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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The Court of Criminal Appeals, in an unpublished order,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In its unpublished order, the Court of Criminal Appeals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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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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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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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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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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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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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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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.

Kelley further argues that to depart from Davenport in 1

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.

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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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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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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, it would apply by analogy), I believe 2

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.

See Ex parte Howard, 710 So. 2d 460, 463 (Ala. 1997) 2

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

the main opinion.

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