Skinner v. StateSkinner v. State
- Reporters:
- ,
- Before:
- McMillan, Baschab, Wise, Shaw, Cobb (per curiam)
The evidence adduced at trial indicated the following. On June 13, 1994, Larry Williams and Wendell Major, deputies with the Jefferson County Sheriff‘s Department, drove to Tuscaloosa to participate in a softball game. They were traveling in Major‘s personal vehicle and were wearing softball uniforms. They stopped at a BP gasoline service station on McFarland Boulevard at approximately 9:00 a.m. that morning so that Williams could make a telephone call. While Williams was on the telephone, a vehicle drove into the parking lot of the station, and a man whom Williams identified as Skinner got out of the driver‘s seat. Skinner approached Williams and asked him if he wanted to “buy some weed,” which Williams understood to be marijuana. (R. 73.) Williams told Skinner that he did not want to buy any marijuana and explained to Skinner that he was a police officer. Skinner then told Williams that he did not look like a police officer. At that point, the passenger in Skinner‘s vehicle, who was later identified as Skinner‘s brother Troy, held up a small plastic bag containing a green leafy substance that Williams believed to be marijuana and that was later determined to be marijuana, and said “Come on, buy this. This is some good stuff.” (R. 75.) Williams and Major, who had witnessed the entire incident while sitting in his vehicle, then arrested both Skinner and his brother and held them until the Tuscaloosa police arrived.
I.
Skinner contends that his conviction is due to be reversed because, he says, “the State cannot still prosecute a case when more than three years have passed after the matter was withdrawn and filed.” (Issue II in Skinner‘s brief at p. 2.)
The record reflects that Skinner was indicted in July 1994. After posting bond, Skinner failed to appear for a court appearance on October 28, 1994. A warrant was issued for his arrest on November 15, 1994, and another was issued on March 21, 1995; both were returned “not found.”1 On March 5, 1997, the State filed a “Motion to Withdraw and File with Leave to Reinstate” pursuant to
Citing Drinkard v. State, 20 Ala. 9 (1852), and Finley v. State, 683 So.2d 7 (Ala.Crim.App.1996), Skinner argues that his prosecution was barred by the statute of limitations found in
Skinner‘s reliance on Drinkard and Finley, however, is misplaced. In Finley, the appellant was indicted in September 1990 for a crime that occurred in May 1990. The State nol-prossed the indictment in December 1990 upon agreement by the appellant to pay restitution to the victim. When the appellant failed to pay the restitution, the State reindicted the appellant in February 1994, after the three-year statute of limitations had run. This Court held that the prosecution of the aрpellant on the second indictment was barred by the statute of limitations.
Unlike the case in Finley, Skinner‘s indictment was not nol-prossed; rather, the State “withdrew and filed” the indictment pursuant to
“In all criminal cases in the circuit court in which a capias or warrant of arrest has issued for two terms and has been returned ‘not found,’ the district attorney may, by leave of the court, withdraw and file the indictment, with leave to reinstate the same when the ends of justice require such reinstatement.”
Although in Drinkard the Alabama Supreme Court held that withdrawing and filing an indictment was the equivalent of nol-prosing the indictment and operated as a discontinuance of the prosecution so as to bar prosecution outside the applicable statute of limitations, as the State correctly points out in its brief to this Court, Drinkard was decided in 1852, before what is now
Section 15-8-71 expressly allows for withdrawing and filing an indictment when an accused cannot be located for prosecution and, by doing so, has superseded the Alabama Supreme Court‘s holding in Drinkard that such action is the equivalent of nol-prosing an indictment. The law on withdrawing and filing an indictment, as it stands today, is explained in Charles E. Torcia, Wharton‘s Criminal Procedure § 217 (13th ed.1990), as follows:
“There may be a practice of passing an indictment to the files for the purpose, among others, of holding the charge in abeyance. Such a proceeding does not amount to a nolle prosequi or dismissal of the charge and does not have the effect of an acquittal; it amounts to nothing more than a postponement of the time of trial, and the indictment may be withdrawn from the files and redocketed for trial at a future term.”
(Emphasis added; footnote omitted.)
II.
Skinner contends that the trial court erred in its instructions to the jury. (Issue III in Skinner‘s brief.) He makes two arguments in this regard.
A.
