text:
    Triona Ann CARTER v. STATE of Alabama.
    CR-98-1976.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 2001.
    Rehearing Denied Oct. 19, 2001.

      J. William Cole, Birmingham, for appellant.
    William H. Pryor, Jr., atty., gen., and Andy Scott Poole, asst. atty. gen., for ap-pellee.
   On Remand from the Alabama Supreme Court

COBB, Judge.

Triona Ann Carter was charged with murder made capital because two or more people were killed pursuant to one course of conduct. § 18A-5-40(a)(10), Ala.Code 1975. She was tried by a jury and was convicted of murder and manslaughter, violations of §§ 13A-6-2 and 13A-6-3, Ala. Code 1975, respectively. She was sentenced to life imprisonment on the murder conviction and to 20 years’ imprisonment on the manslaughter conviction. This Court reversed the convictions and remanded the case for a new trial, based on its determination that the trial court erred when it denied Carter’s request for a jury instruction on self-defense. Carter v. State, 843 So.2d 798 (Ala.Crim.App.2000). The Alabama Supreme Court reversed that judgment, holding that the trial court properly denied the instruction on self-defense, because there was no evidence indicating that Carter was entitled to the charge. Ex parte Carter, 843 So.2d 804 (Ala.2001). The supreme court remanded the cause to this court for further proceedings.

In addition to the issue regarding the denial of an instruction on self-defense, Carter argued on appeal that the trial court erred when it denied her motion for new trial, which was based on her claim that the jury’s verdicts were inconsistent. Specifically, she argued on appeal, as she did in the post-trial proceedings in the trial court, that the conviction for the intentional murder of Artimese Johnson must be reversed, because it is inconsistent with the provocation-manslaughter verdict for the death of Marcus Cephus.

The facts are set forth in the previously issued appellate opinions in this case. Of particular relevance here is that Carter, her boyfriend, Trevas Bell, and her good friend, Artimese Johnson, were involved in an altercation with a group composed of Tamiko Smith, Sheri Baker, and Marcus Cephas. Cephas attempted to push Carter, and Bell began fighting with Cephas. As the two men tussled on the ground, Carter hit Cephas, and Cephas knocked Carter to the ground. Carter saw a 9mm pistol on the ground near her, and she picked it up and began firing. One of the State’s witnesses testified that Carter was not aiming the gun at anyone, that she just fired shots in rapid succession. Carter shot and killed Cephas and her friend, Artimese Johnson. She also shot and wounded her boyfriend, Bell. The jury found Carter guilty of manslaughter in Cephas’s death and guilty of murder in Johnson’s death.

Carter argued to the trial court that the verdicts were inconsistent. She acknowledged that inconsistent verdicts do not require a reversal, with two exceptions: first, when a conviction on one count is an element of the second count, and the jury convicts only on the second count; and, second, when the record does not support the conviction. She argued that the verdicts indicated that the jury could not find any evidence of intent to kill, and that a new trial should be granted as to the death of Artimese Johnson. Carter alleged that the evidence failed to establish any difference in intent between when she fired the weapon and hit Cephas, and when she fired the weapon and hit her friend, Johnson. On appeal, Carter notes that, as to the shooting of Johnson, the prosecution relied on the doctrine of transferred intent. She further argues that “it is inconceivable and impossible for the jury to convict her on the intentional murder of her friend, Artimese Johnson, if she is only guilty of the provocation manslaughter regarding Marcus Cephus.” (Appellant’s brief at p. 6.) The State argues on appeal that Carter intended to kill Cephas, and that her intent transferred to the resulting murder of Johnson. The State further contends that the jury’s determination that legal provocation mitigated the killing of Cephas did not preclude the murder conviction with regard to the killing of Johnson, because her actions were nonetheless intentional with regard to Cephas.

We recently considered the law regarding inconsistent verdicts in Dorsey v. State, [Ms. CR-97-1522, May 25, 2001] — So.2d - (Ala.Crim.App.2001). In that case, the defendant was charged with the murder of two or more people pursuant to one scheme or course of conduct, and the jury returned verdicts of felony murder and capital murder as to the same victim. We stated:

“ ‘The general rule [in Alabama] is that there need be no rational compatibility or consistency between the verdicts on the several counts of an indictment. The exception to this rule is where the jury returns multiple convictions as to crimes which are mutually exclusive of each other.’ Grikis v. State, 552 So.2d 187, 187 (Ala.Crim.App.1989). Because Alabama has few published eases on this issue, we have looked to other jurisdictions.
“As the Illinois Court of Appeals stated in People v. Becker, 315 Ill.App.3d 980, 248 Ill.Dec. 696, 734 N.E.2d 987 (2000):
“ ‘ “Legally inconsistent verdicts cannot stand because they are unreliable. At a minimum, such verdicts suggest confusion or misunderstanding on the part of the jury.” People v. Klingenberg, 172 Ill.2d 270, 281, 216 Ill.Dec. 813, 665 N.E.2d 1370 (1996). When the jury returns multiple guilty verdicts on knowing and reckless offenses for the same conduct, the verdicts are legally inconsistent, and the defendant is entitled to a new trial. People v. Hoffer, 106 Ill.2d at 195, 88 Ill.Dec. 20, 478 N.E.2d 335 (1985). In Hoffer, the supreme court reversed a defendant’s murder and manslaughter convictions and remanded for a new trial, because the jury’s multiple verdicts indicated that defendant acted in a knowing, intentional, and reckless manner for the same criminal conduct. Hoffer, 106 Ill.2d at 195, 88 Ill.Dec. 20, 478 N.E.2d 335. The court concluded that for a legally consistent verdict regarding the same criminal conduct, the jury was required to find that defendant acted either knowingly or recklessly, but that these mental states were mutually inconsistent and could not coexist. Hoffer, 106 Ill.2d at 195, 88 Ill.Dec. 20, 478 N.E.2d 335.
“ ‘In People v. Spears, 112 Ill.2d 396, 98 Ill.Dec. 9, 493 N.E.2d 1030 (1986), the supreme court expanded on Hoffer and held that where defendant’s culpable conduct was essentially one act, the jury could not find that defendant possessed simultaneous knowing and reckless mental states. Spears, 112 Ill.2d at 407, 98 Ill.Dec. 9, 493 N.E.2d 1030. In that case, the defendant shot his wife and her friend within rapid succession. Five verdict forms were provided: one for attempted murder of his wife, two for armed violence as to his wife and her friend, and two for reckless conduct as to his wife and her friend. The jury-found the defendant guilty on all counts. The supreme court stated that, in resolving the question of whether guilty verdicts are consistent, the charging instrument, the jury instructions and the evidence at trial provide the essential framework for analyzing the consistency of jury verdicts. Spears, 112 Ill.2d at 405, 98 Ill.Dec. 9, 493 N.E.2d 1030.
“ ‘The trial court’s failure to send the jury back for further deliberations to resolve the inconsistent verdicts mandates a reversal and a new trial on all the inconsistent verdicts....’”

Dorsey v. State, — So.2d at -.

The State argues that because Carter’s actions were intentional and because there was no provocation for the killing of Artimese Johnson, Carter’s close friend, Carter was properly found guilty of the murder of Johnson. The issue before us is whether the doctrine of transferred intent can support a conviction for a greater offense with regard to the unintended victim than for the intended victim. We hold that it cannot.

Section 13A-6-2, Ala.Code 1975, provides that a person commits the crime of murder if, with the intent to cause the death of one person, he causes the death of that person or of another person. Thus, the statute includes within it the doctrine of transferred intent.

“The doctrine was early recognized at common law. Sir Matthew Hale, in 1 History of the Pleas of the Crown (published posthumously in 1736), said, at 466: To these may be added the cases above-mentioned, viz. if A. by malice fore-thought strikes at B. and missing him strikes C whereof he dies, tho he never bore any malice to C. yet it is murder, and the law transfers the malice to the party slain; the like of poisoning.”

Harvey v. State, 111 Md.App. 401, 414, 681 A.2d 628, 634-35 (1996).

This court has repeatedly stated that the defendant’s liability for the unintended consequences of a criminal act is in the same degree as it would have been had his aim been true and the intended target been injured or killed. For example, in Gilbert v. State, 20 Ala.App. 28, 100 So. 566 (1924), this court stated:

“The law is very certain that if a man kills one person, where the intent was to .kill another, the guilt of the slayer is the same as if he had killed the person intended. In other words, the character of the offense, if any is the same in the eyes of the law that it would have been if the fatal shot had killed the identical person for whom it was intended. To state it differently, if the defendant fired the shot which resulted in the death of the deceased, he would be guilty or innocent of the offense charged, the same as if the fatal shot had killed Hopp, the person for whom it was designed.”

