Birmingham Criminal Defense Blog

Alabama v. Hendrix – Dismissal of Vehicular Manslaughter Charges Affirmed

Posted in Alabama DUI, Alabama Manslaughter Law

The Alabama Court of Appeals recently affirmed the dismissal of a second criminal indictment against a defendant for charges related to a fatal car accident allegedly caused by defendant, who is accused of being drunk, speeding and veering into oncoming traffic. coldbeerglassonwhite

The state had appealed trial court’s order as an abuse of discretion in Alabama v. Hendrix, arguing prosecutors had the right to file a second indictment, because defendant’s mental competence level had improved. The original indictment had been dismissed with prejudice when the court ruled defendant, who had suffered a traumatic brain injury as a result of the crash, was not competent to stand trial and would not likely become competent in a reasonable amount of time for a trial.

Still, prosecutors may have another shot at bringing charges if they petition the trial court to modify its original ruling from a dismissal of the charges with prejudice to a dismissal of charges without prejudice.

To dismiss a charge “with prejudice” means the matter is closed and can’t be re-opened, whereas a dismissal of a charge without prejudice leaves the door open for a re-filing. However in some circumstances – this being one – the court can choose to modify that order.

However, prosecutors didn’t take that route in Hendrix, and instead simply refiled a second indictment.

According to court records, the incident that gave rise to this case was a May 2005 crash that occurred on U.S. Highway 278 in Double Springs. The driver of one of those vehicles was killed. The driver of the other, defendant, suffered severe injuries, including a traumatic brain injury. After conducting an investigation, defendant was indicted on charges of vehicular homicide by knowingly, willfully or with criminal negligence causing the death of decedent by committing three serious traffic violations, including DUI, speeding and driving on the wrong side of the road.

Because his injuries were so severe, he was sent to an area hospital for a complete mental evaluation. A neuropyschologist prepared a report concluding defendant was not competent to stand trial and could not be restored in a reasonable amount of time. Following a hearing in which these facts were weighed, the trial court dismissed the charges with prejudice. Prosecutors did not appeal.

Normally, this would be the end of it. However, eight years after the crash, prosecutors now assert defendant’s condition has significantly improved, and the charges should be refiled so that he can stand trial.

Defendant filed a motion to dismiss, claiming double jeopardy, and the court granted his request on double jeopardy grounds.

However, the appellate court did not weigh this aspect. The new charges were defeated by mere virtue of the fact that new charges can’t be filed where previously the court has issued a “with prejudice” dismissal.

Our Birmingham DUI defense attorneys recognize that if prosecutors successfully petition trial court to modify its “with prejudice” order, defendant may still have a valid defense on a claim of double jeopardy. This is a principle that holds defendants can’t be tried for the same matter twice. However, it could in some situations be applicable to orders for dismissal.

Additional Resources:

Alabama v. Hendrix, Feb. 6, 2015, Alabama Court of Criminal Appeals

More Blog Entries:

Marks v. State – Prior Bad Acts Under Rule 404, Feb. 17, 2015, Birmingham DUI Defense Lawyer Blog

Wagner v. Alabama – Probation Revocation Reversed, Remanded

Posted in Alabama Criminal Procedure

Probation is often imposed on criminal defendants after completion of a jail or prison term, sometimes in lieu of a longer incarceration. Part of the deal is defendants have to maintain a certain criteria (avoid arrest, submit to regular drug-testing, meet regularly with probation officer, complete substance abuse treatment or other counseling, conduct community service, etc.). OLYMPUS DIGITAL CAMERA

Failure to abide by these terms can result in severe penalties – sometimes the imposition of maximum statutory penalties for the original underlying charge. This can seem wildly unfair because the actual violation could be something as minor as failing to show up on time for a probation officer meeting.

