REL:09/26/2014

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter
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# SUPREME COURT O F ALA BAMA

SPECI AL TE RM, 2 014

_____ _____ _____ _____ _____ 11302 71

_____ _____ _____ _____ _____ Ex pa rte S tate of Al abama
PETIT ION F OR WR IT OFMANDAMUS (In r e: Expart e Mar gie MorganKell ey (In r e: St ate o f Alabama

v. Margi e Mor gan Kelley )) (Etow ah Ci rcuitCour t, CC -13-3 18.01 , CC- 13-31 8.02, and CC-13 -318. 03; C ourt of Cr imina l App eals, CR-1 2-176 5) SHAW, Just ice.
Th e Court of Crimi nal Appea ls, in an unpub lishe d order , issue d a writ of manda mus direc ting the trial court in the11302 71

under lying case to "bar" the prose cutio n of the respo ndent , Margi e Mor gan K elley , who had been indic ted f or th ree c ounts of capit al murde r. Ex parte Kelle y (No. CR-12 -1765 , November 21, 2013) , ___ So. 3d ___ (Ala. Crim. App. 2013) (tabl e). The
State of A labam a pet ition s thi s Cou rt fo r a w rit o f man damus direc ting the C ourt of Cr imina l App eals to va cate its o rder.
See R ule 2 1(e)( 1), A la. R . App . P. ("If an or igina l pet ition has been grant ed by the court of appea ls, revie w may be had by f iling in the supre me court a petit ion for writ of mand a m u s

. . . direc ted to the court of appea ls ...." ). We gran t t h e petit ion a nd is sue t he wr it.

Facts and Proce dural Hist ory
In its unpub lishe d order , the Court of Crimi nal Appe als
set o ut th e fac ts an d pro cedur al hi storyof t his c ase:

"Marg ie Morga n Kelle y filed this petit ion for a writ of manda mus reque sting that this Court direc t Judge Willi am Allen Milli can to grant her motio n to bar her prose cutio n for capit al murde r becau se, she says, to prose cute her for murde r after she has been convi cted of hinde ring prose cutio n and abuse o f a corps e relat ed to the same murde rs viola tes the Doubl e Jeopa rdy Claus e. In 2010, Kelle y was charg ed with hinde ring the prose cutio n of her husba nd in the murde rs of Rocky Morga n and James Bachelor and with a b u s e of a corps e. In Augus t 2011, she plead ed guilt y to those charg es and has since compl eted her sente nce. Kelle y's husba nd, Rober t Kelle y, has been charg ed with and plead ed guilt y to murde ring Morga n

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and Bache l o r . As a part of the plea agree ment, Rober t Kelle y impli cated his wife in the murde rs. In March 2013, Kelley was indic ted for three count s of capit al murde r for alleg edly murde ring Morga n and Bache lor durin g o n e cours e of condu ct and for murde ring Morga n for pecun iary gain. Kelle y moved that the capit al murde r charg es be dismi ssed base d on colla teral estop pel and doubl e-jeo pardy groun ds. After a heari ng, Judge Milli can denie d the motio n. Kelle y then f i l e d this petit ion for a writ of manda mus w ith t his C ourt. "
As noted above and discu ssed in more detai l below , the
Court of Crimi nal Appea ls grant ed Kelle y's petit i o n . The
State then file d the inst ant p etiti on wi th th is Co urt. Stand ard o f Rev iew "Mand amus is an extra ordin ary remed y and will be issue d only when there is '(1) a clear l e g a l right in the petit ioner to the order soug h t ; ( 2 ) an imper a t i v e duty upon the respo ndent to perfo rm, accompanie d by a refus al to do so; (3) the lack of anoth er adequ ate remed y; and (4) prope rly invok e d juris dicti on of t h e court .' Ex parte Alfab , Inc., 586 So. 2d 889, 891 (Ala. 1991)
. ' A d e c ision of a court of appea ls on an origi nal petit ion for writ of manda mus or prohi bitio n or other extra ordin ary writ (i.e. , a decis ion on a petit ion f i l e d in the court o f a ppeal s) may be revie wed de novo in the supre m e court ....' Rule 21(e )(1), Ala. R. App. P ." Ex pa rte S harp, 893 So. 2 d 571 , 573 (Ala . 200 3). Discu ssion Hinde ring prose cutio n in the first degre e is descr ibed in Ala. Code 1975, § 13 A-10- 43(a) , as follo ws:

