Opinion
CR-19-0239
02-05-2021
Howard Wilson TODD v. STATE of Alabama
Angela Cochran Morgan, Fort Payne, for appellant. Steve Marshall, att'y gen., and Laura Irby Cuthbert, asst. att'y gen., for appellee.
Angela Cochran Morgan, Fort Payne, for appellant.
Steve Marshall, att'y gen., and Laura Irby Cuthbert, asst. att'y gen., for appellee.
COLE, Judge. Howard Wilson Todd was convicted of second-degree assault for shooting Doyle Jones five times with a .22-caliber revolver, a violation of § 13A-6-21, Ala. Code 1975. The DeKalb Circuit Court sentenced Todd to 10 years’ imprisonment, but it suspended Todd's sentence and placed him on 5 years’ probation.
A few days before his trial, Todd moved the trial court to dismiss his indictment, arguing that he was immune from prosecution under § 13A-3-23(d), Ala. Code 1975, because, he claimed, he had acted in self-defense. The trial court did not set Todd's motion for a hearing. Instead, the trial court waited until after selecting a jury for Todd's trial, swearing in the jury, and dismissing the jury for the day to hold Todd's immunity hearing. Although Todd objected to the trial court's decision to wait until after jury selection to hold the immunity hearing, Todd did not challenge the trial court's decision to delay his hearing by filing a petition for a writ of mandamus with this Court. Ultimately, the trial court denied Todd's motion, Todd's case proceeded to trial, and Todd was convicted of second-degree assault.
On appeal, Todd makes two arguments; both concern his immunity hearing. First, Todd makes a procedural argument, claiming that the trial court erred when it struck and swore in the jury before it held his immunity hearing. Second, Todd makes a substantive argument, claiming that the trial court erred when it denied his motion to dismiss. Because the jury found him guilty of second-degree assault, despite his argument that he had acted in self-defense, Todd's substantive argument is moot. And, although the jury's verdict also renders Todd's procedural argument moot, because the issue is capable of repetition but evading review, we nonetheless address Todd's argument, find that the trial court erred when it held Todd's hearing after his trial had commenced, and hold that the trial court's error was both invited by Todd and was harmless.
Facts and Procedural History
On March 1, 2017, Doyle Jones and his wife, April Jones, went to Todd's house to talk to him about buying a camper trailer. Later that evening, Todd, Jones, and April went inside Todd's trailer, and Todd and Jones began drinking beer and Jack Daniel's Tennessee Whiskey. At some point, they got hungry and began talking about getting food. April said that Todd offered to make them an "egg and onion sandwich," which, she said, "didn't sound good." (R. 314.) Todd then told them that they could go get a steak or a baked potato. When Jones stood up and asked, "Well, which is it going to be, a baked potato or a steak?" (R. 115), Todd pulled out a .22-caliber revolver and shot Jones five times. Two of the bullets perforated Jones's colon, requiring him to have surgery. According to Jones, he did not do anything to threaten Todd, and he does not understand why Todd shot him.
In June 2017, Todd was indicted for first-degree assault. On September 8, 2018, Todd filed a notice explaining that he intended on pursuing a self-defense theory at trial. At that time, however, Todd neither moved to dismiss the indictment nor did he ask the court for a pretrial-immunity hearing.
The trial court scheduled Todd's trial for November 29, 2018, but when the "case came for trial" it was continued at Todd's request. The trial of the case was reset for March 11, 2019. (R. 20.) On March 6, 2019, five days before his rescheduled trial date, Todd moved to dismiss the indictment, arguing that he was immune from prosecution under § 13A-3-23(d). On March 11, 2019, a Monday, the trial court convened a jury panel for Todd's trial and excused some potential jurors based on "answers [they] provided" earlier that day. (R. 6.) Before the court began striking the jury, Todd asked the court if he could place an objection on the record outside the presence of the jury panel. Todd made the following objection:
"Well, I object to striking a jury because we still have to have an evidentiary hearing. And this is not really a normal evidentiary hearing because this hearing could have -- could weigh on the rest of the case at heart. Because if it's granted, then the case is dismissed and it's over, and we don't have to have a jury. And if -- and if it's -- you know, not granted, we would plan to appeal that."
