REL:02/29/2008 Marks
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ALABAMA COURT OF CRIMINAL APPEALS
OCTOBER TERM, 2007-2008
_________________________
CR-06-0412
_________________________
Garrett Jeremy Marks
v.
State of Alabama
Appeal from Baldwin Circuit Court
(CC-05-1853)
On Application for Rehearing
PER CURIAM.
The opinion issued on August 31, 2007, is withdrawn, and
the following opinion is substituted therefor.
CR-06-0412
Garrett Jeremy Marks was indicted by a Baldwin County
grand jury for robbery in the first degree, a violation of §
13A-8-41(a)(1), Ala. Code 1975; the indictment resulted from
the theft of personal property belonging to Douglas Speese,
which was taken from Speese at gunpoint.
guilty of first-degree robbery.
A jury found Marks
The trial court sentenced
Marks, an habitual offender, to 45 years' imprisonment.
The evidence presented at trial indicated the following.
On
July
22,
Cola/Buffalo
2005,
Rock
Douglas
Bottling
nighttime stock crew.
Speese
Company
was
as
employed
a
by
member
Pepsi
of
the
Speese arrived at the last stop on his
delivery route, a Wal-Mart discount department store in Foley,
at approximately midnight, parked his van on the side of the
building, and remained in the van while he ate a meal.
While
he was eating, two young black males, who appeared to him to
be juveniles, approached and robbed him at gunpoint.
Speese
did not see Marks while the robbery was occurring.
Speese
viewed the surveillance videotape from the Wal-Mart store and
acknowledged that a Chevrolet Malibu automobile was parked in
the parking lot before he was robbed, but he could not see the
faces of anyone inside the vehicle or the faces of those who
2
CR-06-0412
got out of the vehicle.
He said that the videotape showed
that the Malibu was driven away as the two juveniles ran from
the scene.
Police officers viewed the surveillance videotape and
were able to locate at a nearby residence a Chevrolet Malibu
that they believed might have been the vehicle they had seen
on the surveillance tape.
Alana Womack, the woman who came to
the door of the residence at which the Malibu was parked, said
that she lived in the apartment with her boyfriend, Garrett
Marks, and that the Malibu belonged to her. 1
When asked if
she permitted anyone else to drive the Malibu, Womack said
that Marks sometimes drove it.
During a consensual search of
the Malibu, the police found a gun beneath the driver's seat;
the gun looked like a pistol that would fire bullets, but a
police officer testified that it was a BB gun.
The two juveniles who robbed Speese, D.J. and V.R., were
ultimately identified and interviewed by the police.
videotaped
interviews
were
played
1
for
the
jury,
and
Their
they
We note that at trial when asked to state her name Womack
gave the name Alana Womack Jemison.
For purposes of this
opinion, we will refer to her as Alana Womack.
3
CR-06-0412
testified at trial.
Both juveniles admitted their involvement
in the robbery; they testified that Marks had suggested that
they rob Speese and that Marks had given them a gun to use
during the robbery.
On appeal, Marks argues only that the trial court erred
when it denied his motions for a judgment of acquittal, made
at the close of the State's case and again at the close of all
the evidence, because, he says, the evidence was insufficient
to sustain his robbery conviction.
Specifically, he argues
that the State failed to present any evidence to corroborate
the testimony of his juvenile accomplices, D.J. and V.R.
After the State had presented its case, Marks moved for
a judgment of acquittal.
He argued:
"Your Honor, at this point I would like to make
an oral motion for judgment of acquittal on behalf
of Mr. Marks as the prosecution has acknowledged
they have the burden of proving that Mr. Speese was
robbed at gunpoint or with some other dangerous
weapon or instrument.
I believe the evidence is
clear that Mr. Marks did not approach Mr. Speese in
any way, shape, or form. And based on the evidence
that is before the Court from the witness stand, I
think it's also quite clear that Mr. Marks did not
force, coerce, or threaten either [V.R.] or [D.J.]
in any way, shape, or form to do this crime.
As
such, I believe that the prosecution has failed to
meet its burden of proof, and as a result, this case
should be dismissed at this time."