The court has a broad range of discretion in deciding whether to impose a revocation of probation in lieu of the original maximum sentence, which is why it’s so important for defendants to seek experienced legal counsel at these hearings. Defendants are afforded very specific rights with regard to probation and probation revocation under Rule 27.6. These include the right to a hearing, the right to be present and be represented by an attorney, the right to admit or deny the claims alleged against him and present evidence to support or refute those claims. In many ways, it’s like a trial, and the outcome could determine the course of a defendant’s future.

This was the situation recently in Wagner v. Alabama, a case weighed by the Alabama Court of Criminal Appeals.

According to court records, defendant pleaded guilty years earlier for two serious crimes – first-degree rape and first-degree burglary. He was sentenced to a term of 20 years, but the sentences were split, and he was ultimately ordered to serve 5 years in prison, followed by 5 years of probation.

After his release from prison, he entered the probation system. In March 2014, his probation officer submitted a delinquency report to the court, charging him with failure to abide by the terms of his probation. The probation officer reportedly showed up at defendant’s home and discovered evidence he and another convicted felon were consuming methamphetamine. Defendant tested positive for the drug soon after.

Defendant was appointed an attorney and at a hearing, that attorney indicated his client admitted to both charges and presented no evidence in his defense.

Because of the severity of the original underlying charges, the judge ordered defendant to serve out the remainder of his original sentence – 15 years.

Defendant appealed this finding, arguing ineffectiveness of counsel and also a failure by the court to grant him due process.

The appellate court agreed. It found defendant was not granted the opportunity confront any witnesses upon cross-examination, and there is no indication he waived his right to a hearing. As to the admissions made by the attorney on defendant’s behalf, at no point did the court affirm those admissions were voluntary, or that such an admission didn’t violate his Fifth Amendment rights. Further, no witnesses or evidence was presented by the state, and the court did not inform defendant he had a right to confront adverse witnesses or challenge evidence against him.

Therefore, the probation revocation was reversed and the case was remanded back to the trial court with instructions to comply with Rule 27.6 and Ala. Code 15-22-54.

Our experienced criminal defense lawyers are experienced in representing individuals facing probation revocation in Birmingham.

Additional Resources:

Wagner v. Alabama, Feb. 6, 2015, Alabama Court of Criminal Appeals

More Blog Entries:

Batts v. Alabama – Five-Year Drug Trial Delay Questioned, Feb. 20, 2015, Birmingham Defense Lawyer Blog

Batts v. Alabama – Five-Year Drug Trial Delay Questioned

Posted in Alabama Drug Laws

The Sixth Amendment to the U.S. Constitution provides that those accused in all criminal prosecutions have the right to a speedy trial. The Speedy Trial Act of 1974 establishes time limits for completion of various stages of federal criminal prosecution, or else face possible dismissal. jail

A significant delay in a speedy trial must be carefully weighed under the parameters set forth in the 1972 U.S. Supreme Court decision of Barker v. Wingo, in which the court must consider the length of the delay, the cause of it, the defense assertion of the right to a speedy trial and the absence or presence of prejudice that results from delay.

In the recent case of Batts v. Alabama, a trial court’s five-year delay in a drug trafficking case was reportedly not weighed against the Barker standards. For this reason, the Alabama Court of Criminal Appeals sent the matter back to the trial court for a thorough explanation of the facts as applied to the Barker standards before deciding how to address defendant’s appeal.

The findings could be a significant break for defendants, who was previously sentenced to life in prison for drug crime convictions.

According to court records, defendant was arrested for allegedly trafficking cocaine when he flew from Texas to Huntsville with nearly four pounds of cocaine. He was arrested after a brief chase with deputies, which resulted in $2,500 damage to a police cruiser. He was charged with trafficking in cocaine and first-degree criminal mischief.

But that was in February 2009. The case didn’t actually go to trial until August 2014 – more than five years later. Birmingham criminal defense lawyers recognize that on the surface, this clearly violates defendant’s right to speedy trial. Court records show defendant filed a motion for a speedy trial in May 2009. Then in April 2013, he filed a motion to dismiss the charges against him on grounds his right to a speedy trial, as guaranteed by the Sixth Amendment and affirmed under Barker, had been violated.