(R. 10.) After hearing the State's response, the trial court overruled Todd's objection, stating:
"I don't see how it prejudices the defendant by going ahead and striking a jury. There's -- not laying blame on [Todd's counsel], but this [motion] was filed, I believe, Wednesday night. The Court saw it Thursday morning. There was a notice of intent to use this defense filed earlier, but there was no hearing requested until Wednesday night, which was four days -- five days ago. And so I think to -- to move things along, we will go ahead and strike [the jury]. For what it's worth, I don't think that [the motion] was filed untimely, so we will grant the request to have a hearing this afternoon."
(R. 12.) The parties then conducted voir dire.
After the parties questioned potential jurors and made arguments about removing certain potential jurors for cause, Todd again objected to striking the jury and swearing in the jury before the court conducted an immunity hearing. (R. 64.) While making that second objection, Todd, citing Ex parte Watters, 220 So. 3d 1093 (Ala. 2016), argued that immunity hearings must be held "pretrial" and that "once you impanel the jury and they are sworn in, that trial has started." (R. 65.) Todd argued that Watters "clearly states it has to be pretrial, before -- before the jury -- before the trial starts. And I believe once we impanel the jury, the jury -- the trial has started." (R. 65.) Todd continued: "Now, whether or not you state [to the jury] tonight, hey, y'all come back tomorrow, that trial has started, jeopardy has attached, and [ Watters ] states that there has to be a pretrial [hearing]." (R. 65.) The trial court then asked: "What's -- what's to keep me from letting you guys strike, sending everyone home that got struck, telling the 13 or 14 remaining, y'all show back up tomorrow morning, I'll swear you in then?" (R. 69.) Todd answered:
"What I'm stating is this: I believe this case would better be suited for my client to have this hearing. You're also asking this judge, Your Honor, to make this decision after three hours of a hearing and then before [the jury] come[s] in at 9:00 tomorrow morning. Your Honor, I mean, I understand that it may be a decision that's easy. I don't know. But you're putting a time frame on having the hearing, then making your decision, then having this jury back here at 9:00 in the morning -- or telling them, to call in. Whatever. I don't know, but --"
(R. 71.)
The court then overruled Todd's objection, explaining that Watters "is different than -- than what we're dealing with here. Essentially, what [ Watters ] says is that you can't defer a pretrial immunity issue to the jury. ... And by this, what it's saying is before the witnesses are called, you can't -- I can't say I'm just going to let the jury decide your pretrial immunity issue." (R. 73.) The trial court then told the parties that "we'll strike the jury, we'll put them in the box, swear them in, and then send them home for the day and then have [Todd's] hearing." (R. 73.) So after the parties struck the jury, the trial court swore in the jury, sent the jury home for the day, and began Todd's immunity hearing.
At the hearing, Jones, April, Todd, and the law-enforcement officers who responded to Todd's house after the shooting testified about what happened the night Todd shot Jones. Todd's stepson also testified that Todd had an injury to his face the morning after Todd shot Jones.
After the hearing, the trial court took the matter under advisement and told the parties that it would issue an order that evening. At 8:32 p.m. on March 11, 2019, the court issued a written order denying Todd's motion to dismiss and finding that Todd "did not meet his burden of proving immunity at the pre-trial hearing." (C. 22.) The court also noted that, although Todd had "requested a continuance until Wednesday morning to further prepare for trial" and that it was "inclined to grant that request," Todd's "counsel has now informed the Court that they will be unavailable for trial on Wednesday"; thus, Todd's "trial will resume tomorrow morning at 9:00 a.m." (C. 22.)
That next morning, Todd's counsel again moved for a continuance, explaining that he had found an expert witness who was willing to testify in Todd's defense but who would not be available until the following week. The trial court denied Todd's motion, and Todd's case proceeded to trial.
At trial, the State presented its evidence and Todd maintained that he acted in self-defense. At the conclusion of Todd's trial, the trial court instructed the jury on first-degree assault, on the lesser-included offense of second-degree assault, and on self-defense. The jury, rejecting Todd's self-defense claim, found Todd guilty of the lesser-included offense of second-degree assault.
On September 16, 2019, the trial court sentenced Todd to 10 years’ imprisonment, but the trial court suspended that sentence and placed Todd on 5 years’ probation. On October 16, 2019, Todd filed a motion for a new trial and a "Motion for Judgment of Acquittal After Verdict or Judgment of Conviction." (C. 35.) The trial court denied both motions on October 23, 2019. This appeal follows.