20 Ala.App. at 29-30, 100 So. at 567.

This court later observed, in Gettings v. State, 32 Ala.App. 644, 647, 29 So.2d 677, 680 (1947):

“The decisions of our appellate courts are clear to the position that if a person, without legal excuse or justification, shoots at one individual and inadvertently kills another, he would be guilty of the same degree of unlawful homicide as if he had killed the object of his aim. It is also settled by the authorities that if he was acting in self-defense and accidentally killed another he would be guilty of no crime.”

We further stated:

“[T]he guilt of an accused who, intending to injure one person, accidently injures another, is to be determined as if the accused had injured his intended victim. ‘Not only is intent transferred, but also the degree of the crime and any defenses that would be valid if the intended victim had been hit.’ Prosser, Transferred Intent, 45 Tex.L.Rev. 650, 653 (1967).”

Mathis v. State, 497 So.2d 231, 232 (Ala.Crim.App.1986)(some internal quotation marks and citations omitted).

Legal scholars are in agreement with the foregoing principle. “So too if A aims at B with intent to kill under circumstances which would make him guilty of voluntary manslaughter of B, but he hits and kills C instead, A is guilty of voluntary manslaughter of C.” Wayne R. LaFave & Austin W. Scott, Jr., 1 Substantive Criminal Law § 312(d) (1986).

In Wharton’s Criminal Law, the principle is further explained:

“Under the common-law doctrine of transferred intent, a defendant, who intends to kill one person but instead kills a bystander, is deemed the author of whatever kind of homicide would have been committed had he killed the intended victim.
“If, as to the intended victim, the homicide would have constituted murder, the defendant is guilty of murder as to the bystander who was the actual victim. Similarly, if the homicide would have constituted voluntary manslaughter as to the intended victim, the defendant is guilty of voluntary manslaughter as to the bystander who was the actual victim; and if the homicide, as to the intended victim, would have been justifiable, as in self-defense, the defendant is deemed the author of a justifiable homicide as to the bystander, at least in the absence of criminal negligence.”

Charles E. Torcía, 2 Wharton’s Criminal Law § 146 (15th ed.l994)(emphasis added; footnotes omitted).

Based on the foregoing decisions of this court, and consistent with the analysis of noted legal scholars, we hold that, when the jury found Carter guilty of provocation manslaughter for the death of Marcus Ce-phas, it thereby limited Carter’s culpability for the death of her friend, Artimese Johnson, to provocation manslaughter. When the intent was transferred from Cephas to Johnson, so too did the degree of the offense and any available defenses. Moreover, by finding Carter guilty of manslaughter and murder for the same criminal act, the jury essentially determined that she possessed two distinct, and mutually exclusive, mental states, and this determination rendered the verdicts legally inconsistent.

For the foregoing reasons, we are compelled to find that the trial court erred when it denied Carter’s motion for a new trial, because the verdicts rendered by the jury are legally inconsistent and do not comport with the prior decisions of this court regarding the doctrine of transferred intent. As we noted in Dorsey v. State, supra, “[T]he trial court had a duty to reconcile the jury’s inconsistent findings concerning Dorsey’s intent.” — So.2d at -. We also quoted with approval People v. Becker, 315 Ill.App.3d 980, 734 N.E.2d 987, 248 Ill.Dec. 696 (2000), in which the court held that, when a jury returns inconsistent verdicts, a new trial must be held on all of the inconsistent verdicts. We agree with the Illinois Supreme Court’s explanation regarding the necessity for reversal and retrial in these circumstances: “Where inconsistent verdicts are returned, a trial judge may not usurp the function of the jury by second-guessing ‘which of the two verdicts was intended by the jury and which was a result of some misconception.’ (People v. Almo (1985), 108 Ill.2d 54, 63-64, 90 Ill.Dec. 885, 483 N.E.2d 203.)” Neither may this court usurp the jury’s function and second-guess the jury here.

Accordingly, we must reverse the convictions for provocation manslaughter and murder, and remand the cause for a new trial as to both Cephas and Johnson, or for other proceedings consistent with this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and BASCHAB, SHAW, and WISE, JJ„ concur.


source: Caselaw Access Project

author: MOORE, Chief Justice. HARWOOD, Justice JOHNSTONE, Justice

license: Public Domain

text:
    Ex parte State of Alabama. (In re Triona Ann CARTER v. STATE of Alabama).
    1010251.
    Supreme Court of Alabama.
    May 17, 2002.

      William H. Pryor, Jr., atty. gen., and Andy S. Poole, asst. atty. gen., for petitioner.
    J. William Cole of Luker, Cole & Associates, L.L.C., Birmingham, for respondent.
   MOORE, Chief Justice.

Triona Carter’s case comes before us for the second time following a reversal of her convictions by the Court of Criminal Appeals. Carter v. State, 843 So.2d 807 (Ala.Crim.App.2001), opinion on remand from the Alabama Supreme Court. The issue now before us is whether, under the doctrine of transferred intent, a defendant can be convicted of an offense as to the unintended victim that is greater than the offense the defendant was convicted of with respect to the intended victim. The Court of Criminal Appeals answered the question in the negative. We reverse and remand.

As the Court of Criminal Appeals stated in its opinion on remand from this Court:

“The facts are set forth in the previously issued appellate opinions in this case. Of particular relevance here is that Carter, her boyfriend, Trevas Bell, and her good friend, Artimese Johnson, were involved in an altercation with a group composed of Tamiko Smith, Sheri Baker, and Marcus Cephas. Cephas attempted to push Carter, and Bell began fighting with Cephas. As the two men tussled on the ground, Carter hit Ce-phas, and Cephas knocked Carter to the ground. Carter saw a 9mm pistol on the ground near her, and she picked it up and began firing.... Carter shot and killed Cephas and her friend, Artimese Johnson. She also shot and wounded her boyfriend, Bell.”

843 So.2d at 808.

The State charged Carter with capital murder as to both deceased victims because two or more persons were killed “by one act or pursuant to one scheme or course of conduct,” § 13A-5-40(a)(10), Ala. Code 1975. The jury was charged on the capital offense, but it was also instructed on the lesser included offenses of intentional murder, provocation manslaughter, and reckless manslaughter. The jury was told to consider the charges separately, and it returned verdicts convicting Carter of intentional murder for the death of Ar-timese Johnson and provocation manslaughter for the death of Marcus Cephas.

Carter appealed; the Court of Criminal Appeals reversed the judgment and remanded the case for a new trial on the grounds that the trial court had erroneously refused to charge the jury on self-defense. Carter v. State, 843 So.2d 798 (Ala.Crim.App.2000). This Court reversed the judgment of the Court of Criminal Appeals and remanded the case, concluding that the evidence indicated that, at the time of the shooting, neither Carter nor her boyfriend was at risk of death or serious bodily injury and that Carter had the ability to retreat, thus negating any claim of self-defense. Carter v. State, 843 So.2d 804 (Ala.2001).

On remand from this Court, the Court of Criminal Appeals again reversed the convictions and remanded the case for a new trial. It reversed on the ground that the verdicts were inconsistent because “the doctrine of transferred intent can[not] support a conviction for a greater offense with regard to the unintended victim than for the intended victim.” 843 So.2d at 810.

The Court of Criminal Appeals correctly observed that Alabama appellate courts have repeatedly held that “the defendant’s liability for the unintended consequences of a criminal act is in the same degree as it would have been had his aim been true and the intended target been injured or killed.” Carter, 843 So.2d at 810 (opinion on remand). This holding was originally justified “ ‘[ujnder the common-law doctrine of transferred intent, [where] a defendant, who intends to kill one person but instead kills a bystander, is deemed the author of whatever kind of homicide would have been committed had he killed the intended victim.’ ” Carter, 843 So.2d at 811, quoting Charles E. Torcia, 2 Wharton’s Criminal Law § 146 (15th ed.1994). Section 13A-6-2(a)(l), Ala.Code 1975, reiterates the doctrine in its definition of murder. The statute provides, in pertinent part, that “[a] person commits the crime of murder if ... [wjith intent to cause the death of another person, he causes the death of that person or of another person .... ” (Emphasis added.)

The Court of Criminal Appeals interpreted the doctrine of transferred intent to mean that “[wjhen the intent was transferred from Cephas to Johnson, so too did the degree of the offense and any available defenses” and thus that “when the jury found Carter guilty of provocation manslaughter for the death of Marcus Cephas, it thereby limited Carter’s culpability for the death of her friend, Artimese Johnson, to provocation manslaughter.” 843 So.2d at 811. Because, it reasoned, “the jury essentially determined that [Carter] possessed two distinct, and mutually exclusive, mental states” for one course of conduct, the Court of Criminal Appeals held that the verdicts were legally inconsistent. Id. We disagree.