Trial court held a hearing on defendant’s motion. During that hearing, the judge stated he was “somewhat familiar with case law on the issue. Yet the judge stated this particular case was not one that should be granted dismissal due to lack of a speedy trial.

The trial was held as scheduled, and defendant sentenced as a habitual felony offender to life in prison on the trafficking charge and 25 years in prison on the criminal mischief charge.

On appeal, defendant argued trial court erred by failing to consider the Barker factors as applicable to his case. The Alabama appellate court agreed.

There is nothing in the record to indicate the court weighed each of the factors as required by the decision in Barker. In fact, the court’s only reasoning given was the judge was “somewhat familiar” with prior case law and that this case simply wasn’t eligible for dismissal on that basis. There was no explanation of why or examination of the Barker factors.

Because of this, appellate court was unable to determine whether trial court considered those factors and remanded the case back to the trial court to make written findings of fact that consider each element of Barker as it relates to this case. The court was granted authority to hold additional hearings for evidence and arguments, and was asked to respond to the order within 35 days.


Additional Resources:

Batts v. Alabama, Dec. 19, 2014, Alabama Court of Criminal Appeals

More Blog Entries:

Alabama PSE Restrictions and the War on Meth, Dec. 6, 2014, Birmingham Criminal Defense Lawyer Blog

Marks v. State – Prior Bad Acts Under Rule 404

Posted in Sex Crimes

In any criminal case, Alabama courts must be careful not to allow prejudicial evidence lacking in probative value to be considered. jail1

One example of this is evidence of a defendant’s prior crimes, wrongs or bad acts. Under Alabama Rule of Evidence 404,courts must be especially careful in the admission of crimes, wrongs or acts intended to prove the character of a person or conformity of action. That is, just because someone was previously convicted of a sexual assault doesn’t necessarily mean he is guilty of the sexual assault of which he is accused, which generally means to allow evidence of the older crime would unfairly prejudice defendant.

The exception is allowed in a criminal case when there is evidence a victim or element of both crimes had a pertinent trait. For example, if both alleged victims were minors of a similar age and of similar relation to defendant, the court may find evidence of prior crime establishes a clear modus operandi.

Of course, prosecutors in criminal cases push for the introduction of prior bad acts all the time. Our experienced Birmingham sex crime defense lawyers know in sexual assault cases in particular, this information can be extremely prejudicial. That’s why it’s very important that such exceptions be fiercely challenged.

A recent example was seen in the case of Marks v. State, which received consideration from the Alabama Court of Criminal Appeals.

Defendant in Marks was accused and later convicted (then retried and convicted again) of first-degree rape by forcible compulsion. Found to be a habitual felon, he was sentenced to life in prison without the possibility of parole.

The underlying case involved an alleged sexual assault in 2009. It started when victim dialed the wrong number and hung up when she realized her mistake. Defendant called her back and identified himself by a certain name. Victim stated she knew a person by that name, and defendant stated he wanted to come over so the two could meet. Defendant arrived at apartment sometime between 11 p.m. and 12 a.m. Victim did not recognize defendant, who then allegedly pulled a gun on her, forced her into a nearby abandoned parking lot and sexually assaulted her while threatening to kill her if she resisted.

After reporting the assault to police, officers recorded phone calls between accuser and defendant, in which defendant made incriminating statements.

At trial, state filed a motion to introduce evidence in the form of two other women who alleged defendant had sexually assaulted them. Prosecutors asserted the purpose was to prove motive, opportunity, plan, knowledge and identify of defendant in the instant case.

In tying the three allegations together, the court indicated the circumstances of the three cases were similar. All are alleged to have occurred in the same month, in close physical proximity, all between the hours of 11 p.m. and 4 a.m., all victims referenced use of a gun, all victims described assailant as a black male known to them by the same name (and each subsequently identified defendant), the actual sexual assaults were similar in nature and in each case, perpetrator allegedly threatened to kill victims and/or young children if they reported the crime. Finally, defendant allegedly made subsequent text message contact with each victim, informing each that she was his girlfriend and could not have contact with other men.

