Circuit Court, CC-17-155.
N. Cook, deputy dist. atty., 25th Judicial Circuit, Double
Springs, for petitioner.
J. Wennberg of Wennberg Law Firm, LLC, Winfield, for
Patrick Lamb, gen. counsel, Alabama District Attorneys
Association, Montgomery, for amicus curiae Alabama District
State of Alabama filed this petition for a writ of mandamus
requesting this Court to direct Judge Talmage Lee Carter to
set aside that portion of his order of February 27, 2019,
dismissing with prejudice the indictment against
Jarod Chase Cantrell. We dismiss the State's petition.
23, 2017, the Winston County grand jury returned a 12-count
indictment against Cantrell. Cantrell faced three counts of
second-degree rape, see § 13A-6-62, Ala. Code
1975, three counts of second-degree sodomy, see
§ 13A-6-64, three counts of being a school employee who
engaged in a sex act with a student under the age of 19
years, see § 13A-6-81, Ala. Code 1975, and
three counts of third-degree burglary, see §
13A-7-7, Ala. Code 1975. Cantrell's charges arose from
allegations that he, a teacher, had engaged in sexual acts
with K.E.B., a 15-year-old student.
February 18, 2019, Judge Carter granted two of Cantrell's
pretrial motions that are relevant to the State's
petition. First, Judge Carter granted Cantrell's motion
in limine asking the trial court to restrict the State's
witnesses from using the words "rape" and
"sodomy." Second, Judge Carter granted
Cantrell's motion to suppress a statement he had given to
Double Springs Chief of Police Kim Miller on February 27,
2017, following his arrest. Judge Carter made the
following findings in support of his judgment:
"[Cantrell] gave a statement to the Double Springs
Police Department on February 27, 2017, during a custodial
interrogation. Prior to the start of the interview, the
interrogating officer read [Cantrell] his Miranda [v.
Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966),] warnings and then instructed [Cantrell], `I need
you to sign there, that I read that to you.' After
signing the Miranda form, [Cantrell] stated,
`Yeah, I just want you to explain those to me; that's
all I want you to do.' The interrogating officer
responded, `Okay.'[ ] The recording was stopped and
resumed when the interview started.
"No evidence was presented that the interrogating
officer explained the Miranda
rights to [Cantrell] after [Cantrell] requested an
explanation or that other steps were taken to insure that
the waiver was knowing and intelligent. The State has not
proven that a valid waiver of the right to silence and the
right to counsel occurred in this case."
(State's petition, Exhibit F.)
trial began the next day. Officer Tim Hale of the Double
Springs Police Department testified during the State's
case-in-chief. On direct examination, Officer Hale was asked
how he had become involved in the case. Officer Hale
responded: "[Chief Miller] called and stated that I
needed to get out to [Ca.B.] and [Ch.B.]'s house, that
their daughter had been raped." (State's petition,
Exhibit H.) Defense counsel objected and asked for a curative
instruction. The prosecutor, who expressed surprise at
Officer Hale's testimony, stated that he had informed the
victim and her parents about the court's prohibition but
had failed to discuss the issue with other witnesses. The
prosecutor suggested that Officer Hale's offending
statement be stricken. Judge Carter struck the answer from
the record and issued a lengthy curative instruction to the
trial progressed, and the State completed its case-in-chief.
Cantrell elected to testify in his own defense. During the
direct examination of Cantrell, defense counsel asked
Cantrell if he had ever climbed through the victim's
window. (State's petition, Exhibit I at 41.) Cantrell
denied having done so. (State's petition, Exhibit I at
41.) This testimony, however, conflicted with a statement
Cantrell had made to Chief Miller following his arrest.
During the State's cross-examination, the prosecutor
attempted to impeach Cantrell based on his conflicting
"Q. ... [Defense counsel] asked you, did you climb
through her window?
"Q. And that's talking about the window of
"A. And your answer here today under oath is —
"Q. I have never climbed through her window, no.
"Q. Do you recall previously having stated that you
did go into her house through the window?"
(State's petition, Exhibit I at 63-64.) Defense counsel
objected to the question and moved for a mistrial. The
prosecutor argued that, pursuant to the holding of the
Supreme Court of the United States in Harris v. New
York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971),
"voluntary statements taken in violation of Fifth
Amendment prophylactic rules, while inadmissible in the
prosecution's case in chief, may nevertheless be used to
impeach the defendant's conflicting testimony."
Michigan v. Harvey, 494 U.S. 344, 344, 110 S.Ct.
1176, 108 L.Ed.2d 293 (1990). The State's argument was
abruptly ended by Judge Carter, who stated, "Okay. All
right. I've heard all I need to hear. We're going to
take a recess. I want to see the attorneys in chambers."
(States's petition, Exhibit I at 68-69.) When trial
resumed, Judge Carter stated: "Okay. I've considered
the defense motion for mistrial. Based on prosecutorial
misconduct, I'm granting the motion." (States's
petition, Exhibit I at 69.)
February 22, 2019, Judge Carter issued the following bench
order: "February 21, 2019: This day came the District
Attorney and the Defendant with counsel,..., and the trial
resumed and concluded; Defense Motion for Mistrial
granted." (State's petition, Exhibit K.) On February
27, 2019, Judge Carter amended his order to state:
"February 21, 2019: This day
came the District Attorney and the Defendant with counsel,
..., and the trial resumed and concluded; Defense Motion for
Mistrial granted due to prosecutorial misconduct.... This
case is dismissed with prejudice." (State's
petition, Exhibit L.) The State timely filed the instant
petition asserting that Judge Carter lacked authority to
dismiss the indictment against Cantrell with prejudice. This
Court offered the respondents an opportunity to answer the
allegations in the State's petition. Cantrell filed an
answer, and this Court has considered his response.
petition, the State asserts that Judge Carter lacked the
authority to sua sponte dismiss with prejudice the indictment
against Cantrell. By dismissing the indictment against
Cantrell with prejudice, Judge Carter's order
purports to bar the Winston County District Attorney from
re-indicting Cantrell on the 12 charges contained in the
indictment. Cf. Black's Law Dictionary 570 (10th
ed. 2014) (noting that the dismissal of a case with prejudice
"remove[s] [the case] from the court's docket in
such a way that the plaintiff is foreclosed from filing a
suit again on the same claim or claims").
this Court must address whether there is any relief that can
be granted. Cantrell's answer asserts, in part, that the
issue before this Court is now ...