text:
    EX PARTE B.W.
    (In re A.L.E. v. B.W.)
    2170231
    Court of Civil Appeals of Alabama.
    January 26, 2018
    Vanessa Arnold Shoots, Mobile, for petitioner.
    Pamela Millsaps, Mobile, for respondent.
   DONALDSON, Judge.

B.W. petitions this court for a writ of mandamus directing the Mobile Juvenile Court ("the juvenile court") to enter an order dismissing an action for lack of subject-matter jurisdiction. For the reasons set forth below, we deny the petition.

Facts and Procedural History

On November 3, 2015, B.W. gave birth to A.E. ("the child"). B.W. and A.L.E. completed and signed a form for acknowledging A.L.E.'s paternity of the child. The Alabama Center for Health Statistics, which in Alabama performs the functions of an office of vital statistics, received the form on November 9, 2015. The form allows signatories to indicate whether genetic testing has been completed and, if so, whether the results are consistent with the claim of paternity. The form executed by B.W. and A.L.E., however, lacks any marks to indicate whether any genetic testing had been completed.

On July 18, 2016, A.L.E. filed a complaint against B.W. in the juvenile court. A.L.E. sought to establish his paternity of the child, to obtain custody of the child, and to require B.W. to pay child support. B.W. filed an answer in which she alleged that A.L.E. was the "putative father" of the child. A.L.E. filed other motions relating to, among other things, discovery and pendente lite custody of the child.

On October 23, 2017, B.W. filed a motion to dismiss the action for lack of subject-matter jurisdiction. In the motion, B.W. argued that A.L.E.'s paternity of the child had already been established at the time the complaint was filed based on the form for acknowledging paternity that had been signed by both parties and that, therefore, the juvenile court lacked original subject-matter jurisdiction of the paternity action.

On November 17, 2017, the juvenile court entered an order indicating that it had conducted a hearing. In the order, the juvenile court denied B.W.'s motion to dismiss and levied a sanction against B.W. in the amount of $1,734.30 for B.W.'s failure to answer discovery. The juvenile court set the matter for trial on April 17, 2018.

On December 5, 2017, B.W. filed the present petition for a writ of mandamus and a motion to stay the proceedings until this court's decision on her petition. Because B.W. had not sought a stay in the juvenile court, this court denied the motion to stay, citing Rule 8(b), Ala. R. App. P. On December 14, 2017, B.W. filed a motion to stay in the juvenile court. On December 20, 2017, B.W. filed a renewed motion to stay in this court, asserting that the juvenile court had orally denied her December 14, 2017, motion to stay but had also stated that it would not enforce any orders. On December 22, 2017, A.L.E. filed an answer in opposition to the petition for a writ of mandamus.

Discussion

B.W. contends that the form for the acknowledgment of paternity executed by B.W. and A.L.E. conclusively established the paternity of the child, thus precluding the juvenile court from exercising subject-matter jurisdiction over this paternity action. " 'Subject-matter jurisdiction concerns a court's power to decide certain types of cases.' " Bates v. Stewart, 99 So.3d 837, 850 (Ala. 2012) (quoting Ex parte Seymour, 946 So.2d 536, 538 (Ala. 2006) ). Section 12-15-115(a), Ala. Code 1975, provides, in relevant part:

"A juvenile court shall also exercise original jurisdiction of the following civil proceedings:
"....
"(6) Proceedings to establish parentage of a child pursuant to the Alabama Uniform Parentage Act, Chapter 17 of Title 26.
"(7) Proceedings to establish, modify, or enforce support, visitation, or custody when a juvenile court previously has established parentage."

Section 26-17-104, Ala. Code 1975, provides, in part:

"A circuit or district court of this state or any other court of this state, as provided by law, shall have original jurisdiction to adjudicate parentage pursuant to this chapter and may determine issues of custody, support, and visitation incidental to a determination of parentage...."

Statutory authority, therefore, provides a juvenile court with subject-matter jurisdiction to establish parentage pursuant to the Alabama Uniform Parentage Act ("the AUPA"), § 26 - 17 - 101 et seq., Ala Code 1975, and to determine incidental issues of custody, child support, and visitation. Accordingly, the juvenile court had subject-matter jurisdiction to adjudicate the type of case brought by A.L.E.

B.W. argues that the parties' execution of a form for the acknowledgment of paternity established A.L.E.'s paternity before A.L.E. initiated this action and that, therefore, the juvenile court did not have original subject-matter jurisdiction in the matter. Section 26-17-102(7), Ala. Code 1975, provides: " 'Determination of parentage' means the establishment of the parent-child relationship by the execution of a valid acknowledgment of paternity under Article 3 [of the AUPA] or adjudication by the court." Section 26-17-201(b), Ala. Code 1975, further provides, in relevant part:

"The father-child relationship may be established between a man and a child by:
"....
"(2) an effective acknowledgment of paternity by the man under Article 3 [of the AUPA], unless the acknowledgment has been rescinded or successfully challenged;
"(3) an adjudication of the man's paternity."

As provided in §§ 26-17-102(7) and 26-17-201(b), the establishment of a parent-child relationship requires the execution of a valid or effective acknowledgment of paternity pursuant to the AUPA.

Section 26-17-302(a), Ala. Code 1975, part of Article 3 of the AUPA, provides the requirements for a valid acknowledgment of paternity:

"An acknowledgment of paternity must:
"(1) be in a record filed with the Alabama Office of Vital Statistics;
"(2) be signed, and notarized, under penalty of perjury by the mother and by the man seeking to establish his paternity;
"(3) state that the child whose paternity is being acknowledged:
"(A) does not have a presumed father or the man executing the acknowledgment is the presumed father; and
"(B) does not have another acknowledged or adjudicated father;
"(4) state whether there has been genetic testing and, if so, that the acknowledging man's claim of paternity is consistent with the results of the testing; and
"(5) state that the signatories understand that the acknowledgment shall be considered a legal finding of paternity of the child and that a challenge to the acknowledgment is permitted only as provided in this chapter."

In this case, the parties did not indicate "whether there has been genetic testing and, if so, that the acknowledging man's claim of paternity is consistent with the results of the testing" in the form for the acknowledgment of paternity. § 26-17-302(a)(4). As a result, the form executed by the parties does not facially meet all the requirements for a valid acknowledgment of paternity pursuant to the AUPA. Therefore, B.W. is unable to demonstrate that a parent-child relationship had already been established before A.L.E. initiated the paternity action. See F.C. v. S.J.M., 239 So.3d 590, 596 (Ala. Civ. App. 2017) (holding that "the completion of the acknowledgment of paternity by the father without properly filing the acknowledgment did not legally establish the paternity of the child in this case"). Any further discussion of the juvenile court's jurisdiction in this action is unnecessary.

Based on the foregoing, we deny the petition for a writ of mandamus. We deny the renewed motion to stay as moot.

PETITION DENIED; MOTION TO STAY DENIED.

Thompson, P.J., and Pittman and Thomas, JJ., concur.

Moore, J., concurs in the result, without writing.

      We note that B.W. filed the petition for a writ of mandamus more than 14 days after the entry of the November 17, 2017, order denying her motion to dismiss. Rule 21(a)(3), Ala. R. App. P., provides that such a petition must either be filed within a presumptively reasonable time (i.e., within 14 days in a juvenile matter, see Rule 21(a)(3) and Rule 4(a)(1)(E), Ala. R. App. P.) or include a statement of good cause for filing the petition beyond the presumptively reasonable time. However, a petition for a writ of mandamus need not be filed within a presumptively reasonable time for our consideration if it challenges a trial court's subject-matter jurisdiction. See Ex parte K.R., 210 So.3d 1106, 1112 (Ala. 2016) (holding that, "even though [the] petition [was] untimely filed, we will consider [the] argument ... because it concerns the jurisdiction of the [lower] court, of which we may take notice ex mero motu"). We therefore consider B.W.'s petition for a writ of mandamus, which challenges the juvenile court's jurisdiction.


source: Caselaw Access Project

author: JOINER, Judge.

license: Public Domain

text:
    Ramiro Delreal CONTRERAS. v. STATE of Alabama.
    CR-14-0980.
    Court of Criminal Appeals of Alabama.
    July 8, 2016. Rehearing Denied September 2, 2016 Certiorari Quashed January 16, 2018
    Todd Crutchfield, Auburn; and Andrew Stanley, Opelika, for appellant.
    Luther Strange, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.
   JOINER, Judge.

Ramiro Delreal Contreras was convicted of felony murder, see § 13A-6-2(a)(3), Ala.Code 1975, as a lesser-included offense of capital murder. Contreras was sentenced to 50 years' imprisonment and was ordered to pay court costs and a $50 crime-victims-compensation assessment. We affirm.

On the morning of May 2, 2012, Vanessa Zapata got ready for work and briefly saw her four-year-old daughter Ava, who was eating breakfast. Zapata left for work sometime before 9:00 a.m., leaving Ava in the care of her boyfriend Contreras.

At trial, Zapata testified that around 1:30 p.m., she came home during her lunch hour and found that Ava had vomited on herself. Zapata bathed Ava and went back to work. When she returned home, Zapata found Ava lying on her bedroom floor. It appeared to Zapata that "[Ava] was starting to get sick. She didn't seem as energetic or interested in anything." Ava eventually went to bed without eating. At some point, Ava woke up and called out to Zapata. Zapata carried Ava to the bathroom because Zapata thought that Ava was going to vomit again. Ava passed out and hit her head on the floor. Zapata telephoned emergency 911 and Ava was transported to East Alabama Medical Center in Opelika.

At some point, Ava was airlifted to Children's Hospital in Birmingham. After multiple surgeries, it was discovered that Ava suffered from an intestinal injury that was uncommon for her age group. As a result of her injury, Ava was removed from life support, and she later died. Her body was then transported to the Alabama Department of Forensic Sciences.

