REL:09/26/2014




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          SUPREME COURT OF ALABAMA
                              SPECIAL TERM, 2014

                         _________________________

                                  1130271
                         _________________________

                         Ex parte State of Alabama

                      PETITION FOR WRIT OF MANDAMUS

                 (In re: Ex parte Margie Morgan Kelley

                          (In re: State of Alabama

                                          v.

                           Margie Morgan Kelley))

   (Etowah Circuit Court, CC-13-318.01, CC-13-318.02, and
    CC-13-318.03; Court of Criminal Appeals, CR-12-1765)

SHAW, Justice.

      The Court of Criminal Appeals, in an unpublished order,

issued a writ of mandamus directing the trial court in the
1130271

underlying case to "bar" the prosecution of the respondent,

Margie Morgan Kelley, who had been indicted for three counts

of capital murder.   Ex parte Kelley (No. CR-12-1765, November

21, 2013), ___ So. 3d ___ (Ala. Crim. App. 2013) (table).   The

State of Alabama petitions this Court for a writ of mandamus

directing the Court of Criminal Appeals to vacate its order.

See Rule 21(e)(1), Ala. R. App. P. ("If an original petition

has been granted by the court of appeals, review may be had by

filing in the supreme court a petition for writ of mandamus

... directed to the court of appeals ....").     We grant the

petition and issue the writ.

                Facts and Procedural History

    In its unpublished order, the Court of Criminal Appeals

set out the facts and procedural history of this case:

         "Margie Morgan Kelley filed this petition for a
    writ of mandamus requesting that this Court direct
    Judge William Allen Millican to grant her motion to
    bar her prosecution for capital murder because, she
    says, to prosecute her for murder after she has been
    convicted of hindering prosecution and abuse of a
    corpse related to the same murders violates the
    Double Jeopardy Clause. In 2010, Kelley was charged
    with hindering the prosecution of her husband in the
    murders of Rocky Morgan and James Bachelor and with
    abuse of a corpse. In August 2011, she pleaded
    guilty to those charges and has since completed her
    sentence. Kelley's husband, Robert Kelley, has been
    charged with and pleaded guilty to murdering Morgan

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    and Bachelor. As a part of the plea agreement,
    Robert Kelley implicated his wife in the murders. In
    March 2013, Kelley was indicted for three counts of
    capital murder for allegedly murdering Morgan and
    Bachelor during one course of conduct and for
    murdering Morgan for pecuniary gain. Kelley moved
    that the capital murder charges be dismissed based
    on collateral estoppel and double-jeopardy grounds.
    After a hearing, Judge Millican denied the motion.
    Kelley then filed this petition for a writ of
    mandamus with this Court."

    As noted above and discussed in more detail below, the

Court of Criminal Appeals granted Kelley's petition.        The

State then filed the instant petition with this Court.

                     Standard of Review

         "Mandamus is an extraordinary remedy and will be
    issued only when there is '(1) a clear legal right
    in the petitioner to the order sought; (2) an
    imperative duty upon the respondent to perform,
    accompanied by a refusal to do so; (3) the lack of
    another adequate remedy; and (4) properly invoked
    jurisdiction of the court.' Ex parte Alfab, Inc.,
    586 So. 2d 889, 891 (Ala. 1991). 'A decision of a
    court of appeals on an original petition for writ of
    mandamus or prohibition or other extraordinary writ
    (i.e., a decision on a petition filed in the court
    of appeals) may be reviewed de novo in the supreme
    court....' Rule 21(e)(1), Ala. R. App. P."

Ex parte Sharp, 893 So. 2d 571, 573 (Ala. 2003).

                         Discussion

    Hindering prosecution in the first degree is described in

Ala. Code 1975, § 13A-10-43(a), as follows:


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       "A person commits the crime of hindering prosecution
       in the first degree if with the intent to hinder the
       apprehension, prosecution, conviction or punishment
       of another for conduct constituting a murder or a
       Class A or B felony, he renders criminal assistance
       to such person."

