Christopher Matthew Henderson v. State of Alabama. (Appeal from Madison Circuit Court: CC-17-3064).

Rel: August 23, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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Alabama Court of Criminal Appeals
OCTOBER TERM, 2023-2024
_________________________

CR-21-0044
_________________________

Christopher Matthew Henderson

v.

State of Alabama

Appeal from Madison Circuit Court
(CC-17-3064)

On Application for Rehearing

McCOOL, Judge.

APPLICATION OVERRULED.

Windom, P.J., and Cole and Minor, JJ., concur. McCool, J., concurs

specially, with opinion. Kellum, J., dissents.
CR-21-0044

McCOOL, Judge, concurring specially.

Christopher Matthew Henderson was convicted of 15 counts of

capital murder and was sentenced to death. On May 3, 2024, this Court

affirmed Henderson's convictions and sentence, and Henderson timely

filed an application for rehearing, which the Court now overrules. I

concur in the Court's decision to overrule Henderson's application for

rehearing because he has not identified any points of law or fact that the

Court overlooked or misapprehended. See Rule 40(b), Ala. R. App. P. I

write specially to address one of the arguments Henderson has raised in

his application for rehearing.

As the Court explained in its opinion, Rule 45A, Ala. R. App. P., was

amended on January 12, 2023, to provide that this Court may conduct

plain-error review in death-penalty cases but is no longer obligated to do

so, as it was under the prior version of the rule. The Court also explained,

though, that it had already held in a previous case that it would continue

to conduct plain-error review in death-penalty cases, and, consistent with

that holding, the Court thoroughly searched the record for plain error

and reviewed every claim that Henderson raised on appeal -- with one

exception. The Court did not conduct a plain-error review of Henderson's

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CR-21-0044

claim that the State had violated Batson v. Kentucky, 476 U.S. 79 (1986),

by using its peremptory strikes in a racially discriminatory manner

because Henderson did not raise that claim at trial. Rather, after noting

that this Court and several Justices on the Alabama Supreme Court have

long questioned the propriety of allowing a defendant to raise a Batson

claim for the first time on appeal, the Court held that, in an exercise of

its newly provided discretion, it will no longer review Batson claims that

were not raised at trial.

In his application for rehearing, Henderson points out that his

notice of appeal and the parties' briefs were filed before Rule 45A was

amended. Thus, according to Henderson, "mandatory plain-error review

should still have applied in [his] case." (Brief in support of application

for rehearing, p. 46.) Of course, whether plain-error review is mandatory

or discretionary in Henderson's appeal is largely irrelevant because,

except for his Batson claim, the Court did conduct plain-error review

before affirming his convictions and sentence. However, Henderson now

argues in his application for rehearing that this Court must also review

his Batson claim for plain error because, he says, plain-error review is

still mandatory in his appeal. I disagree.

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CR-21-0044

The Alabama Rules of Appellate Procedure (hereinafter "the Rules"

or "our Rules") do not address whether amended rules apply

retroactively, i.e., whether they apply to appeals that are pending at the

time the amendment takes effect. The only rules that appear to speak to

application of the Rules are Rule 1, which states that "[a]ll cases

appealable to the Court of Criminal Appeals shall be governed by those

rules contained herein which are applicable to appeals to that court," and

Rule 49(1), which states that the Rules "shall apply to all appellate

proceedings taken from decisions, judgments and orders entered on or

after December 1, 1975." Thus, I find nothing in the Rules themselves to

support the conclusion that an amended rule does not apply to appeals

that are pending at the time the amendment takes effect. See also Lopez

v. State, 114 S.W.3d 711, 713 (Tex. App. 2003) (applying "the current

rules of appellate procedure," even though the appellant had filed his

notice of appeal approximately 11 months before the rules were

amended); and Hernandez v. State, 969 S.W.2d 440, 448 n.1 (Tex. App.

1998) ("The amended Texas Rules of Appellate Procedure are applicable

to this proceeding, as this appeal was pending at the time the amended

rules became effective.").

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CR-21-0044

I also note that the United States Court of Appeals for the Fifth

Circuit has held that amendments to the Federal Rules of Appellate

Procedure, upon which our Rules are based, Ex parte Andrews, 520 So.

2d 507, 509 (Ala. 1987), are to "be given retroactive application to the

maximum extent possible," i.e., they are to apply to pending appeals,

"unless their application [in the case at hand] would work injustice."

Freudensprung v. Offshore Tech. Servs., Inc., 379 F.3d 327, 334 n.2 (5th

Cir. 2004) (citations omitted). That holding is persuasive authority when

interpreting our Rules, Ex parte Byner, 270 So. 3d 1162, 1168 (Ala. 2018),

and thus strengthens the conclusion that amendments to our Rules apply

to appeals that are pending at the time the amendment takes effect. I

recognize that the Fifth Circuit's holding comes with the caveat that

retroactive application of an amended rule is appropriate only when it

will not "work injustice," but that caveat is based on a federal statute, see

Burt v. Ware, 14 F.3d 256, 259 (5th Cir. 1994), and I am not aware of any

similar Alabama statute. In my opinion, the absence of a similar

Alabama statute only further strengthens the conclusion that the current

version of Rule 45A applies to Henderson's appeal.

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CR-21-0044

I am not persuaded by the cases Henderson cites in his application

for rehearing because those cases speak to the retroactive application of

statutes. Furthermore, to the extent those cases are applicable, they

support the Court's decision to apply the current version of Rule 45A to

Henderson's appeal, as they provide that "those [statutes] which do not

create, enlarge, diminish, or destroy vested rights … 'may be applied on

appeal, even if the effective date of the statute occurred while the appeal

was pending.' " Ex parte Bonner, 676 So. 2d 925, 926, 927 (Ala. 1995)

(quoting Kittrell v. Benjamin, 396 So. 2d 93, 95 (Ala. 1981)). Contrary to

Henderson's belief, applying the current version of Rule 45A to his appeal

does not diminish or destroy his vested rights because, although

Henderson and other defendants sentenced to death have a right to an

appeal, Petersen v. State, 326 So. 3d 535, 547 (Ala. Crim. App. 2019), I

am not aware of any constitutional, statutory, or rule-based "right" to

plain-error review in that appeal. Even when Rule 45A made plain-error

review mandatory, it did not, in my opinion, vest appellants with a "right"

to that review. I also am not persuaded by Henderson's argument that

he was entitled to the due-process requirements of notice and an

opportunity to be heard before this Court could apply the current version

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CR-21-0044

of Rule 45A to his appeal. Generally, those due-process requirements

apply when a defendant's rights are at stake, but, as I just explained,

Henderson and other defendants sentenced to death have never, as far

as I know, had a "right" to plain-error review.

For the foregoing reasons, I see no basis for concluding that this

Court erred by applying the current version of Rule 45A to Henderson's

appeal. Thus, I do not believe the Court was under any obligation to

review Henderson's Batson claim for plain error, and I firmly stand by

the Court's conclusion that a defendant, even one sentenced to death,

should not be able to raise such a claim for the first time on appeal.

Accordingly, I concur in the Court's decision to deny Henderson's

application for rehearing.

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