An autopsy was performed on Ava by Dr. Steven Dunton, the senior State Medical Examiner and pathologist. Dr. Dunton testified that Ava died from brain swelling following complications of an abdominal injury caused by blunt-force trauma. Ava had a laceration on her liver, and her small intestine had been severed into two pieces, causing internal bleeding. Dr. Dunton determined that a blunt, "impaling" object crushed the intestine between the object and the spine causing it to tear and burst.

Contreras gave a statement to police, which was read into evidence. (R. 724.) According to his statement, Contreras was playing with Ava and another child in the living room about 10:00 a.m. when, Contreras said, he "accidentally" kicked Ava in the stomach. Contreras described the kick as "more of a sweeping motion with [his] leg." Contreras stated that the first time that Ava got sick was about 1:30 p.m. when Zapata came home for lunch.

Contreras admitted that he did not tell anyone what had happened.

On appeal, Contreras argues that the circuit court erred by instructing the jury, over his objection, on felony murder predicated on the underlying felony of aggravated child abuse. Relying on Barnett v. State, 783 So.2d 927 (Ala.Crim.App.2000), Contreras argues that aggravated child abuse merges with the homicide and, thus, cannot serve as the underlying felony for a felony-murder charge.

"It has long been the law in Alabama that a [circuit] court has broad discretion in formulating jury instructions, provided those instructions are accurate reflections of the law and facts of the case." Barrett v. State, 33 So.3d 1287, 1288 (Ala.Crim.App.2009) (citing Culpepper v. State, 827 So.2d 883, 885 (Ala.Crim.App.2001) ).

At all times relevant to this case, § 13A-6-2(a)(3), Ala.Code 1975, provided:

"A person commits the crime of murder if he or she does any of the following:
"....
"(3) He or she commits or attempts to commit arson in the first degree, burglary in the first or second degree, escape in the first degree, kidnapping in the first degree, rape in the first degree, robbery in any degree, sodomy in the first degree, any other felony clearly dangerous to human life and, in the course of and in furtherance of the crime that he or she is committing or attempting to commit, or in immediate flight therefrom, he or she, or another participant if there be any, causes the death of any person."

(Emphasis added.) As noted, Contreras's felony-murder conviction is predicated on aggravated child abuse under § 26-15-3.1, Ala.Code 1975.

Section 26-15-3.1 provides: "A responsible person, as defined in Section 26-15-2, commits the crime of aggravated child abuse if he or she ... violates the provisions of Section 26-15-3 which causes serious physical injury, as defined in Section 13A-1-2, to the child." A responsible person is defined as "[a] child's natural parent, stepparent, adoptive parent, legal guardian, custodian, or any other person who has the permanent or temporary care or custody or responsibility for the supervision of a child." § 26-15-2, Ala.Code 1975. A person violates Section 26-15-3, Ala.Code 1975, if he or she "torture[s], willfully abuse[s], cruelly beat[s], or otherwise willfully maltreat[s] any child under the age of 18 years." Finally, a serious physical injury is defined as a "[p]hysical injury which creates a substantial risk of death, or which causes serious and protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of any bodily organ." § 13A-1-2, Ala.Code 1975.

Under the version of § 13A-6-2(a)(3) in effect at the time of Contreras's trial, aggravated child abuse was not specifically included as a predicate felony. In Washington v. State, 214 So.3d 1225 (Ala.Crim.App.2015), however, this Court noted:

"[T]his Court, in Ex parte Mitchell, 936 So.2d 1094 (Ala.Crim.App.2006), first considered the breadth of the felony-clearly-dangerous-to-human-life element of felony murder when an unenumerated felony underlies that charge. This Court recognized that in 1977 the legislature 'increased the number of felonies that could serve as the basis for felony murder and added the additional proviso to § 13A-6-2(a)(3) : "or any other felony clearly dangerous to human life...." ' Id. at 1101. This Court adopted a 'fact-based approach' to determine if a felony is 'clearly dangerous to human life.' Id. Under that approach, ' "the trier of fact [is] to consider the facts and circumstances of the particular case to determine if such felony was inherently dangerous in the manner and the circumstances in which it was committed...." ' Ex parte Mitchell, 936 So.2d 1094, 1101 (Ala.Crim.App.2006) (quoting State v. Stewart, 663 A.2d 912, 919 (R.I.1995) ).
"Under this Court's decision in Mitchell, 936 So.2d at 1101, a person commits felony murder under § 13A-6-2(a)(3), Ala.Code 1975, if that person or another participant in the crime causes the death of any person during the commission of an enumerated felony or during the commission of an unenumerated 'felony [that was committed in a manner that was] clearly dangerous to human life.' § 13A-6-2(a)(3), Ala.Code 1975. The fact that a felony is not enumerated in § 13A-6-2(a)(3), Ala.Code 1975, does not preclude its use to support a felony-murder conviction, provided the finder of fact determines that the underlying felony was 'clearly dangerous to human life.' See Mitchell, 936 So.2d at 1101."

214 So.3d at 1229.

In the present case, the evidence presented was sufficient for the jury to have found that four-year-old Ava died from complications of an abdominal injury, i.e., a severed intestine, as a result of having been cruelly or otherwise willfully kicked by Contreras-her caregiver-or struck with a blunt, "impaling" object in the stomach. Additionally, the jury had before it evidence indicating that, after Contreras injured Ava, he failed to tell anyone about it. Thus, a reasonable jury could have found that, under the circumstances of this case, Contreras committed aggravated child abuse and that it was a felony clearly dangerous to human life. Washington, supra.

As noted above, however, Contreras argues that the merger doctrine, as delineated in Barnett, prohibits the use of aggravated child abuse as the underlying felony for felony murder. In Barnett, this Court held that "felonious assaults that result in the victim's death merge with the homicide and therefore cannot serve as an underlying felony for purposes of the felony-murder rule." In so holding, this Court explained:

"In People v. Ireland, 70 Cal.2d 522, 450 P.2d 580, 75 Cal.Rptr. 188 (Cal.1969), the Supreme Court of California addressed whether assault with a deadly weapon could constitute the predicate felony for a felony-murder charge. The appellant in Ireland shot and killed his wife. During the trial, the trial court instructed the jury that it could convict Ireland of felony murder if it determined that he committed the underlying felony of assault with a deadly weapon. Id. In discussing this issue, the Supreme Court of California stated:
" 'We have concluded that the utilization of the felony-murder rule in circumstances such as those before us extends the operation of that rule "beyond any rational function it is designed to serve." ( People v. Washington (1965) 62 Cal.2d 777, 783, 44 Cal.Rptr. 442, 446, 402 P.2d 130, 134.) To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault-a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law. We therefore hold that a second degree felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged.'
"....
"Conceived in the nineteenth century, the merger doctrine bars the use of the felony-murder rule when the underlying felony directly results in, or is an integral part of, the homicide. See State v. Strauch, 239 Kan. 203, 718 P.2d 613 (1986), and Note, The Merger Doctrine as a Limitation on the Felony-Murder Rule: A Balance of Criminal Law Principles, 13 Wake Forest L.Rev. 369, 377 (1977). Thus, under the merger doctrine, the elements of the underlying felony must be independent of the homicide. See Lafave & Scott, supra, Criminal Law § 7.5 at 622. We believe that the California Supreme Court's rationale in [ People v.] Ireland [, 70 Cal.2d 522, 450 P.2d 580, 75 Cal.Rptr. 188 (Cal.1969),] is sound and that the 'merger doctrine' should be applied in felony-murder cases in which the underlying felony is the assault that results in the victim's death.
"To read the 'clearly dangerous to human life' language in the felony-murder rule as allowing an assault on the homicide victim to be the predicate felony for felony murder would offend the statutory construction of Alabama's homicide laws. The Legislature has defined those acts that constitute murder as well as those acts that constitute manslaughter. See §§ 13A-6-2 and 13A-6-3, Ala.Code 1975. If prosecutors could prove murder by proving the intent element of assault as opposed to the requisite mens rea for murder or manslaughter, §§ 13A-6-2(a)(1) and (2), 13A-6-2(b), and 13A-6-3, Ala.Code 1975 would effectively be eliminated. Clearly, such a result would be contrary to legislative intent."

Barnett, 783 So.2d at 930 ; see also Smith v. State, 908 So.2d 273 (Ala.Crim.App.2000).

Thus, under Barnett, the critical inquiry is whether "the elements of the underlying felony [are] independent of the homicide." 783 So.2d at 930. In the case of "assault on [a] homicide victim," Barnett held that the answer to that inquiry was no. Here, Contreras argues that "[o]ther than the age of the victim, there is no difference in causing death by means of blunt force trauma to distinguish aggravated child abuse from felonious assault of an adult." In essence, Contreras argues that the elements of aggravated child abuse are not independent of the homicide. See Barnett, 783 So.2d 927. We disagree.

In Barnett, this Court determined that first-degree assault, see § 13A-6-20, Ala.Code 1975, differed from the charged offense only in the respect that it involved a less serious injury. In other words, if the merger doctrine had not applied in Barnett, the State would have been able to prove murder simply by showing that the defendant had the intent to cause a serious physical injury. It was this kind of "bootstrapping" that this Court in Barnett wanted to avoid. See Barnett, 783 So.2d 927, 929 (Ala.Crim.App.2000).

Aggravated child abuse, however, requires proof of two elements that are independent of the underlying homicide. First, as noted by Contreras, the State must prove that the victim was under the age of 18 years.

§ 26-15-3.1, Ala.Code 1975. Second, the State must prove that the accused was a "responsible person" in relation to the child-i.e., a "natural parent, stepparent, adoptive parent, legal guardian, custodian, or any other person who has the permanent or temporary care or custody or responsibility for the supervision of [the] child." § 26-15-2, Ala.Code 1975.

