975, provides:
"Although no culpable mental state is expressly designated in a statute defining an offense, an appropriate culpable mental state may nevertheless be required for the commission of that offense, or with respect to some or all of the material elements thereof, if the proscribed conduct necessarily involves such culpable mental state. A statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, states a crime of mental culpability."
(Emphasis added.)
The Alabama Criminal Code defines the following terms relating to culpable mental states:
"(1) INTENTIONALLY. A person acts intentionally with respect to a result or to conduct described by a statute defining an offense, when his purpose is to cause that result or to engage in that conduct.
"(2) KNOWINGLY. A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware
that his conduct is of that nature or that the circumstance exists.
"(3) RECKLESSLY. A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates a risk but is unaware thereof solely by reason of voluntary intoxication, as defined in subdivision (e)(2) of Section 13A-3-2, acts recklessly with respect thereto.
"(4) CRIMINAL NEGLIGENCE. A person acts with criminal negligence with respect to a result or to a circumstance which is defined by statute as an offense when he fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. A court or jury may consider statutes or ordinances regulating the defendant's conduct as bearing upon the question of criminal negligence."
§ 13A-2-2, Ala. Code 1975. The commentary to § 13A-2-2 states:
Our consideration of the commentary to § 32-5A-192 is tempered by § 1-1-14(b), Ala. Code 1975, which states that "[a]ll historical citations and notes set out in this Code are given for the purpose of convenient reference, and do not constitute part of the law." In any event, we find this commentary persuasive on the question whether the term "unlawfully" in § 32-5A-192 provides a mental state.
"This section attempts to identify, define and reasonably delimit the main culpable mental states involved in the criminal law. The four states are `intentionally,' `knowingly,' `recklessly' and `criminal negligence'; and unless the offense is one of strict liability, at least one of these mental states is essential for liability."
(Emphasis added.) The commentary to § 13A-2-2 shows that the Legislature delineated and defined these four particular terms of mental culpability in order to alleviate any confusion in applying varying concepts of mental states in the Criminal Code. It is also notable that, in explaining the four culpable mental states set out in the Criminal Code, the commentary describes "term[s] of mental culpability," including the term "unlawfully," as being "necessarily difficult to articulate, [and] sometimes . . . vaguely or only partly defined, or otherwise . . . imprecise or inconclusive, unclear or ambiguous, even confusing or contradictory, or overrefined with technical, obscure and often subtle, if not dubious, distinctions."
As provided in § 13A-2-4(b), a statute must "clearly indicat[e]" an intent by the Legislature to impose strict liability. Nothing in § 32-5A-192 clearly indicates that the Legislature intended for this statute to impose strict liability for the commission of vehicular homicide. The commentary to § 13A-2-4 states, "An express statement is required in the statute defining the offense if strict liability is being imposed." Section 32-5A-192 was first enacted in 1980, after the enactment of § 13A-2-4 in 1977. If a strict-liability offense was intended, we can presume that the Legislature would have made an express statement to that effect. Ex parte Phillips, 771 So.2d 1066 (Ala. 2000). Therefore, we conclude that the Legislature did not intend for vehicular homicide to be a strict-liability offense, and that some degree of mens rea is required.
In its original enactment, the vehicular-homicide statute contemplated a range of punishment and used terms consistent with misdemeanors and felonies. This statute, the former § 32-5A-192(b), was declared unconstitutional because of its joinder of misdemeanors and felonies, in Whirley v. State, 481 So.2d 1151 (Ala.Crim.App. 1985). In 1983, the statute was amended to delete the provision allowing the offense to be punished as a misdemeanor. See 1983 Ala. Acts 959, Act No. 83-620, § 1 (effective July 29, 1983).
The Court of Criminal Appeals, as previously noted, determined in its unpublished memorandum in this case that the mental culpability for vehicular homicide could be found in the term "unlawfully" (relying onBurnett v. State, supra). The court in Burnett defined "unlawfully" as "without legal excuse or justification." 807 So.2d at 576. In Burnett, however, only two of the judges on the Court of Criminal Appeals agreed that "unlawful" was the actual mental culpability required by § 32-5A-192. Judge McMillan concurred in the result, stating that he "[did] not believe that the mere inclusion of the word `unlawfully' in the statute supplies the requisite mental state," but that the defendant's conduct must constitute something more than mere simple negligence. 807 So.2d at 578. Judges Cobb and Fry dissented. Judge Cobb wrote that "the word `unlawfully' describes a person's conduct, not a person's state of mind." 807 So.2d at 582. Judge Cobb stated that "[t]he main opinion is correct in determining that our vehicular homicide statute should require a culpable mental state, for without such a requirement the vehicular homicide statute imposes a severe criminal liability upon the happening of a certain set of circumstances, namely, a death caused by a person who commits a traffic violation." 807 So.2d at 582 -83. Judge Fry wrote in his dissent in Burnett:
"The main opinion, with its conclusion that `"unlawfully," as it is used in § 32-5A-192, Ala. Code 1975, means "without legal excuse or justification,"' pulls and stretches bits and pieces of various legal definitions to attempt to arrive at a constitutionally definable state of mental culpability. However, the weaving is too thin, and like so many gossamer threads holding together an ethereal garment, the result is more apparent than real."
807 So.2d at 585 -86.
The State argues, however, that § 13A-2-3, Ala. Code 1975, applies. That section provides:
"The minimum requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which he is physically capable of performing. If that conduct is all that is required for commission of a particular offense, or if an offense or some material element thereof does not require a culpable mental state on the part of the actor, the offense is one of `strict liability.' If a culpable mental state on the part of the actor is required with respect to any material element of an offense, the offense is one of `mental culpability.'"
Under this statute, the State argues, the minimum requirement necessary to violate § 32-5A-192 is a "voluntary act or . . . omission." Thus, so the State contends here, the vehicular-homicide statute requires, at a minimum, a voluntary act or omission and unlawful conduct and provides that the result of the voluntary and unlawful act or omission is a culpable mental state that is something more than mere negligence.
In the trial court, the State argued that § 32-5A-192 is a strict-liability statute.
While § 13A-2-3 refers to a person's performance of a voluntary act or omission as a minimum requirement for criminal liability, that statute applies to all offenses, including strict-liability offenses. We agree with the dissenting opinion of Judges Cobb and Fry in Burnett, to the extent it rejects the view that the word "unlawfully" supplies an element of intent. However, the fact that § 13A-2-3 applies to strict-liability offenses does not end our inquiry. Because § 32-5A-192 cannot be classified as a strict-liability offense, § 13A-2-3 does not support the State's position.
This Court has previously grappled with the question of what degree of culpability is required by § 32-5A-192. See Ex parte Jordan, 486 So.2d 485 (Ala. 1986); Ex parte Long, 600 So.2d 982 (Ala. 1992). Both in Jordan and in Long, the defendant had been indicted for intentional murder, in violation of § 13A-6-2, Ala. Code 1975, and the facts supported an instruction on lesser included offenses. Section 13A-1-9 provides the following requirements for an instruction on, or a conviction of, a lesser included offense:
These difficulties in answering that question stem from the fact that we are dealing with a statute that at its inception was a hybrid covering both misdemeanors and felonies. See n. 4.
"(a) A defendant may be convicted of an offense included in an offense charged. An offense is an included one if:
"(1) It is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged; or
"(2) It consists of an attempt or solicitation to commit the offense charged or to commit a lesser included offense; or
"(3) It is specifically designated by statute as a lesser degree of the offense charged; or
"(4) It differs from the offense charged only in the respect that a less serious injury or risk d of injury to the same person, property or public interests, or a lesser kind of culpability suffices to establish its commission.
"(b) The Court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense."
In Long, we quoted the rule governing instructions on lesser offenses:
"`An individual accused of the greater offense has a right to have the court charge on the lesser offenses included in the indictment, when there is a reasonable theory from the evidence supporting his position. A court may properly refuse to charge on lesser included offenses only (1) when it is clear to the judicial mind that there is no evidence tending to bring the offense within the definition of the lesser offense, or (2) when the requested charge would have a tendency to mislead or confuse the jury. In fact, our decisions are to the effect that every accused is entitled to have charges given, which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, however weak, insufficient, or doubtful in credibility.'"