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"A perso n commi ts the crime of hinde ring prose cutio n in the first degre e if with the inten t to hinde r the appre hensi on, prose cutio n, convi ction or punis hment of anoth er for condu ct const ituti ng a murde r o r a Class A or B felon y, he rende rs crimi nal assis tance to su ch pe rson. "
A perso n rende rs "crim inal assis tance " to anoth er if h e or she: "(1) Harbo rs or conc eals such perso n;

"(2) Warns such perso n of impen ding disco very or appre hensi on; excep t that this subdi visio n does not a p p l y to a warni ng given in conne ction with an effor t to b r i n g anoth er into compl iance with the law; "(3) Provi des such perso n with money , trans porta tion, weapo n, disgu ise or other means of avoid ing d iscov ery o r app rehen sion; "(4) Preve nts or obstr ucts, by m e ans of force , decep tion or intim idati on, anyon e excep t a tresp asser from perfo rming an act that might aid in the d iscov ery o r app rehen sion of su ch pe rson; or "(5) Suppr esses , by an act of conce almen t, alter ation or destr uctio n, any physi cal evide nce that might aid in the disco very o r appre hensi on of such perso n." Ala. Code 1975, § 13 A-10- 42. The langu age of § 13A-1 0-43( a) does not provi de that a perso n may be charg ed with and convi cted of rende ring crimi nal assis tance to h imsel f or of hi nderi ng hi s own pros ecuti on:

411302 71 "Neit her the statu tory defin ition of hinde ring

prose cut i o n in the first degre e, § 13A-1 0-43, nor the statu tory defin ition of crimi na l assis tance , § 13A-1 0-42, 'stat es that a perso n may rende r crimi nal assis tance t o h imsel f. If the legis latur e had so inten ded, it could have inser ted that provi sion in the statu te. Inste ad the legis latur e used the words "pers on" or "such perso n" throu ghout those secti ons and d id no t ref er to the under lying prin cipal .'" Washi ngton v. State , 562 So. 2d 281, 282 ( A l a . Crim. App. 1990) (quot ing Peopl e v. Merce des, 121 Misc. 2d 419, 420, 467
N.Y.S .2d 9 73, 9 74 (N .Y.Su p.Ct. 1983 )).
In Washi ngton , the court was requi red to deter mine wheth er hinde ring prose cutio n was a lesse r offen se i nclud ed in the offen se o f r o b b ery. In holdi ng that it was not a lesse r-inc luded offen se, the court state d that "'[t] he charg e of hi nderi ng pr osecu tion is in appli cable to a pers on ch arged

as a princ ipal. '" 562 So. 2d at 28 2 ( q u o t i n g Merce des, 121 Misc. 2d a t 420 , 467 N.Y. S.2d at 97 4. T he co urt t hen n oted:

"The histo ry of the off e n s e of hinde ring prose cuti o n in Alaba ma shows that the offen se has been limit ed to pers ons o ther than princ ipals
.

"'Und er Alaba ma law th e condu ct descr ibed under § 13A-1 0-42 and prohi bited by §§ 1 3 A

- 10-43 and 13A-1 0-44[ , Ala. Code 1975, ] would ordin arily make one an "acce ssory after the fact. " Forme r §§ 13-9- 1 and 13-9- 2[, Ala. Code 1975]
. Forme r § 13-9- 1 provi ded that all perso ns conce rned in the co mm i ssion of a felon y,