Discussion
As set out above, Todd makes both a substantive argument and a procedural argument about his immunity hearing. Todd's substantive argument concerns the trial court's decision to deny him immunity. Todd's procedural argument concerns the timing of his immunity hearing -- specifically, that the trial court erred when it struck and swore in the jury before it conducted his immunity hearing.
Todd's substantive argument is clearly moot. This Court has previously addressed the impact a jury verdict has on a claim that a trial court erred when it denied a motion for immunity under § 13A-3-23(d), Ala. Code 1975. In so doing, we explained that
" ‘the issue of whether a defendant established the existence of the statutory conditions of "make-my-day" immunity by a preponderance of the evidence becomes moot once a jury concludes the prosecution proved beyond a reasonable doubt that the same statutory conditions did not exist. In short, the jury's verdict subsumes the trial court's pretrial ruling regarding "make-my-day" immunity ....’ "
Smith v. State, 279 So. 3d 1199, 1202 (Ala. Crim. App. 2018) (quoting Wood v. People, 255 P. 3d 1136, 1141 (Colo. 2011) ). Because the jury found Todd guilty of second-degree assault, Todd's argument that the trial court erred when it denied his motion for immunity under § 13A-3-23(d) is moot. Thus, Todd's substantive argument does not entitle him to any relief.
Although this Court has previously addressed the impact a jury's verdict has on substantive arguments concerning immunity under § 13A-3-23(d), this Court has not addressed what impact, if any, a jury's guilty verdict has on an alleged procedural defect with an immunity hearing. But it stands to reason that if substantive arguments as to the merits of a trial court's decision at an immunity hearing are rendered moot when a jury verdict has been rendered in a case, then arguments concerning procedural defects with an immunity hearing are also rendered moot when a jury verdict has been rendered in a case.
The Alabama Supreme Court has explained the mootness doctrine as follows:
" ‘ " ‘A moot case or question is a case or question in or on which there is no real controversy; a case which seeks to determine an abstract question which does not rest on existing facts or rights, or involve conflicting rights so far as plaintiff is concerned.’ " Case v. Alabama State Bar, 939 So. 2d 881, 884 (Ala. 2006) (quoting American Fed'n of State, County & Mun. Employees v. Dawkins, 268 Ala. 13, 18, 104 So. 2d 827, 830-31 (1958) ). "The test for mootness is commonly stated as whether the court's action on the merits would affect the rights of the parties." Crawford v. State, 153 S.W.3d 497, 501 (Tex. App. 2004) (citing VE Corp. v. Ernst & Young, 860 S.W. 2d 83, 84 (Tex. 1993) ). "A case becomes moot if at any stage there ceases to be an actual controversy between the parties." Id. (emphasis added) (citing National Collegiate Athletic Ass'n v. Jones, 1 S.W. 3d 83, 86 (Tex. 1999) ).
" ‘... "A moot case lacks justiciability." Crawford, 153 S.W.3d at 501. Thus, "[a]n action that originally was based upon a justiciable controversy cannot be maintained on appeal if the questions raised in it have become moot by subsequent acts or events." Case, 939 So. 2d at 884 (citing Employees of Montgomery County Sheriff's Dep't v. Marshall, 893 So. 2d 326, 330 (Ala. 2004) ).’ "
Underwood v. Alabama State Bd. of Educ., 39 So. 3d 120, 127 (Ala. 2009) (quoting Chapman v. Gooden, 974 So. 2d 972, 983-84 (Ala. 2007) ).
Here, when Todd moved for immunity under § 13A-3-23(d), there was certainly a controversy between Todd and the State -- that is, whether Todd was justified in using force against Jones and, thus, was immune from criminal prosecution. Under the immunity statute, it was Todd's burden at the immunity hearing to prove "by a preponderance of the evidence" that he was immune from prosecution. Although Todd complains about the timing of the immunity hearing, the fact remains that a hearing was held, that the trial court denied Todd's motion, that Todd's case was submitted to the jury on his theory of self-defense, and that the jury found Todd guilty beyond a reasonable doubt of second-degree assault. The jury's verdict, which required a higher burden of proof than was required at the immunity hearing, eliminated any controversy between Todd and the State that Todd was justified in using force against Jones. Because the jury verdict eliminated the controversy by answering the question whether Todd was justified in using force against Jones, this Court cannot take any action that " ‘would affect the rights of the parties.’ " Underwood, supra. In other words, as with substantive arguments concerning immunity hearings on appeal, a jury verdict renders moot any argument concerning procedural defects with an immunity hearing. Smith, 279 So. 3d at 1202.