In Hammond v. State, 497 So.2d 558, 563 (Ala.Crim.App.1986), the Court of Criminal Appeals explicitly adopted the guidelines of the United States Supreme Court in Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932), concerning the review of inconsistent verdicts by an appellate court. This Court granted certiorari review, then quashed the writ. In Dunn, the Supreme Court stated:

“[Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment. ...
“That the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.”

284 U.S. at 393-94, 52 S.Ct. 189 (citations omitted). Thus, “[t]he general rule is that there need be no rational compatibility or consistency between the verdicts on the several counts of an indictment. The exception to this rule is where the jury returns multiple convictions as to crimes which are mutually exclusive of each other.” Grikis v. State, 552 So.2d 187, 187 (Ala.Crim.App.1989).

If the verdicts did indeed reflect that Carter possessed two distinct mental states regarding the killing of Cephas and Johnson, then the Court of Criminal Appeals would be correct in determining that the verdicts are inconsistent and that that fact requires reversal. However, the State contends, and we must agree, that the Court of Criminal Appeals has misunderstood that a conviction for provocation manslaughter implies a less culpable state of mind by the perpetrator than a conviction for intentional murder.

Section 13A-6-3(a)(2), AIa.Code 1975, provides that a person commits provocation manslaughter if he

“causes the death of another person under circumstances that would constitute murder under Section ISA-6-2 [intentional murder]; except, that he causes the death due to a sudden heat of passion caused by provocation recognized by law, and before a reasonable time for the passion to cool and for reason to assert itself.”

(Emphasis added.) Thus, when the jury-finds a person guilty of provocation manslaughter, the person is deemed guilty of intentional murder (“under circumstances that would constitute murder under § 13A-6-2”), but the conviction is reduced to manslaughter because a legally recognized mitigating circumstance (provocation) has been found to exist.

The Commentary to § 13A-6-3(a)(2) explains that “the law, recognizing the frailties of man and his loss of reason and control in certain provocative situations overlooks or forgives the ‘malice’ and mitigates the homicide from murder to a lesser grade.” (Emphasis added.) The “malice,” or intent, is not negated, but merely forgiven because of the circumstances. As the Court of Criminal Appeals has itself observed in the past: “Heat-of-passion provocation implies that [the defendant’s] actions were intentional but that, because of the circumstances, they were excused by law.” McGriff v. State, [Ms. CR-97-0179, September 29, 2000] - So.2d -, - (Ala.Crim.App.2000). In fact, as the Wisconsin Supreme Court has succinctly stated: “[M]any such homicides [i.e., those resulting from heat-of-passion provocation] do involve an actual intent to take the life of another. This very intent is typically the result of the heat of passion.” State v. Lee, 108 Wis.2d 1, 9, 321 N.W.2d 108, 112 (1982). In sum, provocation does not negate intent.

Thus, the jury did not find two distinct mental states for one course of conduct: they found that Carter had the intent to kill, but that in the case of Ce-phas, her guilt was mitigated by the provocation brought on by his actions toward her. The intent that “transferred” was not lessened by this provocation; only Carter’s guilt in the eyes of the law was lessened because of the factual circumstances. Because this is not a case where the verdicts are “mutually exclusive of each other,” Grikis, 552 So.2d at 187, a reversal is not warranted.

It is worth noting that the Commentary to § 13A-6-2 strongly discourages any use of the doctrine of transferred intent:

“Under the Criminal Code, there is no need for the anachronistic rule of ‘transferred intent’ ....
“The concept may serve a useful purpose in the tort field but has no proper place in criminal law. [Transferred intent] is obviously only a fiction, or a legal conclusion, to accomplish the desired result of liability.... [I]n the field of crime this concept has the vice of being a misleading half-truth, often given as an improper reason for a correct result ....
“Where the actor intentionally or knowingly does an act that is highly likely to cause death to another person, and as a natural and direct result another person is killed, though not the person subjectively intended to be killed ..., the actor is guilty of murder ... because he intended ‘to cause the death of another person

The jury verdicts in this case yield precisely this result: the jury found that Carter had acted intentionally to kill one person and did kill that person, so she was found guilty of intentional murder for the death of Artimese Johnson. No provocation existed to lessen the guilt as to that murder, unlike Cephas’s death. The intentional murder remained just that — intentional — for the killing of Johnson. Who Carter intended to kill made no difference concerning her culpability for the crime. Thus, even if Carter’s intent in killing Ce-phas did not “transfer” to the killing of Johnson, it remained the same for a single course of conduct in which two people were killed, and we would have to say that the jury did not render inconsistent verdicts based on Carter’s intent.

Thus, the Court of Criminal Appeals overstates the law when it states, as it did in this case and as it has before, that “[n]ot only is intent transferred, but also the degree of the crime and any defenses that would be valid if the intended victim had been hit,” Mathis v. State, 497 So.2d 231, 232 (Ala.Crim.App.1986), quoting Prosser, Transferred Intent, 45 Tex. L.Rev. 650, 653 (1967). There was no transfer of degree of guilt in this case because separate findings on the factual circumstances warranted separate degrees of guilt, which was borne out by the separate verdicts returned by the jury.

Even if the jury did not use this rationale to arrive at its result, the fact remains that the verdicts were not inconsistent; therefore a reversal was not warranted. Because we find that there existed no fundamental inconsistency in the verdicts, there is no need to reach the State’s alternative argument that the Court of Criminal Appeals should have reversed only one of the verdicts, rather than both.

For the foregoing reasons, the Court of Criminal Appeals erred in reversing Carter’s convictions. Accordingly, we reverse its judgment and we remand the case for an order or proceedings consistent with this opinion.

REVERSED AND REMANDED.

HOUSTON, SEE, BROWN, and STUART, JJ., concur.

HARWOOD, J., concurs in part and dissents in part.

LYONS, JOHNSTONE, and WOODALL, JJ., dissent.

HARWOOD, Justice

(concurring in part and dissenting in part).

I concur with that portion of the main opinion that concludes that a jury verdict mitigating a homicide that would otherwise comprise all of the elements of murder to heat-of-passion manslaughter based on lawful provocation does not indicate that the jury found that the homicide was not intentional. Rather, the intent to kill the victim is accorded a degree of forgiveness because it arose out of “a sudden heat of passion caused by provocation recognized by law, and before a reasonable time for the passion to cool and for reason to assert itself.” § 13A-6-3(a)(2), Ala.Code 1975. The resulting intent to cause the death of the provoking party is no less real simply because it was precipitated by the heat of the passion excited by the provocation.

I disagree, however, with the further conclusion of the main opinion that the jury verdicts in this case do not represent “convictions as to crimes which are mutually exclusive of each other,” under the rule of Grikis v. State, 552 So.2d 187, 187 (Ala.Crim.App.1989). 843 So.2d at 814. It is undisputed that after Marcus Cephas — a 5-foot-10-inch, 232-pound male — struck Triona Ann Carter — a 5-foot, 99-pound pregnant female — in the face, knocking her to the ground, she picked up a pistol lying on the ground where she had fallen and began firing it in rapid succession. Cephas was shot twice, the fatal wound being to his back; Carter’s good friend, Artimese Johnson, was shot fatally once in her chest; and Carter’s boyfriend, Trevas Bell, received a gunshot wound to his hip. There is no evidence as to which of the several shots fired in quick succession struck which victim. That is to say, it would be mere speculation to surmise that, for example, the first and second shots hit Cephas, as opposed to the first and third, second and third, etc.

The trial judge instructed the jury that in order for the State to prove that the respective deaths of Cephas and Johnson constituted murder, it had to prove that “the defendant at the time was not lawfully provoked to do the act which caused the death of the deceased by a sudden heat of passion.” The jury was conversely instructed with respect to the crime of manslaughter, that a necessary element of that offense was that the defendant had been “lawfully provoked to do the act which caused the death of the deceased .... ”

One of the witnesses for the prosecution testified that Carter picked up the gun and “she was like pow, pow, pow, just waiving the gun and shooting”; it is otherwise clear from the record that Carter fired the several rounds in such rapid succession that they constituted a fusillade. Because, as noted, no one is able to identify which of the succession of shots hit which of the three victims, “the act” involved necessarily was the cluster of shots all fired with the same intent and under the same provocation, as opposed to several separate and discrete acts, each assignable to a particular victim. No one could reasonably argue that Carter’s intent in firing the shots, or her excited state of mind, inflamed by a sudden heat of passion, could be different as to any of the shots fired. No one contends that the first shot was discharged in the heat of passion but that one or more of the subsequent shots were fired only after that passion had subsided to a nonmi-tigating level. If the shot that killed Ce-phas was fired while Carter was in the throes of a heat of passion caused by a lawfully recognized provocation, then the shot that struck and fatally wounded Johnson likewise would have been the product of that same state of mind.

