Birmingham Criminal Defense Blog

Ex parte H. Whited – Alabama Supreme Court Reverses Sex Crime Conviction

Posted in Sex Crimes

The Alabama Supreme Court has ordered a new trial for a man convicted and sentenced to 35 years on a sex crime offense. The court ruled there was a reasonable probability the result of the first trial would have been different had his defense counsel not committed serious error on a number of fronts. dispair

It’s important to note the standard to prove ineffective assistance of counsel following a criminal conviction is a high one. The 1984 U.S. Supreme Court decision of Strickland v. Washington, cautioned courts must indulge a strong presumption that an attorney’s conduct falls within the range of reasonable professional assistance because the harsh light of hindsight can make it too easy to conclude error.

Even when a lawyer’s performance is deemed deficient, no relief is to be granted unless there is reasonable probability that but for those mistakes, the outcome of the proceeding would have been different.

In the case of Ex parte H. Whited, defendant argued his defense lawyer improperly waived a closing argument – following an impassioned closing argument from the prosecutor.

In and of itself, the decision of a trial counsel to waive a closing argument isn’t considered ineffective counsel (per the 2004 Alabama Court of Appeals decision in Young v. State).

On appeal in this case, the appellate court in a split decision found that while defendant made a compelling argument that his attorney used poor judgment in waiving the closing argument, he’d failed to affirmatively prove he’d suffered prejudice as a result of that decision, or that it potentially affected the outcome of the trial.

However, the state supreme court reversed.

According to court records, this case involved the sexual assault of a teenage girl who was the daughter of defendant’s longtime friend. A neighbor reported to police that on a particular night several years ago, he heard sounds that would seem to indicate the girl was under extreme distress and pain. He said he’d heard similar noises before, but did not report them until now.

When police investigated, the girl told them she had been sexually victimized by her father for years, but that on that particular night in question, two other men participated as well – one being defendant.

While defendant conceded to knowing the girl, he denied he was there on the night in question. Further, he had three witness alibis who testified he was at the home of his uncle on the night in question because he’d injured his back earlier in the day while mowing the neighbor’s yard.

Initially, when his defense attorney was questioned as to why he gave no closing argument, the attorney could not provide a clear answer. He said his memory on the case was diminished because his wife had died suddenly a short time after trial concluded. He didn’t recall discussing the decision to waive the closing argument with defendant. The appellate court surmised the waiver was likely part of a trial strategy to prevent the prosecutor from further underscoring other specific evidence in rebuttal.

Defendant argued to state supreme court that appellate court erred in finding counsel’s choice to waive the closing argument was a “trial strategy.” Further, he alleged the appellate court didn’t fully consider the waiver in light of prosecutor’s strong argument and lastly, the appellate court failed to consider the strong arguments against guilt available to defendant.

Supreme Court agreed the attorney’s lack of an explanation as to why closing argument was waived or even at what point in the trial the decision was made distinguished it from other cases. Further, there were a number of strong arguments available to defendant to refute his guilt. There was no physical evidence. The only evidence the state had directly linking defendant to the crime was victim’s testimony. However, victim’s testimony was inconsistent on a number of points.

The fact that these strong arguments against guilt were not underscored in a closing argument, the supreme court found, bolstered defendant’s request for a new trial, which was granted.

It is imperative that defendants facing felony charges seek counsel from an experienced, capable criminal defense attorney – particularly for sex crime cases that are highly charged with emotion. The stakes are simply too high to do otherwise.

Additional Resources:

Ex parte H. Whited, Feb. 6, 2015, Alabama Supreme Court

More Blog Entries:

Alabama v. Hendrix – Dismissal of Vehicular Manslaughter Charges Affirmed, Feb. 26, 2015, Birmingham Criminal Defense Lawyer Blog

Alabama Prison Reform Could Alter Sentencing, Parole

Posted in Alabama Criminal Law

State officials in Alabama must address serious and widespread issues plaguing its prisons, or else the federal government has indicated it will intercede – and soon. prison4

Primarily, the problem is overcrowding, stemming from decades-old policies that involve harsh minimum mandatory sentences for non-violent offenders – particularly those convicted of drug offenses. Beyond that, state prisons are breeding grounds for abuse and maltreatment. The U.S. Department of Justice has referenced some 20 cases in which staff members engaged in sexual conduct with prisoners at the Julia Tutwiler Prison for Women.