Generally, "this Court cannot consider a moot case," Veitch v. Friday, 314 So.3d 1232, 1235 (Ala. 2020) (citing Swindle v. Remington, 291 So. 3d 439, 453 (Ala. 2019) ), but this Court may still do so when the question raised on appeal is one that is capable of repetition but evading review. This exception to the mootness doctrine is applied when the question " ‘involve[s] a significant issue that cannot be addressed by a reviewing court because of some intervening factual circumstance.’ " Veitch, 314 So. 3d at 1236 (quoting McCoo v. State, 921 So. 2d 450, 458 (Ala. 2005) ). We think this is one of those questions. Thus, we turn to the merits of Todd's procedural argument and answer whether the timing of Todd's immunity hearing was, in fact, a procedural defect under the immunity statute.
Section 13A-3-23(d)(1) provides that "[a] person who uses force, including deadly physical force, as justified and permitted in this section is immune from criminal prosecution and civil action for the use of such force, unless the force was determined to be unlawful." (Emphasis added.) Section 13A-3-23(d)(2) provides that, "[p]rior to the commencement of a trial in a case in which a defense is claimed under this section, the court having jurisdiction over the case, upon motion of the defendant, shall conduct a pretrial hearing to determine whether force, including deadly force, used by the defendant was justified or whether it was unlawful under this section." (Emphasis added.)
"[B]y using the phrase ‘immune from criminal prosecution’ in § 13A-3-23(d), the legislature intended to exempt from trial an accused who uses force as justified in § 13A-3-23, unless the accused's conduct is ‘determined to be unlawful.’ When read together, those phrases lead to the conclusion that a determination must be made, prior to the commencement of trial, as to whether a defendant's conduct was justified or whether it was unlawful. The only available mechanism for such a determination is a pretrial hearing.
"Submitting the question of immunity to a jury, as the State suggested, would render a defendant's right to immunity illusory. As noted in Ex parte Auburn University, [6 So. 3d 478 (Ala. 2008) ], the right to immunity ‘is effectively lost if a case is erroneously permitted to go to trial.’ Additionally, Alabama law has always allowed a defendant to argue self-defense at trial. Thus, treating the right to immunity under § 13A-3-23(d) as an affirmative defense would make that subsection redundant. We must presume that the legislature did not, in enacting § 13A-3-23(d), create a meaningless provision. See Ex parte Wilson, 854 So. 2d 1106, 1110 (Ala. 2002), quoting Ex parte Welch, 519 So. 2d 517, 519 (Ala.1987) (‘ "A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant, and so that one section will not destroy another unless the provision is the result of obvious mistake or error." ’).
"As Judge Joiner noted in his writing dissenting from the Court's order in Ex parte Watters, (No. CR-14-1421, November 10, 2015) [220] So. 3d [1088, 1091] (Ala. Crim. App. 2015) (Joiner, J., dissenting), other states have similarly worded immunity provisions in their self-defense statutes and have held that an accused has the right to a pretrial determination as to whether immunity attaches. ...
"Courts in those states have interpreted their respective immunity provisions in a manner consistent with the above-stated description of immunity by the Alabama Supreme Court. ‘Thus, courts in those states have concluded that immunity is a substantive right and, further, that an accused asserting immunity based on a self-defense claim has a right to a pretrial determination on the issue of immunity. See, e.g., People v. Guenther, 740 P.2d 971, 975-76 (Colo. 1987) ; Dennis v. State, 51 So. 3d 456, 462 (Fla. 2010) ; Fair v. State, 284 Ga. 165, 166, 664 S.E.2d 227, 230 (2008) ; State v. Duncan, 392 S.C. 404, 409-10, 709 S.E.2d 662, 664-65 (2011).’ Ex parte Watters, [220 So. 3d at 1091 ] (Joiner, J., dissenting)."