I agree with the analysis of the Court of Criminal Appeals that “when the jury found Carter guilty of provocation manslaughter for the death of Marcus Cephas, it thereby limited Carter’s culpability for the death of her friend, Artimese Johnson, to provocation manslaughter. When the intent was transferred from Cephas to

Johnson, so too did the degree of the offense and any available defenses.” 843 So.2d at 811. In structuring its verdicts as it did, “the jury return[ed] multiple convictions as to crimes which are mutually exclusive of each other.” Grikis, 552 So.2d at 187.

JOHNSTONE, Justice

(dissenting).

I respectfully dissent. The main opinion is mistaken in that it isolates provocation by the victim as the critical element of the heat-of-passion mitigation and does not recognize, but instead discounts to the point of virtual elimination, the heat-of-passion itself — the mental disturbance in the defendant — as the critical element of the mitigation. That is, the main opinion concentrates on the fault or lack of fault in the two victims to the virtual exclusion of the mitigating mental state in the defendant. The analysis in the main opinion, reduced to its essence, is that, because Cephas provoked the defendant, Cephas’s killing was only manslaughter, but, because the defendant’s friend Johnson did not provoke the defendant, Johnson’s killing was murder.

The correct law is that the heat-of-passion itself — the mental disturbance in the defendant — is the critical element of the mitigation, and the “lawful provocation” by the victim is merely the condition the law imposes on its willingness to recognize the mitigating effect of heat-of-passion. Contrary to the analysis by the main opinion, the law does acknowledge that heat-of-passion qualifies and mitigates the mental state of intent itself.

The well-settled law is conveniently summarized in the Alabama Law Institute’s pattern criminal jury instructions:

“Lawful provocation means that the defendant was moved to do the act which caused the death of the deceased by a sudden heat of passion and before there had been a reasonable time for the passion to cool and reason to reassert itself. The defendant must have been provoked at the time he did the act; that is, he must have been deprived of self-control by the provocation which he received. The state of mind must be such that the suddenly excited passion suspends the exercise of judgment, but it is not required that the passion be so overpowering as to destroy volition. A killing in sudden passion, excited by sufficient lawful provocation, is manslaughter only. The law presumes that the passion disturbed the defendant’s reasoning and led him to act regardless of the admonition of law.” (Emphasis added.)

Alabama Pattern Jury Instructions— Criminal, CJI # 5, Murder (Intentional Murder with Provocation Defense) (3d ed.1994). The expressions critical to the mitigation are “sudden heat of passion,” “before there had been a reasonable time for the passion to cool and reason to reassert itself,” “deprived of self-control,” “suspends the exercise of judgment,” and “disturbed the defendant’s reasoning.”

The statutes and some typical cases to this effect follow. Section 13A-6-2, Ala. Code 1975, provides, in pertinent part:

“(a) A person commits the crime of murder if:
“(1) With intent to cause the death of another person, he causes the death of that person or of another person; ...
“(b) A person does not commit murder under subdivisions (a)(1) ... of this section if he was moved to act by a sudden heat of passion caused by provocation recognized by law, and before there had been a reasonable time for the passion to cool and for reason to reassert itself. The burden of injecting the issue of killing under legal provocation is on the defendant, but this does not shift the burden of proof.” (Emphasis added.)

Section 13A-6-3, Ala.Code 1975, provides, in pertinent part:

“(a) A person commits the crime of manslaughter if:
“(2) He causes the death of another person under circumstances that would constitute murder under Section 13A-6-2; except, that he causes the death due to a sudden heat of passion caused by provocation recognized by law, and before a reasonable time for the passion to cool and for reason to reassert itself.” (Emphasis added.)

Farrior v. State, 728 So.2d 691, 697 (Ala.Crim.App.1998), approved a jury instruction on heat-of-passion manslaughter:

“ ‘Now, a killing in a sudden passion excited by sufficient lawful provocation, as I have said is manslaughter. Not because the law supposes this passion made the defendant unconscious about what he was about to do and strip[ped] the act [of] killing of the intent to commit the killing. But it is because the law says passion disturbed the sway of the defendant’s reasoning.’ ” (Emphasis added.)

Bean v. State, 492 So.2d 647, 650 (Ala.Crim.App.1986), approved another jury instruction on heat-of-passion manslaughter:

“ ‘[T]he question [is] whether the defendant “was moved to act by a sudden heat of passion caused by provocation recognized by law, and before there had been a reasonable time for the passion to cool and for reason to reassert itself.” ’ ” (Emphasis added.)

Nelson v. State, 511 So.2d 225, 240 (Ala.Crim.App.1986), held:

“[A] sudden transport of passion, caused by adequate provocation, if it suspends the exercise of judgment, and dominates volition, so as to exclude premeditation and a previously formed design, although it does not entirely dethrone reason, is sufficient to reduce the killing to manslaughter.” (Emphasis added.)

At trial in the case before us, the State did not claim, and did not prove, that the defendant actually intended to kill her friend Johnson. Rather, for the element of intent in the death of Johnson, the State relied entirely upon the defendant’s intent to kill her antagonist Cephas. The jury found that the defendant shot Cephas in the disturbed mental state of heat-of-passion, caused by Cephas’s “lawful provocation.” Only this state of mind is available for consideration in a determination of the degree of the defendant’s guilt in killing her friend Johnson. The virtually simultaneous shooting of the defendant’s friend Johnson necessarily occurred “before there had been a reasonable time for the passion to cool and reason to reassert itself.”

“The general rule is that there need be no rational compatibility or consistency between the verdicts on the several counts of an indictment. The exception to this rule is where the jury returns multiple convictions as to crimes which are mutually exclusive of each other.” (Emphasis added.)

Grikis v. State, 552 So.2d 187, 187 (Ala.Crim.App.1989). A manslaughter conviction as to Cephas and a murder conviction as to Johnson, both dependent on the same mental state, or mens rea, are mutually exclusive of each other.

Accordingly, the Court of Criminal Appeals correctly reversed the defendant’s conviction for murdering Johnson. We should affirm.

LYONS and WOODALL, JJ., concur.

      . Section 13A-6-2(b) does not contradict this principle. It states:
      "A person does not commit murder under subdivisions (a)(1) or (a)(2) of this section if he was moved to act by a sudden heat of passion caused by provocation recognized by law, and before there had been a reasonable time for the passion to cool and for reason to assert itself.”
      This provision is merely the mirror image of § 13A-6-3 (a)(2), explaining that a ''heat-of-passion” killing will not be considered murder. It does not, of course, mean that the existence of legal provocation negates any intent on the part of the defendant.

      . Provocation addresses motive rather than intent. For public policy reasons, some motives for killing are deemed criminally less culpable than other motives. Provocation manslaughter is one of those, probably because the people sympathize with, but do not condone, the response. In contrast, self-defense is condoned because it is a complete defense to a killing. Motive, while sometimes confused with intent, is not one of the legal elements of the crime of murder.

      . Saying that the provocation defense in this case transfers along with the intent has the effect of changing the facts of the case, because Johnson did not provoke Carter, and while transferred intent may be a legal fiction designed to reach just results, the fiction should not be so extended in any given factual situation that it defies common sense.


author: COBB, Judge.

text:
    Triona Ann CARTER v. STATE.
    CR-98-1976.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 2002.
    J. William Cole, Birmingham, for appellant.
    William H. Pryor, Jr., atty. gen., and Andy Scott Poole, asst. atty. gen., for ap-pellee.
   After Remand from the Alabama Supreme Court

COBB, Judge.

This Court’s judgment in Carter v. State, 843 So.2d 807 (Ala.Crim.App.2001), reversing Triona Carter’s convictions for intentional murder and manslaughter and remanding the case for a new trial, has been reversed by the Alabama Supreme Court in Carter v. State, 843 So.2d 812 (Ala.2002). Pursuant to the Supreme Court’s opinion, we now affirm Carter’s convictions.

AFFIRMED.

McMILLAN, P.J., and BASCHAB, SHAW, and WISE, JJ., concur.


author: PER CURIAM. SHAW, Judge,

text:
    Dee Cee SKINNER v. STATE of Alabama.
    CR-00-0817.
    Court of Criminal Appeals of Alabama.
    May 10, 2002.
    Rehearing Denied June 21, 2002.

      Susan Graham James, Montgomery, for appellant.

      William H. Pryor, Jr., atty. gen., and Joseph G.L. Marston III, asst. atty. gen., for appellee.
   PER CURIAM.

The appellant, Dee Cee Skinner, was convicted of attempted distribution of a controlled substance, see §§ 13A-12-203 and 13A-12-211, AIa.Code 1975. He was sentenced, as a habitual offender, to 20 years’ imprisonment; that sentence was enhanced by an additional five years’ imprisonment pursuant to § 13A-12-250, Ala.Code 1975, and an additional five years’ imprisonment pursuant to § 13A-12-270, AlaCode 1975.

