REL:04/25/2008 M.H. v. State
Notice: This opinion is subject to formal revision before publication in the advance
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ALABAMA COURT OF CRIMINAL APPEALS
OCTOBER TERM, 2007-2008
_________________________
CR-06-1626
_________________________
M.H.
v.
State of Alabama
Appeal from Jefferson Circuit Court
(CC-06-2263 and CC-06-2265)
SHAW, Judge.
The appellant, M.H., was convicted of one count of sodomy
in the first degree, a violation of § 13A-6-63, Ala. Code
1975, and one count of sexual abuse in the first degree, a
CR-06-1626
violation of § 13A-6-66, Ala. Code 1975. 1
He was sentenced to
30 years' imprisonment for the sodomy conviction and to 20
years'
imprisonment
for
the
sexual-abuse
conviction,
the
sentences to run concurrently.
The
evidence
adduced
at
trial
indicated
that
between
January 1, 2001, and September 14, 2005, M.H. was living with
his girlfriend, T.F., and her daughter, D.H., who was under 10
years old during that time.
D.H. testified that when she was
seven years old, M.H. "put his thing in [her] mouth" or "put
his snake in [her] mouth" while the two of them were alone in
T.F.'s bedroom.
(R. 43.)
D.H. further stated that, on a
subsequent occasion, M.H. also touched "[her] private" in her
bedroom.
(R. 44.)
According to D.H., in addition to the
instances of abuse by M.H. that occurred in T.F.'s apartment,
M.H. also sexually abused her while they were at the home of
M.H.'s sister.
M.H. did not testify in his own defense at trial.
He
did, however, present character testimony from his sister,
1
M.H. was also indicted for rape in the first degree, a
violation of § 13A-6-61, Ala. Code 1975, by means of a
separate indictment (case no. CC-06-2264); however, in a
previous trial, which resulted in a mistrial as to the sexualabuse and sodomy charges, M.H. was acquitted of the rape
charge.
2
CR-06-1626
R.B., who had the opportunity to observe M.H. interacting with
D.H.
up
to
described
and
those
relationship."
including
the
interactions
month
as
a
of
July
"[f]ather
2005.
and
R.B.
daughter
(R. 114.)
I.
On appeal, M.H. contends that the State's evidence was
insufficient to sustain his convictions.
Specifically, M.H.
asserts that the "sole evidence" of both sodomy in the first
degree
and
sexual
abuse
in
the
first
uncorroborated testimony of [D.H.]."
25.)
He
further
argues
that
there
degree
"is
the
(M.H.'s brief at p. 23,
was
no
corroborating
physical or medical evidence to support D.H.'s testimony.
M.H.'s challenge to the sufficiency of the State's evidence,
however, was not properly preserved for our review.
At the close of the State's case, M.H.'s counsel moved
for a judgment of acquittal, stating:
"[M.H.'s counsel]: "Your Honor, on the motion for
judgement of acquittal, I understand that the
standard is that the evidence is viewed in the light
most favorable to the State.
Since there was
testimony from the alleged victim I'll rest on the
record."
(R. 107.)
At the close of all the evidence, M.H.'s counsel
again moved for a judgment of acquittal, stating that "[he]
3
CR-06-1626
renew[ed] [his] motion for judgement of acquittal ... based on
the record."
(R. 123.)
The trial court denied both motions.
M.H. did not challenge the sufficiency of the evidence in his
postjudgment "Motion for Judgment of Acquittal After Verdict."
(C. 90-91.) 2
"The sufficiency of the evidence is subject to
appellate review only where the defendant challenges
the State's lack of evidence by either a motion to
exclude, a motion for judgment of acquittal, or a
motion for new trial. Slaughter v. State, 424 So.
2d 1365 (Ala. Cr. App. 1982); see Johnson v. State,
500 So. 2d 69 (Ala. Cr. App. 1986). The appellant
is bound by the specific objections that he made at
trial and cannot raise a new ground on appeal.
Bolding v. State, 428 So. 2d 187 (Ala. Cr. App.
1983)."
Washington v. State, 555 So. 2d 347, 348 (Ala. Crim. App.
1989). "A general objection that does not specify any grounds
generally will preserve nothing for review."
Schaefer v.
State, 695 So. 2d 656, 659-60 (Ala. Crim. App. 1996).
"An appellant must provide specific grounds for
his general objections at trial if he intends to
appeal that issue. 'A general objection that does
not specify grounds preserves nothing for review.'
Landreth v. State, 600 So. 2d 440, 447 (Ala. Cr.
App. 1992), Thompson v. State, 575 So. 2d 1238 (Ala.
