Rel: 08/29/2014




Notice: This opinion is subject to formal revision before publication in the advance
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           SUPREME COURT OF ALABAMA
                              SPECIAL TERM, 2014

                         _________________________

                                  1130611
                         _________________________

                         Ex parte State of Alabama

                      PETITION FOR WRIT OF CERTIORARI
                     TO THE COURT OF CRIMINAL APPEALS

                   (In re: Ex parte Joel Patrick Moyers

                         (In re:      State of Alabama

                                          v.

                            Joel Patrick Moyers))

                  (Limestone Circuit Court, CV-13-900357;
                  Court of Criminal Appeals, CR-13-0093)

MAIN, Justice.

       This Court granted the State's petition for a writ of

certiorari         to   review      the    Court      of    Criminal       Appeals'
1130611

unpublished order directing the Limestone Circuit Court to set

bail for Joel Patrick Moyers.        Ex parte Moyers (No. CR-13-

0093, Dec. 20, 2013), ___ So. 3d ___ (Ala. Crim. App. 2013)

(table).    The issue before that court, and before us, is

whether a defendant who is charged with a capital offense is

entitled to bail if the State does not intend to seek the

death penalty.       First, the State argues that the Court of

Criminal Appeals' decision in this case conflicts with Ex

parte Bynum, 294 Ala. 78, 312 So. 2d 52 (1975), in which this

Court held that bail can be constitutionally denied in a

capital-offense case even if the death penalty will not be

imposed.   Alternatively, the State argues that the Court of

Criminal Appeals' decision raises a material question of first

impression that requires decision by this Court.             For the

reasons discussed below, we reverse and remand.

                I.    Facts and Procedural History

      In September 2012, Moyers was arrested and charged with

reckless murder and shooting into an occupied vehicle.          Bail

was set at $260,000.      In December 2012, Moyers was indicted

for   capital   murder,   reckless   murder,   and   two   counts   of

shooting into an occupied vehicle. In January 2013, the State


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1130611

filed a notice of its intent not to seek the death penalty.

In February 2013, Moyers applied for bail, but after a hearing

the trial court denied bail.

    In    June   2013,   after    the   trial    court    dismissed   the

capital-murder charge in the indictment because it did not

contain   specific-intent        language,   a   new     indictment   was

returned against Moyers charging capital murder, reckless

murder, and two counts of shooting into an occupied vehicle.

Moyers again applied for bail, but after a hearing the trial

court denied it.    In August 2013, Moyers filed a petition for

a writ of habeas corpus in the trial court, requesting that

the trial court set bail.         On September 24, 2013, the trial

court denied Moyers's petition.

    Moyers then filed a petition for a writ of habeas corpus

with the Court of Criminal Appeals, requesting that it direct

the trial court to hold an evidentiary hearing on his habeas

corpus petition or, in the alternative, to set bail.                  The

Court of Criminal Appeals granted Moyers's petition for a writ

of habeas corpus and, by an unpublished order, directed the

trial court to set bail.     The State petitioned this Court for

a writ of certiorari on the grounds that whether bail should


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1130611

be available to a defendant charged with a capital offense if

that defendant is not facing the death penalty is a question

of first impression and that the Court of Criminal Appeals'

decision conflicts with prior decisions of this Court and the

Court of Criminal Appeals.       We granted the State's petition.

                    II.   Standard of Review

    "'"This Court reviews pure questions of law in criminal

cases de novo."'"   Ex parte Shabazz, 989 So. 2d 524, 525 (Ala.

2008)(quoting Ex parte Morrow, 915 So. 2d 539, 541 (Ala.

2004), quoting in turn Ex parte Key, 890 So. 2d 1056, 1059

(Ala. 2003)).

    Further, "'[u]nder the ore tenus standard of review, we

must assume the trial court's factual finding ... was correct,

and thus we must uphold the order based on that finding unless

the court had before it no credible evidence to support that

finding.'   W.D. Williams, Inc. v. Ivey, 777 So. 2d 94, 98

(Ala. 2000)."   Ex parte Wilding, 41 So. 3d 75, 77 (Ala. 2009).

                          III.    Analysis

    In granting Moyers's petition for a writ for a habeas

corpus and directing the trial court to set bail, the Court of

Criminal Appeals relied on Ex parte Patel, 879 So. 2d 532


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1130611

(Ala. 2003), and said that in Ex parte Patel this Court

"appears to have departed from its earlier interpretation in

[Ex parte] Bynum." In Ex parte Bynum, this Court retained the

classification of capital offenses even though Furman v.

