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Ex parte State

Alabama Court of Criminal Appeals

September 20, 2019

Jarod Chase Cantrell. In re: State of Alabama,

Page 141

         Winston Circuit Court, CC-17-155.

         Henry N. Cook, deputy dist. atty., 25th Judicial Circuit, Double Springs, for petitioner.

          Stella J. Wennberg of Wennberg Law Firm, LLC, Winfield, for respondent.

          J. Patrick Lamb, gen. counsel, Alabama District Attorneys Association, Montgomery, for amicus curiae Alabama District Attorneys Association.

         PER CURIAM.

         The 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.

         On May 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.

         On 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.[1] 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.'[[2] ] The recording was stopped and resumed when the interview started.

"No evidence was presented that the interrogating officer explained the Miranda

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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.)

         Cantrell's 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 jury.

         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 statements:

"Q. ... [Defense counsel] asked you, did you climb through her window?

"A. Correct.

"Q. And that's talking about the window of [K.E.B.]?

"Q. Yes.

"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.)

         On 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

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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.

         In its petition, the State asserts that Judge Carter lacked the authority to sua sponte dismiss with prejudice the indictment against Cantrell.[3] 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").

         Initially, 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 ...

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