600 So.2d at 986 (quoting Chavers v. State, 361 So.2d 1106, 1107 (Ala. 1978); citations omitted).
In Jordan, the defendant asked for an instruction on vehicular homicide, § 32-5A-192, as a lesser included offense as to murder. The trial judge refused and instructed only on murder, manslaughter, and criminally negligent homicide. Jordan was convicted of murder and was sentenced to 40 years in the penitentiary.
This Court held that, under the facts there presented, vehicular homicide was a lesser included offense as to murder and that an instruction on vehicular homicide would have been appropriate. However, because the jury had been instructed on the lesser offenses of manslaughter and criminally negligent homicide and returned a verdict of guilty on the murder charge, this Court held that the failure to instruct on vehicular homicide was harmless error. Jordan, 486 So.2d at 489. The Court said vehicular homicide was a lesser included offense as to murder because the same facts that would have established the crime of murder, or fewer facts, would have established the offense of vehicular homicide, see § 13A-1-9(a)(1), or a lesser kind of culpability was required than was required to establish murder, see § 13A-1-9(a)(4).
In Long, the defendant requested an instruction on vehicular homicide as a lesser included offense as to murder, but the trial court denied the request, charging only on murder, manslaughter, and criminally negligent homicide. Long was convicted of manslaughter and was sentenced to 18 years' imprisonment. This Court found Long indistinguishable from Jordan on the issue of the propriety of an instruction on vehicular homicide as a lesser included offense as to murder. Long, 600 So.2d at 985. Then, the Court noted that in Jordan, manslaughter had been rated as more culpable than vehicular homicide and that the murder verdict in Jordan made it unnecessary for the Court to rate the culpability of conduct falling below manslaughter. But, in Long, where the defendant had been found guilty of manslaughter and acquitted of murder, it was necessary to stratify the degrees of culpability because, if vehicular homicide fell in between manslaughter and criminally negligent homicide, then, for all appearing, the jury might have convicted the defendant of vehicular homicide instead of manslaughter, if the jury had been instructed on vehicular homicide, and, if the jury had done so, then the defendant would have received a lesser sentence.
This Court in Long, noting the more severe punishment available for vehicular homicide than for criminally negligent homicide, rated vehicular homicide as more culpable than criminally negligent homicide and concluded:
"Because vehicular homicide is the next lesser included offense under manslaughter, at least under the circumstances presented here, the failure to instruct on vehicular homicide cannot be harmless error, as it was in Jordan. Nothing in the jury's verdict supports the contention that it could not have returned a verdict on that offense instead of manslaughter if it had been given the opportunity, or that any finding implicit in the jury's verdict necessarily precludes a verdict on homicide by vehicle. By returning a verdict on manslaughter, the jury has found that Long acted recklessly, but that finding could also support a verdict of vehicular homicide. Therefore, the affirmance by the Court of Criminal Appeals is inconsistent with Jordan, at least as we reinterpret the relative degrees of culpability of vehicular homicide and criminally negligent homicide, and that court's judgment is due to be reversed."
In order to apply a level of intent commensurate with the maximum punishment of five years on a conviction of vehicular homicide, Long holds that there must be some culpability above criminal negligence. Id. Criminal negligence is conduct that causes one not to perceive a risk that is of such a degree that the failure to perceive it constitutes a gross deviation from the standard of care that would be experienced by a reasonable person in the same situation. § 13A-2-2(4), Ala. Code 1975. Criminally negligent homicide is a Class A misdemeanor punishable by imprisonment for not more than one year, § 13A-5-7(a)(1), Ala. Code 1975, and by a fine not more than $2,000, § 32-5-12(a)(1), Ala. Code 1975. One tier above the culpability of criminally negligent conduct is the culpability involved in reckless conduct, defined as conduct undertaken or committed with an awareness of, and a conscious disregard for, a substantial and unjustifiable risk of such a degree that to disregard it constitutes a gross deviation from the standard of care that would be exercised by a reasonable person in the same situation. § 13A-2-2(3), Ala. Code 1975. Manslaughter grounded upon a defendant's recklessly causing death is a Class B felony, punishable by a term of up to 20 years and a fine not to exceed $10,000. § 13A-5-6, Ala. Code 1975; § 13A-5-11. In Long, we stated in dictum that conduct in violation of the Rules of the Road, ranging from reckless driving to failure to exercise care and driving upon the sidewalk, could support a conviction of vehicular homicide, with punishment by imprisonment for not less than one year nor more than five years. § 32-5A-192(b), Ala. Code 1975. That would permit conduct associated with a misdemeanor or a traffic violation to be punished as a felony when it causes death.
Faced with the problematic phraseology "unlawfully and unintentionally" and with the settled provisions of our criminal law fastening different punishments to varying degrees of intent associated with wrongdoing, we are obliged to construe § 32-5A-192, if possible, in harmony with these principles, so as to achieve the legislative intent of punishing vehicular homicide. A statute should be construed not only in light of its language but also in light of its purpose, its object, its relation to other laws, and the conditions that may arise under its provisions.State ex rel. Richardson v. Morrow, 276 Ala. 385, 162 So.2d 480 (1964). We cannot conclude that by enacting this statute the Legislature intended to displace the general statutes governing homicides. See 1983 Ala. Acts 959, Act No. 83-620, § 2 (providing that the vehicular-homicide statute is supplemental to other laws not inconsistent with that Act). The question whether a principle of law that would provide multiple bases for charging the same conduct, with varying degrees of punishment, violates the right to equal protection guaranteed under the Fourteenth Amendment to the United States Constitution is not here presented.
Edwards, while driving at a speed exceeding the legal speed limit, attempted to pass a vehicle in front of her, and in so doing, crossed a double yellow line marking a no-passing zone. The dictum in Long suggests that such conduct, when it can be characterized as more culpable than criminal negligence (i.e., as conduct undertaken or committed by one who fails to perceive a risk that is of such a degree that the failure to perceive it constitutes a gross deviation from the standard of care that would be exercised by a reasonable person in the same situation) and as less culpable than reckless conduct (i.e., conduct undertaken or committed by one who is aware of a substantial and unjustifiable risk but consciously disregards it), constitutes vehicular homicide.
At the conclusion of the presentation of the evidence, the trial court stated:
"The standard charge under this statute suggests that the court charge on one of the mental states set forth in the Criminal Code. So the committee establishing the Pattern Jury Instructions [(Criminal)] clearly believes that a culpable mental state of some sort is necessary and suggests that any mental state other than intentional conduct would suffice based upon whatever the evidence in the case might be. The Code itself says that no statute will be deemed to be a strict-liability offense unless the statute makes it absolutely clear that strict liability is intended. So looking at that particular standard in the Code itself, what do you make of the word `unlawful'? . . . What does the word `unlawfully' add to the statute if it is not some requirement of one of the culpable mental states set forth in [sic; by?] the Legislature in the Criminal Code? . . . Is `unlawfully' just a redundancy or does it mean something else?"
The State responded by challenging the precedential value of committee comments and contending that the vehicular-homicide statute was a strict-liability offense. The trial court ultimately concluded that the vehicular-homicide statute "covers any unintentional conduct which may violate the law and therefore, it's broader than criminally negligent homicide." The trial court then gave a charge dealing with vehicular homicide, a charge that adhered strictly to the text of the statute, and it rejected Edwards's attempt to have the court charge the jury on criminal negligence as a requisite mental state. Edwards did not request an instruction telling the jury that, as dictum in Long suggests, the intent must fall somewhere between criminal negligence and reckless conduct in order to support a conviction for vehicular homicide.
The jury in Edwards's case was charged on manslaughter and on criminally negligent homicide as a lesser included offense as to manslaughter, and on vehicular homicide. The jury found Edwards guilty of only vehicular homicide. We conclude that the trial court's initial reservations about tying the requisite mental state to the word "unlawfully" were sound. We endorse the "Use Note on Mens Rea Element" that accompanies the Alabama pattern jury instruction applicable to § 32-5A-192; that note states that "unintentional" is not defined in the Code but that the committee drafting the instruction assumes that word to refer to all forms of mens rea except that described by the word "intentional." The Use Note then refers to the previously referenced defined terms governing mens rea elements — "intentionally," "knowingly," "recklessly," and "criminal negligence." Then, the Use Note correctly concludes:
Because § 32-5A-192(b) uses the word "unintentionally," § 13A-2-2(1), defining "intentionally," has no field of application.
"The judge should insert the appropriate mens rea element considering the indictment and the evidence before the court. `There are few, if any, strict liability offenses in this Criminal Code. . . .' Ala. Code § 13A-2-3 Commentary. See also § 13A-2-4(b)."