The evidence adduced at trial indicated the following. On June 13, 1994, Larry Williams and Wendell Major, deputies with the Jefferson County Sheriffs 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.” On March 5, 1997, the State filed a “Motion to Withdraw and File with Leave to Reinstate” pursuant to § 15-8-71, Ala. Code 1975, requesting permission to withdraw and file the indictment, i.e., to place it on the inactive trial docket, with leave to reinstate the indictment to the active trial docket when Skinner was located. The trial court granted the State’s request. Skinner was eventually located and was arrested on July 29, 2000. On November 2, 2000, Skinner filed a motion to dismiss the indictment, arguing that because it had been more than three years since the State had withdrawn and filed the indictment in 1997, the statute of limitations on the crime had expired; that the State had not moved to have the indictment reinstated since his arrest; and that “[t]o treat the old indictment as current would violate [his] constitutional right to due process.” (C. 51.) On November 7, 2000, the State moved to reinstate the indictment to the active trial docket; the motion was granted and Skinner’s trial began on November 16, 2000.

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 § 15-3-1, Ala. Code 1975, because the indictment remained on the inactive trial docket for over three years — from March 5, 1997, until November 7, 2000. According to Skinner, the statute of limitations expired on March 5, 2000, three years after the indictment was placed on the inactive docket.

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 appellant 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 § 15-8-71, Ala.Code 1975, which provides:

“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 § 15-8-71 was first enacted.

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. Torcía, 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.)

Section 15-3-1 provides: “The prosecution of all felonies, except those specified in Sections 15-3-3 and 15-3-5, must be commenced within three years after the commission of the offense.” “A prosecution may be commenced within the meaning of this chapter by finding an indictment, the issuing of a warrant or by binding over the offender.” § 15-3-7, Ala. Code 1975. Skinner’s prosecution “commenced” when he was indicted in July 1994, one month after the crime occurred. Although the indictment was subsequently withdrawn and filed for approximately three years, withdrawing and filing an indictment under § 15-8-71 is nothing more than moving the indictment from the trial court’s active docket to the court’s inactive docket; it is not the equivalent of nol-prosing or dismissing the indictment. An indictment that has been withdrawn and filed, i.e., placed on an inactive docket, remains pending against the accused. The statute of limitations is tolled while an indictment is pending against an accused. See Finley, supra. Because Skinner’s prosecution was commenced in July 1994, only one month after the crime was committed, it was not barred by the limitations period in § 15-3-1, Ala.Code 1975.

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 act.’ 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 accused 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 § 13A-12-202, Ala.Code 1975. On appeal, he argued that, pursuant to § 13A-4-l(c), Ala.Code 1975, he could not have been convicted of solicitation because, he said, he could also have been convicted of attempt. This Court stated:

“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 necessary 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. Something 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 muttered by the appellant were not sufficient to sustain his conviction for attempted theft. The appellant in James approached the store manager in the Winn Dixie store on the evening of the alleged crime. The appellant pointed to another individual in the store. He told the manager that the other individual had a gun. The appellant instructed the manager to do as his companion instructed and ‘not start no shit.’ James at 890. The appellant and the unknown companion both left the store without threatening anyone or without trying to steal the company’s property.
“Section 13A-4-1 is based on the New York and Michigan versions of criminal solicitation. Section 13A-4-l(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~l(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 § 13A-4-1, Ala.Code 1975 (“[Frequently solicitation accompanied by some overt act on the part of defendant may equate an attempt.”). Skinner’s requested instruction, however, was overly broad. It did not properly convey the possibility that a verbal solicitation when coupled with other acts may be sufficient to establish an overt act. Therefore, we agree with the trial court that Skinner’s requested instruction, as written, would have been confusing and misleading to the jury. Therefore, the trial court did not err in refusing to give it.

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.)

At the conclusion of the court’s oral charge, Skinner made the following objection to the court’s charge on complicity:

“I think that the Court’s charge slants severely in favor of the State. It does not go into 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 court 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 real argument as to why those rulings were erroneous. He cites to no authorities and he includes little or no facts from the record. Rule 28(a)(5), Ala.R.App.P., requires that an argument contain “the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on.” “Recitation of allegations without citation to any legal authority and without adequate recitation of the facts relied upon has been deemed a waiver of the arguments listed.” Hamm v. State, [Ms. CR-99-0654, February 1, 2002] — So.2d -, - (Ala.Crim.App.2002). Skinner’s arguments regarding the trial court’s alleged erroneous rulings are not sufficient to satisfy the requirements of Rule 28(a)(5), Ala. R.App.P.; therefore, these issues are deemed to be waived.

IV.

Skinner contends that his sentence should not have been enhanced pursuant to §§ 13A-12-250 and 13A-12-270, Ala. Code 1975, because, he says, those enhancement provisions do not apply to attempted controlled-substances crimes. (Issue I in Skinner’s brief.) In support of this contention, Skinner cites Williams v. State, 665 So.2d 955 (Ala.Crim.App.1994), opinion after remand, 668 So.2d 950 (Ala.Crim.App.1995) (table).

In Williams, this Court addressed the issue whether the enhancement provision in § 13A-12-250 could be applied to a conviction for conspiracy to distribute controlled substances. We stated:

“ “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 statute was 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 any 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.”

665 So.2d at 957.

However, the year before Williams was decided, this Court held that the enhancement provision in § 13A-12-250 could be applied to a conviction for attempt to distribute a controlled substance. In Lynch v. State, 640 So.2d 44 (Ala.Crim.App.1993), opinion after remand, 640 So.2d 45 (Ala.Crim.App.1994), we stated:

“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 applies 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 attempt statute, § 13A-12-203(c), and not with the conspiracy statute, § 13A-12-204(c), Lynch is controlling in this attempt case, and it points out that this Court has upheld the application of §§ 13A-12-250 and 13A-12-270 to convictions for attempted distribution of controlled substances on two occasions since Lynch was decided. See Harris v. State, 794 So.2d 1214 (Ala.Crim.App.2000), and Frasier v. State, 766 So.2d 181 (Ala.Crim.App.1998).

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 §§ 13A-12-250 and 13A-12-270 can be applied.

We believe that the correct approach is the approach taken in Lynch. Although §§ 13A-12-250 and 13A-12-270 provide that an additional penalty of five years’ imprisonment shall be imposed only on those convicted of “an unlawful sale of a controlled substance” within three miles of a school or housing project, §§ 13A-12-203(c) and 13A-12-204(c) provide that convictions for conspiracy to commit a controlled-substance crime and attempt to commit a eontrolled-substance crime “shall be punished the same as the controlled substance crime” that is the object of the conspiracy or that is attempted. (Emphasis added.) In other words, §§ 13A-12-203(c) and 13A-12-204(c) require that defendants convicted of conspiracy or attempt be punished as if they had been convicted of the underlying controlled-substance crime.

In Williams, this Court held that the enhancement provision in § 13A-12-250 was not applicable to a conviction for conspiracy to commit a controlled substance crime despite the language in § 13A-12-204(c) that convictions for conspiracy should be punished the same as the underlying crime because the “sentence contemplated by § 13A-12-204(c) is the sentence imposed on one convicted of the substantive crime underlying the conspiracy” but not “any enhancement provisions to that sentence.” 665 So.2d at 957. However, contrary to the reasoning in Williams, this Court has held that “[sjection 13A-12-250 works in concert with §§ 13A-12-211 and 13A-5-6 and effectively imposes only a single punishment for a single offense.” Hardy v. State, 576 So.2d 685, 688 (Ala.Crim.App.1991) (emphasis added). See also Kirkland v. State, [Ms. CR-00-2494, February 1, 2002] — So.2d - (Ala.Crim.App.2002); State v. Corley, 831 So.2d 59 (Ala.Crim.App.2001); and Pettway v. State, 624 So.2d 696 (Ala.Crim.App.1993). If the enhancement provision in § 13A-12-250, coupled with the “base” sentence in § 13A-5-6, constitutes only a single punishment, then clearly the enhancements in §§ ISA-12-260 and 13A-12-270 are, in fact, a part of “the sentence imposed on one convicted of the substantive crime underlying the conspiracy,” 665 So.2d at 957, or attempted. If defendants who are convicted of conspiracy to distribute a controlled substance or the attempt to distribute a controlled substance when the conspiracy or attempt involves a sale are to be punished as if they had been convicted of the underlying sale, as required by §§ 13A-12-203(e) and 13A-12-204(c), they must be subject to the enhancements in §§ 13A-I2-250 and 13 A-12-270.