Trial court held a hearing on this evidence prior to trial, with prosecutors alleging this information collectively indicating pattern and characteristics of crimes so unusual and distinctive as to be indicative of a “signature.” Defense argued introduction of any prior bad acts would be greatly prejudicial and not especially probative. Further, the similarities weren’t so great as to constitute a clear signature.

The trial judge sided with prosecutors. Defendant was ultimately convicted and sentenced to life in prison.

On appeal, defendant argued trial court abused its discretion, violated Rule 404(b) and erroneously admitted prior bad acts for reasons that weren’t at issue during trial. Appellate court agreed and reversed, ordering yet another trial.

Appellate court justices noted that while prosecutors indicated the additional testimony went to underscore identity of defendant, his identity was never material in the case. Defense never argued no intercourse occurred between alleged victim and defendant, but rather that contact had been consensual.


Additional Resources:

Marks v. State, Dec. 19, 2015, Alabama Court of Criminal Appeals

More Blog Entries:

Complications With Alabama’s New Expungement Law, Dec. 2, 2014, Birmingham Defense Attorney Blog

Morris v. Alabama – Lesser Offense Instruction Wrongly Denied by Trial Court

Posted in Alabama Theft Crimes

While most criminal defense lawyers will argue to have a charge reduced or dismissed entirely before trial, sometimes that isn’t possible. In these situations, it may become necessary to argue for a jury instruction that includes an option for a lesser included offense. door1

A lesser included offense is a crime for which all of the elements necessary to impose liability are also elements found in a more serious crime. So for example, larceny is a lesser-included offense of robbery. Larceny involves taking of tangible property from another person with the intent to permanently deprive owner of said property. Robbery, meanwhile, requires all of those elements – plus the use of intimidation or force.

The reason a defense attorney might ask for a lesser-included offense in the jury instruction is because courts have discretion to allow jurors to decide between a more serious crime or a lesser crime. The idea is jurors, given the option of convicting someone who is not fully culpable or allowing him to go free entirely, might choose to convict on a more serious crime than is supported by fact if not given a third option.

This was essentially the assertion in the recent case of Morris v. Alabama, before the Alabama Court of Criminal Appeals. Here, the court reversed a first-degree burglary conviction (for which defendant was sentenced to 20 years in prison) on grounds trial court erred in refusing to issue a jury instruction on the lesser-included offense of second-degree burglary.

First-degree burglary in Alabama is codified under 13A-7-5 and provides a person who knowingly and unlawfully entered or remained in an occupied dwelling with intent to commit a crime therein and is either armed with explosives, causes physical injury to another or is armed with a deadly or dangerous instrument or threatens to use a deadly or dangerous instrument, may be convicted of the charge.

Meanwhile, our theft crime defense lawyers recognize the crime of second-degree burglary in Alabama is when a person unlawfully enters a lawfully occupied dwelling with intent to commit a theft or other felony.

According to court documents in this case, defendant and victim were reportedly dating, but broke up due to defendant’s allegedly abusive tendencies. Still, the pair continued to talk. Shortly before the incident, victim was hurt in a crash, and defendant came to see how she was doing. While there, he learned other men had contacted her. He reportedly struck victim several times in the head and then left. She called police.

Three days later, in the middle of the night, defendant allegedly gained entrance to the home through an air vent. Victim awoke to defendant’s presence and asked him to leave. He refused. She dialed 911, and hid the phone. The call got disconnected. A dispatcher called back. Defendant grabbed the phone, told dispatcher everything was fine. After hanging up, he became very angry, yelling and screaming at her for calling police. He grabbed a knife from the kitchen and reportedly began pointing and shaking it while cursing at her.

Police responded to the home and defendant fled out a back window, taking a knife and telephone with him. He was found by authorities nearby a few hours later.

He later told police that although he had picked up the knife from the kitchen, he never threatened his ex with it.

That became a key point in the case because that qualifier was the difference between a first-degree burglary charge and a second-degree burglary charge.

