State of Alabama v. Kenyata Demetris Burton ( 2023 )

Rel: May 5, 2023
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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Alabama Court of Criminal Appeals
OCTOBER TERM, 2022-2023
_________________________
CR-20-0844
_________________________
State of Alabama
v.
Kenyata Demetris Burton
Appeal from Calhoun Circuit Court
(CC-15-1494)
COLE, Judge.
The State of Alabama appeals the Calhoun Circuit Court's pretrial
order dismissing Kenyata Demetris Burton's 2015 capital-murder
indictment, finding that it violated Burton's right against being placed
twice in jeopardy. For the following reasons, we reverse the circuit court's
judgment.
CR-20-0844
Facts and Procedural History
In 2013, a Calhoun County grand jury indicted Burton for the
murder of Dequireqa Lashawn Royal, a violation of § 13A-6-2, Ala. Code
1975. Burton moved to dismiss that indictment because, he said, his
murder charge was based solely on the "uncorroborated testimony" of
accomplices. (C. 239.) The circuit court held a hearing on Burton's
motion, 1 and, at that hearing, the State presented evidence to show that
it could corroborate the accomplice testimony. The circuit court took
Burton's motion under advisement and later reconvened the parties for
further proceedings on Burton's motion. After hearing arguments from
Burton and the State, the circuit court granted Burton's motion to
dismiss his indictment, explaining, in part:
"I can't let the case go forward. I'm dismissing the indictment
at this time. I don't think prejudice would attach anyway in
a felony case of this nature until a jury is sworn in. That's the
information under criminal procedure, as I understand it,
once a jury is sworn, then prejudice attaches. ... So the fact
that this case is dismissed today does not in any way prevent
the State from re-presenting this case to a grand jury for an
indictment or for further prosecution if they get other
sufficient evidence or what they think is sufficient for
1A copy of the court reporter's transcript of the hearings on Burton's
motion to dismiss his 2013 murder indictment was admitted, without
objection, as Defendant's Exhibit 1 at the hearing on his motion to
dismiss his 2015 capital-murder indictment. (R. 10.)
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prosecution. But at this point, it doesn't exist, and there is no
way I can let a case like this go to a jury."
(C. 327-28.) The circuit court memorialized its decision in a written
order.2
In accordance with the circuit court's judgment dismissing Burton's
2013 indictment, in August 2015, a Calhoun County grand jury
reindicted Burton for killing Royal. (C. 10.) Burton's 2015 indictment
elevated his 2013 charge from murder to capital murder, a violation of §
13A-5-40(a)(2), Ala. Code 1975. (C. 10.) In response, Burton moved to
dismiss his 2015 indictment, arguing that the 2015 indictment violated
double-jeopardy principles. (C. 120-24.) Burton's double-jeopardy
argument was premised on his belief that the circuit court's dismissal of
his 2013 indictment was tantamount to an acquittal, explaining, in part:
"[I]t is plain that [the circuit court] evaluated the State's
evidence against Burton in the earlier proceedings and
determined that there was legally insufficient [evidence] to
sustain a conviction as a matter of law. As such, by way of
dismissal, the court acted on its view that the prosecution had
failed to prove its case and granted a 'dismissal' but an
acquittal for purposes of the Double Jeopardy purposes. This
Court's prior Order of Dismissal was not a dismissal on a
2Although the record on appeal does not include the circuit court's
2014 order, both parties agree that the circuit court's order dismissed the
2013 indictment "without prejudice." (See State's brief, p. 9; and Burton's
brief, p. 4.) (See also R. 245.)
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procedural ground or a technical ground such as a defective
indictment. ...
"In the present case, the indictment against Burton was
dismissed because the State failed to submit sufficient
evidence to corroborate the co-Defendant['s] testimony. ...
"....
"... [T]his Court's previous ruling on the motion to
dismiss was an adjudication on the sufficiency of the evidence;
therefore, it is considered a legal acquittal as a matter of law.
"Accordingly, under the Alabama Rules of Criminal
Procedure, the State should have appealed the order granting
the motion to dismiss under Rule 15.7. The State failed to use
the proper remedy at the time and as such they should be
prohibited and estopped from further prosecution."
