Ex Parte Stewart
On September 10, 1996, on remand for the third sentencing hearing, the jury unanimously recommended that Stewart receive the death penalty. The trial judge accepted the jury‘s recommendation and sentenced Stewart to death. The Court of Criminal Appeals affirmed this sentence. Stewart v. State, [Ms. CR-90-0415, September 26, 1997] 730 So.2d 1203, at 1212 (Ala.Crim.App. 1997). We granted certiorari review pursuant to
In his petition for the writ of certiorari, Stewart raised 21 issues for review. All of those issues were fully discussed by the Court of Criminal Appeals in its September 26, 1997, opinion affirming Stewart‘s sentence. We will discuss only one of those issues.
Stewart argues that the trial court erred during the third sentencing hearing by allowing the jury to separate over his objection, in violation of
“(a) Separation of Jurors in Capital Trials.
“(1) In any prosecution for a capital felony, upon the consent in open court of the defendant, defendant‘s counsel, and the district attorney, the trial court, in its discretion, may permit the jury trying the case to separate during the pendency of the trial, whether the jury has retired or not.
“(2) A separation of the jury so permitted under Rule 19.3(a) shall create a prima facie presumption that the accused was not prejudiced by reason of the separation.
“(3) All discussions among the parties and the trial court concerning whether there will be a separation shall take place outside the hearing of the jury, and the jury shall not be informed which party, if any, requested or objected to sequestration or separation.”
Under that rule (which has since been amended, effective December 1, 1997), the trial court was not authorized to allow the jury to separate, unless the prosecution and the defense agreed to a separation. The trial court‘s allowing the jury to separate without the consent of the defense clearly violated this rule.
However, the Court of Criminal Appeals held that, despite this violation of
“In the prosecution of any felony case the trial court in its discretion may permit the jury hearing the case to separate during the pendency of the trial. The court may at any time on its own initiative or on motion of any party, require that the jury be sequestered under the charge of a proper officer whenever they leave the jury box or the court may allow them to separate. A motion to separate or sequester shall not be made within the hearing of the jury, and the jury shall not be informed which party, if any, requested separation or sequestration.”
Before the June 15, 1995, amendment,
“(a) If the accused and his counsel and also the prosecuting attorney, in any prosecution for a capital felony consent thereto in open court, the trial court in its discretion may permit the jury trying the case to separate during the pendency of the trial, whether the jury has retired or not. A separation so permitted shall not create a presumption of prejudice to that accused, but on the contrary it shall be prima facie presumed that the accused was not prejudiced by reason of the separation of the jury.
“(b) It shall be improper for the trial court to ask the accused, counsel for the accused or the prosecuting attorney, in the hearing of the jury, whether he or they will consent to a separation of the jury pending the trial.
“(c) It shall be improper for the accused, counsel for the accused or the prosecuting attorney to state to the trial court in the hearing of the jury that he or they consent to a separation of the jury pending the trial.
“(d) In the prosecution of any noncapital felony the trial court in its discretion may permit the jury trying the case to separate during the pendency of the trial . . . .”
Thus, the June 15, 1995, amendment to this statute eliminated the need for an agreement to separate the jury in capital cases, by vesting in the trial court the discretion to make the separation decision in such cases. Yet, after June 15, 1995, Rule 19.3 continued to require the consent of all parties before the judge could allow the jury to separate in a capital case. Thus, given a procedural rule that appears to have been applicable and a conflicting statute, we must determine which
We conclude that the Court of Criminal Appeals correctly held that the amended
“Any provisions of this title regulating procedure [i.e., Title 12, Ala. Code 1975] shall apply only if the procedure is not governed by the Alabama Rules of Civil Procedure, the Alabama Rules of Appellate Procedure or any other rule of practice and procedure as may be adopted by the Supreme Court of Alabama.”
At the time of the third sentencing hearing,
The 1975 Code became effective on October 31, 1977, pursuant to a proclamation of the Governor of October 1, 1977, based on Act No. 20 (1977 Regular Session). Section
However,
Section 6.11 of Amendment 328 to the Constitution of Alabama provides:
“The supreme court shall make and promulgate rules governing the administration of all courts and rules governing practice and procedure in all courts; provided, however, that such rules shall not abridge, enlarge or modify the substantive right of any party nor affect the jurisdiction of circuit and district courts or venue of actions therein; and provided, further, that the right of trial by jury as at common law and declared by section 11 of the Constitution of Alabama 1901 shall be preserved to the parties inviolate. These rules may be changed by a general act of statewide application.”
As the Court of Criminal Appeals stated in its opinion of September 26, 1997, the act revising
The Legislature did not explicitly repeal Rule 19.3 when it amended
“[The pre-December 1, 1997, version of] Rule 19.3 . . . cover[ed] the separation procedure for both capital and noncapital felony cases. We presume that, when enacting a statute, the legislature has full knowledge of and information about prior
and existing law and legislation regarding a particular subject matter. State v. Thomas, 611 So.2d 472 (Ala.Cr.App. 1992); Ex parte Love, 513 So.2d 24 (Ala. 1987); Roberts v. State, 482 So.2d 1293 (Ala.Cr.App. 1985). Therefore, we may presume that the legislature was aware of the provisions of Rule 19.3 when it [amended] § 12-16-9 . We also presume that the legislature does not enact meaningless, vain, or futile statutes. Langham v. State, 662 So.2d 1201 (Ala.Cr.App. 1994); Sturgeon v. City of Vestavia Hills, 599 So.2d 92 (Ala.Cr.App. 1992); Powers v. State, 591 So.2d 587 (Ala.Cr.App. 1991). Because the provisions of the former§ 12-16-9 are substantially similar to [the provisions of the pre-December 1, 1997, version of] Rule 19.3, the legislature must have intended to change the existing law and depart from [it]. Sheffield v. State, 708 So.2d 899 (Ala.Cr.App. 1997).”
Certainly, repeal by implication is not favored, and an express repeal by the Legislature is preferable. Benson v. City of Birmingham, 659 So.2d 82 (Ala. 1995). Yet, repeal by implication is an accepted legislative tool that this Court must acknowledge. Where two provisions directly conflict, this Court may presume that the Legislature intended to repeal the earlier provision by adopting the later one. The version of Rule 19.3 in effect at the time of Stewart‘s third sentencing hearing became effective on January 1, 1991. The amended version of
This Court‘s cases provide a historical look at the legislative role in making rules of procedure for the courts.1 This Court held in Ex parte Foshee, 246 Ala. 604, 606, 21 So.2d 827, 828 (1945), that “[i]t has been the recognized doctrine in this State that a legislative enactment takes precedence over a rule of the Court.” 246 Ala. at 606, 21 So.2d 827, 828. In Foshee, the Court stated that “[t]o make a rule for an inferior court this Court must have authority conferred either by the Constitution or by statute.” 246 Ala. at 606, 21 So.2d at 827. This Court later reemphasized the fact that a legislative enactment takes precedence over a rule of court and that the Constitution of Alabama conferred on the Legislature the power to prescribe rules of practice and procedure in state courts. Ex parte Huguley Water System, 282 Ala. 633, 639, 213 So.2d 799, 805 (1968).
We would finally note that Stewart argues that the interpretation we adopt today nullifies
We have evaluated each of the other alleged errors Stewart complains of, and we conclude that the Court of Criminal Appeals correctly held that no error, plain or otherwise, occurred in Stewart‘s third sentencing hearing that would warrant a reversal of his sentence.
We affirm the judgment of the Court of Criminal Appeals.
AFFIRMED.
Maddox, Shores, Houston, Kennedy, Cook, See, and Lyons, JJ., concur.