LEWIS v. STATE

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Joseph Lee LEWIS v. STATE of Alabama.

CR-07-0072.

Decided: October 31, 2008

William Gregory Hughes, Mobile, for appellant. Troy King, atty. gen., and Laura I. Cuthbert, asst. atty. gen., for appellee.

The appellant, Joseph Lee Lewis, was convicted of attempting to murder Leon Dunklin, a violation of §§ 13A-6-2 and 13A-4-2, Ala.Code 1975. He was sentenced to 98 years and 1 day in the state penitentiary.

The State's evidence tended to show the following: On July 14, 2006, Officer Roderick Cotton of the Mobile Police Department was dispatched to a residence on Edwards Street in Mobile. When he arrived at the house he found Leon Dunklin in one of the bedrooms; Dunklin was kneeling by the side of a bed holding his head in his hands. Officer Cotton testified that Dunklin had a severe head wound, that he had a large hole in the left side of his head, and that it looked like a portion of his nose was also missing. Dr. Herb Phelan, a trauma surgeon at the University of South Alabama Medical Center where Dunklin was taken for treatment, testified that Dunklin's left eye was missing. He said that Dunklin would have died as a result of the gunshot wound without immediate medical care.

Carolyn Edwards testified that on July 14, 2006, Dunklin and Lewis were living at her house. She said that she was sitting on the front porch when Dunklin arrived at the house with lunch. Dunklin went to Edwards's bedroom to retrieve a soda from under her bed. Lewis was also in the house. She said that while she on the porch she heard raised voices and then a “pow,” which sounded like a gunshot.

Okenia Chambers, a home health-care worker who had been helping Edwards and who was at the house when the incident occurred, testified that Lewis left the house after she heard a “pop” and Lewis said “That m_f_ was f_ with me,” and “You're goddamn right I shot him.”

Dunklin testified that when he came to Edwards's house with lunch he went to Edwards's bedroom to retrieve a soda that she kept stored under her bed. He said that when he was in Edwards's bedroom Lewis came in and told him that his father did not like Dunklin. He said that he told Lewis that he did not have time for such stupidness and that Lewis then shot him. Dunklin testified that Lewis had been drinking when the shooting occurred.

Detective Russell Hardeman of the Mobile Police Department testified that he first interviewed Lewis outside of Edwards's house and then again at the police station. Detective Hardeman said that he advised Lewis of his Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), rights, that Lewis agreed to speak with him, that Lewis was coherent, and that Lewis appeared to understand his rights.

Lewis gave Detective Hardeman several versions of the events leading to Dunklin's shooting. Lewis first said that he and Dunklin were “tussling,” that Dunklin had a gun, that he grabbed it, and that the gun went off, hitting Dunklin. Next he said that Dunklin came out with a gun, that he grabbed it, and that the gun went off. There were also discrepancies in Lewis's statements to police concerning the location of the shooting. Lewis first said that Dunklin came into his room with a gun. Next he said that he was in the kitchen when Dunklin came into that room with a gun. Finally, Lewis said that he was in Edwards's room when Dunklin came into that room waving a gun.

Lewis argues that the circuit court erred in denying his motion to suppress the statements he made to Detective Hardeman without first conducting a suppression hearing. He cites the Alabama Supreme Court case of Ex parte Jackson, 836 So.2d 973 (Ala.2001), in support of this argument.

Approximately one month before trial Lewis moved to suppress the statements he had made to Detective Hardeman. He asserted that he was intoxicated at the time of the statements, that he lacked the capacity to appreciate his constitutional rights, and that the statements should be suppressed because they were involuntary. He also requested that a hearing be held on the motion. On the day of trial Lewis withdrew his motion to suppress.

However, the record shows that during trial Lewis renewed his motion to suppress on the same grounds argued in the written motion. The circuit court denied the motion without holding a hearing, after stating for the record that the motion was untimely.

Initially, we note that the motion to suppress was not untimely. Although the better practice is to raise a motion to suppress before trial, we have held that “a pretrial motion to suppress is not necessary, and that objection to the introduction of illegally obtained evidence may be made for the first time when illegally obtained evidence is offered at the trial.” Biggs v. State, 346 So.2d 467, 469 (Ala.Crim.App.1976).