Alabama Pattern Jury Instructions: Criminal, 14-4 to 14-6 (3d ed. 1994). When the indictment charges the appropriate mens rea element and the trial court finds the evidence sufficient to support a finding of that element, the sentence imposed upon a convicted defendant should not exceed the punishment appropriate for such conduct under other provisions of the Criminal Code. We reject the dicta in Long suggesting that the culpability of the crime of vehicular homicide must fall between criminal negligence and recklessness. We overrule any other aspect of Long that conflicts with this opinion.
Justice Maddox, dissenting, 816 So.2d at 111, expresses his views on the legislative intent behind § 32-5A-192, Ala. Code 1975. His doing so underscores the fact that this case turns on one's conception of legislative intent. However, the fact that this state has long punished as second-degree manslaughter conduct committed during the commission of a misdemeanor that results in death and has imposed for that conduct a maximum punishment of imprisonment for one year, lends little, if anything, to an understanding of the legislative intent behind § 32-5A-192, Ala. Code 1975. The fact that the United States Supreme Court long ago upheld, against constitutional challenge, Alabama's wrongful-death statute, with its rule allowing punitive damages in a civil proceeding for conduct that does not rise above simple negligence, lends little, if any, support for the view that the Legislature in 1983, by enacting § 32-5A-192, intended to punish, by fines and imprisonment from one to five years, conduct commensurate with the most minimal level of a violation of law.
See Pippin v. State, 19 Ala. App. 384, 387, 97 So. 615, 617-18 (1923) (cited in Justice Maddox's dissenting opinion), where the defendant was sentenced to serve one year.
See Louis Pizitz Dry Goods Co. v. Yeldell, 274 U.S. 112 (1927), also cited in Justice Maddox's dissenting opinion.
Justice Maddox states in his dissent: "[I]t appears to me that the Legislature had the power to adopt a statute that would meet society's needs to preserve human life and which would punish an individual for causing the death of another, even though the wrongdoer may not have possessed a culpable mental state at the time." 816 So.2d at 111. (Emphasis added.) However, the power of the Legislature to enact a strict-liability offense is not here at issue. As previously noted, § 13A-2-4(b) states that a statute will create a strict-liability offense only if the statute clearly shows the Legislature intended to create such an offense; § 32-5A-192 shows no such clear indication.
Justice Maddox also states: "I believe the Legislature intended to enact a statute that did exactly that [punish individuals for mere carelessness] when it adopted § 32-5A-192, Ala. Code 1975." To come to this conclusion, one must read the word "unintentionally" as used by the Legislature in § 32-5A-192 as embracing even the most minimal level of conduct contrary to law. The earlier version of § 32-5A-192 was found constitutionally defective because it provided levels of punishment ranging from misdemeanor level to felony level. Had the Legislature in 1983 opted to deal with the constitutional issue by deleting the provision for punishment for more than one year, one could have concluded that the Legislature intended to punish only conduct at the most minimal level of offense contrary to law. However, the statute was amended so as to eliminate any punishment for a misdemeanor, i.e., any punishment for less than one year, but it retained the provision for punishment from one to five years. Hence, the more reasonable assumption as to legislative intent is that the Legislature drafted § 32-5A-192 to punish conduct above the most minimal level of offense contrary to law.
See n. 4.
Justice Maddox's dissent suggests in a footnote that the definitions in the Criminal Code are not applicable to § 32-5A-192. The 1983 amendment to what is codified as § 32-5A-192 (1983 Ala. Acts 959, No. 83-620, § 2) provides that the act is supplemental to other laws not inconsistent with it. The Legislature used the word "unintentionally" in a statute expressly declared to be supplemental to other laws not inconsistent with it, in a setting where research reveals no definition of "unintentionally" in the Code and indicates that the only definition of "intentional" appears to be in § 13A-2-2. The Legislature indicated its intent by stating that what is now § 32-5A-192 supplements other laws not in conflict; this statement supports the view that the categories of criminal intent set forth in § 13A-2-2 apply to § 32-5A-192, notwithstanding the reference in § 13A-2-2 that applies them to the Criminal Code.
Edwards's indictment did not describe a necessary culpable mental state, and the court refused her request for an instruction on a culpable mental state. An indictment under § 32-5A-192(b) should charge an appropriate mental state based on § 13A-2-2(2) to (4). Because Edwards was acquitted of both manslaughter (ruling out recklessness) and criminal negligence, the court should have granted Edwards's postjudgment motion for a judgment of acquittal.
Accordingly, we reverse the judgment of the Court of Criminal Appeals and render a judgment of acquittal.
REVERSED AND JUDGMENT RENDERED.
Hooper, C.J., and Houston and England, JJ., concur.
Johnstone, J., concurs specially.
See, J., concurs in the result.
Maddox, J., dissents.
Justice Brown was a member of the Court of Criminal Appeals when that court considered this case.
I concur in the main opinion, but subject to a caveat. Because no constitutional challenge is procedurally properly before us, our opinion is not written either to decide or to anticipate any constitutional challenge. Our opinion does not decide whether or not the State's compliance, and the trial court's compliance, with the rule announced in this case will cure or foreclose any due process, equal protection, or other constitutional infirmities in the vehicular homicide statute or in any prosecution pursuant to that statute. Likewise neither our opinion nor this special concurrence of mine suggests whether or not any such constitutional infirmities do or may exist.
I concur in the result of the main opinion; however, I write briefly to explain why I disagree, in part, with the rationale of that opinion.
The main opinion finds error in the failure of the court to instruct the jury "on a culpable mental state" and also appears to conclude that the indictment was fatally flawed because it "did not describe a necessary culpable mental state." 816 So.2d at 109. I do not agree that the indictment was flawed.
The Alabama Rules of Criminal Procedure govern the form and content of indictments. Rule 13.2(a), Ala.R.Crim.P., provides:
"The indictment . . . shall be a plain, concise statement of the charge in
ordinary language sufficiently definite to inform a defendant of common understanding of the offense charged and with that degree of certainty which will enable the court, upon conviction, to pronounce the proper judgment."
The appellate courts of this State have held that an indictment is sufficient if it conforms to the language of the statute on which it is based. See Ex parte Harper, 594 So.2d 1181 (Ala. 1991); Inmon v. State, 585 So.2d 261 (Ala.Crim.App. 1991); see also 1 Hugh Maddox, Alabama Rules of Criminal Procedure § 13.0 at 427 (3d ed. 1999).
The main opinion considers the "`Use Note on Mens Rea Element' that accompanies the Alabama pattern jury instruction applicable to § 32-5A-192," 816 So.2d at 107, and apparently concludes that the word "unintentionally," appearing in § 32-5A-192, Ala. Code 1975, encompasses the "knowing," "reckless," and "negligent" mens rea elements. I agree with that conclusion.
I believe the indictment conformed to the language of the statute by charging that the defendant had "unintentionally" caused the death of the victim. Therefore, I believe the indictment was sufficient to "inform [the] defendant . . . of the offense charged." Rule 13.2(a), Ala.R.Crim.P.
The indictment stated:
"The Grand Jury of Covington County charges that before the finding of this indictment, [the defendant] . . . did unlawfully and unintentionally cause the death of another person, to-wit: George E. Kilcrease, while engaged in the violation of a state law . . . applying to the operation or use of a vehicle or to the regulation of traffic, to-wit: passing in a no passing zone and/or speeding, and such violation was the proximate cause of the death of George E. Kilcrease, in violation of Title 32-5A-192 of the Code of Alabama, 1975, and as last amended, against the peace and dignity of the State of Alabama."
(C.R. at 1.) (Emphasis added.)
Nonetheless, I concur in the result, because I agree with this conclusion in the main opinion: "Because Edwards was acquitted of both manslaughter (ruling out recklessness) and criminal negligence, the court should have granted Edwards's postjudgment motion for a judgment of acquittal." 816 So.2d at 109.
Because I believe the trial judge did not err in refusing to instruct the jury as requested by the defendant, I must respectfully dissent.