511302 71 wheth er they direc tly commi t the act const ituti ng the offen se or aid or abet in its commi ssion , will be tried and punis hed as princ ipa l s . Parso ns v. State , 33 Ala. App. 309, 33 So. 2d 164 (1 9 4 8)[,] estab lishe d that parti cipat ion in the crime may be prove n by circu mstan tial evide nce. Forme r § 13-9- 2 dealt with acces sorie s after the fact and provi ded [ t hat] any perso n, other than paren t, child , broth er, siste r, husba nd or wife o f the offen der, w h o gives aid to the offen der with t h e inten t to enabl e him to a v o id or escap e from ar r est, trial , convi ction , or punis hment in conne ction with a felon y may be im p r i s o ned in count y jail up to six month s and /or f ined up to $1,0 00.00 .' "Comm entar y to §§ 13A-1 0-42 throu gh 13A-1 0-44 (emph asis added ). 'Alth ough Secti on 13-9- 1 has been repea led, there is--f or purpo ses of indic tment and trial --sti ll no disti nctio n betwe en princ ipals and acces sorie s under Alaba ma law.' Lewis v. State , 469 So. 2d 1291, 1 297 (Ala. Cr. App. 1984) , affir med, 469 S o. 2d1301 (Ala . 198 5)." Washi ngton , 562 So. 2d at 283. On the basis of this analy sis, the court in Washi ngton held th at "hind ering prose cutio n is
not a less er in clude d off ense of ro bbery ." I d. The analy sis i n Washi ngton was subse quent ly appli ed outsi de the conte xt of deter minin g whet h e r hinde ring
prose cutio n is a lesse r - i n clude d offen se. In Goodw in v. State , 644 So. 2d 1269 (Ala. Crim. App. 1993) , four indiv idual s, Dewey Goodw in, Daren Goodw in, David King , a nd

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Xavie r Murra y, engag ed in a schem e to commi t a robbe ry. Dewey and D aren drove King and Murra y to the h ouse of th e int ended victi m. King and Murra y attempted to rob the inten ded victi m and shot him three times in the a t t e mp t . Dewey and Daren later conce aled King and Murra y in the trunk o f t h eir
autom obile and drove themout of th e Sta te. King and Murra y were charg ed with , among other thing s, attempted murde r. Both Dewey and Daren were char g e d w ith hinde ring the prose cutio n of King and Murra y for that charg e. The Court of Crimi nal Appea ls, howev er, h e l d t hat the hinde ring- prose cutio n cha rge c ould not s tand. Spe cific ally, that court noted that Dewey and Daren had a l s o been charg ed with robbe ry and with consp iracy to commi t robbe ry. A f t er repea ting the analy sis of Washi ngto n, the Court of Crimi nal Appea ls st ated: "Whil e it is true that the indic t m ent charg ed them with hind e r ing the prose cutio n of King and Murra y for the under lying offen se of attempted murde r, the attempted murde r charg e arose out of the same facts suppo rting the p rosec ution of Dewey and Daren for first degre e robbe ry and for con s p iracy to commi t first degre e robbe ry. To conv ict them of hinde ring the prose cutio n of King and Murra y under these circu mstan ces would , in essen ce, be convi cting them of hinde ring their own prose cutio n, which is prohi bitedby W ashin gton. "

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Goodw in, 644 So. 2d a t 1274. Thus, Goodw in const rued Washi ngton 's narro w holdi ng--t hat hinde ring prose cutio n is not a les ser-i nclud ed of fense of t he un derly ing c rimin al co nduct becau se a perso n who was a princ ipal in that under lying crime

canno t be charg ed with hinde ring his own prose cutio n for that condu ct--a nd expan ded it to broad ly hold that all perso ns who

are "prin cipal s" in the under lying crimi nal condu ct canno t be charg ed with hinde ring the prose cutio n of anoth er who also commi tted that under lying crime
. This ratio nale has b e en repea tedly appli ed, albei t in situa tions like Washi n gton in which the court was deter minin g wheth er the o f f e nse of hinde ring prose cutio n was a lesse r-inc luded offen se o f t he charg ed crim e . I n Mangi one v. State , 740 So. 2d 444, 456 (Ala. Crim . App . 199 8), t he Co urt o f Cri minal Appe als h eld:

" Based on the reaso ning in Goodw in[ v. State , 6 4 4 So. 2d 1269 (Ala. Crim. App. 1993) ], and Washi ngton [v. State , 562 So. 2d 281 (Ala. C r i m . App. 1990) ], the appel l a nt could not be charg ed with hinde ring prose cutio n becau se he wa s a princ ipal in the offen se that resul ted in the mu rder charg e alleg ed to have been h i n d ered. Altho ugh the appel lant' s actio n may argua bly have hinde red the prose cutio n of h i s accomplice s, there is no dispu te that he also hinde red his own prose cutio n. Secti on 13A–1 0–43, Ala. Code 1975, is inapp licab le where an accus ed has rende red a ssist ance to hi mself ."