2
In that motion, M.H. raised only a single issue regarding
the jury's initial indication during deliberations that it was
deadlocked and the trial court's subsequent actions in that
regard. See Part II of this opinion.
4
CR-06-1626
Cr. App. 1991). 'A defendant is bound on appeal of
a criminal prosecution by the grounds stated for the
objection at trial,' Lyde v. State, 605 So. 2d 1255,
1258 (Ala. Cr. App. 1992).
Thus, 'an objection
without specifying a single ground is not sufficient
to place the trial court in error for overruling
such objection.' Reeves v. State, 456 So. 2d 1156,
1160 (Ala. Cr. App. 1984)."
Capps v. State, 630 So. 2d 486, 489-90 (Ala. Crim. App. 1993).
"If no grounds are stated in a motion for a judgment of
acquittal, then no issue is preserved for review."
Lewis v.
State, 659 So. 2d 183, 185 (Ala. Crim. App. 1994).
Because
M.H. stated no specific grounds in support of his motion for
a judgment of acquittal in the trial court, this issue was not
properly preserved for our review and will not be considered
by this Court. 3
II.
M.H. also argues on appeal that the trial court erred by
denying his motion for a mistrial and his postjudgment motion
3
Moreover, to the extent that M.H.'s argument on appeal
could be construed to be a challenge to the weight of the
evidence, rather than its sufficiency, M.H. also failed to
properly preserve that issue by including it in his
postjudgment motion. See Zumbado v. State, 615 So. 2d 1223,
1241 (Ala. Crim. App. 1993) ("The issue of the weight of the
evidence is preserved by a motion for a new trial, stating
'that the verdict is contrary to law or the weight of the
evidence.' See A.R.Cr.P. 24.1(c)(1).").
5
CR-06-1626
for a judgment of acquittal because, he says, the trial court
erred in giving an Allen 4 or "dynamite" charge to the jury
after the jury indicated that it was deadlocked.
The record reflects that, after approximately two hours
of deliberation, the jury returned to the courtroom.
At that
time, the following occurred:
"THE COURT: Okay. Ladies and gentlemen, who's
the foreperson? Okay. You are Ms. -"[P.H.]: [P.H.]
"THE COURT: -- for the record? Okay, [P.H.], do
you believe that further negotiations might be
fruitful? That is, result in a unanimous verdict?
"[P.H.]: This evening?
"THE COURT: No, tomorrow?
"[P.H.]: I think they can work on it.
"THE COURT: Okay. Is that the general [consensus]?
"Juror: No, sir.
"THE COURT: No, it's not?
"Juror: No.
"THE COURT: Y'all think y'all are hopelessly
deadlock[ed]?
"Some Jurors: Yes, sir.
4
Allen v. United States, 164 U.S. 492 (1896).
6
CR-06-1626
"THE COURT: You do?
"Some Jurors: Yeah.
"THE COURT:
deadlock[ed]?
"Juror:
How many think you are hopelessly
I guess, probably we are.
"(Jurors raise hands.)
"THE COURT: Okay. Ten people
hopelessly deadlock[ed]. Okay.
think
you
are
"Let me speak to the lawyers over here for a
second.
"(Off-the-record discussion.)
"THE COURT:
I just want to know which sides?
"[P.H.]: 8 to 4.
"THE COURT:
Is that on both charges?
"[P.H.]: Yes on both charges.
"THE COURT: On both.
"(Off-the-record discussion.)
"THE COURT: Okay, I need to get something on
the record, ladies and gentlemen. I need y'all to
go back there for one minute.
"(Whereupon, the jury leaves the courtroom
and the following is heard with the
defendant and all counsel present.)
"THE COURT: We have an 8 to 4 split. Which is
almost, you know, almost about as close as you can
get to down the middle.
And they seem to be real
7
CR-06-1626
adamant about it, [prosecutor]. And I don't want to
seem like I'm forcing them to deliberate.
"[Prosecutor]: Judge, but we haven't even given
them the Allen charge. Like, I would like for us to
at least give them that. You know, just try
everything before a mistrial is declared in this
case.
"[M.H.'s counsel]: Judge, she is right about
that. I mean, out of a sense of fairness they have
not been given the Allen charge, but typically what
happens is that they are given that before they are
asked if they're hopelessly deadlocked.
"THE COURT: Well, they volunteered to tell me
they were hopelessly deadlocked.
"[M.H.'s counsel]: I'm not suggesting that the
Court did anything inappropriate.
"THE COURT: I know you're not. I'm just saying,
you know, for the record, they volunteered.