Punishing a defendant for unintentionally causing the death of another while in the commission of a misdemeanor is not a new legal concept, in either a criminal case or a civil case. For example, in Pippin v. State, 19 Ala. App. 384, 387, 97 So. 615, 617-18 (1923), the Court of Appeals said that "[t]he killing of a human being without malice, the slayer being at the time in the commission of a misdemeanor, and not having the intent to kill or to inflict the injury causing death," is punishable as a criminal act. The same act is punishable in a civil case based on the tort of wrongful death. For example, in Louis Pizitz Dry Goods Co. v. Yeldell, 274 U.S. 112 (1927), a defendant in a wrongful-death action appealed to the Supreme Court of the United States, contending that Alabama's wrongful-death statute was unconstitutional because it authorized a plaintiff to recover punitive damages for a defendant's simple negligence if death resulted from the negligence. In that case, the Supreme Court held that Alabama could authorize the recovery of punitive damages for simple negligence if death resulted, without violating a defendant's constitutional rights, stating: "We cannot say that it is beyond the power of a legislature . . . to attempt to preserve human life by making homicide expensive." 274 U.S. at 116.
Even though Yeldell was a civil case, I believe the principle therein stated should apply to the Legislature's power to punish criminally a person who violates a traffic law, when the evidence shows that the violation of that traffic law was the proximate cause of another's death. Stated differently, it appears to me that the Legislature had the power to adopt a statute that would meet society's needs to preserve human life and which would punish an individual for causing the death of another, even though the wrongdoer may not have possessed a culpable mental state at the time. For an excellent law review article on the subject of criminalizing negligence, see Leslie Yalof Garfield, A More Principled Approach to Criminalizing Negligence: A Prescription For The Legislature, 65 Tenn. L. Rev. 875 (1998). In that article, Professor Garfield says, "Although criminal law has never been comfortable with punishing individuals for mere carelessness, the increased potential for technology-related accidents in our fast-paced culture makes it necessary to reexamine this reluctance and to question whether there are circumstances when lack of due care should be a sufficient predicate for invoking the sanctions of criminal law." 65 Tenn. L. Rev. at 877. I agree with Professor Garfield, and I believe the Legislature intended to enact a statute that did exactly that when it adopted § 32-5A-192, Ala. Code 1975.
Although I do not believe the matter of where the vehicular-homicide statute is placed in the Code of Alabama is determinative of the Legislature's intent, I would point out that the statute on vehicular homicide is codified in Title 32, "Motor Vehicles and Traffic," and is not included in Title 13A, the Criminal Code, upon which much of the main opinion's discussion of legislative intent is based. One could argue that the Legislature intended that the culpable mental states defined in § 13A-2-2, Ala. Code 1975, apply only to "this Criminal Code," as specifically set out in the opening phrase of that section of the Criminal Code.
I believe the trial court properly refused to instruct the jury as requested by the defendant; therefore, I would affirm the judgment of the Court of Criminal Appeals.
Docket Title Number Date Dispostition Delta Air Lines, Inc. v. Henrey H. Barnard II 2981082 07/21/2000 Affirmed (memo withdrawn 01/12/2001; op. substituted op. of 01/12/2001 withdrawn 05/04/2001; reversed and remanded; see D.L. v. Etowah County Dep't of Human Res. 2981324 07/14/2000 Reh. denied B.J.S. v. Etowah County Dep't of Human Res. 2981325 07/14/2000 Reh. denied W.D. and S.D. v. C.A.B. 2981426 07/14/2000 Reh. denied Porter C. Giles, Jr. v. World Rio, Corp. 2981443 07/14/2000 Reh. denied Lincy James v. World Rio, Corp. 2981444 07/14/2000 Reh. denied Towana Giles v. World Rio, Corp. 2981445 07/14/2000 Reh. denied Christina Giles v. World Rio, Corp. 2981446 07/14/2000 Reh. denied Scott Paper Co. n/k/a/ Kimberly-Clark Corp. v. Brenda Raines 2981457 07/05/2000 Dismissed on mot. of appellant Russell Coal Co. v. Joel Davis 2981472 07/14/2000 Reh. denied Margaret Elizabeth Killough v. Sara Hearn Kilough Flowers, as personal representative and ex'x of the estate of William Forrest Kilough 2990009 07/14/2000 Reh. denied Debbie D. Fann v. Robert P. Fann 2990055 07/14/2000 Reh. denied J.F. v. State Dep't of Human Res. 2990056 08/04/2000 Reh. denied H.F. v. State Dep't of Human Res. 2990074 08/04/2000 Reh. denied T.R. v. State Dep't of Human Res. 2990075 07/14/2000 Reh. denied K.R. v. State Dep't of Human Res. 2990076 07/14/2000 Reh. denied Mary Helen Clark Pope v. Kenneth Terrell Pope 2990080 09/15/2000 Reh. denied Circle "M" House Movers, Inc.; Melton Everitte; and Rhonda Davis v. T.L.C. Veterinary Hosp., L.L.C. 2990085 08/18/2000 Affirmed 09/22/2000 Reh. denied Scott Paper Co. v. Audrey N. Babcock and Thomas O. Cole 2990122 07/14/2000 Affirmed 08/25/2000 Reh. denied Fred August Lewter III v. Linda Lee Lewter 2990146 07/14/2000 Reh. denied Beverly Enters-Alabama, Inc. v. Mercy Med. Corp. et al 2990160 07/21/2000 Reh. denied City of Moulton v. Octavius Hamilton 2990174 07/28/2000 Affirmed 09/01/2000 Reh. denied Wal-Mart Stores, Inc. v. Johnny Sue Nalley 2990176 07/14/2000 Reh. denied Westinghouse Elec. Corp. v. John O'Bryan 2990240 09/22/2000 Affirmed Randy W. Petty v. Dothan Indus. Hardware, Inc. 2990241 09/22/2000 Affirmed Doris Lynn McCool Richards v. Edward Franklin McCool and Judy F; McCool 2990255 08/04/2000 Affirmed S.S. v. Cuilman County Dep't of Human Res. 2990259 07/14/2000 Reh. Denied Curtis B. Hohis v. Patricia Anne Hohis 2990282 07/14/2000 Reh. Denied Kenneth Bernard Smith v. E.B. Odom et al., Inc.; E.B. Odom, Jr.; and Jo Ann Broadhead 2990283 08/04/2000 Affirmed Wal-Mart Stores; Inc. v. Joyce Strickland 2990294 07/28/2000 Affirmed 09/15/2000 Reh. Denied M.T. v. Tuscaloosa County Dep't of Human Res. 2990296 07/14/2000 Reh. Denied Sherman Nickerson v. Joseph Britt et al. 2990322 08/04/2000 Reh. Denied William R. Bailey v. Malcolm Hendrix and Sid Batchelor 2990336 07/14/2000 Reh. Denied Tolar Constr., L.L.C., garnishee v. Reuben Rice Fryer III and Katrina L. Fryer 2990338 07/14/2000 Reh. Denied Wal-Mart Stores, Inc. v. Sheila Burroughs 2990341 08/04/2000 Affirmed D.S. v. A.L.D., Jr. 2990342 07/14/2000 Reh. Denied Teddi