The second independent element listed above-proving that the accused was a "responsible person"-distinguishes this case further from a case involving assault as described in Barnett. Our caselaw has recognized the integral nature of the "responsible-person" element of child abuse and aggravated child abuse. Because of the unique relationship to the child victim, a responsible person is prohibited from both acts of commission and omission. See, e.g., Woods v. State, 724 So.2d 40 (Ala.Crim.App.1997) (recognizing that the "willful maltreatment" element of child abuse in § 26-15-3 prohibits a "responsible person" from willfully refusing to obtain medical care for an injured child the person is responsible for); see also Graham v. State, 210 So.3d 1148 (Ala.Crim.App.2016). Thus, the aggravated-child-abuse statute-in addition to prohibiting Contreras from causing serious physical injury to Ava-prohibited him from failing to disclose that Ava was seriously injured.

Under the facts of this case, the elements of aggravated child abuse are sufficiently independent from the homicide, and the merger doctrine announced in Barnett does not apply. Accordingly, the circuit court did not err by instructing the jury on felony murder based on aggravated child abuse as a lesser-included offense of capital murder.

The judgment of the circuit court is affirmed.

AFFIRMED.

WINDOM, P.J., and BURKE, J., concur.

WELCH, J., dissents, with opinion, which KELLUM, J., joins.

The majority affirms Ramiro Delreal Contreras's conviction for felony murder predicated on the underlying felony of aggravated child abuse. I dissent.

Contreras acknowledged that he kicked his girlfriend's four-year-old daughter, and autopsy results indicated that the child died following complications from the abdominal injuries she sustained as a result of the kick. The State requested that the trial court instruct the jury on felony murder with aggravated child abuse as the underlying felony. Over Contreras's strenuous objections, the trial court so instructed the jury. Contreras argues on appeal, as he did at trial, that a conviction for felony murder violated the merger doctrine because, he says, the aggravated child abuse merged with the homicide and could not serve as a predicate felony and that, therefore, a felony-murder instruction was not warranted.

Section 13A-6-2(a)(3), Ala.Code 1975, defines "felony murder," as follows:

"[A] person commits the crime of felony murder if he or she ...
"... commits or attempts to commit arson in the first degree, burglary in the first or second degree, escape in the first degree, kidnapping in the first degree, rape in the first degree, robbery in any degree, sodomy in the first degree, any other felony clearly dangerous to human life and, in the course of and in furtherance of the crime that he or she is committing or attempting to commit, or in immediate flight therefrom, he or she, or another participant if there be any, causes the death of any person."

As the majority correctly notes, aggravated child abuse was not specifically included as a predicate felony in the version of § 13A-6-2(a)(3) in effect at the time of Contreras's trial. However, as the majority also notes, it is well settled in Alabama law that a person can be convicted of felony murder based on an unenumerated underlying felony "provided the finder of fact determines that the underlying felony was 'clearly dangerous to human life.' " Washington v. State, 214 So.3d 1225 (Ala.Crim.App.2015), citing and relying on Ex parte Mitchell, 936 So.2d 1094 (Ala.Crim.App.2006).

Contreras's assertion that the aggravated child abuse merged with the homicide and could not serve as a predicate felony is fully supported by our decision in Barnett v. State, 783 So.2d 927 (Ala.Crim.App.2000), in which we held "that felonious assaults that result in the victim's death merge with the homicide and therefore cannot serve as an underlying felony for purposes of the felony-murder rule." Id. at 930.

The majority quotes extensively from this Court's opinion in Barnett, including the following:

" '[U]nder the merger doctrine, the elements of the underlying felony must be independent of the homicide....
" 'To read the "clearly dangerous to human life" language in the felony-murder rule as allowing an assault on the homicide victim to be the predicate felony for felony murder would offend the statutory construction of Alabama's homicide laws....' "

257 So.3d at 350 (quoting Barnett, 783 So.2d at 930 ).

Barnett also says:

"[a]n examination of Alabama's murder and manslaughter statutes indicates to this Court that the Legislature did not intend for felonious assaults that result in the victim's death to serve as the underlying felony in a felony-murder charge."

783 So.2d at 930.

We relied on Barnett in Smith v. State, 908 So.2d 273 (Ala.Crim.App.2000), a capital case in which the appellant had been convicted of murder for pecuniary or other valuable consideration, § 13A-5-40(a)(7), Ala.Code 1975. We stated:

"Smith argues that the trial court erred in its instruction on felony murder. Smith's felony-murder charge was based on the underlying felony of assault in the first degree. Though neither party raised the issue, we note that this Court recently held that 'felonious assaults that result in the victim's death merge with the homicide and therefore cannot serve as an underlying felony for purposes of the felony-murder rule.' Barnett v. State, 783 So.2d 927, 930 (Ala.Crim.App.2000). Thus, as a matter of law Smith could not be convicted of felony murder."

Id. at 296.

The majority states that a reasonable jury could have found that the aggravated child abuse perpetrated by Contreras was a felony clearly dangerous to human life and that the trial court did not err when it charged the jury on felony murder predicated on that felony. Although I do not disagree that a reasonable jury could have found that Contreras committed aggravated child abuse, I nonetheless disagree with the majority's affirmance of the felony-murder conviction. The majority appears to attempt to distinguish this case from Barnett in order to sidestep the fundamental holding of Barnett that "felonious assaults that result in the victim's death merge with the homicide and therefore cannot serve as an underlying felony for purposes of the felony-murder rule." 783 So.2d at 930.

The majority's attempt to distinguish Barnett is based on an isolated sentence from that case. The majority states, "Thus, under Barnett, the critical inquiry is whether 'the elements of the underlying felony [are] independent of the homicide.' " 257 So.3d at 351. Relying on that isolated sentence, the majority attempts to distinguish this case from Barnett by stating that aggravated child abuse "requires proof of two elements that are independent of the underlying homicide." 257 So.3d at 351. The majority states that the two elements of aggravated child abuse that are independent of the homicide are that the victim was under the age of 18 years, § 26-15-3.1, Ala.Code 1975; and that the accused was a "responsible person" in relation to the child, § 26-15-2, Ala.Code 1975.

I disagree with the majority on several of the foregoing points. First, the legal issue before us is whether the underlying felony merges into the homicide, so there is no "underlying homicide," as the majority suggests. Second, I disagree with the majority's identification of the "critical inquiry" based on Barnett. Third, even considering the majority's argument regarding the elements of aggravated child abuse in light of the "underlying homicide," the purported distinctions do not affect the application of the merger doctrine in this case.

The sentence in Barnett regarding the elements of the underlying felony that the majority cites and relies on as the basis of its decision here is but a mention within an extensive discussion of the legal analysis that supported our holding in Barnett. The majority, itself, quotes extensively from that discussion, and I do so here to illustrate one of the reasons I disagree with the majority's analysis and holding. In Barnett, we stated:

"In People v. Ireland, 70 Cal.2d 522, 450 P.2d 580, 75 Cal.Rptr. 188 (Cal.1969), the Supreme Court of California addressed whether assault with a deadly weapon could constitute the predicate felony for a felony-murder charge. The appellant in Ireland shot and killed his wife. During the trial, the trial court instructed the jury that it could convict Ireland of felony murder if it determined that he committed the underlying felony of assault with a deadly weapon. Id. In discussing this issue, the Supreme Court of California stated:
" 'We have concluded that the utilization of the felony-murder rule in circumstances such as those before us extends the operation of that rule "beyond any rational function it is designed to serve." ( People v. Washington (1965) 62 Cal.2d 777, 783, 44 Cal.Rptr. 442, 446, 402 P.2d 130, 134.) To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault-a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law. We therefore hold that a second degree felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged.'
"....
"Conceived in the nineteenth century, the merger doctrine bars the use of the felony-murder rule when the underlying felony directly results in, or is an integral part of, the homicide. See State v. Strauch, 239 Kan. 203, 718 P.2d 613 (1986), and Note, The Merger Doctrine as a Limitation on the Felony-Murder Rule: A Balance of Criminal Law Principles, 13 Wake Forest L.Rev. 369, 377 (1977). Thus, under the merger doctrine, the elements of the underlying felony must be independent of the homicide. See [W. Lafave & A. Scott, Jr., Criminal Law § 7.5 at 622 (1986) ]. We believe that the California Supreme Court's rationale in [ People v.] Ireland [, 70 Cal.2d 522, 450 P.2d 580, 75 Cal.Rptr. 188 (Cal.1969),] is sound and that the 'merger doctrine' should be applied in felony-murder cases in which the underlying felony is the assault that results in the victim's death.
"To read the 'clearly dangerous to human life' language in the felony-murder rule as allowing an assault on the homicide victim to be the predicate felony for felony murder would offend the statutory construction of Alabama's homicide laws."

Barnett, 783 So.2d at 929-30, quoted in Contreras , 257 So.3d at 350.

Thus, contrary to the majority's assertion, the critical inquiry here is whether the aggravated child abuse-the underlying felony-directly resulted in or was an integral part of the homicide. The facts of this case clearly indicate that Contreras's acts of child abuse directly resulted in the homicide and, under Barnett, the merger doctrine applied and prohibited a conviction for felony-murder. Therefore, the trial court erred in instructing the jury on felony-murder.

Furthermore, the age of the victim and the status of the perpetrator are both relevant as elements of the crime of aggravated child abuse, but they have no impact on whether the merger doctrine applies. The majority's focus on those elements is misplaced. The elements of an underlying assault that merges into a homicide are often distinct from the elements of the homicide, as a review of the cases cited in Barnett readily reveals. For example, in People v. Ireland, supra, and in State v. Essman, 98 Ariz. 228, 403 P.2d 540 (1965), the underlying felony was assault with a deadly weapon; in Sullinger v. State, 675 P.2d 472, 473 (Okla.Crim.App.1984), an assault on a corrections officer that resulted in the officer's death was the underlying felony that merged into the homicide.