They
told my bailiff they were hopelessly deadlocked, and
asked my bailiff to tell me. And that's when I got
all of you all together –
"[M.H.'s counsel]: I'm moving for a mistrial,
Judge, I believe that further deliberations would be
coercing.
"[Prosecutor]: Judge and I would ask that we at
least give them an Allen charge, let them deliberate
a little bit longer.
"....
"THE COURT: ....
"Bring them out, [Bailiff].
8
CR-06-1626
"(Whereupon, the jury returns to the
courtroom and the following is heard with
the defendant and all counsel present.)
"THE COURT:
Give this to her. Write in there
the numbers for me.
"(Foreperson complies.)
"(Judge reviews document.)
"THE COURT: I really would hope that you all can
reach a decision, one way or the other. It's not a
better group of 12 people in this county to decide
this case. I mean, how am I going to find 12 better
people to reach a verdict? I can't do it. None of
these people want to try this case again.
And I
really need y'all to search y'all's hearts, and your
minds, and the evidence, to try to reach a verdict
in this case. A true verdict. That expresses what
happened.
"I need you all to look to one question: whether
the State has proved, beyond a reasonable doubt,
based on the definition of reasonable doubt that I
gave you, the defendant's guilt.
If you are
convinced, beyond a reasonable doubt, that is, you
have no reasonable doubt of the defendant's guilt,
you should convict him. If you do have a reasonable
doubt, in that event you should acquit him.
"But you should -- If you say that he is guilty,
you should say, I believe that he's guilty because
of this, or this, or this.
If you say, that I
believe that he's not guilty, you should say, I
believe he's not guilty because of this doubt, or
that doubt.
"You just shouldn't, you know, be stubborn one
way or the other just for the sake of stubborn
sense. You need to be able to articulate a reason
either way. We don't want to have to expend the
9
CR-06-1626
resources of trying this case again, when we have
many other cases that could be tried. No one wants
that, neither side. We are here only for a search of
justice. Bias, sympathy, for one or the other party
should not play a role. But I really hate it, but
I'm going to have to ask that y'all come back in the
morning. Because you all have only deliberated for
a couple of hours.
"And I really need y'all to do your best and try
to reach a verdict. Listen to other people's views.
I'm not saying change your view just for the sake of
changing it or to get a decision.
But jury
deliberations are by nature a give and take, and
exchange of ideas, and a questioning of, you know,
of facts, and, you know, that kind of intellectual
discussion.
"With one thought in mind, one thought in mind,
that the guilty do not escape justice, and that the
innocent are not punished unfairly.
That's all
we're concerned about.
So please, don't let
anything other than a sense of justice guide your
deliberations in this case. Ask yourself, what is
believable?
What is truthful?
And base your
verdict on the evidence that you believe. Discard
that which is unworthy of belief. Push that over to
the side. And try to reach a verdict based upon the
evidence in this case.
"Serving on a jury, that's a privilege, it's an
honor. And you have a deep responsibility, because
you are speaking for the community now.
And you
have to use your education, your training, your life
experiences about how things happen. And you have to
do the things I talked to you about. Like judging
credibility, and deciding whose testimony is worthy
of belief and whose is not. Use the wisdom that you
have gained in your lives.
"But for goodness sake, don't let any bad
considerations
enter
into
the
decision-making
10
CR-06-1626
process that shouldn't be there.
This is about
justice. And only you can decide what is justice in
this case.
"And I remain firm that there is no better group
of 12 folk in this county to decide this case than
you all, because you all are a mixture of this
county.
And the different areas in this county.
And it's no better way to determine guilt or
innocence than to have a cross section from the
community here like we do.
"So I'm going to ask that you go home, and you
get a good night's rest, and you come back tomorrow
morning, in the spirit of fulfilling your obligation
as jurors in this case. And doing the best job that
you can to try to reach a verdict in this case.
"Okay.
"Okay, you all are excused. Be back by a quarter
till 9 in the morning.
"(Whereupon, the jury is released at 4:50
p.m. on February 8, 2007.)
"(Whereupon, the following is heard with
the defendant and all counsel present.)
"THE COURT: That was my best impromptu Allen
charge.
"[M.H.'s counsel]: Unfortunately, Judge, I've
heard more than my share of them. I can say that
that was about as expanded and eloquent [an] Allen
charge as I've heard.
"THE COURT: Thank you.
"[M.H.'s counsel]:
motion for a mistrial.
But
11
I
still
stand
on
my
CR-06-1626
"THE COURT: Well, you know, [the prosecutor] had
a good point. You know, I'll always try to remain
open. You know, and if somebody can convince me, you
know, otherwise, I'll -- you know I'll listen. I've
changed my mind your way on several occasions.