4
CR-06-0412
(R. 285.)
After
all
of
the
evidence
had
been
presented,
Marks
renewed his motion for a judgment of acquittal:
"Your Honor, ... we would renew our motion for
judgment of acquittal that based on the additional
testimony of Ms. Womack and [a second defense
witness] that I think it's clear that the State's
not met its burden of proof by a -- or establishing
beyond a reasonable doubt that the elements of
robbery first as to Garrett Marks have been met.
We'd ask that the charges be dismissed."
(R. 363.)
The State argues that Marks failed to preserve for review
his issue regarding the alleged lack of corroboration of the
accomplices' testimony because, it says, when Marks made his
motions for a judgment of acquittal, he failed to challenge
specifically
the
alleged
accomplices' testimony.
lack
of
corroboration
of
the
For the reasons stated below, we are
compelled to agree with the State.
When Alabama appellate courts have examined whether a
general
motion
for
a
judgment
of
acquittal
preserves
for
review an issue of evidentiary sufficiency based on allegedly
uncorroborated
accomplice
testimony,
have, at times, been inconsistent.
the
results
reached
For example, in Brown v.
State, 645 So. 2d 309 (Ala. Crim. App. 1994), upon which the
5
CR-06-0412
State relies in its brief, Brown made a motion for a judgment
of acquittal challenging the sufficiency of the evidence, but
he did not specifically argue that the State had failed to
corroborate the accomplice's testimony.
The Brown Court held
that the issue had not been preserved for review, and stated,
in part:
"This issue was presented for the first time in
the appellant's motion for a new trial and thus was
not timely. If a defendant does not object to the
testimony of an accomplice, that issue is not
preserved for appellate review.
Moreover, the
appellant did not request jury instructions on
corroboration of accomplice testimony."
Brown, 645 So. 2d at 312.
The Brown Court cited Linville v.
State, 634 So. 2d 601 (Ala. Crim. App. 1993), in which the
Court held that the appellant had
failed to preserve for
review a challenge to the sufficiency of the evidence that was
based on the argument that the accomplice's testimony had not
been sufficiently corroborated because, the Court said, "[a]t
no time did the appellant object to the testimony of [the
accomplice], nor did he ask the court to instruct the jury on
accomplice testimony."
Linville, 634 So. 2d at 603. 2
2
See
Linville made a motion for a judgment of acquittal, but
it is unclear from the Court's opinion whether he made only a
general challenge to the sufficiency of the evidence.
6
CR-06-0412
also Ward v. State, 376 So. 2d 1112, 1115 (Ala. Crim. App.
1979) (holding that a motion for a judgment of acquittal "'on
the grounds that the State has not made out
its
case or
carried the burden of proof'" did not preserve for review a
specific
challenge
on
appeal
to
the
sufficiency
of
the
corroboration of the accomplice's testimony).
On the other hand, in Fortier v. State, 515 So. 2d 101
(Ala. Crim. App. 1987), this Court considered the exact issue
now before us, and stated:
"The defendant never directed the trial court's
attention to the issue of accomplice corroboration.
At the close of the State's case he moved for a
'judgment of acquittal on all charges' without
stating grounds, and, in the alternative, he
requested charges on lesser included offenses. He
argued his alternative request and provided the
court with a citation of authority allegedly
supporting the giving of lesser included offense
charges.
Following his conviction he filed a
'Motion for Judgment of Acquittal After Verdict'
pursuant to Rule 12.3, A.R.Cr.P.Temp. [now Rule
20.3, Ala.R.Crim.P.], 'on the grounds that there was
insufficient evidence to convict defendant.'
The
court charged the jury that whether or not Tammy
Gamso was an accomplice was a question of fact for
their determination and then outlined for the jury
the principles requiring corroboration of accomplice
testimony. The defendant made no objections to this
part of the court's oral charge and tendered no
requested charges defining 'accomplice' or stating
the necessity for corroboration of an accomplice's
testimony.
Under the law prevailing prior to Ex
parte Maxwell, 439 So. 2d 715 (Ala. 1983), and Rule
7
CR-06-0412
12.3, A.R.Cr.P.Temp., the defendant would not have
preserved the issue of corroboration for our review.