Harrison v. State, 203 So. 3d 126, 130-31 (Ala. Crim. App. 2015). This pretrial determination is vital to the concept of "immunity" because " ‘[o]ne of the purposes of immunity ... is to spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit.’ " Harrison, 203 So. 3d at 132 (quoting Ex parte Auburn Univ., 6 So. 3d 478, 484 (Ala. 2008) ). In other words, if a defendant moves for immunity from prosecution under § 13A-3-23(d), then the trial court must give that defendant a hearing on his or her motion before trial "commences" so the defendant can avoid the stigma and expense of a criminal prosecution.
Neither the immunity statute itself nor the Alabama Code define the point at which a trial "commences." But the Alabama Rules of Criminal Procedure, which "govern the practice and procedure in all criminal proceedings in all courts of the State of Alabama," see Rule 1.1, Ala. R. Crim. P., and which control "procedural subject matter" in criminal proceedings, see § 15-1-1, Ala. Code 1975, provide some guidance in answering that question.
The Alabama Rules of Criminal Procedure could be divided into seven "general categories: ‘Scope of the Rules,’ ‘Procedures Before Appearance,’ ‘Appearance,’ ‘Pretrial Procedures,’ ‘Trial,’ ‘Sentencing and Judgment,’ and ‘Post-trial Procedures.’ " Ex parte DeBruce, 651 So. 2d 624, 629 (Ala. 1994). In examining Rule 9.1, Ala. R. Crim. P., and answering the question whether a defendant has a right to be present at "a hearing on pretrial motions," the Alabama Supreme Court explained when, under its reading of the Alabama Rules of Criminal Procedure, it believed a trial commences:
"How should the words ‘the trial’ in Rule 9.1 be interpreted in a capital case where the right of a defendant to be present cannot be waived? We have examined some of the records surrounding this Court's adoption of Rule 9, and we think this Court intended the words ‘the trial’ to refer to the proceedings beginning at the time the trial commences, and should be construed in pari materia with the provisions of Rule 19, Ala. R. Crim. P., ‘Trial.’ Our construction of these words seems to be consistent with the construction of Rule 43, Fed. R. Crim. P., which contains similar wording.
"In Government of the Virgin Islands v. George, 680 F.2d 13 (3d Cir. 1982), the court held that ‘a trial "commences" for Rule 43 purposes (as distinguished from double jeopardy purposes) when jury selection begins, not when the first juror or witness is sworn.’ 680 F.2d at 15. In George, the court said:
" ‘Although it is true that jeopardy does not attach until the jury is sworn, Crist v. Bretz, 437 U.S. 28, 35-38, 98 S. Ct. 2156, 2160-2161, 57 L.Ed. 2d 24 (1978) ;
Downum v. United States, 372 U.S. 734, 83 S. Ct. 1033, 10 L.Ed. 2d 100 (1963), or, in a nonjury trial, until the first witness is sworn, Serfass v. United States, 420 U.S. 377, 388, 95 S. Ct. 1055, 1062, 43 L.Ed. 2d 265 (1975), it does not follow that the same test must be applied in determining when a trial "commences" for purposes of Rule 43.
" ‘....
" ‘The principle that a trial "commences" for Rule 43 purposes when jury selection begins was implicit in our holding in Government of the Virgin Islands v. Brown, 507 F.2d 186, 11 V.I. 453 (3d Cir. 1975). In Brown, the defendant was absent when jury selection began, but was present at the conclusion of jury selection and during the remainder of the trial. This court assumed that since the defendant had been absent when jury selection began, he had been absent at the commencement of his trial, but went on to hold that Brown had nevertheless waived his Rule 43 right to be present during the selection of the jury.’
" George, 680 F.2d at 15."
DeBruce, 651 So. 2d at 633. In short, the Alabama Supreme Court interprets the Alabama Rules of Criminal Procedure as providing that a trial "commences" once jury selection begins. Thus, under § 13A-3-23(d), once a trial court starts the jury-selection process it is too late to hold an immunity hearing.
Here, the trial court held Todd's immunity hearing the day his trial began and did not conduct that hearing until after the jury-selection process had been completed. In other words, Todd's immunity hearing was held after his trial had commenced. Consequently, the trial court erred when it overruled Todd's objection and proceeded with the jury-selection process before it conducted his immunity hearing. But not all error causes injury requiring the reversal of a conviction or a new trial. Sometimes error is invited by the defendant, and sometimes error is harmless. Here, the trial court's error is both invited and harmless.