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 §§ 13A-12-250 and 13A-12-270 could be applied to a conviction for conspiracy or attempt to commit a controlled-substance crime, but rather, whether the firearm enhancement in § 13A-12~231(13), Ala.Code 1975, could be applied to a conviction for conspiracy to traffic in marijuana. Using the same reasoning we apply today, the Supreme Court held in Browder that the firearm enhancement could be applied to a conspiracy conviction (despite the language in § 13A-12-231(13) that the enhancement applied only to acts “proscribed by this section”) because under § 13A-12-204(c), “[pjart of the punishment for this particular controlled substance crime is provided by the firearm enhancement provision of § 13A-12-231(13).” 728 So.2d at 1111. Similarly, part of the punishment for the sale of a controlled substance is provided by the enhancement provisions in §§ 13A-12-250 and 13A-12-270.

Therefore, we hold that §§ 13A-12-250 and 13A-12-270 are applicable to convictions for the conspiracy to sell a controlled substance and the attempt to sell a controlled substance and to the extent that Williams holds otherwise, it is hereby overruled.

We recognize, of course, that by their plain language, §§ 13A-12-250 and 13A-12-270 apply only to convictions involving sales of controlled substances; they do not apply to furnishing, giving away, manufacturing, delivering, or distributing controlled substances, although under § 13A-12-211, Ala.Code 1975, those acts also constitute the crime of unlawful distribution of controlled substances. See, e.g., Ex parte Mutrie, 658 So.2d 347 (Ala.1993), and Clay v. State, 687 So.2d 1245 (Ala.Crim.App.1996). Thus, the enhancements would not apply to convictions for conspiracy or attempt where the underlying controlled-substance crime was not a sale.

The underlying controlled-substance crime in this case was a sale. Therefore, the trial court properly enhanced Skinner’s sentence pursuant to §§ 13A-12-250 and 13A-12-270.

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 §§ 13A-12-250 and 13A-12-270 because the enhancements were not charged in the indictment. (Issue I in Skinner’s supplemental brief.) However, in Poole v. State, 846 So.2d 370 (Ala.Crim.App.2001), this Court held that the State was required to give notice of its intent to seek enhancement under §§ 13A-12-250 and 13A-12-270 and that the enhancements must be submitted and proven to the jury beyond a reasonable doubt, but that the United States Supreme Court’s holding in Ap- prendí does not require the enhancement provisions in §§ 13A-12-250 and 13A-12-270 to be charged in the indictment. In this case, the State filed notice before trial of its intent to seek enhancement of Skinner’s sentence pursuant to §§ 13A-12-250 and 13A-12-270; evidence that the attempted sale occurred within three miles of a school and a housing project was submitted to the jury; the jury was given a verdict form that required it to determine whether the attempted sale occurred within three miles of a school and/or housing project; and the jury found that the attempted sale had, in fact, occurred within three miles of a school and within three miles of a housing project. Therefore, Skinner’s sentence was properly enhanced.

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 TV of the per curiam opinion that the enhancement provisions in §§ 13A-12-250 and 13A-12-270, Ala.Code 1975, are applicable to convictions for conspiracy and attempt to commit a sale'of a controlled substance. - However, because I believe that the enhancement provisions must be charged in the indictment, see my special writing in Poole v. State, 846 So.2d 370 (Ala.Crim.App.2001) (Shaw, J., concurring in the result), I would reverse Skinner’s sentence and remand the case for resentencing.

      . The record reflects that Skinner had fled to California.

      . Section 15-3-3 provides that a prosecution for conversion of public revenues must be commenced within six years after the conversion. Section 15-3-5 provides that there is no statute of limitations for capital offenses; felonies involving the use, attempted use, or threat of violence; felonies involving serious physical injury or death; sex offenses involving a victim under 16 years of age; or any felonies involving arson, forgery, counterfeiting, and drug trafficking.

      . Section 13A-4-l(c) provides: "A person is not liable under this section when his solicitation constitutes conduct of a kind that is necessarily incidental to the commission of the offense solicited. When the solicitation constitutes an offense other than criminal solicitation which is related to but separate from the offense solicited, defendant is guilty of such related offense only and not of criminal solicitation.”

      . Both Lynch and Williams dealt only with the application of § 13A-12-250. However, the language in § 13A-12-270 is identical to the language in § 13A-12-250; the only difference between the two is that § 13A-12-250 applies to sales within a three-mile radius of a school and § 13A-12-270 applies to sales within a three-mile radius of a housing project.


author:
STUART, Justice.
      JOHNSTONE, Justice

text:
    Ex parte Dee Cee SKINNER. (In re Dee Cee Skinner v. State of Alabama).
    1011869.
    Supreme Court of Alabama.
    Aug. 30, 2002.
    Susan G. James of Law Firm of Susan G. James & Associates, Montgomery, for petitioner.
   STUART, Justice.

WRIT DENIED. NO OPINION.

HOUSTON, SEE, LYONS, BROWN, HARWOOD, and WOODALL, JJ., concur.

MOORE, C.J., and JOHNSTONE, J., dissent.

JOHNSTONE, Justice

(dissenting).

I respectfully dissent from the denial of the petition for a writ of certiorari. In my opinion, we should grant the writ and review the decision by the Court of Criminal Appeals to the extent that it overrules Williams v. State, 665 So.2d 955 (Ala.Crim.App.1994), and to the extent that it holds the omission of allegations of enhancement factors in an indictment not to be a jurisdictional bar to enhancement of a sentence.


author: WISE, Judge.

text:
    Scott Thomas WARWICK v. STATE of Alabama.
    CR-01-1005.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 2002.
    Johannes T. Rech II, Montgomery, for appellant.
    William H. Pryor, Jr., atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   WISE, Judge.

The appellant, Scott Thomas Warwick, appeals from the circuit court’s revocation of his probation. Warwick’s appointed counsel has filed a brief in substantial compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel stated that his review of the record revealed no error had occurred in the circuit court’s revocation of Warwick’s probation. This Court issued an order on April 29, 2002, informing Warwick that his counsel had filed an Anders brief and ordering him to file with the Court any issues he believed to be worthy of review. Thereafter, on May 15, 2002, Warwick filed a pro se letter brief, in which he alleged that the circuit court had failed to follow the requirements of Rules 27.5 and 27.6, Ala.R.Crim.P. Specifically, Warwick alleged that the court had not furnished him with a copy of the alleged violations and that it had not informed him of his right to request that he be represented by counsel.

Initially, we note that the record reveals some irregularities regarding Warwick’s sentence. Warwick was charged with one count of first-degree burglary and one count of first-degree theft. At some point, Warwick applied for treatment as a youthful offender; a hearing on his application was scheduled for April 24, 2001. However, on April 24, 2001, as part of what appears to be a negotiated plea agreement, Warwick pleaded guilty to both charges. The circuit court’s judgment entry set out Warwick’s guilty pleas and sentenced him to 20 years’ imprisonment for each conviction, those sentences to run concurrently. The court then suspended the sentences and imposed a five-year “reverse-split” sentence for each conviction, pursuant to which Warwick’s sentences would be suspended if he successfully completed boot camp and two years of supervised probation. The entry further stated that the court was withholding its ruling on Warwick’s request for youthful-offender treatment; if Warwick successfully completed boot camp, the court would grant his request to be treated as a youthful offender. The entry also required Warwick to enlist in the military following boot camp.

On September 27, 2001, the circuit court entered an order granting Warwick’s application for youthful-offender status and released him on Level I supervised probation. However, the circuit court neglected to modify Warwick’s sentences to comply with the Youthful Offender Act. See § 15-19-6, Ala. Code 1975.

On January 23, 2002, Warwick submitted to a routine drug screening conducted as part of his probation. He tested positive for marijuana, thus violating a condition of his probation. Warwick’s probation officer filed a notice of probation violations, listing a number of violations including the positive drug test. An initial hearing was set for January 31, 2002, to advise Warwick of the alleged violations. At the hearing, the circuit court advised Warwick of the violations. The court noted:

“All right, Mr. Warwick, I’ve got you here this morning to read you notice of some alleged probation violations. I’m going to read these to you. If you admit them, and if you say they are true, then I’ll have to decide whether to revoke your probation or not revoke your probation. If what I read you is not true, then all you have to do is say I deny, then I’ll appoint a lawyer, then we’ll set a hearing later.”

After being advised of the violations, Warwick admitted each violation. He attempted to offer an explanation for the violations. The court did not find Warwick’s explanations to be credible, and it revoked his probation and reinstated the original five-year prison sentence. The court also stated that, because Warwick had failed to enlist in the military, as he had agreed to do pursuant to his guilty-plea agreement, the court was reversing its grant of youthful-offender treatment.