Rule 104(c), Ala.R.Evid.,1 states:

“In criminal cases, hearings on the admissibility of confessions or evidence alleged to have been obtained unlawfully shall be conducted out of the hearing and presence of the jury. Hearings on other preliminary matters shall be conducted out of the hearing and presence of the jury when the interests of justice require.”

(Emphasis added.)

In Ex parte Jackson, 836 So.2d 973 (Ala.2001), the Alabama Supreme Court explained the rationale behind requiring a hearing on the voluntariness of a confession outside the presence of a jury.

“Jackson requested a hearing to determine the admissibility of his statement, and the trial court denied him the opportunity to present evidence. Consequently, Jackson was deprived of his chance to testify about the circumstances relating to the voluntariness of his statement. If the trial court had conducted a hearing, Jackson could have testified and presented evidence indicating that the statement was not voluntarily made, without being subjected to cross-examination on other issues. Rule 104, Ala.R. Evid. If Jackson had testified in the hearing, conflicting evidence might have been presented to rebut the state's evidence of voluntariness. Therefore, in accordance with Duncan [v. State, 278 Ala. 145, 176 So.2d 840 (1965) ], Smith [v. State, 554 So.2d 451 (Ala.1989) ], and Felder [v. State, 470 So.2d 1321 (Ala.Crim.App.1984) ], we hold that the trial court erred in determining the admissibility of Jackson's statement without conducting a hearing.”

Jackson, 836 So.2d at 975.

The Jackson court explained that the proper remedy is not to immediately order a retrial but to first remand the case to the lower court for that court to hold a hearing on the issue of the voluntariness of the defendant's confession. As the Supreme Court stated:

“Jackson argues that in light of the United States Supreme Court's holding in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), and this Court's holding in Smith [v. State, 554 So.2d 451 (Ala.1991) ], this error requires that the case be remanded for an evidentiary hearing. We agree.

“In Jackson v. Denno, the defendant's statement was admitted into evidence without a hearing, outside the presence of the jury, to determine its admissibility. The defendant testified at trial that his statement was coerced. The trial court permitted the jury to determine the voluntariness of the statement. The United States Supreme Court held that the defendant was entitled to a posttrial evidentiary hearing, rather than a new trial, to determine whether the confession was voluntary.

“In Smith, the trial court admitted the defendant's statements made at the scene of the accident, without conducting a hearing outside the presence of the jury to determine their admissibility. The Court of Criminal Appeals held that the trial court erred in not conducting a hearing outside the presence of the jury and that the defendant was entitled to a new trial. This Court, however, applying the rationale in Jackson v. Denno, ordered that the case be remanded for a evidentiary hearing to determine the admissibility of the statements.

“In accordance with Smith, we remand this case for a hearing to determine the admissibility of Jackson's statement. If, after the hearing, the trial court determines that Jackson's statement was voluntarily made and was properly admitted into evidence for the jury's consideration, a new trial is not required. See Jackson v. Denno, 378 U.S. at 393-94, 84 S.Ct. 1774, 12 L.Ed.2d 908 (stating that if the statement was properly admitted into evidence, ‘we see no constitutional necessity at that point for proceeding with a new trial, for [the defendant] has already been tried by a jury with the confession placed before it and has been found guilty’). However, if the trial court determines that Jackson's statement was not voluntary and therefore was not admissible into evidence, then there must be a new trial, at which the statement is not admitted into evidence.”

Jackson, 836 So.2d at 975-76.

For the reasons set out by the Alabama Supreme Court in Ex parte Jackson, we remand this case to the Mobile Circuit Court for that court to hold a hearing on Lewis's motion to suppress his statements to police. If the motion is granted, the circuit court is directed to set aside Lewis's conviction and sentence and to grant him a new trial. See Jackson. Due return should be filed in this Court within 60 days from the date of this opinion.2

REMANDED WITH INSTRUCTIONS.

PER CURIAM.

BASCHAB, P.J., and McMILLAN, SHAW, and WISE, JJ., concur. WELCH, J., concurs in the result.