Concerning invited error, the Alabama Supreme Court has explained:
"The law is well settled that a party may not induce an error by the trial court and then attempt to win a reversal based on that error. ‘A party may not predicate an argument for reversal on "invited error," that is, "error into which he has led or lulled the trial court." ’ Atkins v. Lee, 603 So. 2d 937, 945 (Ala. 1992) (quoting Dixie Highway Express, Inc. v. Southern Ry., 286 Ala. 646, 651, 244 So. 2d 591, 595 (1971) ). ‘That doctrine [of invited error] provides that a party may not complain of error into which he has led the court.’ Ex parte King, 643 So. 2d 1364, 1366 (Ala. 1993). ‘A party cannot win a reversal on an error that party has invited the trial court to commit.’ Neal v. Neal, 856 So. 2d 766, 784 (Ala. 2002). See also Liberty Nat'l Life Ins. Co. v. Beasley, 466 So. 2d 935, 937 (Ala. 1985) ; State Farm Mut. Auto. Ins. Co. v. Humphres, 293 Ala. 413, 418, 304 So. 2d 573, 577 (1974)."
Mobile Infirmary Med. Ctr. v. Hodgen, 884 So. 2d 801, 808 (Ala. 2003). In our view, the timing of Todd's actions "lulled the trial court" into error.
As explained above, although Todd was indicted in 2017, Todd did not move for immunity under § 13A-3-23(d) until five days before his trial was scheduled to start. Again, the purpose of § 13A-2-23(d) is to allow a defendant who believes he or she is immune from criminal prosecution to avoid the burden of criminal litigation, and that statute plainly requires that an immunity hearing be held before a trial commences. To accomplish that purpose, the Alabama Supreme Court has explained that "a proceeding to test a defendant's entitlement to immunity should occur as soon as practicable, with due regard to the trial court's authority to manage its docket and both sides’ ability to prepare for the proceeding." Ex parte Watters, 220 So. 3d at 1099.
Here, Todd was indicted in June 2017. He informed the State and the trial court on September 8, 2018, that he intended to pursue a self-defense theory at trial. (C. 12.) But Todd did not move for immunity at that time. According to the case-action-summary sheet, this case was set for trial on February 12, 2018, May 14, 2018, September 10, 2018, and November 26, 2018 (C. 2-3), but the trial was not held on those dates. Multiple subpoenas were issued before the November 26, 2018, trial setting, but Todd did not file a request for an immunity hearing before any of the first four trial dates. Instead, Todd waited to file his motion for immunity until after 4:00 p.m. on Wednesday, March 6, 2019 -- less than five days before his trial was scheduled to begin on Monday, March 11, 2019. (C. 14.) Todd's eleventh-hour filing put the trial court, which did not see the motion until Thursday morning (R. 12), in the position of setting Todd's immunity hearing for either the same day it saw Todd's motion, on Friday, March 8, 2019, or on the morning of Todd's trial. Certainly, the trial court's decision to hold the hearing on Todd's motion for immunity on the day of his trial was the only practical action, considering that the parties and the witnesses who would be necessary for Todd to prove his immunity claim, and for the State to challenge that claim, were already scheduled and, in the case of the witnesses, subpoenaed to be in court that day. (C. 3.) Todd could not reasonably expect the trial court to schedule the hearing and the State to have witnesses available within 24 hours of receiving notice of Todd's motion.
Todd further lulled the trial court into error by not objecting to the timing of the immunity hearing until after the trial court had started the jury-selection process and had excused potential jurors from service. Based on the arguments he presented to the trial court, Todd was aware that holding an immunity hearing after the jury-selection process starts would violate § 13A-3-23(d). Instead of bringing this to the trial court's attention when the case was called (or before the case was called), however, Todd waited until the trial court excused potential jurors to raise his objection to the timing of his immunity hearing. When Todd brought his argument to the trial court's attention, it was already too late to remedy the error. Todd cannot wait until jury selection has already started to raise his objection to the timing of his immunity hearing and also "seek to profit" on his delay. Saunders v. State, 10 So. 3d 53, 88 (Ala. Crim. App. 2007).