(C. 121-22 (paragraph numbering omitted).)
The State argued that the circuit court was without authority to
enter a pretrial dismissal of Burton's 2013 indictment "based upon its
own evaluation of the proposed evidence or lack thereof," but it conceded
that, because it had failed to object to the circuit court's actions, the State
had waived "this limitation upon the power of the Court to enter a
pretrial adjudication on the merits of the case and sufficiency of the
evidence prior to trial." (C. 118.) The State argued, however, that
Burton's 2015 indictment and his prosecution for capital murder did not
violate double-jeopardy principles because the circuit court "expressly
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CR-20-0844
stated on the record that the dismissal of the previous case was without
prejudice and that there would be no bar to a subsequent prosecution."
(C. 118.)
On March 14, 2019, the circuit court held a hearing on Burton's
motion to dismiss his 2015 indictment. (R. 4.) At that hearing, both
Burton and the State argued about the effect the circuit court's dismissal
of Burton's 2013 indictment had on the State's ability to prosecute Burton
for capital murder on the 2015 indictment. The court informed the
parties that it would reserve its ruling on Burton's motion to dismiss. (R.
34-35.) Over a year later, on June 3, 2020, the circuit court held another
hearing on Burton's motion to dismiss his 2015 indictment, during which
the circuit court again heard arguments from the parties. (R. 228-69.)
On July 23, 2021, the circuit court issued an order granting Burton's
motion to dismiss. (C. 202.) The State timely appealed.
Discussion
On appeal, the State argues that the circuit court erred when it
granted Burton's motion to dismiss his 2015 indictment because, it says,
the circuit court's dismissal of Burton's 2013 indictment did not put
Burton in jeopardy. Burton, on the other hand, argues that the circuit
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CR-20-0844
court's judgment dismissing his 2013 indictment "constitute[d] an
acquittal as a matter of law" and, thus, the 2015 indictment and his
prosecution under that indictment violates his right to be free from being
placed in jeopardy twice. (Burton's brief, p. 9.)
Although Burton moved to dismiss his 2013 indictment because the
State's evidence was insufficient and the circuit court dismissed Burton's
2013 indictment on that basis, a circuit court does not have the authority
to dismiss an indictment before trial based on the sufficiency of the
State's evidence. Rule 13.5(c)(1), Ala. R. Crim. P., provides four bases
upon which a defendant may move to dismiss an indictment and upon
which a circuit court may grant such a motion before a trial: (1)
"objections to the venire," (2) "the lack of legal qualifications of an
individual grand juror," (3) "the legal insufficiency of the indictment,"
and (4) "the failure of the indictment to charge an offense." Burton's
motion to dismiss his 2013 indictment was not based on any of these four
grounds. Instead, as explained above, Burton's motion was based on (and
the circuit court rested its judgment on) the fact that State did not have
sufficient evidence to corroborate accomplice testimony as is required by
§ 12-21-222, Ala. Code 1975.
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CR-20-0844
This Court has explained that
"there is no pretrial means to dismiss the charges against a
defendant based on the insufficiency of the evidence. In State
v. Bethel, 55 So. 3d 377 (Ala. Crim. App. 2010), we addressed
this issue and stated:
" '….
" ' "Rule 13.5(c)(1) does not
provide for the dismissal of an
indictment based on the insufficiency
of the evidence or, as in this case, a
possible lack of evidence. See State v.
Edwards, 590 So. 2d 379 (Ala. Crim.
App. 1991) (establishment of the
corpus delicti requires proof of facts by
the State so entwined with the merits
of the case that a decision as to whether
it had been proved should not be made
before trial but should be postponed
until trial); State v. McClain, 911 So. 2d
54 (Ala. Crim. App. 2005)(trial court
cannot dismiss the indictment based on
a lack of evidence)."
" '[State v. Foster, 935 So. 2d 1216, 1216-17 (Ala.
Crim. App. 2005]. See State v. Anderson, 8 So. 3d
1033 (Ala. Crim. App. 2008). See also United
States v. Sharpe, 438 F.3d 1257, 1263 (11th Cir.
