T.D.M. v. State of Alabama.

117 So. 3d 921, 2010 WL 2546423, 2010 Ala. Crim. App. LEXIS 49
CourtCourt of Criminal Appeals of Alabama
DecidedJune 25, 2010
DocketCR-08-0355
StatusPublished
Cited by2 cases

This text of 117 So. 3d 921 (T.D.M. v. State of Alabama.) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
T.D.M. v. State of Alabama., 117 So. 3d 921, 2010 WL 2546423, 2010 Ala. Crim. App. LEXIS 49 (Ala. Ct. App. 2010).

Opinion

MAIN, Judge.

T.D.M. appeals his convictions for first-degree sexual abuse, see § 13A-6-66, Ala. Code 1975, and first-degree sodomy, see § 13A-6-63, Ala.Code 1975. He was sentenced to 20 years’ imprisonment for the sodomy conviction and 5 years’ imprisonment for the sexual-abuse conviction, the sentences to run concurrently.

I.

T.D.M. argues that his rights against double jeopardy were violated because the trial court allowed the jury to change its verdict after the jury had been discharged.

The record indicates that after the jury had finished its deliberations and returned to the courtroom, the following occurred:

“THE COURT: Ladies and gentlemen, it’s my understanding the jury has reached a verdict in this case. The Court’s not going to tolerate any outbursts or any response from anyone in reference to the verdict. Once the jury reads the verdict, we’re going to allow the jury to go out and we’re going to— everybody’s going to sit and remain silent until the jury leaves. Then one family’s going to go out at a time. So does everybody understand that?
“Bring them in.
“(The jury returned to the courtroom at 5:19 p.m., after which the following proceedings were had before the Court and jury.)
“THE COURT: You may be seated. Has the jury reached a verdict?
“FOREPERSON: We have, Your Honor.
“THE COURT: Please read the verdict.
“FOREPERSON: We, the jury, find the defendant, [T.D.M.], guilty of the offense of sexual abuse in the first degree as charged in count one of the indictment.
“We, the jury, find the defendant, [T.D.M.], not guilty of the offense of sodomy as charged in count two of the indictment.
“THE COURT: What says the State?
“[Prosecutor]: The State’s satisfied. Your Honor.
“THE COURT: What says the defendant?
“[Defense counsel]: We don’t want you to poll, Judge, if that’s what you’re asking. And we want to make a posttrial motion.
[924]*924“THE COURT: Ladies and gentlemen, on behalf of the lawyers involved in this case; our Circuit Clerk, Mr. Ervin; the Sheriff; and the other judges in this circuit, we thank you for your time. We hope you have enjoyed your experience. This concludes your jury service for the week. Mr. Ervin’s office has prepared your checks and your excuses. You will now be free to go. However, if you desire to stay around and talk to the family members or any of lawyers, you may. That is up to you. Again, it was a pleasure meeting you. Mr. Ervin will take your badges. He will also hand you the information you need to go.
“Ladies and gentlemen, you will remain seated until after the jurors have been excused.
“(The jury was excused at 5:21 p.m.)
“THE COURT: [T.D.M.], based on the jury finding you guilty of the offense of sexual abuse in the first degree, I’m going to find you guilty of the offense of sexual abuse in the first degree. Based on the jury’s verdict of finding you not guilty of the offense of sodomy in the first degree, I’m going to find you not guilty of the offense of sodomy in the first degree.
“Do y’all want a presentence report?
“[Defense counsel]: Yes, Your Honor.
“THE COURT: Is the defendant going to remain on the same bond?
“[Prosecutor]: Yes, sir. Your Honor.
“THE CLERK: Excuse me. Judge.
“(WHEREUPON, an off-the-record discussion was held.)
“THE COURT: The foreperson signed the wrong one.
“[Defense counsel]: What happened?
“THE COURT: They read the wrong verdict form. She signed the wrong verdict form.
“Bring the foreperson in....
“THE COURT: [Foreperson], you handed the Court the jury verdicts and you represented to the Court that you gave the Court incorrect information.
“FOREPERSON: Yes, sir.
“THE COURT: Explain that to the Court.
“FOREPERSON: Well, when I stood up to read, I realized that I had signed the wrong one. We agreed on both counts of guilty.
“THE COURT: And the form you handed me is indicating not guilty?
“FOREPERSON: Right.
“THE COURT: And you are saying that is not the jury’s verdict?
“FOREPERSON: No. That wasn’t our verdict.
“THE COURT: What says the State?
“[Prosecutor]: Your Honor, it appears that there has been a clerical mistake. And I think that they should be allowed to adjust that.
“[Defense counsel]: Judge, under double-jeopardy laws, the jury — she signed the verdict, she published the jury verdict and the State did not request that the jury be polled. The Court actually entered judgment after that. Under double-jeopardy laws, you can’t go back and change it. It is what it is. It wouldn’t be any different if they read a guilty verdict. Once they make the verdict and they publish it and the Court accepts it and neither party asks for a polling of the jury, neither party objected to anything about the verdicts and the Court has actually entered judgment and that prevents him from being put back in jeopardy for that crime.
“[Prosecutor]: Your Honor, this case is not being tried again. This is part of the process. I mean, she — the foreman made a mistake. We don’t suspect that [925]*925there’s been any bad faith on her part, just human error.
“... They just want to go in and correct what the verdict should accurately reflect, and that’s a guilty verdict on both counts.
“THE COURT: We’ve put all the information on the record. I’m going to bring the jurors back in, and let them make their representation to the Court. And I’ll give /all a chance to make an issue.... We’ll let the jurors correct it and explain as to the reason why they did this.
“(The jury returned to the courtroom at 5:30 p.m., after which the following proceedings were had before the Court and jury.)
“THE COURT: [Foreperson], it’s my understanding you would like to make a correction for the Court concerning the verdict. What is the jury’s verdict as to count two in the indictment?
“FOREPERSON: We, the jury, find the defendant, [T.D.M.], guilty of the offense of sodomy first degree as charged in count two of the indictment.
“THE COURT: We’re going to start down here on the end.
“(Each juror, upon being asked by the Court, ‘Is that your verdict?’ answered in the affirmative.)
“(Short recess.)

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Related

T.D.M. v. State
117 So. 3d 941 (Court of Criminal Appeals of Alabama, 2012)
Ex Parte T.D.M., 1091645 (Ala. 10-28-2011)
117 So. 3d 933 (Supreme Court of Alabama, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
117 So. 3d 921, 2010 WL 2546423, 2010 Ala. Crim. App. LEXIS 49, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tdm-v-state-of-alabama-alacrimapp-2010.