Opinion
CR-20-0676
08-05-2022
Davarius Vanquez McGee v. State of Alabama
Appeal from Jefferson Circuit Court (CC-15-2883)
MINOR, Judge
This appeal requires us to determine whether the State's evidence to convict Davarius Vanquez McGee for the lesser-included offenses of felony murder for a murder that occurred during a first-degree burglary, see § 13A-6-2(a)(3) and § 13A-7-5, Ala. Code 1975, and felony murder for a murder that occurred during a first-degree robbery, see § 13A-6-2(a)(3) and § 13A-8-41(a)(1), Ala. Code 1975, was sufficient. We conclude that the State's evidence was sufficient for the circuit court to deny McGee's motion for a judgment of acquittal. But we must remand this case for the circuit court to vacate one of McGee's convictions because here the two convictions and sentences for the felony murder of Arthur Mills violate double-jeopardy principles.
The circuit court sentenced McGee, as a habitual offender, to concurrent terms of life in prison.
Facts
In June 2014, Davarius McGee and two of his friends, Aronde Samuels and Fred Nelson, drove a blue Hyundai automobile to 76-year-old Juliette Lockett's house in Birmingham. As Lockett was walking to her silver Cadillac automobile, McGee and company approached her. All the men were armed. McGee and Nelson took Lockett's keys from McGee then went to the back of Lockett's house while Nelson was at the front door. Meanwhile, Samuels drove off in Lockett's Cadillac.
Samuels testified to this version of the events. In doing so, he admitted that he had pleaded guilty to felony murder and that, in exchange for his testimony, he was sentenced to "20 years split five." (Supp R3, p. 445.) Samuels also admitted that he had turned himself into the police.
Josephine Mills, who lived across the street from Lockett, saw two men "dragging" Lockett toward her house. At some point, Lockett got away and came over to Mills's house. Lockett told Mills that the men demanded her keys, stating, "lady, don't make me shoot you right here." (Supp. R1. 70.) After the men finished inside the house, McGee drove off. About that time, Nelson, who was armed with a rifle, started shooting toward Mills's house. Nelson shot and killed Arthur Mills, Josephine's son. McGee then backed up the street and picked up Nelson before driving away.
After a BOLO was issued, police spotted McGee driving the blue Hyundai. McGee led police on a pursuit before he was arrested. McGee had "a large amount of jewelry in his pockets" including a watch belonging to Lockett's grandson. (Supp. R1. 159.) Law enforcement found a Vizio brand television with McGee's latent fingerprints on it in the backseat of the Hyundai. Law enforcement later found Lockett's ring in the backseat of the patrol car where McGee had sat.
A Jefferson County grand jury indicted McGee for two counts of capital murder for the death of Mills. After the State rested at trial, McGee moved for a judgment of acquittal, arguing that "the State has not introduced evidence of a sufficient quality or quantity to sustain a conviction of capital murder in this case." (Supp. R3, p. 506.) The circuit court denied the motion. The jury found McGee guilty of the lesser-included offenses of felony murder for murder committed during a first-degree burglary and felony murder for murder committed during a first-degree robbery. McGee timely appealed.
Analysis
On appeal, McGee argues that the circuit court erred by denying his motion for a judgment acquittal because, he says, the State failed to present sufficient evidence to support his convictions. McGee argues that "[t]here is a total lack of evidence that [he] committed any robbery or burglary or that he was complicit in such." (McGee's brief, p. 15.)
See Mitchell v. State, 706 So.2d 787, 797 (Ala.Crim.App.1997) ("Because the jury acquitted Mitchell of capital murder, we will address only that portion of Mitchell's insufficiency of the evidence argument that ... pertains to felony murder.").
"'In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.'" Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998) (quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), affd, Ex parte Faircloth, 471 So.2d 493 (Ala. 1985)).
A person commits the crime of felony murder if
"[he] commits or attempts to commit ... burglary in the first or second degree, ... robbery in any degree, ... and, in the course of and in furtherance of the crime that he is committing or attempting to commit, or in immediate flight therefrom, he, or another participant if there be any, causes the death of any person."§ 13A-6-2(a)(3), Ala. Code 1975.
Section 13A-7-5, Ala. Code 1975, provides:
"(a) A person commits the crime of burglary in the first degree if he or she knowingly and unlawfully enters or remains unlawfully in a dwelling with intent to commit a crime therein, and, if, in effecting entry or while in dwelling or in immediate flight therefrom, the person or another participant in the crime:
"....
"(2) Causes physical injury to any person who is not a participant in the crime; or
"(3) In effecting entry, is armed with a deadly weapon or dangerous instrument or, while in the dwelling or immediate flight from the dwelling, uses or threatens the immediate use of a deadly weapon or dangerous instrument against another person. The use of or threatened use of a deadly weapon or dangerous instrument does not include the mere acquisition of a deadly weapon or dangerous instrument during the burglary."Section 13A-8-41, Ala. Code 1975, provides: "A person commits the crime of robbery in the first degree if he violates Section 13A-8-43 and he ... [i]s armed with a deadly weapon or dangerous instrument." Section 13A-8-43, Ala. Code 1975, provides: "A person commits the crime of robbery in the third degree if in the course of committing a theft he ... [u]ses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance."
Section 13A-2-23, Ala. Code 1975, provides: "A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense ... [h]e procures, induces or causes such other person to commit the offense; or ... [h]e aids or abets such other person in committing the offense."