See Ward v. State, 376 So. 2d 1112, 1115-16 (Ala.
Cr. App.), cert. denied, Ex parte Ward, 376 So. 2d
1117 (Ala. 1979). See also Alexander v. State, 281
Ala. 457, 458, 204 So. 2d 488, 489-90 (1967), cert.
denied, 390 U.S. 984, 88 S.Ct. 1107, 19 L.Ed.2d 1284
(1968). Compare Dunnaway v. State, 479 So. 2d 1331,
1336-37 (Ala. Cr. App. 1985).
"However, in Maxwell, the Alabama Supreme Court
held the following:
"'To preserve the issue for appeal, it
is necessary for defendant to state his
grounds upon moving to exclude evidence;
however, it is not necessary to draw the
trial court's attention to the particular
defect.
It
is
sufficient
that
the
defendant
state
the
ground
that
the
prosecution has failed to make a prima
facie case.' 439 So. 2d at 717.
"Although the defendant's first motion for judgment
of acquittal (made at the close of the State's case)
stated no grounds, his post-verdict motion was based
upon the claim that there was 'insufficient evidence
to convict defendant.'
Rule 12.3(a) states that
'[i]t shall not be necessary to the making of the
motion after a verdict or judgment of conviction
that a similar motion have been made prior to the
submission of the case to the factfinder.'
If a
defendant
is
not
precluded
from
testing
the
sufficiency of the State's case via a post-verdict
motion under Rule 12.3 by his failure to have made
an earlier motion under Rule 12.2, then it follows
that he is not foreclosed from challenging the
State's case by way of grounds stated in a Rule 12.3
motion which were not advanced in his earlier Rule
12.2 motion. We must, therefore, determine whether
the State's case was legally sufficient insofar as
it related to the accomplice corroboration issue."
8
CR-06-0412
515 So. 2d at 103-04.
Likewise, in Adkison v. State, 548 So.
2d 606 (Ala. Crim. App. 1988), this Court stated:
"The appellant argues that his conviction should
be reversed because it was based upon uncorroborated
accomplice testimony, in violation of § 12-21-222,
Code of Alabama (1975). The appellant made a motion
for judgment of acquittal, stating 'that the State
had not made out a prima facie case....'
That
ground was sufficient to preserve this matter for
our appeal.
See Ex parte Maxwell, 439 So. 2d 715
(Ala. 1983); Fortier v. State, 515 So. 2d 101, 104
(Ala. Cr. App. 1987)."
548 So. 2d at 609.
In Ex parte Maxwell, 439 So. 2d 715 (Ala. 1983), on which
this Court relied in both Adkison and Fortier, the Alabama
Supreme Court reversed the judgment of this Court, holding
that Maxwell's general motion to exclude the evidence on the
ground that the City had failed to prove a prima facie case
was sufficient to preserve for appellate review the specific
allegation that the City had failed to prove the municipal
ordinance
under
which
Maxwell
had
been
prosecuted.
Alabama Supreme Court stated:
"To preserve the issue for appeal, it is
necessary for defendant to state his grounds upon
moving to exclude evidence; however, it is not
necessary to draw the trial court's attention to the
particular defect.
It is sufficient that the
defendant state the ground that the prosecution has
failed to make a prima facie case. Turner v. State,
9
The
CR-06-0412
266 Ala. 250, 96 So. 2d 303 (1957); see also, R.
Williams, Williams' Alabama Evidence § 308 (1967).
Because the appellant here stated such grounds, the
issue of the necessity for introduction of the city
ordinance was preserved by defendant's motion to
exclude the evidence."
Ex parte Maxwell, 439 So. 2d at 717.
The
Supreme
Court
numerous occasions.
(Ala.
1993),
the
has
followed
Ex
parte
Maxwell
In Ex parte Johnson, 620 So. 2d 665, 668
Supreme
Court
held
that
a
motion
for
judgment of acquittal on the ground "'that the state
failed
to
prove
a
on
prima
facie
case'"
was
sufficient
a
has
to
preserve for review the specific argument on appeal that the
State had failed to prove that the defendant had previously
been convicted of a crime of violence, a necessary element of
the charge of unlawfully owning or possessing a pistol after
having been convicted of a crime of violence.