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S e e also Winga rd v. State , 821 So. 2d 240, 245 (Ala. C r i m . App. 2001) ("In Washi ngton , Goodw in, and Mangi one, this Court held, a s a matte r of law, that a perso n charg ed as an

accomplice to a crime could not have hinde red the prose cutio n of an other char ged a s the prin cipal .").
In the insta n t matte r, the Court of Crimi nals Appea ls relie d on the more recen t decis ion of Daven port v. State , 968 So. 2 d 27 (Ala. Crim . App . 200 5), w hich resta ted t he ho lding

o f Goodw in. In issui ng the writ in this case, the Cour t o f Crimi nal Appeal s sta ted:

"Kell ey, relyi ng on the case of Daven port v. State , 968 So. 2d 27 (Ala. Crim. App. 2005), argue s that she canno t be prose cuted for c a p i t al murde r after she alrea dy has been convi cted and serve d her sente nce for hinde ring prose cu t i on and abuse of a c o rpse relat ed to the same murde rs. ... I n Daven port, this Court rev i e w e d the propr iety of Daven port' s convi ction s for mansl aught er and for hinde ring the prose cutio n of Daven port' s son. In holdi ng that Daven port could no t b e convi cted of both offen ses, this Court stat ed: "'[T] he appel l ant was convi cted of mansl aught er for the death o f t he victi m. Becau se the hinde ring prose cutio n charg e arose fro m t he same facts as those suppo rting the mansl aught er convi ction , she c o uld not prope rly be convi cted of bot h mansl aught er and first -degr ee hinde ring prose cutio n. There fore, the trial court did not have juris dicti on to enter judgm ents on

911302 71 both the mansl aught er charg e and the first-degr ee hinde ring pros ec ut io n ch ar ge .' "968 So. 2d at 36-37
. See also Goodw in v. State , 644 So. 2 d 126 9 (Al a. Cr im. App. 1 993). "For the forgo ing reaso ns, this petit i o n for a writ of manda mu s is hereb y grant ed. Judge Milli can [is] direc ted to grant Kelle y's moti o n to bar her prose cutio n for capit al murde r, as she has alre ady been convi cted of hinde ring prose cutio n and abuse of a cor pse r elate d to the s ame f acts. "
In its manda mus petit i o n, the State conte nds that
Daven port, in holdi ng that an indiv idual canno t be prose cuted for h inder ing t he pr osecu tion of an other when the indiv idual

w a s also a princ ipal, or parti cipat ed, in that cri m e , misst ated the l aw. We ag ree. "When the langu age of a statu te is plain and unamb iguou s ... court s must enfor ce t he statu te as w r i tten by givin g the words of the statu te thei r ordin ary plain meani ng--t hey must inter pret that langu age to mean exact ly what it says and thus give e ffect to the appar ent inten t of the Legis latur e." Ex pa rte T .B., 698 S o. 2d127, 130 (Ala. 1997 ).

"'"Wo rds used i n a statu te must be given their natur al, p lain, ordin ary, and commo n ly under stood meani ng, and where plain langu age is used a court is bound to inter pret that langu age to mean exact ly what it says. If the la n g uage of the statu te is unamb iguou s, then th e r e is no room for j udici al co nstru ction
.... "'"

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DeKal b Cnty. LP Gas Co. v. Subur ban Gas, Inc., 729 So. 2d 270, 275 (Ala. 1998) (quot ing Blue Cross & Blue Shiel d v. Niels en, 714 So. 2d 293, 296 (Ala. 1998) , quoti ng in turn IMED Corp. v. Syste ms Eng'g Assoc s. Corp. , 602 So. 2d 344, 346 (Ala. 1992) ).
See a lso E x par te An krom, 143 So. 3 d 58 (Ala. 2013 ).
As quote d above , § 13A-1 0-43( a) provi des that one "comm its the crime of hinde ring prose cu t i o n in the first degre e if," with the requi site inten t "to hinde r the
appre hensi on, prose cutio n, convi ction or punis hment of anoth er for condu ct const ituti ng" certa in crime s, "he rende rs crimi nal assi s t a n c e to such perso n." (Emph asis added .) The plain langu age of the Code secti on focus es on the crimi nal assis tance rende red to anoth er perso n b y the one accus ed of hinde ring. Wheth er the accus ed also pa r t i cipat ed in the under lying crimi nal condu ct is not addre ssed by t h e Code secti on, a nd th ere i s no langu age p reven ting the p rosec ution of on e who hind ered prose cutio n of anoth er if he o r she also parti cipat ed in the under lying cond uct. Alth ough in ce rtain circu mstan ces p rovid ing c rimin al as sista nce t o an accomplice might also resul t in one's hinde ring his or her own prose cutio n, provi ding crimi nal assis ta n ce to anoth er is