Defense attorney repeatedly argued for an instruction on the lesser-included offense of second-degree burglary, but judge repeatedly denied those requests. On appeal, this issue was again raised. Prosecutors argued the issue wasn’t properly reserved for appeal.

However, appellate justices ruled otherwise. While second-degree burglary isn’t necessarily a lesser-included offense of first-degree burglary, it can be, depending on the circumstances. In this case, the court found sufficient evidence for a second-degree burglary finding, and jurors should have been given that option.

Defendant’s conviction was reversed and the case remanded for a new trial.

Additional Resources:

Morris v. Alabama, Nov. 21, 2014, Alabama Court of Criminal Appeals

More Blog Entries:

United States v. Renzi – Federal White Collar Criminal Defense, Dec. 12, 2014, Birmingham Burglary Defense Lawyer Blog

Amison v. State – Alabama Courts Grapple With Juvenile Homicide Convictions

Posted in Alabama Murder Laws, Alabama Violent Crimes

A man who was just 17 when he was arrested for the robbery and slaying of a popular Alabama minister/barber has seen his case run the legal gamut.guncloseup

Initially, in State v. Amison, prosecutors charged the teen with capital murder, as it was a killing allegedly committed in the course of carrying out another felony (in this case, robbery). However, while that case was pending, the U.S. Supreme Court, weighing another Alabama criminal case (Miller v. Alabama), ruled an automatic life sentence with no possibility of parole – which is what would be the punishment in any capital case – was cruel and unusual punishment when defendant was under 18-years-old at the time of the crime. (It’s been illegal to give minors the death sentence since 2005.)

That gave the judge no choice but to dismiss the capital murder charge. Prosecutors then responded by filing two felony murder charges. He and his co-conspirator were convicted on those two charges and given two, 32-year sentences, which were to run concurrently. A concurrent sentence is one in which the sentences are served at the same time, rather than back to back. That means defendants would serve a total of 32 years behind bars, rather than 64 years.

But the case once again went before a higher court, this time the Alabama Court of Criminal Appeals in Amison v. State, where defense lawyers argued two felony murder charges amounted to double jeopardy. The appellate court agreed, and ruled in December he could only be sentenced for one of those counts. In January, a trial court, complying with that order, ruled defendant should receive a single 32-year sentence.

Of course, that doesn’t much change in outcome for defendant. He’s still serving 32 years. But the ruling was an important one, particularly because when it comes to violent felony crimes, it’s common for prosecutors to stack charges. This gives them greater leverage in negotiating a plea bargain. However, they should not be allowed to overstep legal boundaries when the law is clear regarding the rights of the accused.

Here, the court noted the 1999 Alabama Supreme Court case of Ex parte Rice held Alabama Code 13A-6-2(a)(3) (the statute pertaining to felony murder in the commission of another crime) creates a single offense, even though it provides alternative methods of proving the offense. Further, the state high court ruled the principle of double jeopardy would bar more than one conviction and more than one sentence for one homicide.

In the Rice case, defendant was convicted of one count felony murder during robbery and one count felony murder during commission of a felony clearly dangerous to human life (discharging a firearm into occupied vehicle). Yet both convictions arose from a single killing, and therefore, he should not be convicted twice for the same crime.

To remedy the earlier problem of not having an alternative under which to sentence a juvenile convicted of capital murder, Alabama Attorney General Luther Strange in June issued an advisory indicating juvenile killers convicted under that law would be eligible for a sentence of life with the possibility of parole. This was after the state legislature failed to enact a law to address the U.S. Supreme Court finding mandatory life sentences without parole for juveniles was unconstitutional.

However, that edict has been challenged by murder defense attorneys who argue the attorney general’s office is attempting to re-write the law, which is a job reserved for legislators.