In Ex parte
Hall, 843 So. 2d 746, 748 (Ala. 2002), the Court again held
that a motion for a judgment of acquittal on the ground of
"'insufficient
evidence'"
was
sufficient
to
preserve
for
review the specific argument on appeal that the City had
failed
to
prove
the
municipal
defendant had been prosecuted.
10
ordinance
under
which
the
See also Ex parte Parks, 923
CR-06-0412
So. 2d 330 (Ala. 2005), and Ex parte McNish, 878 So. 2d 1199
(Ala. 2003).
However, none of those cases involved the specific issue
of accomplice corroboration, and when faced with that specific
issue, the Alabama Supreme Court reached a result inconsistent
with Ex parte Maxwell and its progeny.
So.
2d
441
conviction
because,
(Ala.
for
he
1991),
Weeks
trafficking
alleged,
the
in
In Ex parte Weeks, 591
argued
cocaine
conviction
on
appeal
should
was
that
be
based
his
reversed
on
the
uncorroborated testimony of an accomplice and on entirely
circumstantial evidence.
consider
Weeks's
The Alabama Supreme Court refused to
argument
about
uncorroborated
accomplice
testimony, but addressed the circumstantial-evidence argument,
stating:
"Weeks argues that there was insufficient
evidence to support his conviction.
He contends
that his conviction was improperly based on the
uncorroborated testimony of an accomplice. Thompson
v. State, 374 So. 2d 388 (Ala. 1979). That argument
was not presented to the trial court, so there is no
adverse ruling for us to review.
Accordingly, we
cannot consider the argument.
Gotlieb v. Collat,
567 So. 2d 1302 (Ala. 1990).
"In a related argument, Weeks contends that
apart from the allegedly uncorroborated accomplice
testimony,
the
State's
evidence
was
entirely
circumstantial, and, he argues, a conviction based
11
CR-06-0412
on entirely circumstantial evidence is due to be
reversed, unless the evidence is such that a jury
can conclude that the evidence excludes every
reasonable hypothesis except guilt.
See Ex parte
Williams, 468 So. 2d 99 (Ala. 1985). He argues that
the evidence in his case did not exclude every
reasonable hypothesis except guilt. Although we do
not necessarily accept his premise that there was
uncorroborated accomplice testimony, we reject the
argument on another ground: the evidence was
sufficient to allow the submission of the case to
the jury, whose factual determinations we will not
disturb unless the determinations are plainly
erroneous or manifestly unjust.
Harris v. State,
539 So. 2d 1117, 1124 (Ala. Cr. App. 1988)."
Ex parte Weeks, 591 So. 2d at 442.
We have reviewed the relevant portion of the trial record
in
Weeks's
case, 3 and
we
note
that,
at
the
close
of
the
State's case, Weeks argued:
"We would move for a judgment of acquittal on
the ground that the State has failed to make out a
prima facie case. There is no evidence whatsoever
about connection of Todd Weeks other than what has
been testified to by Becky Barnes, and I think her
testimony at the last trial was probably enough for
the Court to let it go to the jury, but today, she
has so contradicted herself that we don't think it's
worthy of belief to even go to the jury.
We feel
that her credibility is such that that standing
alone should not be enough to place the defendant in
jeopardy with a jury trial. The Court was able to
3
"This court may take judicial notice of its own records.
See Hull v. State, 607 So. 2d 369, 371 (Ala. Crim. App.
1992)." Minnifield v. State, 941 So. 2d 1000, 1001 n.3 (Ala.
Crim. App. 2005).
12
CR-06-0412
observe the witness more than the jury was able to,
and we feel like it would be proper to grant a
judgment of acquittal."