2006) ("It is well-settled that 'a court may not
dismiss an indictment ... on a determination of
facts that should have been developed at trial.'
United States v. Torkington, 812 F.2d 1347, 1354
(11th Cir. 1987).")
" '....
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CR-20-0844
" 'The circuit court impermissibly dismissed
the indictment against Bethel for two reasons. As
this Court has previously held, Rule 13.5 does not
permit the dismissal of an indictment based on
insufficient evidence. Thus, the circuit court erred
when it dismissed the charge against Bethel based
on the insufficiency of the evidence. Further,
because an inmate taking part in the community-
corrections program may be charged with first-
degree escape under the appropriate
circumstances, the circuit court likewise could not
dismiss the indictment against Bethel on this
ground. In reaching this determination, however,
we do not express an opinion as to the efficacy of
the first-degree-escape charge against Bethel.
That determination is best left to a jury or other
finder of fact.'
"55 So. 3d at 379-80. See State v. Robertson, 8 So. 3d 356 (Ala.
Crim. App. 2008).
"In fact, this Court first recognized this principle in
State v. Edwards, 590 So. 2d 379 (Ala. Crim. App. 1991), when
it addressed this issue as it related to Rule 15.5(c)(1), Ala. R.
Crim. P. Temp (now Rule 13.5(c)(1), Ala. R. Crim. P.):
" 'Establishing the corpus delicti requires
proof of facts by the state so entwined with the
merits of the case that a decision as to whether it
had been proved should not be made prior to trial
but should be postponed until trial. We think that
our conclusion is in keeping with good practice and
with the intentions of the rules.'
"590 So. 2d at 380."
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CR-20-0844
State v. Starks, [Ms. CR-21-0048, May 6, 2022] ___ So. 3d ___, ___ (Ala.
Crim. App. 2022) (footnotes omitted). So, as the parties agree, the circuit
court's judgment dismissing Burton's 2013 indictment before a trial
based on the State's ability to corroborate accomplice testimony was
without any legal basis. But as this Court and the Alabama Supreme
Court have recognized, the State can invite this error:
"In Ex parte Worley, 102 So. 3d 428 (Ala. 2010), the
Supreme Court held that, although the circuit court dismissed
the charges against Worley based on a pretrial motion that
argued the lack of sufficiency of the evidence, the State failed
to argue that that motion was not filed at the appropriate
time. The Supreme Court held that the State invited the
error:
" 'The State should have argued to the trial
court that the appropriate time for it to consider
Worley's motion to dismiss would have been at the
conclusion of the State's case, not before the trial,
and that, moreover, when the time to consider the
motion did come, the motion should be denied for
the following reasons, thereby setting forth the
proffer. Instead, the State proceeded immediately
to a discussion of the evidence it expected to be
presented at trial, without advising the trial court
that its proffer was premature and that it would
be error for the trial court to rely on it.'
"102 So. 3d at 434."
State v. Starks, ___ So. 3d at ____. So, although the circuit court's
dismissal of Burton's 2013 indictment was error, the State invited that
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CR-20-0844
error here by presenting evidence to the circuit court showing how it
could satisfy § 12-21-222, Ala. Code 1975, and by failing to object to the
circuit court's pretrial dismissal of Burton's indictment based on the
sufficiency of the evidence.3 Thus, the question we must answer here is
not whether the circuit court's 2013 judgment was correct, but, rather,
whether the circuit court's pretrial dismissal of Burton's 2013 indictment
based on the sufficiency of the State's evidence triggers the protections of
the Double Jeopardy Clause, preventing the State from prosecuting
Burton on his 2015 indictment. This question turns on whether the
circuit court's 2013 order acted as an acquittal.
Burton takes the position that the circuit court's 2013 judgment
dismissing his indictment was tantamount to an acquittal, making the
State's prosecution of Burton's 2015 indictment a violation of double-
jeopardy principles. The State, on the other hand, takes the position that
the circuit court did not acquit Burton of murder when it dismissed his
2013 indictment. The State says that the circuit court did not intend for
3The State conceded during the hearing on Burton's motion to
dismiss his 2015 indictment that it had waived any arguments
concerning the propriety of the circuit court's judgment because it had
invited the circuit court's error.