Georgia, 408 U.S. 238 (1972), had declared the death penalty,

as it was then implemented, unconstitutional.            In Ex parte

Bynum, this Court followed the view of the majority of states

that offenses that were classified as capital offenses before

Furman    were   still     capital   offenses   and   that   bail   can

constitutionally be denied in those cases.            294 Ala. at 81,

312 So. 2d at 55.        We explained:

    "The rationale of these decisions indicates that the
    gravity of the offense is the distinguishing feature
    and not the penalty which may be imposed. Following
    this interpretation, certain crimes for purposes of
    bail are still classified as capital regardless of
    whether the death penalty may be invoked."

294 Ala. at 81, 312 So. 2d at 54.          In Ex parte Patel, this

Court said:

         "Article I, § 16, of the Alabama Constitution of
    1901 provides: 'That all persons shall, before
    conviction, be bailable by sufficient sureties,
    except for capital offenses, when the proof is
    evident or the presumption great; and that excessive
    bail shall not in any case be required.'         That
    constitutional provision allows a court to deny bail
    for a defendant charged with an offense defined by
    statute as capital. Ex parte Landers, 690 So. 2d

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1130611

      537, 538 (Ala. Crim. App. 1997).     This court has
      established three prerequisites to the denial of
      bail in a capital case: 'The evidence must be clear
      and strong, that it would lead a well-guarded and
      dispassionate judgment to the conclusion that (1)
      the offense has been committed; (2) the accused is
      the guilty agent; and (3) he would probably be
      punished capitally if the law is administered.'
      Trammell v. State, 284 Ala. 31, 32, 221 So. 2d 390,
      390 (1969).   The State has the burden of proving
      that the crime was committed and showing 'facts that
      would convince the judge that upon final trial the
      judge would sustain a verdict pronouncing the
      defendant guilty and imposing the death penalty.'
      Roan v. State, 24 Ala. App. 517, 517, 137 So. 320,
      321 (1931). A safe rule for a trial court to follow
      'is to deny bail if the court could sustain a
      capital conviction by a jury based on the same
      evidence taken at the hearing seeking bail; and to
      allow bail if the evidence is not so efficacious.'
      Webb v. State, 35 Ala. App. 575, 576, 50 So. 2d 451,
      452 (1951); Roddam v. State, 33 Ala. App. 356, 33
      So. 2d 384 (1948)."

879 So. 2d at 533-34.    Relying on Ex parte Patel, the Court of

Criminal Appeals concluded that, because Moyers will not face

the   death   penalty,   the   State   failed   to   establish   the

prerequisites for denying bail in this case and directed the

trial court to set bail.

      Based on Ex parte Bynum, the State contends that to be

punished capitally does not mean only that the death penalty

be imposed and argues that the question in this case is

whether the offense is classified as a capital offense by


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1130611

statute, not whether Moyers will be sentenced to death.           The

State maintains that, if a defendant is charged with an

offense made capital under § 13A-5-40, Ala. Code 1975, and

that defendant is convicted of that offense, there are two

possible punishments, both of which are "capital"--a sentence

of death or a sentence of life imprisonment without the

possibility of parole.     We thus consider whether a defendant

who is charged with a capital offense is entitled to bail if

the State does not intend to seek the death penalty for the

offense.

    Alabama   has   a    constitutional     qualification    on   the

presumptive right to bail for capital offenses.             See Ala.

Const. 1901, Art. I, § 16 (excepting from bailable offenses

capital crimes when the proof is evident or the presumption

great); and Ex parte Bynum.    Ex parte Bynum explained that it

is the gravity of the offense,       not the sentence that could be

imposed, that is to be considered in determining whether the

defendant has a right to bail.          Thus, "certain crimes for

purposes of bail are still classified as capital regardless of

whether the death penalty may be invoked."         294 Ala. at 81,

312 So. 2d at 54.       The legislature has classified certain


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1130611

murders as capital in § 13A–5–40.                 A capital offense is

defined in § 13A–5–39(1), Ala. Code. 1975, as "[a]n offense

for which a defendant shall be punished by a sentence of death

or   life    imprisonment     without      parole   according    to   the

provisions of this article." Ex parte Patel further explained

the proof required for determining whether bail is warranted

as follows:

          "Alabama appellate courts have stated that
     'where bail has been refused by the primary
     magistrate on oral evidence, the appellate court
     will not interfere, unless such denial appears from
     the record to have been manifestly erroneous.' Roan
     [v. State], 24 Ala. App. [517,] 517, 137 So. [320,]
     321 [(1931)]. The Alabama Court of Criminal Appeals
     has recognized a presumption of guilt '"'[w]here one
     is imprisoned [for a capital offense] by virtue of
     an indictment.'"' [Ex parte] Landers, 690 So. 2d
     [537,] 538 [(Ala. Crim. App. 1987)] (quoting Burks
     v. State, 600 So. 2d 374, 381 (Ala. Crim. App.
     1991), quoting in turn Livingston v. State, 40 Ala.
     App. 376, 377, 116 So. 2d 396, 397 (1959)). To be
     entitled to bail as of right, a defendant must
     overcome this presumption by proof.     Landers, 690
     So. 2d at 538."