Weeks made both a general challenge to the sufficiency of the
evidence -- that the State failed to prove a prima facie case
-- and a more specific challenge to the sufficiency of the
evidence
Barnes.
the
--
relating
to
the
credibility
of
witness
Becky
At no time, however, did Weeks specifically challenge
corroboration
of
accomplice
testimony
or
argue
the
allegedly circumstantial nature of the evidence against him,
and he did not file a postjudgment motion challenging the
sufficiency of the evidence.
The
Weeks's
Supreme
argument
Court,
on
however,
appeal
considered
that
the
and
evidence
addressed
was
not
sufficient to convict him because, he said, it was entirely
circumstantial, and simultaneously declined to address Weeks's
argument on appeal that the evidence was not sufficient to
convict him because, he said, the accomplice's testimony was
not corroborated.
By declining to review Weeks's argument
about uncorroborated accomplice testimony, the Alabama Supreme
Court effectively held that a motion for judgment of acquittal
generally challenging the sufficiency of the evidence was not
13
CR-06-0412
sufficient to preserve for review on appeal an argument that
the
accomplice
holding,
the
testimony
was
corroborated. 4
not
In
so
Court relied on only a single, civil, case,
Gotlieb v. Collat, 567 So. 2d 1302 (Ala. 1990), and did not
mention its earlier holding in Ex parte Maxwell, or explain
its reasons for declining to follow Ex parte Maxwell regarding
the
preservation
corroboration
of
of
a
challenge
accomplice
to
the
testimony. 5
alleged
lack
Nonetheless,
of
the
Alabama Supreme Court clearly determined that Weeks's general
motion
for
appellate
a
judgment
review
of
his
acquittal
specific
did
issue
not
preserve
challenging
for
the
sufficiency of the evidence based on allegedly uncorroborated
accomplice testimony.
Moreover, our research has revealed no
case from the Alabama Supreme Court subsequent to Ex parte
Weeks that addresses preservation of the specific issue of
4
This Court has previously interpreted Ex parte Weeks the
same way.
See Thomas v. State, 622 So. 2d 415, 419 (Ala.
Crim. App. 1992) (citing Ex parte Weeks for the proposition
that an "objection that the State has failed to make out a
prima facie case does not embrace a claim that the accomplice
testimony has not been corroborated"), and Linville, supra.
5
Likewise, in its subsequent cases relying on Ex parte
Maxwell, the Court has not mentioned Ex parte Weeks.
14
CR-06-0412
accomplice
corroboration
or
that
in
any
way
calls
into
question the holding in Ex parte Weeks.
Although Ex parte Weeks appears to be an anomaly in the
Alabama Supreme Court's caselaw regarding the adequacy of a
general
challenge
to
the
sufficiency
of
the
evidence
to
preserve for review on appeal a more specific challenge to the
sufficiency of the evidence, we are nonetheless compelled to
follow that Court's only holding on the specific issue of
accomplice corroboration.
Therefore, pursuant to Ex parte
Weeks, we hold that a motion for a judgment of acquittal that
challenges the sufficiency of the evidence only generally,
i.e., that the State failed to prove a prima facie case or
words
to
specific
that
effect,
claim
that
does
an
sufficiently corroborated.
and
Adkinson,
overruled.
supra,
not
preserve
accomplice's
for
review
testimony
was
the
not
To the extent that Fortier, supra,
hold
otherwise,
they
are
hereby
Because Marks made only a general challenge to the
sufficiency of the evidence in his motions for a judgment of
acquittal and did not specifically argue to the trial court
that
the
accomplices'
testimony
was
not
sufficiently
corroborated, his argument on appeal that the accomplices'
15
CR-06-0412
testimony was not sufficiently corroborated was not properly
preserved for review and will not be considered by this Court.
Based on the foregoing, the judgment of the trial court
is affirmed.
APPLICATION
GRANTED;
OPINION
OF
AUGUST
31,
2007,
WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.
Baschab,
concur.
P.J.,
and
McMillan,
Wise,
and
Welch,
JJ.,
Shaw, J., concurs specially, with opinion.
SHAW, Judge, concurring specially.
I concur in the main opinion.
I write specially only to
urge the Alabama Supreme Court to clarify its holding in Ex
parte Weeks, 591 So. 2d 441 (Ala. 1991), at its earliest
convenience.
16