The majority's focus on whether the elements of aggravated child abuse were independent of the homicide not only misses the point of Barnett, but it also results in the kind of "bootstrapping" identified in Ireland that, the Ireland court said, "finds support neither in logic nor in law." Barnett, 783 So.2d at 929 (quoting Ireland, 70 Cal.2d at 529, 450 P.2d at 590, 75 Cal.Rptr. at 198 ). Therefore, the majority's holding, that "the elements of aggravated child abuse are sufficiently independent from the homicide, and the merger doctrine announced in Barnett does not apply," 257 So.3d at 353, and that the trial court committed no error when it instructed the jury on felony murder, is incorrect on both points.

The trial court erred when it instructed the jury on felony murder, and Contreras's conviction should be reversed.

For the foregoing reasons, I respectfully dissent.

KELLUM, J., concurs.

      On August 27, 2012, a Lee County grand jury indicted Contreras for capital murder, see § 13A-5-40(a)(15), Ala.Code 1975; Contreras was convicted of the lesser-included offense of felony murder, see § 13A-6-2(a)(3), Ala.Code 1975.

      Effective May 1, 2016, § 13A-6-2(a)(3), Ala.Code 1975, was amended to include, as an enumerated felony, "aggravated child abuse under Section 26-15-3.1."

      It now is; see supra note 2.

      As the majority also notes, § 13A-6-2(a)(3), Ala.Code 1975, was amended in 2016 to include aggravated child abuse as an enumerated felony.


author: PER CURIAM.

text:
    EX PARTE Ramiro Delreal CONTRERAS
    (In re Ramiro Delreal Contreras v. State of Alabama)
    1151278
    Supreme Court of Alabama.
    January 16, 2018
    Andrew D. Stanley of Samford & Denson, LLP, Opelika; and W. Todd Crutchfield of The Crutchfield Firm, LLC, Auburn, for petitioner.
    Luther Strange, atty. gen., and Andrew L. Brasher and James R. Houts, deputy attys. gen., for respondent.
   PER CURIAM.

The writ of certiorari is quashed.

In quashing the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals' opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT QUASHED.

Stuart, C.J., and Parker, Main, Wise, Bryan, and Sellers, JJ., concur.

Shaw, J., concurs specially.

Murdock, J., dissents.

I concur to quash the writ of certiorari issued in this case.

The facts of this case are thoroughly discussed in the Court of Criminal Appeals' opinion in Contreras v. State, 257 So.3d 337 (Ala. Crim. App. 2016), and in Justice Murdock's dissent. For the purposes of this writing, it is sufficient to note that the defendant, Ramiro Delreal Contreras, was accused of killing the four-year-old daughter of his girlfriend. Specifically, the child suffered an abdominal injury caused by blunt-force trauma that resulted in a lacerated liver and the severing of her small intestine, which ultimately resulted in her death.

Contreras was convicted under Ala. Code 1975, § 13A-6-2(a)(3), of felony murder. The version of that Code section applicable at the time of trial in this case stated:

"(a) A person commits the crime of murder if he or she does any of the following:
"....
"(3) He or she commits or attempts to commit arson in the first degree, burglary in the first or second degree, escape in the first degree, kidnapping in the first degree, rape in the first degree, robbery in any degree, sodomy in the first degree, any other felony clearly dangerous to human life and, in the course of and in furtherance of the crime that he or she is committing or attempting to commit, or in immediate flight therefrom, he or she, or another participant if there be any, causes the death of any person."

(Emphasis added.) The "other felony" underlying Contreras's conviction was predicated on the crime of aggravated child abuse set out in Ala. Code 1975, § 26-15-3.1 : "A responsible person, as defined in [ Ala. Code 1975, §] 26-15-2, commits the crime of aggravated child abuse if he or she ... violates the provisions of Section 26-15-3 which causes serious physical injury ... to the child." A responsible person is defined as "[a] child's natural parent, stepparent, adoptive parent, legal guardian, custodian, or any other person who has the permanent or temporary care or custody or responsibility for the supervision of a child." Ala. Code 1975, § 26-15-2. A person violates Ala. Code 1975, § 26-15-3, if he or she "torture[s], willfully abuse[s], cruelly beat[s], or otherwise willfully maltreat[s] any child under the age of 18 years."

On appeal before the Court of Criminal Appeals, Contreras challenged his felony-murder conviction on the basis that, under the "merger doctrine" explained in Barnett v. State, 783 So.2d 927 (Ala. Crim. App. 2000), aggravated child abuse could not serve as the underlying felony for purposes of a felony-murder conviction. Barnett explains the merger doctrine as follows:

" 'We have concluded that the utilization of the felony-murder rule in circumstances such as those before us[, a felonious assault,] extends the operation of [the felony-murder] rule "beyond any rational function it is designed to serve." ( People v. Washington (1965) 62 Cal. 2d 777, 783, 44 Cal.Rptr. 442, 446, 402 P.2d 130, 134.) To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault-a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law.' "

Barnett, 783 So.2d at 929 (quoting People v. Ireland, 70 Cal. 2d 522, 529, 450 P.2d 580, 590, 75 Cal.Rptr. 188, 198 (1969) ). The court in Barnett reasoned that, if the State could convict a defendant for murder or manslaughter merely by proving the requisite intent for assault, as opposed to the requisite intent for murder or manslaughter, then the Code sections establishing the crimes of murder and manslaughter would essentially be eliminated, a result the legislature did not intend. See 783 So.2d at 930 ("If prosecutors could prove murder by proving the intent element of assault as opposed to the requisite mens rea for murder or manslaughter, §§ 13A-6-2(a)(1) and (2), 13A-6-2(b), and 13A-6-3, Ala. Code 1975[,] would effectively be eliminated. Clearly, such a result would be contrary to legislative intent."). Further, the Barnett court expressed its belief that the legislature could not have intended such an absurd and harsh result. Id.

Although not discussed in Barnett, a holding that the language of § 13A-6-2(a)(3) created an absurd result, in my opinion, would be a prerequisite to rejecting the plain language of the statute and resorting to construing the statute in an effort to determine the legislative intent. Specifically, the "intent" of the legislature is expressed in the language of a statute. When the language is plain and unambiguous, then that language must be enforced as written to put that "intent" into effect.

" 'The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute. Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.'
" IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So.2d 344, 346 (Ala. 1992). See also Ex parte T.B., 698 So.2d 127, 130 (Ala. 1997), and Ex parte Ankrom, 152 So.3d 397, 431 (Ala. 2013) (Shaw, J., concurring in part and concurring in the result) (stating that when '[t]he language of [a] Code section is clear[,] there is nothing to construe [and] no need to attempt to divine the "intent" of the legislature')....2
"_____________
"2 The purpose of the plain-meaning rule-to give effect to the legislature's words when determining its intent-is rooted in the doctrine of separation of powers: 'To apply a different policy would turn this Court into a legislative body, and doing that, of course, would be utterly inconsistent with the doctrine of separation of powers.' DeKalb Cty. LP Gas Co., Inc. v. Suburban Gas, Inc., 729 So.2d 270, 276 (Ala. 1998)."

Ex parte N.B., 222 So.3d 1160, 1160-61 (Ala. 2016) (Shaw, J., concurring specially). Additionally, we can depart from the literal meaning of a statute when applying the literal meaning would "produce an absurd and unjust result." City of Bessemer v. McClain, 957 So.2d 1061, 1075 (Ala. 2006). A rule of statutory construction-in this case, the merger doctrine -cannot be used to deviate from the plain language of a statute unless that language is ambiguous or would create an absurd result. Only then could a court resort to statutory construction-in this case, application of the merger doctrine.

This Court has never applied the merger doctrine to a case in which aggravated child abuse serves as the underlying offense for felony murder. As noted above, felony murder exists where one "commits or attempts to commit ... any ... felony clearly dangerous to human life and ... causes the death of any person." § 13A-6-2(a)(3). The aggravated child abuse in this case was certainly a "felony clearly dangerous to human life," and it resulted in the child's death. Under the plain language of § 13A-6-2(a)(3), Contreras's crime constituted felony murder. We must hold that this result is absurd or unjust in order to apply the merger doctrine and deviate from the plain language of the felony-murder statute. I do not believe that the result in this case is either absurd or unjust.

As noted above in Barnett, applying the merger doctrine to allow a conviction for felony murder when the underlying felony is an assault would largely eviscerate the crime of murder: every murder could be prosecuted as a felony murder that occurred during an assault because virtually every murder includes an attempt to cause serious physical injury (a felonious assault). But that is not the case here: Allowing a conviction for felony murder when the underlying felony is aggravated child abuse would have a very limited impact. Only the killings of certain people-children-by certain people-"responsible persons"-would be impacted. The mens rea element of murder would not be eliminated in virtually all killings. The legislature is free to eliminate the mens rea for particular killings; in other felony-murder cases, the jury does not consider the mens rea element of murder. Further, to say that it is absurd or illogical to eliminate consideration of the murder mens rea when a child dies as a result of aggravated child abuse flies in the face of the current statute that now explicitly lists that crime as an applicable underlying felony. Specifically, in 2016, the legislature amended the felony-murder statute to specify that aggravated child abuse is an underlying felony for felony-murder purposes. There can be no doubt that the legislature has eliminated consideration of the mens rea necessary for a conviction of murder in these situations. Thus, the merger doctrine now has no rational application in such cases. See, e.g., State v. Sturdivant, 94 So.3d 434, 440 (Fla. 2012) (holding that when the legislature has explicitly stated that a particular felony is a predicate felony for felony murder, the merger doctrine does not apply).