879 So. 2d at 534 (footnote omitted).               Patel had not been

indicted when the trial court held a hearing on her request

for bail.     Therefore, this Court found that no presumption of

her guilt existed and, after reviewing the evidence presented

to   the    trial   court,   held   that    the   State   had   presented


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1130611

insufficient evidence upon which the trial court could have

based a decision to deny bail.                 Id.        Here, Moyers was

indicted, and the trial court, after a hearing at which the

court heard and considered evidence presented ore tenus,

denied Moyers bail.         Ex parte Patel, therefore, is factually

distinguishable from this case.

       Based   on   the    plain     meaning   of     the    statutory    and

constitutional provisions and the development of the caselaw

in this area, we hold that a "capital offense" within the

meaning of constitutional and statutory provisions relating to

bail is an offense that is punishable by death or by life

imprisonment without the possibility of parole.                  Therefore,

when    a   defendant     who   is   charged   with   a     capital   offense

requests a trial court to set bail, under Ex parte Bynum the

court can deny that request for bail even if the State will

not seek the death penalty.           In order for the trial court to

deny a request for bail from a defendant charged with a

capital offense, however, the State must prove the three

prerequisites noted in Ex parte Patel: "'The evidence must be

clear and strong, that it would lead a well-guarded and

dispassionate judgment to the conclusion that (1) the offense


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1130611

has been committed; (2) the accused is the guilty agent; and

(3) he would probably be punished capitally if the law is

administered.'"     Ex parte Patel, 879 So. 2d at 533 (quoting

Trammell v. State, 284 Ala. 31, 32, 221 So. 2d 390, 390

(1969)).   Moreover, Ex parte Patel holds that if a defendant

has been indicted for a capital offense, that defendant is

presumed   guilty   for   purposes    of   setting   bail,   and   the

defendant has the burden to overcome that presumption before

he or she is entitled to bail as a matter of right.          Id.    In

sum, our decision in this case synthesizes the constitutional

and statutory provisions with the caselaw.

                          IV.   Conclusion

    For the foregoing reasons, we reverse the judgment of the

Court of Criminal Appeals and remand this case for further

proceedings consistent with this opinion.

    REVERSED AND REMANDED.

    Stuart, Bolin, Parker, Murdock, Wise, and Bryan, JJ.,

concur.

    Moore, C.J., and Shaw, J., concur specially.




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1130611

MOORE, Chief Justice (concurring specially).

      All accused are entitled to preconviction bail "except

for   capital    offenses,   when   the   proof   is    evident   or   the

presumption great." Art. I, § 16, Ala. Const. 1901. Because

"the gravity of the offense is the distinguishing feature and

not the penalty which may be imposed," this Court has held

that bail may be constitutionally denied in a capital case

even though the death penalty is not available. Ex parte

Bynum, 294 Ala. 78, 81, 312 So. 2d 52, 54 (1975). Thus, under

Ex parte Bynum, the trial court may deny Joel Patrick Moyers

bail if the constitutional conditions are satisfied.

      However, in Ex parte Patel, 879 So. 2d 532 (Ala. 2003)

(quoting Roan v. State, 24 Ala. App. 517, 517, 137 So. 320,

321 (1931)), this Court said that bail could be denied in a

capital case if the trial judge was convinced that on a

finding of guilt the death penalty would be imposed. Id. at

533-34. The Court of Criminal Appeals read Ex parte Patel as

saying    that    where   the   death     penalty      was   waived    the

constitutional entitlement to bail was automatically revived.

Thus, it ordered the trial court to set bail for Moyers.




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1130611

       However, as Justice Houston explained in his concurrence

in Ex parte Patel, and as Justice Shaw points out in his

special    concurrence     here,     Roan       was   decided   before     life

imprisonment     without    the     possibility        of   parole    was    an

alternative punishment in a capital case. See § 13A-5-39(1),

Ala.    Code   1975    (stating    that     a    capital    offense   is    one

punishable "by a sentence of death or life imprisonment

without parole"). By relying on Ex parte Patel without taking

cognizance     of     Justice     Houston's       observation    about      its

potentially misleading quotation from Roan, the Court of

Criminal Appeals misinterpreted Art. I, § 16.