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never thele ss a disti nct act expli citly prosc ribed by the Code secti on. Nicho ls v. State , 500 So. 2d 92, 93 (Ala. Crim. App. 1986) ("[I] t is clear that hi n d e ring prose cutio n is disti nguis hable from the under lying prose cutor ial offen se that

w a s alleg ed to have been commi tted. "). As long as th e o n e

accus ed of hind ering pros ecuti on re nders crim inal assis tance
to anoth er, nothi ng in the langu age of the Code secti on p reven ts his or her prose cutio n, even if the accu s e d ' s crimi nal assis tance also ultim ately resul ted in rende r i ng crimi nal assis tance to himse lf or herse lf. To hold other wise
creat es a broad excep tion not found in, and argua bly contr ary to, § 13A-1 0-43. To the exten t Daven port holds other wise, it misap prehe nds the law and thus does not provi de Kelle y a clear legal right for the manda mus relie f she sough t in the Court of Crimi nal Appeal s. Kelle y argue s that becau se under Dav e n p o rt a perso n

canno t be found guilt y of hinde ring prose cutio n if sh e w as invol ved in the under lying offen se, then the fact that she was found guilt y of hinde ring prose cutio n means , or ultim a t e ly
p r o v es, that she was not a princ ipal in the murde rs i n t h e insta nt case. There fore, she maint ains, the State is

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colla teral ly estop ped from asser ting the contr ary. S e e Ex
p a r t e H oward , 710 So. 2d 460 (Ala. 1997) (disc ussin g th e appli catio n of the doctr ine o f colla teral estop pel in the
conte xt of a crimi nal prose cutio n). This would be true if
Daven port accur atelystat ed th e law , but , as notedabov e, it does not. A convi ction under § 13A-1 0-43 estab lishe s o n ly that o n e hinde red the prose cutio n of anoth er -- it does not
conte mplat e or addre ss wh ether the accus ed al so pa rtici pated in th e und erlyi ng cr imina l con duct. 1
Concl usion
For the foreg oing reaso ns, we grant the State 's petit ion and direc t the Court of Crimi nal Appea ls to vacat e its writ of manda mus.

Kelle y furth er arg u e s that to depar t from Daven port in 1 her case "woul d be so unfai r as to viola te due proce ss." She conte nds that such a depar ture -- appli ed retro activ ely to her case -- wo uld v iolat e the Supr eme C ourt' s dec ision in R ogers v. Te nness ee, 5 32 U. S. 45 1, 46 2 (20 00), which note d tha t due proce ss prote cts "agai nst vindi ct i v e or arbit rary judic ial lawma king by sa fegua rding defe ndant s aga inst unjus tifie d and unpre dicta ble break s with prior law." Given that Daven port' s holdi ng, which we reje c t today , clear ly devia tes from the plain lang uage of § 13A-1 0-43( a), w e see noth ing v indic tive, arbit rary, unjus tifie d, or unpre dicta ble in holdi ng that decis ion t o be in er ror. 1311302 71

PETIT ION G RANTE D; WR IT IS SUED.
Stuar t, Bolin , Parke r, Main, Wise, and Bryan , JJ.,

concu r. Murdo ck, J ., co ncurs in t he re sult.
Moore , C.J ., re cuses hims elf.