Although Warwick’s contentions of error are without merit, we are nevertheless required to reverse the circuit court’s revocation of his probation, based on the fact that Warwick’s sentence ex-ceeded the maximum sentence authorized by law for a defendant sentenced pursuant to the Youthful Offender Act. A trial court does not have jurisdiction to impose a sentence not provided for by statute. “Matters concerning unauthorized sentences are jurisdictional,” Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994); therefore, this Court may take notice of an illegal sentence, even though Warwick did not raise the issue in the trial court or in his brief on appeal. See, e.g., McCall v. State, 794 So.2d 1243 (Ala.Crim.App.2000); Pender v. State, 740 So.2d 482 (Ala.Crim.App.1999). By virtue of the split sentence imposed on April 24, 2001, the circuit court retained jurisdiction to further modify Warwick’s sentence and to grant him youthful-offender status. See generally Hollis v. State, 845 So.2d 5 (Ala.Crim.App.2002). However, once the circuit court granted Warwick’s request for youthful-offender status, his original sentence became illegal because the original five-year sentence exceeded the maximum sentence allowed under the Youthful Offender Act, § 15-19-6, Ala.Code 1975. See, e.g., Ferguson v. State, 565 So.2d 1172, 1173 (Ala.Crim.App.1990) (a court exceeds its jurisdiction when it imposes a sentence in excess of that authorized by statute, and the sentence is void). Because the circuit court failed to resentence Warwick in accordance with the provisions of the Youthful Offender Act and because his original sentence had been voided by the grant of youthful-offender status, every proceeding the court undertook after September 27, 2001, was void, including the court’s attempt to reverse its original grant of youthful-offender status and its revocation of Warwick’s probation.

Based on the foregoing, we reverse the judgment of the circuit court revoking Warwick’s probation and remand this cause to the Montgomery Circuit Court with directions that it resentence Warwick in accordance with the provisions of § 15-19-6, Ala.Code 1975.

REVERSED AND REMANDED WITH DIRECTIONS.

McMILLAN, p.j., and COBB, BASCHAB, and SHAW, JJ., concur.

      . We question whether the circuit court had the authority to require, as part of the plea agreement, that Warwick enlist in the military.

      . We question whether the court had jurisdiction to reverse its grant of youthful-offender status, particularly since the court’s action came more than 120 days after it had granted Warwick’s request. We know of no authority that allows a court to revoke youthful-offend-ex status more than 30 days after granting such status. See generally Ex parte Hitt, 778 So.2d 159 (Ala.2000). However, because at that point Warwick's sentence was illegal and any action by the court was void, we need not address the propriety of the court’s actions.


author: McMILLAN, Presiding Judge.

text:
    STATE v. Randolph Clifton THOMAS.
    CR-01-0827.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 2002.

      William H. Starnes, district atty., Huntsville, for appellant.
    D. Alan Mann, Huntsville, for appellee.
   McMILLAN, Presiding Judge.

The State appeals from the trial court’s order granting a motion to suppress evidence filed by the appellee, Randolph Thomas. Thomas was charged in a three-count indictment with murder, a violation of § 13A-6-2, Ala.Code 1975, and two counts of assault in the first degree, violations of § 13A-6-20, Ala.Code 1975.

The State argues that the trial court erred in granting Thomas’s motion to suppress a second statement he gave to Trooper Darrell Campbell because, it argues, Thomas was not in custody while he was in the Huntsville Hospital; therefore, it argues, a Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), warning was not required.

The following evidence was elicited at the hearing on the motion to suppress: At approximately 1:00 p.m. on November 7, 1999, Thomas was involved in a two-vehicle collision at the intersection of Old Railroad Bed Road and Yarborough Road. Trooper Alfred Story, of the Alabama Department of Public Safety, Highway Patrol Division, Madison County, responded and began an investigation of the accident. Volunteers and paramedics at the scene informed him that Thomas appeared to have been drinking. Trooper Story did not speak with Thomas at the accident scene because paramedics were preparing to transport him to Huntsville Hospital.

Because Lori Ann Stephens, a passenger in the other vehicle, died as a result of the accident, Trooper Darrell Campbell, a traffic homicide investigator with the Highway Patrol Division, was called to the scene. Trooper Story left the scene, went to the hospital, and spoke with Thomas. He testified that Thomas was lucid and verbally informed him that he was the driver of one of the vehicles involved in the accident. Thomas informed Trooper Story that he was traveling at approximately 30 miles per hour when he “slid” off the road. Trooper Story testified that he could smell an odor of alcohol on Thomas’s breath. He asked him if he had been drinking, and Thomas replied that he had had two beers. Trooper Story testified that he then conferred with Trooper Campbell and Sgt. Bob Phillips, both of whom were present in Thomas’s room, informed them that he believed Thomas was under the influence of alcohol, and that they should try to obtain a blood sample. He testified that Thomas was not in custody when he interviewed him because the questions he was asking were merely standard in filling out the accident report. Trooper Story testified that after conferring with the other officers, he arrested Thomas for driving under the influence, issued a Uniform Traffic Ticket and Complaint, informed him that a fatality had resulted from the accident he was involved in, and asked him to take a blood test. Thomas consented to the test and signed the form. Trooper Story testified that he was not involved in any further interviews with Thomas and that Trooper Campbell handled all the paperwork for the blood test. He testified that although Thomas was arrested, he was not taken into custody and was not in custody during his hospital stay. Trooper Story testified that he did not read Thomas his Miranda rights because he arrested him only for driving under the influence.

Trooper Darrell Campbell testified that he arrived at the Huntsville Hospital emergency room, on November 7, 1999, at 4:00 p.m., approximately three hours after the accident had occurred. He testified that he saw Thomas being interviewed by Trooper Story, and that Thomas appeared to be alert. He also testified that based on eyewitnesses, the odor of alcohol on his person, and his interview with the officers, Thomas was placed under arrest for driving under the influence and signed a consent form for a blood sample for testing of his blood-alcohol content. Trooper Campbell further testified that he returned to the hospital the following morning, on November 8, and spoke with Thomas, who was in the intensive care unit. He testified that he asked the nurse monitoring the intensive care unit if Thomas was under any medication, and she responded that he was not. He testified that he informed Thomas that he was there to follow-up on the accident. The record indicates that Trooper Campbell asked him, “Do you remember what wreck you were in?” Thomas replied, “I was in my friend’s pick-up truck.” Trooper Campbell testified that Thomas did not respond any further and that he appeared to go to sleep. He testified that he did not give Thomas any Miranda warnings because he was not in custody at the time of the second interview, and he could check himself out of the hospital at any time. He testified that Thomas did, in fact, check himself out two days later, and he was free to do so.

Trooper Campbell testified that on November 12, manslaughter charges were brought against Thomas. Although he attempted to serve Thomas with notice of the charges, he was unable to locate him. Eventually, he discovered that Thomas was in the Limestone County jail on a parole-revocation charge. He testified that he had a third conversation with Thomas on December 1, 1999, at the jail, and that he gave him Miranda warnings because he was in custody at that point. During that conversation, Thomas told Trooper Campbell that he would talk to him, but that all that he had to offer was that he was not driving the vehicle at the time of the accident. Trooper Campbell testified that when he told Thomas that all of the evidence indicated that he was driving the vehicle, he invoked his Miranda rights and requested an attorney. The conversation then ended.

On August 4, 2000, Thomas was indicted by the Madison County grand jury on the homicide and assault charges. On January 5, 2001, he was arrested on the warrant issued pursuant to that indictment.

After his arrest, Thomas, on February 7, 2001, filed a “Motion to Suppress Statements.”

Subsequent to the hearing, the trial court granted the appellee’s motion to suppress, and made the following findings of fact:

“This is my ruling. The issues as I see them so far have to do with the alleged statements made by the defendant to various troopers who questioned him after the accident on November 7.
“The questioning did take place at Huntsville Hospital, initially at the emergency room, and the next day in the intensive care unit. And there was a third statement given at the Limestone County Jail.
“In reference to the comments made to Trooper Story, this is my thought and my ruling. The initial determination is whether or not this was a custodial interrogation by the trooper; secondly, was the voluntariness of the statement.
“And as to the consent given as to the blood test and the blood work to be performed, in my opinion, at the time that the defendant was at Huntsville Hospital, Trooper Story was still investigating a traffic accident. And, frankly, simply put, caselaw in this state and most states is that a trooper has the reasonable grounds and reasonable suspicion to go ahead and investigate for possible traffic violations, which is what he stated he had done and, so, therefore, he had the right to ask moderate questions as to whether or not, involving this defendant, there were traffic violations on his part. If so, he can issue a traffic citation.
“And that’s exactly what he did. He asked for comments of the defendant. And, in my opinion, based on what was presented in Court, the defendant was competent at the time or sufficiently competent so as to answer the questions in a voluntary fashion. Therefore, the comments and statements made to Trooper Story are admissible.
“Now, as to the comments made to Trooper Campbell — let me go back a moment.
“Trooper Story arrested the defendant, issued a citation for DUI [driving under the influence]. Trooper Campbell was present at that time and heard that and he knew the arrest had been made and the citation had been issued to the defendant. The next day, in reference to that, he questioned the defendant again.
“And he has candidly stated that he did not give any Miranda warnings. In my opinion, it was in error. He should have done so. No rights were read to him, even though he knew the defendant had been arrested the night before.
“The point of some of his questions had to do with whether or not the defendant had been the driver of the vehicle and had been drinking. The focus was on him, as [defense counsel] elicited. And, in fact, Trooper Campbell admitted that the defendant was the prime suspect..
“As to whether ■ or not this was a custodial interrogation, again, Trooper Campbell candidly admitted in his opinion the defendant was not going anywhere. He was in that hospital bed and not able to go anywhere. Therefore, I believe it was a custodial investigation/interrogation. I do not believe the defendant would have been permitted to leave.
“He should have had his Miranda rights read to him because the statements he made could have been used against him for the DUI citation. So, in my opinion, the comments made at that time on November 8 at the Huntsville Hospital intensive care unit are not admissible.
“And as to the third, I don’t believe there is any reason to dispute, from what I have heard. Trooper Campbell administered rights to the defendant and whatever statements were made were made.
“Finally, as to the blood test, I do believe the defendant gave appropriate consent for that and I think the consent was made in a competent fashion; therefore, the blood tests results and blood test consent form are admissible.
“At this time, that’s my ruling.”