Additional Resources:

Amison v. State, Dec. 19, 2015, Alabama Court of Criminal Appeals

More Blog Entries:

Birmingham Police Arrest Two for Drug-Related Homicide, Feb. 3, 2015, Birmingham Murder Defense Lawyer Blog

Man arrested for Murder in Birmingham

Posted in Alabama Violent Crimes

According to a recent news article from, Birmingham police arrested a 50-year-old defendant  in connection with a reported homicide at a local motel.  Victim was a 45-year-old woman who was strangled to death.  Police found victim lying unresponsive in the rented room, according to a spokesperson.

motel-1168546-mHotel workers discovered victim’s body while cleaning the room around 11 a.m.  They immediately called police and EMS workers pronounced her dead on scene.   Police say victim and defendant knew each other, but were not in a romantic relationship. Police have not released any motive or further details about this alleged offense, but it is being reported defendant who is currently being held on $75,000 cash bond was familiar to police and prosecutors.

Defendant allegedly was also charged with a 2008 murder.  He was accused of robbing two victims along with help from two accomplices.  One victim was killed during the alleged robbery.  This crime involved the three men allegedly having a woman attract victims’ attention so they could rob them.
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Birmingham Police Arrest 2 for Drug-Related Homicide

Posted in Alabama Manslaughter Law

According to a recent news report from, Birmingham police arrested two defendants for an alleged drug-related slaying.  A police spokesperson said the investigation began when victim was found dead in his home in Highland Park.

Victim was a 48-year-old man found dead by police when they responded to a call around 8:15 p.m.  This was not the first time Birmingham police were at this man’s home.  Police were there on a previous occasion for an assault, which had allegedly occurred in his home, and he reported his vehicle had been stolen.  Police said they have recovered victim’s vehicle at this point.  While police have not given out many specifics about the alleged homicide, they do believe this murder was drug-related.

If you or a family member has been charged with homicide in Birmingham, you are likely very concerned about what will happen to during the court process.  This is understandable, as homicide is among the most serious criminal offenses of which a person can be charged.
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“Chicken Suit” Man Arrested in Hueytown on Assault Charges

Posted in Possession of Controlled Substance

When someone has an outstanding warrant for his or her arrest, sometimes police will send out a warrant squad to execute the warrant and arrest defendant.  Many times police will simply wait for defendant to get stopped in traffic or arrested for another crime rather than going out looking for the suspect.

rooster-1435536-mAccording to a recent news article from Alabama Live, a man was recently arrested in Hueytown while wearing a chicken suit.  Defendant was allegedly knocking on residents’ doors in an attempt to sell the homeowner tax services provided by his employer.  Another salesmen who also had an outstanding warrant for drug possession charges accompanied him.

Residents considered these sales visits to be unsolicited, and were apparently upset about the perceived intrusions enough to contact local police.   When police arrived in the neighborhood to tell the two men to stop soliciting homeowners, they ran their information into the warrant management database and discovered at least one felony warrant for the man in the chicken suit.  He was still wearing the suit at the time of his arrest.
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DUI Arrests in Birmingham Expected on Super Bowl Sunday

Posted in Birmingham DUI

Having a big Super Bowl party or going to one at a friend’s house can be a great time.  This year, given all the media coverage about “deflate gate,” media analysts are predicting even higher television ratings than previous years.   As you are well aware, in addition to watching the game, a Super Bowl party usually involves a lot of drinking.  As the Birmingham police are aware, the night also involves a lot of drinking and driving, which means a spike in DUI arrests.

football-5-655092-mIt is probable there will increased patrols out on the streets and highways, as well as the possibility of sobriety checkpoints.  While the best thing you can do is drink responsibly and use a designated driver, if you find yourself being pulled over by the police, there are several things you should keep in mind.

The police are trained to administer three standardized field sobriety tests (SFTSs) when conducting a traffic stop in which driver is suspected of driving under the influence of alcohol or drugs.   Those three SFSTs are the Horizontal Gaze Nystagmus test (HGN), the Walk and Turn test, and the One Legged Stand.  Our Birmingham DUI defense attorneys constantly hear from clients who believe they passed the HGN (eye test), and do not understand why they were arrested.
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