A person renders "criminal assistance" to another if he or

she:

           "(1) Harbors or conceals such person;

            "(2) Warns such person of impending discovery or
       apprehension; except that this subdivision does not
       apply to a warning given in connection with an
       effort to bring another into compliance with the
       law;

            "(3)  Provides   such   person  with   money,
       transportation, weapon, disguise or other means of
       avoiding discovery or apprehension;

            "(4) Prevents or obstructs, by means of force,
       deception   or   intimidation,   anyone  except   a
       trespasser from performing an act that might aid in
       the discovery or apprehension of such person; or

            "(5) Suppresses, by an act of concealment,
       alteration or destruction, any physical evidence
       that might aid in the discovery or apprehension of
       such person."

Ala. Code 1975, § 13A-10-42.

       The language of § 13A-10-43(a) does not provide that a

person may be charged with and convicted of rendering criminal

assistance to himself or of hindering his own prosecution:




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         "Neither the statutory definition of hindering
    prosecution in the first degree, § 13A-10-43, nor
    the statutory definition of criminal assistance, §
    13A-10-42, 'states that a person may render criminal
    assistance to himself. If the legislature had so
    intended, it could have inserted that provision in
    the statute. Instead the legislature used the words
    "person" or "such person" throughout those sections
    and did not refer to the underlying principal.'"

Washington v. State, 562 So. 2d 281, 282 (Ala. Crim. App.

1990) (quoting People v. Mercedes, 121 Misc. 2d 419, 420, 467

N.Y.S.2d 973, 974 (N.Y.Sup.Ct. 1983)).

    In    Washington,   the   court   was   required   to   determine

whether hindering prosecution was a lesser offense included

in the offense of robbery.        In holding that it was not a

lesser-included offense, the court stated that "'[t]he charge

of hindering prosecution is inapplicable to a person charged

as a principal.'"   562 So. 2d at 282 (quoting Mercedes, 121

Misc. 2d at 420, 467 N.Y.S.2d at 974.        The court then noted:

         "The history of the offense of hindering
    prosecution in Alabama shows that the offense has
    been limited to persons other than principals.

               "'Under Alabama law the conduct
          described under § 13A-10-42 and prohibited
          by §§ 13A-10-43 and 13A-10-44[, Ala. Code
          1975,] would ordinarily make one an
          "accessory after the fact." Former §§
          13-9-1 and 13-9-2[, Ala. Code 1975]. Former
          §   13-9-1  provided   that   all   persons
          concerned in the commission of a felony,

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1130271

           whether they directly commit the act
           constituting the offense or aid or abet in
           its commission, will be tried and punished
           as principals. Parsons v. State, 33 Ala.
           App. 309, 33 So. 2d 164 (1948)[,]
           established that participation in the crime
           may be proven by circumstantial evidence.
           Former § 13-9-2 dealt with accessories
           after the fact and provided [that] any
           person, other than parent, child, brother,
           sister, husband or wife of the offender,
           who gives aid to the offender with the
           intent to enable him to avoid or escape
           from   arrest,   trial,   conviction,    or
           punishment in connection with a felony may
           be imprisoned in county jail up to six
           months and/or fined up to $1,000.00.'

    "Commentary to §§ 13A-10-42 through 13A-10-44
    (emphasis added). 'Although Section 13-9-1 has been
    repealed, there is--for purposes of indictment and
    trial--still no distinction between principals and
    accessories under Alabama law.' Lewis v. State, 469
    So. 2d 1291, 1297 (Ala. Cr. App. 1984), affirmed,
    469 So. 2d 1301 (Ala. 1985)."

Washington, 562 So. 2d at 283.           On the basis of this analysis,

the court in Washington held that "hindering prosecution is

not a lesser included offense of robbery."             Id.

    The    analysis     in   Washington     was   subsequently    applied

outside    the    context     of    determining      whether    hindering

prosecution is a lesser-included offense.                   In Goodwin v.

State,    644    So.   2d    1269   (Ala.    Crim.   App.    1993),   four

individuals, Dewey Goodwin, Daren Goodwin, David King, and


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1130271

Xavier Murray, engaged in a scheme to commit a robbery. Dewey

and Daren drove King and Murray to the house of the intended

victim.   King and Murray attempted to rob the intended victim

and shot him three times in the attempt.             Dewey and Daren

later   concealed   King   and   Murray   in   the   trunk   of   their

automobile and drove them out of the State.