Because the applicable version of § 13A-6-2(a)(3) was not ambiguous and its application in this case not absurd, I do not believe that the separation-of-powers doctrine allows it to be construed through application of the merger doctrine. Therefore, although I do not necessarily agree with the rationale of the Court of Criminal Appeals, I agree with its decision to affirm Contreras's conviction, and I concur to quash the writ of certiorari.

For the reasons set forth below, I respectfully dissent from this Court's decision to quash the writ in this case.

Ramiro Delreal Contreras was tried for capital murder and was convicted of the lesser-included offense of felony murder, see Ala. Code 1975, § 13A-6-2(a)(3). The felony-murder conviction was predicated on the offense of aggravated child abuse, see Ala. Code 1975, § 26-15-3.1.

The Court of Criminal Appeals affirmed Contreras's conviction and sentence. Contreras v. State, [Ms. CR-14-0980, July 8, 2016] --- So.3d ---- (Ala. Crim. App. 2016). This Court granted certiorari review as to a question of first impression: Whether the "merger doctrine," as recognized in Barnett v. State, 783 So.2d 927 (Ala. Crim. App. 2000), applies to preclude a conviction for felony murder that is predicated on the underlying offense of aggravated child abuse. Today, this Court quashes the writ. I dissent from the decision to quash the writ.

On appeal to the Court of Criminal Appeals, Contreras contended that the trial court had erred in instructing the jury on the lesser-included offense of felony murder based on the predicate felony of aggravated child abuse. Contreras argued that, under Barnett, the offense of aggravated child abuse merged with the homicide and thus could not serve as the predicate felony for a felony-murder conviction.

The Court of Criminal Appeals, in an opinion authored by Judge Joiner, affirmed the trial court's judgment. 257 So.3d at 342. Presiding Judge Windom and Judge Burke concurred. Judge Welch dissented, with an opinion, which Judge Kellum joined.

In his well reasoned dissenting opinion, Judge Welch stated:

"The majority affirms Ramiro Delreal Contreras's conviction for felony murder predicated on the underlying felony of aggravated child abuse. I dissent.
"Contreras acknowledged that he kicked his girlfriend's four-year-old daughter, and autopsy results indicated that the child died following complications from the abdominal injuries she sustained as a result of the kick. The State requested that the trial court instruct the jury on felony murder with aggravated child abuse as the underlying felony. Over Contreras's strenuous objections, the trial court so instructed the jury. Contreras argues on appeal, as he did at trial, that a conviction for felony murder violated the merger doctrine because, he says, the aggravated child abuse merged with the homicide and could not serve as a predicate felony and that, therefore, a felony-murder instruction was not warranted.
"....
"As the majority correctly notes, aggravated child abuse was not specifically included as a predicate felony in the version of § 13A-6-2(a)(3) in effect at the time of Contreras's trial. However, as the majority also notes, it is well settled in Alabama law that a person can be convicted of felony murder based on an unenumerated underlying felony 'provided the finder of fact determines that the underlying felony was "clearly dangerous to human life." ' Washington v. State, 214 So.3d 1225, 1229 (Ala. Crim. App. 2015), citing and relying on Ex parte Mitchell, 936 So.2d 1094 (Ala. Crim. App. 2006).
"Contreras's assertion that the aggravated child abuse merged with the homicide and could not serve as a predicate felony is fully supported by our decision in Barnett v. State, 783 So.2d 927 (Ala. Crim. App. 2000), in which we held 'that felonious assaults that result in the victim's death merge with the homicide and therefore cannot serve as an underlying felony for purposes of the felony-murder rule.' Id. at 930.
"The majority quotes extensively from this Court's opinion in Barnett, including the following:
" ' "[U]nder the merger doctrine, the elements of the underlying felony must be independent of the homicide....
" ' "To read the 'clearly dangerous to human life' language in the felony-murder rule as allowing an assault on the homicide victim to be the predicate felony for felony murder would offend the statutory construction of Alabama's homicide laws...." '
" 257 So.3d at 341 (quoting Barnett, 783 So.2d at 930 ).
" Barnett also says:
" '[a]n examination of Alabama's murder and manslaughter statutes indicates to this Court that the Legislature did not intend for felonious assaults that result in the victim's death to serve as the underlying felony in a felony-murder charge.'
" 783 So.2d at 930.
"We relied on Barnett in Smith v. State, 908 So.2d 273 (Ala. Crim. App. 2000), a capital case in which the appellant had been convicted of murder for pecuniary or other valuable consideration, § 13A-5-40(a)(7), Ala. Code 1975. We stated:
" 'Smith argues that the trial court erred in its instruction on felony murder. Smith's felony-murder charge was based on the underlying felony of assault in the first degree. Though neither party raised the issue, we note that this Court recently held that "felonious assaults that result in the victim's death merge with the homicide and therefore cannot serve as an underlying felony for purposes of the felony-murder rule." Barnett v. State, 783 So.2d 927, 930 (Ala. Crim. App. 2000). Thus, as a matter of law Smith could not be convicted of felony murder.'
" Id. at 296.
"The majority states that a reasonable jury could have found that the aggravated child abuse perpetrated by Contreras was a felony clearly dangerous to human life and that the trial court did not err when it charged the jury on felony murder predicated on that felony. Although I do not disagree that a reasonable jury could have found that Contreras committed aggravated child abuse, I nonetheless disagree with the majority's affirmance of the felony-murder conviction. The majority appears to attempt to distinguish this case from Barnett in order to sidestep the fundamental holding of Barnett that 'felonious assaults that result in the victim's death merge with the homicide and therefore cannot serve as an underlying felony for purposes of the felony-murder rule.' 783 So.2d at 930.
"The majority's attempt to distinguish Barnett is based on an isolated sentence from that case. The majority states, 'Thus, under Barnett , the critical inquiry is whether "the elements of the underlying felony [are] independent of the homicide." ' 257 So.3d at 341. Relying on that isolated sentence, the majority attempts to distinguish this case from Barnett by stating that aggravated child abuse 'requires proof of two elements that are independent of the underlying homicide.' 257 So.3d at 341. The majority states that the two elements of aggravated child abuse that are independent of the homicide are that the victim was under the age of 18 years, § 26-15-3.1, Ala. Code 1975; and that the accused was a 'responsible person' in relation to the child, § 26-15-2, Ala. Code 1975.
"I disagree with the majority on several of the foregoing points. First, the legal issue before us is whether the underlying felony merges into the homicide, so there is no 'underlying homicide,' as the majority suggests. Second, I disagree with the majority's identification of the 'critical inquiry' based on Barnett. Third, even considering the majority's argument regarding the elements of aggravated child abuse in light of the 'underlying homicide,' the purported distinctions do not affect the application of the merger doctrine in this case.
"The sentence in Barnett regarding the elements of the underlying felony that the majority cites and relies on as the basis of its decision here is but a mention within an extensive discussion of the legal analysis that supported our holding in Barnett. The majority, itself, quotes extensively from that discussion, and I do so here to illustrate one of the reasons I disagree with the majority's analysis and holding. In Barnett, we stated:
" 'In People v. Ireland, 70 Cal. 2d 522, 450 P.2d 580, 75 Cal.Rptr. 188 (Cal. 1969), the Supreme Court of California addressed whether assault with a deadly weapon could constitute the predicate felony for a felony-murder charge. The appellant in Ireland shot and killed his wife. During the trial, the trial court instructed the jury that it could convict Ireland of felony murder if it determined that he committed the underlying felony of assault with a deadly weapon. Id. In discussing this issue, the Supreme Court of California stated:
" ' "We have concluded that the utilization of the felony-murder rule in circumstances such as those before us extends the operation of that rule 'beyond any rational function it is designed to serve.' ( People v. Washington (1965) 62 Cal. 2d 777, 783, 44 Cal.Rptr. 442, 446, 402 P.2d 130, 134.) To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault-a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law. We therefore hold that a second degree felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged."
" '....
" 'Conceived in the nineteenth century, the merger doctrine bars the use of the felony-murder rule when the underlying felony directly results in, or is an integral part of, the homicide. See State v. Strauch, 239 Kan. 203, 718 P.2d 613 (1986), and Note, The Merger Doctrine as a Limitation on the Felony-Murder Rule: A Balance of Criminal Law Principles, 13 Wake Forest L. Rev. 369, 377 (1977). Thus, under the merger doctrine, the elements of the underlying felony must be independent of the homicide. See [W. Lafave & A. Scott, Jr., Criminal Law § 7.5 at 622 (1986) ]. We believe that the California Supreme Court's rationale in [ People v.] Ireland [, 70 Cal. 2d 522, 450 P.2d 580, 75 Cal.Rptr. 188 (Cal. 1969),] is sound and that the "merger doctrine" should be applied in felony-murder cases in which the underlying felony is the assault that results in the victim's death.
" 'To read the "clearly dangerous to human life" language in the felony-murder rule as allowing an assault on the homicide victim to be the predicate felony for felony murder would offend the statutory construction of Alabama's homicide laws.'
" Barnett, 783 So.2d at 929-30, quoted in Contreras, 257 So.3d at 343."

257 So.3d at 345 (Welch, J., dissenting) (footnote omitted; emphasis added).

The portion of the Barnett opinion quoted by Judge Welch above continues as follows:

"The Legislature has defined those acts that constitute murder as well as those acts that constitute manslaughter. See §§ 13A-6-2 and 13A-6-3, Ala. Code 1975. If prosecutors could prove murder by proving the intent element of assault as opposed to the requisite mens rea for murder or manslaughter, §§ 13A-6-2(a)(1) and (2), 13A-6-2(b), and 13A-6-3, Ala. Code 1975[,] would effectively be eliminated."