Lane Turner v. William Mark Boggs 2990347 08/11/2000 Affirmed Elmer McFall and Sandra McFall v. Robert Wayne Newell and Jennifer Newell Bragwell 2990359 07/14/2000 Affirmed Kenneth Ensminger v. Holland Employment 2990362 07/28/2000 Affirmed 09/15/2000 Reh. Denied Hogan, Smith Alspaugh, P.C., and Prichard, McCall Jones, L.L.C. v. John Aultman et al. 2990375 09/08/2000 Affirmed Gregory B. Pair v. Jack's Family Rests., Inc., and Employer's Claim Mgmt., Inc. 2990379 07/14/2000 Reh. Denied Bobby Cook v. Macon Berry et al 2990383 08/04/2000 Affirmed 09/22/2000 Reh. Denied Cedric Dewayne Poole v. Paula Danielle Poole 2990390 07/14/2000 Affirmed State ex rel. M.C. v. C.D 2990392 08/25/2000 Reh. Denied Randy Birmingham and Joyce Birmingham v. Verner B. McDaniel and Martha J. McDaniel 2990406 07/14/2000 Reh. Denied Julia Ruth Sampson v. Larry Leroy Sampson 2990411 09/29/2000 Affirmed Dianne B. Fillingim King v. Lenard B. Fillingim 2990412 07/21/2000 Affirmed Bobby Mathews v. Nicey T. Mathews 2990413 07/28/2000 Affirmed Jeremy Slay and Woodland Capital Corp. v. Anthony W. Larue et al. 2990418 08/25/2000 Reh. Denied Karen Edwards Key v. AmSouth Bank et al. 2990422 09/01/2000 Affirmed Aronov Realty, Inc. v. Grant Williams 2990426 07/21/2000 Reh. Denied Mike Cooley v. Precision Air Servs., Inc. et al. 2990430 08/04/2000 Reh. Denied Dudley P. Bolton v. Suzanne A. Bolton 2990434 08/18/2000 Affirmed L.H. v. E.M 2990436 09/08/2000 Affirmed Charles A. McGee and Merle Wilson v. J. Luther Hendrix et al. 2990438 08/25/2000 Reh. denied (memo of 6/23/2000 withdrawn; memo substiuted; affirmed) Richard McLaughlin and Robert Burgener, partners, d/b/a Southern Skies Aviation v. Bessemer Aviation, Inc. 2990439 08/25/2000 Reh. Denied Beverly Barber v. James S. Ward 2990443 09/22/2000 Reh. Denied Bobby W. Kennedy et al. v. Frigidaire Co. et al. 2990444 08/04/2000 Reh. Denied Frances I. Steadman and Ronald B. Steadman v. Central Alabama Title Co; and Jerry Parker 2990446 08/04/2000 Reh. Denied Corporate Fin. Assocs., Inc. v. Refrigerated Control Sys., Inc. et al. 2990451 07/28/2000 Affirmed 09/01/2000 Reh. Denied Kenneth J. Adams v. Taylor-Whorton Coyne 2990456 07/28/2000 Affirmed 09/15/2000 Reh. Denied Allison Faith. Doggett v. Mark Jeffery Doggett 2990458 09/01/2000 Affirmed Howard Crary v. Property Owners Ass'n of Spanish Cove, Inc. 2990460 08/29/2000 Dismissed on mot. of appellee Bonnie Ray Hendrix v. Gertha Jean Moon 2990461 07/28/2000 Affirmed 08/25/2000 Reh. Denied George A. Ryals. v. Jo Ann Ryals 2990465 07/14/2000 Reh. Denied Larry D. Hembree and Brenda Hembree v. Planning Comm'n of City of Homewood 2990466 07/14/2000 Affirmed 08/18/2000 Reh. Denied Beverly Barber v. Linda Mays Welch 2990469 09/22/2000 Reh. Denied Maria P. Weichman and John R. Weichman v. Regions Bank 2990471 07/28/2000 Affirmed 08/05/2000 Reh. Denied Ike Jarman v. Jefferson County Truck Growers Ass'n and Terry Thomas Farms 2990473 07/21/2000 Reh. Denied Tony Hall Trucking Co. and Carthorn Huff v. Linda Little 2990480 07/21/2000 Reh. Denied Patricia M. Simmons v. James B. Simmons 2990490 07/28/2000 Affirmed Ivory Joe Christen v. Brenda L. Christen 2990493 07/28/2000 Affirmed Johnny Scott v. Buffalo Rock Botthng Co. d/b/a Pepsi Cola Bottling Co. 2990496 07/14/2000 Reh. Denied J.M. Hillman v. Douglas Eng'g Co. 2990500 07/21/2000 Affirmed 08/25/2000 Reh. Denied Edward Alan Snider v. Darlene Boyd Bailey et al. 2990505 08/11/2000 Reh. Denied Marcia H. Wooten Conner v. Rodney B. Wooten 2990513 08/04/2000 Affirmed 09/15/2000 Reh. Denied Richard A. Misterka v. Bridgette Misterka Young 2990515 08/25/2000 Affirmed Bobbie Parker v. Jim Walter Res., Inc. 2990516 08/04/2000 Affirmed 09/22/2000 Reh. Denied Harold Bowdoin and Charles Smith v. Gilford Gilder 2990517 07/14/2000 Affirmed In-Place Co. v. Lucinda T. Robertson 2990522 08/04/2000 Affirmed 09/08/2000 Reh. Denied Sheila Cornelison v. Scottsboro City Bd. of Educ. 2990529 08/25/2000 Reh. Denied Douglas H. Cooner v. State ex rel. Catherine Cooner Small 2990535 08/25/2000 Affirmed Mike Tillery Mech., Inc. v. Distribution Int'l Southeast, Ltd. 2990536 07/21/2000 Affirmed Webb Wheel Prods., Inc. v. Milford Wayne Ponder 2990541 07/28/2000 Affirmed 09/01/2000 Reh. Denied John Jones and Dora Lee Jones v. Dick Dearmon 2990543 07/28/2000 Affirmed Gardner Lee Howard v. Clair Ruth Howard 2990545 08/16/2000 Dismissed on lack of prosecution E.P. v. State Dep't of Human Res. 2990548 09/22/2000 Affirmed Bill Heard Chevrolet, Inc. v. First Southern Bank 2990551 07/21/2000 Reh. Denied Paula Breedlove v. Integon Nai'l Ins. Co 2990552 08/25/2000 Affirmed John Urbanowicz v. New York Times Broad. Serv., Inc., et al. 2990553 07/28/2000 Affirmed 09/01/2000 Reh. Denied Caldin Washington and Charles Washington v. John Daniel 2990555 07/28/2000 Affirmed Walter W. Watkins II v. Kim D.. Watkins Windsor 2990558 07/28/2000 Affirmed 09/22/2000 Reh. Denied Annette McLemore v. Doris Holliday 2990560 08/04/2000 Affirmed James Q. Stevens v. Janice Elizabeth Stevens 2990565 08/04/2000 Affirmed Edward Thomas Dixon v. Paul Whaley et al. 2990566 07/28/2000 Reh. Denied Wendy M. Cooper v. William Eugene Cooper 2990567 08/18/2000 Affirmed Jerry Keith Bankston v. Leshe Ruggles Bankston 2990568 09/29/2000 Affirmed Somehanh Thepphanorinh v. Somchith Thepphanorinh 2990570 07/28/2000 Affirmed Neil Lynwood Owens v. Nancy B. Owens 2990571 09/01/2000 Affirmed James LeFlore v. Swift Supply, Inc. 2990576 08/25/2000 Affirmed Frankie L. Harris and Charles B. Daniel v. Michael E. Morgan 2990578 08/18/2000 Affirmed 09/22/2000 Reh. Denied A.J. Willingham, Jr. v. Raymond B. Cash et al. 2990579 07/21/2000 Affirmed Muster Assocs., Inc. v. Jack S. Tillman, sheriff of Mobile County 2990580 07/11/2000 Dismissed for lack of prosecution Charles Leroy Johnson v. Joleen Susan Johnson 2990582 07/28/2000 Affirmed Homestead Farms Dozer Serv. v. Walter Ray Morgan 2990585 07/28/2000 Affirmed 09/22/2000 Reh. Denied Cynthia E. Morris-Dotson v. William Dotson, Jr. 2990586 08/04/2000 Affirmed William Broyles and W. Rodney Broyles v. Gerald Don Laney et al. 2990587 09/15/2000 Affirmed Baptist Found. of Alabama, as personal represenative of the estate of Henry B. Biscoe, deceased v. Flair Adver. Mktg., Inc. 2990589 07/21/2000 Affirmed 08/25/2000 Reh. Denied Nakilia Hubbard, by and through her mother, Mattie Hubbard v. Charles Looser et al. 2990590 09/15/2000 Affirmed Elizabeth Made Kossik v. Dr. William Harris, and as president of Alabama State Univ.; and Dr. Fred W. Dauser, individually, and as interim dean of School of Graduate Studies 2990595 07/18/2000 Transferred to Sup. Ct. for lack of