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CR-20-0844
its judgment to be final, a fact that, it says, is evidenced by the circuit
court's qualifying that the dismissal was "without prejudice" and
explaining to the parties that the State would not be prevented from
reindicting Burton.
In Lane v. State, 327 So. 3d 691 (Ala. Crim. App. 2020), this Court
explained "the difference between acquittals and procedural dismissals"
in the context of a circuit court's granting a motion for a judgment of
acquittal after a jury had been empaneled and sworn as follows:
" '[O]ur cases have defined an acquittal to
encompass any ruling that the prosecution's proof
is insufficient to establish criminal liability for an
offense. See [United States v. Scott, 437 U.S. 82,
98, 98 S. Ct. 2187, 57 L. Ed. 2d 65 (1978)], and
n.11; Burks v. United States, 437 U.S. 1, 10, 98 S.
Ct. 2141, 57 L. Ed. 2d 1 (1978); United States v.
Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.
Ct. 1349, 51 L. Ed. 2d 642 (1977). Thus an
"acquittal" includes "a ruling by the court that the
evidence is insufficient to convict," a "factual
finding [that] necessarily establish[es] the
criminal defendant's lack of criminal culpability,"
and any other "rulin[g] which relate[s] to the
ultimate question of guilt or innocence." Scott, 437
U.S. at 91, 98, and n. 11, 98 S. Ct. 2187 (internal
quotation marks omitted). These sorts of
substantive rulings stand apart from procedural
rulings .... Procedural dismissals include rulings
on questions that "are unrelated to factual guilt or
innocence," but "which serve other purposes,"
including "a legal judgment that a defendant,
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CR-20-0844
although criminally culpable, may not be
punished" because of some problem like an error
with the indictment. Id., at 98, 98 S. Ct. 2187.'
"Evans v. Michigan, 568 U.S. 313, 318-19, 133 S. Ct. 1069, 185
L. Ed. 2d 124 (2013) (emphasis added)."
Lane, 327 So. 3d at 761-62.
In Lane, this Court rejected Lane's argument that, what the circuit
court called a "judgment of acquittal" when it vacated one of Lane's
murder convictions at his first trial, was actually an acquittal for double-
jeopardy purposes, reasoning:
"Here, although styled a 'judgment of acquittal' as to
Lane's intentional-murder conviction, the trial court's ruling
was not a judgment of acquittal because it was not ' "a ruling
that the evidence [was] insufficient to convict" ' Lane of
intentional murder or a finding that ' "necessarily
establish[es] [Lane's] lack of criminal culpability" ' for that
offense. Evans[ v. Michigan], 568 U.S. [313,] 319, 133 S. Ct.
1069 [(2013)] (quoting United States v. Scott, 437 U.S. 82, 91
and 98, 98 S. Ct. 2187, 57 L. Ed. 2d 65 (1978)). See Evans,
568 U.S. at 322, 133 S. Ct. 1069 ('[L]abels do not control our
analysis in this context; rather, the substance of a court's
decision does.'). Rather, it is obvious that the trial court
intended to vacate Lane's intentional-murder conviction
solely because the conviction violated double-jeopardy
principles. This much is evident not only from the face of the
trial court's order, but also from the fact that the basis for the
court's ruling was this Court's decision in Cooper v. State, 912
So. 2d 1150 (Ala. Crim. App. 2005), in which this Court
remanded the case for the trial court to vacate the defendant's
intentional-murder conviction because the defendant had also
been convicted of capital murder for killing the same victim,
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which, this Court held, violated double-jeopardy principles.
Cooper, 912 So. 2d at 1152-53. Thus, the trial court's ruling
was clearly ' "unrelated to factual guilt or innocence," ' Evans,
568 U.S. at 319, 133 S. Ct. 1069 (quoting Scott, 437 U.S. at 99,
98 S. Ct. 2187), and, instead, was merely ' "a legal judgment
that [Lane], although criminally culpable, [could] not be
punished" ' for both the intentional-murder conviction and the
capital-murder conviction. Evans, 568 U.S. at 319, 133 S. Ct.