783 So.2d at 930.

Judge Welch continued his dissent in Contreras as follows:

"Thus, contrary to the majority's assertion, the critical inquiry here is whether the aggravated child abuse-the underlying felony-directly resulted in or was an integral part of the homicide. The facts of this case clearly indicate that Contreras's acts of child abuse directly resulted in the homicide and, under Barnett, the merger doctrine applied and prohibited a conviction for felony-murder. Therefore, the trial court erred in instructing the jury on felony-murder.
"Furthermore, the age of the victim and the status of the perpetrator are both relevant as elements of the crime of aggravated child abuse, but they have no impact on whether the merger doctrine applies. The majority's focus on those elements is misplaced. The elements of an underlying assault that merges into a homicide are often distinct from the elements of the homicide, as a review of the cases cited in Barnett readily reveals. For example, in People v. Ireland, [ 70 Cal. 2d 522, 450 P.2d 580, 75 Cal.Rptr. 188 (1969) ], and in State v. Essman, 98 Ariz. 228, 403 P.2d 540 (1965), the underlying felony was assault with a deadly weapon; in Sullinger v. State, 675 P.2d 472, 473 (Okla. Crim. App. 1984), an assault on a corrections officer that resulted in the officer's death was the underlying felony that merged into the homicide.
"The majority's focus on whether the elements of aggravated child abuse were independent of the homicide not only misses the point of Barnett, but it also results in the kind of 'bootstrapping' identified in Ireland that, the Ireland court said, 'finds support neither in logic nor in law.' Barnett, 783 So.2d at 929 (quoting Ireland, 70 Cal. 2d at 529, 450 P.2d at 590, 75 Cal.Rptr. at 198 ). Therefore, the majority's holding, that 'the elements of aggravated child abuse are sufficiently independent from the homicide, and the merger doctrine announced in Barnett does not apply,' 257 So.3d at 341-42, and that the trial court committed no error when it instructed the jury on felony murder, is incorrect on both points.
"The trial court erred when it instructed the jury on felony murder, and Contreras's conviction should be reversed."

257 So.3d at 345 (Welch, J., dissenting) (emphasis added).

Contreras argues that the "merger doctrine," as recognized in Barnett v. State, 783 So.2d 927 (Ala. Crim. App. 2000), applies to preclude a conviction for felony murder that is predicated on the underlying offense of aggravated child abuse. Much of Contreras's argument tracks Judge Welch's dissent.

I agree with the two dissenters below on two key points: (1) "[T]he purported distinctions [drawn by the majority as between aggravated child abuse and felonious assault] do not affect [are not germane to] the application of the merger doctrine in this case." 257 So.3d at 344 (emphasis added); and (2) "[T]he critical inquiry here is whether the aggravated child abuse-the underlying felony-directly resulted in or was an integral part of the homicide." 257 So.3d at 345 (emphasis added).

It is the latter statement that is the test-not the idea formulated by the Court of Criminal Appeals that when the underlying offense has elements that are sufficiently (and that court gave no indication as to what that means) "independent" of the elements of the murder, the merger doctrine will not apply. The two additional elements of aggravated child abuse-the age of the victim and the defendant's status as responsible person-are irrelevant to the application of the merger doctrine. As Judge Welch's dissent points out, there is a difference (as compared to murder) in the elements of all underlying felonies in felony-murder cases. See e.g., State v. Essman, 98 Ariz. 228, 403 P.2d 540 (1965) (assault with a deadly weapon), and Oklahoma, Sullinger v. State, 675 P.2d 472, 473 (Okla. Crim. App. 1984) (assault on a corrections officer), noted in Judge Welch's dissent.

The rule expressed in Barnett is simpler and more straightforward than the rule formulated by the Court of Criminal Appeals in this case with its subjective measurement of the degree of independence of some of the elements of the underlying offense and the elements of murder. Again, Barnett quite simply holds that the merger doctrine applies to bar a conviction for felony murder (but not for murder itself, of course) "when the underlying felony directly results in, or is an integral part of, the homicide." Barnett, 783 So.2d at 930. This test, as expressed in Barnett, clearly is applicable here and should not be overridden by an isolated statement implying that subjectively measured differences in some elements of the underlying offense and the elements of the crime of murder might disqualify an underlying offense for treatment under the merger doctrine. As the authorities quoted by Judge Welch point out, this is not a logical or jurisprudentially sound distinction where the acts that give rise to the underlying offense are the very same acts that also caused the death of the victim. In that situation, i.e., where certain acts are themselves the cause of a victim's death, the legislature has defined different crimes that might be applicable to that death depending on the actor's mens rea, e.g., murder, on the one hand, and a lesser crime, e.g., manslaughter, on the other hand. If those acts are to be the basis for a conviction relating to the victim's death, it is for a fact-finder to assess the evidence as to the mens rea associated with the acts in question and to determine whether those acts were accompanied by the mens rea necessary for a murder conviction or only by that mens rea sufficient for a manslaughter conviction.

Aggravated child abuse is a specially defined category of assault. Admittedly, the legislature intended to punish this type of assault more severely than "ordinary" assault. I see no indication, however, that before the 2016 amendment to § 13A-6-2(a)(3), see note 3, supra, the legislature intended to alter the long-standing construction of Alabama's homicide statutes and the application of the well established merger doctrine. Although the legislature chose to make aggravated child abuse a special brand of assault that is to be punished more severely than other assaults, it did nothing to change the relationship of this assault crime to the crime of murder. It remains the case that the underlying felony in this case "directly results in, or is an integral part of, the homicide" and that "the elements of the underlying felony [are not] independent of the homicide." Barnett, 783 So.2d at 930.

I respectfully dissent.

      As discussed below, the Code section has been amended.

      See State v. Godsey, 60 S.W.3d 759, 774 (Tenn. 2001) ("Courts have generally declined to hold that the merger doctrine implicates any principle of constitutional law. Instead, courts have viewed the merger doctrine as a principle for discerning legislative intent ...." (citations omitted)).

      Section 13A-6-2(a)(3) provides that a person commits the crime of felony murder when "[h]e or she commits or attempts to commit [certain enumerated crimes] or any other felony clearly dangerous to human life and, in the course of and in furtherance of the crime ..., he or she, or another participant if there be any, causes the death of any person." (Emphasis added.) At the time of the offense, aggravated child abuse was not an enumerated predicate felony, and Contreras was convicted based on his offense being an "other felony clearly dangerous to human life." Effective May 1, 2016, § 13A-6-2(a)(3) was amended to include, as an enumerated predicate felony, "aggravated child abuse under Section 26-15-3.1."

      The well established merger doctrine likewise is simpler and more straightforward than the "absurdity" rule urged by Justice Shaw in his special concurrence.


text:
    Fred ANDERSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. SC18-175
    Supreme Court of Florida.
    October 4, 2018
    James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, Maria E. DeLiberato, Julissa R. Fontán, Chelsea Shirley, and Kara Ottervanger, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Patrick Bobek, Assistant Attorney General, Daytona Beach, Florida, for Appellee
   PER CURIAM.

Fred Anderson, Jr., a prisoner under sentence of death, appeals the circuit court's order denying his successive motion for postconviction relief, which was filed under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

In 1999, a jury convicted Anderson of first-degree murder, attempted first-degree murder, robbery with a firearm, and grand theft of a firearm. After hearing evidence during the penalty phase, the jury unanimously recommended a sentence of death for the first-degree murder by a vote of twelve to zero. We affirmed Anderson's convictions and sentence of death on direct appeal. Anderson v. State , 863 So.2d 169 (Fla. 2003). We also affirmed the denial of his initial motion for postconviction relief and denied his petition for writ of habeas corpus. Anderson v. State , 18 So.3d 501 (Fla. 2009).

In January 2017, Anderson filed a successive postconviction motion to vacate his death sentence in light of the decision of United States Supreme Court in Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and this Court's decision in Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). The postconviction court granted Anderson's request for an evidentiary hearing, which was held on July 28, 2017. The postconviction court issued an order denying relief on November 17, 2017. Anderson moved for rehearing, which the postconviction court denied on December 29, 2017, the same day on which the court entered an amended order denying relief. This appeal follows.

Anderson argues the Hurst error in his case was not harmless despite the jury's unanimous recommendation for death and that the postconviction court erred in denying his successive motion. As we have previously explained, "a jury's unanimous recommendation of death is 'precisely what we determined in Hurst to be constitutionally necessary to impose a sentence of death' because a 'jury unanimously f[inds] all of the necessary facts for the imposition of [a] death sentence[ ] by virtue of its unanimous recommendation[ ].' " Everett v. State , 43 Fla. L. Weekly S250, S250, --- So.3d ----, ----, 2018 WL 2355339 (Fla. May 24, 2018) (quoting Davis v. State , 207 So.3d 142 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2218, 198 L.Ed.2d 663 (2017) ). This Court has "consistently relied on Davis to deny Hurst relief to defendants who have received a unanimous jury recommendation of death." Everett , 43 Fla. L. Weekly at S250, --- So.3d at ----.

As previously discussed, Anderson received a unanimous jury recommendation of death. Neither the jury instructions provided in this case, nor the aggravators and mitigators found by the trial court, nor the facts of the case compel departing from our precedent. We conclude any Hurst error in this case was harmless beyond a reasonable doubt, and Anderson is therefore not entitled to relief.

Anderson also contends that a unanimous jury recommendation violates the Eighth Amendment pursuant to Caldwell v. Mississippi , 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), when a jury is told that its role is advisory. However, we have "repeatedly rejected Caldwell challenges to the advisory standard jury instructions ... [and] expressly rejected these post-Hurst Caldwell claims." Hall v. State , 246 So.3d 210 (Fla. 2018) (plurality opinion); see also Reynolds v. State , 43 Fla. L. Weekly S163, S169, 251 So.3d 811, ----, 2018 WL 1633075 (Fla. Apr. 5, 2018) (plurality opinion) (" Hurst -induced Caldwell claims against the standard jury instruction do not provide an avenue for Hurst relief."). Therefore, Anderson is not entitled to relief on this claim either.