subject-matter jurisdiction 07/31/2000 Case reinstated 09/01/2000 Affirmed Tony Curtis King v. Janet Lee King 2990599 08/25/2000 Affirmed Robert Logan v. Premium Props., Inc. 2990600 07/21/2000 Affirmed Lee Apparel Co. v. Ida Peeden 2990605 08/11/2000 Affirmed Wal-Mart Stores, Inc. v. Mary Helen Harrison 2990606 08/25/2000 Affirmed Atlantic Southeast Airlines, Inc. v. Nicholas Russello 2990607 09/15/2000 Affirmed Robert A. Gechijian and Linda A. Gechijian v. Dorthy Moore Adams 2990608 07/25/2000 Transferred to Sup. Ct. for lack of subject-matter jurisdiction Barbara Turner et al. v. Robert F. Brown and Paul 08/07/2000 Case reinstates Anderson, individually and d/b/a Brown Anderson Architects et al. 2990610 08/25/2000 Affirmed Annie Mae Cooper v. Mike Haley, comm'r, et al. 2990617 08/11/2000 Affirmed M.G.W. v. Madison County Dep't of Human Res 2990618 09/15/2000 Affirmed D.W.C. v. J.J.T. and M.L.T 2990619 09/15/2000 Affirmed Ronald Knox v. Tammy Johns et al. 2990620 07/28/2000 Affirmed 09/01/2000 Reh. Denied Jason Parker v. Safway Prods., Inc., et al. 2990622 07/18/2000 Transferred to Sup. Ct. for lack of subject-matter jurisdiction 07/31/2000 Case reinstated 09/15/2000 Affirmed Robert Earl Albright, Jr. v. Jeffery Westrope 2990623 07/28/2000 Affirmed Dana Joe Bryant v. Sherry N. Hammond 2990624 07/11/2000 Dismissed for lack of prosecution J.M.W. v. J.A.W. and J.H.R 2990625 07/18/2000 Dismissed for lack of prosecution B.S. v. F.M.. 2990626 08/04/2000 Reh. Denied Harold Douglas Lowe v. Karen Sue Lowe 2990627 08/25/2000 Reh. Denied Paul Jackson v. Regions Bank 2990629 08/04/2000 Affirmed Trisha Ann Deas v. Dale Shelton Deas 2990632 08/04/2000 Affirmed Wilson C. Sippial v. City of Montgomery 2990633 08/18/2000 Affirmed Mark S. Phillips v. Lisa D. Phillips 2990635 09/29/2000 Affirmed Bold Springs Presbyterian Church v. Joseph Eastis, Sr., and JoAnn Hancock 2990637 08/18/2000 Affirmed Harry J. Coughlin, Jr., and Bettye L. Coughlin v. Gary White et al. 2990638 09/29/2000 Affirmed Jeanette Cox and Billy Cox v. Wal-Mart Stores, Inc., et al. 2990640 07/28/2000 Affirmed 09/22/2000 Reh. Denied Tammy Moszynski v. Calfee Co. of Dalton, Inc., d/b/a Favorite Market # 138 2990641 08/04/2000 Affirmed 09/15/2000 Reh. Denied Heirs at law of Bobbie Olean Thomason, deceased v. Stephen Thomason, as ex'r of the estate of John Thomason, deceased 2990649 07/21/2000 Affirmed 08/25/2000 Reh. Denied Van Stewart v. James Michael Stallings and Lisa Stallings 2990651 08/11/2000 Affirmed 09/22/2000 Reh. Denied M.P. v. K.R 2990652 09/29/2000 Affirmed Harold Rutherford, as an individual, d/b/a H L Asphalt and H L Trucking, Inc. v. Parkway Funeral Home, Inc. 2990654 09/01/2000 Affirmed George Ahern d/b/a Blanton's Roller Rink v. Paula Murphy and Larry Murphy 2990656 09/15/2000 Affirmed Raymond P. Morris v. City of Dothan Pers. Bd. 2990658 09/22/2000 Affirmed Robert Eugene Wilson v. Teresa Diane Wilson 2990659 09/15/2000 Affirmed Louise Boisvert v. William Conti and Sandra Conti 2990660 19/15/2000 Affirmed Robert Dale Carstens v. Marianne Davidson 2990662 19/29/2000 Affirmed Jeremy McDonald and Destry C. McDonald v. Melvin Ergle and Virginia Ergle 2990664 09/22/2000 Affirmed Jason Watson et al. v. E.J. Wicks et al. 2990665 09/01/2000 Affirmed Michael James Stoudemire v. Weiler Grinders and Dixie Grinders 2990670 08/04/2000 Affirmed S.T. Robino et al. v. Beal Bank, SSB 2990671 07/21/2000 Dismissed for lack of prosecution Benjamin Howlet, adm'r of the estate of Bennie B. Howlet, Sr. v. Listerhill Employees Credit Union 2990674 08/11/2000 Affirmed Rogina Inv. Corp. v. Ronald C. Gilbert 2990679 09/15/2000 Affirmed Rogina Inv. Corp. v. Ronald C. Gilbert 2990680 09/15/2000 Affirmed Timothy John Womack v. Beers Constr. Co. 2990683 09/15/2000 Affirmed Joseph Ryals v. Techniflo, Inc. et al. 2990687 09/22/2000 Affirmed Frank Smeraglia et al. v. Belinda Christian 2990688 08/04/2000 Affirmed Janice G. Stracener v. Michael B. Erwin 2990689 09/22/2000 Affirmed Elizabeth Billups, as adm'x of the estate of James L. Potts, deceased v. Central Alabama Home Health Servs., Inc. 2990691 08/04/2000 Affirmed 09/15/2000 Reh. Denied American Cast Iron Pipe Co. v. Carolyn Mayfield 2990694 09/15/2000 Affirmed Aubrey E, McDowell v. Marilyn McDowell 2990697 08/18/2000 Affirmed 09/22/2000 Reh. Denied Pasty Roberts Cooper v. Angus Holley Cooper 2990708 09/08/2000 Affirmed Faye Johnston and Willie Johnston v. Wal-Mart Stores, Inc. 2990710 08/11/2000 Affirmed Tommy L. Beverage v. Deanna W. Beverage 2990721 07/17/2000 Dismissed on mot. of appellant Chong Pun Yater v. John Guant Yater 2990725 09/15/2000 Affirmed Vance Marcus Vogler v. Bettina Thiery Vogler 2990728 09/13/2000 Dismissed for lack of prosecution Brian Glenn Parr v. Elizabeth Inez Parr Ayers 2990733 07/12/2000 Dismissed on mot. of appellant Danny K.K. Lam v. Annabelle Cheng-Ping Tsui 2990734 09/22/2000 Affirmed Ali Rabiee et al. v. City of Mountain Brook et al. 2990740 08/25/2000 Affirmed Donald Ray Turner v. Walfred Brown et al. 2990742 07/05/2000 Dismissed on lack of prosecution K.C. v. Etowah County Dep't of Human Res. 2990744 07/18/2000 Reh. Denied Gordon McDaniel v. City of Lipscomb 2990745 07/28/2000 Dismissed for lack of prosecution Debra Fairchild v. Johnstone, Adams, Bailey, Gordon Harris 2990748 07/25/2000 Transferred to Sup. Ct. for lack of subject-matter jurisdiction Fay Sewell v. H.D. Lee Co. 2990750 09/22/2000 Affirmed Billy Thomas v. Correctional Med. Services, Inc. 2990755 08/11/2000 Affirmed Randal F. Cavnar v. Anthony Glenn Tapscott 2990758 09/22/2000 Affirmed Regina Anderson v. Alabama Tenure Comm'n 2990759 08/25/2000 Affirmed Marilyn Jean Walmsley v. Kevin David Walmsley 2990761 09/05/2000 Dismissed on mot. of appellant Penny Lemke v. State ex rel. Charles B. Lemke 2990764 09/22/2000 Affirmed Michel Dixon v. Rudolph Real Estate, Inc 2990767 08/25/2000 Affirmed Van Hamilton and Ruby Jean Hamilton v. Jerry Lawler and Peggy Lawler 2990768 09/22/2000 Affirmed Patricia M. Sweeney v. Gerald A. Sweeney 2990772 09/01/2000 Affirmed B.W., by and through his next friend, A.W. v. Walter Wood, as director of the State Dep't of Youth Serv's 2990773 09/01/2000 Affirmed Graham-Hall, Inc. v. William Addie 2990774 08/04/2000 Affirmed William H. Jones v. D. David Matheny, as conservator of the estate of Evelyn Porter 2990777 07/31/2000 Dismissed on mot. of appellant Marvin Leonard Ehis and Bernice Allred Ellis v. B.G. Bailey and Bailey Eng'g, Inc. 2990778 09/15/2000 Affirmed J.M. v. Etowah County Dep't of Human Res 2990781 07/18/2000 Reh. Denied Cynthia Collier and Columbus Collier v. H H Auto Sales and Ross Henderson 