"So when she said, 'Judge, they've only
deliberated a couple hours,' and I thought about
that, and I said, well, she is correct. And if that
will get us, you know, letting them deliberate some
tomorrow. I mean, this is a Class A felony and it
deserves more than a couple hours of deliberations
and both of y'all have valid points over here
and....
"My goal is just to try to do what's right and,
you know, do what I can to help us fairly get a
verdict in this case. Because I know nobody wants to
try it again needlessly. And then maybe tomorrow I
have to grant a mistrial. But let's make sure that
we've done everything that we can. To try to get a
verdict. One way or the other. And I had them to,
you know, let me know what the split was.
And it
doesn't seem like it's that far away from being
unanimous."
(R. 141-50.)
Following the trial court's Allen charge, the
jurors were released for the day.
Approximately 2 hours and
40 minutes after resuming its deliberations the following
morning, the jury returned guilty verdicts as to both charges
against M.H.
In Maxwell v. State, 828 So. 2d 347 (Ala. Crim. App.
2000), this Court discussed the issue of an Allen charge:
"'"'The general rule in Alabama has
been that it is not improper for the trial
12
CR-06-1626
court to urge upon the jury the duty of
attempting to reach an agreement or verdict
as long as the judge does not suggest which
way the verdict should be returned.'" King
v. State, 574 So. 2d 921, 927-28 (Ala. Cr.
App. 1990), quoting McMorris v. State, 394
So. 2d 392 (Ala. Cr. App. 1980), cert.
denied, 394 So. 2d 404 (Ala. 1981), cert.
denied, 452 U.S. 972, 101 S.Ct. 3127, 69
L.Ed.2d 983 (1981).
An Allen v. United
States, 164 U.S. 492, 17 S.Ct. 154, 41
L.Ed. 528 (1896), charge, also known as a
"dynamite charge," is permissible if the
language of the charge is not coercive or
threatening. Grayson v. State, 611 So. 2d
422, 425 (Ala. Cr. App. 1992); King v.
State, 574 So. 2d at 928.'
"Gwarjanski v. State, 700 So. 2d 357, 360 (Ala. Cr.
App. 1997). Further, '[w]hether an "Allen charge"
is coercive must be evaluated in the "whole context"
of the case.' Miller v. State, 645 So. 2d 363, 366
(Ala. Cr. App. 1994)."
828 So. 2d at 365.
held
on
numerous
"'The Supreme Court and this court have
occasions
that
the
"Allen"
or
"dynamite
charge" is not error unless the language used is threatening
or coercive.'"
Miller v. State, 645 So. 2d 363, 366 (Ala.
Crim. App. 1994), quoting Grayson v. State, 611 So. 2d 422,
425 (Ala. Crim. App. 1992).
We have reviewed the trial court's Allen charge, as set
out above, in the context of the entire case, and we conclude
that neither the giving of the charge nor the language in the
13
CR-06-1626
charge
counsel
itself
at
eloquent."
was
coercive.
trial,
the
Indeed,
court's
charge
as
noted
was
by
M.H.'s
"expanded
and
R. 149.)
We are also unpersuaded by M.H.'s argument that, because
the trial court was aware of the deadlocked status of the jury
as well as the numerical division of the jury, the Allen
charge was inappropriate.
Throughout the trial court's Allen
charge and in the court's interaction with the jury, there was
no reference by the court to the numerical division of the
jury vote and no implication by the court, through words or
conduct, that the court expected the jury to return a verdict,
much less a certain verdict.
See, e.g., Channell v. State,
477 So. 2d 522, 531 (Ala. Crim. App. 1985).
Therefore, we
find no error in the trial court's giving the Allen charge or
in the trial court's denying M.H.'s motion for a mistrial on
this ground.
III.
Although not argued by M.H. or the State, we find that
M.H.'s 20-year sentence for his conviction for first-degree
sexual abuse is illegal.
"Matters concerning unauthorized
sentences are jurisdictional," Hunt v. State, 659 So. 2d 998,
14
CR-06-1626
999 (Ala. Crim. App. 1994); therefore, we may take notice of
an illegal sentence at any time.
See, e.g., Pender v. State,
740 So. 2d 482 (Ala. Crim. App. 1999).
At the time of the crimes in this case, § 13A-6-66, Ala.
Code 1975, provided, in pertinent part:
"(a) A person commits the crime of sexual abuse
in the first degree if:
"....