First, citing Thornton v. State, 570 So.2d 762 (Ala.Crim.App.1990), Skinner contends that the trial court erred in refusing to give his requested jury instruction that “[a] verbal solicitation to commit a crime does not constitute an attempt to commit the crime.” (C. 75.)
When the trial court refused to give Skinner‘s instruction, Skinner objected. The trial court then stated the following:
“All right. I‘m going to give the pattern jury instruction for ‘attempt,’ and it does, in fact, say that the defendant has to have committed an overt act, which I think is clear to the jury of what that is. In addition, I‘m going to define an overt act from the case [Thornton] that you actually cited to me so it will be clear. I‘m telling the jury that to find him guilty of this, you know, there has to be an overt act, and I‘m giving the definition of ‘an overt aсt.’ I think to give that particular jury instruction with regard to verbal solicitation to commit a crime would be misleading to the jury. I can see the jury hanging up on that, because there obviously was a verbal solicitation at one point by this defendant, and that—I think that would be confusing to the jury, because they could see that and not go any further. The way that I‘ve got the instructions I think will be clear to them and they will understand the law and find it.”
(R. 148-49.) The trial court defined an overt act in its instructions as follows: “Now, an overt act is anything that is done that directly moves towards the crime and brings the acсused nearer its commission than mere acts, preparation of, or planning.” (R. 157-58.)
In Thornton, the appellant was convicted of criminal solicitation of a controlled substance, a violation of
“There is no doubt that the appellant committed the act of criminal solicitation, since he asked the undercover police officer to sell him two dilaudid pills for $ 100. It is not necessаry that an actual sale be completed for one to be guilty of solicitation. See Kimbrough v. State, 544 So.2d 177, 179 (Ala.Cr.App. 1989).
“The issue, however, is whether the conduct of the appellant constituted a sufficient overt act so that he could have been convicted of criminal attempt. This court addressed this issue, at length, in Whiddon v. State, 53 Ala.App. 280, 299 So.2d 326, 329-30 (1973).
“‘As to when the conduct of a defendant charged with attempt to commit a crime amounts to an overt act is illustrated in Groneau v. State, Fla. App. [1967], 201 So.2d 599, 603, wherein it is said:
“‘“Mere intention to commit a specific crime does not amount to an attempt. Preparation alone is not sufficient. Sоmething more is required than mere menace, preparation or planning. The attempt is complete and punishable, when an act is done with intent to commit the crime, which is adapted to the perpetration of it, whether the purpose fails by reason of interruption, or for other extrinsic cause. State v. Wilson, 30 Conn. 500, 506 [(1862)]; State v. Enanno, 96 Conn. 420, 427, 114 A. 386 [(1921)]. The act must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation. There must be some appreciable fragment of the crime committed and it must be in such progress that it would be consummated unless interrupted by circumstances independent of the will of the attempter. It is not, however, essential that the actor would have actually succeeded if he had followed the course of conduct upon which he had embarked. State v. Mazzadra, 1954, 141 Conn. 731, 109 A.2d 873 [(1954)]. 1 Wharton Criminal Law, Attempt, § 224 (12th Ed.).”
“‘The “preparation” for commission of an offense consists in devising or arranging the means or measures necessary for commission of the crime, while an “attempt” or “overt act” is a direct movement toward the commission, after the preparations are made. State v. Quick, 199 S.C. 256, 19 S.E.2d 101, 102, 103 [(1942)].
“‘. . . .
“’“Mere solicitation, unaccompanied by an act moving directly toward commission of [an] intended crime, is not an ‘overt act’ constituting [an] element of [the] crime of attempt.” State v. Davis, 319 Mo. 1222, 6 S.W.2d 609 [(1928)].
“‘“An ‘overt act,’ as an element in an attempt to commit a crime, must be something done that directly moves towards the crime, and brings the accused nearer to its commission than mere acts or preparation of or planning and will apparently result, in the usual and natural course of events if not hindered.” State v. Thomason, 23 Okl.Cr. 104, 212 P. 1026, 1027 [(1923)].’ (Emphasis added.)
“In Ex parte James, 468 So.2d 889 (Ala.1984), the Alabama Supreme Court found the words mutterеd by the appellant were not sufficient to sustain his conviction for attempted theft. The appellant
“Section 13A-4-1 is based on the New York and Michigan versions of criminal solicitation. Section 13A-4-1(c) is based on a New York statute to the same effect. N.Y. Penal Law § 100.20 (McKinney 1987).