In its January letter threatening a federal lawsuit and intervention, the justice department characterized staffing and supervision levels as “catastrophically low.” Alabama is the No. 1 worst state in the nation in terms of space, with lock-up facilities at roughly double capacity. While the state population rose by 23 percent since 1977, the state’s prison population climbed by 840 percent.

It can’t stay this way. Action will come one way or the other. Either Alabama officials will implement swift and meaningful reform, or the federal government will make it happen. Consider that in California three years ago, federal courts forced the state to free some 30,000 prisoners due to overcrowding.

There are competing ideas for how the tackle the problem. As our Birmingham criminal defense lawyers understand it, there are one of two basic outcomes: Either taxes are raised and we expand on the current system, or we change the way we sentence and supervise non-violent offenders.

The latter could prove a benefit to those facing criminal charges, but it’s not a given. Defendants in Alabama still face some of the highest conviction rates and the harshest sentencing, so it remains imperative to seek experienced legal counsel.

A bill is currently pending that would allocate $35 million every year for four years to alter sentencing and probation/parole practices. However, the plan would also create new prison beds and add more parole officers. The intended result would be a prison population reduction of 4,500 prisoners, which would reduce the capacity from 192 percent to 140 percent. If that is actually accomplished, it would be the fastest reduction of prison population the country has ever seen.

But the plan may not be completely realistic. The state right now is grappling with a budget crisis. Where that $35 million will come from isn’t clear. However, if the state were to try to simply build more prisons and add more guards – with no focus on sentence reduction – it would cost an estimated $650 million. What’s more, it wouldn’t do anything to stem the increasing tide of new prisoners.

Should the federal government intercede, it could order a mass release of prisoners or the immediate implementation of a massive construction project.

Drug and property crimes account for two-thirds of all prison sentences, with the average inmate spending twice as long in prison compared to the national average due to minimum mandatory sentencing. What’s more, probation and parole violations account for about 40 percent of all state prison admissions.

The new measure would create a new class of felony – Class D. The new class would no longer label certain theft and property crimes as “violent,” thus removing the mandated prison sentence. Further, parole and probation officers would receive additional training. Technical violations would result in an immediate – but short – jail stay, instead of waiting for months to go to a prison that doesn’t have room for them.

These changes could benefit Alabama defendants, but they won’t negate the need for experienced legal representation for those facing criminal charges.

Additional Resources:

Fix Alabama prisons now or the federal court will, March 4, 2015, Editorial Board

More Blog Entries:

Alabama v. Baker – Post-Conviction Relief in Alabama, March 5, 2015, Birmingham Criminal Defense Attorney Blog

Facebook Post Results in Alabama Arrest for Terrorist Threat

Posted in cyber crime

In the heat of an angry moment, it’s not uncommon for people to utter harsh words. Often, those statements reflect raw emotion, rather than reality or intent. sittingtexting

In recent years, advancements in technology have made it increasingly fast and easy to make those kinds of statements with a few keystrokes. What once people might have thought better of once they sat down to put pen to paper is now instantaneous. What’s more, the platforms on which these dramas play out are increasingly public. This is true no matter what privacy settings are on your social media page.

Such actions may seemingly be forgotten by the author the next day, but the consequences can be long-lasting. In fact, they may result in an arrest for the very serious felony charge of making a terrorist threat. Ala. Code 13A-10-15 classifies the crime as a Class C felony, punishable by between 2 and 20 years in prison.

The crime involves making a threat by any means to commit a crime of property damage or violence. In order to qualify, the threat has to be either intentional and reckless (involving the disruption of school activities, terrorizing another person or resulting in the evacuation of a building, assembly place or some other location that causes serious inconvenience to the public) or made with the intention to retaliate against a person who is involved in a judicial or law enforcement proceeding.

It sounds very serious – and it is. But again, we’re talking about something that could easily stem from a temporary lapse in good judgment.