      King and Murray were charged with, among other things,

attempted murder.      Both Dewey and Daren were charged with

hindering the prosecution of King and Murray for that charge.

The   Court   of   Criminal   Appeals,    however,   held    that   the

hindering-prosecution charge could not stand.          Specifically,

that court noted that Dewey and Daren had also been charged

with robbery and with conspiracy to commit robbery.               After

repeating the analysis of Washington, the Court of Criminal

Appeals stated:

      "While it is true that the indictment charged them
      with hindering the prosecution of King and Murray
      for the underlying offense of attempted murder, the
      attempted murder charge arose out of the same facts
      supporting the prosecution of Dewey and Daren for
      first degree robbery and for conspiracy to commit
      first degree robbery. To convict them of hindering
      the prosecution of King and Murray under these
      circumstances would, in essence, be convicting them
      of hindering their own prosecution, which is
      prohibited by Washington."


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1130271

Goodwin,      644   So.    2d   at   1274.    Thus,   Goodwin   construed

Washington's narrow holding--that hindering prosecution is not

a lesser-included offense of the underlying criminal conduct

because a person who was a principal in that underlying crime

cannot be charged with hindering his own prosecution for that

conduct--and expanded it to broadly hold that all persons who

are "principals" in the underlying criminal conduct cannot be

charged with hindering the prosecution of another who also

committed that underlying crime.              This rationale has been

repeatedly applied, albeit in situations like Washington in

which   the    court      was   determining   whether   the   offense   of

hindering prosecution was a lesser-included offense of the

charged crime.         In Mangione v. State, 740 So. 2d 444, 456

(Ala. Crim. App. 1998), the Court of Criminal Appeals held:

    "Based on the reasoning in Goodwin[ v. State, 644
    So. 2d 1269 (Ala. Crim. App. 1993)], and Washington
    [v. State, 562 So. 2d 281 (Ala. Crim. App. 1990)],
    the appellant could not be charged with hindering
    prosecution because he was a principal in the
    offense that resulted in the murder charge alleged
    to have been hindered. Although the appellant's
    action may arguably have hindered the prosecution of
    his accomplices, there is no dispute that he also
    hindered his own prosecution. Section 13A–10–43,
    Ala. Code 1975, is inapplicable where an accused has
    rendered assistance to himself."




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1130271

See also Wingard v. State, 821 So. 2d 240, 245 (Ala. Crim.

App. 2001) ("In Washington, Goodwin, and Mangione, this Court

held,   as    a matter of law, that a person charged as an

accomplice to a crime could not have hindered the prosecution

of another charged as the principal.").

    In the instant matter, the Court of Criminals Appeals

relied on the more recent decision of Davenport v. State, 968

So. 2d 27 (Ala. Crim. App. 2005), which restated the holding

of Goodwin.      In issuing the writ in this case, the Court of

Criminal Appeals stated:

         "Kelley, relying on the case of Davenport v.
    State, 968 So. 2d 27 (Ala. Crim. App. 2005), argues
    that she cannot be prosecuted for capital murder
    after she already has been convicted and served her
    sentence for hindering prosecution and abuse of a
    corpse related to the same murders. ... In
    Davenport, this Court reviewed the propriety of
    Davenport's convictions for manslaughter and for
    hindering the prosecution of Davenport's son. In
    holding that Davenport could not be convicted of
    both offenses, this Court stated:

             "'[T]he   appellant    was   convicted   of
             manslaughter for the death of the victim.
             Because the hindering prosecution charge
             arose from the same facts as those
             supporting the manslaughter conviction, she
             could not properly be convicted of both
             manslaughter and first-degree hindering
             prosecution. Therefore, the trial court did
             not have jurisdiction to enter judgments on


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1130271

             both the manslaughter charge and the
             first-degree hindering prosecution charge.'

      "968 So. 2d at 36-37. See also Goodwin v. State, 644
      So. 2d 1269 (Ala. Crim. App. 1993).

           "For the forgoing reasons, this petition for a
      writ of mandamus is hereby granted. Judge Millican
      [is] directed to grant Kelley's motion to bar her
      prosecution for capital murder, as she has already
      been convicted of hindering prosecution and abuse of
      a corpse related to the same facts."