The Commentary to Ala. Code 1975, § 13A-2-23, provides:
"Regarding the extent of liability as a consequence of the principal's actions, Alabama case law has held that as a general rule each person entering upon an unlawful purpose is responsible for everything which may consequently and proximately flow from the unlawful purpose (whether committed by defendant or not, and whether specifically intended or not)."
The State's evidence showed that McGee, who was armed with a gun, robbed Lockett by "dragging her" onto the porch and taking her car keys and giving them to Samuels, who then stole Lockett's car. McGee then burglarized Lockett's house by breaking into it and stealing several items including a Vizio television, a ring, and Lockett's grandson's watch. McGee does not dispute that Arthur Mills was shot and killed during the commission of the robbery and the burglary. Any challenge to the credibility of the witnesses was for the jury to decide. Thus, the circuit court did not abuse its discretion by denying McGee's motion for a judgment of acquittal.
Although neither party raises the issue, this Court must recognize jurisdictional errors. See, e.g., Ex parte Robey, 920 So.2d 1069 (Ala. 2004). Here, McGee's two convictions and sentences for felony murder for the killing of Arthur Mills violate double-jeopardy principles. See Brown v. State, 171 So.3d 102, 109 (Ala.Crim.App.2014) ("Although Brown does not raise this issue, double-jeopardy principles have been violated as a result of Brown's two convictions and sentences for felony murder.").
"No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb ...." U.S. Const. amend. V. See also Art. I, § 9, Ala. Const. 1901 (Off. Recomp.).
In Brown, 171 So.3d at 109-10, this Court held:
"'In Ex parte Rice, 766 So.2d 143 (Ala. 1999), the Alabama Supreme Court held that § 13A-6-2(a)(3), Ala. Code 1975, creates a single offense, even though it provides alternative methods of proving the offense. The supreme court also held that double jeopardy principles prohibit multiple convictions and multiple sentences for felonymurder if the convictions and sentences arise from a single killing. In this case, the appellant was convicted of one count of felony-murder during a robbery and one count of felony-murder during the commission of a felony that was clearly dangerous to human life-discharging a firearm into an occupied vehicle. Both convictions arose from the murder of Speigner. Therefore, he could not properly be convicted of and sentenced for two counts of felony-murder. The trial court sentenced the appellant to serve concurrent terms of life in prison. However, in Rice, the supreme court held:
"'"We note that merely ordering that Rice's sentences run concurrently is not a constitutionally acceptable option. The Supreme Court stated in Ball v. United States, 470 U.S. 856, 864-65, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985):
"'"'The remedy of ordering one of the sentences to be served concurrently with the other cannot be squared with Congress' intention. One of the convictions, as well as its concurrent sentence, is unauthorized punishment for a separate offense. See Missouri v. Hunter, 459 U.S. 359, 368[, 103 S.Ct. 673, 74 L.Ed.2d 535] (1983).
"'"'The second conviction, whose concomitant sentence is served concurrently, does not evaporate simply because of the concurrence of the sentence. The separate conviction, apart from the concurrent sentence, has potential adverse collateral consequences that may not be ignored. For example, the presence of two convictions on the record may delay the defendant's eligibility for parole or result in an increased sentence under a recidivist statute for a future offense. Moreover, the second conviction may be used to impeach the defendant's
credibility and certainly carries the societal stigma accompanying any criminal conviction. See Benton v. Maryland, 395 U.S. 784, 790-91[, 89 S.Ct. 2056, 23 L.Ed.2d 707] (1969); Sibron v. New York, 392 U.S. 40, 54-56[, 88 S.Ct. 1889, 20 L.Ed.2d 917] (1968). Thus, the second conviction, even if it results in no greater sentence, is an impermissible punishment.'
"'"See, also, Rolling v. State, [673 So.2d 812 (Ala.Crim.App.1995)].
"'"Neither is it an acceptable option to merely vacate one of Rice's convictions and its corresponding sentence. The jury specifically found that Rice had violated § 13A-6-2(a)(3) in two different ways-by participating in a kidnapping and causing Taylor's death and by participating in a robbery and causing Taylor's death. Based on the record before us, an appellate court's vacating one of Rice's convictions and its corresponding sentence would have the effect, albeit unintended, of nullifying a part of the jury's verdict. We think the better approach is for the Court of Criminal Appeals to remand the case to the trial court for the entry of a new order-an order that adjudges Rice guilty of
Taylor's murder and sentences him for that single offense."
"'Rice, 766 So.2d at 152-53.'
"Carlisle v. State, 963 So.2d 170, 170-71 (Ala.Crim.App.2006)."
"Therefore, Brown's convictions for two counts of felony murder cannot stand. We remand this case to the circuit court with directions for that court to enter a new order adjudging Brown guilty of murder and sentencing him for that single offense."
McGee, like the defendants in Brown and Rice, received two felonymurder convictions for the murder of one person, Arthur Mills. Based on that, this Court remands this case to the circuit court "for that court to enter a new order adjudging [McGee] guilty of [felony] murder and sentencing him for that single offense." Brown, 171 So.3d at 110. Due return must be filed with this Court within 42 days of the date of this opinion and must include a transcript of the sentencing hearing conducted on remand, as well as the circuit court's amended sentencing order.
REMANDED WITH INSTRUCTIONS.
Windom, P.J., and Kellum, McCool, and Cole, JJ., concur.