This is what is alleged in the recent case of a Tallapoosa County man who reportedly made some type of threat against a district attorney on his Facebook page. The 44-year-old defendant was charged with making terrorist threats. Authorities have refused to detail the exact nature of the threats, but indicate it was connected to an earlier homicide. The post was later removed from defendant’s page, but not before police collected the evidence necessary to make an arrest.

Interestingly, this is the second arrest made for terrorist threats in connection with the underlying homicide. In the other case, police arrested a 30-year-old man for making terrorist threats to police officers on his Facebook page. The threats reportedly were in the form of several posts, and are alleged to have involved threatening the lives of several police officers.

Law enforcement has indicated there is a great deal of misinformation about the shooting.

In another recent Alabama case, a 19-year-old student at the University of Alabama was arrested for terrorists threats after reportedly posting messages characterized as “alarming” that resulted in residents of a dorm being forbidden to enter or exit the building for about 45 minutes while the property was searched.

In yet another case, an attorney was arrested after allegedly threatened a state trooper in a courtroom. The attorney denied the allegations, and the case is still pending.

In December, a woman from Lauderdale County was arrested on the charge after she reportedly sent someone a text message from her cell phone threatening to shoot a county judge overseeing a child custody hearing.

As these cases reveal, these are often emotional outbursts uttered in the heat of the moment, and they don’t reflect the defendant’s true intent. Having an experienced criminal defense attorney to help prove that fact is critical.

Additional Resources:

Dadeville man arrested for alleged threats against district attorney, March 2, 2015, By David Granger, Alex City Outlook

More Blog Entries:

Wagner v. Alabama – Probation Revocation Reversed, Remanded, Feb. 22, 2015, Alabama Criminal Defense Lawyer Blog


U.S. v. Carter – Federal Appeal for Sex Offenses Fails to Alter Conviction, Sentence

Posted in Alabama Criminal Appeals

The U.S. Court of Appeals for the Eleventh Circuit – the same that oversees federal cases out of Alabama – has affirmed the conviction of a Florida man for travel in foreign commerce to engage in sex with a minor, four counts of travel in commerce to engage in illicit sexual conduct with a minor and one count of attempting travel in foreign commerce for the later purpose. prisonyard

All of these are violations of federal law, and defendant sought to have his conviction overturned. However, the appellate panel rejected the arguments he made in U.S. v. Carter.

Criminal appeals can sometimes yield favorable results for defendants. However, it’s especially important that the case be handled well by the defense attorney at trial. Appeals can only stem from arguments and objections properly preserved at trial. The one notable exception is inefficient legal counsel, but that’s often very difficult to prove.

Our experienced criminal defense lawyers are committed to representing our clients both at the trial level and, if necessary, on appeal.

In this case, defendant argued the jury instructions were legally incorrect and constituted an abuse of discretion and reversible error. Defendant also objected to the district court’s decision to refuse depositions be taken from five foreign witnesses, as well as admittance of a partially-redacted U.S. State Department cable reporting his 1990 arrest in Egypt for alleged child molestation.

The court rejected these arguments.

According to court records, defendant is an American who ran a residential facility in Haiti that provided food, shelter, schools and other amenities to youths whose families could not afford it. There was also a health clinic, which provided free services to residents following the 2010 earthquake. Defendant operated the center from 1995 until 2011. He traveled back and forth from the U.S. to the center during that time.

However, a number of those youth later came forward to say he had been sexually abusing young boys for years. He was arrested in Miami in 2011.

It was later revealed one of the key witnesses had told law enforcement officials there was no abuse and there had been nothing improper going on at the center, the clinic or at the hands of the offender. The government indicated those statements were based on law enforcement notes, and not recorded statements taken under oath.

Still, the government didn’t object to defense raising this issue, so long as the question wasn’t formed as hearsay. The government also objected to “theatrical use of law enforcement reports,” involving a defense lawyer reading from them and waiving them around before a jury, saying such actions were “inappropriate” and gave the impression the attorney was reading from an official document or witness statement, when in fact he isn’t.

During cross-examination at trial, the witness conceded that during his first meeting with law enforcement he denied knowledge of sexual activity involving the defendant. Ultimately, witness admitted he had not told government agents of abuse until just prior to trial because he was ashamed.