      In   its    mandamus   petition,   the   State    contends     that

Davenport, in holding that an individual cannot be prosecuted

for hindering the prosecution of another when the individual

was   also    a   principal,   or   participated,      in   that   crime,

misstated the law.      We agree.

      "When the language of a statute is plain and
      unambiguous ... courts must enforce the statute as
      written by giving the words of the statute their
      ordinary plain meaning--they must interpret that
      language to mean exactly what it says and thus give
      effect to the apparent intent of the Legislature."

Ex parte T.B., 698 So. 2d 127, 130 (Ala. 1997).

             "'"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 ...."'"




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1130271

DeKalb Cnty. LP Gas Co. v. Suburban Gas, Inc., 729 So. 2d 270,

275 (Ala. 1998) (quoting Blue Cross & Blue Shield v. Nielsen,

714 So. 2d 293, 296 (Ala. 1998), quoting in turn IMED Corp. v.

Systems Eng'g Assocs. Corp., 602 So. 2d 344, 346 (Ala. 1992)).

See also Ex parte Ankrom, 143 So. 3d 58 (Ala. 2013).

    As     quoted    above,       §   13A-10-43(a)      provides         that   one

"commits the crime of hindering prosecution in the first

degree     if,"    with     the   requisite     intent     "to       hinder     the

apprehension, prosecution, conviction or punishment of another

for conduct constituting" certain crimes, "he renders criminal

assistance to such person."               (Emphasis added.)              The plain

language     of    the     Code   section     focuses     on     the      criminal

assistance rendered to another person by the one accused of

hindering.        Whether the accused also participated in the

underlying criminal conduct is not addressed by the Code

section, and there is no language preventing the prosecution

of one who hindered prosecution of another if he or she also

participated in the underlying conduct.                 Although in certain

circumstances providing criminal assistance to an accomplice

might     also    result     in   one's     hindering    his        or    her   own

prosecution,      providing       criminal   assistance        to    another     is


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1130271

nevertheless a distinct act explicitly proscribed by the Code

section.    Nichols v. State, 500 So. 2d 92, 93 (Ala. Crim. App.

1986)     ("[I]t    is     clear   that   hindering        prosecution    is

distinguishable from the underlying prosecutorial offense that

was alleged to have been committed.").               As long as the one

accused of hindering prosecution renders criminal assistance

to another, nothing in the language of the Code section

prevents    his    or    her   prosecution,   even    if    the   accused's

criminal assistance also ultimately resulted in rendering

criminal assistance to himself or herself.            To hold otherwise

creates a broad exception not found in, and arguably contrary

to, § 13A-10-43.         To the extent Davenport holds otherwise, it

misapprehends the law and thus does not provide Kelley a clear

legal right for the mandamus relief she sought in the Court of

Criminal Appeals.

    Kelley argues that because under Davenport a person

cannot be found guilty of hindering prosecution if she was

involved in the underlying offense, then the fact that she was

found guilty of hindering prosecution means, or ultimately

proves, that she was not a principal in the murders in the

instant    case.    Therefore,      she   maintains,        the   State   is


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collaterally estopped from asserting the contrary.     See Ex

parte Howard, 710 So. 2d 460 (Ala. 1997) (discussing the

application of the doctrine of collateral estoppel in the

context of a criminal prosecution).    This would be true if

Davenport accurately stated the law, but, as noted above, it

does not.   A conviction under § 13A-10-43 establishes only

that one hindered the prosecution of another -- it does not

contemplate or address whether the accused also participated

in the underlying criminal conduct.1

                         Conclusion

    For the foregoing reasons, we grant the State's petition

and direct the Court of Criminal Appeals to vacate its writ of

mandamus.




    1
     Kelley further argues that to depart from Davenport in
her case "would be so unfair as to violate due process." She
contends that such a departure -- applied retroactively to her
case -- would violate the Supreme Court's decision in Rogers
v. Tennessee, 532 U.S. 451, 462 (2000), which noted that due
process protects "against vindictive or arbitrary judicial
lawmaking by safeguarding defendants against unjustified and
unpredictable breaks with prior law." Given that Davenport's
holding, which we reject today, clearly deviates from the
plain language of § 13A-10-43(a), we see nothing vindictive,
arbitrary, unjustified, or unpredictable in holding that
decision to be in error.
                             13
1130271

    PETITION GRANTED; WRIT ISSUED.