Because Todd delayed in moving for immunity until a few days before his trial and because he did not raise any objection to the timing of the hearing on his motion until after the trial court had begun the jury-selection process, Todd invited the trial court's error. See Robitaille v. State, 971 So. 2d 43, 59 (Ala. Crim. App. 2005) (" ‘Under the doctrine of invited error, a defendant cannot by his own voluntary conduct invite error and then seek to profit thereby.’ Phillips v. State, 527 So. 2d 154, 156 (Ala. 1988).").
The trial court's error was also harmless. Rule 45, Ala. R. App. P., provides that
"[n]o judgment may be reversed or set aside, nor new trial granted in any civil or criminal case ... for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made,
after examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties."
As set out above, the purpose of an immunity hearing is to allow a defendant to avoid criminal prosecution if he or she can convince the trial court, by a preponderance of the evidence, that he or she was justified in using force. If unsuccessful at the immunity hearing, the defendant is not barred from presenting evidence to a jury indicating that he or she was justified in using force under § 13A-3-23, Ala. Code 1975. Once the defendant raises the issue of self-defense to a jury, it is the State that bears the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense. See § 13A-3-23(d)(4), Ala. Code 1975 ("If the defendant does not meet his or her burden of proving immunity at the pre-trial hearing, he or she may continue to pursue the defense of self-defense or defense of another person at trial. Once the issue of self-defense or defense of another person has been raised by the defendant, the state continues to bear the burden of proving beyond a reasonable doubt all of the elements of the charged conduct.").
Here, regardless of whether Todd's immunity hearing was held before or after the jury-selection process, the fact remains that Todd presented the jury with his theory of self-defense, the State presented evidence adverse to Todd's theory, and the jury rejected Todd's theory, finding him guilty of second-degree assault. The jury's verdict rendered moot any procedural and substantive defects concerning Todd's claim of immunity under § 13A-3-23(d) ; therefore, rendering any error in the immunity proceedings harmless.
In short, although the trial court erred when it held Todd's immunity hearing after his trial had commenced, that error was invited by Todd and, in any event, was harmless. Thus, Todd is not entitled to any relief on his claim.
In closing, we address one final question: How does a defendant who moves for immunity under § 13A-3-23(d) challenge what he or she believes to be a procedural defect with the immunity hearing? Ideally, as Judge Kellum has pointed out on previous occasions in cases concerning substantive arguments regarding immunity hearings, there should be a mechanism by which a defendant could file a pretrial appeal. See Smith, 279 So. 3d at 1206-07 (Kellum, J., concurring specially). But that option has not yet been provided to defendants by the legislature. Thus, as with substantive claims challenging a trial court's decision on a motion for immunity, the only option a defendant has to properly challenge procedural defects with an immunity hearing is by filing a petition for a writ of mandamus with this Court.
We recognize that this Court in Malone v. State, 221 So. 3d 1153 (Ala. Crim. App. 2016), addressed a trial court's failure to conduct an immunity hearing by way of appeal. That case, however, is distinguishable from this one in one crucial respect. First, in Malone, the trial court did not conduct an immunity hearing because it believed "that it did not have the authority to hold such a hearing or to decide pretrial the question of self-defense." 221 So. 3d at 1157. Here, the trial court did conduct an immunity hearing and found that Todd had failed to meet his burden of proof. Thus, Malone is not applicable to the facts of this case.
Of course, we recognize that, when (as is the case here) a defendant moves for immunity mere days before his or her trial and the hearing on the motion is held the day of the trial, it is difficult to file a petition for a writ of mandamus, and the practicalities of doing so after a jury has been empaneled are not lost on this Court. But just as the defendant bears the burden of moving for immunity in sufficient time for the court to hold a pretrial hearing, see Martin v. State, 230 So. 3d 406, 408-09 (Ala. Crim. App. 2017) (holding that a defendant's motion for pretrial immunity 23 minutes before his trial was set to begin was properly denied as untimely), the defendant also bears the burden of moving for immunity in sufficient time to seek redress from this Court if there is a procedural or substantive defect in the handling of the motion for immunity. If a defendant waits until the eleventh hour to move for immunity, as Todd did here, he or she runs the risk of having insufficient time to prepare, file, and receive a ruling on a petition for a writ of mandamus.
Conclusion
Based on the above-stated reasons, the judgment of the trial court is affirmed.
AFFIRMED.
Windom, P.J., and Kellum, McCool, and Minor, JJ., concur.