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MURDO CK, J ustic e (co ncurr ing i n the resu lt).
I respe ctful ly disag ree with the main opini on's rejec tion
t o d a y of the holdi ngs in Goodw in v. State , 644 So. 2d 1 2 6 9 (Ala. Crim. App. 1993) , and Daven port v. State , 968 So. 2d 27 (Ala. Crim. App. 2005)
. In the proce dural conte xt in which the
Court of Crimi nal Appea ls decid ed those parti cular cases , I belie ve th at co urt r eache d the righ t res ult b ased upon sound

reaso ning. As the Court of Crimi nal Appea ls expl a i n e d in Goodw in: "Whil e it is true that the indic tment cha r ged them with hi nderi ng the prose cutio n of [Davi d] King and [Xavi er] Murra y for the unde r l ying offen se of attempted murde r, the attempted murde r charg e arose out of the same facts suppo rting the prose cutio n of Dewey [Good win] and Daren [Good win] for first degre e robbe ry and for consp iracy to c o mmit first degre e robbe ry. To convi ct them of h i n d e ring the prose cutio n of King and Murra y under these circu mstan ces would , in essen ce, be convi cting them of hinde ring their own prose cutio n, which is prohi bited by Was h ingto n [v. State , 567 So. 2d 281 (Ala. Crim. App. 1990) ]. Thus, this convi ction must be re verse d andthe case reman ded." 644 So. 2d at 1274. Simil arly, the Court of Crimi nal Appea ls

corre ctly reaso ned i n Dav enpor t: "[T]h e appel lant was convi cted of mansl aught e r for t h e death of the victi m. Becau se the hinde ring prose cutio n charg e arose from the same facts as those suppo rting the mansl aught er convi ction , she

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could not prope rly be convi cted of both mansl aught er and f irst- degre e hin derin g pro secut ion." 968 S o. 2dat 3 6.
It is criti cal to note, h o w e v e r , that Goodw in and
Daven port simp l y were postu red diffe rentl y than the prese nt
case, and it is this diffe rence in my view that justi fies, indee d requi res, a diffe rent resul t in the prese nt case. That diffe rence is this: Both Goodw in and Daven port were cases in which the defen dants were prose cuted as both princ ipals a nd "hind erers " at the same time and under circu mstan ces in which the State was suffi cient ly aware of the evide nce t endin g to
prove t h a t the defen dants acted as princ ipals in the very crime s in relat ion to which the State simul taneo usly sough t to
prose cute them as "hind erers ." Her e , a t the time it
prose cutedMarg ie Mo rgan Kelle y for hind ering , the Stat e was

unawa re of the evide nce i mplic ating her as a princ ipal. Wheth er the restr ainin g princ iple at play in Goodw in and
Daven port be consi dered doubl e jeopa rdy (in which cas e the
excep tion ident ified below would be more direc tly appli cable ) or ju dicia l or colla teral esto ppel (in w hich case, give n the

conne ction betw een e stopp el do ctrin es an d dou ble j eopar dy in

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the c r i m i n al conte xt, it would apply by analo gy), I belie ve 2
there is an excep tion to the r e s t r ainin g princ iple that shoul d apply here. Speci fical ly, the Unite d State s Supre me C o u r t has held that, even in a case in which the Doubl e Jeopa rdy Claus e itsel f other wise would apply becau se the defen dan t had alrea dy been prose cuted for a lesse r-inc luded offen se, an excep tion to that bar exist s " w h e n the facts

neces sary to th e gre ater offen se we re no t dis cover ed de spite the exerc ise of due dilig ence befor e the first trial ." Jeffe rs

v. Unite d State s, 432 U.S. 137, 152 (1996 ) (citi ng B r o w n v. Ohio, 432 U.S. 161, 169 n. 7 (1977 ); Black ledge v. Perry , 417
U . S
. 21, 28-29 and n. 7 (1974 ); Diaz v. Unite d State s , 2 2 3
U.S. 442 ( 1912) ; andAshe v. S wenso n, 39 7 U.S . 436 , 453 n. 7 (1970 )). This "exce ption " is prope rl y e x t ended to the holdi ngs in Goodw in and Daven po rt and expla ins why Kelle y's
prose cutio n in the prese n t c ase is not barre d as were the
prose cutio ns in thos e cas es.

See E x p a rte Howar d, 710 So. 2d 460, 463 (Ala. 1997) 2 (quot ing S.W. v. State , 703 So. 2d 427 (Ala. Crim. App. 1997) , and citin g Ashe v. Swens on, 397 U.S. 436 (1970 ) , a nd Unite d State s v. Sanch ez, 992 F.2d 1143, 1154 (11th C i r . 1993) , on recon sider ation , 3 F .3d 3 66 (1 1th C ir. 1 994))
. 1711302 71

Based on the foreg oing, I concu r in the resul t reach ed by the m ain o pinio n.

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