2990783 08/18/2000 Affirmed Aramark Corp. v. Phyllis Boles 2990784 07/18/2000 Dismissed as not from a final judgment James McConico, Jr. v. Captain Pouncey et al. 2990786 08/04/2000 Affirmed Claude Hadley v. Alfred Sullivan et al. 2990791 07/25/2000 Dismissed on mot. of appellant David Matthew Pugh v. Barton Pugh 2990796 07/05/2000 Dismissed on mot. of appellant Adam Lee Parker v. Patricia D. Parker 2990797 07/18/2000 Dismissed as not from a final judgment John Carsano, Jr.; David Warren; David's Custom Cycle; and Tom Godwin y. General Motors Acceptance Corp. 2990798 07/28/2000 Dismissed for lack of prosecution Lindsey Earl Slaughter v. Birmingham Police Dep't 2990800 07/18/2000 Transferred to et al. Sup Ct. for lack of subject-matter jurisdiction Jerry Allen Wilson v. O'Della Merrell Ziegler Wilson 2990804 09/07/2000 Dismissed on mot. of appellant Sue Compton Dial v. Estate of Fred Dial, deceased 2990813 09/12/2000 Transferred to Sup. Ct. for lack of subject-matter jurisdiction Janie N. Johnston v. Terrell McClendon 2990820 08/25/2000 Affirmed Anthony D. Bowen v. Barbara N. Goodin 2990824 07/25/2000 Dismissed on mot. of appellee Amanda Sue Edwards v. Alvin Keith Edwards 2990827 09/15/2000 Affirmed Booker Heights Dcv. Corp. v. Mortgage Investors, Inc 2990849 08/30/2000 Dismissed on mot. of appellant Donald Barber v. Jefferson County 2990851 07/18/2000 Dismissed as not from a final judgment Adrian D. Craig et al. v. State ex rel. Nathan G. Watkins, Sr 2990853 08/02/2000 Dismissed on mot. of appellants Gina Williams v. Howard Williams 2990854 07/25/2000 Dismissed on mot. of appellee. Ernest Bentley, Inc. v. James A. Whitman 2990859 07/18/2000 Dismissed as not from a final judgment Franklin D. Sutherland v. Sharon Sutherland Clark 2990868 08/22/2000 Dismissed for lack of prosecution Ralph McGuff, individually, and as father and next friend of Jessie Lee McGuff, a minor v. State Farm Mut. Auto. Ins. Co 2990871 08/11/2000 Affirmed Raymond J. DeMarco v. Regions Bank and SouthTrust Bank 2990873 09/01/2000 Affirmed Daisy Ford v. Jim Walter Homes, Inc 2990876 08/18/2000 Affirmed Sharon Maze ir. David Fetterhoff 2990878 09/13/2000 Dismissed for lack of prosecution Artencil Marie Rauls v. Albert Laughton Rauls 2990881 09/15/2000 Affirmed Garland Kinslow v. Frankie L. Preston 2990882 09/01/2000 Affirmed Garland Kinslow v. Frankie L. Preston I 2990883 09/01/2000 Affirmed Sherman Nidkerson v. William Carter et al 2990885 07/18/2000 Transferred to Sup. Ct. for lack of subject-matter jurisdiction 07/31/2000 Case reinstated James McConico, Jr. v. Conecuh County et al 2990897 07/18/2000 Reh. Denied James Robert Miller v. Brenda Marie Miller 2990920 08/14/2000 Dismissed for lack of prosecution A.L. Lavendar v. Greene County Democrat 2990921 07/18/2000 Dismissed on mot. of appellee Charles L. Hum, as personal representative of the estate of Tonis L. Hum, deceased v. Edna Hum 2990923 09/29/2000 Affirmed Ex parte Wal-Mart Stores, Inc. (In re Barbara J. Bishop, f/k/a Barbara J. Trapp v. Wal-Mart Stores, Inc.) 2990926 08/01/2000 Mand. denied Dana Ross Stegall v. State 2990932 07/18/2000 Dismissed as not from a final judgment Willie J. Holmes v. Liberty Mut. Ins. Co., as subrogee of Marie A. Wyler, and Marie A. Wyler, individually 2990936 09/22/2000 Affirmed Jefferson County Dep't of Human Res. v. C.M. and S.M 2990937 07/11/2000 Dismissed on mot. of appellant Bill Russell v. Michael Cannon and Jewelene Cannon 2990938 08/30/2000 Dismissed for lack Michael Brazier v. Dyncorp, Fort Rucker Div 2990939 09/13/2000 Dismissed for lack of prosecution Roy Wayne Avery v. State 2990948 07/14/2000 Affirmed 08/25/2000 Reh. denied American Auto., Inc., and Van E. Humbarger v. Larry D. Martin 2990950 07/31/2000 Dismissed for lack of prosecution Betty Lynn Hatem and Leroy Hatem v. Elizabeth L. Kennedy 2990951 08/29/2000 Transferred to Sup. Ct. for lack of subject-matter jurisdiction 09/12/2000 Case reinstated Ex parte Tony Fountain (In re: Tony Fountain v. Keith Ausborn) 2990957 07/18/2000 Mand. denied Billy Ray Hutchins v. Monroe Powers, Jr 2990968 09/12/2000 Transferred to Sup. Ct. for lack of subject-matter jurisdiction 09/19/2000 Case reinstated Ronald D. Veteto v. Nancy Barnes et al. 2990969 07/25/2000 Transferred to Sup. Ct. for lack of subject-matter jurisdiction 08/07/2000 Case reinstated Kevin Bryant and Teressa Bryant v. Vanna Trott et al 2990971 08/01/2000 Transferred to Sup. Ct. for lack of subject-matter jurisdiction 08/16/2000 Dismissed on mot. Thomas Vernon Nunley, Jr. v. Deana Nunley 2990975 08/15/2000 for appellee Kimberly Ellen Lester v. William R. Lester, Jr 2990985 07/18/2000 Dismissed on mot. of appellee Tommy H. Taylor, as attorney in fact for Mr. and Mrs. Claude Morris v. Lewis Rollins et al 2990988 08/22/2000 Transferred to Sup. Ct. for lack of subject-matter jurisdiction 09/12/2000 Case reinstated Glen and Virginia Mothershed v. Emmett L. Speed, Jr., William Edward Speed, and Larry Styron 2990989 07/18/2000 Dismissed as untimely filed T.N. v. R.N. and M.N 2990990 07/18/2000 Dismissed as untimely filed John L. Watson v. Melissa L. Watson 2991005 07/18/2000 Dismissed as untimely filed Ex parte Billy R. Myers (In re: Billy R. Myers v. Jim Ellis, circuit clerk, and Thomas E. Head III, circuit judge) 2991009 07/18/2000 Mand. denied Phillips Truck Stop, Inc. v. Radcliff/Economy Marine Servs., Inc. 2991019 08/15/2000 Transferred to Sup. Ct. for lack of subject-matter jurisdiction 08/24/2000 Case reinstated J.D.M. v. State ex rel. L.E.M. 2991023 08/02/2000 Dismissed on mot. of appellant Steve Compton v. Ferris S. Ritchey, Jr. 2991028 09/22/2000 Affirmed Jalonie Hogan v. City of Marion et al. 2991031 09/12/2000 Dismissed as untimely filed Sherry Marie Seabrook v. Mark Anthony Seabrook 2991032 08/18/2000 Dismissed for lack of prosecution William N. Lucy v. Heritage Imports, Inc., et al. 2991033 09/12/2000 Mand. denied 09/26/2000 Transferred to Sup. Ct. for lack of subject-matter jurisdiction Rod Callins v. State 2991034 08/18/2000 Affirmed N.C.T. v. State ex'rel. B.P.H 2991035 09/29/2000 Affirmed Ex parte William A. Crotwell III, M.D. (In re: George Andetson v. Kiker Corp 2991036 07/25/2000 Mand. denied 08/14/2000 Reh. denied Ex parte Marilyn Prentice (In re: Marilyn Prentice v. Weyerhaeuser, Inc.) 2991037 07/25/2000 Mand. denied Ronald Humphrey v. Charles Brock et al. 2991039 08/14/2000 Dismissed for lack prosecution Ex parte Regions Bank COT.; Johnnie Jones; and Ausherman Recovery Co. (In re: Donna Farris Miller v. Regions Bank COT.; Johnnie Jones; Ausherman Recovery Co. et al.) 2991044 09/18/2000 Mand. denied Ex parte Re'Naul M. Johnson (In re: Re'Naul M. Johnson v. Melissa Rittenour) 2991045 07/18/2000 Mand. denied Ex parte Re'Naul M. Johnson (In re: Re'Naul M. Johnson v. Larry Dozier) 2991046 07/18/2000 Mand. denied John Blake v. Lloyd Noland Hosp. et al 2991047 08/29/2000 Transferred to Sup. Ct. for lack of subject-matter jurisdiction Yvette Hooper v. Prince Inst. of Prof'l Studies, Inc. 2991049 08/08/2000 Transferred to Sup. Ct. for lack of subject-matter jurisdiction Ex parte Fred Taylor Jones (In re: Margaret W. 2991051 07/05/2000 Mand. denied Jones v. Fred Taylor Jones) Ex parte Gail Shocldey Creel (In re: Gail Shockley Creel v. Olsten Health Servs.) 