“In People v. Spencer, 66 Misc.2d 658, 322 N.Y.S.2d 266 (1971), the New York court addressed a similar issue as the one before this court: ‘whether a verbal solicitation to commit a crime constitutes an attempt to commit the crime.’ Spencer at 267. In Spencer, the court noted that the majority of American jurisdictions hold that ‘mere criminal solicitation of another to commit a crime does not constitute an attempt.’ Spencer at 269, quoting Gervin v. State, 212 Tenn. 653, 656-57, 371 S.W.2d 449, 450-51 (1963).
“In Spencer, the appellant drove alongside a child who was walking down the street. He tried to convince the child to perform sodomy on him, but the evidence failed to support a finding that the appellant took any further steps to that end. Based on this evidence, the court found the request by the appellant to be a criminal solicitation but not an attempt.
“Our review of the evidence in the cause sub judice leads us to conclude that the appellant‘s request to buy two dilaudid pills amounted to criminal solicitation and not an attempt. While it is true that the appellant circled the block, this fact does not change our conclusion. His acts were not enough to rise to the level of the required overt act to constitute an attempt.
“Section 13A-4-1(c) was thus not a bar to his prosecution for criminal solicitation.”
Thornton, 570 So.2d at 768-69.
Although a verbal solicitation, alone, is not sufficient to establish the overt-act element of an attempt, a verbal solicitation, when coupled with other acts, may, in fact, constitute an overt act. See Whiddon v. State, 53 Ala.App. 280, 299 So.2d 326 (Ala.Crim.App.1973) (holding that the appellant‘s devising a story about a lost dog in order to induce a nine-year-old girl to go behind a building and his verbal solicitation, once behind the building, to play a game involving tackling were sufficient to establish an overt act). See also Commentary to
B.
Second, Skinner contends that the trial court erred in charging the jury on complicity because, he says, “an attempt conviction cannot be predicated on complicity.” (Skinner‘s brief at p. 5.)
“I think that the Court‘s charge slants severely in favor of the State. It does not go intо what fails to prove aiding and abetting. Normally, the State—the Court would say and if they don‘t prove such-and-such and such-and-such, then obviously you can‘t find them, but instead the entire charge seemed to head the jury in that direction.”
(R. 166-67.) Skinner never argued to the trial court that he could not be convicted of an attempt crime based on a theory of complicity as he now argues on appeal. “Specific grounds for objection waive all others not specified.” Smith v. State, 623 So.2d 369, 376 (Ala.Crim.App.1992), cert. denied, 510 U.S. 1030, 114 S.Ct. 650, 126 L.Ed.2d 607 (1993). See also McGee v. State, 607 So.2d 344 (Ala.Crim.App.1992). “‘The trial court cannot be placed in error on grounds not asserted.... The сourt was required to pass only upon the ground of the objection specified by the [defendant] and those not announced are waived.‘” Griffin v. State, 500 So.2d 83, 89-90 (Ala.Crim.App.1986), quoting Johnson v. State, 421 So.2d 1306, 1311 (Ala. Crim.App.1982), overruled on other grounds, Ex parte Casey, [Ms. 1001555, February 22, 2002] ___ So.2d ___ (Ala. 2002). Because Skinner did not object to the court‘s charge on complicity on the ground he now raises on appeal, this issue is not properly before this Court for review.
III.
In a broad and sweeping allegation, Skinner contends that all of the trial court‘s rulings throughout the trial that were adverse to him were erroneous. (Issue IV in Skinner‘s brief.) Other than listing the trial court‘s alleged erroneous rulings, however, Skinner makes no reаl argument as to why those rulings were erroneous. He cites to no authorities and he includes little or no facts from the record.
IV.
Skinner contends that his sentence should not have been enhanced pursuant to
In Williams, this Court addressed the issue whether the enhancement provision in
“‘The appellant argues that the trial court erred in adding five years to his sentence pursuant to
§ 13A-12-250, Code of Alabama 1975 . Specifically, he argues that that enhancement statutewas not intended by the legislature to apply to a person convicted of a conspiracy to distribute a controlled substance, but applies only to persons convicted of selling a controlled substance within a three mile radius of a school. We agree that ... § 13A-12-250 applies only to the sale or distribution of a controlled substance.