There were also a number of defense requests to depose foreign witnesses who would testify they never suspected any wrongdoing at the center. However, the court denied these motions as speculative and immaterial. The government offered to stipulate certain facts to which those witnesses would testify, including that they never observed defendant engaged in illicit sexual conduct with children. However, defense rejected this, arguing nothing was comparative to hearing from those witnesses directly.

Additionally, evidence was presented regarding defendant’s prior arrest on sexual molestation charges in Egypt. He testified in court the arrest was because the government falsely accused him of being a spy. Prosecutors sought to refute this testimony and impeach defendant with state department cables indicating the allegations involved sexual abuse of a young boy who lived with defendant. The court allowed the cable, but redacted the comments portion that referenced defendant’s own statements about the arrest, which tended to indicate he knew the arrest was not for spying.

Defendant was ultimately convicted and sentenced to life in prison.

On appeal, defendant argued trial court erred and he should receive a new trial. However, appellate court found no reversible error. Specifically with regard to the deposition of foreign witnesses, the justices ruled trial courts have discretion in weighing how material the evidence is to the case, versus how challenging it will be to obtain it. Here, the justices found trial court did not err in its ultimate decision.

Additional Resources:

U.S. v. Carter, Jan. 27, 2015, U.S. Court of Appeals for the Eleventh Circuit

More Blog Entries:

Domestic Violence Arrest for Alabama Football Player, March 1, 2015, Birmingham Alabama Appeals Lawyer Blog

Alabama v. Baker – Post-conviction Relief in Alabama

Posted in Alabama Criminal Appeals

Many people assume a criminal case ends upon conviction and sentencing. This is an erroneous assumption because in addition to an appeal, defendants have a number of post-conviction relief options under Rule 32 of Alabama Rules of Criminal Procedure. Rule 32 deals with post-conviction remedies.

Although in some ways similar to an appeal, a petition for post-conviction relief is a separate filing, and may in some cases run concurrently with an appeal. The most common issues raised in post-conviction relief petitions are the competency of a defendant’s trial lawyer, whether defendant understood the terms of the plea bargain (or voluntarily agreed to them) and alleged illegality of the procedures leading up to conviction. prison2

In order to prevail in a post-conviction relief petition, the convicted person needs to show the trial was inherently unfair due to a constitutional violation (such as the right to due process or counsel), that the error couldn’t have been raised on appeal and that the error was likely to have affected the outcome.

Defendants should seek an experienced Birmingham criminal defense lawyer to assist with a post-conviction petition, as there are specific criteria that must be met. Bear in mind, rule 32.2 was amended in 2002, shortening the time a petitioner has to file such a claim from two years down to just one year. That means it’s important to act quickly.

A recent example of a Rule 32 petition was seen in the case of Alabama v. Baker, wherein the state appealed a successful post-conviction relief request.

According to court records, defendant was originally indicted for five counts of first-degree sodomy, four counts of sexual abuse of a child under 12 and four counts of first-degree sexual abuse. These are extremely serious charges which could have resulted in a sentence of life imprisonment. Ultimately, defendant struck a plea deal, pleading guilty to one of the most serious charges in exchange for the state dropping the other 12. As part of the plea bargain, he agreed to a 10-year prison term and a chance to apply for probation. Prior to conviction, however, prosecutors opposed probation and stated it was “almost certain” he would go to prison for an extended period of time.  Knowing this, defendant still chose to plead guilty.

After receiving his sentence, defendant applied for probation, and that request was denied after a conduct hearing. Defendant never filed a direct appeal challenging either the conviction or sentence. He did file several pro se (without an attorney) requests to “modify” or “reconsider” his sentence, but the court denied those motions. Seeing that his own efforts were unsuccessful, he hired an attorney and thereafter formally filed a Rule 32 petition, arguing his trial lawyer failed to inform him of a number of things prior to his pleading guilty and that, as a result of the ineffectiveness, the guilty plea into which he entered was not made intelligently, knowingly or voluntarily.

A circuit court held another hearing on the matter, and denied his Rule 32 petition, finding the claims without merit and further time-barred under the new time limit. Defendant appealed the decision, and the Alabama Court of Criminal Appeals affirmed.