"(3) He, being 16 years old or older,
subjects another person to sexual contact
who is less than 12 years old.
"(b) Sexual abuse in the first degree is a Class
C felony."
Effective July 1, 2006, §
subsection
convicted.
(a)(3),
the
13A-6-66 was amended to remove
subsection
under
which
See Act No. 2006-575, Ala. Acts 2006.
M.H.
was
Section
13A-6-69.1, Ala. Code 1975, was enacted by the same act and
contains comparable language to the language previously in §
13A-6-66(a)(3); § 13A-6-69.1(b), Ala. Code 1975, makes the
sexual abuse of a child under 12 years old a Class B felony.
"It is well settled that the law in effect at the time of
the
commission
of
the
offense
controls
the
prosecution."
Minnifield v. State, 941 So. 2d 1000, 1001 (Ala. Crim. App.
15
CR-06-1626
2005).
See also Davis v. State, 571 So. 2d 1287, 1289 (Ala.
Crim. App. 1990) ("A defendant's sentence is determined by the
law in effect at the time of the commission of the offense.");
Hardy v. State, 570 So. 2d 871 (Ala. Crim. App. 1990) (unless
otherwise stated in the statute, the law in effect at the time
the offense was committed controls the offense); and Jefferson
v. City of Birmingham, 399 So. 2d 932 (Ala. Crim. App. 1981)
(law
in
effect
prosecution).
at
the
time
of
the
offense
governs
"'As a general rule, a criminal offender must
be sentenced pursuant to the statute in effect at the time of
the commission of the offense, at least in the absence of an
expression
statute
of
intent
applicable
by
to
the
legislature
previously
to
make
committed
the
new
crimes.'"
Zimmerman v. State, 838 So. 2d 405, 406 n.1 (Ala. Crim. App.
2001), quoting 24 C.J.S. Criminal Law § 1462 (1989). As this
Court explained in White v. State, [Ms. CR-05-2019, November
2, 2007] ___ So. 2d ___ (Ala. Crim. App. 2007):
"It is well settled that '[u]nless the statute
contains a clear expression to the contrary, the law
in effect at the time of the commission of the
offense "govern[s] the offense, the offender, and
all proceedings incident thereto."' Hardy v. State,
570 So. 2d 871, 872 (Ala. Crim. App. 1990), quoting
Bracewell v. State, 401 So. 2d 123, 124 (Ala. 1979).
'In Alabama, retrospective application of a statute
16
CR-06-1626
is
generally
not
favored,
absent
an
express
statutory provision or clear legislative intent that
the enactment apply retroactively as well as
prospectively.' Jones v. Casey, 445 So. 2d 873, 875
(Ala. 1983)."
___ So. 2d at ___.
We have reviewed Act No. 2006-575, Ala.
Acts 2006, and § 13A-6-69.1, Ala. Code 1975, and there is no
express statement that § 13A-6-69.1 apply retroactively, nor
can we find any indication that the legislature intended that
§ 13A-6-69.1 apply retroactively.
Therefore, § 13A-6-69.1
applies only to those crimes that occurred after July 1, 2006,
its effective date.
Because
§
13A-6-69.1
does
not
apply
to
crimes
that
occurred before July 1, 2006, it does not apply to M.H., who
committed the sexual abuse between 2001 and 2005.
Rather, §
13A-6-66 applies to M.H.'s sexual-abuse conviction, making his
conviction a Class C felony.
Section 13A-5-6(a)(3), Ala. Code
1975, provides that a person convicted of a Class C felony
shall be punished by "not more than 10 years or less than 1
year and 1 day."5
M.H.'s 20-year sentence for his sexual-
5
There is no indication in the record that M.H. was
sentenced under the Habitual Felony Offender Act, § 13A-5-9,
Ala. Code 1975.
17
CR-06-1626
abuse conviction exceeded the maximum authorized by law and
was, thus, illegal.
Based on the foregoing, we affirm M.H.'s convictions for
sodomy in the first degree and sexual abuse in the first
degree and his 30-year sentence for the sodomy conviction.
However, we remand this case to the trial court for it to
conduct a new sentencing hearing and to resentence M.H. for
the first-degree-sexual-abuse conviction in accordance with
this opinion.
Due return shall be filed with this Court
within 42 days of the date of this opinion and shall include
a transcript of the sentencing hearing conducted on remand as
well as the trial court's amended sentencing order.
AFFIRMED AS TO CONVICTIONS; REMANDED WITH DIRECTIONS AS
TO SENTENCING.
Baschab,
P.J.,
and
McMillan,
concur.
18
Wise,
and
Welch,
JJ.,