“Section 13A-12-250, Code of Alabama 1975, provides:
“‘In addition to any penalties heretofore or hereafter provided by law for аny person convicted of an unlawful sale of a controlled substance, there is hereby imposed a penalty of five years incarceration in a state corrections facility with no provision for probation if the situs of such unlawful sale was on the campus or within a three-mile radius of the campus boundaries of any public or private school, college, university or other educational institution in this state.’
“(Emphasis added [in Williams].)
“The appellant was convicted of conspiracy to distribute a controlled substance. The fundamental elements of conspiracy are the agreement between the conspirators to commit a crime and an overt act in furtherance of the agreement. See Wade v. State, 581 So.2d 1255 (Ala.Crim.App.1991). Conspiracy does not require that the crime actually be committed. Calhoun v. State, 460 So.2d 268 (Ala.Crim.App.1984). In this case, the offensive conduct was the appellant‘s agreement with Williams to distribute cocaine and his overt act in furtherance thereof. The appellant‘s sentence was not due to be enhanced for the actual sale of the controlled substance. The appellant was not charged with the unlawful sale or distribution of cocaine as required to invoke application of
§ 13A-12-250 , given the plain language of the enhancement statute.“Section 13A-12-204(c), Code of Alabama 1975, provides: ‘A criminal conspiracy to commit a controlled substance crime shall be punished the same as the controlled substance crime that is the object of the conspiracy.’ The sentence contemplated by
§ 13A-12-204(c) is the sentence imposed on one convicted of the substantive crime underlying the conspiracy. Section 13A-12-204(c) does not provide for the application of any enhancement provisions to that sentence, just as§ 13A-12-250 does not expressly provide for the enhancement of sentences for those convicted of a conspiracy to commit a controlled substance offense.”
However, the year before Williams was decided, this Court held that the enhancement provision in
“We find the appellant‘s first issue to be without merit. Even though
§ 13A-12-250 provides enhancement for an ‘unlawful sale,’ this enhancement provision clearly apрlies to an attempted sale. Section 13A-12-203(c) mandates that ‘an attempt to commit a controlled substance crime shall be punished the same as the controlled substance crime attempted.’ ” 640 So.2d at 44.
Skinner argues that this Court‘s holding in Williams, which was decided one year after the Lynch case, is controlling and reflects this Court‘s correction of the “faulty reasoning” in Lynch. (Skinner‘s brief at p. 1.) The State, on the other hand, argues that because Lynch dealt with the
We agree that Lynch is controlling in this case, although not for the reason the State argues. Although Lynch dealt with the attempt statute and Williams dealt with the conspiracy statute, the attempt statute and the conspiracy statute are identical, at least with respect to this issue. Section 13A-12-204(c) provides that “[a] criminal conspiracy to commit a controlled substance crime shall be punished the same as the controlled substance crime that is the object of the conspiracy.” (Emphasis added.) Section 13A-12-203(c) provides that “[a]n attempt to commit a controlled substance crime shall be punished the same as the controlled substance crime attempted.” (Emphasis added.) Although the statutes are identical, this Court has taken two different approaches when determining the effect of these statutes on whether the enhancement provisions in
We believe that the correct approach is the approach taken in Lynch. Although
In Williams, this Court held that the enhancement provision in
Although the Alabama Supreme Court has cited this Court‘s opinion in Williams with approval, see Browder v. State, 728 So.2d 1108 (Ala.1997), on remand, 728 So.2d 1113 (Ala.Crim.App.1998), the issue in Browder was not whether the enhancements in
Therefore, we hold that
We recognize, of course, that by their plain language,
The underlying controlled-substance crime in this case was a sale. Therefore, the trial court properly enhanced Skinner‘s sentence pursuant to
V.
Citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Skinner also contends that his sentence should not have been enhanced by
Based on the foregoing, the judgment of the trial court is affirmed.
AFFIRMED.
McMILLAN, P.J., and BASCHAB and WISE, JJ., concur. SHAW, J., concurs in part and dissents in part, with opinion, which COBB, J., joins.
SHAW, Judge, concurring in part and dissenting in part.
I authored the per curiam opinion for the Court. That opinion reflects the Court‘s interpretation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), with which I continue to disagree. I agree that Dee Cee Skinner‘s conviction for attempted distribution of a controlled substance should be affirmed. I also agree with the general holding in Part IV of the per curiam opinion that the enhancement provisions in