After that, defendant filed a motion for sentence reduction or reversal based on lack of evidence to support the original charge and misunderstanding of plea to indictment. Again, defendant challenged the conviction because he stated his counsel misinformed him, and he believed he would be serving 3.5 years.

The state responded that, although defense’s “motion” wasn’t styled as such, it was actually another Rule 32 petition that failed to conform to the requirements of such. The state asked the circuit court to require defendant to comply with Rule 32 requirements. State granted that request. Defendant complied, reasserting all the same claims.

State responded all claims were time-barred and further addressed in the previous proceeding.

Another hearing was held, and the circuit court granted the Rule 32 petition in favor of defendant, finding his counsel had been ineffective when it failed to advise him of the direct consequences of his conviction prior to entering a guilty plea. The court further allowed that although the petition as untimely, the doctrine of equitable tolling was appropriate for the case.

However, the state appealed this decision and the Alabama Court of Criminal Appeals reversed.

The court held that even if this case was appropriate for equitable tolling, defendant failed to overcome the bar against successive claims.

Rule 32 can be an effective means to obtain post-conviction relief. Ultimately, there were procedural issues with this claim, and that is again why we always recommend consulting with an experienced legal team before filing.

Additional Resources:

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

More Blog Entries:

Wagner v. Alabama – Probation Revocation Reversed and Remanded, Feb. 22, 2015, Birmingham Rule 32 Petition Lawyer




Domestic Violence Arrest for Alabama Football Player

Posted in Uncategorized

A junior linebacker playing for the University of Alabama has been arrested on a single charge of domestic violence, a third-degree misdemeanor. anger

According to the statement released by the local police department, the alleged victim was defendant’s girlfriend. However, she did not show any signs of injury, nor did she allege injury. Instead, the charge stems from property damage reportedly done to victim’s car.

This is a little-known fact about domestic violence charges in Alabama: They don’t necessarily have to involve actual physical violence against the other person.

Per Ala. Code 13A-6-132, a person commits domestic violence in the third-degree if he or she commits a crime of assault, menacing, reckless endangerment, criminal coercion, criminal mischief or harassment and the victim is a current or former spouse, parent, child, any person with whom defendant has a child, a current or former household member or a person with whom defendant engaged in a dating relationship at some point.

While assault is a form of physical violence, the other charges are not necessarily. For example, menacing under Alabama law means using physical action to intentionally put the other individual in fear of imminent serious or physical harm. It is not necessary for an individual to actually lay a hand on the other person to be charged with menacing. If the person being threatened is a family member or falls into one of those other categories, that can result in a domestic violence charge.

Harassment, too, needn’t involve physical violence. Per Ala. Code 13A-11-8, a person commits harassment if in acting with the intention of alarming, annoying or harassing another, hr or she kicks, shoves or otherwise touches a person OR directs obscene or abusive language or gestures to another person. Qualifying threats can be verbal or non-verbal, so long as the intention is to cause the alleged victim to fear his or her safety.

This is where an experienced Birmingham criminal defense lawyer can help. Often, proof of these allegations comes down to proof of intent. A person’s intentions are not an objectively knowable fact, and thus, these assertions rely on circumstantial evidence of what was said or done and in what context.

Particularly in cases where there is no actual physical violence, it is often possible to have such charges reduced or maybe even dismissed. It does depend heavily on the situation, but the best chance a defendant has is hiring a good lawyer.

This is especially important for someone like the defendant in this case, who is just starting out his life and professional career. A conviction for third-degree domestic violence has the potential to close doors for certain career paths and opportunities. It also carries a maximum sentence of one year in jail.

According to news reports, officers responded to a call of a domestic dispute. Upon arrival, officers determined a couple had gotten into an argument in the yard. While the girlfriend reportedly keyed and threw change at the boyfriend’s vehicle, the boyfriend reportedly kicked his girlfriend’s vehicle. Both cars had visible damage.

Here, the underlying misdemeanor for which defendant was charged was criminal mischief.

Additional Resources:

UPDATED: Alabama linebacker arrested for domestic violence, Jan. 20, 2015, By CW Staff, The Crimson White

More Blog Entries:

Morris v. Alabama – Lesser Offense Instruction Wrongly Denied by Trial Court, Feb. 14, 2015, Alabama Criminal Defense Lawyer 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