Accordingly, because we conclude any Hurst error in this case was harmless beyond a reasonable doubt, and the remaining claims are similarly without merit, we affirm the postconviction court's order denying Anderson's successive motion for postconviction relief.

It is so ordered.

PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.

CANADY, C.J., concurs in result.

      We likewise reject Anderson's argument that he is entitled to a new proportionality analysis with respect to his death sentence.


text:
    Eriese Alphonso TISDALE, Appellant, v. STATE of Florida, Appellee.
    No. SC16-1032
    Supreme Court of Florida.
    November 8, 2018
    Jeffrey H. Garland of Jeffrey H. Garland, P.A., Fort Pierce, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Lisa-Marie Lerner and Donna M. Perry, Assistant Attorneys General, West Palm Beach, Florida, for Appellee
   PER CURIAM.

Eriese Alphonso Tisdale was convicted of one count of first-degree murder of a law enforcement officer, one count of aggravated assault on a law enforcement officer with a firearm, one count of possession of a firearm by a convicted felon, and one count of eluding or fleeing a police officer with lights and siren. After the penalty phase, the jury recommended a sentence of death by a vote of nine to three on the murder charge and the trial court imposed a death sentence, with lesser sentences on the other charges. This is Tisdale's direct appeal, and we have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Tisdale raises no issues relating to his guilt phase trial and we find the evidence sufficient to support the murder charge. Accordingly, we affirm all convictions. Tisdale's only sentencing issues relate to the sentence of death, and we affirm without discussion the sentences on all lesser convictions. However, we vacate his death sentence because we cannot conclude that the Hurst error in his case was harmless beyond a reasonable doubt. Accordingly, we remand his case to the trial court for a new penalty phase pursuant to Hurst .

FACTS

On the morning of February 28, 2013, Sergeant Gary Morales of the St. Lucie County Sheriff's Office conducted a traffic stop on a vehicle being driven by Tisdale, a convicted felon. Tisdale, the sole occupant of his vehicle, attempted to flee as Sergeant Morales radioed for backup and pursued Tisdale. Tisdale stopped in a residential neighborhood, catching the attention of multiple residents. Sergeant Morales drove slightly past Tisdale and then came to a sudden stop as well. As Sergeant Morales backed up his patrol car and opened his driver's side door, Tisdale rapidly exited his vehicle with a drawn handgun, rushed Sergeant Morales before Morales could leave the seat of his patrol car or access his own firearm, and fired a burst of shots into the vehicle, hitting Sergeant Morales three times and killing him. Three eye-witnesses-one police officer and two civilians-witnessed Tisdale fire the fatal shots. Tisdale then ran back toward his vehicle while aiming his gun at another police officer who had responded to Sergeant Morales' call for backup, jumped back into his vehicle, and continued his flight. Several officers pursued Tisdale with their lights and sirens activated.

Eventually, one of the pursuing deputies rammed Tisdale's vehicle, causing it to "spin out" and ending the chase. Tisdale was arrested without further incident at the scene of the collision. Police seized Tisdale's handgun, used in the shooting, from the vehicle at the time of his arrest. A forensic biologist testified at trial that the DNA found on Tisdale's gun matched DNA samples obtained from Tisdale. The firearms examiner testified that the seven shell casings recovered from the area where Tisdale exited his vehicle and ran toward Sergeant Morales's car had been fired from Tisdale's gun. Forensic experts also linked bullets recovered from Sergeant Morales's body and vehicle to Tisdale's gun.

RELEVANT PROCEDURAL HISTORY

Tisdale's jury returned its guilty verdicts on October 1, 2015. After hearing evidence bearing on an appropriate sentence, the jury returned its penalty phase verdict on October 9, 2015, with nine of the twelve jurors recommending death. At the time, section 921.141(3), Florida Statutes (2015), authorized a trial judge to impose a death sentence following a death recommendation by at least seven jurors. The judge released the jurors from further service immediately after receiving the penalty phase recommendation.

The court held a Spencer hearing on November 17, 2015, and then set a final sentencing for January 15, 2016.

On January 12, 2016, three days before the scheduled sentencing, the United States Supreme Court issued its decision in Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 624, 193 L.Ed.2d 504 (2016), declaring "Florida's sentencing scheme" unconstitutional. The trial court postponed sentencing and eventually reset the sentencing hearing for May 9, 2016. Prior to sentencing, the Florida Legislature enacted chapter 2016-13, Laws of Florida, which became effective on March 7, 2016. The new law authorized imposition of the death penalty, but only if at least ten jurors recommended a death sentence. See § 921.141(2) - (3), Fla. Stat. (2016).

Over Tisdale's objection that death was no longer a valid legal sentence without at least ten jurors voting to recommend the death penalty, the trial court imposed a death sentence under section 921.141(3) as to the murder charge, finding the nonunanimous death recommendation to be harmless beyond a reasonable doubt in light of the jury's unanimous verdict on charges that would factually establish two aggravating factors: (1) the victim of the capital felony was a law enforcement officer engaged in lawful performance of his duties; and (2) a prior violent felony conviction (based on the contemporaneous conviction of aggravated assault on a law enforcement officer with a firearm). The trial court relied only on the two aggravating factors found by the jury as part of its verdict, assigning great weight to both. The portion of chapter 2016-13 authorizing imposition of a death sentence based upon a recommendation of ten jurors would later be declared unconstitutional in Perry v. State , 210 So.3d 630, 640 (Fla. 2016) (applying Hurst , which held that a death sentence could not be legally imposed absent a unanimous death recommendation by the penalty phase jury).

ANALYSIS

Tisdale raises three issues on appeal: (1) whether chapter 2016-13 entitles him to a life sentence without the possibility of parole; (2) whether he is entitled to automatic commutation of his death sentence to a life sentence without the possibility of parole pursuant to section 775.082(2), Florida Statutes (2012) ; and (3) whether he is entitled to a new penalty phase pursuant to Hurst . Having found the evidence sufficient to support Tisdale's first-degree murder conviction, we address Tisdale's claims that he is entitled to relief pursuant to Hurst , as well as his alternative claims that we should remand for a life sentence.

Chapter 2016-13

Tisdale first argues that chapter 2016-13 should apply to his case and entitles him to a life sentence without the possibility of parole based upon double jeopardy principles. We reject this argument. Tisdale's jury was sworn and rendered its recommendation before the passage of chapter 2016-13. Because the recommendation supported imposition of the death penalty at the time the jury was sworn and jeopardy attached, double jeopardy principles do not bar a new penalty phase trial. Cf. Victorino v. State , 241 So.3d 48, 50 (Fla. 2018) (determining that a defendant sentenced to death following nonunanimous jury recommendations "has not been acquitted of the death penalty" when the law at the time of trial would have permitted a death sentence, such that retrial is not barred by double jeopardy); see also, Hurst v. State , No. SC17-302, 2017 WL 1023762, at *1 (Fla. Mar. 16, 2017) (summarily rejecting as "without merit" claims based on double jeopardy grounds that the State is precluded from seeking the death penalty in Hurst resentencing proceedings); Poland v. Arizona , 476 U.S. 147, 154-57, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986) (holding that reimposing the death penalty on petitioners did not violate the Double Jeopardy Clause because neither the sentence nor the reviewing court held that the prosecution had not proved its case that the death penalty was not appropriate).

Moreover, we have invalidated the provision of chapter 2016-13 on which Tisdale attempts to rely for this argument. See Perry , 210 So.3d at 640 ; Evans v. State , 213 So.3d 856, 859 (Fla. 2017) (holding that chapter 2016-13-but not the portion authorizing a 10-2 vote requirement for the jury's final recommendation-can be validly applied to pending prosecutions).

Section 775.082(2), Florida Statutes

Next, Tisdale argues that he is entitled to automatic commutation of his death sentence to a life sentence without the possibility of parole pursuant to section 775.082(2), Florida Statutes (2012). We have consistently rejected this argument in other similar cases, see, e.g. , Caylor v. State , 218 So.3d 416, 425 (Fla. 2017) (denying defendant's claim that section 775.082(2) mandates commutation to a life sentence and remanding for a new penalty phase pursuant to Hurst ), and reject Tisdale's argument for the reasons explained in Caylor . Id.

Hurst

Finally, Tisdale argues that our Hurst -related precedent requires reversal of his death sentence. We agree, vacate Tisdale's death sentence, and remand for a new penalty phase pursuant to Hurst .

In Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 619, 193 L.Ed.2d 504 (2016), the Supreme Court held that Florida's capital sentencing scheme was unconstitutional, because "[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury's mere recommendation is not enough." On remand, we held that Hurst error occurs when the jury does not unanimously find the existence of any aggravating factor, that the aggravating factors are sufficient to impose death, and that the aggravation outweighs the mitigation. Hurst , 202 So.3d at 54. We further held that the jury recommendation for death must be unanimous before the court may impose a death sentence. Id. We also determined that Hurst error is capable of harmless error review. See id. at 67.

"New rules of law set down by this Court, or by the United States Supreme Court, apply to cases on direct review or those not otherwise finalized."See Deviney v. State , 213 So.3d 794, 799 (Fla. 2017). Tisdale's case is on direct appeal, and thus his appeal is subject to Hurst , see id. , which requires reversal of the death sentence based upon the nonunanimous recommendation. Cf. Kopsho v. State , 209 So.3d 568, 570 (Fla. 2017) (concluding that Kopsho's death sentence violated Hurst "[b]ecause Kopsho was condemned by a vote of ten to two"). And, we have consistently held that Hurst error is not harmless in cases where the jury's recommendation is not unanimous. See, e.g. , Hojan v. State , 212 So.3d 982, 1000 (Fla. 2017) (determining that Hurst error was not harmless because the jury did not return a unanimous recommendation for death).