The record indicates that the only testimony received during the suppression hearing was that of Trooper Story and Trooper Campbell. The Alabama Supreme Court in State v. Hill, 690 So.2d 1201, 1203 (Ala.1996), stated:

‘“Where evidence is presented to the trial court ore tenus in a nonjury case, a presumption of correctness exists as to the court’s conclusions on issues of fact; its determination will not be disturbed unless clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. Odom v. Hull, 658 So.2d 442 (Ala.1995). However, when the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court’s judgment. Ex parte Board of Zoning Adjustment of the City of Mobile, 636 So.2d 415 (Ala.1994).’
“[Ex parte Agee,] 669 So.2d [102,] 104 [ (Ala.1995) ]. ‘Where the evidence before the trial court was undisputed the ore tenus rule is inapplicable, and the Supreme Court will sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court’s application of the law to those facts.’ Stiles v. Brown, 380 So.2d 792, 794 (Ala.1980) (citations omitted).”

The trial court’s ruling in this case was based upon its interpretation that because “[Thomas] was in that hospital bed and not able to go anywhere,” he was, before his second interview, subject to a custodial investigation/interrogation, and, therefore, a Miranda warning was required; the proper interpretation is a question of law. Because Thomas presented no testimony at the suppression hearing and because the testimony of the officers was undisputed, we review de novo the trial court’s ruling on the issue. Hill, supra.

This Court is of the opinion that Thomas was not in “custody during his hospital stay and, therefore, that a Miranda warning was not required. This Court in Nelson v. State, 623 So.2d 432, 434-36 (Ala.Crim.App.1993), held:

“Generally, questioning of a patient-suspect in the hospital does not amount to custodial interrogation when the suspect is not under formal arrest. 3 W. Ringel, Searches and Seizures, Arrests and Confessions § 27.-3(a)(3) at 27-16 (2d ed.1992). ‘[T]he particular detention or restriction of movement [of a hospital patient-suspect] must rise to the level of a de facto arrest before an individual will be deemed ‘in custody’ for purposes of Miranda.’ People v. Ripic, 182 A.D.2d 226, 587 N.Y.S.2d 776, 779 (1992), appeal dismissed, 81 N.Y.2d 776, 594 N.Y.S.2d 712, 610 N.E.2d 385 (1993). ‘[C]onfinement to a hospital bed is insuf ficient alone to constitute custody.’ People v. Miller, 829 P.2d 443, 445 (Colo.App.1991). See also United States v. Martin, 781 F.2d 671 (9th Cir.1985) (accused, who had been making bombs in his apartment, had been injured in explosion, and had gone to hospital, was not ‘in custody’ when officers went to hospital and questioned him); State v. Clappes, 117 Wis.2d 277, 344 N.W.2d 141, 145-46 (1984) (accused, who was questioned by police officers in the hospital following an automobile accident, was not ‘in custody’ because, although he was surrounded by an ‘atmosphere of restraint,’ the restraint was not ‘created by the [law enforcement] authorities’).”

The Miranda warnings are not required simply because the questioned person is a suspect or one on whom the investigation has focused. Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). The “[c]riteria used to determine the necessity of Miranda safeguards include: probable cause to arrest, subjective intent of the police, subjective belief of the defendant, and focus of the investigation. Especially important is whether the focus of the investigation had finally been centered on the accused.” Harrison v. State, 358 So.2d 759, 761 (Ala.Crim.App.1977) (citation omitted). “ ‘While investigative focus is especially significant, it is custody and not focus which marks the point at which the Miranda warnings become mandatory.’” Perkins v. State, 574 So.2d 988, 990 (Ala.Crim.App.1990) (quoting Harris v. State, 376 So.2d 773-74 (Ala.Crim.App.1979)) (emphasis added.)

The test for custody is whether there was a restraint on freedom of movement of the degree associated with a formal arrest. See Campbell v. State, 718 So.2d 123, 135 (Ala.Crim.App.1997) (“In determining whether a suspect is in custody, a court must examine the totality of the circumstances of the situation using the perspective of a reasonable person in the suspect’s position.”). Stone v. City of Huntsville, 656 So.2d 404, 408 (Ala.Crim.App.1994) (‘“[C]ustody arises only if the restraint on freedom [reaches] the degree associated with [a] formal arrest.’ ”). Here, the undisputed testimony was that the only restraint on freedom of movement was Thomas’s medical condition and treatment. Although Thomas had been issued a citation for DUI before he gave a second statement, no hold was placed on him, and he was later released on his own recognizance. A fatality occurred in this case, but Thomas was not charged with homicide before or during his hospital stay.

Considering all of the circumstances of this case, we are of the opinion that a reasonable person, placed in Thomas’s position in the hospital receiving medical treatment, would not have believed that he was under formal arrest for Fifth Amendment purposes when he gave his second statement; therefore, Miranda warnings were not required. As stated earlier, for Miranda to apply there must be both “custody” and “interrogation,” and here, clearly, there was no “custody.”

The judgment of the trial court is reversed and the cause is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, BASCHAB, SHAW, and WISE, JJ., concur.


text:
    Jason Christopher CAMPBELL v. CITY OF DAPHNE.
    CR-01-0664.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 2002.
    Todd Cameron Mallette, Mobile, for appellant.
    James M. Scroggins, Daphne, for appel-lee.
   McMILLAN, Presiding Judge.

The appellant, Jason Christopher Campbell, appeals from the Baldwin Circuit Court’s denial of his motion to reinstate his appeal of his municipal court conviction for DUI. The record indicates that the circuit court dismissed Campbell’s appeal when he failed to appear for his arraignment hearing on November 27, 2001. Campbell’s counsel then requested the circuit court to reinstate his appeal, stating in his motion that a waiver of arraignment had been mailed to the circuit court on November 13, 2001. The circuit court denied Campbell’s motion to reinstate, and he appealed the matter to this Court.

Rule 30.5(b), Ala. R.Crim. P., explains the procedure for dismissing a de novo appeal to the circuit court:

“Where appellant, without sufficient excuse, does not appear for trial de novo when called for trial, the court may dismiss the appeal, order the bond forfeited, and remand the case to the court appealed from for enforcement of the lower court’s judgment; provided, however, that on motion of the appellant for good cause shown, the circuit court may, within thirty (30) days of the date of the order of dismissal, set the order of dismissal aside and reinstate the appeal on such terms as the circuit court may prescribe .... The entry of a judgment of default on the appeal bond shall comply with the procedures set forth in § 15-13-81, and a forfeiture may be entered by the circuit court or the court from which the appeal is taken.”

The circuit court’s dismissal of Campbell’s appeal when he faded to appear at arraignment was premature. Pursuant to this Court’s holding in Riddle v. State, 641 So.2d 1316 (Ala.Crim.App.1994), the judgment of the circuit court is reversed and this cause is remanded with directions for the circuit court to set aside its dismissal and to reinstate Campbell’s appeal of his DUI conviction.

REVERSED AND REMANDED.

COBB, BASCHAB, SHAW, and WISE, JJ., concur.

      . Campbell also appealed to the trial court his municipal court conviction for reckless driving. However, after the trial court’s dismissal of his appeal, Campbell did not move to reinstate the reckless driving appeal. Although he argues in his appellate brief that both appeals should be reinstated, only the issue of his DUI appeal is properly before this Court.

      . We are quoting Rule 30.5(b), Ala. R.Crim. P., as it read before an amendment to that rule, effective August 1, 2002.