2991057 07/18/2000 Mand. denied Sandra Warren, adm'x of the estate of James Williams, deceased v. Cagles, Inc., et al. 2991058 08/01/2000 Transferred to Sup. Ct. for lack of subject-matter jurisdiction 08/16/2000 Case reinstated Gordon James Brady, Jr: v. Donna Fogel Brady 2991059 07/20/2000 Dismissed on mot. of appellant William Thomas Hartley v. Amber D. Hartley 2991060 09/26/2000 Dismissed on mot. of appellant John Holifield v. Mobile Supportive Housing, Inc. 2991061 08/30/2000 Dismissed for lack of prosecution Ex parte Belinda Lathon (In re: Belinda Lathon v. Rehabilitation Healtheare Ctr. of Huntsville et al.) 2991068 07/18/2000 Mand. denied Gregory Lynn Cook v. Marie Elizabeth Cook 2991092 08/01/2000 Dismissed on mot. of appellee 08/29/2000 Reh. denied Don Lamar Cady v. Alabama Bd. of Pardons Paroles 2991095 08/22/2000 Dismissed as untimely filed Donald F. Reese v. Herndon Inge III 2991105 08/01/2000 Dismissed as untimely filed Lake Forest Prop. Owners Ass'n, Inc. v. James A. Charlton 2991111 09/12/2000 Transferred to Sup. Ct. for lack of subject-matter jurisdiction 09/19/2000 Case reinstated Phillip E. Lamoreaux and Ura Mae Lamoreaux v. C. Park Barton, Jr 2991112 08/17/2000 Dismissed on mot. of appellants C.S. v. J.M 2991116 08/21/2000 Dismissed on mot. of appellant Colleen B. Casto v. Samuel J. Casto 2991122 08/01/2000 Dismissed on mot. of appellee Robert Earl Woods v. Michael Haley et al 2991123 08/14/2000 Dismissed on mot. of prosecution Ex parte Revonda Gayle Smith (In re: Terry Lynn Smith v. Revonda Gayle Smith) 2991125 07/25/2000 Mand, denied Lawrence Stockton v. Frank Jefferson Haynes 2991132 08/15/2000 Transferred to Sup. Ct. for lack of subject-matter jurisdiction 08/24/2000 Case reinstated Ex parte Ivory Joe Christen (In re: Ivory Joe Christen v. State, Judge H. Edward McFerrmn, and Brenda L. Christen) 2991134 08/01/2000 Mand. denied 09/12/2000 Reh. denied Ex parte Ivory Joe Christen (In re: Ivory Joe Christen v. State, Judge H. Edward McFerrin, and Brenda L. Christen) 2991135 08/01/2000 Cert. denied Ex parte Evelyn Varner (In re: Svelyn Varner v. Estate of Robert Jerome Varner) 2991136 07/25/2000 Transferred to Sup. Ct. for lack of subject-matter jurisdiction Jacob Dansby, Jr. v. David Randall Arendall 2991138 09/12/2000 Transferred to Sup. Ct. for lack of subject-matter jurisdiction Alisha Wheat, as adm'x of the estate of DeMyreon Lindley, and First Baptist Church of Baltimore St. v. Guidant Mut. Ins. Co 2991142 09/12/2000 Transferred to Sup Ct. for lack of subject-matter jurisdiction Ex parte Goodies Distrib. (In re: Denzell Moore et al. v. Goodies Distrib.-and Lamar Wilbon) 2991148 08/22/2000 Mand. denied Paul Pettus v. City of Birmingham 2991157 09/07/2000 Transferred to Sup Ct. David Stracker Shack v. Malinda Michelle Shack 2991162 09/19/2000 Dismissed for lack of prosecution Anthony Pickett v. State Dep't of Indus. Relations 2991170 09/01/2000 Dismissed for lack of prosecution M. Ford Waters v. CS Real Estate for Highland 2991174 09/12/2000 Dismissed on mot. of appellee Ex parte Alabama Bd. "of Pardons Paroles (In re: Eleanor I. Brooks et al. v. Alabama Bd. of Pardons Paroles' et al.) 2991176 08/02/2000 Mand. denied Kevin A. Edmondson v. Sharon L. Edmondson 2991181 08/25/2000 Dismissed on mot. of appellant Eric Killen v. Amy Roberts Comm 2991187 09/07/2000 Dismissed on Joint mot. Sandra Burgett, as adm'x of the estate of Arthur Burgett, deceased, etal. v. Limestone County and City of Athens 2991189 08/11/2000 Order of the Sup. Ct. dated August 7, 2000, transferring case is rescinded; case restored to Sup. Ct. docket Ex parte Billy R. Myers (In re: Billy R. Myers v. Janice McCall, circuit clerk, Coffee County) 2991192 08/22/2000 Mand. denied Ex parte Barry Lee Ford (In re: State v. Barry Lee Ford) 2991197 09/12/2000 Mand. denied A.E.N. v. T.L.Y. 2991200 08/22/2000 Appeal transferred to Morgan Cir. Ct. for trial de novo pursuant to Rule 28(B), Ala.R.Juv.P. G.P.J. v. State Dep't of Human Res 2991201 09/12/2000 Dismissed as untimely filed Ex parte Rickey Lynn Cloud (In re: Rickey Lynn Cloud v. State) 2991202 09/12/2000 Habeas corpus pet. denied Ex parte Wilson Broad. Co. d/b/a WJJN (In re: Wilson Broad. Co. d/b/a WJJN v. Fox 34 d/b/a WDFX) 2991203 08/22/2000 Mand. denied Brenda Faye Johnson v. John David Johnson 2991204 09/29/2000 Dismissed on mot. of appellant Angela Sims Gibson v. Paul Michael Gibson III 2991210 09/05/2000 Dismissed on mot. of appellant Ex parte Daniel D. Cooper and Carrie M. Cooper (In re: S.L. Rucker cl/b/a Rucker Rental v. Daniel D. Cooper and Carrie M. Cooper) 2991216 08/22/2000 Mand. denied Barbara Mackall, Dale Mackall, and Alabama Living of Chilton County v. Alabama Dep't of Pub. Health 2991217 08/24/2000 Dismissed on mot. of appellants R.B. v. T.C. and R.C 2991223 09/06/2000 Dismissed for lack of prosecution Ex parte Arthur Lee Drummond IV (In re: Christina Lynn Drummond v. Arthur Lee Drummond IV) 2991243 08/22/2000 Mand. denied Ex parte Mobile County Dep't of Human Res., State Dep't of Human Res., Em Wheeler, and Catherine Phillips (In re: Mary Wyatt v. Erin.Wheeler et al.) 2991248 08/22/2000 Mand. denied Jamison Mason v. Joy Mason 2991252 09/20/2000 Dismissed for lack of prosecution Bernice Atchison v. Gentry Mixon et al. 2991253 09/26/2000 Transferred to Sup. Ct. for lack of subject-matter jurisdiction John David Calvert.v. State 2991256 09/05/2000 Dismissed on mot. of appellant Irene Downer v. Mark Thompson Conradi, Jr 2991260 09/26/2000 Transferred to Sup. Ct. for lack subject-matter jurisdiction Ex parte Irving Johnson (In re: Irving Johnson v. Judgment of the District Ct. and William A. Kynard, circuit clerk) 2991278 08/29/2000 Mand. denied Alexander Barnett v. Alabama Dep't of Corr. et al. 2991319 09/26/2000 Transferred to Ct. of Crim. App. for lack of subject-matter jurisdiction Amy R. Osborne v., Christopher R. Osborne 2991329 09/25/2000 Dismissed on mot. of appellant Ex parte M.G.J; 2991391 09/27/2000 Mand. denied