Accordingly, we vacate Tisdale's sentence of death and remand for a new penalty phase pursuant to Hurst.

CONCLUSION

For the foregoing reasons, we affirm Tisdale's convictions, affirm the sentences on all lesser charges, vacate the death sentence imposed on the charge of first-degree murder of a law enforcement officer, and remand this case for a new penalty phase pursuant to Hurst .

It is so ordered.

PARIENTE, LEWIS, QUINCE, and LABARGA, JJ., concur.

PARIENTE, J., concurs with an opinion.

LAWSON, J., concurs specially with an opinion.

CANADY, C.J., and POLSTON, J., concur as to the convictions and the noncapital sentences and dissent as to the death sentence.

I concur with the per curiam opinion reversing Tisdale's death sentence and remanding for a new penalty phase pursuant to Hurst based on the jury's nonunanimous recommendation for death by a vote of nine to three. I also agree that Tisdale is not entitled to have his sentence reduced to life despite the unusual timing of the jury's recommendation for death and the trial court's sentencing in this case.

I write separately to emphasize the significant mitigation in this case, in particular the substantial early childhood adversity Tisdale experienced, including exposure to cocaine in utero, being raised by a single parent, having a father who was incarcerated, and witnessing domestic violence at home. All of these experiences are properly classified as Adverse Childhood Experiences (ACEs). See Jackson v. State , 213 So.3d 754 (Fla. 2017) ; State v. Bright , 200 So.3d 710, 726 (Fla. 2016).

This Court has explained the ACE study, "which identifies ten factors that suggest trauma and adverse environments," stating:

The factors indicative of trauma are: (1) childhood physical abuse; (2) childhood verbal abuse; (3) childhood sexual abuse; (4) childhood physical neglect; (5) childhood emotional neglect; and (6) domestic violence in the household. The factors indicative of an adverse environment are: (7) parents who are separated or divorced; (8) growing up in a household where someone is incarcerated; (9) growing up in a household where there is someone with a serious alcohol or drug problem; and (10) growing up in a household where there is someone with serious mental illness. If a person encounters just one of those factors, then that person is considered significantly more at risk for psychological and mental problems. Furthermore, the more factors applicable, the higher the risk. For instance, an individual who has experienced five ACE factors is predicted to live twenty years less than an individual without any ACE factor.

Bright , 200 So.3d at 726 ; accord Ellerbee v. State , 232 So.3d 909, 929 (Fla. 2017). "Only one-tenth of one percent (or one in one thousand people) are exposed to more than seven ACEs.... A high exposure to ACEs ... is correlated to an increased risk of substance abuse, depression, domestic violence, and suicide, among other negative outcomes." Ellerbee , 232 So.3d at 929. An increased number of ACEs affects a child's health and brain development.

In fact, recent studies performed by our own Department of Juvenile Justice show that a large percentage of our delinquent youth have high ACE scores. Mark A. Greenwald, Fla. Dep't Juv. Just., Adverse Childhood Experiences: ACEs and Juvenile Offenders 8, 17 (Jan. 13, 2015), http://www.djj.state.fl.us/docs/research2/ace_studies_(nationally_and_in_florida)_(1-13-15).pdf?sfvrsn=2. In addition, the Department of Juvenile Justice reports that ACEs cause long-term effects, including dissociation, homelessness, and delinquency/criminal behavior. Id. at 6-7.

In this case, the record makes clear that Tisdale's childhood included many ACEs. Specifically, Tisdale experienced physical abuse, emotional abuse, emotional neglect, domestic violence in the household between his mother and her boyfriend, and grew up in a household where someone was incarcerated, all of which have been proven to adversely affect a child's development. The defense alleged in its sentencing memorandum that Tisdale suffered from all of the following: hereditary predisposition to substance abuse and dependence; generational family dysfunction and distress; prenatal cocaine exposure; raised by a single mother; ambiguous paternity; his father's absence, criminality, and imprisonment; emotional and supervisory neglect by his mother; frequent school changes (seven schools between kindergarten and 12th grade); residential instability (over six residences by age eight); sequential stepfather figures; corruptive male role models in his extended family; murder of his maternal first cousin; community racism; corruptive community; community violence; police profiling/harassment/violence; inconsistent school performance; marijuana dependence from age fifteen; and marginal young adult adjustment. Am. Sentencing Order, at 8-9.

Further, during the penalty phase, Dr. Garbarino, a professor of psychology and developmental psychologist who evaluated Tisdale, testified that Tisdale's development was negatively affected by the absence of a father figure, racism, and the use of violence in his raising. Dr. Garbarino also testified that Tisdale experienced more adversity than 98% of other youth.

It is clear that Tisdale's childhood was fraught with "trauma and adverse environments," all of which should be considered in determining the appropriate sentence in this case. Bright , 200 So.3d at 726. While this type of mitigation does not serve as an "excuse" for committing a violent act and especially the ultimate violent act-murder-it is important that judges and juries understand its significance in shaping a defendant's development and choices when evaluating mitigation.

Accordingly, I concur in the reversal for a new penalty phase.

I fully concur in that portion of the opinion affirming Tisdale's conviction and concur specially in the reversal of Tisdale's death sentence. See Okafor v. State , 225 So.3d 768, 775-76 (Fla. 2017) (Lawson, J., concurring specially).

      Although Tisdale does not contest the sufficiency of the evidence with respect to any charge, this Court has a mandatory obligation in every capital case to ensure that the evidence is sufficient to support any murder conviction. Dausch v. State , 141 So.3d 513, 517 (Fla. 2014).

      Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017).

      Spencer v. State , 615 So.2d 688 (Fla. 1993).

      The trial court found the following nonstatutory mitigating circumstances and assigned the noted weight: (1) Tisdale was twenty-five years old when he committed the murder (very little weight); (2) Tisdale had a hereditary predisposition to substance abuse and dependence (very little weight); (3) Tisdale's family history includes generational dysfunction (very little weight); (4) Tisdale was exposed to cocaine while a fetus (very little weight); (5) Tisdale was raised by a single mother (very little weight); (6) Tisdale's genetic father is unknown (very little weight); (7) Tisdale's father was absent (moderate weight); (8) Tisdale's father was incarcerated for robberies and died in prison (almost no weight); (9) Tisdale suffered physical punishment as a child by his mother's boyfriend (very little weight); (10) Tisdale's mother abused him (almost no weight); (11) Tisdale observed domestic violence in the home (little weight); (12) Tisdale frequently changed schools as a child (very little weight); (13) Tisdale experienced residential instability (slight weight); (14) Tisdale had two stepfathers (very little weight); (15) Tisdale had corruptive male role models (very little weight); (16) Tisdale's cousin was murdered (moderate weight); (17) Tisdale experienced racism growing up (almost no weight); (18) Tisdale lived in a corruptive community (very little weight); (19) Tisdale grew up in a violent community (minimal weight); (20) Tisdale experienced instances of police harassment (very little weight); (21) Tisdale had poor grades (very little weight); (22) Tisdale used marijuana regularly (very little weight); (23) Tisdale marginally adjusted as a young adult (very little weight); (24) Tisdale is a devoted, loving son (moderate weight); (25) Tisdale is a loving father (very little weight); (26) Tisdale is a giving person and is selfless (almost no weight); (27) Tisdale has a good personality (almost no weight); (28) Tisdale was a pleasant and likeable child (very little weight); (29) Tisdale graduated from high school (moderate weight); (30) Tisdale earned his associate of arts degree (moderate weight); (31) Tisdale has artistic abilities (very little weight); (32) Tisdale has a loving relationship with his family (very little weight); (33) Tisdale has matured and is remorseful (almost no weight); (34) Tisdale attended church and was spiritual (very little weight); (35) Tisdale had a good employment record (moderate weight); (36) Tisdale has good conduct in jail (very little weight); (37) Tisdale will adjust to life in prison and will most likely not be dangerous in the future (very little weight); (38) Tisdale demonstrates high potential for rehabilitation (very little weight); (39) Tisdale would contribute positively in prison (almost no weight); (40) Tisdale has no juvenile history (moderate weight); and (41) Tisdale has no violent criminal history before February 28, 2013 (moderate weight).

      Because we conclude that Tisdale is entitled to a new penalty phase pursuant to Hurst , we decline to address the proportionality of his death sentence. See Bargo v. State , 221 So.3d 562, 570 (Fla. 2017) (holding that because defendant was entitled to Hurst relief, this Court need not address the proportionality of his death sentence).

      Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017) ; see Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016).

      The jury's recommendation for death was before Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504, but the sentencing occurred after Hurst v. Florida and after the Legislature passed the first new sentencing law in light of Hurst v. Florida . See ch. 2016-13, Laws of Fla.

      See Vincent J. Felitti, et al., Relationship of Childhood Abuse and Household Dysfunction to Many of the Leading Causes of Death in Adults. The Adverse Childhood Experiences (ACE) Study , 14 Am. J. Prev. Med. 245-58 (1998). There is an "enormous body of research" on ACEs and their effect on children into their adult lives. Kathleen Wayland, The Importance of Recognizing Trauma Throughout Capital Mitigation Investigations and Presentations , 36 Hofstra L. Rev. 923, 927 (2008) ; see, e.g. , Heather C. Forkey, Children Exposed to Abuse and Neglect: The Effects of Trauma on the Body and Brain , 30 J. Am. Acad. Matrim. Law. 307, 310-15 (2018) ; Adverse Childhood Experiences (ACEs) , Ctrs. for Disease Control & Prevention, https://www.cdc.gov/violenceprevention/acestudy/(last visited Sept. 26, 2018); see also Research , ACEs Too High, https://acestoohigh.com/research/ (last visited Sept. 26, 2018) (listing studies on ACEs since Dr. Felitti's 1998 study).