       Article I, § 16, grants a trial court the discretion,

upon a proper finding, to deny bail for any capital offense,

not merely one in which the death penalty might be imposed.




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1130611

SHAW, Justice (concurring specially).

    As the main opinion notes, Art. I, § 16, of the Alabama

Constitution of 1901, provides that, under the specified

circumstances, bail may be denied in capital cases.      Prior

caselaw has held that "certain crimes for purposes of bail are

still classified as capital regardless of whether the death

penalty may be invoked."   Ex parte Bynum, 294 Ala. 78, 81, 312

So.2d 52, 54 (1975).    Thus, under certain circumstances, one

charged with a capital crime may be denied bail, even if the

death penalty is not an option as punishment.

    In Ex parte Patel, 879 So. 2d 532, 533 (Ala. 2003), this

Court discussed the factors to consider in determining whether

bail is appropriate in a capital case:

    "This Court has established three prerequisites to
    the denial of bail in a capital case: 'The evidence
    must be clear and strong, that it would lead a
    well-guarded and dispassionate judgment to the
    conclusion that (1) the offense has been committed;
    (2) the accused is the guilty agent; and (3) he
    would probably be punished capitally if the law is
    administered.' Trammell v. State, 284 Ala. 31, 32,
    221 So. 2d 390, 390 (1969)."

The Court then noted:

    "The State has the burden of proving that the crime
    was committed and showing 'facts that would convince
    the judge that upon final trial the judge would
    sustain a verdict pronouncing the defendant guilty

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1130611

      and imposing the death penalty.' Roan v. State, 24
      Ala. App. 517, 517, 137 So. 320, 321 (1931)."

879 So. 2d at 533 (emphasis added).

      In   the   instant   case,   the      Court    of    Criminal   Appeals

believed that Ex parte Patel, in quoting the sentence above

from Roan v. State, 24 Ala. App. 517, 137 So. 320 (1931),

"appear[ed] to have departed from [this Court's] earlier

interpretation in Bynum," and, thus, that in order to properly

deny bail the trial court must be convinced that the death

penalty would be imposed, which was not an option in Joel

Patrick Moyers's case.

      The main opinion holds that Ex parte Patel is factually

distinguishable from this case; I agree, but I do not believe

that that is the only reason Ex parte Patel does not require

the   result     reached   by   the        Court    of    Criminal    Appeals.

Specifically, the issue in Ex parte Patel involved whether the

evidence was sufficient to justify the denial of bail. The

quotation of Roan in Ex parte Patel should be viewed only as

discussing the quantum of evidence to be produced to the trial

court and not a definition of crimes constituting capital

offenses for purposes of determining whether a defendant has

a right to bail.      Roan's discussion, as quoted in Ex parte

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1130611

Patel, is pertinent as to how much evidence is to be produced,

not     what   constitutes   a     capital   offense.   In   fact,    the

definition of what constituted a capital offense changed after

Roan.     As Justice Houston stated in his special writing on

application for rehearing in Ex parte Patel: "[A]fter [the

Court of Appeals] decided Roan v. State, 24 Ala. App. 517, 137

So. 320 (1931), quoted in the original opinion, the definition

of    'capital   offense'    was   revised   to   include    an   offense

punishable by a sentence of life imprisonment without the

possibility of parole. See Ala. Code 1975, § 13A–5–39."                Ex

parte Patel, 879 So. 2d at 535 (Houston, J., concurring

specially).1      The issue in Ex parte Patel was whether the


      1
     Justice Houston called for the Court to clarify the
decision in Ex parte Patel:

      "I would revise the portion of the opinion in which
      we quote from Roan in order to clarify that, under
      the circumstances presented here, the State has the
      burden of proving that the crime was committed and
      showing 'facts that would convince the judge that
      upon final trial the judge would sustain a verdict
      pronouncing the defendant guilty and imposing the
      death penalty [or a sentence of life imprisonment
      without parole].' Roan, 24 Ala. App. at 517, 137 So.
      at 321."

Ex parte Patel, 879 So. 2d at 535 (Houston, J., concurring
specially). For whatever reason, the Court apparently declined
to do so.
                                     15
1130611

trial court had sufficient evidence on which to deny bail, and

its citation of Roan was to show what must be demonstrated to

the trial court to constitute sufficient evidence; there was

no dispute whether the charged crime was a capital offense.

For that reason, Ex parte Patel did not mandate the decision

by the Court of Criminal Appeals in this case.




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