1069 (quoting Scott, 437 U.S. at 98, 98 S. Ct. 2187). Indeed,
had the trial court in Lane's first trial concluded that there
was insufficient evidence to find Lane guilty of the intentional
murder of Theresa, the court would have been required to
enter a judgment of acquittal as to all three of Lane's
convictions because the intentional murder of Theresa was an
essential element of each conviction. Towles[ v. State], 263
So. 3d [1076,] 1085 [(Ala. Crim. App. 2018)]. Therefore,
because Lane was not acquitted of the intentional murder of
Theresa in his first trial, his capital-murder convictions in
this trial do not violate double-jeopardy principles.
Accordingly, Lane is not entitled to relief on this claim."
Lane, 327 So. 3d at 762.
Here, both parties ask this Court to engage in a similar analysis to
determine whether the circuit court's order was a procedural dismissal
or an acquittal. Burton asks this Court to look past the circuit court's
words "without prejudice" in its order dismissing Burton's 2013
indictment and, instead, to focus on the fact that the circuit court found
that the State's evidence was insufficient because it could not corroborate
the accomplice testimony. The State asks us to look past the fact that
the circuit court made a ruling on the sufficiency of the State's evidence
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CR-20-0844
and, instead, to focus on the fact that the circuit court's expressed intent
was to dismiss the case "without prejudice" so that the State could
reindict Burton if it found evidence to corroborate the accomplice
testimony. But we do not need to engage in such a debate here because
Burton's double-jeopardy argument suffers from one fatal flaw: Burton
was never placed in jeopardy on his 2013 indictment.
Before a person can suffer "double jeopardy" he must first "suffer
jeopardy." See Serfass v. United States, 420 U.S. 377, 393, 95 S. Ct. 1055,
1065, 43 L. Ed. 2d 265, 277 (1975) ("[A]n accused must suffer jeopardy
before he can suffer double jeopardy."). And one does not "suffer
jeopardy" until there is a "risk of determination of guilt." Serfass, 420
U.S. at 391-92, 95 S. Ct. at 1064. See also Black's Law Dictionary 963
(10th ed. 2014) (defining "jeopardy" as "[t]he risk of conviction and
punishment that a criminal defendant faces at trial"). Here, although
the circuit court based its 2013 dismissal of Burton's indictment on the
sufficiency of the State's evidence, it did so pretrial and at a time when
Burton faced no risk of a determination of guilt. In Alabama, that risk
generally does not arise until a jury has been impaneled and sworn and
the indictment is read to the jury. See Ex parte Collins, 385 So. 2d 1005,
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1007 (Ala. 1980) ("Alabama courts have held that jeopardy attaches when
a jury has been impaneled and sworn, and the indictment has been read
to the jury."). "Since a pretrial dismissal of a pending charge does not
involve a determination of guilt, it is not the equivalent of an acquittal."
State v. Betterton, 527 So. 2d 743, 747 (Ala. Crim. App. 1986). Further,
the parties had not agreed that the circuit court could conduct a bench
trial to determine Burton's guilt or innocence in relation to the original
murder charge. In other words, Burton, whose indictment was dismissed
based on the sufficiency of the State's evidence but without prejudice and
before a trial had commenced, has not suffered jeopardy and, therefore,
cannot suffer "double jeopardy."
Conclusion
Because the circuit court's pretrial dismissal without prejudice of
Burton's 2013 indictment did not involve a determination of guilt and it
occurred prior to jeopardy attaching to the 2013 indictment, the circuit
court's dismissal of Burton's 2015 indictment on double-jeopardy grounds
was incorrect. Accordingly, we reverse the circuit court's judgment and
remand this case to the circuit court for that court to vacate its judgment
and reinstate Burton's capital-murder indictment.
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REVERSED AND REMANDED.
Windom, P.J., and McCool and Minor, JJ., concur. Kellum, J.,
concurs in the result.
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