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

concur.

    Murdock, J., concurs in the result.

    Moore, C.J., recuses himself.




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1130271

MURDOCK, Justice (concurring in the result).

    I respectfully disagree with the main opinion's rejection

today of the holdings in Goodwin v. State, 644 So. 2d 1269

(Ala. Crim. App. 1993), and Davenport v. State, 968 So. 2d 27

(Ala. Crim. App. 2005). In the procedural context in which the

Court of Criminal Appeals decided those particular cases, I

believe that court reached the right result based upon sound

reasoning.   As the Court of Criminal Appeals explained in

Goodwin:

    "While it is true that the indictment charged them
    with hindering the prosecution of [David] King and
    [Xavier] Murray for the underlying offense of
    attempted murder, the attempted murder charge arose
    out of the same facts supporting the prosecution of
    Dewey [Goodwin] and Daren [Goodwin] for first degree
    robbery and for conspiracy to commit first degree
    robbery.   To   convict  them   of   hindering   the
    prosecution of King and Murray under these
    circumstances would, in essence, be convicting them
    of hindering their own prosecution, which is
    prohibited by Washington [v. State, 567 So. 2d 281
    (Ala. Crim. App. 1990)]. Thus, this conviction must
    be reversed and the case remanded."

644 So. 2d at 1274.   Similarly, the Court of Criminal Appeals

correctly reasoned in Davenport:

    "[T]he appellant was convicted of manslaughter for
    the death of the victim. Because the hindering
    prosecution charge arose from the same facts as
    those supporting the manslaughter conviction, she


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1130271

    could not properly be convicted of both manslaughter
    and first-degree hindering prosecution."

968 So. 2d at 36.

    It    is    critical    to   note,   however,   that   Goodwin      and

Davenport simply were postured differently than the present

case, and it is this difference in my view that justifies,

indeed requires, a different result in the present case. That

difference is this:        Both Goodwin and Davenport were cases in

which the defendants were prosecuted as both principals and

"hinderers" at the same time and under circumstances in which

the State was sufficiently aware of the evidence tending to

prove that the defendants acted as principals in the very

crimes in relation to which the State simultaneously sought to

prosecute      them   as   "hinderers."     Here,   at     the   time    it

prosecuted Margie Morgan Kelley for hindering, the State was

unaware of the evidence implicating her as a principal.

    Whether the restraining principle at play in Goodwin and

Davenport be considered double jeopardy (in which case the

exception identified below would be more directly applicable)

or judicial or collateral estoppel (in which case, given the

connection between estoppel doctrines and double jeopardy in




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the criminal context,2 it would apply by analogy), I believe

there is an exception to the restraining principle that

should apply here.   Specifically, the United States Supreme

Court has held that, even in a case in which the Double

Jeopardy Clause itself otherwise would apply because the

defendant had already been prosecuted for a lesser-included

offense, an exception to that bar exists "when the facts

necessary to the greater offense were not discovered despite

the exercise of due diligence before the first trial." Jeffers

v. United States, 432 U.S. 137, 152 (1996) (citing Brown v.

Ohio, 432 U.S. 161, 169 n. 7 (1977); Blackledge v. Perry, 417

U.S. 21, 28-29 and n. 7 (1974); Diaz v. United States, 223

U.S. 442 (1912); and Ashe v. Swenson, 397 U.S. 436, 453 n. 7

(1970)).   This   "exception"   is   properly   extended   to   the

holdings in Goodwin and Davenport and explains why Kelley's

prosecution in the present case is not barred as were the

prosecutions in those cases.




    2
     See Ex parte Howard, 710 So. 2d 460, 463 (Ala. 1997)
(quoting S.W. v. State, 703 So. 2d 427 (Ala. Crim. App. 1997),
and citing Ashe v. Swenson, 397 U.S. 436 (1970), and United
States v. Sanchez, 992 F.2d 1143, 1154 (11th Cir. 1993), on
reconsideration, 3 F.3d 366 (11th Cir. 1994)).
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1130271

    Based on the foregoing, I concur in the result reached by

the main opinion.




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